State v. VanWert
| Citation | 438 N.W.2d 416 |
| Decision Date | 11 April 1989 |
| Docket Number | No. C3-88-883,C3-88-883 |
| Parties | STATE of Minnesota, Respondent, v. Richard James VanWERT, Appellant. |
| Court | Court of Appeals of Minnesota |
Syllabus by the Court
1. The trial court did not err in its additional instruction to the jury concerning the proof required in a prosecution pursuant to Minn.Stat. Sec. 609.21, subd. 2 (1986).
2. The trial court did not err in sentencing appellant to 36 months in prison.
3. The trial court did not err in allowing the victim to be present in the courtroom.
Benjamin F. Gallagher, St. Paul, for appellant.
Hubert H. Humphrey, III, Atty. Gen., Tom Foley, Ramsey County Atty., and Darrell C. Hill, Asst. County Atty., St. Paul, for respondent.
Heard, considered and decided by WOZNIAK, C.J., and LANSING and IRVINE, JJ.
Richard James VanWert was convicted by a jury of two counts of criminal vehicular operation resulting in injury. On appeal from the judgment of conviction and denial of his motion for acquittal or a new trial, VanWert argues that the trial court erred in its additional instruction to the jury on the issue of whether the state was required to prove negligence separate from driving while under the influence of alcohol or driving with a blood alcohol of .10 more. He also contends that the trial court erred by dispositionally and durationally departing from the sentencing guidelines and in allowing the victim to be present in the courtroom. We affirm.
On June 29, 1987, Ryan O'Brien, then three and a half years old, and his family were visiting a former neighbor, Gene Williams, at Williams' home at 912 Edgerton Street in St. Paul. The O'Briens arrived at approximately 9:30 p.m. and parked across the street from Williams' home. Ryan accompanied his father, Daniel, into the house while his mother, Ann, remained in the truck with Ryan's sister.
Two other former neighbors, Anita Pennington and Billie Joe Shea, stopped at the O'Briens' truck to talk to Ann. Both Pennington and Ann testified later that they saw a car, northbound on Edgerton, approaching very quickly from a bridge about three blocks away. Another witness, Timothy Naylon, also watched the car for approximately one and three-quarter blocks while he waited to pull on to Edgerton. At trial, Naylon, Pennington, and Ann all estimated the vehicle's speed at 38-45 miles per hour.
When the car was just past the front of the O'Briens' truck, Ann and Pennington heard a thump and then saw Ryan fly through the air. They testified that Ryan flew above the car and landed approximately two houses away. All of the witnesses testified that they did not hear the sound of the car's brakes until after the thump.
Williams and Daniel found Ryan lying in the southbound lane of Edgerton. His heart was beating, but he was not breathing. The police and an ambulance arrived, and Ryan was transported to the hospital.
Officer Gregory Mercado testified that he approached VanWert and immediately noticed a strong odor of alcohol. Mercado noted that VanWert was glassy eyed, swaying, and had slurred speech. VanWert admitted that he drank three beers after a softball game. Mercado also noticed that VanWert had difficulty walking to the squad car. In Mercado's opinion, VanWert was under the influence of alcohol.
The officers took VanWert to police headquarters. Two breathalyzer tests revealed a blood alcohol concentration of .19. He had a strong smell of alcohol, bloodshot eyes and slurred speech. Two hours later, VanWert failed the horizontal gaze nystagmus test. He fell during the one leg stand and could not touch the tip of his nose. He counted to 30 and recited the alphabet but had slurred speech. He did complete the nine step heel-to-toe walk. In all officers' opinions, VanWert was under the influence of alcohol at the time of the tests.
Other officers spoke to witnesses and processed the accident scene. Photos of the car showed damage to its left front end. Another officer measured the skid marks at the scene and compared them with test skid marks he made with VanWert's car at 30 miles per hour. The skid marks made at the scene indicated that VanWert may have been traveling in excess of the 30 mile per hour speed limit, although the parties disputed that fact at trial and on appeal.
Dr. Sockalosky testified about the nature and extent of Ryan's injuries. Once Ryan was at the hospital, doctors implanted permanent tubes to remove fluid and pressure from his brain and performed a tracheotomy and direct laryngoscopy. He was hospitalized for several months and still requires 24 hour care.
