ATTORNEY FOR APPELLANT
John (Jack) F. Crawford
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
Steve Carter
Attorney General of Indiana
Grant H. Carlton
Deputy Attorney General
Indianapolis, Indiana
__________________________________________________________________
IN THE
SUPREME COURT OF INDIANA
__________________________________________________________________
LANNY ABNEY, )
)
Appellant (Defendant Below), ) Indiana Supreme Court
) Cause No. 49S02-0204-CR-255
v. )
) Indiana Court of Appeals
STATE OF INDIANA, ) Cause No. 49A02-0103-CR-160
)
Appellee (Plaintiff Below). )
__________________________________________________________________
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Cale J. Bradford, Judge
Cause No. 49G03-9909-CF-164322
__________________________________________________________________
ON PETITION FOR TRANSFER
__________________________________________________________________
April 26, 2002
BOEHM, Justice.
After his car struck a bicyclist, Lanny Abney was convicted of
several crimes, including operating a vehicle with .10% or more blood
alcohol content causing death. The trial court instructed the jury that if
the State proved that Abney’s “driving conduct was a contributing cause” of
the accident the requisite causation would be established. Although an
earlier Court of Appeals decision had approved that standard of causation,
we agree with the Court of Appeals in this case that the statute requires
that the defendant’s driving be proven to be a proximate cause of the
accident, not merely a contributing cause. We grant transfer, reverse the
convictions, and remand for a new trial.
At about 2:30 a.m. on July 9, 1999, Abney headed home from an
Indianapolis 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 spotted 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 scene 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 (3) leaving the scene of an accident resulting
in death, all Class C felonies. The first two offenses required that
Abney’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 that
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
death 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 State 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 Abney 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” or
“legal” cause. Abney v. State, 758 N.E.2d 72 (Ind. Ct. App. 2001). The
Court of Appeals agreed, holding that “a substantial cause is required . .
. and the jury instructions should so advise.” Id. at 76. The court also
found that Abney was prejudiced by the erroneous instruction and therefore
reversed the convictions and remanded for a new trial. The State
petitioned this Court for transfer, contending that the Court of Appeals’
opinion conflicts with another Court of Appeals decision, Stephenson v.
State, 648 N.E.2d 395 (Ind. Ct. App. 1995), and that the Court of Appeals
misinterpreted this Court’s opinion in Micinski v. State, 487 N.E.2d 150
(Ind. 1986).
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 states that a person who violates section 9-30-5-1 commits a Class C
felony “if the crime results in the death of another person.” In Micinski
v. State, 487 N.E.2d 150, 154 (Ind. 1986), this Court held that to prove a
violation of these statutes, the State must show that: (1) the defendant
drove while intoxicated; and (2) that act resulted in injury to another
person. Micinski rejected the contention that the statute required the
State to demonstrate that the defendant’s intoxication—not his operation of
the vehicle—directly and proximately caused the resulting injury, finding
that it placed too great an emphasis on the intoxication and invited
speculation as to whether the driver could have prevented the accident if
sober. Id. at 153-54. Micinski went on to address the proof of causation
required to sustain a conviction under the statute:
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, 648 N.E.2d 395 (Ind. Ct. App. 1995), trans.
denied, the defendant tendered an instruction, similar to Abney’s, that
would have required the State to prove that his operation of a vehicle
while intoxicated “caused the motor vehicle accident which resulted in the
death of another person.” Id. at 396. That panel of the Court of Appeals
referred to Micinski’s statements on causation and held that “[t]he
causation element recognized by Micinski refers to something akin to a
contributing cause.” Id. Presumably the trial court in this case relied
on Stephenson in instructing the jury.
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, 758 N.E.2d at 75. The Court of Appeals
concluded 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.” Id. at 76.
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, “[a]nalysis of 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.” 487 N.E.2d at 154. This is simply a short-handed way of stating
the well-settled rule that the State must prove the defendant’s conduct was
a proximate cause of the victim’s injury or death. Boswell v. State, 250
Ind. 607, 609, 238 N.E.2d 283, 285 (1968) (citing, inter alia, Dunville v.
State, 188 Ind. 373, 379, 123 N.E. 689, 691 (1919)); Warner v. State, 577
N.E.2d 267, 270 (Ind. Ct. App. 1991). This was the basis for Abney’s
defense that, although his vehicle struck Heffernan’s body, the evidence
tended to show that another vehicle struck Heffernan first and threw
Heffernan into Abney’s vehicle. If the trier of fact accepts Abney’s
scenario, Abney’s driving may not have been a proximate cause of
Heffernan’s death.
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 here, 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 car, 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 requiring 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 scene 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 conviction
as well. Lockhart v. State, 609 N.E.2d 1093, 1101 (Ind. 1993).
Conclusion
We reverse Abney’s convictions and remand for a new trial.
SHEPARD, C.J., and DICKSON and RUCKER, JJ., concur.
SULLIVAN, J., dissents with separate opinion.
Attorney for Appellant
John Crawford
Indianapolis, IN
Attorneys for Appellee
Steve Carter
Attorney General of Indiana
Grant Carlton
Deputy Attorney General
Indianapolis, IN
IN THE
INDIANA SUPREME COURT
LANNY ABNEY,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
)
) Supreme Court No.
) 49S02-0204-CR-255
)
)
) Court of Appeals No.
) 49A02-0103-CR-160
)
)
)
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Cale J. Bradford, Judge
Cause No. 49G03-9909-CF-164322
ON PETITION TO TRANSFER
April 26, 2002
SULLIVAN, Justice, dissenting.
I respectfully dissent. I think the instruction used by the trial
court here (and approved by the Court of Appeals in Stephenson v. State,
648 N.E.2d 395 (Ind. Ct. App. 1995), trans. denied), is faithful to this
court’s directives in Micinski v. State, 487 N.E.2d 150 (Ind. 1986).
Micinski reversed a conviction for leaving the scene of an accident
involving personal injury on grounds that the defendant was entitled to an
instruction to the effect that he needed to have “knowledge that there was
an injury accident.” 487 N.E.2d at 152. That holding — which drew two
dissents — is not at issue in today’s case. Micinski then went on to
address defendant’s claim that the evidence was insufficient on the element
of causation to support his conviction on two counts of driving under the
influence causing bodily injury. On this issue, our court unanimously
rejected defendant’s claim, saying:
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 (3) that the intoxication did directly
and proximately cause 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 victim?” We conclude that this is not
what the legislature intended. The statute creates a 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 victim 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.
487 N.E.2d at 153 (citation omitted). It seems to me clear from this
language that Micinski sets the bar for proving causation at a level lower
than that required by the majority today. Support for my reading of
Micinski comes, I think, from the fact that Micinski explicitly disapproved
Higginbotham v. State in which the Court of Appeals held:
Based upon these circumstances 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 because of intoxication.
427 N.E.2d 896, 900 (Ind. Ct. App. 1981). It seems to me that the majority
today resurrects the Higginbotham standard that Micinski rejected.
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.” 487 N.E.2d at 154.
I think the “substantial causation” language used by the trial court
handles this hypothetical adequately — if I hit a child darting into the
street, my driving is not a substantial cause of the accident. This was
the explicit holding of Stephenson, a case in which we unanimously denied
transfer.
I would affirm the judgment of the trial court.