Court of Appeals No. A-9962.
March 25, 2009.
Appeal from the Superior Court, Third Judicial District, Kenai, Harold M. Brown, Judge, Trial Court No. 3KN-05-1671 CR.
Linda Wilson, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Scot H. Leaders, Assistant District Attorney, Kenai, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
James Redmon Jr. was convicted of felony driving under the influence, criminal mischief in the third degree, and driving without a valid operator's license after a jury trial in Kenai. He appeals, contending that there was insufficient evidence that he was driving a motor vehicle at the time of the incident. But the trial testimony included considerable circumstantial evidence that he drove and damaged his girlfriend's vehicle. Redmon also argues that his consecutive sentences were clearly mistaken. But the sentencing record reflects substantial reasons for the composite sentence based on his criminal history and his behavior on the night in question. We therefore uphold Redmon's convictions and his composite sentence.
AS 28.35.030(a)(1) (2), and former (n)(o)(4).
Redmon's girlfriend, Rachel Simons, was living with him in Sterling, Alaska, during September 2005. On the evening of September 29th, Simons and Redmon got into a heated argument when they went to their friend's house for dinner.
After they returned home, Redmon asked Simons for the keys to her car so he could get some cigarettes. Simons would not give him the keys because she believed that Redmon was intoxicated. Redmon left on a four wheeler but then returned, again asking for the keys to Simons's car. When Simons refused again, Redmon began rummaging through the house looking for another set of keys.
Then Simons heard a car pulling out of the driveway. When she looked out of the window, she saw a car pulling away, and noticed that her car was gone from the spot where she had parked it. She heard the car come back into the driveway, saw Redmon step out of the car, and then quickly get back inside. Redmon left in the car once again, but came into the house five to ten minutes later. Redmon told Simons that he had "rallied" her car and punched the windshield.
After Redmon went to sleep, Simons looked at her car and found a cracked windshield, a scratch mark on the right-hand side of the passenger front panel, and a boot print on the driver's side rear panel. This damage was not present before Simons heard Redmon leave with her car. But on cross-examination, Simons admitted that she had not actually seen Redmon driving the vehicle.
A jury returned guilty verdicts on all three charges: felony driving under the influence, criminal mischief in the third degree, and driving without a valid operator's licence.
Superior Court Judge Harold M. Brown conducted a sentencing hearing on May 10, 2007. Judge Brown concluded that this case was more serious than the standard felony DUI because there was an accident involved. The pre-sentence report suggested that Redmon had a serious alcohol problem from the time he was a teenager, drinking up to an eighteen-pack of beer four-to-five times per week. Redmon had accumulated three alcohol-related convictions in a short period of time beginning with a conviction for refusing to submit to a chemical test in August of 2001, and a DUI conviction in September of 2004.
The judge also concluded that Redmon did not take responsibility for his misbehavior (that is, Redmon blamed the accident on his girlfriend). Even so, the judge recognized that Redmon had great potential for rehabilitation based on the alcohol treatment he had completed while his case was pending.
Accordingly, Judge Brown sentenced Redmon to 24 months in jail with 18 months suspended for felony DUI, a sentence of 90 days with 80 days suspended for driving without a valid license, and a sentence of 24 months with 20 months suspended for criminal mischief in the third degree. Two months of the criminal mischief sentence was ordered to run concurrently with the sentence for felony DUI. Thus, Redmon's composite sentence was 46 months with 38 months suspended for his felony convictions and 90 days with 80 days suspended on the misdemeanor license charge.
Redmon argues that there was insufficient evidence to support a conviction on all three charges because Simons did not testify that she actually saw Redmon driving or damaging her car. We therefore have to decide whether a reasonable juror could have concluded that the prosecution proved Redmon's guilt beyond a reasonable doubt. We review the trial evidence and the reasonable inferences from that evidence in the light most favorable to the jury's verdict.
See Grandstaff v. State, 171 P.3d 1176, 1210 (Alaska App. 2007).
The circumstantial evidence in this case was sufficient to establish that Redmon drove and damaged Simons's car. The jury could reasonably conclude that Redmon had taken the car after he asked Simons for the keys and she heard the car leaving the driveway. The jury could also reasonably conclude that Redmon had driven the car because Simons saw him getting out of the car and Redmon told her that he had "rallied" the car. The jury could also reasonably conclude that Redmon had damaged the car while he was driving it, because the damages were not present when Simons had parked the car the night before. Taking all of this evidence into consideration, a reasonable juror could conclude that Redmon had taken Simons's car and damaged it.
Redmon also argues that his sentences are excessive because Judge Brown decided to have the sentences for Redmon's DUI and criminal mischief run mostly consecutively. We are required to uphold Judge Brown's sentencing decision unless the composite sentence is clearly mistaken. Under AS 12.55.127(b) Judge Brown had the discretion to impose Redmon's sentences consecutively or concurrently.
See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).
In this case, Judge Brown discussed several reasons for imposing a composite sentence of 8 months to serve for the two felonies. Redmon caused an accident inflicting substantial property damage. Judge Brow n also discussed the fact that Redmon had accumulated three incidents involving drinking and driving in a short period of time, and that Redmon had a long-standing alcohol problem. Also, the judge concluded that Redmon failed to accept responsibility for his conduct, by blaming the damage to the vehicle on his girlfriend.
The State also points out that the criminal mischief conviction involved a crime against another household member. Thus, this conviction — based on the damage to property — addresses separate societal interests from those protected by the laws of driving under the influence. Furthermore, Redmon's blood alcohol level was more than twice the legal limit.
We conclude that the sentencing record establishes good reasons for the consecutive sentences. The composite sentence is therefore not clearly mistaken. We also conclude that there was sufficient evidence to sustain the convictions.
We therefore AFFIRM the superior court's judgment.