State v. Lohmeier

• Decision Date: 12 July 1995
• Docket Number: No. 94-2187-CR,94-2187-CR
• Citation: 196 Wis.2d 432,538 N.W.2d 821
• Parties: STATE of Wisconsin, Plaintiff-Respondent, d v. George C. LOHMEIER, Defendant-Appellant. . Oral Argument
• Court: Wisconsin Court of Appeals

Page 821

538 N.W.2d 821

196 Wis.2d 432

STATE of Wisconsin, Plaintiff-Respondent, ^d v. George C. LOHMEIER, Defendant-Appellant.

No. 94-2187-CR.

Court of Appeals of Wisconsin.

Oral Argument July 12, 1995.

Opinion Released Aug. 16, 1995.

Opinion Filed Aug. 16, 1995.

On behalf of the defendant-appellant, the cause was submitted on the briefs and oral argument of Dennis P. Coffey of Coffey, Coffey & Geraghty, Milwaukee.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, Attorney General, and William C. Wolford, Assistant Attorney General. Oral argument was by William C. Wolford.

Before ANDERSON, P.J., and BROWN and SNYDER, JJ.

ANDERSON, Presiding Judge.

George C. Lohmeier appeals from a judgment of conviction for two counts of homicide by intoxicated use of a vehicle contrary to § 940.09(1)(a), STATS., two counts of homicide by prohibited alcohol concentration contrary to § 940.09(1)(b) and two counts of hit and run causing death contrary to §§ 346.67 and 346.74(5), STATS. We conclude that § 940.09(2) does not violate the Equal Protection Clause and therefore affirm the conviction in part. However, because we conclude that the jury instruction on contributory negligence deprived Lohmeier of his affirmative defense of intervening cause, we reverse and remand for a new trial.

In June 1993, Lohmeier struck Renee Belair and Staci Rogers with his car as the girls were walking along the road where Lohmeier was driving. Trial testimony revealed that Lohmeier's blood alcohol content was 0.186%. Michael Sugrue, an eyewitness, told the police that he observed through his rear view mirror Lohmeier's vehicle strike the two girls. Sugrue testified that when he passed the girls, "[t]hey were walking towards me on the other side of the road. One was in the road, probably a couple of feet off of the road. One of them was like on the edge of the road about half on, half off." He further testified that Lohmeier's car was "kind of far over on the edge of the road" toward the ditch line. One of the victims died at the scene and the other victim died later at the hospital.

Lohmeier was charged with, among other things, homicide by intoxicated use of a vehicle, contrary to § 940.09(1)(a) and (b), STATS. At trial, Lohmeier presented the testimony of an accident reconstructionist that the victims had been on the road, rather than on the shoulder. This testimony was intended to support his defense that the accident would have occurred even if Lohmeier had been exercising due care in the operation of his vehicle.

At the conclusion of trial, over Lohmeier's objection, the court allowed the following jury instruction offered by the State: "You are further instructed as to these four counts that it is no defense to a prosecution for a crime that the victim may have been contributorily negligent." The jury subsequently found Lohmeier guilty of two counts of homicide by the intoxicated use of a vehicle, two counts of homicide by a prohibited alcohol concentration and two counts of hit and run causing death. Lohmeier appeals.

Lohmeier argues that § 940.09(2), STATS., violates the Equal Protection Clauses of the Wisconsin and United States Constitutions. The constitutionality of a statute is a question of law which we review de novo. See Bachowski v. Salamone, 139 Wis.2d 397, 404, 407 N.W.2d 533, 536 (1987).

Initially, it is important to note the familiar proposition that "constitutional challenges to a statute must overcome a strong presumption of constitutionality." State v. Thiel, 188 Wis.2d 695, 706, 524 N.W.2d 641, 645 (1994). A party attacking a statute on constitutional grounds has the burden of proving that the statute is unconstitutional beyond a reasonable doubt. Wisconsin Bingo Supply & Equip. Co. v. Wisconsin Bingo Control Bd., 88 Wis.2d 293, 301, 276 N.W.2d 716, 719 (1979).

Lohmeier asserts that § 940.09(2), STATS., ¹ violates the Equal Protection Clauses of the state and federal constitutions because it creates a distinct classification of citizens and treats the class significantly different than others similarly situated. He argues that § 940.09(2) places the burden of proof on the defendant to prove an affirmative defense, while a defendant prosecuted for first-degree intentional homicide under 940.01, STATS., ² does not have the burden of proof to prove the affirmative defenses under that section.

