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647 S.E.2d 736
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2007 Term
STATE OF WEST VIRGINIA,
Plaintiff Below, Appellee
MARJORIE VIRGINIA GREEN,
Defendant Below, Appellant
Appeal from the Circuit Court of Hampshire County
The Honorable Donald H. Cookman, Judge
Criminal Action No. 05-M-01
Submitted: January 9, 2007
Filed: February 21, 2007
Darrell V. McGraw, Jr. Larry D. Garrett
Attorney General Karen L. Garrett
Robert D. Goldberg Garrett & Garrett
Assistant Attorney General Moorefield, West Virginia
Charleston, West Virginia Attorneys for the Appellant
Attorneys for the Appellee
JUSTICE ALBRIGHT delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. In a criminal case, a verdict of guilt will not be set aside on the ground that
it is contrary to the evidence, where the state's evidence is sufficient to convince impartial
minds of the guilt of the defendant beyond a reasonable doubt. The evidence is to be viewed
in the light most favorable to the prosecution. To warrant interference with a verdict of guilt
on the ground of insufficiency of evidence, the court must be convinced that the evidence
was manifestly inadequate and that consequent injustice has been done. Syl. Pt. 1, State
, 161 W.Va. 517, 244 S.E.2d 219 (1978), overruled on other grounds by State v.
, 194 W.Va. 657, 461 S.E.2d 163 (1995).
2. The function of an appellate court when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at trial to
determine whether such evidence, if believed, is sufficient to convince a reasonable person
of the defendant's guilt beyond a reasonable doubt. Thus, the relevant inquiry is whether,
after viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime proved beyond a reasonable
doubt. Syl. Pt. 1, State v. Guthrie
, 194 W.Va. 657, 461 S.E.2d 163 (1995).
3. A criminal defendant challenging the sufficiency of the evidence to
support a conviction takes on a heavy burden. An appellate court must review all the
evidence, whether direct or circumstantial, in the light most favorable to the prosecution and
must credit all inferences and credibility assessments that the jury might have drawn in favor
of the prosecution. The evidence need not be inconsistent with every conclusion save that
of guilt so long as the jury can find guilt beyond a reasonable doubt. Credibility
determinations are for a jury and not an appellate court. Finally, a jury verdict should be set
aside only when the record contains no evidence, regardless of how it is weighed, from
which the jury could find guilt beyond a reasonable doubt. To the extent that our prior cases
are inconsistent, they are expressly overruled. Syl. Pt. 3, State v. Guthrie, 194 W.Va. 657,
461 S.E.2d 163 (1995).
4. Our negligent homicide statute, W.Va.Code, 17C-5-1, requires the driving
of '[a] vehicle in reckless disregard of the safety of others,' and this means that more than
negligence is required. It is compatible with the involuntary manslaughter standard set in State v. Lawson, 128 W.Va. 136, 36 S.E.2d 26 (1945). Syl. Pt. 2, State v. Vollmer, 163
W.Va. 711, 259 S.E.2d 837 (1979).
5. A conviction for negligent homicide must not be premised solely upon the
violation of a traffic statute unless the underlying act which constitutes the violation or
accompanying circumstances evidence a reckless disregard for the safety of others,
characterized by negligence so gross, wanton, and culpable as to show a reckless disregard
for human life.
This is an appeal by Marjorie Virginia Green (hereinafter Appellant) from
a judgment of conviction of two counts of negligent homicide. The Appellant contends that
the evidence presented at trial was insufficient to support a conviction for negligent
homicide. Upon thorough review of the briefs, arguments, record, and applicable precedent,
this Court reverses the Appellant's conviction.
I. Factual and Procedural History
On Sunday, September 19, 2004, a van (See footnote 1)
operated by the Appellant collided
with the rear of an automobile driven by Mrs. Rhonda Dante as Mrs. Dante was stopped in
the eastbound lane of traffic on Route 50 near Augusta, Hampshire County, West Virginia,
waiting to make a left turn into a church parking lot. The delay in Mrs. Dante's ability to
turn left was occasioned by the fact that several motorcyclists were riding in the westbound
lane. (See footnote 2)
The collision thrust Mrs. Dante's vehicle in the oncoming motorcycle traffic, resulting
in the deaths of Mrs. Dante's seventeen-year-old daughter Kaitlyn, as well as Mrs. Janeann
Stehle, a motorcyclist riding in the westbound lane. (See footnote 3)
On January 5, 2005, a Hampshire County Grand Jury returned a two-count
indictment against the Appellant alleging that she drove her van in reckless disregard for the
safety of others, resulting in the deaths of Kaitlyn Dante and Janeann Stehle. On August 25,
2005, the Appellant was tried in the Circuit Court of Hampshire County. The State called
Trooper Geoffrey Pasko, and the trial court qualified him as an accident reconstructionist.
Trooper Pesko described Route 50 east as a downhill slope where the accident occurred.
