State v. Bourne, 21597-7-II
| Decision Date | 01 May 1998 |
| Docket Number | No. 21597-7-II,21597-7-II |
| Citation | 954 P.2d 366,90 Wn.App. 963 |
| Parties | STATE of Washington, Respondent, v. Myron Raymond BOURNE, Appellant. |
| Court | Washington Court of Appeals |
Robert W. Huffhines, (Court Appointed), Kelso, for Appellant .
Edwin Nick Norton, Deputy Prosecuting Attorney, Kelso, for Respondent.
Myron Bourne appeals an exceptional sentence for one count of felony hit and run based on multiple victims involved in the accident. The State cross-appeals the trial court's dismissal of Counts II and III of felony hit and run. We affirm.
While Bourne was driving under the influence of intoxicants, he rear-ended a car stopped at an intersection and injured each of its three minor occupants. He did not stop at the scene of the accident, but fled with police pursuing. Bourne was charged with three counts of felony hit and run, in violation of RCW 46.52.020, and one count of driving under the influence (DUI), in violation of RCW 46.61.502(1)(b). He was found guilty by a jury of all charges.
At the sentencing hearing, the trial court dismissed the second and third counts of felony hit and run because the evidence supported only one conviction, even though there were multiple victims. The trial court found that "[t]he elements of Hit and Run-Injury are set forth in the To-Convict Instructions as given to the jury," that "[i]n order for each Count to be sustainable on its own, each has to occur independently," and that "[t]he essence of the charge is Hit and Run-Injury." For the purposes of restitution, the trial court amended Count I to include all three occupants of the vehicle Bourne struck. Bourne's standard range sentence was 15-20 months, but the trial court imposed an exceptional sentence of 30 months for the single count of felony hit and run, to be served concurrently with a sentence of 12 months for the DUI. In the findings of fact and conclusions of law for the exceptional sentence, the trial court found that "[t]hree people were injured in the one vehicle that the defendant struck," and that "[t]he standard range for one count of Hit and Run-Injury and DUI is 15-20 months." The trial court concluded that "[t]here were multiple victims," that "[t]he standard range of 15-20 months is insufficient," and that "[t]here are substantial and compelling reasons which justify going beyond the standard range." Bourne appeals the imposition of an exceptional sentence and the State cross-appeals the dismissal of Counts II and III.
The State first claims that the trial court did not have authority to dismiss the second and third counts of felony hit and run because Bourne did not file a proper motion. Without articulating a specific court rule, Bourne moved during the State's case to dismiss Counts II and III based on evidence that there was only one accident, rather than three. The trial court denied the motion but indicated that it would reconsider the motion at sentencing if Bourne was convicted of all three counts. Bourne was found guilty by the jury of all three counts on January 14, 1997. At the sentencing hearing one week later, the trial court reconsidered the motion and, following argument from both parties, granted the motion to dismiss Counts II and III.
The trial court ruled on an appropriately made, albeit, reconsidered motion. CrR 7.4 allows a defendant to move for arrest of judgment within 10 days of the verdict or decision. The motion may be based on the following causes: "(1) Lack of jurisdiction of the person or offense; (2) the indictment or information does not charge a crime; or (3) insufficiency of the proof of a material element of the crime." CrR 7.4(a). The trial court appropriately considered Bourne's motion to dismiss two counts of felony hit and run.
"When reviewing an order arresting judgment granted pursuant to CrR 7.4(a)(3), an appellate court's function is to determine 'whether the evidence is legally sufficient to support the jury's finding.' " State v. Robbins, 68 Wash.App. 873, 875, 846 P.2d 585 (1993) (quoting State v. Pleasant, 38 Wash.App. 78, 80, 684 P.2d 761, review denied 103 Wash.2d 1006, 690 P.2d 1174 (1984)). The evidence is sufficient if any rational trier of fact viewing it most favorably to the State could have found the essential elements of the charged crime beyond a reasonable doubt. Robbins, 68 Wash.App. at 875, 846 P.2d 585. The State does not dispute that there was only one accident but argues that Bourne's convictions for three counts of felony hit and run should stand because the vehicle that Bourne hit contained three occupants. Consequently, whether the evidence is legally sufficient to support the jury's verdict on all three counts depends on whether, as a matter of law, Bourne can be convicted of three counts of felony hit and run based on only one accident that involved one vehicle containing three people.
