STATE OF MISSOURI,                                     )
                                                       )
                             Respondent,               )
                                                       )
           vs.                                         )        No. SD32730
                                                       )        Filed: October 21, 2014
RICHARD A. MILLER,                                     )
                                                       )
                             Appellant.                )


                   APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY

                                   Honorable Tracy L. Storie, Circuit Judge

AFFIRMED

           Richard A. Miller (“Miller”) appeals from the trial court’s judgment challenging the

sufficiency of the evidence to support his original conviction of two counts of first-degree

involuntary manslaughter, in violation of section 565.024.1 Finding no merit to Miller’s claims,

we affirm the judgment and sentence of the trial court.




1
    All references to statutes are to RSMo Cum.Supp. (2006), unless otherwise indicated.
                               Facts and Procedural History

       Following a jury trial, Miller was convicted of two counts of first-degree involuntary

manslaughter. The trial court suspended imposition of sentence and Miller was placed on

probation for a term of five years. After subsequent convictions for driving with a revoked

license, domestic assault, and drug possession, the State filed a “Motion to Revoke Probation” on

August 9, 2012. At a probation violation hearing on December 5, 2012, the parties stipulated

that the State had filed a timely motion to revoke probation, and there was a clear manifestation

by the State of intent to revoke Miller’s probation.      At that hearing, Miller admitted the

violations of his probation. The trial court then ordered a sentencing assessment report be

completed.

       On February 6, 2013, the trial court imposed sentences of five years on each count of

involuntary manslaughter with the sentences to run consecutively. On June 10, 2013, Miller was

granted leave by this Court to file a late notice of appeal and granted permission to proceed in

forma pauperis.

       Miller appeals from the judgment challenging the sufficiency of the evidence to support

his original conviction of two counts of first-degree involuntary manslaughter.

       We review the facts in the light most favorable to the verdict. State v. Belton, 153

S.W.3d 307, 309 (Mo. banc 2005). On December 25, 2004, at approximately 1:15 p.m., Miller

was driving a black pickup truck southbound on a two-lane stretch of Highway 63 outside of

Rolla. Miller was familiar with the area and had previously driven on this stretch of Highway

63. Miller did not particularly like driving on Highway 63 because it was so narrow and made

him nervous. In the past, Miller had been forced to pull over onto the shoulder when he




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encountered cars passing in the lane for the opposite direction of traffic that had not completed

the pass. Miller’s wife was a passenger in the pickup truck.

       As Miller neared the Beaver Creek Bridge, he approached a maroon car (the “Gresham

car”) that was traveling the speed limit in the southbound lane. Miller pulled into the northbound

lane and advanced past the Gresham car. However, Miller continued to travel south in the

northbound lane, even as he entered a no-passing zone, a blind-curve in front of the Beaver

Creek Bridge, and as he continued onto the Beaver Creek Bridge itself.

       Continuing to drive south in the northbound lane on the Beaver Creek Bridge, Miller

struck a vehicle head-on that was traveling north in the northbound lane, killing the young couple

(the “Rowdens”) inside. At the time of the accident, Miller had been driving south in the

northbound lane for approximately one to two minutes. Neither Miller, nor his wife, had any

recollection of how the accident occurred.

       Neil Poynter (“Poynter”) an accident reconstructionist with the Missouri State Highway

Patrol, investigated and reconstructed the accident. At trial, he testified Miller’s speed at the

time of impact could not be determined due to the collision occurring on the bridge and the fact

that neither vehicle left any skid marks. Poynter prepared a diagram that illustrated how Miller,

having passed the Gresham car, remained in the northbound lane as he approached the bridge.

The point of impact occurred on the north end of the bridge when Miller’s vehicle, having just

gotten onto the bridge, impacted the front of the Rowden vehicle. The diagram also illustrated

how Miller’s vehicle after impact rotated over and hit the bridge wall in the southbound lane,

then rotated once more clockwise, before coming to rest. The Rowden vehicle came to rest

against the bridge wall, in the northbound lane, at the structure’s midpoint.       The diagram

depicted a centerline that was solid on the right and broken on the left, meaning passing was

                                                3
permitted for northbound vehicles only, for the entire length of the bridge. Miller’s “sight

distance” approaching the bridge was three-tenths of a mile. The Rowdens’ sight distance

approaching the bridge was one-tenth of a mile. Poynter noted that the bridge was on what is

commonly referred to as a “blind turn.”

       On appeal, Miller argues there was no substantial evidence that he was reckless in

causing the Rowdens’ deaths. The issue for our determination is whether the evidence was

sufficient for the jury to find beyond a reasonable doubt that Miller was reckless, in violation of

section 565.024.1(1).

                                     Standard of Review
       In reviewing a challenge to the sufficiency of the evidence, this Court must determine

whether sufficient evidence permits a reasonable juror to find guilt beyond a reasonable doubt.

Belton, 153 S.W.3d at 309.

       ‘This inquiry does not require a court to ask itself whether it believes that the
       evidence at trial established guilt beyond a reasonable doubt. Instead, the relevant
       question is whether, after viewing the evidence in the light most favorable to the
       prosecution, any rational trier of fact could have found the essential elements of
       the crime beyond a reasonable doubt.’

State v. Bateman, 318 S.W.3d 681, 687 (Mo. banc 2010) (quoting State v. Chaney, 967 S.W.2d

47, 52 (Mo. banc 1998)).

