State v. Coluccio

2009 MT 273, 214 P.3d 1282, 352 Mont. 122, 2009 Mont. LEXIS 415
CourtMontana Supreme Court
DecidedAugust 17, 2009
DocketDA 08-0110
StatusPublished
Cited by19 cases

This text of 2009 MT 273 (State v. Coluccio) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Coluccio, 2009 MT 273, 214 P.3d 1282, 352 Mont. 122, 2009 Mont. LEXIS 415 (Mo. 2009).

Opinions

JUSTICE WARNER

delivered the Opinion of the Court

¶1 After trial by jury, Michael James Coluccio, II, was convicted in the Fourth Judicial District Court, Missoula County, of the offense of vehicular homicide while under the influence. Coluccio appeals the following issues:

¶2 Issue 1: Did the District Court err in instructing the jury on the element of criminal negligence?

¶3 Issue 2: Did the District Court err in denying Coluccio’s motion to dismiss for insufficient evidence?

¶4 Issue 3: Did the District Court err in imposing restitution?

FACTUAL AND PROCEDURAL BACKGROUND

¶5 Around 4:30 p.m. on July 14, 2007, Coluccio was driving his Chevrolet Suburban eastbound on Highway 200 east of Missoula. When he reached the intersection with Johnsrud Road, Coluccio slowed down, activated his turn signal and initiated a left turn. Coluccio turned into John Troyer, who was travelling westbound on his motorcycle. Troyer died as a result of the collision.

¶6 After the collision, the motorcycle and Coluccio’s Suburban caught fire. Witnesses to the crash attended to Troyer. Coluccio led his family and friends, who were his passengers, a safe distance from the fire. Coluccio then returned to his Suburban to try to remove his raft from its roof. He did not check Troyer’s condition.

¶7 Highway Patrol Troopers Chad Dever and Sean Finley were dispatched to the scene to investigate. They testified at trial they smelled alcohol on Coluccio’s breath and his eyes appeared glassy. One hour and forty-five minutes after the accident, Trooper Finley obtained a blood alcohol test from Coluccio. The test showed Coluccio’s blood alcohol level was 0.07.

¶8 In a statement to law enforcement, Coluccio said that, prior to leaving his home in East Missoula around 3:00 p.m., he consumed three beers starting at around 1:00 p.m. He later testified he may have had four beers. He said the beer had no effect on his driving because, to him, ‘Coors Light is like water.”

¶9 Coluccio stated he simply did not see the motorcycle coming until it was too late and that the accident occurred because, ‘hay guess is [124]*124that the motorcyclist, he just... must have sped up around that corner and then just flew by not, you now, really paying attention to what he was doing....”

¶10 The State charged Coluccio with felony vehicular homicide while under the influence, misdemeanor driving while his license was suspended, and failure to carry proof of liability insurance. Coluccio pled guilty to the misdemeanor charges and not guilty to vehicular homicide.

¶11 At trial, occupants of the vehicle travelling behind Coluccio for the ten miles before the crash testified he was not driving erratically and did not exceed the speed limit. The driver directly behind Troyer at the time of the crash testified that Coluccio “cut off the motorcyclist.” A couple waiting at the stop sign at Johnsrud Road testified they saw the motorcycle coming around the bend of Highway 200, an estimated 75 yards from the intersection, and it appeared to be going the speed limit. Trooper Mike Burman, an accident reconstructionist who investigated the accident, testified that at the rate of speed Troyer was travelling, anyone sitting at the intersection would have been able to see him for about nine seconds before he entered the intersection. Lynn Kurtz, a forensic toxicologist from the State Crime laboratory testified Troyer did not have any alcohol or drugs in his system that would affect his ability to drive safely.

¶12 The prosecutor posed a hypothetical question to Kurtz asking him to assume the following facts: the crash occurred at approximately 4:30 p.m.; authorities drew a blood sample from Coluccio almost two hours after the crash, showing that his blood alcohol content was 0.07; Coluccio did not consume any alcohol within those two hours; Coluccio weighs approximately 190 pounds; and, Coluccio told a trooper he consumed three beers between noon and 3:00 p.m.1 Kurtz was then asked if he had an opinion as to whether Coluccio’s blood alcohol content would have changed between the time of the crash and when the blood test was administered.

