State Of Washington v. Dylan James Downy , 447 P.3d 588 ( 2019 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, )
) No. 78004-2-1
Respondent, )
) DIVISION ONE
v. )
) PUBLISHED OPINION
DYLAN JAMES DOWNEY, )
)
Appellant. ) FILED: August 19, 2019
)
LEACH, J. — Dylan James Downey appeals his conviction for vehicular
assault. He raises two constitutional issues. First, he claims that the court
violated his right to present a defense by refusing his request to instruct the jury
that one alternative means of committing vehicular assault is a lesser-included
offense of committing the same crime by a different means. This claim fails
because the lesser-included-offense rule requires a comparison of the elements
of two separate crimes and does not apply to different means of committing a
single crime.
Second, he claims that the court violated his right to notice of the offense
charged when the trial court instructed the jury on an uncharged means of
committing vehicular assault after he asked the court to instruct on this means as
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a lesser-included offense. Because Downey fails to show a lack of notice or
prejudice, we reject this claim too. We affirm.
FACTS
In July 2014, Downey gave his friend, Brittney Wright, a motorcycle ride.
Downey was driving over the speed limitl when he failed to negotiate a curve and
crashed, ejecting him and Wright from the motorcycle. The lower half of one of
Downey's legs was severed, and Wright had compound fractures of both legs.
The State charged Downey with possession of a stolen vehicle and vehicular
assault committed by the alternative means of operating a vehicle in a reckless
manner.2
At trial, Downey asked the court to instruct the jury on a second means of
committing vehicular assault, operating a vehicle with disregard for the safety of
others, which he characterized as the "lesser-included offense" of the reckless
manner prong. The trial court ruled that disregard for the safety of others prong
was not a lesser-included offense of the reckless manner prong but, rather, an
alternative means of committing vehicular assault. The court instructed the jury
on both alternative means. The jury acquitted Downey of possession of a stolen
1 The speed limit was 35 m.p.h.; Downey's expert testified that Downey
was most probably driving between 45 and 50 m.p.h.; responding officer Craig
Davis testified that Downey's speed was between 49 and 73 m.p.h.; Wright
testified that not long before the crash, the speedometer showed 100 m.p.h.
2 Before trial, the State agreed not to pursue the impairment alternative of
vehicular assault that appears in the amended information.
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vehicle but found him guilty of vehicular assault. The jury's answers to the
special interrogatory verdict form showed that it was not unanimous about the
means. The court entered a conviction for the alternative means of disregard for
the safety of others. Downey appeals.
ANALYSIS
Downey asserts that the trial court violated his due process rights by not
giving the jury his proposed lesser-included-offense instruction and violated his
constitutional right to notice when it instead instructed the jury on an uncharged
alternative means. We disagree.
First, Downey contends that the trial court erred in not instructing the jury
that vehicular assault committed by the alternative means of disregard for the
safety of others was a lesser-included offense of vehicular assault committed by
the alternative means of reckless manner. A person commits vehicular assault if
he causes substantial bodily harm to another while driving a vehicle (1) in a
reckless manner,(2) while under the influence of intoxicating liquor or any drugs,
or (3) with disregard for the safety of others.3 The parties agree that vehicular
assault is an alternative means statute.4 This means that vehicular assault is a
single crime that can be committed in three different ways.
3 RCW 46.61.522(1)(a)-(c).
4 See State v. Rowenkamp, 153 Wn.2d 614, 626, 106 P.3d 196 (2005).
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At issue here are alternative means (1) and (3). "Reckless manner"
means "'driving in a rash or heedless manner, indifferent to the consequences.'"5
"'Disregard for the safety of others" is "an aggravated kind of negligence, falling
short of recklessness, but more serious than ordinary negligence."6
The due process clause of the Fourteenth Amendment requires that
criminal defendants have a meaningful opportunity to present a defense.7
"Parties are entitled to instructions that, when taken as a whole, properly instruct
the jury on the applicable law, are not misleading, and allow each party the
opportunity to argue their theory of the case."5
Under the two-part test our Supreme Court established in State V.
Workman,9 a defendant is entitled to a lesser-included-offense instruction if (1)
each element of the lesser offense is a necessary element of the offense
charged (the "legal prong") and (2) the evidence in the case supports an
inference that the defendant committed only the lesser crime (the "factual
prong"). This court reviews the trial court's determination of the legal prong de
novo and the factual prong for an abuse of discretion.1°
5 Romenkamp, 153 Wn.2d at 618.
6 State v. Jacobsen,78 Wn.2d 491, 498, 477 P.2d 1 (1970).
7 California v. Trombetta, 467 U.S. 479, 485, 104 S. Ct. 2528, 81 L. Ed. 2d
413(1984).
8 State v. Redmond, 150 Wn.2d 489, 493, 78 P.3d 1001 (2003).
9 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978); State v. Berlin, 133 Wn.2d
541, 545-46, 947 P.2d 700 (1997).
18 State v. Walker, 136 Wn.2d 767, 771-72, 966 P.2d 883(1998).
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But, here, we need not apply the Workman test because Downey does not
establish that Workman's lesser-included-offense analysis applies to alternative
means of the same offense as opposed to separate offenses. The test requires
a comparison of the elements of two separate crimes. This case involves only
one crime. And Workman does not involve a comparison of the penalties for
different crimes.
