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Hermreck v. State3/24/1998
Appellant Kay Lynn Hermreck was convicted of aggravated assault and battery as a result of an accident in which, while driving under the influence of alcohol, she hit a child on a bicycle. On appeal, Hermreck claims that she was denied the right to present her theory of defense, that the court erred in failing to instruct the jury on a lesser-included offense, and that she was deprived of a fair trial because the court allowed the prosecution to introduce results of an expert's experiment. We find no error by the trial court; therefore, we affirm.
ISSUES
Hermreck presents three issues:
1. Did the trial court deny appellant her right to a fair trial when it precluded a defense to an element of the crime?
2. Did the trial court err when it refused to instruct the jury on the statutory lesser offense of assault and battery?
3. Did the trial court deprive appellant of a fair trial by permitting the prosecution to introduce an "experiment" which was materially dissimilar to the actual events at issue?
The State responds:
I. Did the district court properly exclude evidence relating to the effect upon the victim's injuries of his failure to wear a protective helmet?
II. Under the circumstances of this trial, did the district court properly refuse to give lesser included offense instructions requested by the Appellant?
III. Did the district court properly exercise its discretion in admitting the State's expert witness Thomas Alcorn to testify regarding an experiment he conducted?
FACTS
On June 18, 1995, Rodney Howard, Jr. (Rodney) and his mother were riding their bicycles through a back alley, on their way home. Seven-year-old Rodney was riding ahead of his mother when they arrived at the Duff Street viaduct, across the street from the alley behind their house. Rodney proceeded to ride his bicycle across the street at the same time Hermreck was driving south across the viaduct. Driving a friend's 1978 Ford pickup, she was traveling an estimated 32 to 36 miles per hour in a 30-mile-per-hour zone. Hermreck struck Rodney near the center line, knocking him from his bicycle. Rodney sustained life threatening head injuries and suffered permanent brain damage as a result of the accident.
Officer Greg Way interviewed Hermreck at the scene of the accident. He noticed alcohol on her breath and saw open beer cans in the truck. Hermreck admitted to drinking two or three beers at a softball game at the VFW. Officer Way administered field sobriety tests, which Hermreck failed. Officer Way then took Hermreck to the Cheyenne detention facility where she was twice given a breathalyzer test, with results of .123 and .113. A blood sample was also drawn, showing a blood alcohol content of .1366. Hermreck was then released pending further investigation.
On July 13, 1995, Hermreck was charged with one count of aggravated assault and battery and one count of driving while under the influence of alcohol. The information was later amended to exclude the DWUI charge. At a scheduling conference, issues arose regarding Rodney's failure to wear a helmet. The court ordered briefing by the parties and, at a pretrial motions hearing on January 17, 1996, determined that Rodney had no duty to wear a helmet and his failure to wear one was not a defense to the crime charged. The court then ruled that Hermreck would not be permitted to put on evidence as to the effect of Rodney's failure to wear a helmet.
After a four-day trial, the jury found Hermreck guilty of aggravated assault and battery in violation of W.S. 6-2-502(a)(i). Hermreck timely app
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