Rollins v. State

limitations, indemnity, vi- We find no abuse of discretion on contribution this and we affirm. liability, damages. point, carious appeal There exist viable alternatives to class Affirmed on direct and cross- respect appeal; in this case with motions to litigation cross-appeal dismiss superior that are alterna- denied. Subclass C Arkansas Rule of Civil Procedure

tives. a common pei’mits cases assert joined law or fact to be

question of showing pre- without a

permissively, Separately filed can

dominance. actions they

be for trial if are suffi- consolidated 42(a).

ciently Ark. R. Civ. P. similar. ROLLINS, Jr., Appellant Vance Benton maintain cross-appellants judge

circuit erred because she erroneous- ly degree cause and proximate found Arkansas, Appellee. STATE exposure would be involved the class No. 09-265. CR discussed, already argu- action. As because, ment must fail in the context of Supreme Court Arkansas. C, brought by the tort claims Subclass 8,Oct. 2009. proximate damages cause are founda- determining liability. tional elements in

The cross-appellants urge judge finding

circuit erred in there superior

are alternative methods to class

certification because the alternatives do require showing predominance.

not

Cross-appellants, in connection with this |S3the

argument, maintain that circuit

judge finding erred that a decision on

liability, apart from causation and dam-

ages, not a predominating issue. How-

ever, already this court has concluded that judge

the circuit did not abuse her discre- in concluding

tion that individual issues do

predominate in the claims of Subclass C.

This court defers to the circuit

judge with respect to a decision of whether superior class action is the method for

resolving multiple claims because the consideration,

judge among must take into things,

other whether she believes she can

effectively manage the Bryant, class. See Here,

374 Ark. at judge certifying held that Subclass C

would result in unmanageable litigation. Couch, by:

Lassiter & Jack T. Lassiter Couch, Rock, Erin Little for Cassinelli appellant. Gen., McDaniel, Att’y by:

Dustin Irvin, Gen., Att’y ap- LeaAnn J. Ass’t pellee. WILLS,

ELANA CUNNINGHAM Justice.

