Filed June 12, 2007

Affirmed

Randall, Judge

Carver County District Court

File No. CR-04-067

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

Patrick J. Ciliberto, Scott County Attorney, Michael J. Groh, Assistant County Attorney, 200 Fourth Avenue West, Shakopee, MN 55379 (for respondent)

Stephen V. Grigsby, 2915 South Wayzata Boulevard, Suite 101, Minneapolis, MN 55405 (for appellant)

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

RANDALL, Judge

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.

FACTS

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 Carver Beach Road, the Dodge Stratus crashed into a tree. All three men were severely injured in the collision, Midstokke fatally.

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 Carver Beach Road prior to veering off the right side of the road and into the tree. No evidence was found indicating that appellant attempted to brake right before the collision. Trooper Langer was not able to determine the speed at which the vehicle was traveling at the time of the collision. However, he estimated from the scuff marks on the road that the vehicle had been traveling at an “excessive” rate above the posted speed limit.

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 (Minn. 1989). We must assume the fact-finder believed the state’s witnesses and disbelieved any evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). We will not disturb the verdict if the fact-finder, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988). The findings of the district court are entitled to the same weight as a jury verdict in a criminal case. State v. Gardin, 251 Minn. 157, 161, 86 N.W.2d 711, 715 (1957).

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 Carver County. See Minn. Stat. § 609.21, subd. 1(1) (2002); 10 Minnesota Practice, CRIMJIG 11.63 (2006). To convict appellant of criminal vehicular operation
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 Caver County. See Minn. Stat. § 609.21, subd. 2a(1) (2002); 10 Minnesota Practice, CRIMJIG 11.73 (2006).

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, 226 Minn. 83, 32 N.W.2d 151 (1948), and State v. Southern, 304 N.W.2d 329 (Minn. 1981). In Homme, the district court convicted the defendant of criminal vehicular homicide by finding that his conduct was grossly negligent. 226 Minn. at 83, 32 N.W.2d at 151. In that case, the defendant was observed, a short time before the collision occurred, driving his vehicle about two-and-a-half miles from the bridge where the accident took place. Id. at 84, 32 N.W.2d at 152. The state argued that the defendant was speeding because of the time it took the vehicle to arrive at the scene of the accident, and that his excessive speed was grossly negligent. Id. at 87, 32 N.W.2d at 153. The supreme court held that the imprecise estimate of appellant’s speed at the time of the collision was not indicative of grossly negligent conduct required for vehicular homicide. Id. at 87-88, 32 N.W.2d at 153-54.

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 gross negligence. Id.

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 (Minn. App. 1991). In State v. Tinklenberg, 292 Minn. 271, 273, 194 N.W.2d 590, 591 (1972), the supreme court found gross negligence where the defendant drove at excessive speed, was inattentive, and lacked control over the vehicle. Here, appellant had been driving extremely fast, had failed to stop at the stop sign as he turned onto Carver Beach Road, had veered into the left lane and then back across the right lane into a tree. In Tinklenberg, the court found that the defendant did not have her car under complete control for at least several blocks prior to impact, and this was sufficient to show gross negligence. Id. at 591. The case here is analogous. The testimony of Villella and the tire marks at the intersection of Nez Pierce and Carver Beach Road as well as the marks immediately prior to the point of impact indicate that appellant did not have complete control of his vehicle for some period before the collision.

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. Id. at 702-03. In Hegstrom, the collision occurred on a section of road where there was only a gradual curve. Id. at 702. Here the collision occurred on a straight-away. The fact that appellant did not apply the brakes prior to the collision adds to the inference that he was not paying attention to his surroundings, and that he was not in control of his vehicle at the time of the collision.

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 (Minn. App. 1987). The evidence does not need to exclude all possibilities that the defendant was negligent, but it must negate any reasonable hypothesis of the defendant’s innocence. Id. at 630.

Under 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 his guilt.” Id. Here the inferences, based on the testimony of the witness and the investigation by the Metro Reconstruction team, are consistent with egregious driving conduct, inattention to the road, and a lack of control of the vehicle. These inferences are sufficient to sustain a guilty verdict for criminal vehicular operation by gross negligence. The district court, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, reasonably concluded that appellant’s actions were grossly negligent.

Affirmed.