This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-00-1993

 

Roxanne Marie Price, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

 

 

Filed June 19, 2001

Affirmed

Stoneburner, Judge

 

Hennepin County District Court

File No. 97098217

 

John M. Stuart, State Public Defender, Steven P. Russett, Assistant State Public Defender, Suite 600, 2829 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)

 

Michael A. Hatch, Minnesota Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103; and

 

Amy Klobuchar, Hennepin County Attorney, Michael K. Walz, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

            Considered and decided by Klaphake, Presiding Judge, Stoneburner, Judge, and Huspeni, Judge.*

 

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            A jury found appellant Roxanne Marie Price guilty of two counts of criminal vehicular homicide.  The district court denied Price’s petition for postconviction relief.  Price appeals, arguing that (1) her conviction is unsupported by sufficient evidence; (2) the district court abused its discretion in admitting evidence that she did not have a valid commercial driver’s license and in excluding her expert’s opinion that her driving conduct was appropriate; (3) the state’s references to Minn. Stat. § 169.14 (1996) resulted in an unfair trial; and (4) the cumulative effect of these errors resulted in an unfair trial. Because the evidence is sufficient to support the verdict and the evidentiary issues did not result in an unfair trial, we affirm.

FACTS

 

Appellant Roxanne Marie Price, driving a semi-truck with a fully-loaded “belly dump” trailer, ran a red light and struck a Geo Metro, killing the pregnant driver, Heather Olson.  Price was charged with two counts of felony criminal vehicular homicide, Minn. Stat. § 609.21, subds. 1(1), 3(1) (1996).

On October 2, 1997, Price and others were hauling dirt from a gravel pit in Maple Grove to a construction project near Highway 252.  This was Price’s second day working on the project.  The trucks traveled on County Road 30 through the intersection with County Road 14 from the gravel pit to the construction site and back thirty to thirty-five times a day.  The intersection is controlled by traffic lights.  The speed limit is 50 mph on both roads.  The roads were clear and dry.  At about 10:59 P.M., Price, who was traveling east on County Road 30, failed to stop for a red light and struck the Olson vehicle, which had entered the intersection on a green light traveling north on County Road 14.  Price was driving without a commercial driver’s license.[1]

Deputy Ramsey County Sheriff Neng Vang (at the time of the accident a police cadet for Brooklyn Park) testified at trial that he was travelling north on County Road 14 behind Olson’s vehicle, which he saw was stopped at the red light at the intersection at County Road 30.  As Vang approached the intersection, he saw the light turn green and Olson’s vehicle pull into the intersection.  Vang saw Price’s truck approaching the intersection on County Road 30 about 150 feet from the intersection.  Vang testified that the truck “accelerated across the intersection” and collided with Olson’s Geo Metro and pushed it into a ditch.

Vincent Miels, another truck driver working on the same project as Price, also witnessed the collision.  Miels testified that he was traveling west on County Road 30 about a quarter mile from County Road 14 when he saw the light turn red, and he slowed down.  He then saw Price approach from the west, flash her headlights, drive into the left turn lane, enter the intersection, and then collide with Olson’s vehicle in the center of the intersection.  Miels testified that after the accident, Price told him that she “couldn’t stop.”  Miels told Police Officer Charles Schuveiller at the scene that Price told him that “she couldn’t stop and that she had ran the light.”  Police Officer Steven Baker testified that he spoke with Price at the scene of the accident, and she told him that she was “trying to beat the light and [Olson] pulled out in front of [her].” 

            Commercial-vehicle inspector James Ullmer examined Price’s truck and testified as to its condition.  Ullmer found, among other technical violations, that the city horn of the truck tractor did not work, the tires were worn, and the air-brake system had a leak, although the brakes could adequately stop the vehicle.  Ullmer noted that the combined weight of the tractor and loaded trailer, 79,780 pounds, exceeded its registered weight of 73,280 pounds.[2]  Ullmer testified that he did not find inspection reports, required by federal regulations, indicating that Price had inspected the tractor prior to driving it.  Ullmer testified that some of the technical violations he found could not have contributed to the accident but did not testify, as Price asserts, that none of the violations contributed to the accident.

