Opinion
No. 107,818.
2013-10-11
STATE of Kansas, Appellee, v. Dustin Lee RINGLE, Appellant.
Appeal from Saline District Court; Patrick H. Thompson, Judge. Korey A. Kaul, of Kansas Appellate Defender Office, for appellant. Amy E. Norton, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Saline District Court; Patrick H. Thompson, Judge.
Korey A. Kaul, of Kansas Appellate Defender Office, for appellant. Amy E. Norton, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.
Before McANANY, P.J., GREEN and HILL, JJ.
MEMORANDUM OPINION
PER CURIAM.
Claiming two jury instruction errors, Dustin Ringle asks us to overturn his convictions of involuntary manslaughter while driving under the influence of alcohol and driving while suspended. Ringle contends the trial court should have given his jury an instruction on the law of vehicular homicide as a lesser included offense of involuntary manslaughter. This differs from his request at trial, where he asked for that instruction as a lesser included crime of involuntary manslaughter while driving under the influence of alcohol, an alternative charge levied against him. We agree with the trial court that vehicular homicide, with its elements of negligence, cannot be a lesser included crime of involuntary manslaughter while driving under the influence (DUI), which is an offense containing no negligence elements. By using a clearly erroneous analysis, we conclude the failure to give this instruction was not reversible error. The evidence revealed Ringle's blood alcohol level was three times the legal limit; he was driving his car at least 56 miles per hour over the posted speed limit; and he drove across the centerline of the roadway. The young woman who was killed in the wreck was found belted in the passenger seat, dead from blunt force trauma to the brain. With such a record, Ringle has not firmly convinced us the jury would have reached a different verdict had the instruction been given.
A single vehicle accident led to death.
The facts of this case are not disputed. In August 2010, Ringle attended a birthday party in Salina. He was drinking beer. Around 10 p.m., Meghan Will, who was also attending the party, wanted to go to a local bar so she could talk to some coworkers but did not want to drive because she had been drinking. Ringle offered to drive her. Sometime between 2 and 3 a.m. the next day, the birthday party was still going on when one of the attendees heard tires squealing and a loud bang. Ringle's car had struck a culvert as he was returning with Will to the party.
When emergency medical personnel arrived, they discovered Will belted into the passenger seat, dead. She died from blunt force trauma and injury to her brain. Emergency personnel found Ringle pinned between the car's roof and the trunk lid, breathing but unconscious. After they removed Ringle from the wreck, he was taken to the hospital where his blood test revealed a blood alcohol content of .27, more than three times the legal limit.
Investigators found 19 beer cans at the scene and a 30–pack beer carton inside the wrecked car. The officers calculated Ringle was driving 96 miles an hour—in a 40 mile per hour zone—immediately before crossing the roadway's centerline, when he overcorrected and entered a sideways skid during which the vehicle rotated 180 degrees before leaving the roadway. The back end of the car then hit a drain culvert and became airborne. The accident scene extended almost two-tenths of a mile, and the car left over 300 feet of skid marks before it struck the culvert.
The State files charges against Ringle.
The charges the State brought against Ringle were:
• reckless second-degree murder; or in the alternative, involuntary manslaughter while driving under the influence;
• driving while under the influence, with at least one prior DUI conviction (charged in the alternative—having a blood alcohol content above .08 within 2 hours of driving or driving while under the influence of alcohol to a degree that rendered him incapable of safely driving a vehicle);
• driving while his driving license was suspended; and,
• several traffic infractions.
At the jury trial, the trial court gave the jury an instruction on involuntary manslaughter as a lesser included offense of the reckless second-degree murder charge. The trial court denied Ringle's request for a jury instruction on vehicular homicide as a lesser included offense of involuntary manslaughter while DUI, and Ringle objected. The jury found Ringle guilty of both involuntary manslaughter while DUI and involuntary manslaughter, and both DUI alternatives, and driving with a suspended license.
