State v. Stevens

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.

                                NO. 88-039


State of Vermont                             Supreme Court

     v.                                      On Appeal from
                                             District Court of Vermont,
Cedric V. Stevens                            Unit No. 2, Chittenden Circuit

                                             February Term, 1990


Edward J. Cashman, J.

Pamela Hall Johnson and Gary S. Kessler, Department of State's Attorneys,
   Montpelier, for plaintiff-appellee

Walter M. Morris, Jr., Defender General, and Henry Hinton and William A.
   Nelson, Appellate Defenders, Montpelier, for defendant-appellant


PRESENT:  Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.


     PECK, J.   Defendant appeals his conviction, after a jury trial, of
being in actual physical control of a motor vehicle on a highway while under
the influence of intoxicating liquor (DUI), in violation of 23 V.S.A. {
1201(a)(2). (FN1) We affirm.
     On February 25, 1987, at about 1:45 a.m., a Vermont State Police
officer saw a vehicle off an exit ramp on Interstate 89.  He approached the
vehicle, which was straddling a snowbank on the side of the road, and
observed defendant standing by the rear wheels of the car.  Defendant was
kicking snow out from under the wheels, and the car's engine was running.
No one else was present.  Defendant told the officer that the vehicle was a
rental car, and when the officer asked him if anyone else was with him,
defendant replied that he was "the only one."
     The officer asked defendant to get into the police cruiser.  As they
walked toward the cruiser, the officer had to steady defendant, and noticed
that defendant had a strong odor of intoxicants on his breath.  The officer
called a wrecker to remove the disabled car from the highway, and took
defendant to the police station where he was processed for DUI.  Defendant
refused to perform any dexterity tests, and also refused to submit to a
breath test.
     On appeal, defendant contends that the State's evidence was inadequate
to prove that he was in actual physical control of the vehicle.  Defendant
also challenges the jury instructions, and maintains that evidence that he
refused to take a breath test or perform dexterity tests was erroneously
admitted.
     In reviewing a conviction, we must decide if the evidence is sufficient
on each element of the crime charged to convince a reasonable trier of fact
that the defendant is guilty beyond a reasonable doubt.  Jackson v.
Virginia, 443 U.S. 307, 318-19 (1979).  On appeal, "we will view the
evidence in the light most favorable to the State, excluding the effect of
modifying evidence."  State v. Robillard, 146 Vt. 623, 626, 508 A.2d 709,
711 (1986).  Circumstantial evidence may be sufficient to support a con-
viction.  State v. Anderson, ___ Vt. ___, ___, 565 A.2d 1342, 1343 (1989).
Such evidence
          is measured against the same standard as all other
          evidence:  it will sustain a conviction if sufficient to
          convince a reasonable trier of fact that the defendant
          is guilty beyond a reasonable doubt.  In addition, the
          State is not required to exclude every reasonable
          hypothesis of innocence in proving a case with
          circumstantial evidence.

