Winningham v. State

IN THE SUPREME COURT OF THE STATE OF DELAWARE

BRIAN WINNINGHAM, §
§ No. 143, 2022
Defendant Below, §
Appellant, § Court Below: Superior Court
§ of the State of Delaware
v. §
§ Cr. ID No. 2009001203(N)
STATE OF DELAWARE, §
§
Appellee. §

Submitted: February 8, 2023
Decided: April 10, 2023

Before SEITZ, Chief Justice; VALIHURA and TRAYNOR, Justices.

Upon appeal from the Superior Court. AFFIRMED.

Elliot Margules, Esquire, OFFICE OF THE PUBLIC DEFENDER, Wilmington,
Delaware, for Defendant Below, Appellant Brian Winningham.

Sean P. Lugg, Esquire, DELAWARE DEPARTMENT OF JUSTICE, Wilmington,
Delaware, for Appellee State of Delaware.
SEITZ, Chief Justice:

Brian Winningham was driving a fully loaded tractor-trailer on Interstate 95

in Delaware when he diverted his attention from the road ahead and failed to notice

stopped traffic backed up in the travel lane waiting to exit the highway. Winningham

crashed his tractor-trailer at highway speed into three stopped cars and killed two

people while injuring two others. After a bench trial, the judge found Winningham

guilty of two counts of criminally negligent homicide and other offenses.

A criminally negligent homicide conviction requires that the defendant fail to

perceive a risk that death would result from his conduct. The risk of death must be

such that the failure to perceive it was a gross deviation from the standard of conduct

that a reasonable person would observe in the same situation. On appeal,

Winningham argues that his criminally negligent homicide convictions should be

overturned because his only driving infraction was a momentary inattention from

the roadway. Winningham also argues that the trial court erred because it found only

that he failed to perceive a risk of “serious physical injury” instead of a failure to

perceive a risk of “death.”

We affirm the Superior Court’s convictions. Viewed in a light most favorable

to the State, the evidence shows that Winningham diverted his attention from the

roadway for at least four seconds while driving a fully loaded tractor-trailer at

highway speed in the far-right lane of an interstate highway. A rational trier of fact

2
could find that, under the circumstances, Winningham’s inattention was prolonged

enough that it was a gross deviation from the standard of care that a reasonable

person would observe. Further, the trial court’s verdict shows that the court did not

misunderstand or misapply the law. Even if it did, the error was harmless beyond a

reasonable doubt.

I.

We view the evidence in the light most favorable to the State.1 Winningham

was driving a fully loaded tractor-trailer on Interstate 95 in Delaware on a sunny and

dry day.2 He was not driving under the influence. His cell phone records did not

show that he was using the phone at the time of the crash. He also recently completed

a long off-duty period during which time he could have rested.

The tractor-trailer’s dash camera showed that Winningham was traveling in a

hurried manner. He was delivering freight to Charlotte, North Carolina, about eight

hours away from his departure point in New Jersey. He also had only eight hours

left on a 70-hour, eight-day workweek, after which he would be required to stop

driving for about a day and a half. The tractor-trailer dashcam video showed that he

passed at least seven other tractor-trailers during the twenty minutes after he started

driving and before the crash. No other tractor-trailer passed Winningham.

1
Priest v. State, 879 A.2d 575, 580 (Del. 2005).
2
The facts are drawn from the trial court’s verdict announced in court. Ex. A to Opening Br.
[hereinafter Verdict Tr.].
3
 The highway speed limit was 65 miles per hour. The tractor-trailer had a

governor that limited its maximum speed to 70 miles per hour. Winningham was

driving with the cruise control engaged at the maximum speed. For at least the last

minute before the crash, he was traveling 68 to 70 miles per hour. His speed was 67

miles per hour at the time of the collision.

As Winningham approached an exit in the far-right lane, a line of stopped

traffic appeared in front of him. Winningham did not brake. Even though the lane

to his left and the improved shoulder to his right were empty, he did not attempt to

avoid the line of cars before the crash. The stopped traffic was visible in the dashcam

video at least four seconds before the collision.

The trial court found that, based on Winningham’s post-crash statement, he

was looking away from the road for at least four or five seconds before the collision.3

In the same statement, Winningham recalled that he diverted his eyes from the

roadway to reach for a drink and noticed a gray car entered his lane in front him; as

he looked up, he saw the traffic had stopped and slammed on the brakes.

