Micinski v. State

• Citation: 487 N.E.2d 150
• Decision Date: 06 January 1986
• Docket Number: No. 71S04-8601,CR-3,71S04-8601
• Parties: Russell R. MICINSKI, (Defendant Below), v. STATE of Indiana, (Petitioner).
• Court: Supreme Court of Indiana

Page 150

487 N.E.2d 150

Russell R. MICINSKI, (Defendant Below), v. STATE of Indiana, (Petitioner).

No. 71S04-8601 CR-3.

Supreme Court of Indiana.

Jan. 6, 1986.

Concurring and Dissenting Opinion Jan. 22, 1986.

Richard J. McDonald, Richard J. LaSalvia, South Bend, for Russell micinski.

Linley E. Pearson, Atty. Gen., John D. Shuman, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for the State.

SHEPARD, Justice.

Russell Micinski was convicted of one count of leaving the scene of an accident involving personal injury, a Class A misdemeanor and two counts of driving under the influence causing bodily injury, a Class D felony. He sought review in the Court of Appeals, which reversed both convictions by a divided vote. Micinski v. State (1985), Ind.App., 479 N.E.2d 632. We grant the State's Petition for Transfer, vacating the opinion of the Court of Appeals.

The evidence at trial tended to show that on the evening of September 25, 1982, appellant had been drinking on into the morning hours, drinking more than he should have, he said later. After the bar closed, Micinski proceeded to drive himself home. Headed down South Bend Avenue on a foggy night, he struck two Notre Dame students who were walking in the road, causing long-term brain damage in each, as well as other injuries. Micinski proceeded on home, awaking the next morning to hear news of the accident on the radio. He wondered whether he might have been involved, but "just passed it off right away" since he was "a pretty safe driver, usually very careful."

Nine months later, South Bend police went to interview Micinski after receiving a tip. He was completely cooperative, although he stated consistently that he did not have any recall of being involved in a collision. Investigation showed that plastic fragments found at the scene of the accident came from the grill of Micinski's car. Fabric impressions on the grill matched those made from the victims' clothing. The students' clothing also contained paint matching the paint from appellant's car.

Micinski raised a number of issues in the Court of Appeals, which found two of the questions to be dispositive of the case:

I. Is the state required to prove Micinski knew of an accident resulting in injury for conviction of leaving the scene under Ind.Code Sec. 9-4-1-40?

II. Was the evidence sufficient to support jury verdicts on both counts of driving under the influence resulting in serious bodily injury?

I. Micinski's "Knowledge"

Appellant was charged in Count I with violation of Ind.Code Sec. 9-4-1-40 (Burns 1985 Supp.), which reads as follows:

(a) The driver of any vehicle involved in an accident resulting in injury to or death of any person or injury to property shall immediately stop such vehicle at the scene of such accident or as close thereto as possible, and shall then forthwith return to and in every event shall remain at the scene of the accident until he has fulfilled the requirements of section 42, 43, or 44 of this chapter. Every such stop shall be made without obstructing traffic more than is necessary.

(b) A person who fails to stop or comply with the requirements of section 42, 43, or 44 of this chapter after causing injury to any person or damage to the property of another commits a class B misdemeanor. However, the offense is a class D felony if the accident involved serious bodily injury to or the death of any person.

Appellant tendered to the trial court a proposed Instruction No. 4, which read:

In order to prove the defendant left the scene of an injury accident, the State must prove beyond a reasonable doubt that the defendant was driving at the time and scene of the accident and had knowledge that there was an injury accident.

The trial court refused to give that part of the instruction which told the jury that the defendant needed to have "knowledge that there was an injury accident" and modified the instruction to say that the proof need show simply that the defendant "was involved in an injury accident".

Appellant states that the majority of states have concluded that knowledge that an accident occurred is an essential element of proof in an prosecution under a "hit-and-run" statute, citing the case compiled at 23 A.L.R.3d 497.

The only similar Indiana decision is Runyon v. State (1941), 219 Ind. 352, 38 N.E.2d 235, in which this Court affirmed a "hit and run" conviction over the defendant's claim that she could not be found guilty since she did not have any knowledge that she had hit the victim. The Court found this claim "incredible" since the driver had hit the deceased so hard the blow was heard for five hundred feet. In any event, the Court appeared to assume that lack of knowledge would have been a defense.

