Opinion
Court of Appeals No. A-10780 Trial Court No. 3PA-09-2162 CR No. 5882
09-19-2012
DANNY E. CONWAY, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Heather L. Gardner, Shortell Gardner, LLC, Anchorage, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Richard Svobodny, Acting Attorney General, Juneau, for the Appellee.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding precedent for any proposition of law.
MEMORANDUM OPINION
AND JUDGMENT
Appeal from the Superior Court, Third Judicial District, Palmer, Kari Kristiansen, Judge.
Appearances: Heather L. Gardner, Shortell Gardner, LLC, Anchorage, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Richard Svobodny, Acting Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
COATS, Chief Judge.
Danny E. Conway was convicted of felony driving while under the influence, felony refusal to submit to a breath test, and driving while license suspended or revoked. He claims that the superior court erred when it found that the police had probable cause to stop him for violating the Houston Municipal Code by failing to bring his all-terrain vehicle to a stop before crossing the highway. He also claims that there was insufficient evidence to support his felony convictions, that the superior court erred when it found that he had not proven his proposed mitigating factors, and that the superior court did not adequately justify the thirty-day sentence imposed for his license offense. For the reasons explained here, we conclude that the superior court committed no error.
AS 28.35.030(a), (n); AS 28.35.032(a), (p); and AS 28.15.291(a)(1).
Facts and proceedings
Before trial, Conway moved to suppress the evidence against him and to dismiss the charges, claiming the police unlawfully stopped him. At an evidentiary hearing on that claim, Houston Police Officer Charlie Seidl testified that he was on duty on August 29, 2009, and driving on the Parks Highway. Seidl saw a person on a four-wheel ATV traveling on the other side of the highway. Seidl was aware that a fugitive wanted for burglaries in the area was known to drive a four-wheeler. Seidl decided to contact the driver to determine if he was the fugitive. When Seidl pulled up alongside the ATV, the driver pulled behind Seidl's vehicle, crossed the Parks Highway, and then turned onto a trail alongside the highway and continued on.
Seidl drove until he was ahead of the ATV, and then blocked the trail with his patrol car. The driver of the ATV stopped, and Seidl contacted him. Seidl identified the driver as Conway. Conway was not the fugitive Seidl hoped to find. But Seidl immediately smelled a strong odor of an alcoholic beverage coming from Conway, and noticed that when he spoke, his speech was slurred.
Conway tried to get off the ATV and started to fall over. Seidl had to catch him to keep him stabilized. Seidl asked Conway to turn off the ATV because it was so loud, but Conway did not do so. He handed Seidl his bank card instead of his identification card or driver's license.
Seidl attempted to administer the horizontal gaze nystagmus test, but Conway was either unable or unwilling to participate. Conway told Seidl that he was blind in one eye and nearly blind in the other. Conway also had a prosthetic leg.
Seidl testified that Conway committed a traffic violation when he drove his ATV across the highway without stopping. Although Seidl conceded that he briefly lost sight of Conway when Conway drove behind Seidl's vehicle, Seidl testified that he was able to see Conway cross the highway without stopping. He testified that, "I saw him, I turned my vehicle around, and I saw him approaching the highway and then cross the highway. Had he stopped, I would have been aware of it." Seidl later reiterated that had Conway stopped, Seidl "would have had plenty of opportunity to see him do so." Seidl estimated that he watched Conway drive twenty feet or more before he reached the highway. And when Conway reached the highway, he continued on, crossing it without stopping.
Houston Municipal Code 9.04.020.
Superior Court Judge Kari Kristiansen found that Seidl lawfully stopped Conway because he observed Conway violate the Houston Municipal Code by not stopping to check for traffic within fifteen to twenty feet of crossing the highway. Accordingly, she denied the motion to suppress and dismiss.
Prior to trial, Conway entered a guilty plea to the offense of driving with a revoked license. He was then convicted at a jury trial of felony DUI and felony refusal to submit to a chemical test. Afterwards, the judge sentenced Conway to two years for DUI and two years for refusal to submit to a chemical test, with one year concurrent to the DUI offense. She also sentenced him to thirty days for driving while his license was revoked. The thirty-day sentence was imposed consecutively to the other two sentences, giving Conway a composite sentence of three years and thirty days to serve.
There was probable cause to stop Conway for a traffic violation
Conway argues that Officer Seidl did not have probable cause to stop him for violating the Houston Municipal Code. Houston Municipal Ordinance 9.40.020 provides, in pertinent part, that an "off-road motorized recreational vehicle may cross a highway only after stopping and when traffic on the highway allows crossing in safety."
Probable cause exists when police have reasonably trustworthy information to warrant a person of reasonable caution to believe that an offense has been or is being committed. The test for probable cause does not require that the police have knowledge of facts that are sufficient to sustain a conviction. Rather, the police are required to have "a reasonable ground for belief of guilt." Probable cause can be established "even though the facts known to the officer could also be reconciled with innocence."
