Opinion
No. 25671-5-III.
January 13, 2009.
Appeal from a judgment of the Superior Court for Benton County, No. 06-1-00540-0, Vic L. VanderSchoor, J., entered November 1, 2006.
Affirmed by unpublished opinion per Schultheis, C.J., concurred in by Kulik and Korsmo, JJ.
UNPUBLISHED OPINION
Randall Foos appeals his conviction of vehicular homicide, contending the trial court erred in denying his request for a continuance after the State amended the information on the day of trial. He also contends insufficient evidence supports his conviction. We affirm.
FACTS
Mr. Foos has a history of eye problems, including cataracts and bilateral diabetic retinopathy, which significantly impair his vision. During 2003, Mr. Foos' vision was progressively worsening. In May and June 2003, two optometrists told Mr. Foos he could not legally drive. Nevertheless, on September 17, 2003, Mr. Foos drove home from work. At about 4:00 p.m., his car struck and killed Sarah Casey as she was riding her bicycle.
The State charged Mr. Foos with second degree manslaughter. He filed a Knapstad motion to dismiss, arguing the evidence was insufficient to establish negligence. The trial court denied the motion.
State v. Knapstad, 107 Wn.2d 346, 729 P.2d 48 (1986).
Before trial, defense counsel argued that the prosecuting attorney had erred in charging Mr. Foos with second degree manslaughter and that the proper charge was vehicular homicide. The prosecuting attorney agreed and moved to amend the information to vehicular homicide. The court permitted the amendment.
Defense counsel asked for a two-week continuance to give him adequate time to research the law relating to the new charge. The court denied the motion, noting that the facts and witnesses were the same under each charge. However, the court offered to provide defense counsel with extra time to research a dismissal motion at the close of the State's case. The next day, defense counsel filed a Knapstad motion on the amended charge, which was denied.
At trial, the State presented the testimony of eyewitnesses to the accident. Jenifer McDaniel testified that she and Ms. Casey were riding bicycles on September 17. She stated that one minute they were talking and then she saw Ms. Casey fly in the air and land in front of her. Ms. McDaniel saw blood coming from Ms. Casey's head. Ms. Casey was unresponsive to Ms. McDaniel's voice.
Arthur Pomeroy was driving about two car lengths behind Mr. Foos on the afternoon of the accident. He saw the two bicyclists riding side by side next to the curb and pulled into the outside lane to accommodate them. Mr. Pomeroy stated that Mr. Foos did not brake as he approached the girls and only swerved after hitting Ms. Casey.
Jamie Stevens was a passenger in a car in the opposite lane of traffic. She saw Mr. Foos' car hit Ms. Casey, but could not recall whether Mr. Foos braked before impact. Lena Garza also witnessed the accident. She did not see Mr. Foos brake until after the impact.
Detective Randy McCalmant responded to the accident and interviewed Mr. Foos. Mr. Foos told him that he had been driving about 40 miles an hour. He explained that the sun had momentarily blinded him and that he tried to avoid the bicyclists by swerving.
Police Officer Michael Gaines arrived at the scene of the accident about 4:30 p.m. He estimated that the accident caused Ms. Casey to become airborne and that she slid on the pavement about 26 feet before stopping. He noted that the impact broke Ms. Casey's bicycle helmet and knocked off her shoes. She lost consciousness and was flown to a hospital. He testified that Ms. Casey suffered blunt force trauma to the back of her head and died six days later.
Officer Gaines reconstructed the accident scene. He testified that a driver would be "on the edge" of locating a bicyclist 32 seconds from the collision. Report of Proceedings (RP) at 319. He stated that a driver would be "quite clear" at a distance of 750 feet from the location of the collision, the equivalent of 20 seconds before impact. RP at 320. He also stated that even if Mr. Foos had seen Ms. Casey one second before impact, the collision could have been avoided. In replicating the accident, Office Gaines could only see the sun by leaning down to the dashboard of Mr. Foos' car.
The State presented extensive testimony relating to Mr. Foos' eye problems. Dr. Karl Brandon Czirr, an optometrist, testified that Mr. Foos came in for glasses on May 29, 2003. On that date, his visual acuity measured 20/60 in his right eye and 20/200 in his left eye. Dr. Czirr explained that Mr. Foos suffered from diabetic retinopathy, which is a condition where blood vessels leak into the retina and cause macula edema and vision loss. Based on these eye problems, Dr. Czirr told Mr. Foos he should not drive. He stated that when he tells a patient not to drive, he means the patient "should not drive until the vision [is] cleared up." Clerk's Papers (CP) at 279.
