Ronald E. Ross v. State of Alaska (12/26/97) ap-1566
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
RONALD E. ROSS, )
) Court of Appeals No. A-6290
Appellant, ) Trial Court No. 4FA-95-3435 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1566 - December 26, 1997]
______________________________)
Appeal from the Superior Court, Fourth Judi
cial District, Fairbanks, Charles R.
Pengilly, Judge.
Appearances: Colleen A. Kosluchar, Assistant
Public Defender, Fairbanks, and Barbara K.
Brink, Public Defender, Anchorage, for
Appellant. Kenneth M. Rosenstein, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau,
for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
The offense of driving while intoxicated (DWI) has
traditionally been a misdemeanor, but in 1995 the Alaska
Legislature made this offense a class C felony for defendants
with two prior convictions for either DWI or breath-test refusal
within the preceding five years. See AS 28.35.030(n), enacted by
1995 SLA ch. 80, 7. The main issue raised in this appeal is
whether the existence of the defendant's two prior convictions is
an element of the crime of felony DWI, or is instead merely a
factor that enhances the defendant's sentence. For the reasons
explained below, we hold that the existence of the two prior
convictions is an element of the crime.
In their briefs to this court, the parties to this
appeal discuss one other issue that is related to the question of
whether the prior convictions are an element of the crime. This
second issue is whether a defendant on trial for felony DWI has a
right to have the trial judge assume the role of trier of fact on
the issue of the prior convictions - and to keep all evidence of
the prior convictions away from the jury. We conclude that we
need not decide this issue for two reasons: first, because it
was not preserved for appeal; and second, because the appellant
has not demonstrated that he was prejudiced by the manner in
which evidence of his prior convictions was presented to the
jury.
Ronald E. Ross was tried for felony DWI in the
Fairbanks superior court. He was charged with driving while
intoxicated on the evening of October 18, 1995; the offense was
charged as a felony because Ross had been convicted of DWI in
1991 and again in 1993.
Just before the trial began, Ross asked Superior Court
Judge pro tem Charles R. Pengilly to keep all evidence of the
prior DWI convictions from the jury. Ross argued that his prior
convictions were not an element of the offense - that the prior
convictions were relevant only to sentencing (in the event the
jury found Ross guilty of the current DWI). Ross told Judge
Pengilly that, because the prior convictions were a sentencing
factor and not an element of the crime, it was the judge's role,
not the jury's, to decide whether Ross had previously been
convicted.
Judge Pengilly rejected Ross's request because he
concluded that the existence of prior convictions was indeed an
element of the offense, something that the State would have to
prove to the jury beyond a reasonable doubt. The judge did,
however, agree with Ross that evidence of the prior convictions
posed a danger of unfair prejudice. He suggested that this risk
of prejudice could be minimized if Ross and the State stipulated
to the bare facts of the prior convictions.
Ross chose to pursue this option. He and the
prosecutor agreed that a short statement concerning the prior
convictions would be read to the jury during trial and then
reiterated in the jury instructions at the end of the trial. In
accordance with this agreement, Judge Pengilly told the jury:
Ladies and gentlemen, the State and the
defense have reached a stipulation[.] ...
The parties have agreed that Mr. Ross was
convicted of DWI on February 28, 1991, and
again ... on August 6, 1993. Given that the
parties have agreed to those facts, you can
take those facts as having been conclusively
proven.
The issue of Ross's prior
convictions came up one more time, during the
prosecutor's summation to the jury. Ross had
taken the stand at trial and had testified
that he consumed only a small amount of
alcohol on the evening in question. In his
rebuttal argument, the prosecutor suggested
to the jury that they should not believe
Ross's testimony, in part because Ross had
been convicted twice of DWI within the
preceding five years. Ross objected. Judge
Pengilly sustained the objection and
immediately instructed the jurors that
evidence of Ross's prior convictions had been
admitted solely for the purpose of
establishing the "prior convictions" element
of the offense. Judge Pengilly told the
jurors that they were not to consider Ross's
prior convictions when deciding whether Ross
had committed DWI on the evening charged in
the indictment:
It's inappropriate to infer that a defendant
is guilty on this occasion based on the fact
that he has done something similar in the
past. So, to the extent that [the prosecu
tor's] argument suggests [this], you should
disregard it.
