State Of Minn. v. Cid

State of Minnesota, Respondent,

v.Olga Marina Franco Del Cid, Appellant.

File No. 42-CR-08-220

State Of Minnesota

In Court Of Appeals

A08-2266

Filed July 20, 2010

Lori Swanson, Attorney General, Kelly O'Neill Moller, Assistant Attorney General, St. Paul, Minnesota; and Richard R. Maes, Lyon County Attorney, Marshall, Minnesota (for respondent)

Neal A. Eisenbraun, Neal A. Eisenbraun, Chartered, Minneapolis, Minnesota; and Manuel P. Guerrero, Guerrero Law Office, St. Paul, Minnesota (for appellant)

Considered and decided by Stoneburner, Presiding Judge; Connolly, Judge; and Collins, Judge.^*

UNPUBLISHED OPINION

CONNOLLY, Judge

Appellant challenges her convictions of criminal vehicular homicide, criminal vehicular operation, providing false identification to a peace officer, driving without a valid driver's license, and a stop-sign violation after a jury trial. Appellant argues that the evidence was legally insufficient, a statement she made to two peace officers while in a hospital was involuntary and therefore inadmissible, she was entitled to lesser-includedoffense and alternative-perpetrator jury instructions, and statements by the prosecutor and the state's witnesses amounted to prosecutorial misconduct warranting reversal. Because the evidence was sufficient to permit the jury to find appellant guilty of the charges, appellant's hospital statement was voluntary, the jury instructions were not given in error, and the prosecutorial misconduct was not prejudicial, we affirm.

FACTS

On February 19, 2008, a maroon 1998 Plymouth Voyager (minivan) was driven through a stop sign and struck the side of a school bus in an intersection. The accident occurred in Lyon County, just outside of Cottonwood, at the intersection of County Road 24 and Highway 23. Four children in the school bus were killed and 17 more were injured in varying degrees of severity.

Appellant Olga Marina Franco Del Cid was found pinned in the front of the minivan somewhere between the driver's seat and the passenger's seat; she was later charged with several crimes, all but one of which were based on the act of driving theminivan.¹ After a struggle to extricate her from the minivan, appellant was taken to a hospital in Marshall, where she received treatment for her injuries. As a result of the crash, appellant suffered a broken tibia and compound fracture of her ankle; these injuries were extremely painful and required her to undergo reconstructive orthopedic surgery.

Minnesota State Patrol Trooper Dana Larsen and Sergeant Dean Koenen visited appellant at the hospital. Trooper Larsen and Sergeant Koenen interviewed appellant with the assistance of the hospital's interpreter. At trial, appellant testified that she could not remember speaking with Trooper Larsen and Sergeant Koenen at the hospital. Appellant presented expert testimony from Paul Diekmann, M.D., a board-certified orthopedic surgeon who discussed appellant's injuries and the likely effect of the combination of sedative and narcotic drugs administered to appellant. Dr. Diekmann testified that appellant's shattered ankle would have been "very painful," and that she was appropriately administered substantial doses of intravenous morphine and midazolam, a hypnotic drug with a strong predilection for causing anterograde amnesia.

Pharmacological effects of this combination typically include an altered state of mind and reduced level of alertness. Trooper Larsen testified that appellant stated during the hospital interview that she was driving the minivan, which belonged to her boyfriend, Francisco Sangabriel Mendoza, who had stayed home sick that day.

At trial, appellant's defense theory was that she was entirely innocent of all the driving-related offenses because Mendoza was driving. Appellant testified that Mendoza ran away after the crash because he was afraid of being deported to Mexico, and that he threatened her not to tell anyone that he was driving. Appellant testified that she removed her seatbelt from her passenger seat before the crash because she saw that Mendoza was going to strike the school bus and she wanted to get out of the minivan before the crash. Appellant's crash-reconstruction expert testified that the impact would have caused her to be thrown to the left, which meant that she must have been the passenger. Two witnesses testified that right after the crash they saw a man standing next to the passenger side of the minivan and that he quickly disappeared from the scene of the accident.

