State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1877

State of Minnesota,
Respondent,

vs.

Jason Rudolf Vadner,
Appellant.

Filed October 21, 2019
Affirmed
Smith, Tracy M., Judge

Otter Tail County District Court
File No. 56-CR-17-2144

Keith Ellison, Attorney General, Peter D. Magnuson, Assistant Attorney General, St. Paul,
Minnesota; and

Michelle Eldien, Otter Tail County Attorney, Fergus Falls, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jenna Yauch-Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reyes, Presiding Judge; Smith, Tracy M., Judge; and
Peterson, Judge.


 Retired judge of the Minnesota Court of Appeals, serving by app ointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
In this direct appeal, appellant Jason Vadner argues that (1) his conviction for
criminal vehicular homicide must be reversed and a new trial gr anted because the state
failed to prove the element of gross negligence beyond a reason able doubt and (2) in the
alternative, the case must be remanded for reconsideration of h is request for a downward
dispositional sentencing departur e because the district court m ade a legal error in
evaluating his particular amenability to probation. We affirm.
FACTS
Vadner was driving a semitruck on Highway 210 through foggy co nditions in the
early morning of April 13, 2017. Just before 6:00 a.m., his semitruck collided head-on with
a car driven by J.Q. J.Q. died from his injuries. The state ch arged Vadner with criminal
vehicular homicide, in violation of Minn. Stat. § 609.2112, subd. 1(a)(1) (2016).
The evidence at his jury trial showed the following facts. Vadner spoke with a state
trooper at the scene of the collision and reported that he had been driving, looked up, saw
headlights, and realized he was in the oncoming lane of traffic. He then grabbed the steering
wheel, and the impact occurred. He was not impaired by drugs or alcohol and was not using
a cell phone. In a follow-up interview with the trooper the next day, Vadner admitted that,
because of the heavy fog, he could not see the lane lines at times. He said that he considered
pulling over to the shoulder of th e road but decided to continu e until he reached the next
city because he thought that stopping might be more dangerous.

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A driver in a vehicle traveling closely behind Vadner’s semitruck testified that, just
before the collision, she saw t he semitruck go completely over the centerline into the
oncoming lane of traffic. She did not see any brake lights acti vate on the semitruck until
after she heard and then saw the collision.
Troopers testified that, on their way to the scene, they had to slow down because of
the heavy fog conditions. They estimated that visibility varied from three to six car lengths.
Two experts testified for the state. An expert in accident reconstruction pulled data
from the semitruck’s “black box” and found that the truck was traveling at speeds between
about 56 and 64 miles per hour—in a 60-mile-per-hour zone—leading up to the collision.
At the time of impact, the truck was traveling at about 59 mile s per hour. The accident
reconstructionist also determined that Vadner did not apply the truck’s brakes until after
the impact had occurred, which conformed with the eyewitness’s testimony. Another
expert witness, an investigator with the Minnesota State Patrol, testified that, based on his
forensic mapping of the scene, the collision had two causes: Vadner’s truck crossing over
the center line, and Vadner failing to reduce his speed to acco unt for the heavy fog. Both
experts determined that the semitruck was entirely in the oppos ing lane at the time of the
collision, again matching the eyewitness’s account.
After the trial, the jury found Vadner guilty of criminal vehic ular homicide based
on gross negligence. At sentencing, Vadner moved for a downward dispositional departure,
requesting a probationary sentence. The district court denied V adner’s motion and
sentenced him to 50 months’ imprisonment, which was at the bott om of the presumptive
guidelines sentencing range.

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This appeal follows.
D E C I S I O N
I. The evidence was sufficient to support appellant’s convictio n for criminal
vehicular homicide.

