Koch v. State

• Decision Date: 10 January 2017
• Docket Number: NO. 2015–KA–01228–COA,2015–KA–01228–COA
• Citation: 222 So.3d 1088
• Court: Mississippi Court of Appeals
• Parties: Sara JANE Koch a/k/a Sara Koch a/k/a Sara J. Koch, Appellant v. STATE of Mississippi, Appellee

222 So.3d 1088

Sara JANE Koch a/k/a Sara Koch a/k/a Sara J. Koch, Appellant

v.STATE of Mississippi, Appellee

NO. 2015–KA–01228–COA

Court of Appeals of Mississippi.

January 10, 2017

Rehearing Denied May 9, 2017

Certiorari Denied July 27, 2017

OFFICE OF STATE PUBLIC DEFENDER BY: MOLLIE MARIE MCMILLIN, ATTORNEY FOR APPELLANT

OFFICE OF THE ATTORNEY GENERAL BY: ALICIA MARIE AINSWORTH, ATTORNEY FOR APPELLEE

BEFORE LEE, C.J., BARNES AND FAIR, JJ.

LEE, C.J., FOR THE COURT:

PROCEDURAL HISTORY

¶ 1. On March 25, 2013, Sara Jane Koch was indicted on two counts of felony driving under the influence (DUI) causing death or disfigurement. Count I charged aggravated DUI¹ while Koch was under the influence of intoxicating liquor pursuant to Mississippi Code Annotated section 63–11–30(1)(a) (Supp. 2016). Count II charged aggravated DUI² while Koch's blood-alcohol content (BAC) was over .08% pursuant to Mississippi Code Annotated section 63–11–30(1)(c) (Rev. 2013).³ A jury in the Harrison County Circuit Court, Second Judicial District, found Koch guilty of aggravated DUI. Koch was sentenced to twenty-five years, with seven years suspended, eighteen years to serve in the custody of the Mississippi Department of Corrections (MDOC), and five years of postrelease supervision. Koch was also ordered to pay $5,750 in restitution. After her posttrial motions were denied, Koch appealed, asserting the following: (1) the indictment was defective; (2) the jury was not properly instructed; (3) the trial court erred by allowing the State's expert witness to give opinion testimony; and (4) her conviction and sentence need clarification.

FACTS

¶ 2. At 5:11 a.m. on February 1, 2012, Koch called 911 to report that she had hit a pedestrian while driving on Interstate 10 in D'Iberville, Mississippi. She told the 911 dispatcher that "someone was in my lane[,] and I hit them [,] and I'm sure I killed them." At one point, Koch stated, "[T]here was a car⁴ in the middle of the road that was there, so I hit them." The 911 operator responded, "So you say there was another car, and the person was standing near the car?" Koch responded, "Yes, on the side of the road."

¶ 3. D'Iberville Police Officer Kevin Sidaway arrived on the scene around 5:15 a.m. Officer Sidaway testified he pulled up behind Koch's car, and she was parked in the emergency lane.⁵ Officer Sidaway stated he walked to the passenger side of the car for safety purposes, and once Koch had rolled the window down, he noted the smell of alcohol inside the car. Officer Sidaway testified that Koch was crying hysterically. He also stated that he did not drive over any debris in the road while approaching Koch's car. Another officer had arrived at the same time as Officer Sidaway but parked further back.

¶ 4. Officer Kenneth Goins, a DUI-enforcement officer with the D'Iberville Police Department (DPD), arrived at 5:23 a.m. Officer Goins noted the smell of alcohol in Koch's car. He testified that as he walked Koch to his patrol car, she "was unsteady on her feet, kind of swaying and stumbling a little bit." Koch was still crying. Officer Goins read Koch her Miranda⁶ rights, arrested her, and transported her to the D'Iberville police station. Officer Goins obtained a warrant for a blood test, and Koch's blood was drawn at a local hospital at 6:59 a.m. At some point, Koch told Officer Goins that she had consumed five alcoholic beverages prior to the accident.

¶ 5. Terry Hines, a captain with the DPD, arrived at the scene at 5:50 a.m. Captain Hines walked down the emergency lane, noting the debris from the accident. Captain Hines noted that no debris was found in the right lane of Interstate 10; rather, debris was found in the emergency lane and in the grass on the side of the interstate. According to Captain Hines, the victim, Donald Sullivan, had been walking to work when Koch struck him. Sullivan's body was found in the grassy area approximately thirty or forty feet from the emergency lane. During his investigation, Captain Hines learned that Koch had been at the Hard Rock Casino in Biloxi, Mississippi, prior to the accident. Captain Hines also obtained a warrant to search Koch's cell phone.

¶ 6. Several hours after the accident, Koch called a friend from jail. This call had been recorded and was played for the jury during trial. Koch's friend asked her if Sullivan was walking on the interstate or on the side. Koch responded, "Apparently on the side. I don't remember much."

