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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
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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
| CHARLES LEE DAVIS, | ) |
| ) Court of Appeals No. A-10405/10521 | |
| Appellant, | ) Trial Court No. 3PA-08-7070 MO |
| ) and 3AN-07-12951 MO | |
| ) | |
| v. | ) O P I N I O N |
| ) | |
| STATE OF ALASKA, | ) No. 2271 July 23, 2010 |
| ) | |
| Appellee. | ) |
| ) | |
Appeals from the
District Court, Third Judicial District,
Palmer, Gregory Heath, Judge, and Third
Judicial District, Anchorage, Ronald
Wielkopolski, Magistrate.
Appearances: Charles Lee Davis, pro se,
Anchorage, for Appellant. W. Michael Perry,
Assistant District Attorney, Palmer, Geoffry
B. Wildridge, Assistant Attorney General,
Fairbanks, and Daniel S. Sullivan, Attorney
General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannh
eimer and Bolger, Judges.
BOLGER, Judge.
In two separate cases, Charles Lee Davis was convicted
for violating the states commercial motor vehicle regulations by
operating a commercial motor vehicle without a valid medical
examiners certificate (Case No. A-10405) and by operating a
commercial motor vehicle that had been placed out of service for
safety violations (Case No. A-10521).1 These cases were
consolidated for consideration and decision.
In both cases, Davis contends that the State lacks the
authority to enforce, or to adopt as state law, the federal
commercial motor vehicle regulations. He also asserts in both
cases that he was not operating a commercial motor vehicle, that
there were discovery violations, and that the traffic stops were
unlawful. In Case No. A-10405, he asserts that the district
court erred when it denied his request to play a videotape during
trial. Finally, in Case No. A-10521, he argues that he was
entitled to a jury trial. We disagree with Davis on all of these
issues.
Background
In Case No. A-10405, on June 16, 2008, Alaska State
Trooper Sergeant Jake Covey stopped Davis because Davis did not
have a license plate on the trailer he was pulling with his semi-
tractor. Among other things, under the states commercial motor
vehicle regulations, people who drive commercial motor vehicles
are required to carry a valid medical examiners certificate.2
When contacted, Davis was unable to produce this certificate.
Consequently, he was given a citation for operating a commercial
motor vehicle without a valid medical examiners certificate. At
a bench trial, District Court Judge Gregory Heath found Davis
guilty of this violation.
In Case No. A-10521, on July 27, 2007, Daviss vehicle
was ordered out of service by Commercial Enforcement Officer
Martin Baston as the result of a routine commercial vehicle
inspection at the Glenn Highway outbound weigh station. Daviss
vehicle, a tractor-trailer combination, was placed out of service
for two reasons. First, because the trailer had an unsecured
load of five-gallon buckets, one of which was ready to fall off
the trailer. Second, because two adjacent tires on the same axle
on the semi-tractor had a tread depth of less than 1/32 of an
inch. Baston explained that under the states regulations, the
tread depth on the tires had to be at least 2/32 of an inch.
Four hours later, Officer Baston contacted Davis again.
Davis had changed only one of the substandard tires. Because he
did not change the other substandard tire, nor adequately secure
the load of buckets, his vehicle was still out of service.
Officer Baston issued a citation for operating a commercial motor
vehicle that had been placed out of service. At a trial before
Magistrate Ronald Wielkopolski, he was found guilty of this
violation.
Discussion
The State is enforcing state regulations, not federal
regulations
Davis asserts in both of these cases that the State has
no authority to enforce the federal law regulating commercial
motor vehicles. But the State is enforcing state regulations,
not federal. The Alaska Legislature directed the State
Department of Transportation to adopt regulations under AS 44.62
(the Administrative Procedure Act) that are necessary to
implement requirements imposed by federal statute or regulation
that relate to commercial motor vehicles and that are necessary
to avoid loss or withholding of federal highway money.3 Based on
this authority, the Department adopted as state law various
portions of Title 49 of the Code of Federal Regulations.
Consequently, the adopted portions of the federal regulations are
now state law and are enforced by various state agencies. Among
the regulations adopted as state law are the regulations Davis
violated 17 AAC 25.210(a)(5) and (b)(5) (medical certificate
required) and 17 AAC 25.210(a)(8) (moving out of service vehicle
before repair completed).
