153 Wash. 2d 400 | Wash. | 2005
Lead Opinion
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.
f 2 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(l)(c). We therefore affirm the decision of the Court of Appeals.
FACTS
f 3 On March 16, 2001, 16-year-old Audrey Graham left Vashon High School, driving her parents’ 2000 Hyundai Tiburón. 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 hex: and Bos. Ashley Fix sat in the backseat between Sydney Shelton and Jake Wittmier, neither of whom used the available seat belts.
¶4 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
¶5 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.
¶6 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 Wn. App. 462, 72 P.3d 226 (2003). We granted Graham’s petition for review.
ISSUES
¶7 (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?
ANALYSIS
¶9 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 Wn.2d 666, 670, 80 P.3d 168 (2003) (citing State v. Ammons, 136 Wn.2d 453, 456, 963 P.2d 812 (1998); State v. J.P., 149 Wn.2d 444, 450, 69 P.3d 318 (2003)).
¶10 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 Wn.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,
¶11 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.
¶12 Graham relies on State v. Westling, 145 Wn.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, see 117 Wn. App. at 469, 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”*406 that damages “any automobile.” “Any” means “every” and “all.” State v. Smith, 117 Wn.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 “an/’ the statute speaks in terms of “ever/’ and “all” automobiles damaged by the one fire.
145 Wn.2d at 611-12. 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 Wn.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 an offense. Id. at 419. 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 Wn. App. at 470; 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”).
¶13 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 prosecu
¶14 In light of the plain language of RCW 9A.36.050(1), as well as the nature of reckless endanger
¶15 Graham’s Challenge to Juvenile Court’s Finding of Recklessness. As set forth above, “[a] person is guilty of reckless endangerment when he or she recklessly engages in conduct. . . that creates a substantial risk of death or serious physical injury to another person.” RCW 9A-.36.050(1) (emphasis added). RCW 9A.08.010(l)(c) provides that “[a] person is reckless or acts recklessly when he knows of and disregards a substantial risk that a wrongful act may occur and his disregard of such substantial risk is a gross deviation from conduct that a reasonable man would exercise in the same situation.” (Emphasis added.) Because the conclusion that whether “an act is reckless depends on both what the defendant knew and how a reasonable person would have acted knowing these facts,” the statutory definition has been described as “including] a subjective and objective component.” State v. R.H.S., 94 Wn. App. 844, 847, 974 P.2d 1253 (1999).
¶16 With regard to the three charged counts of reckless endangerment, the juvenile court concluded that the State had proved beyond a reasonable doubt that Graham “acted recklessly.” CP at 246. Graham contends, however, that the findings failed to establish the subjective component of the statutory definition. The relevant factual findings are as follows:
12. Prior to the accident, the respondent had passed driver’s education, in which the respondent had been instructed as to the hazards of driving at excessive speeds, in an inattentive manner, and recklessly. She knew that not following these instructions created a dangerous situation. She had driven on numerous occasions, and was considered a safe driver. The*409 respondent testified that prior to March 16, 2001, she had on occasion been a passenger in her boyfriend’s car while he was speeding down straight roads, and that his excessive speed on those instances made her fearful. Given the instruction she received, her previous history of safe driving, and her prior experiences, the respondent knew the risks inherent in driving fast or in an unsafe manner.
13. Although the respondent knew that driving at high speeds, not paying attention to the road, and playing games with the wheel were unsafe and could cause an accident, the Court cannot find that she had actual knowledge of the risks inherent in the particular dangerous situation she created on March 16th.
14. A reasonable person in a similar situation would have recognized the risks inherent in the driving behavior in which the respondent engaged. As such, even if she did not have actual knowledge of the specific risks, she had constructive knowledge of those risks.