State v. Grier, 791 P.2d 627, 631 (Alaska App. 1990).
McCoy v. State, 491 P.2d 127, 130 (Alaska 1971).
Id. at 130 n.9 (quoting Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879, 1890 (1949)) (citations omitted).
Grier, 791 P.2d at 632 n.3.
The existence of probable cause is a mixed question of law and fact. Absent clear error, we accept the facts as the lower court finds them. We then determine de novo whether probable cause arises from these facts. When reviewing a superior court's denial of a motion to suppress, we view the facts in the light most favorable to upholding the judge's ruling.
Saucier v. State, 869 P.2d 483, 484 (Alaska App. 1994).
Id.
Chandler v. State, 830 P.2d 789, 792 (Alaska App. 1992).
Crawford v. State, 138 P.3d 254, 258 (Alaska 2008) (citing State v. Joubert, 20 P.3d 1115, 1118 (Alaska 2001)).
Conway argues that there was no evidence in the record to support Judge Kristiansen's finding that he violated the ordinance by failing to stop within fifteen to twenty feet of the highway. He points out that the Houston ordinance did not require him to stop within a particular distance of the highway to check for traffic. But at the suppression hearing, Conway conceded that the ordinance required him to stop in "the safest place or [in] a safe and practical manner."
Conway argued before Judge Kristiansen that, because he dropped into a ditch before crossing the highway, stopping before the ditch might have been the safest place for him to check for traffic. But Officer Seidl testified that Conway could have avoided the ditch and crossed the highway on a driveway that connected with the highway, as most ATV drivers did. Judge Kristiansen could reasonably have inferred from this testimony that Seidl did not observe Conway stop in a safe and practical manner before crossing the highway.
Conway's argument might have more weight had the State been trying to convict him of crossing the highway without stopping. But here, the State needed only to prove that Seidl had "a reasonable ground for belief of guilt."
Normally when a police officer observes a violation of the motor vehicle laws, the officer has probable cause to conduct a traffic stop. Based on this record, Judge Kristiansen reasonably concluded that Seidl has a reasonable ground to believe Conway crossed the highway without first checking for traffic in a safe manner, and that Seidl therefore had probable cause to stop Conway for violating the Houston ordinance.
Bessette v. State, 145 P.3d 592, 594 (Alaska App. 2006); Nease v. State, 105 P.3d 1145, 1148 (Alaska App. 2005).
There was sufficient evidence to support Conway's DUI conviction
Conway next claims that the admissible evidence was not sufficient to support his DUI conviction. He argues that the jury heard evidence that it should not have heard. He also asserts that there was evidence providing an alternative explanation for why he appeared to be intoxicated.
When a defendant challenges the sufficiency of the evidence to support a criminal conviction, an appellate court is obliged to view the evidence, and all reasonable inferences to be drawn from that evidence, in the light most favorable to upholding the lower court's verdict. That is, the court assesses the sufficiency of the evidence by first resolving all conflicts and doubts presented by the evidence in favor of the jury's verdict, and then asking whether, viewing the evidence in that light, a reasonable fact-finder could have concluded that the State's case was proved beyond a reasonable doubt.
Johnson v. State, 188 P.3d 700, 702 (Alaska App. 2008).
Id.
At trial, Seidl testified that when he contacted Conway, Conway nearly fell off of the ATV. Although Conway was able to catch himself, Seidl had to help him so he would not fall to the ground. Additionally, Conway had "animated hand and arm movements [and] bloodshot eyes." Conway also "exhibited extremely slurred speech at times, and he had the strong odor of an alcoholic beverage on his breath." Furthermore, Conway handed Seidl a bank card instead of an identification card. He did not notice this until Seidl brought it to his attention. When asked, Conway also could not or would not turn off his ATV. Seidl explained that retrieving the wrong card or being unable to turn off a vehicle can be indicators of intoxication.
Seidl tried to administer the HGN test, but Conway just stared straight ahead. Seidl said he was unsure if Conway was unable or unwilling to perform the HGN test. He did not try other field sobriety tests because the ground conditions were not good and Conway had a prosthetic leg and appeared highly intoxicated. He was worried that Conway would fall and hurt himself. Conway staggered when he walked.
Conway admitted that he had been drinking, but said that he had only had "a beer and a half or two[.]" Later, during the Datamaster processing, Seidl said that Conway exhibited another sign of intoxication, "overall irrational behavior[.]"
Seidl acknowledged that Conway told him that he was blind in one eye and half blind in the other. But Seidl also said that he did not know if Conway's condition would have prevented the detection of nystagmus if Conway had cooperated. Seidl also said that it appeared to him that Conway was refusing to cooperate with Seidl's instructions and directions when he attempted the HGN. When Conway testified at trial, he conceded that he can see well enough to ride his four wheeler at night without his glasses.
Viewing the evidence, and all reasonable inferences to be drawn from that evidence, in the light most favorable to upholding the jury's verdict, and resolving all conflicts and doubts presented by the evidence in favor of the verdict, a reasonable fact-finder could have concluded that the State proved beyond a reasonable doubt that Conway was driving under the influence.
See Johnson, 188 P.3d at 702.
Conway also claims that the evidence was insufficient to convict him, once inadmissible evidence is excluded from the analysis. This claim hinges on a second claim that Conway does not separately challenge on appeal: that Judge Kristiansen improperly allowed Seidl to answer "yes" when the jury asked Seidl whether the result of the preliminary breath test gave him further reason to believe Conway was intoxicated.
In Houston-Hult v. State, we rejected a similar claim. Houston-Hult argued that there was insufficient evidence to support her drug convictions because the State had failed to prove an adequate "chain of custody" for certain evidence. But the defendant did not make a timely objection to the admission of the evidence at trial and, on appeal, she did not challenge the trial court's ruling rejecting her untimely motion to strike the evidence. We explained that because Houston-Hult had not separately challenged the trial court's ruling on her motion to strike, we would presume that all of the evidence before the jury was properly admitted. Here, Conway has not separately challenged Judge Kristiansen's evidentiary ruling allowing Seidl to answer the jury's question; consequently, when resolving Conway's insufficiency claim, we view that evidence as properly admitted.
843 P.2d 1262 (Alaska App. 1992).
Id. at 1264.
Id. at 1263, 1264.
Id. at 1265.
We explained in Houston-Hult that, even when a defendant successfully contends on appeal that the trial judge should have excluded a portion of the State's evidence, the defendant cannot then argue that the remaining evidence was insufficient to withstand a motion for judgment of acquittal. The defendant's remedy for an evidentiary error is a new trial, not a dismissal of the charge with prejudice. Therefore, Conway would not be entitled to a judgment of acquittal even if he proved that Judge Kristiansen erred in admitting this evidence.
Id. at 1265 n.2. See also Marino v. State, 934 P.2d 1321, 1330 & n.3 (Alaska App. 1997).
Houston-Hult, 843 P.2d at 1265 n.2. See also Marino, 934 P.2d at 1330 & n.3.
Conway, in a single sentence, also asserts that because there was insufficient evidence to support a DUI conviction and no probable cause for the traffic stop in the first place, his conviction of felony refusal to submit to a breath test should be reversed. Alaska's appellate courts have consistently held that "[w]here a point is not given more than a cursory statement in the argument portion of a brief, the point will not be considered on appeal." We conclude that this claim is waived for inadequate briefing.
Petersen v. Mutual Life Ins. Co. of N.Y., 803 P.2d 406, 410 (Alaska 1990); State v. O'Neill Investigations, Inc., 609 P.2d 520, 528 (Alaska 1980); Vickers v. State, 175 P.3d 1280, 1287 (Alaska App. 2008). See also Adamson v. University of Alaska, 819 P.2d 886, 889 n.3 (Alaska 1991).
Conway did not prove his proposed mitigating factors
Conway proposed three mitigating factors: that his criminal conduct was a product of physical or mental infirmities due to his age, that his criminal conduct was the least serious included in the definition of the offense, and that the harm caused by his current and past criminal conduct was consistently minor and inconsistent with the imposition of a substantial period of imprisonment.
AS 12.55.155(d)(5).
AS 12.55.155(d)(9).
AS 12.55.155(d)(12).
The existence or non-existence of mitigating factors is a mixed question of fact and law. The trial court's factual findings regarding the nature of the defendant's conduct are reviewed for clear error, but whether those facts establish a mitigating factor is a legal question. We review the sentencing judge's findings on the facts underlying a mitigating factor in the light most favorable to the judge's findings.
Michael v. State, 115 P.3d 517, 519 (Alaska 2005).
Id.
Steve v. State, 875 P.2d 110, 125 (Alaska App. 1994).
Judge Kristiansen ruled that Conway failed to prove by clear and convincing evidence the existence of his proposed mitigating factors. First, she found that there was no evidence that Conway's criminal conduct was caused by physical or mental infirmities. She explained that Conway's physical infirmities did not contribute to his drinking and driving; rather, he decided to drink and drive despite his physical infirmities. (There was no evidence that Conway suffered from mental infirmities.) Judge Kristiansen's findings are not clearly erroneous, and Conway did not establish this mitigating factor.
Second, regarding whether Conway's conduct was among the least serious included in the definition of DUI, Judge Kristiansen found that Conway chose to drive his four wheeler while under the influence, late at night, on the Parks Highway, without his eyeglasses — despite the fact that he was legally blind in one eye and half blind in the other. She found that Conway created a situation that "could have seriously injured somebody[.]" She ruled that this conduct was not among the least serious included in the definition of DUI. We conclude that these findings are also not clearly erroneous, and that Conway did not establish this mitigating factor.
Regarding the refusal offense, Judge Kristiansen's findings are less specific, but she agreed with the State's argument and briefing. The State argued that the evidence showed that Conway had learned from his prior felony DUI conviction that if he performed field sobriety tests, obtained an independent test, or submitted to a breath test, he would help the State prove its case.
Conway argues that his conduct was the least serious within the definition of the offense of refusal because he was not belligerent and did not fight with Seidl. But the record indicates that Conway's refusal to take the breath test was a typical refusal. Judge Kristiansen did not err when she ruled that Conway had not proven this mitigator.
Third, regarding whether the harm caused by Conway's current and past criminal conduct was consistently minor and inconsistent with the imposition of a substantial period of imprisonment, Judge Kristiansen found that there was no evidence showing that the harm caused by Conway's prior and current conduct was minor. She found that "look[ing] at [Conway's] criminal history for DUI, his prior DUI offense for which he was picked up when he was on probation for [an earlier] DUI, where he also refused a field sobriety test where the blood [alcohol level] was a .18 [percent], his conduct overall is not consistently minor." Judge Kristiansen's factual findings are not clearly erroneous and are supported by the presentence report. The presentence report shows that this was Conway's second felony DUI. Nothing in that report indicates that the harm he caused was consistently minor, or inconsistent with a substantial period of imprisonment, as required to prove mitigator (d)(12). And there was no evidence in the presentence report, or presented at the sentencing hearing, that this mitigator applied to Conway's refusal to submit to a chemical test.
The "harm" referred to in mitigator (d)(12) is not limited to actual harm to persons or property. It also encompasses the risk posed by the defendant's conduct. In Ison v. State, we held that the sentencing court properly rejected this mitigator for a defendant convicted of felony DUI who had "repeatedly demonstrated that he will not obey society's rules governing driving," even though he had never caused substantial injury to people or damage to property. Judge Kristiansen did not err when she found that Conway had not proven this mitigating factor.
941 P.2d 195 (Alaska App. 1997).
Id. at 198-99.
Conway's challenges to his sentence
Conway received a composite term of three years and thirty days to serve. No time was suspended. This was Conway's second felony DUI. Because he was a second felony offender, he faced a presumptive range of two to four years for the felony DUI, and two to four years for the felony refusal to submit to a chemical test.
AS 12.55.125(e)(2).
Conway argues that this composite sentence is "excessive," but his argument is based solely on his claim that Judge Kristiansen wrongly rejected his proposed mitigating factors. We have already concluded that this claim has no merit.
Conway also separately challenges the thirty-day sentence imposed for driving while his license was suspended or revoked, arguing that the court failed to adequately explain its sentence on this charge. But a defendant may not challenge in isolation a single sentence that was imposed as part of a composite term.
When a defendant pursues a sentence appeal after the sentencing court has imposed a composite sentence for two or more criminal convictions, an appellate court assesses whether the defendant's combined sentence is clearly mistaken, given the whole of the defendant's conduct and history. Both the Alaska Supreme Court and this court have held that when a defendant is sentenced for two or more offenses, Alaska law does not require that each of the defendant's separate sentences be individually justifiable under the Chaney sentencing criteria, as if that sentence had been imposed in isolation. Rather, the question is whether the defendant's combined sentence is justified in light of the entirety of the defendant's conduct and history.
Custer v. State, 88 P.3d 545, 549 (Alaska App. 2004).
Id.; see State v. Chaney, 477 P.2d 441, 443 (Alaska 1970) (setting out sentencing goals); AS 12.55.005 (codifying those goals).
Waters v. State, 483 P.2d 199, 202 (Alaska 1971); Custer, 88 P.3d at 548-49; Jones v. State, 765 P.2d 107, 109 (Alaska App. 1988); Comegys v. State, 747 P.2d 554, 558-59 (Alaska App. 1987).
Because of this rule, Conway is not allowed to argue that Judge Kristiansen did not adequately explain the reasons she imposed a thirty-day sentence for the license offense. As we have recognized in prior cases, when a sentencing judge imposes sentences for more than one conviction, the judge might not individually craft each of the defendant's sentences, because judges are often more concerned with the total sentence that the defendant receives than the precise amount of imprisonment imposed for each separate count. Consequently, the fact that a judge imposes a greater sentence on one count and a lesser sentence on another count may be wholly fortuitous.
See, e.g., Allain v. State, 810 P.2d 1019, 1022 (Alaska App. 1991).
See Custer, 88 P.3d at 549 (citing Allain, 810 P.2d at 1022).
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Conclusion
The judgment of the superior court is AFFIRMED.