Opinion
Court of Appeals No. A-10619.
September 28, 2011.
Appeal from the Superior Court, Third Judicial District, Homer, Charles T. Huguelet, Judge, Trial Court No. 3HO-09-77 CR.
Nancy Driscoll Stroup, Palmer, for the Appellant. Timothy W. Terrell, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Joseph E. Kuzmin appeals his convictions for felony driving while under the influence, felony refusal, and driving while his license was revoked. He claims that there was insufficient evidence to prove that he was driving when he was under the influence of alcohol or that he drove on a highway or a vehicular way. But we conclude that there was sufficient evidence that Kuzmin was intoxicated and driving on a public roadway.
AS 28.15.291(a)(1); AS 28.35.030(a), (n); AS 28.35.032(a), (p).
Kuzmin also claims that his confrontation rights were violated when the jury heard a recording that included a trooper's question that referred to an out-of-court statement made by a person who did not testify at Kuzmin's trial. But we conclude that the admission of this taped statement was not plain error.
Background
State troopers stopped Kuzmin's pickup truck after receiving reports that Kuzmin was creating a disturbance in the village of Razdolna and that he was driving while intoxicated. The troopers did not see who was driving when they spotted the truck, and when the troopers stopped the vehicle, they found Kuzmin in the passenger seat and Dionicii Basargin in the back of the cab, behind the driver's seat, lying on the floorboard. No one was sitting in the driver's seat.
Dionicii Basargin admitted that he had been driving when the troopers pulled the vehicle over. But Dionicii Basargin also told the troopers that Kuzmin had been driving earlier and that they had switched places when they first saw a trooper drive past them. The troopers arrested both Kuzmin and Dionicii Basargin.
After Kuzmin was arrested, he was transported to Homer for a breath test. Kuzmin was charged with breath test refusal because he would not provide an adequate sample. Because he had two or more prior convictions, Kuzmin was charged with felony driving under the influence and felony refusal. He was also charged with driving while his license was revoked.
Kuzmin was interviewed at the scene when he was first contacted by the troopers. This interview was audio taped. During Kuzmin's jury trial, the State played five minutes of the audiotape to demonstrate Kuzmin's slurred speech and his refusal to cooperate when the troopers asked him to perform field sobriety tests. This section of tape also contained Kuzmin's admission that he knew that his driver's license was revoked.
Kuzmin's attorney asked the superior court to prohibit the State from playing a "full five minutes" of the interview. The attorney argued that the State had laid no foundation, that the contents of the audiotape were not relevant, and that the audiotape contained hearsay. During this discussion, Superior Court Judge Charles T. Huguelet asked the attorney to identify the hearsay statements, but she could not because she did not know what exactly was on the portion of the tape the State was going to play. The attorney's objections were overruled.
Before the audiotape was played, the defense attorney again objected on hearsay grounds, based on the trooper's questions, which indicated that a "bunch of people" in the village had reported that Kuzmin was driving drunk. Judge Huguelet overruled the objection, observing that an interrogator's questions usually are not hearsay.
After the trial, Kuzmin filed a written motion asking for a judgment of acquittal on the ground that there was insufficient evidence to support the convictions. He asserted that the only evidence suggesting that Kuzmin drove that evening was inadmissible hearsay that w as admitted in violation of his right to confrontation. Kuzmin complained that, in the audiotape, the trooper pointed out that Dionicii Basargin said that he and Kuzmin had switched places prior to the traffic stop. During the trial, Kuzmin did not object to the audiotape on confrontation grounds, and he did not object to this particular statement on hearsay grounds. When he denied the motion, Judge Huguelet noted that, although the trooper confronted Kuzmin with Dionicii Basargin's statement, Dionicii Basargin's actual statement was not offered into evidence, and the jury was instructed not to consider any statement attributed to Dionicii Basargin.
Kuzmin had objected earlier in the trial when Trooper Browning testified that Dionicii Basargin said that he and Kuzmin had switched places. But Judge Huguelet ruled that the statement attributed to Dionicii Basargin was not hearsay because it was not admitted for the truth of the matter asserted. Judge Huguelet also later instructed the jury that Dionicii Basargin's statements were not in evidence because he did not testify. Kuzmin did not ask for any other relief or object to the wording of that jury instruction. On appeal, Kuzmin does not address this particular testimony.
