State v. Sommers, 42025

• Decision Date: 13 December 1978
• Docket Number: No. 42025,42025
• Citation: 201 Neb. 809,272 N.W.2d 367
• Parties: STATE of Nebraska, Appellee, v. James B. SOMMERS, Appellant.
• Court: Nebraska Supreme Court

Page 367

272 N.W.2d 367

201 Neb. 809

STATE of Nebraska, Appellee, v. James B. SOMMERS, Appellant.

No. 42025.

Supreme Court of Nebraska.

Dec. 13, 1978.

Syllabus by the Court

1. In an action charging motor vehicle homicide, the burden is upon the State to prove beyond a reasonable doubt that the person charged operated the motor vehicle in violation of one or more of the statutory provisions relating to the operation of motor vehicles.

2. Section 39-669.09, R.R.S.1943, which provides that if the officer directs that the test shall be of the person's blood or urine, such person may choose whether the test shall be of blood or urine, does not require the officer to notify the person of his option, and if the person takes one or the other of these tests, then he has waived his right to insist that the test to be made by the State be the one of his choice.

3. By "proximate cause" is meant a moving or effective cause or fault which, in the natural and continuous sequence unbroken by an efficient intervening cause, produces the death and without which the death would not have occurred.

4. To justify a conviction on circumstantial evidence it is necessary that the facts and circumstances essential to the conclusion sought must be proved by competent evidence beyond a reasonable doubt, and when taken together must be of such a character as to be consistent with each other and with the hypothesis sought to be established thereby, and inconsistent with any reasonable hypothesis of innocence.

5. In determining the sufficiency of evidence to sustain a conviction it is not the province of this court to resolve conflicts in the evidence, pass on the credibility of witnesses, determine the plausibility of explanations, or weigh the evidence.

6. This court will not interfere on appeal with a conviction based upon evidence unless it is so lacking in probative force that the court can say as a matter of law that it is insufficient to support a verdict of guilt beyond a reasonable doubt.

Kirk E. Naylor, Jr., Naylor & Keefe, Lincoln, for appellant.

Paul L. Douglas, Atty. Gen., Linda A. Akers, Asst. Atty. Gen., Lincoln, for appellee.

Heard before SPENCER, C. J., Pro Tem., BOSLAUGH, McCOWN, CLINTON, BRODKEY and WHITE, JJ., and RIST, District Judge.

SPENCER, Chief Justice, Pro Tem.

Defendant appeals his conviction for the offense of motor vehicle homicide. The action was prosecuted as a felony by virtue of the allegation that he unlawfully operated his vehicle by having ten-hundredths of one percent or more by weight of alcohol in his body fluid. The case was tried to the court. There are two assignments of error: (1) Should the blood alcohol test have been suppressed because defendant was not afforded an opportunity to choose between a blood or urine test; and (2) was the evidence legally sufficient to find the defendant guilty of the crime charged. We affirm.

The information filed charged that defendant "did cause the death of Victor W. Johnson without malice while engaged in the unlawful operation of a motor vehicle, to wit: did unlawfully operate a motor vehicle while having ten-hundredths of one percent or more by weight of alcohol in his body fluid as shown by chemical analysis of his blood, breath, or urine."

In Pribyl v. State, 165 Neb. 691, 87 N.W.2d 201 (1957), we said: "In an action charging motor vehicle homicide the burden is on the State to prove beyond a reasonable doubt that the person charged operated the motor vehicle in violation of one or more of the statutory provisions relating to the operation of motor vehicles."

The State had the burden to establish that defendant operated his motor vehicle while having ten-hundredths of one percent or more by weight of alcohol in his body fluid, as shown by chemical analysis of his blood, breath, or urine. It then had the further burden to establish that this unlawful act was a proximate cause of the death of the deceased.

