PUBLISHED OPINION
Case No.: 95-0808-CR
Complete Title
of Case:
STATE OF WISCONSIN,
Plaintiff-Appellant,
v.
STEPHAN E. YODER, JR.,
Defendant-Respondent.
Submitted on Briefs: January 25, 1996
Oral Argument:
COURT COURT OF APPEALS OF WISCONSIN
Opinion Released: February 28, 1996
Opinion Filed: February
28, 1996
Source of APPEAL Appeal from an order
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Ozaukee
(If
"Special", JUDGE: JOSEPH D. MC CORMACK
so indicate)
JUDGES: Anderson, P.J., Brown and Snyder, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn behalf of the plaintiff-appellant, the cause was
submitted on the briefs of James E. Doyle, attorney general, and Jerome
S. Schmidt, assistant attorney general.
Respondent
ATTORNEYSOn behalf of the defendant-respondent, the cause was
submitted on the brief of R. Steven Prifogle, assistant state public
defender.
|
COURT OF
APPEALS DECISION DATED AND
RELEASED FEBRUARY
28, 1996 |
NOTICE |
|
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 95-0808-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
STATE
OF WISCONSIN,
Plaintiff-Appellant,
v.
STEPHAN
E. YODER, JR.,
Defendant-Respondent.
APPEAL
from an order of the circuit court for Ozaukee County: JOSEPH D. MC CORMACK, Judge. Affirmed.
Before
Anderson, P.J., Brown and Snyder, JJ.
ANDERSON,
P.J. The State appeals from an order of the trial
court granting Stephan E. Yoder, Jr.'s motion for dismissal. We conclude that the parties' stipulation
that the victim was dead prior to Yoder's contact with him rendered § 346.67(1)(c),
Stats., inapplicable. Accordingly, we affirm the trial court's
order.
The
facts are alleged in the complaint as follows:
Roxanne Bartel initially hit a pedestrian and did not stop to render
aid. An autopsy showed that the
pedestrian's spinal cord was severed on impact and that he died
instantaneously. Subsequently, Yoder
was driving in the same area. He stated
that he observed something lying in the roadway and that he struck a body lying
there. He said that he stopped and
stepped out of his truck and saw the body lying behind his truck on the
shoulder of the road. He then left the
scene.
A
complaint was filed alleging that Yoder was the operator of a vehicle involved
in an accident which resulted in the death of a person and failed to immediately
stop at the scene of the accident and fulfill certain statutory requirements,
contrary to § 346.67(1), Stats. Yoder filed a motion to dismiss the
complaint as insufficient, contending that from the facts alleged, the court
could not infer that Yoder's accident with the victim resulted in the victim's
death. The trial court held that the
complaint was sufficient. A
substitution of judge was made, and Yoder again filed a motion to dismiss the
action, alleging that the evidence adduced at the preliminary examination
failed to support the finding of the court that Yoder probably committed a
felony. The court granted Yoder's
motion to dismiss the action. The State
appeals.
The
State argues that “[t]he statutory duty imposed upon one striking a person
while operating a motor vehicle by sec. 346.67(1)(c), Stats., to at least minimally investigate whether assistance
is required and to take more than ‘token action,’ is required regardless of the
fact that the victim may have already expired when the striking occurred.” In contrast, Yoder argues that he cannot be
charged with §§ 346.67 and 346.74, Stats.,
when no probable cause exists to show that his accident resulted in the death
of another person.
Whether
§ 346.67, Stats., applies in this
case requires interpretation of the statute.
Statutory interpretation is a question of law that we review de
novo. State v. Swatek,
178 Wis.2d 1, 5, 502 N.W.2d 909, 911 (Ct. App. 1993). Because we conclude that § 346.67 is clear and unambiguous for
the purpose of this appeal, we need not look beyond the plain language of the
statute in reaching our decision. See
Swatek, 178 Wis.2d at 5, 502 N.W.2d at 911.
Section
346.67, Stats., provides:
Duty
upon striking person or attended or occupied vehicle. (1) The operator of
any vehicle involved in an accident resulting in injury to or death of any
person or in damage to a vehicle which is driven or attended by any person
shall immediately stop such vehicle at the scene of the accident or as close
thereto as possible but shall then forthwith return to and in every event shall
remain at the scene of the accident until the operator has fulfilled the
following requirements ¼.
Under § 346.67, a driver involved in an accident resulting
in injury to or death of any person is responsible to follow the dictates
of the statute.
In
Swatek, 178 Wis.2d at 3, 502 N.W.2d at 910, this court analyzed
the issue of whether the operator of a vehicle involved in an accident with a
pedestrian had a duty to render reasonable assistance when it appeared that the
pedestrian was killed instantly by the impact.
The defendant struck a pedestrian who was walking along the side of the
road. The pathologist testified that
the victim had died instantaneously. We
held that under § 346.67, Stats.,
the legislature contemplated both fatal and nonfatal accidents and that it made
the duties imposed by the statute applicable to both. “Because the term ‘injured’ is unqualified, it negates the
suggestion that the legislature intended to exclude persons fatally
injured.” Swatek, 178
Wis.2d at 7, 502 N.W.2d at 912. We
stated that the statute envisioned a reasonable-person standard for determining
whether a driver has fulfilled the duty to render reasonable assistance: “Thus, the duty under sec. 346.67(1)(c),
Stats., does not turn on whether a person's injuries are immediately fatal, but
on whether the operator rendered that amount of assistance which an ordinary,
reasonable person would render under the same or similar circumstances.” Swatek, 178 Wis.2d at 7-8, 502
N.W.2d at 912.
The
facts in Swatek can be distinguished from those in the present
case in that it was undisputed that Swatek was the only driver who struck the
pedestrian. There was no question that
Swatek's actions caused injury or death to the victim. Here, however, there is no question that the
victim was dead before Yoder struck the corpse with his vehicle.
We
conclude that the State, by stipulating that the victim was deceased prior to
being run over by Yoder, took itself outside of the statute. Injury or death of a person is an element of
the offense. The State concedes that
this element of § 346.67(1), Stats.,
was not satisfied;[1] therefore,
Yoder could not be found guilty of its violation. Although we believe that morality and ethics bind Yoder to a
higher standard, it is the job of the legislature, not this court, to change
the law to impose a duty upon all users of our highways to stop and render aid
at any accident scene in which they are involved. See State v. Engler, 80 Wis.2d 402, 410, 259 N.W.2d
97, 101 (1977).
By
the Court.—Order affirmed.