Summary
finding sufficient evidence of reckless driving where the defendant drove against oncoming traffic in an effort to bypass traffic congestion, causing an oncoming vehicle to abruptly slow and get rear-ended
Summary of this case from Ambacher v. StateOpinion
Court of Appeals No. A-8348.
September 29, 2004.
Appeal from the District Court, Third Judicial District, Anchorage, Samuel D. Adams and Natalie K. Finn, Judges. Trial Court No. 3AN-01-7725 CR.
James V. Gould, Gorton Logue, Anchorage, for Appellant.
John E. McConnaughy III, Assistant Municipal Attorney, and Frederick H. Boness, Municipal Attorney, Anchorage, for Appellee.
MEMORANDUM OPINION AND JUDGMENT
A jury found Tok O guilty of reckless driving and leaving the scene of an accident. O claims that there was insufficient evidence to support his convictions. O also claims that the district court abridged his right to have the proceedings translated into Korean (his native language) when the court replaced a translator whom O liked with another whom he disliked. Finally, O claims that the jury instructions defining "recklessly" and "reckless driving" were ambiguous and did not allow the jurors to differentiate between the offense of reckless driving and the lesser offense of careless driving. For the reasons set forth below, we conclude that O's convictions were based on sufficient evidence, that the district court did not abuse its discretion when it replaced the translator, and that the jury instructions did not amount to plain error. Accordingly, we affirm O's convictions.
Underlying facts
Just before noon on September 11, 2001, O was driving a van on McGinnis Street, at the intersection of McGinnis and East 36th Avenue. 36th Avenue is an arterial street, running east-west, with two lanes in each direction. O (whose vehicle was facing north) wished to turn left and drive west on 36th, but traffic was heavy in both directions. Witnesses stated that there was a "wall of traffic" that prevented O's entry into the west-bound lanes of 36th.
Rather than waiting for the west-bound traffic lanes to clear, O entered 36th and began driving west in the inner east-bound lane of traffic — i.e., traveling against the oncoming traffic. O accelerated his van, trying to get ahead of the west-bound traffic to his right so that he could merge into the inner west-bound lane.
O's accelerating van was headed straight toward a pickup truck driven by Kenneth Minoia, who was driving east on 36th in the inner east-bound lane. Minoia watched in "disbelief" as O turned left out of McGinnis, pulled into Minoia's lane, and headed directly at him. Minoia had to slow to five miles per hour to avoid a head-on collision with O's oncoming van. Minoia testified that the two vehicles were only a "second, maybe two seconds at the most" from colliding head-on when O finally was able to merge into the west-bound lane. Minoia was within sixty feet of O's van when O moved into the proper lane of traffic. Unfortunately, when Minoia stopped his truck, he was rear-ended by the car that was traveling behind him.
At least four witnesses stayed at the accident scene until the police arrived. These witnesses explained how the accident had occurred, and provided the police with a general description of O and his passenger, O's vehicle, and the vehicle's license plate number. Using this information, the police were able to locate O and his passenger and interview them.
When the police interviewed O, he admitted that he was aware that an accident had occurred. O told police that he did not stop at the scene of the accident because he was not actually involved in the accident, and because he did not feel that he had caused it.
Based on these events, O was charged under the Anchorage Municipal Code with reckless driving and leaving the scene of an accident. Following a jury trial, he was found guilty of both charges.
Anchorage Municipal Code (AMC) 9.28.010 and 9.10.020(B), respectively.
The sufficiency of the evidence
O claims that there was insufficient evidence to support his convictions for reckless driving and leaving the scene of an accident. When we assess whether there was sufficient evidence to support a jury's verdict, we must view the evidence and all reasonable inferences to be drawn from that evidence in the light most favorable to the verdict, and then we must decide whether fair-minded jurors, exercising reasonable judgment, could find that the government had proved the defendant's guilt beyond a reasonable doubt. We conclude that the evidence presented at O's trial supports both of his convictions.
See Tipikin v. Anchorage, 65 P.3d 899, 901 (Alaska App. 2003).
