State v. Gensler

• Decision Date: 05 April 2006
• Docket Number: No. 3D04-3277.,3D04-3277.
• Citation: 929 So.2d 27
• Parties: The STATE of Florida, Appellant, v. Audria Diane GENSLER, Appellee.
• Court: Florida District Court of Appeals

929 So.2d 27

The STATE of Florida, Appellant, v. Audria Diane GENSLER, Appellee.

No. 3D04-3277.

District Court of Appeal of Florida, Third District.

April 5, 2006.

Rehearing and Rehearing En Banc Denied June 8, 2006.

Charles J. Crist, Jr., Attorney General, and John D. Barker, Assistant Attorney General, for appellant.

Dunlap & Silvers and Marcia J. Silvers, Miami, for appellee.

Before SUAREZ and CORTIÑAS, JJ., and SCHWARTZ, Senior Judge.

SUAREZ, Judge.

This is an appeal from an order granting the defendant's Florida Rule of Criminal Procedure 3.190(c)(4) motion to dismiss the State's prosecution of a vehicular homicide charge brought pursuant to section 782.071, Florida Statutes (1999). The defendant contends on appeal that the trial court was correct in granting the motion because the undisputed facts did not establish that the victim of the homicide died as a result of the conduct on the part of the defendant which constitutes vehicular homicide. The State contends that the undisputed facts are sufficient to establish a prima facie case of the offense of vehicular homicide. We reverse the order granting the motion to dismiss.

The accident occurred on May 4, 2000. The relevant facts, as alleged in the motion to dismiss, show that at approximately 3:15 a.m., on a dry, clear night, Police Officer Gensler, the defendant, was traveling northbound on South Dixie Highway in an area with no street lights near Southwest 220th Street, where the posted speed limit was forty-five miles per hour. Pedestrians crossed South Dixie Highway without using the designated crosswalk to go to and from the food market, which was located one block off the Highway. Although many businesses were closed that evening, the food market was open. Officer Gensler, dispatched as a back-up officer to a call, proceeded through the intersection where the traffic light was flashing a yellow signal. According to an accident reconstruction expert, her speed was approximately ninety miles per hour. She struck and killed the victim, Robin Ivy, who was approximately four to five feet into the right traffic lane and just north of the crosswalk. At the time of the collision, the victim had alcohol and cocaine in her body.

The defendant was initially charged by information with manslaughter. She was convicted of the lesser included offense of vehicular homicide. This court reversed the conviction, based on a number of evidentiary errors, and remanded the case for a new trial. See Gensler v. State, 868 So.2d 557 (Fla. 3d DCA 2004). The State now appeals the trial court's granting of the defendant's Motion to Dismiss.

The State argues that the undisputed material facts are sufficient to establish a prima facie case of vehicular homicide. We agree. As long as the State shows the barest prima facie case, it should not be prevented from prosecuting. Jalbert v. State, 906 So.2d 337 (Fla. 5th DCA 2005); State v. Pasko, 815 So.2d 680, 681 (Fla. 2d DCA 2002)(citing State v. Hunwick, 446 So.2d 214, 215 (Fla. 4th DCA 1984)). A motion to dismiss should rarely be granted, State v. Carroll, 404 So.2d 844 (Fla. 5th DCA 1981), and granted only when the facts and inferences arising there from, taken in the light most favorable to the State, see State v. Fuller, 463 So.2d 1252 (Fla. 5th DCA 1985); State v. Patel, 453 So.2d 218 (Fla. 5th DCA 1984), do not establish a prima facie case. See also Boler v. State, 678 So.2d 319 (Fla.1996); State v. Horton, 442 So.2d 408 (Fla. 2d DCA 1983). We find that the facts, taken in the light most favorable to the State, establish a prima facie case of vehicular homicide which is reserved for the jury on the issue of proximate cause and therefore reverse the order granting the motion to dismiss.

The elements of vehicular homicide under section 782.071, Florida Statutes (1999),¹ are (1) that the defendant must operate a motor vehicle in a reckless manner likely to cause the death of, or great bodily harm to, another, and (2) that the reckless operation of the motor vehicle must be the proximate cause of the death of the human being. Velazquez v. State, 561 So.2d 347 (Fla. 3d DCA 1990).

