Opinion
No. 31924-1-II.
May 9, 2006.
Appeal from a judgment of the Superior Court for Clark County, No. 03-1-01814-7, Robert L. Harris, J., entered June 21, 2004.
Counsel for Appellant(s), John A. Hays, Attorney at Law, 1402 Broadway St, Longview, WA 98632-3714.
Counsel for Respondent(s), Michael C. Kinnie, Attorney at Law, 1200 Franklin, PO Box 5000, Vancouver, WA 98666-5000.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Van Deren, A.C.J., concurred in by Houghton and Hunt, JJ.
Rochelle Voeller appeals her convictions for vehicular homicide and vehicular assault on the grounds that the trial court lacked sufficient evidence to support her convictions. We affirm the vehicular homicide conviction but reverse and dismiss the vehicular assault conviction and remand for resentencing.
FACTS
On the night of February 23, 2003, Rachelle Voeller and five of her friends were driving in Clark County. Voeller drove the car, her fianc` Jeromey Frichter (Jeromey) sat in the front seat, and Holly Gedeking, Mike Runkles, and Breeanna Frichter sat in the backseat. Voeller's sister, Talia Gray, was in the trunk.
Gray opted to ride in the trunk because there were not enough seats and she did not want to sit on anyone's lap.
Voeller and her friends decided to `shake up' Gray, so Voeller began to intentionally swerve the vehicle and accelerated as she swerved. Clerk's Papers (CP) at 12. At some point, Jeromey reached for the steering wheel. Voeller told police that he actually grabbed the steering wheel and pulled it toward him. The other passengers saw him reach for it, but no one else saw whether he actually grabbed it. Voeller panicked and tried to brake, but she accidentally stepped on the gas. She lost control, and the car veered off the road and hit a tree.
Jeromey suffered a ruptured aorta and was declared dead at the hospital. Gedeking was dazed, her head hurt, and she suffered a cut on her arm. She was hospitalized for at least three days and underwent an unspecified surgery. The record is silent about her actual injuries. Gedeking later admitted to police that she was high at the time of the accident because within the 24 hours preceding the accident she had injected methamphetamine and had used marijuana, cocaine, and alcohol. She was `coming down' from her methamphetamine high right before the accident. CP at 9. She believed she was the only intoxicated person in the car. No one else in the car required medical attention.
The State charged Voeller by information with one count of vehicular homicide under RCW 46.61.520(1)(b) and (c) and one count of vehicular assault under RCW 46.61.522(1)(a) and (c). Voeller waived her right to a jury trial. The State presented a 12-page summary of what witnesses would testify to as the factual basis of the case and 13 pages of photographs and diagrams. Voeller consented to the State's summary. The court also heard closing arguments by the parties.
Following the bench trial, the court issued a memorandum opinion finding Voeller guilty of vehicular homicide. It found that she `set in motion a series of events which showed a disregard for the safety of others. . . .' and that by initiating the swerving, Jeromey's actions were irrelevant because Voeller `did not take the preventative steps to minimize or prevent the accident from occurring.' CP at 52.
Subsequently, the court issued a second memorandum opinion finding Voeller guilty of vehicular assault of Gedeking, in which the court stated: `Although the record does not indicate specifically what injury [Gedeking] suffered, without question the damage to her arm which resulted in her being admitted in the hospital, having surgery, and still in the hospital three days later recovering constitutes substantial bodily harm.' CP at 56.
In addition to its written opinions, the court entered findings of fact and conclusions of law. It made the following findings of fact:
1. On February 23, 2003, at approximately 11:15 p.m., Officers responded to the scene of a single vehicle accident involving a vehicle with multiple passengers.
2. Based upon contact with the driver and the other passengers, investigators determined that the vehicle had been driven by the defendant, [Rochelle] Voeller.
3. At the time of the collision, the vehicle was occupied by the driver, [Rochelle] Voeller; Jeromy Frichter, who was sitting in the front rear [sic] passenger seat, Holly Gedeking, Mike Runkles, and Breanna Frichter, who were seated in the rear passenger seat. There was a sixth occupant of the vehicle, the sister of the driver, Talia Gray, who was actually in the trunk at the time of the collision.
4. The court finds, based upon the evidence, that at some time while the vehicle was proceeding eastbound on 88th Street, either the defendant or other occupants of the vehicle suggested they should `shake up' the occupant of the trunk, Talia Gray, by swerving the vehicle.
