 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Fonseca-Ortega10/8/2004
Antonio Fonseca-Ortega appeals his convictions of involuntary manslaughter committed while driving under the influence of alcohol, reckless aggravated battery, reckless driving, and transporting an open container. The State concedes that the reckless driving conviction must be vacated as multiplicitous with the reckless aggravated battery conviction. Other issues are whether the trial court failed to instruct the jury on the lesser included offense of driving under the influence of alcohol, whether the State committed prosecutorial misconduct during the closing argument, and whether there was sufficient evidence to support the convictions.
In the early morning hours of October 28, 2002, a van driven by Fonseca-Ortega collided with a train in Ottawa County, Kansas. There were three people inside the van at the time of the accident. Jim Mills, who was in the passenger seat of the van, suffered serious injuries in the accident, including two shattered ribs. Dee Ann Norlander, who was sitting on Mills' lap at the time of the collision, was pronounced dead at the scene. Fonseca-Ortega walked away from the accident with minor injuries.
Fonseca-Ortega had begun the night by drinking alcoholic beverages at Mills' house. Fonseca-Ortega and Mills drank for a couple of hours prior to driving to Norlander's home where Fonseca-Ortega continued drinking. Fonseca-Ortega, Mills, and Norlander then decided to drive to Salina to celebrate Norlander's daughter's 21st birthday. The three drove to Salina in Mills' cargo van, which was only equipped with seats for the driver and front seat passenger.
The three arrived in Salina at around 6 or 7 p.m. and began drinking pitchers of beer at a bar. Mills testified that he returned to the van at 1 a.m. because he wanted to sleep. Mills testified that Norlander and Fonseca-Ortega walked to another bar and did not return to the van until 2 a.m. Mills had been asleep in the passenger seat of the van when Norlander and Fonseca-Ortega returned. Upon their return to the van, Norlander sat on Mills' lap and Mills fell back asleep. When the van stopped at a convenience store, Mills woke up and noticed that Norlander had gone into the store to buy cigarettes. Before he went back to sleep, Mills saw Fonseca-Ortega get into the driver's seat of the van.
While traveling back to Minneapolis, Kansas, the van collided with a moving train. The van was headed north on 170th Street at the time of the accident. Based on the skid marks present at the scene, the van skidded for 86 feet prior to striking the train. The accident was discovered by three members of the train's relief crew who had been driving to meet the train. The relief crew was met by Fonseca-Ortega, who had exited the van. One of the crew members testified that Fonseca-Ortega smelled strongly of alcohol. Deputy Brandon Cochran of the Ottawa County Sheriff's Department, who arrived on the scene shortly thereafter, also testified that Fonseca-Ortega smelled of alcohol. Testimony was also provided that "numerous open beer containers" were found in the back of the van. At the time of the accident the weather was described as "pretty good, pretty clear."
**2 At trial, the parties stipulated that Norlander's death was caused by the accident. There was also no dispute that a street light was located 53 feet north of the tracks, and a railroad crossing sign was located 114 feet south of the tracks. Within 2 hours after the fatal accident, Fonseca-Ortega's blood alcohol level was measured at .116. At trial, Fonseca-Ortega's defense consisted primarily of trying to cast doubt on the State's assertion that Fonseca-Ortega was behind the wheel of the van at the time of the accident.
Following the jury trial, Fonseca-Ortega was convicted of involuntary manslaughter com
Page 1 2 3 4 Tennessee DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|