State of Iowa v. Kendall Lee Ware ( 2014 )

IN THE COURT OF APPEALS OF IOWA
No. 13-1072
Filed August 13, 2014
STATE OF IOWA,
Plaintiff-Appellee,
vs.
KENDALL LEE WARE,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Audubon County, James M.
Richardson, Judge.
Kendall Ware appeals his conviction for homicide by operating a vehicle
while intoxicated, claiming the district court erred in refusing to instruct on
homicide by vehicle by reckless driving as a lesser included offense.
AFFIRMED.
Mark C. Smith, State Appellate Defender, and Shellie L. Knipfer, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney
General, and Francine O’Brien Andersen, County Attorney, for appellee.
Considered by Potterfield, P.J., and Tabor and Bower, JJ.
2
BOWER, J.
Kendall Lee Ware appeals his conviction for homicide by vehicle by
operating while intoxicated, in violation of Iowa Code sections 321J.2 and
707.6A(1) (2011). Ware claims the district court erred in refusing to instruct on
homicide by vehicle by reckless driving as a lesser included offense. See Iowa
Code §§ 321.277, 707.6A(2)(a). We find homicide by vehicle by reckless driving
is not a lesser included offense of homicide by vehicle by operating while
intoxicated. Accordingly, the district court did not abuse its discretion in refusing
to submit Ware’s requested instruction. We affirm.
I. Background Facts and Proceedings.
On October 19, 2011, just before 11:25 p.m., Ware was involved in a
head-on collision at a curve on Highway 71. The collision resulted in the death of
Kristopher Crawley and serious injury to the driver of Crawley’s car and a
passenger in Ware’s car. Ware was stuck in his seat and rescue personnel had
to extricate him from his vehicle before transporting him to the hospital where he
consented to a blood test. Ware’s blood sample showed an alcohol
concentration of .205.
At trial, an accident reconstructionist testified Ware’s vehicle had crossed
the centerline and caused the collision, consistent with an “impaired or
distracted” driver. Ware claimed he only drank right after the accident, from a
bottle of Gatorade and vodka kept in his vehicle.
A jury found Ware guilty of vehicular homicide by operating while
intoxicated. Ware appeals.
3
II. Scope and Standards of Review.
Challenges to jury instructions are reviewed for errors at law. State v.
Frei, 831 N.W.2d 70, 73 (Iowa 2013). We review Ware’s related claim that the
trial court should have given his requested instruction for an abuse of discretion.
See id.
III. Discussion.
A. Statutory Framework. This case concerns Iowa Code section
707.6A. Originally, the statutory framework provided a class “D” felony occurred
when [a] person unintentionally causes the death of another by
either of the following means:
a. Operating a motor vehicle while under the influence of
alcohol or a drug or a combination of such substances or while
having an alcohol concentration of .10 or more, in violation of
section 321J.2.
b. Driving a motor vehicle in a reckless manner with willful or
wanton disregard for the safety of persons or property, in violation
of section 321.277.
Iowa Code § 707.6A(1)(a), (b) (1987) (emphasis added). As the legislature
amended section 707.6A over the years, it chose to make the penalty for death
caused by operating while intoxicated greater than the penalty for death caused
by driving in a reckless manner, but did not change the “operating” or “driving”
terminology. Compare Iowa Code § 707.6A(1), (2)(a) (2011) with Iowa Code
§ 707.6A(1)(a), (b) (1987); see also State v. Adams, 810 N.W.2d 365, 369 (Iowa
2012) (recognizing a statute does not “overturn long-established legal principles,
unless that intention is clearly expressed or the implication to that effect is
inescapable”). Thus, section 707.6A now provides:
4
(1) A person commits a class “B” felony when the person
unintentionally causes the death of another by operating a motor
vehicle while intoxicated, as prohibited by section 321J.2.[1]
....
(2) A person commits a class “C” felony when the person
unintentionally causes the death of another by . . .
