Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2014-052

                                      DECEMBER TERM, 2014

 State of Vermont                                      }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Addison Unit,
    v.                                                 }    Criminal Division
                                                       }
                                                       }
 Joshua W. Laraway                                     }    DOCKET NO. 38-1-13 Ancr

                                                            Trial Judge: Robert A. Mello

                          In the above-entitled cause, the Clerk will enter:

        Defendant appeals his conviction for operating a motor vehicle in a grossly negligent
manner resulting in serious bodily injury, in violation of 23 V.S.A. § 1091(b). He contends that
the trial court erred by denying his post-trial motion for judgment of acquittal, in which he
argued that the State failed to present sufficient evidence for the jury to conclude beyond a
reasonable doubt that he was the operator of the vehicle in question. We affirm.

        Defendant and his daughter’s fiancé, Justin Stone, were driving in defendant’s car on the
evening of November 16, 2012, when the car flipped over on a state highway, seriously injuring
Stone. As a result of the accident, defendant was charged with grossly negligent operation
resulting in serious bodily injury, leaving the scene of an accident, operating a motor vehicle
with a suspended license, and violating a condition of release. The first two charges were
severed from the latter two and tried over two days. After the State rested, the trial court granted
defendant’s motion for judgment of acquittal with respect to the charge of leaving the scene of an
accident but denied the motion with respect to the charge of grossly negligent operation. The
jury then convicted defendant of the latter charge, and defendant filed a post-trial motion for
judgment of acquittal, arguing that the State failed to prove he was operating the vehicle at the
time of the accident. The court denied the motion, concluding that the evidence was sufficient
for the jury to conclude beyond a reasonable doubt that defendant had been operating the vehicle.
On appeal, defendant renews his argument that the evidence was insufficient to prove his
operation of the vehicle at the time of the accident.

         Our standard of review is well-settled:

                In reviewing a denial of a motion [for acquittal] based on
                insufficiency of the evidence, we view the evidence in the light
                most favorable to the State, excluding any modifying evidence,
                and determine whether it is sufficient to fairly and reasonably
                convince a trier of fact that the defendant is guilty beyond a
                reasonable doubt.
State v. O’Dell, 2007 VT 34, ¶ 4, 181 Vt. 475. This deferential standard reflects our recognition
“that we cannot place ourselves in the jury’s stead.” State v. Neisner, 2010 VT 112, ¶ 18, 189
Vt. 160.

        Moreover, a defendant’s guilt may be proved by circumstantial evidence alone, as long as
that evidence is otherwise proper. State v. Colby, 140 Vt. 638, 642 (1982); see also State v.
Couture, 169 Vt. 222, 226 (1999) (rejecting defendant’s request to apply more rigorous standard
when reviewing motion for judgment of acquittal in case in which conviction was based solely
on circumstantial evidence). “In assessing circumstantial evidence, the fact-finder may draw
rational inferences to determine whether disputed ultimate facts occurred,” but those inferences
“must add up to more than mere suspicion,” and “the jury cannot bridge evidentiary gaps with
speculation.” State v. Durenleau, 163 Vt. 8, 12-13 (1994).

       At trial, the State presented the following evidence. Defendant’s daughter testified that
when she called her father on the night of the accident, he was with her fiancé at what sounded
based on background noise like a bar. The last thing she heard her father say after he indicated
he was coming home was “no, Justin, you’re not driving, I am.”

        A local resident who arrived at the scene of the accident shortly after it occurred heard a
man calling for Justin and observed another man lying face down in the road. She did not see
any other person that may have been in the vehicle and did not hear defendant call any name
other than Justin.

       An officer who arrived at the scene shortly after the accident testified that defendant told
him that he owned the vehicle but that the person lying in the road had been driving it before
swerving to avoid some deer.

        Defendant’s daughter further testified that when she arrived at the scene, defendant told
her that she had to get him out of there because he could not get into trouble and they needed to
figure out a plan.

        The officer investigating the accident testified that when he spoke to defendant the day
after the accident, defendant told him that he had been in the back seat of the car, Stone had been
in the front passenger seat, and some unknown person, whom he presumed to be a friend of
Stone’s, was driving his car when the accident occurred. Defendant’s daughter also testified that
when Stone was discharged from the hospital four or five days after the accident, her father told
her that they needed to come up with a plan to fix things so that neither he nor Stone got into
trouble. According to the daughter, defendant wanted her to say that a third person, perhaps a
friend of Stone’s, was driving.

        Stone testified that he had been extremely intoxicated on the night in question and had no
recollection of being in the car other than “seeing a blue light in my passenger mirror, in the
right-side mirror.” This testimony was consistent with the testimony of the first officer on the
scene and another motorist suggesting that defendant’s vehicle was being pursued by police
shortly before the accident. In describing his injuries from the accident, Stone noted among
them a bruise running from his right shoulder down to his left hip. When asked what left that
mark, he said “the seat belt, from what they tell me.”

       To sum up, shortly before getting in the car on the evening of the accident, defendant told
Stone that he would drive his vehicle. The other person in the vehicle, Stone, was so intoxicated
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that he had no recollection of being in the vehicle other than seeing a blue light in the passenger
side rearview mirror. Several people arrived at the scene of the accident shortly after it occurred
but no one saw anyone other than defendant and Stone who could have been driving the car.
After the accident, defendant wanted to get away from the scene and gave inconsistent stories
over the next few days as to who was driving the vehicle. He initially implicated Stone as the
driver, but then subsequently identified an unnamed friend of Stone’s as the driver. He tried to
get his daughter to back up the version that he eventually settled on. One of Stone’s injuries was
consistent with bruising from a front passenger-side seat belt. We conclude that this evidence,
which “must be considered together, not separately,” State v. Grega, 168 Vt. 363, 380 (1998),
was sufficient for the jury to have determined beyond a reasonable doubt that defendant was the
person operating his vehicle in a grossly negligent manner when the accident in question
occurred. Cf. id. at 381 (“The jury could infer . . . that defendant gave police explanations for his
wife’s injuries because he was trying to cover up the murder as an accident.”).

       Affirmed.

                                                 BY THE COURT:


                                                 _______________________________________
                                                 Marilyn S. Skoglund, Associate Justice

                                                 _______________________________________
                                                 Beth Robinson, Associate Justice

                                                 _______________________________________
                                                 Harold E. Eaton, Jr., Associate Justice




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