Dr. Belinda Badorek, another optometrist, saw Mr. Foos on June 24, 2003, for a refraction check. She stated that Mr. Foos had "significant pathology going on with his eyes" and that his visual acuities on that date were 20/100 in both eyes. RP at 124. She noticed hemorrhaging in Mr. Foos' right eye and told him he could not legally drive.
Dr. Andreas Lauer saw Mr. Foos in January, March, and September 2003. He testified that Mr. Foos had an advanced form of diabetic retinopathy, a condition that had worsened between March and September 2003 and was difficult to treat. On September 4, he detected the growth of abnormal blood vessels in Mr. Foos' right eye and measured his visual acuity at 20/150 in his right eye and 20/100 in his left eye. Dr. Lauer stated that Mr. Foos' vision was significantly impaired and that such impairment was "something somebody would notice." CP at 179.
Pamela Byrd, the district manager for the Department of Licensing, testified that in her 10 years of experience, she had known of only one person who even attempted to get a driver's license with an acuity level of 20/100.
Mr. Foos denied being told he could not drive. He claimed that he had been advised that he should not drive when his blood sugar was low. He stated that when his diabetes affected his vision, he did not drive or asked others to drive for him. He believed he did not need such assistance on September 17. He explained that just seconds before the accident, he was temporarily blinded by sunlight and did not see Ms. Casey until right before the collision.
The jury convicted Mr. Foos of vehicular homicide.
ANALYSIS
Mr. Foos first contends that the trial court erred in denying his request for a continuance after the State amended the information on the morning of trial. He contends the amendment of the information from second degree manslaughter to vehicular homicide forced him to go to trial without adequate time to prepare for trial on the new charge.
We review a trial court's denial of a motion to continue for abuse of discretion. State v. Williams, 84 Wn.2d 853, 529 P.2d 1088 (1975). We will reverse a trial court's denial of a continuance only upon "a showing that the defendant was prejudiced or that the result of the trial would likely have been different had the motion been granted." State v. Kelly, 32 Wn. App. 112, 114, 645 P.2d 1146 (1982). We examine the totality of the circumstances at the time the request is denied. Id. at 114-15.
The trial court may permit the State to amend an information "at any time before verdict or finding if substantial rights of the defendant are not prejudiced." CrR 2.1(d). The defendant bears the burden of showing prejudice. State v. Gosser, 33 Wn. App. 428, 435, 656 P.2d 514 (1982). An amendment to the information on the day of trial may prejudice a defendant by leaving him without adequate time to prepare a defense to the new charge. State v. LaPierre, 71 Wn.2d 385, 428 P.2d 579 (1967); State v. Purdom, 106 Wn.2d 745, 725 P.2d 622 (1986). However, such an amendment may be allowed where the amendment merely specifies a different way of committing the original crime and no other prejudice is demonstrated. Gosser, 33 Wn. App. at 435 ("Where the principal element in the new charge is inherent in the previous charge and no other prejudice is demonstrated, it is not an abuse of discretion to allow amendment on the day of trial."); see also State v. Mahmood, 45 Wn. App. 200, 724 P.2d 1021 (1986) (permitting a midtrial amendment that added a new theory of criminal liability).
Here, the original information charged Mr. Foos with second degree manslaughter under RCW 9A.32.070(1). The information alleged that Mr. Foos "with criminal negligence did after being advised not to drive because of poor eyesight, drove a vehicle and hit a bicyclist, and thereby did cause the death of SARAH CASEY." CP at 582. The amended information charged Mr. Foos with vehicular homicide under RCW 46.61.520 (1), alleging that he "[drove] a motor vehicle with disregard for the safety of others, which was the proximate cause of injury to SARA[H] CASEY." CP at 495.
The evidence to establish both charges was virtually identical. Under both charges, the State intended to show that (1) Mr. Foos drove after being told that it was illegal to do so and (2) the car he was driving struck and killed Ms. Casey. Although proof of manslaughter requires the State to establish negligence and vehicular homicide requires proof that the defendant acted in disregard for the safety of others, the proof of both of these elements was based on the same evidence — that Mr. Foos ignored doctors' orders not to drive. Thus, under both charges, the State needed the same witnesses to testify about the accident and the optometrists' testimony that Mr. Foos was told not to drive.
