Opinion
Court of Appeals No. A-11416 No. 6209
07-15-2015
ARON JONZ, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Brooke Berens, Assistant Public Advocate, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Diane L. Wendlandt, 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. 3PA-10-2048 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Palmer, Gregory Heath and John Wolfe, Judges. Appearances: Brooke Berens, Assistant Public Advocate, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge. Judge ALLARD.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Aron Jonz appeals his convictions for felony driving while under the influence and driving with a suspended license. Jonz claims that his breath test result must be suppressed because he was arrested without probable cause. Jonz also claims that his right to jury unanimity was violated because the State argued that Jonz could be convicted based on three different factual theories, but the jury was never told that they could not convict Jonz unless they reached unanimity as to which of the act or acts the State had proved.
For the reasons explained here, we conclude that Jonz's arrest was supported by probable cause. But with regard to Jonz's jury unanimity claim, the State concedes error, and we conclude that this concession is well-founded. We therefore reverse Jonz's convictions.
Jonz also argues that the trial court erred in declining to grant a new trial based on newly discovered evidence related to one of the State's three factual theories. In light of our disposition of Jonz's appeal, this issue is moot. See Municipality of Anchorage v. Baxley, 946 P.2d 844, 800 (Alaska App. 1997).
Jonz's suppression motion
After Jonz was charged with driving while under the influence, he filed a motion to suppress his breath test result, arguing that the trooper who arrested him lacked probable cause to support the arrest. To resolve this motion, Superior Court Judge Gregory Heath held an evidentiary hearing; the only witness at this hearing was the state trooper who made the arrest.
The trooper testified that around 4:30 in the morning on the day in question, he pulled into the parking lot of the Mug-Shot Saloon to investigate a report of a stolen vehicle. As he did so, he noticed a pickup truck (unrelated to the stolen vehicle report) on a nearby side street. The truck's headlights were on, and the trooper thought that the truck had stopped temporarily at the intersection. But later, when the trooper left the Mug-Shot parking lot, the truck was still there. As the trooper approached the truck, its occupant turned the truck's headlights off. The trooper thought this was odd, so he drove down the side street and pulled in behind the truck.
The truck's engine was not running, but it was parked illegally in the middle of the road. Jonz was the only person in the truck, and he was sitting in the driver's seat. The trooper approached Jonz to investigate and perform a welfare check.
The trooper told Jonz he was improperly parked in the middle of the road, and Jonz initially told the trooper that he hadn't meant to park illegally — he thought that he had stopped in a parking lot. Jonz then changed his story, telling the trooper that he had not driven there at all.
When the trooper questioned him, Jonz was evasive about who had been driving the truck. He ultimately said that a woman named "Kim" had been driving, but he refused to give the trooper her number — allegedly because he did not want to get her in trouble.
The trooper noticed a strong odor of alcohol about Jonz's person, and he also noticed Jonz's speech was slurred, and that he had bloodshot, watery eyes. Based on this, the trooper suspected that Jonz had been driving while under the influence. He asked Jonz to remain in the truck while he returned to his patrol vehicle, but Jonz got out of the truck and walked around to the truck's passenger side. The trooper could see that Jonz was having trouble keeping his balance.
At one point during his contact with the trooper, Jonz made a call from his cell phone and handed the phone to the trooper so that the trooper could speak to the person on the other end. The person on the other end was a woman who identified herself as "Kim Graham." Because Jonz had earlier said that a woman named "Kim" had been driving the truck, the trooper asked "Kim" what was going on.
"Kim" (who later turned out to be a woman named Christina Brown) told the trooper that she had been with Jonz earlier at the Mug-Shot Saloon, but that she left the bar before Jonz did. The woman also told the trooper that she returned to the bar later that evening, but Jonz was already gone. "Kim" did not say that she had been driving Jonz's truck, nor did she offer any other information to confirm Jonz's story. A database through which the trooper ran Jonz's name revealed that his licence had been suspended.
After speaking with "Kim," the trooper arrested Jonz for DUI and for driving while license suspended. When searching Jonz after the arrest, the trooper found a number of keys in Jonz's pockets, but none of these keys fit the truck's ignition.
(It turned out that Jonz had placed the car keys underneath the driver's seat, but this information was not known to the trooper at the time of the arrest.)
Judge Heath ruled that based on what the trooper knew, there was probable cause to believe that Jonz had been driving or operating the truck, even though the truck was parked when the trooper arrived, and even though (based on what the trooper knew at the time) Jonz did not have the ignition key in his possession.
Probable cause to arrest exists if the totality of facts and circumstances known to the police at the time support a reasonable belief that an offense has been or is being committed by the suspect. Probable cause is determined objectively, and it requires only a fair probability or substantial chance of criminal activity, not a convincing showing that criminal activity occurred.
See Shorty v. State, 214 P.3d 374, 380 (Alaska App. 2009).
State v. Joubert, 20 P.3d 1115, 1118-19 (Alaska 2001) (internal citations omitted).
Here, the testimony at the probable cause hearing was that Jonz's truck was parked illegally. Although its engine was not running, Jonz (the only occupant) was in the driver's seat, and he was manipulating the controls of the vehicle — as demonstrated by the fact that the headlights were on when the trooper first observed the truck but then, as the trooper approached the truck, Jonz turned the headlights off.
This testimony established that Jonz — who was intoxicated — was the sole occupant of a truck that was parked illegally in the middle of the road at 4:30 a.m. He was seated in the driver's seat and, when the trooper first approached his vehicle, he told the trooper that he had driven the truck. He later changed his story, claiming that a woman named "Kim" had in fact driven the car to the location where it was illegally parked. But when the trooper spoke with the person Jonz said was "Kim" over the phone, she denied this.
Jonz argues that the trooper lacked probable cause to believe Jonz had driven the vehicle because the trooper did not find the truck's ignition key in the ignition or anywhere on Jonz's person. But this is not dispositive of the probable cause determination because Jonz had ample opportunity to hide the key before his contact with the trooper.
Based on the totality of the facts and circumstances known to the trooper, we conclude that the trooper had probable cause to believe that Jonz had been operating the vehicle and was still in physical control of it. The arrest was therefore lawful, and the superior court correctly denied Jonz's suppression motion.
See Jacobson v. State, 551 P.2d 935, 938 (Alaska 1976).
The trial court's failure to require the jury to reach factual unanimity
During the State's closing arguments, the prosecutor told the jury that the State had proved its case because the evidence showed that there were three different times that night when Jonz drove the truck while intoxicated. The prosecutor's argument invited the jurors to find Jonz guilty based on any of these instances. Jonz's attorney did not object to the prosecutor's argument, and the trial judge never instructed the jury on the requirement of factual unanimity. This was plain error.
See Moreno v. State, 341 P.3d 1134, 1138 (Alaska 2015).
The State concedes that this error requires reversal of Jonz's convictions. The State's concession is supported by the supreme court's recent decision in Moreno v. State, which involved a case with quite similar circumstances. We therefore conclude that the State's concession is well-founded.
See id. at 1138, 1146 (finding it plain error to invite the jury to convict of DUI despite no factual unanimity about which distinct driving or operating incident constituted the offense).
See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (requiring an appellate court to independently assess any concession of error by the State in a criminal case). --------
Conclusion
We AFFIRM the superior court's denial of Jonz's suppression motion, but we REVERSE the judgment of the superior court because of the prosecutor's final argument and the trial judge's failure to instruct the jurors on the need for factual unanimity.