Opinion
Case No. 20060221-CA.
Filed April 5, 2007. Not For Official Publication.
Appeal from Third District, West Jordan Department, 051400059 The Honorable Royal I. Hansen.
Attorneys: Rodney R. Parker, Richard A. Van Wagoner, and Frederick Mark Gedicks, Salt Lake City, for Appellant.
Christopher G. Bown, West Jordan, for Appellee.
Before Judges BENCH, ORME, and THORNE.
MEMORANDUM DECISION
Elizabeth M. DeSeelhorst appeals from her conviction by jury on a single count of negligent homicide. See Utah Code Ann. § 76-5-206 (2003). We affirm.
DeSeelhorst first argues that the State's evidence was insufficient to establish that she acted with criminal negligence in causing the victim's death. A person acts
[w]ith criminal negligence or is criminally negligent with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise in all the circumstances as viewed from the actor's standpoint.Id. § 76-2-103(4) (2003). "In considering an insufficiency of the evidence claim, this court reviews the evidence and all inferences which may reasonably be drawn from it in the light most favorable to the verdict of the jury." State v. Holbert, 2002 UT App 426, ¶ 27, 61 P.3d 291 (quotations and citation omitted). "A jury conviction will be reversed for insufficient evidence only if the evidence presented at trial is so insufficient that reasonable minds could not have reached the verdict." Id. (quotations and citation omitted).
The evidence in this case, viewed in the light most favorable to the jury's verdict, is sufficient to establish DeSeelhorst's criminal negligence beyond a reasonable doubt. DeSeelhorst drove the canyon road regularly and knew that bicyclists frequently used the road. At the time of the accident, DeSeelhorst stated to police and other witnesses that she had seen the victim bicycling uphill about 150 feet in front of her, giving her ample time to avoid a collision. DeSeelhorst failed to stay within her lane of travel as she approached the victim, and was at least partially outside of her lane when the collision occurred. A second uphill lane of travel was available to DeSeelhorst such that she could have given the victim a wider berth without the risk of encountering oncoming traffic. Despite these factors, DeSeelhorst struck the victim with the center of her vehicle. A reasonable jury could conclude that DeSeelhorst's operation of her vehicle outside her lane of travel, after seeing a bicyclist occupying that area and having two full uphill traffic lanes in which to drive, constituted a "substantial and unjustifiable risk" of harm to the victim of which DeSeelhorst should have been aware, and was "a gross deviation from the standard of care that an ordinary person would exercise" in DeSeelhorst's circumstances. Utah Code Ann. § 76-2-103(4).
We also conclude that the circumstances in this case are distinguishable from those in State v. Larsen, 2000 UT App 106, 999 P.2d 1252, and similar Utah cases cited by DeSeelhorst. In Larsen, a driver caused a fatal accident when he made a left turn in front of an oncoming vehicle that he had failed to notice. See id. at ¶ 21 ("[D]efendant simply failed to see an oncoming car which was visible to other drivers as he made a left turn, with tragic consequences."). Reviewing the trial court's verdict after a bench trial, this court determined that Larsen's actions showed a serious mistake in judgment, but did not constitute a gross deviation from the standard of care. See id. at ¶¶ 19-22. Here, by contrast, there is evidence that DeSeelhorst did see the victim in time to avoid the collision, yet failed to do so. It is this failure to avoid striking the victim after becoming aware of her presence in time to take evasive action that takes DeSeelhorst's actions outside of the circumstances that warranted reversal in Larsen. See id.; see also State v. Adamson, 101 Utah 534, 125 P.2d 429, 429-31 (1942) (reversing involuntary manslaughter conviction where defendant was unable to see bicyclist victim);State v. Gutheil, 98 Utah 205, 98 P.2d 943, 943-44 (1940) (reversing conviction where defendant driver attempted, albeit unsuccessfully, to avoid victim upon seeing him).
DeSeelhorst also argues that an alternative hypothesis that she presented at trial — that she suffered a mini-stroke at the time of the accident — constitutes an unrebutted and reasonable hypothesis of innocence that should have mandated acquittal. "[I]t is within the province of the jury to judge the credibility of the testimony, assign weight to the evidence, and reject . . . alternate hypotheses."State v. Blubaugh, 904 P.2d 688, 694-95 (Utah Ct.App. 1995). Here, the jury considered both the State's evidence and the medical testimony provided by DeSeelhorst's expert witness, and elected to reject DeSeelhorst's theory of events in favor of the State's theory. In so doing, the jury acted within its province, and we will not disturb its decision under the circumstances of this case.
We also disagree with DeSeelhorst's characterization of the State's theory as being so inherently improbable that no reasonable person could accept it as an explanation of the accident.
For these reasons, we affirm DeSeelhorst's conviction.
WE CONCUR: Russell W. Bench, Presiding Judge., Gregory K. Orme, Judge.