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Allen v. State4/2/2002
any potential ineffectiveness of counsel in failing to request a lesser-included offense instruction as to subsection (b)(ii) does not prejudice appellant's conviction pursuant to subsection (b)(i); appellant was not entitled to such an instruction under subsection (b)(i).
[ ] In Balsley, 668 P.2d at 1327-28, this Court (utilizing a test later modified by State v. Keffer, 860 P.2d 1118, 1134-36 (Wyo. 1993)) analyzed a prior version of the statute. At that time, homicide by vehicle was committed by
"[w]hoever, except when the violation of law involves culpable neglect or criminal carelessness, unlawfully and unintentionally, but with a conscious disregard of the safety of others, causes the death of another person while engaged in the violation of any state law or ordinance applying to the operation or use of a vehicle or to the regulation of traffic, except those laws or ordinances relating to conduct set forth in subsection (a) [aggravated vehicular homicide] . . .." Balsley, 668 P.2d at 1325.
The aggravated vehicular homicide statute provided that
"[w]hoever, while driving any vehicle under the influence of either intoxicating liquor or a controlled substance, or a combination of both, to a degree which renders him incapable of safely driving a vehicle, causes the death of another person shall be guilty of aggravated homicide by vehicle . . .." Id.
The appellant in Balsley was charged with what is now "under the influence" aggravated vehicular homicide. Id. at 1324. The state offered a lesser-included offense instruction based essentially on what is now reckless aggravated vehicular homicide, which the district court accepted, and the appellant was convicted of the putative lesser-included offense. Id. at 1325-27. This Court reversed, finding that the elements of the two offenses were not sufficiently identical for the putative lesser-included offense to qualify as such. Id. at 1327-29. This finding does not conflict with our holding herein; it is consistent with our conclusion that criminally negligent vehicular homicide is not a lesser-included offense of "under the influence" aggravated vehicular homicide and, given the current statutory framework and definitions of "criminal negligence" and "recklessly," the question as to whether criminally negligent vehicular homicide is a lesser-included offense of reckless aggravated vehicular homicide constitutes an entirely different issue.
[ ] The appellant in Bloomquist, 914 P.2d at 819, was charged alternatively with violating Wyo. Stat. Ann. § 6-2-106(b)(i) and/or (b)(ii) (Supp. 1995), and sufficient evidence had been introduced to sustain a conviction under either subsection. Bloomquist argued that his counsel was ineffective in not requesting a lesser-included offense instruction pursuant to Wyo. Stat. Ann. § 6-2-106(a). Bloomquist, 914 P.2d at 822. We held that the defense's theory was that Bloomquist's driving was not the proximate cause of the victim's death and that the decision to not request a lesser-included offense instruction was therefore a sound tactical decision; the proposed instruction would have undermined the defense's theory and the instruction would not have aided the defense because the evidence of Bloomquist's recklessness was so overwhelming that a reasonable jury could not have convicted him of criminal negligence. Id. This holding does not dictate a particular result in the instant case nor is it inconsistent with our findings herein.
SUFFICIENCY OF THE EVIDENCE
[ ] Appellant contends that the evidence was not sufficient for a jury to infer beyond a reasonable doubt that his conduct caused Mary Fink's death. Due to Mary Fink's pre-existing risk factors for developing bl
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