¶13 Kurtz said, based on the assumptions given to him, Coluccio’s blood alcohol level would have peaked around 4:00 p.m. and, although elimination rates depend on various factors that were not in evidence or assumed, he would estimate Coluccio’s blood alcohol content at the time of the crash to have been between 0.095 and 0.135. Kurtz also opined that a person with a blood alcohol content between 0.095 and [125]*1250.135 would have problems with reasoning and judgment, hearing, performing divided attention tasks, and would have tunnel vision. On cross-examination, Kurtz said his estimates for Coluccio’s blood alcohol content at the time of the crash were extrapolated and he would need further facts to determine Coluccio’s exact level of blood alcohol content when the crash occurred.

¶14 The jury found Coluccio guilty of vehicular homicide while under the influence. The District Court sentenced him to 30 years at Montana State Prison, with 15 suspended. At the sentencing hearing, the State sought restitution, the details of which are discussed below.

STANDARD OF REVIEW

¶15 We review jury instructions to determine whether the instructions, taken as a whole, fully and fairly instruct the jury as to the applicable law and whether the district court abused its discretion. State v. Nick, 2009 MT 174, ¶ 8, 350 Mont. 533, 208 P.3d 864. If the instructions are erroneous in some aspect, the mistake must prejudicially affect the defendant’s substantial rights in order to constitute reversible error. Nick, ¶ 8.

¶16 We review a district court’s denial of a motion to dismiss for insufficient evidence de novo if the court based its denial on a conclusion of law. State v. Swann, 2007 MT 126, ¶ 16, 337 Mont. 326, 160 P.3d 511.

DISCUSSION

¶17 Issue 1: Did the District Court err in instructing the jury on the element of criminal negligence ?

¶18 A person commits the offense of vehicular homicide while under the influence if he negligently causes the death of another human being while operating a vehicle under the influence of alcohol. Sections 45-5-106(1), 61-8-401(1), MCA. In order to be convicted of negligent vehicular homicide, a defendant must be found to be both under the influence and criminally negligent.

¶19 Coluccio does not appeal from the jury’s factual conclusion that he drove under the influence of alcohol. He argues that the court improperly instructed the jury concerning the element of criminal negligence. Section 45-2-101(43), MCA, provides:

“Negligently”-* person acts negligently with respect to a result or to a circumstance described by a statute defining an offense when the person consciously disregards a risk that the result will occur or that the circumstance exists or when the person disregards a [126]*126risk of which the person should be aware that the result will occur or that the circumstance exists. The risk must be of a nature and degree that to disregard it involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor’s situation. ‘Gross deviation” means a deviation that is considerably greater than lack of ordinary care.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. A. LaForge III
2025 MT 209 (Montana Supreme Court, 2025)
State v. C. Kelly
2024 MT 7N (Montana Supreme Court, 2024)
State v. Lowry
2019 MT 191 (Montana Supreme Court, 2019)
State v. M. Ailer
2018 MT 18 (Montana Supreme Court, 2018)
State v. Patterson
2016 MT 289 (Montana Supreme Court, 2016)
State v. Passwater
2015 MT 159 (Montana Supreme Court, 2015)
State v. Barrick
2015 MT 94 (Montana Supreme Court, 2015)
State v. Simpson
2014 MT 175 (Montana Supreme Court, 2014)
State v. Aragon
2014 MT 89 (Montana Supreme Court, 2014)
City of Billings v. Edward
2012 MT 186 (Montana Supreme Court, 2012)
State v. Kirn
2012 MT 69 (Montana Supreme Court, 2012)
State v. Robert C. Brown
2012 MT 5N (Montana Supreme Court, 2012)
State v. Dodson
2011 MT 302 (Montana Supreme Court, 2011)
State v. O'CONNELL
2011 MT 242 (Montana Supreme Court, 2011)
State v. Coluccio
2009 MT 273 (Montana Supreme Court, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
2009 MT 273, 214 P.3d 1282, 352 Mont. 122, 2009 Mont. LEXIS 415, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-coluccio-mont-2009.