Prior to sentencing, the trial court decided involuntary manslaughter while DUI, a violation of K.S.A. 21–3442, is a more specific offense than involuntary manslaughter and convicted Ringle solely of that crime. The court then held the DUI offense was a lesser included crime of the involuntary manslaughter while DUI charge, and that crime therefore merged into the involuntary manslaughter while DUI conviction. Finally, the court entered a conviction for driving while suspended, in violation of K.S.A.2010 Supp. 8–262. Neither party has appealed these rulings.
In the end, the court convicted and sentenced Ringle for involuntary manslaughter while DUI and driving while his license was suspended. The court imposed an aggravated presumptive sentence of 69 months' imprisonment with a postrelease supervision term of 36 months.
We focus on the issue of giving a vehicular homicide instruction .
Ringle contends the trial court erred in denying his request to instruct the jury on vehicular homicide. We note that Ringle has shifted his position on this issue. He acknowledges that he specifically asked the trial court to instruct the jury on vehicular homicide as a lesser included crime of involuntary manslaughter while DUI, but in this appeal he chooses to frame his issue differently by arguing vehicular homicide is a lesser included offense of involuntary manslaughter. Ringle does not brief the distinction between the two statutes by addressing the significance of the DUI element in K.S.A. 21–3442.
The trial court instructed the jury on both involuntary manslaughter while DUI, in violation of K.S.A. 21–3442, and involuntary manslaughter, in violation of K.S.A. 21–3404. These are two different crimes. In fact, in State v. Wolley, No. 88,706, 2004 WL 1041117, at *3 (Kan.App.2004) (unpublished opinion), a panel of this court held that involuntary manslaughter is not a lesser included offense of involuntary manslaughter while DUI.
Because Ringle failed to brief whether vehicular homicide is a lesser included offense of involuntary manslaughter while DUI, we could rule he is abandoning the issue. See State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011). But, since this is an issue of lesser included offense instructions and the trial court has a duty to instruct on all lesser included crimes where there is some evidence that would reasonably justify a conviction of the lesser included offense, we will examine the issue. See K.S.A. 22–3414(3); State v. Horn, 278 Kan. 24, Syl. ¶ 6, 91 P.3d 517 (2004). Additionally, whether a crime is a lesser included offense of another is a question of law over which this court has unlimited review. State v. Gallegos, 286 Kan. 869, 873, 190 P.3d 226 (2008).
When a defendant fails to request or does not object to the trial court's failure to give a lesser included offense instruction, it is reversible error only if the failure to give the instruction was clearly erroneous. K.S.A. 22–3414(3); State v. Harris, 293 Kan. 798, 806, 269 P.3d 820 (2012). Since Ringle did not ask for a vehicular homicide instruction as a lesser included offense of involuntary manslaughter, we will use the clearly erroneous standard of review when making our decision on this point.
To determine whether it was clearly erroneous for the trial court to fail to give an instruction, we must decide whether an error occurred. If the trial court erred in failing to give a particular instruction, we will then decide whether it is a reversible error. The test for clear error requiring reversal is whether we are firmly convinced that the jury would have reached a different verdict had the instruction error not occurred. The burden of showing clear error remains with the defendant. See State v. Williams, 295 Kan. 506, 515–16, 286 P.3d 195 (2012).
Some fundamental points of law on lesser included crimes.
Briefly, K.S.A. 21–3107(2) defines a lesser included offense as a lesser degree of the same crime or a crime where all of the elements of the lesser crime are identical to some of the elements of the crime charged.
The three possible crimes here are:
1. K.S.A. 21–3405, vehicular homicide, a class A person misdemeanor defined as the unintentional killing of a human being committed by the operation of an automobile in a manner which creates an unreasonable risk of injury to another person and which constitutes a material deviation from the standard of reasonable care;
2. K.S.A. 21–3442, involuntary manslaughter while DUI, a severity level 4 person felony defined as the unintentional killing of a human being committed in the commission of an act described in K.S.A. 8–1567;
3. K.S.A. 21–3404, involuntary manslaughter, a severity level 5 person felony defined (in this instance) as the unintentional killing of a human being committed recklessly or in the commission of a felony excluding the acts described in K.S.A.2010 Supp. 8–1567(DUI).
