Opinion
Court of Appeals No. A-9026.
June 21, 2006.
Appeal from the Superior Court, Third Judicial District, Homer, Donald D. Hopwood, Judge. Trial Court No. 3HO-03-414 Cr.
Randall S. Cavanaugh, Kalamarides Lambert, Anchorage, for the Appellant.
Terisia K. Chleborad, 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
Brian C. Beasley appeals his convictions for driving under the influence, third-degree assault, and felony hit-and-run ( i.e., leaving the scene of an injury accident without providing the identifying information required by statute and without providing reasonable assistance to the injured person).
AS 28.35.030(a), AS 11.41.220(a)(1)(A), and AS 28.35.050(a)/AS 28.35.060(a) (c), respectively.
Beasley contends that the evidence presented at his trial was insufficient to support his convictions for third-degree assault and felony hit-and-run. For the reasons explained here, we conclude that the evidence was sufficient to support these two convictions.
Beasley also contends that the prosecutor engaged in improper argument during the State's summation to the jury. We agree with Beasley that the argument was improper. But Beasley did not object to the prosecutor's argument at the time, and we conclude that the argument, though improper, does not amount to plain error.
Finally, Beasley argues that the superior court relied upon the wrong law when calculating Beasley's sentence for driving under the influence. We agree, and we therefore vacate Beasley's sentence for this offense and remand his case to the superior court for resentencing.
Underlying facts
At approximately 11:40 p.m. on August 14, 2003, the police contacted Brian Beasley at the Bayside Lounge in Homer, to talk with him about an incident unrelated to this case. During their conversation with Beasley, the officers concluded that Beasley was drunk and that he should not be driving. The officers directed Beasley to leave the Bayside Lounge, and they told him that if he was found in any other bar that night, he would be arrested (for being intoxicated on licensed premises). The officers initially contacted a taxi on Beasley's behalf, but then Beasley told the officers that he would walk home.
Five minutes after the police left, Beasley returned to the Bayside Lounge and drove away in his black Lincoln Continental.
The bartender saw what Beasley was doing, so she took down Beasley's license plate number and then called the police. The police searched for Beasley's car for about two hours, but without success.
While the police were searching for him, Beasley picked up a friend, William John Coila Jr., and the two men went off together (with Beasley driving).
At approximately 2:00 a.m., Beasley crashed his Lincoln Continental into a Ford Windstar belonging to Marjanne and Rudolf Schneider. Apparently, this collision occurred when Beasley drove off the roadway — because the Schneiders' car was parked in their driveway at the time.
The Schneiders were awakened by the sound of the crash and the ensuing sound of the Windstar's horn. (The force of the collision caused the horn to stick in the "on" position.) Ms. Schneider looked out the window and saw that the Windstar had been pushed up the driveway, toward the Schneiders' house, activating the motion-sensing light in the driveway. The Windstar was totaled.
While Beasley and Coila were still sitting in Beasley's car following this collision, Beasley told his friend that he (Coila) would "have to take the fall" for the accident.
Mr. Schneider went outside to see what had happened, and he spoke briefly with the driver of the Lincoln ( i.e., Beasley). According to Schneider, Beasley was "somewhat apologetic, and [he] said [that] he would pay for the damages . . . and [that] everything would be all right."
The passenger side of the Lincoln was badly damaged; in order to get Coila out of the car, Beasley had to help him climb out of the rear passenger window. Three or four minutes later, Beasley left the scene on foot.
A couple of minutes later, Coila also started walking away. He walked approximately 200 yards to a neighbor's house, with the apparent intention of calling Beasley's wife. When the neighbor was apprised of what had happened, the neighbor called the police.
Coila did not have any apparent injuries, and he did not ask the neighbor to call an ambulance. In fact, when the neighbor called the police, Coila left the house, apparently intending to walk home. But instead, Coila fell into a ditch — where he remained until the police arrived and helped him get out. When Coila was extricated from the ditch, he complained to the police of head, neck, and shoulder pain. Then, when the police took Coila back to the scene of the collision, Coila fell to the ground and lost consciousness. He remained unresponsive until shortly after a team of medics arrived.
