Opinion
Court of Appeals No. A-10252.
August 11, 2010.
Appeal from the District Court, First Judicial District, Ketchikan, Kevin G. Miller, Judge, Trial Court No. 1KE-08-217 CR.
Appearances: Serena Green, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Nicholas A. Polasky, Assistant District Attorney, Stephen R. West, District Attorney, Ketchikan, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
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 precedent for any proposition of law.
MEMORANDUM OPINION AND JUDGMENT
Kyle M. Hornbaker was convicted of driving under the influence and habitual minor consuming alcohol. He argues that these two offenses are so overlapping in their statutory elements and objectives that convicting him of both violated the Alaska Constitution's double jeopardy clause. We find no merit to this claim, and therefore affirm Hornbaker's convictions.
AS 28.35.030(a).
AS 04.16.050(d).
Facts and proceedings
On March 16, 2008, Hornbaker was stopped in Ketchikan for a traffic infraction. After he performed poorly on the field sobriety tests, he was arrested for driving under the influence. Hornbaker was transported to the police station for a breath test, which showed an alcohol level of .163 percent, more than twice the legal limit. Because he was under twenty-one years old, and because he had two prior convictions for minor consuming alcohol, Hornbaker was also charged with the misdemeanor offense of habitual minor consuming alcohol.
At his bench trial, Hornbaker argued that he could not be convicted of both offenses without violating the double jeopardy clause of the Alaska Constitution. He asked District Court Judge Kevin G. Miller to dismiss the minor consuming alcohol charge on this basis. Judge Miller denied the motion to dismiss and convicted Hornbaker of both offenses.
Article I, Section 9, of the Alaska Constitution provides: "No person shall be put in jeopardy twice for the same offense."
Why we conclude there is no double jeopardy violation
On appeal, Hornbaker renews his claim that convicting him of both driving under the influence and minor consuming alcohol violates the Alaska Constitution. He argues that, given how his case was litigated — i.e., given that he did not dispute that he w as under twenty-one years old — minor consuming alcohol was a lesser-included offense of driving under the influence. He points out that, under the Alaska Supreme Court's decision in Tuckfield v. State, a defendant cannot be convicted of both an offense and a lesser-included offense without violating Alaska's double jeopardy clause, unless the two convictions arise from separate conduct.
621 P.2d 1350 (Alaska 1981).
Id. at 1352.
Lesser-included offenses are governed by Alaska Criminal Rule 31(c), which provides that a defendant "may be found guilty of an offense necessarily included in the offense charged." An offense qualifies as "necessarily included" if, under the factual allegations against the defendant, "it would be impossible for the defendant to have committed the charged crime without also having committed the lesser offense."
Alaska R. Crim. P. 31(c) provides in full:
Conviction of Lesser Offense. The defendant may be found guilty of an offense necessarily included in the offense charged, or of an attempt to commit either the offense charged or the offense necessarily included therein if the attempt is an offense. When it appears that the defendant has committed a crime, and there is reasonable ground of doubt in which of two or more degrees the defendant is guilty, the defendant can be convicted of the lowest of those degrees only.
Hansen v. State, 845 P.2d 449, 453 n. 1 (Alaska App. 1993).
In arguing that minor consuming alcohol was a lesser-included offense of driving under the influence in the context of his case, Hornbaker emphasizes that the State relied on the same evidence of intoxication to prove both offenses. But minor consuming alcohol also required proof that Hornbaker was under twenty-one years old at the time of his offense. The State did not have to prove that Hornbaker was underage to convict him of driving under the influence. On this basis alone, minor consuming alcohol was not "necessarily included in the offense charged."
See State v. Minano, 710 P.2d 1013, 1016 (Alaska 1985).
Hornbaker urges us to reach a different result because he did not dispute the State's evidence that he was underage. But a defendant cannot make an offense "included" by failing to dispute the element or elements that distinguish the offense from the other offense. An offense is "necessarily included" only if the defendant's guilt of the offense automatically follows from proof of the other offense.
Lampkin v. State, 141 P.3d 362, 366 (Alaska App. 2006).
Hornbaker claims in the alternative that his violations of the two statutes should be treated as one punishable offense under Whitton v. State. In Whitton, the Alaska Supreme Court held that the double jeopardy clause of the Alaska Constitution "requires a sentencing court to impose only one conviction and one sentence if the two crimes are so closely related that there are no significant differences between the conduct proscribed and the societal values protected by each statute."
479 P.2d 302 (Alaska 1970).
Hunter v. State, 182 P.3d 1146, 1149 (Alaska App. 2008).
We find no Whitton violation here. The statute penalizing driving under the influence is aimed at protecting the public from intoxicated drivers. The statute penalizing underage consumption or possession of alcohol has a different purpose: deterring underage drinking and identifying and treating minors with alcohol abuse problems. The two statutes are thus significantly different in both the conduct they proscribe and the societal values they protect.
State v. Morgan, 111 P.3d 360, 362 (Alaska App. 2005).
Moreover, to deter and rehabilitate underage drinkers, the legislature has established a statutory framework that imposes progressively severe punishments for first offenders, repeat offenders, and habitual offenders. This statutory scheme, and the objectives it serves, would be defeated if a conviction for minor consuming alcohol could not be entered in any case in which the defendant was also convicted of driving under the influence and declined to dispute that he was underage.
As Hornbaker points out, the alcohol treatment components of the two statutes are similar: AS 28.35.030(h) requires courts to order defendants to complete an alcohol safety action program if one is available, and AS 04.16.050(e)(1) gives courts discretion to order offenders to enroll in a juvenile alcohol safety action program. But this overlap does not diminish the significant differences in the conduct proscribed and the societal values protected by the two statutes; it simply reflects the fact that alcohol abuse potentially underlies the commission of both offenses.
Conclusion
We AFFIRM Hornbaker's convictions.