The State of Washington, Respondent, v. Audrey E. Graham, Petitioner, 153 Wash. 2d 400

¶1 Owens, J. Audrey Graham was found guilty in juvenile court of vehicular homicide and three counts of reckless endangerment, all arising from a one-car accident. Graham argues that, rather than charging her with one count of reckless endangerment for each of her surviving three passengers, the State should have been limited to charging her with a single count of reckless endangerment for her conduct in causing one automobile accident.

Graham also questions whether the juvenile court’s findings of fact support its conclusion of law that she acted “recklessly,” as that term is defined by statute. f 2 We hold that the unit of prosecution for the offense of reckless endangerment is each person endangered; consequently, the State permissibly charged Graham with three violations of RCW 9A.36.050(1). We also conclude that the juvenile court’s findings support its determination that Graham acted “recklessly,” as that term is defined in RCW 9A.08.010(l)(c). We therefore affirm the decision of the Court of Appeals.

FACTS f 3 On March 16, 2001, 16-year-old Audrey Graham left Vashon High School, driving her parents’ 2000 Hyundai Tiburón. Her classmate Katie Bos rode in the front passenger seat. Despite her awareness that the backseat was equipped with only two seat belts, Graham invited three other friends to join hex: and Bos. Ashley Fix sat in the backseat between Sydney Shelton and Jake Wittmier, neither of whom used the available seat belts. ¶4 Before leaving the school grounds, Graham drove to a nearby gravel parking lot in order to spin the car around in a circle at high speed.

Graham drove back onto the pavement and accelerated out of the parking lot, causing the car to fishtail. Soon after they left the school, Shelton saw that the speedometer was at 60 mph. After Graham turned onto Monument Road, which has a posted speed limit of 40 mph three-tenths of a mile from school, Wittmier observed that the speedometer read 80 mph. Rocking the steering wheel back and forth several times to make the car swerve, Graham said, “‘Look, I can drive like Thomas [Porro],’ which was a reference to her boyfriend and his driving.” Clerk’s Papers (CP) at 245, Finding of Fact (FF) 7.

Graham lost control of the car when she looked down to adjust the stereo. The car slid across the roadway, hit a ditch, rolled several times, and came to a stop 407 feet from the first skid marks on the roadway. All three of the backseat passengers were ejected. Shelton and Wittmier were injured, and Fix died instantly. At the scene, Graham approached King County Deputy Sheriff Chris Kahrs and said, “ ‘It’s my fault... I was going too fast.’ ” CP at 245, FF 11. ¶5 On July 12, 2001, the State charged Graham in juvenile court with one count of vehicular homicide for the death of Ashley Fix.

The State amended the information on December 4, 2001, to add three counts of reckless endangerment for Graham’s three other passengers. Testimony taken at the fact-finding hearing in December 2001 established that Graham had taken a driver’s education course before the crash and had learned that exceeding the speed limit and driving inattentively or recklessly was dangerous. Graham also admitted that Porro’s excessively fast driving had frightened her in the past. ¶6 The court found Graham guilty on all four counts. Graham appealed, and the Court of Appeals affirmed in a partially published decision. State v.

A.G., 117 Wn. App. 462, 72 P.3d 226 (2003). We granted Graham’s petition for review. ISSUES ¶7

(1) For the offense of reckless endangerment, set forth in RCW 9A.36.050(1), is the unit of prosecution each person endangered or each endangering act? ¶8

(2) Did the juvenile court’s findings of fact support its conclusion of law that Graham had acted “recklessly,” as that term is defined in RCW 9A.08.010(l)(c)? ANALYSIS ¶9 Standard of Review. Graham raises a question of statutory

interpretation and challenges one of the juvenile court’s conclusions of law. Appellate review of both issues is de novo. State v. Thomas, 150 Wn.2d 666, 670, 80 P.3d 168 (2003) (citing State v. Ammons, 136 Wn.2d 453, 456, 963 P.2d 812 (1998); State v. J.P., 149 Wn.2d 444, 450, 69 P.3d 318 (2003)). ¶10 Unit of Prosecution for Reckless Endangerment. Graham argues that her three convictions for reckless endangerment violated double jeopardy. The double jeopardy clauses of the Washington State Constitution,

article I,

section 9, and the fifth amendment to the federal constitution “protect against multiple punishments for the same offense, as well as against a subsequent prosecution for the same offense after acquittal or conviction.” In re Pers. Restraint of Orange, 152 Wn.2d 795, 815,100 P.3d 291 (2004) . Where a defendant contends that his sole act has been punished twice under separate criminal statutes, the question is “whether, in light of legislative intent, the charged crimes constitute the same offense.” Id.