A person commits criminal vehicular homicide if he “causes the death of a human
being not constituting murder or manslaughter as a result of operating a motor vehicle . . .
in a grossly negligent manner.” Minn. Stat. § 609.2112, subd. 1(a)(1). Vadner argues that
the evidence is insufficient to support a finding of gross negligence.
In considering a claim of insu fficient evidence, appellate cour ts review the record
to determine whether the evidence, viewed in the light most favorable to the conviction, is
sufficient to support the jury’s verdict. State v. Olhausen, 681 N.W.2d 21, 25 (Minn. 2004).
The sufficiency of circumstantial evidence is subject to a stri cter standard of review than
is the sufficiency of direct evidence. State v. Silvernail, 831 N.W.2d 594, 598 (Minn. 2013).
Both parties contend that, in this case, the determination of g ross negligence relies on
circumstantial evidence and that the stricter standard of review applies. We need not decide
whether the direct-evidence or t he circumstantial-evidence stan dard is appropriate if the
evidence is sufficient to suppor t the jury’s verdict under the heightened standard. Id.
(declining to decide whether dir ect-evidence or circumstantial-evidence standard applies
when evidence is sufficient under standard more favorable to appellant).
To apply the heightened standard , appellate courts use a two-st ep process. Loving
v. State , 891 N.W.2d 638, 643 (Minn. 2017). First, the appellate court identifies the
circumstances that the state proved. Id. To do so, it “winnow[s] down” the evidence by

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“resolving all questions of fact in favor of the jury’s verdict” and disregarding any evidence
inconsistent with the verdict. State v. Harris, 895 N.W.2d 592, 600 (Minn. 2017). Second,
the court determines “whether th e circumstances proved are cons istent with guilt and
inconsistent with any rational hypothesis other than guilt.” State v. Bahtuoh, 840 N.W.2d
804, 810 (Minn. 2013). There are two questions within this second inquiry: first, “whether
the inferences that point to guilt are reasonable,” and, second , whether the circumstances
exclude any reasonable inference other than guilt. Silvernail, 831 N.W.2d at 599 (quotation
omitted).
Vadner argues that, while the circumstances proved may reasonab ly lead to an
inference of negligence, they are inconsistent with an inferenc e of gross negligence. We
begin the analysis with the circumstances proved.
A. Circumstances Proved
Assuming that the jury credited the testimony of the state’s witnesses and construing
the evidence in the light most favorable to the verdict, see State v. Hawes , 801 N.W.2d
659, 668 (Minn. 2011), we identif y the following circumstances proved. Vadner’s
semitruck was completely over the center line and in the oncomi ng lane of traffic when it
stuck J.Q.’s car, causing J.Q.’s d eath. Heavy fog affected visi bility that morning, and
Vadner admittedly could not see t he lines at times. At the mome nt of impact, Vadner’s
semitruck was traveling at about 59 miles per hour in a 60-mile-per-hour zone. Vadner did
not apply the semi’s brakes until after the impact had occurred . He was not impaired by
alcohol or drugs at the time of the collision and was not using his cell phone.

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Vadner argues there were additional circumstances proved: that he “realized he had
crossed the centerline and tried to correct course in a safe manner” and that he “considered
pulling over but decided it was not safe.” The first assertion, that Vadner “tried to correct
course in a safe manner,” is inc onsistent with the verdict. It is also inconsistent with the
accident reconstruction evidence, eyewitness testimony, and see mingly Vadner’s own
statement to the trooper on the day of the accident that he gra bbed the steering wheel and
the impact occurred. Thus, it is not part of the circumstances proved. See State v. Stein, 776
N.W.2d 709, 715 (Minn. 2010) (“W here the jury has rejected conf licting facts and
circumstances, we do not draw comp eting inferences from those f acts on appeal.”). The
second assertion, that Vadner “ considered pulling over but deci ded it was not safe,” also
conflicts with the verdict if construed as Vadner wishes, which is to show that he exercised
some degree of care by weighing whether to pull over. 1 We thus also disregard this
evidence insofar as it is inconsistent with the verdict. Harris, 895 N.W.2d at 600.
B. Inferences from the Circumstances Proved
We next evaluate whether it is reasonable to infer from the cir cumstances proved
that Vadner is guilty of criminal vehicular homicide based on gross negligence and whether
no reasonable inference may be drawn that is inconsistent with Vadner’s guilt. See id.

1This evidence could also be cons trued in favor of the verdict, as it tends to show that
Vadner, while aware that even stopping posed a substantial risk, continued forward at
speeds around 60 miles per hour. We construe any conflicting evidence “in the light most
favorable to the verdict,” so, even if this assertion is part o f the circumstances proved, it
does not advance Vadner’s argument. See Hawes, 801 N.W.2d at 668 (quotation omitted).

