Hudson v. CommonwealthHudson v. Commonwealth
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OPINION OF THE COURT
On Jаnuary 18, 2005, a Montgomery Circuit Court jury convicted Appellant, Emory Hudson, of operating a motor vehicle while under the influence of alcohol (“DUI”), fourth offense,
FACTS.
On June 21, 2004, while operating his police cruiser westbound on Old Owings-villе Road, Mt. Sterling police officer Greg Ball observed an eastbound white Dodge intrepid drift across the center line, forcing Ball and another westbound motorist to swerve off the road to avoid a head-on collision. Although Ball testified at trial that he could not positively identify Appellant as the driver of the аdverse vehicle, he saw only one person in the car. Ball immediately reversed direction, activated his emergency equipment, and pursued the vehicle. Ball testified that as he approached the Dodge, it turned into an apartment complex parking lot and momentarily disappeared frоm view. Ball followed and regained sight of the vehicle as it pulled into a parking space and came to rest.
Appellant’s account of the events differed from Officer Ball’s. At trial, Appellant conceded that he was intoxicated but claimed that another (non-testifying) person had actually driven Appellant to the apartment complex so that Appellant could borrow some money from his grandmother in order to purchase more beer. According to Appellant, the two arrived at the apartment complex, at which point Appellant entered his grandmother’s apartment to use the restroom. He returned to the car after several minutes to find the driver missing. Appellant decided to look inside the Dodge for a cigarette to smoke while he “worked up the nerve” to ask his grandmother to loan him the beer money. Just as he sat down in the driver’s seat, he noticed Officer Ball’s police cruiser come to a halt behind the Dodge.
The only eyewitness testimony offered by the Commonwealth was that of Officer Ball. Appellant presented three witnesses in his defense, including himself. Ray Nester, Appellant’s uncle, testified that Apрellant and several other persons had been at Nester’s residence earlier that same day, drinking beer and socializing. However, because he was inside the house with the blinds closed, napping, while the others were socializing on the porch, Nes-ter could not say exactly who was present or when Aрpellant (or anyone else) arrived or departed. Appellant’s grandmother testified that Appellant entered her apartment at the time in question, used the restroom, hugged her and briefly exchanged pleasantries, then stated his intention to return and exited. She testified that Appellant appearеd sober and did not smell of alcohol.
I. JURY INSTRUCTIONS.
Appellant argues that he was unduly prejudiced by the trial court’s refusal to instruct the jury on alcohol intoxication,
“It shall be the duty of the court to instruct the jury in writing on the law of the case.... ” RCr 9.54(1). Under this rule, “[t]he jury instructions must be complete and the defendant has a right to have every issue of fact raised by the evidence
and material to his defense
submitted to the jury on proper instructions.”
Hayes v. Commonwealth,
870 S.W.2d 786, 788 (Ky.1993) (emphasis added). Appellant conceded that he was intоxicated when he encountered Officer Ball. His “defense” was that a third party, not he, was operating the motor vehicle, and the only offense that he committed was alcohol intoxication — because he was intoxicated in a public place, but not operating a motor vehicle. As such, Apрellant asserts that an instruction on alcohol intoxication was required because that instruction raised an “issue of fact ... material to his defense,”
“A defendant is entitled to an instruction on any lawful defense which he has. Although a lesser included offense is not a defense within the technical meaning of those terms аs used in the penal code, it is, in fact and principle, a defense against the higher charge.”
Slaven v. Commonwealth,
962 S.W.2d 845, 856 (Ky.1997) (citations omitted).
(1) A person is guilty of alcohol intoxication when he appears in a рublic place manifestly under the influence of alcohol to the degree that he may endanger himself or other persons or property, or unreasonably annoy persons in his vicinity.
A person shall not operate or be in physical control of a motor vehicle anywhere in the state:
(a) Having an alcohol concentration of 0.08 or more as measured by a scientifically reliable test or tests of a sample of the person’s breath or blood taken within two (2) hours of cessation of operation or physical control of a motor vehicle;
(b) While under the influence of alcohol;
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Each offense requires proof of at least one element that the other does not,
i.e.,
being manifestly intoxicated in public
1
to the degree that the suspect or others may be endangered (for alcohol intoxication); and being in operation of a motor vehicle while having an alcohol concentration of 0.08 or while under the influence of alcohol (for DUI).
2
As such, neither is a lesser-included offense of the other. “[I]f the lesser
Appellant next asserts that he was entitled to an instruction on alcohol intoxication becausе, though not a lesser-included offense, it is a “lesser” offense that served as a defense to the DUI charge in that a finding of guilt of the former would preclude a finding of guilt of the latter. That, of course, is incorrect. If alcohol intoxication is not a lesser included offense of DUI, then, if properly charged, the jury could find guilt of both. Burge, 947 S.W.2d at 811. Further, the fact that the evidence would support a guilty verdict on a lesser uncharged offense does not entitle a defendant to an instruction on that offense. Kotila v. Commonwealth, 114 S.W.3d 226, 242 n. 3 (Ky.2003), overruled on other grounds by Matheney v. Commonwealth, 191 S.W.3d 599 (Ky.2006).
