State v. Green

• Decision Date: 21 February 2007
• Docket Number: No. 33200.,33200.
• Citation: 647 S.E.2d 736
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Marjorie Virginia GREEN, Defendant Below, Appellant.
• Court: West Virginia Supreme Court

647 S.E.2d 736

STATE of West Virginia, Plaintiff Below, Appellee, v. Marjorie Virginia GREEN, Defendant Below, Appellant.

No. 33200.

Supreme Court of Appeals of West Virginia.

Submitted: January 9, 2007.

Decided: February 21, 2007.

Syllabus by the Court

1. "In a criminal case, a verdict of guilt will not be set aside on the ground that it is contrary to the evidence, where the state's evidence is sufficient to convince impartial minds of the guilt of the defendant beyond a reasonable doubt. The evidence is to be viewed in the light most favorable to the prosecution. To warrant interference with a verdict of guilt on the ground of insufficiency of evidence, the court must be convinced that the evidence was manifestly inadequate and that consequent injustice has been done." Syl. Pt. 1, State v. Starkey, 161 W.Va. 517, 244 S.E.2d 219 (1978), overruled on other grounds by State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).

2. "The function of an appellate court when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, is sufficient to convince a reasonable person of the defendant's guilt beyond a reasonable doubt. Thus, the relevant inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt." Syl. Pt. 1, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).

3. "A criminal defendant challenging the sufficiency of the evidence to support a conviction takes on a heavy burden. An appellate court must review all the evidence, whether direct or circumstantial, in the light most favorable to the prosecution and must credit all inferences and credibility assessments that the jury might have drawn in favor of the prosecution. The evidence need not be inconsistent with every conclusion save that of guilt so long as the jury can find guilt beyond a reasonable doubt. Credibility determinations are for a jury and not an appellate court. Finally, a jury verdict should be set aside only when the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt. To the extent that our prior cases are inconsistent, they are expressly overruled." Syl. Pt. 3, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).

4. "Our negligent homicide statute, W.Va.Code, 17C-5-1, requires the driving of `[a] vehicle in reckless disregard of the safety of others,' and this means that more than negligence is required. It is compatible with the involuntary manslaughter standard set in State v. Lawson, 128 W.Va. 136, 36 S.E.2d 26 (1945)." Syl. Pt. 2, State v. Vollmer, 163 W.Va. 711, 259 S.E.2d 837 (1979).

5. A conviction for negligent homicide must not be premised solely upon the violation of a traffic statute unless the underlying act which constitutes the violation or accompanying circumstances evidence a reckless disregard for the safety of others, characterized by negligence so gross, wanton, and culpable as to show a reckless disregard for human life.

Darrell V. McGraw, Jr., Attorney General, Robert D. Goldberg, Assistant Attorney General, Charleston, for the Appellee.

Larry D. Garrett, Karen L. Garrett, Garrett & Garrett, Moorefield, for the Appellant.

ALBRIGHT, Justice.

This is an appeal by Marjorie Virginia Green (hereinafter "Appellant") from a judgment of conviction of two counts of negligent homicide. The Appellant contends that the evidence presented at trial was insufficient to support a conviction for negligent homicide. Upon thorough review of the briefs, arguments, record, and applicable precedent, this Court reverses the Appellant's conviction.

I. Factual and Procedural History

On Sunday, September 19, 2004, a van¹ operated by the Appellant collided with the rear of an automobile driven by Mrs. Rhonda Dante as Mrs. Dante was stopped in the eastbound lane of traffic on Route 50 near Augusta, Hampshire County, West Virginia, waiting to make a left turn into a church parking lot. The delay in Mrs. Dante's ability to turn left was occasioned by the fact that several motorcyclists were riding in the westbound lane.² The collision thrust Mrs. Dante's vehicle in the oncoming motorcycle traffic, resulting in the deaths of Mrs. Dante's seventeen-year-old daughter Kaitlyn, as well as Mrs. Janeann Stehle, a motorcyclist riding in the westbound lane.³

