Opinion
Court of Appeals No. A-12235 No. 6664
08-01-2018
MARK DOUGLAS ANDERSON, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Jane B. Martinez, Law Office of Jane B. Martinez, LLC, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Michal Stryszak, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.
NOTICE Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law. Trial Court No. 4FA-14-1881 CR
MEMORANDUM OPINION
Appeal from the District Court, Fourth Judicial District, Fairbanks, Ben A. Seekins, Judge. Appearances: Jane B. Martinez, Law Office of Jane B. Martinez, LLC, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Michal Stryszak, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. Judge MANNHEIMER.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Mark Douglas Anderson was charged with one count of driving under the influence after Alaska State Troopers found him asleep and intoxicated in the driver's seat of a vehicle that had its engine running. Anderson was convicted following a jury trial.
AS 28.35.030(a).
Anderson raises two claims of error on appeal. First, Anderson argues that the trial judge erred when he used the former version of Alaska Criminal Pattern Jury Instruction 28.35.030(a) #3, the pattern jury instruction on the definition of "operating" a motor vehicle. Second, Anderson argues that the trial judge committed plain error when he failed to instruct the jurors that they had to be unanimous as to whether Anderson was "driving" the motor vehicle versus "operating" the motor vehicle.
For the reasons explained here, we find no merit to either of these claims. Accordingly, we affirm the judgement of the district court.
Underlying facts
One afternoon in June 2014, Alaska State Troopers responded to a homeowner's report that two intoxicated persons were sitting in a parked vehicle in the driveway of his private residence. Trooper Marco Fischer arrived at the residence, observed the vehicle in the driveway with its engine running, and found Anderson asleep in the driver's seat of the vehicle. Fischer woke Anderson, smelled alcohol on Anderson's breath, and observed that Anderson had watery eyes and slurred speech.
A breath test performed at the police station revealed that Anderson's blood alcohol content was .301 percent (almost four times the legal limit). Anderson was charged with driving under the influence, AS 28.35.030(a).
At the close of Anderson's trial, the judge instructed the jury on the meaning of "operating" based on the then-current (but now superseded) version of Criminal Pattern Jury Instruction 28.35.030(a) #3.
This instruction began with a general definition of "operate": the jury was told that "to operate" a motor vehicle meant "to drive or to have actual physical control over the vehicle." This general definition was then followed by three examples drawn from appellate cases. The jury was told that these three examples "illustrate[d] what it means for a person to be in actual physical control of a motor vehicle". The instruction told the jurors that if they found beyond a reasonable doubt that Anderson "[had] as much physical control over a motor vehicle as the persons in these examples, or more, then [they] must find that [he] was 'operating' the vehicle."
The first of the three examples presented a situation that was close to the State's allegations against Anderson:
If a person is seated in the driver's seat and the vehicle's engine is running, then the person is "operating" the vehicle, even if the vehicle isn't moving, and even if the vehicle isn't capable of moving.
Anderson's defense attorney objected to this instruction to the extent that it contained the three illustrative examples of what it means to be "in physical control of a motor vehicle". The defense attorney proposed an alternative instruction — one that did not contain the three illustrative examples. The trial judge overruled the defense attorney's objection and declined to use Anderson's alternative instruction.
In a separate portion of the instructions, the trial judge told the jurors that they could find Anderson guilty if Anderson was either "operating" or "driving" a motor vehicle while under the influence. The judge did not instruct the jurors that they had to unanimously agree on which of these two theories was proved. Anderson's attorney made no objection to this portion of the jury instructions.
The jury found Anderson guilty, and this appeal followed.
Why we conclude that use of the former pattern jury instruction on "operating" was not error in the context of Anderson's case
On appeal, Anderson renews his challenge to the jury instruction that contained the examples of what it means to be "in physical control of a motor vehicle".
Anderson argues that, because the jury instruction included the example of a person seated in the driver's seat of a vehicle with the engine running (an example that was so close to the facts of his case), the instruction did not allow the jurors to consider the "totality of the circumstances" when they assessed whether Anderson was in physical control of the vehicle. Thus, according to Anderson, the instruction constituted a directed verdict in favor of the prosecution.
We disagree. This instruction did not direct the jury to return a particular verdict, nor did the instruction direct the jury to find that specific factual allegations had been proved. Rather, the instruction informed the jury that if the State proved, beyond a reasonable doubt, that Anderson was sitting in the driver's seat of the vehicle with its engine running, then Anderson was "operating" the motor vehicle as that term is defined by Alaska law.
