In the above-entitled cause, the Clerk will enter:
Defendant Frederick Koch appeals from the district court's denial of his motions for judgment of acquittal and a new trial following a jury verdict finding him guilty of grossly negligent operation of a motor vehicle. He argues that (1) the State failed to prove its case beyond a reasonable doubt, (2) the prosecutor presented an improper closing argument, and (3) the jury instructions were inadequate. We affirm.
On May 9, 1997, at around 4:00 p.m., defendant struck a pedestrian with his car while driving northbound on Route 100. The accident occurred north of the Village of Stowe. The victim, Thomas Cataldo, had been standing at the edge of the road, facing in a southwesterly direction, just outside the white fog line. He later died as a result of his injuries.
The record reveals that, although the weather that day consisted of overcast skies and some drizzling, visibility was fine, and the road was in good repair. Witnesses observed that, before the accident, defendant was not speeding or driving in an erratic manner. Although he was taking prescribed lithium, he was not under the influence of any intoxicating substances. He awoke, however, at around 4:30 a.m. that day and, after picking up a passenger, drove for the better part of the approximately twelve hours prior to the accident.
As defendant approached Cataldo, who stood over six feet and weighed approximately 185 pounds, he had an unobstructed line of sight of as much as 1200 feet. The posted speed limit along that stretch of road was 40 miles per hour. Thus, it is estimated that Cataldo was visible to defendant for at least 20 seconds. Defendant did not take any evasive action to avoid striking Cataldo. The police noted that there were no yaw or skid marks on the pavement or in the dirt shoulder.
Defendant was charged with operating a motor vehicle in a grossly negligent manner, resulting in the death of another, in violation of 23 V.S.A. § 1091(b). A jury, which also considered the lesser-included offense of negligent operation, found him guilty of the greater charge. This appeal followed.
Defendant first argues that the State failed to present a prima facie case of gross negligence, and the evidence presented does not support such a conviction. He claims that he is entitled to either a judgment of acquittal per V.R.Cr.P. 29 or a new trial per V.R.Cr.P. 33. We disagree.
Gross negligence is defined as "conduct which involve[s] a gross deviation from the care that a reasonable person would have exercised in that situation." 23 V.S.A. § 1091(b) (Cum. Supp. 1999). The Legislature adopted this language after we ruled, in State v. Beayon, 158 Vt. 133, 605 A.2d 527 (1992), that a previous version of § 1091, providing for prosecution of vehicular homicide, "require[d], at a minimum, a mens rea of criminal negligence." Id. at 136, 605 A.2d at 528. In Beayon, we explained that, to be found guilty of criminal negligence, the accused must have disregarded a risk of death or injury to such a degree that the failure to perceive it, given the circumstances, involved a gross deviation from the standard of care of a reasonable person. See id. It is this latter language upon which the Legislature seized in formulating the standard of negligence required for a § 1091(b) conviction.
Here, the State's evidence showed that defendant had an unobstructed view of Cataldo for almost 1200 feet, or for a minimum of 20 seconds, during daylight hours. This evidence fairly supports defendant's conviction for gross negligence. See State v. Devine, ___ Vt. ___, ___, 719 A.2d 861, 862-63 (1998) (evidence that, on a clear day with good visibility and driving conditions, defendant drove his car across the center line and collided with an oncoming vehicle, killing the driver, was sufficient to meet criminal negligence standard).
Next, defendant argues for a new trial, alleging that the State advanced an improper argument to the jury and the court inadequately instructed the jury. Since defendant failed to object to either the prosecutor's closing arguments or the court's jury instructions, these issues have not been preserved for appeal, and we will not consider them. See Imported Car Center, Inc., v. Billings, 163 Vt. 76, 78, 653 A.2d 765, 768 (1994) (issues not objected to at trial will not be considered upon appellate review).
Affirmed.
BY THE COURT:
_______________________________________ Jeffrey L. Amestoy, Chief Justice
_______________________________________ John A. Dooley, Associate Justice
_______________________________________ James L. Morse, Associate Justice
_______________________________________ Denise R. Johnson, Associate Justice
_______________________________________ Marilyn S. Skoglund, Associate Justice