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1. Consistent with Guilt
Vadner argues that the circumstances proved are inconsistent with a finding of gross
negligence. While admitting that his driving conduct was negligent, Vadner contends that
it did not “represent the complete lack of care that characteri zes the substantially higher
standard of gross negligence.”
“Gross negligence” requires “very great negligence, or the abse nce of slight
diligence, or the want of even scant care.” State v. Bolsinger, 21 N.W.2d 480, 485 (Minn.
1946) (quotations omitted); see State v. Al-Naseer , 690 N.W.2d 744, 752 (Minn. 2005)
(“Although Bolsinger was decided in 1946, the principles set out there are still va lid
today.”). “It amounts to indifference to present legal duty, and to utter forgetfulness of legal
obligations so far as other persons may be affected. . . . Gros s negligence is a manifestly
smaller amount of watchfulness a nd circumspection than the circ umstances require of a
person of ordinary prudence.” Bolsinger, 21 N.W.2d at 485. The difference between gross
negligence and ordinary negligence is one of degree. Id. It does not require recklessness or
“willful and wanton disregard.” State v. Hegstrom , 543 N.W.2d 698, 703 (Minn. App.
1996), review denied (Minn. Apr. 16, 1996).
In the driving context, gross negligence generally includes “some egregious driving
conduct coupled with other evidence of negligence.” State v. Miller, 471 N.W.2d 380, 384
(Minn. App. 1991). A “sufficient degree of inattention to the road” can constitute the “lack
of slight care” necessary for gross negligence. Hegstrom, 543 N.W.2d at 703 (quotation
omitted) (citing State v. Tinklenberg, 194 N.W.2d 590, 591 (Minn. 1972)).

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To determine whether the circum stances proved reasonably support an inference of
gross negligence, appellate courts must evaluate them as a whol e. See Silvernail , 831
N.W.2d at 599 (“We review the circumstantial evidence not as is olated facts, but as a
whole.”). Here, the circumstances proved show Vadner was unawar e that he was driving
in the opposing lane of traffic until immediately before the im pact. Despite his admitted
inability to see the lane lines, he failed to reduce his speed in response to the heavy fog.
Evidence that a reduced speed would have been appropriate due to weather conditions can
support a finding of gross negligence, as can evidence that the driver crossed the center
line. State v. Pelawa, 590 N.W.2d 142, 145 (Minn. App. 1999) (holding that “crossing the
center line and the lane of opposing traffic . . . show[s] a degree of ‘inattention to the road’
sufficient to meet the gross negligence standard”), review denied (Minn. Apr. 28, 1999);
State v. Kissner, 541 N.W.2d 317, 321 (Minn. App. 1995), review denied (Minn. Feb. 9,
1996). A “sufficient degree of inattention to the road” can reasonably be inferred from the
evidence that Vadner was traveling through heavy fog at speeds around 60 miles per hour
in an appreciably large commercial vehicle. That he failed to b rake or make any evasive
maneuver prior to the collision supports the inference that he failed to exercise even “slight
care.” This evidence of negligence, coupled with the egregious driving conduct of
maneuvering a semitruck entirely over the center line into onco ming traffic, reasonably
supports an inference that Vadner operated his vehicle in a grossly negligent manner.
2. Inconsistent with Guilt
Vadner argues that the circumstances proved support a rational hypothesis
inconsistent with gross negligen ce—specifically, that he was me rely negligent. He does

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not assert a particular factual scenario (for example, that he fell asleep or had a medical
emergency) that is “inconsiste nt with guilt” but rather argues that gross negligence is a
high bar and his conduct did not rise to that level. He argues that several circumstances
show at least “slight” care on his part. These include that he had thought about pulling over
but determined it was safest to continue to the next town, that he did not realize he was in
the wrong lane until he felt the rumble strips on the opposing shoulder, and that he “realized
the need to correct course and did so in the safest way he knew—cautiously so as to avoid
jackknifing his truck.” He also points out that he was not unde r the influence of drugs or
alcohol, was not using his cell phone, and was not driving over the speed limit at the time
of the collision.
The first group of circumstances, regarding Vadner’s thought processes, cannot be
considered at step two because they are not “circumstances prov ed.” As explained above,
evidence inconsistent with the verdict is disregarded. See Harris, 895 N.W.2d at 600.
The remaining circumstances, regarding the absence of distractions or other traffic
violations, are not necessarily indicative of care given the weather conditions the morning
of the collision. The question is whether the circumstances that the state proved, viewed as
a whole, are consistent with a rational hypothesis other than guilt. State v. Silvernail, 831
N.W.2d 594, 599 (Minn. 2013). It remains the case that Vadner was driving a large vehicle
through heavy fog at around 60 mph when he admittedly could not see the lane lines. That
he was not using his cell phone, significantly exceeding the sp eed limit, or driving under

