
    STATE of Washington, Respondent, v. Dean Masao IMOKAWA, Appellant.
    No. 49995-9-II
    Court of Appeals of Washington, Division 2.
    FILED July 24, 2018
    Mark W. Muenster, Attorney at Law, 1010 Esther St., Vancouver, WA, 98660-3028, Steven Whitman Thayer, Steven W. Thayer, 112 W 11th St. Ste. 200, Vancouver, WA, 98660-3359, for Appellant.
    Lauren Ruth Boyd, Attorney at Law, 1013 Franklin St., Vancouver, WA, 98660-3039, for Respondent.
    PUBLISHED OPINION
   Sutton, J.

¶ 1 Dean M. 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.

¶ 2 Imokawa 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.

FACTS

¶ 3 On 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.

¶ 4 At 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.

¶ 5 The 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.

¶ 6 Grier 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.

¶ 7 Imokawa 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.

¶ 8 John 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.

¶ 9 Steven 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.

¶ 10 Detective 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 truck.

¶ 11 At 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 of, another.
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 anticipated.
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 case.

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;exercise ordinary care. Ordinary negligence is the doing of some act which a reasonably careful person would not do under the same or similar circumstances or the failure to do something which a reasonably careful person would have done under the same or similar circumstances. Ordinary negligence in operating a motor vehicle does not render a person guilty of vehicular homicide.

CP at 55.

¶ 38 Here, there was sufficient evidence to prove that Imokawa operated his vehicle with disregard for the safety of others because the jury is permitted to consider all the circumstances leading to Imokawa's lane change to determine whether Imokawa's misjudgment of space for the lane change was aggravated negligence. The State presented evidence that Imokawa was driving faster than the other vehicles on the road. And Grier testified that Imokawa pulled up dangerously close behind him on two occasions prior to attempting the lane change. Within the entire context of Imokawa's driving the morning of the collision, there was sufficient evidence for the jury to find that Imokawa operated his vehicle with disregard for the safety of others.

¶ 39 We hold that the jury instructions in this case violated due process by failing to inform the jury that the State has the burden to prove the absence of a superseding cause beyond a reasonable doubt. Accordingly, we reverse Imokawa's convictions for vehicular homicide and vehicular assault and remand to the trial court for further proceedings consistent with this opinion.

We concur:

Maxa, C.J.

Worswick, J. 
      
      This is the approach adopted for self-defense instructions. The instruction defining self-defense states,
      The State has the burden of proving beyond a reasonable doubt that the homicide was not justifiable. If you find that the State has not proved the absence of this defense beyond a reasonable doubt, it will be your duty to return a verdict of not guilty.
      11 WPIC 16.02, at 248. However, the "to convict" instructions do not change because the defendant claims self-defense. See e.g. 11 WPIC 26.02, at 383; 11 WPIC 26.04, at 388.
     