Opinion
A-13137
05-18-2022
LISA CORREA, Appellant, v. STATE OF ALASKA, Appellee.
Callie Patton Kim (opening brief) and Courtney R. Lewis (reply brief), Assistant Public Defenders, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Ann B. Black, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the District Court, Trial Court No. 3SW-17-00260 CR Third Judicial District, Seward, George Peck, Magistrate Judge.
Callie Patton Kim (opening brief) and Courtney R. Lewis (reply brief), Assistant Public Defenders, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Ann B. Black, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Harbison and Terrell, Judges.
MEMORANDUM OPINION
HARBISON JUDGE
Lisa Correa was charged with driving under the influence, three counts of endangering the welfare of a minor, and reckless driving. After she waived her right to a jury and proceeded to a bench trial, the judge found Correa guilty of reckless driving but acquitted her of the remaining charges.
AS 28.35.030(a)(1), AS 11.51.100(b), and AS 28.35.400, respectively.
Correa appeals her conviction, arguing that the trial judge misapplied the law and that the evidence was insufficient to support the verdict. For the reasons explained in this opinion, we conclude that there was ample evidence to support the verdict. We accordingly reject Correa's claim of error.
Background facts and proceedings
Because Correa challenges the sufficiency of the evidence to convict her, we describe the evidence presented at trial in the light most favorable to upholding the verdict.
At the trial, Alaska State Trooper Hunter Hull testified that on Thanksgiving night 2017, he conducted a traffic stop of a vehicle that had a non-working taillight. Correa was driving the vehicle, and she had her three children in the car with her. Hull testified that, prior to the stop, Correa successfully made two turns using her turn signal, and he did not observe any problems with Correa's driving. However, when Correa pulled over, he saw Correa's vehicle lurch forward several inches while she attempted to put the vehicle in park.
Hull testified that Correa's eyes were bloodshot and watery. While talking with her, he detected an odor of alcohol and noticed that her speech was "a little bit thick." Hull also testified that Correa failed to provide her registration upon his initial request. When he asked her whether she had consumed any alcohol, she said that she drank wine during dinner.
Hull asked Correa to complete five different field sobriety tests, and she failed three of the five tests. According to Hull, Correa failed the horizontal gaze nystagmus test, the walk-and-turn test, and the one-leg-stand test, but she passed the tests that required her to recite a portion of the alphabet and to count backwards.
Hull placed Correa under arrest and asked another trooper to transport her to the station for a breath test while he made arrangements for her three children, who were still in the car. Before Correa was transported, Hull heard her tell her children that their mom had too much wine and so she had to go with the troopers.
Trooper Patrick Parrish-Messmer testified that he was called to assist Hull with the DUI stop of Correa. He transported Correa to the DataMaster testing site where he asked Correa to provide a breath sample. Parrish-Messner testified that the DataMaster result revealed that Correa's blood alcohol content was .074 percent.
At trial, the trooper testified that Correa's "breath alcohol content" was ".074" - which refers to .074 grams of alcohol per 210 liters of breath, or a blood alcohol content of .074 percent. We will refer to the measurement of blood alcohol content throughout this opinion.
The State's final witness was Charles Foster, an expert in alcohol toxicology employed by the Alaska Crime Lab. Foster testified that drivers with a blood alcohol concentration of .04 percent or greater have an increased risk of getting into a car crash and that this risk increases "exponentially" as the person's blood alcohol level increases. He also testified that, from a toxicology standpoint, a person with a blood alcohol level of .074 percent would experience the same effects on their central nervous system as a person with a blood alcohol level of .08 percent. According to Foster, both levels would have negative effects on a person's judgment, coordination, and multitasking. During cross-examination, the defense attorney elicited testimony from Foster that executing a "safe turn" was an action that required judgment, coordination, and multi-tasking.
Correa's friend, Cindy Ranta, testified that Correa had been at her house for Thanksgiving from around 2:30 p.m. until around 8:00 p.m. According to Ranta, Correa did not appear intoxicated at any time. Ranta estimated that Correa consumed less than two glasses of wine during the time she was at Ranta's home.
Correa testified at the trial, and she similarly stated that she consumed less than two glasses of wine while she was at Ranta's home. Correa explained that she stopped drinking at about 7:00 p.m., that she left Ranta's home at around 8:00 p.m., and that she was pulled over by Hull a short time later.
