State of Washington v. Genaro Vasquez Visoso ( 2021 )

FILED
SEPTEMBER 28, 2021
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 37413-1-III
Respondent, )
)
v. )
)
GENARO VAZQUEZ VISOSO, ) UNPUBLISHED OPINION
)
Appellant. )
STAAB, J. — A driver is guilty of vehicular homicide if a person dies “within three
years as a proximate result of injury proximately caused . . . by the driver [who] was
operating a motor vehicle: (a) [w]hile under the influence of intoxicating liquor or any
drug . . .; or (b) [i]n a reckless manner; or (c) [w]ith disregard for the safety of others.”
RCW 46.61.520. On the afternoon of October 20, 2017, while reaching for his cell
phone, Genaro Visoso ran a stop sign while speeding into arterial cross traffic and
collided with the vehicle of Kelly Norris killing him instantly. Mr. Visoso was
transported to the hospital where health care workers observed that he was intoxicated.
The State charged Mr. Visoso with vehicular homicide under all three alternative means.
Collision reconstruction and intoxication experts testified at trial. The jury unanimously
found Mr. Visoso guilty on the reckless and disregard prongs but were not unanimous as
No. 37413-1-III
State v. Visoso
to the intoxication prong. Mr. Visoso timely appealed arguing that there was insufficient
evidence to convict because reaching for his cell was only ordinary negligence. Finding
the evidence sufficient, we affirm.
FACTS
On October 20, 2017, Mr. Visoso was driving on Road K Northwest in rural
Quincy, Washington. At the same time, Mr. Norris was driving on east-west Road 9
Northwest in his assigned lane. The speed limit on Road 9 is 55 m.p.h. The speed limit
on road K is 50 m.p.h. Where the two roads intersect, Road K has a stop sign and Road 9
does not. On Road K, 729 feet prior to the intersection stop sign, there is a “stop ahead”
sign. On that day, at approximately 3:15 p.m., Mr. Visoso without braking failed to stop
at the Road K stop sign and T-boned the front driver side of Mr. Norris’ vehicle. Both
cars were going approximately the same speed before impact. Both cars flipped and
rolled southeast into the field. Mr. Visoso’s car caught fire. Id.1 Mr. Norris died at the
scene of the collision.
Mr. Visoso was transported approximately seven miles to the Quincy Valley
Medical Center due to his injury.2 One of the transporting emergency medical
technicians (EMTs) noticed that Mr. Visoso’s breath smelled like alcohol and informed
1
A passer-by stopped and pulled Mr. Visoso out of his burning car but did not see
the collision. Other than the defendant, there were no eye-witnesses to the collision.
2
Mr. Visoso had a broken leg, rib fractures, a broken wrist, a broken foot, internal
lacerations to his liver and spleen, and other lesser injuries.
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the deputy on duty. At some time prior to arrival at the hospital around 4:15 p.m.,
another EMT drew Mr. Visoso’s blood and sent it for testing at the hospital laboratory.
The hospital laboratory result indicated 0.082 grams per 100 milliliters blood alcohol
which the treating doctor considered elevated.3 At trial, the treating doctor testified
regarding the impairing effects of alcohol including slowed reaction times, altered
cognitive ability and affected memory, and the rate at which alcohol dissipates from the
body. He noted that pain masks impairment.
A trained drug recognition expert officer responded to the hospital and contacted
Mr. Visoso where she noted the odor of alcohol, slurred speech and slow response. She
was unable to get another blood sample from Mr. Visoso due to his medical condition
which required helicopter transport to Confluence Health Central Washington Hospital
(CHCW). The attending orthopedic surgeon at CHCW noted that Mr. Visoso slurred his
words, smelled of alcohol and had an elevated blood alcohol level resulting in the
medical conclusion that Mr. Visoso was intoxicated and could not give informed consent
to surgery. The surgeon felt that concussion, or the administration of Fentanyl for pain
would not explain the signs of intoxication observed at CHCW.
3
Mr. Visoso’s rebuttal expert testified that the blood alcohol conversion factor
between serum blood and whole blood was 1.20 and would modify the 0.082 serum result
to 0.068 whole blood level. Hospitals use serum results and the Washington State
Toxicology Laboratory uses whole results.
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The State charged Mr. Visoso with vehicular homicide under all three prongs:
operating a vehicle (1) in a reckless manner, (2) while under the influence of intoxicating
liquor or any drug defined in RCW 46.61.502, or (3) with disregard for the safety of
others.