            The state called Minnesota State Patrol accident reconstruction specialist Charles Walerius.  Based on a 160-foot skid mark beginning three to four feet prior to the point of impact, Walerius calculated Price’s speed at impact to be, at a minimum, 47.07 mph.  Walerius calculated that Olson was hit 4.022 seconds after her light turned green, when she was 44 feet into the intersection.  Using these calculations, Walerius determined that Price was 683 feet from the intersection when the light turned yellow and 344 feet from the intersection when it turned red.  Walerius opined that if Price had applied the brakes when the light turned red, the truck could have stopped in 255 feet, “well short of the intersection.”  Walerius took into account the deficiencies in the brakes in making his calculations.  Walerius’s calculations indicated that the collision would not have occurred had Price remained in her lane of traffic rather than changing lanes prior to entering the intersection.  Walerius, who is also a commercial vehicle inspector, did not see anything significant about the intersection that would cause a commercial vehicle to lose control. 

            Accident reconstruction expert David Daubert testified for the defense.  Daubert also estimated Price’s approximate speed to be 47 mph but testified that in his opinion the truck needed 489 to 628 feet for a “controlled stop” and a little under 300 feet for an “uncontrolled stop,” where the breaks would lock up.  Assuming Price was traveling 50 mph, the speed limit, Daubert testified that Price would need 438 feet from the intersection when the light turned yellow to stop.  Daubert testified Price was in the “dilemma zone,” when a driver has difficulty knowing whether he or she is capable of stopping for a light.  Daubert also noted that a high number of collisions had occurred at the intersection and that the intersection had significant “traffic clutter,” such as utility poles and other structures, making it a “problem intersection” for truckers.  

            Price’s employer, Colleen Donovan, agreed with Daubert’s description of the intersection.  She timed the lights and testified that the lights turned from green to yellow in 4.5 seconds, and “all-red lights” lasted only .008 seconds.  Donovan also noticed that utility poles obstructed her view of the traffic lights.  Price did not testify. 

            The jury found Price guilty of both counts of criminal vehicular homicide.  The district court sentenced Price to consecutive, stayed 48-month prison terms for each count.  In October 1999, the district court found Price in violation of her parole and executed one 48-month sentence.  Price petitioned for postconviction relief, and the district court denied the petition.  Price appeals.

D E C I S I O N

 

            This court reviews a postconviction proceeding to determine whether the evidence is sufficient to sustain the findings of the postconviction court.  Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992).  Absent an abuse of discretion, a postconviction court’s decision will not be disturbed on appeal.  McMaster v. State, 551 N.W.2d 218, 218 (Minn. 1996).

1.  Sufficiency of the Evidence

            Price argues that the evidence is insufficient to support a conviction of criminal vehicular homicide because the state did not prove beyond a reasonable doubt that she acted with gross negligence. 

            This court’s review of the sufficiency of the evidence is limited to a careful analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, sufficiently supports the verdict.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  This court must assume that the factfinder believed the state’s witnesses and disbelieved any contrary evidence.  State v. McKenzie, 511 N.W.2d 14, 17 (Minn. 1994); State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988).  We will not disturb a verdict if the factfinder, acting with due regard for the presumption of innocence and for the necessity of proof beyond a reasonable doubt, could reasonably have found the defendant’s guilt was proved.  State v. Davidson, 481 N.W.2d 51, 58 (Minn. 1992).

            Price is guilty of criminal vehicular operation resulting in death if she caused the death of another person by operating a vehicle in a grossly negligent manner.  Minn. Stat. § 609.21, subd. 1(1) (1996).  “Gross negligence is ‘the want of even scant care.’”  State v. Iten, 401 N.W.2d 127, 129 (Minn. App. 1987) (quoting State v. Bolsinger, 221 Minn. 154, 158, 21 N.W.2d 480, 485 (1946)).  Gross negligence requires “some egregious driving conduct coupled with other evidence of negligence.”  State v. Miller, 471 N.W.2d 380, 384 (Minn. App. 1991).  Gross negligence does not require willful and wanton disregard, or reckless conduct, but rather a sufficient degree of inattention to the road is enough.  State v. Pelawa, 590 N.W.2d 142, 145 (Minn. App. 1999), review denied (Minn. Apr. 28, 1999); State v. Hegstrom, 543 N.W.2d 698, 702-703 (Minn. App. 1996) (finding evidence that defendant rear-ended victim while travelling 30 mph faster than the victim’s vehicle and without applying the breaks on a roadway with good visibility and good conditions supported a conviction for negligent criminal homicide), review denied (Minn. Apr. 16, 1996); see, e.g., State v. Tinklenberg, 292 Minn. 271, 273, 194 N.W.2d 590, 591 (1972) (finding evidence that defendant’s speed was greatly in excess of the speed limit, that she had a lack of control over her vehicle and might not have had her headlights illuminated showed a shocking lack of attention and supported the jury’s finding of gross negligence); State v. Plummer, 511 N.W.2d 36, 39 (Minn. App. 1994) (finding evidence that defendant had approximately 490 feet to observe red light prior to entering intersection, that roads were wet, that he was speeding, and that he admitted to police that he was not watching the road supported probable cause for criminal negligent homicide).

