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Ashley v. State (8/18/00) ap-1683
Ashley v. State (8/18/00) ap-1683
NOTICE: The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers are
encouraged to bring typographical or other formal errors to the
attention of the Clerk of the Appellate Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
RICKY WAYNE ASHLEY, )
) Court of Appeals No. A-7167
Appellant, ) Trial Court No. 4DJ-S97-65 CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1683 - August 18, 2000]
)
Appeal from the District Court, Fourth Judicial
District, Delta Junction, Mark I. Wood, Judge.
Appearances: Robert A. Sparks, Fairbanks, for
Appellant. David V. Burglin, Assistant District Attorney, Harry
L. Davis, District Attorney, Fairbanks, and Bruce M. Botelho,
Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
COATS, Chief Judge.
A jury convicted Ricky Wayne Ashley of reckless driving
[Fn. 1] and failure to report a motor vehicle accident. [Fn. 2]
Ashley appeals his reckless driving conviction, contending that it
is supported by insufficient evidence. Ashley also argues that
Judge Wood abused his discretion in denying his motion to sever the
reckless driving and failure to report an accident charges. He
further contends that Judge Woods erred in admitting the testimony
of police officers regarding possible causes of the accident and in
qualifying Sergeant Charles Lovejoy as an expert. We conclude that
Judge Wood did not abuse his discretion in denying Ashley's motion
to sever the two charges against him. Ashley did not object to the
officer's testimony at trial, nor did he object to Judge Wood's
qualification of Lovejoy as an expert. We, therefore, conclude that
he has waived these evidentiary arguments on appeal. We also
conclude that the evidence was sufficient to sustain Ashley's
reckless driving conviction.
In the early morning hours of April 26, 1997, military
police officer Christopher Enoch was dispatched to investigate a
single vehicle accident that occurred on the Richardson Highway.
When he arrived at the scene, he found an overturned four-wheel
drive Dodge pick-up truck. Enoch searched the nearby woods for
possible injured occupants. When none were found, he then began
looking for possible causes of the accident.
Enoch stated that the truck was damaged and all of the
glass was broken out of its windows. He noticed a strong odor of
alcohol inside the truck and a substance that appeared to be vomit
on the steering wheel. Enoch also detected blood stains on the
outside of the driver's door. Outside of the truck, Enoch found
a half a case of beer. Four or five of the beers were opened, and
some of them appeared to have been damaged by impact.
According to Enoch, the weather on the night in question
was clear. The road was damp with dew that had fallen the night
before, but it was not slippery. In addition, the area to the right
and left of the road was clear and cut back. Enoch measured skid
and yaw marks at the scene and found that the driver's initial
reaction point was approximately 538 feet from where the truck came
to rest. Enoch testified that it looked like the driver had started
to go off the road, perhaps as a result of falling asleep, swerving,
or being distracted by something in the cab.
Later that morning, Alaska State Trooper Dane Gilmore was
dispatched to the accident scene. Gilmore detected the odor of
alcoholic beverages and saw vomit on the steering wheel. He also
found that the glass in the windows was broken and detected a small
amount of blood on the outside of the truck near the door. Gilmore
estimated that the truck sustained approximately $20,000 to $25,000
in damage.
Sergeant Charles Lovejoy testified on behalf of the state
as an expert on accident reconstruction. Lovejoy reviewed several
photographs of the accident scene and talked to the military police
and state troopers who investigated the accident. Lovejoy noted
that the tire tracks went off the road and then back onto it as the
road entered a curve. Lovejoy did not come to any conclusion as to
why the truck initially left the road, and he was unable to
determine the truck's speed at the time of the accident. But he
stated that, in his experience, accidents that take place at a curve
are often the result of the driver's inattention. Lovejoy concluded
that this was likely what happened to Ashley.
Following the state's case-in-chief, Ashley moved for
acquittal on the reckless driving charge, arguing that there was a
lack of evidence of any conduct on his part that constituted
reckless driving. Judge Wood denied Ashley's motion and the defense
then presented its case. Ashley testified that he and his friend
were driving from Fairbanks to Glennallen when the accident
occurred. Before leaving Fairbanks, they stopped at a store, where
Ashley bought a 12-pack of Dr. Pepper and his friend bought a 12-
pack of beer. Ashley testified that after he drove through Delta
Junction, he accelerated and put his truck on cruise control.
Shortly thereafter a moose jumped out in front of him. Ashley
dropped off the shoulder of the road on the right to avoid the moose
and swerved back and forth on the road a few times, overcorrecting.
Ashley finally slammed on his brakes and ultimately flipped his
truck over. The jury convicted Ashley of reckless driving. [Fn.