After the medics arrived at the scene, Coila regained consciousness. Coila was taken to the hospital, where it was determined that his blood alcohol level was 0.18 percent. Coila informed the doctor that he was experiencing tenderness in his head, neck, shoulder, and belly. The doctor performed several tests on Coila, including x-rays of Coila's shoulder, thoracic spine, and chest, and CAT scans of his head, neck, abdomen, and pelvis. None of these tests revealed any acute injuries or trauma, and Coila did not have any visible injuries.
Coila remained at the hospital through the morning, and then he was discharged. He was given a prescription, but he did not fill it.
At around 10:00 a.m. — i.e., approximately eight hours after the collision in the Schneiders' driveway — Beasley went to the Homer police station to "clarify" the circumstances surrounding the collision. Beasley admitted (at various points during the interview) that his recollection of events was clouded due to his intoxication the previous night.
Beasley acknowledged that he had consumed at least seven alcoholic drinks, and he confirmed that the officers who spoke to him at the Bayside Lounge had told him not to drive. But Beasley declared that he had obeyed the officers' admonition — that he had not driven after he left the Bayside Lounge.
Beasley acknowledged that he had been present when his Lincoln Continental crashed into the Schneiders' Windstar, but he claimed that he had given his car keys to Coila earlier in the evening — and that, therefore, the person driving his car at the time of the collision "must have been John [Coila]." (Beasley also told the police that some unidentified third person might have been the driver.)
Beasley stated that, following the collision, he had told his friend Coila to remain at the scene until the police arrived, but Coila had then disappeared. Beasley told the police that, when he was unable to find Coila, he, too, left the scene.
The police informed Beasley that other witnesses had given statements that conflicted with Beasley's account of this episode. Beasley responded, "I guess it will be my word against John's." Beasley added that "John is a known drunk."
Based on the above-described events, a grand jury indicted Beasley for third-degree assault (recklessly placing Coila in fear of imminent serious physical injury) and felony hit-and-run (failing to remain at the scene of an injury accident). The State also filed an information containing the additional charge of driving under the influence.
A jury convicted Beasley of all three crimes.
The sufficiency of the evidence to support Beasley's conviction for third-degree assault
Beasley was charged with third-degree assault under AS 11.41.220(a)(1)(A) — that is, under the theory that he recklessly placed another person (his passenger, Coila) "in fear of imminent serious physical injury" by means of a dangerous instrument ( i.e., by driving the Lincoln Continental in a reckless manner).
At trial, Beasley's attorney elicited testimony that Coila had not been frightened by Beasley's conduct. In particular, Coila asserted that he had faced fearsome experiences before — experiences such as being attacked by a brown bear, and being on a sinking ship — and that, therefore, he was not scared by his experience of riding in Beasley's car, either before or during the collision with the Windstar.
Based on this testimony, Beasley argues that the State failed to prove that Coila was placed "in fear" by Beasley's conduct. But as this Court explained in Hughes v. State,
[A]s used in [the third-degree assault] statute, the word "fear" does not refer to fright, dread, intimidation, panic, or terror. Rather, a person is "placed in fear" of imminent injury if the person reasonably perceives or understands a threat of imminent injury. The victim's subjective reaction to this perception is irrelevant. It does not matter whether the victim of the assault calmly confronts the danger or quivers in terror. The question is whether the victim perceives the threat.
Hughes, 56 P.3d 1088, 1090 (Alaska App. 2002). See also Cathey v. State, 60 P.3d 192, 197 (Alaska App. 2002). Thus, the fact that Coila may not have been fearful at the prospect of being injured in a car crash is irrelevant. The question is whether Coila perceived the possibility of being injured.
Beasley argues, in the alternative, that Coila was either so inattentive or so intoxicated that he was not aware of the collision until after it occurred. Based on this assertion that Coila did not know what was going on, Beasley argues that the State failed to prove that Beasley's conduct caused Coila to perceive a risk of injury to himself.
