            FILE""'·
            IN CLERKS OFFICE
     IUPREM[' COU;{T, STATE OF WASHINGTON

          DATE   JAN 0 7 2016
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              IN THE SUPREME COURT OF THE STATE OF WASHINGTON




       STATE OF WASHINGTON,                                    NO. 91623-3
                                    Petitioner,
                           v.                                  ENBANC

       ANDREA MARIE RICH,
                                     Respondent.
                                                               Filed   JAN 0 1 2016


                GORDON McCLOUD, J.-A jury convicted Andrea Rich of driving under

      the influence (DUI) and reckless endangerment.          RCW 46.61.502 and RCW

      46.64.506; RCW 9A.36.050. The evidence showed that Rich was speeding in traffic

      while highly intoxicated and with a young child in the front passenger seat. But the

      officer who arrested Rich followed her car because he believed that the car was

      stolen; Rich's manner of driving posed no observable danger.

                The Court of Appeals reversed the reckless endangerment conviction, holding

      that the evidence was insufficient to establish that Rich's driving created an actual,

       substantial risk of death or serious physical injury to another person. State v. Rich,


                                                   1
State v. Rich (Andrea Marie), No. '91623-3


186 Wn. App. 632, 347 P.3d 72, review granted, 183 Wn.2d 1018, 355 P.3d 1153

(20 15). The Court of Appeals ruled, on an issue of first impression, that proof of a

DUI does not necessarily establish proof of reckless endangerment. !d. at 642.

      We agree with the Court of Appeals that proof of DUI alone does not

necessarily establish proof of reckless endangerment. But the State proved more

than just DUI in this case. It also proved speeding, past a police car, in traffic, by a

driver whose breath alcohol level was more than twice the legal limit, who showed

awareness that she had done something wrong once stopped, and who had a young

child in the front passenger seat. Construing the evidence in the light most favorable

to the State, a reasonable juror could conclude beyond a reasonable doubt that Rich

created a substantial risk of death or injury to her passenger, that Rich knew of the

substantial risk, and that Rich disregarded that risk in gross deviation from the way

a reasonable person would act in her situation. We therefore reverse the Court of

Appeals and affirm the reckless endangerment conviction.

                                        FACTS

       On May 27, 2012, at about 8:00 p.m., Deputy Paul Mulligan of the King

County Sheriffs Office was on patrol in Burien. 2 Report of Proceedings (RP) at

89. He heard a Seattle Police Department radio broadcast stating that a stolen, dark

blue Acura MDX was seen in the area. Deputy Mulligan testified that he "was in

the inside lane [traveling southbound] when the stolen vehicle drove past me in the
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State v. Rich (Andrea Marie), No. 91623-3


outside lane." ld. at 75. The speed limit was "about 35 through that area." ld. The

deputy was "doing the flow of traffic" in a marked patrol car. I d. Based on his

suspicion that the car was stolen, Deputy Mulligan "pulled in behind the vehicle, and

was able to catch up to it at about 50 miles an hour." ld. Deputy Mulligan followed

the Acura for about four blocks before it pulled into a parking lot of an apartment

complex. I d. at 78. He turned on his emergency lights and parked behind the Acura.

I d.

       The driver of the Acura, Rich, opened her car door. ld. at 79.          Deputy

Mulligan got out of his car but waited for backup before approaching the Acura. I d.

He heard Rich say in a "loud voice" to the passenger, Rich's nephew who was

between seven and nine years old, "[T]ell them we just found the keys and we just

got in the car." ld. Deputy Mulligan arrested Rich after backup arrived. Id. at 80.

       The officers who interacted with Rich at the time of her arrest noticed a strong

odor of alcohol and observed signs of intoxication, including bloodshot, watery eyes

and slurred speech. I d. at 110-12. Because Rich was wearing a walking leg cast,

police officers did not administer field sobriety tests. 1 RP at 42-43. Breath alcohol

tests administered at a police station approximately an hour after Rich's arrest

indicated blood alcohol concentration levels of0.183 and 0.188. 2 RP at 177. Rich

told police officers that she had consumed one shot of alcohol. I d. at 122.