On January 5, 2005, a Hampshire County Grand Jury returned a two-count indictment against the Appellant alleging that she drove her van in reckless disregard for the safety of others, resulting in the deaths of Kaitlyn Dante and Janeann Stehle. On August 25, 2005, the Appellant was tried in the Circuit Court of Hampshire County. The State called Trooper Geoffrey Pasko, and the trial court qualified him as an accident reconstructionist. Trooper Pesko described Route 50 east as a downhill slope where the accident occurred. Trooper Pesko indicated that there were no pre-collision skid marks at the point of impact and found that the Appellant was driving her van approximately 59 miles per hour when she struck the rear of Mrs. Dante's car.⁴

The Appellant called accident reconstructionist Gregory Manning.⁵ Mr. Manning testified that, according to his calculations, the Appellant was approximately 327 feet behind Mrs. Dante's car when Mrs. Dante first applied her brakes. Mr. Manning estimates that the Appellant failed to see Mrs. Dante's brake lights for approximately nine seconds and was only 100 feet behind Mrs. Dante's car when she first realized that Mrs. Dante's vehicle had stopped. Mr. Manning further concluded that the primary cause of the accident was driver inattention on the part of the Appellant. One of the witnesses to the accident Ms. Sara Watts, testified that she had observed the Appellant looking out the left window of her van at the motorcycles prior to the collision.

Although the Appellant did not testify at trial, the Appellant's statement as provided to the police was admitted into evidence. In that report, the Appellant indicated that she had followed a car, thought to be Mrs. Dante's car,⁶ "all the way from Augusta and she kept hitting her brakes." The Appellant stated: "I thought to myself I'll be glad when I can get around her." Explaining the situation when the vehicle stopped in front of her, the Appellant stated: "I knew I couldn't get past her on the left and I knew I couldn't get by her on the right so I hit her in the butt and as far as I could see in the other lane it was nothing but motorcycles." She also indicated that she had placed approximately fifty pounds of water into her van and had recognized that the additional weight might affect the van's ability to stop or decrease speed quickly.

The jury ultimately convicted the Appellant of driving her van in reckless disregard of the safety of others resulting in the death of Kaitlyn Dante and Janeann Stehle. At a sentencing hearing conducted on October 7, 2005, the lower court sentenced the Appellant to one year on each count, to run consecutively. The lower court stayed the execution of sentence but revoked bail and placed the Appellant in jail. On September 11, 2006, the Appellant presented a petition to this Court seeking post-conviction bail pending appeal. On October 4, 2006, this Court granted the petition for post-conviction bail, as well as the petition for appeal of her convictions. This Court remanded to the lower court for the "setting of [Appellant's] bond and other conditions of bail which shall include home confinement and an absolute ban on driving." On October 27, 2006, the lower court entered an order setting bond at $10,000 and stating that the Appellant could be released from jail as soon as a plan was submitted. However, the Appellant remains in custody, based upon her loss of her home as part of the civil suit resulting from this accident, the severe medical problems from which she suffers, and the inability of the lower court to locate a home for electronic monitoring at which her medical needs could properly be served.

On appeal of her convictions to this Court, the Appellant contends that the state failed to present sufficient evidence to support the convictions for negligent homicide and that her convictions should be reversed.

II. Standard of Review

The standard of review applicable in the present case was stated in syllabus point one of one State v. Starkey, 161 W.Va. 517, 244 S.E.2d 219 (1978), overruled on other grounds by State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995), as follows:

In a criminal case, a verdict of guilt will not be set aside on the ground that it is contrary to the evidence, where the state's evidence is sufficient to convince impartial minds of the guilt of the defendant beyond a reasonable doubt. The evidence is to be viewed in the light most favorable to the prosecution. To warrant interference with a verdict of guilt on the ground of insufficiency of evidence, the court must be convinced that the evidence was manifestly inadequate and that consequent injustice has been done.

In syllabus point one of State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995), this Court further explained:

The function of an appellate court when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, is sufficient to convince a reasonable person of the defendant's guilt beyond a reasonable doubt. Thus, the relevant inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt.

In syllabus point three of Guthrie, this Court continued as follows:

A criminal defendant challenging...