Robert v. Kirts v. State of Indiana ( 2012 )

FILED
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
Oct 24 2012, 8:48 am
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case. CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
STEVEN R. KNECHT GREGORY F. ZOELLER
Vonderheide & Knecht, P.C. Attorney General of Indiana
Lafayette, Indiana
KARL M. SCHARNBERG
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ROBERT V. KIRTS, )
)
Appellant-Defendant, )
)
vs. ) No. 79A02-1202-CR-122
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE TIPPECANOE SUPERIOR COURT
The Honorable Randy J. Williams, Judge
Cause No. 79D01-1106-FB-20
October 24, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
BAKER, Judge
Appellant-defendant Robert V. Kirts appeals his convictions for Operating a
Vehicle While Intoxicated Resulting in Death,1 a class C felony, and Failure to Stop After
an Accident Resulting in Death,2 a class C felony. Specifically, Kirts argues that the trial
court erred in refusing to give his tendered instruction regarding causation of death. Kirts
also maintains that convicting him of both offenses violates double jeopardy principles.
Finding no error, we affirm the judgment of the trial court.
FACTS
In the early afternoon of February 27, 2011, Kirts left his home and drove to
Champs Sports Bar (Champs) in Lafayette to watch a NASCAR race with some friends.
While at Champs, Kirts drank two beers and a double shot of American Honey, a
bourbon liqueur. At approximately 4:30 p.m., Kirts drove to Hops, another tavern in
Lafayette, drank three beers, ate a sandwich, and left around 6:00 p.m. Kirts returned to
Champs and bought a bucket of beer with a friend of his. The bucket contained five
bottles or cans of beer, and Kirts drank half of them. Kirts also drank two shots of “liquid
cocaine.” Tr. p. 204, 217.3
Kirts left Champs at approximately 8:30 p.m. While driving on State Road 25,
Kirts struck thirteen-year-old Ebony Knight with his Jeep as she and her cousin, Lavaria
Bryant, were walking in the gravel on the side of the road. Kirts struck Ebony from
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Ind. Code § 9-30-5-5(a)(3).
2
Ind. Code § 9-26-1-1(1)(2).
3
This drink consists of one part Rumple Minze (a mint liqueur like Schnapps) and one part Jagermeister.
Tr. p. 204.
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behind, and she was swept into the road on the front bumper of Kirts’s Jeep. As Lavaria
watched, she saw Ebony slide off the front of the Jeep to the pavement where Kirts ran
over her.
A witness who was pumping gas nearby observed Kirts’s Jeep go “off the ground”
like it “had hit a speed bump pretty, pretty solid, you know, at a good rate of speed.” Tr.
p. 64-65. Only a split second after running over Ebony, Kirts accelerated and sped away
from the accident. Ebony sustained massive trauma to her head, neck, and abdomen, and
died at the scene.
When Kirts arrived home at approximately 9:00 p.m., he told Lisa, his wife, that
she needed to help him because he “hit something or someone,” and he thought it may
have been a deer. Tr. p. 229. Kirts’s Jeep was badly damaged. The hood had caved in
and a chunk of the grill was missing. At that point, Kirts told Lisa that a woman had
sideswiped him on U.S. 231 as he was driving home. Although Lisa suggested
contacting the police, Kirts did not want to because they both “knew that he had been
drinking.” Id. at 231. Lisa could tell that Kirts was intoxicated because he was swaying
back and forth, “rocking a little,” and his speech was “slow.” Id. at 232. Kirts proposed
that he hide the Jeep at Lisa’s relatives for a while. Lisa refused, but Kirts commented
that they “really needed to hide it for a long time, for a few days.” Id.
The next day, Lisa called her mother and learned that a girl had been killed by a
motorist on State Road 25 the previous night. Kirts denied knowing anything about the
accident. The police were provided with a description of the vehicle, and on February 28,
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2011, Officer James Wilkerson of the Lafayette Police Department saw Kirts’s Jeep
parked in the driveway with damage that was consistent with having recently been in an
accident. Officer Wilkerson called another officer to the scene and attempted to
determine the owner of the vehicle. Lisa saw the officers outside and woke up Kirts.
Kirts started to cry when Lisa told him that the police were at their residence.
Kirts walked outside and admitted to Officer Wilkerson that he had hit something
and did not stop. Kirts explained that he was going to check the damage when he got
home and stated that he “knew what he had hit” because he had watched the news that
morning. Tr. p. 147. Kirts also told Officer Wilkerson that he had intended to turn
himself into the police that afternoon.
Kirts was transported to the police station where he gave a statement to Detective
Mathew Devine. Id. at 155. Kirts initially denied drinking at all and stated that he had
been home all day watching the race. Kirts gave a second statement to Detective Devine
the next day, stating that he “remembered” going to Hops for a couple of hours around
1:00 p.m., drinking two beers with lunch, and then driving to Rossville to visit a friend.
After discovering that his friend was not home, Kirts stated that he drove around “for a
couple of hours” before stopping at a gas station to buy cigarettes. State’s Ex. 96.