            A failure to inspect alone is insufficient to support a finding of criminal gross negligence.  Miller, 471 N.W.2dat 383.  This court has found, however, that a failure to inspect a truck, as required by law, plus a failure to stop when the defendant had sufficient time to do so, supported a finding of gross negligence.  See Iten, 401 N.W.2d at 129 (noting defendant received the red light 321 feet from the point of impact).  In Iten, the court found the evidence was sufficient to support a finding of gross negligence despite the fact that the defendant took measures to avoid hitting the vehicle and sounded his horn before entering the intersection.  Id.

            As in Iten, Price failed to inspect her truck.  Knowledge of the brake problem and other defects might have affected the manner in which Price drove the truck.  As in Iten, she failed to stop when she had sufficient time to do so.  Price, however, took no evasive measures to avoid the collision.  She changed lanes, which contributed to the accident, and accelerated through the intersection, braking only three to four feet prior to impact.  The evidence supports the jury’s finding of gross negligence and a conviction of criminal vehicular homicide.

2.  Commercial driver’s license

            Price argues that the district court erred in admitting evidence that she did not have a commercial driver’s license.  Appellate courts largely defer to the district court’s evidentiary rulings, which will not be overturned absent a clear abuse of discretion.  State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989). 

            We agree with Price that, based on caselaw, this evidence was not relevant or material to negligence.  See Jones v. Fleischhacker, 325 N.W.2d 633, 639 (Minn. 1982) (holding lack of a driver’s license irrelevant to issue of negligence per se); accord Knutson v. Nielsen, 256 Minn. 506, 519, 99 N.W.2d 215, 223 (1959); Hagel v. Schoenbauer, 532 N.W.2d 255, 258 (Minn. App. 1995).  If the district court has erred in admitting evidence, the reviewing court determines “whether there is a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict.”  State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994).  If there is a reasonable possibility that the verdict might have been more favorable to the defendant without the evidence, then the error is prejudicial.  Id.

The state did not use evidence that Price did not have a commercial driver’s license to argue negligence or gross negligence, but rather used the evidence to argue that commercial drivers are required to have training beyond that of an ordinary driver and are therefore held to a higher standard of care.  Sufficient other evidence, however, supports the jury’s finding of gross negligence, and there is no indication that the jury relied on the lack of a commercial driver’s license at the time of the accident in finding gross negligence, or that the verdict would have been different without this evidence.  Any error in admission of evidence of Price’s lack of a commercial driver’s license was harmless.

3.  Expert testimony

            Price argues that the district court erred in excluding defense expert Daubert’s opinion on the propriety of Price’s driving conduct.  The district court found Daubert’s opinion lacked foundation:

There was no evidence presented at trial as to how [Price] was acting as she approached the intersection, whether she had fallen asleep, closed her eyes, was sick, blacked out, was trying to avoid hitting someone else, was on a suicide mission, or just missed the light entirely.  The evidence was clear that she had gone through the red light; whether she was acting extremely inappropriately was a question for the jury to determine from the other evidence, not from an expert’s opinion lacking in foundation or based on inadmissible foundation.

 

The admission of expert testimony is within the broad discretion of the district court, and its findings on materiality, foundation, remoteness, relevancy, or the cumulative nature of the evidence will be reversed only for a clear abuse of discretion.  State v. Ritt, 599 N.W.2d 802, 810 (Minn. 1999) (citation omitted), cert. denied, 528 U.S. 1165 (2000). 

Expert testimony in the form of an opinion is not objectionable solely because it embraces the ultimate issue, but legal analysis by an expert is “ordinarily inadmissible.”  Behlke v. Conwed Corp., 474 N.W.2d 351, 356, 359 (Minn. App. 1991) (citation omitted), review denied (Minn. Oct. 11, 1991).  The admissibility of expert testimony depends on:

(1)  whether there exist sufficient data to assure a reasonably complete and accurate reconstruction of the accident without indulging in speculation; and (2) more importantly, whether such opinion will assist the triers of fact.

