Opinion
Court of Appeals No. A-10950 No. 6146
02-18-2015
NED E. EDWARDSEN, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Josie Garton, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Mary A. Gilson, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, 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 authority for any proposition of law. Trial Court No. 2BA-10-190 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Second Judicial District, Barrow, Michael I. Jeffery, Judge. Appearances: Josie Garton, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Mary A. Gilson, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Eric Smith, Superior Court Judge. Judge ALLARD, writing for the Court, and concurring separately.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
A jury convicted Ned E. Edwardsen of felony driving under the influence, felony refusal to submit to a breath test, and driving while license canceled, suspended, or revoked. Edwardsen appeals, arguing that the criminal pattern jury instruction that defines "operating" a motor vehicle is misleading and equivalent to a directed verdict.
We conclude that any error in the pattern "operating" instruction was harmless in this case because the record is clear that the jury convicted Edwardsen under a driving theory, not an operating theory. We therefore affirm Edwardsen's convictions.
Background facts
On May 17, 2010, Barrow Police Sergeant James Michels was working the night shift when he saw a Jeep Liberty with its headlights off and a tail light out drive past him. Sergeant Michels recognized the Jeep's driver as Ned Edwardsen. Sergeant Michels turned his own vehicle around and followed the Jeep, losing sight of it twice before it stopped. When Sergeant Michels pulled up behind the parked Jeep, he saw Edwardsen exit from the driver's side. Edwardsen told Sergeant Michels that he had not been driving and that the Jeep's throttle was stuck. Sergeant Michels asked where the Jeep's key was, and Edwardsen pointed to the key on the center console. Edwardsen appeared intoxicated.
Sergeant Michels arrested Edwardsen for driving under the influence. At the police station, Edwardsen refused to take a breath test for alcohol. He said again that he had not been driving.
The State charged Edwardsen with felony driving under the influence,felony refusal to submit to a chemical test, and driving while license canceled, suspended, or revoked.
AS 28.35.030(n).
AS 28.35.032(p).
AS 28.15.291(a)(1).
At trial, Edwardsen's brother, Robert Edwardsen, testified that he had been driving on the night of Edwardsen's arrest. Robert stated that he pulled over because "the car was running funny" and that he turned the car engine off and put the keys on the center console and then switched seats with Edwardsen. Robert further testified that he and his brother switched seats inside the car because "the doors were all messed up ... and [they] couldn't use the electric button." Robert also testified that he told Sergeant Michels that he was the one driving.
In rebuttal, Sergeant Michels testified that Robert told him that he had been driving "earlier in the evening" and that he saw Robert get out of the car from the back seat.
In closing argument, the prosecutor argued that Edwardsen had been driving the Jeep and that Robert was lying to cover for his brother. The prosecutor also argued that even if Edwardsen had not been driving the Jeep that evening, he was still guilty of "operating" the Jeep because he was seated in the driver's seat after the vehicle was stopped with easy access to the key on the center console.
The jury was instructed with a slightly modified version of the criminal pattern jury instruction on "operating." This instruction contained three examples, drawn from case law, of what could constitute "operating" a motor vehicle under Alaska law.
See Alaska Criminal Pattern Jury Instruction 28.35.030(a) #3 (revised 2009):
To "operate" a motor vehicle means to drive or to have actual physical control over the vehicle. The following three examples illustrate what it means for a person to "operate" a motor vehicle. If you find beyond a reasonable doubt that the defendant in this case had as much physical control over a motor vehicle as the persons in these examples, or more, then you must find that the defendant was "operating" the vehicle.
First, if a person is seated in the driver's seat and the vehicle's engine is running, then the person is "operating" the vehicle, even if the vehicle isn't moving, and even if the vehicle isn't capable of moving.
Second, if a person is seated in the driver's seat, is in possession of the ignition key for the vehicle, and is physically capable of starting the engine and causing the vehicle to move, then the person is "operating" the vehicle, even if the engine isn't running, and even if the vehicle isn't moving.
Third, if the vehicle is moving and the person is steering the vehicle, then the person is "operating" the vehicle, even if the vehicle's engine isn't running, and even if the vehicle's engine isn't capable of running.
Edwardsen objected to the use of the pattern instruction, and in particular to the use of the three fact-pattern examples, which he argued were misleading and improperly shifted the burden to the defendant to disprove that his case fell into one of these broadly written examples.
Edwardsen proposed an alternative instruction modeled after this Court's decision in State, Department of Public Safety v. Conley, which would have provided the jury with a non-exclusive list of factors that it could consider in determining whether he had actual physical control over the vehicle. Edwardsen argued that it was important that the jury understand that its determination of operating should be based on the totality of the circumstances and that it could consider any factor that it believed was relevant to this determination. Although the superior court incorporated a small portion of Edwardsen's proposed instruction into the pattern instruction, the court otherwise refused to modify the pattern instruction or to delete the fact-pattern examples in the instruction.
754 P.2d 232, 235 (Alaska 1988).
The jury found Edwardsen guilty of driving under the influence and refusal to submit to a chemical test. In the second portion of the bifurcated trial, the same jury convicted Edwardsen of driving while license canceled, suspended, or revoked. The jury also found that Edwardsen had two prior offenses, making his driving while under the influence and refusal offenses felonies.
Edwardsen's arguments on appeal
Edwardsen argues on appeal that the trial court erred in giving the jury the modified operating pattern instruction rather than his proposed instruction, and that his convictions should be reversed on this basis.
But the jury convicted Edwardsen of both driving while under the influence and driving while his license was canceled, suspended, or revoked. In order to find Edwardsen guilty of the second crime, the jury needed to unanimously find that Edwardsen was driving the Jeep; operating would not have sufficed. The jury instructions and the arguments at trial made this point of law clear to Edwardsen's jury.
See AS 28.15.282(a).
Because Edwardsen's jury found beyond a reasonable doubt that Edwardsen was driving, any error in the operating instruction was therefore harmless.
See State, Dep't of Corr. v. Johnson, 2 P.3d 56, 59 (Alaska 2000).
Conclusion
The judgment of the superior court is AFFIRMED. Judge ALLARD, concurring.
I write separately to express my concerns with the current criminal pattern jury instruction defining "operating." Although I agree that we need not reach this issue in this case because the jury convicted Edwardsen under a "driving" theory, my concern is that our decision may be misread as a tacit approval of the current pattern instruction or as an indication that Edwardsen's various challenges to the instruction lack merit. This would be a mistake.
See Alaska Criminal Pattern Jury Instruction 28.35.030(a) #3 (revised 2009).
I note that Alaska is not alone in employing an expansive definition of "operating" for purposes of its driving while under the influence statute. But to my knowledge, we are the only jurisdiction that has a pattern jury instruction that defines the term "operating" by giving the jury fact-pattern examples of "operating" derived from appellate cases.
See Patricia C. Kussman, Annotation, What Constitutes Driving, Operating, or Being in Control of Motor Vehicle for Purposes of Driving While Intoxicated Statute, Regulation, or Ordinance — Being in Physical Control or Actual Physical Control — General Principles, 92 A.L.R. 6th 295, §§ 11-18 (2014).
Compare Alaska Criminal Pattern Jury Instruction 28.35.030(a) #3 (revised 2009), with Arizona Criminal Pattern Jury Instruction 28.1381(A)(1) (2004), California Criminal Jury Instruction 2241 (2006), Illinois Pattern Jury Instruction 23.43 (2011), Massachusetts Criminal Model Jury Instruction 3.200 (revised 2013), Montana Criminal Jury Instruction 10-106 (2009), New York Criminal Jury Instruction 1192 (2014).
Indeed, a number of jurisdictions have directly criticized this type of approach. In State v. Dawley, for example, the Arizona Court of Appeals cautioned against extracting jury instructions from the language of appellate decisions, noting that such instructions can be misleading or confusing to those not trained in the law. It also cautioned against crafting an "operating" instruction that "single[s] out any specific fact or group of facts[.]" Likewise, in Kirsch v. State, the Texas Court of Criminal Appeals warned against using appellate cases in which the evidence was challenged as factually insufficient to craft a definition of operating for a criminal jury. Courts in other jurisdictions have issued similar warnings.
34 P.3d 394 (Ariz. App. 2001).
Id. at 397.
Id. at 398.
357 S.W.3d 645 (Tex. Crim. App. 2012).
Id. at 651.
See, e.g., Barnier v. State, 67 P.3d 320, 323 (Nev. 2003) (operating instruction improperly limited factors for jury to consider); Commonwealth v. Plowman, 548 N.E.2d 1278, 1280-81 (Mass. App. 1990) (improper to instruct jury that certain facts constitute operating even if facts may be legally sufficient for purposes of appellate review); see also Marks v. State, 864 N.E.2d 408, 410-12 (Ind. App. 2007) (criticizing use of examples in context of defining "impairment").
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As these courts recognize, there is an important difference between (1) an appellate court's holding that, when viewed in the light most favorable to upholding the jury's verdict, the evidence of operating in a particular case is legally sufficient; and (2) using an abbreviated (and arguably inaccurate) fact pattern from that appellate case to instruct a trial jury in a criminal case that those facts constitute "operating" as a matter of law.
Because the current "operating" instruction in Alaska's criminal pattern instructions appears to violate this principle, I caution against the continued use of this pattern instruction.