5D06-3047 Mark Berube v. State

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D06-3047

Case Date: 02/04/2008

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2008

MARK G. BERUBE, Appellant, v. STATE OF FLORIDA, Appellee. ________________________________/ Opinion filed February 8, 2008. Appeal from the Circuit Court for Osceola County, Scott Polodna, Judge. James S. Purdy, Public Defender, and David S. Morgan, Assistant Public Defender, Daytona Beach, for Appellant. Bill McCollum, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appellee. Case No. 5D06-3047

THOMPSON, E., Senior Judge. Mark Berube challenges his vehicular homicide conviction, contending that the trial court erred in denying his motion for judgment of acquittal on the theory that the State failed to show that he was driving in a reckless manner sufficient to prove vehicular homicide. Because we agree that Berube did not act with the requisite level of recklessness, we reverse his conviction and direct that he be discharged.

Witnesses to the vehicle collision described a sunny weekday afternoon on a busy stretch of U.S. 192 between Kissimmee and St. Cloud. The dump truck driver following Berube's minivan testified that as he was approaching the intersection at about 45 to 50 miles per hour in the right through lane, he and Berube both moved to the center through lane; they had the green light. The vehicles in two left turn lanes had stopped for a red left turn light. Berube suddenly stopped without any warning or reason. The truck driver slammed on the truck's air brakes, blasted his horn, and stopped a foot or two behind the miniva n. The minivan paused two seconds, then executed a left turn across the opposite lanes of traffic. Vehicles stopped in the

opposing left turn lanes obstructed the view, and the minivan collided with a small gold car. The front seat passenger of the gold car later died of her injuries. Another driver in the intersection also observed the minivan stop in the through lane. He saw blue smoke from the truck's air brakes and heard its horn as it stopped abruptly behind the minivan. As the minivan crossed the opposing traffic lanes, one vehicle moved in time, but the gold car collided with it. Tracy Dunham, the driver of the gold car, slammed on her brakes when she saw the minivan, but was unable to avoid the collision. Mrs. Berube testified that as they were about to make a left turn, she, their three children, and her sister panicked and screamed as the dump truck bore down on them from behind. Her husband never stopped at the green light in the through lane, but he hesitated before he made the left turn. The truck honked its horn, and they all

screamed at her husband to move to avoid a collision.

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The defense moved for a judgment of acquittal, contending that the State's evidence was insufficient to prove that Berube had operated a motor vehicle in a reckless manner likely to cause death or great bodily harm sufficient to support a charge of vehicular homicide. The court, denying the motion, stated that the evidence showed that Berube had violated the red turn signal and the jury would make a determination whether his act demonstrated a willful, wanton, or reckless disregard. This court applies the de novo standard of review when reviewing a trial court's denial of a motion for judgment of acquittal. Sanchez v. State , 909 So. 2d 981, 983 (Fla. 5th DCA 2005) (citing Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002)). In moving for a judgment of acquittal, a defendant admits not only the facts stated in the evidence, but also every reasonable conclusion favorable to the State that a jury might fairly infer from the evidence. Lynch v. State, 293 So. 2d 44, 45 (Fla. 1974). Vehicular homicide is the killing of a human being, or the killing of a viable fetus by any injury to the mother, caused by the operation of a motor vehicle by another in a reckless manner likely to cause the death of, or great bodily harm, to another.

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