Felske v. State, 83-230

• Decision Date: 12 September 1985
• Docket Number: No. 83-230,83-230
• Citation: 706 P.2d 257
• Parties: Barry Brian FELSKE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 257

706 P.2d 257

Barry Brian FELSKE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 83-230.

Supreme Court of Wyoming.

Sept. 12, 1985.

Thomas J. Fagan and Michael J. Krampner of Fagan & Fagan, Casper, for appellant (defendant).

A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., John W. Renneisen, Sr. Asst. Atty. Gen., and Margaret M. White, Asst. Atty. Gen., for appellee (plaintiff).

Before THOMAS, ^* C.J., and ROSE, ROONEY, ^** BROWN, and CARDINE, JJ.

ROSE, Justice.

The primary issue in this case is whether the State must establish the voluntary driving of the vehicle and the voluntary consumption of alcoholic beverages in prosecuting a charge of aggravated vehicular homicide under § 31-5-1117(a), W.S.1977, 1982 Cum.Supp. ¹ The constitutionality of the statute also is attacked for reasons similar to those argued in Armijo v. State, Wyo., 678 P.2d 864 (1984), and Hodgins v. State, Wyo., (No. 83-143 decided 9/11/85). We affirm the judgment of the district court because the constitutionality of the statute has been established in Armijo v. State and Hodgins v. State, and because the State did not fail to meet its burden of establishing the elements of the offense.

Appellant stated the issues on appeal in his brief as:

"I. Whether the statute under which the appellant was charged, W.S. § 31-5-1117(a), 1982 Wyo. Sess. Laws, Ch. 50, § 1, is unconstitutional.

"II. Whether the evidence presented by the State established beyond a reasonable doubt the appellant was guilty of Aggravated Homicide by Vehicle."

Appellant stated the second issue more concretely in his supplemental brief. Relying on language in Armijo v. State, he contends that the State must prove that the consumption of intoxicating beverages and the operation of the vehicle were voluntary and that the State failed to carry its burden.

By information filed July 23, 1982, appellant was charged with two counts of aggravated vehicular homicide in violation of § 31-5-1117(a), W.S.1977, 1982 Cum.Supp. Appellant pled not guilty to both counts.

A bench trial was held on May 18, 1983, and upon stipulation of counsel, the trial judge dismissed one of the counts. The trial court found appellant guilty of the remaining count of aggravated vehicular homicide, and imposed a sentence of not less than 18 months nor more than 24 months incarceration.

FACTUAL BACKGROUND

On June 20, 1982, at 8:45 p.m., appellant was traveling west on Geary Dome Road, a dirt road which intersects Cole Circle Road in Natrona County, Wyoming. This intersection is controlled by a stop sign directing traffic on Geary Dome Road to stop. While under the influence of intoxicating liquor, the appellant failed to stop at the Geary Dome Road stop sign, as a consequence of which he struck a vehicle carrying Bobby and Veronica Vang who died as a result of the collision. Appellant's blood alcohol content was later found to be 0.19% and an eyewitness testified that he was traveling 70 miles per hour when he struck the vehicle in which the deceased persons were riding.

The evidence in this case is scanty. The parties stipulated to the following pertinent facts:

"3. That the accident upon which this action is based occurred in Natrona County, State of Wyoming, on 6/20/82.

"4. That the defendant was driving the automobile involved in the accident upon which this action is based.

"5. That Bobby Vang and Veronica Vang were killed as a result of the injuries they received in the accident upon which this action is based.

"6. That the blood alcohol test of the defendant's blood indicated a concentration of 0.19 ethyl alcohol, and the written findings of that test may be introduced into evidence without foundation proof."

In addition, the State produced Gary Myers, who testified that he saw defendant speed along the road prior to the accident. Mr. Myers also testified:

" * * * He [the appellant] kept repeating over and over, don't tell them I was driving, and I told him, I said, there is nobody, I can't tell them that because you are the only one in the car."

The State also produced Thomas Chatt, the highway patrolman who investigated the accident scene. Officer Chatt testified that appellant had a clear view of the intersection for 2,600 feet, and that appellant's brakes were in good condition. The officer also testified that he found cans of beer in the appellant's car and noticed the smell of alcohol when he approached the appellant. Officer Chatt also testified to the results of the appellant's blood test.