3]
Before we address the question of whether there was
sufficient evidence to support Ashley's reckless driving conviction,
we will briefly address the two other arguments that Ashley raises
on appeal. First, Ashley argues that under Daubert v. Merrell Dow
Pharmaceuticals, Inc., [Fn. 4] the police officers' testimony at
trial regarding the possible causes of the accident was inadmissible
because the officers failed to apply accident reconstruction
techniques. Ashley did not object to the officers' testimony at
trial, nor did he object to the court's qualification of Lovejoy as
an expert. Ashley also failed to raise the admission of the
officers' testimony, or the qualification of Lovejoy as an expert
in his points on appeal. We therefore find that Ashley has waived
these evidentiary arguments on appeal. [Fn. 5]
Second, Ashley contends that the trial court abused its
discretion when it denied his motion to sever the reckless driving
and failure to report an accident charges. Prior to trial, Ashley
moved to sever the reckless driving and failure to report a motor
vehicle accident charges on the grounds that the alcohol evidence
found at the accident scene was not admissible on the reckless
driving charge. Judge Wood disagreed, and denied the motion to
sever.
A motion to sever joined offenses encompasses two separate
inquiries. First, we must determine whether the two offenses
charged are so related as to make joinder proper. Second, we must
determine whether joinder of the offenses for trial would unduly
prejudice the defendant. [Fn. 6] The two offenses with which Ashley
was charged both arose out of his single-vehicle accident on April
26, 1997. The charges were thus based on the same "act or
transaction" and properly joined under Criminal Rule 8(a)(2). [Fn.
7]
Ashley claims that the alcohol evidence was not relevant
to the reckless driving charge and he was unfairly prejudiced by its
admission. To the contrary, the record reflects that Judge Wood
found that the alcohol evidence was relevant to the reckless driving
charge. As Judge Wood noted, the alcohol containers were "part of
the observations of the police officers at the scene [from which]
the jurors can draw reasonable conclusions[.]" We agree that the
alcohol evidence was relevant to the reckless driving charge and
accordingly find that Judge Wood did not abuse his discretion in
denying Ashley's motion to sever.
We now turn to Ashley's argument that the evidence does
not support his reckless driving conviction. Under AS 28.35.040(a),
the state was required to prove that Ashley drove a motor vehicle
in a "manner that create[d] a substantial and unjustifiable risk of
harm to a person or to property." [Fn. 8] The statute defines
"substantial and unjustifiable risk" as "a risk of such a nature and
degree that the conscious disregard of it or a failure to perceive
it constitutes a gross deviation from the standard of conduct that
a reasonable person would observe in the situation." [Fn. 9]
The parties agree that reckless driving requires something
more than mere negligence in the operation of a vehicle. The state
also concedes that the occurrence of an accident by itself does not
give rise to an inference of reckless driving. But the state relies
on the circumstantial evidence in this case specifically, evidence
that alcohol had been consumed in the vehicle, the skid marks left
by the truck, the damage to the vehicle, and the fact that the
highway was relatively straight and dry. The state contends that
this evidence, viewed in the light most favorable to upholding the
jury's verdict, and combined with Trooper Lovejoy's analysis of the
accident scene, is sufficient to support a conviction for reckless
driving.
Ashley relies on several cases from other jurisdictions
which hold that circumstantial evidence similar to the evidence
presented in this case is insufficient to support a conviction for
reckless driving. [Fn. 10] In essence, these courts hold that, in
addition to proving that the driver was involved in an accident, the
government must produce affirmative evidence that the driver
contributed to that accident by an act of recklessness. As defined
in AS 28.35.040, an act of recklessness is an act that creates so
great a risk to persons or property "that the conscious disregard
of [this risk] or a failure to perceive it constitutes a gross
deviation from the standard of conduct that a reasonable person
would observe in the situation." If the evidence (viewed in the
light most favorable to the government) still leaves a reasonable
possibility that the accident occurred with no act of recklessness
on the part of the driver, then the government's evidence is not
sufficient to sustain a conviction for reckless driving.
For example, in Powers v. Commonwealth, [Fn. 11] the
government presented evidence that the defendant's vehicle traveled
an erratic course on a highway for more than 900 feet and then
struck some adjacent trees with such force that the motor was
wrenched from the vehicle. The highway at the site of the crash was
level, dry black top; there was a slight curve in the road, but
there were no defects in the pavement. The night was clear. [Fn.
12] In addition to this circumstantial evidence, the government
relied on the testimony of a trooper who reconstructed the accident
based on impressions left on the highway and the damage inflicted
to the trees by the side of the road. [Fn. 13] The court held that
this evidence was insufficient to support the defendant's reckless
driving conviction. [Fn. 14] The court emphasized that no one
(other than the driver) had witnessed the accident, and the court
rejected the government's contention that the defendant's
recklessness could be inferred from the circumstantial evidence.