On June 14, 2011, Kirts was charged with the following offenses:
Count I—Operating a Vehicle While Intoxicated Resulting in Death, a class
C felony;
Count II—Reckless Homicide, a class C felony;
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Count III—Failure to Stop After an Accident Resulting in Death, a class C
felony;
Count IV—Failure to Give Notice of an Accident Resulting in Death, a
class C misdemeanor; and
Count V—Operating a Vehicle While Intoxicated While Having a Prior
Conviction for Operating While Intoxicated Resulting in Death, a class B
felony.
Appellant’s App. p. 15-19.
A three-day jury trial was held on November 15-17, 2011. At the close of the
evidence, Kirts moved for a directed verdict on Counts I and II. The trial court denied
Kirts’s motion with respect to Count I, but granted his motion as to Count II.
During a conference regarding jury instructions, Kirts requested the trial court to
instruct the jury about the distinction between a substantial cause and a contributing
cause. Kirt desired that the jury be instructed to return a not guilty verdict if it found that
Kirts’s actions were merely a “contributing cause” of Ebony’s death. Tr. p. 285. More
particularly, Kirts’s tendered instruction provided that “the State must prove the
Defendant’s operating a motor vehicle while intoxicated was a substantial cause of the
resulting death, not a mere contributing cause.” Tr. p. 285.
The trial court refused to give Kirts’s tendered instruction, and the jury found Kirts
guilty on Counts I, III, and IV. Kirts admitted guilt as to Count V. On January 27, 2012,
Kirts was sentenced to seven years on Count I, seven years on Count III, sixty days on
Count IV, and eighteen years on Count V. Count I was merged with Count V. The
sentences in Counts III and IV were to be served concurrently with one another, but
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consecutively to Count V, for an aggregate term of twenty-five years of incarceration.
The trial court suspended three of those years to probation, and Kirts now appeals.
DISCUSSION AND DECISION
I. Instructions
Kirts argues that his conviction for operating a vehicle while intoxicated resulting
in death must be reversed because the trial court erred in not giving his tendered
instruction regarding the cause of Ebony’s death. Specifically, Kirts maintains that the
trial court should have given his tendered instruction because “causation was not defined
for the jury, which had to decide whether [Kirts’s] driving behavior was the cause or a
cause of the resulting death.” Appellant’s Br. p. 12.
In resolving this issue, we initially observe that the trial court has broad discretion
in the manner of instructing the jury, and we will review its decision only for an abuse of
that discretion. Snell v. State, 866 N.E.2d 392, 395 (Ind. Ct. App. 2007). Jury
instructions are to be considered as a whole and in reference to each other. Stringer v.
State, 853 N.E.2d 543, 548 (Ind. Ct. App. 2006). The trial court’s ruling will not be
reversed unless the instructions, when taken as a whole, misstate the law or mislead the
jury. Kelly v. State, 813 N.E.2d 1179, 1185 (Ind. Ct. App. 2004). Additionally, before
we will reverse, the defendant must establish that the erroneous instruction prejudiced his
or her substantial rights. Stringer, 853 N.E.2d at 548.
When reviewing a challenge to a jury instruction, we will consider whether the
instruction correctly states the law, whether there was evidence in the record to support
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the giving of the instruction, and whether the substance of the instruction is covered by
other instructions given by the trial court. Hubbard v. State, 742 N.E.2d 919, 921 (Ind.
2001). The purpose of an instruction is to inform the jury of the law applicable to the
facts without misleading the jury and to enable the jury to comprehend the case clearly
and arrive at a just, fair, and correct verdict. Snell, 866 N.E.2d at 396. Each party to an
action is entitled to have the jury instructed on that party’s particular theory of complaint
or defense. Id.
Although Kirts’s instruction was rejected, the trial court instructed the jury as
follows:
The crime of operating a vehicle while intoxicated is defined by law as
follows:
A person who operates a vehicle while intoxicated commits a Class C
misdemeanor. The offense is a Class C felony if the person causes the
death of another person.
Before you may convict the Defendant of a Class C Misdemeanor, the State
must have proved each of the following elements beyond a reasonable
doubt:
1. The Defendant
2. Operated a vehicle
3. While intoxicated.
If the State failed to prove each of these elements beyond a reasonable
doubt, you must find the Defendant not guilty.
If the State did prove each of these elements beyond a reasonable doubt,
you must find the Defendant guilty of the crime of operating a vehicle
while intoxicated, a Class C misdemeanor.
If the State further proved beyond a reasonable doubt that said defendant,
while operating a vehicle while intoxicated, caused the death of Ebony
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Knight, you must find the Defendant guilty of operating a vehicle while
intoxicated causing death, a Class C felony.
Appellant’s App. p. 54.
In our view, this instruction adequately informed the jury that the State had the
burden to prove that Kirts caused Ebony’s death. Also, the language set forth in Kirts’s
tendered instruction would likely have shifted the focus from whether, while in an
intoxicated state, Kirts caused Ebony’s death to whether Kirts’s intoxicated driving
caused Ebony’s death. The State is not required to prove a causal link between a driver’s
intoxication and the injury. Abney v. State, 766 N.E.2d 1175, 1178 (Ind. 2002). That
said, we reject Kirts’s reliance on Abney for the proposition that his proposed instruction
should have been given.