If the relevant statutes do not disclose legislative intent, the reviewing court will apply the “same evidence” or Blockburger test, by which two charged crimes will not be deemed the same offense if each statute requires proof of a fact not required by the other statute. However, as this court recognized in State v.

Adel, 136 Wn.2d 629, 633, 965 P.2d 1072 (1998), “[w]hen a defendant is convicted for violating one statute multiple times, the same evidence test will never be satisfied,” since the multiple convictions “will always be the same in law, but. . . never .. . the same in fact.” Consequently, the double jeopardy analysis for multiple convictions for violating the same statute requires a determination of “what act or course of conduct. . . the Legislature defined as the punishable act”: “When the Legislature defines the scope of a criminal act (the unit of prosecution), double jeopardy protects a defendant from being convicted twice under the same statute for committing just one unit of the crime.” Id. at 634.

Where the legislature has not clearly indicated the unit of prosecution in a criminal statute, the “lack of statutory clarity favors applying the rule of lenity.” Id. at 635. ¶11 RCW 9A.36.050(1) provides that “[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.” Graham contends that the unit of prosecution is the alleged act of reckless conduct (here, her reckless driving), whereas the State maintains that the legislature intended to criminalize a defendant’s reckless endangerment of a particular individual. ¶12 Graham relies on State v.

Westling, 145 Wn.2d 607, 40 P.3d 669 (2002), wherein we concluded that the unit of prosecution for second degree arson is the defendant’s act of setting the fire, not each item of property damaged by the fire. As the Court of Appeals explained in the present case, see 117 Wn.

App. at 469, the statute at issue in Westling does not predicate guilt on damage to a particular piece of property but criminalizes the setting of a fire that “damages a building, or any structure or erection appurtenant to or joining any building, or any wharf, dock, machine, engine, automobile, or other motor vehicle, watercraft, aircraft, bridge, or trestle, or hay, grain, crop, or timber, whether cut or standing or any range land, or pasture land, or any fence, or any lumber, shingle, or other timber products, or any property.” RCW 9A.48.030(1) (emphasis added).

The analysis in Westling was straightforward: [T]he statute refers, in relevant part, to the causing of “a fire” that damages “any automobile.” “Any” means “every” and “all.” State v. Smith, 117 Wn.2d 263, 271, 814 P.2d 652 (1991). Thus, under the plain language of the statute, one conviction is appropriate where one fire damages multiple automobiles, i.e., by use of the word “an/’ the statute speaks in terms of “ever/’ and “all” automobiles damaged by the one fire. 145 Wn.2d at 611-12.

The Court of Appeals in the present case observed that, in contrast to the arson statute, the reckless endangerment statute proscribes conduct that places at risk not simply any person but “another person.” RCW 9A.36.050(1) (emphasis added). In State v. DeSantiago, 149 Wn.2d 402, 68 P.3d 1065 (2003), we applied the Westling analysis to the use of “a,” rather than “any,” in weapon enhancement statutes to support our holding that the plain language of the statutes required a sentence enhancement for each weapon carried during an offense. Id. at 419.

The Court of Appeals thus concluded that, by the plain language of RCW 9A.36.050(1), “the legislature intended one unit of prosecution per victim.” 117 Wn. App. at 470; see Commonwealth v.

Frisbie, 506 Pa. 461, 466, 485 A.2d 1098 (1984) (concluding that reckless endangerment statute, which prohibited conduct jeopardizing “ ‘another person,’ ” “was written with regard to an individual person being placed in danger of death or serious bodily injury, and that a separate offense is committed for each individual person placed in such danger”). ¶13 While the plain language analysis of Westling supports the conclusion of the Court of Appeals in the present case, significant additional support may be derived from a broader consideration of the nature of reckless endangerment.