                                             3
State v. Rich (Andrea Marie), No. '91623.-3


      The State charged Rich with DUI, possession of a stolen vehicle, and reckless

endangerment. Clerk's Papers (CP) at 6-7.

      At trial, Rich testified that she was just getting into the car when the police

officer pulled up behind her. 2 RP at 191. She said that her nephew brought the

keys to her just before the police arrived and that he was in the car with her. ld. at

191, 198. Rich testified that she had consumed one or two shots of alcohol and that

she was "tipsy," but she also claimed that the alcohol did not affect her. Jd. at 205,

201, 194.

      The state forensic toxicologist testified that a person would have to consume

about 9 to 10 shots of standard proof alcohol to achieve a blood alcohol reading of

0.188. 2 RP at 134. He also testified that a person burns off alcohol at an average

rate of 0.015 per hour. I d.

       The jury convicted Rich of DUI and reckless endangerment-both gross

misdemeanors-but acquitted her of possessing a stolen vehicle. CP at 4 7-49. The

jury also returned a special verdict stating that Rich's alcohol concentration level

was "0.15 or higher within two hours after driving." CP at 50. The court imposed

a sentence of 120 days of confinement on the DUI conviction and 20 days on the

reckless endangerment conviction. CP at 54; Tr. of Trial (July 26, 2013) at 4.

       Rich appealed. The Court of Appeals reversed Rich's reckless endangerment

conviction and affirmed the DUI conviction. Rich, 186 Wn. App. 632. The Court

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State v. Rich (Andrea Marie), No. 91623-3


of Appeals held that no evidence showed Rich's driving specifically posed an actual

risk of death or serious injury that was considerable or substantial. I d. at 64 7. The

court also held that evidence Rich was under the influence of alcohol, alone, did not

support the conviction. Id.

      This court granted the State's petition for review. Rich, 183 Wn.2d 1018. The

question presented is whether the evidence was sufficient to support Rich's reckless

endangerment conviction.

                                       ANALYSIS

      I.     Standard of Review

       This case requires us to decide if evidence that Rich was speeding in traffic

with a young passenger in the front seat of the car while she was highly intoxicated

was sufficient to support her reckless endangerment conviction. The sufficiency of

the evidence is a question of constitutional law that we review de novo. State v.

Berg, 181 Wn.2d 857, 867, 337 P.3d 310 (2014).

       The State bears the burden of proving all the elements of an offense beyond a

reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d

368 ( 197 0); U.S, CONST. amend. XIV; WASH. CONST, art. I, § 3, To determine if

sufficient evidence supports a conviction, we consider '"whether, after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.'" State

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State v. Rich (Andrea Marie), No. 91623-3


v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980) (some emphasis omitted)

(quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560

(1979)). "[I]nferences based on circumstantial evidence must be reasonable and

cannot be based on speculation." State v. Vasquez, 178 Wn.2d 1, 16,309 P.3d 318

(2013). A "'modicum"' of evidence does not meet this standard. Jackson, 443 U.S.

at 320.

      II.      A Person Commits Reckless Endangerment by Creating a Substantial
               Risk of Death or Injury toAnother Person

      The State charged Rich with reckless endangerment, not reckless driving.

RCW 9A.36.050(1), which defines "reckless endangerment," states, "A person is

guilty of reckless endangerment when he or she recklessly engages in conduct not

amounting to drive-by shooting but that creates a substantial risk of death or serious

physical injury to another person." 1

          Thus, to obtain a conviction, the State must first prove "reckless[] ...

conduct." RCW 9A.36.050(1). The mens rea of recklessness has both a subjective

and an objective component. RCW 9A.08.010(1)(c) states, "A person is reckless or

acts recklessly when he or she knows of and disregards a substantial risk that a


          1
        Reckless endangerment is not exclusively a driving offense. It is located in
the general criminal code, chapter 9A RCW, rather than in the motor vehicle code,
chapter 46 RCW. A separate statute, RCW 46.61.500, prohibits reckless driving,
which is "driv[ing] any vehicle in willful or wanton disregard for the safety of
persons or property." RCW 46.61.500(1 ).
                                        6
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State v. Rich (Andrea Marie), No. 91623-3


wrongful act may occur and his or her disregard of such substantial risk is a gross

deviation from conduct that a reasonable person would exercise in the same

situation." (Emphasis added.)     Whether Rich's conduct was reckless therefore

"'depends on both what [she] knew and how a reasonable person would have acted

knowing these facts.'" State v. Graham, 153 Wn.2d 400, 408, 103 P.3d 1238 (2005)

(quoting State v. R.H.S., 94 Wn. App. 844, 847, 974 P.2d 1253 (1999)).

