State of Minnesota, Respondent, vs. Melissa Kay Gibson, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1713

 

State of Minnesota,

Respondent,

 

vs.

 

Melissa Kay Gibson,

Appellant.

 

Filed September 7, 2004

Affirmed

Kalitowski, Judge

 

Wright County District Court

File No. KX-02-2720

 

Mike Hatch, Attorney General, Tibor M. Gallo, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Thomas N. Kelly, Wright County Attorney, 10 Second Street Northwest, Room 150, Government Center, Buffalo, MN 55313-1193 (for respondent)

 

Daniel Guerrero, Meshbesher & Spence, Ltd., 1616 Park Avenue, Minneapolis, MN 55404 (for appellant)

 

            Considered and decided by Kalitowski, Presiding Judge; Klaphake, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant challenges her convictions of criminal vehicular operation resulting in death and fourth-degree driving while impaired, arguing that (1) the district court erred in not admitting as impeachment evidence an eyewitness's prior convictions of writing worthless checks; (2) the district court abused its discretion in refusing to instruct the jury on causation and intervening cause; (3) the district court erred in denying appellant's motion for a dispositional departure; and (4) the evidence is insufficient to support the jury's verdict.  We affirm.

D E C I S I O N

 

I.

Appellant first argues that the district court erred in not admitting as impeachment evidence an eyewitness's prior convictions of writing worthless checks.  "Construction of a rule of evidence is a question of law subject to de novo review."  State v. Head, 561 N.W.2d 182, 185 (Minn. App. 1997).  When using evidence of a prior conviction for purposes of impeachment, Minn. R. Evid. 609(a) directly controls:  "[f]or the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted only if the crime . . . (2) involved dishonesty or false statement, regardless of the punishment."

An offense is automatically admissible under rule 609(a)(2) if dishonesty is an element of the offense or if the manner in which the offense was committed involved dishonesty.  Head, 561 N.W.2d at 187.  And if a prior conviction falls within rule 609(a)(2), the district court has no discretion to exclude evidence of the prior conviction.  State v. Sims, 526 N.W.2d 201, 201-02 (Minn. 1994).

We conclude that the eyewitness's gross-misdemeanor convictions for writing worthless checks likely falls within rule 609(a)(2).  Thus, the district court may not have had discretion to exclude evidence of the prior convictions.  But even if the court erred, the error is harmless if this court is "satisfied beyond a reasonable doubt that if the evidence had been admitted and the damaging potential of the evidence fully realized, an average jury (i.e. a reasonable jury) would have reached the same verdict."  State v. Post, 512 N.W.2d 99, 102 (Minn. 1994) (footnote omitted).

Here, even if the district court erred in excluding evidence of the eyewitness's prior worthless-check convictions, we conclude that any error is harmless beyond a reasonable doubt.  The record indicates that the first offense occurred in 1995 and involved a $25 check.  The second offense occurred in 1997 and involved a check for $83.79.  While the amounts of the checks are irrelevant in determining admissibility under rule 609(a)(2), they are relevant in determining what effect the evidence may have had on the verdict.  And we conclude that evidence of these convictions has very limited probative value because a reasonable jury would not be greatly affected if they learned that the eyewitness, on two occasions several years earlier, wrote two bad checks in the amount of $25 and $83.79.

In addition, because there was additional, substantial evidence of appellant's guilt, we conclude that the jury would have reached the same verdict even if evidence of the eyewitness's prior convictions were admitted.  See State v. Juarez, 572 N.W.2d 286, 291 (Minn. 1997) (stating that overwhelming evidence of guilt is a factor in determining whether an error had an impact on the verdict).  Here, the state introduced the testimony of an accident reconstructionist who testified consistently with the eyewitness's testimony at trial that she saw appellant's vehicle cross the centerline and collide with the victim's motorcycle and that the eyewitness's vehicle did not come in contact with the victim's motorcycle.  Thus, the eyewitness's testimony was significantly corroborated by the reconstructionist's testimony.  And because the probative value of the impeachment evidence against the eyewitness is very limited, her testimony was repetitive, and there was substantial evidence of guilt, we conclude that the verdict is unattributable to any district court error. 

II.

            Appellant also argues that the district court erred in refusing to give the instruction she requested regarding causation.  District courts are allowed "considerable latitude" in the selection of language for the jury instructions.  State v. Baird, 654 N.W.2d 105, 113 (Minn. 2002).  Jury instructions must be viewed in their entirety to determine whether they fairly and adequately explain the law of the case.  State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988).  The refusal to give a requested jury instruction lies within the discretion of the district court and will not be reversed absent an abuse of discretion.  State v. Cole, 542 N.W.2d 43, 50 (Minn. 1996).  The focus of the analysis is on whether the refusal resulted in error.  State v. Kuhnau, 622, N.W.2d 552, 555 (Minn. 2001).

            Generally, a party is entitled to an instruction on his theory of the case if there is evidence to support it.  State v. Boitnott, 443 N.W.2d 527, 533 (Minn. 1989).  But a court need not give the instruction requested if it determines that the substance of the request is contained in the court's charge.  Id.  Here, relying on State v. Jaworsky, appellant argues that she could only be convicted if her actions were a proximate cause of the victim's death and there was no intervention of an efficient independent force in which she did not participate or which she could not reasonably have foreseen.  505 N.W.2d 638, 643 (Minn. App. 1993). 

