In this case of involuntary manslaughter resulting from a truck driving over a bicyclist at 10:56 p.m. on a four-lane-highway, the defendant truck driver’s testimony changed over the course of events. The Court of Appeals affirmed appellant’s conviction for involuntary manslaughter stating that he knew or should have known that his actions created a probability of serious injury and he acted with reckless or indifferent disregard to the rights of another.
On the night of the fatal accident, the driver of the 18-wheel tractor-trailer said he saw the victim riding her bicycle on the side of the road when he was 400-500 feet away. At trial, he testified that the victim was between 150 and 180 feet away from him. He said he had no idea why, on the night of the accident, he said she was 400-500 feet away because he could have made a U-turn in that much space. He said that given the width of the truck and the lane, he knew there was not much extra space for passing and that he got over as far as he could, but couldn’t change lanes because he thought cars were in the left lane. He also stated that he had his bright lights on and saw the cyclist wobbling toward the roadway. He said a couple seconds later, he heard a thud, but did not have enough time before the collision to honk his horn or apply his brakes.
Upon hearing the thud, he immediately slammed on the brakes and officers measured the braking distance at just over 408 feet.
A witness traveling one car behind the trucker testified that he did not observe appellant apply his brakes, honk his horn, slow down, or attempt to move into the left lane before the collision. He also did not see any vehicles that would have prohibited appellant from moving into the left lane.
The trial court found appellant guilty of involuntary manslaughter making a specific finding that appellant first saw the victim from a distance of 400-500 feet. Appellant appealed stating that the evidence was insufficient to establish criminal negligence and that the record does not support the court’s factual finding that he initially saw the victim from a distance of 400-500 feet, thereby having time to avoid the collision.
Appellant asserts that the only evidence of his criminal negligence was his initial statement that he first saw the victim when he was 400-500 feet away from her. He argues that other evidence, including his later statements and trial testimony, supports his contention that he struck the victim immediately after he first saw her on the road. He also contends that his mere failure to take evasive action, without any reckless driving behavior, is insufficient to establish that he was criminally negligent.
The court was entitled to believe that appellant’s initial statement on the night of the accident was truthful, and to disregard appellant’s later inconsistent statements. Clearly, the court found appellant’s initial statement more believable and this credibility determination was entirely within the province of the court as the finder of fact.
The witness testified that appellant hit his brakes hard after the collision. The stopping distance measured 408 feet. Appellant could not only stop if he had seen the victim from 400-500 feet away, by his own statement, he could have made a U-turn in that distance. Additionally, the truck driver stated that he saw the cyclist wobbling, and knew there was not much clearance to pass, yet he cruised forward anyway. The court found that defendant’s failure to take any evasive action evinced an utter disregard for the safety of another under circumstances likely to cause injury.
Appellant’s conviction for involuntary manslaughter is affirmed.
Hardin v. Commonwealth (O’Brien) No. 1246-16-2, Sept. 5, 2017; Hanover County Cir.Ct. (Harris) C. David Whaley for appellant; David M. Uberman, AAG, for appellee. (VLW 017-7-219).