5. The court finds that the defendant began swerving the car and did so up to leaving the road to [the] collision with the tree. The defendant kept accelerating and turning the vehicle into bigger weaves with each swerve.
6. The court finds that on the last occasion when the defendant caused the car to swerve, her passenger, [Jeromey] Frichter, reached over towards the wheel. The defendant in response to [Jeromey] Frichter reaching over towards the wheel attempted to put on the brakes, but put her foot on the gas, causing the car to go off the roadway and collide with a tree.
7. The collision with the tree resulted in [Jeromey] Frichter suffering a ruptured aorta, resulting in his death by exsanguination.
8. Passenger Holly Gedeking, who was seated in the right rear passenger seat at the time of the collision, suffered an injury to her arm which resulted in her being admitted to the hospital for surgery. She was subsequently interviewed in the hospital three days later where she was still recovering from the aforesaid surgery.
9. The vehicle was proceeding at approximately 40 miles per hour before going out of control.
CP at 57-59 (emphasis added). Neither the State nor Voeller took exception to any of the findings, nor did they move for reconsideration of any finding.
The court entered the following conclusions of law:
1. The swerving of the vehicle by Ms. Voeller as the driver manifested a disregard for the safety of others.
2. Any action by the deceased passenger, [Jeromey] Frichter would not have constituted a superceding and intervening cause negating the effect of the actions of the defendant which were a proximate cause of the collision and the resulting injuries and the death of the victim, [Jeromey] Frichter.
3. The court finds beyond a reasonable doubt that the defendant's conduct constituted disregard for the safety of others.
4. The court concludes that the defendant, in the County of Clark, State of Washington, on or about February 23, 2003, did operate a motor vehicle with disregard for the safety of others and did proximately cause injury to another person, to wit: [Jeromey] P. Frichter, as a proximate result of which Frichter died within three years of such driving, in violation of RCW 46.61.520(1)(c).
5. The defendant is therefore guilty of the crime of Vehicular Homicide under Count 01.
6. The court further concludes that the defendant's conduct, in the County of Clark, State of Washington, on or about February 23, 2003, while operating a motor vehicle with disregard for the safety of others, did proximately cause substantial bodily harm to Holly Gedeking and the defendant is therefore guilty of the crime of Vehicular Assault as alleged under Count 02 of the Information in this matter.
CP at 59-60.
The court sentenced Voeller to an exceptional sentence (downward) of 18 months for the vehicular homicide conviction and 9 months for the vehicular assault conviction, to run concurrently. Voeller appeals the convictions.
ANALYSIS I. Standard of Review
Where the trial court has weighed the evidence, our review is limited to determining whether substantial evidence supports its findings and, if so, whether the findings in turn support its conclusions of law and judgment. State v. Vickers, 148 Wn.2d 91, 116, 59 P.3d 58 (2002). We need only review findings of fact to which error has been assigned; findings to which error has not been assigned are verities on appeal. State v. Hill, 123 Wn.2d 641, 647, 870 P.2d 313 (1994). Substantial evidence exists when the evidence is sufficient to persuade a fair minded person of the truth of the finding. Vickers, 148 Wn.2d at 116 (quoting State v. Mendez, 137 Wn.2d 208, 970 P.2d 722 (1999)). Where the findings of fact and conclusions of law are supported by substantial but disputed evidence, we will not disturb the trial court's ruling. Vickers, 148 Wn.2d at 116. We review questions of law de novo. State v. McClendon, 131 Wn.2d 853, 862, 935 P.2d 1334 (1997).
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). `A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom.' Salinas, 119 Wn.2d at 201. Circumstantial evidence and direct evidence are equally reliable. State v. Dejarlais, 88 Wn. App. 297, 305, 944 P.2d 1110 (1997). And we must 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 (1992).
II. Vehicular Homicide
Voeller argues that the trial court lacked sufficient evidence to support her conviction for vehicular homicide because (1) when Jeromey grabbed the steering wheel, he became the superceding cause of the accident; and (2) Jeromey was in control of the car when he grabbed the steering wheel, and control is a requisite element of vehicular homicide and vehicular assault.
RCW 46.61.520(1)(c) governs vehicular homicide and states in pertinent part:
(1) When the death of any person ensues within three years as a proximate result of injury proximately caused by the driving of any vehicle by any person, the driver is guilty of vehicular homicide if the driver was operating a motor vehicle:
. . . .
