Opinion
Court of Appeals No. A-10435 Court of Appeals No. A-10436 Trial Court No. 3KN-07-1886 CR Trial Court No. 3KN-06-2340 CR No. 5876
09-05-2012
DONALD R. MILES, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Colleen A. Libbey, Libbey Law Offices, LLC, for the Appellant. Diane L. Wendlandt, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, 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, Kenai, Anna M. Moran, Judge.
Appearances: Colleen A. Libbey, Libbey Law Offices, LLC, for the Appellant. Diane L. Wendlandt, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
BOLGER, Judge.
Donald R. Miles was convicted of felony driving under the influence and driving with a revoked license. He claims that his indictment for felony driving under the influence should be dismissed, and his conviction reversed, because the State's evidence was insufficient, as a matter of law, to establish that he was "operating" a motor vehicle.
Miles relies on the fact that when the police contacted him, he was sitting in the passenger seat of his parked, running vehicle. Although Miles concedes that he was under the influence when the police contacted him, he contends that, as a matter of law, a person is not guilty of "operating" a motor vehicle if they are merely sitting in the passenger seat of that vehicle, even if the engine is running.
We conclude that this contention is moot under the facts of Miles's case. The State did not prosecute Miles under the theory that he was guilty of DUI for sitting in the passenger seat of a running vehicle. Rather, the State relied on two altogether different theories: first, that the evidence established (circumstantially) that Miles had driven the vehicle to the spot where the police found it parked, and second, that even if Miles had not driven the vehicle to that spot, he later returned to the parked vehicle and started the engine (thus "operating" the vehicle).
Miles also argues, in his reply brief, that he was denied his right to a unanimous jury verdict because the State presented these two different theories to the jury. We conclude that Miles failed to preserve this claim for review because claims raised for the first time in a reply brief are waived. We therefore affirm Miles's convictions.
Background
On September 24, 2007, at about 2:30 a.m., Lisa Nelson was having a drink at the Rainbow Bar in Kenai when she saw Donald Miles enter the bar. Because Nelson worked as a bartender, she was trained to recognize signs of intoxication. Nelson had known Miles for years, and she could tell that he was "already a little bit intoxicated."
Miles ordered a drink and made a phone call to his then-estranged wife, Stefany Miles. During that call, Miles repeatedly swore and slammed down the phone. Miles's conversation with his estranged wife lasted about ten minutes, and then Miles left the bar. Although Miles at one point contended that he left the bar in the company of friends, Nelson did not see anybody with Miles.
Not long after Miles left the Rainbow Bar, Stefany Miles called the Kenai police to report that Miles was standing outside her residence on Portlock Street, "screaming and banging on her door." Two police officers, Casey Hershberger and Aaron Turnage, responded to Stefany Miles's residence within about two minutes.
The two officers separately drove the only two routes to Stefany Miles's Portlock Street address, and neither officer saw anyone leaving as they approached. After speaking to Stefany Miles and her boyfriend, who was also present, the officers searched the area on foot for Miles, but they did not find him.
As Officer Hershberger was driving away in his patrol car, he noticed a Dodge pickup truck parked about one hundred yards down the street from Stefany Miles's residence. The truck appeared to have been recently driven: although it was raining, this truck did not have much rain on it, and it had visibly less condensation on the inside of its windshield than the other vehicles parked nearby. Hershberger also discovered that the hood of this truck was still warm. He then found out through his dispatcher that the truck was registered to Donald Miles.
The doors of the Dodge truck were locked, and there was a wallet lying on the passenger side of the front bench seat. Hershberger saw that there were no keys visible in the vehicle, either in the ignition or on the front seat.
Hershberger then drove to the Rainbow Bar and interviewed Lisa Nelson. Officer Turnage stationed his patrol car at an intersection near the spot where Donald Miles's pickup truck was parked; he turned his headlights and taillights off, "basically hiding, [and] waiting to see if the truck was going to move." From this vantage point, Turnage would have observed any vehicle leaving the neighborhood.
After Hershberger interviewed Nelson, he drove back to the Portlock Street neighborhood. He and Turnage returned to Miles's parked truck, where they found Miles sitting on the passenger side of the bench seat, with the engine running.
Hershberger spoke with Miles, and he observed that Miles had a strong odor of alcohol and that his eyes were bloodshot, watery, and "glazed over." Miles admitted he had been drinking. He also admitted he had been in the neighborhood, and that he had seen the officers looking for him earlier. But Miles repeatedly denied that he had been driving.
