Opinion
NO. 2018-CA-001082-MR
03-13-2020
RICHARD DOUGLAS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Robert C. Yang Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Frankfort, Kentucky James C. Shackelford Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MARION CIRCUIT COURT
HONORABLE SAMUEL TODD SPALDING, JUDGE
ACTION NO. 17-CR-00208 OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, GOODWINE, AND TAYLOR, JUDGES. TAYLOR, JUDGE: Richard Douglas brings this appeal from a June 21, 2018, final judgment of the Marion Circuit Court adjudicating him guilty of myriad offenses and sentencing him to fifteen-years' imprisonment. We affirm.
The events leading to Douglas's arrest occurred on the evening of October 9, 2017. Michael Shively, his girlfriend, and his girlfriend's three-year-old daughter were in Shively's truck. Shively was driving his truck in his father's yard to hook up a trailer parked there. Shively's truck was just a few feet from the highway when a vehicle driven by Douglas came around a nearby curve at a high rate of speed. The vehicle crossed the centerline, crossed the opposite lane of the highway, and sideswiped Shively's truck in the yard. Douglas did not stop after hitting Shively's truck. Shively then got out of his truck and into his father's truck, and the two pursued Douglas. Shively's mother, his girlfriend, and her daughter also pursued Douglas in another vehicle.
During the pursuit, Shively called 911 and alerted police. As they followed Douglas, the vehicle he was driving was swerving on the road and sideswiped an oncoming vehicle. Shively's mother attempted to force Douglas to stop the vehicle by getting her car in front of him, but her attempt failed. Shively's girlfriend attempted to wave Douglas down, but he nearly ran over her. Douglas eventually pulled into a trailer park in Lebanon and stopped the vehicle. Douglas exited the vehicle and started to run away but stopped when Shively told him to do so. Shortly thereafter, police arrived on the scene.
On December 21, 2017, Douglas was indicted upon the following offenses: DUI, fourth offense; theft of a registration plate; five counts of first-degree wanton endangerment; leaving the scene of an accident; failure of non-owner operator to maintain required insurance; operating on a suspended or revoked operator's license; no/expired registration plate; no/expired registration receipt; open alcohol beverage container in a vehicle; reckless driving; and first-degree persistent felony offender (PFO I). Following a jury trial, Douglas was found guilty of operating a motor vehicle under the influence of alcohol/drugs (DUI), fourth offense; three counts of second-degree wanton endangerment; leaving the scene of an accident; no insurance; operating a motor vehicle on a suspended license; and PFO I. By final judgment entered June 21, 2018, the trial court sentenced Douglas to a total of fifteen-years' imprisonment. This appeal follows.
Douglas contends the trial court erred by failing to direct a verdict of acquittal upon the offense of operating a motor vehicle under the influence of alcohol and/or drugs. More particularly, Douglas asserts it was unreasonable for a jury to convict him of DUI as there was insufficient evidence to support a guilty verdict.
When ruling upon a directed verdict of acquittal, the trial court is instructed to:
[D]raw all fair and reasonable inferences from the evidence in favor of the Commonwealth. If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given. For the purpose of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserving to the jury questions as to the credibility and weight to be given to such testimony.
On appellate review, the test of a directed verdict is, if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt, only then the defendant is entitled to a directed verdict of acquittal.Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991).
The elements necessary for a conviction upon DUI are set forth in Kentucky Revised Statutes (KRS) 189A.010, in relevant part, as follows:
(1) A person shall not operate or be in physical control of a motor vehicle anywhere in this state:
KRS 189A.010(1)(b), (c), and (e).. . . .
(b) While under the influence of alcohol;
(c) While under the influence of any other substance or combination of substances which impairs one's driving ability;
. . . .
(e) While under the combined influence of alcohol and any other substance which impairs one's driving ability[.]
