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State v. Davis7/20/2000
APPEAL FROM: District Court of the Fourth Judicial District, In and for the County of Missoula, The Honorable John S. Henson, Judge presiding.
Submitted on Briefs: February 24, 2000
By Information filed in the District Court for the Fourth Judicial District in Missoula County, the Defendant, Robert Davis, was charged with negligent homicide, a felony, in violation of § 45-5-104, MCA, and failure to remain at the scene of an accident which resulted in death or personal injuries, a misdemeanor, in violation of § 61-7-103, MCA. Following a jury trial, Davis was convicted of both offenses. At the conclusion of the State's presentation of evidence, Davis moved for dismissal of the negligent homicide charge for insufficient evidence. The District Court denied Davis' motion. Davis appeals from the District Court's denial of his motion and the use of the jury instruction regarding evidence of flight. We affirm the judgment of the District Court.
The following issues are presented on appeal:
. Did the District Court abuse its discretion when it denied Davis' motion to dismiss based on insufficient evidence of negligent homicide?
. Should the judgment of the District Court be set aside because the jury was instructed that flight by the defendant tends to prove consciousness of guilt?
FACTUAL BACKGROUND
On February 2, 1997, Missoula resident Gwen Taylor, and her two children, 12-year-old Twila Taylor, and 8-year-old David Taylor decided to walk to the local Pizza Hut from their residence in an area known as the Rattlesnake Canyon in Missoula, Montana. Due to harsh winter conditions in early 1997, snow berms and icy patches had formed between several sidewalks and streets, including portions of Van Buren Street in the Rattlesnake Canyon. The snow and ice made pedestrian travel in the area especially difficult because the sidewalks were intermittently covered with snow and ice and required careful maneuvering.
Following dinner at Pizza Hut, Gwen, Twila, and David began their walk home traveling north on Van Buren. At the time they began their walk back home it was getting dark outside. Because the sidewalks were generally icy, they utilized the passable portions of the sidewalks and walked on the right-hand side of the road with their backs to traffic. Two motorists testified that as they traveled northbound on Van Buren, they noticed Gwen, Twila, and David walking near the right-hand side of the road. The first motorist, Denise Giuliani, testified that they were walking predominately on the street, in single file, near the 1200 block of Van Buren. The second motorist, Jeanne McGinley, testified that near the 1300 block, they were walking side by side, and that Gwen was still walking on the right- hand side of the street, but that Twila and David were now walking on the snow berm which had formed over the sidewalk. McGinley further testified that she was required to swerve into the other lane of traffic in order to avoid Gwen as she walked on the right-hand side of the road.
As Gwen, Twila, and David traveled onto the 1400 block of Van Buren, Gwen was walking on the right-hand side of the street, holding onto David's left hand, while Twila walked in front of David. An oncoming vehicle approached them driven by Anderson Cagle. At the same time, a vehicle approached them from behind driven by the Defendant, Robert Davis. Cagle testified that he noticed Davis' white Jeep Cherokee veer towards the right-hand side of the road as Davis approached the place where Gwen, Twila, and David were walking. Eight-year-old David testified that as Davis' Jeep passed them, he felt a tug on his hand and his mother disa
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