Opinion
No. 75-807
Decided September 30, 1976.
Upon conviction of vehicular homicide and sentence of five years probation, defendant appealed.
Affirmed.
1. CRIMINAL LAW — Appeal and Error — Sufficiency of Evidence — At Issue — Evidence Must Be Viewed — Light Most Favorable — Jury's Verdict. When determining whether evidence was sufficient to establish a defendant's guilt of the crime charged beyond a reasonable doubt, reviewing court must view the evidence in the light most favorable to the jury's verdict.
2. Homicide — Propriety of Jury Instructions — Questioned For First Time — On Review — Need Not Be Considered — Absent Plain Error. Where defendant in vehicular homicide case was convicted as charged, and, approximately three months after an initial motion for new trial was filed, counsel filed an amended motion for new trial which motion, for the first time, questioned the propriety of certain jury instructions, there having been at trial neither objections made to the instructions nor additional instructions tendered; held, under these circumstances, absent plain error, such arguments need not be considered on review; and, inasmuch as the defendant's entire defense was predicated on his not having been the driver of car that caused victim's death, imperfections, if any there were, in jury instructions given on proximate cause do not constitute plain error.
3. Homicide — Vehicular — Intoxication Present — Element of Recklessness or Negligence — Deleted — By Lawmaking Body — Courts Cannot Reinsert. It is not for the courts to reinsert an element of a statute deleted by the lawmaking body; thus, where the former statute on vehicular homicide required the element of driving "in a reckless, negligent or careless manner, or with a wanton or reckless disregard of human life or safety," but that statute was later repealed and reenacted so as not to require this element when the person charged with the homicide operated or drove a motor vehicle "while under the influence of any drug or intoxicant," the courts may not reinsert such element.
Appeal from the District Court of Adams County, Honorable Abraham Bowling, Judge.
J. D. MacFarlane, Attorney General, Jean E. Dubofsky, Deputy Attorney General, Edward G. Donovan, Assistant Attorney General, Thomas J. Tomazin, Assistant Attorney General, for plaintiff-appellee.
Fielder, Mitzner Wiggins, P.C., Frederick A. Fielder, Jr., for defendant-appellant.
Defendant, Robert Clayton McCollum, was convicted of vehicular homicide (§ 18-3-106, C.R.S. 1973) and was granted five years probation. On appeal, he claims the evidence was insufficient to sustain the conviction and challenges the propriety of certain instructions. We affirm.
On June 30, 1974, Patsy T. Vigil died as a result of injuries received in a one-car accident. Three other young people were in the car with Miss Vigil — Diane Pawloski, Wilfrido Bublna, and McCollum. At the time of and shortly after the accident, the three survivors told the highway patrolman and the district attorney's investigators that McCollum had been the driver with Miss Vigil being the passenger in the front seat and the other two in the back seat. At the trial, all three admitted their previous statements but attributed those to an agreement, made within minutes after the accident, that they would tell this story because Bublna, the actual driver, had had his license suspended and was not supposed to be driving.
At the trial, McCollum's counsel stipulated that, at the time of the accident, McCollum was sufficiently under the influence of alcohol and amphetamines to meet the requirements of the vehicular homicide statute had he been operating or driving the motor vehicle. Therefore, the only issue on which there was conflicting evidence was whether McCollum was the driver at the time of the accident.
[1] Viewing the evidence in the light most favorable to the jury's verdict, as we must, People v. Bennett, 183 Colo. 125, 515 P.2d 466; People v. Salas, 189 Colo. 111, 538 P.2d 437, it was sufficient to establish McCollum's guilt of the crime charged beyond a reasonable doubt. This issue as to who was the driver was properly submitted to the jury for resolution, see People v. Salas, supra, as was the question of the credibility of the witnesses. The jury obviously did not believe the changed story of the surviving occupants of the car, and that was its prerogative.
[2] The only ground for reversal raised in the motion for new trial filed by trial counsel was the alleged insufficiency of the evidence. Approximately three months later, present counsel filed an amended motion for new trial which, for the first time, questioned the propriety of certain jury instructions. At the trial, there had been no objections made to the instructions and no additional instructions were tendered. Under these circumstances, absent plain error, we need not consider McCollum's arguments on review pertaining to the jury instructions. People v. Tilley, 184 Colo. 424, 520 P.2d 1046; People v. O'Donnell, 184 Colo. 104, 518 P.2d 945; Crim. P. 30. Inasmuch as McCollum's entire defense was predicated on his not having been the driver, imperfections, if any there were, in the instructions given on proximate cause do not constitute plain error.
Defendant does not challenge the constitutionality of the present vehicular homicide statute. However, he asks this court to judicially legislate a modification of it and require the instruction on the elements of that offense to include a finding of unsafe or negligent driving. This we decline to do.
[3] Goodell v. People, 137 Colo. 507, 327 P.2d 279 (1958), which defendant argues requires us so to do, was decided when the statute on vehicular homicide included the element of driving "in a reckless, negligent or careless manner, or with a wanton or reckless disregard of human life or safety." See C.R.S. 1963, 40-2-11. In 1971, the former statute was repealed and reenacted to read:
"If a person operates or drives a motor vehicle in a reckless manner or while under the influence of any drug or intoxicant and this conduct is the proximate cause of the death of another, he commits vehicular homicide." (emphasis added) Section 18-3-106, C.R.S. 1973.
The statute was further amended in 1975, after the date of this offense, in particulars not here pertinent. Section 18-3-106, C.R.S. 1973 (1975 Cum. Supp.).
By this amendment, the legislature defined vehicular homicide to consist of merely the factors stated in the statute as reenacted. It is not for the courts to reinsert an element deleted by the lawmaking body.
Judgment affirmed.
CHIEF JUDGE SILVERSTEIN and JUDGE ENOCH concur.