We consider the defendant's first assignment of error. Sommers was taken by ambulance to the Lincoln General Hospital. Officer Kawamoto was directed by a police radio call to obtain a blood specimen from him. With this purpose in mind he met Sommers in the emergency room at the hospital. Kawamoto testified he read the defendant the implied consent form used by the police department to inform an accused of his rights. After reading the form he directed the attending nurse to draw the blood for the test. Defendant complains the test should be suppressed because the officer did not give defendant an opportunity to elect between a blood or urine test. There is no merit to this assignment. This issue was settled in State v. Wahrman, 199 Neb. 337, 258 N.W.2d 818 (1977). We there said: "Section 39-669.09, R.R.S. 1943, which provides that if the officer directs that the test shall be of the person's blood or urine, such person may choose whether the test shall be of blood or urine, does not require the officer to notify the person of his option, and if the person takes one or the other of these tests, then he has waived his right to insist that the test to be made by the State be the one of his choice."

The evidence clearly established that defendant was engaged in the unlawful operation of a motor vehicle as charged in the information. Chemical analysis of the blood sample, which was properly admitted, revealed sixteen-hundredths of one percent by weight of alcohol. Apart from the test evidence there was ample testimony from which it could be determined that defendant, at the time in question, was under the influence of alcoholic liquor.

The main issue on this appeal is whether defendant's unlawful operation of his vehicle was a proximate cause of the death of decedent. By "proximate cause" is meant a moving or effective cause or fault which, in the natural and continuous sequence, unbroken by an efficient intervening cause, produces the death and without which the death would not have occurred. See NJI No. 3.41.

The collision occurred at approximately 1 a. m. on March 20, 1977, while deceased was operating a 1972 Mazda sedan, traveling south on the Tenth Street viaduct between Charleston and Avery Streets in Lincoln, Nebraska. Defendant, who was operating a 21/2-ton Ford pickup from the south, crossed the center line on the viaduct and collided head on with the deceased's automobile. The point of impact was 2 feet 6 inches west of the center line, over into deceased's traffic lane. The deceased's car was propelled backward to the north and into the guard rail on the west side of the viaduct. The car came to rest near the center of the road, almost 50 feet north of the point of impact. Following the collision, defendant's vehicle began to spin. It struck the curbs on both sides of the road several times. It came to rest some 320 feet north of the point of impact. The viaduct was covered with ice but the street on either side of the viaduct was only wet. It was stipulated that on the evening of March 19, 1977, commencing at about 10 p. m., Lincoln experienced a rapid cooling trend. Between approximately 10 p. m. and midnight, the temperature dropped from 32 degrees to 20 degrees Fahrenheit.

Prior to the impact defendant's vehicle left a skid mark in the ice caused by the application of his brakes. The skid mark started approximately 20 feet north from a power pole used as a reference line for measurement. It also started 20 feet prior to the point where it crossed the center of the roadway, and thereafter continued for 80 feet but faded 15 feet from the point of impact. The power pole or reference point was approximately 350 feet from the southwest corner of the viaduct so that defendant traveled approximately 480 feet on the viaduct to the point of impact.

The only living witnesses to the collision, the defendant and his passenger, were injured in the collision and have no recollection of it. Defendant testified his speed was approximately 30 to 35 miles per hour as he proceeded north on Tenth Street. Two other witnesses testified he passed their car, which was traveling 30 to 35 miles per hour, approximately 2 blocks before the approach to the bridge. One of the witnesses said he went flying by. The posted speed was 35 miles per hour.

Officer Kubicek of the Lincoln police department testified that about 11:30 p. m. on the evening of March 19, 1977, while on routine patrol, he drove over the viaduct. At that time he noticed ice forming on it caused him to lose traction. He radioed, suggesting that a sand crew be sent to the viaduct, but none ever arrived.

Christine Creal testified she approached the viaduct from the south at about 11 p. m. that evening. She did not observe anything unusual about the street conditions before reaching the viaduct. As she started up the incline, traveling about 30 miles per hour, her car began to swerve. The car spun completely around once or twice, before coming to a halt in the southbound lane. The car struck the curb on the west side of the viaduct. She had not had anything to drink that night.

Daniel Burbach testified he crossed the viaduct from the...