liAppellant charged Rollins was Vance after he two counts car collision that killed caused a head-on He Humphrey. Nina Lawrence and County jury on October by Perry tried 24, 2007, appellant, to two consec- favorable to the affirm the and was sentenced if it four-year imprisonment. supported terms verdict substantial utive appeals, Wetherington the court of evidence. appealed to (1994). evi- contending that there insufficient convic- support manslaughter to his dence above, As noted Rollins contends that appeals agreed, af- tions. The court of the at trial evidence introduced was insuf- firming modifying his convictions but the support manslaughter to his convic- ficient reflect the lesser-included of- judgment to specifically, tion. More he contends that fense of homicide. Rollins v. the was insufficient to evidence demon- State, 302 S.W.3d strate that he acted Rollins recklessly. review from the petitioned The State for charged under Arkansas Code Anno- arguing that it appeals’ opinion, court of 5-10-104(a)(3) (Repl.2006), tated section to court’s contrary was decided person which states that a commits man- decisions and involved an issue of substan- recklessly if slaughter “person the causes public requires tial interest clarifica- person.” the death of another “Reckless- tion. ly” is defined in Arkansas Code Annotated 5-2-202(3) (Repl.2006) section as follows: grant we review of a decision When (A) person recklessly A acts we review the with re- appeals, the court case the to though appeal originally spect filed in attendant circumstances or a State, this court. See v. result his her Brown 374 Ark. or conduct when the (2008); Yarbrough person 288 S.W.3d 226 v. disregards a (2007). 370 Ark. S.W.3d risk that ^substantial the attendant circumstances exist or the argument his first rever [In result will occur. sal, argues the trial court (B) The risk must be of a nature and erred in denying his motion for directed degree of the risk consti- verdict because the evidence was insuffi tutes deviation from the stan- cient to sustain the convic dard of care that a reasonable appeal, tion. On we treat a motion for would observe in the actor’s situation!.] challenge directed verdict as a to the suffi ciency trial, of the evidence. See Johnson At the State introduced the testi- (2009). mony of O.J. and Barbara Williams. Mr. We will affirm the circuit denial court’s of Williams testified day the of the accident, a motion for if directed verdict there is he was driving southbound on evidence, substantial either or Highway direct cir 7 towards Hot Springs when cumstantial, support jury’s to up verdict. vehicle came behind him. Mr. Williams Id. This court repeatedly him, has defined sub let pass decided to the vehicle so he stantial evidence as evidence forceful slowed pulled edge down and over to the enough compel way to pass, conclusion one or his lane. The vehicle did not beyond suspicion conjecture. other Mr. speed. Williams resumed his The ve- 495, 501, hicle, Hoyle however, “just kept coming up be- (2007). Williams, reviewing Mr. which him hind” made ner- evidence, sufficiency attempted of the we view the Mr. vous. Williams several evidence and all reasonable inferences de times over the course of about fifteen miles ducible therefrom in the most favor to pass, slow down to let the other vehicle able to weighing without it but it never did. Mr. said he Williams against conflicting that may evidence be never observed the vehicle cross the center line, made tailgating stay but the nonetheless to still. She then tan ear went to the help him nervous. and tried to its passengers, the Hum- however, they badly injured, phreys; were into a Finally, pulled Mr. Williams CCC expired at the and both scene of wreck. stopped for After a few camp and a while. attempted As she the Hum- assist minutes, during several other vehi- SUV, she saw the driver the red phreys, road, cles went down returned Rollins, trying get vehicle, out of his so journey. highway resumed help ran she back him. She told him road, five miles he saw About down he had been in an accident and need- following vehicle that had been still, but he got kept ed to sit out and in a him had been wreck. That vehicle the trying open to back door of the SUV. on the side of the completely opposite was him say “Molly,” Brewer heard and she lane, he said. center realized that there was someone else the the vehicle Barbara Williams described they vehicle. After managed get the erratically.” them as She “driving behind Brewer open, door saw a woman on the repeatedly that the vehicle would said of the floorboards back seat. Brewer and on then way up bumper, “come our and |sout daughter helped her the woman would back off.” Mrs. said that Williams the vehicle. Rollins began feeling then fast,” other vehicle was but would “not floorboard, around on the and Brewer behind pull up close and then back 14them thought perhaps oxygen. he needed away without passing. She also described eventually time, they how off the road at pulled By that emergency vehicles had camp arrived, for five minutes or so and CCC and Brewer speak went to then, they got highway, when on the emergency personnel. back As she was do- they upon so, came the wreck. Mrs. Williams ing she saw Rollins at the side of the testified vehicle that had been thought road he and looked like he was following “obviously them in the going pass out. him She went to lane.” wrong down; told him he needed to sit she also asked if he was hurt. He said that he was The State’s next witness was Linda not, hands, she looked at his she Brewer, a nurse who witnessed the acci- drop green him pills. saw some Brewer dent. Brewer said and her she nurse, they said as a thought she daughter spent day Springs had in Hot might pills, be heart so she asked whether driving and were north 7 at Highway any he had conditions required medi- p.m. around 3:00 behind a tan car. As head, cation. He shook his and she even- they started down a saw a grade, little she tually got him to sit A down. moment or sport-utility red vehicle in their later, however, two he began struggling to first, lane. At she thought it would swerve get up, again and Brewer get tried to him back, then she taillights but saw the of the point, to sit still. At that the woman who just tan car before the SUV hit it. She had been backseat of the be- SUV flame, a flash of pulled up alongside saw gan hollering, and over to Rollins rolled then, the tan car and concerned about did, try get up. When he Brewer saw fire, quickly past accelerated the wreck. him, green pills underneath picked and she She then over pulled daughter and told her up three or four of gave them and later to call 911. police. them to Brewer ran first to the red SUV and Miller, open tried door but not. She Faith daughter, could Brewer’s saw the driver around and told him moving they witnessed the collision. As came sertraline, Zoloft, she highway,