In State v. Huven Bich Nguyen,11 our Supreme Court examined RCW
10.61.006, the "[Uncluded offenses" statute. RCW 10.61.006 states, "[T]he
defendant may be found guilty of an offense the commission of which is
necessarily included within that with which he or she is charged in the indictment
or information." In holding that physical control while under the influence of
alcohol or drugs is an included offense of driving while under the influence of
alcohol or drugs, the court stated, "[There is no requirement that an included
offense must have a lesser penalty than the charged offense."12 Both the
included offenses statute and our Supreme Court thus define a "lesser-included
offense" as an offense separate from the charged offense. Neither the statute
nor the Workman test looks at penalties.
Downey cites no authority holding that an alternative means of committing
the same crime as the charged offense may qualify as a lesser-included offense
11 165 Wn.2d 428, 437-38, 197 P.3d 673(2008).
12 Huven Bich Nguyen, 165 Wn.2d at 438-39(emphasis added).
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No. 78004-2-1/6
of the charged offense. He offers no persuasive explanation for how a single
crime could be a lesser-included crime of itself. Nor does he offer any policy
reason for this result.
We hold that because vehicular assault committed by the alternative
means of reckless manner and by the alternative means of disregard for the
safety of others are alternative means of committing the same crime, not
separate crimes, disregard for the safety of others is not a lesser-included
offense of reckless manner.
Even if disregard for the safety of others were a lesser-included offense of
reckless manner, the trial court did, in fact, instruct the jury on disregard for the
safety of others as an alternative means. Downey cites no case requiring a court
to affirmatively instruct a jury that an alternative crime it can consider is called "a
lesser-included offense." And the special verdict form answers preclude any jury
unanimity argument. So he shows no harm.
The special verdict form shows that at least one juror found that Downey
committed that offense by driving a vehicle in a reckless manner and causing
substantial bodily harm. The jurors not agreeing with this finding found that
Downey committed the offense by driving a vehicle with disregard for the safety
of others and causing substantial bodily harm. Since a finding of driving in a
reckless manner includes a finding of driving a vehicle with disregard for the
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No. 78004-2-1/ 7
safety of others,13 all jurors agreed that Downey at least had operated a vehicle
with disregard for the safety of others and caused substantial bodily injury. One
or more jurors decided that he had committed that crime but also did so
recklessly.
Second, Downey claims that because the trial court instructed the jury that
disregard for the safety of others, a means the State never charged, was an
alternative means of vehicular assault, he did not receive his constitutionally
mandated notice. The Sixth Amendment to the United States Constitution14 and
article I, section 22 of the Washington Constitution15 require that all charges be
included in a charging document to afford the defendant notice.16 Downey relies
on our Supreme Court's ruling in State v. Pelkev,17 adopting a per se rule that "[a]
criminal charge may not be amended after the State has rested its case in chief
unless the amendment is to a lesser degree of the same charge or a lesser
included offense."
13 State v. Ferguson, 76 Wn. App. 560, 569, 886 P.2d 1164 (1995).
14 "In all criminal prosecutions, the accused shall. . . be informed of the
nature and cause of the accusation." U.S. CONST. amend. VI.
15 "In criminal prosecutions the accused shall have the right. . . to demand
the nature and cause of the accusation against him." WASH. CONST. art. I, § 22.
16 State v. Kiorsvik, 117 Wn.2d 93, 97, 812 P.2d 86 (1991).
17 109 Wn.2d 484, 491, 745 P.2d 854 (1987); see State v. Schaffer, 120
Wn.2d 616, 620, 845 P.2d 281 (1993) ("[I]n Pelkev, this court adopted a per se
rule limiting the ability to amend an information once the State has rested its
case" unless an exception applies.).
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Regardless of whether disregard for the safety of others is a lesser-
included offense of reckless manner, Pelkev does not apply. Here, the trial court
entered a conviction for vehicular assault committed by the alternative means of
disregard for the safety of others. RCW 9.94A.515 assigns reckless manner a
seriousness level of four and disregard for the safety of others a seriousness
level of three. The court thus entered a conviction for the less serious alternative
means. Further, Pe!key states that its per se rule does not apply to lesser-
included offenses. In addition, the State did not ask to amend the information;
the trial court instructed the jury on the alternative means of disregard for the
safety of others following Downey's request for a lesser-included instruction on
that offense. Downey does not show that he did not receive notice or that any
lack of notice prejudiced him.
Statement of Additional Grounds for Review
In Downey's statement of additional grounds for review, he makes three
claims based on the fact that the jury was not unanimous as to either of the
alternative means of vehicular assault. He claims that the jury implicitly acquitted
him of vehicular assault, double jeopardy bars his retrial because of this implied
acquittal, and the trial court violated his right to a jury trial. But the case that he
relies on examines whether double jeopardy bars the State from retrying a
defendant on the greater charge when a jury convicted the defendant of the
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No. 78004-2-1 / 9
lesser charge and was silent as to the greater charge.18 Here, the trial court
instructed the jury on alternative means, not greater and lesser offenses. And
our Supreme Court has held that "when there is sufficient evidence to support
each of the alternative means of committing the crime, express jury unanimity as
to which means is not required."18 Although Downey states, Tit seems clear that
there was insufficient evidence introduced at trial to establish the alternative
means of reckless manner and disregard for the safety of others," he does not
support this assertion with evidence from the record. We reject Downey's claims.
CONCLUSION
We affirm.
WE CONCUR:
18 Downey cites State v. Linton, 156 Wn.2d 777, 779, 132 P.3d 127 (2006)
(affirming the court of appeals decision that double jeopardy barred the State
from retrying Linton for first degree assault after a jury convicted him of second
degree assault but was not unanimous as to the first degree assault charge).
18 State v. Owens, 180 Wn.2d 90, 95, 323 P.3d 1030 (2014).
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