Opinion
No. 59464-8-I.
June 2, 2008.
Appeal from a judgment of the Superior Court for Island County, No. 06-1-00159-2, Alan R. Hancock, J., entered January 8, 2007.
Affirmed by unpublished opinion per Agid, J., concurred in by Schindler, C.J., and Becker, J.
Raymond Prokop appeals his conviction for vehicular homicide. He asserts that the trial court erred by (1) excluding evidence that the victim's failure to wear a seatbelt was a proximate cause of the injuries that resulted in her death, (2) refusing to give his proposed jury instructions on the seatbelt law, proximate cause and superseding cause, and (3) preventing him from testifying that he was not driving in a reckless manner. Because the victim's failure to wear a seatbelt was irrelevant to proof of causation, the trial court properly excluded the evidence and refused the proposed instructions. Prokop's opinion that he was not driving in a reckless manner was an impermissible legal conclusion and an opinion on guilt. We therefore affirm.
FACTS
On February 24, 2006, Raymond Prokop was driving on Reservation Road, outside of Oak Harbor in Island County. He had one passenger, Molly Rice, who was in the front passenger seat and was not wearing a seatbelt. There was no posted speed limit on Reservation Road, but in Island County the speed limit is 35 miles per hour unless otherwise posted.
Prokop was traveling at approximately 75 miles per hour as he approached the top of a hill. As he descended, he felt the car "picking up acceleration." He then coasted down the hill and up another smaller hill and noticed a turn coming up. He began to brake when what he described as a "speed wobble" occurred, which caused the steering wheel and gear shift to shake. As he approached the turn, he realized he was going too fast to make it. He eventually lost control of the car, went off the road, and hit a utility pole. Rice was ejected from the car at the point of impact. She sustained fatal injuries and died a few minutes after aid arrived.
The State charged Prokop with vehicular homicide. At trial, a witness testified that he was driving with his children when he saw Prokop's car traveling at an excessive speed, estimated at 70-80 miles per hour. As it passed, he watched the car in his rear view mirror as it went around the corner. He saw the car cross the double yellow line and drift into his lane behind him and then go "floating up the hill."
Two other witnesses testified that they heard the crash and went to investigate. Both saw Rice on the ground, and one of them also spoke briefly with Prokop who was still in the car. Prokop said he was going about 85 miles an hour. The forensic pathologist testified that Rice suffered injuries from both the initial impact inside the car and the ejection from the car.
Prokop was the only witness for the defense. The trial court excluded testimony from a defense witness that failing to wear a seatbelt contributed to Rice's injuries. The trial court also refused to give Prokop's proposed instructions on the seatbelt law, proximate cause, and superseding cause. A jury found him guilty as charged. The trial court imposed a standard range sentence of 24 months' confinement.
DISCUSSION
We first note that Prokop has not made any assignments of error as required by RAP 10.3. RAP 10.3(a)(4) provides that the appellant's brief should contain "a separate concise statement of each error a party contends was made by the trial court, together with the issues pertaining to the assignments of error." RAP 10.3(g) also provides that "[a] separate assignment of error for each instruction which a party contends was improperly given or refused must be included with reference to each instruction or proposed instruction by number," and that "[t]he appellate court will only review a claimed error which is included in an assignment of error or clearly disclosed in the associated issue pertaining thereto." Prokop's brief does not contain a section identifying the assignments of error nor does it contain any issue statements. It includes only a statement of the case and argument.
"A technical violation of the rules will not ordinarily bar appellate review where justice is to be served." We review the merits of an appeal when the appellate brief sets forth the challenged ruling and the nature of the challenge is "perfectly clear." Here, appellant's brief sufficiently states the challenged ruling on some of the issues, and where the nature of that challenge is clear, we review the merits of those issues.
Goehle v. Fred Hutchinson Cancer Research Ctr., 100 Wn. App. 609, 613, 1 P.3d 579, review denied, 142 Wn.2d 1010 (2000).
Id. at 614.
Id. at 615.
I. Evidence of Failure to Wear a Seatbelt
In his first argument, Prokop asserts that "the [trial] [c]ourt erred [by] limiting the use of seatbelt evidence." It is not altogether clear what ruling he is challenging or the nature of the challenge. He states that
[t]he trial court relying exclusively on . . . State v. Hursh . . . ruled that the Defendant could not introduce or pursue any evidence or argument relating to the fact that Ms. Rice was not wearing a seatbelt, whether bearing upon Ms. Rice's injuries, or the defense claim that independent of whether or not the absence of a seatbelt caused her injuries, the absence of the seatbelt was the sole proximate cause of Ms. Rice's death. . . .
