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Howell v. State (07/01/2005) ap-1991

Howell v. State (07/01/2005) ap-1991

                             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


MARSHALL R. HOWELL,          		)
                              			)           Court of Appeals No. A-8556/A-8575
                  Appellant/Cross-Appellee,     	)           Trial Court No. 3AN-02-4598 CR
                              			)
                  v.                                           	)	O  P  I  N  I  O  N
                             			)
STATE OF ALASKA,                       	)
                             			)
                Appellee/Cross-Appellant.    	)               [No.1991  July 1, 2005]
                                                           	)

          Appeal  from the Superior Court, Third  Judi
          cial   District,   Anchorage,   Michael   L.
          Wolverton,   and  Stephanie  E.   Joannides,
          Judges.

          Appearances:   David  D. Reineke,  Assistant
          Public   Defender,  and  Barbara  K.  Brink,
          Public   Defender,   Anchorage,   for    the
          Appellant/Cross-Appellee.      Kenneth     M
          Rosenstein,   Assistant  Attorney   General,
          Office  of Special Prosecutions and Appeals,
          Anchorage,  and  Gregg D.  Renkes,  Attorney
          General,  Juneau,  for  the  Appellee/Cross-
          Appellant.

          Before:   Coats, Chief Judge, and Mannheimer
          and Stewart, Judges.

          STEWART, Judge.


          Following   a  jury  trial,  Marshall  R.  Howell   was

convicted of misdemeanor driving while under the influence.1  The

grand jury had indicted Howell for felony driving while under the

influence,2  but  the  superior  court  entered  a  judgment   of

          acquittal on the felony charge.

          Howell  appeals,  claiming  that  the  superior   court

should have suppressed the evidence on the ground that the police

conducted  an  unlawful  stop, that the superior  court  gave  an

erroneous  operating a motor vehicle jury instruction,  that  the

superior  court  imposed  an excessive  sentence,  and  that  the

probation  imposed  as part of that sentence should  be  vacated.

The  State cross-appeals, claiming that the superior court  erred

when  it  entered  a judgment of acquittal on the  felony  charge

after  ruling   that the evidence of Powells prior drunk  driving

convictions was insufficient to allow the felony charge to go  to

the  jury.   The  State  agrees with Howell  that  the  probation

imposed  should be vacated.  For the reasons set  out  below,  we

vacate the probation imposed as part of Howells sentence, and  we

affirm  the  other  decisions  of the  superior  court  with  the

exception  of  the  courts  decision  to  grant  a  judgment   of

acquittal.  We do not reach the merits of that ruling because the

double  jeopardy  clause  bars the State  from  challenging  that

ruling.



          Facts and proceedings

          Anchorage Police Officer Steven Busby contacted  Howell

when  he  saw  Howells vehicle parked in the early morning  hours

near a business in Anchorage.  Howell claimed that Busbys contact

was unlawful, and moved to suppress the evidence.  Superior Court

Judge  Michael L. Wolverton held an evidentiary hearing at  which

Officer Busby testified.

          According  to  Busby,  at approximately  three  in  the

morning on May 31, 2002, he saw a vehicle in the parking  lot  of

Alaska Laser Car Wash at East Fifth Avenue near Orca Street.  The

driver  was hunched over the steering wheel with a coat over  his

head.  There were no other vehicles in the parking lot, and Busby

testified that it was unusual for a vehicle to be parked there at

that  time  of morning.  Because he thought it was possible  that

the person hunched over the steering wheel had a medical problem,

Busby approached the occupant to make sure that he was okay.

          Busby  knocked  on  the  drivers  side  window  several

times.   Busby could see that the vehicles dashboard  and  stereo

lights  were  on,  although he could not recall if  the  vehicles

engine  was running.  The driver, Howell, removed the  coat  from

his  head, looked at Busby, then again covered his head with  the

coat.  Busby continued to knock on the window.  Howell eventually

removed  the  coat  from his head, then turned off  the  vehicles

ignition switch.  Howell attempted to roll down the window,  but,

because  it  was an electric window, he could not.   Howell  then

turned the ignition back on and rolled down the window.