On appeal, Ross renews his argument
that the existence of prior convictions is
not an element of the offense of felony DWI,
but rather a penalty-enhancing factor to be
decided by the judge. We conclude, however,
that AS 28.35.030(n) codifies a discrete
offense of felony driving while intoxicated,
and the existence of two prior convictions
within the preceding five years is an element
of that offense.
This court addressed an analogous
statutory construction problem in Morgan v.
State, 661 P.2d 1102 (Alaska App. 1983). The
statute at issue in Morgan was former AS
4.16.200(b), which made bootlegging (sale of
liquor without a license) a felony offense
under certain conditions. One of those
conditions was that the defendant had
previously been convicted of bootlegging.1
Morgan was charged with felony
bootlegging under this provision. However,
because the State viewed Morgan's prior
conviction as a sentence-enhancement factor
rather than an element of the offense, the
State drafted an indictment that did not
include any allegation concerning Morgan's
prior conviction, and the State presented no
evidence of the prior conviction to the grand
jury. Morgan, 661 P.2d at 1103. Morgan
attacked the indictment on this basis, but
the trial judge agreed with the State that
Morgan's prior conviction was not an element
of the offense. Id. Later, Morgan asked to
have the jury determine the existence of his
prior conviction. The trial judge rejected
Morgan's request and decided the prior
conviction issue himself. Id.
On appeal, this court held that AS
4.16.200(b) created the substantive offense
of felony bootlegging, with the existence of
a prior conviction constituting one element
of that offense. Id. Because a defendant is
entitled to have the grand jury and the petit
jury decide all essential elements of the
charged offense, this court held that
Morgan's trial judge should have dismissed
the indictment, and that the judge later
erred "in not permitting the trial jury to
decide whether the state had proved beyond a
reasonable doubt the prior conviction element
of this offense." Id. We noted that the
structure of the statute indicated the
legislature's intention to create a separate
felony offense. Id. Moreover, to the extent
that the wording of the statute might be
ambiguous on this point, we expressed our
hesitancy to construe a penal statute so as
to deny a defendant the right to grand jury
and petit jury determination of all essential
factual issues. Id. at 1104.
Guided by Morgan, we construe AS
28.35.030(n) as codifying a separate felony
offense. Even more clearly than the
structure of former AS 4.16.200(b), the
structure of AS 28.35.030 evinces the
legislature's intention to create two
discrete crimes of driving while intoxicated
- the traditional misdemeanor offense
codified in subsection (a) and an aggravated,
felony-level offense for repeat offenders
codified in subsection (n). The misdemeanor
offense has one set of penalties, listed in
subsection (b), and the felony offense has a
separate set of penalties, listed in
subsection (n). Moreover, as in Morgan, we
hesitate to construe a criminal statute so as
to deny defendants the right to grand jury
indictment and jury trial on an important
element of the State's case.
Recently, in State v. Winters, 944
P.2d 54 (Alaska App. 1997), we held that
AS 28.35.030(b) and 030(n) constitute
separate and independent (albeit parallel)
sentencing provisions. An implicit premise
of this holding is that AS 28.35.030(a) and
AS 28.35.030(n) codify separate offenses. We
now make that premise explicit. We hold that
a defendant's prior convictions are an
essential element of the offense of felony
driving while intoxicated under AS
28.35.030(n). To obtain an indictment for
this offense, the State must present evidence
of a defendant's prior convictions to the
grand jury. To obtain a conviction for this
offense at trial, the State must convince the
trier of fact of the defendant's prior
convictions beyond a reasonable doubt.
It follows that, in the present
case, Judge Pengilly correctly rejected
Ross's argument that the prior convictions
were merely factors to be considered by the
court at sentencing. The existence of Ross's
prior convictions is an element of the
offense, and thus was an issue of fact for
the jury.
Ross argues in the alternative
that, even if the existence of prior
convictions is an element of the offense,
evidence of Ross's prior offenses was
presented to the jury in a manner that
fatally prejudiced the fairness of his trial.
This argument is not preserved. As described
above, after Judge Pengilly rejected Ross's
argument that the prior convictions were
merely sentencing factors, Ross agreed to
submit a stipulation to the jury rather than
have the prior convictions actively
litigated. Ross can not now attack the
wording that he agreed to.
Moreover, the stipulation in this
case did little more than inform the jury of
the existence and dates of Ross's prior
convictions. This procedure - providing the
jury with a bare-bones stipulation concerning
a defendant's prior convictions - was
suggested by this court in Morgan, 661 P.2d
at 1104 n.4, citing Mead v. State, 445 P.2d
229, 234 (Alaska 1968). We therefore find no
plain error in the procedure of giving Ross's
jury a sparse stipulated description of the
defendant's prior convictions.
