State v. Koch

• Decision Date: 14 June 2000
• Docket Number: No. 98-416.,98-416.
• Citation: 760 A.2d 505
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Frederick KOCH.

760 A.2d 505

STATE of Vermont v. Frederick KOCH.

No. 98-416.

Supreme Court of Vermont.

June 14, 2000.

Present AMESTOY, C.J., DOOLEY, MORSE, JOHNSON, and SKOGLUND, JJ.

ENTRY ORDER

Defendant Frederick Koch appeals from the district court's denial of his motions for judgment of acquittal and a new trial following a jury verdict finding him guilty of grossly negligent operation of a motor vehicle. He argues that (1) the State failed to prove its case beyond a reasonable doubt, (2) the prosecutor presented an improper closing argument, and (3) the jury instructions were inadequate. We affirm.

On May 9, 1997, at around 4:00 p.m., defendant struck a pedestrian, Thomas Cataldo, with his car while driving north-bound on Route 100. The accident occurred north of the Village of Stowe. Cataldo later died as a result of his injuries.

The record evidence reveals that, although the skies were overcast and there had been some drizzle, visibility was clear at the time of the accident. Defendant was taking prescribed lithium, but there was no evidence that he was under the influence of any intoxicating substances. Defendant had been awake, however, since 4:30 a.m., and had been driving for the better part of the day prior to the accident. Defendant did not recall falling asleep before the accident.

The record evidence showed that as defendant approached the accident scene, he had an unobstructed line of sight of about 1200 feet, or 400 yards. A witness who was driving south down Route 100 just before the accident clearly observed Cataldo, who was over six feet tall and weighed about 185 pounds, from a distance estimated by the State in its opening statement to be about 216 yards.¹ The witness recalled that Cataldo was standing outside of the white fog line, facing in a southwesterly direction. There was no evidence that defendant was speeding or driving erratically. Nor was there evidence that defendant took any evasive action to avoid striking Cataldo. The police noted that there were no yaw or skid marks on the pavement or in the dirt shoulder. The medical evidence indicated that the victim was initially struck on the left side and slightly from behind, that he was thrown some distance by the impact, and died from injuries to the brain and lungs.

Defendant was charged with operating a motor vehicle in a grossly negligent manner, resulting in the death of another, in violation of 23 V.S.A. § 1091(b). A jury, which also considered the lesser-included offense of negligent operation, found him guilty of the greater charge. This appeal followed.

Defendant first argues that the State failed to present a prima facie case of gross negligence, and the evidence presented does not support such a conviction. He claims that he was entitled to either a judgment of acquittal or a new trial.

When reviewing a denial of a motion for judgment of acquittal, we must consider whether the evidence, viewed in the light most favorable to the State and excluding the modifying evidence, is sufficient to fairly and reasonably support a finding of guilt beyond a reasonable doubt. See State v. Brooks, 163 Vt. 245, 254-55, 658 A.2d 22, 29 (1995).

Gross negligence is defined by statute as "conduct which involve[s] a gross deviation from the care that a reasonable person would have exercised in that situation." 23 V.S.A. § 1091(b) The Legislature adopted this language after we ruled, in State v. Beayon, 158 Vt. 133, 605 A.2d 527 (1992), that a previous version of § 1091, providing for prosecution of vehicular homicide, "require[d], at a minimum, a mens rea of criminal negligence." Id. at 136, 605 A.2d at 528. In Beayon, we explained that, to be found guilty of criminal negligence, the accused must have disregarded a risk of death or injury to such a degree that the failure to perceive it, given the circumstances, involved a gross deviation from the standard of care of a reasonable person. See id.; see also State v. Free, 170 Vt. ___, ___, 749 A.2d 622, 624 (2000) (mem.).

The presence or absence of gross negligence turns upon the particular factual circumstances of each case, and therefore rests within the special province of the jury. See Rivard v. Roy, 124 Vt. 32, 35, 196 A.2d 497, 500 (1963). Indeed, we have observed that "decided cases are of little assistance in determining the existence of gross negligence under the evidence in a particular case. Each case turns almost entirely on its own peculiar factual situation." Langdon-Davies v. Stalbird, 122 Vt. 56, 57, 163 A.2d 873, 874-75 (1960). Here, the evidence showed that defendant had an unobstructed view of the accident site for almost 400 yards, along a relatively straight stretch of road, during daylight hours, and amidst relatively light traffic. A witness just before the accident observed the victim plainly from a substantial distance. The witness was able to observe the victim's clothes and build. The same witness recalled that the victim was standing outside the regularly traveled portion of the roadway. There was no testimony as to precisely how long the victim might have been visible to defendant, although the witness, who was driving from the opposite direction, clearly placed Cataldo in a stationary position before the accident. Thus, the jury could reasonably have inferred that Cataldo was plainly visible to a driver in defendant's position for a reasonable period. Further, the jury heard evidence that the victim lived about 100 yards south of the accident site, suggesting that he had been walking away from or toward his home at the time, and saw photographs that revealed nothing in the immediate vicinity—such as a store or restaurant—to suggest his very recent arrival. In these circumstances, a jury could reasonably have concluded that defendant's failure to observe and avoid striking the victim involved a gross deviation from the standard of care of a reasonable person.²

Contrary to the dissent, our analysis here is not controlled by the recent decision in Free, in which we affirmed a trial court's dismissal of a gross negligence charge stemming from an accident in Bennington. The circumstances in Free were strikingly distinguishable from the case at bar. There, the evidence indicated that the defendant was focused upon oncoming traffic while attempting to turn left at a downtown intersection and failed to observe the victim, who was simultaneously attempting to cross the street. The fact that the driver had, at most, three to four seconds to observe the victim before impact was compounded by the accompanying circumstance that the driver was simultaneously "paying attention to the flow of traffic around him." Free, 170 Vt. at ___, 749 A.2d at 624. Here, there were no similar circumstances to distract defendant's attention, and no testimony as to the specific number of seconds that the victim was visible to the defendant.³ As Justice Dooley, dissenting in Free, observed, "a driver's duty to watch the road is related to the circumstances that confront him and the place and manner of operation." Id. at ___, 749 A.2d at 626. The specific circumstances here, in contrast to those in Free, amply supported a conclusion that defendant was grossly negligent in striking the victim, even if—as the dissent suggests—he had between five and six seconds to observe him.

Next, defendant argues for a new trial, alleging that the State advanced an improper argument to the jury and that the court inadequately instructed the jury. Since defendant failed to object to either the prosecutor's closing arguments or the court's jury instructions, these issues have not been preserved for appeal, and we will not consider them. See Imported Car Center, Inc. v. Billings, 163 Vt. 76, 78, 653 A.2d 765, 768 (1994) (issues not objected to at trial will not be considered upon appellate review).

Affirmed.

JOHNSON, J., dissenting.

The decision this Court issued on December 14, 1999, upholding defendant's conviction was supported by a single fact. We stated that "the State's evidence showed that defendant had an unobstructed view of Cataldo for almost 1200 feet, or for a minimum of 20 seconds, during daylight hours." State v. Koch, 98-416, slip op. at 2 (Vt. Dec. 14, 1999) (mem.). Based on this fact alone, we concluded that the evidence supported defendant's conviction for grossly negligent operation of a motor vehicle. In his motion to reargue, defendant points out that the single fact upon which we relied is incorrect. The majority corrects the factual error but still holds that the evidence supports the conviction. In my view, the factual correction requires a reversal of defendant's conviction. I therefore dissent.

Contrary to our decision in December 1999, the State's evidence did not show that defendant had an unobstructed view of Cataldo...