Summary
finding sufficient evidence of causation where defendant was “going about twenty-five miles per hour faster than the [second vehicle]” and defendant “had several options, including going to the left lane, going onto the right shoulder, or reducing speed” and there was “no physical evidence to show [defendant] applied the brakes prior to the collision”
Summary of this case from State v. MillerOpinion
No. 2-659 / 01-1340
Filed January 15, 2003
Appeal from the Iowa District Court for Scott County, Mark J. Smith, Judge.
Allen Reed appeals his convictions for homicide by vehicle, nonconsensual termination of a pregnancy, serious injury by vehicle, and leaving the scene of a personal injury accident. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR RESENTENCING.
Kent Simmons, Davenport, for appellant.
Thomas J. Miller, Attorney General, Linda Hines, Assistant Attorney General, William Davis, County Attorney, and Jerald Feuerbach, Assistant County Attorney, for appellee.
Heard by Huitink, P.J., and Mahan and Vaitheswaran, JJ.
Allen Reed appeals his convictions for homicide by vehicle, in violation of Iowa Code section 707.6A(2) (1999); nonconsensual termination of a pregnancy, in violation of section 707.8(2); serious injury by vehicle, in violation of section 707.6A(4); and leaving the scene of a personal injury accident, in violation of section 321.261. He claims: (1) the State did not present sufficient evidence to support his convictions; (2) he should receive a new trial; (3) the court should have granted his motion in limine; (4) the court should have granted his motions for mistrial; (5) he received an illegal sentence on the charge of leaving the scene of a personal injury accident; and (6) he received ineffective assistance of counsel. We affirm Reed's convictions, but remand for resentencing.
I. Background Facts Proceedings
On December 20, 2000, at about 1:15 p.m., Phuoc Nguyen was driving westbound on I-80 with six co-workers in his Nissan minivan. Audrey Querin was standing on the left side of the westbound road waving a flare to alert drivers that her husband, Theodore Querin, and son, Scott Querin, were attempting to remove a vehicle from the median between the eastbound and westbound roads. Theodore had parked his pickup on the right side of the westbound road. Because of the Querins' activities, traffic in this area slowed down to about fifty miles per hour.
Nguyen was driving behind Jennifer Clark, and in front of Allen Reed, who was driving a semi-tractor without a trailer. Once past the Querins, Clark "noticed a semi that was coming pretty fast up on a van that was directly behind me." Reed's semi struck the rear end of Nguyen's minivan, sending the minivan into the ditch. There was no physical evidence to show Reed applied the brakes prior to the collision. One of the passengers, Ha Nguyen, died as a result of injuries sustained in the crash. Another passenger, Kim Mae Ran, was injured and suffered a miscarriage due to the collision.
Clark testified that after she saw the minivan go into the ditch, she was forced to floor the accelerator because the semi was coming up behind her. Reed left his semi at the scene of the accident, but did not personally remain. He later turned himself over to police officers. Prior to trial, he pled guilty to leaving the scene of a personal injury accident. The other charges were tried before a jury.
The State alleged Reed was driving recklessly at the time of the collision. The State presented evidence Reed had two bottles of beer shortly before he drove. Senior Trooper Robert Smith, a technical collision investigator, testified that to cause the damage that occurred in this case the semi was going about twenty-five miles per hour faster than the minivan. Smith testified Reed had several options, including going to the left lane, going onto the right shoulder, or reducing speed, rather than hitting the minivan. Sergeant Randy Bulver, the supervisor of the State Technical Collision Investigation Unit, also testified the semi was going about twenty to thirty miles per hour faster than the minivan at the time of the collision.
A jury returned verdicts finding Reed guilty of vehicular homicide, nonconsensual termination of a human pregnancy, and serious injury by vehicle. The district court denied Reed's posttrial motions. Reed was sentenced to terms of imprisonment not to exceed ten years on the first two counts, to be served concurrently. On count three, serious injury by vehicle, he was sentenced to a term not to exceed five years, to be served consecutively to the other terms. On the charge of leaving the scene of a personal injury accident, Reed was sentenced to a term of imprisonment not to exceed two years. He now appeals.
