dissenting.
I respectfully dissent. The State prosecuted Rollins for manslaughter, argued his conduct was reckless, and then offered evidence to prove that Rollins was negligent. The jury verdict of two convictions for manslaughter is unsupported by substantial evidence, and the circuit court erred in submitting the issue of | ^manslaughter to the jury. The jury was left to speculation and conjecture.1 The evidence does support the lesser-included offense of negligent homicide. Accordingly, I would affirm the judgment of the court of appeals, modify the judgment to two convictions for negligent homicide, and sentence Rollins to the maximum allowed on both convictions.
The evidence the State offered was that Rollins was driving too fast and looked over his right shoulder about the time he approached a curve. The State also showed that through his inattention in looking back, Rollins crossed the double yellow line, veered into the lane of oncoming traffic, and struck the victims’ car. This all constitutes evidence of negligence. However, the State’s strategy at trial was to argue that the evidence of negligent conduct could satisfy the requirements of reckless conduct. This is apparent from the State’s argument despite the State peppering its argument with the word “consciously.” The State argued that Rollins “consciously disregarded the rules of the road” when he failed to make himself conscious of the conditions of the road in that he looked over his shoulder instead of keeping his eye on the road. According to the State, this caused him to cross a double yellow line in the curve and drive “entirely” on the wrong side of the road. Although the State couched its argument in terms of “conscious disregard,” nothing offered showed that Rollins consciously 1¶ (¡decided to look away from the road, consciously decided to drive in the wrong lane on a curve, and consciously decided to remain in that wrong lane. The State in summary argued that Rollins consciously disregarded a perceived risk when he failed to abide by “basic driver safety” and when he failed to “be aware of the conditions” under which he was driving. According to the State, “all he had to do was stay on his side of the road,” and in failing to do so, he was reckless. Thus, while characterizing the conduct as reckless, the State actually argues that Rollins was criminally negligent, that he should have been aware of the attendant circumstances, that he should have been aware of a substantial and unjustifiable risk, and that his failure to perceive the risk involves a gross deviation from the standard of care that a reasonable person would observe. See Ark.Code Ann. § 5-2-202 (Repl.2006). The State even argued that Rollins violated his “standard of care,” which again reveals the State was arguing negligence. The evidence the State offered showed that Rollins exercised very poor judgment in taking his eyes from the road. That is negligence, either civil, or criminal, if the burden of proof can be met. There is no support in the evidence to show that Rollins consciously disregarded a substantial and unjustifiable risk with the knowledge of probable harmful consequences of a wrongful act, or that his conduct was a willful and deliberate failure to act to avoid the consequences. These are the requirements to prove reckless conduct. See Ark.Code Ann. § 5-2-202 (Repl.2006).
The State further argued Rollins might have been impaired by the drugs, but admitted it “did not know how that might affect you.” Rollins’s blood test showed that Rollins was | l7not intoxicated, and the State chose not to put on an expert to testify about whether the level of cocaine in Rollins’s blood could have impaired his driving. As the court of appeals concluded, on this record, the issue of driving under the influence was a closed question. Rollins v. State, 2009 ArkApp. 110, 302 S.W.3d 617, 619. The State chose not to pursue the question.
The accident and death of the elderly victims was horribly tragic. However, despite the tragedy, at best, the evidence the State offered shows that Rollins unintentionally veered into oncoming traffic when he failed to watch the road. There is no evidence that he consciously drove on the wrong side of the road. There is no evidence of a conscious disregard of a perceived risk. I do note the testimony by Mr. and Mrs. Williams. Both testified that Rollins was driving erratically, in that he tailgated them for about fifteen miles prior to Williams pulling over to force Rollins to go by. While tailgating is hardly safe or appropriate behavior, it casts little if any light on whether Rollins consciously crossed the double yellow line, consciously drove in the oncoming lane on a curve, and consciously decided to remain in the wrong lane.
The majority errs in relying on Iioyle v. State, 371 Ark. 495, 268 S.W.3d 313 (2008), because Holye was intoxicated. He was driving an eighteen-wheeler. Prior to the accident causing a death, Hoyle almost ran a truck off the road. Expert testimony at trial showed that Hoyle had .221 micrograms methamphetamine per milliliter that without doubt affected his driving. Hoyle, 371 Ark. at 501, 268 S.W.3d at 319.