(a) driving a motor vehicle in a reckless manner with willful or
wanton disregard for the safety of persons or property . . . in
violation of section 321.277.[2]
Iowa Code § 707.6A(1), .6A(2)(a) (2011).
B. Merits. Ware claims the district court erred in failing to instruct the jury
that homicide by vehicle by reckless driving is a lesser included offense of
homicide by vehicle by operating while intoxicated. Our supreme court has long
held the paramount consideration in determining whether a crime is a lesser
included offense of a greater crime is the “impossibility test.” State v. Miller, 841
N.W.2d 583, 588 (Iowa 2014). Under the impossibility test, courts determine
whether “the greater offense cannot be committed without also committing all
elements of the lesser offense.” Id. (quoting State v. Coffin, 504 N.W.2d 893,
894 (Iowa 1993)). Subsumed within the impossibility test and “an aid to applying
the impossibility test” is the “elements test”—the “usual method to ascertain
whether it is possible to commit the greater offense without committing the
lesser.” Id. (citing State v. Turecek, 456 N.W.2d 219, 223 (Iowa 1990)). The
elements test states:
1
Iowa Code section 321J.2(1) defines the offense of “operating while intoxicated” as
“operat[ing] a motor vehicle . . . [w]hile under the influence of an alcoholic beverage or
other drug,” “[w]hile having an alcohol concentration of .08 or more,” or “[w]hile any
amount of a controlled substance is present” in the person's blood or urine.
2
Iowa Code section 321.77 defines the offense of “reckless driving” as “[a]ny person
who drives any vehicle in such a manner as to indicate either a willful or a wanton
disregard for the safety of persons or property.”
5
[T]he lesser offense is necessarily included in the greater offense if
it is impossible to commit the greater offense without also
committing the lesser offense. If the lesser offense contains an
element not required for the greater offense, the lesser cannot be
included in the greater. This is because it would be possible in that
situation to commit the greater without also having committed the
lesser.
State v. Jeffries, 430 N.W.2d 728, 740 (Iowa 1988) (emphasis added). In using
this test, we look to the statutory elements rather than to the charge or the
evidence. Id.
[I]n this case, “as in any case, [our] first task is to look at the elements of
the marshaling instructions actually submitted to the jury.” Miller, 841 N.W.2d at
590. “The elements of the crime described in the instruction are then compared
with the statutory elements of the proposed lesser included offense to ‘determine
if the greater offense can be committed without also committing the lesser
offense.’” Id. (quoting State v. Hickman, 623 N.W.2d 847, 850 (Iowa 2001)).
The district court followed model Criminal Jury Instruction 710.13 in
instructing the jury on the elements of homicide by vehicle by operating while
intoxicated, a class “B” felony:
3
Criminal Jury Instruction No. 710.1 provides:
710.1 Homicide By Vehicle (Intoxication)—Elements. The State must
prove both of the following elements of Homicide By Vehicle:
1. On or about the ____ day of ______, 20__, the defendant:
a. operated a motor vehicle while under the influence of
alcohol or a drug or a combination of such substances; or
b. operated a motor vehicle while having an alcohol
concentration of [.08] or more, or
c. operated a motor vehicle while any amount of a
controlled substance was present, as measured in the defendant's
blood or urine.
2. The defendant's act or acts set out in Element 1 unintentionally
caused the death of (victim).
6
(1) On or about the 19th day of October, 2011 in the State of
Iowa, Defendant Kendall Lee Ware:
a. Operated a motor vehicle while under the influence of
alcohol; and/or
b. Operated a motor vehicle while having an alcohol
concentration of .08 or more, and
(2) Defendant Kendall Lee Ware’s act or acts set out in
Element 1 unintentionally caused the death of Kristopher George
Crawley.
(Emphasis added.)
As discussed above, the statutory elements of homicide by vehicle by
reckless driving are: “A person commits a class ‘C’ felony when the person
unintentionally causes the death of another by . . . (a) driving a motor vehicle in a
reckless manner with willful or wanton disregard for the safety of persons or
property . . . in violation of section 321.277.” Iowa Code § 707.6A(2)(a)
(emphasis added).
When the marshaling instruction’s elements herein are juxtaposed with the
statutory elements, the threshold question becomes whether the elements of
“reckless driving” and “operating while intoxicated” share the identity necessary
to make vehicular homicide by reckless driving a lesser included offense of
vehicular homicide by operation while intoxicated. See Miller, 841 N.W.2d at
590. To make this determination, we first must define the meaning of the terms,
“reckless driving” and “operating while intoxicated.” See id. (noting if two terms
If the State has proved both of the elements, the defendant is
guilty of Homicide by Vehicle. If the State has failed to prove either of the
elements, the defendant is not guilty of Homicide by Vehicle (and you will
then consider the charge of __________ as explained in Instruction No.
_____).
7
“have entirely separate meanings” then the one crime “is not a lesser included
offense”).
We find guidance in our supreme court’s resolution, in State v. Massick,
511 N.W.2d 384, 387 (Iowa 1994), on whether reckless driving is a lesser
included offense of operating while intoxicated. The Massick court ruled
“reckless driving” and “operating while intoxicated” are not synonymous, stating:
A comparison of the elements . . . shows that reckless
driving is not a lesser included offense of operating while
intoxicated. Reckless driving requires proof that the defendant
actually drove a vehicle, that is, moved it. In contrast, operating
while intoxicated only requires proof that the defendant operated a
vehicle. Under our law, the two are not synonymous. For example,
one can be convicted of operating while intoxicated without ever
having moved the vehicle. See State v. Webb, 210 N.W. 751, 751-
52 (1926) (operating while intoxicated conviction upheld where
defendant was stopped by police just after starting the car but
before driving down the road).
In addition, reckless driving requires proof of a willful or
wanton disregard for the safety of others or property. This is the
recklessness element. Although driving under the influence is
certainly reckless behavior, proof of recklessness is not an
essential element of operating while intoxicated . . . . As we said,
one can operate a motor vehicle while under the influence of
alcohol without actually moving the vehicle. This obviates the
recklessness element necessary for committing reckless driving
because some movement must occur before recklessness can be
shown. Several other courts have reached the same conclusion,
employing the impossibility and . . . elements test in states having
operating while intoxicated and reckless driving statutes similar to
Iowa’s.
Massick, 511 N.W.2d at 387-88 (citations omitted); see also State v. Hopkins,
576 N.W.2d 374, 377 (Iowa 1998) (“Operating” is a term of art that means “the
immediate, actual physical control over a motor vehicle that is in motion and/or
has its engine running.”); State v. Murray, 539 N.W.2d 369, 369 (Iowa 1995) (“A
person may ‘operate’ a motor vehicle’ without ‘driving’ it.”); State v. Leonard, No.
8
98-968, 1999 WL 668726, at *2 (Iowa Ct. App. Aug. 27, 1999) (holding a
defendant may be convicted of homicide by vehicle by operating while
intoxicated “even if he is acquitted of” homicide by vehicle by reckless driving).
After a review of Massick, “reckless driving is not a lesser included offense
of operating while intoxicated,” therefore homicide by vehicle by reckless driving
is not a lesser included offense of homicide by vehicle by operating while
intoxicated. See Massick, 511 N.W.2d at 387-88. A change in the law, if
desired, is left to the legislature because “it is not the court’s role to reconfigure
the statute.” Adams, 810 N.W.2d at 371.
In conclusion, applying the impossibility test, it is possible to commit the
greater offense of vehicular homicide by operating while intoxicated without
committing the lesser offense of vehicular homicide by reckless driving. As a
result, vehicular homicide by reckless driving is not a lesser included offense of
vehicular homicide by operating while intoxicated. Accordingly, the district court
did not abuse its discretion in refusing to submit Ware’s requested instruction,
and we affirm.
AFFIRMED.
Potterfield, P.J., concurs; Tabor, J., dissents.
