Opinion
No. 25185-3-III.
April 24, 2007.
Appeal from a judgment of the Superior Court for Spokane County, No. 04-8-00954-1, Ellen K. Clark, J., entered March 23, 2006.
Affirmed by unpublished opinion per Sweeney, C.J., concurred in by Brown, J., and Kato, J. Pro Tem.
The defendant here assigns error to two of the trial judge's findings of fact. She also argues that the findings do not support a conclusion of proximate cause or "conscious disregard" as required for vehicular assault. The defendant drove down a hill with two girls sitting on the trunk or hatchback lid of her car. One girl fell off when the car rounded a corner and was seriously injured. The court's findings are supported by the record, and those findings support the "conscious disregard" element of vehicular assault. We therefore affirm the conviction.
FACTS
Jessica Napier drove her Geo Storm to the home of another girl. She spent time at the home and then decided to leave. Other girls at the house asked for a ride down the hill from the home. Two of the girls, Sasha and Amaryssa, sat on the trunk/hatchback area of the car for the ride down the hill. Ms. Napier told them to get off. They refused. Ms. Napier then drove down the hill with the girls on the back. Amaryssa fell from the car as Ms. Napier rounded a curve. Amaryssa was seriously injured.
Ms. Napier gave her cell phone to one of the other girls, who called 911. Ms. Napier left the accident scene and went home. She called her mother. Her mother instructed her to wait at the house. When her mother returned home, Ms. Napier and her mother returned to the scene.
This case was tried to a judge. The court found that Ms. Napier drove with two people sitting on the rear trunk of the vehicle, and that she did so with knowledge of the danger involved. The court concluded that Ms. Napier was guilty of vehicular assault (RCW 46.61.522(1)(c)) — she operated the car with disregard for the safety of others and she caused substantial bodily harm. The court also concluded that Ms. Napier was guilty of hit and run (RCW 46.52.020). She does not appeal that conviction.
DISCUSSION
Ms. Napier argues that the court's findings, specifically findings of fact 11 and 12, are not supported by the evidence. She also contends that the State failed to show that her actions were the proximate cause of the injuries here. The State responds that the evidence is sufficient. The State says that the victim's act of sitting on the car could not have been a superseding cause of the injury because it took place before Ms. Napier drove down the hill.
Finding of fact 11: Finding that Ms. Napier knew that driving with people on her car was dangerous.
Finding of fact 12: Finding that driving with people on the outside of a car is not a simple mistake, as argued by the defense. It is an action that resulted in substantial bodily harm to the victim.
We determine first whether the challenged findings (findings 11 and 12) are supported by the evidence. State v. Stevenson, 128 Wn. App. 179, 193, 114 P.3d 699 (2005). A claim that evidence is not sufficient to support findings admits the truth of the State's evidence and all inferences that can reasonably be drawn therefrom. State v. Theroff, 25 Wn. App. 590, 593, 608 P.2d 1254, aff'd, 95 Wn.2d 385, 622 P.2d 1240 (1980). "[I]ntent may be inferred where a defendant's conduct plainly indicates the requisite intent as a matter of logical probability." State v. Stearns, 61 Wn. App. 224, 228, 810 P.2d 41 (1991).
Here, three witnesses testified that Ms. Napier asked the two girls on the trunk to get off of the car. Sasha, the girl riding on the trunk who was not injured, testified: "I remember her saying that she knew it wasn't a good idea." Report of Proceedings (RP) at 101. She also testified that when Ms. Napier told her to get off of the car, her response was, "[n]o, it'll be fine," because she "didn't think anything wrong could happen." Id. at 80, 96. She also said: "[S]he was telling us not to and we were just sitting there saying nothing bad is going to happen just let us do it." Id. at 103. This evidence supports a finding that Ms. Napier was aware of the danger in driving her car with her friends sitting on the back of it. Clerk's Papers (CP) at 19 (finding of fact 11). She proceeded to do so anyway.
