Summary
affirming 15-year revocation, in connection with convictions for first- and third-degree assault, failure to render aid, driving under the influence, and reckless driving, when the defendant drove through downtown Anchorage at a high speed and with a blood alcohol level of at least .22 percent - endangering many people and causing serious injury - and the defendant had an extensive history of driving violations and a federal drug conviction for which he was on probation
Summary of this case from Johnson v. StateOpinion
Court of Appeals Nos. A-10072 / 10432.
December 30, 2009.
Appeal from the Superior Court, Third Judicial District, Anchorage, Eric A. Aarseth, Judge. Trial Court No. 3AN-05-7415 CR.
Sharon Barr, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Richard A. Svobodny, Acting Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Donovan King was convicted of assault in the first degree, assault in the third degree, failing to render assistance in an injury accident, and two misdemeanors: driving under the influence, and reckless driving. The charges arose from a motor vehicle collision which caused serious physical injuries. King was convicted in a jury trial conducted by Superior Court Judge Eric A. Aarseth. Judge Aarseth sentenced King to a composite sentence of 13 years and 6 months to serve with an additional 5 years suspended and 7 years of probation. In addition, Judge Aarseth revoked King's driver's license for 15 years.
AS 11.41.200(a).
AS 11.41.220(a)(1).
AS 28.35.060(c).
AS 28.35.030(a)(1).
AS 28.35.400 (formerly numbered AS 28.35.040).
King claims that the evidence was insufficient to support his convictions because the State did not prove that he was the driver of the car involved in the collision. King claims that the evidence shows that he was a passenger in the car, not the driver. In a separate argument, King claims that there was insufficient evidence to support his conviction for failing to render assistance in an injury accident. He contends that there was insufficient evidence to show that he had a reasonable opportunity to provide assistance.
King also argues that, at sentencing, Judge Aarseth initially imposed his license revocation as a condition of probation. He argues that Judge Aarseth later illegally increased his sentence in the written judgment by changing the license revocation to a direct term of his sentence. King also argues that the 15-year revocation of his license was excessive.
We conclude that the evidence was sufficient for the jury to find beyond a reasonable doubt that King was the driver of the car involved in the collision and that he failed to render assistance. We also conclude that, at sentencing, Judge Aarseth imposed the license revocation as a direct term of King's sentence and that the license revocation was not clearly mistaken.
Factual and procedural background
Shortly past 1:00 a.m. on August 14, 2005, an eastbound white Lincoln Town Car crossed the median strip where Fifth and Sixth Avenue meet near the Medfra Avenue intersection into oncoming traffic and struck a westbound black Honda Civic. The Lincoln spun the Honda around and veered off the road, finally stopping in the forested area beside the road. The driver of the Honda, Lauren Halcro, suffered life-threatening injuries, but survived. Her passenger, Rayna Fritcher, suffered injuries that were less severe. Several people on the road that morning observed the collision and its aftermath and testified at King's trial.
Eye witness Pamela Lolley testified that she saw King walking away from the passenger side of the Lincoln, back toward the road. King was visibly drunk, staggering, and smelled of alcohol. When King emerged from the brush around the Lincoln, Lolley, worried that he would flee, ordered him to sit down and seized his shirt sleeve. King broke free from Lolley and ran across the street, away from the site of the collision. Several other people at the scene pursued King, eventually tackling him and binding his hands with a necktie.
Shortly after, the police arrived and took custody of King. Based on blood tests performed later that morning at Providence Hospital, King's estimated blood alcohol content at the time of the accident was between .22 and .27.
King argued at trial that the evidence was insufficient to show that he drove the Lincoln or that he had a reasonable opportunity to render assistance. Judge Aarseth denied King's motion for judgment of acquittal, and the jury ultimately convicted King on all charges.
There was sufficient evidence to support King's convictions
We are to uphold a jury's finding of guilt if the evidence presented at trial was sufficient for reasonable jurors to conclude that the defendant was guilty beyond a reasonable doubt. We are to consider the evidence and the inferences from the evidence in the light most favorable to upholding the jury's verdict.
Dorman v. State, 622 P.2d 448, 453 (Alaska 1981).
