State of Utah v. Nagel

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Donald David Nagel,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000649-CA

F I L E D
September 13, 2001 2001 UT App 268 -----

Fifth District, Cedar City Department
The Honorable Robert T. Braithwaite

Attorneys:
J. Bryan Jackson, Cedar City, for Appellant
Scott M. Burns, Cedar City, for Appellee

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Before Judges Greenwood, Davis, and Thorne.

DAVIS, Judge:

Nagel first argues that the prosecution did not prove the requisite criminal intent to support his conviction for reckless driving pursuant to Utah Code Ann. § 41-6-45(1)(a) (Supp. 2000). If an offense does not involve strict liability, then a culpable mental state is required to establish criminal responsibility. See Utah Code Ann. § 76-2-102 (1999). Utah's reckless driving statute establishes that "willful or wanton" is the culpable mental state for that crime. Utah Code Ann. § 41-6-45(1)(a). As Nagel indicates, the Utah Supreme Court addressed the meaning of the term "willful" in State v. Larsen, 865 P.2d 1355 (Utah 1993). "Willful, when applied to the intent with which an act is done or omitted, implies a willingness to commit the act . . . . Willful does not require an intent to violate the law . . . ." Id. at 1358 n.3.

Here, the evidence established that Nagel pulled off the road in heavy traffic causing other cars to swerve around him, crossed the double yellow line to pass other cars, and wove in and out of traffic. Although he may not have specifically intended to endanger others, he willingly engaged in acts that endangered other persons and property. Therefore, Nagel's conduct was sufficient to establish the requisite criminal intent to support his conviction for reckless driving.

Nagel also argues that the reckless driving statute is unconstitutionally vague. "When reviewing the constitutionality of a statute, we must presume that the statute is constitutional." State v. Krueger, 1999 UT App 54, ¶21, 975 P.2d 489. "[A] statute is not unconstitutionally vague if it is sufficiently explicit to inform the ordinary reader what conduct is prohibited . . . ." Id. at ¶23.

Utah Code Ann. § 41-6-45(1)(a) provides that a person is guilty of reckless driving when that person operates a vehicle "in willful or wanton disregard for the safety of persons or property." In construing the language of this statute, "it is to be assumed that the words used were chosen advisedly, and terms should be given an interpretation and an application in accord with their commonly understood meaning." Nephi City v. Hansen, 779 P.2d 673, 675 (Utah 1989).

Although section 41-6-45(1)(a) prohibits a broad range of activities, it is not unconstitutionally vague. Specifically, the phrase "disregard for the safety of persons or property" is sufficiently explicit to inform the ordinary person what conduct is prohibited because, in the context of operating a motor vehicle, it is commonly understood what activities would endanger persons or property.(1) Utah Code Ann. § 41-6-45(1)(a). Thus, an ordinary person would understand what conduct is prohibited.

Nagel next argues that the trial court erred in its assessment of the credibility of the witnesses and the weight it ascribed to their testimony. The trial court is free to believe the testimony of the prosecution's witnesses over that of the defendant's because the trial court is in the best position to determine the credibility of the witnesses. See State v. Pena, 869 P.2d 932, 936 (Utah 1994). Further, it is improper for this court to "weigh conflicting evidence, the credibility of witnesses, or the weight to be given appellant's testimony." State v. Logan, 563 P.2d 811, 813 (Utah 1977). Thus, we uphold the trial court's assessment of the credibility of witnesses and its weighing of the evidence.

In an apparent effort to explain its decision, the trial court commented on witness credibility. Mischaracterizing these comments as findings, Nagel argues that the trial court's "findings" regarding the testimony of the witnesses were insufficient to justify its decision. Although findings were neither made nor required in this case, the court discounted the testimony of the defense witnesses. The court noted that all of the defense witnesses gave identical testimony regarding what was supposedly "an unremarkable event." The court further commented that it doubted the testimony of one defense witness because the witness could recall events that occurred several months before the trial; however, the witness "just froze up when asked what she . . .talk[ed] about" during a break in the trial that day. In contrast, the court determined that the prosecution witnesses were credible, noting that there was no "need or basis for fabrication by the prosecution witnesses." Accordingly, we conclude that the comments are "sufficiently comprehensive and pertinent to the issues to provide a basis for decision" and are not inconsistent therewith. State v. Hurst, 821 P.2d 467, 471 (Utah Ct. App. 1991).

Affirmed.
 
 
 

______________________________
James Z. Davis, Judge -----

WE CONCUR:
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge
 
 

______________________________
William A. Thorne, Jr., Judge

1. The State strives to ensure such a common understanding by requiring all drivers to pass a written driver's test before they are issued a driver's license.