Gary Howard JACOBSON, Appellant, v. STATE of Alaska, Appellee.
No. 2478
Supreme Court of Alaska
July 2, 1976
551 P.2d 935
RABINOWITZ, Justice.
I dissent. In my view, there was no evidence submitted by appellant in opposition to the Motion for Summary Judgment which would support a theory of oral contract. As to that theory, a grant of summary judgment was proper, and consequently the decision of the superior court should, to that extent, be affirmed. Ransom v. Haner, 362 P.2d 282 (Alaska 1961).
However, it is evident from the record in this case that appellant Howarth advanced an alternative theory of contractual liability, based upon the terms of the written assignment as they were understood by the parties. In my view there was sufficient evidence presented by Howarth to raise a genuine issue of material fact as to whether such a contract was created and, if so, whether it obligated the bank to obtain insurance protecting the property in question. Thus, appellant should be allowed to proceed on this theory in the superior court, since the statute of limitations does not bar such a theory.
David Mannheimer and Harry L. Davis, Asst. Dist. Attys., Fairbanks and Avrum M. Gross, Atty. Gen., Juneau, for appellee.
Before BOOCHEVER, Chief Justice, and RABINOWITZ, CONNOR, ERWIN and BURKE, Justices.
OPINION
RABINOWITZ, Justice.
Gary Jacobson was charged with the crime of operating a motor vehicle while under the influence of intoxicating liquor. After trial by jury in the district court, Jacobson was found guilty and sentenced to imprisonment for a period of 120 days and fined $1,000.1 Jacobson then appealed to the superior court, which affirmed his district court conviction. The instant ap
At approximately 2 a. m. on the morning of November 18, 1973, Alaska State Trooper Robin Lown noticed a vehicle parked on the edge of Davis Road in Fairbanks. Two wheels of the vehicle were on and two wheels were off the pavement of Davis Road. The engine and heater of the parked vehicle were running, the lights were off, and Jacobson was observed sound asleep on the front seat, his head and shoulders on the passenger side and his feet and legs below the steering wheel.2
Trooper Lown woke Jacobson and asked him for his driver‘s license and vehicle registration. Detecting an odor of alcohol, Lown asked Jacobson to step outside the vehicle and perform certain field sobriety tests; the results of these tests led Trooper Lown to conclude that Jacobson was under the influence of intoxicating liquor. Jacobson was then placed under arrest for violation of
The primary issue in this appeal concerns the question of what the phrase “operates” means as used in
A person who, while under the influence of intoxicating liquor . . . operates or drives an automobile . . . in the state upon conviction is punishable by a fine of not more than $1,000, or by imprisonment for not more than one year, or by both.
In his fourth specification of error, appellant alleges that the district court erred in holding, as a matter of law, that he had operated a motor vehicle. Although
Appellee argues that of the essentially three types of drunk driving statutes, namely, those which prohibit “driving” while intoxicated; those which ban “operating” a vehicle while intoxicated; and those which “forbid a person to be in charge (or control) of a vehicle while intoxicated,” Alaska‘s statute falls in that class of statutes where mere exclusive control of a stationary vehicle while intoxicated is a crime. In support of its argument that
In the traffic regulations and in
AS 28.35.030 . . . “operator” means a person who drives or is in actual physical control of a vehicle or who is exercising control over or steering a vehicle being towed by a motor vehicle.4
An intoxicated person seated behind the steering wheel of a motor vehicle is a threat to the safety and welfare of the public. The danger is less than that involved when the vehicle is actually moving, but it does exist. While at the precise moment defendant was apprehended he may have been exercising no conscious volition with regard to the vehicle, still there is a legitimate inference to be drawn that the defendant had of its own choice placed himself behind the wheel thereof, and had either started the motor or permitted it to run. He therefore had the “actual physical control” of that vehicle, even though the manner in which such control was exercised resulted in the vehicle‘s remaining motionless at the time of his apprehension.5
See also Nicolls v. Commonwealth, 212 Va. 257, 184 S.E.2d 9 (1971); State v. Pritchett, 173 A.2d 886 (Del.Super.1961); State v. Ruona, 133 Mont. 243, 321 P.2d 615 (1958).6 We therefore conclude on the basis of the foregoing that
Our construction of
Jacobson‘s second basic contention is that the district court erred in denying his motion to suppress, (which was grounded upon the theories that the state trooper lacked probable cause to arrest him and that there was no crime being committed in the officer‘s presence).