It is true that, viewing Coila's testimony in the light most favorable to Beasley, Coila may have been disclaiming any perception that Beasley was driving dangerously or that Beasley was about to collide with the parked car. But there was contrary testimony.
Coila conceded that Beasley had driven into a ditch at one point during their drive (before the collision); Coila remembered "ditch grass" coming over the hood of the car. Moreover, the State played a tape recording of Coila's statements to the police just after the collision. When talking to the police, Coila exclaimed that he was "so glad to be alive", and that he had "just barely saved [his] frickin' life". Coila told the police that Beasley had driven off the road prior to the collision, and Coila also told the police that he had been slammed into the passenger door upon impact.
A police officer testified that Coila was "very upset" and "very angry" when he made these statements. This same police officer testified that Coila told him that Beasley had driven off the road more than once before the collision, and that Coila had asked Beasley to stop the car so that he (Coila) could get out.
When a defendant challenges the sufficiency of the evidence to support a criminal conviction, we are obliged to view the evidence (and the reasonable inferences to be drawn from that evidence) in the light most favorable to upholding the verdict. Viewing the evidence at Beasley's trial in that light, the evidence was sufficient to establish that Coila was aware of Beasley's dangerous driving and that Coila perceived the risk that he might suffer imminent serious physical injury on account of that driving.
Dorman v. State, 622 P.2d 448, 453 (Alaska 1981).
We accordingly reject Beasley's contention that the evidence was insufficient to support his conviction for third-degree assault.
The sufficiency of the evidence to support Beasley's conviction for felony hit-and-run
Beasley was charged with felony hit-and-run for leaving the scene of an injury accident. In Kimoktoak v. State, the Alaska Supreme Court held that this crime requires proof that the defendant either (1) knew that someone had been injured in the accident or (2) "knew that the accident was of such a nature that one would reasonably anticipate that it resulted in injury to a person".
584 P.2d 25 (Alaska 1978).
Id. at 32.
Beasley does not contest that Coila was injured as a result of the collision. However, Beasley challenges the sufficiency of the evidence to establish either of the culpable mental states defined in Kimoktoak. In other words, Beasley argues that the evidence was insufficient to establish that, when Beasley left the scene, he was aware that Coila had been injured or that the collision with the Windstar was sufficiently forceful that one would reasonably anticipate injury to Coila.
It is certainly arguable that Beasley did not know that Coila had been injured in the collision. As we explained earlier in this opinion, although Beasley had to help Coila from the vehicle, Coila was ambulatory and did not immediately complain of injury or pain. Coila testified that when Beasley was helping Coila to get out of the Lincoln through the rear window, Beasley asked Coila if he was okay, and Coila responded that he was. And, a couple of minutes after Beasley left the scene, Coila also walked away, heading down the road to a neighbor's house. According to the neighbor, Coila had no visible injuries, and he did not ask the neighbor to call an ambulance.
(A few minutes later, however, events began to suggest that Coila had received injuries in the collision. Shortly after Coila spoke with this neighbor, Coila fell into a ditch. He did not get out of this ditch until the police arrived and assisted him. When Coila was taken from the ditch, he complained to the police of head, neck, and shoulder pain. And, a few minutes later, when the police brought Coila back to the Schneiders' residence, Coila fell to the ground and lost consciousness.)
But even if the evidence does not support the conclusion that Beasley knew for certain, when he departed the scene, that Coila had been injured in the collision, Beasley's conviction for felony hit-and-run will nevertheless stand if the evidence is sufficient to support the alternative culpable mental state announced in Kimoktoak: Beasley's awareness, when he left the scene, that the collision was of such a nature that a reasonable person would anticipate that Coila had sustained injury.
As we described earlier, the collision totaled the Schneiders' Windstar, and it deformed the passenger side of Beasley's vehicle to the extent that Coila's only route out of the vehicle was through the rear passenger window. At Beasley's trial, the jury heard conflicting evidence on the issue of whether this kind of damage would lead one to reasonably anticipate injury to a passenger in Beasley's car.