Trooper Pesko indicated that there were no pre-collision skid marks at the point of impact
and found that the Appellant was driving her van approximately 59 miles per hour when she
struck the rear of Mrs. Dante's car. (See footnote 4)
The Appellant called accident reconstructionist Gregory Manning. (See footnote 5)
Manning testified that, according to his calculations, the Appellant was approximately 327
feet behind Mrs. Dante's car when Mrs. Dante first applied her brakes. Mr. Manning
estimates that the Appellant failed to see Mrs. Dante's brake lights for approximately nine
seconds and was only 100 feet behind Mrs. Dante's car when she first realized that Mrs.
Dante's vehicle had stopped. Mr. Manning further concluded that the primary cause of the
accident was driver inattention on the part of the Appellant. One of the witnesses to the
accident, Ms. Sara Watts, testified that she had observed the Appellant looking out the left
window of her van at the motorcycles prior to the collision.
Although the Appellant did not testify at trial, the Appellant's statement as
provided to the police was admitted into evidence. In that report, the Appellant indicated
that she had followed a car, thought to be Mrs. Dante's car, (See footnote 6)
all the way from Augusta and
she kept hitting her brakes. The Appellant stated: I thought to myself I'll be glad when
I can get around her. Explaining the situation when the vehicle stopped in front of her, the
Appellant stated: I knew I couldn't get past her on the left and I knew I couldn't get by her
on the right so I hit her in the butt and as far as I could see in the other lane it was nothing
but motorcycles. She also indicated that she had placed approximately fifty pounds of
water into her van and had recognized that the additional weight might affect the van's
ability to stop or decrease speed quickly.
The jury ultimately convicted the Appellant of driving her van in reckless
disregard of the safety of others resulting in the death of Kaitlyn Dante and Janeann Stehle.
At a sentencing hearing conducted on October 7, 2005, the lower court sentenced the
Appellant to one year on each count, to run consecutively. The lower court stayed the
execution of sentence but revoked bail and placed the Appellant in jail. On September 11,
2006, the Appellant presented a petition to this Court seeking post-conviction bail pending
appeal. On October 4, 2006, this Court granted the petition for post-conviction bail, as well
as the petition for appeal of her convictions. This Court remanded to the lower court for the
setting of [Appellant's] bond and other conditions of bail which shall include home
confinement and an absolute ban on driving. On October 27, 2006, the lower court entered
an order setting bond at $10,000 and stating that the Appellant could be released from jail
as soon as a plan was submitted. However, the Appellant remains in custody, based upon her
loss of her home as part of the civil suit resulting from this accident, the severe medical
problems from which she suffers, and the inability of the lower court to locate a home for
electronic monitoring at which her medical needs could properly be served.
On appeal of her convictions to this Court, the Appellant contends that the
state failed to present sufficient evidence to support the convictions for negligent homicide
and that her convictions should be reversed.
II. Standard of Review
The standard of review applicable in the present case was stated in syllabus
point one of one State v. Starkey, 161 W.Va. 517, 244 S.E.2d 219 (1978), overruled on other
grounds by State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995), as follows:
In a criminal case, a verdict of guilt will not be set aside
on the ground that it is contrary to the evidence, where the
state's evidence is sufficient to convince impartial minds of the
guilt of the defendant beyond a reasonable doubt. The evidence
is to be viewed in the light most favorable to the prosecution.
To warrant interference with a verdict of guilt on the ground of
insufficiency of evidence, the court must be convinced that the
evidence was manifestly inadequate and that consequent
injustice has been done.
In syllabus point one of State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995), this Court
The function of an appellate court when reviewing the
sufficiency of the evidence to support a criminal conviction is
to examine the evidence admitted at trial to determine whether
such evidence, if believed, is sufficient to convince a reasonable
person of the defendant's guilt beyond a reasonable doubt.
Thus, the relevant inquiry is whether, after viewing the evidence
in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime
proved beyond a reasonable doubt.
In syllabus point three of Guthrie, this Court continued as follows:
A criminal defendant challenging the sufficiency of the
evidence to support a conviction takes on a heavy burden. An
appellate court must review all the evidence, whether direct or
circumstantial, in the light most favorable to the prosecution
and must credit all inferences and credibility assessments that
the jury might have drawn in favor of the prosecution. The
evidence need not be inconsistent with every conclusion save
that of guilt so long as the jury can find guilt beyond a
reasonable doubt. Credibility determinations are for a jury and
not an appellate court. Finally, a jury verdict should be set aside
only when the record contains no evidence, regardless of how
it is weighed, from which the jury could find guilt beyond a
reasonable doubt. To the extent that our prior cases are
inconsistent, they are expressly overruled.
See also State v. Hutchinson, 215 W.Va. 313, 318, 599 S.E.2d 736, 741 (2004).