Regulations enacted by state agencies are presumptively
valid, and the burden of proving invalidity is on the party
challenging the regulations.4 Generally speaking, regulations
promulgated by an executive department must be authorized by
statute.5 Also, a regulation must be consistent with and
reasonably necessary to carry out the purpose of the authorizing
statute.6 A regulation is consistent with a statute if it has a
reasonable relation to statutory objectives.7
Here, AS 19.10.060(c) specifically directs the
Department to adopt regulations necessary to implement
requirements imposed by federal statutes or regulations relating
to commercial motor vehicles. By expressly adopting the
pertinent portions of the federal regulations and revising them
as necessary to apply them to Alaska roadways, the Department
acted consistently with its statutory authority and the
legislatures objective.8
We conclude that Davis has not shown that the State
lacked the authority to adopt and enforce commercial motor
vehicle regulations patterned on the corresponding federal
regulations, nor has he shown that the states commercial motor
vehicle regulations are unconstitutional or otherwise invalid.
Davis was driving a commercial motor vehicle
In Case No. A-10405, Davis contends that the vehicle he
was driving did not fall under the definitions of commercial
motor vehicle and commercial purpose and that [n]ot one shred of
evidence was presented that [he] was involved in using a
commercial motor vehicle for commercial purposes. Meanwhile, in
Case A-10521, he asserts that he was not operating a commercial
motor vehicle in commerce as that term is defined by federal
statute; that is, he contends that he was not operating a vehicle
in interstate commerce.9 He also contends that he was not
operating a commercial vehicle because he was not getting paid to
haul property.
Under the state regulations that Davis violated, a
commercial motor vehicle is (1) a self-propelled or towed vehicle
... used to transport passengers or property for commercial
purposes, (2) used upon a highway or vehicular way, and (3) that
has a gross vehicle weight rating or gross combination weight
rating greater than 10,000 pounds.10 The phrase commercial
purposes means activities for which a person receives direct
monetary compensation or activities for which a person receives
no direct monetary compensation but that are incidental to and
done in furtherance of the persons business.11 Under this
statute, the only tractor-trailer combinations exempted are those
used exclusively for purposes other than commercial purposes.12
Sufficiency of the evidence
As just explained, in Case No. A-10405, Davis asserts
that he was outside of the definitions of commercial motor
vehicle and commercial purposes, and that there was no evidence
that his tractor-trailer combination was a commercial motor
vehicle used for commercial purposes.
When a person challenges the sufficiency of the
evidence supporting a conviction, this court must view the record
in the light most favorable to upholding the verdict.13
Viewing the evidence in this fashion, the record shows
that Alaska State Trooper Covey saw Davis driving a semi-tractor
pulling a trailer that was not properly registered. Sergeant
Covey testified that based on his experience, Daviss tractor-
trailer combination met the weight standard for commercial motor
vehicles, and that the trailer was carrying a full load of dirt.
After Coveys testimony, Officer Baston testified that
Davis operated his vehicle under the name of Davis Transport,
had a state business license under the name of Davis Transport,
and that the semi-tractor was registered to Davis. Baston said
that it was not unusual for drivers to subcontract their services
and trucks to other companies. Baston further testified that,
based on receipts from the scale house at a local sand and gravel
company, Davis was hauling rock and gravel for two projects, and
so he was in business for purposes of commercial motor vehicle
enforcement.
Baston explained that scale tickets are used to record
how much product a driver was transporting, and the scale tickets
showed that Daviss truck had been used to transport material for
an excavating company. Davis had been hauling, as recently as
November 2008, up to 50,000 pounds for the projects. There were
approximately fifty pages of these scale house tickets. The
scale tickets were signed Chuck (Daviss first name is Charles).
For his part, Davis testified that he was not operating
a commercial motor vehicle hired for monetary compensation. But
he admitted that he was hauling multiple loads of dirt from a
friends place in his trailer and taking it to another friend who
needed it for landscaping. Davis also testified that he had no
occupation, but admitted that he would get compensation for [his]
labor.
Davis asserted that he only worked intrastate as
opposed to interstate. He argued that the federal regulations
applied only to those driving commercial motor vehicles in
interstate commerce and his case involved intrastate commerce.