10
the influence of drugs or alcohol2 does not support a competing inference inconsistent with
guilt here. See Hegstrom , 543 N.W.2d at 703 (explaining that a sufficient degree of
inattention to the road can constitute gross negligence; reckless conduct is not required).
C. Conclusion
Given the circumstances proved, it is reasonable to infer that Vadner operated the
semitruck in a grossly negligent manner and there are no reasonable inferences inconsistent
with guilt. The evidence is thus sufficient to sustain the conviction.
II. The district court did not abuse its discretion by denying appellant’s motion
for a downward dispositional departure and imposing a guidelines sentence.

Vadner next argues that the dis trict court erred by denying his motion for a
downward dispositional departur e because it misapplied the law regarding particular
amenability to probation. The district court’s analysis, he argues, treated the availability of
a specific recidivism-reducing program as a strict condition pr ecedent to granting a
downward dispositional departure.
District courts have a great deal of discretion in sentencing. State v. Soto , 855
N.W.2d 303, 305 (Minn. 2014). On appeal, this court reviews a district court’s sentencing
decision for an abuse of that discretion. Id. at 307-08. The district court’s discretion is
limited, however, by the Minnesota Sentencing Guidelines, which prescribe a sentence that

2 The absence of drug or alcohol use is particularly unpersuasive because criminal vehicular
homicide resulting from impaired d riving is a separate crime co vered by a different
subsection of the statute. Compare Minn. Stat. § 609.2112, subd. 1(a)(1) (causing the death
of another while driving in a grossly negligent manner), with Minn. Stat. § 609.2112, subd.
1(a)(2) (2016) (causing the death of another while driving in a negligent manner while
under the influence of alcohol or drugs).

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is “presumed to be appropriate.” Minn. Sent. Guidelines 2.D.1 ( 2016); see Soto , 855
N.W.2d at 308. A district court may exercise its discretion to depart from the guidelines
only if there are “identifiable, substantial, and compelling circumstances that distinguish a
case and overcome the presumption in favor of the guidelines se ntences.” Soto, 855
N.W.2d at 308 (quotation omitted). “In fact, a sentencing court has no discretion to depart
from the sentencing guidelines unless aggravating or mitigating factors are present.” State
v. Spain, 590 N.W.2d 85, 88 (Minn. 1999). A district court also abuses its discretion if its
rationale is legally impermissible. See State v. Solberg, 882 N.W.2d 618, 623 (Minn. 2016).
The guidelines provide a nonexclu sive list of mitigating factor s that can justify a
downward dispositional departure, including that “[t]he offender is particularly amenable
to probation.” Minn. Sent. Guide lines 2.D.3.a.(7) (2016). The q ualifier “particularly”
severely curbs the number of departures in a way that is consis tent with promoting the
guidelines’ purpose of sentencing uniformity. See Soto, 855 N.W.2d at 308-09. In
determining particular amenab ility to probation, courts conside r factors such as “the
defendant’s age, his prior record, his remorse, his cooperation, his attitude while in court,
and the support of friends and/or family.” State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982).
A district court is not required to depart “from a presumptivel y executed prison sentence,
even if there is evidence in the record that the defendant would be amenable to probation.”
State v. Olson, 765 N.W.2d 662, 663 (Minn. App. 2009).
Vadner argues that the district court misapplied the law for de termining particular
amenability to probation by trea ting the availability of a spec ific recidivism-reducing
program as a necessary prerequisite for departure. He argues th at Minnesota law contains

12
no such requirement and imposing one conflicts with the princip le that dispositional
departures should be based on the characteristics of the individual defendant.
The district court analyzed par ticular amenability to probation on the record as
follows:
When I’m asked to make a determination of whether a
person is particularly amenable to probation, depending on the
case, there are a variety of factors that I look to. Included within
those factors is a consideration of what services or treatment or
supervision could be provided to address needs of the
defendant that have been identified. . . .

