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Kingsley v. State (11/9/00) ap-1704
Kingsley v. State (11/9/00) ap-1704
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
GREG E. KINGSLEY, )
) Court of Appeals No. A-7288
Appellant, ) Trial Court No. 3HO-97-568 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1704 November 9, 2000]
)
Appeal from the District Court, Third Judicial
District, Homer, M. Francis Neville, Judge.
Appearances: Darin B. Goff, Assistant Public
Defender, Kenai, and Barbara K. Brink, Public Defender, Anchorage,
for Appellant. Mary S. Pieper, Assistant District Attorney, Dwayne
W. McConnell, District Attorney, Kenai, and Bruce M. Botelho,
Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
MANNHEIMER, Judge.
The crime defined in AS 28.35.030(a) is usually referred
to as "driving while intoxicated". The text of this statute speaks
of a person who "operates or drives a motor vehicle". Nevertheless,
an intoxicated person can commit this crime without "driving" or
"operating" a car in the usual sense. The statute is violated
whenever an intoxicated person is in actual physical control of a
motor vehicle. [Fn. 1]
Greg E. Kingsley drove his car into a snow berm, where it
remained stuck despite his efforts to extricate it. Kingsley turned
the engine off, but he continued to sit in the driver's seat.
Kingsley testified that, while he sat there, he consumed a bottle
of whiskey and became intoxicated. Based on this evidence, Kingsley
was convicted of driving while intoxicated. [Fn. 2]
Kingsley concedes that he was in physical control of his
car while he was intoxicated. Nevertheless, he contends that there
are two reasons why he could not lawfully be convicted of driving
while intoxicated.
Was there sufficient evidence to support the verdict?
The first reason for reversing his conviction, Kingsley
argues, is that the State failed to prove that he was operating a
motor vehicle. Kingsley notes that the engine of his car was not
running and the State presented no evidence that Kingsley attempted
to start the car after he became intoxicated.
But, as explained above, the State did not need to prove
that Kingsley operated the vehicle while intoxicated. The crime of
"driving while intoxicated" would be established if the State proved
that Kingsley exercised actual physical control over the vehicle
while he was intoxicated.
As Kingsley acknowledges in his brief to this court, a
person who engages the engine of a vehicle and allows it to run is
not merely exercising physical control over the vehicle but is also
"operating" it. Thus, if the engine of Kingsley's vehicle had been
running when the police arrived, the State might have proved that
Kingsley was operating the vehicle while intoxicated. But the State
had to prove only that Kingsley was in actual physical control of
the vehicle while intoxicated.
The supreme court held in Department of Public Safety v.
Conley [Fn. 3] that a person can exercise "physical control" over
a motor vehicle (and thus be convicted of driving while intoxicated)
even though the vehicle's engine is not running. In Conley, the
court ruled that an intoxicated person committed DWI when she got
behind the wheel, announced an intention to drive, and tried to
insert her key into the ignition. [Fn. 4] This court reached a
similar result in Mezak v. State [Fn. 5], where we held that the
defendant was properly convicted of operating a water craft while
intoxicated when the evidence showed that he actively (but
unsuccessfully) tried to start the boat's engine. [Fn. 6]
It is true that Conley and Mezak involved defendants who
did something to try to put their vehicles in motion. But we do not
believe that such actions are necessary to prove that a defendant
is in "actual physical control" of a vehicle. A person's attempt
to operate a vehicle may furnish convincing proof that the person
is in actual physical control of the vehicle, but a person may
exercise actual physical control over a vehicle without making
active attempts to operate it.
In this case, Kingsley was the sole occupant of his
vehicle. He was sitting behind the steering wheel, and he had the
keys to the vehicle in his pocket. Under these facts, Kingsley was
in "actual physical control" of the vehicle even though the engine
was not running and even though Kingsley made no active attempt to
start the engine.
Was the trial judge required to instruct the jury to
decide whether Kingsley's vehicle was operable?
Kingsley offers a second reason why his conviction should
be reversed. He contends that, under Alaska law, a defendant can
not be convicted of DWI under a "physical control" theory unless the
government proves that the defendant's vehicle was operable at the
time. Kingsley points out that his trial judge never instructed the
jury on the issue of operability. He concludes that, because the
jurors received no instruction on operability (and assumedly never
deliberated on this issue), the jury's verdict is flawed.
Kingsley relies on the supreme court's decision in Conley.
Conley was an appeal from an administrative revocation of a driver's
license based on proof that the license-holder exercised actual
physical control over a motor vehicle while intoxicated. The
supreme court declared that one element of the government's proof
was to show that the defendant's vehicle was "reasonably capable of
being rendered operable". [Fn. 7] However, the court also held
that, even though the government failed to offer evidence on the
issue of operability, the hearing officer was "entitled to infer
operability in the absence of evidence to the contrary". [Fn. 8]
In Kingsley's case, all of the evidence supported a
finding that his vehicle was operable or reasonably capable of being
rendered operable. Kingsley was driving the car when it slid into
the snow bank. Although the car became stuck in the snow and could
no longer be moved (without the assistance of towing equipment),
there was no evidence that the car ceased to be operable. This
court confronted a similar issue in Lathan v. State, where we held
that the defendant's vehicle remained "operable" even though it was
firmly stuck in deep mud and no longer capable of movement under its
own power. [Fn. 9]
Thus, in the final analysis, Kingsley's argument poses the
following question: Even when there is no evidence to support a
finding that a defendant's vehicle was inoperable, must the trial
jury nevertheless be instructed that the defendant can not be
convicted of driving while intoxicated under a "physical control"
theory unless the jury affirmatively finds that the defendant's car
was operable (or was reasonably capable of being rendered operable)?