          In  response  to  Busbys questions, Howell  told  Busby

that  he  had been drinking soda and that he was sitting  in  his

vehicle listening to music because he was tired. He admitted that

he  drank four beers about nine hours earlier.  But he also  said

that  a  friend had driven him to the parking lot,  and  that  he

(Howell) had been parked there all day.

          Busby  noticed that Howells eyes were red,  his  pupils

dilated, and that he had difficulty focusing on the conversation.

Busby asked Howell for his drivers license, and Howell gave Busby

an  Oregon state identification card.   Busby had Howell get  out

of his vehicle for field sobriety tests, which Howell failed.

          Busby  arrested  Howell  for driving  while  under  the

influence  and for driving while his license was revoked.   Busby

took  Howell  to  the  Fifth  Avenue police  substation  where  a

chemical test showed that Howells breath alcohol content was .114

percent.

          Judge Wolverton denied Howells motion to suppress.   He

ruled  that based on the circumstances described by Busby,  Busby

had  acted lawfully when he contacted Howell to inquire about his

welfare.   Later,  Howell  sought reconsideration  based  on  new

evidence.   After Judge Wolverton reviewed the new  evidence   an

audiotape recorded during Busbys contact with Howell  he affirmed

his earlier decision.

          Because  Howell  had  prior drunk  driving  convictions

from  Oregon,  the  State charged him with felony  driving  while

under  the  influence.  However, because of apparent deficiencies

in  the  States proof of these prior convictions at trial,  Judge

Stephanie E. Joannides granted a motion for judgment of acquittal

on  the  felony charge before evidence of those prior convictions

went  to the jury.  The jury found that the State had proven that

Howell  was  driving  while  under  the  influence,  and  he  was

convicted of the misdemeanor offense.

          However,  for  purposes of sentencing,  the  prosecutor

showed  that  Howells  conviction in this  case  was  (at  least)

Howells fourth driving while under the influence conviction,  and

that  it  was  his third conviction within the past five  to  six

years.   Although Judge Joannides did not make a  worst  offender

finding,  she sentenced Howell to 365 days to serve, the  maximum

term.   She  also  imposed a $5,000 fine  and  placed  Howell  on

probation for 10 years.

          Howell    appeals,    challenging   Judge    Wolvertons

suppression  decision,  one  of the jury  instructions,  and  the

length  of  the  sentence.  The State cross-appeals,  challenging

Judge  Joannidess ruling that there was insufficient evidence  of

Howells prior drunk driving convictions for that evidence  to  go

to the jury.



          Discussion

          Was the police contact with Howell unlawful?

          Howell  claims  that  under Coleman  v.  State,3  Busby

conducted  an unlawful investigatory stop when he contacted  him,

and that Judge Wolverton therefore erred in denying his motion to

suppress.

          Judge  Wolverton  found that Busby  was  authorized  to

check  on  Howells welfare because he was sitting in his  vehicle

slumped over the steering wheel with a coat over his head.  Based

on  our  review of the record, we uphold Judge Wolvertons  ruling

that   Busbys  contact  with  Howell  was  authorized  under  the

community   caretaker  doctrine.   In  Ozhuwan  v.   State,4   we

          recognized  that a police officers community  caretaker

responsibilities  can  justify  a  Fourth  Amendment  stop.5   In

Ozhuwan,  the  police  officer had  no  specific  information  to

justify  his  suspicion that the occupants  of  Ozhuwans  vehicle

needed  assistance.6   Rather, all the police saw was  a  vehicle

parked  in  an  area  where the police  knew  that  minors  often

consumed alcohol.  Here, Busby saw a person with a coat over  his

head  slumped over the steering wheel of a vehicle parked   in  a

parking lot that was normally deserted at that time of morning.