I have given this decision task a lot of thought. I have
reviewed the authorities and the Sentencing Guideline
comments and information that’s made available to the Court.
And in these circumstances, I am not finding that there is a
particular amenability to probation that would support granting
a term of probation. And that is because I can’t find, in my
mind, the particular service or treatment or degree of
supervision that would address a need of Mr. Vadner so as to
promote this concept of the criminal activity being repeated in
the future.

I have no doubt that Mr. Va dner would be accountable
to probation. I believe he would meet with his probation
officer. I believe that he would follow the rules of probation
that are established. But it’s that concept of what could be done
so the activity, the criminal activity, is not repeated that my
analysis follows on the decision of not finding amenability to
probation.

The district court accordingly denied Vadner’s motion for a dow nward dispositional
departure. The presumptive guidelines sentence was 58 months’ i mprisonment, with a
range of 50 to 69 months, and the court sentenced him to 50 months’ imprisonment.
Vadner argues that the district court’s reasoning conflicts wit h Minn. Sent.
Guidelines 2.D.3.a.(7). That provision states that particular amenability to probation “may,

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but need not, be supported by the fact that the offender is particularly amenable to a relevant
program of individualized treatment in a probationary setting.” Cf. Soto, 855 N.W.2d at
311 (finding an amenability-to-pr obation analysis flawed insofa r as it treated the
defendant’s remorse as a “strict prerequisite,” rather than one of several factors that may
be considered). Vadner asserts that the district court erroneou sly required a showing of
particular amenability to an anti-recidivism treatment program before it would consider
dispositional departure.
The district court’s reasoning, however, is not as rigid as Vad ner’s argument
portrays it. Notably, the court explained: “I can’t find, in my mind, the particular service
or treatment or degree of supervision that would address a need of Mr. Vadner so as to
promote the concept of the criminal activity being repeated in the future.” (Emphasis
added.) This explanation does not necessarily imply that the district court viewed a specific
program of individualized treatment as a strict prerequisite to finding Vadner particularly
amenable to probation. Rather, in context, it seems to show tha t the court did consider
Vadner as an individual and did not find a specific need of his that probation could address.
The district court’s analysis does not end at “treatment” but also looks for any “service” or
“degree of supervision” that could prevent similar criminal act ivity from occurring. And
the district court stated at the outset that, when it determines whether a person is particularly
amenable to probation, it looks to “a variety of factors.” The district court said it “[gave]
this decision a lot of thought” and reviewed the authorities, g uidelines, and information
available to the court. This all shows that the district court did not premise its sentencing
decision on the availability of specific programming.

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It also shows that the district court did not abuse its discre tion by imposing a
guidelines sentence. Again, a district court looks at factors s uch as “the defendant’s age,
his prior record, his remorse, his cooperation, his attitude wh ile in court, and the support
of friends and/or family.” Trog, 323 N.W.2d at 31. The record here shows that, at the time
of the offense, Vadner was 34 year s old. His criminal history i ncluded one felony
conviction and several misdemeanor, traffic, and juvenile offenses. He had succeeded on a
stay of imposition in the past and argued that should weigh in his favor. The presentence
investigation report (PSI) suggested that he was very remorsefu l but that he believed he
had taken proper precautions on the day of the accident. The district court appears to have
analyzed, at least implicitly, “cooperation” and “attitude in court,” as it found that Vadner
would “no doubt” be accountable to probation and follow the rules. As to family support,
the PSI reflected that Vadner had a wife and several children a s w e l l a s a “ g o o d
relationship” with his mother and stepfather. In sum, some fact ors favored Vadner, and
others did not, and no single factor is dispositive in determin ing particular amenability to
probation. See Trog , 323 N.W.2d at 31 (holding that numerous factors are relevant) .
Moreover, a district court is not required to depart from the guidelines even if a defendant
is particularly amenable to probation. See State v. Olson , 765 N.W.2d 662, 663 (Minn.
App. 2009).
We may not interfere with a sentencing court’s exercise of discretion in imposing a
presumptive sentence “as long as the record shows the sentencing court carefully evaluated
all the testimony and information presented.” State v. Van Ruler, 378 N.W.2d 77, 81 (Minn.
App. 1985). The record demonstrates that the district court did so here. The record also

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demonstrates that the district court made no error of law. The district court therefore acted
within its discretion when it denied a dispositional sentencing departure.
Affirmed.