In his third specification of error, Jacobson argues that the district court erred in denying his motion for judgment of acquittal.10 District Judge Miller, in denying the motion, stated in part, “It‘s my ruling that as a matter of law, to be in an automobile with the motor running, alone, is enough to come under the operating language of the statute.” In light of our reading of
Appellant Jacobson next states that the superior court committed reversible error when it denied his requested instruction concerning circumstantial evidence. Jacobson‘s requested instruction read, in part, as follows:
You are not permitted upon circumstantial evidence alone or when the case of the prosecution rests substantially on circumstantial evidence, to find the Defendant guilty of a crime charged unless the proven circumstances not only are consistent with the hypothesis that a Defendant is guilty of the crime charged but also the proven circumstances exclude every reasonable hypothesis except that of guilt.12
In its instructions to the jury the district court advised that before a verdict of guilty could be returned the jury must find beyond a reasonable doubt Jacobson was under the influence of alcohol to such an extent that his ability to operate the vehicle was appreciably impaired. Reasonable doubt was defined as “. . . the kind of doubt which would make you hesitate to act in serious and important aspects of your own affairs.” Regarding circumstantial evidence, the jurors were instructed that “The law makes no distinction between circumstantial evidence and direct evidence as to the degree of proof required for conviction, but respects each for such convincing force as it may carry and accepts each as a reasonable method of proof.”
In light of the district court‘s instructions which we have alluded to, we are of the view that no error was committed by the trial court in refusing to give Jacobson‘s requested circumstantial evidence instruction. Appellant‘s requested instruction was based on Jennings v. State, 404 P.2d 652 (Alaska 1965) and Davis v. State, 369 P.2d 879 (Alaska 1962). In Allen v. State, 420 P.2d 465, 468 (Alaska 1965) (footnote omitted), we addressed “. . . the Davis test so far as it requires an instruction to the jury that circumstantial evidence must be of such a nature as to be inconsistent with any other reasonable theory than that of guilt.” We went on to state (footnote omitted), “Such an instruction is unnecessary and may well be confusing and therefore should be dispensed with. Proper instructions on the standards for reasonable doubt should suffice.” Allen was followed by Jordan v. State, 481 P.2d 383, 386 (Alaska 1971). In this later decision, we noted that Davis never actually addressed the issue of jury instructions as such and approved of the Allen decision‘s rejection of the necessity of giving a Davis-type circumstantial evidence instruction. In Jordan we cited Holland v. United States, 348 U.S. 121, 139-40, 75 S.Ct. 127, 137, 99 L.Ed. 150 (1954), where the United States Supreme Court, noting several cases using a Davis-type circumstantial evidence instruction, asserted that “. . . the better rule is that where the jury is properly instructed on the standards for reasonable doubt, such an additional instruction on circumstantial evidence is confusing and incorrect.”13
Appellant also claims that it was error for the district court to prevent counsel, in closing argument, from arguing the state‘s ability to produce better evidence which would tend to show that he was not under the influence of intoxicating liquor.14 More particularly, Jacobson‘s point here is that the state had the ability to make a video tape of him performing field sobriety tests. The record shows that during cross-examination of Trooper Lown the following exchange took place:
Q: Trooper Lown, was there a video tape made of the defendant, to verify the statements you‘re talking about?
A: No.
Q: You didn‘t have—you know, when you took him to the station, there is a video tape camera there, isn‘t there?
A: Yes.
Q: And you could have had him perform the tests that you‘re talking about before a video tape, couldn‘t you?
