dissenting. I must respectfully dissent. The court of appeals correctly decided this case, and I agree with the reasoning set out in its opinion. I write to state my additional concerns. Under the broad language used in Ark. Code Ann. § 5&emdash;10&emdash;105(b)(1) (Supp. 2003), one might argue that Charles W. Utley may be held criminally hable; however, criminal liability has not been imposed in the past where the mental state of the criminal defendant is unproven. I do not believe that the General Assembly intended that persons be prosecuted criminally based on conclusions of mere inattention as is the apparent basis of the decision in this case. Further, even if there were criminal liability under the statute, the State has not met its burden of proof; therefore, the motion for a directed verdict should have been granted.
Historically, liability for deaths in automobile accidents caused by common negligence have been resolved through civil litigation. Where the death has resulted from mere negligence in driving, criminal liability has not been imposed. Where there was more than mere negligence, such as in the case of intoxication, high-speed flight from police, or negligence that arises from a gross deviation from how a reasonably prudent person would act, criminal liability has been imposed over the course of many years.1 While wandering over the centerline is certainly very dangerous, it is an occurrence that, unfortunately, is commonly witnessed in everyday driving. Many dangerous actions that inattentive drivers engage in do not give rise to criminal liability.
It appears that this change results from a change in analysis. Where before the focus was on the culpable mental state of the driver, the focus now is upon the severity of the injury that results. This is at odds with accepted law on criminal liability.
Even though Utley has been convicted of negligent homicide, why he drove over the centerline remains entirely unknown. If under the circumstances, Utley should have been aware of the risk, and his failure to perceive it was a gross deviation from the care a reasonably prudent person would exercise under those circumstances, criminal liability might arise. See, e.g., Hunter v. State, 341 Ark. 665, 19 S.W.3d 607 (2000). However, we don’t know the answer to this question because proof was lacking. We don’t know what Utley perceived. No proof was offered. The State’s argument is simply that there could be no reasonable excuse. The majority agrees. The State argues that “[d]riving requires constant attention, appropriate responsiveness, and reasonable capability.” The facts of Hunter showed that Hunter knew what the road conditions were and still engaged in the affirmative act of pulling out into an oncoming lane to pass a log truck, on a hill, in the rain, despite double yellow lines statutorily prohibiting passing, and despite the fact that the road spray produced by the log truck was so great he could not see. In Hunter, the proof showed that Hunter perceived and disregarded quite a number of dangerous conditions. All we know in the present case is that Utley pulled at least seven feet into the other lane, and we don’t even know if it was an affirmative act. Even assuming it was inattention, mere inattention in driving has never been the basis of criminal liability until now.
The question that the majority opinion prompts is, are there any circumstances under which criminal liability would not arise if a person dies in an accident caused by a person who crosses the centerline? The answer is now “no.” A person who causes the death of another person when he or she crosses the centerline is now strictly liable under the criminal law if the prosecuting attorney chooses to bring a criminal action. While there is ostensibly qualifying language in the majority opinion, that the truck in this case was a garbage truck, characterized as a “large commercial vehicle,” the majority’s analysis will certainly be applied to all vehicles in the near future. This is because the reasoning underlying this opinion is not that the death was caused because a large commercial vehicle was involved but because, as the majority states, “driving on the wrong side of the road presents a substantial and unjustifiable risk that [a person] might hit a car traveling in the opposite direction and kill someone.” Again, I must note, that criminal liability under the negligent homicide statute arises when under the circumstances the person should have been aware of the risk and his or her failure to perceive it was a gross deviation from the care a reasonable, prudent person would exercise under the circumstances. Hunter, supra. There is no such proof in this case.
There is no question that the death of W.R. Purdue is a terrible tragedy, but the death of any person in a motor vehicle accident is a tragedy. The majority concludes that, “[a] person driving a garbage truck around a curve and on a bridge should be aware that driving on the wrong side of the road presents a substantial unjustifiable risk that he might hit a car traveling in the opposite direction and kill someone in that car.” While Utley’s alleged inattention may give rise to liability under the civil law, does it give rise to liability under the criminal law?
What happened to Utley? Did he doze off? Was he changing a CD or the radio? Did his mind wander? All of these acts are certainly acts of negligence, but are they acts of criminal negligence? Are they “a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation,” as required by Ark. Code Ann. § 2-2-202(4) (Repl. 1997)? It would appear not.
Further, in light of a lack of proof of the cause of Utley’s movement into the other lane, there are other possible reasonable hypotheses of the cause of this accident other than a gross deviation from the standard of care by Utley. Was there excessive wear in the front end of the truck that he was unaware of and caused his swerve? Did he hit a pothole that threw him to his left? Was there an object he hit that forced him left?
Defaulting to an alleged failure by Utley to offer a reasonable hypothesis that does not lead to guilt is not proof beyond a reasonable doubt. That turns criminal law on its head, essentially placing Utley in the position of being guilty until he proves himself innocent.
I do not agree with the majority’s conclusion that “[t]he circumstantial evidence in this case is consistent with the hypothesis of guilt, and no reasonable hypothesis to the contrary was either offered by Utley or supported by the evidence.” There is a lack of substantial evidence to support the verdict. I would reverse and dismiss this case. The court of appeals should be affirmed.
See, e.g. McVay v. State, 312 Ark. 73, 847 S.W.2d 28 (1993); Lowe v. State, 264 Ark. 205, 570 S.W.2d 253 (1978); Munn v. State, 257 Ark. 1057, 521 S.W.2d 535 (1975); Rochester v. State, 250 Ark. 758, 467 S.W.2d 182 (1971); Ragsdale v. State, 245 Ark. 296, 432 S.W.2d 11 (1968); Weist v. State, 240 Ark. 680, 401 S.W.2d 565 (1966); Baker v. State, 237 Ark. 862, 376 S.W.2d 673 (1964); Simmerson v. State, 71 Ark.App. 16, 25 S.W.3d 439 (2000); Hatley v. State, 68 Ark.App. 209, 5 S.W.3d 86 (1999); Kenyon v. State, 58 Ark.App. 24, 946 S.W.2d 705 (1997); Tallant v. State, 42 Ark.App. 150, 856 S.W.2d 24 (1993); Courtney v. State, 14 Ark.App. 76, 684 S.W.2d 835 (1985); Phillips v. State, 6 Ark.App. 380, 644 S.W.2d 288 (1982).