Section 9.28.010(A) of the Anchorage Municipal Code defines reckless driving as "driv[ing] a motor vehicle in a manner which creates a substantial and unjustifiable risk of harm to a person or to property." A "substantial and unjustifiable risk" is defined as "a risk of such a nature and degree that the conscious disregard of it or a failure to perceive it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation."
AMC 9.28.010(B).
Here, the evidence showed that O attempted to turn left onto 36th Avenue even though he knew that the traffic was too heavy for him to gain entrance into the proper west-bound lanes of travel. Instead, O drove his van into the inner east-bound lane, traveling against oncoming traffic and accelerating in an effort to get ahead of the vehicles that were blocking his access to the west-bound lanes. By doing so, O forced an oncoming motorist (Minoia) to slow abruptly to avoid a head-on collision — and this, in turn, led to a collision between Minoia and the car coming up behind him.
Based on this evidence, the jurors could reasonably conclude that O was guilty of reckless driving as defined in the municipal code; that is, fair-minded jurors could reasonably conclude that O had driven his motor vehicle in a manner that created a substantial and unjustifiable risk of harm, not only to Minoia and the other motorists traveling east-bound on 36th Avenue, but also to O and O's passenger.
See AMC 9.28.010 (C) ("A person endangered by the substantial and unjustifiable risk may include any person, including the driver creating this risk, whether the person is located inside or outside of such driver's vehicle.").
As we explain next, the jurors could also reasonably conclude that O was a cause of the ensuing collision between Minoia's truck and the car traveling behind him. But we note that the jurors could find O guilty of reckless driving even if they had concluded that O was not a cause of the collision — because the municipal ordinance requires only proof of a substantial and unjustifiable risk of harm, not actual harm.
We turn now to the evidence supporting O's conviction for leaving the scene of an accident. Under Section 9.10.020(B) of the Anchorage Municipal Code, when a traffic accident involving only damage to property occurs, "the driver of any vehicle involved in [the] accident [shall not] leave the scene of the accident without first immediately stopping . . . and then [providing]. . . . any police officer investigating the accident and [the] driver [of any other vehicle involved in the accident] . . . with his name, home address, operator's license or permit, and vehicle registration number."
AMC 9.10.020(B).
In Kimoktoak v. State, the Alaska Supreme Court held, as a matter of due process, that the offense of leaving the scene of an accident requires proof that the driver acted with knowledge that an accident had occurred: "[Because the] statute requires an affirmative course of action to be taken by the driver[,] . . . it necessarily follows that [the driver] must be aware of the facts giving rise to this affirmative duty in order to perform such a duty."
584 P.2d 25 (Alaska 1978).
Id. at 31.
Here, O concedes that he knew, when he drove away from the scene, that a collision had occurred. However, O argues that no reasonable person could have concluded that this collision was O's fault — and thus, the jury could not reasonably have concluded that O was under an obligation to stop. O asserts that the collision was caused by the poor driving of the motorist who was behind Minoia's truck — and that therefore the collision was a separate event, unrelated to whatever O had done. Based on this view of the facts, O argues that there was "nothing about [the] rear-end collision between [the] two other vehicles that would put [him], or any other reasonable person, on notice that [they] had been `involved' in an accident."
We disagree with O's contention for two reasons. First, O argues the facts in the light most favorable to himself. The facts of this case, if interpreted against O, are sufficient to support a reasonable inference that O's driving was a contributing cause of the collision between Minoia's truck and the vehicle that was traveling behind Minoia. In State v. Malone, we clarified that a motorist can be held responsible for a collision (and any ensuing injuries) if the motorist's conduct was a "substantial factor" in bringing about this result; the motorist's conduct "need not be the sole factor."
819 P.2d 34 (Alaska App. 1991).
Id. at 36.
More importantly, the duty of a driver to stop and share identifying information with the police and with other drivers does not hinge on whether that driver is responsible for the accident. Rather, the duty arises when the driver is "involved" in the accident. In Wylie v. State, this court held that a vehicle is "involved in an accident" if there is a causal nexus between the vehicle and the accident. Although Wylie construed the state hit-and-run statutes (AS 28.35.050, AS 28.35.060, and AS 28.35.080), we conclude that the corresponding provision of the Anchorage Municipal Code should be interpreted in the same way.