1. In determining whether a defendant is driving recklessly, the issue is whether the defendant knowingly drove the vehicle in such a manner and under such conditions as are likely to cause death or great bodily harm. D.E. v. State, 904 So.2d 558 (Fla. 5th DCA 2005); Michel v. State, 752 So.2d 6 (Fla. 5th DCA 2000). The focus is on the actions of the defendant and, considering the circumstances, whether it was reasonably foreseeable that death or great bodily harm could result. See D.E., 904 So.2d at 562. Viewed in the light most favorable to the State and based on the fact that the defendant was traveling at a speed of ninety miles per hour—way over the posted speed limit of forty-five miles per hour—on a federal highway, at 3:00 a.m. where the street lights were out, coupled with the fact that she willfully disregarded a flashing, yellow traffic signal at the intersection one block from an open convenience store, we find that the State established a prima facie case of recklessness on the part of the defendant—likely to cause the death of, or great bodily harm to another. McCreary v. State, 371 So.2d 1024 (Fla.1979); D.E., 904 So.2d at 563; Moye v. State, 571 So.2d 113 (Fla. 4th DCA 1990); see Michel v. State, 752 So.2d at 6. As such, the recklessness issue is within the province of the jury and not subject to a motion to dismiss. State v. Sheppard, 401 So.2d 944 (Fla. 5th DCA 1981)(recklessness and proximate cause under vehicular homicide statute to be resolved by jury and not on motion to dismiss).

2. In determining whether the State presented a prima facie case that the defendant's reckless operation of the motor vehicle was the proximate cause of the death of the victim, it becomes necessary to determine whether the harm that occurred was within the scope of the danger created by the defendant's negligent conduct. Hodges v. State, 661 So.2d 107 (Fla. 3d DCA 1995); M.C.J. v. State, 444 So.2d 1001 (Fla. 1st DCA 1984). "Although a person does not have to foresee the specific circumstances causing the death of the victim, the person must have reasonably foreseen that the same general type of harm might occur if he or she knowingly drove a vehicle under circumstances that would likely cause death or great bodily harm." D.E., 904 So.2d at 562. We conclude that, taking into account all of the record facts, including excessive speed, prima facie evidence exists that the harm caused was within the scope of the danger created.

The defendant urges that the material facts do not demonstrate that the defendant's conduct was the sole proximate cause of the accident. As part of this contention, she argues that the wrongful conduct of the defendant cannot be deemed the proximate cause of the homicide because her wrongful conduct was superseded by the victim's own independent intervening act—that the impairment caused by the alcohol and drugs may have been responsible for her entering the highway at an unmarked location resulting in the accident and her death. Unless it can be said that the victim's conduct was the sole proximate cause of the homicide, or unless there is some reason why it would be unjust or unfair to impose criminal liability, the decedent's conduct does not supersede the defendant's conduct as the proximate cause of the homicide. D.E., 904 So.2d at 563; Union v. State, 642 So.2d 91 (Fla. 1st DCA 1994); Moye v. State, 571 So.2d at 113; Cunningham v. State, 385 So.2d 721 (Fla. 3d DCA 1980); McCreary v. State, 371 So.2d at 1024; see Michel v. State, 752 So.2d at 6. See also Nunez v. State, 721 So.2d 346 (Fla. 2d DCA 1998)(victim's riding in back of pickup truck not sole proximate cause of accident in prosecution for vehicular homicide); Brimmer v. State, 541 So.2d 1307 (Fla. 4th DCA 1989)(victim's inattention to traffic not sole proximate cause of accident in vehicular homicide prosecution); Palmer v. State, 451 So.2d 500 (Fla. 5th DCA 1984)(decedent's blood alcohol level not sole proximate cause of vehicular homicide prosecution); Everett v. State, 435 So.2d 955 (Fla. 1st DCA 1983)(not reasonable to conclude that conduct of decedent who was jay-walking in an unlighted area the sole proximate cause of manslaughter by culpable negligence).

Where a party by his wrongful conduct creates a condition of peril, his action can properly be found to be the proximate cause of a resulting injury, even though later events which combined to cause the injury may also be classified as negligent, so long as the later act is something which can reasonably be expected to follow in the natural sequence of events. Moreover, where reasonable minds might differ as to whether it was the creation of the dangerous condition (defendant's conduct) which was the proximate cause, or whether it was some subsequent act [impaired conduct of the decedent], the question is for the trier of fact to determine.

State v. Hallett, 619 P.2d 335, 339 (Utah 1980); State v. Augustin M., 133 N.M. 636, 68 P.3d 182 (2003)(on motion to dismiss grand jury indictment for vehicular homicide, question of proximate cause of the death of intoxicated victim reserved for trial by jury), cert. granted, 133 N.M. 727, 69 P.3d 237 (2003), cert. quashed, 135 N.M. 170, 86 P.3d 48 (2004).

Therefore, we find that the State presented a prima facie case demonstrating that the defendant's conduct, speeding excessively and ignoring a yellow flashing signal in a business district on a darkened highway at 3:00 a.m., was the proximate cause of the accident.² We further conclude that the State has presented a prima facie case of vehicular homicide showing that the victim's death was within the scope of danger created by the defendant's reckless driving. Moreover, the issue of whether the harm that occurred was within the scope of the danger created by the defendant's negligent conduct is a jury...