The court concluded that there was no way to determine precisely how
or why the accident had happened, [Fn. 15] and that the government's
evidence left "[too] much to speculation and conjecture as to what
caused defendant to lose control of the car." [Fn. 16]
Similarly, in State v. Roenicke, [Fn. 17] the defendant
was convicted of reckless driving based on evidence that his car
inexplicably swerved to the right, jumped a curb, and went down an
embankment, where it landed upside down. [Fn. 18] The trooper who
arrived at the scene talked to the defendant and concluded that he
was under the influence of alcohol. Indeed, a blood sample taken
at the hospital two hours after the accident showed that the
defendant's blood alcohol level was over .10 percent. Nevertheless,
the court held that this evidence was insufficient to sustain a
reckless driving charge. [Fn. 19] The court noted that the one-car
accident was not observed by a trooper or any other witness (save
the defendant). Because the government's case was circumstantial,
the court found that the government failed to prove beyond a
reasonable doubt that the defendant drove in a reckless manner. [Fn.
20]
While we acknowledge these decisions from other states,
we do not find their reasoning persuasive. These decisions are
based, either expressly or implicitly, on the notion that
circumstantial evidence has less probative force than direct
evidence that a case based entirely on circumstantial evidence
is automatically suspect. We follow a different rule in Alaska.
Under Alaska law, there is "no categorical distinction between direct
and circumstantial evidence." [Fn. 21] In particular, when
assessing the sufficiency of the evidence to support a criminal
conviction, we apply the same standard regardless of whether the
state's case is based on circumstantial or direct evidence. [Fn. 22]
Evidence is sufficient to support a conviction when
fair-minded jurors, exercising reasonable judgment and taking the
evidence in the light most favorable to the government, could find
that the government had met its burden of establishing the
defendant's guilt beyond a reasonable doubt. [Fn. 23] Ashley's
vehicle was involved in a single-car accident. The road was good
and the weather was clear. Nevertheless, Ashley's vehicle swerved
back and forth across the roadway, leaving skid marks for
approximately 500 feet before it left the roadway. The state
presented evidence that Ashley and his passenger had been consuming
alcoholic beverages. An accident reconstruction expert testified
that there was no apparent reason for Ashley's vehicle to leave the
road, and that the most likely cause of the accident was driver
inattention.
In the early days of statehood, the Alaska Supreme Court
decided a case that raised a similar sufficiency-of-the-evidence
issue in a civil context. Rogge v. Weaver [Fn. 24] involved a
negligence lawsuit arising out of a head-on collision between two
trucks. The plaintiff was a freight company; the defendant was a
construction company. Neither of the truck drivers testified, and
there was apparently no other eyewitness to the collision. The
plaintiff produced two witnesses who visited the scene of the
accident some hours later. These witnesses testified that the
freight company's truck was found on the far right-hand side of the
road, with its right wheels off the roadway. Tire tracks in the
snow showed that the truck had been on the far-right side of the
roadway for the last 60 feet of its travel. The truck had not been
moved since the collision, so the truck was apparently struck by the
construction company's vehicle even though the driver had moved his
truck as far as possible to the right to avoid the collision. The
two freight company witnesses also testified that, at the site of
the collision, the road was wide enough to easily accommodate both
vehicles.
After the freight company's witnesses testified, the trial
judge granted the defendant's motion for involuntary dismissal. The
trial judge found that the freight company had failed to produce
sufficient evidence that the construction company's driver had acted
negligently. On appeal, the supreme court reversed the trial
judge's decision and remanded the case to complete the trial.
The supreme court held that the testimony of the freight
company's witnesses, if believed, established a prima facie case
that the construction company's driver had acted negligently. That
is, the court held that a finding of negligence could be sustained
if the construction company offered no explanation of the collision,
or if the construction company offered an explanation but the finder
of fact disbelieved it. [Fn. 25] The court cited several cases from
other jurisdictions holding that, when a collision occurs and the
defendant's vehicle has been traveling on the wrong side of the
road, this in itself is sufficient to support a finding of
negligence. [Fn. 26]
Ashley was driving a motor vehicle that, without apparent
reason, began to swerve back and forth across the highway and
finally left the road. Similar to the supreme court's conclusion
in Rogge, we conclude that these circumstances, if unexplained, are
sufficient to support an inference of recklessness.
We also note that Ashley took the stand and offered an
exculpatory explanation of how the accident had occurred, but the
jury evidently did not believe his account. When the jurors
deliberated, they could consider the fact that Ashley had apparently
offered a knowingly false explanation for the occurrence. [Fn. 27]
In sum, although the state's case against Ashley was
almost entirely circumstantial, the courts of Alaska have repeatedly
held that there is no special test that applies to cases based on
circumstantial evidence. Here, we conclude that the state's
evidence was sufficient to convince reasonable people, beyond a
reasonable doubt, that Ashley was guilty of reckless driving.
