State v. Two Bulls

• Decision Date: 11 March 1996
• Docket Number: No. 19231,19231
• Citation: 1996 SD 53,547 N.W.2d 764
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Ernest C. TWO BULLS, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 764

547 N.W.2d 764

1996 SD 53

STATE of South Dakota, Plaintiff and Appellee, v. Ernest C. TWO BULLS, Defendant and Appellant.

No. 19231.

Supreme Court of South Dakota.

Considered on Briefs March 11, 1996.

Decided May 8, 1996.

Mark Barnett, Attorney General, Tony L. Portra, Assistant Attorney General, Pierre, for plaintiff and appellee.

Bruce H. Ellison, Rapid City, for defendant and appellant.

MILLER, Chief Justice.

¶1 Ernest Two Bulls was convicted of vehicular homicide, vehicular battery, and driving a vehicle while having .10% or more of alcohol in his blood (third offense). He appeals his vehicular homicide and vehicular battery convictions, claiming that the trial court erroneously instructed the jury on proximate cause and that the evidence was insufficient to sustain these convictions. We affirm.

FACTS

¶2 At approximately 11:00 a.m. on February 24, 1994, Two Bulls was driving a yellow Subaru automobile south from Rapid City on Highway 79. His fiancee, Theresa Good Voice Flute, was seated in the front passenger seat. Her brother, Duane Good Voice Flute, sat in the back seat.

¶3 Andrew Goeden was driving a sand-hauler truck out of the Pennington County Highway Department lot toward the entrance to Highway 79. The truck carried a full load of sand. He intended to cross the two southbound lanes of Highway 79 and turn left into the northbound lanes. As Goeden's truck proceeded to cross the southbound lanes, Two Bulls' automobile collided with it. Theresa died in the crash and Duane sustained serious injuries.

¶4 Chemical analysis revealed Two Bulls had a blood-alcohol level of between .229% and .247%. The State charged him with alternative counts of driving under the influence of alcohol (third offense) and driving while having .10 percent or more of alcohol in the blood (third offense). The State also charged him with vehicular homicide for the death of Theresa and vehicular battery for the injuries sustained by Duane.

¶5 At trial, Two Bulls defended against the vehicular homicide and battery charges by claiming that he was not negligent in operating his vehicle and that negligence by the driver of the truck was the cause of the collision.

DECISION

ISSUE 1.

[p 6] Was it error to instruct the jury that Two Bulls' negligence in driving the motor vehicle need only be "a" proximate cause of death or serious bodily injury in order to find him guilty of vehicular homicide or vehicular battery?

¶7 Two Bulls was charged with a violation of SDCL 22-16-41 and -42. Under those statutes, if there is a finding of negligent operation of a motor vehicle by a person under the influence, such negligence must be shown to have "thereby cause[d]" the death or injuries.

¶8 South Dakota's Pattern Jury Instructions 3-23-8 and 3-24-29 for vehicular homicide and vehicular battery provide that an essential element of those crimes, to be proven beyond a reasonable doubt, is that negligent operation or driving by a person under the influence of alcohol be "the" proximate cause of the death or battery.

¶9 The trial court sua sponte, and over the timely objection of Two Bulls' counsel, modified the pattern instructions and substituted the word "a" for "the" therein. The trial judge rationalized that the change would make it "a bit more clear" because "it just doesn't make sense to me that it would be---that there couldn't be more than one proximate cause sufficient to justify the action."

¶10 However, the trial court did instruct the jury concerning the definition of proximate cause in the context of both vehicular homicide and vehicular battery. Two Bulls did not object to these instructions. As to the vehicular homicide charge, the instruction read in pertinent part:

By "proximate cause of the death" is meant that cause which, in the natural and continuous sequence, or chain of events, unbroken by any intervening cause, aids in producing the death, and without which it would not have occurred. It need not be the only cause, nor the last or nearest cause. It is sufficient if it concurs with some other cause acting at the same time, which in combination with it, causes the death.

The trial court gave an identical instruction concerning vehicular battery, except with reference to serious bodily injury rather than death. These instructions gave proper guidance to the jury in determining whether Two Bulls' negligence was a legal cause of the injuries. We have previously endorsed the use of nearly identical instructions when there is evidence of concurring or contributing causes. Driscoll v. Great Plains Marketing Co., 322 N.W.2d 478, 479 (S.D.1982) (citing South Dakota Pattern Jury Instructions, Vol. I, § 15.01); Leslie v. City of Bonesteel, 303 N.W.2d 117, 120 (S.D.1981). ^*

¶11 Jury instructions are adequate when, considered as a whole, they correctly state the law and properly inform the jury. State v. Schmiedt, 525 N.W.2d 253, 255 (S.D.1994); State v. Knoche, 515 N.W.2d 834, 838 (S.D.1994). To prevail, Two Bulls must not only show that the instructions were improper; he must also demonstrate that the jury probably would have returned a different verdict if the instructions had been given in the manner he proposed. Knoche, 515 N.W.2d at 838 (citing State v. Stapleton, 387 N.W.2d 28 (S.D.1986)). We conclude Two Bulls has not met this burden.

