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STATE OF MINNESOTA IN COURT OF APPEALS A10-1127 State of Minnesota, Respondent, vs. Jeremy Scott Nelson, Appellant. Filed November 21, 2011 Reversed and remanded Klaphake, Judge Becker County District Court File No. 03-CR-08-3250 Lori Swanson, Attorney General, John B. Galus, Assistant Attorney General, St. Paul, Minnesota; and Brian Melton, Acting Special Assistant Becker County Attorney, Moorhead, Minnesota (for respondent) Jenneane L. Jansen, Jansen & Palmer, Minneapolis, Minnesota (for appellant) Considered and decided by Klaphake, Presiding Judge; Schellhas, Judge; and Stauber, Judge. SYLLABUS 1. In a criminal vehicular homicide case in which the negligent conduct of two

motor vehicle drivers intertwines to cause the death of one driver, the district court abuses its discretion by excluding evidence of the victim driver's alcohol consumption while admitting evidence of the defendant driver's alcohol consumption.

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When the intertwined negligent conduct of two motor vehicle drivers

results in charges of criminal vehicular homicide being brought against one driver, the district court's jury instruction must define causation to inform the jury that a guilty verdict requires that the defendant driver's conduct must have played a substantial part in bringing about the death or injury of the victim driver. OPINION KLAPHAKE, Judge A jury found appellant guilty on three charges of criminal vehicular homicide for colliding with the victim's vehicle, which had entered the driving path of appellant's vehicle moments before the collision. Appellant claims that the district court abused its discretion by excluding evidence of the victim's alcohol consumption and by failing to instruct the jury on the proper definition of causation. FACTS Just after 3:00 a.m. on August 17, 2008, on County Road 1 near the town of Lake Park in Becker County, appellant Jeremy Scott Nelson's Chevy Silverado pickup truck struck a Honda all-terrain vehicle (ATV) driven by Christopher Wade Carlson, resulting in Carlson's death. The evening before, K.B., a mutual friend of both appellant and Carlson, arranged for the three to meet at Cormorant Days, a local event; they all arrived at the Cormorant Pub by 10:00 p.m. Two bartenders each remembered serving appellant two beers during the evening. At about 1:00 a.m., K.B. and Carlson went to the

Roadhouse Bar and stayed about 30 to 45 minutes. K.B. then drove Carlson to Carlson's

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home on County Road 1 and went home himself. Appellant also went to the Roadhouse Bar and ordered two beers, but according to the bartender he gave one beer away. Just after 2:00 a.m., appellant drove to K.B.'s house on County Road 1, where he and K.B. drank a beer on K.B.'s deck. Carlson also arrived at K.B.'s house, driving his ATV; he stayed about 15 minutes and then left for home on the ATV. According to K.B., when Carlson drove away on the ATV, its lights were illuminated. Appellant left K.B.'s house about five minutes after Carlson left. J.J., who also lives on County Road 1 between K.B.'s and Carlson's homes, was grilling outside with some friends and saw an ATV come from the direction of K.B.'s house on County Road 1 around 3:00 a.m. He observed that the ATV had no lights on and estimated that it was driving about 40 m.p.h. The collision occurred on an east-west stretch of County Road 1, about five miles north of K.B.'s home. After appellant drove through a large curve at the top of a rise in the road, he entered the ditch on the south side of the eastbound lane as the road descended. The pickup travelled in the ditch for 355 feet before it came upon Carlson's ATV and struck it from behind. The ATV had also been driving in an easterly direction on the road and entered the same ditch approximately 50 feet before impact. Carlson's body was found lying on County Road 1, 342 feet from the point of impact. Carlson died within minutes from massive traumatic injuries. After the collision, appellant's pickup traversed County Road 1 to the ditch on the north side of the road, vaulted into the air after striking a field approach, and came to rest between 600-700 feet from the impact

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point of the collision. A passerby discovered the scene and contacted police, who arrived there at approximately 3:13 a.m. Immediately following the accident, appellant locked his pickup and spent the next four hours at large on foot in the vicinity. He eventually arrived at the home of his great aunt, D.O., who lived about a mile-and-a-half north of the accident scene, at 7:15 a.m. on August 17. He was wearing muddy jeans and told D.O. that he had been in an accident and had been lost in a cornfield and some woods since then. Appellant's family reported the accident and took him to the hospital for examination. Becker County Sheriff Deputy Bruce Anderson met appellant at the hospital, noticed that appellant showed signs of intoxication, and read him the implied consent advisory. Appellant's blood alcohol concentration (BAC) at 8:55 a.m. on August 17 was tested at .056 and .058. For his conduct, appellant was charged with three counts of criminal vehicular homicide (CVH), including caus[ing] . . . the death of another as a result of operating a motor vehicle: (1) in a grossly negligent manner; . . . (2) in a negligent manner while under the influence of: (i) alcohol . . . [and] (7) where the driver who causes the accident leaves the scene of the accident. Minn. Stat.

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