A: Obviously, if there wasn‘t one made, there was some reason why there wasn‘t. Probably there was no tape available or the machine was broken, because it is a practice that is observed by state troopers that whenever a person is arrested under this charge, a video tape is made, unless there is no tape or the machine is broken.
Q: So there really is no evidence to substantiate your oral statement that he swayed?
A: Other than my statement, no.
Counsel for appellant, in his closing argument started to argue the ability of the state to have video taped his client at the police station.15 The state objected and the district judge ruled that:
The only evidence about that machine was that it was most probably not functioning or that they were out of tape. If you doubted that was true, then you could have subpoenaed the police records, which would have shown what the operation and repair records of the machine were.
We are of the view that the trial court‘s ruling was erroneous in light of the officer‘s testimony on cross-examination. Officer Lown never asserted that he knew the machine to be broken or lacking tape. At most, he tried to explain the lack of tape by speculating that probably there was no tape or the machine was broken because if the machine were operative and had a tape, a tape would have been made. Since by the officer‘s own testimony it was normal practice to make such tapes, counsel‘s argument concerning the reasons for the departure from normal practice was within the range of permissible final argument.16 Further study of the record has convinced us that, given the quality of the state‘s evidence, the error of refusing to allow appellant‘s counsel to argue the lack of videotape to the jury was prejudicial error under the standard of Love v. State, 457 P.2d 622, 630 (Alaska 1969).
Appellant Jacobson also asserts that the evidence was insufficient to support a finding that he was under the influence of intoxicating liquor at the time of the arrest or at the time he operated the motor vehicle.17
In its instruction to the jury, the district court stated that the state had to prove beyond a reasonable doubt that Jacobson did operate a motor vehicle and that at the time he operated the vehicle he was under the influence of alcohol to such an extent that his ability to operate the vehicle was appreciably impaired. The jurors were further instructed that the term “operate” as used in the instructions, “. . . means to start, to cause to function, or work, to put or keep functioning or working.”
Given these instructions and our study of the evidence in the case, we are of the view that fair-minded men in the exercise of reasonable judgment could differ on the question of whether guilt had been established beyond a reasonable doubt and that the case was properly submitted to the jury.18
Reversed and remanded to the superior court with directions to remand to the district court for a new trial.19
BURKE, Justice, with whom ERWIN, Justice, joins, dissenting in part, concurring in part.
I respectfully dissent from that portion of the majority opinion holding that it was reversible error for the trial court to prevent counsel, in closing argument, from attacking the State‘s failure to video tape the defendant following his arrest. Assuming, arguendo, that the court erred at all, I would hold that the error was harmless under the standard of Love v. State, 457 P.2d 622 (Alaska 1969).
Otherwise, I concur.
Notes
This complaint is based on the personal knowledge of the complaining witness, who came upon the Defendant‘s vehicle parked on the side of the road. The Defendant‘s vehicle was idling and the Defendant was found to be laying across the front seat with his torso extending from the driver‘s seat into the passenger‘s seat. The Defendant‘s feet were adjacent to the control pedals of the vehicle. The Defendant was aroused and found to have a moderate odor of alcohol about his breath and person, blood shot and watery eyes, slurred speech and upon exiting the vehicle was found to sway. The Defendant was requested to preform [sic] field sobriety tests which showed him to be unsteady on his feet and uncoordinated [sic] in his movements. Standing at attention the defendant swayed from left to right. He became confused performing the finger to nose test striking his nose with the wrong hand. The Defendant could not maintain balance standing on one foot, nor could he walk heel to toe.
The defendant was administered the Breathalyer Examination, the results indicating .16% blood alcohol.
To express this rule in another way, the circumstantial evidence must be such as to be exclude every reasonable theory consistent with the defendant‘s innocence as to the particular crime charged.
Also, if the evidence is suspectible of two reasonable interpretations, one of which points to the defendant‘s guilt and the other to his innocence, it is your duty to adopt that interpretation which points to the defendant‘s innocence, and reject the other which points to his guilt.