      The State must also prove "a substantial risk of death or serious physical

injury to another person."    RCW 9A.36.050(1 ).      A "risk," of course, is not a

certainty. See Graham, 153 Wn.2d at 407 (reckless endangerment is an inchoate

crime; distinguishing between reckless endangerment, on the one hand, which

subjects defendant to conviction based on risk her conduct poses, and assault or

homicide, on the other hand, which require proof that harmful consequences actually

occurred).   And although no statute defines "serious physical injury," RCW

9A.04.11 0( 4)(a) defines "physical injury" as "physical pain or injury, illness, or an

impairment of physical condition." No statute defines "substantial" either, but in

State v. McKague, we defined "substantial" (as used in the statute defining "second

degree assault") as "'considerable in amount, value, or worth'" and more than just

"having some existence." 172 Wn.2d 802, 806, 262 P.3d 1225 (2011) (quoting

WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 2280 (2002)); RCW

9A.36.021(1)(a).

                                             7
State v. Rich (Andrea Marie), No. 91623~3


      Taken together, to convict Rich of reckless endangerment, the State had to

prove beyond a reasonable doubt that Rich knew of and disregarded a considerable

risk-not a certainty-of death or serious physical pain or injury that her conduct

posed to her young nephew, and that her behavior constituted a gross deviation from

how a reasonable person would have acted based on the known facts.

      III.   Evidence of Intoxication Alone or Speed Alone, without More, Does
             Not Constitute Reckless Endangerment

      Rich argues that proof of DUI alone is insufficient to prove reckless

endangerment. Resp't's Suppl. Br. at 8. She also asserts that proof of speeding

alone is insufficient to prove reckless endangerment. !d. at 13.

      This is, in part, a question of statutory interpretation; we therefore begin by

looking at the language of the relevant statutes. Kitsap County Deputy SheriffS'

Guild v. Kitsap County, 183 Wn.2d 358, 378, 353 P.3d 188 (2015). As discussed

supra, the reckless endangerment statute requires proof that the defendant knows of

and disregards a substantial risk and that the defendant's conduct constitutes a gross

deviation from the way that a reasonable person would act in the same situation.

RCW 9A.36.050(1); RCW 9A.08.010(1)(c). DUI, however, contains no such mens

rea element. RCW 46.61.502(1); see State v. Dailey, 174 Wn. App. 810,815-16,300

P.3d 834 (2013). For this reason alone, proof of DUI, without more, does not




                                          8
State v. Rich (Andrea Marie), No. 91623-3


establish proof of reckless endangerment. Reckless endangerment requires proof of

something more.

      Similarly, speeding requires only proof of a violation of the traffic code. See

Clem,ent v. Dep't c<f'Licensing, 109 Wn. App. 371,375 n.10, 35 P.3d 1171 (2001)

(citing City o.fBremerton v. S'pears, 134 Wn.2d 141, 158,949 P.2d 347 (1998)). For

this reason alone, proof of speeding, without more, does not establish proof of

reckless endangerment. Reckless endangerment requires proof of something more.

      This conclusion is consistent with the conclusion we reached on this issue in

the reckless driving context. In State v. Hanna, this Court upheld the validity of an

instruction allowing a jury to draw an inference of reckless driving from proof of

speeding. 123 Wn.2d 704, 712-13, 871 P.2d 135 (1994). Thereafter, in Hanna v.

