may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Richard Leroy Pflepsen,
Filed May 13, 1997
Willis, Judge, Dissenting
Dakota County District Court
File No. KX-95-1766
James C. Backstrom, Dakota County Attorney, Charles A. Diemer, Assistant County Attorney, Dakota County Judicial Center, 1560 West Highway 55, Hastings, MN 55033 (for Respondent)
John M. Stuart, State Public Defender, Susan K. Maki, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for Appellant)
Considered and decided by Willis, Presiding Judge, Randall, Judge, and Klaphake, Judge.
Appellant Richard Leroy Pflepsen challenges his conviction under Minn. Stat. § 609.21, subd. 2a (1996), of criminal vehicular operation. Pflepsen argues that the record does not sustain a finding that he acted in a grossly negligent manner. We reverse.
Officer Ronald Degler testified that immediately after the accident, Pflepsen told him he was talking on his car phone while he was driving down 35E, he moved onto the paved shoulder believing that it was the Lone Oak Road exit, and he struck Schreiber's vehicle believing that she was on the Lone Oak Road exit ramp. Degler testified that Pflepsen told him that he was talking on the car phone at the time of impact and Degler observed that Pflepsen's phone was lying on the floor on the passenger side of his car.
In a statement taken on January 25, 1995, Pflepsen stated that he did not remember whether he was talking on his car phone at the time of the accident. Edward Forester, who was driving behind Pflepsen just prior to the accident, stated that when the Eclipse started moving over to the shoulder, he saw Pflepsen reach down twice for something and that he was bent over for about 50 yards prior to impact. Moreover, Pflepsen's phone records from December 27, 1994, show that he was using his phone from 2:14 until 2:46 p.m. that day. The accident was called in to the dispatcher at 2:50 p.m.
Pflepsen was indicted for criminal vehicular operation in violation of Minn. Stat. § 609.21, subd. 2a, careless driving in violation of Minn. Stat. § 169.13, subd. 2 (1996), and inattentive driving in violation of Minn. Stat. § 169.14, subd. 1 (1996). The jury found Pflepsen guilty of all charges. Pflepsen appeals the jury's verdict that he was guilty of criminal vehicular operation.
In cases relying on circumstantial evidence, this court will affirm a verdict only if the circumstances proved are consistent with the hypothesis that the accused is guilty and inconsistent with any other rational hypothesis. State v. Jones, 516 N.W.2d 545, 549 (Minn. 1994). "Even in cases involving circumstantial evidence, this court must give due deference to the jury, which is in the best position to evaluate the evidence." State v. Kissner, 541 N.W.2d 317, 321 (Minn. App. 1995), review denied (Minn. Feb. 9, 1996).
An individual commits criminal vehicular operation in violation of Minn. Stat. § 609.21, subd. 2a (1996), by causing "substantial bodily harm to another, as a result of operating a motor vehicle, * * * (1) in a grossly negligent manner." Pflepsen argues that the state failed to prove that he operated his vehicle in a grossly negligent manner. We agree.
"Gross negligence is substantially higher in magnitude than ordinary negligence and is defined as 'very great negligence or absence of even slight care.'" State v. Plummer, 511 N.W.2d 36, 39 (Minn. App. 1994) (citing State v. Bolsinger, 221 Minn. 154, 159, 21 N.W.2d 480, 485 (1946)), review denied (Minn. Feb. 9, 1996). In criminal vehicular cases, 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 (Minn. App. 1991).
The record shows that Pflepsen was talking on his car phone at the time of the accident and that he may have been reaching down for the phone just prior to impact. Further, he had driven onto the shoulder only because he incorrectly believed it was the Lone Oak Road exit ramp. This conduct is easily negligent driving, but it is not close to the egregious driving conduct needed to sustain a verdict.
WILLIS, Judge (dissenting)
Because I would affirm Pflepsen's conviction of criminal vehicular operation under Minn. Stat. § 609.21, subd. 2a(1) (1996), I respectfully dissent.
The statute requires a showing that a person has caused substantial bodily harm to another as a result of operating a motor vehicle in a grossly negligent manner. Id. There is no question that the first element is present. Schreiber suffered horrific, although not fatal, injuries. The issue on this appeal is whether the evidence supports the jury's determination that Pflepsen operated his motor vehicle in a grossly negligent manner. The majority concludes that the evidence against Pflepsen amounts to ordinary negligence, rather than gross negligence. "Gross negligence is substantially higher in magnitude than ordinary negligence." State v. Plummer, 511 N.W.2d 36, 39 (Minn. App. 1994). A finding of gross negligence does not, however, require a "dramatic piece of evidence, such as driving while intoxicated." State v. Kissner, 541 N.W.2d 317, 321 (Minn. App. 1995), review denied (Minn. Feb. 9, 1996).
Here, there was evidence that (1) Pflepsen was driving 70 or more miles per hour in a 55-mile-per-hour zone; (2) his car was completely on the shoulder of the highway when it collided with Schreiber's vehicle; (3) Schreiber's car was parked on the shoulder with its emergency flashers activated; (4) Pflepsen was talking on or reaching for his car phone immediately prior to impact, rather than watching the road; (5) the impact occurred approximately 1000 feet before the start of the exit Pflepsen intended to take; (6) no other vehicle interfered with Pflepsen's control of his car; (7) there was nothing to obstruct Pflepsen's view of Schreiber's vehicle; and (8) Pflepsen never saw Schreiber's vehicle and made no attempt to apply his car's brakes before impact.
This case is comparable to State v. Tinklenberg, 292 Minn. 271, 194 N.W.2d 590 (1972). There, the supreme court held that the evidence "easily support[ed] the 'gross negligence' requisite of the charge of criminal negligence" where the defendant hit two motorcycles that were clearly visible and testimony showed that she was driving in excess of the speed limit, she lacked control over her vehicle, she exhibited "a shocking lack of attention," and it was disputed whether her headlights were on at 6 a.m. on a September morning. Id. at 273, 194 N.W.2d at 591; see also Plummer, 511 N.W.2d at 39 (refusing to dismiss indictment based on gross negligence where there was evidence that defendant had approximately 500 feet to observe red light before entering intersection, was not watching the road, and was speeding). I believe that the evidence of Pflepsen's excessive speed and his shocking lack of attention to the road, along with the fact that he was driving entirely off the travelled portion of the highway, support the jury's finding of gross negligence and thereby Pflepsen's conviction of criminal vehicular operation in violation of Minn. Stat. § 609.21, subd. 2a(1).