Opinion
No. 39788-9-II.
January 21, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for Clark County, No. 09-1-00168-5, Roger A. Bennett, J., entered September 10, 2009.
Affirmed by unpublished opinion per Quinn-Brintnall, J., concurred in by Penoyar, C.J., and Johanson, J.
Following a bench trial, the trial court found Kenneth Edward Pawski guilty of vehicular homicide. Pawski appeals, arguing that the evidence was insufficient to support his conviction. As this claim has no merit, we affirm.
Facts
Given Pawski's challenge to the sufficiency of evidence, we will summarize the facts in the light most favorable to the State's case. See State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). Pawski stayed home from work on August 1, 2008, because he was feeling ill and had not slept well. He spent the evening camping and drinking with friends and slept for four hours before leaving the campsite early the next morning.
Pawski drove down Rawson Road, which is a hilly road with many curves and a 35 m.p.h. speed limit. Pawski was driving between 60 and 67 m.p.h. He approached a curve at that speed after passing a warning sign recommending a speed of 25 m.p.h. Pawski entered the curve going downhill to his right as Jason Skelton drove his Jeep Cherokee uphill in the oncoming lane. Pawski was driving on the outside portion of his lane. He locked his brakes and skidded 107 feet across the center line into Skelton's vehicle.
Neighbors responded and pulled Skelton from his car, but he died at the scene. Two of those who responded, Steve Sarkinen and Sterling Hersey, saw Pawski go back to his truck and throw something into the woods; Hersey said it looked like a beer can. Pawski smelled of alcohol and told Hersey that "I must have been going pretty fast." 1 Report of Proceedings (RP) at 39.
Clark County Sheriff's Deputy Joe Swenson followed Pawski to the hospital to do a blood draw. Swenson testified that Pawski said that "he probably should not have been driving and he knew he should have stayed at the camp site. He told me this was the stupidest thing he had ever done." 1 RP at 62. Pawski also told the deputy that he had drunk three or four beers the night before. The blood draw showed a blood alcohol level of .02 percent two hours after the collision and seven hours after Pawski said he had had the last of the beers he had drunk the previous night.
The State charged Pawski with vehicular homicide based on driving in a reckless manner and/or with disregard for the safety of others. Pawski waived his right to a jury trial. The State called an accident reconstructionist, Deputy Douglas Harada, who testified that Pawski's braking decreased his speed from 67 to 53 m.p.h. at the time of impact. He also testified that Skelton did not have time to brake and moved only slightly to the right before the collision. Harada opined that Pawski locked up his brakes when he saw a telephone pole and that his braking came too late.
His braking should have probably been before the apex of [the] curve. That's what normal driving procedure calls for. You brake before you go into the curve. And once you reach the apex, you start to let up. Your momentum carries you around the curve. . . .
His brake marks show that it's at or beyond the apex of the curve beyond the center. So his braking is way too late. With the understanding that his [blood/breath alcohol concentration] is a .02 many hours later, and knowing that he's only had four hours sleep, as a drug recognition expert, my opinion is he was impaired.
1 RP at 146. Deputy Harada's overall conclusion was as follows:
[I]t's highly unlikely that the victim, Mr. Skelton, would have seen the oncoming vehicle. The investigation shows me that Mr. Pawski came around the curve too fast, way too fast. And he panicked, brakes, locks up his brakes, he slides in a path and he's headed towards a telephone pole. Mr. Skelton is an innocent victim. Comes up over the rise and gets in his way and the result ends up in his demise. He's in the wrong place at the wrong time.
1 RP at 157-58.
Pawski's accident reconstructionist testified that Pawski was driving between 56 and 65 m.p.h. when he entered the skid and that his average speed through the skid was 52 m.p.h. Pawski testified that he was very familiar with Rawson Road, that he had not slept well the night before he went camping, and that he drank beer and slept about four hours before leaving the campsite. He said he drove as he usually did and braked when he saw a vehicle in his lane.
The court found Pawski guilty as charged. In its oral ruling, the court made the following observations:
There is no doubt, no doubt whatsoever, that [Pawski] was exceeding the lawful and prudent speed limit.
He was driving down the hill, the very best scenario for him is 56 miles per hour. . . . My conclusion is that there is no doubt that [Pawski] was driving between 60 and 67 miles per hour.
Again, the speed limit here is 25. You can have a 25-mile-an-hour speed limit zone where you can easily drive 60 and not lose control if you have a flat, open space. And let's say the 25-mile speed limit is because there's a school zone. That's not the case we have here. The reason for the 25-mile-an-hour speed limit is because this is a dangerous, windy, hilly road. It has hills. It has valleys. It has impeded site [sic] distances. It has narrow shoulders.
If you go off the road, you're in danger of hitting trees. There's — of course, it's a wooded area. That's why there's a 25-mile-an-hour speed limit. That's why there are signs. These squiggly signs that show you what the road is like up ahead, like the one that Mr. Pawski drove by. Mr. Pawski's speed was extreme, given those circumstances. . . .
. . . He wasn't in his lane in the middle of his lane just driving down the road. He was way over on the right when the skidding started. That tells me he's probably cutting the corners, cutting through the curves, which would cause his centrifugal force to take him out to the left. And he just wasn't able to get back to the right. He realized it and he stomped on his brakes because he knew he was going too fast and he was losing control and couldn't make the curve.
Once he stomped on his brakes, that lost all control of the vehicle. That was the direct and proximate cause of his — or result of his excessive speed, and that's why he crossed into the other lane.
3 RP at 319-22. The court entered written findings of fact and conclusions of law based on its oral ruling. In appealing his conviction, Pawski assigns error to the following findings of fact:
5. The speed limit, well posted with a warning sign, which [Pawski] drove past, was 25 m.p.h. This low speed was required because at the location in issue, Rawson Road is a curvy and hilly two lane road with narrow shoulders.
. . . .
14. [Pawski's] excessive speed most likely caused an inability to remain in his own lane, necessitating that he forcefully apply his brakes.
15. The excessive speed, which caused [Pawski] to lock up his wheels by braking, caused [Pawski's] vehicle to enter the Eastbound lane and strike the Jeep Cherokee.
Clerk's Papers (CP) at 8-9.
Discussion
Sufficiency of the Evidence
Pawski argues that the evidence was insufficient to support his conviction under either alternative of vehicular homicide charged.
The test for sufficiency of the evidence is whether, taking the evidence and inferences from it most favorably to the State, any rational trier of fact could have found guilt beyond a reasonable doubt. Salinas, 119 Wn.2d at 201. Circumstantial and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). We defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533, review denied, 119 Wn.2d 1011 (1992). In determining whether the required proof exists, we need not be convinced of the defendant's guilt beyond a reasonable doubt, but only that substantial evidence supports the State's case. State v. Jones, 93 Wn. App. 166, 176, 968 P.2d 888 (1998), review denied, 138 Wn.2d 1003 (1999).
RCW 46.61.520 defines three distinct means by which vehicular homicide may be committed: (1) driving a vehicle while under the influence of alcohol or drugs, (2) driving in a reckless manner, or (3) driving with disregard for the safety of others. State v. Roggenkamp, 153 Wn.2d 614, 626, 106 P.3d 196 (2005). Pawski was charged with and found guilty of driving in a reckless manner and with disregard for the safety of others.
A. Driving In a Reckless Manner
Pawski argues that by inferring recklessness from the fact of his excessive speed alone, the trial court relieved the State of its burden of proving an essential element of the crime. See State v. Oster, 147 Wn.2d 141, 146, 52 P.3d 26 (2002) (due process requires the State to prove each essential element of the crime beyond a reasonable doubt).
Driving in a reckless manner, for purposes of the vehicular homicide statute, means driving in a rash or heedless manner, indifferent to the consequences. Roggenkamp, 153 Wn.2d at 621-22. As the trial court concluded, speeding is prima facie evidence of reckless driving. RCW 46.61.465; State v. Amurri, 51 Wn. App. 262, 266, 753 P.2d 540 (1988). Pawski argues, however, that recklessness cannot flow from evidence of speed alone and that the State must still prove that he drove in a heedless manner, indifferent to the consequences. As support, he cites State v. Randhawa, 133 Wn.2d 67, 941 P.2d 661 (1997).
In Randhawa, the Supreme Court held that under the facts presented, the trial court erred in giving the jury an instruction that invited it to draw an inference of reckless driving from the defendant's speed alone.
The most that can be said is that Randhawa was traveling between 10 to 20 m.p.h. over the posted speed limit of 50 m.p.h. just before the accident. That speed is not so excessive that one can infer solely from that fact that the driver was driving in a rash or heedless manner, indifferent to the consequences. In short, although it was essentially undisputed that Randhawa was speeding, we cannot say with substantial assurance that the inferred fact of reckless driving flowed from the evidence of speed alone.
Randhawa, 133 Wn.2d at 77-78. In contrast, the court cited a case where a driver was travelling at 103 m.p.h. at the time of the fatal collision. Randhawa, 133 Wn.2d at 76 (citing State v. Hanna, 123 Wn.2d 704, 707, 871 P.2d 135, cert. denied, 513 U.S. 919 (1994)). In that case, the presumed fact of recklessness more likely than not flowed from the driver's excessive speed. Randhawa, 133 Wn.2d at 77 (citing Hanna, 123 Wn.2d at 713). Thus, contrary to Pawski's argument here, the Randhawa court recognized that there are instances when the fact of speed alone may permit a trier of fact to infer that a defendant was driving recklessly. 133 Wn.2d at 78.