He does not provide any citation to the record for this ruling nor does he identify the specific evidence that was excluded. But he does mention in his statement of the case that the trial court denied his request to introduce testimony from an accident expert that proper use of the seatbelt would have minimized Rice's injuries, and this ruling is reflected in the record. We presume this is the ruling he challenges. He also asserts that the court erroneously relied on State v. Hursh in making this ruling. Thus, because he has sufficiently identified the challenged ruling and nature of the challenge, we will consider the issue.
77 Wn. App. 242, 890 P.2d 1066, review denied, 126 Wn.2d 1025 (1995), abrogated on other grounds by State v. Roggenkamp, 153 Wn.2d 614, 106 P.3d 196 (2005).
Admitting or excluding evidence based on relevance is within the trial court's discretion. We reverse only for manifest abuse of that discretion. Evidence isrelevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."
Lee v. Sauvage, 38 Wn. App. 699, 709, 689 P.2d 404 (1984).
ER 401.
The vehicular homicide statute provides:
(1) When the death of any person ensues within three years as a proximate result of injury proximately caused by the driving of any vehicle by any person, the driver is guilty of vehicular homicide if the driver was operating a motor vehicle:
(a) While under the influence of intoxicating liquor or any drug, as defined by RCW 46.61.502; or
(b) In a reckless manner; or
(c) With disregard for the safety of others.
Because the statute provides that there may be more than one proximate cause of death, "[w]hether there are other contributing causes does not affect a defendant's culpability." When the victim's conduct is at most a concurring cause of the injuries, evidence of that conduct is irrelevant in prosecutions for both vehicular assault and vehicular homicide.
State v. Neher, 112 Wn.2d 347, 352, 771 P.2d 330 (1989).
State v. Neher, 52 Wn. App. 298, 301, 759 P.2d 475 (1988),affirmed, 112 Wn.2d 347, 771 P.2d 330 (1989).
Roggenkamp, 153 Wn.2d at 631; Hursh, 77 Wn. App. at 245.
In Hursh, the defendant was charged with vehicular assault for colliding with the victim's car while driving under the influence of alcohol. The victim was not wearing a seatbelt and suffered extensive injuries. The trial court excluded evidence of the victim's failure to wear a seatbelt as irrelevant, and we affirmed that ruling on appeal. We concluded that "[e]ven though [the victim's] failure to wear a seatbelt may havecontributed to the seriousness of his injuries, that act did not cause the accident and was not the sole cause of [his] injuries." Thus, because the victim's failure to use a seatbelt could not relieve the defendant of criminal liability, we held that the evidence was irrelevant.
Id.
Id. at 245 (emphasis added).
Id.
Similarly, in State v. Meekins, the court held that evidence that the motorcyclist victim was not wearing a helmet was irrelevant in a vehicular homicide case because the lack of the helmet could not have been a proximate cause without the defendant's driving also being a proximate cause. Thus, the evidence had no tendency to prove that the lack of helmet was the sole or superseding proximate cause, and it was therefore irrelevant.
125 Wn. App. 390, 401, 105 P.3d 420 (2005) (citing Hursh, 77 Wn. App. at 244-45).
Id. See also Roggenkamp, 153 Wn.2d at 631 (other driver's acts of driving with blood alcohol concentration of .13 and allegedly going through a stop sign immediately before the collision held to be, at most, a concurring cause and did not shield defendant from vehicular homicide conviction).
Here, the trial court relied on Hursh and ruled that Prokop could not elicit testimony that Rice's failure to wear a seatbelt was the cause of her death because it was irrelevant to the proximate cause issue. The trial court correctly applied the law and properly excluded the evidence. As in Hursh and Meekins, Rice's failure to wear a seatbelt did not cause the accident and could not have been a proximate cause of her injuries without Prokop's driving also being a proximate cause. Rice's failure to wear a seatbelt was at most a concurring cause of her injuries and could not shield Prokop from conviction. This evidence was irrelevant, and the trial court properly excluded Page 7 it.
See Hursh, 77 Wn. App. at 245; Meekins, 125 Wn. App. at 401.
See Roggenkamp, 153 Wn.2d at 631.
Hursh, 77 Wn. App. at 245; Meekins, 125 Wn. App. at 401.
