Opinion
Court of Appeals No. A-8755.
October 12, 2005.
Appeal from the Superior Court, First Judicial District, Juneau, Larry R. Weeks, Judge. Trial Court No. 1JU-03-1170 Cr.
Kathleen A. Murphy, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for the Appellant.
Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION
Michael T. Whiting appeals his conviction for felony driving under the influence, AS 28.35.030(a). He contends that his jury should have been instructed on the lesser offense of attempted driving under the influence.
Here are the facts viewed in the light most favorable to this proposed lesser offense:
Whiting and his girlfriend and his girlfriend's six-year-old son decided to go fishing in Gastineau Channel. Whiting piloted a skiff into the channel and then turned the motor off. The three occupants of the skiff fished while the skiff drifted in the channel; Whiting sat in the rear of the skiff near the motor. While Whiting was fishing, he was also drinking alcoholic beverages.
A Coast Guard vessel approached the skiff to see if the young boy was wearing a life-vest. When the Coast Guard officers contacted Whiting, they discovered that he was under the influence. Whiting claimed that he had been sober when he piloted the boat into the channel, and that he did not become intoxicated until after he stopped the motor and the fishing began.
Whiting's attorney asserted that, under these facts, a jury could rationally conclude that Whiting was not guilty of operating a watercraft under the influence — because, even though Whiting was sitting in the rear of the boat near the motor, the skiff was drifting with its motor off. At the same time, the defense attorney conceded that Whiting undoubtedly intended to start the motor up again when the fishing was over and it was time to return home. Because of this, the defense attorney argued, the jury could reasonably find that Whiting was guilty of attempted operation of a watercraft under the influence. Accordingly, the defense attorney asked Superior Court Judge Larry R. Weeks to instruct the jury on the offense of attempted driving under the influence.
Judge Weeks refused to give the proposed instruction, and his decision is the basis of Whiting's present appeal.
Initially, we note in passing that there is a significant flaw in Whiting's argument concerning how these facts might prove him guilty of "attempted" driving under the influence. As just explained, Whiting's argument is that he could be found guilty of attempt because he intended, at some time later in the day, to start the skiff's motor and return to Juneau. But mere willingness to commit a crime, or the mere intention to commit a crime in the future, is not an "attempt". To constitute an "attempt" under AS 11.31.100(a), the defendant's intent to commit a crime must be accompanied by "conduct which constitutes a substantial step toward the commission of that crime". Until that conduct occurs, there is no punishable attempt.
But more important, Whiting is wrong when he argues that the facts described above fail to establish the completed offense of driving under the influence.
Whiting's argument hinges on his assertion that the statutory definition of driving under the influence, AS 28.35.030(a), does not include the situation where an intoxicated person is in control of a watercraft whose engine is not running. Whiting's assertion is incorrect.
It is true that AS 28.35.030(a) speaks of "operat[ing] . . . a watercraft". But in Mezak v. State, 877 P.2d 1307, 1308 (Alaska App. 1994), this Court held that "operating" a watercraft includes being in control of the watercraft, even if its engine is not running.
Whiting points out that the defendant in Mezak was actively trying to start the motor of his boat, while Whiting was simply sitting at the tiller. (This view of the facts was disputed at Whiting's trial: the State presented testimony that the motor was running. However, we must view the facts in the light most favorable to Whiting's proposed lesser offense.)
Mezak, 877 P.2d at 1307-08.
Willett v. State, 836 P.2d 955, 958 (Alaska App. 1992).
Whiting asserts that this factual distinction is crucial — that because he was not actively attempting to start the motor, he was not "in control" of the watercraft. But Whiting's argument is inconsistent with our decisions defining "control" of a motor vehicle.
We addressed essentially the same argument in Kingsley v. State, 11 P.3d 1001 (Alaska App. 2000). The defendant in Kingsley drove his car into a snow berm, where it became stuck. Kingsley turned the engine off and decided to remain in the car. According to Kingsley, it was only then that he consumed a bottle of whiskey and became intoxicated.
Kingsley, 11 P.3d at 1002.
Kingsley argued that, under these circumstances, he was not intoxicated when he was operating the vehicle, and he was never in "control" of the vehicle after he became intoxicated. We rejected this narrow definition of "control".
As Kingsley acknowledges in his brief to this court, a person who engages the engine of a vehicle and allows it to run is not merely exercising physical control over the vehicle but is also "operating" it. Thus, if the engine of Kingsley's vehicle had been running when the police arrived, the State might have proved that Kingsley was operating the vehicle while intoxicated. But the State had to prove only that Kingsley was in actual physical control of the vehicle while intoxicated.
. . .
It is true that [the supreme court's decision in Department of Public Safety v.] Conley [and this Court's decision in] Mezak involved defendants who did something to try to put their vehicles in motion. But we do not believe that such actions are necessary to prove that a defendant is in "actual physical control" of a vehicle. A person's attempt to operate a vehicle may furnish convincing proof that the person is in actual physical control of the vehicle, but a person may exercise actual physical control over a vehicle without making active attempts to operate it.
754 P.2d 232 (Alaska 1988).
Kingsley, 11 P.3d at 1003.
Whiting was the one who had piloted the skiff into the channel, and Whiting remained primarily in the rear of the skiff, nearest the motor, while his girlfriend and her son sat in the front of the skiff. Under these facts, as a matter of law, Whiting was in physical control of the skiff, and he was therefore operating the skiff for purposes of the DUI statute. If the jury additionally found that Whiting was under the influence at that time, then he would be guilty of the completed crime of driving under the influence. These facts did not raise an issue of "attempt" — and, therefore, Judge Weeks correctly declined to instruct the jury on this proposed lesser offense.
The judgement of the superior court is AFFIRMED.