(c) With disregard for the safety of others.
(Emphasis added).
At oral argument before us, Voeller asserted that both the prosecution and the defense agreed at trial that Jeromey actually grabbed the wheel. She cited to stipulated fact number three, Voeller's statement that Jeromey grabbed the wheel. She also cited to the prosecutor's statement at trial made during closing argument, that said that Jeromey reached across and grabbed the wheel. But the trial court's finding of fact number six states that Jeromey only reached for the wheel. The trial court, which was asked to base its decision on oral arguments and the stipulation to what different witnesses would testify to, did not find that Jeromey actually grabbed the wheel. Because Voeller did not assign error to any of the court's findings of fact, we must consider finding of fact number six as a verity on appeal. See Hill, 123 Wn.2d at 647. We thus look only at whether the facts support the court's conclusions of law and whether sufficient evidence supports Voeller's conviction. Vickers, 148 Wn.2d at 116.
A. Superceding Cause
In order to prove negligent homicide, there must be a causal connection between the act complained of and the death `so that it can be said that the act was a proximate cause of the resultant death.' State v. Rivas, 126 Wn.2d 443, 448-49, 896 P.2d 57 (1995) (quoting State v. Engstrom, 79 Wn.2d 469, 474, 487 P.2d 205 (1971)). A driver's conduct is not the proximate cause if some other action was the sole cause of the harm. State v. Meekins, 125 Wn. App. 390, 397, 105 P.3d 420 (2005). But the same harm can have more than one proximate cause. Meekins, 125 Wn. App. at 398-99.
Contributory negligence is not a defense to vehicular homicide. State v. Roggenkamp, 115 Wn. App. 927, 945, 64 P.3d 92 (2003), aff'd, 153 Wn.2d 614 (2005). But a driver may not be criminally liable for a death resulting from her driving if the death was caused by a superceding intervening event. Roggenkamp, 115 Wn. App. at 945 (quotations omitted). To escape liability, the driver must prove that the deceased's contributory negligence `was a supervening cause without which the defendant's contributory negligence would not have caused the accident.' Roggenkamp, 115 Wn. App. at 945 (quoting State v. Souther, 100 Wn. App. 701, 708-09, 998 P.2d 350 (2000)).
`A force set in motion at an earlier time is an intervening force if it first operates after the actor has lost control of a situation and the actor neither knew nor should have known of its existence at the time of his negligent conduct.' Roggenkamp, 115 Wn. App. at 945 (quoting Restatement (Second) of Torts sec. 441(1) cmt. a.) In order to relieve a driver from liability, an intervening act must not be reasonably foreseeable. To determine whether an intervening act is a superceding cause, we look at whether the intervening act (1) created a different type of harm; (2) constituted an extraordinary act; and (3) operated independently. Roggenkamp, 115 Wn. App. at 945.
The intervening act is one that the driver should not have reasonably anticipated as likely to happen. Roggenkamp, 115 Wn. App. at 945-46. It creates a break in the causal chain between the driver's negligence and the injury because the intervening act is the cause of the injury. Roggenkamp, 115 Wn. App. at 946.
Here, we must determine whether Jeromey's actions were foreseeable. Those in the car decided to `shake up' Gray, who was in the trunk. CP at 12. Voeller began swerving and accelerating in wider and wider curves before the accident. And there was evidence that one passenger in the back told Voeller to stop the swerving before the accident. Jeromey then reached for the wheel.
Given that Voeller was swerving with increasing acceleration and greater apogees at each swerve, it is likely that she could have anticipated that a passenger, probably the front seat passenger, would reach across to try to control the car or stop the stunt. By intentionally swerving and accelerating, Voeller created the situation where she had to stop the car suddenly to avoid an accident. And she lost control of the accelerator, brake, and steering at the critical moment. The road was dry and there likely was no reason she would have needed to hurriedly stop the car but for her manner of driving.
We conclude that the facts support the trial court's conclusion that it was Voeller's reckless actions that created the risk of the accident, collision, or injury to her passengers. She may have, and certainly could have, lost control of the car before and without Jeromey's reach toward her, thus his reaching action did not create a different type of harm or an independent act resulting in the accident.
B. Control
Next, Voeller argues that at the time of the accident, she was not in control of the vehicle because Jeromey had grabbed the wheel. She cites to In re Arambul, to support her position. 37 Wn. App. 805, 683 P.2d 1123 (1984).