In Abney, the jury was instructed that it could convict the defendant if the State
had proven that the defendant’s “driving conduct was a contributing cause” of the
victim’s death. Id. at 1176. However, unlike the circumstances here, Abney presented a
theory at trial that another vehicle hit a bicyclist first and that Abney hit him only after
the first accident that occurred. Id. at 1178. It was ultimately determined that the trial
court had erred in giving an instruction permitting the jury to convict if it found that
Abney’s driving conduct was a contributing cause. Id. On the other hand, the instruction
that Abney had tendered read:
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 that someone else’s conduct caused the accident, you
should find the defendant not guilty. . . .
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Id. at 1176. The use of the word “caused” in the tendered instruction was specifically
noted, and it was determined that the trial court erred in refusing to give the defendant’s
proposed instruction in light of the circumstances. Id. at 1178.
Here, Kirts admits that the instruction the trial court gave is not incorrect. Rather,
his objection is that the instruction fails to define “causation.” Appellant’s Br. p. 20.
However, Kirts’s instruction similarly does not define causation and layers on top of the
common sense notion of causation legal terms that are likewise not defined for the jury.
Also, the instruction that the Supreme Court approved in Abney, on which Kirts relies,
did not define causation. As noted above, the instruction used the word “caused,” thus
leaving it to the jury to apply a commonsense understanding of the word. See Abney,
766 N.E.2d at 1186 (observing that the refusal to give Abney’s instruction and
instructing as to the lesser standard of contributing cause was error). Because Kirts’s
instruction might very well have led a jury to believe that the State bore the burden of
proving a causal link between a driver’s intoxication and the injury, it is an incorrect
statement of the law. Also, Kirts’s proposed instruction would have misled and
misinformed the jury. As a result, we conclude that the trial court properly refused to
give Kirts’s tendered instruction.
II. Double Jeopardy
Kirts next argues that his convictions for both operating a vehicle while
intoxicated resulting in death and failure to stop after an accident resulting in death
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violate the prohibition against double jeopardy under Article I, Section 14 of the Indiana
Constitution. Specifically, Kirts maintains that “the enhancement of the failure to stop
after an accident offense from a class A misdemeanor to a class C felony because of a
resulting death was for the same harm as that named in count I, operating while
intoxicated causing death.” Appellant’s Br. p. 13. As a result, Kirts maintains that his
conviction for failing to stop after an accident should be reduced to a class A
misdemeanor.
The Indiana Constitution provides that “[n]o person shall be put in jeopardy twice
for the same offense.” Ind. Const. art. 1, § 14. In Richardson v. State, our Supreme
Court developed a two-part test for Indiana double jeopardy claims, holding that
two or more offenses are the ‘same offense’ in violation of Article I,
Section 14 of the Indiana Constitution, if, with respect to either the
statutory elements of the challenged crimes or the actual evidence used to
convict, the essential elements of one challenged offense also establish the
essential elements of another challenged offense.
717 N.E.2d 32, 49 (Ind. 1999).
There is also a series of rules of statutory construction and common law that are
often described as double jeopardy, but which are not governed by the constitutional test
set forth in Richardson. Pierce v. State, 761 N.E.2d 826, 830 (Ind. 2002). One of these
rules is that double jeopardy is violated where “[c]onviction and punishment for an
enhancement of a crime where the enhancement is imposed for the very same behavior or
harm as another crime for which the defendant has been convicted and punished.”
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Guyton v. State, 771 N.E.2d 1141, 1142 (Ind. 2002) (quoting Richardson, 717 N.E.2d at
56 (Sullivan, J., concurring)).
In accordance with these non-constitutional double jeopardy prohibitions, we note
that Kirts presents the same argument that a different panel addressed in McElroy v.
State, 864 N.E.2d 392 (Ind. Ct. App. 2007). In McElroy, it was determined that
convictions for the two offenses about which Kirts complains here do not run afoul of
double jeopardy principles. In particular, it was held in McElroy that the defendant had
been punished for one act—causing the victim’s death—and a second, sequential act—
failing to stop after the accident. Id. at 398. It was also observed that the punishments
were for distinct acts, and the enhancement for fleeing the scene of an accident was a
policy decision of the legislature in finding that fleeing from an accident where someone
dies is more serious than fleeing from a less serious accident. Id. The McElroy Court
also determined that the facts before it did not present a case where “a defendant has been
convicted of one crime for engaging in the specified additional behavior or causing the
specified additional harm and that behavior or harm has been used as an enhancement of
a separate crime.” Id.
Although Kirts acknowledges the holding in McElroy, he contends that the wrong
result was reached “and that the ruling should be reconsidered.” Appellant’s Br. p. 25.
We decline Kirts’s invitation because, like the result reached in McElroy, we find that the
punishment imposed upon Kirts for the two offenses was for the commission of separate
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and distinct acts. Therefore, we affirm Kirts’s convictions and find no double jeopardy
violation.
The judgment of the trial court is affirmed.
ROBB, C.J., and BRADFORD, J., concur.
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