State v. Rich

• Decision Date: 07 January 2016
• Docket Number: No. 91623–3.,91623–3.
• Citation: 184 Wash.2d 897,365 P.3d 746
• Parties: STATE of Washington, Petitioner, v. Andrea Marie RICH, Respondent.
• Court: Washington Supreme Court

184 Wash.2d 897

365 P.3d 746

STATE of Washington, Petitioner,

v.Andrea Marie RICH, Respondent.

No. 91623–3.

Supreme Court of Washington, En Banc.

Argued Nov. 11, 2015.

Decided Jan. 7, 2016.

Prosecuting Atty. King County, King Co. Pros./App. Unit Supervisor, James Morrissey Whisman, King County Prosecutor's Office, Seattle, WA, for Petitioner.

Richard Wayne Lechich, Washington Appellate Project, Seattle, WA, for Respondent.

GORDON McCLOUD, J.

¶ 1 A jury convicted Andrea Rich of driving under the influence (DUI) and reckless endangerment. RCW 46.61.502 and RCW 46.64.506; RCW 9A.36.050. The evidence showed that Rich was speeding in traffic while highly intoxicated and with a young child in the front passenger seat. But the officer who arrested Rich followed her car because he believed that the car was stolen; Rich's manner of driving posed no observable danger.

¶ 2 The Court of Appeals reversed the reckless endangerment conviction, holding that the evidence was insufficient to establish that Rich's driving created an actual, substantial risk of death or serious physical injury to another person. State v. Rich, 186 Wash.App. 632, 347 P.3d 72, review granted, 183 Wash.2d 1018, 355 P.3d 1153 (2015). The Court of Appeals ruled, on an issue of first impression, that proof of a DUI does not necessarily establish proof of reckless endangerment. Id. at 642, 347 P.3d 72.

¶ 3 We agree with the Court of Appeals that proof of DUI alone does not necessarily establish proof of reckless endangerment. But the State proved more than just DUI in this case. It also proved speeding, past a police car, in traffic, by a driver whose breath alcohol level was more than twice the legal limit, who showed awareness that she had done something wrong once stopped, and who had a young child in the front passenger seat. Construing the evidence in the light most favorable to the State, a reasonable juror could conclude beyond a reasonable doubt that Rich created a substantial risk of death or injury to her passenger, that Rich knew of the substantial risk, and that Rich disregarded that risk in gross deviation from the way a reasonable person would act in her situation. We therefore reverse the Court of Appeals and affirm the reckless endangerment conviction.

FACTS

¶ 4 On May 27, 2012, at about 8:00 p.m., Deputy Paul Mulligan of the King County Sheriff's Office was on patrol in Burien. 2 Report of Proceedings (RP) at 89. He heard a Seattle Police Department radio broadcast stating that a stolen, dark blue Acura MDX was seen in the area. Deputy Mulligan testified that he "was in the inside lane [traveling southbound] when the stolen vehicle drove past me in the outside lane." Id. at 75. The speed limit was "about 35 through that area." Id. The deputy was "doing the flow of traffic" in a marked patrol car. Id. Based on his suspicion that the car was stolen, Deputy Mulligan "pulled in behind the vehicle, and was able to catch up to it at about 50 miles an hour." Id. Deputy Mulligan followed the Acura for about four blocks before it pulled into a parking lot of an apartment complex. Id. at 78. He turned on his emergency lights and parked behind the Acura. Id.

¶ 5 The driver of the Acura, Rich, opened her car door. Id. at 79. Deputy Mulligan got out of his car but waited for backup before approaching the Acura. Id. He heard Rich say in a "loud voice" to the passenger, Rich's nephew who was between seven and nine years old, "[T]ell them we just found the keys and we just got in the car." Id. Deputy Mulligan arrested Rich after backup arrived. Id. at 80.

¶ 6 The officers who interacted with Rich at the time of her arrest noticed a strong odor of alcohol and observed signs of intoxication, including bloodshot, watery eyes and slurred speech. Id. at 110–12. Because Rich was wearing a walking leg cast, police officers did not administer field sobriety tests. 1 RP at 42–43. Breath alcohol tests administered at a police station approximately an hour after Rich's arrest indicated blood alcohol concentration levels of 0.183 and 0.188. 2 RP at 177. Rich told police officers that she had consumed one shot of alcohol. Id. at 122.

¶ 7 The State charged Rich with DUI, possession of a stolen vehicle, and reckless endangerment. Clerk's Papers (CP) at 6–7.

¶ 8 At trial, Rich testified that she was just getting into the car when the police officer pulled up behind her. 2 RP at 191. She said that her nephew brought the keys to her just before the police arrived and that he was in the car with her. Id. at 191, 198. Rich testified that she had consumed one or two shots of alcohol and that she was "tipsy," but she also claimed that the alcohol did not affect her. Id. at 205, 201, 194.

