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§ 940.10(1), Homicide by Negligent Operation of Vehicle — Sufficiency of Evidence

State v. Nicole Schutte, 2006 WI App 135, PFR filed 7/21/06
For Schutte: Donald T. Lang, SPD, Madison Appellate


¶34      In sum, we conclude that the State presented sufficient evidence for jurors to reasonably conclude, beyond a reasonable doubt, that Schutte’s conduct prior to the collision was criminally negligent within the meaning of Wis. Stat. §§ 939.25 and 940.10. The State’s evidence established not only that Schutte’s car crossed the highway centerline, but from the evidence the State presented, jurors could also reasonably conclude that Schutte was driving too fast for prevailing weather and road conditions, and, while on a curve in the highway, she attempted to engage in other tasks and took her eyes off the road and one hand off the steering wheel. We conclude the evidence at trial, viewed most favorably to the conviction, was such that jurors, acting reasonably, could have determined, beyond a reasonable doubt, that Schutte engaged in conduct that she should have realized “create[d] a substantial and unreasonable risk of death or great bodily harm to another.”See § 939.25(1).

The court suggests that if “the State’s only evidence of Schutte’s pre-collision conduct been that, on a snowy evening with icy road conditions, her vehicle crossed the highway centerline and collided with an oncoming vehicle, we might agree that Schutte’s convictions under Wis. Stat. § 940.10 could not be sustained,” ¶24. State v. Johannes, 229 Wis. 2d 215, 598 N.W.2d 299 (Ct. App. 1999) explained: all the circumstances under which the defendant was driving must be taken into account, and the defendant’s explanation may mitigate the degree of negligence, ¶¶27-28. “A defendant may avoid criminal liability if jurors determine that the State failed to establish beyond a reasonable doubt that the defendant’s conduct while operating a vehicle rose to that level of culpability because, under the circumstances under which the defendant was driving, either the risk of life-threatening consequences was not a substantial one, or if it was, the circumstances, such as the presence of an emergency, rendered the risk not unreasonable,” ¶29.


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