The jury found Kuzmin guilty of all three charges, and he now appeals.
Discussion The evidence was sufficient to support Kuzmin's convictions.
On appeal, Kuzmin claims that there was insufficient evidence to prove that he was under the influence of alcohol when he drove his truck, or that he drove the truck on a highway or vehicular way.
In ruling on a claim of insufficient evidence to support a conviction, this court must view all of the evidence and the inferences from that evidence in the light most favorable to the jury's verdict. The question is whether, viewing the evidence in this light, there was enough relevant evidence for a fair-minded juror exercising reasonable judgment to find that the State met its burden of proving guilt beyond a reasonable doubt. The credibility of witnesses and the weighing of evidence are issues that are determined by the trier of fact.
Dorman v. State, 622 P.2d 448, 453 (Alaska 1981); Brown v. State, 693 P.2d 324, 329 (Alaska App. 1984).
Dorman, 622 P.2d at 453; Collins v. State, 977 P.2d 741, 747 (Alaska App. 1999).
Brown v. Anchorage, 680 P.2d 100, 104 (Alaska App. 1984).
The State primarily relied on the testimony of a witness who saw Kuzmin driving earlier that evening and on the testimony of the state troopers who detailed the extent of Kuzmin's intoxication when they contacted him. Alexey Basargin — who is not directly related to Dionicii Basargin — testified that he called the troopers because Kuzmin was at Alexey Basargin's parents' house "bothering [his] family for quite some time[,] . . . drunk, harassing them with bad words, [and] slapping . . . little children around." Alexey Basargin's house was about two blocks away from his parents' house. Alexey Basargin's seven-year-old brother had asked Alexey Basargin to go to his parents' house because of Kuzmin's behavior.
Kuzmin was drinking alcohol from a pitcher. Kuzmin refused to leave the house when Alexey Basargin asked him to do so. Alexey Basargin could smell alcohol coming from Kuzmin, and Kuzmin was using bad language around Alexey Basargin's parents, which was something he did not do when he was sober. Kuzmin was "somewhere between sober and completely drunk."
Alexey Basargin had returned to his house when he saw Kuzmin leave. He watched Kuzmin enter the driver's side of his truck and saw Dionicii Basargin enter the passenger side. He then saw the vehicle pull out of the driveway and head toward Homer. When Alexey Basargin called the troopers, he reported that Kuzmin was intoxicated.
Troopers Ryan Browning and Greg Pealatere responded to Alexey Basargin's call. While driving toward Razdolna on Basargin Road, Pealatere unknowingly passed Kuzmin's vehicle as Kuzmin left Razdolna. When Pealatere realized what had happened, he relayed the information to Browning, who was still en route to Razdolna from Homer.
When Browning received this information, he realized that he too had just passed Kuzmin's vehicle, a crew cab pickup truck. He turned around, caught up to the vehicle, and conducted a traffic stop on Basargin Road.
When Browning contacted the two people in the truck, he found Kuzmin in the passenger's seat and Dionicii Basargin lying in the back of the cab on the floorboard behind the driver's seat. No one was in the driver's seat. Browning knocked on the driver's side window, but Kuzmin gave no response and sat with a blank stare.
According to the troopers, Kuzmin smelled strongly of alcohol, showed signs of severe intoxication, had slurred speech, swayed back and forth when he was standing, had a blank stare, had red, watery, bloodshot eyes, and smelled strongly of alcohol. Browning said that Kuzmin "appeared really, really intoxicated." Kuzmin refused to do any field sobriety tests.
The troopers arrested both Kuzmin and Dionicii Basargin for driving under the influence of alcohol. Both were transported to the Homer jail for breath tests. Kuzmin said that he was going to refuse to provide a sample of his breath, but he approached the DataMaster when it was ready to use. Despite Browning's instructions, Kuzmin submitted an inadequate sample and was charged with refusal.
Alexey Basargin saw Kuzmin drive away from his parents' house at about 8:16 p.m., and the troopers stopped Kuzmin a little more than an hour later, at 9:30 p.m. There was no evidence that Kuzmin had consumed any alcoholic beverages between the time he left Alexey Basargin's parents' house and the time he was arrested. Viewing this evidence in the light most favorable to the State, the jury could reasonably conclude that Kuzmin was driving under the influence of alcohol. For the same reason, the jury could reasonably conclude that Kuzmin was subject to the implied consent law and that by providing an inadequate sample, he unlawfully refused to submit to a chemical test of his breath.
