Opinion
No. 3-392 / 02-1269
Filed October 15, 2003
Appeal from the Iowa District Court for Warren County, Gary G. Kimes, Judge.
The defendant appeals her convictions and sentences for homicide by vehicle and serious injury by vehicle, in violation of Iowa Code sections 707.6A(1) and 707.6A(4) (2001). AFFIRMED.
Jon Kinnamon of Kinnamon, Kinnamon, Russo Meyer, Cedar Rapids, and William Kutmus and Mark Pennington of Kutmus Pennington, P.C., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, Gary Kendall, County Attorney, and Patty Notch, Assistant County Attorney, for appellee.
Heard by Huitink, P.J., and Vaitheswaran and Eisenhauer, JJ.
The defendant, Lauren Hensley, appeals her convictions and sentences for homicide by vehicle, in violation of Iowa Code section 706A(1) (2001), and serious injury by vehicle, in violation of section 706.6A (4). Hensley argues the district court (1) improperly instructed the jury regarding proximate cause, (2) failed to include the lesser included offense of OWI in the verdict form after serious injury by vehicle, and (3) erred in denying her motion for new trial. We affirm.
I. Background Facts and Proceedings. In the late evening of May 11, 2001, Damon Bartling was killed and his girlfriend, Melissa McGill, was seriously injured in an accident involving a vehicle driven by Hensley. Bartling was driving his motorcycle southbound on Southwest Ninth and County Line Road in Des Moines. Hensley was traveling northbound, and attempted to make a left turn onto the Highway 5 on-ramp. Bartling's vehicle was traveling between forty-five and fifty m.p.h. and had two halogen headlamps. Hensley turned in front of Bartling's motorcycle. Bartling attempted to swerve, but could not avoid a collision, causing him to be thrown in the air resulting in his death. McGill suffered a lacerated liver and numerous broken bones.
Deputy Neil Gurwell was the first officer on the scene. He approached Hensley, who was in the driver's seat, and she told him she was not injured. Sergeant Roger Lettington also arrived on the scene, and upon questioning Hensley, noticed a strong odor of alcohol on her breath. When Hensley got out of the car to follow Sergeant Lettington, she appeared to be dizzy. Walking to the squad car, Hensley swayed several times and put her arms out as if she was going to fall. Sergeant Lettington at one point noted Hensley giggled. Lettington concluded Hensley was under the influence of alcohol.
Deputy Gurwell interviewed Hensley and also noticed a strong odor of alcohol, and further noted her eyes appeared bloodshot and watery. He requested Hensley to perform several field sobriety tests, which she failed. She informed Deputy Gurwell she had nothing to eat since noon and had consumed three beers. Deputy Gurwell concluded Hensley was intoxicated and read her the Miranda warnings. Hensley was arrested and transported to the Warren County Jail, where she was administered a breath test. Based on the test, officials concluded Hensley's blood alcohol content was .245.
Prior to submission of the case to the jury, counsel filed objections to the court's proposed jury instructions, claiming they did not properly instruct the jury on the issue of proximate cause, and that his proposed language should be incorporated into the marshaling instruction. Counsel also claimed the court erred in failing to include operating while intoxicated (OWI) as a lesser included offense in the serious injury instructions. The court rejected the objections. A jury found Hensley guilty as charged, and she was sentenced to an indeterminate twenty-five-year term for homicide by vehicle, and a concurrent five-year term for serious injury. Hensley has appealed.
II. Scope of Review. Our review concerning alleged error regarding jury instructions is for the correction of errors at law. Iowa R.App.P. 6.4. We review jury instructions to decide if they are a correct statement of the law and are substantially supported by the evidence. Bride v. Heckart, 556 N.W.2d 449, 452 (Iowa 1996). Error in giving or refusing to give an instruction does not warrant reversal unless the error is prejudicial to the party. Sonnek v. Warren, 522 N.W.2d 45, 47 (Iowa 1994). When a single instruction is challenged, it will be judged in the context of other instructions, not merely in isolation. State v. Liggins, 557 N.W.2d 263, 267 (Iowa 1996).
III. Probable Cause. Jury Instruction No. 8, the marshaling instruction, provides:
1. On or about the 11th day of May, 2001 the Defendant
a. Operated a motor vehicle while under the influence of alcohol; or
b. Operated a motor vehicle while having an alcohol concentration of .10 or more.
