IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 86377-1-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION KAITLYN ROSE JOHNSTON,
Appellant.
CHUNG, J. — Kaitlyn Johnston appeals her conviction for vehicular
homicide committed by driving with disregard for the safety of others. Johnston
argues that the evidence was insufficient to establish that she drove with
“disregard for the safety of others” and that the jury instruction defining that term
violated her right to due process by permitting the jury to find her guilty without
proof that she consciously disregarded danger to others. She also claims that the
trial court improperly imposed several legal financial obligations (LFOs). We
affirm Johnston’s conviction, but remand to the trial court to strike the challenged
LFOs from her judgment and sentence.
FACTS
The State charged Kaitlyn Johnston with vehicular homicide committed by
driving with disregard for the safety of others for striking and killing 74-year-old
Kathleen Lord as she walked with her dog in a crosswalk. At trial, witnesses
testified to the following events. No. 86377-1-I/2
At around 7 p.m. on January 29, 2017, Johnston and her two-year-old
child were driving back to Kelso after spending the weekend celebrating her
birthday in Bellingham. The road was dry and the weather was clear. After taking
a wrong turn, Johnston used her phone’s GPS navigation to reach Old Fairhaven
Parkway, a two-lane road divided by a median with a speed limit of 35 miles per
hour (m.p.h.). After turning eastbound onto Old Fairhaven Parkway, Johnston put
the phone on her lap and drove towards I-5. The road in that area is straight with
unimpeded visibility.
Johnston saw the freeway in the distance and was thinking about whether
to stop for gas when she struck Lord. Lord later died from her injuries. It was dark
at the time of the collision, but the area surrounding the crosswalk was well-lit
and bright yellow pedestrian-activated lights were flashing to indicate the
crosswalk was in use. Johnston testified that her “first memory” of the accident
was that “[her] windshield shattered.” She noticed the crosswalk lights flashing in
her rear view mirror, then looked back and realized she had hit a person. She
pulled over and called her daughter’s father, then called 911 and stayed on the
phone until police arrived. Bellingham Police Department Officer Zachary Serad,
a trained drug recognition expert, determined that Johnston was not impaired by
drugs or alcohol, and her phone had no evidence that she had been texting or
calling anyone at the time of the collision.
Johnston testified that she was paying attention to the road but admitted
that she did not notice the crosswalk or flashing lights that were directly in front of
her and did not see Lord prior to the collision. She was unable to explain how this
2 No. 86377-1-I/3
could have happened. Johnston said her child was not distracting her and that
she was not actively using navigation or adjusting the stereo. And the State’s
collision reconstruction analysts determined that Johnston was driving close to
the posted speed limit.
Several eyewitnesses testified at trial, all of whom were drivers or
passengers in cars going westbound on Old Fairhaven Parkway at the time of
the collision. Katie and Kathleen Nestle were passengers in a car that passed
through the crosswalk seconds before the collision. Both saw Lord and her dog
approach the crosswalk, then Kathleen turned around, saw the lights flash
“maybe once or twice,” and witnessed the collision. Kathleen testified that Lord
was “a few feet into the crosswalk” and walking at “a pretty normal speed” when
she was struck.
Gillian Grambo, who was driving the next westbound car, stopped at the
crosswalk when she saw the flashing lights. Grambo did not see the collision, but
recalled hearing what she thought was a strike and seeing a small white dog
crossing with no pedestrian. She was not sure how long it was between when
she saw the flashing lights and when the impact occurred, but thought it was
definitely less than ten seconds and possibly less than five.
The driver of the car behind Grambo, Valentina Apostol-Maughan, testified
that she stopped because the car in front of her had stopped and because she
saw the flashing lights. Apostol-Maughan saw the collision and thought the lights
had flashed three times before it happened. Kennedy Erickson, a passenger in
the same car, testified that she saw the lights begin to flash before Lord started
3 No. 86377-1-I/4
walking across the street at a “normal walking speed.” Erickson saw Johnston’s
car coming and realized that it was not going to stop before it hit Lord.
Colt and Madison Spoltman were in the car behind Apostol-Maughan and
Erickson. They saw the crosswalk lights come on and saw a white dog run
across the intersection. They joked that it looked like the dog had pushed the
crosswalk button, then realized that someone had been hit.