But Davis was cited for violating a state regulation
that expressly applies to both interstate and intrastate
commerce: A person may not drive a [commercial] motor vehicle in
interstate or intrastate commerce unless the person ... has in
the persons actual possession the original [or a copy of a]
medical examiners certificate that the person is physically
qualified to drive a motor vehicle.14
The definition of commercial purposes is broad enough
to include Daviss work even though he claimed he did not receive
money compensation for his services. As explained earlier,
commercial purposes includes activities for which a person
receives no direct monetary compensation but that are incidental
to and done in furtherance of the persons business.15 Davis
presented no evidence that his vehicle was exempt from the state
regulations because it was used exclusively for non-commercial
purposes.
Viewing this evidence in the light most favorable to
upholding the verdict, we conclude that the evidence shows that
Davis was operating a commercial motor vehicle.
To the extent that Davis meant to raise a claim
involving statutory interpretation, he has not presented any
evidence suggesting that the legislature intended to exempt from
the definition of commercial motor vehicle vehicles like his that
are used occasionally, as opposed to exclusively, for non-
commercial purposes. Under AS 19.10.399(1)(D), semi-tractors and
trailers like Daviss are exempt from the commercial motor vehicle
regulations only if they are used exclusively for purposes other
than commercial purposes. Based on this, it is reasonable to
conclude that the legislature intended that even vehicles used
only occasionally for commercial purposes are still subject to
the states commercial motor vehicle regulations.
Similarly, in Case No. A-10521, Davis argues that he
could not be guilty of operating a commercial motor vehicle that
had been placed out of service because he was not subject to
federal regulations. He also claims that he was not paid for
hauling the property.
But Daviss vehicle was placed out of service based on
state regulations,16 and he was convicted of violating a state
regulation that provides that no person may operate a motor
vehicle declared out of service until all repairs have been
satisfactorily completed.17 In addition, state regulations define
a commercial motor vehicle as one used upon a state highway or
vehicular way.18
At trial, the evidence showed that early in the morning
on July 27, 2007, Daviss vehicle was placed out of service
because of an unsecured load and because of two adjacent unsafe
tires. He was stopped later in the morning because he was
driving the vehicle but had not completely corrected the out-of-
service violations.
When Davis testified, he described himself as a
professional driver who had hauled all types of cargo, some
upwards of 200,000 pounds on his trailer. He admitted that on
July 27, he was hauling used oil in buckets for a friend. He
also admitted that in addition to the buckets, he was hauling
another persons generator to a friends house. There was
testimony that Davis had a business license and operated as Davis
Transport, but he asserted that he was not subject to the
commercial motor vehicles regulations because the friends were
not paying him money for hauling these items.
Although Davis argues that he was not paid money for
hauling other peoples property, the evidence supports Magistrate
Wielkopolskis conclusion that Daviss vehicle fell under the
commercial motor vehicle regulations. Those regulations do not
depend upon whether an operator receives actual monetary
compensation for hauling property, and the regulations include
vehicles that are used for activities ... that are incidental to
and done in furtherance of the persons business.19 Here, Davis
was using his tractor-trailer to haul property belonging to
another person or persons. Even if Davis did not receive
monetary compensation for this activity, Magistrate Wielkopolski
could reasonably conclude that Davis was engaged in activities
that were incidental to and done in furtherance of his business.
Finally, as previously discussed, under AS
19.10.399(1)(D)(v), only semi-tractor-trailers like Daviss that
are used exclusively for purposes other than commercial purposes
would be exempt from the commercial motor vehicle regulations.
Here, Magistrate Wielkopolski could find that Daviss vehicle did
not fall under this exemption. Viewing the evidence in
the light most favorable to upholding the verdict, we conclude
that the evidence shows that Davis was operating a commercial
motor vehicle.
In a related claim, Davis asserts that Magistrate
Wielkopolski erred by not finding that Baston committed perjury
at trial when he testified that some of the buckets Davis was
hauling were unsecured. Davis points out that he showed the
magistrate a photograph and also testified that the buckets could
not have been positioned the way that Baston claimed. But when a
magistrate sits as the fact finder, it is the province of the
magistrate to judge the credibility of the witnesses.20 Here,
Magistrate Wielkopolski credited the States witnesses when he
found that a number of five gallon pails were inadequately
secured from moving forward, back or up and down.