CP at 245-46, FF 12-14 (emphasis added). The juvenile court thus explicitly found that Graham “knew that” driving at high speeds, inattentively, or recklessly “created a dangerous situation”; that she knew the risks inherent in driving fast or in an unsafe manner”; and that she “knew that driving at high speeds, not paying attention to the road, and playing games with the wheel were unsafe and could cause an accident.” CP at 245-46, FF 12-13 (emphasis added). The findings that Graham “knew” that her conduct “created a dangerous situation” and “could cause an accident” satisfy the knowledge component of the statutory definition of recklessness: “A person . . . acts recklessly when he knows of and disregards a substantial risk that a wrongful act may occur.” RCW 9A.08.010(l)(c).
f 17 Graham incorrectly claims that “[t]he juvenile court found that [she] did not understand the risks involved in her driving.” Suppl. Br. of Pet’r at 14; see also Pet. for Review at 12 (stating that “the juvenile court specifically found that [Graham] was not aware of the risks involved in her conduct”); Appellant’s Opening Br. at 38 (referring to “[t]he juvenile court’s factual finding that [Graham] did not
CONCLUSION
¶18 By prohibiting conduct that recklessly endangers “another person,” the legislature indicated that the unit of prosecution for reckless endangerment is not the endangering conduct but the particular person placed at risk. Establishing that Graham “knew” that her conduct “created a dangerous situation” and “could cause an accident,” CP at 245-46, FF 12-13, the juvenile court’s factual findings support its conclusion of law that Graham acted “reck
Alexander, C.J.; C. Johnson, Bridge, and Fairhurst, JJ.; and Ireland, J. Pro Tern., concur.
See Orange, 152 Wn.2d at 816 n.4 (citing State v. Calle, 125 Wn.2d 769, 777, 888 P.2d 155 (1995); State v. Roybal, 82 Wn.2d 577, 580-81, 512 P.2d 718 (1973); Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932)).
The dissent asserts that “Westling is of little guidance because the reckless endangerment statute does not use either the word or ‘a’ to describe the person or persons endangered.” Dissent at 413. To the contrary, Westling is on point precisely because the reckless endangerment statute does not refer to “any other person” but refers instead to “another person.” By common understanding and as a historical fact, the pronoun “another” is a compound of “an + other,” and the indefinite article “an” means “a,” the letter n being an addition before a following vowel sound. Webster’s Third New International Dictionary of the English Language 89, 75 (2002).
Dissenting Opinion
¶19 (dissenting) — The majority affirms Audrey Graham’s convictions on three counts of reckless endangerment based on an automobile accident involving three passengers. The majority holds that the unit of prosecution for reckless endangerment is each person endangered. However, none of the reasons advanced by the majorityjustifi.es its conclusion. The result of the majority’s analysis is that the number of convictions for reckless endangerment may rest entirely on chance—for example, whether there is one passenger in a vehicle or five, despite the fact that the defendant’s conduct and mental state are the same.
¶20 I would hold that the unit of prosecution is a course of conduct that recklessly endangers a person or persons other than the defendant. Here, there can be no question but that the defendant engaged in only one such course of conduct. Therefore, only one conviction for reckless endangerment is proper.
ANALYSIS
f 21 This court must determine what constitutes the unit of prosecution for the crime of reckless endangerment in the second degree in order to determine whether the double jeopardy bar has been violated by the defendant’s multiple convictions. None of the reasons given by the majority supports its holding that the unit of prosecution for reckless endangerment is each person endangered.
¶22 The majority first reasons that the decision in State v. Westling, 145 Wn.2d 607, 40 P.3d 669 (2002) supports its holding. Majority at 406. In Westling the court held that the unit of prosecution for second degree arson involving dam
¶23 Westling does not support the majority’s holding. First, the majority reads Westling much too broadly. Westling itself cautions that the word “any” when used in a statute has to be read in context; the court refused to recognize an absolute meaning of the word for all statutes. Westling, 145 Wn.2d at 612 n.2. Moreover, Westling does not turn solely on the word “any.” Instead, the court was very clear in explaining that the use of the terms “a fire” and “any” vehicle indicated legislative intent that the unit of prosecution is “the causing of ‘a fire’ that damages ‘any automobile.’ ” Westling, 145 Wn.2d at 611. It was just as
¶24 Second, and more importantly, Westling is of little guidance because the reckless endangerment statute does not use either the word “any” or “a” to describe the person or persons endangered. Instead, RCW 9A.36.050(1) states the crime is committed when “[a] person . . . recklessly engages in conduct. . . that creates a substantial risk ... to another person.” (Emphasis added.) It is appropriate to consider dictionary definitions of the word “another.” See, e.g., In re Pers. Restraint of Tortorelli, 149 Wn.2d 82, 91, 66 P.3d 606 (2003); Concerned Ratepayers Ass’n v. Pub. Util. Dist. No. 1, 138 Wn.2d 950, 951, 983 P.2d 635 (1999). Relevant definitions of “another” include “different or distinct from the one first named or considered” (“another” as an adjective), and “one other than oneself’ (“another” as a pronoun). Webster’s Third New International Dictionary 89 (1993). In context, therefore, the reference to “another person” in RCW 9A.36.050(1) means the risk is created to one other than the actor engaging in the conduct (who is the first person identified in the statutory definition of the crime). That is, the offense is not committed when the only person endangered is the defendant.