Bellingham Police Department collision investigators Lewis Leake and Bill
Medlen testified at trial. After determining that Johnston’s car was traveling
between 30 and 35 m.p.h. before the collision, they applied an estimated walking
speed based on Lord’s age to calculate how long it would have taken Lord to
reach the point of impact after activating the crosswalk lights depending on
whether she walked via the curb cut or stepped directly in the street. Using these
two walk time estimates, they calculated the time it would have taken Johnston to
come to a stop at either 30 or 35 m.p.h. from the point at which an attentive
driver could have seen and reacted to the danger ahead. They concluded that
under any scenario, Johnston would have had enough time and space to avoid
the collision if she had noticed and reacted to the crosswalk and flashing lights.
Given the absence of evidence accounting for Johnston’s failure to observe what
was plainly visible or to attempt to stop when other drivers managed to do so, the
investigators were compelled to infer that Johnston’s “eyes were not on the
road.”
Johnston asked the court to modify the pattern jury instruction defining
“disregard for the safety of others” by adding a sentence clarifying that
4 No. 86377-1-I/5
“[e]vidence of some conscious disregard of the danger of others is necessary for
someone to act with disregard for the safety of others.”1 See 11A Washington
Practice: Washington Pattern Jury Instructions: Criminal 90.05, at 317 (5th ed.
2021) (WPIC). Over Johnston’s objection, the trial court used the pattern
instruction to define “disregard for safety of others”:
Disregard for the safety of others means an aggravated kind of negligence or carelessness, falling short of recklessness but constituting a more serious dereliction than ordinary negligence. Ordinary negligence is the failure to exercise ordinary care. Ordinary negligence is the doing of some act which a reasonably careful person would not do under the same or similar circumstances. . . . Ordinary negligence in operating a motor vehicle does not render a person guilty of vehicular homicide.
WPIC 90.05.
After deliberations began, the jury asked the court to provide “the legal
meaning of agrivated [sic] kind of negligence or carelessness." The court
responded that “the instructions you are provided are complete and no further
meanings, definitions or instructions will be given.”
The jury convicted Johnston as charged. The court sentenced Johnston to
18 months of total confinement and 18 months of community custody. The court
also imposed Department of Corrections (DOC) supervision fees, a $500 victim
penalty assessment (VPA), a $200 criminal filing fee, a $250 jury demand fee, a
$100 DNA collection fee, and a $100 crime laboratory analysis fee.
Johnston appeals.
1 Johnston alternatively proposed several similar formulations of this language, including (1) “Conscious disregard for the safety of others is necessary for someone to act with disregard for the safety of others”; (2) “Disregard for the safety of others means that one acts with a conscious disregard of danger to others”; and (3) “Disregard for the safety of others means that one acts with a conscious disregard for the safety of others.”
5 No. 86377-1-I/6
DISCUSSION
Johnston claims the evidence was insufficient to prove vehicular homicide
and that the jury instruction defining “disregard for the safety of others” violated
due process by permitting the jury to find her guilty without finding that she
consciously disregarded danger to others. She also seeks remand for the court
to strike the challenged LFOs from her judgment and sentence.
I. Sufficiency of the Evidence
Johnston argues that reversal and dismissal with prejudice is required
because the record lacks evidence that she acted with “disregard for the safety of
others” when she struck and killed Lord. We disagree.
“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. Zghair, 4 Wn.3d 610, 619-20,
567 P.3d 1 (2025) (emphasis omitted) (quoting Jackson v. Virginia, 443 U.S. 307,
318-19 (1979)). A claim of insufficiency “admits the truth of the State’s evidence
and all inferences that reasonably can be drawn therefrom.” State v. Salinas, 119
Wn.2d 192, 201, 829 P.2d 1068 (1992). All reasonable inferences must be
interpreted in favor of the State and most strongly against the defendant. Id. In
determining sufficiency of the evidence, “circumstantial evidence is not to be
considered any less reliable than direct evidence.” State v. Delmarter, 94 Wn.2d
634, 638, 618 P.2d 99 (1980). We defer to the jury’s credibility determinations
6 No. 86377-1-I/7
and its decisions regarding the persuasiveness of the evidence. State v. Bell, 26
Wn. App. 2d 821, 847, 529 P.3d 448 (2023).
