On the evening hours of November 10, and the early morning hours of November 11, Mark Larson went out drinking with his friends.  He admitted he and two other college friends Morgan and Claire had been drinking at various residences and bars as well as in his vehicle in that evening. Larson admitted he had consumed between ten and twelve drinks, including whiskey, during the evening.

Around 3:30 a.m, on November 11 2001, Larson drove his pick-up track with his friends in it at high speed on a frontage road between the Conrad and Brady residential area. The track veered off the right shoulder of the road surface near the beginning of the left curve. Larson pulled the pickup back onto the asphalt surface but overcorrected. The overcorrection sent the pickup across the highway and into the left barrow ditch. When he attempted to ride-out the ditch, the pickup rolled over two and a quarter times, and ejected the three occupants. None of the occupants were wearing a seatbelt at the time. Larson and Morgan escaped without serious injuries, but Claire sustained blunt-force trauma to the head and died as a result of his injuries.

Larson later admitted that he had been momentarily distracted during a conversation with Clare and drifted off the right side of the roadway. An analysis of Larson’s blood sample taken three hours after the accident showed a blood alcohol concentration of 0.12%

Larson was charged with and convicted on one count of negligent homicide for the death of Clare, amoung other misdemeanors charges for his failure to wear a seatbelt,  for driving under the influence, and for speeding.

After trail and before deliberation, both the state and the defendant submitted proposed instructions to the district court. Larson objected to one of the instructions the judge gave to the jury concerning the definition of criminal negligence.

The instruction read as follows:

A person acts negligently with respect to the death of a human   being or to a circumstance when an act is done with a conscious disregard of the risk that death of a human being will occur or that the circumstance exists or when the person disregards a risk of causing the death of another human being which the person should be aware that the result will occur or that the circumstance exists.

 The risk must be of a nature and degree that to disregard it involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor’s situation. ‘Gross deviation’ means a deviation that is considerably greater than lack of ordinary care.

Larson objected to the instruction on the ground that the word “consciously” should have been inserted before the word “regards” in defining criminal negligence. So that the last part of the instruction would read, “ or when the person consciously disregards a risk of causing the death of another.” This way in order to be found guilty, the state would have a heightened standard of proof to show that he consciously disregarded the risk to another.

The district court overruled his objection to the instruction.

Larson then appealed his conviction all the way to the state’s supreme court.