Further, Mr. Foos' defense did not change after the amendment. In his Knapstad motion to dismiss on the second degree manslaughter charge, he argued that the State could not establish negligence because there was insufficient evidence that he was told not to drive. This was also his defense to the charge that he disregarded the safety of others on the amended charge.
Finally, at the time of the continuance request, defense counsel was already familiar with the legal elements of the amended charge. It was defense counsel who pointed out that vehicular homicide was the appropriate charge. Defense counsel also had time to research a detailed Knapstad motion on the amended charge before the trial commenced. Further, the trial court told Mr. Foos that he would be given additional time to research a dismissal motion at the close of the State's case. Under these circumstances, Mr. Foos fails to establish any prejudice. We conclude that the trial court did not abuse its discretion in denying the continuance.
Next, Mr. Foos argues that the evidence is insufficient to establish that he disregarded the safety of others or that the accident was the proximate cause of Ms. Casey's death. Evidence is sufficient to support a conviction if, viewed in the light most favorable to the State, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, (1992). "A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." Id. We defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992).
Washington's vehicular homicide statute states in pertinent part:
When the death of any person ensues within three years as a proximate result of injury proximately caused by the driving of any vehicle by any person, the driver is guilty of vehicular homicide if the driver was operating a motor vehicle:
. . . .
(c) With disregard for the safety of others.
The only causal connection the State needs to prove in a vehicular homicide case "is the connection between the act of driving and the accident." State v. Rivas, 126 Wn.2d 443, 451, 896 P.2d 57 (1995); State v. Lopez, 93 Wn. App. 619, 624, 970 P.2d 765 (1999). A driver's conduct is not the proximate cause if some other action was the sole cause of the harm. State v. Meekins, 125 Wn. App. 390, 397, 105 P.3d 420 829 P.2d 1068 (2005).
Mr. Foos argues that in the absence of any medical evidence about the manner of Ms. Casey's death, the State fails to establish proximate cause. This argument is without merit. The evidence established that Mr. Foos was driving about 40 miles an hour when he hit Ms. Casey with his car. The impact broke Ms. Casey's bike helmet and rendered her unconscious. She died six days later from blunt force trauma to her head. This is sufficient to establish that Ms. Casey's death was the result of an accident that occurred while Mr. Foos was driving. "Nothing more is required to meet the causation element of vehicular homicide." Lopez, 93 Wn. App. at 624.
We next address Mr. Foos' claim that the State failed to establish that he acted with reckless disregard for the safety of others. Disregard for the safety of others implies an "`aggravated kind of negligence or carelessness, falling short of recklessness but constituting a more serious dereliction than the hundreds of minor oversights and inadvertences encompassed within the term "negligence."'" State v. May, 68 Wn. App. 491, 496, 843 P.2d 1102 (1993) (emphasis omitted) (quoting State v. Eike, 72 Wn.2d 760, 765-66, 435 P.2d 680 (1967)). We have noted that "[s]ome evidence of a defendant's conscious disregard of the danger to others is necessary to support a charge of vehicular homicide." State v. Vreen, 99 Wn. App. 662, 672, 994 P.2d 905 (2000) (citing Lopez, 93 Wn. App. at 623), aff'd, 143 Wn.2d 923, 26 P.3d 236 (2001).
Mr. Foos asserts that the State failed to establish this element because "there was virtually no testimony offered even suggesting negligence of Mr. Foos on the day in question." Br. of Appellant at 19. We reject this argument. Although none of Mr. Foos' doctors could state the precise condition of Mr. Foos' vision on September 17, the inferences from their testimony establish that his vision was seriously impaired on that date. Dr. Lauer testified that Mr. Foos' vision was progressively worsening, and that on September 4, just 13 days before the collision, Mr. Foos could not pass a driver's test. Dr. Lauer also noted that Mr. Foos' impaired vision was something a person would notice. Ms. Byrd testified that the vast majority of people with comparable vision impairments do not attempt to get a driver's license. More importantly, two optometrists told Mr. Foos not to drive.
Mr. Foos' decision to ignore his impaired vision and the advice of his doctors establishes that he drove with disregard for the safety of others. Viewed in the light most favorable to the State, the evidence and inferences therefrom support the jury's finding of guilt. Mr. Foos' disregard for the safety of others set in motion a chain of events that caused Ms. Casey's death. Sufficient evidence supports the vehicular homicide conviction.
Affirmed.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
KULIK, J. and KORSMO, J., concur