State v. Fateley

• Decision Date: 18 July 1977
• Docket Number: No. 1973-III,1973-III
• Citation: 18 Wn.App. 99,566 P.2d 959
• Parties: STATE of Washington, Respondent, v. Kim V. FATELEY, Appellant.
• Court: Washington Court of Appeals

Page 99

18 Wn.App. 99

566 P.2d 959

STATE of Washington, Respondent, v. Kim V. FATELEY, Appellant.

No. 1973-III.

Court of Appeals of Washington, Division 3.

July 18, 1977.

Bruce D. Erickson (Court-appointed), Okanogan, for appellant.

Jeremiah M. McCormick, Pros. Atty., Melanie A. Oettel, Deputy Pros. Atty., Okanogan, for respondent.

McINTURFF, Judge.

The defendant Kim V. Fateley ¹ appeals from the judgment following his conviction of negligent homicide in a jury trial.

Mr. Fateley was charged under RCW 46.61.520 ² with causing the death of Gregory Riley by failing to negotiate a curve and driving a motorcycle over an embankment. There were no witnesses to the mishap.

The death occurred in August 1975 during the Omak Stampede. It was hot and dry, and after work the defendant and the deceased, a close friend, began drinking beer about 7:30 p.m. The defendant said he had possibly four beers before he stopped drinking about 10:00 p.m. The defendant, his girlfriend, and the deceased, along with other youths met that evening at a lookout point on Dalton Road. Near midnight he started down the road on his motorcycle with the deceased as his passenger. He remembered his rear wheel slipping, but he could not recall much more. Physical evidence indicated the defendant failed to negotiate a turn near the lookout point, his motorcycle went off the embankment and his passenger was killed. Neither his girlfriend nor any other witness who saw him before the accident felt he was under the influence of intoxicants or driving irregularly.

A woman living near the lookout point testified that after midnight, while she was reading in bed, she heard a motorcycle drive by. She said the noise stopped abruptly, and she and her daughter went to investigate. There was a tire track leading over the edge of the road. Upon helping the defendant up the embankment she concluded he was influenced by something but she did not smell intoxicants on him.

Upon arriving at the scene, two state troopers smelled intoxicants on the defendant. He appeared disoriented and glassy-eyed. He was unable to satisfactorily perform field sobriety tests, and about 21/2 hours after the accident the breathalyzer indicated .10 percent blood alcohol by weight.

The investigating officer testified that the road was paved, clear of gravel and dry. There was no marked center line and the shoulders of the road were of packed gravel. He said he saw no reason why the vehicle had left the road. The other officer testified there were no skid marks and that it would have been necessary for the motorcycle to have crossed the oncoming lane of traffic in order to have gone off the embankment. The lone tire track was identified as having been made by a motorcycle.

Defendant raises seven assignments of error, five of which concern the sufficiency of the evidence to support the State's allegations that he drove in a reckless manner or with disregard for the safety of others. He also complains of the trial court's failure to include the word "feloniously" in an instruction which set forth the contents of the Information filed against him. And, he contends that he was denied his right to effective assistance of counsel when the trial court sustained the State's objections to defense counsel's closing argument.

I Sufficiency of Evidence

The thrust of defendant's arguments as to the sufficiency of evidence is that the State failed to introduce substantial evidence of reckless driving or driving with disregard for the safety of others. His theory on appeal is that when more than one method of committing a crime is charged and there is insufficient evidence regarding one of the methods, the conviction must be set aside unless the record indicates that the verdict is based upon another method on which there is substantial evidence. State v. Vanderburg, 14 Wash.App. 738, 544 P.2d 1251 (1976). Thus, unless there is sufficient evidence as to each of the means by which he was alleged to have committed the crime, the verdict must be set aside.

A challenge to the sufficiency of the evidence admits the truth of the evidence of the party against whom the challenge is made, along with all the inferences that can reasonably be drawn therefrom, and it requires that the evidence be interpreted most strongly against the challenger and in a light most favorable to the opposing party. ³ Although the determination as to the sufficiency of the evidence largely depends upon the facts in each case, State v. Uglem, 68 Wash.2d 428, 413 P.2d 643 (1966), a mere scintilla of evidence will not rise to the level of sufficiency in order to support a conviction. State v. Kirkpatrick, 14 Wash.App. 212, 540 P.2d 450 (1975). Instead, there must be substantial evidence, i.e., that quantum of evidence necessary to establish circumstances from which the jury could reasonably infer the fact to be proved. "(T)he (trial) court is only empowered to determine whether there is 'substantial evidence' tending to establish circumstances on which a necessary element of a crime may be predicated." State v. Randecker, 79 Wash.2d 512, 517, 487 P.2d 1295, 1299 (1971).