Likewise faced with determining the unit of prosecution in a statute prohibiting conduct recklessly endangering “another person,” the Maryland Court of Special Appeals took “a moment to stand on the mountaintop and look down on the larger field of the criminal law in perspective.” Albrecht v. Maryland, 105 Md. App. 45, 58, 658 A.2d 1122 (1995). Recalling the common categorization of crimes into those against property, habitation, public morals, and persons, the Maryland court defined reckless endangerment as “quintessentially a crime against persons.” Id.

The court reached that conclusion by considering the relationship between reckless endangerment, an inchoate crime, and “the entire range of consummated crimes from which . . . [it] is either one step removed (no actual harm) or two steps removed (neither actual harm nor intent to harm).” Id. at 59. As the Albrecht court observed, those consummated crimes—“homicides and batteries and assaults, simple and aggravated, intended and unintended”—“are classically crimes against the person”; thus, “[i]t is even so with this newest inchoate addition to that inherently dangerous family.” Id.

Consistent with this principle that an inchoate crime draws its essential character from the consummated form of the crime, the State argued that reckless endangerment should be treated the same as vehicular homicide or vehicular assault. As the State observed, reckless endangerment makes a defendant responsible for subjecting another person to the risk of death or serious injury, whereas the consummated crimes of vehicular homicide or vehicular assault are chargeable when the reckless behavior actually causes a person’s death or serious injury. See RCW 9.94A.589.

In the State’s view, given that “multiple counts of vehicular homicide and vehicular assault may be charged where multiple victims occupy the same vehicle,” it would be anomalous to conclude, as Graham would have this court do, that only one count of reckless endangerment may be charged where multiple vehicle occupants have been put at substantial risk. State v. Bourne, 90 Wn.

App. 963, 973, 954 P.2d 366 (1998). ¶14 In light of the plain language of RCW 9A.36.050(1), as well as the nature of reckless endangerment as a crime against the person, we hold that the legislature has authorized the imposition of multiple sentences where a defendant’s reckless act endangers multiple individuals. Because the unit of prosecution for the crime of reckless endangerment is each person endangered, not each endangering act, the State was entitled to charge Graham with three counts of reckless endangerment.

We affirm the Court of Appeals. ¶15 Graham’s Challenge to Juvenile Court’s Finding of Recklessness. As set forth above, “[a] person is guilty of reckless endangerment when he or she recklessly engages in conduct. . . that creates a substantial risk of death or serious physical injury to another person.” RCW 9A-.36.050(1) (emphasis added). RCW 9A.08.010(l)(

c) provides that “[a] person is reckless or acts recklessly when he knows of and disregards a substantial risk that a wrongful act may occur and his disregard of such substantial risk is a gross deviation from conduct that a reasonable man would exercise in the same situation.” (Emphasis added.) Because the conclusion that whether “an act is reckless depends on both what the defendant knew and how a reasonable person would have acted knowing these facts,” the statutory definition has been described as “including] a subjective and objective component.” State v. R.H.S., 94 Wn.

App. 844, 847, 974 P.2d 1253 (1999). ¶16 With regard to the three charged counts of reckless endangerment, the juvenile court concluded that the State had proved beyond a reasonable doubt that Graham “acted recklessly.” CP at 246. Graham contends, however, that the findings failed to establish the subjective component of the statutory definition. The relevant factual findings are as follows: 12. Prior to the accident, the respondent had passed driver’s education, in which the respondent had been instructed as to the hazards of driving at excessive speeds, in an inattentive manner, and recklessly.

She knew that not following these instructions created a dangerous situation. She had driven on numerous occasions, and was considered a safe driver. The respondent testified that prior to March 16, 2001, she had on occasion been a passenger in her boyfriend’s car while he was speeding down straight roads, and that his excessive speed on those instances made her fearful. Given the instruction she received, her previous history of safe driving, and her prior experiences, the respondent knew the risks inherent in driving fast or in an unsafe manner. 13.

