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STATE v. HERBEST12/6/1988
e. 1986); State v. Quint, 448 A.2d 1353, 1355 (Me. 1982).
A review of the entire instruction reveals that the jury was properly instructed on the elements of manslaughter, on the presumptions of innocence, on the State's burden to prove all of the elements of manslaughter beyond a reasonable doubt and that the burden did not shift to the defendant; that they "may" find it important to consider whether Herbest was under the influence and that they "may" find that he was under the influence, but if they did, they had to "further" find that "in addition" to being under the influence, he was reckless or criminally negligent; and that the
V.
Herbest lastly contends that the evidence was insufficient to sustain a conviction of manslaughter. We will set aside a conviction on insufficiency of the evidence grounds only if, after viewing the evidence in a light most favorable to the State, no trier of fact rationally could find every element of the offense charged beyond a reasonable doubt. State v. Barry, 495 A.2d 825, 826 (Me. 1985).
The evidence showed that Herbest operated his vehicle in a very erratic manner, repeatedly crossed the solid, double-yellow lines on Route 16, made a radical weave and nearly collided with another vehicle as he approached the scene of the collision. There was evidence that he reached a speed of 102 miles per hour, skidded for over 165 feet, and at a speed of 80 miles per hour, smashed into the rear end of a motorcycle travelling in its proper lane, causing the death of Michael Little. Moreover, there was evidence of Herbest being under the influence of intoxicating liquor. The evidence was sufficient to sustain the conviction.
Herbest's other claims of error are without merit and do not require discussion.
The entry is:
Judgment affirmed.
All concurring.
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