Under RCW 46.61.520(1), a driver commits vehicular homicide if a person
dies “within three years as a proximate result of an injury proximately caused by”
a driver who operated a motor vehicle: (a) while under the influence of
intoxicating liquor or any drug as defined in RCW 46.61; or (b) in a reckless
manner; or (c) with disregard for the safety of others. Johnston was charged
under RCW 46.61.520(1)(c), and the only contested issue was whether she was
driving with disregard for the safety of others.
More than ordinary negligence is required to sustain a conviction for
vehicular homicide by disregard for the safety of others. State v. Eike, 72 Wn.2d
760, 765-66, 435 P.2d 680 (1967). In Eike, our Supreme Court upheld Eike’s
conviction for negligent homicide by disregard for the safety of others after he
drove at 45 to 50 m.p.h. on a dark, wet, but well-marked highway, rounded a
sweeping curve on the wrong side of the road at night, and collided with an
oncoming car. 2 Id. at 766. The court defined “disregard for the safety of others”
as “an aggravated kind of negligence or carelessness, falling short of
recklessness but constituting a more serious dereliction than the hundreds of
minor oversights and inadvertences encompassed within the term ‘negligence.’ ”
Id. at 765-66. The court further described the distinction as follows:
Every violation of a positive statute, from a defective taillight to an inaudible horn may constitute negligence under the motor vehicle statutes, yet be unintentional, committed without knowledge, and amount to no more than oversight or inadvertence but would
2 “Negligent homicide” was renamed “vehicular homicide” when the statute was recodified in 1983. LAWS OF 1983, ch. 164.
7 No. 86377-1-I/8
probably not sustain a conviction of negligent homicide. To drive with disregard for the safety of others, consequently, is a greater and more marked dereliction than ordinary negligence.
Id. at 766.
In State v. Lopez, 93 Wn. App. 619, 970 P.2d 765 (1999), Division Three
added an interpretive gloss to Eike’s definition of “disregard for the safety of
others.” There, the trial court dismissed vehicular homicide charges against an
unlicensed 14-year-old driver where the only evidence that she drove with
disregard for the safety of others was the fact that she did not have a driver’s
license. Id. at 621. There was no evidence that Lopez was an inexperienced
driver or that she was speeding, participating in horseplay, or under the influence
of drugs or alcohol. Id. at 623. The State argued that the mere fact that Lopez
violated the licensing statutes constituted negligence per se and established a
prima facie case of disregard for the safety of others. Id. at 622. On appeal,
Division Three held that the statutory violation was insufficient to establish that
she acted with disregard for the safety of others and that “[s]ome evidence of the
defendant’s conscious disregard of that danger is necessary to support vehicular
homicide.” Id. at 623 (emphasis added).
Division Three followed Lopez in State v. Vreen, 99 Wn. App. 662, 672,
994 P.2d 905 (2000), aff’d,143 Wn.2d 923, 26 P.3d 236 (2001), abrogated on
other grounds by Rivera v. Illinois, 556 U.S. 148 (2000). In Vreen, the State
charged the driver with vehicular homicide and vehicular assault of his
passengers. 99 Wn. App. at 663-64. In rejecting the State’s claim that evidence
of the driver’s close relationship with his passengers was irrelevant to a
8 No. 86377-1-I/9
determination that he acted with disregard for the safety of others, the court
relied on Lopez’s definition of conscious disregard and reasoned, “[t]here is a
mental element to ‘carelessness’ or ‘conscious disregard.’ . . . A person can
choose to be careless.” Id. at 672.
Relying on Lopez and Vreen, Johnston argues that reversal is required
because there is no evidence of any conscious choice she made that would
explain why she did not see the crosswalk, the lights, or Lord. She contends that
a person cannot “consciously disregard” a danger of which they are not aware
and points out that she cannot explain why the accident happened, unlike cases
where there was evidence that the defendant ignored a known danger. See, e.g.,
State v. Knowles, 46 Wn. App. 426, 430, 730 P.2d 738 (1986) (intoxicated
defendant ignored passengers’ pleas to stop speeding); State v. Brewer, No.