State v. Warner, 151 Vt. 469, 472, 560 A.2d 385, 387 (1989) (citations
omitted).  We believe that the State's evidence in this case, though
circumstantial, was enough for a jury to find defendant guilty beyond a
reasonable doubt of the crime charged.
     The State was obliged to prove that defendant was intoxicated, and that
while he was under the influence had actual physical control of a vehicle on
a public highway.  There is no serious dispute that defendant was intoxi-
cated, or that the car was on a public highway.  Prior cases considering the
question of "actual physical control" under the statute have not required
the State to show operation, or even the ability to operate a motor vehicle.
In State v. Godfrey, 137 Vt. 159, 162, 400 A.2d 1026, 1027 (1979), we upheld
a conviction where defendant was discovered sleeping or unconscious behind
the wheel of his car, with the motor running.  We noted that "[t]he element
of actual physical control is present, whether or not the defendant is in a
position to effectively exercise it."  Id. at 161, 400 A.2d  at 1026-27.  In
State v. Trucott, 145 Vt. 274, 281-82, 487 A.2d 149, 157 (1984), we affirmed
the defendant's conviction where a police officer discovered him asleep
behind the steering wheel of the car, with the engine and headlights off, in
a roadside "pull-off" area.  The factual distinction urged by defendant in
this case is based upon his presence outside the car, not behind the wheel.
We cannot agree.  Unlike the defendants in Godfrey and Trucott, he was not
asleep, but was standing next to the vehicle with the engine running.  An
ability to exercise control over the car was plainly present.
     The police officer discovered defendant on the exit ramp of the
Interstate highway, kicking snow from under the wheels of a running auto-
mobile, with no other persons in the vicinity.  The vehicle was not parked
on the side of the road, but instead was lodged in a snowbank.  Viewed in
the light most favorable to the State, the circumstantial facts in evidence
permit the jury to infer that defendant was guilty as charged.  Under the
circumstances, it was reasonable for the jury to conclude that defendant
had driven the vehicle into the snowbank and remained in physical control of
the car.  We must uphold the judgment unless there was "no credible evidence
justifying a guilty verdict."  State v. Warner, 151 Vt. at 471, 560 A.2d  at
387.  As in Warner, defendant in this case "does not argue that no credible
evidence supports the verdict; rather, he claims that there were other
possible conclusions to be drawn from the evidence."  Id.  We reach the same
conclusion as we did in Warner, and hold that since the record supports the
verdict, we will not disturb the jury's determination on appeal.
     Our holding is limited to the facts of this case.  We reach this result
only because defendant was, upon any reasonable view of the evidence, the
operator and responsible for the vehicle being in the snowbank.  A person in
defendant's position who had been solely a passenger and made no attempt to
operate the car could not legitimately be considered guilty of DUI.  If it
were otherwise, the existence of a designated driver would not protect
passengers should the driver leave the car temporarily to do an errand.
     In State v. Trucott, 145 Vt. at 281, 487 A.2d  at 153, we upheld a jury
instruction equating actual physical control with "immediate potential to
operate."  Defendant in this case asserts that the trial court's refusal to
include this phrase in the jury charge constitutes reversible error.  A
careful reading of the charge, however, shows that the court in fact stated
that in order to convict defendant, the State "ha[d] to prove that he [the
defendant] had the potential to operate."  Under the circumstances, we find
no error.
     Defendant argues that the trial court erred in refusing to instruct the
jury that he could not be in actual physical control of the car if the
vehicle was inoperable.  The only evidence submitted on this issue was the
police officer's testimony.  The officer stated that the vehicle was
straddling a snowbank, but never asserted that it could not be driven.  He
testified that he called a wrecker to tow the car away, noting that pursuant
to police procedure, he did not even attempt to move the vehicle.  This
testimony is not enough to support defendant's assertion that the car was
inoperable.  Therefore, the court was not obliged to charge on this point,
even if we assume defendant correctly states the law.
     Next, defendant claims that the trial court's charge to the jury was
flawed by statements that physical proximity to the vehicle was a consider-
ation in determining the question of actual physical control.  Defendant
argues that the charge improperly highlighted the issue of proximity,
particularly since he was the only person present when the officer arrived
at the scene.  Taken as a whole, however, the charge was proper.  The court
mentioned physical presence as a means of determining the factual question
of control, but always noted that propinquity depended upon the facts, and
that the factual determination was entirely up to the jury.  Our rule is
that when the jury charge as a whole "breathes the true spirit of the law,
and if there is no fair ground to say that the jury has been misled, then it
ought to stand."  State v. Roy, 151 Vt. 17, 24, 557 A.2d 884, 889 (1989)
(citations omitted).  The charge here met this standard.
     Defendant maintains that the trial court improperly admitted evidence
that defendant declined the police officer's request to perform field
dexterity tests or to submit to a breath test.  It is well settled that in
prosecutions for DUI, the State is permitted to present evidence of a
defendant's refusal to submit to a breath test.  State v. Emilo, 145 Vt.
405, 408, 491 A.2d 341, 343 (1985); 23 V.S.A. { 1202(b).  Defendant argues
that evidence of his refusal was irrelevant.  Absent an express stipulation,
however, the State had to prove intoxication.  Moreover, the State was
entitled to let the jury know that because defendant refused to perform
breath or dexterity tests, the State's evidence was limited to the arresting
officer's observations of defendant.  The trial court's jury instructions
clearly stated that defendant had a statutory right to refuse a breath
test, and that defendant's refusal was insufficient to overcome the pre-
sumption of innocence.  Any inferences to be drawn from the refusal were
for the jury's consideration, and the jury could ignore the refusal issue if
it chose.
     We upheld the trial court's decision finding a refusal in this case in
Stevens v. Chittenden District Court, Docket No. 88-053, and therefore we
need not discuss defendant's final argument. 
     Affirmed.