around a curve on the saw and but the level of way” red “all the their Rollins’s SUV both was less than .05 drugs micrograms looking over milliliter, lane and also observed per per- which indicated that the She said that Rollins right shoulder. ingested drugs, son had but it awas around a curve and “never going fast fairly low amount.1 She said that she did down, he didn’t appeared dodge, to slow he drugs not know how or when the were accident, Miller didn’t swerve.” After ingested, and she could not ascertain how Rollins, to help that her mother went said long drug either had been in the blood wobbly” shaky appeared who “was samples’ being taken. When to be “in shock and stuff.” period asked whether there was a of time at which tests would longer blood no de- McNeese of the Arkansas

Trooper Greg cocaine, ingestion tect the said Carlisle Police, to the scene responded State who eight it would be “over hours.” Her test- p.m., of the accident at 5:45 testified that ing revealed no other controlled sub- Perry County officer from Sheriffs sample, including stances Rollins’s blood (¡handed pills him the Office Brewer cross-examination, hydrocodone. On Car- picked placed them in an envel- up; had 17give opin- lisle said that she could not ope and secured them in his vehicle. ion person impaired as to whether the McNeese also testified that he found a by the level of “whatever substances were bag passenger duffel the front floor- clothes, degree that would interfere with board of the SUV that contained normal toiletries, functioning.” cigarette and a black case with Hall, three in it. pipes Christa forensic case, At the conclusion State’s at the State chemist Arkansas Crime Lab- Rollins moved for a directed verdict on the oratory, pipes testified that the pos- tested manslaughter charges, arguing that itive cocaine residue. Hall also testi- prove State had failed to the element of fied the green pills hydrocodone were recklessness. The circuit court denied his acetaminophen. motion, agree but it did to instruct Wright, Shawn a nurse at St. Joseph’s jury on the charge negli- lesser-included Hospital in Hot Springs, testified that he above, gent homicide.2 As jury noted sample took a blood from Rollins on the convicted Rollins on two counts of man- wreck; day of the the blood-alcohol-report slaughter and him sentenced to two con- form indicates that the sample was collect- four-year secutive sentences. Carlisle, p.m. Becky ed at 7:15 a forensic Lab, toxicologist Viewing at the Crime all evidence in testified that she samples tested blood most favorable to the and con were taken from sidering only supports Rollins after the accident. the evidence that samples positive verdict, The tested for cocaine the we conclude that the circuit 5-10-105(b)(1) 1. Carlisle (Repl.2006), testified the blood tests she which makes had a limit used lower at which the tests were negligent homicide a Class A misdemeanor. blood; able to detect substances in the .05 It differs from Arkansas Code Annotated sec- limit, why was "the lower it’s [and] that’s 5-10-105(a)(l)(A) (Repl.2006), tion reported less than .05.” provides negligent that a commits negligently homicide if he causes the death of 2. The court instructed the to find operating another as a result of a vehicle homicide, guilty negligent the State Negligent while intoxicated. homicide under negligently had caused the 5-10-105(a)(1) felony. section ais Class C Humphreys. deaths of the This instruction stems from Arkansas Code Annotated section risk denying err in Rollins’s mo- stantial and court did not methamphet- in this while under the influence of verdict. At issue tion for directed amine.” Id. The introduced at trial proved whether the State appeal is vehicle, above, Hoyle’s showed that which was recklessly. As set out Rollins acted southbound, traveling crossed the center that one acts reckless- our statute declares line the vehicle driven to attendant circum- and struck ly respect “with forty-five degree angle. at a The of his conduct when he victims stances or a result and driver of the truck who had been behind consciously disregards a substantial Hoyle Hoyle apply said he never saw unjustifiable risk that the circumstances earli- will brakes to the accident and had exist or the result occur.” Ark.Code 5-2-202(8). Hoyle original § commen- er witnessed almost run a tanker Ann. statute, 498,1,,268 at section truck off the road. Id. tary to the 5-10-105, eyewitness he never that the test for differenti- 315. Another said (2008), noia; Pappas opined this court considered Dr. that a person S.W.3d 313 a challenge sufficiency driving to the of the evidence a vehicle under the influence of in manslaughter methamphetamine might in a case facts that are drift and out lane, behavior, risky somewhat similar to the instant case. of a exhibit or drive 499, driving a trac- off the Id. at at Hoyle, the defendant road. S.W.3d 316. Hoyle hauler at- Another witness that a chip tor-trailer with a loaded testified had of .221 of meth- Hoyle micrograms tached to it. crossed the center line concentration vehicle, blood, in oncoming killing amphetamine per and struck an two milliliter Dr. that concentra- occupants. Pappas of its three The officers who and stated responded suspected drug scene tion of the at the accident demonstrated accident, Hoyle Hoyle that had been under the time of the “was either they certainly took him to or he was drugs, coming up, going up, influence of hospital samples. methamphetamine. to obtain blood and urine under the effect” of 501, samples presence Those later revealed the Id. at 268 S.W.3d at 317. This level of methamphetamine Hoyle’s system. drug Hoyle’s of in in blood “without a doubt Hoyle subsequently charged negative [Hoyle’s] and con- had a driving.” effect on victed of two Id. manslaughter. counts 497,

