State v. Larson

• Decision Date: 15 July 1998
• Docket Number: No. 20070,20070
• Citation: 1998 SD 80,582 N.W.2d 15
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Brian David LARSON, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 15

582 N.W.2d 15

1998 SD 80

STATE of South Dakota, Plaintiff and Appellee, v. Brian David LARSON, Defendant and Appellant.

No. 20070.

Supreme Court of South Dakota.

Argued April 27, 1998.

Decided July 15, 1998.

Mark Barnett, Attorney General, Sherri Sundem Wald, Assistant Attorney General, Pierre, for plaintiff and appellee.

David R. Gienapp and Philip R. Parent of Arneson, Issenhuth & Gienapp, Madison, for defendant and appellant.

SABERS, Justice.

¶1 Brian Larson was convicted of two counts of second degree manslaughter following a motor vehicle accident which killed two highway construction workers. He appeals the denial of his motion for judgment of acquittal. We affirm.

FACTS

¶2 On September 16, 1996, a highway construction crew was working in the right lane of eastbound Interstate 90 in Lyman County. The construction area stretched between mile markers 212 and 234 and was separated from the driving lane by "candlestick" dividers. These dividers were generally placed about a foot inside the closed lane, but placed on the center line where the crew was actually working. The highway had a posted speed limit of 75 m.p.h. but a posted recommended speed of 55 m.p.h. through the construction zone.

¶3 There was expert testimony that Brian Larson was traveling between 62 and 68 m.p.h. when his 1996 Ford Explorer crossed over the center line and drove about one and one-half feet into the closed lane for approximately 101 feet. At this estimated speed, Larson would have traveled that 101 feet in just over one second. In that one second, he struck and killed two construction workers, Julie Smith, age 20, and Brandon Koehn, age 18.

¶4 Three crew members, Ryan Kotz, Dave Solmonson, and Koehn were breaking up bad concrete with jackhammers near the on-ramp of Exit 214. Once there was an accumulation of chipped concrete, Smith would remove the debris using first an air hose and then a shovel. At about 9:30 a.m., Kotz was working in the first, westernmost cutout area, Solmonson was in the first cutout east of Kotz, and Koehn was in the next cutout, approximately ten to twenty feet east of Solmonson. Solmonson's cutout became full of debris; he stopped working and went to sit in a company pickup. Smith began cleaning the cutout with an air hose and was standing somewhere between the center line and a point one and one-half feet into the driving lane.

¶5 Almost immediately after getting into the pickup, Solmonson's attention was caught by dust and debris flying through the air. When he looked up, he saw Smith on the front of the vehicle and Koehn flying off to the right. Kotz testified that he was facing the driving lane as he worked and suddenly realized a vehicle was driving in his cutout. He looked up and to his right and saw the vehicle hit Koehn, knocking him into the air. Solmonson observed Smith as she came out from under the back of the vehicle and into the median. The dent on the Explorer indicates Smith was struck in the approximate center of its hood. Both Smith and Koehn were killed instantly. As noted, the vehicle left the closed lane after 101 feet, crossed the driving lane diagonally, and entered the median. Larson first braked after he entered the median, where he traveled approximately 205 feet before the vehicle came to a stop.

¶6 At trial, the court allowed two highway patrolmen and Kotz to testify to their opinions that certain tire tracks depicted in photographs were made by Larson's Explorer. The court also admitted, over Larson's objection, two photographs of Smith's body and one of Koehn's body.

¶7 Larson was convicted of two counts of second degree manslaughter under SDCL 22-16-20:

Any reckless killing of one human being, including an unborn child, by the act or procurement of another which, under the provisions of this chapter, is neither murder nor manslaughter in the first degree, nor excusable nor justifiable homicide, is manslaughter in the second degree. Manslaughter in the second degree is a Class 4 felony.

He received two consecutive 10-year penitentiary sentences.

¶8 Larson appeals the denial of his motion for judgment of acquittal, arguing:

1) there was insufficient evidence of "recklessness" to support the convictions because his conduct did not rise above mere negligence or inadvertence, and therefore, the trial court should have granted his motion for judgment of acquittal;

2) the trial court erred in allowing the testimony regarding the tire tracks; and

3) the trial court erred in admitting the photographs.

STANDARD OF REVIEW

¶9 In reviewing the denial of a motion for judgment of acquittal, the ultimate question is whether the evidence was sufficient to sustain the convictions.