Anderson does not dispute that this is a correct statement of Alaska law. And the jurors were repeatedly instructed that they were the ultimate finders of fact. We therefore reject Anderson's contention that this jury instruction constituted a directed verdict in favor of the government.
We acknowledge that there are potential problems when a jury instruction defines legal concepts by analogy. But these potential problems did not arise in Anderson's case. Anderson did not dispute that he was seated in the driver's seat of the vehicle, nor did he dispute that the vehicle's engine was running; Anderson's defense at trial was that he was not intoxicated at the time. Thus, although there might be other situations where the earlier version of the pattern instruction would be misleading or inaccurate, that was not the case here. We therefore find no error.
See Suiter v. State, unpublished, 2016 WL 7324289 at *6 (Alaska App. 2016) (noting the potential problems inherent in the use of case examples to describe legal principles, but pointing out that none of these problems came to fruition in Suiter's case). See also Judge Allard's concurring opinion in Edwardsen v. State, unpublished, 2015 WL 731538 at *2-3 (Alaska App. 2015) (noting the potential problems with the former version of this pattern jury instruction).
Why we conclude that no factual unanimity instruction was necessary
Anderson's trial judge instructed the jury that it could convict Anderson either under a "driving" or an "operating" theory, but the judge did not instruct the jury that it had to unanimously agree on which theory the State had proved — thus leaving open the possibility that some jurors would find Anderson guilty because he drove the vehicle, while others would find him guilty because he operated the vehicle.
Anderson claims that, under these circumstances, he was deprived of his right to require the jury to reach factual unanimity, and that this was plain error.
According to the evidence at trial, the charge against Anderson arose when a homeowner called the troopers to report that a vehicle was parked in his driveway, and when a state trooper arrived to find Anderson asleep behind the wheel, the engine was running. In addition, Anderson's defense attorney called the homeowner to the stand and elicited testimony that, prior to the trooper's arrival, Anderson had tried to run the homeowner over. Thus, the jury heard the trooper's direct evidence that Anderson was operating the vehicle when the trooper arrived (by being in control of the vehicle while it was parked with its engine running), as well as other evidence suggesting that Anderson had driven the vehicle to its location in the homeowner's driveway.
Anderson argues that, before the jury could return a guilty verdict, the jurors had to unanimously agree on which of these theories the State had proved. But so long as a criminal charge is based on a discrete episode, Alaska law does not require the jurors to reach unanimity regarding the theory under which the defendant's actions constitute the charged crime. We recently discussed this point at some length in Taylor v. State.
400 P.3d 130, 134-35 (Alaska App. 2017).
In addition, this Court has previously held that being under the influence (the theory of DUI codified in AS 28.35.030(a)(1)) and having a blood alcohol level of .08 percent or greater (the theory of DUI codified in AS 28.35.030(a)(2)) are "simply alternative ways of committing the same offense". Therefore, jurors need not be unanimous as to which of these two theories is proved.
Molina v. State, 186 P.3d 28, 29-30 (Alaska App. 2008); Gundersen v. Anchorage, 762 P.2d 104, 114-15 n. 7 (Alaska App. 1988). --------
Given this case law, and given the circumstances of Anderson's case (i.e., circumstances where, if Anderson drove the vehicle, he did so immediately before arriving at the spot where the trooper found him), we doubt that Alaska law required the jurors to reach unanimous agreement as to whether Anderson "drove" or "operated" the motor vehicle during the charged episode.
But in any event, the record shows that any error was harmless. From the time the prosecutor delivered his opening statement to the time he delivered the State's summation at the end of trial, the prosecutor told the jury that the State was prosecuting Anderson for "operating" the motor vehicle — i.e., for being intoxicated and seated behind the wheel of a running vehicle.
Thus, while the jury did hear testimony that Anderson was driving the vehicle before the trooper arrived, the prosecutor clearly informed the jury that the State was prosecuting Anderson solely under an "operating" theory, based on Trooper Fischer's testimony that Anderson was intoxicated and seated in the driver's seat of a running vehicle.
Given the clarity of the prosecutor's remarks, and given the overwhelming evidence that Anderson was operating the vehicle when the trooper contacted him in the driveway, there is no reasonable possibility that the jurors failed to reach unanimous agreement on the "operating" theory of DUI. Thus, even assuming that Alaska law required the jurors to reach unanimity on the theory of the offense, any error in failing to apprise the jurors of this requirement was harmless beyond a reasonable doubt.
Conclusion
The judgement of the district court is AFFIRMED.