Tonya Arlene Hightower v. The State of Wyoming ( 2020 )

IN THE SUPREME COURT, STATE OF WYOMING
2020 WY 152OCTOBER TERM, A.D. 2020
December 16, 2020
TONYA ARLENE HIGHTOWER,
Appellant
(Defendant),
v. S-20-0060
THE STATE OF WYOMING,
Appellee
(Plaintiff).
Appeal from the District Court of Albany County
The Honorable Tori R.A. Kricken, Judge
Representing Appellant:
Office of the State Public Defender: Diane M. Lozano, Wyoming Public Defender;
Kirk Allan Morgan, Chief Appellate Counsel; David E. Westling, Senior Assistant
Appellate Counsel. Argument by Mr. Westling.
Representing Appellee:
Bridget L. Hill, Wyoming Attorney General; Jenny L. Craig, Deputy Attorney
General; Joshua C. Eames, Senior Assistant Attorney General; Kellsie J. Singleton,
Assistant General. Argument by Ms. Singleton.
Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne,
Wyoming 82002, of any typographical or other formal errors so that correction may be made before
final publication in the permanent volume.
BOOMGAARDEN, Justice.
[¶1] Tonya Hightower, a professional semi-trailer truck driver, was involved in a
highway collision that resulted in a fatality. Ms. Hightower was subsequently tried by a
jury and convicted of aggravated homicide by vehicle under Wyo. Stat. Ann. § 6-2-
106(b)(ii). On appeal, Ms. Hightower contends the district court erred in denying her
motion for judgment of acquittal because the evidence presented at trial was insufficient to
show she acted recklessly. We agree and reverse.
ISSUE
[¶2] The dispositive issue is:
Was the evidence sufficient for the jury to conclude, beyond a
reasonable doubt, that Ms. Hightower acted recklessly?
FACTS
[¶3] The State charged Ms. Hightower with one count of aggravated homicide by
vehicle. The information stated that “Defendant operated or drove a vehicle in a reckless
manner, and Defendant’s conduct is the proximate cause of the death of another person, in
violation of Wyoming Statute § 6-2-106(b)(ii)[.]” During a three day jury trial, the State
theorized that Ms. Hightower fell asleep behind the wheel. It argued she acted in a reckless
manner by consciously disregarding fatigue and presented evidence in accordance with this
theory.
[¶4] The bulk of the State’s evidence at trial came from the testimony of two Wyoming
State Troopers. Trooper Dustin Ragon, who was first on the scene, has training and
experience in law enforcement, crash investigation, and commercial carriers including
logbooks, electronic logging devices, and commercial driver regulations. Trooper Tyler
Matheney, who also responded to the scene and investigated the crash, testified as an expert
witness in crash reconstruction.
[¶5] Accepting the State’s evidence as true, the facts established at trial are as follows.
Ms. Hightower was a professional semi-trailer truck driver with 22 years of experience.
Ms. Hightower and her husband were team drivers, which meant they alternated driving
the truck, “one sleeps, one drives.”
[¶6] On March 21, 2018, Ms. Hightower was driving westbound on I-80 between
Cheyenne and Laramie when her truck struck a sedan and killed the driver, Mr. Vidal
Madera, who was on his way to work.
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[¶7] Tread marks at the scene showed Ms. Hightower’s truck veered left out of the
westbound lane, crossed the median, and rolled over two sets of rumble strips before it
entered the eastbound lanes and struck Mr. Madera’s sedan. Trooper Matheney testified
Ms. Hightower drove in the median for “a little more than seven seconds” before entering
the eastbound lanes. The final resting place of the truck indicated it had continued across
the eastbound lanes, over another rumble strip, up an embankment and through a fence
before it came to rest on a small pile of rocks. Trooper Matheney said the evidence showed
the truck came to an “uncontrolled rest,” meaning it “came to rest [] unintentionally.”
Trooper Ragon testified the tread marks were over two football fields long and they showed
no indication of braking, sliding or harsh steering. Trooper Matheney also testified the
tread marks indicated the tires “freely” rolled the entire time—there was no skidding or
sliding and “minimal, if any, steering input[.]”
[¶8] When Trooper Ragon arrived on the scene, he found the Hightowers inside their
truck. Ms. Hightower had been driving, Mr. Hightower was in the sleeper berth. Trooper
Ragon asked “Why did you hit that car?” Ms. Hightower responded “I hit a car?” He
testified she did not seem impaired—she did seem to be in shock, but said she was okay.
Trooper Ragon testified Ms. Hightower did not know what had happened, she said she
“just remembered fighting for the steering wheel.” He asked if she had possibly fallen
asleep and she said “she didn’t think that she fell asleep.”
[¶9] Ms. Hightower was transported to the hospital where she told Trooper Ragon she
had taken a hydrocodone and a promethazine nausea pill. Trooper Matheney also testified
Ms. Hightower told him she took these medications, and she said she took them after the
crash. Ms. Hightower consented to a blood draw 1 at the hospital, and two separate tests
came back negative for any controlled substances.
[¶10] Trooper Ragon requested the Hightowers’ driving logbooks for the previous 8 days.
Ms. Hightower’s logs showed she began driving at about 11 p.m. the night before the
collision. She drove for about 1 hour and 41 minutes, entered the sleeper berth for 1 hour
and 22 minutes, drove again for about another hour and then entered the sleeper berth again
for 2 hours and 2 minutes. Ms. Hightower had been driving again for 11 minutes when the
crash occurred. Trooper Ragon also testified he found potential logbook violations from
the days before the collision where Ms. Hightower’s and Mr. Hightower’s logs did not
match. 2
1
When asked about his decision to test Ms. Hightower’s blood rather than her urine, Trooper Ragon
testified, “[i]n urine you can find prior use, but in blood you find, like, impairment and current use.”
2
Because the Hightowers are “team drivers” their logbooks should be complementary. That is, when one
is driving, the other must be either “on duty not driving status” or “sleeper berth” and cannot be “off duty”.
In the days before the collision, the logs showed Ms. Hightower was reporting herself “off duty” while Mr.
Hightower’s logs showed he was driving.
2
[¶11] Additionally, the evidence showed the road conditions were clear and despite some
snow in the median and on the roadsides, weather was not suspected to be a contributing
factor to the crash. The crash investigation concluded there was no malfunction of Ms.
Hightower’s truck that contributed to the crash. And, prior to the crash, Ms. Hightower
was driving with her cruise control set below the posted speed limit.
[¶12] After the jury heard this evidence, Ms. Hightower moved for judgment of acquittal
arguing the evidence was too uncertain to show she acted recklessly. The court denied the
motion and gave the case to the jury who found Ms. Hightower guilty. Ms. Hightower was
sentenced to 10-20 years in prison.
STANDARD OF REVIEW
[¶13] “[T]he standard of review for a denial of a motion for judgment of acquittal is the
same as that used when an appeal claims insufficient evidence to convict because both
challenge the sufficiency of the evidence.” Kuebel v. State, 2019 WY 75, ¶ 26, 446 P.3d
179, 187 (Wyo. 2019) (citing Foltz v. State, 2017 WY 155, ¶ 10, 407 P.3d 398, 401 (Wyo.
2017)). When applying this standard, “[w]e ‘accept as true the State’s evidence and all
reasonable inferences which can be drawn from it.’” Id. ¶ 27, 446 P.3d at 187 (quoting
Hyatt v. State, 2018 WY 84, ¶ 10, 422 P.3d 524, 527–28 (Wyo. 2018)). We simply
determine “whether any rational trier of fact could have found that the essential elements
of a charged crime were proven beyond a reasonable doubt on the evidence presented.”
Morones v. State, 2020 WY 85, ¶ 8, 466 P.3d 300, 303 (Wyo. 2020) (quoting Gonzalez-
Chavarria v. State, 2019 WY 100, ¶ 22, 449 P.3d 1094, 1099 (Wyo. 2019)).
DISCUSSION
[¶14] Ms. Hightower was convicted of aggravated homicide by vehicle. The applicable
statute states:
(b) A person is guilty of aggravated homicide by vehicle and
shall be punished by imprisonment in the penitentiary for not
more than twenty (20) years, if:
***
(ii) [She] operates or drives a vehicle in a reckless manner, and
[her] conduct is the proximate cause of the death of another
person.
Wyo. Stat. Ann. § 6-2-106(b)(ii) (LexisNexis 2019).
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[¶15] Ms. Hightower argues the State failed to present sufficient evidence to prove she
acted in a reckless manner. See id. According to Wyoming’s Criminal Code:
A person acts recklessly when [s]he consciously disregards a
substantial and unjustifiable risk that the harm [s]he is accused
of causing will occur, and the harm results. The risk shall be
of such nature and degree that disregarding it constitutes a
gross deviation from the standard of conduct that a reasonable
person would observe in the situation[.]
