driver struck and disabled another vehicle, then fled into
the early morning darkness. A Good Samaritan stopped to help
the vehicle that had been struck. While helping, the Good
Samaritan sustained fatal injuries due to a secondary
accident. We are asked whether, as a matter of law, the drunk
driver's acts were too attenuated from the Good
Samaritan's death for criminal liability to attach. We
conclude that the drunk driver's acts were the legal
cause of the Good Samaritan's death because those acts
were criminal, caused direct harm as well as risk of further
harm, and occurred close in time and location to the ultimate
harm that befell the Good Samaritan. We further conclude that
the issue of intervening, superseding cause was proper for
the jury to determine as a matter of actual cause using a
reasonable foreseeability standard and that the vehicular
homicide conviction is supported by sufficient evidence.
Accordingly, we hold that the drunk driver's acts
proximately caused the Good Samaritan's death, and we
AND PROCEDURAL HISTORY
before 6:00 a.m. on Sunday, December 7, 2014, Joshua Cane
Frahm was intoxicated and drove his truck erratically at a
high rate of speed on several freeways in Vancouver,
Washington. Two different motorists called 911 to report
Frahm's dangerous driving, which included cutting off a
vehicle and nearly rear-ending several others. Frahm was
going 85 m.p.h. when he rear-ended a vehicle driven by Steven
Klase. The impact propelled Klase's vehicle into the
median barrier and caused it to spin and ricochet, leaving it
disabled across the left and middle lanes. Frahm fled the
scene without stopping to render aid to Klase, who was
seriously injured in the collision.
Irvine was driving the same direction on the same freeway
that morning and witnessed the collision. Irvine pulled his
sedan over onto the right shoulder of the freeway, activated
his emergency flashers, exited his sedan, and crossed the
freeway on foot to render aid to Klase, who remained trapped
inside his vehicle. Irvine called 911 from his cell phone and
was on the line with emergency dispatchers when Klase's
vehicle was struck a second time by a minivan. The driver of
the minivan had shifted into the left lane when he saw the
flashers of Irvine's car on the right shoulder, but the
driver did not notice Klase's disabled vehicle in the
still-dark morning until it was too late to avoid hitting it.
The second impact to Klase's vehicle from the minivan
propelled Klase's vehicle into Irvine, throwing Irvine
approximately 20 feet across the roadway and causing him to
sustain severe brain and spinal injuries. Irvine died 12 days
later as a result of his injuries and pneumonia.
State charged Frahm with half a dozen crimes associated with
the incident, including vehicular homicide. The case
proceeded to a jury trial. The trial court allowed the issue
of intervening, superseding cause to go to the jury. The
trial court instructed the jury according to 11A
Washington Practice: Washington Pattern Jury
Instructions: Criminal 90.08, at 278 (4th ed.
2016) (WPIC), which stated in relevant part:
[I]f a proximate cause of the death was a new independent
intervening act of the deceased or 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 death. .. .
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 death
fall within the general field of danger which the defendant
should have reasonably anticipated.
Clerk's Papers (CP) at 106 (Instr. 12). Frahm objected to
jury found Frahm guilty of vehicular homicide, as well as
vehicular assault, hit-and-run, conspiracy to commit perjury,
and false reporting. Frahm appealed his convictions, arguing,
among other claims, that the State presented insufficient
evidence to support his conviction for vehicular homicide.
The Court of Appeals affirmed, and we granted review.
State v. Frahm, 191 Wn.2d 1026 (2018).
Frahm's acts proximately cause Irvine's death? a.
Were Frahm's acts the legal cause of Irvine's death?
b. Does sufficient evidence support Frahm's vehicular
homicide conviction when the jury was charged with the issue
of intervening, superseding cause and instructed to apply a
reasonable foreseeability standard?
challenge to his vehicular homicide conviction has taken
different forms during his appeal. Though Frahm objected to
use of the pattern jury instruction at trial, he did not
assign error to the instruction on appeal. Rather, Frahm
argued that insufficient evidence supported his conviction.
In his petition for review, Frahm argued that the
foreseeability standard applied by the Court of Appeals
erroneously heightened the threshold for a superseding cause.
In his supplemental brief, Frahm challenged use of a
tort-derived foreseeability standard to determine liability
for vehicular homicide, as well as sufficiency of the
evidence underlying his conviction. Properly before us is
whether sufficient evidence supports Frahm's conviction
for vehicular homicide.
reviewing a challenge to the sufficiency of evidence, we view
the evidence in the light most favorable to the State and
determine whether "any rational trier of fact could have
found guilt beyond a reasonable doubt." State v.
Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). We
review questions of law de novo. State v. Johnson,
128 Wn.2d 431, 443, 909 P.2d 293 (1996).
homicide is defined as follows:
(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
(a) While under the influence of intoxicating liquor or any
drug, as defined by RCW 46.61.502; or
(b) In a reckless manner; or
(c) With disregard for the safety of others.
RCW 46.61.520. Vehicular homicide is a strict liability
offense. See State v. Rivas, 126 Wn.2d 443, 451-53,
896 P.2d 57 (1995). "[T]he conduct of the defendant must
be both (1) the actual cause, and (2) the 'legal' . .
. cause" of the death. Id. at 453. In
Washington, unlike other jurisdictions, we use the term
"proximate cause" to refer to both prongs of
causation together. See Hartley v. State, 103 Wn.2d
768, 777, 698 P.2d 77 (1985) ("Washington law recognizes
two elements to proximate cause: Cause in fact and legal
causation"); State v. Bauer, 180 Wn.2d 929, 936
n.5, 329 P.3d 67 (2014). To determine whether Frahm's
acts proximately caused Irvine's death, we must determine
whether Frahm's acts were both the legal cause and the
actual cause of the death.
cause, or cause in fact, "refers to the 'but
for' consequences of an act-the physical connection
between an act and an injury." Hartley, 103
Wn.2d at 778. Legal cause presents a more nuanced inquiry:
Legal causation . . . rests on policy considerations as to
how far the consequences of [a] defendant's acts should
extend. It involves a determination of whether liability
should attach as a matter of law given the existence
of cause in fact. . . . [D]etermination of legal liability
will be dependent on ...