At trial, officers testified to Mr. Visoso’s statements, and the State played Mr.
Visoso’s redacted body camera statement, recorded six days after the collision. He
indicated that at the time of the collision he was driving between 53 and 58 m.p.h., which
is above the posted 50 m.p.h. speed limit. He told investigating officers that the collision
occurred because he became distracted when he reached for his cell phone on the vehicle
floor. He admitted that he would typically pull over in a situation like this, but did not
this time. When asked how he could have avoided the collision, he indicated “[p]ay more
attention to the road.” Report of Proceedings (RP) at 695. He denied drinking alcohol
the day of the collision. He estimated that he had previously traveled Road K eight to ten
times but denied being aware of any road signs. On the day of the collision, he indicated
that he did not see the “stop ahead” warning sign or the stop sign at the intersection with
Road 9. RP at 690. Mr. Visoso indicated that his vehicle was in good working order and
that he has good eyesight and does not need corrective lenses.
At trial, the accident reconstructionist assumed that both vehicles were moving at
their respective speed limits. The day of collision was clear with dry road conditions. He
calculated it would have taken Mr. Visoso approximately 10 seconds to drive from the
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warning sign to the stop sign. He also indicated that a person with good vision could see
the warning sign from approximately 1500 feet further up the road. This visibility point
is approximately 2200 feet from the actual intersection stop sign. He concluded that
visibility of the intersection was “great.” RP at 572. A driver traveling the posted speed
limit would have had about 30 seconds from the warning visibility point until the
intersection in which to take action.
The jury found Mr. Visoso guilty of vehicular homicide. By special verdict, they
indicated unanimous guilt under the reckless manner and disregard prongs. The jury was
not unanimous with regard to operating a vehicle under the influence of intoxicants
prong. Mr. Visoso timely appealed.
ANALYSIS
Mr. Visoso argues that there is insufficient evidence to support his conviction for
vehicular homicide. He contends that reaching for his cell phone constitutes ordinary
negligence which is insufficient to support vehicular homicide. We disagree and find the
evidence sufficient. The jury was not required to accept Mr. Visoso’s explanation of the
accident. The evidence presented at trial is sufficient to support the jury’s finding that
Mr. Visoso drove in a reckless manner and with disregard for the safety of others.
Sufficiency of the evidence is reviewed de novo. State v. Rich, 184 Wn.2d 897,
903, 365 P.3d 746 (2016). Washington follows the standard of review for a challenge to
the sufficiency of the evidence as set out in Jackson v. Virginia. State v. Green, 94
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Wn.2d 216, 221, 616 P.2d 628 (1980). When reviewing a challenge to the sufficiency of
the evidence to prove the elements of an offense, we must determine “whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). The
purpose of this standard of review is to ensure that the trial court fact finder rationally
applied the constitutional standard required by the due process clause of the Fourteenth
Amendment to the United States Constitution, which allows for conviction of a criminal
offense only upon proof beyond a reasonable doubt. Jackson, 443 U.S. at 317-18.
In claiming insufficient evidence, the defendant necessarily admits the truth of the
State’s evidence and all reasonable inferences that can be drawn from it. State v. Salinas,
119 Wn.2d 192, 201, 829 P.2d 1068 (1992). These inferences “must be drawn in favor of
the State and interpreted most strongly against the defendant.” Id. Further, we must
defer to the trier of fact for purposes of resolving conflicting testimony and evaluating the
persuasiveness of the evidence. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850(1990). The presence of countervailing valuation evidence is irrelevant to a challenge to
the sufficiency of evidence because the evidence is viewed in the light most favorable to
the State. State v. Sweany, 174 Wn.2d 909, 918, 281 P.3d 305 (2012).
The vehicular homicide statute provides that a driver is guilty of vehicular
homicide if a person dies within three years as a proximate result of an injury proximately
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caused by a driver who operated a motor vehicle: (a) while under the influence of
intoxicating liquor or any drug as defined in RCW 46.61; or (b) in a reckless manner; or
(c) with disregard for the safety of others. RCW 46.61.520(1), (2). In a vehicular
homicide case, the State must prove a causal connection between the defendant’s conduct
and the resulting death. State v. Giedd, 43 Wn. App. 787, 791-92, 719 P.2d 946 (1986).