Although the respondent knew that driving at high speeds, not paying attention to the road, and playing games with the wheel were unsafe and could cause an accident, the Court cannot find that she had actual knowledge of the risks inherent in the particular dangerous situation she created on March 16th. 14. A reasonable person in a similar situation would have recognized the risks inherent in the driving behavior in which the respondent engaged. As such, even if she did not have actual knowledge of the specific risks, she had constructive knowledge of those risks. CP at 245-46, FF 12-14 (emphasis added).

The juvenile court thus explicitly found that Graham “knew that” driving at high speeds, inattentively, or recklessly “created a dangerous situation”; that she knew the risks inherent in driving fast or in an unsafe manner”; and that she “knew that driving at high speeds, not paying attention to the road, and playing games with the wheel were unsafe and could cause an accident.” CP at 245-46, FF 12-13 (emphasis added).

The findings that Graham “knew” that her conduct “created a dangerous situation” and “could cause an accident” satisfy the knowledge component of the statutory definition of recklessness: “A person . . . acts recklessly when he knows of and disregards a substantial risk that a wrongful act may occur.” RCW 9A.08.010(l)(c). f 17 Graham incorrectly claims that “[t]he juvenile court found that [she] did not understand the risks involved in her driving.” Suppl.

Br. of Pet’r at 14; see also Pet. for Review at 12 (stating that “the juvenile court specifically found that [Graham] was not aware of the risks involved in her conduct”); Appellant’s Opening Br. at 38 (referring to “[t]he juvenile court’s factual finding that [Graham] did not know the risks of her dangerous driving”).

Graham’s characterization of the juvenile court’s findings rests on the court’s unnecessary distinction between, on the one hand, Graham’s actual knowledge of the risks inherent in high-speed, inattentive, and foolhardy driving and, on the other hand, Graham’s lack of actual knowledge as to how “the particular dangerous situation she created on March 16th” would unfold. CP at 246, FF 13 (emphasis added). In other words, while RCW 9A.08.010(l)(

c) requires actual knowledge “that a wrongful act [here, the loss of control over the automobile] may occur,” the statute does not require actual knowledge that the loss of control will result in the skidding and rolling of the car and the violent ejection of its passengers. The juvenile court provided the unnecessary conclusion that, even if it could not find that Graham knew the “specific risks,” “[a] reasonable person in a similar situation would have recognized the risks inherent in the driving behavior in which the respondent engaged.” CP at 246, FF 14.

For purposes of the subjective knowledge component of recklessness, this additional finding that Graham also had constructive knowledge of the “particular” or “specific” accident is not essential. It has no effect on the very clear findings that Graham “knew” that her conduct—“playing with the steering wheel. . . coupled with her speed and inattention to the road”—“could cause an accident.” CP at 245, 246, FF 8, 13. Such knowledge meets the statutory requirements of RCW 9A.08.010(l)(c).

CONCLUSION ¶18 By prohibiting conduct that recklessly endangers “another person,” the legislature indicated that the unit of prosecution for reckless endangerment is not the endangering conduct but the particular person placed at risk. Establishing that Graham “knew” that her conduct “created a dangerous situation” and “could cause an accident,” CP at 245-46, FF 12-13, the juvenile court’s factual findings support its conclusion of law that Graham acted “recklessly,” as that term is defined in RCW 9A.08.010(l)(c). We affirm the Court of Appeals. Alexander, C.J.; C.

Johnson, Bridge, and Fairhurst, JJ.; and Ireland, J. Pro Tern., concur. See Orange, 152 Wn.2d at 816 n.4 (citing State v. Calle, 125 Wn.2d 769, 777, 888 P.2d 155 (1995); State v. Roybal, 82 Wn.2d 577, 580-81, 512 P.2d 718 (1973); Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932)). The dissent asserts that “Westling is of little guidance because the reckless endangerment statute does not use either the word or ‘a’ to describe the person or persons endangered.” Dissent at 413.

To the contrary, Westling is on point precisely because the reckless endangerment statute does not refer to “any other person” but refers instead to “another person.” By common understanding and as a historical fact, the pronoun “another” is a compound of “an + other,” and the indefinite

article “an” means “a,” the letter n being an addition before a following vowel sound. Webster’s Third New International Dictionary of the English Language 89, 75 (2002).