79442-6-I, slip. op. at 20 (Wash. Ct. App. March 8, 2021) (unpublished),
https://www.courts.wa.gov/opinions/pdf/794426.pdf (driving without prescription
glasses after staying out all night); State v. Visoso, No. 37413-1-III, slip op. at 12
(Wash. Ct. App. Sept. 28, 2021) (unpublished),
https://www.courts.wa.gov/opinions/pdf/374131_unp.pdf (intoxicated defendant
reaching for cell phone). 3
We decline Johnson’s invitation to read Lopez expansively to require the
State to prove a specific reason why she stopped paying attention to the road.
The Lopez court distinguished the term “conscious disregard” from negligence
3 We generally do not, unless necessary for a reasoned decision, cite or discuss unpublished opinions in our decisions. GR 14.1(c). But we may cite unpublished opinions of this court filed on or after March 1, 2013 as nonbinding authorities and accord such persuasive value as we deem appropriate. GR 14.1(a).
9 No. 86377-1-I/10
per se, noting that “Washington has abolished the doctrine of negligence per se
except in certain statutorily defined circumstances not relevant here.” 93 Wn.
App. at 622, n.1 (citing RCW 5.40.050). Unlike negligence per se, conscious
disregard requires some proof of affirmative action or conduct. Id. at 623. In the
absence of this evidence, the Lopez court refused to impose criminal liability for
vehicular homicide based solely on a statutory violation. Id.
Unlike in Lopez, here, the State did not allege that Johnston’s disregard
for the safety of others arose from a statutory violation. Instead, the State argued
that uncontroverted evidence established Johnston was completely unaware of
the well-lit crosswalk in which she fatally struck Lord after failing to brake, despite
flashing yellow lights that alerted several other motorists to stop. Indeed,
Johnston acknowledges the State presented evidence from which a rational jury
could infer from the circumstances that she stopped paying attention to the road.
A reasonable jury could conclude that Johnson’s prolonged failure to pay
attention to the road—despite bright flashing lights designed to alert drivers to the
presence of a pedestrian in the crosswalk and oncoming traffic coming to a stop
in response—constituted disregard for the safety of others. See Vreen, 99 Wn.
App. at 672 (noting that “a person can choose to be careless”); cf. Matter of
Detention of D.H., 1 Wn.3d 764, 777, 533 P.3d 97 (2023) (“[d]isregard” means “to
treat without fitting respect or attention,” “to treat as unworthy of regard or notice,”
and “to give no thought to : pay no attention”) (quoting WEBSTER'S THIRD NEW
INTERNATIONAL DICTIONARY 655 (2002)).
10 No. 86377-1-I/11
We also agree with the State that “conscious disregard” is not equivalent
to a deliberate choice to ignore a known danger. Recklessness, which the Eike
court explained is more serious than disregard for the safety of others, occurs
when a person "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."
RCW 9A.08.010(c); State v. Roggenkamp, 153 Wn.2d 614, 622, 106 P.3d 196
(2005) (quoting State v. Thompson, 90 Wn. App 41, 48, 950 P.2d 977 (1998))
(“ ‘reckless’ under the vehicular assault and vehicular homicide statutes means
driving in a rash or heedless manner, indifferent to the consequences.”). A
knowing choice to speed through a well-lit crosswalk with flashing pedestrian
lights would go beyond disregard for the safety of others and establish the more
culpable state of recklessness. Notably, at least one commentator has observed
that the “conscious disregard” requirement makes it “hard to see what difference
there is between ‘disregard’ and ‘recklessness.’” See Seth A. Fine, 13B
Washington Practice: Criminal Law and Sentencing § 33:4, at 296 (3d ed. 2019).
There was sufficient evidence from which a reasonable jury could conclude that
Johnston drove with disregard for the safety of others.
II. Jury Instruction
Johnston argues that the trial court erred by refusing to add language to
the pattern jury instruction, WPIC 90.05, to specify that disregard for the safety of
others “requires proof that the accused was conscious of danger to others and
chose to ignore it.” We disagree.
