Opinion
Court of Appeals No. A-10820 Trial Court No. 3GL-09-126 CR No. 5911
01-16-2013
MARY E. HICKS, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: John N. Page III, Assistant Public Defender, and Quinlan Steiner, Pubic Defender, Anchorage, for the Appellant. Kenneth M. Rosenstein, 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 precedent for any proposition of law.
MEMORANDUM OPINION
AND JUDGMENT
Appeal from the Superior Court, Third Judicial District, Glennallen, Dan Schally, Judge.
Appearances: John N. Page III, Assistant Public Defender, and Quinlan Steiner, Pubic Defender, Anchorage, for the Appellant. Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
BOLGER, Judge.
Mary E. Hicks was convicted of felony driving while under the influence of alcohol. On appeal, she asserts that there was insufficient evidence to support her conviction, and that the judge incorrectly instructed the jury to find that she had "operated" a vehicle if the State proved certain facts. We conclude that there was sufficient evidence to support her conviction, and that the jury instruction was not plainly erroneous.
AS 28.35.030(a), (n).
In addition, the State points out that Hicks should have been entitled to a jury-unanimity instruction because the evidence at trial allowed the jury to convict Hicks for two distinct driving or operating incidents. But we conclude that no plain error occurred because Hicks had tactical reasons for not raising this issue in the superior court.
Background
Hicks's primary claim in this appeal is a challenge to the sufficiency of the evidence that proved that she had been in physical control of a motor vehicle, so the following facts are set out in the light most favorable to the jury's verdict.
Alaska State Trooper Phillip Duce testified that Hicks's husband, Terry, called his office to report that Hicks was driving under the influence. At trial, however, Terry testified that he could not remember making this report because he had been very intoxicated. Consequently, Trooper Duce was allowed to testify about Terry's report because it was a prior inconsistent statement.
Trooper Duce testified that Terry wanted the police to find Hicks because she was intoxicated and he was worried that she would damage his truck. Terry made his initial report at about 9:41 p.m., and Duce spoke with Terry at about 10:00 p.m. to get more information.
Sergeant Daniel Decker, a village public safety officer (VPSO), also responded; he located the truck and Hicks at about 10:30 p.m. Trooper Duce drove to Decker's location to assist him. In other words, the police found Hicks shortly after Terry's report.
For his part, VPSO Decker testified that he first went to Hicks's residence between 10:00 and 10:05 p.m., then drove to Copper Center. When Decker did not see Hicks's truck, he turned around and drove back up the road. As he did so, he saw Hicks's truck at Bobby Jackson's house. The truck had not been there when Decker first drove by, approximately ten minutes earlier.
As Decker drove by Jackson's house, he "saw Mrs. Hicks get into the vehicle and start it up." He saw "the brake lights came on and it looked like some exhaust came out of the exhaust pipe." As Decker turned his vehicle around, he saw Hicks turn the vehicle off, get out, and run back into the house.
Decker went to the house and talked to Hicks. Before Decker could explain why he was contacting her, Hicks said, "you're here investigating me for DUI." She admitted that she had just started the truck, but she decided that she was too drunk to drive, so she turned it off. Decker later saw that the keys were still in the truck's ignition; he had already determined that the engine was still warm. Although Hicks initially said that one of her children had driven her to the Jackson residence, she later said that she had driven there, and that she had only consumed one beer while at the house. Decker did not see her children at the house.
Hicks appeared intoxicated, but she refused to do any field sobriety tests. VPSO Decker arrested Hicks for driving under the influence. Hicks was transported to the police station, and Trooper Duce administered the Datamaster test, which showed that her breath-alcohol content was .202 percent. Hicks was convicted of felony driving while under the influence.
Discussion
There was sufficient evidence that Hicks was driving or operating a motor vehicle.
As mentioned earlier, there was evidence that Hicks had been driving or operating her vehicle during two separate incidents. The first incident was when she drove to the Jackson residence before Decker found her; the second incident was when she started the truck after Decker found her.
Hicks makes a cursory claim that the evidence supporting the first incident "was wholly inadequate." As for the second incident, Hicks claims that there was insufficient evidence to prove that she was in physical control of the vehicle when Decker saw her start the truck.
"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) (citations omitted).
Id. (citations omitted).
With regard to the first incident, the evidence showed that Hicks's husband first reported that she was driving his truck while under the influence at about 9:41 p.m. At about 10:30 p.m., Hicks was found at the Jackson residence with the truck and its keys. Decker testified that the truck's engine was still warm. Hicks told VPSO Decker she drove to Jackson's house, and she admitted this fact at trial. Hicks also admitted that she was intoxicated when she was contacted by Decker. About two hours later, Hicks's breath alcohol content was measured at .202 percent. Based on this evidence, a reasonable juror could have concluded that the State had proven that Hicks had driven the truck to the Jackson's residence while she was under the influence of alcohol.
With respect to the second incident, the jury heard from Decker that he saw Hicks enter into and start the truck. Decker also testified that Hicks admitted that she had started the truck. Under Alaska law, an intoxicated person commits the offense of driving under the influence if the intoxicated person takes actual physical control of a motor vehicle. Under Alaska case law and under the facts of this case, Hicks was "in actual physical control" of the truck when she got into the truck and started the engine. So the evidence was sufficient to allow a reasonable juror to conclude that the State had proved Hicks was operating the truck during this second incident.
Kingsley v. State, 11 P.3d 1001, 1002-03 (Alaska App. 2000) (citing Department of Public Safety v. Conley, 754 P.2d 232, 236 (Alaska 1988), and Mezak v. State, 877 P.2d 1307, 1308 (Alaska App. 1994)). AS 28.90.990(a)(8) defines "driver" as "a person who drives or is in actual physical control of a vehicle."