In Milwaukee Brewers v. DHSS, 130 Wis.2d 79, 90, 387 N.W.2d 254, 259 (1986), the supreme court stated that there are two threshold questions to resolve before reaching the fundamental equal protection issue: (1) did this legislation create a distinct classification of citizens; and, if so, (2) did this legislation treat the class significantly differently from all others similarly situated. We apply these questions to the present case.

Under the circumstances of this case, we do not reach the equal protection issue. We answer the first question articulated in Milwaukee Brewers affirmatively. Section 940.09, STATS., creates a distinct class of citizens--those people who cause a death by operation of a motor vehicle while intoxicated. Lohmeier, however, has not satisfied the second threshold question that the legislation treats the class significantly differently from all others similarly situated. We conclude that people charged with first-degree intentional homicide are in a different situation than those charged with homicide by intoxicated use of a vehicle.

As articulated by the State, the only similarities between the two statutes are that they involve death and incorporate a statutory affirmative defense. Unlike homicide by intoxicated use of a vehicle where no mental element need be shown, ³ first-degree intentional homicide requires a showing of intent to kill. Section 940.09, STATS., requires a showing of the defendant's use of a vehicle or firearm while under the influence of an intoxicant--s 940.01, STATS., does not. Additionally, if a defendant establishes an affirmative defense under § 940.01, the offense is mitigated to a lesser charge. In contrast, if a defendant establishes an affirmative defense under § 940.09, he or she is acquitted.

Another reason why the defendants in an intentional homicide case are not similarly situated with intoxicated drivers is that intentional homicide defendants have affirmative defenses which can disprove an element while intoxicated drivers have an affirmative defense which can establish a finding of fact. In State v. Loomer, 153 Wis.2d 645, 651, 451 N.W.2d 470, 472 (Ct.App.1989), this court stated:

A State may constitutionally place a burden of proof upon a defendant with respect to a question of fact so long as the defense is affirmative and does not attack an element of the crime. Therefore, there was no constitutional error in assigning the burden to Loomer with respect to his affirmative defense of intervening cause and no constitutional error in so instructing the jury.

All of the affirmative defenses to an intentional homicide go to an element of the crime, namely, intent. Also, since the State has to prove intent anyway, it is in the best position to disprove the affirmative defenses going to negate the intent element. See State v. Buelow, 122 Wis.2d 465, 471, 363 N.W.2d 255, 259 (Ct.App.1984) (listing the five considerations for placing the burden of proof on a party; it is "fair" to place the burden on a party who has the ultimate burden to prove an element anyway). In contrast, in the present case, the question to be resolved is one of fact, i.e., was there negligence on the part of the victims and was that negligence the intervening factor in the accident.

We therefore conclude that because defendants who commit crimes under § 940.01, STATS., and § 940.09, STATS., are not similarly situated, we need not reach the Equal Protection Clause issue.

Next, Lohmeier argues that "the trial court erred by instructing the jury that contributory negligence on the part of the victims could not be relied on to support the affirmative defense." As long as jury instructions fully and fairly inform the jury of the law applicable to the particular case, the trial court has discretion in deciding which instructions will be given. Farrell v. John Deere Co., 151 Wis.2d 45, 60, 443 N.W.2d 50, 54 (Ct.App.1989). Whether there are sufficient facts to allow the giving of an instruction is a question of law which we review de novo. Id.

In reviewing jury instructions, we are required to consider the instructions as a whole and in their entirety. Betchkal v. Willis, 127 Wis.2d 177, 187-88, 378 N.W.2d 684, 689 (1985). Furthermore, where a trial court has erroneously given an instruction, a new trial is not warranted unless the error is determined to be prejudicial. Id. at 188, 378 N.W.2d at 689. "The test to be applied in determining whether such an error is prejudicial is the probability and not mere possibility that the jury was misled thereby." Id. (quoted source omitted).

It is negligence per se to operate a motor vehicle while intoxicated. State v. Caibaiosai, 122 Wis.2d 587, 595, 363 N.W.2d 574, 578 (1985). Section 940.09(2), STATS., however, provides an affirmative defense for homicide by intoxicated use of a vehicle. According to Caibaiosai, 122 Wis.2d at 596, 363 N.W.2d at 578, sub. (2) provides a defense for the situation where there is an intervening cause between the intoxicated operation of the vehicle and the death of an individual. An "intervening cause" has been defined as "a new and independent force which breaks the causal connection between the original act or omission and the injury, and itself becomes the direct and immediate cause of the injury." State v. Turk, 154 Wis.2d 294, 296, 453 N.W.2d 163, 164-65 (Ct.App.1990) (quoted source omitted).

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