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State v. Wisowaty

Supreme Court of Vermont

July 24, 2015

State of Vermont
v.
David Wisowaty

On Appeal from Superior Court, Chittenden Unit, Criminal Division. Samuel Hoar, Jr., J.

Thomas J. Donovan, Chittenden County State's Attorney, Burlington, and Gregory Nagurney, Deputy State's Attorney, Montpelier, for Plaintiff-Appellee.

Robert S. Behrens of Behrens Venman, PLLC, Burlington, for Defendant-Appellant.

Present: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.

OPINION

Page 877

Skoglund, J.

[¶1] Defendant David Wisowaty appeals the trial court's decision denying his motions for judgment of acquittal and new trial. Defendant argues that the judge, sitting as factfinder, relied upon evidence not introduced at trial and that the evidence presented was insufficient to sustain a conviction; thus, the trial court erred in finding him guilty of excessive speed and negligent operation of a vehicle. We agree that the evidence was insufficient and therefore reverse the trial court's denial of defendant's motion for acquittal.

[¶2] The undisputed factual background is as follows. Around 9:00 p.m. on August 10, 2013, defendant rode his motorcycle southbound on Dorset Street in South Burlington toward Vermont National Country Club, which was on his right. Dorset Street is a public highway with a posted speed limit of forty miles per hour.

[¶3] As defendant rode south, Peter Yee prepared to make a left turn out of the country club to go north on Dorset Street. Mr. Yee testified that he looked left then right, and began slowly to pull out. He stated he was about half-way into the oncoming lane when he observed the headlight of defendant's approaching motorcycle. Mr. Yee stopped with the right front corner of his truck at or near the centerline of the street. The truck occupied virtually the entire southbound lane, which required defendant to travel into the northbound lane to avoid collision.

[¶4] Defendant hit the right front of Mr. Yee's truck. As a result, defendant crossed the northbound lane at an oblique angle, still upright on his motorcycle. The motorcycle traveled across a small grass strip, a paved bike path, and about eighty feet of grass before it came to a rest approximately 150 feet from the initial point of impact. Somewhere along the way, defendant separated from his motorcycle and slid before landing not far from it. These paths of travel are depicted in the diagram below -- a resized copy of the State's Exhibit 14, admitted at the trial court -- to which we will refer throughout this opinion.[1]

Page 878

[¶5] The State charged defendant with operating a motor vehicle on a public highway in a negligent manner, 23 V.S.A. § 1091(a), and operating a motor vehicle at or above sixty miles per hour and at least thirty miles per hour in excess of the speed limit, 23 V.S.A. § 1097.

[¶6] The three-day bench trial consisted, in large part, of the testimony of multiple expert witnesses. In addition to defendant's own testimony and Mr. Yee's testimony, both the State and defendant presented their own accident reconstructionist, each of whom used ...


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