State v. Cerros

312 Neb. 230

978 N.W.2d 162

STATE of Nebraska, appellee,

v.Joel A. CERROS, appellant.

No. S-21-527.

Supreme Court of Nebraska.

Filed August 12, 2022

Robert W. Kortus, of Nebraska Commission on Public Advocacy, Lincoln, for appellant.

Douglas J. Peterson, Attorney General, and Nathan A. Liss, Lincoln, for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

NATURE OF CASE

Miller-Lerman, J. Joel A. Cerros appeals his conviction in the district court for Butler County for manslaughter, with reckless driving as the predicate unlawful act. Cerros claims that the district court erred when it allowed a law enforcement officer to testify that driving on the wrong side of the road could be a sign of reckless driving. Cerros also claims that there was insufficient evidence to support his conviction for manslaughter and, for the first time on appeal, claims that the district court erred when it failed to instruct the jury on careless driving as a lesser-included offense. We affirm Cerros’ conviction.

STATEMENT OF FACTS

On June 20, 2020, Cerros was involved in a traffic accident on U.S. Highway 81 south of Columbus, Nebraska. The car driven by Cerros was traveling south and was heading in the wrong direction (wrong lane) when it collided with a motorcycle traveling north. The motorcyclist died as a result of injuries sustained in the collision.

The State theorized that Cerros was under the influence of marijuana at the time of the accident. The State therefore charged Cerros with (1) motor vehicle homicide with driving under the influence (DUI) as the predicate violation of law, (2) DUI, (3) manslaughter with reckless driving as the predicate unlawful act, and (4) possession of drug paraphernalia. Cerros pled no contest to the possession charge and went to trial by jury on the remaining counts. The jury acquitted Cerros of DUI and motor vehicle homicide but found him guilty of manslaughter. Given the homicide based on DUI acquittal, our analysis on appeal is focused on manslaughter.

The evidence at trial included testimony by witnesses, including other motorists who arrived at the scene shortly after the accident as well as rescue and law enforcement personnel who later arrived at the scene. Relevant to the charge of manslaughter based on reckless driving, various witnesses testified that Cerros’ car was in the wrong lane. For example, one rescue worker testified that the car "was facing south, but was in the northbound lane ... in the shoulder area" and that the "motorcycle was directly in front of the vehicle."

The State presented testimony by an accident reconstructionist who testified regarding his investigation of the accident in this case. He stated in his report that "Cerros was driving southbound on Highway 81," that "Cerros crossed into the northbound lanes of travel," and that the northbound motorcycle collided with the southbound vehicle driven by Cerros.

He concluded that the "actions of ... Cerros resulted in the death" of the motorcyclist.

The State also elicited testimony regarding the DUI and motor vehicle homicide charges, including observations of witnesses regarding Cerros’ condition shortly after the accident. Among the witnesses the State questioned in this regard was Devin Betzen, a sheriff's deputy who was dispatched to the scene of the accident. During initial general questioning of Betzen regarding his experience in law enforcement, the State asked Betzen, "[W]hat do you look for in determining signs of impairment, just in general cases?" Betzen responded by listing physical signs such as bloodshot, watery eyes, slurred speech, slow deliberate movement, and poor finger-to-thumb dexterity. The State then asked, "What about driving habits?" Betzen responded by listing actions such as speeding, driving on the shoulder of the road, and crossing centerlines. The State suggested, "Driving the wrong way ... down a highway?" and Betzen responded in the affirmative.

During cross-examination of Betzen, Cerros elicited testimony related to his defense theory that at the time of the collision, he had crossed the centerline because he was preparing to turn left onto a county road that was a short distance ahead. Betzen testified that Cerros’ parents’ house was approximately 4 miles from the site of the accident and that in order to go to their house, Cerros would have had to have turned left onto a county road that was approximately 15 to 20 feet south past the site of the collision. At the end of cross-examination, Betzen agreed that in the report he prepared after his investigation, he did not state that Cerros had shown any signs of impairment or that he had "found any signs of impairment by his driving."

The State then began its redirect of Betzen with this exchange: "[State:] Deputy Betzen, driving on the wrong side of the road could be a sign of impairment; is that correct? [Betzen:] That's correct. [State:] Could be a sign of reckless driving; is that correct? [Betzen:] That's correct."