In summary, we conclude that there was sufficient
evidence to sustain both convictions.
Discovery and evidentiary issues
In both cases, Davis makes cursory single-sentence
claims that the State failed to provide him with exculpatory
evidence. Davis generally does not identify what evidence the
State withheld. Davis does identify the videotapes related to
each traffic stop. But he does not explain how the videotapes
would have been exculpatory or how he was prejudiced.
In both cases, it appears that Davis did not know of
the videotapes until trial. He pointed out this lack of notice
during each trial, but he did not ask for a continuance or show
how the lack of notice prejudiced him.
In Case No. A-10405, Judge Heath initially, over Daviss
objection, allowed the State to play a portion of a videotape
showing the traffic stop, then later reversed his decision.
Davis also sought to introduce the videotape, but Judge Heath
denied the request, ultimately ruling that the evidence Davis
wanted to admit was irrelevant.
On appeal, Davis claims that the videotape would have
shown that Covey had made threats and would have also included
the audio of Davis talking [to] a friend on a cell phone during
the traffic stop. But Davis does not explain how this evidence
would have been relevant, let alone exculpatory. Even an
expansive reading of his claims of error does not show any that
involve threats made by Covey. Nor does Davis expressly explain
what relevant evidence the tape would have shown regarding the
phone conversation he had with his friend during the traffic
stop.
That said, it appears that Davis believed that the
videotape would show that he had a cell phone conversation,
conducted on the cells speaker phone, during which a friend of
his told the troopers who stopped Davis that they lacked the
authority to enforce the federal regulations.
But as Judge Heath recognized, this evidence was not
relevant to Daviss case. The trooper was not enforcing federal
regulations, he was enforcing state regulations. The evidence
Davis wanted to introduce had no impact on the troopers ability
to enforce state law. Davis has not shown that the State failed
to turn over exculpatory evidence or that Judge Heath erred by
excluding the videotape.
During trial in Case No. A-10521, Davis told Magistrate
Wielkopolski that he had asked the State to provide him with
various cooperative agreements between the State and the federal
government because he wanted to know how much the federal
government paid the State for each inspection. He argued that
this evidence would show that the State had an ulterior motive
for conducting inspections.
But Davis apparently sought this information by filing
a freedom of information request for the cooperative agreements,
and at trial it was not clear where he had filed those requests.
Magistrate Wielkopolski explained that a freedom of information
request was not a motion to compel discovery. During this
discussion with the magistrate, Davis did not show that he had
actually served a discovery request on the State for this
information. Nor did he ask for more time to do so.
Davis also told the magistrate that he had asked the
State for exculpatory evidence but that none had been provided.
He did not identify at trial the evidence he was referring to,
nor does he provide much explanation on appeal.
That said, at page 17 of his brief, he cites to page 53
of the trial transcript, where he asked Baston about a videotape
that Baston referred to during his testimony. This tape
apparently showed that Davis had only changed one of his unsafe
tires. Davis asked if Baston had preserved the videotape, and
Baston replied that the videotape only lasted 24 hours
(presumably because it is reused constantly at the weigh
station).
But Davis did not then ask for any relief, or explain
how he had been prejudiced by the absence of this videotape at
trial. He did not claim that the tape would show that he had
changed both of the unsafe tires. Rather, Davis admitted at
trial that he had only changed one of the unsafe tires. His
defense was that he had changed only one tire because according
to Davis Baston had said that was all he had to do to fix the
deficiency.
Davis has not shown that the State failed to turn over
exculpatory evidence, nor has he shown that he was prejudiced in
any way.