9
TABOR, J. (dissenting)
I respectfully dissent. I would reverse Ware’s conviction and remand for a
new trial. In my view, State v. Massick, 511 N.W.2d 384 (Iowa 1994) does not
control the question of lesser included offenses under the homicide by vehicle
statute. I also believe the district court’s refusal to give a lesser included offense
instruction on the reckless driving alternative of homicide by vehicle conflicts with
the causation analysis in State v. Adams, 810 N.W.2d 365 (Iowa 2012).
Massick held reckless driving under Iowa Code section 321.277 is not a
lesser included offense of operating while intoxicated (OWI) under section 321J.2
because a defendant cannot be convicted of reckless driving without proof he or
she actually drove a vehicle, but a defendant can be convicted of OWI without
moving his or her vehicle. 511 N.W.2d at 387. The court also concluded OWI
lacked an element of recklessness because “some movement must occur before
recklessness can be shown.” Id. at 388. In other words, it is possible to commit
OWI without committing reckless driving.
By contrast, it is impossible to commit homicide by vehicle under section
707.6A(1) (unintentionally causing a death by OWI) without also violating section
707.6A(2)(a) (unintentionally causing death by reckless driving). A person
cannot unintentionally cause the death of another by operating a motor vehicle
while intoxicated without moving the vehicle. See Adams, 810 N.W.2d at 371
(holding the State had the burden under section 707.6A(1) to prove a factual
causal connection between “the defendant’s intoxicated driving and the victim’s
death”). It is evident from the following analysis in Adams that our supreme court
10
considers operating to be synonymous with driving under the homicide by vehicle
statute:
Although the statute does not impose a burden on the State
to prove a specific causal connection between the defendant’s
intoxication and the victim’s death, it does require proof of a factual
causal connection between a specific criminal act—“intoxicated
driving”—and the victim’s death. Put another way, the statute
demands more than mere proof that the defendant’s driving caused
the death of another person. A defendant may be found guilty of
homicide by vehicle only if the jury finds beyond a reasonable doubt
that his criminal act of driving under the influence of alcohol caused
the victim’s death.
Id.
Equating the two terms in the vehicular homicide context makes sense
because it would be impossible to cause the death of another by just starting the
engine of the vehicle. The operator must move the vehicle to be the factual
cause of the death. Accordingly, section 707.6A(2)(a) does not require an
element of driving beyond that required in section 707.6A(1).
Having determined that driving is an element of both offenses, the only
remaining question is whether the element of recklessness is necessarily
included in the crime of causing death by OWI. Our case law reveals that it is. In
State v. McQuillen, 420 N.W.2d 488, 489 (Iowa Ct. App. 1988), we held the trial
court was not required to submit a separate instruction on recklessness in an
involuntary manslaughter and OWI prosecution because “drunk driving is itself a
reckless act.” McQuillen relied on State v. Wullner, 401 N.W.2d 214, 217 (Iowa
Ct. App. 1986), where we said it would be “patently absurd and generally
redundant” to require the State to prove recklessness “independent of the drunk
driving.” Under McQuillen and Wullner, drunken driving is a per se act of
11
recklessness. See State v. Rohm, 609 N.W.2d 504, 513 (Iowa 2000) (“[W]hen
the activity or conduct itself constitutes recklessness, the necessity of proof of
recklessness is eliminated”). It would logically follow that unintentionally causing
the death of another by driving with willful or wanton disregard for the safety of
persons or property—which did not include operating in violation of section
321J.2—would be a lesser included offense of section 707.6A(1).
Because section 707.6A(2)(a) does not require proof of any elements that
are not included in section 707.6A(1), and section 707.6A(1) requires proof of the
additional element of the driver being under the influence of intoxicants or having
a blood alcohol content of more than .08, section 707.6A(2)(a) is a lesser
included offense of section 707.6A(1). Ware’s jury should have received his
requested instruction on the reckless driving alternative of homicide by vehicle.
Based on the evidence in the record, I would not find this instructional
error to be harmless. In this case, if given an instruction on the recklessness
alternative, it is plausible the jury would have reached a different verdict. See
State v. Turecek, 456 N.W.2d 219, 222 (Iowa 1990).