State v. Burch

• Decision Date: 28 December 2016
• Docket Number: No. 47558-8-II,47558-8-II
• Citation: 389 P.3d 685,197 Wash.App. 382
• Parties: STATE of Washington, Respondent, v. Docie E. BURCH, Appellant.
• Court: Washington Court of Appeals

197 Wash.App. 382

389 P.3d 685

STATE of Washington, Respondent,

v.Docie E. BURCH, Appellant.

No. 47558-8-II

Court of Appeals of Washington, Division 2.

December 28, 2016

Jodi R. Backlund, Backlund & Mistry, P.O. Box 6490, Olympia, WA, 98507-6490, for Appellant.

Timothy J. Higgs, Mason Co. Pros. Atty. Office, P.O. Box 639, Shelton, WA, 98584-0639, for Respondent.

Bjorgen, C.J.¶1 Docie Burch appeals her convictions for vehicular homicide and vehicular assault stemming from a drunk driving accident. She argues that the trial court erred by giving the jury to-convict instructions for both crimes that allowed the jury to find her guilty without finding that the State proved ordinary negligence. We hold that to convict a defendant of vehicular homicide or vehicular assault, the State need not prove that a driver acted with ordinary negligence in the operation of a motor vehicle if it proves that the driver was under the influence of alcohol or drugs while driving that vehicle, along with other elements of the offense. Therefore, the trial court did not err by omitting a negligence element from its instructions to the jury. Accordingly, we affirm Burch's convictions.

FACTS

¶2 In December 2014, Burch was driving across an icy bridge when her truck spun out, slid off the road, and hit two men who were investigating the scene of an earlier accident. One of the men died and the other received serious injuries, including multiple broken bones

and a severe ear laceration.

¶3 Burch was uncooperative with law enforcement officers who responded to the scene. During their contact with Burch, the officers noticed that she smelled strongly of intoxicants. They restrained Burch and brought her to a hospital to draw blood to test for intoxicants. Testing of that sample showed a blood alcohol concentration of .09, indicating a concentration between .11 and .14 two hours after the accident.

¶4 The State charged Burch with vehicular homicide and vehicular assault, alleging that she drove or operated a motor vehicle while under the influence of intoxicating liquor or any drug or any combination of the two, in a reckless manner, and with disregard for the safety of others. Following trial, the court gave the jury the State's proposed to-convict instructions, which specified that it could reach a guilty verdict as to vehicular homicide only if it found

(1) That ... the defendant drove a motor vehicle;

(2) That the defendant's driving of the motor vehicle proximately caused injury to another person;

(3) That at the time of causing the injury, the defendant was driving the motor vehicle

(a) while under the influence of intoxicating liquor or drugs; or

(b) in a reckless manner; or

(c) with disregard for the safety of others;

(4) That the injured person died within three years as a proximate result of the injuries; and

(5) That the defendant's act occurred in the State of Washington.

Clerk's Papers (CP) at 43. Similarly, the to-convict instruction for vehicular assault informed the jury it could reach a guilty verdict only if it found

1. That ...the defendant drove a vehicle;

2. That the defendant's driving proximately caused substantial bodily harm to another person;

3. That at the time the defendant

a. drove the vehicle in a reckless manner; or

b. was under the influence of intoxicating liquor or drugs; or

c. drove the vehicle with a disregard for the safety of others; and

4. That this act occurred in the State of Washington.

CP at 39.

¶5 In other instructions, the trial court clarified the standards for the mental states of recklessness and disregard for the safety of others. However, no instruction mentioned any further mental element that would be required to find Burch guilty because she was under the influence of intoxicating liquor or drugs. Burch did not object to any of the instructions and did not propose alternative instructions.

¶6 The jury found Burch guilty of both vehicular homicide and vehicular assault. In special verdicts, the jury found that Burch had driven while under the influence of intoxicating liquor or drugs, but had not driven recklessly. CP at 20-21. The jury was unable to agree as to whether she had driven with disregard for the safety of others. Id .

¶7 Burch appeals her convictions.

ANALYSIS

¶8 The fundamental question presented by this appeal is whether the crimes of vehicular homicide and vehicular assault committed while under the influence of alcohol or drugs require the State to prove ordinary negligence in addition to the fact that the defendant was under the influence of alcohol or drugs. Burch separately challenges her convictions for vehicular homicide and vehicular assault on the grounds that the to-convict jury instructions omitted the negligence element. The State implicitly contends that both vehicular homicide and vehicular assault are strict liability offenses, arguing that no showing of negligence is required for either crime in light of legislative amendments and subsequent case law.