¶25 The majority next “ ‘stand[s] on the mountaintop and look[s] down on the larger field of the criminal law in perspective,’ ” relying on a Maryland intermediate appellate court case, Albrecht v. State, 105 Md. App. 45, 58, 658 A.2d 1122 (1995). Majority at 407. The majority agrees with the Maryland court that reckless endangerment is an inchoate crime and that when examined in relationship to the range of consummated crimes that are one or two steps removed, it is apparent that reckless endangerment is a crime against persons and should be treated the same as the consummated crimes. Majority at 407. Thus, just as two homicides can be charged where vehicular homicide is committed and two persons are killed, or two vehicular assaults charged where two persons are injured, so should multiple counts of reckless endangerment be sustained
¶26 The Maryland court’s opinion does not support the majority’s holding. First, the analysis is fundamentally flawed because it assumes that the “inchoate” crime necessarily equates to a consummated “choate” crime a step or two removed. But the “inchoate” crime never develops into a completed “choate” crime and thus the assumption rests on speculation. Second, this speculation becomes more apparent upon recognition that reckless endangerment is quite distinct from crimes like vehicular homicide and vehicular assault because in the latter cases, the victims of the crimes suffer actual injury. In contrast, RCW 9A-.36.050(1) does not contain any requirement of harm to the person or persons endangered. Indeed, the offense of reckless endangerment can be committed without the person endangered even being aware of the risk of death or serious physical injury.
¶27 Finally, an appellate court’s responsibility when determining the unit of prosecution under a statute is to ascertain what the legislature intended, and this is a matter of statutory construction. A court should not determine the unit of prosecution based upon its examination of the “larger field of criminal law” and criminal theory and should not use its own view of how a particular crime fits into the entire scheme of criminal law as the basis for defining the unit of prosecution.
¶28 The unit of prosecution for a crime may be an act or a course of conduct. United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 225-26, 73 S. Ct. 227, 97 L. Ed. 260 (1952); State v. Root, 141 Wn.2d 701, 710, 9 P.3d 214 (2000); State v. Adel, 136 Wn.2d 629, 634, 965 P.2d 1072 (1998). Here, the court should hold that the unit of prosecution for reckless endangerment is a course of conduct recklessly endangering another. It makes no difference whether one other person is endangered or more than one. First, as explained, RCW 9A.36.050(1) supports this result because it refers to a person creating a substantial risk of death or
¶29 Holding that the unit of prosecution is a course of endangering conduct would not mean that a defendant who engages in conduct amounting to reckless endangerment could never be convicted of multiple counts. For instance, the Tennessee Court of Criminal Appeals explained in State v. Ramsey, 903 S.W.2d 709, 713 (Tenn. Crim. App. 1995) that it was unnecessary to adopt “a blanket rule that provides that a defendant’s continuous operation of a vehicle may only result in one act of reckless endangerment” because factual circumstances differ. For example, the distances involved and the time between acts comprising the reckless conduct could indicate either a single course of conduct or more than one course of conduct. Id. The trier of fact would have to make the determination whether the defendant’s conduct constituted one or more courses of conduct, i.e., one or more crimes.
¶30 It is important that, when determining what constitutes the unit of prosecution for an offense, a court avoid coloring the analysis with policy considerations that are rightfully the province of the legislature and avoid substituting its own judgment for that of the legislature. A court must also avoid construing the relevant statute in a way
¶31 I dissent.
Sanders and Chambers, JJ., concur with Madsen, J.
RCW 9A.48.030G) provides:
Aperson is guilty of arson in the second degree if he knowingly and maliciously causes a fire or explosion which 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.