Jurors are not required to be unanimous on which of the three means the State has
proved, provided the alternate means are not repugnant to each other and there is
substantial evidence to support each of these means. State v. Randhawa, 133 Wn.2d 67,
73-74, 941 P.2d 661 (1997) (vehicular homicide conviction upheld where sufficient
evidence of defendant consuming alcohol before speeding and swerving off the road
demonstrated both intoxication and reckless prongs). If there is sufficient evidence to
support each alternative means submitted to the jury, the conviction will be affirmed
because we infer that a rational jury would rest its decision on a unanimous finding as to
the means. Id.4
Mr. Visoso argues that his actions were negligent, not reckless. The term “in a
reckless manner” is not defined in either the vehicular homicide statute, RCW 46.61.520,
4
See also State v. Barefield for this premise. 47 Wn. App. 444, 458-60, 735 P.2d
1339 (1987) (the court found sufficient evidence to convict on all three prongs where the
defendant caused a collision after crossing over the center line while intoxicated with a
blood alcohol level of 0.18 and admitted to drinking beforehand), aff’d 110 Wn.2d 728,
756 P.2d 731 1988).
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or the vehicular assault statute, RCW 46.61.522, nor is the term defined elsewhere in the
motor vehicle code. State v. Roggenkamp, 153 Wn.2d 614, 621, 106 P.3d 196 (2005).
The Roggenkamp court re-affirmed the settled definition of “driving in a reckless
manner” under the vehicular assault and vehicular homicide statutes as driving in a “rash
or heedless manner, indifferent to the consequences.” Id. at 621-22.5 Where Mr.
Roggenkamp’s actions caused the collision, the concurring bad actions of the victim
driver did not render the evidence insufficient. Id. at 630-31. Mr. Roggenkamp collided
with the victim’s car after passing into oncoming traffic at more than twice the speed
limit. Id. at 618. His attempts to brake caused his car to skid into the victim’s vehicle.
Id. n.9. The victim’s 1.3 blood alcohol concentration and failure to stop at a stop sign
immediately prior to the collision did not mitigate the causation. Id. n.9.
Mr. Visoso argues that “driving in a reckless manner” as defined by Roggenkamp
requires proof of egregious actions that were not present in his case. His argument fails
to acknowledge that evidence of consuming alcohol is relevant to show driving in a
reckless manner even if the jury does not agree that the defendant was intoxicated. Many
of the numerous cases cited by Mr. Visoso actually support the existence of sufficient
evidence in the present case. In State v. Fateley, the court found sufficient evidence of
5
The meaning of reckless for the purposes of the vehicular homicide standard is
not the same meaning of reckless in the reckless driving statute and the two should not be
confused. Roggenkamp, 153 Wn.2d at 623.
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reckless driving to support a conviction under the former negligent homicide statute
where the defendant was intoxicated and drove his motorcycle across the oncoming lane
of traffic of a road he was familiar with and no other irregularity existed on the road to
explain his driving. 18 Wn. App. 99, 103, 566 P.2d 959 (1977). Notably, evidence of
intoxication is relevant to proving reckless driving. Id. at n.5; See also State v. Travis, 1
Wn. App. 971, 974, 465 P.2d 209 (1970) (evidence that the defendant had been driving
was relevant to charge of reckless driving). Here, the jury’s lack of unanimity on the
intoxication prong does not mean they were precluded from considering evidence of
drinking under the reckless prong.
In State v. Hill, the defendant’s intoxication, and driving the wrong way on the
freeway before collision without attempting to avoid other cars, together constituted
driving “in a reckless manner” within the meaning of the vehicular assault statute. 48
Wn. App. 344, 348, 739 P.2d 707 (1987). State v. Baker involved the former negligent
homicide statute RCW 46.56.040.6 56 Wn.2d 846, 849, 355 P.2d 806 (1960). In Baker,
the court held that there was sufficient evidence to support both the intoxication and
reckless prongs of the statute where the defendant admitted to drinking, the officer
6
RCW 46.56.040 was recodified as the current vehicular homicide statute RCW
46.61.520 in 1965. LAWS OF 1965, Ex. Sess., ch. 155, § 92; State v. Partridge also dealt
with the former negligent homicide statute but “reckless” was not defined by case law at
the time of the decision. 47 Wn.2d 640, 645, 289 P.2d 702 (1955) (jury instructions
permitting conviction on ordinary negligence for driving in a reckless manner deemed
improper and disregard prong not addressed).