Wyo. Stat. Ann. § 6-1-104(a)(ix) (LexisNexis 2019). “We have held that this definition
applies to aggravated vehicular homicide cases.” Barrowes v. State, 2017 WY 23, ¶ 17,
390 P.3d 1126, 1128 (Wyo. 2017) (citing Breazeale v. State, 2011 WY 10, ¶ 15, 245 P.3d
834, 839–40 (Wyo. 2011)).
[¶16] The State thus had to prove beyond a reasonable doubt that Ms. Hightower acted
recklessly—that she consciously disregarded a substantial and unjustifiable risk that her
driving would cause the death of another. See Hereford v. State, 2015 WY 17, ¶ 14, 342
P.3d 1201, 1204 (Wyo. 2015); Wyo. Stat. Ann. §§ 6-2-106(b)(ii), 6-1-104(a)(ix);
Barrowes, ¶¶ 27–30, 390 P.3d at 1131. Only upon the State’s satisfaction of this burden
could the jury reasonably conclude Ms. Hightower was guilty.
[¶17] In Barrowes we recognized the difficulty of determining recklessness in these types
of cases and stated that such a determination “depends upon the facts of each case.”
Barrowes, ¶ 29, 390 P.3d at 1131. Mr. Barrowes, also a professional semi-trailer truck
driver, was convicted of aggravated vehicular homicide after he struck and killed a man
whose vehicle was broken down on the roadside. Id. ¶¶ 8–9, 390 P.3d at 1127. Though
we acknowledged “[t]he jury could have gone either way,” id. ¶ 30, 390 P.3d at 1131, we
ultimately determined the evidence was sufficient to support the jury’s conclusion that Mr.
Barrowes acted recklessly because he admitted he consciously disregarded his fatigue and
fell asleep while driving. Id. ¶ 27, 390 P.3d at 1127. This case is different.
[¶18] Ms. Hightower never admitted she was fatigued, let alone that she consciously
disregarded any fatigue. Trooper Ragon testified that, immediately following the crash,
“she didn’t think that she fell asleep.” The State therefore relies on the following evidence
and testimony to support Ms. Hightower’s conviction: evidence regarding hydrocodone
and promethazine; Ms. Hightower’s potential logbook violations in the days before the
collision; Ms. Hightower’s short resting patterns immediately before the collision; the tire
tread evidence indicating a lack of steering and braking despite the length of time and
distance Ms. Hightower’s truck traveled after it left the westbound lanes; and the fact that
immediately after the crash, Ms. Hightower was unaware she had hit a car. The State
claims the jury could “reasonably conclude [Ms.] Hightower was aware of her fatigue and
4
the risk associated with driving while drowsy and chose to drive anyway” by drawing
reasonable inferences from this evidence.
[¶19] Given the State’s reliance on inference, “we must guard against a conviction
obtained by adding inference to inference.” Seeley v. State, 959 P.2d 170, 175–76 (Wyo.
1998) (citation omitted). Where a conviction is procured in part on inference, such
“inferences must be based on more than speculation and conjecture[.]” Id. (citation
omitted). The State must establish more than a mere suspicion of guilt. See Virgilio v.
State, 834 P.2d 1125, 1134 (Wyo. 1992) (citations omitted); United States v. Chatman, 952
F.3d 1211, 1214 (10th Cir. 2020).
[¶20] The Tenth Circuit Court of Appeals has explained,
[t]he line between a reasonable inference that may permissibly
be drawn by a jury from basic facts in evidence and an
impermissible speculation is not drawn by judicial
idiosyncracies. The line is drawn by the laws of logic. If there
is an experience of logical probability that an ultimate fact will
follow a stated narrative or historical fact, then the jury is given
the opportunity to draw a conclusion because there is a
reasonable probability that the conclusion flows from the
proven facts.
Sunward Corp. v. Dun & Bradstreet, Inc., 811 F.2d 511, 521 (10th Cir. 1987) (citations
omitted).
The rule that prohibits the stacking of inference upon inference
merely indicates that at some point along a rational continuum,
inferences may become so attenuated from underlying
evidence as to cast doubt on the trier of fact’s ultimate
conclusion. In other words, “the chance of error or speculation
increases in proportion to the width of the gap between
underlying fact and ultimate conclusion where the gap is
bridged by a succession of inferences, each based upon the
preceding one.”
