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STATE v. ORTIZ1/5/1993
161, we approved of a jury instruction that required that "` hen as here there is some evidence from which you might conclude that the vehicular accident was caused by some factors, other than
the defendant's intoxication, the state must prove to you beyond a reasonable doubt that none of these factors could have caused the accident.'" (Emphasis added.) The defendant, however, misreads our approval of that language. The quoted language was referred to in that portion of State v. Kwaak, supra, wherein we considered a challenge to the trial court's instruction on reasonable doubt. The trial court had improperly instructed the jury that "the evidence must exclude all other reasonable probabilities as to the cause of the vehicular accident other that the alleged intoxication of the defendant." (Emphasis added.) Notwithstanding this erroneous instruction, we concluded that the court's charge, when taken as a whole, did not impermissibly dilute the state's burden of proof. The improper use of the word "probabilities" instead of "possibilities" was deemed to be harmless in the context of the charge as a whole, in part because the court had correspondingly increased the state's burden of proof in stating that "`the state must prove to you beyond a reasonable doubt that none of these [other, nonculpable] factors could have caused the accident.'" Id., 161. Consequently, we do not read this portion of the Kwaak decision to affect in any way the well settled principle, stated elsewhere in the Kwaak decision, that "the causation element requires that the state prove beyond a reasonable doubt, first that the death of a person would not have occurred `but for' the defendant's [culpable conduct], and second, that the defendant's [conduct] substantially and materially contributed to the death of a person in a natural and continuous sequence, unbroken by an efficient, intervening cause." (Emphasis added.) Id., 146.
Accordingly, we conclude that the trial court properly instructed the jury on all aspects of the concept of proximate cause.
The judgment is affirmed.
In this opinion the other judges concurred.
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