Hoyle, Ark. at at 268 S.W.3d proof, Given this this court determined appeal, Hoyle argued On that there was there was substantial evidence Hoyle recklessly that he acted reck- caused the deaths of proof insufficient had had victims, 503, agree that it lessly. stating Id. at 268 S.W.3d at 319. This did not phrased inquiry court the relevant that the would have had to resort to speculation conjecture “whether ... to conclude that the evidence demonstrated Hoyle consciously disregarded drugs Hoyle’s system a sub- in “so altered his Appellant’s subsequent it was the cause of the actions to her motor skills that at 268 S.W.3d at 319. striking wreck.” Id. the victim served to substanti- Hoyle “con- The court concluded knowledgeable lack ate but callous and un- sciously disregarded a substantial rejected for life when she her concern if justifiable might risk that death occur he passenger’s request to return to the ingest- vehicle after operated a commercial scene to whether she had run determine ing methamphetamine, and the anyone Appellant’s down. sole ex- deviation from thereof constituted a pressed leaving concern after the scene of care that a reasonable standard get was to her car fixed. Based on Hoyle’s person would observe situation.” facts, these we see no reason to distin- Id. guish this case from the case of Kirken- dall v.

ImSimilarly, ArkApp. Smith (1979), wherein the court affirmed a the court of conviction of on similar manslaughter appeals upheld conviction facts. where the showed that the defendant Smith, recklessly.