We hold that the answer is "no". If the operability of the
defendant's car is not in reasonable dispute, the jury need not be
instructed on this issue.
Under Conley, when the government pursues a "physical
control" theory of DWI, the government must prove that the
defendant's vehicle was either operable or reasonably capable of
being rendered operable. We assume for purposes of deciding
Kingsley's appeal that Conley's requirement of operability applies
in criminal cases as well as license revocation cases. [Fn. 10]
But even with this assumption, we conclude that the jury need not
make a finding of operability unless there is evidence suggesting
the contrary evidence suggesting that the defendant's vehicle was
both inoperable and not reasonably capable of being rendered
operable.
A similar legal issue used to be presented in murder cases
before the enactment of modern criminal codes. The common-law
definition of murder required proof of "malice". Generally speaking,
in cases of intentional homicide, "malice" meant that the defendant
was of sound mind and that there was no justification, excuse, or
mitigation for the killing. [Fn. 11] But even though "malice" was
an element of the government's proof, malice was presumed if (1) the
government proved that the defendant committed an intentional
homicide and (2) there was no evidence suggesting insanity,
justification, excuse, or mitigation.
There [was] a true presumption of malice
aforethought. It would be an unreasonable burden upon the
prosecution to require it in every murder case to prove not only the
killing of the deceased by the defendant, but also the non-existence
of every conceivable set of circumstances which might be sufficient
to constitute either innocent homicide or guilt of manslaughter
only. Thus the prosecution [was] not required to prove in the first
instance ... that the defendant was not so insane as to be wanting
in criminal capacity, or that the killing was not by accident, or
that it did not result from the privileged use of deadly force[,]
or that it did not result from the sudden heat of passion engendered
by adequate provocation, or other matters of this kind. To require
such proof would constitute an absurd waste of time, and would
require proving in many instances the absence of a non-existent
circumstance. This difficulty [was] avoided by a rule of law in the
form of a presumption. ... Every homicide [was] presumed to have
been committed with malice aforethought unless the evidence ...
[suggested that the killing was] without malice.
[In murder prosecutions under common law,
this] presumption ... merely places upon the defendant the burden
of going forward with ... evidence [that] throws a different light
upon the situation or indicates exculpating or mitigating
circumstances. [But if] no such evidence is offered[,] a conviction
of murder is proper because of the presumed malice.
R. Perkins & R. Boyce, Criminal Law (3rd edition 1982), pp. 76-78
(internal quotations and citations omitted).
When the supreme court decided Conley, the court seemingly
adopted the same approach to the issue of operability. The court
declared that, even though the government failed to introduce any
evidence specifically addressed to proving that Conley's car was
operable, the hearing officer (i.e., the trier of fact) was "entitled
to infer operability in the absence of evidence to the contrary".
[Fn. 12]
We conclude that a similar rule should govern the issue
of operability in criminal trials where a defendant is charged with
driving while intoxicated under a "physical control" theory (that
is, where the government does not prove that the defendant drove or
operated the motor vehicle). Unless there is evidence suggesting
that the defendant's vehicle was not operable and not reasonably
capable of being rendered operable, the jury need not be instructed
on the operability issue.
Conclusion
For these reasons, we conclude (1) that the State
presented sufficient evidence to establish that Kingsley was in
actual physical control of a motor vehicle while intoxicated, and
(2) the trial judge did not need to instruct Kingsley's jury on the
issue of operability.
The judgement of the district court is AFFIRMED.
FOOTNOTES
Footnote 1:
See Department of Public Safety v. Conley, 754 P.2d 232, 234
(Alaska 1988); Mezak v. State, 877 P.2d 1307, 1308 (Alaska App.
1994). See also AS 28.40.100(a)(7), which defines "driver" as "a
person who drives or is in actual physical control of a vehicle".
Footnote 2:
Actually, there was conflicting evidence as to when Kingsley
had done his drinking. Viewing the evidence in the light most
favorable to the State, Kingsley was intoxicated when he drove the
car into the snow berm. But to resolve this case, we must take the
evidence in the light most favorable to Kingsley.
Footnote 3:
754 P.2d 232 (Alaska 1988).
Footnote 4:
See id. at 236.
Footnote 5:
877 P.2d 1307 (Alaska App. 1994).
Footnote 6:
See id. at 1308.
Footnote 7:
Conley, 754 P.2d at 236.
Footnote 8:
Id.
Footnote 9:
707 P.2d 941, 943 (Alaska App. 1985).
Footnote 10:
We made a similar assumption in Williams v. State, 884 P.2d
167, 170 (Alaska App. 1994).
Footnote 11:
See R. Perkins & R. Boyce, Criminal Law (3rd edition 1982), pp.
58-59, 951.
Footnote 12:
Conley, 754 P.2d at 236.
