Imokawa appeals his convictions for vehicular homicide and
vehicular assault. Imokawa argues that due process requires
that the trial court instruct the jury that the State bears
the burden to prove the absence of a superseding cause.
Because the existence of a superseding cause negates the
essential element of proximate cause, we hold that due
process requires the State to prove the absence of a
superseding cause when it is properly raised as a defense.
Accordingly, the trial court erred by failing to instruct the
jury that the State had the burden to prove the absence of a
superseding cause. We reverse.
also argues that the charges should be dismissed with
prejudice because there was insufficient evidence to support
the jury's verdicts finding Imokawa guilty of vehicular
homicide and vehicular assault. Because there was sufficient
evidence to support the jury's verdicts, dismissal with
prejudice is not the proper remedy and we remand for further
proceedings consistent with this opinion.
April 2, 2015, the GMC truck Imokawa was driving collided
with Linda Dallum's Kia Sorrento. Eleanor Tapani,
Dallum's mother, was a passenger in her car. Both Dallum
and Tapani suffered serious injuries in the collision. Dallum
was in a wheelchair for several months. Tapani died. The
State charged Imokawa with vehicular homicide, vehicular
assault, and reckless driving.
Imokawa's jury trial, Nicholas Grier testified that, on
April 2, he was driving his Land Rover north on State Route
503. Grier was driving in the left lane when he observed
Imokawa's truck. Grier testified that Imokawa pulled
within a few feet of the back bumper of his Land Rover and
flashed its headlights. Grier tapped his brakes and waved his
hand at Imokawa. Imokawa backed off as the vehicles
approached a stoplight.
light changed and the vehicles drove through the intersection
without coming to a complete stop. Imokawa pulled up closely
behind Grier's vehicle again. Imokawa slowed down and
then pulled into the right lane. Imokawa passed Grier and
then signaled that he was going to change lanes into the left
lane. As Imokawa pulled in front of Grier, he hit Grier's
vehicle. The impact turned Imokawa's truck sideways into
oncoming traffic and it collided with Dallum's Kia. Then
Imokawa's truck struck the guardrail.
testified that there was another vehicle in front of him when
Imokawa attempted to make the lane change. Grier did not
believe that it was possible for Imokawa to make the lane
change. Grier also testified that he did not speed up as
Imokawa attempted to pass him.
testified to almost the same series of events as Grier.
However, Imokawa testified that he was sure that he had
enough space to make the lane change safely. Imokawa
testified that the collision occurred because, as he made the
lane change, Grier accelerated to prevent him from passing
and hit the back of his vehicle.
Gain observed both vehicles prior to the collision. Gain
testified that he was driving in the left lane when Imokawa
pulled into the right lane to pass him. Gain then moved over
into the right lane. Gain testified that he observed Imokawa
pull up closely behind Grier and continue to follow him at a
very close distance. Gain also observed Imokawa attempt to
pass Grier. Gain testified that he thought the lane change
was "tight." II Verbatim Report of Proceedings
(VRP) at 305. Based on his observations, he did not think
that Imokawa was going to be able to make the lane change.
Gain could not tell whether Grier accelerated as Imokawa
attempted to make the lane change.
Wicklander testified that he was driving in front of Grier at
the time of the collision. Wicklander testified that he
pulled in front of Grier and set his cruise control to 60
miles per hour. Wicklander was the leader of a group of
vehicles all travelling about the same speed. Wicklander
observed Imokawa approach in the left lane and noted that he
was driving faster than the other vehicles in the lane. When
Wicklander checked his mirrors again he saw Imokawa pull into
the right lane to pass Grier. Wicklander checked his mirrors
again and saw that Imokawa's truck was sideways in front
of Grier's Land Rover.
Justin Maier testified that several troopers from the
Washington State Patrol responded to investigate the
accident. Detective Maier was the lead detective
investigating the collision. Based on all the evidence, Maier
opined that Imokawa's truck hit the Land Rover and that
the Land Rover had not sped up before hitting Imokawa's
trial, Imokawa argued that Grier's acceleration into
Imokawa's vehicle was a superseding cause of the
accident, and thus, Imokawa proposed modified versions of the
Washington Pattern Jury Instructions (WPIC). Imokawa proposed
the following jury instruction defining superseding cause:
If you are satisfied beyond a reasonable doubt that the
driving of the defendant was a proximate cause of substantial
bodily injury to another, or death of another, it is not a
defense that the driving of another may also have been a
proximate cause of the substantial bodily harm to, or death
However, if a proximate cause of substantial bodily harm or
death was a new independent intervening act of another which
the defendant, in the exercise of ordinary care, should not
reasonably have anticipated as likely to happen, the
defendant's act is superseded by the intervening cause
and is not a proximate cause of the substantial bodily harm
or death. An intervening cause is an action that actively
operates to produce harm to another after the defendant's
act has begun.
However, if in the exercise of ordinary care, the defendant
should reasonably have anticipated the intervening cause,
that cause does not supersede the defendant's original
act and the defendant's act is a proximate cause. It is
not necessary that the sequence of events or the particular
injury be foreseeable. It is only necessary that the
substantial bodily harm or death fall within the general
field of danger which the defendant should have reasonably
The State has the burden of proving beyond a reasonable doubt
both (1) that conduct by the defendant was a proximate cause
and, (2) that the conduct of Nicholas Grier did not
constitute a superseding cause of the collision which
resulted in the injuries and the death that occurred in this
Clerk's Papers (CP) at 28-29. Imokawa also proposed a
"to-convict" instruction for vehicular homicide
which included the following element:
(4) That the conduct of Nicholas Grier was not a superseding
cause of the injuries sustained by Eleanor Tapani;
CP at 30. And Imokawa proposed a "to-convict"
instruction for vehicular assault which included the