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testified to Baker’s intoxication, and evidence showed the defendant driving at a high rate
of speed in a crowded intersection before swerving and striking the victim pedestrian. Id.
at 861.
In this case, Mr. Visoso admits to driving over 50 m.p.h. on a two-lane road and
reaching for his cell phone on the floor. While he claims that he was only “momentarily”
distracted, the evidence demonstrates that he had at least 30 seconds to see warning signs
and the approaching intersection. On a clear day with no visibility limitations, he blew a
stop without slowing or braking, and hit Mr. Nelson’s vehicle at full speed. This
evidence supports a finding that Mr. Visoso’s distraction was more than “momentary.”
In combination with evidence that he had alcohol in his system, the jury could find that
Mr. Visoso was driving in a rash or heedless manner, indifferent to the consequences.
This evidence also supports a conviction under the third prong of the statute: that
Mr. Visoso drove a motor vehicle “with disregard for the safety of others.” RCW
46.61.520(1)(c). In State v. Eike, the court defined the disregard prong of vehicular
homicide, distinguishing it from the reckless prong standard. 72 Wn.2d at 762-63.
Disregard for the safety of others “implies an aggravated kind of negligence or
carelessness, falling short of recklessness but constituting a more serious dereliction than
the hundreds of minor oversights and inadvertences encompassed within the term
“‘negligence.’” . . . . To drive with disregard for the safety of others, consequently, is a
greater and more marked dereliction than ordinary negligence. It does not include the
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many minor inadvertences and oversights which might well be deemed ordinary
negligence under the statutes.” Id. at 765-66.
In State v. Jacobsen, 78 Wn.2d 491, 498, 477 P.2d 1 (1970), the court found that
this standard was not vague and concisely reaffirmed it stating that disregard for safety
implies “an aggravated kind of negligence, falling short of recklessness, but more serious
than ordinary negligence.” Id. Later case law clarified the disregard prong. “Some
evidence of a defendant’s conscious disregard of the danger to others is necessary to
support a charge of vehicular homicide.” State v. Vreen, 99 Wn. App. 662, 994 P.2d 905(2000) (juror peremptory challenge denial was reversible error and evidence ruling
erroneous where victim’s relationship to defendant was relevant to “disregard”), aff’d,
143 Wn.2d 923, 26 P.3d 236 (2001), abrogated by Rivera v. Illinois, 556 U.S. 148, 129 S.
Ct.1446, 173 L. Ed. 2d 320 (2009).
In this case, neither party cites any cases involving cell phone distraction. While
none exists in Washington, numerous exist in Texas. In Montgomery v. State, the court
found that evidence was sufficient to support a conviction for criminally negligent
homicide where the defendant caused a collision of three vehicles while driving her
vehicle on a highway access road at less than 50 miles per hour, and abruptly changed
lanes across multiple occupied lanes to enter the highway without signaling or looking
while talking on her cell phone. 369 S.W.3d 188, 194 (Tex. Crim. App. 2012). Where
the defendant admitted that using the cell phone had distracted her, the court indicated
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that she ought to have been aware of the substantial and unjustifiable risk created by her
actions. Id. The court noted that the State had no burden to show that driving while
using a cell phone is always risky or dangerous, or that it, of itself, creates a substantial
and unjustifiable risk, only that appellant’s use of a cell phone in this case created a
substantial and unjustifiable risk because it interfered with her ability to maintain a
proper lookout for other vehicles. Id.We agree that, under the facts of this case, prolonged distraction by cell phone
coupled with alcohol consumption provides sufficient evidence to support a jury finding
of more than ordinary evidence. Here, the record clearly supports the facts that Mr.
Nelson was killed because Mr. Visoso ran a stop sign at lethal highway speed without
slowing or braking in anticipation of the intersection despite plainly visible warning
signs. There was evidence that alcohol in his system likely affected his reaction times
and awareness of his surroundings. Mr. Visoso admits that he was distracted and should
have pulled over before reaching for the phone. His distraction and alcohol consumption
posed a great and obvious risk to other drivers on the road and anyone with basic general
awareness of safety would have known to avoid such serious failures.
The evidence was sufficient to support Mr. Visoso’s conviction for vehicular
homicide under the reckless and disregard prong of the statute.
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Affirm.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
_________________________________
Staab, J.
WE CONCUR:
_________________________________
Lawrence-Berrey, J.
_________________________________
Pennell, C.J.
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