At trial, several State witnesses described the physical characteristics of the driver of the Lincoln and testified about the number of people in it. Daniel Benfield stated that he saw only one person in the vehicle — the driver — and that he was a white male with long hair, wearing a red baseball cap. Benfield followed the Lincoln for several miles and twice tried to warn the driver that his headlights were out. At one point, Benfield got out of his car and approached the Lincoln on foot, but by the time Benfield got to its bumper, the Lincoln sped away.
Next, Brandon Young testified that he saw only one person in the car. King points out that the Lincoln passed Young's car at a high rate of speed and that Young could not have clearly seen a passenger slouched behind the "for sale" sign in the Lincoln's window.
Another person on the road that morning, Steven Lolley, testified for the State that he had a clear view of the inside of the Lincoln due to the height of his car (a large SUV) and that there was only one person in the Lincoln. He testified that the driver was male and wearing a red baseball cap. Mr. Lolley's wife, Pamela, testified that she saw the driver of the Lincoln from the back and that he had long brown hair in a ponytail and was slouched down. The police found a red baseball cap scrunched between the passenger seat and door of the Lincoln. King, a white male, had long hair and was wearing a white T-shirt at the time of the accident.
The Lolleys were close behind the Lincoln when the collision occurred, and they immediately pulled over to assist and call 911. Ms. Lolley is a certified emergency medical technician. She was the first to approach the crashed Lincoln, and she observed King "staggering" toward her from the passenger side of the vehicle. She testified that she was certain King was the driver of the Lincoln. The driver's door of the Lincoln would only open six to seven inches. It would have been difficult for someone to squeeze through this six-to seven-inch opening, which is an explanation for King's emerging from the passenger side of the Lincoln.
King admitted to owning the Lincoln, and he had the key to the Lincoln in his pocket. Furthermore, King's injuries were consistent with the theory that he was the Lincoln's driver. When we look at this evidence in the light most favorable to upholding the jury's verdict, we conclude that the evidence was sufficient for the jury to find beyond a reasonable doubt that King was the Lincoln's driver.
King also argues that there was insufficient evidence to show that he failed to render assistance at the scene of an injury accident. He argues that he should not be convicted of failure to render aid because he did not have a reasonable opportunity to do so. He claims that the evidence shows that he was tackled and tied up before he had any opportunity to render assistance.
But a reasonable jury could conclude that the evidence showed that King was restrained by witnesses because he ran across the street to flee from the scene and that his actions demonstrated that he was going to leave the scene and not render assistance. We conclude that the evidence was sufficient to support the jury's verdict.
Judge Aarseth's revocation of King's driver's license
On appeal, King claims that Judge Aarseth, in his oral remarks at sentencing, revoked King's driver's license as a condition of probation. If Judge Aarseth imposed the license revocation as a condition of probation, then the restriction on King's license would expire at the end of King's probationary period. But the written judgment specifies that the license revocation is a direct term of King's sentence. Because the license revocation was a direct term of King's sentence, it does not expire at the end of King's probation.
Alvin v. State, 42 P.3d 1156, 1157 (Alaska App. 2002).
When the written judgment conflicts with the judge's oral pronouncement at the defendant's sentencing, the oral pronouncement controls. Once the court has meaningfully imposed the defendant's sentence, the court violates the defendant's rights under the double jeopardy clauses of the United States and Alaska Constitutions if it later imposes a more severe sentence.
Id. at 1158.
Sonnier v. State, 483 P.2d 1003, 1004 (Alaska 1971).
Judge Aarseth sentenced King to a composite term of 18 years and 6 months with 5 years suspended — 13 years and 6 months to serve. In addition, Judge Aarseth placed King on probation for a period of 7 years following his incarceration. In revoking King's license, Judge Aarseth stated:
I am revoking your driver's license for no less than 15 years. I think that is absolutely necessary, considering the nature of this offense and considering the moving violations that you have had prior to this. You simply are a danger to the community and I'm not going to let you get behind the wheel again, at least legally, until you have served your sentence and you are on probation, you are actually into your probation with your probation officer, and . . . when I say revoked for no less than 15 years, it's not to be reinstated until you show proof of completing the substance abuse evaluation, which you'll have to do once you get released, and that you complete all the recommendations that are made. . . . And then on top of that, you're still going to need to get the permission of your probation or parole officer. You can do those things. . . . [B]ut you're going to have to earn it before you're going to get it back. . . . Which means that it could be a lifetime revocation if you never complete your substance abuse treatment.
