State v. Millette2/15/2002
ENTRY ORDER
In the above-entitled cause, the Clerk will enter:
The State appeals a Windsor District Court decision granting defendant's motion to dismiss charges that he aided in the commission of a DUI, in violation of 23 V.S.A. § 1711. The State argues that the trial court erred in granting defendant's motion. We affirm.
On June 17, 1998, defendant Chad Millette drove his car from Bennington to Windham, Vermont to visit a friend. While at his friend's home, defendant, his friend, and a mutual friend, Alonzo Gilbert, had several beers. The men decided to go fishing in the late afternoon, in Chester, and defendant consumed four or five more beers at the fishing hole. Defendant and Gilbert drove to Londonderry to purchase more beer and returned to their friend's home in Windham. Not long after, defendant and Gilbert left for Cactus Jacks, a bar and strip club in White River Junction.
Defendant and Gilbert watched "shows" and drank more beer at Cactus Jacks. At some point in the late evening hours of June 17 or the early morning hours of June 18, 1998, defendant and Gilbert prepared to leave Cactus Jacks. There was heavy rain, and defendant suggested that they pull the car behind the club and sleep. Gilbert removed defendant's keys from defendant's pocket and responded that he would drive defendant home. Defendant and Gilbert got into the car, and Gilbert drove South on Interstate 91. Once on the road, defendant fell asleep, waking up to Gilbert's request that he help Gilbert stay awake. Defendant's car rolled over onto the side of the interstate, killing Gilbert. Defendant asserts that the next thing he could recall is waking up at a hospital.
Defendant was charged on five counts, which as later amended, include: (1) DUI, death resulting, in violation of 23 V.S.A. § 1201(a)(2); (2) DUI, third offense, both as the principal, in violation of 23 V.S.A. § 1201(a)(2), and as an accessory, in violation of 23 V.S.A. § 1711; (3) driving when his license had been suspended for DUI in Windsor County, in violation of 23 V.S.A. § 674(b); (4) driving when his license had been suspended for DUI from Bennington to Windham, in violation of 23 V.S.A. § 674(b); and (5) driving when his license had been suspended for DUI from Windham to Chester, in violation of 23 V.S.A. § 674(b). Defendant moved to dismiss the second count for lack of a prima facie case, pursuant to V.R.Cr.P. 12(d). The trial court granted defendant's motion, and dismissed the charge of violating 23 V.S.A. § 1711, aiding in the commission of a DUI, and ordered the State to amend the second count accordingly. The State now appeals that determination.
The State argues, on appeal, that the trial court erred in granting the Rule 12(d) motion because: (1) the State's evidence was sufficient to establish, beyond a reasonable doubt, that defendant had committed the offense; (2) the trial court, in its opinion and order, found insufficient evidence on the charge of aiding in a DUI death resulting, when in fact, the charge was aiding in a DUI. In reviewing a motion to dismiss for lack of prima facie case under Rule 12(d), we look to whether the evidence, taken in the light most favorable to the State, excluding modifying evidence, would fairly and reasonably tend to show defendant committed the offense, beyond a reasonable doubt. State v. Dixon, 169 Vt. 15, 17, 725 A.2d 920, 922 (1999); V.R.Cr.P. 12(d)(2).
Defendant is charged with aiding in the commission of a DUI in violation of 23 V.S.A. § 1711. Section 1711 provides that one "who, whether present or absent, aids, abets, induces, procures or causes the commission of an act which, if done directly by him or her, would be a felony or
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