dissenting. The decision this Court issued on December 14, 1999, upholding defendant’s conviction was supported by a single fact. We stated that “the State’s evidence showed that defendant had an unobstructed view of Cataldo for almost 1200 feet, or for a minimum of 20 seconds, during daylight hours.” State v. Koch, 98-416, slip op. at 2 (Vt. Dec. 14, 1999) (mem.). Based on this fact alone, we concluded that the evidence supported defendant’s conviction for grossly negligent operation of a motor vehicle. In his motion to reargue, defendant points out that the single fact upon which we relied is incorrect. The majority corrects the factual error but still holds that the evidence supports the conviction. In my view, the factual correction requires a reversal of defendant’s conviction. I therefore dissent.
Contrary to our decision in December 1999, the State’s evidence did not show that defendant had an unobstructed view of Cataldo for 1200 feet or for twenty seconds. Rather, the State’s evidence showed that defendant had an unobstructed view of Cataldo for about 5.4 seconds. No evidence placed Cataldo at the side of the road for any longer than 5.4 seconds. So the issue is whether inattention for 5.4 seconds while traveling on a 1200-foot straightaway at five-to-ten miles per hour under the speed limit is gross negligence. Our precedent does not support the majority’s conclusion that this evidence is sufficient to support a conviction for grossly negligent operation of a motor vehicle.
In its original entry order, the majority relied on State v. Devine, 168 Vt. 566, 719 A.2d 861 (1998). In Devine, the defendant drove his car across the double yellow center line and collided with the vehicle traveling in the opposite direction, killing the driver. The evidence viewed in the light most favorable to the State showed that (1) the defendant had had little opportunity for sleep during the several days before the accident, (2) he had been consuming alcohol and smoking marijuana during this period, (3) he had had trouble staying awake on the day of the accident and had fallen asleep in his car earlier in the day, (4) the road was dry and it was a clear day with good visibility, (5) the defendant was driving in excess of the speed limit, (6) he drove across the double yellow line across two lanes of oncoming traffic into the victim’s car without any attempt to slow down or turn away, and (7) after the accident, he did not realize that he had hit another car. See id. at 567, 719 A.2d at 863. Based on this evidence, we upheld the conviction, relying on cases involving alcohol consumption, lack of sleep, and driving in excess of the speed limit. None of these factors is present in this case.
In this case, the evidence showed that (1) defendant was traveling below the speed limit, (2) the driver of the vehicle behind defendant did not notice defendant driving erratically or swerving, (3) nor did this driver see the victim standing at the side of the road, (4) the day was overcast and parts of the road were wet because it had been raining, (5) there was no evidence that defendant was under the influence of drugs or alcohol, and (6) defendant was aware that he had hit the victim and stopped after the accident. The only evidence to support the conviction is that defendant must have been inattentive for 5.4 seconds to have failed to observe the victim at the side of road. Devine is not analogous to this case.
More recently, we decided State v. Free, 170 Vt. 605, 749 A.2d 622 (2000) (mem.). In Free, we affirmed the trial court’s decision dismissing the charge of grossly negligent operation of a motor vehicle because the facts could not support a finding of gross negligence. See id *519at 605, 749 A.2d at 623. The evidence in Free showed that the defendant was traveling at ten to fifteen miles per hour during daylight hours when he entered the intersection of Main Street and Morgan Street in Bennington. The defendant turned onto Morgan Street, but failed to notice a pedestrian in the well-marked crosswalk, although the accident reconstructionist testified that the pedestrian had been in the crosswalk for four to five seconds before the defendant hit him. We held that the defendant’s inattention to a pedestrian for a mere three to four seconds — as he must have spent one to two seconds of the total five seconds observing the traffic flow — “indicates, at best, a mere error in judgment, loss of presence of mind, or momentary inattention.” Id. at 608, 749 A.2d at 625. Such brief inattention, we concluded, was not sufficient to support a conviction for gross negligence. See id.
This case is like Free because the only evidence to support the conviction is inattention to a pedestrian for 5.4 seconds. Indeed, this case presents a stronger argument than Free because defendant’s inattention to the pedestrian for 5.4 seconds was on a 1200-foot straightaway in the road, whereas, in Free, the defendant’s inattention to the pedestrian for five seconds was in a well-marked crosswalk. “It is one thing to say that a few seconds of inattention is not gross negligence as a matter of law when a driver is proceeding along a straight, dry road during the day; it is quite another to say so, when the driver is turning across a pedestrian crosswalk.” Id. at 608, 749 A.2d at 626 (Dooley, J., dissenting).
The majority’s decision in this case is irreconcilable with Free. It is also contrary to the cases in other jurisdictions upon which we relied in Free. See, e.g., Plummer v. State, 702 A.2d 453, 465 (Md. Ct. Spec. App. 1997) (conviction for gross negligence reversed where evidence showed defendant was briefly inattentive, drifted onto shoulder of road and killed pedestrian); People v. Maloof, 678 N.Y.S.2d 175, 176 (App. Div. 1998) (reversing conviction for gross negligence where evidence showed defendant failed to see pedestrians and drifted onto shoulder of road, hitting two pedestrians and killing one of them). If five seconds of inattention to a pedestrian in a well-marked crosswalk is not gross negligence, then 5.4 seconds of inattention to a pedestrian on a 1200-foot straightaway is not gross negligence. I respectfully dissent.