State v. Keys

STATE OF WASHINGTON, Respondent, v. JONAS JACKSON KEYS, IV, Appellant.

No. 29768-3-III

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

Dated: October 11, 2012

UNPUBLISHED OPINION

Siddoway, J. — Jonas Keys IV was convicted of vehicular homicide and reckless endangerment arising out of his role as lead driver in a late-night, high-speed road game that resulted in another driver's loss of control and the death of two teenaged passengers. He appeals, claiming there was insufficient evidence that he drove with disregard for the safety of others or that his actions proximately caused the two deaths. The statements and testimony of Keys and other surviving participants, together with reasonable inferences therefrom, provide sufficient support for the challenged findings and conclusions. Keys also challenges the term of his community custody, which the State concedes is excessive. We reverse that part of his sentence for correction on remand andotherwise affirm.

FACTS AND PROCEDURAL BACKGROUND

Two young women, then age 18, were driving around Klickitat around midnight one February night in 2010 when they met up with 22-year-old Jonas Keys IV, known to his friends as "J.J.," and his 17-year-old passenger, Tim Archer.¹ For about an hour the two drivers and their passengers drove in and out of town playing what the driver of the women's car referred to as "car games"—"like hide and seek and tag all mixed together, but with cars." I Report of Proceedings (RP) (Feb. 9, 2011) at 108. One driver would get in front and try to elude the car that was following; the driver of the car in the rear would flash his or her lights or signal when the lead car was found, and then the rear car would take the lead and the game would start over. No passing by one vehicle of the other was involved.

Eventually, with Keys the "leader," the two cars headed out of town, north on State Route 142 toward Goldendale. They were noticed by 19-year-old Ron Prominski, who had himself been driving in town with three male friends: 19-year-old Levi Sanchey was his front seat passenger and two 16-year-old friends were seated in back. Prominski and Sanchey could see that Keys' car and the women's car were chasing or followingeach other and began following them out of town. Prominski knew Keys and the two women; they had all grown up in Klickitat. Keys soon noticed a second pair of headlights behind him and was pretty sure it was Prominski's car.

After the now three-car caravan drove through a residential area outside of town known as "Suburbia," Prominski came up fast behind the women's car, revving his motor and moving toward the left side of the lane behind them; according to the driver of the women's car, it was as if he was challenging her to a race or preparing to pass her. When they reached a straight stretch, Prominski passed the women going 50 to 55 miles per hour in the 40 mile per hour zone. After he passed, the two lead cars accelerated and pulled away from the women, who did not try to keep up. As the driver of the women's car later explained, her car had poor acceleration and would rattle if she went over 60 miles per hour.

Both Archer and Sanchey would provide statements to officers estimating their peak speeds on straight stretches of the road that night at between 70 and 75 miles per hour. Conditions at this time were pitch dark and the sky was overcast. It had rained during the evening, and the pavement was damp with mist on it.

Prominski caught up to Keys, who was then traveling at about 60 miles per hour. Prominski tried to pass but Keys, who wanted to prevent Prominski from passing, put his gas pedal to the floor and "stomp[ed] on it" to keep him from doing so. III RP (Feb. 14,2011) at 427. He successfully prevented Prominski from passing. As the two cars arrived at a series of turns and curves in the state road, both cars slowed down and Prominski pulled back in behind Keys.

The stretch of State Road 142 from Klickitat south of the Ice House campground that Keys and Prominski were then approaching is bordered by a guardrail on the Klickitat River side and a high bank rising up from the roadway with a narrow drainage ditch on the opposite side. The approach to the campground involves a series of curves going slightly downhill with a final somewhat straight stretch, and is a no passing zone.

As they drove through the curves in the no passing zone, Prominski stayed several car lengths behind and did not try again to pass Keys until after they began the final approach to the Ice House campground. At the last curve before the straightaway, posted at 30 miles per hour, Keys was going 40 and Prominski was about a car length behind. Sanchey estimated Prominski might have been driving as fast as 60 to 65 miles per hour as he drove through the last curve behind Keys.

