Winston K. WOOD, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
No. 53A05-1208-CR-423
Court of Appeals of Indiana
Dec. 31, 2013
7 N.E.3d 1056
MAY, Judge.
Gregory F. Zoeller, Attorney General of Indiana, Ian McLean, Deputy Attorney General Indianapolis, IN, Attorneys for Appellee.
OPINION
MAY, Judge.
Winston K. Wood appeals his convictions of two counts of Class C felony leaving the scene of a boating accident resulting in the death of a person1 and one count of Class D felony leaving the scene of a boating accident resulting in serious bodily injury to a person.2 On appeal, Wood raises the following restated issues:
- Whether the trial court should have granted Wood‘s motion for discharge under
Indiana Criminal Rule 4(C) ; - Whether the State presented sufficient evidence that Wood did not comply with the duties required of a boater in an accident pursuant to
Indiana Code section 14-15-4-1 ; and - Whether Wood‘s three convictions subjected him to double jeopardy because each conviction arose out of the same act of leaving the scene following a boating accident resulting in injury to or death of a person.
FACTS AND PROCEDURAL HISTORY3
On the evening of June 28, 2010, nineteen-year-old Wood was operating his father‘s Cobalt ski boat on Lake Monroe, near Bloomington, Indiana. Two of his friends, Matthew Holmberg and Michael Marietta, were taking turns wakeboarding. At the same time, James Collier was on his Ranger fishing boat with his wife, Susan, and their three grandsons, Gage, J.T., and Dillon. Wood and Collier were each driving their boats at about twenty miles per hour, and neither saw the other until the boats collided. The Department of Natural Resources determined the accident was “the result of inattention by both operators.” (Tr. at 709.).
Wood‘s boat went over the top of Collier‘s boat, damaging Collier‘s boat and rendering the engine inoperable. J.T. and Dillon were not injured and remained in the boat. Susan was killed and thrown from the boat. Gage was also killed, but his body remained in the boat. Collier suffered a severe cut to his leg and was thrown from the boat.
Holmberg had been wakeboarding behind Wood‘s boat but had let go of the tow rope, so he was not near the boats when they crashed. Marietta, who was acting as Holmberg‘s spotter, was thrown from the boat. No one on Wood‘s boat was physically injured in the crash.
The accident occurred near Harbor Pointe, a private condominium complex. Terry Bawel, who was on the deck of a condominium at Harbor Pointe, saw the boats collide. She testified the collision was so loud that it woke up her eighteen-year-old daughter, Erika. Erika ran out onto the deck while her mother told a neighbor, GiGi Stowe, to call 911. GiGi‘s call was the first of six received by various 911 operators.4
In the aftermath of the accident, Terry and Erika heard crying and shouting and saw debris in the water. Terry heard a voice saying “we have to save her, we have to save her.” (Id. at 441.) Wood dove into the water and swam toward Susan Collier, but she was a “mangled person” with a “torn up face,” and Wood “realized it was way beyond anything [he] could do.” (State‘s Ex. OOO at 29.) Wood quickly returned to his boat and joined his friends, who had already climbed back onto Wood‘s boat.
Wood then drove his boat at top speed to the Fourwinds Marina, which was about two-and-a-half miles away from the scene of the accident. When asked later, Wood said he thought his boat was sinking because there was water in his boat following the accident.5 During the trip to the Marina, Wood used Marietta‘s cell phone to call his father. When Wood could not get
A recording of Marietta‘s 911 call was played for the jury. Loud voices, including Wood‘s, can be heard in the background. Marietta gave his name to the operator, then told the operator that “we just got hit by a boat,” “we started taking on water,” and “we‘re going back to the Fourwinds and the [other] boat, the boat is, the boat is stranded over by, by the dam.” (State‘s Ex. T (audio); State‘s Ex. W (transcript) at 3-4.) In his brief, Wood describes the 911 call as follows:
Marietta yells at least four times that their boat is taking on water. State‘s Ex. W p. 3-5. He tells the operator that there is still a family on the boat in the water, he was unsure whether they all are accounted for and that they were shouting. The operator instructs the boys to stay at the marina until “they come get you,” to which Marietta responds that Wood is pulling into the dock and that “we‘re tying up and we‘re going to go get help from the marina.” State‘s Ex. W, p. 5. The operator again instructs him to “stay at the Fourwinds when you get there,” “we have people on the way down there already.” State‘s Ex. W, p. 5. Wood‘s voice, as identified by Detective Goldman, can be heard in the background instructing Marietta to report “the other boat by the dam,” and Marietta responding by reassuring Wood that help was on the way for the other boat. State‘s Ex T (audio); State‘s Ex. 000, p. 42.
(Appellant‘s Br. at 3). Wood, Marietta, and Holmberg stayed at the Fourwinds Marina, as instructed by the 911 operator, and waited one-and-a-half hours for the authorities to arrive.
During the investigation, Officer Angela Goldman, the Indiana Conservation Officer on duty that night, learned that Wood jumped into the water after the collision and swam close to Susan. (Tr. at 587.) When Officer Goldman observed Susan‘s body, she saw Susan was “[n]early decapitated. The skull cap was completely removed from the head.” (Id. at 529.) Wood told police that he was horrified, panicked and “really freaked out,” and swam back to his boat “as fast as possible and called 911” believing “the most help we could do was to call professional help.” (State‘s Ex. OOO at 29, 32, 33.)
Collier testified that he yelled for help a couple of times, but received no response. Erika and Marietta each testified that they did not hear Collier call for help. Collier, whose leg was injured, swam to his boat, and learned that one of his grandsons was dead in the boat. Collier then swam over to his wife and determined that she too was dead and “there was nothing [he] could do to help her.” (Tr. at 362.) When Collier got onto his boat, he covered his grandson‘s body with one raincoat, and covered the surviving boys with another so “they couldn‘t see any more than they had to.” (Id. at 363.) He then yelled at Wood‘s boat, asking them to save his wife. (Id. at 364.) In his call to 911, Collier claimed that, prior to leaving the scene, Wood said “you‘ve got to try to save her.” (State‘s Ex. V (audio); State‘s Ex. W (transcript) at 13.) At trial, Collier testified Wood said, “[Y]ou save her yourself.” (Tr. at 398.)
After Wood‘s boat left for the marina, Collier was able to pull his wife‘s body into the boat, and then using his trolling motor, Collier made it to the Harbor Pointe dock. It took Collier about five to ten minutes to
During Marietta‘s 911 call, the operator repeatedly told Marietta, “I need you to stay at the Fourwinds when you get there, okay? And stay at the Fourwinds when you get there.” (State‘s Ex. W at 5.) Because of the lack of communication between the 911 operators, most of the investigators, including the one who interviewed Wood after the accident, did not know Wood and his companions had called 911 or that they had waited at the marina for one-and-a-half hours.
About a month later, on August 3, 2010, the State charged Wood with Count I, leaving the scene of a boating accident resulting in Susan‘s death; Count II, leaving the scene of a boating accident resulting in Gage‘s death; and Count III, leaving the scene of a boating accident resulting in serious bodily injury to Collier.
Wood filed a motion to dismiss, arguing that
At the time [the State] filed the information, the prosecution had all of the facts that demonstrated Wood had attempted to render assistance, that his party had timely notified law enforcement of the accident and thereafter complied with law enforcement instructions. Unfortunately, the prosecution apparently responded to pressure from the media coverage by charging Wood.
(App. at 46.) Monroe Circuit Judge Kenneth Todd held a hearing on the motion but after thirty days still had not ruled. Wood filed a “Praecipe for Failure to Rule on Motion,” asking the case be withdrawn from Judge Todd and transferred to the Indiana Supreme Court for appointment of a special judge. (Id. at 99.) About four months later, the Supreme Court appointed the Honorable Jane Spencer Craney as Special Judge. On August 1, 2011, she denied Wood‘s motion to dismiss.
On January 18, 2012, Wood filed a motion for discharge pursuant to
Following a five-day jury trial, Wood was convicted of two counts of Class C felony leaving the scene of a boating accident resulting in death and one count of Class D felony leaving the scene of a boating accident resulting in serious bodily injury. The trial court fined Wood $1,000 and sentenced him to six years6 for each Class C felony, to be served concurrently. For the Class D felony, the trial court fined Wood $1,000 and sentenced him to three years7 to be served concurrently with the sentences for the Class C felonies.
The statutes applicable to the case before us are
The operator of a boat involved in an accident or a collision resulting in injury to or death of a person or damage to a boat or other property shall do the following:
(1) Stop the boat immediately and as close as possible to the scene of the accident.
(2) Return to the scene of the accident and remain there until the operator has complied with this section.
(3) Give:
(A) the operator‘s name and address;
(B) a full identification of the boat operated; and
(C) the name and address of the owner;
to the operator of each other boat and each person injured.
....
