State v. Larsen

• Decision Date: 13 April 2000
• Docket Number: No. 990265-CA.,990265-CA.
• Citation: 2000 Utah Ct. App. 106,999 P.2d 1252
• Parties: STATE of Utah, Plaintiff and Appellee, v. Brett E. LARSEN, Defendant and Appellant.
• Court: Utah Court of Appeals

999 P.2d 1252

2000 Utah Ct. App. 106

STATE of Utah, Plaintiff and Appellee, v. Brett E. LARSEN, Defendant and Appellant.

No. 990265-CA.

Court of Appeals of Utah.

April 13, 2000.

Manny C. Garcia, Salt Lake City, for Appellant.

Sirena M. Wissler and Brendan P. McCullough, Salt Lake County Deputy Attorney, Salt Lake City, for Appellee.

Before GREENWOOD, P.J, JACKSON, Associate P.J., and DAVIS, J.

OPINION

GREENWOOD, Presiding Judge:

¶ 1 Defendant appeals from convictions of negligent homicide, a class A misdemeanor in violation of Utah Code Ann. § 76-5-206 (1999), and failure to yield, a class C misdemeanor in violation of Utah Code Ann. § 41-6-73 (1998).¹ On appeal, defendant claims, among other things, that the evidence was insufficient to support his convictions. We affirm in part and reverse in part.

BACKGROUND

¶ 2 "In reviewing the trial court's ruling, we recite the facts in the light most favorable to the trial court's findings." State v. Anderson, 910 P.2d 1229, 1230 (Utah 1996). On June 28, 1998, at approximately 9:00 p.m., defendant was driving a green Ford Ranger, traveling northbound on Wasatch Boulevard in Salt Lake City. As defendant approached the intersection of Wasatch Boulevard and 3800 South, he pulled into the left-hand turn lane, preparing to make a westbound turn onto 3800 South. Defendant stopped for a red light at the intersection. J. Henry Larsen,² also preparing to make a left turn from Wasatch Boulevard onto 3800 South, stopped behind defendant. After the light turned green, defendant waited a few moments and began to turn through the intersection.

¶ 3 At the same time, Douglas King was driving a blue Subaru Legacy, traveling southbound on Wasatch Boulevard. There were three passengers in King's car, including Kara Shinners-Little, who was sitting in the front passenger seat. As King approached the intersection at Wasatch Boulevard and 3800 South, his car traveled over a small hill in the road, approximately 200 yards north of the intersection. Near the top of the hill, Wasatch Boulevard splits into two lanes. As the road split, King moved into the right lane to pass a slower moving car. King did not look at the speedometer but believed he was traveling between forty and forty-five miles per hour. King became aware of defendant's truck moving across the intersection a split second before the two vehicles collided. King testified at trial that he may have been mildly distracted by a conversation occurring in his car, but that he never looked away from the road. King also testified that Shinners-Little was wearing at least the shoulder harness of her seat-belt.

¶ 4 J. Henry Larsen, who was stopped in the left-hand turn lane, moved slightly into the intersection behind defendant after the light turned green. From his vantage point, Larsen saw King's car approximately fifty to seventy-five yards away, approaching the intersection as defendant began to make the turn. Larsen testified that defendant was making the left turn at a normal rate of speed, between ten and fifteen miles per hour. He also testified that the Subaru was traveling at a "normal" rate of speed for Wasatch Boulevard, estimating its speed at forty-five to fifty-five miles per hour. As Larsen saw the two cars moving closer together, he honked his horn as a warning to defendant. Larsen then watched the Subaru hit the Ford Ranger on its passenger side, pushing the truck backwards and sideways. Larsen told his passenger to call 911 and went to see if he could help the occupants of the vehicles.

¶ 5 Everyone involved in the collision was injured. Although all four of the occupants of the Subaru were injured, only Shinners-Little was rendered unconscious. During trial, the parties stipulated that Shinners-Little died on June 28, 1998, as a result of the collision.

¶ 6 At the time of the accident, the weather was dry and it was dusk but still light outside. Larsen could not tell if defendant's truck had its lights on. King did not think that defendant's truck had its lights on and indicated that if the turn signal was on it was between blinks when he saw the truck. King also could not remember if he had his lights on. Neither driver slowed down or swerved to avoid the accident. The truck's tires made yaw marks on the road, indicating that the tires were turning as the collision occurred.