On rebuttal, Foster calculated what Correa's blood alcohol content could have been when she was first pulled over, based on when she consumed her last drink (7:00 p.m.), when Trooper Hull pulled her over (8:15 p.m.), and what the DataMaster reported her blood alcohol content to be later at the station (.074 percent at 9:00 p.m.). Foster estimated that Correa's blood alcohol content could have been anywhere from.08 to .09 percent at that time, depending on how much food was in her stomach and how quickly she metabolized or absorbed the alcohol.
At the close of the evidence, the judge acquitted Correa of DUI, but he found her guilty of reckless driving. The parties then agreed that, because the judge had found Correa not guilty of DUI, he was also required to acquit her of the three counts of endangering the welfare of a minor.
See AS 11.51.100(b) ("A person commits the crime of endangering the welfare of a minor in the first degree if the person transports a child in a motor vehicle . . . while in violation of AS 28.35.030 [the DUI statute].").
This appeal followed.
Why we conclude that the evidence was sufficient to support Correa's reckless driving conviction
In order to prove that Correa committed the offense of reckless driving, the State was required to prove beyond a reasonable doubt that Correa drove a motor vehicle in a manner that created a substantial and unjustifiable risk of harm to a person or to property. Correa contends that the evidence presented at the trial was insufficient to support the trial judge's finding that she was guilty of this offense.
AS 28.35.400.
Correa acknowledges that a person who drives on a public roadway, in the presence of other traffic, while actually impaired by alcohol, is necessarily guilty of reckless driving. But she points out that, in Bertilson v. State, this Court held that, unlike a person who drives while impaired by alcohol, "[a] person who drinks alcoholic beverages and then drives, but who is not impaired, is not necessarily driving recklessly." Because there was scant evidence of poor driving in this case, we agree with Correa that she could not be convicted of reckless driving unless the evidence established that she was impaired by alcohol. And because the judge's verdicts for reckless driving and DUI ultimately turned on the same question - i.e., whether she was impaired by alcohol - they seemingly were fatally inconsistent.
See, e.g., Comeau v. State, 758 P.2d 108, 114 (Alaska App. 1988).
Bertilson v. State, 64 P.3d 180, 183 (Alaska App. 2003).
Under Alaska law, when a jury convicts a defendant of one crime but acquits them of another, the conviction must be reversed if the jury's verdicts are logically inconsistent with each other. See DeSacia v. State, 469 P.2d 369, 378 (Alaska 1970).
But Correa did not argue - either in the trial court or on appeal - that the judge could not properly have found that she was impaired, with respect to reckless driving, while simultaneously finding that she was not impaired, with respect to DUI - i.e., that the verdicts were irreconcilably inconsistent. Instead, Correa's claim on appeal is that the evidence was insufficient to support her conviction for reckless driving.
Because Correa did not frame the issue on appeal as a problem of inconsistent verdicts, she has not addressed the doctrinal framework involved in such a claim, nor has she cited any cases applying it. Furthermore, Correa's trial attorney never objected to the verdicts as inconsistent, which means that, even if Correa had raised this issue on appeal, she would have been required to demonstrate plain error. And as we have previously held, a defendant cannot usually succeed on a claim of plain error based on inconsistent verdicts, because a defense attorney who believes that the jury's verdicts may be inconsistent often has a powerful tactical reason to withhold any objection until the trial court accepts the verdicts and discharges the jury. Thus, not only has Correa waived this claim by failing to brief it, but under these circumstances she would be unable to show plain error.
Id. at 373; see also Adams v. State, 261 P.3d 758, 764 (Alaska 2011) (explaining that appellate courts may notice an error that was not objected to at trial as long as the error was, inter alia, "not the result of intelligent waiver or a tactical decision not to object").
Edwards v. State, 158 P.3d 847, 857 (Alaska App. 2007) (noting that if a defense attorney alerts the trial judge to the problem of inconsistent verdicts, the judge may return the matter to the jury for continued deliberations, leaving open the possibility that the jurors will resolve the inconsistency in the State's favor); Hansen v. State, 845 P.2d 449, 454-55 (Alaska App. 1993) (same). Although, here, Correa's case was decided by a judge rather than a jury, the risk remained that if she had alerted the trial judge that the verdicts were inconsistent, the judge could have instead convicted her of the greater offense of DUI. We also note that, while the Alaska Supreme Court's opinion in Moreno v. State makes it clear that the burden is on the State to show that a defense attorney's decision was tactical, the supreme court has continued to endorse the view that a tactical decision can be inferred where the benefit conferred on the defendant is readily apparent in the record, as it is here. Moreno v. State, 341 P.3d 1134, 1145-46 (Alaska 2015).