From the dashcam video, however, the car entered in front of Winningham

around twenty seconds before the collision and then left the lane at least five seconds

3
Verdict Tr. at 8 (“[D]efendant’s post-collision statement suggested he was looking away from
the roadway for a least five seconds since he did not recall seeing the gray vehicle move out of
Lane 4.”); id. at 12–13 (“[T]he defendant completely removed his attention from the roadway for
at least four seconds.”).
4
before the collision. Winningham did not recall seeing the car leaving the lane and

thought he hit the car, which he did not. The trial court found demonstrable

inaccuracies in Winningham’s statement and accorded little weight to his

explanation.

The collision caused two deaths, left one person paralyzed, and injured

another. After a bench trial, the trial judge convicted Winningham of two counts of

criminally negligent homicide, one count of vehicular assault in the second degree,

one count of vehicular assault in the third degree, and one count of inattentive

driving. The trial court concluded that Winningham acted with criminal negligence

based on three factors. First, Winningham was traveling at high speed in a tractor-

trailer in the far-right lane near rush hour, was approaching an exit, and the roadway

had moderate traffic. Second, Winningham had a prolonged period of inattention

from the roadway for at least four seconds. And third, in addition to being inattentive

to the road in front of him, he was not paying attention to any of his surroundings,

as shown by his failure to attempt to slow down or otherwise avoid the stopped

vehicles before the collision.

5
 II.

A.

To convict an individual of criminally negligent homicide, the trier of fact

must find that the defendant caused the death of another person through criminal

negligence.4 In the homicide context, criminal negligence requires that the

defendant fail to perceive a risk of death, and that the risk “must be of such a nature

and degree that failure to perceive it constitutes a gross deviation from the standard

of conduct that a reasonable person would observe in the situation.”5

This Court recently addressed criminal negligence in Cannon v. State.6 In

Cannon, we reversed a criminally negligent homicide delinquency finding. The

Court concluded that the defendant’s physical attack of the victim – an altercation

in a high school bathroom not involving a weapon – did not amount to criminal

negligence because it did not pose a risk of death so apparent that it was grossly

deviant of the defendant to fail to recognize it.7 The Court explained that “the mere

fact that someone’s behavior posed some risk of death is too slender a reed for

criminal culpability.”8 Instead, the defendant’s “failure to recognize that her

behavior had deadly consequences must [] have been so ‘abnormal’ that her

4
11 Del. C. § 631.
5
11 Del. C. § 231(a).
6
181 A.3d 615, 620 (Del. 2018).
7
Id. at 624–25.
8
Id. at 620.
6
indifference to the risk of death is markedly disparate from how a reasonable person

in her position would have grasped the situation.”9

The parties in this appeal agree that “inattention [while driving] could

constitute criminal negligence.”10 What they disagree about is whether the

circumstances of this case support such a finding. The Delaware courts have

addressed when inattentive driving is criminally negligent. In Hazzard v. State, the

defendant approached an intersection of a four-lane highway on a clear day.11 After

stopping at the stop sign, the defendant failed to see the victim’s car, entered the

intersection, and the two cars collided. The trial court found the defendant guilty of

vehicular homicide in the second degree which required a criminal negligence

finding.

On appeal, the defendant asserted that the trial judge’s verdict supported only

a simple negligence finding. This Court rejected the argument. We found that “[t]he

failure to see an oncoming automobile, at an unobstructed intersection controlled by

both a stop sign and flashing red light, in broad day light constitutes criminal

negligence.”12

9
Id.
10
Reply Br. at 3 (alteration in original); see also State v. Donato, 1990 WL 140073, at *1 (Del.
Super. Aug. 15, 1990).
11
456 A.2d 796, 797 (Del. 1983).
12
Id.
7
 Similarly, in State v. Donato, the Superior Court rejected the defendant’s

argument that his inattentive driving was not criminal negligence.13 There, the

defendant was driving on a highway on a clear day with moderate traffic conditions.

The defendant entered a construction zone at the Christiana River Bridge and failed

to see that traffic had stopped until it was too late. He applied his brakes but collided

with the vehicle in front of him. While driving, he was talking to his wife and

pointing out some conditions off the bridge. The normal speed limit for the highway

was 55 miles per hour, but it was reduced to 35 miles just before the bridge. The

defendant admitted he was traveling at least 55 miles per hour at the time he applied

his brakes.