We do not consider other issues Prokop raises in the first argument section because he fails to sufficiently identify the rulings that raised these issues. He asserts the trial court relied on Hursh, which is no longer good law on the issue of recklessness, but does not identify a ruling on the issue of recklessness. He also argues that the vehicular homicide statute is different from the vehicular assault statute because there are two different proximate cause elements the State must prove in vehicular homicide case: that the driving caused injuries and the injuries caused death. He then asserts that "[t]he trial court felt that there was a single element of proof," but does not identify a specific ruling that was based upon this "feeling" of the court. In fact, the trial court instructed the jury on both elements.
At oral argument, counsel argued that evidence that Rice's failure to wear a seatbelt contributed to her injuries was relevant to both elements of causation. But as discussed above, the State need only prove that the driving caused the accident that resulted in injuries or death, regardless of whether there were other contributing causes to the injuries.
Prokop also raises additional arguments in his reply brief that were not raised in the opening brief. He argues in his reply brief that the "speed wobble" and Rice's ejection from the car were superseding causes. He also contends that because the trial court's "to convict" instruction incorporated as elements both cause of injury and cause of death, he was entitled to address this with evidence and instructions including his defenses to each of the two elements. This, he asserts, includes evidence that tended to show the injuries were caused by Rice's ejection from the car, which was in turn caused by her failure to wear a seatbelt and by the speed wobble. But he did not argue in his opening brief that the trial court improperly excluded this additional Page 8 evidence of proximate cause; his causation arguments in the opening brief focused only on the trial court's exclusion of evidence of Rice's failure to wear a seatbelt. Thus, we do not consider these additional arguments because they are improperly raised for the first time in the reply brief.
Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992) (arguments raised for the first time in a reply brief are too late to warrant the court's consideration).
II. Proposed Jury Instructions
Prokop next argues that the trial court erred by refusing to give the following defense proposed Instructions:
In the State of Washington it is an unlawful act for a driver or passenger to fail to wear a seatbelt in a motor vehicle in motion. A Washington statute states that "every person sixteen years of age or older operating or riding in a motor vehicle shall wear the safety belt assembly in a properly adjusted and securely fastened manner.
The conduct, including the failure to act, of a passenger of a motor vehicle may bear on your determination as to whether or not the passenger's acts and omissions proximately caused injury to her, whether her death was proximately caused by the defendant's operation of his vehicle in a reckless manner, and whether her death was the proximate result of injuries proximately caused by the defendant.
The acts or failure to act of the decedent may be considered by you in determining whether or not a superseding cause of her death existed. A superseding cause occurs when the act of someone other than the defendant intervenes between the defendant's original conduct and the injury to a given individual such that the defendant may no longer be held to be responsible for the injury.
"Jury instructions are sufficient if they are supported by substantial evidence, allow the parties to argue their theories of the case, and when read as a whole properly inform the jury of the applicable law." We review de novo a trial court's decision on ajury instruction based on a legal ruling. The trial court refused to give these instructions, ruling they were misleading and not a correct statement of the law. They assumed Rice's failure to wear a seatbelt could be the sole proximate cause of her injuries or death. As discussed above, that evidence was irrelevant to establishing causation, and the trial court properly refused the instructions. Thus, the first proposed instruction stating that it was unlawful not to wear a seatbelt was irrelevant to the jury's determination of guilt. Similarly, the second proposed instruction about whether the victim's acts were a proximate cause of injury or death is irrelevant and misleading. Because there is no evidence here that the victim's conduct was the sole proximate cause of the injuries or death, that it may have been a concurrent proximate cause is irrelevant to the jury's determination of guilt.
State v. Clausing, 147 Wn.2d 620, 626, 56 P.3d 550 (2002).
State v. Souther, 100 Wn. App. 701, 708, 998 P.2d 350, review denied, 142 Wn.2d 1006 (2000).
See Roggenkamp, 153 Wn.2d at 631.
The trial court gave the appropriate proximate cause instruction which correctly stated the law:
To constitute vehicular homicide, there must be a causal connection between the death of a human being and the driving of a defendant so that the act done was a proximate cause of the resulting death.
The term "proximate cause" means a cause which, in a direct sequence, unbroken by any new independent cause, produces the death, and without which the death would not have happened.
There may be more than one proximate cause of a death.
This instruction mirrors WPIC 25.02.
Nor does the evidence support the third proposed instruction which would allow the jury to consider Rice's actions as a superseding/intervening cause that would negate Prokop's culpability. An intervening cause is "'a force that actively operates toproduce harm to another after the actor's act or omission has been committed.'" As the court explained in Souther:
Souther, 100 Wn. App. at 710 (emphasis omitted) (quoting Klein v. Pyrodyne Corp., 117 Wn.2d 1, 17 n. 7, 810 P.2d 917, 817 P.2d 1359 (1991)).
