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IN CLERKS OFFICE
IUPREM[' COU;{T, STATE OF WASHINGTON
DATE JAN 0 7 2016
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IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, NO. 91623-3
Petitioner,
v. ENBANC
ANDREA MARIE RICH,
Respondent.
Filed JAN 0 1 2016
GORDON McCLOUD, J.-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.
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,
1
State v. Rich (Andrea Marie), No. '91623-3
186 Wn. App. 632, 347 P.3d 72, review granted, 183 Wn.2d 1018, 355 P.3d 1153
(20 15). The Court of Appeals ruled, on an issue of first impression, that proof of a
DUI does not necessarily establish proof of reckless endangerment. !d. at 642.
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
On May 27, 2012, at about 8:00 p.m., Deputy Paul Mulligan of the King
County Sheriffs 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
2
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State v. Rich (Andrea Marie), No. 91623-3
outside lane." ld. at 75. The speed limit was "about 35 through that area." ld. The
deputy was "doing the flow of traffic" in a marked patrol car. I d. 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." ld. Deputy Mulligan followed
the Acura for about four blocks before it pulled into a parking lot of an apartment
complex. I d. at 78. He turned on his emergency lights and parked behind the Acura.
I d.
The driver of the Acura, Rich, opened her car door. ld. at 79. Deputy
Mulligan got out of his car but waited for backup before approaching the Acura. I d.
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." ld. Deputy Mulligan arrested Rich after backup arrived. Id. at 80.
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. I d. 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 of0.183 and 0.188. 2 RP at 177. Rich
told police officers that she had consumed one shot of alcohol. I d. at 122.
3
State v. Rich (Andrea Marie), No. '91623.-3
The State charged Rich with DUI, possession of a stolen vehicle, and reckless
endangerment. Clerk's Papers (CP) at 6-7.
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. ld. 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. Jd. at 205,
201, 194.
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. I d.
The jury convicted Rich of DUI and reckless endangerment-both gross
misdemeanors-but acquitted her of possessing a stolen vehicle. CP at 4 7-49. 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.
Rich appealed. The Court of Appeals reversed Rich's reckless endangerment
conviction and affirmed the DUI conviction. Rich, 186 Wn. App. 632. The Court
4
' '
State v. Rich (Andrea Marie), No. 91623-3
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. I d. at 64 7. The
court also held that evidence Rich was under the influence of alcohol, alone, did not
support the conviction. Id.
This court granted the State's petition for review. Rich, 183 Wn.2d 1018. The
question presented is whether the evidence was sufficient to support Rich's reckless
endangerment conviction.
ANALYSIS
I. Standard of Review
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 Wn.2d 857, 867, 337 P.3d 310 (2014).
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 ( 197 0); 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
5
' '
State v. Rich (Andrea Marie), No. 91623-3
v. Green, 94 Wn.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 Wn.2d 1, 16,309 P.3d 318
(2013). A "'modicum"' of evidence does not meet this standard. Jackson, 443 U.S.
at 320.
II. A Person Commits Reckless Endangerment by Creating a Substantial
Risk of Death or Injury toAnother Person
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
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
1
Reckless endangerment is not exclusively a driving offense. It is located in
the general criminal code, chapter 9A RCW, rather than in the motor vehicle code,
chapter 46 RCW. A separate statute, RCW 46.61.500, prohibits reckless driving,
which is "driv[ing] any vehicle in willful or wanton disregard for the safety of
persons or property." RCW 46.61.500(1 ).
6
' '
State v. Rich (Andrea Marie), No. 91623-3
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 Wn.2d 400, 408, 103 P.3d 1238 (2005)
(quoting State v. R.H.S., 94 Wn. App. 844, 847, 974 P.2d 1253 (1999)).
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 Wn.2d at 407 (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.04.11 0( 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 Wn.2d 802, 806, 262 P.3d 1225 (2011) (quoting
WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 2280 (2002)); RCW
9A.36.021(1)(a).
7
State v. Rich (Andrea Marie), No. 91623~3
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 or injury that her conduct
posed to her young nephew, and that her behavior constituted a gross deviation from
how a reasonable person would have acted based on the known facts.
III. Evidence of Intoxication Alone or Speed Alone, without More, Does
Not Constitute Reckless Endangerment
Rich argues that proof of DUI alone is insufficient to prove reckless
endangerment. Resp't's Suppl. Br. at 8. She also asserts that proof of speeding
alone is insufficient to prove reckless endangerment. !d. at 13.
This is, in part, a question of statutory interpretation; we therefore begin by
looking at the language of the relevant statutes. Kitsap County Deputy SheriffS'
Guild v. Kitsap County, 183 Wn.2d 358, 378, 353 P.3d 188 (2015). As discussed
supra, the reckless endangerment statute requires proof that the defendant knows of
and disregards a substantial risk and that the defendant's conduct constitutes a gross
deviation from the way that a reasonable person would act in the same situation.
RCW 9A.36.050(1); RCW 9A.08.010(1)(c). DUI, however, contains no such mens
rea element. RCW 46.61.502(1); see State v. Dailey, 174 Wn. App. 810,815-16,300
P.3d 834 (2013). For this reason alone, proof of DUI, without more, does not
8
State v. Rich (Andrea Marie), No. 91623-3
establish proof of reckless endangerment. Reckless endangerment requires proof of
something more.
Similarly, speeding requires only proof of a violation of the traffic code. See
Clem,ent v. Dep't c