What Exactly Is and Is Not Circumstantial Evidence?

On Easter Sunday, March 27, 2016, at about 7:00 p.m., Defendant Tom Doane lost control of his Ford F-250 pick-up truck and collided almost head-on with a Honda sedan driven by Francis Joaux, killing him.  The crash occurred during daylight hours on Highway 84, which the CHP described as a windy mountain road with lots of switchbacks and very few straightaways.  Some areas have no shoulder. 

The CHP described the area as an area “well-known for motorcycle crashes and crashes in general.” 

Where the crash occurred, traffic is one lane in each direction.  The precise location was on a short straightaway between two curves.

A witness to the crash described Doane’s truck as sliding sideways into oncoming traffic, running over the Honda and then flipping upside down.  No alcohol or drugs were involved.

After the crash, Doane fled the scene on foot and was not apprehended until the next day.  The jury convicted him of one count of vehicular manslaughter, with an enhancement for fleeing the scene, and a separate count of leaving the scene of an accident.  The judge, Mark R. Forcum, sentenced Doane to eleven years in state prison.

At trial, the key issue was whether Doane acted with gross negligence, as he conceded he acted with ordinary negligence and was thus liable for the lesser-include charge of vehicular manslaughter with gross negligence, a misdemeanor.

After his conviction, he appealed the verdict to the First Appellate District, arguing his vehicular manslaughter conviction must be reduced to the lesser offense because of insufficient evidence, prosecutorial error and a mistake by the trial court in answering a jury question.

The scope of this article will be limited to the First Appellate District’s opinion agreeing with Doane that the prosecutor misstated the law involving circumstantial evidence in closing argument and the judge incorrectly answered a jury question about the use of post-crash conduct to find gross negligence – and its finding that these two errors were collectively prejudicial and reversing the conviction for gross vehicular manslaughter.

At trial, Doane’s counsel argued that CALCRIM 224 (a jury instruction) instructs the jury that if the circumstantial evidence could support two reasonable conclusions, that Doane drove with ordinary negligence or gross negligence, the jury must conclude that Doane drove with ordinary negligence. 

CALCRIM number 224 states that, “before your may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the evidence is that defendant is guilty.  If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence.”

In closing argument, Doane’s trial counsel argued to the jury that it should “take the totality of the circumstances surrounding alcohol,” as there were some witnesses who testified that Doane smelled like alcohol and some who said he did not, “and take it through the filter of the circumstantial evidence instruction,” CALCRIM 224.  “If you can draw two or more reasonable conclusions from the circumstantial evidence and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence.” 

The prosecutor argued that “innocence” referred to in the jury instruction applies only to actual innocence, not guilt of a lesser included offense.  Doane’s counsel then immediately objected that the prosecutor’s argument “misstated the law” and the trial court overruled the objection.

The prosecutor then concluded that CALCRIM 224 did not apply to differing levels of negligence, only between criminal liability and innocence.  “There is no distinction in this instruction between the levels of negligence.”

On appeal, Doane argued that the trial court judge’s ruling was incorrect and prejudicial, which the First Appellate Court agreed.

 

We bring this article to the reader’s attention because circumstantial evidence is such a common issue and CALCRIM 224 is the often-misunderstood instruction on this issue.  We hope that his article clarifies how it must be interpreted and argued as well.

The citation for the First Appellate District Court ruling discussed above is People v. Tom Doane (1st App. Dist., 2021) 66 Cal. App. 5th 985, 281 Cal. Rptr. 3d 594.

For more information about miscellaneous evidence being used in court, please click on the following articles: