State v. Mollman

• Decision Date: 23 December 2003
• Docket Number: No. 22697.,22697.
• Citation: 2003 SD 150,674 N.W.2d 22
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Scott MOLLMAN, Defendant and Appellant.
• Court: South Dakota Supreme Court

674 N.W.2d 22

2003 SD 150

STATE of South Dakota, Plaintiff and Appellee, v. Scott MOLLMAN, Defendant and Appellant.

No. 22697.

Supreme Court of South Dakota.

Considered on Briefs November 17, 2003.

Decided December 23, 2003.

Lawrence E. Long, Attorney General, Patricia Archer, Assistant Attorney General, Pierre, SD, for plaintiff and appellee.

Jeremiah J. Davis, Pennington County Public Defender's Office, Rapid City, SD, for defendant and appellant.

SABERS, Justice.

[¶ 1.] Scott Mollman appeals his conviction for vehicular homicide after a jury trial. Mollman was sentenced to fifteen years in the state penitentiary. He appeals his conviction asserting the trial court abused its discretion in 1) excluding evidence that the decedent did not have a motorcycle operator's endorsement; 2) allowing the State to show the jury a picture of the decedent and his wife; and 3) denying Defendant's motion for mistrial. He also appeals his sentence, arguing 4) the sentence was grossly disproportionate and violated the Eighth Amendment prohibition against cruel and unusual punishment. We affirm the conviction and sentence.

FACTS

[¶ 2.] On May 28, 2002, Mollman and Gary Severson were involved in a collision near the intersection of West Main and Whitewood Streets in Rapid City. Severson was riding a motorcycle, Mollman was driving a car. At the time of collision, Mollman was making a left turn and Severson was approaching on the inside lane from the opposite direction. Severson had the right-of-way. When they collided, Severson was thrown from his motorcycle. Severson suffered massive head injuries and never recovered consciousness before his death two days later.

[¶ 3.] Officer Amanda Dubridge of the Rapid City Police Department was the first officer to arrive on the scene. After seeing that Severson was being cared for, Dubridge began questioning witnesses. She quickly discovered that Mollman was the other driver. She testified that when she approached him she noted a "moderate" odor of alcohol and that Mollman failed all of the field sobriety tests she administered. The chemist who tested Mollman's blood samples estimated that his blood alcohol level at the time of the accident was between .128 and .13. Mollman was originally charged with vehicular battery, driving or control of a vehicle while under the influence of alcohol or alternatively, driving or control of a vehicle while having .10 percent or more of alcohol in his blood. When Severson passed away, the complaint was amended to change the first count from vehicular battery to vehicular homicide under SDCL 22-16-41. A jury found Mollman guilty of vehicular homicide. The trial court sentenced Mollman to fifteen years in the state penitentiary. Mollman appeals his conviction and sentence raising four issues:

1. Whether the trial court abused its discretion by granting the State's motion to preclude evidence that the decedent did not have a motorcycle endorsement.

2. Whether the trial court abused its discretion by permitting the State to show the jury a photo of the decedent and his wife.

3. Whether the trial court abused its discretion by denying Defendant's motion for a mistrial. 4. Whether Mollman's sentence violates the Eighth Amendment prohibition against cruel and unusual punishment.

We affirm.

[¶ 4.] 1. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION BY GRANTING THE STATE'S MOTION TO PRECLUDE EVIDENCE THAT THE DECEDENT DID NOT HAVE A MOTORCYCLE ENDORSEMENT.

[¶ 5.] The State filed a motion in limine requesting that Mollman be prohibited from referring to the fact that the decedent did not have a valid motorcycle endorsement on his driver's license at the time of the accident.¹ The trial court granted that motion after the defense made an offer of proof on the issue.

[¶ 6.] In its offer of proof, the defense argued that the lack of endorsement was evidence that the decedent was not a competent motorcycle rider. The defense planned to offer this evidence as part of a larger trial tactic of showing that the decedent was an inexperienced and incompetent rider. The Defendant intended to introduce this evidence coupled with testimony that the decedent may have been driving very slowly, that he may have been wearing sunglasses for eye protection, that the motorcycle had low mileage and that he may have "darted" into traffic from a casino parking lot.

[¶ 7.] Mollman argues on appeal that granting the State's motion in limine denied him a fair trial because it "invaded the province of the jury by virtually finding, as a matter of law, that the State had satisfied the element of proximate cause." The State responds that evidence of the lack of endorsement was not relevant to the decedent's ability to ride and had no connection to the question whether Defendant's driving proximately caused the decedent's death. We review the court's decision under the abuse of discretion standard. State v. Knecht, 1997 SD 53, ¶ 7, 563 N.W.2d 413, 417 (additional citation omitted).

