Appeals Court (November 7, 2006)
The offense of operating to endanger does not require a jury to unanimously decide a theory of either recklessness or negligence. Proof of ordinary negligence is sufficient and assumed in a verdict of recklessness.
The defendant was convicted of operating to endanger and appealed arguing that his conviction should be overturned because there are two theories of the offense: 1) negligence; or 2) recklessness, and the jury was not required to unanimously decide which theory the conviction was based upon. The court disagreed reasoning that a jury finding that the defendant's operation was reckless implicitly recognizes that his operation was negligent. Although the term reckless appears in the language of the statute, a finding of ordinary negligence is all that is required.