Despite that recognition, the trial court did not base its conclusion that Pawski was guilty of reckless driving solely on the fact that he was speeding. Rather, the court concluded that the combination of speed and road conditions required a guilty verdict. Pawski does not assign error to the finding that his speed "was grossly excessive for the conditions" and this unchallenged finding supports the conclusion that "[g]rossly excessive speed on a curvy, hilly two lane road is strong evidence of . . . recklessness." CP at 9; see also State v. Valdez, 167 Wn.2d 761, 767, 224 P.3d 751 (2009) (unchallenged findings are verities on appeal).
Pawski does assign error to three findings concerning his speed. The first states in part that "[t]he speed limit, well posted with a warning sign, which [Pawski] drove past, was 25 m.p.h." CP at 8. Pawski argues that 25 m.p.h. was the recommended rather than maximum speed for the curve, but we find this argument largely academic. Whether 25 m.p.h. was recommended or required, Pawski's speed of 60 to 67 m.p.h. was grossly excessive for the conditions. Pawski also finds fault with the court's findings that because of his speed, he was unable to stay in his own lane, which necessitated his forceful braking and resulted in the collision. The State's accident reconstructionist testified that, because of his speed, Pawski rounded the curve toward the outside of his lane. He then panicked, locked his brakes, and slid across the center line into Skelton's car. This testimony supports the challenged findings. See State v. Mann, 157 Wn. App. 428, 441, 237 P.2d 966 (2010) (we review challenged findings for evidence sufficient to persuade a rational person that the fact is true).
These findings, in turn, are sufficient to show that Pawski drove in a reckless or heedless manner, indifferent to the consequences. See State v. Kenyon, 123 Wn.2d 720, 724, 871 P.2d 144 (1994) (fact of reckless driving properly flowed from defendant's speed when considered in light of road conditions, car conditions, and defendant's erratic driving). Sufficient evidence supports the trial court's conclusion that Pawski was guilty of driving in a reckless manner.
B. Driving With Disregard For the Safety of Others
Driving with disregard for the safety of others means driving with "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.'" State v. Eike, 72 Wn.2d 760, 765-66, 435 P.2d 680 (1967). Some evidence of a defendant's conscious disregard of the danger to others is necessary to support a charge of vehicular homicide under this alternative. State v. Vreen, 99 Wn. App. 662, 672, 994 P.2d 905 (2000), aff'd, 143 Wn.2d 923, 26 P.3d 236 (2001).
In arguing that no such evidence exists, Pawski acknowledges the "basic speed limit rule" providing that "[n]o person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing." RCW 46.61.400(1); State v. MacRae, 101 Wn.2d 63, 64, 676 P.2d 463 (1984). He admits that a breach of this rule is admissible to show negligence, but he contends that he committed no more than ordinary negligence when he panicked and applied his brakes under the misapprehension that there was a car in his lane. See State v. Lopez, 93 Wn. App. 619, 622-23, 970 P.2d 765 (1999) (breach of statutory duty is admissible but not conclusive on issue of negligence).
Pawski does not assign error to the finding that there is no credible evidence that Skelton was in his lane. "If [Pawski] so perceived, he was mistaken." CP at 8.
We disagree. Pawski's conduct demonstrates more than mere oversight or inadvertence. Pawski approached a curve on a hilly, twisting road at more than twice the recommended speed when he was deprived of sleep and had been drinking. Although the State did not charge him with driving under the influence of alcohol, the evidence showed that there was alcohol in his system more than two hours after the collision. Immediately afterward, he admitted that he had been going "pretty fast," and he later acknowledged he should not have been driving. These statements, combined with the evidence of excessive speed, the conditions of the road, and Pawski's familiarity with those conditions, show that he drove with conscious disregard for the safety of others. See State v. Brooks, 73 Wn.2d 653, 659, 440 P.2d 199 (1968) (evidence sufficient to support "disregard" theory when defendant was speeding, it was raining hard, and his car crossed center line); Eike, 72 Wn.2d at 766 (defendant driver was convicted on "disregard" theory for rounding curve at 45 to 50 m.p.h. and crossing center line into path of oncoming car); State v. Barefield, 47 Wn. App. 444, 459, 735 P.2d 1339 (1987) (evidence sufficient to convict on "disregard" theory when defendant's car crossed center line into path of oncoming car), aff'd, 110 Wn.2d 728, 756 P.2d 731 (1988); State v. Knowles, 46 Wn. App. 426, 430-31, 730 P.2d 738 (1986) (evidence sufficient to convict on "disregard" theory when defendant took a "blind" curve at 22 m.p.h. over the posted limit of 35, crossed the center line, and struck oncoming car).
Sufficient evidence supports both alternatives charged and we affirm the defendant's vehicular homicide conviction.
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.
PENOYAR, CJ. and JOHANSON, J.P.T., concur.