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Allen v. State4/2/2002
§ 6-1-104(a)(iii) (Michie 1997) defines "criminal negligence" as when a person,
through a gross deviation from the standard of care that a reasonable person would exercise . . . fails to perceive a substantial and unjustifiable risk that the harm he is accused of causing will occur, and the harm results. The risk shall be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation[.]
"Recklessly" is defined by Wyo. Stat. Ann. 6-1-104(a)(ix) as when a person
consciously disregards a substantial and unjustifiable risk that the harm 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[.]
[ ] We evaluate appellant's entitlement to such an instruction in the following context:
With specific regard for lesser-included offense instructions, we recently held that a trial court must first determine if all the elements of the lesser offense are included within the greater. If that is the case and there is some evidence that would rationally permit the jury to find the accused guilty of the lesser and not the greater offense, the instruction should be given. Sanders v. State, 7 P.3d 891, 894 (Wyo.2000) . . .. The test is more fully expressed in this five-step analytic process: (1) a proper request for the instruction is made; (2) the elements of the lesser-included offense are identical to part of the elements of the greater offense; (3) there is some evidence that would justify conviction of the lesser-included offense; (4) the proof on the element or elements differentiating the two crimes is sufficiently in dispute that the jury may consistently find the defendant innocent of the greater and guilty of the lesser-included offense; and (5) mutuality exists such that the lesser-included charge can be demanded by either the prosecution or the defense. When all five parts of this test are met, and the lesser-included offense instruction is not given, the trial court commits reversible error. Eatherton v. State, 761 P.2d 91, 94-95 (Wyo. 1988). Mueller v. State, 2001 WY 134, 9, 36 P.3d 1151, 1155-56 (Wyo. 2001).
Obviously, counsel's failure to request the instruction is the basis for appellant's ineffective assistance of counsel argument.
[ ] We turn, then, to the test's second prong. While Wyo. Stat. Ann. § 6-2-106(a) (criminally negligent vehicular homicide) might arguably be a lesser-included offense to Wyo. Stat. Ann. § 6-2-106(b)(ii) (reckless aggravated vehicular homicide), *fn12 the elements of Wyo. Stat. Ann. § 6-2-106(a) are not sufficiently identical to part of the elements of Wyo. Stat. Ann. § 6-2-106(b)(i) ("under the influence" aggravated vehicular homicide) to qualify it as a lesser-included offense. The putative lesser offense requires proof of criminal negligence and expressly precludes admitting evidence of specific driving under the influence violations, while the greater offense requires proof of those specific driving under the influence violations and that such a violation be the proximate cause of the victim's death.
[ ] In the instant case, appellant was charged alternatively with aggravated vehicular homicide under Wyo. Stat. Ann. § 6-2-106(b)(i) and/or (b)(ii), and the district court instructed the jury on the elements of both subsections. Because the jury entered separate "guilty" findings to each charge under both subsection (b)(i) and subsection (b)(ii), there being sufficient evidence to sustain a conviction under either subsection, *fn13
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