Cerros objected on the basis that the State's question "[c]alls for an answer that the jury has to decide. Ultimate issue, Your Honor." The court overruled Cerros’ objection, and it stated, "And the answer was ‘that's correct.’ And the question was ‘it could be a sign.’ All right." The State then continued with a different line of questioning.

Other evidence presented by the State included testimony by emergency personnel that the motorcyclist had died at the scene of the accident. The State also presented testimony by the pathologist who conducted the autopsy on the motorcyclist. The pathologist testified that the motorcyclist had sustained various injuries, including injuries to the head, chest, and abdomen. The pathologist opined that the cause of death was blunt force trauma to the head, chest, and abdomen and that such injuries were consistent with the motorcycle having collided with the automobile.

Cerros moved for a directed verdict at the close of the State's evidence. The district court overruled the motion and made certain remarks with regard to the manslaughter charge. The court noted that manslaughter was charged with reckless driving as the predicate unlawful act. The court stated that reckless driving was a misdemeanor offense and not a traffic infraction or a public welfare offense. The court stated that evidence offered by the State showed that Cerros "was operating his motor vehicle over a period of time and through a term of space completely in the wrong lane of a major U.S. highway," and the court determined that "[s]uch evidence viewed most favorably to the State would establish that the unlawful act of reckless driving was done voluntarily and intentionally and was not the result of mistake, accident or momentary inattention."

In his defense, Cerros presented evidence including testimony by an expert in pharmacology and toxicology who generally testified regarding studies that showed no increased risk of crashes for drivers who had used marijuana. He also testified that he had viewed videos of Cerros taken at the scene of the accident, on the ride to the hospital, and at the hospital, and he opined that he did not see any indicators that Cerros was under the influence of marijuana at that time. Cerros also presented testimony by his mother, his father, and his sister to the effect that on the evening of June 20, 2020, Cerros’ parents were hosting a family gathering at their house north of Rising City, Nebraska, and that they were awaiting Cerros’ arrival.

At the jury instruction conference, the court presented its proposed instructions. With respect to manslaughter, the elements instruction, instruction No. 3, given by the court, provided that

the elements of the State's case are:

1. That the defendant, ... Cerros, caused the death of [the motorcyclist];

2. That the defendant did so while operating a motor vehicle upon the public streets or highways of the State of Nebraska;

3. That the defendant did so unintentionally while in the commission of an unlawful act, to-wit: reckless driving as defined in Instruction No. 4; and

4. That the defendant did so on or about June 20, 2020, in Butler County, Nebraska.

Instruction No. 4 provided:

The material elements of reckless driving are:

On or about June 20, 2020, in Butler County, Nebraska, the defendant, ... Cerros, drove a motor vehicle upon the streets or highways of the State of Nebraska in such a manner as to indicate an indifferent or wanton disregard for the safety of persons or property.

Instruction No. 6 included definitions of various terms and defined "reckless" as "the disregard for or indifference to the safety of another or for the consequences of one's act. ‘Wanton’ and ‘reckless’ are treated synonymously." The court asked the parties whether they had objections to its proposed instructions, and the State had no objections.

Cerros, however, raised objections to the court's instructions and proposed certain instructions of his own. Cerros first raised objections with regard to the instructions for motor vehicle homicide, and the court overruled his objections. Cerros then turned to the instructions on the charge of manslaughter. Cerros first stated that he asked that the predicate unlawful act for manslaughter should "be for willful reckless driving ... instead of reckless driving" and that the court "give the definition for willful reckless driving." Cerros next stated that he was "asking for the lesser included offense of reckless driving under [ Neb. Rev. Stat. §] 60-6,212 or 60-6,213 because the jury theoretically could find there was no proximate cause, but he was reckless driving or willful reckless driving."

Cerros also requested two additional instructions that he asserted were based on State v. Carman , 292 Neb. 207, 872 N.W.2d 559 (2015). Cerros’ first proposed instruction stated: " ‘Traffic infractions are public welfare offenses which do not require a showing of criminal intent and therefore, are insufficient by...