State v. Graham

103 P.3d 1238
Procedural entryThis page is a short order in State v. Graham. Read the opinion of the Court — 153 Wash. 2d 400
Washington Supreme Court·Decided February 1, 2005·No. 74554-4·Published

Opinion

103 P.3d 1238 (2005)

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.

*1239 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.

*1240 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

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