II. Sufficiency of the Evidence
Reed claims the State did not present sufficient evidence he acted recklessly. Where a defendant challenges the sufficiency of the evidence supporting a jury verdict, our standard of review is that the verdict will be upheld if there is substantial evidence to support it. State v. Conyers, 506 N.W.2d 442, 444 (Iowa 1993). We review all the evidence presented in the light most favorable to the State to determine whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. State v. Dominguez, 482 N.W.2d 390, 392 (Iowa 1992). In considering the sufficiency of the evidence, we consider all the evidence in the record, not merely that which favors the State. State v. Kolbet, 638 N.W.2d 653, 658 (Iowa 2001).
The State has the burden to prove recklessness. State v. Klatt, 544 N.W.2d 461, 463 (Iowa Ct.App. 1995). The elements of recklessness are: (1) a conscious and intentional operation of a motor vehicle; (2) in a manner that creates an unreasonable risk of harm to others; (3) when this risk is or should have been known to the driver. State v. Atwood, 602 N.W.2d 775, 784 (Iowa 1999). The State must prove, "the defendant engaged in conduct `fraught with a high degree of danger,' conduct so obviously dangerous that the defendant knew or should have foreseen that harm would flow from it." State v. Sutton, 636 N.W.2d 107, 112 (Iowa 2001) (quoting State v. Torres, 495 N.W.2d 678, 681 (Iowa 1993)). Excessive speed may constitute recklessness. See Atwood, 602 N.W.2d at 784; State v. Abbas, 561 N.W.2d 72, 74 (Iowa 1997).
We determine there is sufficient evidence to show Reed's speed was excessive under the circumstances of the case. The evidence consistently showed the traffic was moving about fifty miles per hour. Reed was going twenty to thirty miles per hour more than this at the time he hit the minivan.
The speed limit on I-80 in that area was sixty-five miles per hour.
Reed also contends there was insufficient evidence to show he was the proximate cause of the victims' injuries. A defendant may be criminally responsible for a victim's death if the defendant's conduct is a proximate cause of the death. State v. Shortridge, 555 N.W.2d 843, 845 (Iowa Ct.App. 1996). A defendant may be relieved of criminal responsibility if an intervening act breaks the chain of causal connection between the defendant's actions and the victim's death. State v. Garcia, 616 N.W.2d 594, 596 (Iowa 2000). However, for an intervening act to relieve a defendant of criminal responsibility, the intervening act must be the sole proximate cause of death. Id. Here, there was no evidence of any intervening acts that would relieve Reed of criminal responsibility. We conclude Reed's convictions are supported by the evidence.
III. Motion for New Trial
Reed claims he is entitled to a new trial because the verdict was contrary to the weight of the evidence. The district court has broad, but not unlimited discretion in ruling on new trial requests. Iowa R.App.P. 6.14(6)( c). On a motion for new trial, the court must consider whether the verdict was contrary to the weight of the evidence. State v. Ellis, 578 N.W.2d 655, 658 (Iowa 1998). A verdict is contrary to the weight of the evidence where a greater amount of credible evidence supports one side of an issue or cause than the other. State v. O'Shea, 634 N.W.2d 150, 154 (Iowa Ct.App. 2001).
The motion for new trial clearly set forth the correct standard for review, and we determine the district court applied this standard in denying the motion. We find no abuse of discretion in the court's conclusion that the verdict was not contrary to the weight of the evidence.
IV. Motion in Limine
The district court denied Reed's motion in limine seeking to exclude evidence of his alcohol consumption prior to the collision. He claimed the evidence was inadmissible under Iowa Rule of Evidence 5.403, in that the evidence was more prejudicial than probative. He points out that the State did not claim he was driving while under the influence.
The State alleged Reed was driving a motor vehicle in a reckless manner. Driving while intoxicated is considered to be reckless conduct. See State v. Rohm, 609 N.W.2d 504, 513 (Iowa 2000); State v. Wullner, 401 N.W.2d 214, 217 (Iowa Ct.App. 1996). The evidence of alcohol consumption was relevant in this case to show Reed's reaction time was likely reduced. The evidence was a factor to be considered in determining whether Reed was driving recklessly. The evidence was not unduly prejudicial.
V. Motion for Mistrial
Prior to trial, the district court granted Reed's motion in limine to exclude evidence of his criminal history. During the trial defendant's brother, Tracy Reed, testified, "He said he was going to head for Texas and turn himself in in Texas because he knew he had warrants for him down there." Defense counsel moved for a mistrial. The court did not grant the motion. At defendant's request, the jury was admonished to disregard Tracy's statement.