Accordingly, Ashley's conviction for reckless driving is
AFFIRMED.
FOOTNOTES
Footnote 1:
AS 28.35.040(a).
Footnote 2:
AS 28.35.080(a).
Footnote 3:
The jury also convicted Ashley of Failure to Report a Motor
Vehicle Accident, AS 28.35.080(a). Ashley has not appealed that
conviction.
Footnote 4:
509 U.S. 579, 592, 113 S.Ct. 2786, 2796 (1993).
Footnote 5:
See O'Callaghan v. State, 826 P.2d 1132, 1133, n.1 (Alaska
1992); Welcome v. Jennings, 780 P.2d 1039, 1042 n.4 (Alaska 1989).
Footnote 6:
Nell v. State, 642 P.2d 1361, 1363 (Alaska App. 1982).
Footnote 7:
See Machado v. State, 797 P.2d 677, 685 (Alaska App. 1990).
Footnote 8:
AS 28.35.040(a).
Footnote 9:
Id.
Footnote 10:
See State v. Esposito, 642 So.2d 25, 27 (Fla. App. 1994)
(defendant's reckless driving conviction reversed where there was
no evidence that he was speeding, drinking, or driving erratically,
or that he failed to observe traffic regulations prior to hitting
pedestrian); State v. Dupree, 142 S.E.2d 5, 6-7 (N.C. 1965) (mere
showing that defendant's automobile was on the left side of the road
when it collided with another automobile, absent evidence that it
was being operated at dangerous speed or in a perilous manner, was
insufficient to make out a case of reckless driving); State v.
Hemingway, 213 A.2d 77, 78 (Conn. App. 1965) (evidence that an
officer found three cans of beer in defendant's vehicle, defendant
admitted he had two cans of beer, the other driver testified that
defendant was "going kind of fast," the weather was clear, the area
was well lit by street lights, the road was wide, and there were no
cars parked on the side, was insufficient to sustain reckless
driving conviction). See also 52 A.L.R.2d 1337, 1377-80 (1957) and
A.L.R.2d Later Case Service, at 863-64 (1999). But cf., Kennedy v.
Com., 339 S.E.2d 905, 907-08 (Va. App. 1986) (evidence that
defendant fell asleep at the wheel and ran off the road was
sufficient to sustain his conviction of reckless driving); State v.
Kingman, 247 A.2d 858, 859-60 (R.I. 1968) (evidence that defendant's
vehicle climbed a curb and struck a utility pole, that the vehicle
was damaged and defendant was injured, combined with defendant's
inconsistent statements about how the accident happened, was
sufficient to sustain reckless driving conviction).
Footnote 11:
177 S.E.2d 628 (Va. 1970).
Footnote 12:
Id.
Footnote 13:
Id. at 629.
Footnote 14:
Id. at 630.
Footnote 15:
Id.
Footnote 16:
Id.
Footnote 17:
417 A.2d 54 (N.J. Super. 1980).
Footnote 18:
Id. at 55.
Footnote 19:
Id.
Footnote 20:
Id. at 56.
Footnote 21:
State v. McDonald, 872 P.2d 627, 653 (Alaska App. 1994).
Footnote 22:
See Des Jardins v. State, 551 P.2d 181, 184 (Alaska 1976);
Simpson v. State, 877 P.2d 1319, 1320 (Alaska App. 1994); Willett
v. State, 836 P.2d 955, 957 (Alaska App. 1992); Snyder v. State, 661
P.2d 638, 641 (Alaska App. 1983).
Footnote 23:
See Dorman v. State, 622 P.2d 448, 453 (Alaska 1981); Pavlik
v. State, 869 P.2d 496, 497 (Alaska App. 1994).
Footnote 24:
368 P.2d 810 (Alaska 1962).
Footnote 25:
See id. at 815-16.
Footnote 26:
See id. at 815.
Footnote 27:
See Former Alaska Criminal Rule 30(b) (as enacted by Supreme
Court Order 79, effective February 1, 1966) ("Except as otherwise
provided by statute or by these rules, the [trial] court shall
instruct the jury ... on all matters of law which it considers
necessary for the jury's information in giving their verdict, and
whether or not requested to do so, shall give the following basic
instructions on all proper occasions: (1) That a witness wilfully
false in one part of his testimony may be distrusted in other parts
... .") Cf. Campbell v. State, 594 P.2d 65, 67-68 (Alaska 1979);
Williams v. State, 652 P.2d 478, 481 (Alaska App. 1982) (a
sentencing judge can properly consider the fact that the defendant
has knowingly offered false testimony).