In response to Hershberger's questions, Miles said that "friends" he had met at the Rainbow Bar had driven him to his estranged wife's residence. Miles later changed his story, stating that he met these friends earlier, at a bar called the Vagabond. Miles told the officers that these friends had not gone into the Rainbow Bar with him; rather, they had waited outside, in Miles's truck, while he was inside the Rainbow Bar.
When Miles was asked how he came to possess the truck keys if these other people were driving his vehicle, Miles said that the driver had left the doors of the truck unlocked, with the keys on the front seat. As we have already noted, Hershberger had inspected the parked truck earlier: there were no keys on the front seat at that time, and the doors were locked.
Hershberger administered field sobriety tests to Miles, and then he arrested Miles for driving under the influence. A DataMaster test showed that Miles's blood alcohol content was .130 percent. Because of prior convictions, Miles was indicted for felony driving under the influence, and he was also charged with driving with a revoked license and fourth-degree assault based on his earlier encounter with his estranged wife.
Before trial on these charges, Miles filed a motion to dismiss the felony DUI indictment. He argued that, as a matter of law, he could not be convicted of "operating" a motor vehicle based on evidence that he was sitting in the passenger seat with the engine running. Miles also argued that there was insufficient independent evidence that he drove or operated the vehicle to support the indictment. Superior Court Judge Anna M. Moran denied the motion to dismiss.
During trial, at the close of the State's case, Miles renewed these same arguments in a motion for judgment of acquittal. Judge Moran again declined to dismiss the felony DUI charge, ruling that there was sufficient circumstantial evidence to support a finding that Miles drove his truck while under the influence.
At Miles's trial, the prosecutor offered two theories to support the "driving" or "operating" element of the felony DUI charge. Primarily, the prosecutor argued that Miles's account of being driven around by "friends" was not credible. The prosecutor urged the jurors to find that Miles was lying about these "friends," and to find that Miles himself drove his truck to his estranged wife's neighborhood. Alternatively, the prosecutor asked the jurors to find that Miles "operated" the truck when he got into the parked vehicle, started the engine, and then sat on the front seat. The prosecutor also reminded the jurors that, if they found that Miles actually drove the truck to his estranged wife's neighborhood, then the jurors must also convict him of driving with a revoked license, because Miles had stipulated that he was aware his license was revoked on the day in question.
The jury convicted Miles of all charges. Based on these convictions, Miles's probation in an earlier DUI case was revoked. He now appeals.
Analysis
Miles's felony driving under the influence conviction is supported by sufficient evidence.
Under AS 28.35.030(a), a person commits the offense of driving under the influence if the person"operates or drives" a motor vehicle while under the influence. The supreme court has held that a person "operates" a motor vehicle if they are in "actual physical control of a vehicle." A person is in "actual physical control" as long as they are able to "assert dominion, in the sense of movement" over the vehicle. This standard reflects the policy judgment that society has a strong enough interest in discouraging intoxicated people from being in physical control of a vehicle to make that conduct a crime, even if the person never actually drives.
State, Dep't of Pub. Safety v. Conley, 754 P.2d 232, 233-34 (Alaska 1988); see Williams v. State, 884 P.2d 167, 170 (Alaska App. 1994), abrogated on other grounds by State v. Coon, 974 P.2d 386 (Alaska 1999); Mezak v. State, 877 P.2d 1307, 1308 (Alaska App. 1994).
Conkey v. State, Dep't of Admin., 113 P.3d 1235, 1238 (Alaska 2005) (quoting State v. Ruona, 321 P.2d 935, 615, 618 (Mont. 1958)); Conley, 754 P.2d at 234-35 (same); Jacobson v. State, 551 P.2d 935, 938 (Alaska 1976) (same).
Conley, 754 P.2d at 234-36; Jacobson, 551 P.2d at 938 n.6; Williams, 884 P.2d at 170-71.
Miles argues that, as a matter of law, a person cannot be found to have "driven" or "operated" a motor vehicle for purposes of AS 28.35.030 unless the person is sitting in the driver's seat of the vehicle. He then argues that, under this standard, the State failed to present sufficient evidence that he was operating or driving his truck.
To determine whether evidence is sufficient to support a jury's verdict, we view the evidence, and the inferences to be drawn from that evidence, in the light most favorable to upholding the verdict. The question is whether a fair-minded juror exercising reasonable judgment could conclude that the State met its burden of proving guilt beyond a reasonable doubt.
Shafer v. State, 456 P.2d 466, 469 (Alaska 1969).
Collins v. State, 977 P.2d 741, 747 (Alaska App. 1999).