The state's theory of the case was that appellant was driving and that her boyfriend may or may not have been present, but if he was, he was the passenger. Although a definitive identification of the driver could not be made, one witness testified that he thought he had seen appellant driving and that there was no passenger in the minivan. Various witnesses testified that they saw the crash, and that the minivan drove full speed through a stop sign and struck the side of the school bus. Both sides offered thetestimony of crash-reconstruction experts, who articulated differing theories of the crash based on their interpretations of the forensic evidence.

After five days of testimony at trial, the jury convicted appellant of all 24 counts. This appeal follows.

DECISION

I. The evidence was sufficient to sustain the convictions.

Appellate review of a sufficiency claim involves "a painstaking review of the record to determine whether the evidence and reasonable inferences drawn therefrom, viewed in a light most favorable to the verdict, were sufficient to allow the jury to reach its verdict." State v. Yang, 774 N.W.2d 539, 560 (Minn. 2009) (quotation omitted). The appellate court must presume that the jury believed the state's witnesses and disbelieved any contrary evidence. State v. Buckingham, 772 N.W.2d 64, 71 (Minn. 2009). If the "conviction is based solely on circumstantial evidence, that evidence must be consistent with the hypothesis that the accused is guilty and inconsistent with any other rational hypothesis except that of guilt." Yang, 774 N.W.2d at 560 (quotation omitted).

a. The driver's identity

Appellant contends that the evidence produced at trial was insufficient to prove beyond a reasonable doubt that she was in fact driving the minivan when it collided with the bus, which is a necessary element of all of the driving convictions. ² Appellant contends that Mendoza was driving the minivan when it crashed. Appellant cites the testimony of J.K., a witness who arrived on the scene shortly before emergency personnelarrived. J.K. testified that appellant's right foot was stuck near the gas pedal, and that he observed this by crawling into the minivan through the passenger-side window because the passenger door would not open.

Appellant also cites the testimony of her expert witness, Donn Peterson, a mechanical engineer with expertise in crash analysis and accident reconstruction. Peterson testified that, due to the way the vehicle was spinning as a result of the collision, and the fact that the driver-side door popped open upon impact, a driver who was not wearing a seatbelt would have been thrown out of the minivan.

Appellant testified at trial that Mendoza was the one driving the minivan that day, and that he was not wearing a seatbelt. Appellant testified that in the crash her boyfriend "got out" and that when the airbags expanded she was thrown to where her boyfriend had been seated. According to appellant's testimony, Mendoza told her after the accident that he did not wish to be deported to Mexico again, and he fled the scene, running down County Road 24.

Other witness testimony arguably corroborates Mendoza's initial presence on the scene. L.M., a truck driver, testified that he saw the collision. After dialing 911 on his cell phone, L.M. looked and saw "one person... standing on the passenger side of the van." This person then walked away. C.D., who was returning from a nurse's aide class, saw appellant's minivan drive through a stop sign and strike the side of the school bus. Similarly, while or just after she called 911, C.D. saw a man standing on the passenger side of the minivan attempting to open the door. The man quickly disappeared.

Appellant argues that the above evidence makes her theory "far more plausible" than the state's theory. In response to this contention, the state points to other evidence tending to support its theory that appellant was the driver. L.M. testified that he only saw one person in the minivan as it approached the intersection as well as after the collision. He testified that he was "pretty sure" that the person he saw in the minivan as it approached the intersection was the same person in the driver's seat following the crash.

Trooper Larsen testified that he and Sergeant Koenen had interviewed appellant at the hospital with the aid of an interpreter. Trooper Larsen testified that appellant said she was driving to work in Mendoza's minivan, she was wearing her seatbelt, and Mendoza had stayed home sick that day.

The state also called Minnesota State Patrol Trooper Paul Skoglund, who had experience in crash reconstruction. Trooper Skoglund calculated the school bus as moving between 56 and 60 m.p.h. and the minivan as moving between 46 and 50 m.p.h. when the vehicles collided. He testified that after the crash, the minivan began spinning and spun about 270 degrees clockwise. He testified that the axle was not moved and the principal direction of force was "all forward movement," and that his reconstruction did not find any indications of force that would cause a driver or passenger to move from side to side.

Appellant contends that the state's case is undermined by a lack of evidence concerning how Mendoza exited the minivan if he was the passenger. But J.K. was able to crawl in and out of the minivan through the passenger-side window, so a reasonable inference is that if Mendoza had been the passenger, he also could have climbed out thewindow....