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Abney v. State

Court: Indiana Supreme Court
Date filed: 2002-04-26
Citations: 766 N.E.2d 1175
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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.