(5) Provide reasonable assistance to each person injured, including carrying or arranging for carrying each injured person to a physician, surgeon, or hospital for medical or surgical treatment if:
(A) it is apparent that treatment is necessary; or
(B) the injured person so requests.
A person who violates this chapter commits a Class C misdemeanor. However, the offense is:
(1) a Class A misdemeanor if the accident or collision results in an injury to a person;
(2) a Class D felony if:
(A) the accident or collision results in serious bodily injury to a person; or
...;
(3) a Class C felony if the accident or collision results in the death of a person.
1. Criminal Rule 4(C)
Wood was charged and arrested on August 3, 2010. Under
In deciding whether to grant or deny a motion for discharge, a trial court must sometimes resolve disputed facts, but on other occasions it simply applies the law to undisputed facts. Feuston v. State, 953 N.E.2d 545, 548 (Ind. Ct. App. 2011). Factual findings made by the trial court are entitled to deference, but legal conclusions are reviewed de novo. Id.
On August 26, 2011, Judge Craney set trial to commence on October 24, 2011, as a first choice jury trial. About a week later, on September 6, 2011, defense attorneys James Voyles and Frederick Vaiana each filed an appearance to replace Wood‘s prior counsel.
On September 27, 2011, Judge Craney, pursuant to an agreement reached by the parties at Wood‘s final pretrial hearing, entered an order that provided in pertinent part, “[d]efense will be filing a continuance of the jury trial now set for October 24 through 28, 2011,” and that “[i]f a continuance is filed by the defense, it will be granted by the Court and the jury trial will be reset on March 12 through 16, 2012 as a first choice setting.” (Id. at 115.) Wood filed the aforementioned motion to continue on October 5, 2011, and as promised, Judge Craney entered an order on October 7, 2011, granting Wood‘s motion to continue and resetting the jury trial for March 12 through March 16, 2012. (Id. at 116, 120.)
On January 18, 2012, Wood filed a motion for discharge pursuant to
On February 17, 2012, Wood filed a motion to continue the trial from March 12, 2012 to June 4, 2012, which the trial court granted. Wood was convicted following a five-day jury trial, which commenced on June 4, 2012.
“[T]he focus of
Criminal Rule 4 is not fault; it is to ensure early trials.” Curtis v. State, 948 N.E.2d 1143, 1150 (Ind.2011).Criminal Rule 4(C) places an affirmative duty on the State to bring a defendant to trial within one year, and the defendant is under no obligation to remind either the State or the trial court of the State‘s duty. Gibson v. State, 910 N.E.2d 263, 266 (Ind.Ct.App.2009). Although a defendant has no duty to object to the setting of a belated trial date if the setting occurs after the year has expired, a defendant waives the right to be brought to trial within one year by failing to raise a timely objection if the trial court, acting during the one-year period, schedules the trial beyond the limit. Id. at 267.
Wood‘s motion for discharge stated only “Defendant, by counsel, hereby moves for discharge pursuant to
In response to the motion to discharge, the State argued there was no
The trial court determined there was no violation of
The trial court did not err in denying Wood‘s motion for discharge. Our Indiana Supreme Court recently recognized that ”
This Court has previously examined the effect of the State‘s interlocutory appeal on the period in which a defendant must be brought to trial. In Martin v. State, 245 Ind. 224, 228, 194 N.E.2d 721, 723 (1963), the State filed a mandamus proceeding following the trial court‘s denial of the State‘s motion for a change of judge. During the course of the mandamus action, the statutory time limit ... expired. The defendant moved for discharge, arguing that the time for the State‘s mandamus proceeding could not be attributed to him. We upheld the trial court‘s denial of the discharge motion, in part because the defendant was the real party in interest in the change of judge, and his attorneys represented the respondent judge in the original action. We also stated that the [time limit] did not apply “where the delay was caused by proceedings in this court.” We explained that neither the prosecutor nor the trial judge could control the time required for an appeal, and most appeals would trigger a dismissal, a result that the legislature could not have intended. Following the adoption of our criminal rules, we quoted Martin with approval in State ex rel. Cox v. Super. Ct. of Madison County, 445 N.E.2d 1367, 1368 (Ind.1983), in holding that
Rule 4(B) ‘s early trial requirement was tolled pending the State‘s interlocutory appeal of the trial court‘s ruling on defendant‘s motion in limine.We believe that Martin‘s rationale controls here. When trial court proceedings have been stayed pending resolution of the State‘s interlocutory appeal, the trial court loses jurisdiction to try the defendant and has no ability to speed the appellate process. As a practical matter, applying the
Criminal Rule 4(C) one-year requirement to interlocutory appeals would render an appeal by the State impossible because it would in all likelihood trigger a mandatory discharge of the defendant. Accordingly, we conclude thatRule 4(C) ‘s one-year limitation does not include the time during which trial proceedings have been stayed pending interlocutory appeal.