The State presented an audiotape of Reed's statement made at the time of his arrest. The tape was edited to take out references to Reed's criminal problems in Texas. The following statement by Reed was left on the tape, "once you found out who I was and where I was from and that I was wanted from Texas I figured that would be one of the first places you'd look. . . ." Defense counsel again moved for a mistrial, and the motion was again denied. This time an admonishment was declined.
The district court has broad discretion when ruling on a motion for mistrial. State v. Jackson, 587 N.W.2d 764, 766 (Iowa 1998). In regard to the first motion for mistrial, we note that we have "long recognized the general sufficiency of cautionary instructions except in extreme cases." State v. Mahoney, 515 N.W.2d 47, 51 (Iowa Ct.App. 1994). This is not an extreme case. We find no abuse of discretion by the district court.
In regard to the second motion for mistrial, the court noted, "The tape as played was less than clear, at least to me, at that point. I'm not sure the jury heard it. I didn't." The prosecutor stated he thought Reed stated he was "running out of Texas," not "wanted in Texas." The district court was a firsthand observer of the alleged misconduct and the jury's reaction to it. State v. Choudry, 569 N.W.2d 618, 621 (Iowa Ct.App. 1997). We find the court did not abuse its discretion by determining Reed was not prejudiced by this statement.
VI. Illegal Sentence
Reed was charged with leaving the scene of a traffic collision, in violation of section 321.261. Under this section, a driver involved in an accident resulting in an injury who fails to stop is guilty of a serious misdemeanor under section 321.261(2), while if the accident results in the death of a person, the driver is guilty of an aggravated misdemeanor under section 321.261(3). The trial information did not specify if Reed was charged pursuant to 321.261(2) or 321.261(3).
Reed's written guilty plea clearly states he was pleading guilty to leaving the scene of a personal injury collision, but incorrectly states this is an aggravated misdemeanor. At the sentencing hearing, the court stated, "He also plead guilty to leaving the scene of an accident — a personal injury accident, which is an aggravated misdemeanor." Reed received a term of imprisonment not to exceed two years and a fine of $2500, which is commensurate with an aggravated misdemeanor. See Iowa Code § 903.1(2). Under section 903.1(1)(b), for a serious misdemeanor, the maximum sentence is a term of imprisonment not to exceed one year and a fine of $500.
On appeal, Reed claims he received an illegal sentence because the crime he pled guilty to, leaving the scene of a personal injury accident, is a serious misdemeanor under section 321.261(2), not an aggravated misdemeanor. We agree. Reed received an excessive sentence for the crime to which he pled guilty. We reverse Reed's sentence on the charge of leaving the scene of a personal injury accident and remand for resentencing on this serious misdemeanor offense. See State v. Hess, 533 N.W.2d 525, 527-28 (Iowa 1995).
VII. Ineffective Assistance
Reed asserts he received ineffective assistance because his trial counsel did not object to the jury instructions. He claims the instructions should have more fully defined "recklessness." He also claims there should have been a separate instruction on proximate cause.
Our review of an allegation of ineffective assistance of counsel is de novo. State v. Bergmann, 600 N.W.2d 311, 313 (Iowa 1999). To establish a claim of ineffective assistance of counsel, a defendant must show (1) the attorney failed to perform an essential duty, and (2) prejudice resulted to the extent it denied defendant a fair trial. State v. Ceaser, 585 N.W.2d 192, 195 (Iowa 1998).
The instruction on recklessness follows the Iowa Criminal Jury Instructions on recklessness. We are reluctant to disapprove uniform instructions. State v. Johnson, 534 N.W.2d 118, 127 (Iowa Ct.App. 1995). We find defense counsel did not breach an essential duty by failing to request a different instruction. In considering the instruction on proximate cause, we consider all of the instructions together, not piecemeal or in artificial isolation. See State v. Simpson, 528 N.W.2d 627, 632 (Iowa 1995). We conclude the instructions, taken as a whole, adequately explain the concept of proximate cause.
We affirm Reed's convictions. We reverse his sentence for leaving the scene of a personal injury accident and remand for resentencing on that charge.