Summary
finding that although the State argued the defendant had engaged in one prolonged act of driving, the evidence presented to the jury came from eyewitnesses whose observations of the defendant's driving were separated by an hour
Summary of this case from Hodges v. StateOpinion
Court of Appeals No. A-11610 No. 6356
06-29-2016
DWAYNE STANLEY ELIA, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Jane B. Martinez, Law Office of Jane B. Martinez, LLC, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Donald Soderstrom, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, 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. 3AN-10-7294 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael Spaan, Judge. Appearances: Jane B. Martinez, Law Office of Jane B. Martinez, LLC, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Donald Soderstrom, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, and Allard, Judge. Judge ALLARD.
A jury convicted Dwayne Stanley Elia of felony driving under the influence, failure to stop at the direction of a peace officer, leaving the scene of an accident, driving with revoked license, and violating the conditions of his release in two pending felony cases.
AS 28.35.030(n), AS 28.35.182(a), AS 28.35.050(c), AS 28.15.291(a)(1), and AS 11.56.757(b)(1), respectively.
On appeal, Elia argues that the trial court committed reversible error when it failed to properly instruct the jury on the need for factual unanimity with regard to the driving under the influence charge and the leaving the scene of an accident charge. The State concedes error but argues that the error was harmless beyond a reasonable doubt. We agree with the State for the reasons explained here.
Elia also argues that there was insufficient evidence to support his conviction for failure to stop at the direction of a peace officer. We have reviewed the record and conclude that the evidence was sufficient to support this conviction.
Lastly, Elia challenges the sentencing court's finding that he was a third felony offender for presumptive sentencing purposes. We find no error in the court's ruling.
Facts and proceedings
Tyler Carlson was watching television at 2:00 a.m. on July 2, 2010, when he heard a crash outside his apartment building. Carlson went to his balcony and saw two people below: Elia and a female companion. The female was seated in the driver's seat of a green car. Elia was outside the green car, looking at the bumper of Carlson's vehicle.
When Carlson saw the female begin to back the green car up as though to drive away, he ran downstairs to confront her and Elia. Elia appeared "quite intoxicated" and did not seem to understand what Carlson was saying to him. But when Carlson said he was going to call the police to report the accident, both Elia and his female companion became aggressive toward Carlson.
Carlson's roommate, who was watching the encounter unfold, called the police. When Elia and his female companion realized the police had been called, they left and went into an apartment in a nearby building. As Carlson was waiting outside for the police to arrive, he saw Elia leave the apartment and get into a dark-colored Chevrolet Suburban. Elia started the Suburban, turned it around, and drove away. In the process of turning the Suburban around, Elia "clipped" another car, a Subaru.
An hour later, at approximately 3:00 a.m., Anchorage Police Officer Ryan McNamara was on patrol in Carlson's neighborhood when a Suburban sped towards him. The Suburban made a wide left turn, coming into the officer's side of the road, and Officer McNamara applied his brakes "really hard" to avoid a collision. The Suburban then swerved around Officer McNamara's patrol car and back onto the correct side of the road. Officer McNamara activated his siren and lights and pursued the Suburban, which continued to drive at approximately forty-five to fifty miles per hour through a residential area. After a pursuit of about three blocks, the Suburban crashed into a parked purple van and a guardrail and came to a complete stop.
Two to three seconds later, Elia crawled out of the Suburban's driver's side window and ran. McNamara and another officer, Daniel Garcia, chased after Elia, and Garcia tackled him. Although Officer Garcia reported seeing another person in the passenger seat at the time of the crash, it appears that this other individual was never identified or interviewed.
Elia showed signs of intoxication when he was caught by the officers: he smelled of alcohol; he was unsteady on his feet; he had red, watery eyes; and his speech was slurred. Following his arrest, Elia provided a breath sample that showed a blood alcohol level of .174 percent.
At the time of these events, Elia was on bail release in two pending felony cases with conditions that he remain with a third-party custodian. Elia also had convictions for driving under the influence from 2004 and 2006. The State charged Elia with felony driving under the influence, failure to stop at the direction of a peace officer, leaving the scene of an accident, driving with a revoked license, and two counts of violating the conditions of his release.
At trial, Elia's defense differentiated between the 2:00 a.m. incident (the conduct at the apartment building where Elia had the confrontation with Carlson and Elia then drove away in the Suburban, clipping the Subaru in the process) and the 3:00 a.m. incident (the conduct involving the Suburban that almost crashed into the officer's car, drove through the residential area at a high-rate of speed, and then crashed in the purple van).
With respect to the 2:00 a.m. incident, Elia conceded that he drove the Suburban and clipped the Subaru. But he argued that he was not intoxicated at that point in time and the State could not prove beyond a reasonable doubt that he was intoxicated. Elia also argued that he had not realized that he clipped the Subaru and the State therefore could not prove beyond a reasonable doubt that he knowingly left the scene of an accident.
With respect to the 3:00 a.m. incident, Elia conceded that he was too intoxicated to drive by that point in time. But he argued that he was not the driver during that incident — the second unidentified person seen by Officer Garcia was the driver.
The jury convicted Elia of the charged offenses (felony driving under the influence, failure to stop at the direction of a peace officer, leaving the scene of an accident, driving while license revoked, and violating the conditions of his release in two pending felony cases.)
The verdicts did not specify whether the jury found Elia guilty of driving under the influence and leaving the scene of the accident based on the 2:00 a.m. incident or the 3:00 a.m. incident (or both).
At sentencing, the superior court found Elia a third felony offender for presumptive sentencing purposes and sentenced Elia to a composite sentence of 5 years and 10 days to serve.
This appeal followed.
Why we conclude that the court's failure to provide factual unanimity instructions was harmless beyond a reasonable doubt
When the State presents evidence of more than one incident, each of which could support a separate conviction for the charged offense, due process under the Alaska Constitution requires that the trial court instruct the jurors that they must be factually unanimous as to the incident they relied on in reaching their verdict.
See Khan v. State, 278 P.3d 893, 899 (Alaska 2012).
Here, Elia was charged with a single count of felony DUI and a single count of leaving the scene of an accident. But the evidence at trial showed that there were two potential incidents at issue, either of which could have formed the basis for these charges.
At trial, Elia asked the court to instruct the jury that to convict him of driving under the influence the jury needed to be unanimous as to which act (or acts) of driving formed the basis for their conviction.
The prosecutor argued that no factual unanimity instruction was needed because there was no actual evidence introduced at trial that these were two separate driving incidents. (Indeed, the prosecution's theory was that this was one continuous act of driving under the influence.) The trial court agreed with the prosecutor and denied the defense request.
The court then sua sponte proposed a factual unanimity instruction for the charge of leaving the scene of an accident, noting that there was evidence introduced at trial of two different accidents involving two different unoccupied vehicles (the Subaru and the purple van). But the court then gave the jury the opposite of a factual unanimity instruction, mistakenly instructing them that "to return a verdict of guilty [on the charge of leaving the scene of an accident], you do not need to agree among yourselves on which of these two vehicles the State has proved." (Emphasis added.)
On appeal, the State concedes that the trial court erred in denying the defense request for a factual unanimity instruction on the driving under the influence charge and then mistakenly instructing the jury with an incorrect factual unanimity instruction on the leaving the scene of an accident charge. The State argues, however, these error were harmless beyond a reasonable doubt in the context of this case.
We agree with the State that any error in failing to properly instruct the jury on factual unanimity was ultimately harmless beyond a reasonable doubt in this case. As just explained, Elia offered two distinct, but complementary, defenses as to each of the incidents. As to the first incident, Elia conceded that he was the driver but disputed that there was proof beyond a reasonable doubt that he was intoxicated. As to the second incident, Elia conceded that he was intoxicated but disputed that there was proof beyond a reasonable doubt that he was the driver.
But the jury's guilty verdict on the failure to stop charge — a charge unique to the second incident — confirms that the jury unanimously rejected Elia's defense on the second incident and unanimously found that Elia was the driver of the Suburban during that incident and therefore guilty of the other charges based on his conduct during that second incident.
Thus, because the jury's guilty verdict on the failure to stop charge demonstrates that there is no reasonable possibility that the verdicts in this case would have been different even if the jury had been properly instructed on factual unanimity, we conclude that any error in failing to give the jury proper factual unanimity instructions was harmless beyond a reasonable doubt.
Why we conclude that the State presented sufficient evidence to prove that Elia was driving the Suburban at 3:00 a.m.
On appeal, Elia argues that there was legally insufficient evidence to convict him of failure to stop at the direction of a peace officer.
Elia does not challenge the sufficiency of the evidence to convict him of his other driving-related offenses.
When we review a claim of insufficiently on appeal, we are required to view the evidence, and all reasonable inferences to be drawn from that evidence, in the light most favorable to the jury's verdict. We then determine if insufficient evidence, we ask "whether fair-minded jurors, exercising reasonable judgment, could conclude that the State had proven the charge[] beyond a reasonable doubt."
Id.
Spencer v. State, 164 P.3d 649, 653 (Alaska App. 2007).
Elia argues that, in his case, there was reasonable doubt as to whether the second unidentified person was actually the driver. But this argument rests on viewing the evidence in the light most favorable to Elia, rather than in the light most favorable to upholding the jury's verdict.
At trial, the jury heard testimony from multiple witnesses who identified Elia as the driver of the Suburban in the first incident and multiple witnesses who saw Elia crawl out of the driver's side window of the Suburban seconds after it crashed into the purple van. Viewing this evidence in the light most favorable to upholding the verdict, we conclude that the evidence was legally sufficient to support Elia's conviction.
Why we conclude that Elia was a third felony offender for presumptive sentencing purposes
Alaska Statute 12.55.145(f) states that a "prior conviction" occurs for purposes of presumptive sentencing at the time the defendant enters a guilty or no contest plea:
Under this section, a prior conviction has occurred when a defendant has entered a plea of guilty ... or nolo contendere, or when a verdict of guilty ... has been returned by a jury or by the court.At sentencing, the trial court found that Elia was a third felony offender under AS 12.55.-145(f) because he had a prior felony conviction from 1996 and had pled to a new felony conviction approximately four months before the conduct for which he was convicted in this case (even though he was not sentenced on that second felony until after the conduct occurred).
Elia argues that the trial court erred in sentencing him as a third felony offender and he should have been sentenced as a second felony offender. He contends that the definition of "prior conviction" under AS 12.55.145(f) is ambiguous because there are other subsections in the same statute that appear to assume that a "prior conviction" is a conviction for which the defendant has already been sentenced. Elia asserts these purported inconsistencies within the statute could be harmonized if we interpret AS 12.55.145(f) as explaining only how a defendant can be convicted of a prior conviction rather than when a conviction should count as a prior conviction for purposes of presumptive sentencing. Elia also argues that because AS 12.55.145(f) is ambiguous, the common law rule which assumes that, in the absence of a controlling statute, the date of sentencing marks the date of a defendant's "conviction."
See, e.g., Eberhardt v. State, 275 P.3d 560, 562 (Alaska App. 2012); Bradley v. State, 197 P.3d 209, 218 (Alaska App. 2008); Wooley v. State, 157 P.3d 1064, 1065 (Alaska App. 2007).
We find no merit to this argument. The plain language and legislative history of AS 12.55.145(f) unambiguously reflect the legislature's intent to depart from the rule that the date of sentencing is the date of the conviction. During a meeting of the House Judiciary Committee, legislative counsel Jerry Luckhaupt explained that AS 12.-55.145(f) was intended:
[to] clarify when a previous conviction is counted as a previous conviction. Last year when we were doing this bill, we discovered that our current statutes are not clear. In all cases when we are trying to determine when a prior most serious felony conviction or any prior conviction should be counted as a prior conviction. This was the language we developed with the Department of Law to clarify, not only the situation presented in this bill, but the situations presented across the board in all of our criminal sentencing schemes where a previous conviction increases the penalty.
Minutes of House Judiciary Committee, House Bill 38, at 380 (Mar. 8, 1995); see also Jerry Luckhaupt, Sectional Summary of H.B. 38 at 2, § 10 (Jan. 17, 1995) (noting that H.B. 38 amended AS 12.55.145 "by adding a new subsection (f) that explains when a prior conviction has occurred for use at sentencing under AS 12.55.145"). --------
Based on this clear indication of legislative intent supporting the plain language of the statute, it is clear that the trial court properly sentenced Elia as a third felony offender.
Conclusion
The judgment of the superior court is AFFIRMED.