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Felske v. State9/12/1985
The primary issue in this case is whether the State must establish the voluntary driving of the vehicle and the voluntary consumption of alcoholic beverages in prosecuting a charge of aggravated vehicular homicide under § 31-5-1117(a), W.S. 1977, 1982 Cum.Supp. The constitutionality of the statute also is attacked for reasons similar to those argued in Armijo v. State, Wyo., 678 P.2d 864 (1984), and Hodgins v. State, Wyo., (No. 83-143 decided 9/11/85). We affirm the judgment of the district court because the constitutionality of the statute has been established in Armijo v. State and Hodgins v. State, and because the State did not fail to meet its burden of establishing the elements of the offense.
Appellant stated the issues on appeal in his brief as:
"I. Whether the statute under which the appellant was charged, W.S. § 31-5-1117(a), 1982 Wyo. Sess. Laws, Ch. 50, § 1, is unconstitutional.
"II. Whether the evidence presented by the State established beyond a reasonable doubt the appellant was guilty of Aggravated Homicide by Vehicle."
Appellant stated the second issue more concretely in his supplemental brief. Relying on language in Armijo v. State, he contends that the State must prove that the consumption of intoxicating beverages and the operation of the vehicle were voluntary and that the State failed to carry its burden.
By information filed July 23, 1982, appellant was charged with two counts of aggravated vehicular homicide in violation of § 31-5-1117(a), W.S. 1977, 1982 Cum.Supp. Appellant pled not guilty to both counts.
A bench trial was held on May 18, 1983, and upon stipulation of counsel, the trial judge dismissed one of the counts. The trial court found appellant guilty of the remaining count of aggravated vehicular homicide, and imposed a sentence of not less than 18 months nor more than 24 months incarceration.
FACTUAL BACKGROUND
On June 20, 1982, at 8:45 p.m., appellant was traveling west on Geary Dome Road, a dirt road which intersects Cole Circle Road in Natrona County, Wyoming. This intersection is controlled by a stop sign directing traffic on Geary Dome Road to stop. While under the influence of intoxicating liquor, the appellant failed to stop at the Geary Dome Road stop sign, as a consequence of which he struck a vehicle carrying Bobby and Veronica Vang who died as a result of the collision. Appellant's blood alcohol content was later found to be 0.19% and an eyewitness testified that he was traveling 70 miles per hour when he struck the vehicle in which the deceased persons were riding.
The evidence in this case is scanty. The parties stipulated to the following pertinent facts:
"3. That the accident upon which this action is based occurred in Natrona County, State of Wyoming, on 6/20/82.
"4. That the defendant was driving the automobile involved in the accident upon which this action is based.
"5. That Bobby Vang and Veronica Vang were killed as a result of the injuries they received in the accident upon which this action is based.
"6. That the blood alcohol test of the defendant's blood indicated a concentration of 0.19 ethyl alcohol, and the written findings of that test may be introduced into evidence without foundation proof."
In addition, the State produced Gary Myers, who testified that he saw defendant speed along the road prior to the accident. Mr. Myers also testified:
"* * * He [the appellant] kept repeating over and over, don't tell them I was driving, and I told him, I said, there is nobody, I can't tell them that because you are the only one in the c
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