Our standard of review of a denial of a motion for judgment of acquittal is whether State set forth sufficient evidence from which the jury could reasonably find the defendant guilty of the crime charged. State v. Abdo, 518 N.W.2d 223, 227 (S.D.1994); State v. Gallipo, 460 N.W.2d 739, 742 (S.D.1990). In determining the sufficiency of the evidence to constitute the crime, the question is "whether there is sufficient evidence in the record which, if believed by the jury, is sufficient to sustain a finding of guilt beyond a reasonable doubt; in making this determination, the court will accept the evidence, and the most favorable inference fairly drawn therefrom, which will support the verdict." State v. Heftel, 513 N.W.2d 397, 399 (S.D.1994) (citations omitted).

State v. Thompson, 1997 SD 15, p 34, 560 N.W.2d 535, 542-43 (citing State v. McGill, 536 N.W.2d 89, 91-92 (S.D.1995)).

¶10 As for the trial court's evidentiary rulings, they are presumed correct and are reviewed under an abuse of discretion standard. State v. Goodroad, 1997 SD 46, p 9, 563 N.W.2d 126, 129 (citing State v. Oster, 495 N.W.2d 305, 309 (S.D.1993)). "The test is not whether we would have made the same ruling, but whether we believe a judicial mind, in view of the law and the circumstances, could have reasonably reached the same conclusion." Id. (citing State v. Rufener, 392 N.W.2d 424, 426 (S.D.1986)).

¶11 1. WHETHER THERE WAS SUFFICIENT EVIDENCE OF "RECKLESSNESS" TO SUPPORT THESE CONVICTIONS.

¶12 Larson claims that his conduct did not constitute "recklessness" under SDCL 22-16-20. "Recklessness" is defined in SDCL 22-1-2(1)(d):

The words "reckless, recklessly" and all derivatives thereof, import a conscious and unjustifiable disregard of a substantial risk that the offender's conduct may cause a certain result or may be of a certain nature. A person is reckless with respect to circumstances when he consciously and unjustifiably disregards a substantial risk that such circumstances may exist[.]

He argues that under State v. Olsen, 462 N.W.2d 474 (S.D.1990), his motion for judgment of acquittal should have been granted.

¶13 Olsen was driving a tractor at a very low speed on a state highway. As he turned left onto a gravel road, he was struck by a car traveling in the opposite direction. The driver of the car was killed instantly. An eyewitness testified that Olsen ran from the tractor exclaiming, "I didn't see it." State charged Olsen with second degree manslaughter, which was dismissed at preliminary hearing after the magistrate determined there was not probable cause to sustain the charge.

¶14 This court affirmed the dismissal, stating, "[r]ecklessness requires more than ordinary negligent conduct. Evidence of carelessness, inadvertence or other similar behavior is insufficient to sustain a conviction where reckless conduct is required." 462 N.W.2d at 476 (citation omitted). The focus is on the state of mind of the individual, and whether his conduct is perceived as negligent or reckless depends upon his awareness of the risk his behavior creates:

As explained in 1 C. Torcia, Wharton's Criminal Law § 27, at 140 (1978):

The difference between the terms "recklessly" and "negligently", as usually defined, is one of kind, rather than of degree. Each actor creates a risk of harm. The reckless actor is aware of the risk and disregards it; the negligent actor is not aware of the risk but should have been aware of it.

(Emphasis in original). The same idea is expressed in Treiman, Recklessness and the Model Penal Code, 9 Am.J.Crim.L. 281, 351 (1981):

It is the concept of conscious disregard that distinguishes recklessness from negligence. The negligent actor fails to perceive a risk that he ought to perceive. The reckless actor perceives or is conscious of the risk, but disregards it.

Id. at 476-77.

¶15 Larson points to State's comment in closing argument, wherein this accident was characterized as resulting from a "microsecond of recklessness." He argues this cannot constitute the requisite "conscious disregard of a known risk" as required by Olsen.

¶16 State responds that Larson had advance warning of the crew's presence and could have driven on the left shoulder to avoid the accident. State also claims Larson's admission that he was driving faster than he should and his failure to brake until he was out of the construction zone and in the median proves recklessness. ¹ Larson counters with the claim that the crew was not wearing bright clothing and that there were no flagpersons present as required by the construction contract and by the Manual on Uniform Traffic Control Devices (MUTCD), which has been adopted by the State of South Dakota. Therefore, he argues that the construction company and State share the blame for this accident, mitigating any "recklessness" on his part.

¶17 Larson does not claim that he was unaware of the construction zone because of inadequate signage or unaware of the crew's presence because they were not wearing bright clothing. ² In fact, he saw the crew working and was aware that he hit Smith. ³ Larson did not testify at trial; however, in a conversation taped almost immediately after the accident, he told Trooper Storey that the work crew was "kinda far out ... they were pretty close...