Davis was not entitled to a jury trial
In Case No. A-10521, Davis claims that he was entitled
to a jury trial because he risked losing his commercial drivers
license. But Davis has not shown that the magistrate had any
authority to take any action against Daviss commercial drivers
license. In this case, Davis was convicted of violating 17 AAC
25.210(a)(8), a regulation that was adopted under AS
19.10.060(c). Under AS 45.75.380(a)(11), a violation of a
regulation adopted under AS 19.10.060 is a violation, subject
solely to a $500 fine.21 Under the pertinent penalty statute
there is no provision for incarceration or for the loss of a
valuable license.22
The Alaska Supreme Court has held that a defendant is
entitled to a jury trial when the conviction can result in the
loss of a valuable license.23 But the supreme court has also
explained that there is no right to a jury trial for relatively
innocuous offenses as wrongful parking of motor vehicles [and]
minor traffic violations.24 Under District Court Criminal Rule 8,
Daviss case involved a minor offense.25 That is, his offense was
one that was classified by statute as an infraction or a
violation;26 or an offense under statute for which a conviction
cannot result in incarceration, a fine greater than $500, or the
loss of a valuable license;27 or an offense for which a bail
forfeiture amount has been authorized by statute and established
by supreme court order.28
Although Magistrate Wielkopolski did not, and could
not, take any action against Daviss commercial drivers license,
an administrative agency suspended Daviss license based on his
conviction for driving a commercial motor vehicle that had been
placed out of service.29 The Alaska Supreme Court addressed this
situation in Baker v. City of Fairbanks, 30 where it explained
that the right to a jury trial would apply only to criminal
prosecutions, not to administrative proceedings.31 The supreme
court noted that the right to a jury trial did not extend to
administrative proceedings because an agencys decision to suspend
or revoke a license is focused on whether the individual is fit
to drive, not whether the person has committed a crime.32
We relied on Baker in State v. District Court when we
held that a person is entitled to a jury trial when the law
requires the court, as opposed to an agency, to suspend or revoke
a persons license upon conviction of certain offenses.33 Here,
Davis has not identified any statute that requires a court to
suspend or revoke a commercial drivers license if the driver is
convicted of violating 17 AAC 25.210.34
Because Magistrate Wielkopolski had no authority to
take or limit Daviss commercial drivers license, Davis was
properly tried in the district court under the procedures
established in Rule 8. Davis was not entitled to a jury trial.
In a related claim, Davis asserts in Case No. A-10521
that Magistrate Wielkopolski did not have subject matter
jurisdiction over the Alaska Administrative Code. But Davis was
charged with a minor offense as defined in District Court
Criminal Rule 8, and the legislature has authorized magistrates
to preside over cases involving minor offenses.35 Accordingly,
the district court had jurisdiction over Daviss offense, and the
magistrate had the authority to preside over Daviss trial.
Other claims
Davis contends that the traffic stops in both cases
were unlawful. But he did not raise these claims in the district
court and so has not preserved them for appeal.36
Daviss briefs and their attachments are sometimes
difficult to understand, and he may have intended to raise other
claims in addition to those we have discussed here. To the
extent that Davis attempted to raise other claims in his briefs,
we conclude that these claims are inadequately briefed.37
Conclusion
We therefore AFFIRM the district court judgments.
In the Court of Appeals of the State of Alaska
Charles Lee Davis, )
) Court of Appeals Nos. A
-10405/10521
Appellant,)
v. ) Order
)
State of Alaska, )
)
Appellee. ) Date of
Order: 7/23/2010
Trial Court Case #s 3AN-07-12951MO and
3PA-08-07070MO
Before: Coats, Chief Judge, and Mannheimer and Bolger,
Judges.
On consideration of the states motion to publish filed on
6/24/2010 and the opposition filed on 7/2/2010,
It is Ordered: the motion to publish is Granted. Memorandum
Opinion and Judgment No. 5595, issued on 5/26/ 2010, is withdrawn
and Opinion No 2271 is issued in its place.
Entered at the direction of the court.
Clerk of the Appellate Courts
Lori A. Wade, Chief Deputy
Clerk
cc: Court of Appeals Judges
Judge Gregory Heath
Magistrate Ronald Wielkopolski
Central Staff
Trial Court Appeals
Other Publishers
Distribution:
W. Michael Perry
Assistant District
Attorney
11921 Palmer Wasilla Hwy
Suite 100
Palmer AK 99645
Charles Davis
6300 OMalley Road
Anchorage AK 99507
_______________________________
1 17 Alaska Administrative Code (AAC) 25.210(a)(5) & (b)(5)
and 17 AAC 25.210(a)(8).
2 17 AAC 25.210(a)(5) & (b)(5).