¶ 7 Defendant was nineteen years old at the time of the accident. As the officers who arrived at the scene were clearing the intersection, Deputy Clinton Johnson found a previously opened bottle of Canadian Host Whiskey in defendant's truck. After finding the alcohol, Deputy Johnson had defendant's blood drawn to test for the presence of alcohol. Tests of defendant's blood revealed that his blood alcohol level was .009 percent, less than .01 percent. Bruce Beck, a toxicologist from the State Health Laboratory, testified that normally he would consider a reading of.009 percent a negative test. The legal limit for blood alcohol for persons operating motor vehicles in Utah is .08 percent. See Utah Code Ann. § 41-6-44(2)(a)(i) (1998). However, the legal limit for persons under the age of twenty-one is zero percent. See Utah Code Ann. § 32A-12-209 (1999).³

¶ 8 Police officers issued defendant a citation for an improper left turn and violation of the "not a drop" law. Defendant was later charged by Information with negligent collision. On January 5, 1999, the State filed an Amended Information charging defendant with negligent homicide, possession or consumption of alcohol by a minor, open container, and failure to yield the right-of-way. A bench trial on these charges was held February 5, 1999. At the conclusion of the trial, the trial court found defendant guilty of each charge. Defendant now appeals from his convictions of negligent homicide and failure to yield the right-of-way.

ISSUES AND STANDARD OF REVIEW

¶ 9 Defendant raises and we address two issues on appeal:⁴ whether there was sufficient evidence to support defendant's negligent homicide conviction and failure to yield conviction.

¶ 10 "`When reviewing a bench trial for sufficiency of evidence, we must sustain the trial court's judgment unless it is against the clear weight of the evidence, or if the appellate court otherwise reaches a definite and firm conviction that a mistake has been made.'" Spanish Fork City v. Bryan, 1999 UT App 61, ¶ 5, 975 P.2d 501 (citations omitted). "However, `before we can uphold a conviction it must be supported by a quantum of evidence concerning each element of the crime as charged from which the [factfinder] may base its conclusion of guilt beyond a reasonable doubt.'" Id. (citation omitted). We review the trial court's legal conclusions for correctness. See State v. Pena, 869 P.2d 932, 936 (Utah 1994).

ANALYSIS

Marshaling the Evidence

¶ 11 The State urges this court to decline to review defendant's insufficient evidence claims because he failed to marshal the evidence. The burden on a defendant challenging the sufficiency of the evidence is heavy. Defendant "must marshal all of the evidence in support of the trial court's findings of fact and then demonstrate that the evidence, including all reasonable inferences drawn therefrom, is insufficient to support the findings against an attack." State v. Moosman, 794 P.2d 474, 475-76 (Utah 1990).

¶ 12 The State argues that defendant failed to marshal all the evidence supporting the trial court's findings, instead interjecting defendant's version of the facts and including facts which are not part of the record. The State points out that defendant did not testify at trial and argues that any statement in defendant's brief regarding what defendant saw at the time of the accident is not part of the record and should not be considered by this court. The State further asserts that defendant only presented and argued those portions of the evidence which support his position, and as such failed to marshal the evidence.

¶ 13 Defendant counters that he fully complied with his duty to marshal the evidence supporting the trial court's findings and asserts that some of the facts the State contends he failed to marshal are irrelevant. Defendant further contends that marshaling is unnecessary because he is challenging the trial court's legal conclusions rather than its factual findings.

¶ 14 Defendant, we believe, has adequately marshaled by citing the evidence and testimony of J. Henry Larsen and Douglas King. Further, defendant essentially argues that based on undisputed evidence, the trial court erred in finding him guilty. Therefore, we reject the State's claim that defendant failed to marshal the evidence and reach the merits of defendant's claims. In doing so, we consider only the evidence submitted at trial.

Negligent Homicide

¶ 15 Defendant first challenges the sufficiency of the evidence supporting his negligent homicide conviction. Defendant claims that there was insufficient evidence to show that his conduct was criminally negligent, that his conduct was the proximate cause of Shinners-Little's death, and that Shinners-Little's death was a foreseeable consequence of his actions. Defendant asserts that the trial court erred in its legal conclusions by failing to concede that defendant's driving could be outside the ordinary standard of care, or simply negligent, without rising to the level of criminal negligence.⁵

¶ 16 The State argues that the trial court correctly rejected the notion that defendant's actions constituted simple negligence, finding that his actions constituted a gross deviation from the standard of care. The State further asserts that the circumstances surrounding the collision present sufficient evidence to sustain defendant's negligent homicide conviction. Specifically, the State argues that the following facts combine to show that defendant's actions were criminally negligent: he had an open container in his truck; he had illegally consumed alcohol prior to the...