At present, Ryan has the mental abilities of a two to three month child and will probably never walk or talk again. He can smile and respond a bit with his eyes but has no muscle control beyond a limited ability to grasp with his right hand. He cannot swallow normally, drools, and is fed through a tube in his stomach. He is incontinent and lacks the capacity to move away from pain. At the time of Sockalosky's testimony, Ryan was wheeled into the courtroom over defense counsel's objections that Ryan's presence was more prejudicial than probative.
In his testimony, VanWert admitted he was driving the car that struck Ryan and that Ryan suffered great bodily harm but claimed the accident was unavoidable. VanWert further testified that he saw Ryan two cars in advance, applied the brakes as quickly as possible, and skidded up to him before the impact. He also admitted to seeing other people in the street by a vehicle and knew that he was approaching a playground. He testified that he may have been driving 35 miles per hour at the bridge, but claimed he slowed down before the accident.
VanWert testified that after playing softball, he drank two or three beers and two shots of root beer schnapps in a one hour and forty minute period. Two bartenders confirmed VanWert's testimony about his alcohol consumption. He went to have dinner at his mother's house and left. The accident occurred shortly thereafter.
Finally, VanWert testified that he was not under the influence of alcohol on the evening of the accident and that his ability to drive was not impaired. Several other witnesses testified that VanWert appeared normal at the bar. VanWert's mother and stepfather testified that he appeared normal when he was at their house.
1. Did the trial court err in its additional instruction regarding the proof required to convict under Minn.Stat. Sec. 609.21, subd. 2 (1986)?
2. Did the trial court err in its dispositional and durational departure from the sentencing guidelines?
3. Did the trial court err in allowing the victim to be present in the courtroom?
Minn.Stat. Sec. 609.21, subd. 2 (1986) provides in pertinent part:
Whoever causes great bodily harm to another, as defined in section 609.02, subdivision 8, not constituting attempted murder or assault as a result of operating a vehicle defined in section 169.01, subdivision 2, or an aircraft or watercraft, * * *
(2) in a negligent manner while under the influence of alcohol, a controlled substance, or any combination of those elements; or
(3) in a negligent manner while having an alcohol concentration 0.10 or more, is guilty of criminal vehicular operation resulting in injury and may be sentenced to imprisonment for not more than three years or the payment of a fine of not more than $5,000 or both.
In its initial instruction to the jury, the trial court followed the instructions suggested in 10 Minnesota Practice, CRIM.JIG, 11.27 and 11.28 (1985). CRIM.JIG 11.27 restates the provisions of subdivisions 2(2) and 2(3). CRIM.JIG 11.28 reads in pertinent part:
CRIMINAL VEHICULAR OPERATION RESULTING IN GREAT BODILY HARM--ELEMENTS
The elements of criminal vehicular operation are:
First, defendant operated a [vehicle] in
* * * * * *
a negligent manner while under the influence of (alcohol) * * *. "Operating a [vehicle] in a negligent manner" means to operate without using ordinary or reasonable care. "Operating a [vehicle] while under the influence of (alcohol) * * * " means operating the [vehicle] when ability or capacity to operate was impaired by (alcohol) * * *.
* * * * * *
Second, such operation of the [vehicle] caused great bodily harm to ______. "Great bodily harm" means bodily harm which creates a high probability of death, or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any part of the body or other serious bodily harm.
* * * * * *
10 Minnesota Practice, CRIM.JIG, 11.28 (1985). The trial court also gave the definitions of negligence found in 4 Minnesota Practice, CIV.JIG, 101, 301, and 302 (1986). JIG 101 reads:
NEGLIGENCE AND REASONABLE CARE--BASIC DEFINITION
Negligence is the failure to use reasonable care. Reasonable care is that care which a reasonable person would use under like circumstances. Negligence is the doing of something which a reasonable person would not do, or the failure to do something which a reasonable person would do, under like circumstances.
The trial court read parts of JIG 301 and JIG 302 which instructs that violation of a traffic statute can constitute negligence. In conjunction with JIG 302, the court read the speeding statute and summarized the law against driving while intoxicated.
After deliberating for several hours, the jury asked the trial court:
Does negligence beyond driving while intoxicated have to be proved? For example, speeding, it says or can driving while under the influence constitute negligence?
The trial court responded by stating that violation of a traffic statute such as speeding or driving too fast for existing conditions could constitute negligence. The court said that driving while intoxicated could constitute negligence. The court also reread JIGS 101 and 301.
VanWert argues the trial court erroneously instructed the jury in...
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