[¶ 8.] To prove that Mollman was guilty of vehicular homicide, the State was required to prove beyond a reasonable doubt that Mollman:

1. was under the influence of an alcoholic beverage;

2. did not have a "design to effect death";

3. drove his vehicle in a negligent manner; and

4. thereby caused Severson's death.

SDCL 22-16-41. This statute requires a showing by the State that Defendants negligence was a proximate cause of the decedents death. See generally, State v. Two Bulls, 1996 SD 53, 547 N.W.2d 764.

[¶ 9.] This Court first addressed the issue of proximate causation under the vehicular homicide statute in Two Bulls, 1996 SD 53, 547 N.W.2d 764. We noted that a finding of ordinary negligence is sufficient to establish vehicular homicide and therefore the appropriate standard of causation is "that employed by tort law." Two Bulls, 1996 SD 53 at ¶ 12, 547 N.W.2d at 766 (citing Commonwealth v. Berggren, 398 Mass. 338, 496 N.E.2d 660, 661-62 (1986)). Under tort law, the negligence of two or more can combine to cause the injury and each of the negligent actors may be held liable for the injury. Two Bulls, 1996 SD 53 at ¶ 13, 547 N.W.2d at 766 (citing W. Page Keeton, et al, Prosser and Keeton on Torts § 52 at 347-349 (5th Ed. 1984)) (additional citations omitted). Therefore, we held:

The negligence of another does not prevent conviction for vehicular battery or homicide, so long as the defendant's negligence is also a proximate cause of the victim's injuries or death.

Id. (citing State v. Theuring, 46 Ohio App.3d 152, 546 N.E.2d 436, 438 (1988)). We accepted the proposition that:

[T]he negligence or unlawful acts of another driver which proximately contributed to the death, as distinguished from an independent intervening cause thereof, [are] not a defense if the evidence is sufficient to sustain a conclusion beyond a reasonable doubt that the defendant's negligence or unlawful acts were also a proximate cause of the death of another.

Id. (quoting State v. Rotella, 196 Neb. 741, 246 N.W.2d 74, 76 (1976) (additional citations omitted)). Simply stated, "The deceased's negligence is irrelevant absent evidence that would support a finding that [it] amounted to an independent intervening cause[.]" State v. Lamont, 2001 SD 92, ¶ 17, 631 N.W.2d 603, 609 n2 (quoting State v. Dionne, 442 A.2d 876, 887 (R.I. 1982)). However, the defense is certainly entitled to present evidence that the decedent's actions constituted an independent intervening cause of death. Lamont, 2001 SD 92 at ¶ 15, 631 N.W.2d at 608 (citations omitted).

[¶ 10.] This Court has defined independent intervening cause, stating:

When the natural and continuous sequence of causal connection between the negligent conduct and the injury is interrupted by a new and independent cause, which itself produces the injury, that intervening cause operates to relieve the original wrongdoer of liability. However, the intervening cause must be a superseding cause. It must so entirely supersede the operation of the defendants negligence that it alone, without his negligence contributing thereto, produces the injury.

Braun v. New Hope Township, 2002 SD 67, ¶ 10, 646 N.W.2d 737, 740 (citing Schmeling v. Jorgensen, 77 S.D. 8, 18, 84 N.W.2d 558, 564 (1957) (internal citations omitted)).

[¶ 11.] After the State made its motion to prohibit evidence of the lack of a motorcycle endorsement, the trial court requested that the defense present an offer of proof on the issue. The trial court instructed the defense attorney:

Now, Mr. Davis (defense counsel), in Lamont the Supreme Court remanded the case to the trial court and indicated that it was necessary to present authority [], it wasn't a remand with direction to allow it, but rather requiring the defense to make an offer of proof. Now, in your response to the plaintiffs motions in limine, the Court wants a very specific offer of proof from you regarding the expert testimony you intend to present and how it would be appropriately introduced at trial.

After argument, the court inquired of defense counsel "how could failure to have a motorcycle endorsement [] be an independent intervening cause in this case?" Defense counsel responded, "a motorcycle endorsement in and of itself suggests that an individual is competent to operate a motorcycle." Defense counsel then concluded that without a motorcycle endorsement, "negligent and uninformed operation of that vehicle would likely be a proximate cause of any accident[.]" The trial court found:

[A]s presented in the offer of proof [lack of an endorsement], is completely speculative as to this individual decedents ability and as to the facts that occurred on the evening in question. It provides no relevant testimony. It has no connection to the element that the negligent conduct of—the negligent driving of Mr. Mollman was the proximate cause of the death of Gary Severson.

(Emphasis supplied.) On the second day of trial, Defendant made a second offer of proof...