acted as in the in- Id. at 623 S.W.2d at 864. case, appellant argued stant that she case, present Hoyle In the as in was, most, guilty at homicide. Smith, we conclude that the evidence sup- appeals rejected The court of her argu- ported the trial court’s denial of Rollins’s ment, out though, pointing that Smith had motion for directed verdict. Rollins ar- drinking speeding been and was when she gues testimony that there was no that the hit a curve and lost control of her car. drugs ability his blood would affect his pedestrian She hit a and then drove into a vehicle, ditch, to drive a there and thus was no whereupon hysterical she became evidence any knowledge any had because she had wrecked her car. mother’s Afterward, risk. presented she refused to return to While no evidence was Smith, scene of the Rollins’s level of impairment accident. intoxi- cocaine, ingesting at 863. The cation from we note court of |n appeals held as follows: that such necessary evidence is not sustain a conviction for reckless man- We believe evidence is without Rather, slaughter.3 only the State needed appellant’s doubt substantial con- prove recklessly that Rollins caused the duct was reckless and exhibited a con- is, person. death of another That disregard perceived scious of a risk. sum, required prove State was that Rollins appellant was drinking to excess consciously during midday disregarded a substantial and driving and was a vehicle death, high causing on risk of and speeds public streets and that such highways metropolitan degree in a area. risk was a nature and This clearly supports evidence alone ap- disregard of it constituted a pellant’s actions exhibited a conscious deviation from the standard of care that a people’s lives and property. person reasonable would observe in the homicide, Compare felony negligent felony negligent the offense of but the court of homicide, requires proof appeals that the de- reduced the conviction to homicide, fendant holding merely caused the death of another that evidence of substance, operating ingesting a result of a vehicle while intoxicat- a controlled without fur- 5-10-105(a)(l)(A). § proof ed. Ark.Code Ann. impair- See ther ment, of actual intoxication or State, 237, also Robinson v. was not sufficient to the neces- (2007) (defendant intoxication). sary S.W.3d 750 was convicted element of ing p.m., § of his blood at 7:15 Rollins had Ark.Code Ann. 5- situation. See actor’s 2-202(3)(A)-(B). Taking all of these ingested cocaine. facts together viewing and circumstances that there argues Rollins Although most favorable to the them consciously disre that he was no State, required as we are to do under our risk, repeatedly has this court garded review, agree we cannot standard rarely provable by intent noted that in denying the circuit court erred Rollins’s State, evidence. See Watson direct verdict.4 motion for directed (2004); Price Ark. (2002). Ark. 66 S.W.3d 653 point appeal, Rollins raises a second ordinarily proven cannot be Since intent the circuit court abused contending that its evidence, jurors are allowed to by direct motion in limine denying discretion knowledge common upon draw their sought in which he to exclude evidence of circum to infer it from the experience hydrocodone pills “smoking de- Tarentino v. 302 Ark. stances. vices” found in Rollins’s car and evidence (1990). Here, there was 786 S.W.2d 584 |1scocaine. pretrial of his use of At a hear- driving er evidence that Rollins had been ing, argued Rollins that the evidence was ratically to the crash that occurred irrelevant because he was charged not p.m., tailgating 3:00 the Williamses around with being anything; under influence of miles, driving curving on a for fifteen fast the State countered that the evidence was line crossing over the center highway, charged relevant because it had Rollins There looking

while over his shoulder. recklessly acting preclud- and was not testimony was further that he did not at showing may ed from that Rollins have as he drove head tempt stop swerve illegal been affected substance. The vehicle. More Humphreys’ first into the limine, court denied the motion in and the presented was from which over,_[_i2proof pills smoking State introduced the and the jury point infer at some could the draw- devices. eight preceding within the hours (1980), appears to conclude that the 607 S.W.2d 374 was the ad-

4. The dissent only presented evidence missibility photographs. Booth v. shoulder, Rollins looked over his and the dis- Ark.App. questions the State introduced sent whether primary question whether circumstantial proof that made the deci- proved evidence that Booth was ignores sion to do so. This assertion our people in vehicle that killed two a hit-and-run longstanding principles rarely that intent is The court in Clark v. accident. jurors provable by direct evidence and that (1985), App. merely 695 S.W.2d 396 stat- may infer intent from the circumstances. conclusory ed in a fashion at the end of the Here, go circumstances —which the attendant opinion proved that the evidence the largely unmentioned the dissent —showed recklessly. Finally, defendant had acted in driving erratically, had been was Rollins Ark.App. McGill v. fast, going failed to slow down or swerve as "fishtailing” evidence of a car vehicle, Humphreys' upon he came constituted evidence of reckless behavior. jury had cocaine in his bloodstream that the While the dissent claims that McGill’s deci- ingested have inferred had been within above, could sion to fishtail was a conscious decision that prior the hours to crash. As noted accident, explain, it to in the caused fails unwilling jury could we are to conclude that case, looking present away how the act of not draw an inference of reckless conduct road, coupled with from the when the other from these circumstances. circumstances, not have Moreover, attendant could the cases on the dissent jury from which the con- been evidence could persuasive. example, the relies are not For recklessly. only presented Prunty clude that Rollins acted issue in that the evi- in appeal, argues quire error the trial court’s decision but On of his use of controlled substances rather that the trial court improvident- dence act it did not to was irrelevant because tend ly, thoughtlessly, or without due consider- any proba- fact at issue more or less ation. Id. make He contends that evidence that he ble. Here, the evidence pipes of the hydrocodone pipes in his pills had relevant, given cocaine residue was any light not shed possession did theory They the State’s of the case. were cocaine or taking prescription whether relevant in the they sense that made it ability affect a person’s medication would more than probable not that Rollins had vehicle, operate whether those sub- ingested cocaine at some time to the actually any stances had effect on his abili- Therefore, say accident.5 we cannot ty operate a vehicle or would affect the trial court abused its discretion in ad situation, anyone in a similar or whether mitting them. any potential he realized that there was Affirmed; of appeals court reversed. possessing ingesting risk these sub- then disregarded stances and HANNAH, C.J., dissents. Rather, urges it. this evidence portray simply intended him in a HANNAH, Justice, JIM Chief jury’s eyes. bad dissenting.