Here,
On February 16, 2011, Wood filed a praecipe to withdraw the submission of the case from Judge Todd pursuant to
On October 5, 2011, well before the November 30 deadline, Wood moved to continue the jury trial, citing his new counsel‘s court schedule and the need for additional time to prepare for trial. Wood‘s request was granted, and the trial was continued to March 12, 2012. At that time, Wood did not object; instead, he agreed the trial could commence on March 12, 2012, a date outside the
2. Sufficiency of Evidence
When reviewing a claim the evidence is insufficient, we do not reweigh evidence or judge witness credibility; rather, we consider only the evidence and reasonable inferences most favorable to the verdict. Hyche v. State, 934 N.E.2d 1176, 1178 (Ind.Ct.App.2010), reh‘g denied, trans. denied. This review “respects the jury‘s exclusive province to weigh conflicting evidence.” Allen v. State, 844 N.E.2d 534, 536 (Ind.Ct.App.2006), trans. denied. We must affirm if the probative evidence and reasonable inferences drawn from the evidence could have allowed a reasonable trier of fact to find the defendant guilty
The Indiana General Assembly has made it a criminal offense for the operator of a boat involved in an accident to leave the scene of the accident before exchanging information and providing reasonable assistance to the injured.
(1) Give notice of the accident to:
(A) the office of the sheriff of the county;
(B) the nearest state police post; or
(C) the nearest conservation office;
immediately and by the quickest means of communication.
When someone flees an accident scene, injured persons might be left without help and without any means to identify the driver of the other vehicle. The intent behind a statute that prohibits leaving the scene of an accident is to provide prompt aid for persons who are injured and to sufficiently establish the identity of the parties so that they and police authorities may know with whom to deal in matters growing out of the accident. See Armstrong v. State, 848 N.E.2d 1088, 1095 (Ind.2006) (addressing
Wood contends his “decision to get help by going to the marina while calling 911, when considered in the totality of the emergency, satisfied his duties as a boater in an accident.” (Appellant‘s Br. at 10.) Our legislature did not include consideration of the “totality of the emergency” in the definition of this offense or as a defense to the specific statutory obligations it imposed. Thus, we must reject Wood‘s suggestion that we consider the evidence within that framework, and we must decline Wood‘s invitation to reweigh the evidence or to consider evidence other than that most favorable to the judgment.
The facts most favorable to the verdict would permit the jury to conclude Wood did not comply with the duties statutorily imposed on a boat operator after an accident because he did not “[p]rovide reasonable assistance to each person injured, including carrying or arranging for carrying each injured person to a physician, surgeon, or hospital for medical or surgical treatment if ... it is apparent that treatment is necessary.”
The 911 dispatcher stated that help was on its way and repeatedly ordered Wood and his passengers to remain at the Fourwinds, i.e., to not return to the open water where the accident had occurred. We acknowledge Wood and his passengers complied with the instructions of the 911 dispatcher and waited at the Fourwinds for an hour and a half before the authorities arrived, but there was no evidence Wood satisfied the statutory requirements to remain at the scene and give to “the operator of each other boat and each person injured,”
3. Double Jeopardy
We review de novo whether a defendant‘s convictions subjected him to double jeopardy. Goldsberry v. State, 821 N.E.2d 447, 458 (Ind.Ct.App.2005). “A defendant‘s right to not be put twice in jeopardy for the same offense arises from the United States Constitution and the Indiana Constitution.” Davis v. State, 691 N.E.2d 1285, 1287-88 (Ind.Ct.App.1998). Prohibitions against double jeopardy protect against multiple punishments for the same offense in a single trial. Richardson v. State, 717 N.E.2d 32, 37 n. 3 (Ind.1999). While there was sufficient evidence Wood violated
In Nield v. State, 677 N.E.2d 79 (Ind.Ct.App.1997), Nield struck and seriously injured two motorcyclists while driving her car. She was convicted of two counts of failing to stop after an accident involving injury or death, as defined by
Nield controls here. Even though two people died and another was injured, Wood‘s act of leaving the scene of the boating accident can support only one conviction under
4. Problems with Indiana Code chapter 14-15-4
The evidence, when viewed in a light most favorable to the judgment, requires us to uphold Wood‘s conviction. However, this prosecution has brought to light serious concerns about the statute that criminalizes Wood‘s behavior. The tragic events on Monroe Reservoir on June 28, 2010, led to two deaths, a serious injury, and traumatic effects on all parties involved. In the course of Wood‘s trial and this appeal, four judges have examined the facts of the case and the statute defining the charged crimes. While those judges have reached differing conclusions about the proper way to resolve the issues that arise in this case, all have agreed that the statute is problematic.