The evidence at trial showed, however, that none of the witnesses, including

the police officer who arrived after the incident, recalled seeing the signs reducing

the speed limit to 35 miles per hour.14 All the witnesses except one were exceeding

the speed limit as they passed the construction zone.15 The jury found Donato guilty

of vehicular homicide, which, as noted earlier, requires criminal negligence. The

defendant moved for judgment of acquittal and argued that the crash was the result

of “a moment’s inattention” and “his conduct was not a gross deviation from the

13
1990 WL 140073, at *2.
14
Id.
15
Id.
8
standard of care” given that most of the witnesses also failed to see the speed limit

signs.16

In a post-trial decision, the Superior Court judge expressed his disagreement

with the verdict but affirmed the conviction.17 The court found:

[T]he jury could legitimately conclude that the defendant’s failure to
observe the speed limit signs, his failure generally to reduce speed upon
entering a construction zone, and his inattention while maintaining his
speed created a risk that death might result and that his conduct was a
gross deviation from the standard of care that a reasonable person
would observe in the circumstances.18
Finally, in State v. Sharpley, the defendant was traveling 66 miles per hour,

which was 16 miles per hour over the speed limit.19 He took his eyes off the road

for about four seconds to check a problem with his alternator gauge. While he

looked down, the traffic light controlling the intersection changed from green to red.

He applied his brakes and swerved to the left to avoid a car but was unsuccessful.

Both occupants of the car were killed.

After a bench trial, the Superior Court found that the defendant’s excessive

speed and distraction from the road to attend to a perceived problem with his car did

not rise to the level of “criminal negligence.”20 The court noted that the evidence

16
Id. at *2.
17
Id.
18
Id.
19
2009 WL 406797, at *1 (Del. Super. Jan. 30, 2009).
20
Id. at *3.
9
did not suggest that the defendant was driving imprudently before the crash.21 And

the court distinguished Donato, which was, according to the court, decided on the

“very deferential standard of review” on a motion to acquit.22

B.

In this appeal we apply the same deferential standard of review as the court in

Donato. We view the evidence and all reasonable inferences drawn from it in a light

most favorable to the prosecution.23 We must determine whether “any rational trier

of fact . . . could find [the] defendant guilty beyond a reasonable doubt.” 24

Here, like Donato, even though this might be a close case, there was sufficient

evidence to permit the trial judge to conclude that Winningham’s inattentive driving

grossly deviated from the standard of care a reasonable person would observe. First,

the judge was justified in finding that Winningham’s inattention to the road was

abnormally prolonged. He removed his attention from the roadway for at least four

seconds while traveling at 68 to 70 miles per hour down an interstate highway in the

right lane with moderate traffic. At this speed, even assuming he was inattentive for

exactly four seconds, he would have traveled more than 400 feet – a distance greater

than a football field – without paying attention to the road in front of him.25

21
Id.
22
Id. at *2.
23
Cushner v. State, 214 A.3d 443, 446 (Del. 2019).
24
Williamson v. State, 113 A.3d 155, 158 (Del. 2015).
25
Answering Br. at 21.
10
 Second, the trier of fact could find that Winningham drove inattentively for

more than four seconds. The trial court noted that the stopped traffic became visible

in the dashcam video at least four seconds before the crash. But it was “likely that

those stopped vehicles would have been visible to [the] defendant more than four

seconds before the collision” because the video had relatively low quality, its image

was small, and it was a clear day.26 After reviewing the video, we agree.

Winningham was driving on a straight road on a clear day and had an elevated

position in the tractor-trailer where he could see beyond what was directly in front

of him.27 If he had exercised any attention, he would have seen the stopped line of

traffic well before the crash.

Third, Winningham’s failure to attempt to slow down or otherwise avoid the

stopped vehicles underscores the abnormal nature of his inattention. “This shows

that not only was [the] defendant not entirely watching the road in front of him, he

was not paying attention at all to any of his surrounding for an extended period of

time.”28 Winningham’s conduct is different than the defendants’ conduct in both

Sharpley and Donato, who attempted to brake or swerve to avoid the collision.

Although Winningham tries to undermine this finding by arguing that it was a

consequence of the inattention, not an aggravator, his failure to see the traffic

26
Verdict Tr. at 8.
27
App. to Corrected Opening Br. at A161.
28
Verdict Tr. at 13.
11
immediately ahead and pay attention to his surroundings is more egregious than, for

example, attending to traffic in one lane but neglecting others.

Fourth, unlike Sharpley, the cause of Winningham’s inattention is unclear.

Winningham agrees that the cause of the inattention is relevant to deciding whether

his inattention was criminal negligence. The trial court did not credit Winningham’s

explanation that he was reaching for a drink,29 and we defer to its credibility

determination. Unlike the defendant in Sharpley, who took his eyes off the road to

check a problem with his vehicle – an explanation that the trial judge credited and

emphasized in the verdict – the trial court did not find a mitigating factor accounting

for Winningham’s extended inattention.