Relevant evidence is “evidence I respectfully prose- dissent. The State having any tendency to make the existence cuted Rollins for manslaughter, argued his reckless, any consequence fact that is of to the conduct was and then offered determination of the action probable more evidence to negli- Rollins was probable or less than it be without gent. jury would The verdict of two convictions evidence.” R. Evid. 401. Evi- for manslaughter unsupported by sub- dentiary evidence, matters regarding admissibili stantial and the circuit court ty of evidence are left to the submitting sound discre erred issue | ^manslaughter Williams v. tion of the trial court. jury. jury The (2008); 374 Ark. speculation conjecture.1 left to The Grant 161 S.W.3d evidence does support the lesser-included judge’s ruling trial offense of According- homicide. (2004)._JJáA regard will not ly, be reversed absent an I judgment would affirm the of the Williams, supra. abuse of discretion. appeals, modify court of judgment high homicide, This threshold does not re- simply two convictions for negligent argues majority Rollins also that the exception introduction 1. The takes to the dissent because, hydrocodone pills stating was irrelevant explain that there is a failure to how ingest hydrocodone, if he “did not the fact all the evidence offered "could not have been possessing probative it had no value evidence from which the could conclude possessing unless he knew it recklessly.” would and in that Rollins acted This misses However, ability point. judge gatek- fact did affect his to drive.” failed to act as appears eeper jury Rollins to have failed to advance ques- and allowed the to decide the particular arguments contention in his before tion of whether Rollins was reckless when court; therefore, the trial we do not reach it there was a lack of substantial evidence from appeal. jury on See Davis v. which the could draw that conclusion. (2007) (where particular instructing jury a The circuit court erred in the below, argument manslaughter. was not raised it specu- was not on was left to review). preserved appellate conjecture. lation and the in- perceive his failure to risk maximum allowed that to the Rollins sentence a deviation from the standard volves convictions. on both care that a reasonable would offered was the State The evidence § Ann. 5-2-202 observe. See Ark.Code and looked driving too fast Rollins was argued The State even (Repl.2006). about the time shoulder right over his care,” Rollins violated his “standard curve. The State approached arguing the State was again reveals in inattention through his showed that the State of- The evidence negligence. back, crossed the double Rollins looking very that Rollins exercised fered showed line, into the lane of oncom- veered yellow taking eyes his from the poor judgment traffic, victims’ car. struck the ing and civil, either negligence, road. That is negligence. This all constitutes evidence criminal, can if the burden of be met. However, strategy at trial was the State’s support no in the evidence to There is evidence of argue that the consciously disregarded that Rollins show satisfy requirements the conduct could unjustifiable risk with from substantial apparent This is reckless conduct. knowledge probable the harmful conse- despite the State argument State’s act, word quences wrongful with the of a or that his argument its peppering argued that Rol- “consciously.” The State conduct was a willful and deliberate failure the rules of “consciously disregarded consequences. lins to act to avoid the These he failed to make himself the road” when requirements are the reckless conditions of the road conscious of the § Ann. 5-2-202 conduct. See Ark.Code shoulder instead of that he looked over his (Repl.2006). According the road. keeping eye his argued might Rollins The State further him to a dou- this caused cross by drugs, but ad- impaired have been curve and drive yellow line ble might mitted it “did not know how that wrong on the side of the road. “entirely” you.” affect Rollins’s blood test showed argument its Although the State couched intoxicated, | and the that Rollins was l7not disregard,” nothing in terms of “conscious put expert State chose not to on an consciously that Rollins offered showed testify whether the level of cocaine about road, (¡decided away from the to look