It is true that the prosecutor, in
his summation to the jury, urged the jury to
draw an unfair inference from Ross's prior
convictions. However, as described above,
Ross objected to the prosecutor's argument
and Judge Pengilly sustained the objection,
emphasizing his ruling with a curative
instruction to the jury.
In one conclusory sentence in his
reply brief, Ross asserts that this
instruction was ineffective to cure the
problem. But in Azzarella v. State, 703 P.2d
1182, 1186 (Alaska App. 1985), this court
upheld a similar curative instruction given
by the prosecutor at grand jury; in light of
that curative instruction, we concluded that
the grand jury record yielded "no reason to
believe that the grand jury used the evidence
of the prior convictions for purposes other
than the one for which it was expressly
intended". Similarly, in Ross's case, Judge
Pengilly correctly instructed the jury on the
permissible and impermissible uses of the
prior conviction evidence, and the record
gives no indication that the trial jury
disregarded the judge's instruction.
Moreover, we note that Ross never asked for
any different instruction or for any other
remedy.
In sum, we uphold Judge Pengilly's
ruling that Ross's prior convictions were an
element of the offense, and we uphold Judge
Pengilly's method for minimizing the problems
inherent in having the jury decide this
issue. The judgement of the superior court
is AFFIRMED.
However, we wish to emphasize the
limited nature of our ruling:
First, the issue presented in
Ross's case does not arise if a defendant's
prior convictions are relevant for some
purpose other than to establish the "prior
convictions" element of felony DWI. If the
defendant's prior convictions are relevant
for some other purpose, see Alaska Evidence
Rule 404(b), and if the trial judge concludes
that the probative value of this evidence is
not outweighed by the danger of unfair
prejudice, see Alaska Evidence Rule 403, then
the jury can of course hear evidence of the
prior convictions. The problem we address
here arises only in cases like Ross's, where
the prior convictions have no relevance other
than to prove the "prior convictions" element
of the crime.
Second, we do not hold that the
stipulation used in Ross's case is the only
correct method for dealing with the issue of
the defendant's prior convictions in such
cases. Nor do we hold that it is the best
method. We hold only that it is a
permissible method, and that it was a fair
method under the facts of Ross's case.
We note that a defendant's
willingness to stipulate to prior convictions
does not answer the question of who will be
the trier of fact on this element of the
crime. Criminal cases are decided by jury
unless the defendant waives the right to jury
trial and the government consents to have the
case tried to the court. In a jury trial,
even when the parties reach a stipulation
concerning the defendant's prior convictions,
the stipulation will be presented to the
jury, and the jury will decide the prior
convictions element.
It is possible that a defendant
might offer to waive the right to jury trial
on the prior convictions element of the
offense. This waiver could not be made
through counsel; it would have to be made by
the defendant personally. See McGlauflin v.
State, 857 P.2d 366, 368-69 (Alaska App.
1993). If the defendant waives jury trial on
the prior convictions element, and if the
State is likewise willing to have the trial
judge decide this element, then we see no
reason why this element should not be tried
to the court. If, however, the State is not
also willing to waive jury trial on the
element of the defendant's prior convictions,
then the defendant's offer to waive jury
trial would raise another unresolved
question: whether a defendant can
unilaterally waive jury trial on one or more
elements of a criminal charge. See Alaska
Criminal Rule 23(a); Horton v. State, 758
P.2d 628 (Alaska App. 1988).
Another way of dealing with this
problem - one that we recommend to judges in
the future - is to bifurcate the trial. In a
bifurcated trial, the jury would first decide
whether the defendant was guilty of driving
while intoxicated on the date specified in
the indictment; if the jury found the
defendant guilty, the same jury would then
decide the issue of the defendant's prior
convictions. This solution would preserve
both parties' right to a jury determination
of all issues, while at the same time
avoiding the potential for unfair prejudice
that would otherwise be posed by evidence of
the defendant's prior convictions. Moreover,
this solution works equally well regardless
of whether the defendant is willing to
stipulate to the prior convictions or wishes
to contest them.
_______________________________
1 Under former AS 4.16.200(b)(1), a person who sold liquor
without a license in a local-option area was "guilty of
a class C felony ... if [the person] ha[d] previously
been convicted of a violation of AS 4.11.010" (i.e.,
convicted of selling liquor without a license).