It is not necessary for all jurors to agree to just (a) or (b). It is only necessary that all jurors agree to at least one of these two alternatives.
2. The defendant's acts unintentionally caused the death of Damon Bartling.
If the State has proved both elements, the Defendant is guilty of Homicide by Vehicle. If the State has failed to prove either of the elements, the Defendant is not guilty of Homicide by Vehicle, and you will then consider the lesser charge of Operating While Intoxicated as explained in Instruction No. 16.
Instruction No. 9 states:
The State must prove that the Defendant's act of operating while intoxicated was a proximate cause of Damon Bartling's death.
Proximate Cause---Defined. The conduct of a party is the proximate cause of damage when it is a substantial factor in producing damage and when the damage would not have happened except for the conduct. "Substantial" means the party's conduct has such an effect in producing damage as to lead a reasonable person to regard it as a cause.
Hensley proposed the following instruction to revise Instruction No. 8:
The State must prove beyond a reasonable doubt both of the following elements of Homicide by Vehicle.
1) On or about the 11th day of May, 2001, the Defendant: A) Operated a motor vehicle while under the influence of alcohol; or B) Operated a motor vehicle while an alcohol concentration of .10 or more.
2) The Defendant's intoxication, if any, as set forth in element 1 above, caused the death of Damon Bartling as defined and explained below:
A) That the Defendant's intoxication while operating a motor vehicle while having an alcohol concentration of .10 or more was the proximate cause of death. Proximate cause is defined in Instruction Number, blank.
B) That but for the Defendant's intoxication, the death would not have occurred.
Hensley challenges the district court's instructions by claiming they failed to instruct the jury it had to find her actions were the proximate cause of Bartling's death. She asserts the court's instructions permitted the jury to find her guilty without a finding of proximate cause. She additionally asserts her challenge to the court's instructions is grounded on claims of due process. However, we note Hensley did not alert the district court to any due process challenge. When a defendant makes an objection to the trial court's instructions, the defendant is bound by that objection on appeal. State v. Hepperle, 530 N.W.2d 735, 738 (Iowa 1995). A defendant cannot amplify or change the objection on appeal. Id. Hensley is therefore limited to arguing the objections she made a trial.
The district court's definition of proximate cause in Instruction No. 9 contains the exact language defining proximate cause as contained in Iowa Uniform Jury Instruction No. 700.3 and the civil instruction adopted for criminal use in State v. Caldwell, 385 N.W.2d 553, 556 (Iowa 1986). Hensley maintains the district court was required to include proximate cause in the marshaling instruction. While proximate cause is considered an element of homicide by vehicle, none of the cases cited by Hensley provide that the instruction must specifically be included in a marshaling instruction, contrary to her assertion on appeal. See State v. Brown, 589 N.W.2d 69, 74 (Iowa Ct.App. 1998), overruled on other grounds, State v. Reeves, 636 N.W.2d 22, 26 (Iowa 2001) (holding the State is required to prove both cause in fact and legal causation); State v. Cunningham, 463 N.W.2d 887, 889 (Iowa Ct.App. 1990) (holding both legal causation and causation in fact must be proven by the State). As we noted earlier, we view jury instructions in context with other instructions, not in isolation. Liggins, 557 N.W.2d at 267.
Viewing Instruction Nos. 8 and 9 in context with all other instructions, we conclude the district court did not err in instructing the jury on the elements of homicide by vehicle. Although the definition of proximate cause was not included in Instruction No. 8, Instruction No. 9 specifically informed the jury it was required to consider proximate cause as an element in determining whether Hensley's consumption of alcohol caused Bartling's death. Hensley has shown no evidence the jury gave Instruction Nos. 8 and 9 any less consideration by having one element set out separately. See State v. Atwood, 602 N.W.2d 775, 778 (Iowa 1999) (holding the district court did not err in refusing to use the defendant's requested instruction when the substance was clearly embodied in other instructions.) We therefore reject Hensley's challenge to Jury Instructions 8 and 9. For similar reasons as set forth above, we reject Hensley's claim the district court's additional Instruction No. 23 in response to a jury question during deliberations misled the jury.