lisOther appeals from cases discussing criminally reckless conduct involve conscious conduct similar to Hoyle. In Prunty v. State, 271 Ark. 77, 607 S.W.2d 374 (1980) (manslaughter conviction), the appellant was drunk. He was observed driving erratically by weaving, passing cars in no-passing zones, and running cars off the road. In a chase with police, appellant exceeded 100 miles per hour. In a curve, appellant was in the wrong lane and struck an oncoming car. A person in that car died. In McGill v. State, 60 Ark.App. 246, 962 S.W.2d 382 (1998) (delinquency finding based on reckless conduct; criminal mischief in the first degree), McGill fishtailed the car as he drove around a corner so that he lost control of the car in the conscious disregard of the risk of a wreck, leading to the accident. The decision to fishtail was a conscious decision, leading to the accident. In Booth v. State, 26 Ark. App. 115, 761 S.W.2d 607 (1989) (manslaughter conviction), appellant was driving an eighteen-wheeler. Again, the appellant chose to drive while intoxicated. He began drinking in a bar in the mid-afternoon, and he became so intoxicated that the management of the bar refused to sell him any more alcohol. That evening, he went to another bar, and upon his return to the former bar an hour and one-half later, he was more intoxicated than before. He remained at the bar until it closed and then started off, despite being offered a place to stay and being asked not to drive. He struck another car and killed a person. In Clark v. State, 15 ArkApp. 393, 695 S.W.2d 396 (1985) (manslaughter conviction), appellant and his drinking buddy got so drunk that appellant passed out. Upon waking up, appellant thought there was an intruder in his yard. He retrieved a pistol and shot and killed his drinking buddy. In Smith v. State, 3 ArkApp. 224, 623 S.W.2d 862 (1981) (manslaughter conviction), appellant was drunk and | ^driving. She was speeding, lost control in a curve, accelerated to scare her passenger, and hit a bump or pothole that made her lose control of the car. In the process, appellant hit and killed a pedestrian.
In each of the above-cited cases, there was conscious conduct. In McGill, the minor consciously chose to fishtail the car. The remaining cases involve manslaughter convictions, and in each there was a conscious decision to drink and drive. None of these cases are comparable to Rollins, who the State proved looked away from the road coming into a curve, veered into oncoming traffic, and hit the victims’ car, killing them both. No proof was offered to show that Rollins’s conduct was anything other than negligent. We have no idea why Rollins looked back. He veered off into the oncoming traffic just before the accident occurred. Had he been driving in the wrong lane over some distance, the argument that his conduct was a conscious disregard would be more convincing. The natural inference from the facts is that Rollins looked back and did not realize he was slipping into the wrong lane. The conduct is hardly laudable, but the evidence offered rises only to negligence of some form. The State failed in proving Rollins consciously disregarded a substantial and unjustifiable risk that the attendant result would occur.
This court should rely on Hunter v. State, 341 Ark. 665, 19 S.W.3d 607 (2000). Hunter was not intoxicated and caused the death of three people in a head-on collision while in the wrong lane. In Hunter, this court affirmed a conviction for negligent homicide where Hunter knew the road, knew the double yellow line meant he was not allowed to pass, knew his |2nvision was obscured by mist and spray from rain, and yet decided to pass on a hill where he knew it was unsafe. He collided with a car that came over the crest of the hill and killed three people. The court affirmed the denial of the directed-verdict motion, holding that the proof supported the allegation of a gross deviation from the standard of care that a reasonable person would observe in the situation. Hunter, 341 Ark. at 669, 19 S.W.3d at 610 (quoting Ark.Code Ann. § 5-2-202(4) (Repl.1997)). The court stated as follows on the issue of negligent and reckless conduct:
In the commentary to the above section, it is noted that negligent conduct is distinguished from reckless conduct primarily in that it does not involve the conscious disregard of a perceived risk. In order to be held to have acted negligently under § 5-10-105, it is not necessary that the actor be fully aware of a perceived risk and recklessly disregard it. It requires only a finding that under the circumstances he should have been aware of it and his failure to perceive it was a gross deviation from the care a reasonable, prudent person would exercise under those circumstances. Hunter, 341 Ark. at 668, 19 S.W.3d at 609 (citing Phillips v. State, 6 Ark.App. 380, 382, 644 S.W.2d 288, 289 (1982)). The conduct in Hunter is far more intentional than what the proof shows in the present case, and that conduct was held to be criminally negligent. The majority rewrites the statute and judicially creates criminal liability for manslaughter contrary to the elements of the crime set out in the statutes enacted by the General Assembly.
While it is clear to me that the State failed to provide substantial evidence to support the jury’s decision on manslaughter, it is also clear that the State provided substantial evidence to prove the lesser-included offense of negligent homicide. I agree with the court of appeals that pursuant to Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977), we should modify the | ⅞1 judgments of conviction to the lesser-included offenses of negligent homicide under Arkansas Code Annotated section 5-10 — 105(b)(1) (Repl.2006) and set the sentence at the maximum allowed by law for negligent homicide.
. The majority takes exception to the dissent stating that there is a failure to explain how all the evidence offered "could not have been evidence from which the jury could conclude that Rollins acted recklessly.” This misses the point. The judge failed to act as gatekeeper and allowed the jury to decide the question of whether Rollins was reckless when there was a lack of substantial evidence from which the jury could draw that conclusion. The circuit court erred in instructing the jury on manslaughter. The jury was left to speculation and conjecture.