Theriot v. State

Full title: GEORGE JOSEPH THERIOT, Appellant, v. STATE OF ALASKA, Appellee.

Court: COURT OF APPEALS OF THE STATE OF ALASKA

Date published: Jul 29, 2015

Court of Appeals No. A-11245 (Alaska Ct. App. Jul. 29, 2015)

Opinion

Court of Appeals No. A-11245 No. 6216

07-29-2015

GEORGE JOSEPH THERIOT, Appellant, v. STATE OF ALASKA, Appellee.

Appearances: Catherine Boruff, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Lawrence B. Monsma, Assistant District Attorney, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.

Judge MANNHEIMER.

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. 3AN-11-5116 CR

MEMORANDUM OPINION

Appeal from the District Court, Third Judicial District, Anchorage, J. Patrick Hanley, Judge. Appearances: Catherine Boruff, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Lawrence B. Monsma, Assistant District Attorney, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Coats, Senior Judge.^* Judge MANNHEIMER.

* Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).

George Joseph Theriot appeals his conviction for driving a motor vehicle under the influence.¹ (Theriot was also convicted of possessing marijuana, but he does not challenge that conviction.)

1 AS 28.35.030(a)(1).

At trial, the State introduced evidence tending to show that Theriot was impaired by marijuana intoxication. A witness observed Theriot driving erratically on the Glenn Highway for ten miles or more. When Theriot was stopped by the police, he showed signs of impairment, and he offered several inconsistent explanations for his erratic driving. A later laboratory analysis of Theriot's blood showed that it contained high levels of THC (the psychoactive ingredient in marijuana).

But the prosecutor also introduced evidence that Theriot had prescriptions for ten different medications. Additionally, the prosecutor presented the testimony of a "drug recognition expert" (a police officer who had received training on how to identify the drugs that a person has consumed by observing the person's behaviors). This police officer testified that he believed Theriot was under the influence of some drug other than marijuana — some drug that could not be detected by laboratory testing.

In this appeal, Theriot contends that the trial judge committed error by allowing the State to introduce the evidence described in the preceding paragraph. Theriot argues that this evidence had little to no probative value, and that it was unfairly prejudicial.

For the reasons explained in this opinion, we conclude that any error in these evidentiary rulings was harmless, and we accordingly affirm Theriot's conviction.

Underlying facts

The Anchorage Police Department's 911 dispatcher received a call from a woman who was driving southbound on the Glenn Highway (toward Anchorage) at about 6:00 in the evening on April 29, 2011. The woman reported that she was traveling behind a pickup truck that was weaving all over the roadway. This truck was being driven by Theriot.

At first, the woman observed the truck weaving within its lane. Then the truck began to swerve across all three southbound lanes of the highway. While Theriot was in the left-most lane, he crossed the line that separated the highway from the median strip. At another point, Theriot overshot the lane and traveled on the shoulder of the highway for about half a mile. All this time, Theriot was driving at approximately 65 miles per hour.

The woman watched Theriot drive in this fashion until the police arrived and pulled Theriot over — a period of some ten to twelve minutes. In other words, Theriot drove erratically on the Glenn Highway for about ten to twelve miles.

When the police initially made contact with Theriot and told him that he had been stopped for driving off the roadway, Theriot appeared surprised. At first, Theriot offered the explanation that he had been distracted because he was reaching for things inside his vehicle. Later, Theriot declared (twice) that he had been swerving because he had been trying to manipulate his truck's CD changer. And at trial, Theriot offered yet another explanation: that the steering mechanism of his truck was so damaged that it was practically impossible to drive the truck without swerving. (Theriot did not mention any mechanical problems with his truck on the night of his arrest.)

At the time of the traffic stop, the police noticed that Theriot's speech was slurred and that he was mumbling. Theriot told the police that he had not been drinking, but that he had prescriptions for several medications. Theriot provided the police with a list of these medications. There were ten medications on this list, but only two of them (Vicodin and clonazepam) were controlled substances.

After Theriot did poorly in field sobriety tests, the police arrested him and impounded his truck. In connection with the impoundment, the truck was searched, and the police discovered a coffee can with a bag of marijuana in it. (The bag held approximately 23½ grams of marijuana — slightly less than one ounce.)

A Datamaster test showed that there was no measurable alcohol in Theriot's blood. A sample of Theriot's blood was sent for testing to the Washington State Toxicology Laboratory. This testing showed that Theriot's blood contained a high level of THC (over seven nanograms per milliliter), as well as a large quantity of THC carboxy. (THC carboxy is the inert metabolite of THC — the substance that is produced when the body's metabolic system breaks down THC.) But no other drugs were found in Theriot's blood.