The evidence presented at trial demonstrated that Douglas was recklessly and erratically driving his vehicle prior to his arrest. While driving the vehicle, Douglas crossed the centerline, crossed over into the oncoming lane of the highway, and sideswiped Shively's truck, located on the shoulder of the highway. The evidence further demonstrated that after hitting Shively's truck, Douglas continued driving in an erratic manner, continued swerving all over the road, and then sideswiped another vehicle traveling in the oncoming lane of traffic. There was also testimony presented that Douglas's eyes were bloodshot, his speech was slurred, he failed three field sobriety tests, and he refused to consent to an alcohol intoxilyzer test at the time of his arrest. Douglas also admitted to police that he had consumed methamphetamine, heroin, and alcohol that day. There was also evidence presented that Douglas was belligerent and combative at the jail after his arrest. He repeatedly kicked the doors of the holding cell and put his belt around his neck and attempted to strangle himself. Based upon review of the evidence presented and drawing all fair and reasonable inferences in favor of the Commonwealth, we believe there was sufficient evidence for a juror to reasonably believe that Douglas drove while under the influence of alcohol and/or another substance that impaired his driving ability. Consequently, we are of the opinion that there was sufficient evidence presented to survive Douglas's motion for a directed verdict of acquittal upon the DUI charge. Thus, the issue was properly presented to the jury for determination.
Douglas's next argument on appeal is that the trial court erred because the jury instruction upon DUI violated his right to a unanimous jury verdict. Douglas specifically asserts the jury instruction violated the unanimity requirement of the Kentucky Constitution § 7, as the instruction presented the jury with two alternative theories of guilt. Douglas argues the jury instruction erroneously failed to require the jury to find which substance (alcohol, methamphetamine, or heroin) impaired his ability to drive. Douglas acknowledges this issue was not properly preserved below and requests review under the palpable error standard of Kentucky Rules of Criminal Procedure (RCr) 10.26. Pursuant to RCr 10.26, a palpable error occurs if a defendant's substantial rights were affected and a manifest injustice occurred. Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006).
Douglas was indicted upon the offense of operating a motor vehicle under the influence of alcohol or any other substance that impaired his driving ability. KRS 189A.010. The instruction given to the jury in the case read as follows:
INSTRUCTION NO. 3
OPERATING A MOTOR VEHICLE UNDER THE
INFLUENCE OF ALCOHOL AND/OR DRUGS
You will find the Defendant, Richard A. Douglas, guilty of Operating A Motor Vehicle Under the Influence of Alcohol and/or Drugs, under this instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:
A. That in Marion County on or about October 9, 2017, and before the finding of the indictment herein Richard A. Douglas operated a motor vehicle;
AND
B. That while doing so, Richard A. Douglas was under the influence of alcohol or any other substance which impaired his driving ability.
The Supreme Court of Kentucky addressed a similar DUI unanimity issue in Evans v. Commonwealth, 45 S.W.3d 445 (Ky. 2001). In Evans, appellant argued that the instruction contained a fundamental flaw. Appellant particularly asserted the instruction permitted the jury to find him guilty of DUI without requiring a finding as to each element of the DUI offense. By permitting the jury to find that appellant drove with either a blood alcohol concentration of at least .10 or under the influence of alcohol/intoxicants, appellant argued that the instruction impermissibly violated the constitutional unanimity requirement. The Evans Court held:
What [appellant] seems to have overlooked is that the statutes under review, KRS 189A.010(1)(a) and (b), merely provide different means of committing the same violation. These subsections do not represent different elements of the offense, but alternative means of committing the same offense. While the alternative means do indeed require different acts, the effect is the same and there is no prejudice so long as evidence is presented from which the jury could reasonably believe both of the subsections had been violated.Evans, 45 S.W.3d at 447. The Evans Court concluded that the jury instruction combining different subsections of the DUI statute was proper as it merely constituted "alternative means of committing the same offense." Id.
Likewise, in our case, there existed sufficient evidence upon which a reasonable jury could have found that Douglas drove under the influence of alcohol and under the influence of other substances that impaired his ability to drive. The instruction did "not represent different elements of the offense, but alternative means of committing the same offense." Id. Based upon the reasoning of Evans, we believe the jury instruction upon the DUI offense was proper and was not violative of the unanimity requirement of the Kentucky Constitution. Id. We, thus, conclude no palpable error occurred.
For the foregoing reasons, the final judgment of the Marion Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Robert C. Yang
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky
Frankfort, Kentucky James C. Shackelford
Assistant Attorney General
Frankfort, Kentucky