Observing the requirements of
The statute does not include a specific intent element, and our appellate courts have had no occasion to articulate fair warning and ascertainable enforcement standards. That, in some fact situations, will raise due process concerns. See, e.g., State v. Schriver, 207 Conn. 456, 488-89 (1988) (presence of a specific intent element may purge a potentially vague criminal statute of constitutional infirmity, and a facially vague law may comport with due process if prior judicial decisions have provided the necessary fair warning and ascertainable enforcement standards).
The likelihood there will be an emergency of some kind at the scene of a boating accident triggers a second concern about a conviction under
[a] person operating a boat shall operate the boat in a careful and prudent manner, having due regard for the following: (1) the rights, safety, and property of other persons; (2) the conditions and hazards, actual and potential, then existing, including weather and density of traffic; and (3) the possible injury to the person or property of other persons.
Yet,
Boating accidents give rise to inherently serious and dangerous conditions. Most states have recognized that the operator of a boat involved in an accident owes a dual and sometimes competing duty to his own passengers as well as to those in another boat. Indiana has not. The need to balance these dual considerations is, in general, expressed as follows:
The operator of a vessel involved in a collision, accident, or other casualty, so far as he can without serious danger to his own vessel, crew, passengers, and guests, if any, shall render to other persons affected by the collision, accident, or other casualty assistance as may be practicable and as may be necessary in order to save them from or minimize any danger caused by the collision, accident, or other casualty, and also shall give his name, address, and identification of his vessel to any person injured and to the owner of the property damaged in the collision, accident, or other casualty.
In most other states, the operator of the vessel is obliged to provide assistance only “so far as he can without serious danger to his own vessel, crew, passengers, and guests” and “must render to other persons affected by the collision, accident, or other casualty assistance as may be practicable and as may be necessary in order to save them from or minimize any danger caused by the collision, accident, or other casualty.” E.g.,
CONCLUSION
Denial of Wood‘s motion for discharge pursuant to
Affirmed in part, reversed in part, and remanded.
BAKER, J., concurs.
KIRSCH, J., dissents with separate opinion.
KIRSCH, Judge, dissenting.
I respectfully dissent.
As my colleagues note in Judge May‘s majority opinion, the tragic events on Monroe Reservoir on June 28, 2010 led to two deaths, a serious injury, and traumatic effects on all parties involved. In the course of the trial of the underlying cause and this appeal, four judges have examined the facts of the case and statute upon which it turns. All four judges have agreed that the statute is problematic, but they have reached different conclusions as to the result.
My colleagues note this case “has brought to light serious concerns about the statute that criminalizes Wood‘s behavior,” that “observing the requirements will, in many emergency situations, require behavior that defies logic,” and that “engaging in innocent, and even advisable, behavior can leave one in violation of the statute.” Op., p. 1066. The opinion continues noting that the statute “permits no consideration of what is reasonable in any given emergency,” nor “does it permit citizens to engage in any balancing of considerations that are pertinent in emergencies.” Id.
The trial court recognized that the statute failed to set forth an exception for the situation in which compliance with the statute‘s provisions would be excused where such compliance was impossible or risked serious safety concerns and attempted to remedy the statutory omission by giving an instruction on necessity, but the trial court‘s necessity instruction was illusory.
I believe that our legislature intended the language in the statute to be applied logically and not to bring about an unjust or absurd result. It is unquestioned that Wood claimed that he and his passengers were subject to significant peril and that he acted reasonably in moving his boat and its passengers to the marina. The statute did not give Wood fair notice that it was forbidden conduct to leave the scene of the accident even if Wood feared for his safety or that of his passengers and that necessity demanded that he leave the immediate accident scene. As our appellate courts have repeatedly said, “no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.” Lock v. State, 971 N.E.2d 71, 74 (Ind.2012); Brown v. State, 868 N.E.2d 464, 467 (Ind.2007); Lee v. State, 973 N.E.2d 1207, 1209 (Ind.Ct.App.2012), trans. denied. As a result of such omission,