State v. Graham

• Decision Date: 13 January 2005
• Docket Number: No. 74554-4.,74554-4.
• Citation: 103 P.3d 1238,153 Wash.2d 400,153 Wn.2d 400
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Audrey E. GRAHAM, Petitioner.

103 P.3d 1238

153 Wn.2d 400

153 Wash.2d 400

STATE of Washington, Respondent, v. Audrey E. GRAHAM, Petitioner.

No. 74554-4.

Supreme Court of Washington, En Banc.

Argued June 29, 2004.

Decided January 13, 2005.

As Amended February 1, 2005

Reconsideration Denied March 8, 2005.

Elaine L. Winters, Wash. Appellate Project, Seattle, for Petitioner.

Ian Michael Goodhew, Brian Martin McDonald, King Co. Pros. Office, Seattle, for Respondent.

OWENS, J.

Audrey Graham was found guilty in juvenile court of vehicular homicide and three counts of reckless endangerment, all arising from a one-car accident. Graham argues that, rather than charging her with one count of reckless endangerment for each of her surviving three passengers, the State should have been limited to charging her with a single count of reckless endangerment for her conduct in causing one automobile accident. Graham also questions whether the juvenile court's findings of fact support its conclusion of law that she acted "recklessly," as that term is defined by statute.

We hold that the unit of prosecution for the offense of reckless endangerment is each person endangered; consequently, the State permissibly charged Graham with three violations of RCW 9A.36.050(1). We also conclude that the juvenile court's findings support its determination that Graham acted "recklessly," as that term is defined in RCW 9A.08.010(1)(c). We therefore affirm the decision of the Court of Appeals.

FACTS

On March 16, 2001, 16-year-old Audrey Graham left Vashon High School, driving her parents' 2000 Hyundai Tiburon. Her classmate Katie Bos rode in the front passenger seat. Despite her awareness that the backseat was equipped with only two seat belts, Graham invited three other friends to join her and Bos. Ashley Fix sat in the backseat between Sydney Shelton and Jake Wittmier, neither of whom used the available seat belts.

Before leaving the school grounds, Graham drove to a nearby gravel parking lot in order to spin the car around in a circle at high speed. Graham drove back onto the pavement and accelerated out of the parking lot, causing the car to fishtail. Soon after they left the school, Shelton saw that the speedometer was at 60 m.p.h. After Graham turned onto Monument Road, which has a posted speed limit of 40 m.p.h. three-tenths of a mile from school, Wittmier observed that the speedometer read 80 m.p.h. Rocking the steering wheel back and forth several times to make the car swerve, Graham said, "`Look, I can drive like Thomas [Porro],' which was a reference to her boyfriend and his driving." Clerk's Papers (CP) at 245, Finding of Fact (FF) 7. Graham lost control of the car when she looked down to adjust the stereo. The car slid across the roadway, hit a ditch, rolled several times, and came to a stop 407 feet from the first skid marks on the roadway. All three of the backseat passengers were ejected. Shelton and Wittmier were injured, and Fix died instantly. At the scene, Graham approached King County Deputy Sheriff Chris Kahrs and said, "`It's my fault ... I was going too fast." CP at 245, FF 11.

On July 12, 2001, the State charged Graham in juvenile court with one count of vehicular homicide for the death of Ashley Fix. The State amended the information on December 4, 2001, to add three counts of reckless endangerment for Graham's three other passengers. Testimony taken at the fact-finding hearing in December 2001 established that Graham had taken a driver's education course before the crash and had learned that exceeding the speed limit and driving inattentively or recklessly was dangerous. Graham also admitted that Porro's excessively fast driving had frightened her in the past.

The court found Graham guilty on all four counts. Graham appealed, and the Court of Appeals affirmed in a partially published decision. State v. A.G., 117 Wash.App. 462, 72 P.3d 226 (2003). We granted Graham's petition for review.

ISSUES

(1) For the offense of reckless endangerment, set forth in RCW 9A.36.050(1), is the unit of prosecution each person endangered or each endangering act?

(2) Did the juvenile court's findings of fact support its conclusion of law that Graham had acted "recklessly," as that term is defined in RCW 9A.08.010(1)(c)?

ANALYSIS

Standard of Review. Graham raises a question of statutory interpretation and challenges one of the juvenile court's conclusions of law. Appellate review of both issues is de novo. State v. Thomas, 150 Wash.2d 666, 670, 80 P.3d 168 (2003) (citing State v. Ammons, 136 Wash.2d 453, 456, 963 P.2d 812 (1998); State v. J.P., 149 Wash.2d 444, 450, 69 P.3d 318 (2003)).