During the testimony of the doctor who treated Coila at the hospital, the doctor was shown a photograph of the damage to Beasley's Lincoln. The doctor testified that he would have concerns about the physical condition of a person who had been sitting in the front passenger seat. In contrast, a Homer police officer testified that the physical condition of Beasley's vehicle gave no obvious indication that either Beasley or his passenger had sustained injury.
Other testimony supported the doctor's conclusion that one would reasonably anticipate injury to the occupant of Beasley's car. The police found Beasley's glasses inside the Lincoln, and it appeared that these glasses had been damaged from the impact of the collision. (The police had observed Beasley wearing these glasses earlier in the evening, during their interaction with him at the Bayside Lounge.)
In addition, Mr. Schneider (the owner of the Windstar) testified that after Coila was removed from Beasley's Lincoln, he was "just staggering around . . . [and] didn't look very fit." Schneider added that Coila "was not in good shape".
As explained above, we must view the evidence in the light most favorable to upholding the jury's verdict. The question is whether, in light of all the above-described circumstances, reasonable jurors could conclude that, when Beasley left the scene, Beasley's knowledge of the nature of the collision and its aftermath would lead a reasonable person to anticipate that Coila had been injured. We conclude that the evidence was sufficient to support the jury's finding that the State had proved this culpable mental state.
We accordingly reject Beasley's contention that the evidence was insufficient to support his conviction for felony hit-and-run.
Beasley's challenge to the prosecutor's summation to the jury
Beasley contends that the prosecutor, when arguing the case to the jury, improperly suggested that Beasley's decision to go to trial should be held against him because it indicated that Beasley was refusing to accept responsibility for his actions. Because Beasley did not object to the prosecutor's remarks, he must now show plain error.
One of the themes of the prosecutor's presentation, both in her opening statement and her summation, was that Beasley had attempted to escape responsibility for what he had done.
In her opening statement, the prosecutor introduced the State's case by telling the jury, "[O]n the night of August 14th [and] the morning of August 15th, Brian Beasley made some decisions. He decided not to be responsible for the consequences of those decisions, and that's why we're here."
In the opening portion of her summation, the prosecutor returned to this theme. She began by asserting, "We're here in this case because Brian Beasley does not want to take responsibility for anything he's done. And it's going to be your job as jurors to decide whether he should be responsible, and I'm going to ask that, in fact, you make him responsible." The prosecutor closed by arguing, "Brian Beasley left the scene and did nothing to render assistance . . . to a person who became unconscious. And he still won't take responsibility. You need to make him take responsibility by finding him guilty on all three charges."
Finally, in the rebuttal portion of her summation, the prosecutor told the jurors that the trial was not simply about Beasley's failure to give his telephone number to Mr. Schneider. "We're here," the prosecutor stated, "because the defendant is not taking responsibility for this motor vehicle accident, for [driving under the influence], and for not tending to Mr. Coila."
Beasley concedes that he failed to object to any of the prosecutor's statements, and that he must now show that they amounted to plain error.
In order to constitute plain error, an error must be (1) so obvious that it would be apparent to any competent judge or lawyer, even without an objection, and (2) so prejudicial that "failing to correct it on appeal would perpetuate a miscarriage of justice."
Potts v. State, 712 P.2d 385, 390 (Alaska App. 1985).
The prosecutor's challenged statements were proper to the extent that they were based on inferences that could reasonably be drawn from the evidence pertaining to the hit-and-run charge. One common motive for leaving the scene of an accident is the desire to avoid responsibility for that accident. The evidence showed that Beasley left the scene without providing the required identifying information, and (as we have just concluded) the evidence was sufficient to support the conclusion that Beasley left even though he could reasonably anticipate that Coila might be injured. Moreover, the State introduced evidence that, just after the collision occurred, Beasley told Coila that he (Coila) would "have to take the fall".