          Busby  testified that he thought the driver might  have

a medical problem, or some other problem, and that he felt it was

necessary  to  contact the occupant to make  sure  he  was  okay.

Although  Busby drove over to the vehicle, nothing in the  record

indicates  that  he turned on his vehicles emergency  lights,  or

used a spot light, or parked his vehicle in a manner that blocked

Howells vehicle from leaving.  In addition, Judge Wolverton could

reasonably  find that Busbys welfare check was not complete  when

Howell  initially looked at Busby, then re-covered his head  with

his  coat,  because this conduct did not demonstrate that  Howell

was not in need of aid.

          We  review  a  denial of a motion to  suppress  in  the

light  most  favorable  to upholding the  trial  courts  ruling.7

Viewing  the  record  in  this  light,  we  conclude  that  Judge

Wolverton did not clearly err in finding that this was a  welfare

stop.   During  this  lawful contact, Busby observed  signs  that

Howell  was  intoxicated.  Therefore, we uphold Judge  Wolvertons

ruling denying Howells motion to suppress.



           Did the courts operating instruction improperly direct

the jury verdict?

          Howell   next   claims   the  courts   operating   jury

instruction  directed the jury to find [him] guilty if  the  jury

found  that  his conduct was substantially similar to  the  three

examples  set forth in the instruction.  He argues that the  jury

should  have been instructed that the fact patterns were examples

          of situations where a jury could, but did not have to, find

operating.8

          The  jury  instruction the court gave in this  case  is

similar  to  the  criminal pattern instruction,9 which  sets  out

examples  from  prior cases illustrating circumstances  in  which

defendants were found to be operating a motor vehicle.10   One of

those  examples, derived from State, Department of Public  Safety

v.  Conley,11  described a circumstance  similar  to  this  case:

Conley  was  sitting in the drivers seat and capable of  starting

the  engine,  but the engine was not running and the vehicle  was

not moving.12

          Despite  this  similarity, the instruction  in  Howells

case  did  not direct the jury to find that Howell, like  Conley,

had  been operating his vehicle.  Instead, it told the jury  that

whether the defendant was operating a motor vehicle is a question

that  you must decide. We conclude that Judge Joannides  did  not

abuse her discretion when she gave this instruction.



          Can  the  State  appeal  Judge  Joannidess  evidentiary

ruling?

          The  State challenges Judge Joannidess exclusion of the

prosecutors evidence of Howells Oregon convictions, and her entry

of  a judgment of acquittal on the felony driving while under the

influence charge.  Although the government normally cannot appeal

a judgment of acquittal, the State claims that procedurally Judge

Joannides  did not grant a judgment of acquittal.  Alternatively,

the  State claims that even if she did, the State can re-try  the

felony  charge  because the prior conviction  element  of  felony

driving  while  under  the influence is really  no  more  than  a

sentence enhancement.