The trial court ruled that vehicular homicide was not a lesser included offense of involuntary manslaughter while DUI because vehicular homicide has an element of recklessness not found in K.S.A. 21–3442. The court relied upon K.S.A. 21–3107(2)(b), which defines a lesser included crime as a crime where all elements of the lesser crime are identical to some of the elements of the crime charged. The trial court got it right.
The purported lesser included offense of vehicular homicide includes a negligence element that the State must prove. When examining this law our Supreme Court has said this material deviation from the standard of care language means “conduct amounting to more than simple or ordinary negligence and yet it is conduct not amounting to gross and wanton negligence.” State v. Krovvidi, 274 Kan. 1059, 1069, 58 P.3d 687 (2002).
In contrast, negligence is never considered when dealing with a charge of involuntary manslaughter while DUI, because of the required proof of DUI in K.S.A. 21–3442. Thus, to convict, the State does not need to prove a specific criminal intent or mental state, just causation. A panel of this court in State v. Collins, 36 Kan.App.2d 367, 371, 138 P.3d 793 (2006), noted that involuntary manslaughter while DUI and involuntary manslaughter “share a common framework. Each defines its crime as ‘the unintentional killing of a human being’ committed under different circumstances.” The only proof required is that someone died in an accident involving a defendant driving a motor vehicle while under the influence of alcohol or drugs, as defined by K.S.A.2010 Supp. 8–1567. See State v. Creamer, 26 Kan.App.2d 914, 918–19, 996 P.2d 339 (2000).
Thus, involuntary manslaughter is not a lesser included offense of involuntary manslaughter while DUI, and the trial court did not err in failing to give this lesser included instruction. See State v. Alderete, 285 Kan. 359, 362, 172 P.3d 27 (2007); cf. State v. Mourning, 233 Kan. 678, 682–84, 664 P.2d 857 (1983). In Mourning, our Supreme Court held that “the offense of reckless driving is not a lesser included offense of driving under the influence of alcohol or drugs” because whether the person is guilty of DUI is not dependent upon a finding of recklessness. 233 Kan. at 682–83.Wolley held that involuntary manslaughter is not a lesser included offense of involuntary manslaughter while DUI because K.S.A. 21–3442 “does not include the element of recklessness.” 2004 WL 1041117, at *3.
We turn now to the question of whether the trial court erred when it did not give a vehicular homicide instruction as a lesser included offense of involuntary manslaughter, which the court instructed the jury was a lesser included offense of reckless second-degree murder. There is language in a prior case that suggests the trial court should have given the instruction.
In State v. Makin, 223 Kan. 743, 576 P.2d 666 (1978), Makin was convicted of involuntary manslaughter under K.S.A. 21–3404 for having unintentionally killed Jamie R. Reeves while Makin was operating a vehicle while under the influence of alcohol contrary to K.S.A. 8–1567 and driving left of center. On appeal, Makin argued that he was improperly charged under the involuntary manslaughter statute because involuntary manslaughter was a general statute that had been superseded by the more specific statute on vehicular homicide. The court held:
“[I]n the field of unintentional homicide by operation of a motor vehicle, the specific statute, vehicular homicide (K.S.A.21–3405), is concurrent with and controls the general statute on involuntary manslaughter (K.S.A.21–3404) except where the acts of the accused constitute wanton conduct (gross negligence). Accordingly, the issue in all such cases where the charge is involuntary manslaughter becomes whether or not the conduct of the defendant was grossly negligent. In virtually all cases, then, vehicular homicide would be a lesser included offense of involuntary manslaughter and the jury should be instructed thereon.” 223 Kan. at 748.
This statement does not persuade us that the failure to give the vehicular homicide instruction under these circumstances is reversible error for two reasons.
First, the Makin court also held that the trial court does not have to instruct the jury on vehicular homicide as a lesser included offense of involuntary manslaughter when the actions of the defendant responsible for an unintentional killing in an automobile accident rise to the level of wanton conduct. See State v. Stone, 253 Kan. 105, 112–15, 853 P.2d 662 (1993). Stone relied on Makin to find no error in the trial court's failure to instruct the jury on vehicular homicide as a lesser included offense of involuntary manslaughter.