Appellant relies exclusively on Taylor v. Commonwealth, 995 S.W.2d 355 (Ky.1999), Sanborn v. Commonwealth, 754 S.W.2d 534 (Ky.1988), and Mishler v. Commonwealth, 556 S.W.2d 676 (Ky.1977), for the proposition that a requested instruction is required for “each theory of the case supported by the testimony to any extent,” Appellаnt’s Brief, at 6, regardless of whether it is a lesser-included offense of the crime charged.
Taylor
and
Mishler
are clearly inappo-site, as both involve the erroneous refusal to instruct the jury on a defendant’s statutory defenses to the charged crimes, no matter how improbable under the facts.
Taylor,
995 S.W.2d at 361 (finding error when trial court refused to instruct jury on statutory justification of duress,
Although
Sanborn
does contain language suggesting an instruction on a separate, uncharged, but “lesser” offense is required whenever the evidence could conceivably support the charge, 754 S.W.2d at 550, we note that
Sanborn
is a plurality opinion
3
of limited precedential value. “[A] minority opinion has no binding precedential value ... [and] if a majority of the court agreed on a decision in the case, but less than a majority could agree on the reasoning for that decision, the
“[WJhere there is nо room for any possible theory except that he is guilty ... or he is innocent, there is no reason for the court to instruct on lesser offenses .... ” Commonwealth v. Wolford, 4 S.W.3d 534, 538-39 (Ky.1999) (emphasis added). An instruction on a separate, uncharged, but “lesser” crime — in other words, an alternative theory of the crime— is required only when a guilty verdict as to the alternative crime wоuld amount to a defense to the charged crime, i.e., when being guilty of both crimes is mutually exclusive. This is a subtle distinction that the broad language in Sanborn does not necessarily make. Even in that case, however, the defendant’s proposed instructions were for offenses that would have excluded the charged offenses. As such, we depart from Sanborn to the extent that it requires alternate theory instructions as to uncharged crimes whenever the evidence suggests the existence of such crimes. To do otherwise would allow a criminal appellant to seek reversal of his conviction simply because the trial court failed to instruct as to all the criminal acts he may have committed, regardless of whether the other uncharged crimes have any bearing on guilt as to the charged crimes.
II. CONTINUANCE.
Appellant asserts that it was reversible error for the trial court to deny his motion for a continuance, filed on January 5, 2005, thirteen days prior to trial. “[T]he granting of a continuance is within the sound discretion of the trial court and a conviction will not be reversed for failure to grant a continuance unless that discretion has been plainly abused and manifest injustice has resulted.” Taylor v. Commonwealth, 545 S.W.2d 76, 77 (Ky.1976); see also Williams v. Commonwealth, 644 S.W.2d 335, 336-37 (Ky.1982). Whether a continuance is warranted in a particular case depends upon the pаrticular facts and circumstances of that case. Snodgrass v. Commonwealth, 814 S.W.2d 579, 581 (Ky.1991), overruled on other grounds by Lawson v. Commonwealth, 53 S.W.3d 534 (Ky.2001).
In exercising its discretion, a trial court considers the following factors:
length of delay; previous continuances; inconvenience to litigants, witnesses, counsel and the court; whether the delay is purposeful or is caused by the accused; availability of’ other competent counsel; complexity of the case; and whether denying the continuance will lead to identifiable prejudice.
Snodgrass, 814 S.W.2d at 581. Although no previous continuances were requested or granted, Appellant did not file his motion for a continuance until one day after the “report date” by which аll such motions were required to be filed. 4 Additionally, the case was not complex: the Commonwealth called three witnesses, the arresting officer and two witnesses who testified for the sole purpose of laying the foundation for introducing Appellant’s blood-alcohol test result; Appellant called three witnesses, his uncle, his grandmother, and himself.
In the case sub judice, the affidavit filed with Appellant’s untimely RCr 9.04 motion failed to disclose the materiality of the witnesses or evidence that could be presented if the motion were granted; thus no prejudice was shown. As such, the trial сourt’s decision was not “arbitrary, unreasonable, unfair, or unsupported by sound legal principles,” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.1999), and thus no abuse of discretion occurred.
Accordingly, the judgment of the Montgomery Circuit Court is AFFIRMED.
All concur.
Notes
.
. In actuality, the two offenses share no common elements: DUI under
. Three justices concurred in the opinion, and two justices concurred in result only.
. At Appellant’s arraignment on September 27, 2004, the trial court issued an order that stated, inter alia, “After the report date [January 4, 2005], the Court will not ... continue any cases except for good cause.” Appellant filed his motion to continue on January 5, 2005.