A. West Virginia Statute and Interpreting Case Law
The Appellant was convicted under West Virginia Code § 17C-5-1(a) (1979)
(Repl. Vol. 2004), which provides as follows: When the death of any person ensues within
one year as a proximate result of injury received by the driving of any vehicle anywhere in
this state in reckless disregard of the safety of others
, the person so operating such vehicle
shall be guilty of negligent homicide. (Emphasis supplied). An examination of the issues
presented in the case sub judice requires an historical analysis of the development of this
Court's definitional guidelines regarding application of the statutory phrase reckless
disregard for the safety of others. Although the legislature did not provide a definition for
that phrase, the concept of reckless disregard, as a necessary predicate for a negligent
homicide conviction, was proficiently explained by Justice Miller in State v. Vollmer
W.Va. 711, 259 S.E.2d 837 (1979). (See footnote 7)
In that case, this Court was asked, via certified
question, to determine whether the State, in charging an offense arising from an automobile
accident resulting in death, could elect to proceed under either the negligent homicide statute
or the involuntary manslaughter statute. In answering that question in the affirmative, this
Court found specifically that the State had the option of charging under either statute
because the involuntary manslaughter crime carries the same elements and the same penalty
as our negligent homicide statute in regard to a homicide arising from the operation of a
motor vehicle. . . . 163 W.Va. at 719, 259 S.E.2d at 842.
The Vollmer Court endeavored to apply the principles of involuntary
manslaughter to a negligent homicide prosecution. In so doing, Vollmer relied upon State
v. Lough, 143 W.Va. 838, 105 S.E.2d 538 (1958), and State v. Lawson, 128 W.Va. 136, 36
S.E.2d 26 (1945), observing that significant confusion had been generated by the working
definition of involuntary manslaughter, to the extent that a verdict of guilt on an involuntary
manslaughter charge was not to be disturbed where the death of deceased was caused by
accused while engaged in an unlawful act or the performance of a lawful act in an unlawful
manner. Lough, 143 W.Va. at 838, 105 S.E.2d at 539, syl. pt. 3. The Vollmer Court
emphasized that the confusion centered upon the phrase unlawful act or the performance
of a lawful act in an unlawful manner and that the genesis of the confusion is the word
'unlawful.' Vollmer, 163 W.Va. at 713, 259 S.E.2d at 839. In footnote three of Vollmer,
the Court keenly noted that [f]rom a logical standpoint the phrase seems to contain a
redundancy, since the performance of a lawful act in an unlawful manner makes the act itself
unlawful. Id. at 713, n. 3, 259 S.E.2d at 839, n. 3.
The Vollmer Court found application of these amorphous principles to motor
vehicle homicides to be particularly vexing based upon the fact that operation of a motor
vehicle in violation of any traffic regulation statute is technically an unlawful act. The Vollmer Court cautioned, however, that these motor vehicle statutes involve acts which are mala prohibita, and not acts which are, per se, dangerous to life and limb. 163 W.Va. at
715, 259 S.E.2d at 840. This longstanding fundamental distinction between malum
prohibitum and malum in se is crucial in this setting. A crime that is malum in se is [a]
crime or an act that is inherently immoral, such as murder, arson, or rape. Black's Law
Dictionary 971 (7th ed. 1999). Conversely, a crime that is malum prohibitum is [a]n act
that is a crime merely because it is prohibited by statute, although the act itself is not
necessarily immoral. Id. If the unlawful act is malum prohibitum the defendant generally
is held not guilty of manslaughter unless the death is the foreseeable consequence of his
conduct in committing the act. W. La Fave & A. Scott, Criminal Law, § 79, 594 (1972).
In evaluating these concepts, the Vollmer Court cited the reasoning of the
Virginia Supreme Court in King v. Commonwealth, 231 S.E.2d 312 (Va. 1977), wherein the
Virginia court explained as follows:
Inadvertent acts of negligence without recklessness, while
giving rise to civil liability, will not suffice to impose criminal
responsibility. Thus, we have held that mere failure to keep a
proper lookout is insufficient to support a conviction of
involuntary manslaughter. . . . Intentional, willful, and wanton
violation of safety statutes, resulting in death, however, will
justify conviction of involuntary manslaughter.
231 S.E.2d at 316 (citations omitted). The King
Court concluded that involuntary
manslaughter in the operation of a motor vehicle can be defined as accidental killing which,
although unintended, is the proximate result of negligence so gross, wanton, and culpable
as to show a reckless disregard of human life. Id
. Thus, pursuant to the rationale employed
, operation of a motor vehicle in violation of a safety statute, amounting to mere
negligence proximately causing accidental death, was considered insufficient to support a
conviction of involuntary manslaughter.
Analyzing the reckless disregard standard with these concepts as a foundation,
Court insisted that an involuntary manslaughter charge requires something
than an act of ordinary negligence or the violation of a motor vehicle statute to sustain
the conviction. 163 W. Va. at 715, 259 S.E.2d at 840 (emphasis supplied). Extrapolating
from the involuntary manslaughter principles, the Vollmer
Court enunciated principles to
be applied in a negligent homicide prosecution, concluding as follows in syllabus point two: Our negligent homicide statute, W.Va.Code, 17C-5-1, requires the driving of '[a] vehicle
in reckless disregard of the safety of others,' and this means that more than ordinary
negligence is required. It is compatible with the involuntary manslaughter standard set in State v. Lawson
, 128 W.Va. 136, 36 S.E.2d 26 (1945). (See footnote 8)
Subsequent to the extensive evaluation provided by Vollmer,
this Court has
been somewhat less diligent in faithfully applying the principles espoused by Vollmer
. In State v. Lott
, 170 W.Va. 65, 289 S.E.2d 739 (1982), for instance, this Court reiterated the
ultimate holding of Vollmer
, only to summarily find an absence of consequent injustice in
a conviction for involuntary manslaughter where the accused had committed a negligent act
and was later found unfit to drive due to poor eyesight. 170 W.Va. at 67, 289 S.E.2d at 741.