We recognize that more than ordinary negligence must be shown to support a conviction for negligent homicide, ⁴ and after reviewing the record we conclude there was substantial evidence defendant drove his motorcycle in a reckless manner and with disregard for the safety of others. First, there was more than sufficient evidence of intoxication. ⁵ Furthermore, the evidence concerning the tire track indicates the defendant drove his motorcycle across the oncoming lane of traffic and off an embankment. And, there was no evidence of any physical irregularity in the road or mechanical defect in the motorcycle which could help explain the accident. In addition, there was evidence that the defendant had been on the road before and that those preceding him down the hill that night did not have any problems driving around the curve in question. Where there is substantial evidence to support a conviction on each of the means by which a crime may be committed, there is no error in presenting those means for jury consideration. ⁶

Notwithstanding, defendant argues the conviction must nonetheless be reversed because there is a failure of proof of causation. He contends a minimum blood alcohol reading sufficient to create a presumption of intoxication will not be sufficient to support a conviction unless it is shown that the affected driving was the proximate cause of the decedent's death, citing State v. Engstrom, 79 Wash.2d 469, 487 P.2d 205 (1971), and State v. Mearns, 7 Wash.App. 818, 502 P.2d 1228 (1972). The State replies that neither Engstrom nor Mearns requires a reversal because the jury was properly instructed as to the necessary causation element.

In Engstrom the court approved instructions which required the jury, in order to convict the defendant, to find "that the operation of the vehicle in an intoxicated condition must be the proximate cause of the death." ⁷ And in Mearns, the court said:

Reading the instructions given, the jury could conclude that the proximate cause referred to was that the cause of the decedent's death was the impact of the car rather than some other cause such as illness or other injury. While this causal connection must be shown, so also must the causal connection between drinking and impact. ⁸

In the instant case, the jury was instructed:

To convict the defendant Kim V. Fateley, of the crime of negligent homicide, the State must prove to you beyond a reasonable doubt:

1. That the defendant, Kim V. Fateley, on or about the 9th day of August, 1975, while in Okanogan County did operate a motor vehicle;

2. That at the time of the defendant's operation of the motor vehicle one or more of the following was true of the defendant:

a. The defendant operated the vehicle in a reckless manner,

b. The defendant operated the vehicle with disregard for the safety of others,

c. The defendant was under the influence of or affected by intoxicating liquor.

3. That the condition or conditions found to be true under two (2) above did proximately cause the defendant to fail to negotiate a curve and drive over an embankment and

4. That the death of Gregory Riley did ensue within three years as the proximate result of the injury received in the accident.

The term "proximate cause" means that cause which in a direct, unbroken sequence produces the death in question and without which such death would not have occurred or happened.

Under the instructions given, we are satisfied that the tests of Engstrom and Mearns have been met. Thus, the jury was properly instructed as to the causation stemming from intoxication.

II Error in Instruction

Defendant next contends that the trial court erred in failing to include the word "feloniously" in the instruction which set out the information because it failed to alert the jury that the crime charged was a felony and not a misdemeanor. Defendant argues:

(T)he fact that the jury was not advised specifically that ordinary negligence was not sufficient to sustain a conviction highlights the need for informing the jury that the crime is a felony in nature and emphasizes the error which was created by setting forth the contents of the information against the defendant with the word "feloniously" omitted.

We note, first, that the defendant did not request an instruction distinguishing ordinary negligence from the kind of conduct necessary for a conviction of negligent homicide. Absent such a request, the trial court did not err in failing to so instruct the jury. ⁹ The question, then, is whether, under the instructions given, the jury was required to find more than ordinary negligence.

The jury was instructed:

(T)he words "to operate a vehicle in a reckless manner" means the operation of a motor vehicle in a heedless careless, or rash manner or in a manner indifferent to consequences.

This instruction...