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State v. Larson12/7/2004
of ordinary care."
This Court has previously decided mental state is not at issue in negligent homicide cases. State v. Gould (1985), 216 Mont. 455, 477, 704 P.2d 20, 34. In Gould , we held the defendant's proposed instruction referred improperly to the necessity of acting with the mental state of "consciously" as an element of the offense of negligent homicide. We deemed such instruction improper. Similarly, Larson's proposed instruction included the term "consciously," as used in § 45-2-101(42), MCA, to define criminal negligence. Unlike deliberate homicide however, which requires the offense be committed purposely or knowingly, negligent homicide does not require such purpose and knowledge. Negligent homicide only requires a gross deviation from a reasonable standard of care. State v. Kirkaldie (1978), 179 Mont. 283, 292, 587 P.2d 1298, 1304. Further, we have held criminal negligence can arise as a result of intoxication. Kirkaldie , 179 Mont. at 292, 587 P.2d at 1304. Larson's mental state at the time he was driving his car is not at issue. Instead, the issue is whether the driving of a car while intoxicated was a gross deviation from the standard of reasonable care. It is difficult to imagine that conduct, which included drinking both beer and whiskey over many hours, disregarding the prevailing notion that drinking and driving is dangerous, and then getting behind the wheel of a vehicle and driving down an isolated county road at a speed in excess of the speed limit, could not be classed as a gross deviation that is considerably greater than the lack of ordinary care.
The State's proposed instruction stated, in part:
A person acts negligently with respect to the death of a human being when an act is done with conscious disregard of the risk that death of a human occur, or when the person disregards a risk which the person should be aware that the death of a human being will occur. Larson objected to this instruction on the ground the Court was effectively lowering the standard of proof as required by the framers of the criminal code. In answer to Larson's objection on the proposed instruction, the District Court stated, "I believe the Court's Instruction is the definition, as provided by the Statute." We agree.
We hold the jury was adequately instructed on negligence and the elements of the offense charged. Under the given instructions, if the jury believed Larson's account of the accident, they could have found in his favor. However, it was the jury's duty to determine which account of the accident, the State's or Larson's, they believed more credible and worthy of belief. State v. Lewis (1976), 169 Mont. 290, 294, 546 P.2d 518, 520. Where the jury is adequately instructed, no error occurs in refusing a proposed instruction which is already covered. Kirkaldie , 179 Mont. at 293, 587 P.2d at 1304. Here, the jury was fully instructed and Larson had a full opportunity to argue the merits of his defense. Accordingly, we hold the District Court properly instructed the jury on the definition of criminal negligence.
ISSUE FIVE
Whether the State provided sufficient evidence of impairment to support Larson's conviction for negligent homicide and driving under the influence.
Larson argues the State's evidence at trial was insufficient to support the jury's determination he was impaired by alcohol at the time of the accident. Larson maintains the inference of impairment resulting from his 0.12% blood alcohol concentration was rebutted by other evidence indicating the accident was caused by a momentary lapse of attention while driving on a dangerous road.
The State responds the evidence presented at trial of Larson's impairment w
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