As Prominski came out of the last curve, he began his second effort to pass Keys. For a couple of seconds, Keys and Archer saw the headlights from Prominski's car to the left, behind them, and recognized that he was making a move to pass. After noting that Prominski was approaching him on the left, Keys looked away from the mirror to focus on the road. By the time he looked back, he had lost sight of him. Archer, too, noticedthat Prominski had moved into the oncoming lane at the top of the hill, while still in the last curve, and had moved to within about a foot of the back of Keys' car when it appeared that his lights suddenly went out.

Keys and Archer thought that Prominski was playing games with them by turning off his lights, as he had done before, and they continued driving. Not long thereafter, they pulled over when they could see that the headlights that were by now behind them were those of the women's car, not Prominski's. When the women reached Keys' stopped car, the four realized that Prominski had likely had an accident. They drove back toward the campground area, where they saw Prominski's car on fire in a ditch. The teenaged passengers in the back seat of his car died as a result of injuries sustained in the wreck.

Prominski and Keys were both charged. Keys was charged with two counts of vehicular homicide for the deaths of Prominski's 16-year-old passengers, and with two counts of reckless endangerment for causing substantial risk to Sanchey and Archer.

Keys was tried in a three-day bench trial. All of the surviving participants from the three cars other than Prominski, who invoked the Fifth Amendment, testified. The State also called state patrol trooper Mark Boardman as an expert in accident reconstruction. Trooper Boardman testified that, in his opinion, Prominski had pulled into the oncoming lane to pass, caught a tire in dirt alongside the edge of the road,overcorrected, and veered across the lanes behind Keys. Prominski's car slid along the end of the guardrail, struck a boulder and a tree, and finally came to rest down an embankment near the entrance to the campground. The back end of his car collapsed into the rear passenger area.

Keys admitted that he was speeding that night, but maintained that he was driving in a safe manner. He had driven the road many times, in both directions. He testified that he knew his car could handle the road conditions and that he never exceeded his "comfort zone." III RP (Feb. 14, 2011) at 417.

The trial court found Keys guilty on all counts and entered findings of fact and conclusions of law supporting its determination. It imposed the standard range sentence of 26 months for each vehicular homicide count and 6 months for each reckless endangerment count, to run concurrently. The court also ordered a term of 18 months' community custody. This appeal followed.

ANALYSIS

An individual is guilty of vehicular homicide in Washington

[w]hen 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 . . . if the driver was operating a motor vehicle:

(a) While under the influence of intoxicating liquor or any drug . . .; or

(b) In a reckless manner; or

(c) With disregard for the safety of others.

RCW 46.61.520(1). The court found Keys guilty of vehicular homicide on the third basis: that he had operated his motor vehicle with disregard for the safety of others.

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. A person is reckless or acts recklessly "when he or she knows of and disregards a substantial risk that a wrongful act may occur and his or her disregard of such substantial risk is a gross deviation from conduct that a reasonable person would exercise in the same situation." RCW 9A.08.010(1)(c).

Keys assigns error to (1) a number of the trial court's findings of fact, (2) the court's conclusion of law determining that he was guilty of vehicular homicide, (3) the court's failure to enter written findings that the elements of reckless endangerment were proved beyond a reasonable doubt, and (4) the 18-month term of community custody imposed as part of the sentence. We address his assignments of error in turn.

I

Keys assigns error to nine of the court's findings of fact. Challenges to the sufficiency of the evidence to sustain conviction in a bench trial require this court to determine whether substantial evidence supports the trial court's findings and whether the findings support the challenged conclusions of law. State v. Rose, 160 Wn. App. 29, 32,246 P.3d 1277 (2011), aff'd in part, rev'd in part, _ Wn.2d _, 282 P.3d 1087 (2012). A defendant challenging the sufficiency of evidence in a criminal case admits the truth of the State's evidence and all reasonable inferences that can be drawn from it. State v. Kintz, 169 Wn.2d 537, 551, 238 P.3d 470 (2010) (quoting State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992)).

Substantial evidence is evidence sufficient to persuade a fair-minded,...