The existence of evidence satisfying the Vollmer
standard of negligence so gross, wanton,
and culpable as to show a reckless disregard of human life was not discussed in Lott
was the particular act of the accused which ostensibly satisfied that requirement identified.
In State v. Richeson
, 179 W.Va. 533, 370 S.E.2d 728 (1988), this Court
examined the sufficiency of evidence to support a negligent homicide conviction in a
manner consistent with that envisioned by Vollmer
. In Richeson
, the accused was driving
with a broken arm and had taken a Tylenol III tablet prior to the accident which resulted in
the death of another individual. The Court addressed the meaning of the phrase reckless
disregard for the safety of others and interpreted that phrase to require something more
than an act of ordinary negligence; the standard is compatible with that used in involuntary
manslaughter prosecutions brought for causing a death while operating a motor vehicle, i.e.,
'negligence so gross, wanton and culpable as to show a reckless disregard of human life.' Id.
at 535, 370 S.E.2d at 730 (quoting Vollmer
, 163 W.Va. at 716, 259 S.E.2d at 840-41)
(additional citations omitted).
In a facet of the Richeson
reasoning strikingly similar to the case at bar, the Richeson
Court observed that the State apparently concedes that the mere fact that the
appellant's vehicle crossed the center line and was on the wrong side of the road at the time
of the collision, is not, alone, sufficient to support a negligent homicide conviction. 179
W.Va. at 535, 370 S.E.2d at 730. Neither can conviction be premised solely on the
appellant's unexplained failure to see the oncoming vehicle or his failure to have a valid
driver's license. Id
. Regarding such traffic violations, the Richeson
Court explained that
[w]hile such acts or omissions may evince a failure to exercise due care, they do not
ordinarily amount to gross, wanton or culpable negligence in the absence of aggravating
circumstances indicating rashness or a conscious indifference to the probable dangerous
consequences of driving. Id.
Thus, confronted with the State's apparent concession that the traffic
violations alone would not justify the conviction, the Richeson
Court inspected the trial
record for evidence of gross, wanton, or culpable negligence showing a reckless disregard
of human life and found none. The only aggravating circumstance presented by the State
was the accused's decision to drive with a disabled arm after having ingested a prescription
pain medication. There was no proof, however, that the accused's ability to drive was
affected by either the arm disability or the ingestion of medication. The Court therefore
reversed the conviction, concluding that the evidence adduced at trial was manifestly
inadequate to support the conviction, reasoning as follows:
While we might agree that the evidence at trial demonstrated a
lack of due care on the part of the appellant in driving under
these circumstances, in the absence of any showing that the
appellant was or should have been aware of the probable tragic
consequences of his actions, the record simply does not support
the conclusion that he took the wheel in reckless disregard of
the safety of others.
Id. at 536, 370 S.E.2d at 731.
In State v. Storey, 182 W.Va. 328, 387 S.E.2d 563 (1989), this Court
encountered a factual scenario in which the appellant had attempted to pass a line of traffic
while driving down a hill. His view of the road was partially obstructed, and there was
indication that an intersection was ahead. In assessing the impact of a traffic statute
violation on the ultimate resolution of the existence of reckless disregard, the Storey Court
resurrected a concept that had been largely debilitated by Vollmer. The Vollmer Court had
specifically articulated that the Lawson discussion of the impact of an unlawful act had
created confusion in the application of the reckless disregard standard. Vollmer had
attempted to minimize that confusion by explaining that not every traffic violation will
support a conviction for negligent homicide or involuntary manslaughter. Something more
than an act or ordinary negligence or the violation of a motor vehicle statute is necessary. Vollmer, 163 W.Va. at 715, 259 S.E.2d at 840. Despite that declaration in Vollmer, the Storey Court returned to the language of the 1945 Lawson decision and revived the principle
that violation of a traffic statute, without more, can constitute recklessness sufficient to
support a negligent homicide verdict.
It is a clear misapprehension of the meaning of Vollmer to suggest that the
mere fact that the defendant's act constitutes a violation of a traffic statute, without more,
is enough to satisfy the reckless disregard necessary to sustain a conviction for negligent
homicide. This failure to recognize and thoroughly apply the Vollmer principles was
evidenced again in State v. Hose, 187 W.Va. 429, 419 S.E.2d 690 (1992), wherein a tractor
trailer driver had a collision resulting in the deaths of a family of four. The evidence
adduced at trial indicted that the driver had been on duty for twenty-one hours, exceeding
the on-duty time established by state and federal laws, had driven at an excessive rate of
speed, and had failed to brake in an appropriate manner. 187 W.Va. at 431, 419 S.E.2d at
692. In its legal analysis, the Hose Court examined the 1945 Lawson decision without
adequately scrutinizing the limitations of Lawson as integrated into the law of this state by Vollmer. While never overtly stating the conclusion that the traffic violations, in and of
themselves, justified the conviction, the Hose Court found the evidence sufficient to
convince impartial minds of the guilt of the accused.