          We  conclude that Judge Joannides did enter a  judgment

of  acquittal.  In Anchorage v. Baxley,13 we reiterated the  rule

that  [i]n  determining whether the trial  courts  ruling  was  a

judgment of acquittal, the appellate court must determine whether

the  ruling of the judge, whatever its label, actually represents

          a resolution, correct or not, of some or all of the factual

elements of the offense charged.14  We also acknowledged  that  a

dismissal on legal grounds that [does] not require resolution  of

the  factual  elements of an offense ... does  not  amount  to  a

judgment  of  acquittal, regardless of its timing  or  the  label

attached thereto.15

          Here,  Judge Joannides reviewed the prosecutors offered

evidence  and  ruled that even if this evidence was admitted,  it

would  not prove that Howell had twice been convicted of offenses

that  had elements similar to AS 28.35.030, Alaskas drunk driving

statute.  Judge Joannides found that if the prosecutor could  not

present  sufficient evidence to prove that element,   Howell  was

entitled  to  an  acquittal  on the felony  charge.   This  is  a

resolution,  correct or not, of some ... of the factual  elements

of   the  offense  charged.16   Judge  Joannides  evaluated   the

prosecutors   evidence  and  determined  that  it   was   legally

insufficient to sustain a conviction.17

          Although  the  State also argues that  Judge  Joannides

should have allowed the prosecutor to present the evidence to the

jury,  we  need not address this claim.  Even if Judge  Joannides

erred  and  improvidently entered a judgment  of  acquittal,  the

judgment  of  acquittal must stand because  it  was  based  on  a

resolution  of  a factual element of the charge.18    Because  we

cannot  vacate  the judgment of acquittal, we  need  not  address

Judge Joannidess evidentiary ruling.



          The States double jeopardy argument

          The  State  claims that even if a judgment of acquittal

was  entered,  federal double jeopardy law does not  prevent  the

State  from  having another chance to prove the prior  conviction

element  of felony driving while under the influence.  The  State

bases  its  argument on Monge v. California,19  where  a  divided

United States Supreme Court found that the double jeopardy clause

of  the  United States Constitution was not violated when,  under

the California three strikes law, a prosecutor was given a second

          chance to prove a sentence enhancement at a new sentencing

proceeding.20

          In  Monge, the Supreme Court noted that historically it

had  found double jeopardy protections inapplicable to sentencing

proceedings ... because the determinations at issue do not  place

a  defendant in jeopardy for an offense.21  But the Supreme Court

also   explained  that  when  an  appellate  court  overturns   a

conviction  on  the  ground  that  the  [prosecution]   proffered

insufficient evidence of guilt, that finding is comparable to  an

acquittal,  and  the  Double Jeopardy Clause precludes  a  second

trial.22  According to the Supreme Court, the difference was that

the  pronouncement of sentence simply does not have the qualities

of constitutional finality that attend an acquittal.23

          The  State  argues that the Monge decision  applies  to

Howells  case  because, under Alaska law, the  prior  convictions

element   of   felony  driving  while  under  the  influence   is

essentially  a sentence-enhancing provision.  This is  incorrect.

We  have  repeatedly and consistently held that when a defendants

prior convictions make the defendant subject to conviction for  a

higher  degree of offense, those prior convictions are an element

of  the offense that must be proved beyond a reasonable doubt  at

trial.24  In particular, Ross v. State25 squarely holds that,  in

a  prosecution for felony driving while under the influence under

AS  28.35.030(n),  the  defendants prior convictions  are  not  a

sentence-enhancement factor to be considered  by  the  sentencing

judge   after  the  defendant  is  found  guilty;  instead,   the

defendants  prior convictions are an element of the offense  that

must be proved to the jury at trial.26

          In  Howells  case, the jury concluded that  Howell  had

operated a motor vehicle while under the influence.  Then, before

the   jury  could  reach  a  decision  regarding  Howells   prior

convictions  in the second portion of a bifurcated  trial,  Judge

Joannides   granted  Howell  a  partial  judgment  of   acquittal

effectively  dismissing  the felony charge,  leaving  the  lesser

offense of misdemeanor driving while under the influence  because

          she concluded that the States proposed evidence was insufficient

to  establish  the  prior  convictions  element.   Whether  Judge

Joannides was right or wrong, the double jeopardy clause bars the

State  from  relitigating Howells guilt of felony  driving  while

under the influence.  As the United States Supreme Court declared

in Burks v. United States27:   The Double Jeopardy Clause forbids

a  second  trial  for  the purpose of affording  the  prosecution

another opportunity to supply evidence which it failed to  muster

in the first proceedings.28



          Was the sentence excessive?

          Judge  Joannides  imposed a sentence  of  365  days  to

serve  with none suspended.  This was the maximum term the  court

could impose for a class A misdemeanor.  Howell claims that  this

sentence  is  excessive because Judge Joannides did  not  make  a

worst-offender finding, and because the record would not  support

such a finding.