IV. Serious Injury by Vehicle. Hensley next argues the district court erred in failing to include a form of verdict for the lesser included offense of operating while intoxicated in the instruction on serious injury by vehicle. We find no merit to this claim. Whether or not the district court should have included a verdict form for OWI after the serious injury by vehicle verdict form is irrelevant because the issue was submitted with homicide by vehicle instructions and was rejected by the jury. The two alleged crimes arose from the same incident. It would be inconsistent for the jury to find Hensley unintentionally caused Bartling's death while at the same time finding she did not cause McGill's serious injuries. Hensley was convicted of the greater offense. Any error in the district court's failure to include operating while intoxicated as a lesser included offense in serious injury was without prejudice. State v. Nowlin, 244 N.W.2d 591, 596 (Iowa 1976).
In her brief Hensley also argues the court should have instructed the jury on operating while intoxicated as a lesser included offense of serious injury by vehicle. This issue was not preserved for our review as the trial court was only asked to include a verdict form for OWI as a lesser included offense of serious injury by vehicle.
V. State's Exhibit 35. Hensley lastly argues the district court abused its discretion in admitting State's Exhibit No. 35 because the photograph essentially constituted false testimony and the State knowingly submitted it. We find no merit to this claim.
Exhibit 35 was taken by Deputy Wilbur and submitted as rebuttal evidence to the testimony of Dr. Richard McKlay. McKlay provided highly technical testimony regarding the elevation of the site, the lighting, and the rates of speed of the parties to conclude that Hensley would not have had enough reaction time to avoid the accident. Exhibit 35 was taken approximately one year after the alleged incident, at around 11:30 p.m., about the same time as the accident. Deputy Wilbur used night-time exposure with the direction of the camera pointing to oncoming traffic. The photograph depicts a still motorcycle with headlights lit in approximately the same area as Bartling on the night of the accident. The photograph also depicts a church with lights on and a sign that also had a light. Deputy Wilbur testified the photograph accurately depicted the scene on that day. Deputy Wilbur testified he was not an expert on accident reconstruction, and that the photograph merely gave an idea as to what a motorcycle looked like at the point where the accident occurred.
Hensley argues the State knew the photograph was inaccurate and essentially false testimony, and cites to State v. Kolbet, 638 N.W.2d 653 (Iowa 2001) to support her position this constitutes grounds for a new trial. However, in Kolbet, the reviewing court emphasized whether the introduction of the evidence was reckless and whether the State's evidence was introduced in bad faith. Kolbet, 638 N.W.2d at 657-58. The court opined that "a knowing use of false testimony requires that a conviction be reversed if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury." Id. at 659. The Kolbet court concluded that the State's witness testimony was false and could have affected the jury's verdict. Id. at 660.
Hensley repeatedly cross-examined Deputy Wilbur regarding Exhibit 35. Deputy Wilbur admitted he was unsure how the weather conditions on the night he took the photograph compared to the conditions that existed the night of the accident. He stated the photograph was not introduced to rebut Dr. McLay's technical testimony, but rather merely showed how the accident scene looked from different angles with a motorcycle in the background. Deputy Wilbur also testified he was not an expert on accident reconstruction. Hensley also elicited testimony from Vernon Robbins that the street light shown in Exhibit 35 was not in existence at the time of the accident.
A photograph is admissible if it is (1) relevant to the controversy, requiring the photograph to be identified as to time and place, and (2) fairly representative of what it shows. Twyford v. Weber, 220 N.W.2d 919, 926 (Iowa 1974). A photograph taken long after the event may be admitted into evidence where the record establishes a substantial similarity of conditions between the time it was taken and the material date. Harrison v. Ulicki, 193 N.W.2d 533, 536 (Iowa 1972). Once admitted, it is for the fact finder to determine the weight of the evidence and its credibility. State v. Laffey, 600 N.W.2d 57, 59 (Iowa 1999).
In the present case, Hensley has offered no evidence the State knowingly offered false testimony by seeking admission of Exhibit 35. She cross-examined Deputy Wilbur extensively, and any flaws in either the manner of the photograph's production or its actual content were well scrutinized. Unlike in Kolbet, there is no reckless disregard for the truth. There is no evidence the photograph influenced the jury any more than the fact her blood alcohol content was registered at .245 or that both crime scene officers testified Hensley appeared to be intoxicated at the scene. We conclude the district court did not err in denying Hensley's motion for new trial on this ground. We therefore affirm Hensley's convictions and sentences.