¶ 9 The state forensic toxicologist testified that a person would have to consume about 9 to 10 shots of standard proof alcohol to achieve a blood alcohol reading of 0.188. 2 RP at 134. He also testified that a person burns off alcohol at an average rate of 0.015 per hour. Id.

¶ 10 The jury convicted Rich of DUI and reckless endangerment—both gross misdemeanors—but acquitted her of possessing a stolen vehicle. CP at 47–49. The jury also returned a special verdict stating that Rich's alcohol concentration level was "0.15 or higher within two hours after driving." CP at 50. The court imposed a sentence of 120 days of confinement on the DUI conviction and 20 days on the reckless endangerment conviction. CP at 54; Tr. of Trial (July 26, 2013) at 4.

¶ 11 Rich appealed. The Court of Appeals reversed Rich's reckless endangerment conviction and affirmed the DUI conviction. Rich, 186 Wash.App. 632, 347 P.3d 72. The Court of Appeals held that no evidence showed Rich's driving specifically posed an actual risk of death or serious injury that was considerable or substantial. Id. at 647, 347 P.3d 72. The court also held that evidence Rich was under the influence of alcohol, alone, did not support the conviction. Id.¶ 12 This court granted the State's petition for review. Rich, 183 Wash.2d 1018, 355 P.3d 1153. The question presented is whether the evidence was sufficient to support Rich's reckless endangerment conviction.

ANALYSIS

I. Standard of Review

¶ 13 This case requires us to decide if evidence that Rich was speeding in traffic with a young passenger in the front seat of the car while she was highly intoxicated was sufficient to support her reckless endangerment conviction. The sufficiency of the evidence is a question of constitutional law that we review de novo. State v. Berg, 181 Wash.2d 857, 867, 337 P.3d 310 (2014).

¶ 14 The State bears the burden of proving all the elements of an offense beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) ; U.S. CONST. amend. XIV ; WASH. CONST. art. I, § 3. To determine if sufficient evidence supports a conviction, we consider " ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ " State v. Green, 94 Wash.2d 216, 221, 616 P.2d 628 (1980) (some emphasis omitted) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ). "[I]nferences based on circumstantial evidence must be reasonable and cannot be based on speculation." State v. Vasquez, 178 Wash.2d 1, 16, 309 P.3d 318 (2013). A " ‘modicum’ " of evidence does not meet this standard. Jackson, 443 U.S. at 320, 99 S.Ct. 2781.

II. A Person Commits Reckless Endangerment by Creating a Substantial Risk of Death or Injury to Another Person

¶ 15 The State charged Rich with reckless endangerment, not reckless driving. RCW 9A.36.050(1), which defines "reckless endangerment," states, "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."¹

¶ 16 Thus, to obtain a conviction, the State must first prove "reckless [ ] ... conduct." RCW 9A.36.050(1). The mens rea of recklessness has both a subjective and an objective component. RCW 9A.08.010(1)(c) states, "A person is reckless or acts recklessly when he or she knows of and disregards a substantial risk that a wrongful act may occur and his or her disregard of such substantial risk is a gross deviation from conduct that a reasonable person would exercise in the same situation." (Emphasis added.) Whether Rich's conduct was reckless therefore " ‘depends on both what [she] knew and how a reasonable person would have acted knowing these facts.’ " State v. Graham, 153 Wash.2d 400, 408, 103 P.3d 1238 (2005) (quoting State v. R.H.S., 94 Wash.App. 844, 847, 974 P.2d 1253 (1999) ).

¶ 17 The State must also prove "a substantial risk of death or serious physical injury to another person." RCW 9A.36.050(1). A "risk," of course, is not a certainty. See Graham, 153 Wash.2d at 407, 103 P.3d 1238 (reckless endangerment is an inchoate crime; distinguishing between reckless endangerment, on the one hand, which subjects defendant to conviction based on risk her conduct poses, and assault or homicide, on the other hand, which require proof that harmful consequences actually occurred). And although no statute defines "serious physical injury," RCW 9A.04.110(4)(a) defines "physical injury" as "physical pain or injury, illness, or an impairment of physical condition." No statute defines "substantial" either, but in State v. McKague, we defined "substantial" (as used in the statute defining "second degree assault") as " ‘considerable in amount, value, or worth’ " and more than just "having some existence." 172 Wash.2d 802, 806, 262 P.3d 1225 (2011) (quoting WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 2280 (2002)); RCW 9A.36.021(1)(a).

¶ 18 Taken together, to convict Rich of reckless endangerment, the State had to prove beyond a reasonable doubt that Rich knew of and disregarded a considerable risk—not a certainty—of death or serious physical pain...