"'Intervening' is used in a time sense; it refers to later events. If a defendant sets a fire with a strong wind blowing at the time, which carries the fire to the plaintiff's property, the wind does not intervene, since it was already in operation; but if the fire is set first, and the wind springs up later, it is then an intervening cause."
State v. Souther, 100 Wn. App. 701, 710, 998 P.2d 350 (quoting W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 44, at 301 (5th ed. 1984)), review denied, 142 Wn.2d 1006 (2000).
In Souther, the defendant was charged with vehicular homicide for the death of a motorcyclist with whom he collided while driving under the influence of alcohol. The vehicles were opposite each other at an intersection, and both had a green light. The defendant attempted to make a left turn and collided with the motorcycle as it proceeded through the intersection. The court held that even if the victim was exceeding the speed limit and displayed a turn signal at the time of the collision, these actions existed before the defendant's act and could not be considered intervening causes.
Id. at 704.
Id.
Id. at 710. See also State v. Roggenkamp, 115 Wn. App. 927, 946-47, 64 P.3d 92 (2003), affirmed, 153 Wn.2d 614, 106 P.3d 196 (2005).
Here, the evidence is undisputed that Rice was not wearing a seatbelt before Prokop lost control of the car and struck the utility pole. It therefore cannot be a superseding or intervening cause as a matter of law, and to instruct the jury otherwise would have been error. The trial court properly rejected the proposed defense instructions.
III. Opinion on Reckless Manner of Driving
Finally, Prokop contends that he was deprived his constitutional right to testify to his innocence when the court sustained an objection to his testimony about whether he believed his driving was rash or indifferent towards consequences. We review a trial court's evidentiary rulings for an abuse of discretion. ER 704 allows a witness to express an opinion on an "ultimate issue to be decided by the trier of fact." But "[n]o witness is permitted to express an opinion that is a conclusion of law, or merely tells the jury what result to reach." Thus, a witness may not give an opinion on the defendant's guilt because it invades the jury's role as the independent evaluator of the facts.
State v. Finch, 137 Wn.2d 792, 810, 975 P.2d 967, cert. denied, 528 U.S. 922 (1999).
5B Karl B. Tegland, Washington Practice: Evidence Law and Practice § 704.5, at 267 (5th ed. 2007).
State v. Thompson, 90 Wn. App. 41, 46, 950 P.2d 977, review denied, 136 Wn.2d 1002 (1998).
Here, Prokop sought to testify that his driving was not rash or indifferent towards consequences. The prosecutor objected, and the court sustained the objection. In so ruling, the court explained:
[I]t is certainly permissible for the defendant to testify to what was going through his mind, what matters he was considering at the time and things of that nature as a purely factual matter, but to express an opinion about whether or not his driving met the legal definition of driving in a reckless manner, that is clearly impermissible. . . .
Under the vehicular homicide statute, driving in a "'reckless manner'" means "'driving in a rash or heedless manner, indifferent to the consequences.'" By giving this testimony, Prokop sought to establish that he did not operate his car in a "reckless manner," which is an essential element of the crime of vehicular homicide. He would Page 12 have testified to an impermissible opinion on guilt. His testimony was properly excluded.
Roggenkamp, 153 Wn.2d at 618.
See Thompson, 90 Wn. App. at 45-47 (officer's testimony that defendant drove in a "reckless manner" was improper opinion of guilt, but ultimately held to be harmless error).
Prokop cites State v. Thomas, which involved issues about a defendant's right to testify. But Thomas does not address whether a criminal defendant may offer an opinion on a legal conclusion and does not support Prokop's argument that his opinion that he was not driving in a reckless manner was admissible. In fact, another case to which he cites in his reply brief notes that "'a criminal defendant has no constitutional right to have irrelevant evidence admitted in his or her defense.'"
128 Wn.2d 553, 557, 561-62, 910 P.2d 475 (1996).
State v. Thomas, 150 Wn.2d 821, 857, 83 P.3d 970 (2004) (quotingState v. Hudlow, 99 Wn.2d 1, 15, 659 P.2d 514 (1983)). Prokop cites this case in his reply brief, which coincidentally has the same title as the case he cited in his opening brief. But this case does not help him any more than the other one: it does not address the admissibility of a defendant's opinions that express a legal conclusion, and the pinpoint citations he provides refer generally to the Sixth Amendment right to compulsory process.
We affirm the conviction.