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State v. Keiser6/28/2002
Defendant Wolf Keiser appeals the judgment of the district court and its subsequent orders denying his motions for judgment of acquittal and for a new trial following a jury verdict finding defendant guilty of leaving the scene of an accident, fatality resulting, in violation of 23 V.S.A. § 1128(c). On appeal, defendant contends: (1) the trial court issued an erroneous instruction regarding constructive knowledge in response to a jury question; (2) the trial court erroneously declined to include defendant's requested additional instruction in response to the jury question; (3) the trial court committed plain error by failing to instruct the jury that Vermont's hit-and-run statute requires actual knowledge that the accident involved a person or property of another; (4) the jury verdict is not supported by the evidence at trial; (5) the trial court improperly admitted evidence of defendant's past DWI convictions; and (6) the trial court's sentence of ten to fifteen years to serve violates the proportionality clause of the Vermont Constitution and is an abuse of the court's discretion. We affirm.
In the early morning of September 12, 1999, while defendant was driving back to his home from a friend's house, he heard and felt an impact to the right side of his vehicle. His passenger's side windshield cracked in a spider web formation, and, according to him, he stopped his car, backed up, and got out to see what he had hit or what had hit him. Defendant testified that he found nothing, and then traveled to his home, retrieved a flashlight, and returned to the accident site to see if he had hit anything. Again, he found nothing, and returned home.
Defendant's car had struck Joshua Welch, who was thrown to the side of the road. The impact occurred between 12:00 and 1:00 a.m. The victim was found at roughly 10:00 a.m. the next morning by two women who were on a walk. He was taken to the hospital, where he died on September 13 from multiple head injuries.
The state charged defendant with leaving the scene of the accident, fatality resulting. See 23 V.S.A. § 1128(c). At the close of evidence the court gave instructions to the jury on the elements of the charged crime. During deliberations the jury returned the following question regarding the court's instruction on one of the knowledge elements of the crime: "Did Wolf have to know he hit a person or did he have to think or suspect he hit a person . . . according to the law?" (Emphasis in original.)
After discussion with counsel, the court issued the following reply: The State does not have to prove that the defendant had actual knowledge that a person had been injured. The State can meet its burden of proof with regard to the element of knowledge of the resultant injury if it proves that, after conducting a reasonable investigation, a reasonable person would have anticipated injury to another person. This is what is called "constructive knowledge" that I described to you in the Jury Instructions.
In so doing, the trial court declined to issue defendant's requested instruction informing the jury that it could not find defendant guilty if it determined that defendant merely thought or suspected that he hit a person. The jury returned a guilty verdict on February 12, 2001. Defendant was sentenced to ten to fifteen years. He now appeals. We address his arguments in turn.
I.
Defendant's main contention centers on whether the above instruction was an erroneous response to the jury's inquiry. Defendant first argues that the court misconstrued the duties of 23 V.S.A.§ 1128(a), by including a reasonable investigation requirement in its constructive knowledge instruction. The language "after co
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