Harvey v. State, 5053

• Court: United States State Supreme Court of Wyoming
• Citation: 596 P.2d 1386
• Docket Number: No. 5053,5053
• Parties: Randy Lynn HARVEY, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).
• Decision Date: 02 July 1979

Page 1386

596 P.2d 1386 Randy Lynn HARVEY, Appellant (Defendant below),
v.
The STATE of Wyoming, Appellee (Plaintiff below). No. 5053. Supreme Court of Wyoming. July 2, 1979.

T. Michael Golden, of MacPherson, Golden & Brown, Rawlins, signed the brief and appeared in oral argument for appellant.

John D. Troughton, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., and Sharon A. Fitzgerald, Legal Intern, signed the brief, and Sharon A. Fitzgerald appeared in oral argument for appellee.

Before RAPER, C. J., and McCLINTOCK, THOMAS, ROSE and ROONEY, JJ.

ROONEY, Justice, delivered the opinion of the court.

Appellant-defendant was found guilty, after a jury trial, of the crime of negligent

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homicide (§ 31-5-1115, W.S.1977). He appeals (1) on the ground that the evidence was not sufficient to sustain the verdict, and (2) on alleged error in admission into evidence of testimony by an ambulance attendant of a statement made to him by defendant's wife relative to an attempt by defendant to drive his motorcycle between two other motorcycles at a speed of about 90 miles per hour. We affirm. SUFFICIENCY OF THE EVIDENCE

The oft-repeated rule by which we test the sufficiency of evidence on appeal of a criminal matter is that we examine and accept as true the evidence of the prosecution, leaving out of consideration entirely the evidence of the defendant in conflict therewith, and we give to the evidence of the prosecution every favorable inference which may reasonably and fairly be drawn therefrom. Stated another way it is not whether the evidence establishes guilt beyond a reasonable doubt for us, but rather whether it is sufficient to form the basis for a reasonable inference of guilt beyond a reasonable doubt to be drawn by the jury when the evidence is viewed in the light most favorable to the state. Evanson v. State, Wyo., 546 P.2d 412 (1976); Brown v. State, Wyo., 581 P.2d 189 (1978); Nisonger v. State, Wyo., 581 P.2d 1094 (1978).

The elements which must be established beyond a reasonable doubt for conviction of the crime of negligent homicide are: (1) the death of a person; (2) within a year of the occurrence; (3) as a proximate result of an injury received in the occurrence; and (4) the occurrence was a result of defendant's driving of a vehicle in reckless disregard of the safety of others. ¹ Defendant did not controvert the establishment by the prosecution of the first three of these elements, but he does contend that there was not substantial evidence to support a finding by the jury that, beyond a reasonable doubt, he was driving in reckless disregard for the safety of others. A review of the record does not support defendant in this contention.

Evidence of the following is not contested by defendant: On May 20, 1978, at the time of the occurrence, seven people were traveling together on motorcycles on a two-lane highway between Hanna and Medicine Bow. Defendant was operating one motorcycle, with his wife, Susan, as a passenger. Jack Vaughn was operating a second motorcycle, with the deceased as a passenger. Patrick Apodaca was operating a third motorcycle, with Roxene Ventling as a passenger. Kevin DeWitt was operating a fourth motorcycle without a passenger. The Vaughn and Apodaca motorcycles were proceeding abreast in the right lane, with the Vaughn motorcycle on the right and slightly ahead of the Apodaca motorcycle.

There is substantial evidence in the record that the front of defendant's motorcycle hit the rear of the Vaughn motorcycle ²; that the impact occurred when defendant was overtaking and attempting to pass the Vaughn and Apodaca motorcycles by going between them ³, thus attempting to pass the Vaughn vehicle on the right side ⁴; that

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defendant did not go into the left lane in attempting to pass the Vaughn and Apodaca motorcycles as they were proceeding abreast in the right lane ⁵; and that defendant was exceeding the speed limit at the time of the accident. ⁶

Some of the evidence favorable to the prosecution relative to the foregoing is summarized as follows:

Highway Patrolman Coleman introduced photographs which depicted damage to the front of defendant's motorcycle and a bent fork over the front wheel. They depicted damage to the rear and right rear of the Vaughn motorcycle. He testified to observing such damage, and that the speed limit at the place of the accident was 55 miles per hour. He testified that the accident resulted in an 11-foot-6-inch skid mark which began 7 feet from the center line to the south (in the lane in which the motorcycles were traveling east) on a 29-foot wide roadway. This skid mark was followed by a 9-foot space without skid marks, then the set of skid marks and scrape marks which were made by the Vaughn motorcycle angled to the left a distance of about 227 feet to a point in the left lane, and the set of skid marks and scrape marks which were made by defendant's motorcycle angled to the right a distance of about 105 feet, leaving the roadway after 60 feet and ending about 12 feet off the roadway. He testified that after defendant's arrest on June 12, 1978, and after defendant was advised relative to his rights concerning the making of a statement, defendant said, "(t)he accident would never have happened if Mr. Vaughn hadn't moved over in front of me, because I was going to pass him on the right."

Patrick L. Apodaca testified that his motorcycle would operate only in third gear with a top speed of 40 miles per hour; and that he was riding almost abreast the Vaughn motorcycle at that speed at the time of the accident. He said both the Vaughn motorcycle and his motorcycle were in the right lane. He stated that defendant would "speed up, back and forth, slowing down and speeding up again," riding ahead of them and then behind them "quite often." He testified that he saw defendant's motorcycle come up from the rear and run into the back of the Vaughn motorcycle. He estimated the speed of defendant's motorcycle at that time to be 80 miles per hour. He further testified that subsequent to the accident, defendant told him "I was doing 80 miles an hour, but if Jack wouldn't have moved I wouldn't have run into him."

Roxene Ventling testified that she was riding as a passenger on the Apodaca motorcycle at the time of...