Appellant presented no evidence. At the close of the State's case, he moved the court for an order dismissing the information, or in the alternative to reduce the charge to a violation of § 31-5-1117(b), W.S.1977, 1982 Cum.Supp. ² The grounds for his motion were that there was a lack of substantial evidence to prove his guilt beyond a reasonable doubt and that § 31-5-1117(a) was unconstitutional.

THE LAW

Vagueness

Appellant claims the statute is void for vagueness, in that it gives no notice of the proscribed behavior. In Armijo v. State, 678 P.2d at 868, we said:

" * * * Due process does require that a criminal statute set forth with reasonable certainty the acts or conduct required or forbidden in a manner that furnishes fair notice to a person of ordinary intelligence that certain conduct is proscribed by the statute."

We held that the statute which is also at issue in this case, § 31-5-1117(a), was not unconstitutionally vague. Accord Hodgins v. State, supra. We noted that Armijo's flight from the scene left him in an awkward position in claiming that the statute gave no notice of the proscribed conduct. Likewise, appellant Felske indicated he understood the hazard of criminal sanction for his behavior when he repeatedly asked Mr. Myers not to tell the authorities that he had been driving the vehicle.

Causation

Appellant also claims the statute is unconstitutional because it contains no causation requirement. We did not address ourselves to that question in Armijo v. State because Armijo admitted in both the trial court and this court that his conduct caused the death of his victim. 678 P.2d at 867.

The question of whether the statute contained a causation requirement was, however, answered in Hodgins v. State, supra. We found that the element of causation is encompassed in the statute. The statute said:

"Whoever, while driving any vehicle under the influence * * * to a degree which renders him incapable of safely driving a vehicle, causes the death of another person shall be guilty of aggravated homicide by vehicle * * *."

We made it clear in Hodgins v. State that the statute requires that the death be caused by the proscribed conduct of driving while under the influence:

" * * * [T]here cannot be a violation of the statute unless the proximate cause of death was drinking and driving while under the influence to a degree which renders the defendant incapable of safely operating the vehicle. The death of the victim of a drunk driver will not, therefore, furnish adequate grounds to support a conviction unless it can also be established beyond a reasonable doubt that the death was in fact proximately caused by the proscribed conduct."

General Intent Required

Appellant also argues that the statute under which he was convicted is void for vagueness because it does not specify a criminal intent.

The same question was raised in Armijo v. State, and our response was:

" * * * We conclude that the legislature of the State of Wyoming by failing to encompass a statement of intent in § 31-5-1117(a), W.S.1977 (May 1982 Cum.Supp.), did not intend to eliminate the element of a culpable mental state." 678 P.2d at 869.

We explained further that aggravated vehicular homicide was a general-intent crime.

Appellant also urges that the State failed to establish the requisite intent. In Armijo, there was no question but that intent had been established, because Armijo pled guilty, thus admitting every element of the crime with which he was charged. Armijo v. State, 678 P.2d at 870. In the case at bar, the defendant did not plead guilty. He claims that he did not admit any evil intent and that the State has proved none, and so his conviction must be reversed. Specifically, he contends that the two elements of the offense going to intent were not established by the State and that there is no evidence at all that appellant voluntarily drove the vehicle or knowingly or voluntarily consumed alcoholic beverages.

We will hold that there was sufficient evidence to support a finding that appellant voluntarily drove the vehicle. See discussion, infra. We need not address the question of whether there was sufficient evidence to find that appellant voluntarily consumed alcoholic beverages because voluntary intoxication is not an element of the crime of aggravated homicide by vehicle under § 31-5-1117(a).

Appellant contends that voluntary intoxication is an element which the State must prove beyond a reasonable doubt. He supports his contention by quoting the following from Armijo v. State, 678 P.2d at 870:

" * * * It follows that to prove a violation of this statute the only intent which must be established beyond a reasonable doubt is that the acts which establish the offense were committed voluntarily. [Citations.] In this case [Armijo v. State] the appellant admitted in establishing the factual basis for his plea of guilty that he voluntarily became intoxicated to the extent that he was rendered incapable of safely driving his vehicle, and while so driving it he collided with the victim, causing the victim's death."

It is conceded that language from Armijo carries with it some indication that voluntary intoxication is an element which the State must prove under § 31-5-1117(a). Other language in Armijo, however, indicates that voluntary intoxication is not an element of the offense. For example, at one point we spoke of "the driving-while-intoxicated...