          Generally,   a  maximum  sentence  cannot  be   imposed

without  some  foundation for characterizing a defendant  as  the

worst  type of offender.29  A worst-offender finding may be based

on  the  facts  and  circumstances surrounding the  offense,  the

defendants criminal history, or both.30

          Although  the State concedes that Judge Joannides  made

no  explicit  worst-offender finding,  the  State  contends  that

Howells sentence is not excessive.  The State points out that  an

express  worst-offender finding is not required  when  the  trial

court implicitly found that the defendant was a worst offender.31

The  State also argues that when the trial court finds  that  the

defendant actually committed a more serious offense, that finding

will  support  a  worst-offender finding and  justify  a  maximum

sentence.32

          Here,  the sentencing record shows that Judge Joannides

was  aware  that Howell had at least three prior convictions  for

driving  while  under  the  influence.   Because  two  of   those

convictions had occurred after 1996, he had in fact committed the

          more serious offense of felony driving while under the influence

even  though  Judge Joannides had ruled that the  State  had  not

presented sufficient evidence to prove that element at trial.  At

sentencing, the State claimed that it had learned that Howell had

an  additional prior driving while under the influence conviction

from  Pennsylvania.   Because Howell did not concede  this  prior

conviction, the State requested a continuance to prove the  prior

conviction.  But Howells attorney pointed out that he had been in

custody pending trial for so long that Howell was willing to take

a  flat  sentence of whatever length the court wants  to  impose.

Judge  Joannides   proceeded  with sentencing  without  resolving

whether  Howell  had  a prior driving while under  the  influence

conviction in Pennsylvania.

          We  have reviewed Judge Joannidess sentencing comments.

Although  it  is possible that she concluded that  Howell  was  a

worst  offender,  we  are  not able to say  that  her  sentencing

remarks  reflect that finding.  Ordinarily, we would  remand  the

case  for additional findings on that question, or vacate Howells

sentence and remand for re-sentencing.  However, we conclude that

the  issue is moot in this case because Howell has already served

a  365-day sentence.  Thus, a reduction of the sentence specified

in his written judgment would not help him.

          Finally,  both  the State and Howell agree  that  Judge

Joannides erred when she imposed a probationary period because no

part  of  Howells sentence or fine was suspended.   Both  parties

acknowledge  that the probationary period should be vacated.   We

agree.

          In  Kelly v. State,33 we explained that [w]hen a  court

sentences  a defendant to serve a probationary period, the  court

must  suspend  a portion of the sentence or else the probationary

term  is  meaningless.34  Here, no portion of  Howells  sentence,

either   the imprisonment or the fine, was suspended.  Therefore,

no  probationary term could be imposed.



          Conclusion

          Howells  probation  is VACATED.  The  judgment  of  the

superior court is AFFIRMED.

_______________________________
     1 AS 28.35.030.

     2 AS 28.35.030(n).

3 553 P.2d 40 (Alaska 1976).

     4 786 P.2d 918 (Alaska App. 1990).

5  Id.  at  922;  see  also  Rogers-Dwight  v.  State,  899  P.2d
1389, 1391 (Alaska App. 1995); Crauthers v. State, 727 P.2d 9, 11
(Alaska App. 1986).

     6 786 P.2d at 922.

     7 State v. Joubert, 20 P.3d 1115, 1118 (Alaska 2001).

8 Emphasis in original.

     9  See Alaska Criminal Pattern Jury Instruction 28.35.030(a)
Operating (1999).

     10   See State Dept of Public Safety v. Conley, 754 P.2d 232
(Alaska  1988);  Williams v. State, 884  P.2d  167  (Alaska  App.
1994), abrogated on other grounds in State v. Coon, 974 P.2d  386
(Alaska 1999); Lathan v. State, 707 P.2d 941 (Alaska App. 1985).

     11   754 P.2d 232.

     12   Id. at 236.

     13   946 P.2d 894 (Alaska App. 1997).

