Opinion
Court of Appeals No. A-12758 No. 6918
01-06-2021
Appearances: Michael Barber, Barber Legal Services, under contract with the Public Defender Agency, and Beth Goldstein, Acting Public Defender, Anchorage, for the Appellant. Hazel C. Blum, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, 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, although it may be cited for whatever persuasive value it may have. See McCoy v . State , 80 P.3d 757, 764 (Alaska App. 2002). Trial Court No. 3AN-14-04121 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Paul E. Olson, Judge. Appearances: Michael Barber, Barber Legal Services, under contract with the Public Defender Agency, and Beth Goldstein, Acting Public Defender, Anchorage, for the Appellant. Hazel C. Blum, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee. Before: Allard, Chief Judge, Harbison, Judge, and Hanley, District Court Judge. Judge HARBISON.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Larry Murphy Frey appeals his convictions for felony driving under the influence and felony refusal to submit to a chemical test. At trial, Frey claimed that he did not know he was legally required to provide a breath sample after his arrest for driving under the influence. On appeal, Frey challenges the trial court's decision to allow the State to rebut this contention by presenting evidence that Frey had been previously charged — on two occasions — with driving under the influence, and that on one of these occasions, he was also charged with refusal to submit to a chemical test after he refused to provide a breath sample. For the reasons explained here, we find no abuse of discretion in the trial court's evidentiary rulings. Accordingly, we reject Frey's claims of error and affirm his convictions.
AS 28.35.030(n) and AS 28.35.032(p), respectively.
Underlying facts
In May 2014, two witnesses reported to law enforcement that they had observed Frey driving and that he appeared to be intoxicated. Shortly after the report, two police officers contacted Frey and observed that he was exhibiting signs of intoxication. They arrested him for driving under the influence. At the jail, an officer requested that Frey provide a breath sample by blowing into a DataMaster machine. Frey refused. The officer then read Frey the standard "implied consent" advisement, explaining that refusal to provide a breath sample is a separate crime. After this, Frey again refused to blow into the DataMaster.
For this conduct, Frey was indicted on charges of felony DUI and felony refusal. The charges were felonies because Frey had been convicted of DUI, a predicate offense, twice within the preceding 10 years (in 2008 and 2009).
Prior to his trial, Frey filed a motion to bifurcate his trial into two stages. The trial court denied this motion, concluding that Frey's prior charge for refusal was admissible for a non-propensity purpose under Alaska Evidence Rule 404(b)(1) — to establish Frey's knowledge that, if he refused to submit to a breath test, he could be charged with a crime. However, in a later pretrial ruling, the trial court instructed the State that it could not discuss Frey's prior convictions during voir dire. The court also ruled that the State could not admit evidence of the prior convictions unless Frey disputed that he "knowingly refused" to take the breath test.
Frey testified on his own behalf during the trial and claimed that he did not know he was legally required to provide a breath sample. The trial court then conducted the balancing test required by Alaska Evidence Rule 403 and concluded that, although evidence of Frey's prior charges was admissible to show he understood the requirement to take the breath test, evidence of his prior convictions would be more prejudicial than probative. The prosecutor subsequently questioned Frey about the prior charges, and the jury ultimately convicted Frey of both DUI and refusal. The jury did not hear evidence that Frey's previous charges resulted in convictions.
After the jury returned its guilty verdicts, the trial court asked Frey whether he wanted the second stage of his trial to be heard by a judge or jury. After consulting with his attorney, Frey waived his right to have a jury determine whether he had been previously convicted of the prior DUI offenses from 2008 and 2009. The trial court gave the parties an opportunity to present evidence, and it then found Frey guilty of felony DUI and felony refusal. This appeal followed.
Why we affirm the trial court's ruling that the State could introduce evidence of Frey's prior charges for DUI and refusal
Frey's defense to the refusal charge was that he did not understand that he was legally required to provide a breath sample. Frey testified that he refused to provide a breath sample in part because he suffers from a brain condition that affects his attention and makes him uncooperative when he feels threatened. Frey also testified that he "didn't know it was against the law" to refuse to provide a breath sample — i.e., that he did not understand that he could be charged with a separate crime if he refused to provide one.
Following this testimony, the trial court allowed the prosecutor to cross-examine Frey regarding his previous DUI and refusal charges.
During the cross-examination, Frey testified that from 2005 to 2008, because of his brain condition, he was "pretty much lost in the world." He also testified that he was arrested for DUI in 2008, taken for processing, and asked to provide a breath sample. Frey admitted that he had then provided a sample as requested, and the test of the breath sample showed his breath alcohol content was .108 percent.
In response to the prosecutor's questions, Frey also testified that he was charged with both DUI and refusal in 2009. Frey agreed with the prosecutor that he was arrested and "taken down for DUI processing" and that he did not give a breath sample when asked to provide one. Frey also acknowledged that he was then charged with refusal to submit to a breath test.
On appeal, Frey argues that the trial court abused its discretion by allowing this cross-examination. He argues first that the prior charges were irrelevant to any contested issue at trial. He also argues that, even if evidence of the 2008 and 2009 charges was relevant, it was more prejudicial than probative and should have been excluded under Alaska Evidence Rule 403.
Under Alaska Evidence Rule 404(b)(1), evidence of prior bad acts is inadmissible if the sole purpose is to "prove the character of a person in order to show that the person acted in conformity therewith." However, such evidence is admissible when it is relevant for a non-propensity purpose, including when it is relevant to establish proof of the defendant's "knowledge." We have previously approved of admission of evidence of a defendant's prior experience taking a breath test when the defendant was charged with refusal to submit to a chemical test, explaining that a defendant's participation in the prior acts may be relevant to establish that the defendant possessed knowledge pertinent to the present case.
See Yang v. State, 107 P.3d 302, 306 (Alaska App. 2005).
Here, the trial court could reasonably conclude that evidence of Frey's prior charges was relevant to rebut his claim that he did not understand he was legally required to provide a breath sample. When he was arrested for DUI in 2008 and chose to comply with the requirement to take the breath test, Frey was charged only with DUI. But when he was arrested for DUI in 2009 and refused to provide a breath sample, he was charged with both DUI and refusal. Accordingly, Frey's prior experience was relevant to show that he was familiar with the breath test and was aware of the legal consequences of failing to provide a breath sample.
Frey contends that even if this evidence was relevant under Rule 404(b)(1), the trial court should have excluded the evidence pursuant to Evidence Rule 403 because, according to Frey, its potential for unfair prejudice outweighed its probative value.
The potential for unfair prejudice lay in the possibility that the jury could infer that, because Frey had previously committed DUI and refusal, he must be guilty of the present charges. But the evidence of Frey's prior charges was also highly probative. Once Frey testified that he did not know that refusing to provide a breath test was against the law, he put at issue an element of the offense of refusal that the State was required to prove beyond a reasonable doubt. Frey's previous experience with being arrested for DUI and being charged with refusal after he failed to provide a breath sample was highly probative of his awareness of the breath test requirement.
We note that some of the underlying details regarding the prior charges were not as relevant — i.e., his specific breath alcohol content from his 2008 arrest and his admission during his 2009 arrest that he had consumed two beers. But Frey did not object to the inclusion of these extraneous details at trial, and he therefore must show that it was plain error to allow this testimony. We find no plain error here.
See Adams v. State, 261 P.3d 758, 764 (Alaska 2011).
We also note that the trial court took care to limit the prejudice that could result from admission of the prior act evidence. First, the court allowed the State to present evidence only of Frey's charges and not of his convictions. Additionally, the court gave the jury a limiting instruction, explaining that it should consider evidence of Frey's prior acts only to assess Frey's "knowledge of his obligation[] to provide a breath sample to the police on or about May 9, 2014." We have repeatedly held that jurors are presumed to follow such instructions.
See Coffin v. State, 425 P.3d 172, 175 (Alaska App. 2018); Bradley v. State, 197 P.3d 209, 216 (Alaska App. 2008); Lau v. State, 175 P.3d 659, 663 (Alaska App. 2008); Dailey v. State, 65 P.3d 891, 897 (Alaska App. 2003); State v. McDonald, 872 P.2d 627, 654-55 (Alaska App. 1994); Whiteaker v. State, 808 P.2d 270, 277 (Alaska App. 1991).
For these reasons, we conclude that the trial court did not abuse its discretion when it allowed the prosecutor to cross-examine Frey concerning prior instances when he was asked to submit to a breath test following his arrest for DUI.
In his brief, Frey asserts that the trial court erred by denying his motion to bifurcate his trial because it admitted evidence of his prior charges during the first phase of the proceedings. But the record shows that the trial court did conduct the proceedings in two phases, and that it did not admit evidence of Frey's convictions until the second phase. Frey's real complaint is that the trial court erred by allowing the State to present evidence of Frey's prior DUI and refusal charges during the first phase of the trial. As we have explained, we reject this claim of error. --------
Conclusion
We AFFIRM the judgment of the superior court.