Opinion
A-13633
05-11-2022
RICHARD J. SIPES, Appellant, v. STATE OF ALASKA, Appellee.
Marjorie A. Mock, Attorney at Law, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Jon Iannaccone, Assistant District Attorney, Kenai, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Distrct Court No. 3KN-17-00337 CR, Third Judicial District, Kenai, Jennifer Wells, Judge.
Marjorie A. Mock, Attorney at Law, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Jon Iannaccone, Assistant District Attorney, Kenai, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Wollenberg, Harbison, and Terrell, Judges.
SUMMARY DISPOSITION
Richard J. Sipes was convicted, following a jury trial, of driving under the influence after he drove into an oncoming lane of traffic, ran a red light, and was found asleep behind the wheel at a four-way stop. Sipes told an officer that he had taken hydrocodone (an opiate) and baclofen (a muscle relaxer) within the last twenty-four hours. A blood test showed that hydrocodone and codeine (another opiate) were present in Sipes's system. (The forensic laboratory was unable to test for baclofen.)
AS 28.35.030(a)(1).
Sipes now appeals and raises two claims.
First, Sipes argues that the district court plainly erred by not, sua sponte, instructing the jury on the defense of involuntary intoxication. But a defendant is entitled to a jury instruction on this defense only if there is some evidence to support it - i.e., evidence that the defendant unwittingly became intoxicated as a result of a reasonable, non-negligent mistake regarding the intoxicating nature of a substance.
See Marshall v. State, 436 P.3d 1065, 1071 (Alaska App. 2018) (stating that, to prevail on a claim that the trial court plainly erred by not sua sponte giving a jury instruction, the defendant must show it would have been obvious to any competent judge that the instruction was necessary and, without it, there was a high likelihood that the jury followed an erroneous theory, resulting in a miscarriage of justice).
See Solomon v. State, 227 P.3d 461, 468-69 (Alaska App. 2010) (upholding the trial court's denial of an involuntary intoxication instruction because the evidence did not establish a reasonable possibility that Solomon acted non-negligently regarding the intoxicating effects of NyQuil). This Court has recognized another context in which an involuntary intoxication instruction may be appropriate - when the defendant claims that his conduct was involuntary, i.e., he did not consciously commit the actus reus of the charged offense. Dorsey v. State, 480 P.3d 1211, 1219 (Alaska App. 2021). But Sipes does not argue on appeal that his conduct was involuntary.
Here, neither party presented any evidence that Sipes - who told the officer that he had been taking the medications for back and shoulder injuries and that he had been taking the baclofen for "a while" - became unwittingly intoxicated. Indeed, at trial, Sipes argued that he was not intoxicated and that his reckless driving was the result of sleep deprivation. As a result, the district court did not commit plain error by refraining from sua sponte instructing the jury on involuntary intoxication.
Second, Sipes argues that the district court erred in allowing the prosecutor to argue in his closing statement that the medications Sipes took have warning labels cautioning users not to operate heavy machinery or drive a car, and Sipes therefore had a personal responsibility to heed those warnings. Because Sipes did not object to this argument in the district court, he must show plain error.
See Adams v. State, 261 P.3d 758, 764 (Alaska 2011) ("Plain error is an error that (1) was not the result of intelligent waiver or tactical decision not to object; (2) was obvious; (3) affected substantial rights; and (4) was prejudicial.").
Although there was evidence in the trial record that codeine has a warning label, Sipes is correct that there was no evidence that hydrocodone or baclofen have warning labels, and therefore the prosecutor's general statements that "the drugs" have warning labels was improper unless that fact was a matter of common knowledge.However, we need not address whether it is commonly known that these types of medications carry such labels because the prosecutor's comments were not prejudicial.
See Williams v. State, 629 P.2d 54, 58 (Alaska 1981) ("[I]t is unquestionably improper for the prosecutor to intentionally refer at trial to facts outside the record."); ABA Standards for Criminal Justice § 3-6.9 (2017) ("[T]he prosecutor should not knowingly refer to, or argue on the basis of, facts outside the record, unless such facts are matters of common public knowledge based on ordinary human experience.").
See Adams, 261 P.3d at 774 (holding that a prosecutor's improper arguments were prejudicial because there was a reasonable probability that the error affected the outcome of the case).
To prove that Sipes committed the offense of driving under the influence, the State was not required to show that he acted with any culpable mental state regarding his intoxication. And as we noted already, Sipes's knowledge of the intoxicating effects of his medication was not contested at trial (because he did not argue that he was involuntarily intoxicated). Given this, and the fact that the prosecutor's comments about the warning labels were a brief part of an otherwise proper argument, we conclude that there was no reasonable probability that the prosecutor's remarks affected the outcome of the case. We therefore decline to find plain error.
See McCarthy v. State, 285 P.3d 285, 290 (Alaska App. 2012) ("[I]n prosecutions for driving under the influence, the government need not prove that the defendant acted with any culpable mental state with respect to . . . the fact that the defendant was impaired by intoxicants . . . .").
See Solomon, 227 P.3d at 468 (holding that the State need not prove the defendant's mental state regarding the substance's intoxicating nature unless there is evidence that the defendant was mistaken about the substance's intoxicating nature).
The judgment of the district court is AFFIRMED.