State v. LaBounty

State v. LaBounty (2004-149); 179 Vt. 199; 892 A.2d 203

2005 VT 124

[Filed 18-Nov-2005]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                 2005 VT 124

                                No. 2004-149


  State of Vermont	                         Supreme Court

                                                 On Appeal from
       v.	                                 District Court of Vermont,
                                                 Unit No. 3, Franklin Circuit

  Michael LaBounty	                         September Term, 2005


  Michael S. Kupersmith, J.

  James A. Hughes, Franklin County State's Attorney, St. Albans, for
    Plaintiff-Appellee.

  Matthew F. Valerio, Defender General, Henry Hinton, Appellate Defender, and
    Ann E. Johnston, Law Clerk (On the Brief), Montpelier, for
    Defendant-Appellant.


  PRESENT:  Reiber, C.J., Dooley, Johnson and Skoglund, JJ., and 
            Burgess, D.J.,  Specially Assigned

       ¶  1.  JOHNSON, J.   Defendant Michael LaBounty appeals his
  conviction on two counts of grossly negligent operation of a motor vehicle. 
  Defendant argues that the State could properly charge him with only one
  count of grossly negligent operation for a single act of negligent driving
  that resulted in serious bodily injury to two people.  We reverse on one
  count and remand for further sentencing proceedings on the other. 
   
       ¶  2.  Defendant was driving at an extremely high speed in St.
  Albans when he lost control of his vehicle and crashed, severely injuring
  his two passengers.  Defendant was charged with two counts of grossly
  negligent operation under 23 V.S.A. § 1091(b), one for each injured
  passenger.  The trial court determined, without objection, that it was
  appropriate to proceed on both counts, and a jury convicted defendant on
  both counts.  The trial court imposed a sentence of twenty-four months to
  fifteen years on the first count, and a consecutive, suspended sentence of
  five to fifteen years on the second count.

       ¶  3.  Defendant contends that 23 V.S.A. § 1091(b) permits the State
  to charge only one count of grossly negligent operation for a single act of
  driving, regardless of how many injuries resulted from that act.  Because
  defendant failed to object to the trial court's decision to allow the jury
  to consider both counts, we review this issue for plain error only.  State
  v. Oscarson, 2004 VT 4, ¶ 27, 176 Vt. 176, 845 A.2d 337.  "Plain error
  exists only in exceptional circumstances where a failure to recognize error
  would result in a miscarriage of justice, or where there is glaring error
  so grave and serious that it strikes at the very heart of the defendant's
  constitutional rights."  Id.  (quoting State v. Pelican, 160 Vt. 536, 538,
  632 A.2d 24, 26 (1993)).  We will reverse only where we find that the error
  affected defendant's substantial rights and had an unfair prejudicial
  impact on the jury's deliberation.  Id.
   
       ¶  4.  The question defendant presents on appeal is one of statutory
  interpretation.  Our goal in interpreting statutes is to give effect to the
  Legislature's intent.  Town of Killington v. State, 172 Vt. 182, 188-89,
  776 A.2d 395, 400-01 (2001).  In interpreting a criminal statute, the rule
  of lenity requires us to resolve any ambiguity in favor of the defendant. 
  State v. Goodhue, 2003 VT 85, ¶21, 175 Vt. 457, 833 A.2d 861.  This
  includes ambiguity with respect to the number of offenses that can arise
  from a single transaction.  See Bell v. United States, 349 U.S. 81, 84
  (1955) ("[I]f Congress does not fix the punishment for a federal offense
  clearly and without ambiguity, doubt will be resolved against turning a
  single transaction into multiple offenses.").   

       ¶  5.  The statute under which defendant was convicted provides in
  relevant part: 

    (b)  Grossly negligent operation. 
   
    (1)  A person who operates a motor vehicle on a public highway in
    a grossly negligent manner shall be guilty of grossly negligent
    operation.  