¶ 7. Donnie Dobbs, a detective with the Biloxi Police Department (BPD), assisted the DPD with the data recovery from Koch's cell phone. Detective Dobbs testified that Koch had been exchanging text messages with someone Koch referred to as "Brucie Boyfran." At 4:41 a.m., Koch sent Brucie a text that said, "Driving. Go R [sic]." And then at 4:42 a.m., she sent him another text that said, "I'm f'd up." Koch texted Brucie several more times and called him at 5:10 a.m. The duration of the call was fifty seconds. The next outgoing call was the 911 call at 5:11 a.m. The last activity on Koch's phone was a text from Brucie at 5:24 a.m., stating, "Pick up the phone. I'm worried about you. You just called me up crying."

¶ 8. John Doucet, an officer with the BPD, assisted the DPD with the investigation. Officer Doucet was accepted as an expert in accident reconstruction. After investigating the accident scene, Officer Doucet noted no skid marks or broken glass in either the emergency lane or the right lane of the interstate. Using the "cone of evidence" or "cone of debris" method to estimate the area of impact, Officer Doucet concluded that he was able to form an opinion within a reasonable degree of scientific certainty that Sullivan was walking in the emergency lane when he was hit.

¶ 9. Emily Harper, a forensic toxicologist with the Mississippi State Crime Lab, testified that Koch's BAC was .18%. And that based upon the time Koch's blood was drawn, Koch's BAC at the time of the accident would have been higher.

¶ 10. Dr. Mark LeVaughn, a forensic pathologist and Mississippi's chief medical examiner, testified regarding the autopsy results. Dr. LeVaughn stated that Sullivan's cause of death was multiple blunt-force injuries and these injuries were consistent with being struck from behind by a car while standing upright. Dr. LeVaughn testified that the car struck Sullivan's right leg first, then the force of the impact propelled Sullivan onto Koch's car, where his head struck the windshield. Sullivan then bounced off the car and landed in the grass to the side of the interstate.

¶ 11. Jason Walton testified for Koch as an expert in accident reconstruction. Walton testified that Officer Doucet's use of the cone-of-evidence method to determine the area of impact was not a reliable method for a higher-speed impact. And that Officer Doucet had not applied the cone-of-evidence method correctly. Due to the lack of evidence and information, Walton testified it was impossible to determine the area of impact—that it could have occurred in the emergency lane or in the right lane of the interstate.

¶ 12. Officer Michael Davis, an expert in accident reconstruction with the BPD, was called by the State in rebuttal. Officer Davis testified that Walton did not employ the cone-of-evidence method correctly. Officer Davis stated that by using the correct method, he determined that Sullivan would have been walking in the emergency lane when Koch struck him.

DISCUSSION

I. Indictment

¶ 13. In her first issue, Koch argues that the indictment failed to allege a specific negligent act. Issues concerning the sufficiency of an indictment are questions of law; thus, our standard of review is de novo. Taylor v. State , 94 So.3d 298, 305 (¶ 14) (Miss. Ct. App. 2011). Count I stated: Koch "did unlawfully, willfully, and feloniously, drive or operate a motor vehicle ... while under the influence of intoxicating liquor, and did thereby in a negligent manner cause the death of ... Sullivan ... in violation of Section 63–11–30(1)(a) and (5)...." Count II stated: Koch "did unlawfully, willfully, and feloniously, drive or operate a motor vehicle ... during a time in which [she] ... had [a BAC] of ... 0.18% ... and did thereby in a negligent manner cause the death of ... Sullivan ... in violation of Section 63–11–30(1)(c) and (5) [.]"

¶ 14. Prior to trial, Koch filed a motion to dismiss the indictment because it did not include the specific negligent act. During the hearing on the motion to dismiss, the State argued its theory was that Koch had veered into the emergency lane when she hit Sullivan. And that Koch was on notice due to the information she received during discovery—including police reports, crime-lab reports, and accident-reconstruction reports. The trial court denied Koch's motion.

¶ 15. Koch acknowledges that the accident report noted "failure to keep proper lane/run off the road," but argues that the indictment was insufficient for failing to include this language. Koch cites to Tran v. State , 962 So.2d 1237 (Miss. 2007), and Taylor for support. In Tran , the defendant was convicted of money laundering. Tran , 962 So.2d at 1240–41 (¶ 13). The Mississippi Supreme Court found that an indictment for money laundering must inform the defendant of the specific unlawful acts that produced the funds the defendant was accused of laundering. Id. at 1248 (¶ 45). The indictment did not state the underlying offense—it simply stated the funds represented proceeds from "some unlawful activity." Id. at 1241 (¶ 13). However, the supreme court found any error was harmless since the defendant was on notice of the unlawful activity—drug trafficking—and was provided the opportunity to prepare a defense. Id. at 1248 (¶ 45).

¶ 16. Like Koch, the defendant in Taylor was convicted of aggravated DUI and alleged on appeal that the indictment was defective for failing to include the specific negligent act. Taylor , 94 So.3d at 303, 305 (¶¶ 1, 14). This Court determined that regardless of the sufficiency of the...