There are three ways to commit vehicular assault. State v. Roggenkamp, 115 Wn. App. 927, 935, 64 P.3d 92 (2003), aff'd, 153 Wn.2d 614, 106 P.3d 196 (2005); RCW 46.61.522(1). The alternative at issue in this case requires that the defendant drive with disregard for the safety of others and, by doing so, cause substantial bodily harm. RCW 46.61.522(1)(c). "Disregard for the safety of others is an aggravated kind of negligence `falling short of recklessness but constituting a more serious dereliction than the hundreds of minor oversights and inadvertences encompassed within the term "negligence."'" State v. Lopez, 93 Wn. App. 619, 623, 970 P.2d 765 (1999) (quoting State v. Eike, 72 Wn.2d 760, 765-66, 435 P.2d 680 (1967)).
Ms. Napier relies on Lopez for the proposition that, absent some showing by the State of horseplay or reckless driving, the court cannot legally conclude "conscious disregard" for the safety of others. Appellant's Br. at 17. The court addresses a different problem in Lopez. There, the driver was not old enough to have a learner's permit. Lopez, 93 Wn. App. at 621. And she had not taken a driver's education course. Id. We held that violation of the licensing statute without "[s]ome evidence of the defendant's conscious disregard" of the danger did not support a conviction; "[i]n short, a minor's status as an unlicensed driver is not enough to establish beyond reasonable doubt a disregard for the safety of others." Id. at 623. The court's finding that Ms. Napier was aware of the danger supports the conclusion that she drove with conscious disregard for the safety of others. RCW 46.61.522(1)(c).
Ms. Napier also argues that her actions were not the proximate cause of the injury here. She believes the cause was Sasha's and Amaryssa's refusal, despite Ms. Napier's protestations, to remove themselves from the trunk.
A defendant's conduct is a "proximate cause" of harm to another if, unbroken by any new independent cause, it produces harm, and without it the harm would not have happened. State v. Meekins, 125 Wn. App. 390, 396, 105 P.3d 420 (2005); Hertog v. City of Seattle, 138 Wn.2d 265, 282-83, 979 P.2d 400 (1999); Hoffer v. State, 110 Wn.2d 415, 424, 755 P.2d 781 (1988), adhered to on recons., 113 Wn.2d 148, 776 P.2d 963 (1989); Stevens v. Gordon, 118 Wn. App. 43, 52, 74 P.3d 653 (2003). "A defendant's conduct is not a proximate cause if, although it otherwise might have been a proximate cause, a superseding cause intervenes." Meekins, 125 Wn. App. at 397-98. An intervening cause is a force that operates to produce harm after the defendant has committed the act or omission. State v. Souther, 100 Wn. App. 701, 710, 998 P.2d 350 (2000).
Here, the court concluded that the proximate cause of the victim's injuries was that Ms. Napier drove her car with the victim sitting on the trunk. There is no danger in sitting on the trunk of a parked car. There is danger in sitting on the trunk of a moving car. The victim did not cause the car to move. Ms. Napier did. RCW 46.61.660 prohibits the operation of a motor vehicle when someone is sitting outside the passenger compartment. No statute requires a passenger riding on the outside of a car to get off as soon as the car begins moving. Ms. Napier, on the other hand, had a duty not to drive her car with someone sitting on the outside of it.
An intervening cause operates to produce harm after the defendant has committed the act or omission. Souther, 100 Wn. App. at 710. The victim's choice to sit on the trunk of the car could only be an intervening cause if she were to jump onto the outside of the car after the defendant had already begun driving. That did not happen here. The victim's position (sitting on the outside of the car) only became dangerous when Ms. Napier began to drive. Therefore, it was Ms. Napier's action in driving the car that proximately caused the victim's injuries.
We affirm the conviction.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
BROWN, J. and KATO, J. Pro Tem., concur.