Winningham argues that inattention while driving is a common departure

from the standard of care and is indistinguishable from that in a routine “fender

bender.”30 Ultimately, however, whether Winningham’s inattentive driving under

the circumstances of this case is a gross deviation of the reasonable standard of care

involves “a value judgment [that] will have to be made” properly by the jury. 31 A

trial judge’s verdict in a bench trial deserves no less deference.

29
Verdict Tr. at 8–9.
30
Corrected Opening Br. at 12–13.
31
Del. Governor’s Comm. for Revision of the Criminal Law, Delaware Criminal Code with
Commentary 30–31 (1973).
12
 Winningham also directs our attention to cases from other jurisdictions. But

West Virginia, Florida, Maryland, New York, and Texas define criminal negligence

differently than Delaware. In West Virginia, Florida, and Maryland, the mens rea

at issue (i.e., criminal, culpable, or gross negligence) requires a showing of “reckless

disregard for human life.”32 In New York and Texas, criminal negligence requires

a failure to perceive “a substantial and unjustifiable risk” of death.33 In comparison,

the Delaware statute and court decisions have not included either requirement in the

definition of criminal negligence.34 An early draft of the definition of criminal

negligence in the Criminal Code included a requirement of a “substantial and

unjustified” risk, which was dropped in the final version.35 The absence of these

requirements broadens the type of conduct that could constitute criminal negligence

in Delaware.

III.

Finally, Winningham asserts that the trial judge did not find that he failed to

perceive a risk of “death” that would result from his conduct. Instead, according to

Winningham, the court found only that he failed to perceive a “risk of death or

32
See State v. Green, 647 S.E.2d 736, 747 (W. Va. 2007); DuPree v. State, 310 So. 2d 396, 398
(Fla. Dist. Ct. App. 1975); Plummer v. State, 702 A.2d 453, 457 (Md. Ct. Spec. App. 1997).
33
See People v. Faucett, 170 N.Y.S.3d 372, 1464 (N.Y. App. Div. 2022); People v. Boutin, 555
N.E.2d 253, 254 (N.Y. 1990); Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017).
34
Kile v. State, 382 A.2d 243, 245 (Del. 1978) (finding it was error to instruct the jury that it must
find “reckless or wanton” conduct to find criminally negligent homicide).
35
See Donato, 1990 WL 140073, at *2.
13
serious physical injury.”36 We review de novo the trial court’s application of the

law.37

The Superior Court did not misapply the required intent for criminally

negligent homicide.38 By stating “risk of death or serious physical injury,” the trial

court was addressing together the culpable state of mind in the criminally negligent

homicide offense and the vehicular assault offenses.39 Although it would have been

preferable if the court had said that it found “risk of death and serious physical

injury,” the wording does not show that the trial court misunderstood the legal

requirement. This is especially true given that both parties provided the court with

the correct standard for criminal negligence before the verdict.40

Even if the trial court misapplied the requirement, the error would be harmless

beyond a reasonable doubt.41 The defense did not argue for a distinction at trial.

And the risk of harm of a fully-loaded tractor trailer driving down an interstate at

36
Corrected Opening Br. at 17.
37
Hoskins v. State, 102 A.3d 724, 728 (Del. 2014).
38
For a jury trial, “this Court will reverse only if [a] deficiency [in the jury instructions]
undermined the ability of the jury ‘to intelligently perform its duty in returning a verdict.’” Probst
v. State, 547 A.2d 114, 119 (Del. 1988) (quoting Storey v. Castner, 314 A.2d 187, 194 (Del. 1973)).
39
Verdict Tr. at 12.
40
App. to Corrected Opening Br. at A331 (State’s closing) (“And so as it relates to Counts 1, 2, 3,
and 4, they’re all bound by the same criminal negligence standard. They just differ in terms of
victim and severity of injury or death.”); id. at A33 (Defense’s opening) (“To be criminally neglect
conduct, the defendant’s conduct must have posed a risk of death of such a nature and degree that
his failure to perceive it constitutes a gross deviation of the standard of conduct a reasonable person
would observe in the situation.”).
41
United States v. Argueta-Rosales, 819 F.3d 1149, 1156 (9th Cir. 2016) (“When a district court
in a bench trial has made a legal error regarding the elements of an offense, the error is reviewed
using the same harmless error standard that would apply to an erroneous jury instruction.”).
14
highway speed presents a risk of death to the individuals in the stopped traffic –

which, in fact, occurred here.

IV.

We affirm the Superior Court’s judgment.

15