[Copyrighted Material Omitted]
Superior Court County: King. Superior Court Cause No: 12-1-04414-3 SEA. Superior Court Judge Signing: Mariane Spearman. Date filed in Superior Court: July 26, 2013.
Richard W. Lechich (of Washington Appellate Project ), for appellant.
Daniel T. Satterberg, Prosecuting Attorney, and Nami Kim, Deputy, for respondent.
Written by: Dwyer, J. Concurred by: Appelwick, J.; Cox, J.
[186 Wn.App. 635] [¶1] -- A jury found Andrea Rich not guilty of possession of a stolen vehicle but guilty of driving under the influence and reckless endangerment. Rich appeals, alleging various forms of trial court error and prosecutorial misconduct and asserting that insufficient evidence was adduced to support her reckless endangerment conviction. [186 Wn.App. 636] Because the State failed to prove beyond a reasonable doubt that Rich recklessly engaged in conduct that created a substantial risk of death or serious injury to another person, the reckless endangerment conviction must be vacated. In all other respects, the judgment is affirmed.
[¶2] One evening in May 2012, Yared Metafaria stopped by a friend's restaurant in Seattle to play pool. He parked his car, an Acura MDX, with the back window partially open and inadvertently left a set of keys inside the car. When Metafaria left the restaurant a few hours later, the car was gone. He called the police and reported that his car had been stolen.
[¶3] About a week later, at approximately 8:00 p.m. on May 27, 2012, Deputy Paul Mulligan of the King County Sheriff's Office was on patrol in Burien. Deputy Mulligan learned that the stolen Acura had been spotted in the vicinity and was " on the lookout" for it as he drove. He then saw the Acura pass him in the adjacent lane. The deputy was traveling with the " flow of traffic" at " about 35" miles per hour when the Acura passed his vehicle. He pulled his patrol car into the Acura's lane of travel and sped up to " about 50" miles per hour in order to catch up to the Acura. Deputy Mulligan followed the car for four blocks, whereupon it pulled into the parking lot of an apartment complex. After the driver of the Acura parked, Deputy Mulligan turned on his emergency lights and pulled in behind the Acura.
[¶4] The Acura's operator opened the car door. Deputy Mulligan got out of his car but waited for backup before approaching the Acura. He heard the female driver, later identified as Andrea Rich, say in a " loud voice" to the passenger, " [T]ell them we just found the keys and we just got in the car." The deputy could not see the passenger, whom police officers later described as a seven- to nine-year-old [186 Wn.App. 637] boy. After a second police officer arrived, Deputy Mulligan arrested Rich.
[¶5] 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. Because Rich was wearing a leg brace, police officers did not administer field sobriety tests. Breath alcohol tests, administered at a police station approximately an hour after Rich's arrest, revealed alcohol concentration levels of 0.183 and 0.188.
[¶6] Rich admitted to police officers that she had consumed one shot of alcohol. She also said the Acura belonged to her boyfriend, Mohamed, who had given her the keys. Rich could not provide a last name for, or any other information about, Mohamed. Rich first denied having been in a stolen car, then said she did not know the car was
stolen, and finally said it was somehow the child's fault.
[¶7] The State initially charged Rich with a gross misdemeanor, driving under the influence (DUI), and a felony, possession of a stolen vehicle. The State later amended the information to add a second gross misdemeanor charge of reckless endangerment.
[¶8] At trial, Rich testified that she was just getting into the car when the police officer pulled up behind her. She said her nephew had brought the keys to her just before the police arrived. Rich testified that she had consumed one or two shots of alcohol but claimed she was not affected by the alcohol she had consumed. Rich maintained that Metafaria was a man whom she knew as Mohamed, and she related a confusing account of how she met him and how he left his car in her possession. Rich claimed that she was waiting for Mohamed to pick up the car when the police arrested her. Rich further testified that she had arranged for Mohamed to pick up the car by telephone calls and text messages but that she no longer possessed the cell phone she had used to communicate with him.
[186 Wn.App. 638] [¶9] Metafaria, on the other hand, testified that he did not know Rich.
[¶10] The jury found Rich guilty of DUI and reckless endangerment but acquitted her of possession of a stolen vehicle. By special verdict, the jury found that Rich's alcohol concentration level was " 0.15 or higher within two hours after driving." Rich appeals.
[¶11] Rich contends that the State failed to prove the elements of reckless endangerment. The reckless endangerment statute, RCW 9A.36.050, provides as follows:
(1) 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.
(2) Reckless endangerment is a gross misdemeanor.
[¶12] Another provision in the criminal code, RCW 9A.08.010, defines levels of culpability, including recklessness. RCW 9A.08.010(1) provides, in relevant part:
(c) RECKLESSNESS. A person is reckless or acts recklessly when he or she knows of and disregards a substantial risk that a 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.
[¶13] In accordance with these statutes, the trial court provided the following unchallenged instructions to the jury:
A person commits the crime of reckless endangerment when he or she recklessly engages in conduct that creates a substantial risk of death or ...