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Because the depraved mind mental state required for third-degree murder is the equivalent of a reckless standard, the third-degree murder statute requires a showing of recklessness consistent with the definition adopted in the line of cases holding that a person acts recklessly when he consciously disregards a substantial and unjustifiable risk that the element of an offense exists or will result from his conduct and incorporated into the definition of recklessly in the criminal jury instruction guide. Accordingly, the depraved mind element of the third-degree murder statute requires proof that the defendant was aware that his conduct created a substantial and unjustifiable risk of death to another person and consciously disregarded that risk.
Appellant Eric Joseph Coleman drove his snowmobile at a speed of 58 miles per hour (mph) on a lake where people were ice fishing. Appellant did so after drinking several alcoholic beverages. Appellant struck an eight-year-old child with his snowmobile and then struck the child's father, injuring both father and son. The child later died. The jury found appellant guilty of third-degree murder, two counts of criminal vehicular homicide, two counts of criminal vehicular operation, and two counts of driving while impaired. The district court entered convictions for all seven offenses. On appeal from his convictions, appellant argued that (1) the district court plainly erred in instructing the jury on the mens rea element of third-degree murder; (2) the district court abused its discretion by admitting evidence of a prior alcohol-related driving incident; (3) the evidence was insufficient to sustain his conviction of third-degree murder; (4) the state committed prosecutorial misconduct during opening and closing arguments by inflaming the passions and prejudices of the jury; and (5) the district court erred by entering convictions for both counts of criminal vehicular operation and both counts of driving while impaired.
While trial court erred when it failed to instruct the jury that it could find appellant guilty of third-degree murder only if it found he was aware his conduct presented a substantial and unjustifiable risk of causing the death of another and he consciously disregarded that risk, the error was not plain because the instruction was from the model jury instructions and recklessly had not previously been required to be defined in that way. The court further held that the trial court did not err by admitting evidence of appellant's prior alcohol-related offense because the prior offense was sufficiently close to the charged offense in terms of time, place, and modus operandi and it was relevant to the State's case by making it more probable that appellant knew that his actions of driving while intoxicated presented a substantial and unjustifiable risk of death to another. However, the court held that with regard to the criminal-vehicular-operation convictions and the driving-while-impaired convictions, the district court erred by imposing two convictions, rather than one conviction, for each of these offenses because the convictions arose out of the same behavioral incident.