I. STANDARD OF REVIEW

¶9 In a criminal case, the State bears the burden of proving each element of a charged crime beyond a reasonable doubt. State v. Fisher , 165 Wash.2d 727, 753, 202 P.3d 937 (2009). In recognition of this requirement, the trial court's to-convict jury instruction generally must contain all elements of the crime essential to the conviction.

State v. Mills , 154 Wash.2d 1, 7, 109 P.3d 415 (2005). Whether the elements of a particular statutory crime include a mens rea element is a matter for the legislature to decide. State v. Bash , 130 Wash.2d 594, 604, 925 P.2d 978 (1996). Thus, we must interpret relevant statutes to ascertain whether the legislature intended to include such an element. Id . at 604–05, 925 P.2d 978. We conduct this inquiry de novo. State v. Wilson , 170 Wash.2d 682, 687, 244 P.3d 950 (2010) ; Mills , 154 Wash.2d at 7, 109 P.3d 415.

¶10 Our interpretive analysis first examines the statute's language to determine whether it expresses any mens rea requirement.

State v. Barnes , 153 Wash.2d 378, 384, 103 P.3d 1219 (2005). If it is silent as to such a requirement, we consider the legislative history of the statute and relevant case law. Id . ; Wilson , 170 Wash.2d at 687, 244 P.3d 950. Where resort to legislative history and case law proves inconclusive, we consider the eight factors outlined in Bash , which weigh upon legislative intent. State v. Anderson , 141 Wash.2d 357, 363, 5 P.3d 1247 (2000).

II. VEHICULAR HOMICIDE

¶11 Burch argues that ordinary negligence is an element of vehicular homicide by driving under the influence of alcohol or drugs. We disagree.

A. Statutory Language

¶12 The vehicular homicide statute, RCW 46.61.520, provides in relevant part:

(1) When the death of any person ensues within three years as a proximate result of injury proximately caused by the driving of any vehicle by any person, the driver is guilty of vehicular homicide if the driver was operating a motor vehicle:

(a) While under the influence of intoxicating liquor or any drug, as defined by RCW 46.61.502 ; or

(b) In a reckless manner; or

(c) With disregard for the safety of others.

The plain language of subsection (1)(a) is silent as to ordinary negligence or any other mens rea requirement. However, the other two subsections express clear requirements of driving in a reckless manner or with disregard for the safety of others.

¶13 The general maxim of statutory construction, expressio unius exclusio alterius est, provides some assistance in determining legislative intent. According to that maxim,

"[w]here a statute specifically designates the things or classes of things upon which it operates, an inference arises in law that all things or classes of things omitted from it were intentionally omitted by the legislature."

State v. Swanson , 116 Wash.App. 67, 75, 65 P.3d 343 (2003) (quoting Wash. Nat. Gas Co. v. Pub. Util. Dist. No. 1 , 77 Wash.2d 94, 98, 459 P.2d 633 (1969) ). Applying expressio unius to RCW 46.61.520, we may infer the legislature's intent to impose strict liability in subsection (1)(a) from its decision to express mens rea requirements in subsections (1)(b) and (1)(c) but not in subsection (1)(a). However, because subsection (1)(a) is silent on its face as to mens rea, we look to the legislative history and relevant case law for further guidance.

B. Legislative History and Case Law

¶14 The current statutory language set out above was enacted by amendment in 1991. LAWS OF 1991, ch. 348, § 1. Before the 1991 amendment, the statute read in relevant part:

When the death of any person ensues within three years as a proximate result of injury proximately caused by the driving of any vehicle by any person while under the influence of intoxicating liquor or any drug, as defined by RCW 46.61.502... the person so operating such vehicle is guilty of vehicular homicide.

Former RCW 46.61.520 (1983). This language is substantively identical to the current language, though organized differently. The available legislative reports are silent as to the purpose of the reorganization. See, e.g. , HB REP. ON S.H.B. 1886, 52nd Leg., Reg. Sess., at 1-2 (Wash. 1991) (discussing only the sentencing-related portions of the amending act).

¶15 In State v. MacMaster , our Supreme Court adopted a reading of the earlier statute that required the State to prove that impairment due to alcohol was a proximate cause of the victim's death. 113 Wash.2d 226, 231, 778 P.2d 1037 (1989). The court's reasoning was that even though the plain language of the statute did not expressly provide for such a requirement, it was necessary to avoid imposing strict liability. Id .

¶16 In two later opinions, other divisions of our court noted that to convict a defendant of vehicular homicide, the State must prove he acted with ordinary negligence in addition to proving he was under the influence of intoxicants. These opinions, State v. Miller , 60 Wash.App. 767, 772, 807 P.2d 893 (1991), and State v. McAllister , 60 Wash.App. 654, 658–59, 806 P.2d 772 (1991), relied on State v....