Lead Opinion
ON PETITION FOR TRANSFER
After his car struck a bicyclist, Lanny Abney was convicted of several crimes,
At about 2:80 a.m. on July 9, 1999, Ab-ney headed home from an Indianaрolis tavern. As he drove west on Rockville Road toward Danville, his car struck the body of Jon Heffernan, who was bicycling home from work. Abney drove on despite a shattered windshield, a caved-in roof, and a deployed airbag. Danville police sрotted Abney navigating with his head out the driver's side window and, after a brief pursuit, pulled him over into a residential driveway. Abney appeared intoxicated and admitted having hit something with his car, but claimed not to know what it was. Abney later submitted to a blood test that revealed a .21% blood alcohol content. Meanwhile, Heffernan was pronounced dead at the seene and an autopsy later revealed he died from a broken neck.
Abney was charged with (1) operating a motor vehicle while intoxicated causing death, (2) operating a vehicle with .10% or more blood alcohol content causing death, and (8) leaving the scene of an accident resulting in death, all Class C felonies. The first two offenses required that Ab-ney's driving "cause" Heffernan's death, while the third count required that the accident "result" in Heffernan's death. Thus the focus of Abney's trial was whether or not he caused Heffernan's death. At trial, Abney contended it was possible that another vehicle had struck Heffernan first, and thrown Heffernan into Abney's car. To that end, Abney tendered a proposed jury instruction that stated: "If you find that the defendant's conduct caused the accident that produced the death of the victim, the State has proven the element of 'causation.' However, if you find thаt someone else's conduct caused the accident, you should find the defendant not guilty...."
The trial court refused Abney's tendered instruction and instead gave the jury the following instruction:
To prove the offense of operating while intoxicated causing dеath as charged in counts 1 and 2 of the information, the State must prove beyond a reasonable doubt the element of "causation."
In determining whether the defendant caused the death of the victim, you should focus upon the driving conduct of the defendant and not speculation on whether the defendant could have avoided the accident had he been sober.
If you find that the Defendant's driving conduct was a contributing cause to the accident that produced the death of the victim, the Stаte has proven the element of "causation."
The jury found Abney guilty on all three counts. Abney also pleaded guilty to an enhancement based upon a prior, unrelated conviction for operating a vehicle while intoxicated. The trial court sentenced Ab-ney to twenty years imprisonment.
On appeal, Abney argued that the trial court erred by instructing the jury that the State needed to prove only that Abney was a "contributing cause" of Heffernan's death, rather than a "substantial," "proximate" оr "legal" cause. Abney v. State,
Causation
Indiana Code section 9-30-5-1(a) states: "A person who operates a motor vehicle with at least ten-hundredths percent (0.10%) by weight of alcohol in the person's blood commits a Class C misdemeanor." Section 9-30-5-5 stаtes that a person who violates section 9-80-5-1 commits a Class C felony "if the crime results in the death of another person." In Micinski v. State,
There is, of course, a need to show causation; in the typical case a showing that the driver ran into the victim would suffice. ....
This is not to say that a drunk driver who hits a child who has run out from between two parked cars is not entitled to ask a jury to find him not guilty because there is reasonable doubt whether he caused the collision.
Id. at 154.
In Stephenson v. State,
The Court of Appeals panel in this case distinguished Stephenson and took the view that Micinski's analogy of the intoxicated driver who strikes the suddenly appearing child demonstrates that more than a "contributing cause" was required. Abney,
We think the Court of Appeals' approach in this case more closely reflects what is required to sustain a conviction under section 9-30-5-5. As we stated in Micinski "[alnalysis оf this statute should focus on the driver's acts.... If the driver's conduct caused the injury, he commits the crime; if someone else's conduct caused the injury, he is not guilty."
A "contributing cause" is "a factor that-though not the primary cause-plays a part in producing a result." Black's Law Dictionary 212 (7th ed.1999). If the State's view were correct, and proof that Abney's conduct was a "contributing cause" all that is necessary, the driver in the hypothetical posed in Micinski could have been convicted. Applying the State's reasoning herе, all the State would need to prove was that Heffernan did not die until after Abney's vehicle struck him, and that Abney's vehicle striking Heffernan played some part in Heffernan's death. Yet if the jury concluded that Heffernan was unexpectedly hurled in front of Abney's cаr, Abney would be indistinguishable from the driver striking the darting child.
Abney's tendered instruction used the word "caused," which is the language from Micinski. Refusal to give Abney's instruction, and instructing as to the lesser standard of contributing cause was error. We do not agree with the dissent that Micinski stands for rеquiring a lesser level of causation than Abney's tendered instruction. The tendered instruction quoted from Micinski. Nor do we intend to resurrect the Higginbotham standard that Micinski rejected. Higginbotham suggested that the State must prove a causal link between the intoxication and the injury. We did not agree with that argument in Micinski, nor do we now. Our concern here is the causal link between the driving conduct and the injury, and the requirement that the State prove that Abney's driving was more than a "contributing cause" of Heffernan's death.
We agree with the Court of Appeals that Abney was prejudiced by the error as to the first two counts. We note that the instruction on causation did not explicitly refer to the final count, leaving the seene of an accident resulting in death. However, the jury was instructed that, to prove that offense, the State must show the accident caused Heffernan's death. Because the jury was again required to apply a standard of causation, the erroneous instruction prejudiced Abney as to that convictiоn as well. Lockhart v. State,
Conclusion
We reverse Abney's convictions and remand for a new trial.
Dissenting Opinion
dissenting.
I respectfully dissent. I think the in-" struction used by the trial court here (and approved by the Court of Appeals in Stephenson v. State,
Micinski reversed a conviction for leаving the scene of an accident involving personal injury on grounds that the defendant was entitled to an instruction to the effect
The [defendant urges and the] Court [of Appeals] agreed and held:
To convict under this statute, the state must prove beyond a reasonable doubt that the defendant (1) operated a vehicle (2) while intoxicated, and (8) that the intoxication did direсtly and proximately ecause serious bodily injury.
In effect, this construction of the statute leads the jury to ask a "but-for" kind of question: "Is it the driver's intoxication that caused him to hit the vie-tim?" We conclude that this is not what the legislature intended. The statute creates а crime-driving while intoxicated-and adds higher penalties if the commission of this offense results in serious injury or the death of another person. There is, of course, a need to show causation; in the typical case a showing that the driver ran into the vietim would suffice. We find nothing in the statute to indicate that the General Assembly intended to require that the State prove a causal link between the driver's intoxication and the fact that injury resulted from his driving.
Based upon these cireumstances we hold defendant was harmed by the lack of instruction on causation. The instruction did trace the wording of the statute as far as the "results in" language. It also spoke in terms of loss of normal control of one's faculties caused by use of alcohol. However, the instruction did not require the jury to find, in order to convict defendant, that the death was caused by or a consequence of the operation of a vehicle with loss of normal control of faculties becаuse of intoxication.
It is true, as the majority says, that Micinski goes on to discuss the hypothetical of the child darting into the street and says that a defendant is "entitled to ask a jury to find him not guilty because there is reasonable doubt whether he caused the collision."
I would affirm the judgment of the trial court.