            The doctrine of superseding cause breaks the chain of causation set in operation by the original act of negligence and insulates the original negligent actor from liability.  State v. Hofer, 614 N.W.2d 734, 737 (Minn. App. 2000).  An intervening cause is a superseding cause when four elements are satisfied:  (1) it happened after the original negligence; (2) it did not happen because of the original negligence; (3) it changed the natural course of events and made the result different from what it would have been; and (4) the original wrongdoer (or negligent actor) could not have reasonably anticipated this event.  Id.

            Here, appellant alleges that the eyewitness's vehicle made contact with the victim's motorcycle and that that contact constitutes a superseding cause.  But the original negligence occurred either when appellant operated her vehicle while having a blood-alcohol concentration of .10 or more, or when her vehicle crossed into the lane of oncoming traffic.  Thus, even if the eyewitness's vehicle made contact with the victim's motorcycle, the contact would have occurred after appellant's original negligent act.  And any contact between the eyewitness's vehicle and the victim's motorcycle was directly caused by appellant's negligent act.  Appellant's theory is that the victim may have avoided the accident had the eyewitness not made contact with the victim.  But even if this is true, appellant crossing the centerline directly caused any alleged contact between the eyewitness and the victim.  Therefore, the alleged intervening cause, even if believed by the jury, does not satisfy the required elements of a superseding cause.  And because the evidence before the district court did not support appellant's theory that the victim's death was caused by a superseding cause, we conclude that the district court did not err in refusing to give this instruction.

            In addition, the district court's instructions on the two counts of criminal vehicular homicide were taken virtually verbatim from 10 Minnesota Practice, CRIMJIG 11.63 (1999), which describes the necessary elements for the two counts of criminal vehicular homicide appellant was charged with.  The district court did not omit any part of CRIMJIG 11.63 in giving its instructions.  And, when viewed in their entirety, the jury instructions fairly and adequately explain the law of the case.

            Finally, we note that even if the district court had given the requested instruction, it would not have affected the verdict.  If the court had given the requested instruction, the jury would have had to find that (1) the eyewitness's vehicle made contact with the victim's motorcycle; (2) this contact was not caused by appellant's negligence; and (3) appellant would not have hit and killed the victim if the eyewitness had not made contact with the victim's motorcycle.  We conclude that on this record, a reasonable jury could not make these findings.  Therefore, after examining all relevant factors, we conclude that, beyond a reasonable doubt, failure to give the requested instruction did not have a significant impact on the verdict.

III.

Appellant also argues that the district court erred in denying her motion for a downward dispositional departure.  "[A] sentencing court has no discretion to depart from the sentencing guidelines unless aggravating or mitigating factors are present."  State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999).  If the district court determines that such factors are present, the decision to depart from sentencing guidelines rests within its discretion and an appellate court will not reverse absent a clear abuse of that discretion.  State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).  An appellate court will rarely reverse a sentencing court's refusal to depart.  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).

When addressing whether the district court properly refused to depart dispositionally, this court must focus on "perpetrator-related factors" such as the defendant's dangerousness and whether she is amenable to probation.  State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984).  Several factors, including the defendant's age, prior record, remorse, cooperation, attitude while in court, and the support of friends and/or family, are relevant to a determination whether a defendant is particularly suitable to individualized treatment in a probationary setting.  State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982).  But the mere fact that a mitigating factor is present does not obligate the court to grant a downward departure.  State v. Oberg, 627 N.W.2d 721, 724 (Minn. App. 2001) (quoting State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984)), review denied (Minn. Aug. 22, 2001).

Here, appellant argues that the district court abused its discretion by refusing to consider appellant's clean criminal history and prejudging her level of remorse.  But there is evidence in the record to support the district court's conclusion that appellant was not remorseful.  Immediately after the accident, instead of calling to obtain medical attention for the victim, appellant called her significant other.  Moreover, throughout the trial and on appeal, appellant has argued that the eyewitness was responsible for the accident.  And appellant's PSI report also indicated that there were no mitigating factors present and recommended the presumptive sentence.  See State v. Lattimer, 624 N.W.2d 284, 290 (Minn. App. 2001) (noting that a PSI recommendation is properly considered in sentencing), review denied (Minn. May 15, 2001).  Finally, although appellant expressed remorse at sentencing and has no prior criminal record, these facts do not mandate a dispositional departure.  See Kindem, 313 N.W.2d at 8 (stating thatwhere the district court has some reasons for departure and other reasons for not doing so, the district court does not abuse its discretion by making the decision to not depart).  On this record, we conclude that the district court did not abuse its discretion in sentencing appellant to the presumptive sentence.

IV.

            Appellant also argues that the evidence is insufficient to support the verdict.  In considering a claim of insufficient evidence, this court's review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing court must assume the jury believed the state's witnesses and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  The reviewing court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

            Here, the evidence is sufficient to support the verdict.  A blood test taken after the accident shows that appellant was operating her vehicle while her blood-alcohol content was more than .10.  Testimony at trial indicates that appellant's vehicle crossed into the victim's lane of traffic.  Evidence at trial indicates that the eyewitness's vehicle did not come into contact with the victim.  And the sole eyewitness to testify stated that she saw appellant's vehicle hit the victim.  This testimony was consistent with the testimony of the state's expert accident reconstructionist.  We conclude that a jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that appellant was guilty of the charged offenses.

            Affirmed.