       We view the evidence and all reasonable inferences therefrom in the light most favorable

to the verdict, disregarding any evidence and inferences contrary to the jury’s verdict. Id. This

Court “does not act as a ‘super juror’ with veto powers, but gives great deference to the trier of

fact.” Chaney, 967 S.W.2d at 52 (internal quotation and citation omitted). “Even if the evidence

would support two equally valid inferences, only the inference that supports the finding of guilt

can be considered.” State v. Breedlove, 348 S.W.3d 810, 814 (Mo.App. S.D. 2011) (internal

                                                4
quotation and citation omitted). “‘The trier of fact determines the credibility of the witnesses,

and may believe all, some or none of the testimony of a witness.’” State v. Edwards, 280

S.W.3d 184, 189 (Mo.App. E.D. 2009) (quoting State v. Burse, 231 S.W.3d 247, 251 (Mo.App.

E.D. 2007)). “The credibility and the effects of conflicts or inconsistencies in testimony are

questions for the jury, and the appellate court will not interfere with the jury’s role of weighing

the credibility of witnesses.” State v. Coleman, 263 S.W.3d 680, 683 (Mo.App. S.D. 2008).

“‘The function of the reviewing court is not to reweigh the evidence, but only to determine if the

[verdict] is supported by sufficient evidence.’” Edwards, 280 S.W.3d at 189 (quoting Burse,

231 S.W.3d at 251).

                                            Analysis

       Miller argues that there was no substantial evidence to show recklessness to support his

convictions for involuntary manslaughter.

       Under section 565.024.1(1), “[a] person commits the crime of involuntary manslaughter

in the first degree if he or she . . . [r]ecklessly causes the death of another person[.]” A person

“‘acts recklessly’ or is reckless when he consciously disregards a substantial and unjustifiable

risk that circumstances exist or that a result will follow, and such disregard constitutes a gross

deviation from the standard of care which a reasonable person would exercise in the situation.”

§ 562.016.4, RSMo 2000.

       The question before us is whether, viewing the evidence in the light most favorable to the

judgment below, a rational finder of fact could have found beyond a reasonable doubt that Miller

“consciously disregarded a substantial and unjustifiable risk” of death of which he knew or

should have known.” § 562.016.4, RSMo 2000. “[S]peed combined with other circumstances



                                                5
can satisfy this element of [the] offense.” State v. Morrison, 174 S.W.3d 646, 649 (Mo.App.

W.D. 2005).

       Here, the State produced substantial evidence of speed and other circumstances that

satisfied the recklessness element of the offense of involuntary manslaughter. “Direct proof of a

required mental state is seldom available, and the mental state may be proved by indirect

evidence and inferences reasonably drawn from the circumstances[.]” State v. Johns, 34 S.W.3d

93 (Mo. banc 2000).

       Miller’s own testimony provides evidence of his consciousness of a substantial and

unjustifiable risk of death. He testified to having familiarity with Highway 63 around the crash

site, that he knew the road was narrow, and had personally been forced to pull over onto the

shoulder of the road when encountering cars passing in the opposite lane of traffic.

       There was also substantial evidence that Miller consciously disregarded this risk. Miller,

driving in excess of the speed limit, pulled into the northbound lane of Highway 63 (traveling

southbound) in order to pass another vehicle. Rather than returning to the southbound lane after

completing the pass, Miller continued to drive south in the northbound lane for between one and

two minutes, even as he approached a blind curve and proceeded onto the Beaver Creek Bridge,

striking a northbound vehicle in the northbound lane head-on and killing its occupants.

       Miller’s reliance on State v. Bradley, 670 S.W.2d 123 (Mo.App. E.D. 1984), is

misplaced. The court in Bradley did hold that defendant’s conduct, standing alone, in driving on

the wrong side of a two-lane, limited access highway did not by itself rise to “culpable

negligence.” However, the court premised that holding on two factors not presented here:

(1) the accident occurred at night when visibility was limited, and (2) “defendant’s actions in

steadfastly maintaining his course in the passing lane could be viewed as consistent with one

                                                6
operating under the mistaken notion that he was driving on the right hand side of a two lane

highway.” Id. at 126. Here, the accident occurred during the day and there was no evidence that

visibility was limited by light or weather. Further, Miller testified to being familiar with the road

and the general area of the accident, and the jury could reasonably believe that he was not under

the mistaken notion that he was driving on the correct side of the road.

       There was evidence from which a rational trier of fact could have found that Miller

consciously disregarded a substantial and unjustifiable risk of death of which he knew or should

have known. Morrison, 174 S.W.3d at 649. Point denied. Miller’s conviction is affirmed.


WILLIAM W. FRANCIS, JR., C.J./P.J. - OPINION AUTHOR

JEFFREY W. BATES, J. - Concurs

DANIEL E. SCOTT, J. - Concurs in Separate Opinion




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STATE OF MISSOURI,                       )
                                         )
                   Respondent,           )
                                         )
      vs.                                )    No. SD32730
                                         )    Filed: October 21, 2014
RICHARD A. MILLER,                       )
                                         )
                   Appellant.            )

                            CONCURRING OPINION

      I concur. The record includes evidence from which jurors could find that

Miller, while driving in daylight on a road he knew, exceeded the speed limit and

persisted in driving on the wrong side of the road, even into a blind curve, and thus

“recklessly” killed the Rowdens.

      I write only to take issue with dicta in two cases cited by Miller to the effect

that driving on the wrong side of the road cannot alone support a vehicular homicide

conviction. See State v. Harris, 743 S.W.2d 484, 486 (Mo.App. 1987); State v.

Bradley, 670 S.W.2d 123, 126 (Mo.App. 1984).
      There was testimony which, if believed, indicated that Miller kept driving on

the wrong side of the road for a minute or more at highway speed. I think a jury

might fairly conclude that a driver who stays on the wrong side of a highway at some

point “consciously disregards a substantial and unjustifiable risk” of accident,

grossly deviates from his obligation to drive with the highest degree of care, and thus

drives “recklessly.” See § 562.016.4, RSMo 2000.


DANIEL E. SCOTT, J. – CONCURRING OPINION AUTHOR




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