Likewise, in State v. Linkous, 194 W.Va. 287, 460 S.E.2d 288 (1995), this
Court concluded that the evidence justified a conviction for negligent homicide where the
accused's truck crossed the center line and struck and killed another individual. Other
evidence included a reference to the fact that the accused was drinking alcohol prior to the
collision and that he had engaged in reckless driving at an excessive rate of speed prior to
the accident. The Court referenced the Vollmer standard of negligence so gross, wanton
and culpable as to show a reckless disregard for human life, but it did not methodically
apply such standard to the particular facts identified as evidence in the Linkous case. It
ultimately found sufficient evidence to support the Linkous conviction.
Based upon a review of the manner in which this Court has approached
involuntary manslaughter and negligent homicide cases subsequent to Vollmer, this Court
finds that the inconsistency in application of the Vollmer principles requires this Court to
speak clearly in the present case, articulating a concise and uniform standard. In formulating
such standard, a review of the methodology of other jurisdictions is beneficial.
B. Approach Utilized in Other Jurisdictions:
The approach envisioned by Vollmer
is consistent with that of other
jurisdictions. In struggling with definitions applicable in the negligent homicide or
involuntary manslaughter prosecutions, it is generally held that a heightened degree of
negligence is required to justify imposition of criminal liability upon the actor. That
heightened degree has been designated as wanton, (See footnote 9)
aggravated, culpable, (See footnote 10)
gross, (See footnote 11)
or criminal. (See footnote 12)
Regardless of the precise term applied, the underlying concept remains; the
individual's conduct must be such a departure from that of an ordinarily prudent person as
to be incompatible with an appropriate regard for human life, thus characterized as a
disregard of human life. (See footnote 13)
As discussed by this Court in Vollmer
, the Virginia courts have clarified that
involuntary manslaughter in the operation of a motor vehicle [is defined] as an 'accidental
killing which, although unintended, is the proximate result of negligence so gross, wanton,
and culpable as to show a reckless disregard of human life.' Greenway v. Commonwealth
487 S.E.2d 224, 228 (Va. 1997) (quoting King,
231 S.E.2d at 316). In order to sustain an
involuntary manslaughter conviction in Virginia, criminal negligence must be proved. Tubman v. Commonwealth
, 348 S.E.2d 871, 873 (Va. 1986) (quoting King
, 231 S.E.2d at
316); see also Kreider v. Commonwealth
, 2006 WL 3066227, *1 (Va. App. 2006).
The significance of the unlawfulness of the individual's act has been the
subject of frequent debate. In a concurrence to In re Estate of Blodgett
, 147 P.3d 702
(Alaska 2006), for instance, it was noted that a driver who breaches a standard of care set
by traffic statutes and regulations is negligent. 147 P.3d at 713 n. 6 (citations omitted).
However, [i]f there is a gross deviation from the standard of care that a reasonable person
would observe the conduct could rise to the level of criminal negligence. Id.
Similarly, in Richardson v. Commonwealth
, 63 S.E.2d 731 (Va. 1951), the court held that the violation
of statutes defining reckless driving and prescribing rules of the road is insufficient to
support an involuntary manslaughter conviction, unless the evidence further disclosed that
the act is so flagrant, culpable, and wanton as to denote a reckless disregard of human life.
63 S.E.2d at 732; see also State v. Klatt
, 544 N.W.2d 461, 462-63 (Iowa App.1995)
(reversing conviction of vehicular homicide, holding that passing in no-passing zone does
not constitute conscious disregard of safety of others where oncoming car was not visible
and defendant had looked several times to assure a clear path to pass); State v. Cox
N.W.2d 23, 25-26 (Iowa 1993) (reversing conviction of vehicular homicide where only
evidence offered by State to prove recklessness was defendant's failure to stop and yield).
The history of involuntary manslaughter and the impact of the commission of
an unlawful act were examined in People v. Holtschlag
, 684 N.W.2d 730 (Mich. 2004). In
that case, the Supreme Court of Michigan reviewed People v. Pavlic
, 199 N.W. 373 (Mich.
1924), wherein the court had reasoned that where an underlying unlawful act was only
malum prohibitum rather than malum in se, a conviction for involuntary manslaughter would
be appropriate only with the addition of evidence specifically proving that the defendant
acted with a culpable mens rea. 199 N.W. at 374. Implementing the reasoning of Pavlic
other cases, the Holtschlag
court approved the rule originally articulated in Thiede v. State
182 N.W. 570 (Mich. 1921), as follows:
We believe the rule to be that though the act made
unlawful by statute is an act merely malum prohibitum and is
ordinarily insufficient, still when such an act is accompanied by
negligence or further wrong so as to be in its nature, dangerous,
or as to manifest a reckless disregard for the safety of others,
then it may be sufficient to supply the wrongful intent essential
to criminal homicide [and] when such an act results in the death
of another, may constitute involuntary manslaughter.