To the extent that the prosecutor urged the jurors to infer, from this evidence, that Beasley's motive for leaving the scene of the accident was a desire to avoid responsibility for his actions, the prosecutor's argument was proper.
Moreover, as we described earlier, when Beasley finally did speak to the police about the collision some eight hours later, he denied being the driver. Instead, Beasley falsely asserted that Coila had been driving. The prosecutor could properly argue that Beasley's statements to the police indicated his unwillingness at that time to accept responsibility for his other crimes — third-degree assault and driving under the influence.
But rather than taking pains to make sure that the jurors understood her arguments as being confined to the evidence and the reasonable inferences we have just described, the prosecutor phrased her arguments broadly. The prosecutor told the jurors that Beasley "still won't take responsibility [for his actions]. You need to make him take responsibility by finding him guilty on all three charges." The prosecutor also told the jurors that "[w]e're here because [Beasley] is not taking responsibility for this motor vehicle accident, for [driving under the influence], and for not tending to Mr. Coila."
We agree with Beasley that these statements could be interpreted to suggest that the jury should convict Beasley because he had exercised his right to plead not guilty and to demand a trial. The remaining question is whether this impropriety amounted to plain error.
In Potts v. State, this Court addressed a similar remark made by a prosecutor during final argument. The defendant in Potts was charged with sexual abuse of a minor, and the prosecutor told the jurors that the victim had been forced to go to trial "because [the defendant was] not willing to get help on his own." Potts did not object to the prosecutor's argument at the time, but on appeal he argued that this argument impermissibly suggested that the jurors should base their decision, not on whether the State had proved the elements of the crime, but rather on whether Potts was willing to accept moral responsibility for his actions and seek treatment.
712 P.2d 385 (Alaska App. 1985).
Id. at 393.
Id.
This Court agreed. Nevertheless, we concluded that this improper argument did not constitute plain error when considered against the totality of the State's argument and the jury instructions. In Beasley's case, we likewise conclude that when the prosecutor's challenged statements are viewed in the context of the prosecutor's overall argument, the prejudicial impact of those statements is mitigated.
Id. at 393-94.
The prosecutor engaged in proper argument on the theme of "responsibility" at several other points in her summation. At those places in her argument, the prosecutor used "responsibility" in clear reference to the hit-and-run charge. She argued that when Beasley told Mr. Schneider that he would take care of everything and that he would call the police, Beasley was doing "everything to avoid responsibility." The prosecutor further claimed that Beasley never reported the accident because he "didn't want to take responsibility for it." Both of these assertions were proper argument: they were pertinent to the hit-and-run charge, and they were based on the evidence presented at trial.
Moreover, the jurors were instructed that Beasley was presumed to be innocent, and that he "beg[an] the trial with a clean slate — with no evidence favoring conviction." In addition, the jurors were instructed that the State bore the burden of proving every element of the crimes charged against Beasley, and that the burden of proving a defendant's guilt beyond a reasonable doubt "always rests [with] the prosecution", the defendant having no duty to call any witnesses or to produce any evidence. And the jurors were further instructed that Beasley had a right to remain silent and not give testimony concerning the charges against him.
Finally, the jurors were told that, in making their decision, they were to consider only the evidence introduced during the trial and the law contained in the jury instructions. The jurors were told to disregard any argument made by the lawyers if "[that] argument depart[ed] from the evidence or the law".
We also note that it is at least possible that Beasley's trial attorney had a tactical reason for failing to object to the prosecutor's statements. As we noted above, the jury heard evidence that Beasley told Coila to "take the fall", and that Beasley later told the police that Coila had been driving the Lincoln at the time of the accident. Beasley's defense attorney may have been concerned that, if he objected to the prosecutor's statements that Beasley did not want to "take responsibility", the trial judge would have given a curative instruction that only mirrored the concepts already contained in the existing jury instructions, and the prosecutor would then have had the opportunity to clarify her remarks by reminding the jurors of Beasley's previous attempts at deception and Beasley's act of soliciting Coila to lie to the authorities.
