On Appeal from Superior Court, Franklin Unit, Criminal Division, Robert A. Mello, J.
James A. Hughes, Franklin County State’s Attorney, St. Albans, for Plaintiff-Appellee.
Matthew F. Valerio, Defender General, Anna Saxman, Deputy Defender General, and Thomas Tarnow, Legal Intern, Montpelier, for Defendant-Appellant.
PRESENT: Reiber, C.J., Dooley, Skoglund, Burgess and Robinson, JJ.
¶ 1. Defendant appeals his jury conviction for negligent operation of a motor vehicle and the resulting sentence. He asserts that the trial court impermissibly allowed the State’s crash reconstruction expert to testify about defendant’s speed at the time of the collision. Defendant also contends that, at sentencing, the trial court erred in considering the death that resulted from the accident as a factor in sentencing. We affirm defendant’s conviction and sentence.
¶ 2. The record reveals the following facts. While driving several colleagues from work in his pick-up truck on Lake Road in St. Albans, defendant recognized a coworker traveling up ahead. As a joke, defendant passed the coworker’s vehicle on the left, crossing a double-yellow line. Defendant’s passing speed is not clear from the record, but by all accounts it exceeded the posted 40 miles per hour limit. Defendant completed the pass and returned to the right lane. Some evidence suggests he began to decelerate as his truck neared the approaching intersection with Kellogg Road.
¶ 3. Meanwhile, the decedent driver, who was travelling south on Kellogg Road with his mother as a passenger, had reached the intersection of Lake and Kellogg Roads. The decedent turned left onto Lake Road either as defendant was passing the coworker’s vehicle or immediately afterwards. About three seconds after defendant returned to the right lane, defendant’s truck collided with the decedent’s car. The decedent’s car spun 180 degrees, stopping on Lake Road near the intersection. Defendant’s truck slid, bounced, or rolled off the road through a barbed wire fence and came to rest in a farmer’s field. The decedent died from injuries sustained during the crash; defendant suffered a broken leg.
¶ 4. A captain of the Franklin County Sheriff’s Department, certified as an accident reconstructionist by the Institute of Police Technology and Management, visited the scene, reviewed evidence gathered by the responding law enforcement officials and performed on-site testing. As part of his process, he pulled a drag sled—a weighted sled with attached scales—over the road and grass surfaces where the vehicles had traveled. He used a mathematical formula to determine the “drag factor, ” or the amount of friction existing between a moving vehicle and the ground, generated by these surfaces. He incorporated the drag factors, estimated vehicle weights, post-crash travel distances, and braking estimates into other formulas to calculate the momentum required to move the vehicles from the point of impact over those surfaces to their final resting positions. Working backward from these calculations, and accounting for the energy absorbed by the crash, the officer concluded that defendant had been traveling 61 miles per hour when his truck struck the decedent’s car.
¶ 5. Defendant was charged with grossly negligent operation of a motor vehicle, death resulting, pursuant to 23 V.S.A. § 1091(b). Before trial, defendant moved to exclude the speed calculation evidence as inadmissible under Vermont Rule of Evidence 702, arguing that the crash reconstruction expert’s analysis was scientifically unreliable. The court held a motion hearing at which the State and defendant each presented expert testimony from accident reconstructionists. The court ruled that defendant’s concerns about the testimony of the State’s expert went to the weight of the evidence, not its admissibility, and denied defendant’s motion. The State’s expert testified at trial, as did the passengers in defendant’s truck who offered a range of pre-crash speeds from 45 to 55 miles per hour. Defendant called his own expert to testify that the speed calculations of the State’s expert were unreliable. The jury acquitted defendant of grossly negligent operation but convicted him of the lesser included offense of negligent operation under 23 V.S.A. § 1091(a).
¶ 6. Before sentencing, defendant asked the court to determine that, as a matter of law, the decedent’s family members could not be “victims” entitled to speak at the sentencing hearing. Defendant argued that because his conviction for negligent operation did not contain any requirement of injury or harm, the decedent could not have been injured as a “direct result” of his negligence and so neither the decedent nor his family members could be “victims” for sentencing purposes. The trial court indicated that it would decide at the sentencing hearing whether to make a finding as to causation, and consequently, whether the decedent’s family members would be entitled to testify.
¶ 7. At the sentencing hearing, the court found that defendant was travelling between 50 and 55 miles per hour on impact, rejecting both the State’s expert testimony offering a speed of 61 miles per hour and defendant’s assertion of 45 to 50 miles per hour. Noting that the parties had stipulated that the accident caused the decedent’s death, the court also found that “defendant’s negligence was in fact a direct and substantial cause of the accident and, therefore, a proximate cause, ”  and permitted the decedent’s mother to speak as a “victim” of defendant’s crime. Defendant spoke on his own behalf. The court sentenced defendant to a prison term of 30 days to one year, with 30 days to serve and a three-year term of probation. This appeal followed.
¶ 8. Defendant first contends that the trial court erred in denying his motion in limine and permitting the State’s crash-reconstruction expert to testify about defendant’s speed at the time of the collision. Specifically, defendant claims that by using a drag sled on grass to calculate drag factor and assuming that defendant’s tires were locked and fully inflated, the ...