Thursday, August 9, 2012

Colorado Court of Appeals People v. Zweygardt 1-CA1714

Decision here.

   Zweygardt was speeding, ran a stop sign, and hit an SUV with a mother and her two children.  Mother and one child died, the other child suffered severe injuries.  Zweygardt was charged with various crimes including criminally negligent homicide, vehicular homicide, vehicular assault, and careless driving resulting in death.  His defense at trial amounted to "I didn't mean to run the sign, and I tried to stop."

   The jury convicted him of most of the charges, but acquitted him of a few random ones (for example: he was charged with two counts each of careless resulting in death and negligent homicide.  He was convicted of both counts of careless, but he was convicted of negligent homicide only as it applied to the mother and not as it applied to her dead child.  The jury deliberations on this one must have been very strange).  Zweygardt appealed his convictions, arguing that careless driving is a lesser included offense of vehicular assault.

   The Court of Appeals explained that a crime is a lesser included offense of another if 1- Proving all of the elements of the greater offense would also prove all of the elements of the lesser offense, 2- The lesser offense involves attempt or solicitation to commit the greater offense, or 3- The lesser offense is identical to the greater offense except that it doesn't require as severe a loss or injury.

   In this case, the elements of the various crimes don't match.  For one thing, they involve different definitions of vehicle (one can commit vehicular assault in a boat or a plane, but careless driving requires something designed for use on a roadway).  For another, one requires the operation of a vehicle, the other requires driving.  Apparently, those don't mean the same thing... someone who is driving a vehicle is also operating it, but you can operate a vehicle without also driving it (I'm not kidding).  The court didn't really explain how to operate without driving, but did specify that neither operating nor driving necessarily involves movement.

   The decision also contains some discussion of culpable mental states, and explains that even if it didn't make sense to convict Zweygardt of one count of negligent homicide but not the other, it doesn't matter as long as all of the convictions are consistent with each other.  Zweygardt's convictions were affirmed.

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