Riveland, 87 F.3d 1034 (9th Cir. 1996), the court ruled that that instruction created

an impermissible inference in violation of the right to due process-a fact about

which this court said it was "not unmindful" when deciding State v. Randhawa, 133

Wn.2d 67, 77 n.3, 941 P.2d 661 (1997), a few years later. Thus, in Randhawa, we

clarified that speeding, alone, does not necessarily give rise to an inference of

recklessness. I d. at 77 ("[W]e cannot say with substantial assurance that the inferred

fact, Randhawa's reckless driving, more likely than not flowed from the proved

fact-Randhawa's speed. That is so because the facts relating to Randhawa's speed

were not nearly as egregious as those in Hanna .... "). We reaffirm that holding

                                          9
                                   '     '

State v. Rich (Andrea Marie), No. 91623-3


now: that speeding, alone, does not necessarily prove recklessness. But in this case,

the State did not rely on evidence of Rich's speed, alone, to support the reckless

endangerment conviction.

      Similarly, in State v. Birch, 183 Wash. 670, 673, 49 P.2d 921 (1935), we held

that driving under the influence of alcohol does not, on its own, constitute reckless

driving.    We explained that the jury must determine " [w]hether or not, in any

particular case, the extent of the use of intoxicating liquor int1uenced the manner of

driving." !d. at 674-75. This reasoning supports our conclusion here that the court

must consider the specific facts of the case to decide if the defendant, under the

particular circumstances, knew of and disregarded a considerable risk that her

conduct posed and that her behavior constituted a gross deviation from reasonable

behavior.

      Rich cites Commonwealth v. Mastromatteo, 719 A.2d 1081, 1083 (Pa. Super.

1998), in which the intermediate appellate court interpreted a statute similar to

Washington's reckless endangerment statute and held that DUI does not constitute

recklessness per se. But, as discussed in more detail in Part IV below, the State did

not rely only on DUI evidence to support Rich's conviction.

       Rich also claims, "Importantly, the State did not present any statistical

evidence to substantiate its bare assertion during closing argument that driving drunk

creates a high risk of accident causing serious physical injury or death." Resp't's

                                             10
State v. Rich (Andrea Marie), No. 91623-3


Suppl.Br.at9. ShecitesBegayv. UnitedStates,553U.S.137, 140, 128S.Ct.1581,

170 L. Ed. 2d 490 (2008) and Johnson v. United States,_ U.S._, 135 S. Ct. 2551,

2557, 192 L. Ed. 2d 569 (2015).

      Begay and Johnson, however, were not sufficiency of the evidence cases.

Those cases interpreted-in two different ways-the "residual clause" of the former

Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e), which imposes a

mandatory sentencing enhancement on felons who unlawfully possess a firearm and

have three or more convictions for violent felonies. Begay, 553 U.S. at 148. The

residual clause defines an offense as a qualifying violent felony if it "involves

conduct that presents a serious potential risk of physical injury to another."      18

U.S.C. § 924( e)(2)(B)(ii). In Begay, the Court held that it had to "consider the

offense generically . . . . [W]e examine it in terms of how the law defines the offense

and not in terms of how an individual offender might have committed it on a

particular occasion." !d. at 141. Rich cites Justice Scalia's concurrence in that case,

which concluded that drunk driving does not clearly present a serious risk of injury

to another within the statute's meaning. !d. at 148 (Scalia, J., concurring).

      Begay's holding is not applicable to either the subjective or objective inquiry

here. In this case, we do not look at reckless endangerment generically; rather, we

consider the specific evidence admitted to determine if it was constitutionally

sufficient to support the conviction.

                                          11
State v. Rich (Andrea Marie), No. 91623-3


      In Johnson, the Supreme Court held that the residual clause is

unconstitutionally vague because it defined a qualifying offense at too high a level

of generality.    135 S. Ct. at 2557.    This case does not involve overly broad

definitions; rather, the question before us is whether specific evidence was sufficient

to support Rich's conviction.

      IV.    A Reasonable Juror Could Conclude beyond a Reasonable Doubt That
             Rich Created a Subjectively and Objectively Unreasonable and
             Substantial Risk of Death or Serious Physical Injury to Another

      The question remains whether any reasonable juror could conclude, beyond a

reasonable doubt, that Rich created a subjectively and objectively unreasonable and

substantial risk of death or serious physical injury to another. The Court of Appeals

reversed because the State failed to prove an "'actual"' risk of death or serious

physical injury that was "considerable or substantial." Rich, 186 Wn. App. at 647

(quoting McKague, 172 Wn.2d at 805).