11 No. 86377-1-I/12
“Jury instructions are sufficient if they are supported by substantial
evidence, allow the parties to argue their theories of the case, and when read as
a whole properly inform the jury of the applicable law.” State v. Clausing, 147
Wn.2d 620, 626, 56 P.3d 550 (2002). The relevant legal standard must be
"manifestly apparent to the average juror." State v. Weaver, 198 Wn.2d 459, 467,
496 P.3d 1183 (2021). We review alleged errors of law in jury instructions de
novo. State v. Bland, 128 Wn. App. 511, 514, 116 P.3d 428 (2005).
Johnston argues that the pattern jury instruction violated due process
because it allowed the jury to convict her of vehicular homicide if it determined
that her conduct was more than “ordinary negligence,” regardless of whether she
was aware of any danger to others. Her argument is based on an assertion that
vehicular homicide by disregard for the safety of others requires a higher
culpable mental state than criminal negligence because it requires proof that a
person was aware of danger and ignored it. 4 As discussed above, Johnston
overextends Lopez’s holding.
The pattern instruction defining “disregard for the safety of others,” used
by the court in this case, is adapted from the one used in Eike. See Eike, 72
Wn.2d at 766 (approving a jury instruction that stated “to operate a motor vehicle
with disregard for the safety of others, means just what the words imply”); WPIC
90.05 cmt. at 318. Our Supreme Court has upheld the language of this pattern
jury instruction as constitutionally valid, and Johnston identifies no legal authority
4 “Criminal negligence” is the “failure to be aware of a substantial risk that a wrongful act may occur and [the] failure to be aware of such substantial risk constitutes a gross deviation from the standard of care that a reasonable person would exercise in the same situation.” RCW 9A.08.010(1)(d).
12 No. 86377-1-I/13
stating that it is not a correct statement of Washington law. Significantly, the
WPIC committee has not revised the instruction to incorporate the “conscious
disregard” language since Lopez and Vreen were decided more than two
decades ago.
Johnston also asserts that the jury must have been confused about the
definition of “disregard for the safety of others” because it asked the court, “What
is the legal meaning of aggravated kind of negligence or carelessness?”
However, “[a] single jury question ‘does not create an inference that the entire
jury was confused, or that any confusion was not clarified before a final verdict
was reached.’ ” State v. Rivers, 1 Wn.3d 834, 870, 533 P.3d 410 (2023) (quoting
State v. Ng, 110 Wn.2d 32, 43, 750 P.2d 632 (1988)). The trial court responded
that the instructions were complete and the jury did not ask any further questions.
We decline to infer that the jury was unable to apply the standard.
III. LFOs
Johnston argues, and the State concedes, that we should remand for the
trial court to strike the DOC supervision fees, VPA, criminal filing fee, jury
demand fee, DNA collection fee, and crime laboratory analysis fee. We accept
the State’s concession.
By the time Johnston was sentenced in February 2024, the legislature had
eliminated DOC supervision fees and the DNA collection fee. LAWS of 2022, ch.
29, § 8; RCW 9.94A.703(2); RCW 43.43.7541;see State v. Ellis, 27 Wn. App. 2d
1, 16-17, 530 P.3d 1048 (2023), review granted, 4 Wn.3d 1009, 564 P.3d 547
(2025). Additionally, courts lack authority to impose the VPA, criminal filing fee,
13 No. 86377-1-I/14
or jury demand fee on defendants found indigent at the time of sentencing, as
defined in RCW 10.01.160(3). See also RCW 7.68.035(4); RCW 36.18.020(2)(h);
RCW 10.46.190. Although the court did not rule on Johnston’s indigency at
sentencing, the State concedes that the court’s subsequent order authorizing
review at public expense based upon her attorney’s declaration is an implicit
finding of indigency. Accordingly, we remand for the trial court to strike these
fees.
RCW 43.43.690(1) mandates a $100 crime laboratory analysis fee "[w]hen
an adult offender has been adjudged guilty of violating any criminal statute of this
state and a crime laboratory analysis was performed by a state crime laboratory."
The State agrees that no such analysis was performed, so the trial court should
also strike this fee.
CONCLUSION
We remand for the limited purpose of striking the challenged LFOs from
Johnston’s judgment and sentence. We otherwise affirm.
WE CONCUR: