Opinion
Court of Appeals No. A-9774.
November 26, 2008.
Appeal from the Superior Court, First Judicial District, Juneau, Patricia A. Collins, Judge, Trial Court No. 1JU-05-1171 CR.
David D. Reineke, Assistant Public Defender, Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Trina Sears, Assistant District Attorney, Roman J. Kalytiak, District Attorney, Palmer, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
A jury convicted Brandon C. Hammer of two counts of felony driving while under the influence for crashing a company pick-up truck and then driving a backhoe from a construction site, apparently with the intent of pulling the truck out of the ditch. Hammer argues that his convictions were supported by insufficient evidence. We conclude that a fair-minded juror could find beyond a reasonable doubt that Hammer was under the influence at the time he drove the truck and the backhoe. We therefore affirm Hammer's convictions.
AS 28.35.030(n).
Facts and proceedings
At about midnight on September 13, 2005, Steven Van Epps was driving in Gustavus when he saw a "fast-paced vehicle" crash into the woods. He testified that the impact of the vehicle "pretty much sounded like a vehicle hitting a wall." Van Epps pulled over and saw a man he later identified as Brandon Hammer "trying to find his way out of the woods." Van Epps said Hammer seemed dazed and confused and had trouble standing upright. Van Epps asked Hammer if there was anyone else in the vehicle and Hammer said he was the only one.
Jessica Tipkemper, a naturalist for the National Park Service, was driving around with her husband looking for a place to watch the northern lights when she saw the truck in the woods and pulled over. Van Epps was already at the scene. Hammer was trying to turn off the ignition of the truck and Tipkemper helped him. Tipkemper later testified that Hammer was "completely focused" on getting the truck out of the ditch, and that he repeatedly offered her money to move the truck. At one point he offered her $4000 to pull the truck out, and he patted the pajama bottoms he was wearing as if he was looking for the money in his pockets. He told Tipkemper he was worried about losing his job. Because the truck was badly damaged and lodged in the trees, Tipkemper told him there was "no way" they could get the truck out of the ditch.
Hammer told Tipkemper he had equipment at the airport he could use to pull the truck out and Tipkemper agreed to drive him there. She thought it would be a good idea to get him into a more populated area so he did not wander off into the woods. While they were driving to the airport, Hammer spat on the floor of the truck. Then when he got out of the car, he urinated in front of Tipkemper. Tipkemper had never met Hammer before and she found this behavior strange. She thought he might have a head wound from the crash, but she also suspected he was under the influence of alcohol or drugs.
When they got to the airport, Tipkemper realized Hammer was planning to take equipment from a job site at the airport. She called Matt Musselwhite, the volunteer fire captain at the Gustavus Fire Department, and told him that there had been an accident, that she had driven the occupant of the vehicle to the airport, that she thought he was intoxicated, and that he was planning to use equipment at the airport.
Musselwhite set off for the airport with Mark Berry, the volunteer fire chief. On the way, they received a report that someone was driving heavy equipment on the road. They spotted a backhoe driving down the middle of the road, and Berry stood in the backhoe's path until Hammer brought it to a stop. Berry approached Hammer and asked him if he had been involved in an accident and if he was okay. Hammer said he had been involved in an accident but that he had not been driving. He said he was on his way to pull the vehicle out of the ditch. Then he changed his story and said he was driving to where he was staying at the Spruce Tip Lodge to get help. Berry persuaded Hammer to park the backhoe and to allow them to drive him to the Spruce Tip Lodge.
Berry and Musselwhite both concluded from this contact that Hammer was under the influence. Berry testified that Hammer smelled like alcohol and that it was obvious that Hammer was "drunk." Musselwhite testified that Hammer's speech was slurred, that he had trouble putting his sentences together, and that he had bloodshot, glassy eyes. Musselwhite, who was certified as an emergency trauma technician, said he saw no obvious signs of trauma, apart from the minor injuries to Hammer's face and lip consistent with airbag deployment.
Because there was no trooper station in Gustavus, Wendy Bredow, a law enforcement park ranger at Glacier Bay National Park, was the first to investigate the accident. She arrived at the scene at about 1:40 a.m., more than an hour after she received the first call from Tipkemper. She observed that there were tire marks on the road that led in a straight line to where the truck was lodged in the brush. There were dents in the vehicle, the rear window was shattered, and the airbag was deployed. The truck apparently struck a stop sign, because the sign canted to the left. The truck had passed a warning sign about 150 yards down the road indicating that there was a right-angle turn ahead and that the suggested speed limit was twenty miles per hour. On the floor board between the passenger and driver seats was a box containing a bottle of Crown Royal whiskey. There was about one and one-half inches of liquid left in the bottle.
Bredow drove to the Spruce Tip Lodge, arriving at about 2:00 a.m., some two hours after the accident, and found Hammer there with Musselwhite and Berry. (Musselwhite testified that Hammer had nothing to drink at the lodge after the accident, although he tried to get a beer.) Bredow noticed that Hammer "reeked" of liquor and that his eyes were bloodshot and glassy. Although Hammer admitted he had consumed some Crown Royal after dinner, he said a man named Bobby Lee drove the truck. Hammer told Bredow he felt no pain in his head, arms or legs, and he agreed to perform field sobriety tests.
Bredow administered the horizontal gaze nystagmus test and concluded that Hammer had displayed all six clues of impairment. During the walk-and-turn test, Hammer had a difficult time maintaining his balance, and he did not perform the turn properly. For the one-leg-stand test, Bredow asked Hammer to hold his foot off the ground and count until he was told to stop. Hammer repeated the number seven twice and put his foot down and stopped counting when he reached twenty-four, without being directed to do so. In the alphabet test, Hammer started with the letter "F" even though he had been instructed to start with "E". After administering these tests, Bredow concluded that Hammer showed "definite signs of impairment."
Kenneth Beatty, Hammer's boss, testified that Hammer received a bottle of Crown Royal whiskey on the flight that arrived in Gustavus at 5:30 or 6:00 p.m. on the night of the accident. He said Hammer started drinking the whiskey after dinner and that by 10:30 p.m. the bottle was half empty. Beatty said no one else drank the whiskey. Beatty testified that he drove the truck earlier that day and there were no problems with the brakes or steering. He also testified that Hammer did not have permission to take the truck.
Hammer was charged with two felony counts of driving while under the influence for driving the truck and the backhoe. (Hammer was charged with felony offenses because the State alleged that at the time of his offenses he had two prior convictions since January 1, 1996.) After the State presented its case, Hammer moved for a judgment of acquittal, arguing that there was insufficient evidence for the case to go to the jury. Superior Court Judge Patricia A. Collins denied the motion.
In closing argument, Hammer admitted he drove the truck and that he lied on the night of the accident when he said someone else drove the truck. But he argued that his odd behavior resulted from his being in a bad car wreck, not from drinking. He noted that the State had no chemical test establishing his blood alcohol level, and no electronic record of his contact with Bredow. The jury convicted Hammer of both offenses. Hammer appeals.
There was sufficient evidence to support the verdicts
Hammer argues that, based on the evidence, no reasonable juror could find beyond a reasonable doubt that he was driving while under the influence. He argues that his poor performance on the field sobriety tests, and his confused and dazed behavior, might have resulted from a head injury, and that his eyes might have been bloodshot because they were dry or tired. He notes that Tipkemper, who had the best opportunity to observe him, did not smell alcohol on his breath. He also notes that the State presented no evidence of his blood alcohol level.
In evaluating a claim of insufficient evidence, we must view the evidence, and all the reasonable inferences from the evidence, in the light most favorable to upholding the jury's verdicts. The question is whether a reasonable juror could conclude beyond a reasonable doubt that the defendant committed the charged offenses.
Grandstaff v. State, 171 P.3d 1176, 1210 (Alaska App. 2007); Braund v. State, 12 P.3d 187, 192 (Alaska App. 2000) (citing Dorman v. State, 622 P.2d 448, 453 (Alaska 1981); Silvernail v. State, 777 P.2d 1169, 1172 (Alaska App. 1989)).
Silvernail, 777 P.2d at 1172.
Viewing the evidence in the light most favorable to the jury's verdicts, Hammer obtained a bottle of Crown Royal whiskey at 5:30 or 6:00 p.m. on the night of the accident and began drinking from that bottle after dinner. He drank alone and by 10:30 p.m. the bottle was half empty. He subsequently took a company truck without permission and drove it at high speed, missed a sharp turn in the road despite a warning sign, and crashed into the brush.
After the accident, Hammer behaved strangely. He offered to pay Tipkemper, who had stopped at the scene to help him, as much as $4000 to pull the truck out of the ditch. Then he spat in her car and urinated in front of her. He took a backhoe from a job site at the airport and drove it down the middle of the road. The two volunteer firemen who intercepted him driving the backhoe concluded he was intoxicated.
Bredow, the park ranger who investigated the accident, found an almost empty bottle of Crown Royal on the floorboard of the crashed truck. After administering field sobriety tests, she concluded Hammer showed "definite signs of impairment." Hammer lied to Bredow about the accident, telling her a man named Bobby Lee drove the truck and then left the scene on a bicycle.
Hammer argues that his abnormal behavior could have resulted from a head injury. But at trial the jury heard evidence and argument that Hammer behaved strangely because he was involved in an accident, not because he was intoxicated, and the jury rejected that evidence and argument. The jury's conclusion was reasonable. As detailed above, Hammer did not complain of a head injury and there was considerable evidence he drank a large amount of whiskey and was intoxicated while he drove the truck and backhoe.
Hammer also points out that the State presented no evidence of his blood alcohol level. But as Hammer concedes in his brief, the statute defining the offense of driving while under the influence allows a driver to be convicted based on either a chemical test of the driver's blood alcohol level or other evidence of impairment — such as the testimony of witnesses.
See AS 28.35.030(a)(1)-(2).
Lastly, Hammer argues that he was convicted based on "subjective opinions, speculation, and assumptions by witnesses whose testimony was vague and unreliable." In other words, he asks us to second-guess the jury's determinations of credibility, determinations that falls exclusively within the province of the jury. As noted earlier, our duty is to view the evidence in the light most favorable to upholding the jury's verdicts. Viewing the evidence in that light, we find sufficient evidence to support the verdicts.
Anthony v. State, 521 P.2d 486, 492 (Alaska 1974).
Conclusion
We AFFIRM Hammer's convictions.