1¶ impaired in Rollins’s blood could have wrong consciously decided to drive driving. appeals As the court of conclud- curve, consciously decided to lane on a ed, record, the issue of on this lane. The State in wrong remain in that question. the influence was a closed under consciously summary argued that Rollins 110, 302 Rollins v. risk when he disregarded perceived The State chose not to safety” and failed to abide “basic driver pursue question. to “be aware of the condi- when he failed elderly The accident and death of the Ac- driving. tions” under which he was However, horribly tragic. de- victims was “all he had to do was cording best, evidence the tragedy, spite road,” failing of the and in stay on his side uninten- State offered shows Thus, so, reckless. while to do he was oncoming traffic when tionally veered into reckless, characterizing the conduct There is no he failed to watch the road. actually argues that Rollins was State that he drove on the evidence criminally negligent, that he should have There is no evi- wrong side of the road. aware of the attendant circum- been per- of a stances, dence of a conscious have aware of that he should been risk, testimony by ceived risk. I do note a substantial 30

Mr. Williams. Both testified lant chose to drive while intoxicated. He and Mrs. in began drinking in a bar in the mid-after driving erratically, Rollins was noon, he and became so intoxicated that fifteen miles tailgated he them for about management of the bar refused to sell over to force pulling to Williams any him evening, more alcohol. That he by. tailgating is hard- go Rollins to While bar, upon went to another return his behavior, ly it casts appropriate safe or to the former bar an hour and one-half any on whether Rollins con- little if later, he was more intoxicated than before. line, yellow sciously the double crossed He at the bar it remained until closed and oncoming in the lane on consciously drove off, despite being then started offered a curve, consciously a decided to remain place stay being asked not to drive. lane. wrong He struck another car a person. and killed majority relying Iioyle The errs in State, 393, In ArkApp. Clark v. 15 695 State, 495, S.W.3d 313 (1985) (manslaughter convic Holye because was intoxicated. He was tion), appellant drinking buddy and his got driving eighteen-wheeler. an Prior to the drunk that appellant passed Upon so out. death, causing Hoyle accident almost ran waking up, appellant thought there was an Expert testimony a truck off the road. yard. intruder in pistol his He retrieved a Hoyle trial had .221 showed micro- and shot and killed drinking buddy. his In grams per methamphetamine milliliter Smith v. driving. doubt affected without (1981) conviction), (manslaughter ap Hoyle, 371 Ark. at 268 S.W.3d at 319. pellant | ^driving. was drunk and She was appeals discussing from cases curve, speeding, lost control in a lisOther accelerat criminally reckless conduct involve con passenger, ed to scare her and hit bump scious similar In Hoyle. conduct Prun or pothole that made her lose control of ty v. 271 Ark. 607 S.W.2d 374 the car. In process, appellant hit and (1980) conviction), (manslaughter ap killed a pedestrian. pellant was drunk. He was observed driv cases, In each of the above-cited there