    (2)  The standard for a conviction for grossly negligent operation
    in violation of this subsection shall be gross negligence,
    examining whether the person engaged in conduct which involved a
    gross deviation from the care that a reasonable person would have
    exercised in that situation.  

    (3)  A person who violates this subsection shall be imprisoned not
    more than two years or fined not more than $5,000.00, or both.  If
    the person has previously been convicted of a violation of this
    section, the person shall be imprisoned not more than four years
    or fined not more than $10,000.00, or both.  If serious bodily
    injury as defined in section 1021 of Title 13 or death of any
    person other than the operator results, the person shall be
    imprisoned for not more than 15 years or fined not more than
    $15,000.00, or both.

  23 V.S.A. § 1091(b).  The statute does not explicitly address the issue of
  whether an operator of a vehicle is guilty of multiple offenses if multiple
  injuries occur.  The key to determining the Legislature's intent in the
  absence of explicit guidance is whether "the actus reus prohibited by the
  statute-the gravamen of the offense-has been committed more than once." 
  Wilkoff v. Superior Court, 696 P.2d 134, 137 (Cal. 1985).         
   
       ¶  6.     The question thus becomes whether the actus reus
  prohibited by the statute is the act of driving negligently, which
  defendant committed only once, or the act of causing serious injury, which
  defendant committed twice.  The statute defines the act of grossly
  negligent operation in terms of driving, not in terms of the consequences
  that might result from driving negligently.  A driver may be convicted of
  grossly negligent operation regardless of whether an injury occurs, or even
  whether an accident occurs.  Violation of the statute turns entirely on
  whether the driver's conduct "involved a gross deviation from the care that
  a reasonable person would have exercised," while injuries resulting from
  the driver's gross negligence serve only to enhance a convicted violator's
  punishment.  23 V.S.A. § 1091(b)(2)-(3).  There is no question that
  defendant could be punished more severely for causing injuries than for
  deviating from the standard of care, but he was guilty of only one act of
  grossly negligent operation.


       ¶  7.  The State argues that the statute's reference to serious bodily
  injury to "any person" makes it analogous to statutes allowing multiple
  convictions for harm to multiple victims.  The State relies primarily on
  State v. Senna, in which we upheld the defendant's convictions on three
  counts of kidnapping.  154 Vt. 343, 346-47, 575 A.2d 200, 202 (1990).  We
  held that three convictions were appropriate in Senna despite the fact that
  the defendant had taken all three victims to the same place at the same
  time.  Id.  In Senna, however, we pointed out that the kidnapping statute,
  "which imposes penalties on a 'person who, without legal authority,
  forcibly or secretly confines or imprisons another person within this state
  against his will,' . . . defines an act of kidnapping by reference to the
  victim."  Id.  Senna implies that multiple counts are appropriate against a
  defendant who harms multiple victims when the statute defines a violation
  by reference to the victim.  This is not true of the grossly negligent
  operation statute, which defines an act of grossly negligent operation
  solely by reference to the standard of care required of drivers.
   
       ¶  8.  We have not previously considered whether multiple counts are
  appropriate when the Legislature defines a crime without reference to the
  victim.  Other jurisdictions have, however, addressed this issue with
  respect to similar statutes and reached the same conclusion.  See United
  States v. Scranton, 30 M.J. 322, 324-25 (C.M.A. 1990) (allowing only one
  court-martial conviction under military drunk driving statute for accident
  harming multiple victims, despite accompanying guidelines providing for
  increased sentencing in cases involving personal injury); Wilkoff, 696 P.2d 
  at 139 (holding that only one conviction was appropriate under California's
  driving while intoxicated statute regardless of the number of victims);
  Kelly v. State, 527 N.E.2d 1148, 1154-55 (Ind. Ct. App. 1988) (interpreting
  Indiana's driving while intoxicated statute to permit only one conviction
  for a single act of drunk driving because "the legislature chose to use the
  result of serious bodily injury or death as a factor enhancing the
  punishment for the crime rather than as an aspect of the crime itself,
  i.e., as part of the definition of the crime"), aff'd, 539 N.E.2d 25 (Ind.
  1989).  In Wilkoff, the Supreme Court of California interpreted that
  state's driving while intoxicated statute to allow only one conviction for
  a single act of driving because "[i]n contrast to the crimes of murder,
  manslaughter, administering poison, robbery and sex offenses-all of which
  are defined in terms of an act of violence against the person-the act
  prohibited . . . is defined in terms of an act of driving."  696 P.2d  at
  139.  Although the California statute refers explicitly to acts causing
  "death or bodily injury to any person other than the driver," the court 
  explained:

    Defendants are not chargeable with a greater number of offenses
    simply because the injuries proximately caused by their single
    offense are greater.  Rather, the Legislature may provide for
    increased punishment for an offense that has more serious
    consequences by, for instance, raising the statutory prison terms,
    adding enhancements, or upgrading the offense from a misdemeanor
    to a felony.  The number and severity of injuries proximately
    caused by an offense may also be considered by a trial court in
    sentencing.

  Id. at 136, 139.  Vermont's grossly negligent operation statute makes
  precisely the same distinction between the prohibited act and the
  prescribed punishment.

       ¶  9.  The State attempts to cast Wilkoff's holding as a minority
  rule, citing Alaska v. Dunlop, 721 P.2d 604, 609 (Alaska 1986), which
  states: "Virtually every other state which has considered this issue has
  held that multiple punishments for multiple victims of single criminal acts
  do not violate state or federal double jeopardy provisions."  The Dunlop
  court appears to be correct in this regard.  See id. at 609 n.22 (citing
  cases from several other states supporting multiple convictions for the
  same conduct).  The State fails to recognize, however, that Dunlop arose
  from a prosecution for vehicular manslaughter, and the cases cited for
  support in Dunlop considered a defendant's multiple convictions of either
  manslaughter or some other crime of violence.  Id. at 609 & n.22.  The
  statutes defining these crimes, like the kidnapping statute in Senna, do so
  by reference to the victim.  See id. at 609 ("In cases of manslaughter or
  assault, the conduct prohibited is the killing or injuring of a person. 
  Where more than one person is victimized, more than one offense occurs."). 
  The same is true of the two other cases the State cites.  See State v.
  Myers, 298 S.E.2d 813, 815 (W.Va. 1982) (involuntary manslaughter); State
  v. Rabe, 291 N.W.2d 809, 822 (Wis. 1980) (homicide by intoxicated use of a
  motor vehicle).  Each of these cases, like Senna, supports multiple
  convictions only when a statute includes harm to the victim in the actus
  reus.
   
       ¶  10.  Ensuring that the grossly negligent operation statute
  adequately protects passengers and drivers from harm is a legitimate
  concern.  Our decision here does not interfere with that goal.  We are
  simply observing that "the act prohibited by the statute was the act of
  driving, not the act of injuring persons."  Wilkoff, 696 P.2d  at 138; see
  also Scranton, 30 M.J.  at 325 n.2 ("This is not to say that drunk driving
  is not a serious offense or that its prohibition may not ultimately protect
  the lives of individual persons.").  The statute required the State to hold
  defendant accountable for the injuries resulting from his actions by
  seeking an enhanced sentence under 23 V.S.A. § 1091(b)(3), not by charging
  defendant with multiple violations.  It was therefore plain error for the
  trial court to allow the case to proceed on both counts.  We recognize,
  however, that the trial court sentenced defendant on the first count as if
  that violation had harmed only one victim.  We therefore reverse one of
  defendant's convictions and remand for further sentencing proceedings on a
  single count of grossly negligent operation, encompassing serious bodily
  injury to both victims.

       Reversed on the second count and remanded for resentencing on the
  first count. 


                                       FOR THE COURT:



                                       _______________________________________
                                       Associate Justice