King asked, "Okay. Or it could be within a year after I get out and complete everything and my probation officer . . ." Judge Aarseth replied, "I am calculating 15 years, so you're going to be [on] probation for awhile before you have a chance to actually get your license back. Okay?"
The judgment lists King's license revocation as a term of his sentence: "It is further ordered that the defendant's driver's license and privilege to drive is revoked for no less than 15 years and his privilege to drive may not be reinstated until he completes his substance abuse evaluation along with all recommended treatment." Judge Aarseth also imposed special probation condition number nine, which states, "The defendant shall not drive a motor vehicle unless legally licensed and adequately insure[d], and provide proof of insurance to the Probation/Parole Officer, complete substance abuse treatment and must have permission of Probation/Parole Officer."
Judge Aarseth's sentencing remarks clearly indicate his intention to revoke King's driver's license for a period of 15 years as a direct term of King's sentence. Alaska Statute 28.15.211(b) provides that license revocations take effect on the date of the final judgment. Therefore, it was reasonable for Judge Aarseth to assume that King's license revocation would begin to run immediately, that much of the revocation would run while King was serving his sentence of imprisonment, and that the 15-year term would expire at some point during King's probation. This is entirely consistent with Judge Aarseth's statement at sentencing that King would be on probation "for awhile" before he would have a chance to get his license back.
If King is still on probation when the 15-year license revocation expires and he obtains a new license, King will have to comply with special probation condition number nine, which prohibits him from driving a motor vehicle unless he is legally licensed, adequately insured, provides proof of insurance to his probation officer, completes substance abuse treatment, and has the permission of his probation officer.
After King completes his probation, he obviously will not be subject to special probation condition number nine. But AS 28.15.211(d) requires a person such as King, whose license has been suspended for driving under the influence of alcohol, to prove that they have met alcohol screening requirements before they are eligible to have their license reinstated. We interpret Judge Aarseth's requirement that King's "privilege to drive may not be reinstated until he completes his substance abuse evaluation along with all recommended treatment" to merely reflect this statutory requirement. Therefore, King's license revocation and his probation conditions complement each other. And we conclude that Judge Aarseth clearly conveyed this interaction to King at sentencing. The written judgment reflects Judge Aarseth's oral remarks at sentencing. However, to make sure that the judgment is not misinterpreted, we direct the superior court to modify the judgment to read: "It is further ordered that the defendant's driver's license and privilege to drive is revoked for 15 years."
The license revocation is not excessive
King argues that the license revocation that Judge Aarseth imposed is excessive. Judge Aarseth revoked King's license for 15 years. King points out that the license revocation could potentially be for a much longer period of time because he would not automatically get his license back after completing the 15-year time period. But the time period would only be extended if King did not comply with the statutory requirements for obtaining a new license or, in particular, that he complete substance abuse treatment and be properly insured. This does not alter the fact that the underlying license revocation is for a term of 15 years.
We conclude that Judge Aarseth was not clearly mistaken in imposing the 15-year license revocation. King was highly intoxicated at the time of the collision. His blood alcohol level was between .22 and .27. The evidence shows that he was driving recklessly through downtown Anchorage at a high rate of speed, endangering numerous other people. The collision caused serious physical injury. After the collision, King attempted to flee from the scene. Although King did not have prior convictions for driving under the influence, he had an extensive history of driving violations. He had previously been convicted in 2000 in the United States District Court for conspiracy to distribute controlled substances. He was on federal probation at the time of his current offense. We conclude that the record supports Judge Aarseth's decision. Judge Aarseth was not clearly mistaken in deciding to revoke King's driver's license for 15 years. Conclusion
McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).
The judgment of the superior court is AFFIRMED with the exception that the superior court should make the changes in the judgment.