14     Id.  at  898  (quoting  United  States  v.  Martin   Linen
Supply  Co., 430 U.S. 564, 571, 97 S.Ct. 1349, 1355,  51  L.Ed.2d
642  (1977)).  See also Smith v. Massachusetts, ___ U.S. ___, 125
S.Ct.  1129, 1134, 160 L.Ed.2d 914 (2005) (what matters  is  that
... the judge evaluated the [governments] evidence and determined
that  it  was  legally  insufficient to  sustain  a  conviction.)
(citation  and  quotation marks omitted); State v. Thronsen,  809
P.2d  941, 943 (Alaska App. 1991) ([W]e may not reverse a genuine
verdict   of   acquittal   on  appeal   without   violating   the
constitutional  provisions of the United States  and  the  Alaska
Constitutions  which  prohibit  putting  a  defendant  twice   in
jeopardy.  ...  Where ... the ruling of the judge,  whatever  its
label, actually represents a resolution, correct or not, of  some
or all of the factual elements of the offense charged, the ruling
constitutes   a   judgment  of  acquittal.)  (internal   citation
removed).

     15    Baxley,  946 P.2d at 898 (quoting State v.  Martushev,
846 P.2d 144, 148 (Alaska App. 1993)).

     16   Id.  Compare Selman v. State, 406 P.2d 181, 186 (Alaska
1965),  overruled on other grounds by Whitton v. State, 479  P.2d
302, 312 (Alaska 1970).

     17   See Smith, 112 S.Ct. at 1135.

     18    See  State  v.  Kott, 636 P.2d 622, 623  (Alaska  App.
1981), overruled on other grounds by Kott v. State, 678 P.2d  836
(Alaska  1984)  ([G]enerally  judgments  of  acquittal  are   not
reviewable  on appeal by the state.  Both the state  and  federal
constitutional prohibitions against placing a defendant twice  in
jeopardy insulate him from an appeal from a judgment of acquittal
however erroneous the trial judges view of the facts or the law.)
(emphasis  added  and  internal citation  omitted);  5  Wayne  R.
LaFave,  Jerold H. Israel, and Nancy J. King, Criminal Procedure,
25.1(g) at 648 (2nd ed. 1999) (If ... the judge grants a judgment
of acquittal, double jeopardy bars a new trial even if it appears
that  the  acquittal was based on an erroneous interpretation  of
the law.). See also Martin Linen Supply Co., 430 U.S. at 571,  97
S.Ct. at 1354.

     19   524 U.S. 721, 118 S.Ct. 2246, 141 L.Ed.2d 615 (1998).

20   Id. at 728-29, 118 S.Ct. at 2250-51.

     21   Id. at 728, 118 S.Ct. at 2250.

     22   Id. at 729, 118 S.Ct. at 2251.

     23   Id.  (citations and internal quotation marks omitted).

     24    See  Tallent v. State, 951 P.2d 857, 861 (Alaska  App.
1997)  (holding that a defendants prior theft convictions are  an
element of second-degree theft under AS 11.46.130(a)(6));  Morgan
v. State, 661 P.2d 1102, 1103 (Alaska App. 1983) (holding that  a
defendants  prior  conviction for bootlegging is  an  element  of
felony  bootlegging  under AS 04.16.200(b));  see  also  Mead  v.
State, 445 P.2d 229, 234 (Alaska 1968) (holding that a defendants
prior felony conviction is an element of the offense of felon  in
possession of concealable firearm).

     25    950 P.2d 587 (Alaska App. 1997).

     26   Id. at 590-91.

27   137 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978).

     28   Id. at 11, 98 S.Ct. at 2147.

     29   State v. Wortham, 537 P.2d 1117, 1120 (Alaska 1975).

     30    Id.; Napayonak v. State, 793 P.2d 1059-62 (Alaska App.
1990).

     31   See Napayonak, 793 P.2d at 1062.

     32    See  Fee  v. State, 656 P.2d 1202, 1204  (Alaska  App.
1982).

     33   842 P.2d 612 (Alaska App. 1992).

     34   Id. at 613.