State v. Carlin, 09-483.

• Decision Date: 19 August 2010
• Docket Number: No. 09-483.,09-483.
• Citation: 9 A.3d 312,2010 VT 79
• Parties: STATE of Vermont v. Cherish A. CARLIN.
• Court: Vermont Supreme Court

9 A.3d 312
2010 VT 79

STATE of Vermont
v.
Cherish A. CARLIN.

No. 09-483.

Supreme Court of Vermont.

Aug. 19, 2010.

9 A.3d 312

Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, Associate Justices.

9 A.3d 313

ENTRY ORDER

¶ 1. Following a motor vehicle accident in which defendant Cherish Carlin struck and severely injured a bicyclist on Route 5 in Dummerston, defendant was charged with grossly negligent operation of a vehicle pursuant to 23 V.S.A. § 1091(b). Defendant moved to dismiss for lack of a prima facie case on the grounds that the State had insufficient evidence of gross negligence, and the trial court granted the motion. The State appeals the dismissal. We reverse and remand.

¶ 2. The accident occurred in the early afternoon of April 18, 2009. Defendant was traveling south on Route 5 in Dummerston at somewhere between forty and fifty miles per hour (the speed limit for this portion of Route 5 is forty miles per hour). This stretch of road is straight and relatively flat. The driver of the car immediately behind defendant's car at the time of the accident stated in an affidavit that he observed defendant's car swerve sharply into the shoulder of the road approximately three-and-a-half feet outside of the travel lane and hit a bicyclist who had also been traveling southbound. This witness stated that defendant was in the shoulder for approximately one or two seconds before hitting the bicyclist. At the scene, defendant told the responding officer that she was looking for a place to eat and looked down at her GPS device. When she looked up, she saw the bicyclist directly in front of her, but by then it was too late to avoid hitting him.

¶ 3. Following the charge of grossly negligent operation of a vehicle, defendant moved to dismiss for lack of a prima facie case, arguing that the State failed to present facts to support a finding that defendant operated her vehicle in a grossly negligent manner. See V.R.Cr.P. 12(d). The court granted the motion, concluding that defendant's behavior, including looking down at the GPS unit rather than paying attention to the roadway, did not fall within the ambit of gross negligence. Instead, the court concluded that defendant's conduct "amounted to a mere momentary distraction while driving." The State moved for reconsideration or, in the alternative, for leave to appeal, arguing that the court failed to consider certain important facts.

¶ 4. The court held an evidentiary hearing on the State's motion on November 30, 2009, to give the State the opportunity to present additional evidence in support of the charge, particularly with regard to the speed at which defendant's car was traveling and her use of the GPS device. At the hearing, the State submitted an affidavit from the officer who responded to the accident, in which he stated that the speed limit in the area of the collision was forty miles per hour and noted that the driver operating the vehicle immediately behind defendant estimated that defendant's car was traveling between forty and fifty miles per hour. The officer also stated that in his opinion defendant was grossly negligent. In addition, the State presented evidence that the GPS device in question issues a warning when it is turned on, advising drivers not to use it while driving. Following the hearing, the court declined to reconsider its original order granting the motion to dismiss, concluding instead that: (1) the additional facts did not demonstrate that excessive speed played any role in the accident; (2) the warning contained in the GPS device was not significant; and (3) the officer's opinion as to the existence of gross negligence had no probative value greater than the reasons that support it, which the...