ing erratically by weaving, passing cars in McGill, was conscious conduct. zones, no-passing running cars off the minor to fishtail the chose car. road. In a police, appellant chase with remaining The cases involve curve, exceeded 100 miles hour. per convictions, and in each there was a con- appellant wrong lane and struck scious decision to drink and drive. None oncoming an car. A that car Rollins, of these are comparable cases died. In Ark.App. McGill who the State proved away looked from (1998) (delinquency finding S.W.2d 382 curve, coming the road into a veered into conduct; based on reckless criminal mis traffic, car, oncoming and hit the victims’ chief in the degree), first McGill fishtailed killing them both. No was offered to the car drove around a corner so show that Rollins’s anything conduct was that he lost control of the car in the con other than negligent. We have no idea wreck, disregard scious of the risk of a why Rollins looked back. He veered off leading to the accident. The decision to into the oncoming just traffic before the decision, fishtail was a conscious leading to accident occurred. Had he been the accident. distance, In Booth v. wrong over lane some (1989) (man App. argument that his conduct was a conscious conviction), slaughter appellant was driv convincing. would be more ing eighteen-wheeler. Again, the appel natural inference from the facts is that Hunter, 668, Ark. realize he at 19 S.W.3d at 609 back and did not Rollins looked (citing Phillips v. 380, Ark.App. lane. The wrong into the slipping (1982)). laudable, 288, 289 hardly but the evi- 644 S.W.2d The conduct conduct in Hunter is far more intentional only negligence rises dence offered proving present The State failed than what the shows some form. case, consciously disregarded a substan- and that conduct was held to be risk that the attend- criminally negligent. majority tial and re- occur. ant result would judicially writes the statute and creates liability criminal con- v. on Hunter rely should This court trary to the elements of the crime set out (2000). by in the statutes enacted the General Hunter was not intoxicated and caused Assembly. people three in a head-on collision death of Hunter, wrong lane. In while While it is clear to me that the State negligent affirmed a conviction for court provide failed to substantial evidence to road, homicide where Hunter knew support jury’s manslaugh- decision on he yellow ter, knew the double line meant it clear provided is also that the State |2nvision was pass, not allowed to knew his substantial evidence to the lesser- rain, from by spray obscured mist and offense of I negligent included homicide. on a hill where he yet pass decided to agree appeals pursu- court He collided with a car knew it was unsafe. to Dixon ant of the hill and that came over the crest the n | modify S.W.2d 606 we should people. killed three The court affirmed judgments of conviction to the lesser-in- motion, the denial of directed-verdict negligent cluded offenses of homicide un- proof supported the alle- holding der Arkansas Code Annotated section 5- gation gross 105(b)(1) of a deviation from the stan- (Repl.2006) and set the sen- 10— dard of care that reasonable tence at the maximum allowed law for Hunter, observe in the situation. would negligent homicide. (quoting

341 Ark. at 5-2-202(4) § (Repl.1997)).

Ark.Code Ann. as follows on the issue of

The court stated

negligent and reckless conduct: section, commentary to the above

it is noted that conduct is dis- tinguished pri- from reckless conduct 2009 Ark. 483 involve marily it does not BANKS, Appellant, Kevin of a risk. perceived conscious negli- be held to have acted order to 5-10-105, § under it is not neces- gently Arkansas, Appellee. STATE sary fully the actor be aware recklessly disregard risk and perceived No. 09-95. CR only finding that under requires it. It have been the circumstances should Supreme Court of Arkansas. perceive failure it aware of it and his Oct. from the care a was a deviation reasonable, would exer- prudent person under those circumstances.

cise notes anything con- saw that would have caused ating between reckless perceived Hoyle’s oncoming the actor vehicle to swerve into duct is “whether of death or serious traffic. Id. at 268 S.W.3d at 317. substantial risk (reck- | ^physical disregarded it injury and Hoyle, the State also offered the conduct) perceive or failed to the risk less testimony pathologist, of a board certified conduct).” place (negligent in the first Pappas, presence Dr. who stated that the Commentary Ann. Original to Ark.Code methamphetamine in the blood could (Repl.1995). § 5-10-105 behavior, agitation, signs cause irrational psychosis, fatigue, 268 of Hoyle signs para-

Case Details

Case Name: Rollins v. State

Court Name: Supreme Court of Arkansas

Date Published: Oct 8, 2009

Citation: 347 S.W.3d 20

Docket Number: CR 09-265

Court Abbreviation: Ark.