Holtschlag, 684 N.W.2d at 740 (quoting Thiede, 182 N.W. at 572). In footnote nine of Holtschlag, the court articulated the obvious corollary of this assertion . . . that an unlawful
act which is not malum prohibitum, but is rather malum in se, is 'in itself' a sufficient basis
for a charge of involuntary manslaughter. 684 N.W.2d at 740 n. 9. The Holtschlag court
summarized as follows:
[T]raditionally, commission of a malum in se unlawful act that
results in an unintended death is sufficient in itself to constitute
manslaughter; whereas an unintended death resulting from
either a lawful act or a malum prohibitum unlawful act requires
specific proof of a culpable mens rea, which may consist of an
intent to inflict bodily injury or of gross negligence showing a
reckless disregard for the safety of another.
In like fashion, the Wyoming court found that a speeding violation is an
unlawful act, but only in the sense that it is malum prohibitum. Bartlett v. State
1235, 1241 (Wyo. 1977), overruled on other grounds by Nowack v. State
, 774 P.2d 561, 565
(Wyo. 1989). Thus, in order to sustain an involuntary manslaughter conviction, premised
on the unlawful act of speeding, there must be an additional showing equivalent to criminal
negligence and that death resulted as a proximate cause thereof. 569 P.2d at 1241.
The Superior Court of Pennsylvania also succinctly addressed this issue in Commonwealth v. Clowser
, 239 A.2d 870 (Pa. Super. 1968). The court explained that [t]he
principal question before us is whether a violation of [a statute regarding failure to yield
right of way] without a finding of wanton or reckless conduct, is, per se, sufficient to sustain
a conviction of involuntary manslaughter. 239 A.2d at 871. The court asserted that [n]ot
every violation of the law or unlawful act in the operation of a motor vehicle will render the
operator criminally liable for a death caused thereby. . . . Id
. at 873. Rather, the driver's
conduct must be reckless, careless or wanton before he may be convicted of involuntary
manslaughter by automobile. Id. (See footnote 14)
In Commonwealth v. Catalina,
556 N.E.2d 973 (Mass. 1990), the Supreme
Judicial Court of Massachusetts discussed the infirmities in a manslaughter approach which
focuses only upon the underlying unlawful act, noting that such approach allows a defendant
to be found guilty of unlawful-act manslaughter if a death is caused by his commission of
a misdemeanor or other unlawful act, without regard to the nature of the act or the
dangerousness of the defendant's conduct. 556 N.E.2d at 977. The Supreme Judicial Court
of Maine, in State v. Pray
, 378 A.2d 1322 (Me.1977), identified the infirmity in this rule,
The flaw in [this] concept is that a person may be convicted of
unlawful-act manslaughter even though the person's conduct
does not create a perceptible risk of death. Thus, a person is
punished for the fortuitous result, the death, although the jury
never has to determine whether the person was at fault with
respect to the death. The concept violates the important
principle that a person's criminal liability for an act should be
proportioned to his or her moral culpability for that act. The
wrongdoer should be punished for the unlawful act and for
homicide if he or she is at fault with respect to the death, but
should not be punished for a fortuitous result merely because
the act was unlawful.
378 A.2d at 1324.
The Catalina court observed that the unlawful-act involuntary manslaughter
approach has been severely criticized based upon the reasoning outlined in Pray. The Catalina court explained that [t]he principle that underpins the offense perpetuates the
notion of constructive crime which has been generally discredited. 556 N.W.2d at 977.
The court recognized that the Model Penal Code rejects the concept of unlawful-act
manslaughter completely and requires that a defendant's conduct be deemed reckless before
he can be punished for manslaughter. Id.
C. Resolutions and Application to the Present Case
Recognizing the unsoundness of the unlawful-act involuntary manslaughter
rule, many jurisdictions have remedied the problem by requiring, either through case law or
statute, that the underlying unlawful act satisfy some minimum standard of seriousness, as
observed from the litany of cases examined above. Many jurisdictions focus upon the
existence of a reckless disregard for the safety of others, as evidenced by the West Virginia
statute, (See footnote 15)
while others focus primarily upon the risk to human life or safety inherent in the
underlying act. (See footnote 16)
Where statutes provide guidance substantially similar in principle to West
Virginia Code § 17C-5-1, the clear trend of most jurisdictions is in conformity with the
standards articulated in Vollmer
As examined above, Vollmer
articulated a workable standard which has not
always been accurately implemented. Recent examinations by this Court have overlooked
the essential detail that resolution does not wholly
depend upon the unlawful character of
the act. If such were the case, virtually every traffic accident resulting in death could
become a predicate for a negligent homicide conviction. As Vollmer
attempted to convey,
it is not the unlawfulness
of an act that justifies the conviction. A mere technical violation
of a traffic safety statute will not suffice. Rather, solid evidence indicating gross, wanton,
and culpable negligence showing a reckless disregard for human life must be introduced.