In Arambul, the defendant was the passenger in a vehicle. Arambul, 37 Wn. App. at 806. She sat in the middle front seat of the car, between the driver and another passenger. Arambul, 37 Wn. App. at 806. When she saw her step-brother coming in the opposite direction on the road, she grabbed the steering wheel from the driver and swerved the car into the oncoming lane. Arambul, 37 Wn. App. at 806. This swerve caused the car to collide with Arambul's step-brother's car and resulted in the other passenger's death. Arambul, 37 Wn. App. at 806. The State convicted Arambul of negligent homicide by motor vehicle and Division Three of this court upheld the conviction, finding that Arambul was in control of the vehicle at the time of the collision. Arambul, 37 Wn. App. at 807, 808.
On appeal, Arambul argued that she was not in control because she had no control of the gas, brake, or gearshift and only had split second contact with the steering wheel. Arambul, 37 Wn. App. at 807. The court disagreed and found that she had `influence, dominion, or regulation' of the vehicle and the momentary duration of the dominion was irrelevant. Arambul, 37 Wn. App. at 808. At the moment she directed the vehicle into the oncoming car, she had control. Arambul, 37 Wn. App. at 808.
Although there is some evidence to support Voeller's theory that Jeromey grabbed control of the steering wheel and caused the accident, the trial court did not make a finding that he actually grabbed the wheel. Rather the court held that he reached for it. Voeller stated that he did have contact, but none of the passengers saw him grab it. Considering the evidence in the light most favorable to the State, as we must and treating the trial court's unchallenged findings as verities, the record supports the trial court's finding that Jeromey did not actually touch the wheel. Without grabbing the wheel, he did not exercise dominion or control over the vehicle, and thus, Arambul is inapposite. The record supports the conclusion that Voeller exercised control of the vehicle at the time of the collision.
Voeller's claims of superceding intervening cause and control by Jeromey fail.
III. Vehicular Assault
Voeller argues that the trial court lacked sufficient evidence to support her conviction for vehicular assault because the only evidence of Gedeking's injury was that Gedeking had a cut on her arm, she was in the hospital, and she had surgery, not that she suffered substantial bodily harm.
RCW 46.61.522 governs vehicular assault and states in pertinent part:
(1) A person is guilty of vehicular assault if he or she operates or drives any vehicle:
(a) In a reckless manner and causes substantial bodily harm to another; or
. . . .
(c) With disregard for the safety of others and causes substantial bodily harm to another.
(3) As used in this section, `substantial bodily harm' has the same meaning as in RCW 9A.04.110.
(Emphasis added).
RCW 9A.04.110(4)(b) defines `substantial bodily harm' as: `[B]odily injury which involves a temporary but substantial disfigurement, or which causes a temporary but substantial loss or impairment of the function of any bodily part or organ, or which causes a fracture of any bodily part.'
Here, the trial court stated in its opinion that it had no record of exactly what injury Gedeking suffered. When reviewing the sufficiency of the evidence, we regard the evidence in the light most favorable to the State and make all reasonable inferences from it in the State's favor. Salinas, 119 Wn.2d at 201. But we must still be able to find all the elements of the crime beyond a reasonable doubt. Salinas, 119 Wn.2d at 201.
The only evidence of Gedeking's injuries is from Deputy Alex Schoening's police report. The record indicates that Schoening initially contacted Gedeking three days after the accident while she was in the hospital. And it states that she was recovering from surgery to her right arm. But the record is silent about what her injury was why she had to have surgery, or whether it was in any way related to the accident.
Furthermore, Gedeking stated that she had a headache after the accident and could not see straight so she lay down on the ground until medics arrived. But she also admitted that she was intoxicated and had used methamphetamine, marijuana, cocaine, and alcohol in the 24 hours preceding the accident. We are left to speculate about why she remained in the hospital for three days. Her disorientation and headache could have been caused by her drug use. And the hospital may have had to delay minor surgery on her arm until her system cleared the drugs she had ingested. Moreover, the record does not even show that the accident caused the need for surgery. Without evidence of a specific injury to her arm requiring surgery, or any other injury resulting in substantial disfigurement, loss or impairment of function, or fracture, the State's evidence fails to support the trial court's findings and conclusion that Voeller is guilty of vehicular assault.
We affirm the vehicular homicide conviction and reverse and dismiss the vehicular assault conviction and remand for resentencing.
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.
HOUGHTON, J. and HUNT, J., concur.