The challenged evidentiary rulings

At Theriot's trial, the prosecutor wished to introduce the list of prescription medicines that Theriot provided to the police when he was stopped. The defense attorney challenged the relevance of this evidence, pointing out that the only drug found in Theriot's blood was marijuana. In response, the prosecutor claimed that he had an expert witness from the Washington State Toxicology Laboratory who would testify that Theriot might still have been under the influence of the medications on the list, even though these medications were not found in his blood. Based on the prosecutor's assertion about this anticipated expert testimony (an assertion which proved to be false), the trial judge allowed the prosecutor to introduce the list of medications.

The State also presented the testimony of a "drug recognition expert" — a police officer who had undergone special training to recognize the symptoms attributable to various categories of drugs, and then to diagnose what types of drugs a person has ingested, based on those observed symptoms.

This police officer testified that, despite the results of the blood testing performed at the Washington State Toxicology Laboratory, he remained convinced that Theriot had other drugs besides marijuana in his system — and that Theriot was under the influence of those other drugs at the time of his driving. The officer asserted that Theriot's behaviors could not be explained simply by marijuana consumption, and he speculated that Theriot's intoxication could have been due to his ingestion of some synthetic drug that was so new that laboratories could not yet test for it.

Following this officer's testimony, the State presented a second expert witness, Christy Mitchell-Mata from the Washington State Toxicology Laboratory. Mitchell-Mata described the testing process that the Washington lab employed when it analyzed Theriot's blood. She confirmed that Theriot's blood contained 7.4 nanograms of THC per milliliter, as well as more than 200 nanograms per milliliter of THC carboxy.

(Mitchell-Mata did not know exactly how much THC carboxy was in Theriot's blood, because the lab stopped testing at 200 nanograms per milliliter.)

Based on these results, Mitchell-Mata concluded that Theriot must have ingested marijuana sometime in the afternoon before he was arrested. Mitchell-Mata also testified, contrary to the opinion offered by the police drug recognition expert, that all of the symptoms that Theriot exhibited following his arrest were consistent with marijuana use.

The prosecutor repeatedly asked Mitchell-Mata to concede that Theriot might have had other drugs in his system — drugs that did not show up in the laboratory's blood testing. Mitchell-Mata conceded that it was theoretically possible that (1) Theriot had minute, undetectable levels of other controlled substances in his blood, and that (2) he was under the influence of these substances when he drove. But Mitchell-Mata also testified that, because Theriot's blood tested negative for any drug other than marijuana, it would be "pure speculation" to assert that Theriot's impairment was due to anything other than marijuana.

Theriot's defense at trial was that his erratic driving was due to a problem with the steering mechanism of his truck, and that his poor performance on the field sobriety tests was due to underlying medical conditions, including a bad back. Theriot also relied on the laboratory tests which showed that he had no controlled substances in his blood other than marijuana. Theriot argued that he was a long-time marijuana user, and that the amount of marijuana in his system was not enough to impair his driving.

Theriot's argument on appeal

Theriot argues that it was an abuse of discretion for the trial judge to allow the prosecutor to offer evidence suggesting that Theriot was under the influence of undetected and unidentified controlled substances. Specifically, Theriot objects to the admission of the list of medications and to the drug recognition expert's testimony that there may have been untestable controlled substances in Theriot's system.

We conclude that even if the trial judge's rulings on these matters were wrong, any error was harmless under the facts of Theriot's case. It was undisputed that Theriot engaged in prolonged erratic and dangerous driving on the Glenn Highway. It was further undisputed that there was a high level of THC in the sample of Theriot's blood that was drawn following his arrest.

Theriot contended that his erratic driving was due to a problem with his steering mechanism. But this explanation was quite different from the two other explanations that Theriot offered when the police stopped him.

Given the evidence in this case and the way it was litigated, we believe that the jury's verdict would have been the same even if the trial judge had not allowed the prosecutor to present the challenged evidence. We thus conclude that the challenged testimony did not appreciably affect the jury's decision in this case.²

2 See Love v. State, 457 P.2d 622, 634 (Alaska 1969) (holdingthat, for instances of non-constitutional error, the test for harmlessness is whether the appellate court "can fairly say that the error did not appreciably affect the jury's verdict").

The judgement of the district court is AFFIRMED.