As already explained, the State's main argument at trial was that Miles drove his truck from the Rainbow Bar to his estranged wife's neighborhood, and that he lied when he told the police that unnamed "friends" drove him there. The State argued, in the alternative, that even if Miles did not drive the truck to his wife's neighborhood, Miles nevertheless operated the truck shortly before the officers contacted him by getting into the parked truck and starting the engine.
It is true that Miles was sitting on the passenger side of the front seat when the officers contacted him, but there was no evidence that someone else started the truck. Indeed, when Hershberger asked Miles how he came into possession of the ignition key, Miles said that the "friend" who had been driving the truck had left the vehicle doors unlocked and had left the keys to the vehicle on the front seat. In other words, Miles implicitly conceded that he was the person who started the truck's engine — thus operating the vehicle and also assuming "actual physical control" of the vehicle.
See Jacobson, 551 P.2d at 938.
Given these circumstances, and given the way Miles's case was litigated, we have no reason to decide whether a person can be convicted of DUI if the State's only evidence is that this person was under the influence and was sitting in the passenger seat of a running vehicle. This question is moot in Miles's case.
We note that, for these same reasons, Miles's case is distinguishable from the Wisconsin case that he primarily relies on: State v. Hall. In Hall, the defendant was found slumped over in the passenger side of his vehicle. The vehicle was standing in the middle of the road, with its headlights on, with its motor running, and with the right-side door partially open. The defendant claimed to have no memory of how he got there, and there was evidence he had been drinking with a friend. The Wisconsin Supreme Court concluded that this evidence was just as consistent with innocence as with guilt, and it therefore reversed Hall's conviction.
73 N.W.2d 585 (Wis. 1955), abrogated by State v. Poellinger, 451 N.W.2d 752 (1990), as recognized in State v. Smith, 817 N.W.2d 410 (Wis. 2012).
Id. at 585.
Id.
Id. at 585-86.
Id. at 586.
In contrast, Miles's case did not present the jury with evidence that was equally susceptible of two interpretations. Rather, the jurors in Miles's case had to decide whether to accept Miles's assertion that unnamed "friends" had driven his truck, or credit the circumstantial evidence that Miles personally drove his truck.
Viewing the evidence in the light most favorable to the jury's verdict, a fair-minded juror could find that Miles drove the truck to his estranged wife's neighborhood. A visibly intoxicated Miles made an angry phone call to his estranged wife from the Rainbow Bar. He then showed up at his wife's residence, screaming and pounding on her door. The officers who responded to the scene found Miles's truck parked about 100 yards from his wife's residence. The truck was still warm and appeared to have been recently driven. Not long afterward, the officers found Miles sitting alone in the passenger seat of the parked car with the engine running.
A fair-minded juror could conclude from this evidence that Miles drove his truck from the Rainbow Bar to his wife's neighborhood, and that he lied when he denied driving. Accordingly, there was sufficient evidence to support the jury's verdicts that Miles drove the truck while under the influence, and while his license was revoked.
Miles also challenges the sufficiency of the evidence before the grand jury. Evidence is sufficient to support an indictment if the evidence, viewed in the light most favorable to the indictment, "is adequate to persuade reasonable minded persons that if unexplained or uncontradicted it would warrant a conviction of the person charged with an offense." "[E]very legitimate inference that may be drawn from the evidence must be drawn in favor of the indictment." In this case, the evidence presented to the grand jury was similar to the evidence presented to the trial jury. We have reviewed the grand jury record, and we conclude that the evidence that Miles drove the truck was sufficient to support the indictment.
Cleveland v. State, 258 P.3d 878, 881 (Alaska App. 2011) (quoting State v. Parks, 437 P.2d 642, 644 (Alaska 1968)); see also Alaska R. Crim. P. 6(q).
Cleveland, 258 P.3d at 881 (quoting State v. Williams, 855 P.2d 1337, 1346 (Alaska App.1993) (citing State v. Ison, 744 P.2d 416, 418 (Alaska App.1987))).
Miles waived his claim that he was denied the right to a unanimous verdict.
As we have explained, the prosecutor argued alternative theories to the jury: either Miles personally drove the truck from the Rainbow Bar to his wife's neighborhood, or he operated the truck when he returned to the parked vehicle and started the engine.
The prosecutor's argument raises a potential jury unanimity issue. As a general rule, a jury must be unanimous as to the specific conduct underlying a criminal offense. However, the jury in Miles's case was not instructed that they had to unanimously agree that the State had proven one theory or the other.
See Khan v. State, 278 P.3d 893, 897-99 (Alaska 2012); Ward v. State, 758 P.2d 87, 91-92 (Alaska 1988); State v. James, 698 P.2d 1161, 1167 (Alaska 1985).