3 AS 19.10.060(c).
4 State v. Alyeska Pipeline Serv. Co., 723 P.2d 76, 78
(Alaska 1986).
5 See AS 44.62.020 (To be effective, each regulation adopted
must be within the scope of authority conferred and in accordance
with standards prescribed by ... law.).
6 AS 44.62.030.
7 Rollins v. State, Dept. of Rev., 991 P.2d 202, 207 (Alaska
1999).
8 See Alyeska Pipeline Serv. Co., 723 P.2d at 78 (The state
has a statutory duty to control the state highway system, AS
19.05.010, AS 19.05.030(1), and is authorized to promulgate
necessary regulations, AS 19.05.020.).
9 See 49 U.S.C. 31301(2) (Commerce means trade, traffic,
and transportation:
(A) in the jurisdiction of the United States between a place in
a State and a place outside that State (including a place outside
the United States); or (B) in the United States that affects
trade, traffic, and transportation described in subclause (A) of
this clause.).
10 AS 19.10.399(1)(A) (C)(i). 17 AAC 25.250(1) adopts this
definition by reference.
11 AS 19.10.399(2).
12 AS 19.10.399(1)(D)(v) (emphasis added).
13 Ross v. State, 586 P.2d 616, 618 (Alaska 1978); Beck v.
State, 408 P.2d 996, 997 (Alaska 1965).
14 17 AAC 25.210(b)(5).
15 AS 19.10.399(2).
16 17 AAC 25.210(a)(7) (adopting 49 CFR 393.75(c) (requiring
non-front tires to have a minimum tread of 2/32 of an inch) and
49 CFR 393.106(b) (requiring cargo be firmly immobilized or
secured)).
17 17 AAC 25.210(a)(8) (adopting 49 CFR 396.9). See 17 AAC
25.240(c).
18 AS 19.10.399(1), (7), (13).
19 AS 19.10.399(2).
20 Gilley v. City of Anchorage, 376 P.2d 484, 484 (Alaska
1962).
21 See AS 12.55.035(b)(7).
22 AS 12.55.035(b)(7); AS 45.75.380(a).
23 Baker v. City of Fairbanks, 471 P.2d 386, 402 (Alaska
1970).
24 Id.
25 See District Court Criminal Rule 8, which defines and
governs the procedure in cases involving minor offenses.
26 Alaska Dist. Ct. R. Crim. P. 8(b)(1).
27 Alaska Dist. Ct. R. Crim. P. 8(b)(5).
28 Alaska Dist. Ct. R. Crim. P. 8(b)(2). See Alaska
Administrative Rule 43.1, establishing the Traffic Bail
Forfeiture Schedule and listing the offense of operation of out
of service vehicle as a violation appropriate for disposition
without court appearance. This particular offense has a bail
forfeiture amount of $300.
29 AS 28.33.140(a)(6).
30 471 P.2d 386.
31 Id. at 402.
32 Baker, 471 P.2d at 402 n.28; see also Alaska Bd.of Fish
and Game v. Loesche, 537 P.2d 1122, 1125 (Alaska 1975) (loss of
license to guide hunts); In re Cornelius, 520 P.2d 76, 83 (Alaska
1974) (loss of license to practice law).
33 State v. District Court, 927 P.2d 1295, 1296-97 (Alaska
App. 1996) (discussing Baker).
34 Cf., AS 28.15.181 and 28.15.185 (both requiring trial
courts to revoke drivers licenses after drivers are convicted of
certain offenses).
35 AS 22.15.120(a)(7), (c); see also AS 22.15.010
(establishing district courts) and Alaska Const., art. IV, 1
(The judicial power of the State is vested in a supreme court, a
superior court, and the courts established by the legislature.).
36 See Mahan v. State, 51 P.3d 962, 965-66 (Alaska App.
2002).
37 See Petersen v. Mutual Life Ins. Co. of New York, 803 P.2d
406, 410 (Alaska 1990) (issues that are only cursorily briefed
are deemed abandoned); Wilkerson v. Alaska Dept of Health and
Soc. Servs., 993 P.2d 1018, 1021-22 (Alaska 1999) (the fact that
a litigant is appearing pro se does not relieve the litigant of
the obligation to brief the issues they have raised).
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