¶12 Under South Dakota law, negligent operation of a motor vehicle is an essential element of both vehicular homicide and vehicular battery. The statutes do not require a showing of recklessness or gross negligence. SDCL 22-16-41, -42. Because a finding of ordinary negligence is sufficient to establish vehicular homicide or battery, the appropriate standard of causation is that employed in tort law. Commonwealth v. Berggren, 398 Mass. 338, 496 N.E.2d 660, 661-62 (1986).

¶13 Tort law has long recognized that the negligence of two or more individuals may combine to cause injuries to another and that each may be held legally responsible for the resulting injuries. W. Page Keeton et al., Prosser and Keeton on Torts § 52, at 347-349 (5th Ed 1984); Degen v. Bayman, 86 S.D. 598, 602-03, 200 N.W.2d 134, 136 (S.D.1972); SDCL 15-8-11 and -15. South Dakota Criminal Pattern Jury Instructions 3-23-8 and 3-24-29 proffered by Two Bulls, referring to "the" proximate cause, do not take account of this joint liability. 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. See State v. Theuring, 46 Ohio App.3d 152, 546 N.E.2d 436, 438 (1988) (noting there can be more than one proximate cause of an injury and rejecting vehicular homicide, defendant's proffered instruction concerning "the" proximate cause of the death), appeal dismissed without published opinion, 38 Ohio St.3d 709, 533 N.E.2d 359 (1988); State v. William, 231 Neb. 84, 435 N.W.2d 174, 178 (1989) (quoting State v. Rotella, 196 Neb. 741, 246 N.W.2d 74, 76 (1976) ("In criminal cases prosecuted under the motor vehicle homicide act, the 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."); State v. Radziwil, 235 N.J.Super. 557, 563 A.2d 856, 863 (App.Div.1989) (noting the careless driving of another driver that contributes to an accident does not necessarily absolve the defendant of criminal responsibility for the victim's injuries), aff'd, 121 N.J. 527, 582 A.2d 1003 (1990).

¶14 The instructions given by the trial court correctly stated the law and informed the jury. We find no error.

ISSUE 2.

¶15 Was the evidence sufficient to sustain a conviction for vehicular homicide and vehicular battery?

¶16 To sustain a conviction for vehicular homicide or vehicular battery, the State must prove that the defendant operated his vehicle in a negligent manner and that his negligence caused the death or serious bodily injury of another person. SDCL 22-16-41, -42. Two Bulls argues the evidence was insufficient to establish that: (1) he was negligent in the operation of his vehicle; or (2) any negligence on his part was a proximate cause of his passengers' injuries.

¶17 Our standard of review is well settled:

In determining the sufficiency of the evidence on review, the question presented is whether there is evidence in the record which, if believed by the fact finder, is sufficient to sustain a finding of guilt beyond a reasonable doubt. State v. Lewandowski, 463 N.W.2d 341, 343-44 (S.D.1990). In this review, we must accept that evidence, and the most favorable inferences to be fairly drawn therefrom, which will support the verdict. Id. at 344 (citations omitted). In determining the sufficiency of the evidence, this Court will not " 'resolve conflicts in the evidence, pass on the credibility of witnesses, or weigh the evidence.' " State v. Hanson, 456 N.W.2d 135, 139 (S.D.1990) (quoting State v. Faehnrich, 359 N.W.2d 895, 900 (S.D.1984)). No guilty verdict will be set aside if the evidence, including circumstantial evidence and reasonable inferences drawn therefrom, sustains a reasonable theory of guilt. State v. Bartlett, 411 N.W.2d 411, 412 (S.D.1987).

State v. Wall, 481 N.W.2d 259, 262 (S.D.1992) (emphasis added).

¶18 The State presented witnesses who testified about the visibility and road conditions near the time of the accident. Fred Eisenbraun, a detective with the Rapid City Police Department, arrived at the crash site within minutes of the accident. He testified the weather was cold and windy, visibility ranged from ten to fifty feet, and the roads were slippery. Although the posted speed limit on Highway 79 permitted travel at forty-five miles per hour, he drove to the crash site at a speed of less...