State v. Collins, 94,953.

• Decision Date: 28 July 2006
• Docket Number: No. 94,953.,94,953.
• Citation: 138 P.3d 793
• Parties: STATE of Kansas, Appellant, v. Brian M. COLLINS, Appellee.
• Court: Kansas Court of Appeals

138 P.3d 793

STATE of Kansas, Appellant, v. Brian M. COLLINS, Appellee.

No. 94,953.

Court of Appeals of Kansas.

July 28, 2006.

Heather R. Jones, county attorney, for appellant.

R. Scott Ryburn, of Anderson & Byrd, LLP, of Ottawa, for appellee.

Before McANANY, P.J., MALONE and CAPLINGER, JJ.

McANANY, P.J.

Brian M. Collins was tried for involuntary manslaughter while driving under the influence of alcohol. He was convicted of the lesser included offense of driving under the influence of alcohol. The State now appeals, claiming the trial court erred in instructing the jury on proximate cause. We affirm.

After several hours of drinking, Collins and his passenger left a bar at 2 a.m. on August 17, 2003, in his pickup truck. He followed behind a motorcycle driven by his friend Jesse Winsky. Robyn Curtis was riding on the motorcycle with Winsky. When the motorcycle pulled ahead and out of sight, Collins sped up to catch it. Collins' passenger testified that when Collins next saw the motorcycle, it was parked in the roadway with Curtis still seated on board. Winsky had gotten off to urinate nearby. Collins' passenger yelled at Collins to stop. Collins attempted to stop the truck but hit the motorcycle and Curtis was killed.

Collins was charged with involuntary manslaughter while driving under the influence of alcohol. At trial, Collins called an accident reconstruction expert who testified that the accident would have occurred even if Collins had not been intoxicated. In arriving at this opinion, the witness considered the truck's braking ability; the placement of the motorcycle in the road; its location just beyond a curve in the road; the time of the accident; the reaction time of a normal, unimpaired driver; and the stopping distance for the truck being driven at Collins' speed of 55 miles per hour at the time. Over the State's objection, the court instructed the jury:

"The defendant is charged with the crime of involuntary manslaughter while driving under the influence of alcohol. The defendant pleads not guilty.

"To establish this charge, each of the following claims must be proved:

"1. That the defendant unintentionally killed Robyn Curtis;

"2. That it was done in the commission of the act of operating any vehicle in this state,

(a) While under the influence of alcohol to a degree that rendered him incapable of safely driving a vehicle; and/or

(b) While having an alcohol concentration in his blood of .08 or more as measured within two hours of the time of operating or attempting to operate the vehicle;

"The phrase `alcohol concentration' means the number of grams of alcohol per 100 milliliters of blood.

"3. That the death of Robyn Curtis occurred on the 17th day of August, 2003, as a proximate result of the operation of a vehicle by Brian Collins while under the influence of alcohol;

"4. That the proximate cause or legal cause of death of Robyn Curtis is that cause which in natural continuous sequence, unbroken by an intervening cause, produces the injury and without which the injury would not have occurred, the injury being the natural and probable consequence or result of the defendant's act; and

"5. That this act occurred on or about the 17th day of August, 2003, in Franklin County, Kansas."

The jury found Collins guilty of the lesser included offense of driving under the influence of alcohol. The State appeals upon a question reserved pursuant to K.S.A.2005 Supp. 22-3602(b)(3).

The State claims that this proximate cause instruction changes the elements of the crime. It argues that whether proximate cause must be proven for a conviction of involuntary manslaughter while driving under the influence is a matter of statewide importance. The State claims this issue has arisen in several cases in Franklin County in recent years. From this the State extrapolates the likelihood that the issue arises from time to time in other jurisdictions throughout Kansas. Collins concedes this point in oral argument. Because the issue is one of sufficient statewide interest, we will consider the State's claim.

Collins is entitled to an instruction on his theory of the case even if the evidence that supports his defense is slight. See State v. Bell, 276 Kan. 785, 792, 80 P.3d 367 (2003).

Relying on State v. Creamer, 26 Kan. App.2d 914, 996 P.2d 339 (2000), the State contends that a proximate cause instruction cannot be used in a case such as this because involuntary manslaughter while driving under the influence of alcohol is a strict liability crime. The State extends the "strict liability" language in Creamer beyond its actual holding.

In Creamer, the intoxicated defendant used his pickup truck to pull a utility trailer. The trailer detached from the pickup and struck another vehicle, resulting in the death of that vehicle's driver and severe injuries to the pregnant passenger. Creamer was charged with involuntary manslaughter while driving under the influence of alcohol pursuant to K.S.A. 21-3442 and injury to a pregnant woman while driving under the influence of alcohol pursuant to K.S.A. 21-3441(c)(1). Upon conviction, the issue before this court was not an issue of causation, but rather whether conviction under these statutes requires proof of specific criminal intent on the part of the defendant.

The Creamer court began its analysis with City of Wichita v. Hull, 11 Kan.App.2d 441, 724 P.2d 699 (1986). The court in Hull determined that DUI, under the ordinance and statute at issue, is an absolute liability offense for which intent is not an element. From this, the court in Creamer reasoned that when the legislature enacted 21-3442 and 21-3441, it predicated these crimes on the underlying offense of DUI and did so with full knowledge of this court's determination that DUI is a strict liability offense. The court then announced:

"We hold the crimes defined by K.S.A. 21-3441 and K.S.A.1998 Supp. 21-3442 are absolute or strict liability crimes. Accordingly, the only proof required is that the individual was engaged in the driving of a motor vehicle while under the influence of alcohol or drugs, as defined by K.S.A.1998 Supp. 8-1567, and that the death or injuries occurred during the commission of the act of DUI. There is no requirement that the State prove a specific criminal intent." Creamer, 26 Kan.App.2d at 918-19, 996 P.2d 339.

This last quoted sentence is most instructive. It points out that these are strict liability crimes in the sense that there is no requirement for specific criminal intent. The court in Creamer did not consider the separate issue of causation. It made no note of our Supreme Court's then relatively recent decision in State v. Chastain, 265 Kan. 16, 24, 960 P.2d 756 (1998), no doubt in part because Chastain dealt with the issue of causation rather than intent.

In Chastain, the defendant was charged with involuntary manslaughter pursuant to K.S.A. 21-3404 following a collision at an intersection which resulted in the death of Robert Glenn. The State contended Chastain was under the influence of alcohol and driving at a high rate of speed. Chastain contended that Glenn ran a stop sign at the intersection and that this was the cause of the accident and Glenn's death, not Chastain's conduct or condition.

Generally described, K.S.A.2005 Supp. 21-3404 defines manslaughter as the unintentional killing of a human being committed recklessly, or in connection with certain described violent crimes, or during the commission of a lawful act in an unlawful manner. The...