This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
Todd Lawrence Levine,
Carver County District Court
File No. CR-04-067
Attorney General, 1800
Stephen V. Grigsby,
Considered and decided by Dietzen, Presiding Judge; Randall, Judge; and Hudson, Judge.
U N P U B L I S H E D O P I N I O N
On appeal from conviction for criminal vehicular homicide (grossly negligent driving), appellant argues that the evidence was insufficient to prove that he was driving in a grossly negligent manner at the time of the accident. We affirm.
On July 12, 2003,
appellant Todd Levine and his friends, Todd Midstokke and Anthony Villella,
went to the American Legion in Chanhassen. The trio consumed three drinks each before
they were asked to leave the bar. They
left the bar just before closing time on July 13, 2003, in a Dodge Stratus. Appellant
was driving the vehicle, Villella was seated in the front passenger’s seat, and
Midstokke was sitting in the rear seat. At 1:24 a.m., after turning onto
Appellant was charged with multiple counts of criminal vehicular homicide and related charges. Appellant waived his right to a jury and a bench trial was held on the matter. At trial, Villella testified that appellant was very angry for getting kicked out of the bar. According to Villella, in the short period of time between leaving the bar and the collision, appellant was driving “extremely fast,” was not stopping at stop signs, and was squealing the tires of the vehicle with every turn. Villella also testified that he had been pleading with appellant to slow down throughout the drive from the Legion.
State Trooper Langer of the Metro
Crash Reconstruction Team investigated scuff marks left by the vehicle’s tires. The scuff marks indicated that the vehicle
had turned onto the left side of
Keith Peterson, who lived near the scene of the accident, testified that just after he went to bed, he heard the squeal of tires and a crash. Peterson testified that he heard a long squeal, followed by a short squeal, and very soon thereafter, within seconds, the noise of the crash. According to Peterson, he immediately called 911 and then walked to the scene where he noticed skid marks on the roadway by the stop sign that he had not observed before.
The district court found that there
was insufficient evidence to show that appellant’s blood alcohol concentration
was 0.10 or more at the time he was driving.
Thus, the court acquitted appellant of all counts involving the use of
alcohol. But the district court found
appellant guilty of criminal vehicular operation resulting in death (Count II);
criminal vehicular operation resulting in substantial bodily harm to another
(Count III); reckless driving (Count VI); and driving after cancellation (Count VII). This appeal followed.
D E C I S I O N
In considering a claim of insufficient evidence, this court’s review “is
limited to a painstaking analysis of the record to determine whether the
evidence, when viewed in a light most favorable to the conviction,” is
sufficient to allow the fact-finder to reach the verdict that it did. State
v. Webb, 440 N.W.2d 426, 430 (
To convict appellant of criminal
vehicular operation resulting in death, the state was required to prove: (1) the death of Midstokke; (2) appellant
caused the death of Midstokke by operating a vehicle in a grossly negligent
manner; and (3) the act took place on July 13, 2003, in
resulting in substantial bodily harm the state must prove: (1) appellant operated a vehicle in a grossly negligent manner; (2) the operation of the vehicle caused substantial bodily harm to Villella; and (3) the act took place on July 13, 2003, in
Appellant argues that the state failed to prove that he operated the vehicle in a grossly negligent manner or that his conduct actually caused the collision. He also argues that the testimony of Villella described his actions prior to the collision, not at the time of the collision.
To support his
claim, appellant relies on State v. Homme,
In Southern, appellant
struck and killed a child with her vehicle while driving through a residential
neighborhood into a bright morning sun.
304 N.W.2d at 330. The court held
that although she had been driving faster than was prudent under such
conditions, her actions prior to the collision were not sufficient to establish
In Homme and Southern the supreme court found that because the evidence did not prove that the defendants had been driving in grossly negligent manners at the time of the collisions, they could not be convicted of criminal vehicular operation. We conclude that this case is distinguishable from Homme and Southern. Here, the state did not simply offer evidence that it was likely that appellant was exceeding a prudent speed. Rather, there is eye-witness testimony immediately prior to the collision. Villella’s testimony about appellant’s aggressive driving, and his own pleas to appellant to slow down, are coupled with the testimony of Trooper Langer of the Metro Crash Reconstruction Team that appellant was speeding. Additionally, the tire marks, both at the intersection of Nez Pierce and Carver Beach Road, and on Carver Beach Road, just prior to the spot of the collision, offer evidence that the vehicle was driving in a grossly negligent manner. Furthermore, Peterson’s testimony that he heard a long squeal followed by a short squeal, and very soon thereafter, within seconds, the noise of the crash, supports the conclusion that appellant was driving in a grossly negligent manner.
Gross negligence requires “the
presence of some egregious driving conduct coupled with other evidence of
negligence.” State v. Miller, 471 N.W.2d 380, 384 (
Appellant argues that this court
should not look at the fact that he did not attempt to brake before hitting the
tree. He suggests that since it is
likely that braking would not have changed the result, the fact that he did not
apply the brakes could not be used as the basis of a finding of gross
negligence. We disagree. In State
v. Hegstrom, the defendant failed to apply the brakes. 543 N.W.2d 698, 702 (Minn. App. 1996), review denied (Minn. Apr. 16,
1996). The court held that evidence that
the defendant was oblivious to the road ahead of him, and his failure to brake,
showed a sufficient degree of inattention to the road that could constitute a
lack of care.
Finally appellant argues that Trooper Langer’s testimony does not establish a cause for the collision. Appellant argues that at no point do the trooper’s findings prove that he was grossly negligent at the moment of impact.
“A criminal conviction may be based
on circumstantial evidence if the evidence reasonably supports an inference of
guilt.” State v. Eli, 402 N.W.2d 627, 629 (
Eli, this court can hold that the
evidence was sufficient “only when the reasonable inferences from such
evidence, viewed most favorably to the verdict, are consistent with the
defendant’s guilt and inconsistent with any rational hypothesis except that of