Unit of Prosecution for Reckless Endangerment. Graham argues that her three convictions for reckless endangerment violated double jeopardy. The double jeopardy clauses of the Washington State Constitution, article I, section 9, and the fifth amendment to the federal constitution "protect against multiple punishments for the same offense, as well as against a subsequent prosecution for the same offense after acquittal or conviction." In re Pers. Restraint of Orange, 152 Wash.2d 795, 815, 100 P.3d 291 (2004). Where a defendant contends that his sole act has been punished twice under separate criminal statutes, the question is "whether, in light of legislative intent, the charged crimes constitute the same offense." Id. If the relevant statutes do not disclose legislative intent, the reviewing court will apply the "same evidence" or Blockburger test,¹ by which two charged crimes will not be deemed the same offense if each statute requires proof of a fact not required by the other statute. However, as this court recognized in State v. Adel, 136 Wash.2d 629, 633, 965 P.2d 1072 (1998), "[w]hen a defendant is convicted for violating one statute multiple times, the same evidence test will never be satisfied," since the multiple convictions "will always be the same in law, but ... never ... the same in fact." Consequently, the double jeopardy analysis for multiple convictions for violating the same statute requires a determination of "what act or course of conduct ... the Legislature defined as the punishable act": "When the Legislature defines the scope of a criminal act (the unit of prosecution), double jeopardy protects a defendant from being convicted twice under the same statute for committing just one unit of the crime." Id. at 634, 965 P.2d 1072. Where the legislature has not clearly indicated the unit of prosecution in a criminal statute, the "lack of statutory clarity favors applying the rule of lenity." Id. at 635, 965 P.2d 1072.

RCW 9A.36.050(1) provides that "[a] person is guilty of reckless endangerment when he or she recklessly engages in conduct not amounting to drive-by shooting but that creates a substantial risk of death or serious physical injury to another person." Graham contends that the unit of prosecution is the alleged act of reckless conduct (here, her reckless driving), whereas the State maintains that the legislature intended to criminalize a defendant's reckless endangerment of a particular individual.

Graham relies on State v. Westling, 145 Wash.2d 607, 40 P.3d 669 (2002), wherein we concluded that the unit of prosecution for second degree arson is the defendant's act of setting the fire, not each item of property damaged by the fire. As the Court of Appeals explained in the present case, see117 Wash.App. at 469,72 P.3d 226, the statute at issue in Westling does not predicate guilt on damage to a particular piece of property but criminalizes the setting of a fire that "damages a building, or any structure or erection appurtenant to or joining any building, or any wharf, dock, machine, engine, automobile, or other motor vehicle, watercraft, aircraft, bridge, or trestle, or hay, grain, crop, or timber, whether cut or standing or any range land, or pasture land, or any fence, or any lumber, shingle, or other timber products, or any property." RCW 9A.48.030(1) (emphasis added). The analysis in Westling was straightforward:

[T]he statute refers, in relevant part, to the causing of "a fire" that damages "any automobile." "Any" means "every" and "all." State v. Smith, 117 Wash.2d 263, 271, 814 P.2d 652 (1991). Thus, under the plain language of the statute, one conviction is appropriate where one fire damages multiple automobiles, i.e., by use of the word "any" the statute speaks in terms of "every" and "all" automobiles damaged by the one fire.

145 Wash.2d at 611-12, 40 P.3d 669. The Court of Appeals in the present case observed that, in contrast to the arson statute, the reckless endangerment statute proscribes conduct that places at risk not simply any person but "another person." RCW 9A.36.050(1) (emphasis added). In State v. DeSantiago, 149 Wash.2d 402, 68 P.3d 1065 (2003), we applied the Westling analysis to the use of "a," rather than "any," in weapon enhancement statutes to support our holding that the plain language of the statutes required a sentence enhancement for each weapon carried during offense. Id. at 419, 68 P.3d 1065. The Court of Appeals thus concluded that, by the plain language of RCW 9A.36.050(1), "the legislature intended one unit of prosecution per victim." 117 Wash.App. at 470, 72 P.3d 226; see Commonwealth v. Frisbie, 506 Pa. 461, 466, 485 A.2d 1098 (1984)

(concluding that reckless endangerment statute, which prohibited conduct jeopardizing "`another person,'" "was written with regard to an individual person being placed in danger of death or serious bodily injury, and that a separate offense is committed for each individual person placed in such danger").²

While the plain language analysis of Westling supports the conclusion of the Court of Appeals in the present case, significant additional support may be derived from a broader consideration of the nature of reckless endangerment. Likewise faced with determining the unit of prosecution in a statute prohibiting conduct recklessly endangering "another person," the Maryland...