United States v. Summers, 414 F.3d 1287, 1295 (10th Cir. 2005) (quoting United States v.
Shahane, 517 F.2d 1173, 1178 (8th Cir. 1975)).
[¶21] Our analysis thus begins where the State’s evidence leaves off. The critical question
is whether the jury could draw permissible inferences to bridge the wide gap between the
evidence the State presented and its ultimate conclusion that Ms. Hightower was fatigued
5
and consciously disregarded her fatigue. See id. We conclude the jury could not
permissibly bridge that gap. Too much doubt clouds its conclusion.
[¶22] We first consider the State’s evidence concerning the hydrocodone and
promethazine. Trooper Ragon testified that when he arrived at the accident site Ms.
Hightower did not seem impaired. Both troopers testified Ms. Hightower told them she
took the medications. Trooper Matheney testified Ms. Hightower told him she took them
after the crash. However, blood tests taken following the accident showed no presence of
controlled substances. To infer from this evidence that she was lying about when she took
the medication, and to use that inference to further infer Ms. Hightower actually took the
medications before the crash, and then on the basis of that inference further infer she
consciously disregarded the side effects of those drugs and chose to drive anyway, would
illogically require the jury to disregard direct evidence that Ms. Hightower was not
impaired and instead base its conclusion on conjecture and speculation. 3 This succession
of attenuated inferences offers no reasonable probability that the jury’s conclusion derived
from the proven facts.
[¶23] Considering the possible, prior logbook violations, the State argues it could not say
with certainty whether Ms. Hightower was within her legally allowed driving hours 4 when
the accident occurred. Notably, however, the State fails to further explain how the jury
could infer from this evidence that Ms. Hightower consciously disregarded fatigue. As the
State’s argument is grounded in uncertainty, any explanation it might provide would also
be grounded in conjecture. The absence of any logical probability that the jury could
conclude Ms. Hightower consciously disregarded her fatigue because of possible, prior
logbook violations is obvious.
[¶24] Evidence that Ms. Hightower failed to steer and brake both before and after striking
Mr. Madera’s sedan, coupled with her lack of knowledge of what happened may support a
reasonable inference she fell asleep, but it does not support the jury’s conclusion that Ms.
Hightower acted recklessly. Neither Trooper Ragon nor Trooper Matheney testified Ms.
Hightower ever suggested she was fatigued or not well-rested. To the contrary, Ms.
Hightower had just returned from a break. Immediately after the accident she told Trooper
Ragon she did not think she fell asleep. Thus, to bridge the gap between a reasonable
inference Ms. Hightower fell asleep at the wheel and the necessary ultimate conclusion that
she consciously disregarded her fatigue, the State relies on Ms. Hightower’s short resting
patterns immediately preceding the collision; testimony from Trooper Matheney that those
patterns were inconsistent with industry norms; and testimony from Trooper Ragon that
based on his training and experience, such patterns were uncommon for commercial drivers
and indicated “possible fatigue or tiredness.” This evidence is largely speculative and
3
“Guesswork cannot be substituted for evidence or inference, for ‘an inference is the conclusion drawn on
reason from premises established by proof. In a sense, it is the thing proved. Guesswork is not.’” Wright
v. Conway, 34 Wyo. 1, 242 P. 1107, 1110 (Wyo. 1926) (citation omitted).
4
Federal regulations limit how many hours a professional truck driver can drive.
6
cannot bridge the wide gap between falling asleep and knowing you are fatigued but
choosing to drive anyway. Though Ms. Hightower’s resting patterns may have been
uncommon and could indicate “fatigue or tiredness,” they could just as possibly indicate
she was alert following her rest. Because recklessness under Wyo. Stat. Ann. § 6-1-
104(a)(ix) does not logically spring from the State’s evidence or the inference Ms.
Hightower fell asleep at the wheel, the State established a mere suspicion of Ms.
Hightower’s guilt.
CONCLUSION
[¶25] The district court erred in denying Ms. Hightower’s motion for judgment of
acquittal because the State’s evidence, taken as true, was insufficient for the jury to
conclude beyond a reasonable doubt that she acted recklessly. Ms. Hightower’s aggravated
homicide by vehicle conviction cannot stand on the inferences on which the State relied.
We therefore reverse her conviction.
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