 

Id. at 356(citation omitted); see also Minn. R. Evid. 403 (noting relevant “evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury”); State v. Nystrom, 596 N.W.2d 256, 259 (Minn. 1999) (stating court must scrutinize proffered expert testimony and exclude it if it is irrelevant, confusing, or not helpful).

            In this case, the jury had before it the same evidentiary information that the defense expert had.  Daubert knew no more about the conditions of the intersection and the truck than the jury.  His opinion on the propriety of Price’s driving conduct would not have been helpful to the jury, because it would not have given the jury any more knowledge than they could have discerned themselves.  The district court did not abuse its discretion in excluding the defense expert’s testimony on the propriety of Price’s conduct.

4.  Statute

The prosecutor, without objection, asked Price’s expert to read aloud Minn. Stat.  § 169.14, subd. 1 (1996), stating the duty of every driver to exercise due care and to drive at a speed no greater than is reasonable and prudent.  In closing argument, the prosecutor argued that because Price was familiar with the intersection, including the timing of the lights, it was reasonable and prudent under the circumstances for her to reduce her speed.  Price argues that this use of Minn. Stat. § 169.14 resulted in an unfair trial. 

Price has waived her right to appeal on this issue, because she failed to object at trial.  This court will generally not consider matters not argued and considered in the court below.  Roby v. State, 547 N.W.2d 354, 375 (Minn. 1996).  A defendant who fails to object to the prosecutor’s statements or to seek specific cautionary instructions is deemed to have forfeited the right to have the issue considered on appeal.  State v. Gunn, 299 N.W.2d 137, 138 (Minn. 1980); see generally Rairdon v. State, 557 N.W.2d 318, 324 (Minn. 1996) (stating “[f]ailure to object or to seek curative jury instructions weighs heavily against granting the remedy of a new trial”). 

Even if we consider the issue, the statement of the law was accurate and the argument was not inappropriate but should have been brought to the jury’s attention through a jury instruction.  See State v. Tinklenberg, 292 Minn. 271, 273, 194 N.W.2d 590, 591 (1972) (stating driver inattentiveness one factor in verdict for gross negligence).  The district court has the discretion to determine whether a new trial should be granted because of misconduct by the prosecuting attorney, and the court’s determination should be reversed on appeal only where the misconduct, viewed in light of the whole record, appears to be inexcusable and so serious and prejudicial that the defendant has been denied a right to a fair trial.  State v. Wahlberg, 296 N.W.2d 408, 420 (Minn. 1980).  Price argues only that statutes pertaining to “rules of the road” should be used with care and with prior approval by the court as an instruction to the jury.  See State v. Meany, 262 Minn. 491, 505, 115 N.W.2d 247, 257 (1962).  The district court did not err in finding that the state’s references to Minn. Stat. § 169.14 did not result in an unfair trial.

5.  Prejudice

Price argues that the cumulative effect of the evidentiary rulings had a prejudicial effect on the outcome of the trial warranting postconviction relief.  Even when no single error standing alone or arising under different factual circumstances would be sufficient to require reversal, the supreme court has found that the cumulative effect of the errors may deprive a defendant of a fair trial.  State v. Underwood, 281 N.W.2d 337, 344 (Minn. 1979); see State v. Erickson, 597 N.W.2d 897, 904 (Minn. 1999) (discussing when cumulative effect of errors deprives defendant of a fair trial); State v. Ware, 498 N.W.2d 454, 459 (Minn. 1993) (stating synergy of errors warrants, in the interests of justice, a new trial).  In cases where the evidence against the defendant is very strong, the cumulative effect of the errors does not prejudice the defendant.  See, e.g., State v. Erickson, 610 N.W.2d 335, 340-41 (Minn. 2000) (distinguishing Underwood to find cumulative effect of the errors did not deprive the defendant of a fair trial).  In addition, a new trial is not warranted where “errors did not affect the jurors’ deliberations or their assumptions about appellant’s innocence or guilt.”  Id. at 341.  Here, the evidence supporting the verdict is strong and Price has not shown that the evidentiary rulings complained of affected the juror’s deliberations.  To the extent the district court erred in these evidentiary rulings, there is nothing about the cumulative effect of the errors that warrants a new trial.

Affirmed.

 



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] Prior to trial, Price pleaded guilty to a charge of driving after revocation of license.  The district court allowed the admission of evidence that Price was driving without a commercial driver’s license but excluded evidence that her license had been revoked as the result of a DUI conviction. 

[2] Although, the truck could have been registered for 81,000 pounds.