797 P.2d 654 (Alaska App. 1990).
Id. at 658.
In O's case, the trial jury was instructed in conformity with our holding in Wylie. That is, the jury was instructed that a vehicle is "involved" in a traffic accident if there is a causal nexus between that vehicle and the accident. And, as explained above, the evidence was sufficient to support the jury's conclusion that there was a causal nexus between O's driving and the ensuing collision.
O concedes that he was aware of what had happened — i.e., aware that he had driven his van in the wrong lane, that Minoia's vehicle had been forced to brake, and that Minoia's vehicle had then been struck from behind. O was therefore aware of the facts giving rise to his affirmative duty to stop his vehicle and share his identifying information with the other drivers and the police.
O was bound by this duty even though he may have honestly believed that he bore no fault in connection with the accident and that he therefore had no duty to remain at the scene. Alaska Statute 11.81.620 declares the general rule that a defendant cannot escape criminal liability based on the defendant's lack of knowledge "as to whether [the defendant's] conduct constitutes an offense," or based on the defendant's misunderstanding concerning the "meaning . . . or application of the provision of law defining an offense."
See also Busby v. State, 40 P.3d 807, 817-18 (Alaska App. 2002) (holding that, in a prosecution for driving with a revoked license, it was no defense that the defendant subjectively believed that his international driving permit gave him the right to drive in Alaska despite his license revocation).
For these reasons, we conclude that the evidence is sufficient to support O's convictions for both reckless driving and leaving the scene of an accident.
The dispute concerning translators
In anticipation of trial, O had secured the services of a Korean translator to assist him in understanding the proceedings. But on the first day of trial, O indicated that he wanted to get a new translator; he asked for the trial to be delayed by one week so that he could find a replacement. The trial judge, District Court Judge Natalie K. Finn, initially denied O's request. But during a recess, Judge Finn was informed that O's current translator wished to be relieved of her duties because O had threatened her. Judge Finn then excused the translator and continued O's trial until the next day to allow O's attorney to find a replacement.
The next day, O and his attorney appeared in court with a new translator, Lynda Lee. Judge Finn asked one of the police officers who had investigated the case to remain in the courtroom; this officer spoke Korean, and Judge Finn apparently wanted the officer's assistance in determining whether Ms. Lee was translating the proceedings accurately.
When O's attorney completed his opening statement, Judge Finn called the attorneys to the bench and expressed her concern that Lee was not translating satisfactorily. O's attorney agreed that Lee "never seems to say much." When asked why her translation was apparently so sparse, Lee replied that she was writing many things down for O. Judge Finn explained that the court proceedings were being recorded and that, to make a proper record of the proceedings, Lee had to translate out loud. Judge Finn directed Lee to translate everything orally. Lee said that she would. The trial then continued.
But at the end of that day, the police officer who spoke Korean told Judge Finn that Lee was not translating the court proceedings accurately. Judge Finn also noted that, even though Lee had been ordered to translate everything aloud, she still was not doing so — nor had she written things out. Both the prosecutor and the defense attorney agreed that Lee had not been translating everything that was said. Moreover, the defense attorney conceded that the record would not show that Lee was communicating with O in writing; thus, if the adequacy of the translation later became an appellate issue, the record would not establish that O was aware of what was going on at trial. Based on all of this, Judge Finn directed O's attorney to find a different translator.
This new translator was Kong C. Kuk. Judge Finn spent some time explaining to O why Kuk had taken over the translating duties from Lee. Anticipating that O would not want a new translator, Judge Finn had arranged to have yet another person (someone who spoke both Korean and English) review the audio recording of the proceedings to confirm that Kuk had translated the morning's proceedings accurately. After listening to the play-back, this person confirmed that Kuk was translating accurately.
O maintained, however, that he was uncomfortable with Kuk. He stated that he was "doubtful" of Kuk's translation, and he said that he wanted either Lee or some other translator. But when Judge Finn asked O to articulate why Kuk's translation was suspect, O could articulate no convincing basis for his doubt. O stated only that he felt uncomfortable in court, and that Kuk had been "a little bit authori[ta]tive" when speaking to him.
