The Colorado Court of Appeals issued its opinion in People v. Zweygardt on July 19, 2012.
Careless Driving Resulting in Death—Negligent Homicide—Vehicular Assault (Reckless)—Jury Instructions—Lesser-Included Offense—Merging Convictions.
Defendant appealed the judgment of conviction entered on jury verdicts finding him guilty of two careless driving resulting in death counts, one negligent homicide count, and three vehicular assault (reckless) counts. The judgment was affirmed.
While driving a pickup truck, defendant was speeding, failed to stop for a stop sign, and hit a Dodge Durango occupied by Y.S. and her two children, D.S. and V.S. Y.S. was air-lifted to a hospital and later died. D.S. was pronounced dead at the scene. V.S. suffered severe bodily injuries. Defendant and the passenger in his truck, K.T., also suffered severe bodily injuries. It was undisputed that defendant was not under the influence of alcohol or drugs when the collision occurred.
Defendant contended that the court erred in refusing his request to submit careless driving resulting in bodily injury as a lesser-included offense of vehicular assault (reckless) in the jury instructions. However, vehicular assault (reckless) does not include all of the essential elements of a careless driving offense. Therefore, careless driving is not a lesser-included offense of vehicular assault (reckless), and the trial court did not err in refusing to provide defendant’s requested instruction.
Defendant also contended that he cannot have simultaneously been reckless, criminally negligent, and careless—the culpable mental states required for his convictions—in the course of a single accident. Because no element of one offense negates an element of another, defendant’s convictions are not legally inconsistent.
Defendant further contended that his careless driving and criminally negligent homicide convictions concerning D.S. should merge because defendant “cannot be convicted of negligently killing him and carelessly killing him.” Unlike careless driving, however, criminally negligent homicide does not contain a driving element. Accordingly, careless driving is not a lesser-included offense of criminally negligent homicide. Further, criminally negligent homicide requires a more culpable mental state than careless driving. Therefore, criminally negligent homicide is not a lesser-included offense of careless driving and defendant’s convictions for criminally negligent homicide and careless driving do not merge.
Summary and full case available here.