Opinion
No. 37245-2-II.
February 12, 2009.
Appeal from a judgment of the Superior Court for Grays Harbor County, No. 06-1-00036-9, David E. Foscue, J., entered December 26, 2007.
Affirmed by unpublished opinion per Hunt, J., concurred in by Penoyar, A.C.J., and Armstrong, J.
Russell E. Hensler appeals his Grays Harbor County vehicular homicide jury conviction. He contends that the evidence was insufficient to support the jury's verdict because it did not show that (1) he was affected by the methamphetamine he had ingested, or (2) he had driven with disregard for the safety of others. We affirm.
A commissioner of this court reviewed the matter and referred it to a panel of judges under RAP 18.14.
FACTS
Hensler attempted to cross Highway 12 at Keys Road in Grays Harbor County. He crossed the westbound lanes and stopped at the median; a vehicle in the left turn lane blocked his view. Nevertheless, he drove into the eastbound lanes, striking Ray Nelson's car broadside and causing it to flip over. Nelson died of injuries to his spinal cord.
Two Washington State Patrol troopers talked with Hensler at the scene of the accident. Trooper Charles Stewart observed that Hensler had difficulty moving and speaking; and that he refused to make eye contact. Stewart did not detect signs of drug or alcohol use but believed that Hensler was mentally or physically handicapped.
Trooper Matt Rabe also talked to Hensler and concluded that he was mentally or physically impaired. Hensler told Trooper Rabe that he (Hensler) had taken prescribed muscle relaxers; Hensler agreed to a blood test. The blood test showed the presence of methamphetamine at a level of 0.30 milligrams per liter of blood, amphetamine at 0.06 milligrams per liter, and the antidepressant tricyclin.
Two to three months after the accident, Detective Dan Presba interviewed Hensler, asked about his drug use, and confronted him with the blood test results. At first, Hensler denied using methamphetamine, insisting that all he had taken was baclofen for muscle spasms, oxycodone for pain, methadose for muscle relaxation, water pills for his heart, and an inhaler for bronchitis. He subsequently admitted he had taken he took a pill form of methamphetamine as a sleeping aid.
Hensler further explained that (1) because of the other vehicle in the median, he had edged into the "fast lane" to see if his way was clear; and (2) he had attempted to back up when he saw the eastbound vehicle approaching him, but the vehicle ran into him. The officers noted, however, that the damage to Hensler's vehicle was in the front, not on the side.
The State charged Hensler with vehicular homicide, alleging alternatively that he drove while under the influence of or affected by any drug, and/or that he drove with disregard for the safety of others. In support of the charge, it presented the testimony of the officers who investigated the accident, a state lab toxicologist, and the doctor who conducted Nelson's autopsy. Melissa Pemberton testified that methamphetamine at the level in Hensler's system can affect judgment and concentration, make a person drowsy, make it hard to stay focused, and make a user irritable and aggressive.
The jury convicted Hensler under the first alternative, finding, by special verdict, that he had operated a motor vehicle while under the influence of drugs.
Clerk's Papers at 15. The special verdict was required because that alternative raises the seriousness level of the crime from VII to IX.
Hensler appeals.
ANALYSIS
Hensler challenges the sufficiency of the evidence pertaining to his drug use. He first argues that (1) the State had to prove his use of drugs was a proximate cause of the accident, citing State v. MacMaster, 113 Wn.2d 226, 231, 778 P.2d 1037 (1989); and (2) Trooper Stewart's testimony that he did not see any indications of drug use shows that Hensler was not under the influence of drugs while he was driving. This argument fails.
I. Standard of Review
Evidence is sufficient to support a conviction if, viewed in the light most favorable to the State, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). An insufficiency claim admits the truth of the State's evidence and requires that all reasonable inferences be drawn in favor of the State and interpreted most strongly against the defendant. Id. Circumstantial evidence is equally as reliable as direct evidence. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
II. Strict Liability under the Statute
Since the legislature's 1991 amendment, Washington's vehicular homicide statute, RCW 46.61.520(1)(a), has been a strict liability statute. It does not require a causal connection between the driver's drug or alcohol impairment and the victim's death, but only between the act of driving and the death. See State v. Rivas, 126 Wn.2d 443, 451-53, 896 P.2d 57 (1995); State v. Morgan, 123 Wn. App. 810, 815, 99 P.3d 411 (2004), review denied, 154 Wn.2d 1018 (2005); State v. Lopez, 93 Wn. App. 619, 623-24, 970 P.2d 765 (1999). RCW 46.61.520(1) now provides that if the death of a person is the result of injuries proximately caused by the driving of any vehicle by any person, the driver is guilty of vehicular homicide if the driver was operating the motor vehicle:
(a) While under the influence of intoxicating liquor or any drug, as defined by RCW 46.61.502; or
(b) In a reckless manner; or
(c) With disregard for the safety of others.
Thus, if Hensler was driving under the influence of the drugs he had ingested, he is strictly liable and guilty under the first statutory alternative — driving "[w]hile under the influence of intoxicating liquor or any drug." RCW 46.61.520(1)(a).
III. Sufficiency of evidence
As Hensler correctly asserts, Trooper Stewart did not think Hensler's drug use was an issue; nevertheless, Stewart did see signs of possible mental impairment, as did Trooper Rabe. Trooper Stewart's initial impression about Hensler's apparent lack of drug use, however, was not the only evidence on this point. Taking all the evidence in the light most favorable to the State, the evidence was sufficient to support the jury's guilty verdict.
The jury considered the circumstances of the accident: Unable to see whether there were any vehicles approaching, Hensler nevertheless drove into a lane of freeway traffic. At the time he collided with the victim's vehicle, Hensler had .30 milligrams per liter of methamphetamine, .06 milligrams per liter of amphetamine, and tricyclin in his blood. Expert testimony explained that such levels of methamphetamine can cause drowsiness and poor judgment. This evidence was sufficient to permit any rational trier of fact to find that Hensler drove under the influence of one or more drugs. See State v. McNeal, 145 Wn.2d 352, 361, 37 P.3d 280 (2002) (holding that driving into oncoming traffic with a .31 methamphetamine blood concentration is indicative of impairment).
Based on this evidence, the jury unanimously found Hensler guilty under the first statutory alternative for committing vehicular homicide — driving under the influence of or while affected by a drug. RCW 46.61.520(1)(a). The jury also returned a special verdict finding that Hensler was under the influence of drugs. Because the evidence is sufficient to support this verdict, we do not address Hensler's challenge to the third alternative?driving with disregard for the safety of others. RCW 46.61.520(1)(c). We affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
ARMSTRONG, J. and PENOYAR, A.C.J., concur.