As Amended January 20, 2016.
Appeal from the District Court for Lancaster County: PAUL D. MERRITT, JR., Judge.
Robert B. Creager, of Anderson, Creager & Wittstruck, P.C., L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss for appellee.
HEAVICAN, C.J., WRIGHT, CONNOLLY, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ., and INBODY, Judge. STACY, J., not participating.
[292 Neb. 208] Wright, J.
NATURE OF CASE
Lyle J. Carman appeals his conviction for " unlawful act manslaughter" under Neb. Rev. Stat. § 28-305 (Reissue 2008). Carman's dump truck struck the rear of a car that had stopped or slowed due to highway construction. The collision forced the car off the highway, causing it to roll, and the driver was killed as a result. The unlawful acts for which Carman was convicted were following too closely and driving too fast for the conditions present. He claims these acts were traffic infractions which were insufficient to sustain his conviction. For the reasons stated below, we reverse, and remand with directions to vacate Carman's conviction and sentence.
SCOPE OF REVIEW
The constitutionality and construction of a statute are questions of law, which an appellate court resolves independently of the conclusion reached by the lower court. See State v. Taylor, 287 Neb. 386, 842 N.W.2d 771 (2014).
When reviewing a criminal conviction for sufficiency of the evidence to sustain the conviction, the relevant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Nolan, 283 Neb. 50, 807 N.W.2d 520 (2012).
Carman was driving a dump truck on an interstate highway that was closed to one lane eastbound due to construction, and traffic was stop and go. Carman stated that he looked down at his side mirrors and that when he looked up, the victim's car had stopped and he was unable to timely stop. Carman's truck struck the victim's car from the rear, causing it to go off [292 Neb. 209] the Interstate and roll. The driver of the car died as a result of the collision.
Carman was charged and ultimately convicted of manslaughter pursuant to § 28-305, a Class III felony. Section 28-305 codifies what has been referred to as " unlawful act manslaughter" or " involuntary manslaughter." Unlawful act manslaughter is defined as causing the death of another " unintentionally while in the commission of an unlawful act." See § 28-305.
Carman waived his right to a jury trial and proceeded with a bench trial. The district court found him guilty of the unlawful acts of " following too close," under Neb. Rev. Stat. § 60-6,140 (Reissue 2010), and " driving too fa[s]t for [the] conditions," under Neb. Rev. Stat. § 60-6,185 (Reissue 2010). Carman was found not guilty of driving under the influence, reckless driving, and careless driving.
Before trial, Carman raised the issue of being charged with felony manslaughter instead of misdemeanor motor vehicle homicide. Motor vehicle homicide occurs when a person causes the death of another unintentionally while engaged in the operation of a motor vehicle in violation of Nebraska law or a city ordinance. See Neb. Rev. Stat. § 28-306 (Cum. Supp. 2014). Carman claimed that he should have been charged with motor vehicle homicide and that § 28-306 was the proper statute if the unintentional killing of another occurred during the operation of a motor vehicle. He claimed that a prosecutor should not be permitted to charge a defendant under the general unlawful act manslaughter statute if the unintentional death was caused by a motor vehicle accident.
In his motion for new trial, Carman alleged that the provisions of § 28-305
were unconstitutional as applied to his conviction. The motion was overruled without discussion or written order. The district court did not expressly address whether the use of traffic infractions as a basis for a felony conviction for manslaughter violated due process, but rejected Carman's arguments by overruling his motion. Carman timely appealed.
[292 Neb. 210] ASSIGNMENTS OF ERROR
Carman argues, summarized and restated, that the district court erred in concluding the evidence was sufficient to convict him of manslaughter. He claims that § 28-306 precludes a conviction for unlawful act manslaughter when the underlying offense is a traffic infraction or other public welfare offense and that, therefore, the evidence was insufficient to convict him of manslaughter.
The issue is whether Carman's traffic infractions were sufficient unlawful acts to support a manslaughter conviction under § 28-305. Carman argues that recent amendments to § 28-306, the motor vehicle homicide statute, demonstrate the Legislature's intent to preclude convictions for manslaughter when an unintentional death results from an unlawful act occurring while operating a motor vehicle. He claims the predicate unlawful acts, which were traffic infractions, were insufficient to sustain his conviction.
Our analysis is governed by the following principles. Statutory interpretation presents a question of law, which an appellate court reviews independently of the lower court's determination. See Vokal v. Nebraska Acct. & Disclosure Comm., 276 Neb. 988, 759 N.W.2d 75 (2009). Penal statutes are considered in the context of the object sought to be accomplished, the evils and mischiefs sought to be remedied, and the purpose sought to be served. Id. A court must then reasonably or liberally construe the statute to achieve the statute's purpose, rather than construing it in a manner that defeats the statutory purpose. See Fisher v. Payflex Systems USA, 285 Neb. 808, 829 N.W.2d 703 (2013). An appellate court will try to avoid, when possible, a statutory construction which would lead to an absurd result. See State v. McCave, 282 Neb. 500, 805 N.W.2d 290 (2011).
" A person commits manslaughter if he . . . causes the death of another unintentionally while in the commission of an unlawful act." § 28-305. At the time Carman was charged, [292 Neb. 211] manslaughter was a Class III felony, with a penalty between 1 and 20 years' imprisonment, up to a $25,000 fine, or both.
" A person who causes the death of another unintentionally while engaged in the operation of a motor vehicle in violation of the law of the State of Nebraska or in violation of any city or village ordinance commits motor vehicle homicide." § 28-306(1) (emphasis supplied). Motor vehicle homicide is a Class I misdemeanor, but the statute provides for penalty enhancements if the offender is convicted of driving under the influence, reckless or willful reckless driving, or driving under revocation. These predicate offenses enhance motor vehicle homicide to varying degrees of felonies.
Carman opines that " there has always existed, just below the surface, an issue as to what criminal intent or mens rea had to be present in the unlawful act to support a manslaughter conviction." Brief for appellant at 21. He claims that a manslaughter conviction cannot be upheld when the unlawful act was an infraction or petty offense. He points out that all prior manslaughter cases involving the use of a motor vehicle evidenced a showing that
the driver was impaired or driving recklessly.
While both § § 28-305 and 28-306 require some kind of unlawful act which proximately causes an unintentional death of another, neither statute defines the type of unlawful act required. The district court acquitted Carman of driving recklessly, pursuant to Neb. Rev. Stat. § 60-6,213 (Reissue 2010), and driving carelessly, pursuant to Neb. Rev. Stat. § 60-6,212 (Reissue 2010). But it found him guilty of following too closely, in violation of ...