Thus, it is improper to validate a conviction for negligent homicide and a finding of
reckless disregard for the safety of others based solely upon the fact that the act committed
by the accused was a technical violation of statute. While it is clear that there are certain
situations in which the act which is in violation of a traffic statute may form the basis for a
negligent homicide prosecution, such situations would be limited to those in which the act
constituting the violation also
evidences negligence so gross, wanton, and culpable as to
show a reckless disregard for human life.
Thus, after thorough review, this Court concludes that a sound synthesis of the
reasoning of other jurisdictions and the principles of Vollmer
suggests, and we therefore
hold, that a conviction for negligent homicide must not be premised solely upon the
violation of a traffic statute unless the underlying act which constitutes the violation or
accompanying circumstances evidence a reckless disregard for the safety of others,
characterized by negligence so gross, wanton, and culpable as to show a reckless disregard
for human life.
In applying that principle to the present case, this Court observes that the State
concedes that driver inattentiveness, standing alone, does not prove the reckless disregard
necessary to sustain this conviction. The State contends, however, that the jury's finding of
reckless disregard was properly based upon additional factors presented to the jury,
including the presence of a large group of motorcyclists riding in the opposite direction; the
clearly visible turnoff to the church; the downhill straight descent upon which the Appellant
was driving; the statements of the Appellant made in the police report regarding her
perception of the accident; and the testimony that the Appellant was looking at the line of
motorcycles and did not see Mrs. Dante's brake lights for a period of approximately nine
From this Court's review of the record, in a light most favorable to the State,
it is apparent that the Appellant failed to keep a proper watch on the highway in front of her,
resulting in her inability to avoid a collision with the Dante vehicle, in violation of West
Virginia Code § 17C-6-1(a) (2003) (Repl. Vol. 2004). It is likewise apparent that the
Appellant was operating her vehicle at a speed above the applicable speed limit, in violation
of West Virginia Code § 17C-6-1(b).
The evidence also indicates that the collision was so violent as to be
characterized as an explosion, sending pieces of metal and glass thirty feet into the air.
There were no skid marks at the point of impact, indicating that the Appellant did not brake
significantly prior to impact. The State maintained that the Appellant failed to take any
measures to mitigate the seriousness of the collision and drove, full speed, into the rear of
Mrs. Dante's vehicle.
We are also mindful that the result of the collision was disastrous, capable of
giving rise to fully understandable outrage in a community properly grieving the resulting
deaths. However, our inquiry here must focus on the character of the Appellant's acts and
omissions which produced these horrible results.
With the legal standards discussed in this opinion in mind, we have conducted
an exhaustive and careful review of the record. Considering the evidence in the light most
favorable to the State, including the factors emphasized by the State and the other
circumstances revealed by the record and in light of those legal standards, we are compelled
to conclude that the evidence is insufficientto convince a reasonable person of the
defendant's guilt beyond a reasonable doubt. See
syl. pt. 1, in part, Guthrie,
194 W.Va. at
663, 461 S.E.2d at 169. We find that the record contains no evidence, regardless of how
it is weighed, from which a jury could find guilt beyond a reasonable doubt when reviewed
under these legal standards. Id.
at 663, 461 S.E.2d at 169, syl. pt. 3, in part.
Accordingly, this Court reverses the Appellant's convictions. Where there is
evidentiary insufficiency to sustain a criminal conviction, the State is foreclosed from
retrying the defendant under constitutional double jeopardy principles. See
syl. pt. 4, State
, 162 W.Va. 602, 252 S.E.2d 39 (1979) (The Double Jeopardy Clause of the
Federal and this State's Constitutions forbids a second trial for the purpose of affording the
prosecution another opportunity to supply evidence which it failed to muster in the first
The Appellant's van was a 2002 Dodge 3500 Maxivan, actually a mini-motor
home, weighing approximately 5,850 pounds. Mrs. Dante's vehicle was a 2002 Oldsmobile
Alero weighing approximately 3,368 pounds.
The motorcyclists were participating in a memory ride in honor of a
motorcyclist who had previously been killed. The evidence at trial indicated that there were
approximately thirty riders participating in the event.
There is no evidence that weather or road conditions contributed to the
accident. Likewise, there is no evidence that mechanical problems contributed to the
accident. The Appellant was not under the influence of alcohol, drugs, or prescription
medication. The Appellant was 72 years of age and did not have a criminal record.
Mr. Manning had originally prepared his report for the Appellant's insurance
There was evidence indicating that the vehicle the Appellant initially followed
was not the vehicle operated by Mrs. Dante.
This Court has also commented that [t]he phrase 'reckless disregard for the
safety of others' . . . is synonymous with gross negligence. State v. Peak
, 185 W.Va. 548,
552, n. 4, 408 S.E.2d 300, 304, n. 4 (1991). In Hopkins v. Grubb,
160 W.Va. 71, 230 S.E.2d
470 (1977), this Court noted that the standard for gross negligence in the operation of an
automobile had been enunciated by the Virginia Supreme Court in McDowell v. Dye
S.E.2d 459 (Va. 1952). Hopkins
, 160 W.Va. at 74, 230 S.E.2d at 473. The McDowell
stated as follows:
Whether the conduct of a person operating an automobile
amounts to gross negligence . . . depends upon the facts and
circumstances surrounding the operation. The element of time
incident to the accident must be considered with the
surrounding circumstances in determining whether the driver's
conduct constitutes gross negligence. One degree of care
sufficient under certain circumstances may amount to gross
negligence under others. If reasonable men may differ upon the
question then a jury problem is presented.