We now make explicit what was assumed in Runyon, that knowledge of the fact that an injury accident has occurred is a necessary element of the proof in a prosecution under Ind.Code Sec. 9-4-1-40.

This is not to say that the State must prove actual knowledge of an injury accident in order to obtain a conviction. That would make it virtually impossible to prove up a case of "hit-and-run". Moreover, as Judge Miller said so well in his opinion below: "Such a requirement would reward the callous who refuse to stop and investigate." 479 N.E.2d at 636. The jury may infer that a defendant knew that an accident occurred or that people were injured from an examination of the circumstances of the event. Where conditions were such that the driver should have known that an accident occurred or should have reasonably anticipated that the accident resulted in injury to a person, the requisite proof of knowledge is present.

Micinski urges that the trial court's refusal of his instruction was reversible error. Although this Court has held that error in refusing an instruction is harmless when a conviction is clearly sustained by the evidence and the jury could not properly have found otherwise, we have tended to find error harmless where the refused instruction covered issues which were not central to the issues in the case, such as instructions on weighing evidence. Battle v. State (1981), 275 Ind. 70, 415 N.E.2d 39. See also Grossenbacher v. State (1984), Ind., 468 N.E.2d 1056.

We are less inclined to find harmless error where the refused instruction covers something so vital as the necessary elements of proof. Where the substance of an instruction is required to be given and was not already covered by other instructions, reversal may be necessary. Carroll v. State (1975), 263 Ind. 696, 338 N.E.2d 264. Our Court of Appeals has also found reversible error where it appears that the jury's verdict might have been based on the instruction at issue or where the trial court's action leaves the jury in doubt as to the law. Hardy v. State (1982), Ind.App., 442 N.E.2d 378.

It is apparent that the jury had some confusion on the point covered by Micinski's tendered instruction, since during deliberations they requested that the trial judge answer the following question:

On charge III does the defendant have to make a "willfull" decision to leave the scene to be guilty? If he does not know of the accident, does he willfully flee the scene?

The trial judge did not respond to this question, but re-read the instructions. In a memorandum on his ruling on Micinski's Motion to Correct Errors, the judge indicated that he found the available authority to be divided and said "it is impossible to retry the matter without direction from the Indiana Court of Appeals or the Supreme Court."

The uncertainty in the mind of both jury and judge on the central question of what the State needed to establish in order to carry its burden of proof was such that the refusal of Micinski's tendered instruction, which correctly stated the law, was reversible error.

Accordingly, we grant Micinski's request for a new trial on Count III, Leaving the Scene.

II. Sufficiency of the Evidence

We now turn to Micinski's argument that there was insufficient evidence to support his convictions for driving under the influence causing bodily injury because there was no proof that intoxication directly and proximately caused the injury. At the time of the offense in question, Ind.Code Sec. 9-4-1-54(b)(2) read:

A person who operates a vehicle while intoxicated commits a Class A misdemeanor. However, the offense is a Class C felony if it results in the death of another person and is a Class D felony if the offense results in serious bodily injury (as defined by IC 35-41-1-2), other than death, to another person. P.L. 122-1981.

Micinski cites Higginbotham v. State (1981), Ind.App., 427 N.E.2d 896, in which the Fourth District held that the Code required the State to prove that the act of driving while intoxicated caused the death of a person. It further noted that the information against the defendant charged that his driving while intoxicated "did directly and proximately cause" the death of another. Micinski urged the Court of Appeals to read Higginbotham as requiring that the State prove "that the defendant's intoxication directly and proximately caused the serious bodily injury as is required under I.C. 9-4-1-54...." The Court agreed and held:

To convict under this statute, the state must prove beyond a reasonable doubt that the defendant (1) operated a vehicle (2) while intoxicated, and (3) that the intoxication did directly and proximately cause serious bodily injury.

Micinski, supra at 636.

In effect, this construction of the statute leads the jury to ask a "but-for" kind of question: "Is it the driver's intoxication that caused him to hit the victim?" We conclude that this is not what the legislature intended. The statute creates a crime--driving while intoxicated--and adds higher penalties if the commission of this offense results in serious injury or the death of another person. There is, of course, a need to show causation; in the typical case a showing that the driver ran into the victim would...