Given all of these circumstances — the fact that a portion of the challenged argument was proper, the fact that the jury received several instructions that tended to negate the prejudicial aspect of the prosecutor's statements, and the fact that Beasley's attorney may have had a tactical reason for failing to object — we conclude that the prosecutor's statements, though improper, did not constitute plain error.
Beasley must be re-sentenced for driving under the influence
Alaska law provides different mandatory minimum sentences for driving under the influence, depending on how many prior convictions a defendant has for driving under the influence or breath test refusal. Before the episode involved in the present case, Beasley had two prior convictions for driving under the influence — one from October 1987 and the other from July 1988.
See AS 28.35.030(b)(1) (misdemeanor penalties), AS 28.35.030(n)(1) (felony penalties), and AS 28.35.030(t)(4) (defining "previously convicted").
At the time of Beasley's current offense (the night of August 14-15, 2003), the law governing punishment of DUI offenders provided that all of a defendant's prior convictions, no matter how old, were to be considered when determining a defendant's mandatory minimum sentence. But between the time of Beasley's offense and the time of his sentencing on December 23, 2004, the legislature changed the law. Under the new law, only prior convictions within the preceding 15 years are considered when determining a defendant's mandatory minimum sentence.
See former AS 28.35.030(r)(4) (2003), as enacted by SLA 2001, ch. 63, § 11.
SLA 2004, ch. 126, § 7 (effective June 30, 2004).
Both of Beasley's prior convictions occurred more than 15 years before his current offense. Thus, if the old law applied to Beasley, he would be considered a third offender for purposes of determining the mandatory minimum sentence; he would face a sentence of not less than 60 days' imprisonment, a fine of not less than $4,000, and a driver's license revocation of not less than 3 years. But if the new law applied, then Beasley would be considered a first offender; he would face a sentence of not less than 72 hours' imprisonment, a fine of not less than $1,500, and a driver's license revocation of not less than 90 days.
Former AS 28.35.030(b)(1)(C) and AS 28.15.181(c)(3).
AS 28.35.030(b)(1)(A) and AS 28.15.181(c)(1).
The superior court concluded that Beasley's sentencing was governed by the old law (that is, the law in effect at the time of Beasley's current offense). Although the superior court's ruling was arguably correct when it was made, we have since held that the new law applies to Beasley and other defendants in his position. See State v. Stafford, 129 P.3d 927 (Alaska App. 2006).
This makes no difference with regard to the jail sentence that Beasley received — 270 days with 180 days suspended — because Beasley's sentencing judge, Superior Court Judge Donald D. Hopwood, expressly stated that he would have given Beasley the same jail sentence regardless of which law applied.
Judge Hopwood noted that Beasley's current offense was aggravated, both because it resulted in injury to Coila and because it resulted in substantial property damage. The judge also noted that Beasley was "severely intoxicated", and that Beasley had ignored the police officers' warning that he should not drive. For these reasons, Judge Hopwood declared: "[W]hether I look at [Beasley's current offense] as a third [offense] or [as] a first [offense] that's seriously aggravated, I come up with the same sentence."
However, Judge Hopwood's remarks were addressed solely to the amount of jail time that Beasley would receive. As we explained above, Beasley's minimum fine and his minimum driver's license revocation also hinged on his status as either a third offender or a first offender. Without comment, Judge Hopwood imposed a fine and a period of license revocation that were consistent with the mandatory minimums for a third felony offender. Now that we have issued our opinion in Stafford, clarifying that Beasley should be deemed a first offender for mandatory minimum sentencing purposes, it is possible that Judge Hopwood might modify these two aspects of Beasley's sentence.
For this reason, we must remand Beasley's case to the superior court for resentencing on the driving under the influence conviction.
Conclusion
For the reasons explained here, Beasley's convictions are AFFIRMED. However, we direct the superior court to reconsider Beasley's fine and period of license revocation for the offense of driving under the influence.
We do not retain jurisdiction of this case.