69 S.E.2d at 464.
Interestingly, the Lawson
Court, dealing strictly with an involuntary
manslaughter issue, found that [a] study of texts and cases discloses that the authorities are
in hopeless confusion, the difference centering on whether the performance of a lawful act
must, in itself, be 'unlawful' or simply 'negligent', to constitute an element of involuntary
manslaughter. 128 W.Va. at 141, 36 S.E.2d at 29. At the time Lawson
was authored, West
Virginia did not have a statutory definition of manslaughter and relied upon common law
concepts. Turning to Virginia's treatment of the issue for guidance, the Lawson
We think the Virginia cases have finally come to a holding that
something more than simple negligence is necessary as the basis
of the crime of involuntary manslaughter. It is quite evident
that that Court is inclined to the view that where negligence is
involved as an element of manslaughter, either voluntary or
involuntary, it must, to support a conviction, be shown to be
gross, culpable and reckless.
at 145, 36 S.E.2d at 30. The Lawson
Court concluded its discussion as follows:
On the whole we are of the opinion that the instruction
which should have been given in this case was one telling the
jury, in substance, that involuntary manslaughter could only be
sustained upon a showing of the commission of an unlawful act,
or the performance of a lawful act in an unlawful manner. We
do not undertake to form the definition of that offence. Apparently, there have already been too many
. We simply
mean to indicate that, in our view, an instruction should tell the
jury that there must be either some unlawful act, or the
performance of a lawful act in an unlawful manner, before a
defendant can be convicted of involuntary manslaughter.
. at 149, 36 S.E.2d at 32 (emphasis supplied).
See, e.g., U.S. v. F.D.L.
, 836 F.2d 1113, 1118 (8th Cir. 1988); New v. State
396 S.E.2d 486, 487 (Ga. 1990).
, Hodges v. State
, 661 So. 2d 107, 109 (Fla. Dist. App. 1995), Jones
, 678 So.2d 707, 710 (Miss. 1996); State v. Daniels
, 360 S.E.2d 470, 471 (N.C. App.
., U. S. v. Pardee
, 368 F.2d 368, 374 (4th Cir. 1966); State ex rel.
, 677 So. 2d 1071, 1073 (La. App. 1996); State v. Albrecht
, 649 A.2d 336, 341 (Md.
1994); State v. Bier
, 591 P.2d 1115, 1118 (Mon. 1979).
., State v. Brown
, 339 So.2d 6, 6-7 (La. 1976); DeLee v. Knight
S.E.2d 844, 845-46 (S.C. 1975), cert. denied
, 426 U.S. 939 (1976); State v. Stanislaw
A.2d 286, 291 (Vt. 1990); Murray v. State
, 855 P.2d 350, 357 (Wyo. 1993), cert. denied
510 U.S. 1045 (1994).
Some state statutes
provide extensive guidance and include a definition to be
employed. In Tennessee, for example, the applicable statute provides that a person acts
with criminal negligence with respect to the circumstances surrounding that person's
conduct or the result of that conduct when the person ought to
be aware of a substantial and unjustifiable risk that the
circumstances exist or the result will occur. The risk must be of
such a nature and degree that the failure to perceive it
constitutes a gross deviation from the standard of care
ordinary person would exercise under all the circumstances as
viewed from the accused person's standpoint[.]
Tenn. Code Ann.§39-11-106(a)(4) (1997) (Repl. Vol. 2006) (emphasis supplied).
See also State v. Olsen
, 462 N.W.2d 474, 477 (S.D. 1990) (holding that
[c]riminal responsibility for death resulting from the operation of a motor vehicle in
violation of the law will result only if the violation is done is such manner as to evidence a
reckless disregard for the safety of others. The Olsen
court specified that the operation
of a motor vehicle in violation of the law is not in and of itself sufficient to constitute
reckless conduct, even if a person is killed as a result thereof. 462 N.W.2d at 477; see also
State v. Janklow,
693 N.W.2d 685, 694 (S.D. 2005).
See also State v. Nosis
, 257 N.E.2d 414, 416-17(Ohio App. 1969) (unlawful
act must be one that would be reasonably anticipated by an ordinarily prudent person as
likely to result in such killing) (citations omitted); Commonwealth v. Busler
, 284 A.2d 783,
784 (Pa. 1971) (in motor vehicle context, unlawful act must, either by itself or in
conjunction with the attendant circumstances, evidence a disregard of human life or an
indifference to consequences) (citations omitted); Darnell v. Commonwealth
, 370 S.E.2d
717, 720 (Va. App. 1988) (unlawful act must include criminal negligence, defined as
conduct evidencing either a willful or wanton disregard for the safety of others) (citations
See, e.g., State v. Puryear, 590 P.2d 475, 479 (Ariz. App. 1979) (approving
jury instruction stating that unlawful act must be inherently dangerous to human life).