Miles did not alert the trial court to this potential jury unanimity problem, or seek a special jury instruction on this issue. Indeed, Miles did not mention this issue in his statement of points on appeal, or in his opening brief to this court. Rather, he addressed this issue for the first time in his reply brief.
The law is well settled that an appellant may not raise an issue for the first time in the reply brief. If Miles had raised this issue in his opening brief, we would have had the discretion to address the issue based on the arguments in the State's brief and the reply brief — or, if that discussion was inadequate, we would have the discretion to order supplemental briefing on this issue. But the situation is different if the issue is omitted entirely from the appellant's points on appeal and the appellant's opening brief.
Oels v. Anchorage Police Dept. Emps. Ass'n, 279 P.3d 589, 598-99 (Alaska 2012); Pfeifer v. State, Dep't of Health & Soc. Servs., 260 P.3d 1072, 1081-82 & n.45 (Alaska 2011); Barnett v. Barnett, 238 P.3d 594, 603 & n.33 (Alaska 2010); Karrie B. ex rel. Reep v. Catherine J.,181 P.3d 177, 187 n.31 (Alaska 2008); State v. Parker, 147 P.3d 690, 698 (Alaska 2006); Witt v. State, Dep't of Corr. ,75 P.3d 1030, 1036 n.22 (Alaska 2003); Conam Alaska v. Bell Lavalin, Inc., 842 P.2d 148, 158 (Alaska 1992).
See Rofkar v. State, 273 P.3d 1140, 1142 (Alaska 2012); Vroman v. Soldotna, 111 P.3d 343, 349 n.22 (Alaska 2005).
As the supreme court recently explained:
On appeal to this court, the "[f]ailure to argue a point of law constitutes abandonment." This comports with our "well-established rule that issues not argued in opening appellate briefs are waived." Moreover, an issue omitted from an appellant's points on appeal, even if that issue is cursorily presented in the opening brief, is deemed abandoned, and "[a]ttention to the issue in a reply brief does not resuscitate it."
Oels, 279 P.3d at 598-99 (alteration in original) (footnotes omitted).
We recognize that the State discussed the jury unanimity issue on its own initiative in its brief to this court. But this does not rescue Miles from his waiver of the issue. As we recently explained in Berezyuk v. State, even when an appellee briefs an unraised claim on the merits, this does not mean that the appellee has forfeited the right to argue that the appellant has abandoned the claim by failing to brief it. We conclude that by failing to raise the jury unanimity issue in Miles's opening brief, he thereby abandoned this potential claim.
___ P.3d ___, Op. No. 2366, 2012 WL 3140221, at *14-15 (Alaska App. Aug. 3, 2012).
We also note that the record suggests that Miles's trial attorney had a tactical reason not to seek a unanimity instruction. At trial, the prosecutor's case mainly focused on Miles's conduct in driving to his wife's neighborhood after he made the angry phone call to her from the Rainbow Bar. Miles's defense was that, given that no one actually saw him driving the truck, it would be pure speculation for the jury to find that Miles drove the vehicle, and that the real question was whether Miles was "operating" the truck for purposes of the DUI statute when he sat in the passenger seat with the engine running. In closing argument, Miles emphasized to the jury that all the examples of "operating" included in the court's instructions described a person who was sitting in the driver's seat.
Hilburn v. State, 765 P.2d 1382, 1387 (Alaska App. 1988); Potts v. State, 712 P.2d 385, 388 n.1 (Alaska App. 1985), superseded on other grounds by statute AS 11.81.900(b)(58), as recognized in Braun v. State, 911 P.2d 1075, 1078 (Alaska App. 1996).
The fact that the defense attorney relied on this argument suggests that the attorney made a tactical decision not to request a unanimity instruction. Indeed, after Miles's attorney made a motion for a judgment of acquittal, the State initially conceded that it was limited to arguing the driving theory because the grand jury was not instructed on the operating theory. The prosecutor suggested that the operating theory would have to be the subject of a separate trial. Upon hearing the prosecutor's hint of a separate "operating" count, Miles's attorney insisted that Miles's conduct on the night in question gave rise to only a single unified charge. He told the trial judge, "It's very clear we're here under the indictment that says 'driving' or 'operating.'" The trial judge agreed.
Because the record suggests that Miles's attorney had a tactical reason for ignoring the jury unanimity issue and insisting that the jury return its verdict on a single, unified charge, we would find no plain error even if Miles had adequately briefed this claim.
Potts, 712 P.2d at 388 n.1.
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Conclusion
We AFFIRM the superior court's judgment.