The "operating" instruction was not plainly erroneous.
Superior Court Judge pro tem Dan Schally gave a pattern instruction on the definition of the term "operating" as used in the statute that criminalizes driving under the influence. The pattern instruction includes three examples, drawn from Alaska case law, to help explain what it means to operate a motor vehicle. The instruction also tells the jurors that if they find that the defendant had as much physical control over a motor vehicle as the persons in these examples, or more, then they must find that the defendant was "operating" the vehicle.
See Alaska Criminal Pattern Jury Instruction — 28.35.030(a) "Operating" (2011 edition) (zipped file available at http://courts.alaska.gov/crimins.htm (last visited Jan. 2, 2013)).
Hicks claims that this instruction was erroneous. She argues that the jury should have been instructed that "the examples were just that — situations where a jury could, but was not required to, find 'operating.'"
Hicks did not object to this instruction at trial, so she must now show plain error. To constitute plain error, the error must be so obvious that any competent judge or lawyer would have recognized it even without an objection, and it must be so prejudicial that failure to correct it on appeal would perpetuate a miscarriage of justice. Hicks is in essence arguing that Judge Schally's reliance on the established pattern instruction was obvious error.
See Potts v. State, 712 P.2d 385, 390 (Alaska App. 1985), superseded by statute on other grounds as recognized in Braun v. State, 911 P.2d 1075, 1078 (Alaska App. 1996).
In Hilbish v. State, we rejected a similar claim of plain error when the jury instruction challenged on appeal was based on an Alaska Criminal Pattern Jury Instruction. The instruction in question defined reasonable doubt. Because the jury instruction on reasonable doubt was regularly given in Alaska criminal cases, we found that "it is difficult to understand how the wording [the defendant] complains of could be deemed obvious error."
891 P.2d 841 (Alaska App. 1995).
Id. at 851.
Id.
Recently, in Gunnels v. State,we rejected a claim similar to Hicks's, finding that giving a nearly identical instruction was not plain error. But we also ruled that this instruction did not "impermissibly shift the burden of proof or require the jury to find [the defendant] guilty." Rather, "the instruction informed the jury that if the State proved certain facts regarding the level of control [the defendant] had over the vehicle, then under the law, [the defendant] was 'operating' the vehicle." We held that the instruction "accurately states the Alaska law on this issue."
2012 WL 3764452 (Alaska App. Aug. 29, 2012).
Id. at *5.
Id.
Id.
Id.
In this case, we accordingly conclude that the pattern jury instruction on the definition of "operating" did not constitute plain error.
The lack of a jury unanimity instruction was not plain error.
Hicks was charged with one count of driving under the influence. But as noted above, the jury could have found that she drove under the influence at two different times — once before Decker contacted her, and again when Decker saw her start her truck. During final arguments, the prosecutor told the jury that it could find her guilty for either episode.
Hicks did not object to this argument, nor did she ask the court to instruct the jury that it had to unanimously agree on one of these incidents to return a guilty verdict. Consequently, Hicks now has to show plain error.
Judge Schally's failure to give a jury unanimity instruction under the circumstances in this case was obvious error. But to prevail on a claim of plain error, Hicks must also show that the error was not the result of her attorney's tactical decision not to object.
See State v. Covington, 711 P.2d 1183, 1184-85 (Alaska App. 1985).
See Khan v. State, 278 P.3d 893, 901 (Alaska 2012).
The State argues that Hicks was on notice early on in the trial that the prosecutor might ask the jury to find Hicks guilty of one episode or the other, or both — the prosecutor pointed both episodes out to the jury during her opening statement. In other words, Hicks had an opportunity during the trial to bring the potential problem to Judge Schally's attention.
The State contends that Hicks had two tactical reasons for not raising the issue. First, the State argues that, had she raised the issue in the trial court, the State might have sought to amend the indictment to charge her with two separate felony offenses.
We conclude that there is merit to this argument. There was a credible risk that the trial court might have allowed the State to add a second count of driving under the influence. We have previously observed that a competent attorney might purposely choose not to object — and might even choose to run the risk of a non-unanimous verdict — in order to avoid the possibility that the State might decide to pursue multiple charges.
See Anderson v. State, 289 P.3d 1, 4-5 (Alaska App. 2012); Hilburn v. State, 765 P.2d 1382, 1387 (Alaska App. 1988); Potts, 712 P.2d at 388 n.1; Miles v. State, 2012 WL 3870841 at *5-6 (Alaska App. Sept. 5, 2012) (unpublished).
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Second, the State points out that Hicks's defense focused only on the second incident, the incident that was based on VPSO Decker's observations. We conclude that this argument also has merit. There was a great deal of testimony from Hicks's witnesses that directly contradicted Decker's testimony. Hicks also called two character witnesses who testified that in their opinion, Decker was not an honest person. In other words, it appears that the defense attorney tried to focus on the weaknesses in the State's proof that Decker had witnessed Hicks operating the vehicle.
But the evidence of the first driving episode, when Hicks had allegedly driven to the Jackson's residence, was not based on Decker's testimony. The evidence of this episode was primarily the testimony of Trooper Duce. Hicks's attorney may have concluded that a unanimity instruction would emphasize that the jury could convict Hicks based on the evidence of this first driving episode alone, without relying on Decker's disputed testimony.
Hicks has not shown that she did not make a tactical decision to forgo a jury unanimity instruction. We find no plain error.
Conclusion
The judgment of the superior court is AFFIRMED.