The felony hit and run statute states, in part:
(1) A driver of any vehicle involved in an accident resulting in the injury to or death of any person shall immediately stop such vehicle at the scene of such accident or as close thereto as possible but shall then forthwith return to, and in every event remain at, the scene of such accident until he has fulfilled the requirements of subsection (3) of this section; every such stop shall be made without obstructing traffic more than is necessary.
....
(3) Unless otherwise provided in subsection (7) of this section the driver of any vehicle involved in an accident resulting in injury to or death of any person or damage to any vehicle which is driven or attended by any person or damage to other property shall give his name, address, insurance company, insurance policy number, and vehicle license number and shall exhibit his vehicle driver's license to any person struck or injured or the driver or any occupant of, or any person attending, any such vehicle collided with and shall render to any person injured in such accident reasonable assistance, including the carrying or the making of arrangements for the carrying of such person to a physician or hospital for medical treatment if it is apparent that such treatment is necessary or if such carrying is requested by the injured person or on his behalf. Under no circumstances shall the rendering of assistance or other compliance with the provisions of this subsection be evidence of the liability of any driver for such accident.
(4) Any driver covered by the provisions of subsection (1) of this section failing to stop or comply with any of the requirements of subsection (3) of this section under said circumstances shall be guilty of a class C felony and, upon conviction, be punished pursuant to RCW 9A.20.020: Provided, That this provision shall not apply to any person injured or incapacitated by such accident to the extent of being physically incapable of complying herewith.
RCW 46.52.020.
RCW 46.52.020 sets out the duty imposed upon the operator of a vehicle who has become involved in an accident. The duties imposed, if injury or death result, or if another attended vehicle is damaged, are as follows: The operator of the vehicle shall stop at or as near the scene of the accident as possible and return to the scene of the accident or as close thereto as possible and remain until the requirements of subsection (3) are fulfilled.
State v. Vela, 100 Wash.2d 636, 638, 673 P.2d 185 (1983) (footnote omitted) (emphasis added). Thus, the elements of felony hit and run require proof of (1) death or injury to a person or damage to an attended vehicle, and (2) failure of the driver of the vehicle involved in the accident to stop his vehicle and return to the scene in order to provide his name, address, vehicle license number and driver's license and to render reasonable assistance to any person injured in such accident. State ex rel. Fitch v. Roxbury Dist. Court, 29 Wash.App. 591, 593, 629 P.2d 1341 (1981). "[U]nder principles of statutory construction, a statute is not subject to judicial interpretation where its language is plain, unambiguous, and well understood according to its natural and ordinary sense and meaning." State v. McCollum, 88 Wash.App. 977, 988, 947 P.2d 1235 (1997) (citing State v. Lewis, 86 Wash.App. 716, 717-18, 937 P.2d 1325 (1997)).
If a statute is ambiguous, the rule of lenity requires the statute to be interpreted most favorably to the defendant. State v. Lively, 130 Wash.2d 1, 14, 921 P.2d 1035 (1996); State v. Gore, 101 Wash.2d 481, 486, 681 P.2d 227, 39 A.L.R.4th 975 (1984); State v. Bernard, 78 Wash.App. 764, 768, 899 P.2d 21 (1995). A statute is ambiguous only if it is susceptible to more than one reasonable interpretation. Bernard, 78 Wash.App. at 768, 899 P.2d 21. Where a statute is ambiguous, the court may look to the legislative history for insight into legislative intent. See Bellevue Fire Fighters Local 1604 v. City of Bellevue, 100 Wash.2d 748, 751, 675 P.2d 592 (1984), cert. denied, 471 U.S. 1015, 105 S.Ct. 2017, 85 L.Ed.2d 299 (1985).
McCollum, 88 Wash.App. at 988, 947 P.2d 1235.
The statute indicates that a driver is in compliance if he provides the necessary information to a person struck or injured, to the driver of the vehicle, to an occupant of the vehicle, or to a person attending the vehicle. The statute does not require that the driver provide the information to all persons struck or injured, to all occupants of the vehicle, or to all persons attending the vehicle. That portion of the statute that mandates disclosure of information is in the disjunctive.
The statute may be violated by failing to render assistance to any person injured. That portion of the statute dealing with the duty to render assistance uses the language any person injured. It is argued by Bourne that the statute is ambiguous as to whether the driver must render assistance to all victims or to only one victim in order to avoid criminal sanctions. We look to prior case...
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