Judge Finn found that Kuk was translating accurately and that Kuk would remain the translator. She then arranged for Kuk and O to review all of the previous day's proceedings (when Lee was the translator) to ensure that O knew what had occurred that previous day. Kuk served as translator for the remainder of the proceedings.
On appeal, O concedes that the appointment of an interpreter is a matter entrusted to the discretion of the trial judge, but he claims that Judge Finn abused her discretion when she dismissed Lee and appointed Kuk as O's translator.
Judge Finn's decision to release Lee and replace her with Kuk is amply supported by the record. As explained above, Judge Finn had good reason for concluding that Lee was not translating everything that was said in court, and that she was not translating accurately. Moreover, both the prosecutor and the defense attorney agreed that Lee's translation was inadequate. Judge Finn did not abuse her discretion when she released Lee as the translator.
Judge Finn's decision to retain Kuk as the translator, despite O's discomfort with Kuk, is also supported by the record. Although O devotes five and a half pages of his brief to a discussion of the importance of translators in court proceedings, O does not identify any place in the record where Kuk failed to render a true translation of the proceedings. O did tell Judge Finn that he did not trust Kuk, but when O was asked to provide a convincing basis for this distrust, he could not. Rather, he responded that he felt that Kuk was too "authori[ta]tive."
In this appeal, O claims for the first time that his mistrust of Kuk "was a major obstacle to effective attorney-client communication during the trial." This claim was never voiced during trial. Moreover, O fails to identify any place in the transcript to support his claim that the purported inadequacy of Kuk's translation, or the tenor of the relationship between O and Kuk, interfered with O's ability to communicate with his trial attorney.
O also claims that Judge Finn told him that he could not hire his own translator. This is not true. Judge Finn told O that he could "have anybody he want[ed]" come sit with him in court and provide translation. What Judge Finn would not allow was to have the court's translator be a friend of O's. This was not an abuse of discretion.
Questions concerning the jury instructions
Toward the end of O's trial, when the attorneys reviewed the proposed jury instructions with the court, the defense attorney announced that he had no objections to the proposed instructions. The parties then delivered their summations, the jury instructions were read to the jury, and the jury retired to deliberate.
There was, however, a problem with the jury instructions defining reckless driving. Two of the instructions, Instructions 3 and 5, contained inconsistent definitions of the culpable mental state required for proof of this crime.
Jury Instruction 3 tracked the wording of the Anchorage ordinance. The jurors were told that, in order to assess whether O was guilty of reckless driving, the jurors had to decide whether O had driven his motor vehicle in a manner that created "a substantial and unjustifiable risk of harm to a person or to property." The jurors were further told that a "substantial and unjustifable risk" was "a risk of such a nature and degree that the conscious disregard of it or a failure to perceive it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation."
See AMC 9.28.010(B).
Emphasis added.
But Instruction 5 tracked the definition of "recklessly" contained in Title 11 of the Alaska Statutes (AS 11.81.900(a)(3)). Under this definition, a defendant acts "recklessly" with regard to a risk only if the defendant perceives and consciously disregards the risk. Thus, a failure to perceive a risk is not "recklessness" under this definition (unless the defendant's failure to perceive the risk is due to the defendant's intoxication).
AS 11.81.900 (a)(3).
During their deliberations, the jurors perceived this distinction and sent a note to the court asking for clarification of this point:
We are needing clarification on the definition of reckless. [In Instruction] 3, part B, the phrase "a failure to perceive the risk" appears[,] but [in Instruction] 5, it does not. This, we feel, is significant [we] need to know which definition to use.
When the parties assembled to discuss the jury's question, they agreed that the jury should be told to use both definitions. Judge Finn then proposed that the jury should be instructed to "use both [of these definitions] and do the best you can." O's attorney concurred in Judge Finn's proposal, and the jury was then instructed in this manner.