The Makin court also stated: “Wanton conduct involves a realization of the imminence of danger to the person of another and a reckless disregard or complete indifference and unconcern for the probable consequences of such conduct.” 223 Kan. at 746.
Given the facts here, there was substantial direct evidence to show that Ringle's extremely high level of intoxication while driving under the influence caused the death of Will. Ringle did not dispute the validity of his blood test indicating a blood alcohol content of over three times the legal limit at the time of the accident. K.S.A.2010 Supp. 8–1567(a)(2) provides that evidence of a blood alcohol concentration of .08 or more establishes a per se DUI violation. Ringle drove at a speed of 56 miles an hour over the posted speed limit, crossed the centerline, and caused the accident resulting in a young woman's death because alcohol had affected Ringle's perception and judgment. In fact, the Makin court found that evidence the defendant had been DUI and driving his vehicle on the wrong side of the road was sufficient evidence of wanton conduct to support the conviction of involuntary manslaughter. 223 Kan. at 748.
Being mindful of our standard of review and assuming it was error to fail to give this instruction, given all of this uncontested evidence and the fact that the jury found Ringle guilty on all counts except second-degree reckless homicide, we are not firmly convinced that the jury would have reached a different verdict had the instruction been given. See State v. Magallanez, 290 Kan. 906, 918–19, 235 P.3d 460 (2010).
Second, when we note that the trial court set aside the jury's guilty verdict on involuntary manslaughter, we cannot see how the failure to give this instruction is error. The trial court ruled that involuntary manslaughter while DUI is a more specific crime than involuntary manslaughter, a ruling neither party appealed. If it is the more specific crime for the greater crime of involuntary homicide, it must, by definition, be the more specific crime for the lesser included offense of vehicular homicide as the greater crime contains all the elements of the lesser.
So, even if the vehicular homicide instruction had been given as a lesser included crime of involuntary manslaughter, a lesser included crime of second-degree reckless murder, and the jury had found Ringle guilty of vehicular homicide, the court would have been forced to convict him of involuntary manslaughter while DUI, the more specific crime, because he could not have been guilty of both. K.S.A.2012 Supp. 21–5109(d) states that when crimes differ, and one prohibits conduct generally and the other prohibits a specific instance, a defendant may not be convicted of the two crimes based upon the same conduct, and the defendant shall be sentenced according to the terms of the more specific crime. The more specific crime here is involuntary manslaughter, while vehicular homicide is a more general crime.
We find no error in refusing to give a vehicular homicide instruction.
The disapproved language in the burden of proof instruction is not reversible error.
Ringle also claims the trial court committed reversible error by improperly instructing the jury on reasonable doubt. Ringle does not dispute the lack of his objection to the jury instruction as given.
Because Ringle failed to object to the instruction, we base our review once again on the clearly erroneous standard stated above. See K.S.A.2010 Supp. 22–3414(3); Harris, 293 Kan. at 806.
The disputed burden of proof jury instruction tracked the recommended language in PIK Crim.3d 52.02 (2004 Supp.) and stated, in relevant part:
“The test you must use in determining whether the defendant is guilty or not guilty is this: If you have a reasonable doubt as to the truth of any of the claims required to be proved by the State, you must find the defendant not guilty. If you have no reasonable doubt as to the truth of any of the claims required to be proved by the State, you should find the defendant guilty.” (Emphasis added.)
Ringle argues the trial court's use of the word “any” in the final sentence diluted the State's burden of proof because it allowed the jury to find him guilty if just one of the State's claims was proven beyond a reasonable doubt. The PIK instruction has since been modified to use “any” and “each.”
The Kansas Supreme Court in State v. Herbel, 296 Kan. 1101, 1124, 299 P.3d 292 (2013), recently addressed this precise issue and concluded that the use of the older PIK instruction, while not preferred, “was legally appropriate.” This is not reversible error.
Affirmed.