With regard to the charge that Kuzmin was driving while his license was revoked, the State had to not only prove that Kuzmin was driving, but also that he was driving on a highway or vehicular way. (Kuzmin stipulated that his license was revoked and that he knew that it was revoked.) Browning testified that Basargin Road is a vehicular way and is a roadway maintained for public use. As already explained, Alexey Basargin testified that when Kuzmin left, he drove out of Alexey Basargin's parents' driveway and then drove toward Homer.
This evidence allowed the jury to reasonably infer that after Kuzmin pulled out of the driveway at Alexey Basargin's parents' house and headed toward Homer, he drove on Basargin Road, the road that runs from Razdolna to Homer. Viewing this evidence in the light most favorable to the State, the jury could reasonably conclude that Kuzmin was driving on a highway or vehicular way while his license was revoked.
Kuzmin's Confrontation Claim
Kuzmin claims that his right to confront witnesses was violated because the jury heard "testimonial evidence" from Dionicii Basargin, who was not called to testify at trial. The "testimonial evidence" Kuzmin complains of was a portion of the audiotaped interview between Trooper Pealatere and Kuzmin. Pealatere confronted Kuzmin with Dionicii Basargin's assertion that Kuzmin had been driving when they passed Pealatere as he was heading toward Razdolna.
See generally Crawford v. Washington, 541 U.S. 36 (2004).
Kuzmin did not specifically object to any statement attributed to Dionicii Basargin in the audiotape, and he did not object to Pealatere's testimony after the tape was played to the jury. To the extent that Kuzmin did object to other statements contained in the audiotape, he did so on hearsay grounds. Judge Huguelet overruled that objection. He said that, generally, it is not hearsay when police make a statement while questioning a defendant. In other words, Judge Huguelet implicitly found that the questions Pealatere asked Kuzmin were not assertions offered for the truth of the matter asserted.
This ruling was consistent with a ruling that Judge Huguelet made earlier in the trial — a ruling that Kuzmin does not discuss in this appeal. The statement attributed to Dionicii Basargin — that Kuzmin had been driving and that they had switched seats — first arose during Trooper Browning's testimony. Kuzmin objected on hearsay grounds and Judge Huguelet ruled that the statement was not offered for the truth of the matter asserted; that is, it was not offered to prove that Kuzmin had in fact been driving. Kuzmin does not challenge this ruling on appeal.
Hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Here, Dionicii Basargin's statement was not offered to prove that Kuzmin was driving, but was instead offered to explain why the troopers decided to arrest both men that evening. Kuzmin does not challenge Judge Huguelet's conclusion and we find no error. In other words, the statement that the troopers attributed to Dionicii Basargin was not hearsay.
Additionally, the jury was instructed that any statements attributed to Dionicii Basargin were not evidence because he had not testified at trial. Kuzmin did not object to this instruction, nor does he challenge it as inadequate on appeal. A jury is presumed to have followed its instructions.
See Bradley v. State, 197 P.3d 209, 216 (Alaska App. 2008); Knix v. State, 922 P.2d 913, 923 (Alaska App. 1996).
As for Kuzmin's confrontation claim, he did not raise this issue during trial. The right to confrontation can be waived by failing to object to the evidence in question. Because he did not raise a confrontation claim during trial, Kuzmin must now show plain error.
See Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2534 n. 3 (2009) (indicating the defendant has the burden of raising a Confrontation Clause objection and the right to confrontation may be waived by failure to object to the offending evidence).
We conclude that no plain error occurred. For one thing, as just explained, Judge Huguelet ruled that the statement attributed to Dionicii Basargin was not hearsay because it was not offered to prove the truth of the matter asserted. The Confrontation Clause does not bar the admission of out-of-court statements if the statements are not hearsay. Because the statement Kuzmin challenges was not hearsay, it was not barred by the Confrontation Clause.
Estes v. State, 249 P.3d 313, 316-17 (Alaska App. 2011) (citing Crawford, 541 U.S. at 59 n. 9).
Conclusion
We AFFIRM the superior court's judgment.