This was error. The definition of "recklessly" contained in AS 11.81.900(a)(3) governs interpretation of the state criminal statutes contained in Title 11. O was not prosecuted for violating a provision of Title 11. Rather, he was prosecuted under the Anchorage reckless driving ordinance. That ordinance defines the pertinent culpable mental state as either a conscious disregard of the risk or a failure to perceive the risk. In other words, the Anchorage ordinance defines reckless driving more broadly than the definition of recklessness contained in Title 11 of the state statutes. The ordinance is defined broadly enough to include certain conduct that would only constitute "criminal negligence" for purposes of Title 11.
See AS 11.81.900(a)(4) (the definition of "criminal negligence").
(We note that the state reckless driving statute, AS 28.35.040(a) contains the identical definition of "substantial and unjustifiable risk." That is, both the state reckless driving statute and the Anchorage reckless driving ordinance encompass conduct that would not qualify as "reckless" for purposes of Title 11.)
Thus, the jury should not have been told to use both the definition contained in Instruction 3 and the definition contained in Instruction 5. Instead, the jury should have been told to follow the definition contained in Instruction 3 (the instruction that tracked the wording of the municipal reckless driving ordinance), and they should have been told that Instruction 5's narrower definition of recklessness (the definition taken from Title 11) did not apply.
Although O concurred with the jury instructions given and with Judge Finn's response to the jury's question, he now for the first time takes exception to both. But if the jury was misled by Judge Finn's directive to use these conflicting definitions, the error could only have run in O's favor. If the jury was led astray by the court's response to its question, the jury would have held the government to a higher burden of proof than the law required ( i.e., proof that O consciously disregarded the risk).
O also argues (again, for the first time on appeal) that the jury was inadequately instructed concerning the distinction between reckless driving and the potential lesser-included offense of "careless driving" as defined in Anchorage Municipal Code 9.28.015.
Under AMC 9.28.015, a person commits the offense of careless driving if the person drives a motor vehicle "without due regard for the width, grade, curve, corner, other traffic use or other attendant circumstances" of the roadway or area where the driving occurs, or if the person drives "without due regard for or is inattentive or unresponsive to any other surrounding circumstance or hazard that may be present." Jury Instruction 7 instructed the jury concerning this potential lesser-included offense, using wording that tracked the ordinance.
O first argues that the differing definitions of "recklessness" contained in Instructions 3 and 5 prevented the jurors from understanding the difference between the municipal offenses of "reckless driving" and "careless driving." But the contradiction between Instruction 3 and Instruction 5 was irrelevant to the question of whether O committed reckless driving or only the lesser offense of careless driving. Instruction 5 suggested an incorrect definition of "reckless driving," but, as noted earlier, this incorrect definition made it harder for the Municipality to prove reckless driving, not easier.
O's primary argument is that, even though Instructions 3 and 7 tracked the language of the ordinances defining "reckless driving" and "careless driving," this was insufficient for the jury to comprehend the difference between these two offenses. O argues that the court should have given additional clarifying instructions concerning the relationship between the two offenses.
As we explained above, O's attorney did not object to the jury instructions, so O must establish plain error to prevail on this issue. We find no plain error here.
The jury was told in Instruction 7 that the offense of careless driving required proof that O drove his vehicle "without due regard for the width, grade, curve, corner, other traffic use or other attendant circumstances . . . or . . . in a manner that is without due regard for or is inattentive or unresponsive to any surrounding circumstances or hazard that may be present." The jury was told in Instruction 3 that the greater offense of reckless driving required proof that O drove his vehicle in a manner that created a risk of harm to persons or property, and that this risk was "of such a nature and degree that the conscious disregard of it or a failure to perceive it constitute[d] a gross deviation from the standard of conduct that a reasonable person would observe in the situation."
Emphasis added.
We conclude that reasonable jurors would understand the phrase "gross deviation" in Instruction 3 to mean that the offense of reckless driving required proof of a more substantial or obvious risk to persons or property than the kind of risk that might support a conviction for careless driving. We accordingly conclude that the district court did not commit plain error by failing to give supplemental instructions further clarifying this distinction.
Conclusion
The judgment of the district court is AFFIRMED.