We accordingly turn our attention to the issue Correa did brief: whether the evidence was sufficient to support her conviction for reckless driving and, particularly, whether the evidence established that she was impaired by alcohol.
In Gundersen v. Anchorage, we explained that a driver is impaired if their use of alcohol renders them incapable of operating a motor vehicle "with the caution characteristic of a person of ordinary prudence who is not under the influence." And in Molina v. State, we explained that this test "require[s] proof that, because of the influence of intoxicants, the operator of a motor vehicle was deprived to a perceptible degree of their normal mental and physical capacity to control the vehicle."
Gundersen v. Anchorage, 762 P.2d 104, 114 n.7 (Alaska App. 1988).
Molina v. State, 186 P.3d 28, 32 (Alaska App. 2008).
In her briefing, Correa primarily focuses on the confusing findings the judge made when explaining the basis for his verdicts. When making his findings, the judge used the word "impairment" to describe both the deficiencies in Correa's mental and physical capacity to drive and also any observed deficiencies in her driving itself. With respect to the former, the judge found that "technically and physiologically, she was certainly impaired." And with regard to the latter, the judge found that "her driving wasn't impaired," and that, in fact, it was "immaculate." Although the judge's findings could have been articulated more clearly, we perceive no error in the way he applied these findings or the law to the reckless driving charge. It is apparent that the judge was explaining that, although Correa's driving was not deficient, her use of alcohol deprived her of the ability to drive with the caution characteristic of a person of ordinary prudence who is not under the influence.
During the trial, Trooper Hull testified that when Correa pulled over, her vehicle lurched forward several inches while she attempted to put the vehicle in park.
Then, when Hull approached Correa, he noticed that her eyes were bloodshot and watery, he detected an odor of alcohol, and he noticed that her speech was "a little bit thick." Correa did not provide her registration when Hull first asked her for it, and she failed three of the five field sobriety tests. Hull testified that Correa told him that she consumed wine during dinner and that she told her children that she had to go with the troopers because she had too much wine.
About an hour later, Correa submitted to a DataMaster test which revealed that Correa's blood alcohol content was .074 percent. An expert witness testified that a person with a blood alcohol content of .074 percent would have impaired judgment and coordination and also that, at the time Correa was pulled over, her blood alcohol content likely was somewhat higher than .074 percent.
Compare AS 28.35.033(a)(2) ("If there was in excess of 0.04 percent but less than 0.08 percent by weight of alcohol in the person's blood . . . that fact does not give rise to any presumption that the person was or was not under the influence of an alcoholic beverage, but that fact maybe considered with other competent evidence in determining whether the person was under the influence of an alcoholic beverage."), with AS 28.35.033(a)(3) ("If there was 0.08 percent or more by weight of alcohol in the person's blood . . . it shall be presumed that the person was under the influence of an alcoholic beverage.").
When we review a claim of legal insufficiency, we are required to view the evidence, and all reasonable inferences to be drawn from that evidence, in the light most favorable to upholding the verdict. We conclude that, viewed in this light, the evidence was sufficient to establish beyond a reasonable doubt that Correa drove a motor vehicle on a public roadway while actually impaired by alcohol and, accordingly, that Correa was guilty of reckless driving.
Iyapana v. State, 284 P.3d 841, 849 (Alaska App. 2012). We have explained that, although the Alaska Supreme Court used the phrase "substantial evidence" to describe an appellate court's review of a claim of insufficient evidence in the context of bench trials (see Helmer v. State, 608 P.2d 38, 39 (Alaska 1980)), this test is the same test that an appellate court uses to review a sufficiency claim in the context of a jury verdict. Shayen v. State, 373 P.3d 532, 535 (Alaska App. 2015), amended in part on reh'g on other grounds, 2016 WL 5092527 (Alaska App. July 7, 2016) (unpublished).
Conclusion
The judgment of the district court is AFFIRMED.