       The State acknowledges that it lacked proof of actual erratic driving or actual

harm. It contends that such proof was not necessary.

       Rich, on the other hand, focuses on the absence of erratic driving or any

resulting harm.      She contends that despite her intoxication, she "was not

incapacitated[;] [s]he was able to walk, waive her rights and answer questions, and

submit to a breathalyzer," and that "[t]here was no evidence that she had swerved or

driven erratically." Resp't's Suppl. Br. at 12-13. She also argues that her nephew

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                                     .     .
State v. Rich (Andrea Marie), No. 91623-3


was secure in the car and that no external circumstances in the environment tended

to show the creation of a substantial risk. I d. at 14.

       But none of that really responds to the State's argument that it need not prove

actual erratic driving or actual harm to prove reckless endangerment. Indeed, there

is no good response to the State's interpretation; Rich's argument would eliminate

the word "risk" from the crime's language.

       With that interpretation in mind, we review the evidence in the light most

favorable to the State. The record clearly reveals more than proof of only DUI or

only speeding. Evidence also showed that Rich knew that the legal blood alcohol

limit in Washington is 0.08. 2 RP at 194. Further, the evidence showed that Rich

knew that she was driving while "tipsy." ld. at 205. Indeed, Rich's loud comments

to her nephew show that she was trying to cover up the fact that she had done

something wrong. ld. at 79. A reasonable juror could conclude that Rich knew

driving while "tipsy" could cause an accident, and that she disregarded that risk in a

gross deviation from conduct a reasonable person would exercise in a similar

situation. ld. at 205; RCW 9A.08.010(1)(c). This satisfies the subjective component

of reckless conduct.

       In addition, Deputy Mulligan testified that Rich passed his marked police car

in the right lane. The jury could infer from his testimony that Rich was speeding

when she passed him. 2 RP at 75. The evidence also showed that she was driving

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                                  '    .
State v. Rich (Andrea Marie), No. 91623-3


in traffic, not in a deserted area. She had a young child in the front passenger's seat.

Officers testified that Rich, once stopped, spoke in an abnormally loud voice with

odd speech patterns and that based on her demeanor, the smell of alcohol, and the

appearance ofher eyes, they concluded that she was intoxicated. !d. at 81, 105, 107,

110-12, 146, 148. As discussed above, her blood alcohol level about one hour after

her arrest was 0.183 to 0.188. !d. at 194. A toxicologist testified that to reach a

blood alcohol level of 0.188, a person would have to consume about 9 to 10 shots of

standard proof alcohol. !d. at 134. The toxicologist also testified that any amount

over a 0.08 blood alcohol level would render a person unable to operate a motor

vehicle safely. !d. at 133. This evidence-taken together-is sufficient to satisfy

the objective component of reckless conduct: a reasonable person would recognize

the substantial risk of death or serious physical injury to Rich's nephew seated in the

front of the car by her conduct of speeding in traffic while having a blood alcohol

level of more than twice the legal limit, which affected her speech and her behavior,

and knowing that she was "tipsy."

                                    CONCLUSION

       Evidence of DUI, alone, is not sufficient to prove reckless endangerment.

Evidence of speeding, alone, is not sufficient to prove reckless endangerment. But

here, the record contains evidence of DUI, of speeding, of extreme intoxication, of

Rich's knowledge that she was "tipsy," and of engaging in all of this behavior while

                                           14
State v. Rich (Andrea Marie), No. 91623-3


in traffic with a young child in the front seat. Viewing the evidence in the light most

favorable to the State, any reasonable juror could have concluded beyond a

reasonable doubt that Rich recklessly engaged in conduct that created a substantial

risk of death or serious physical injury to her nephew and that it constituted a gross

deviation from the way a reasonable person would act in her situation. We therefore

reverse the Court of Appeals and reinstate Rich's reckless endangerment conviction.




                                           15
State v. Rich (Andrea Marie), No. 91623-3




 WE CONCUR:




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