                                        FOR THE COURT:


                                        _________________________________
                                        Associate Justice




FN1.  23 V.S.A. { 1201(a)(2) provides that a person "shall not operate,
attempt to operate, or be in actual physical control of any vehicle on a
highway while . . . under the influence of intoxicating liquor."


________________________________________________________________________________
				DISSENT


NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                NO. 88-039


State of Vermont                             Supreme Court

     v.                                      On Appeal from
                                             District Court of Vermont,
Cedric V. Stevens                            Unit No. 2, Chittenden Circuit

                                             February Term, 1990


Edward J. Cashman, J.

Pamela Hall Johnson and Gary S. Kessler, Department of State's Attorneys,
   Montpelier, for plaintiff-appellee

Walter M. Morris, Jr., Defender General, and Henry Hinton and William A.
   Nelson, Appellate Defenders, Montpelier, for defendant-appellant


PRESENT:  Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.


     ALLEN, C.J., dissenting.   I do not believe that the evidence here,
even when viewed in the light most favorable to the State, is sufficient to
convince a reasonable trier of fact that defendant is guilty beyond a
reasonable doubt of being in actual physical control of a motor vehicle
while intoxicated.
     At the outset, I must express my disagreement with the majority's
characterization of defendant's argument.  The majority miscasts defendant's
claim when it asserts that defendant does not argue that no credible
evidence supports the verdict.  On the contrary that is precisely
defendant's first argument; the evidence "was insufficient to prove that
appellant was in actual physical control of the vehicle."
     Conviction cannot be had solely on the basis of close proximity to a
vehicle with its motor running.  As courts in other jurisdictions have
recognized, to hold otherwise strains the essential element of actual
physical control beyond all recognition.  In Overbee v. Commonwealth of
Virginia, 227 Va. 2238, 315 S.E.2d 242 (1984), a trooper saw a pickup truck
parked in the emergency lane of an interstate.  The defendant was standing
at the front of the vehicle in which a passenger sat; the hood was up and
the engine was not running.  The trooper approached and detected the odor of
alcohol.  The defendant testified that he had removed the keys from the
ignition to unlock the hood to check on the truck's water problem.  The
Supreme Court of Virginia distinguished several precedents that parallel
cases like State v. Trucott, 145 Vt. 274, 487 A.2d 149 (1984) on the ground
that the defendant was not in the driver's seat when found by the police.
Overbee, 227 Va. at 243, 315 S.E.2d  at 244.  The Court explained that while
the defendant's possession of the keys may have provided him with the means
of exercising control over the truck, the defendant could not have been in
"actual physical control of the vehicle when he was standing in front of it
on the highway."  Id. at 243, 315 S.E.2d  at 244; see also Bearden v. State,
430 P.2d 844, 847 (Okla. Crim. App. 1967) (defendant lying unconscious at
the roadside and outside his vehicle could not be in actual physical control
of his vehicle).
     Here, defendant was as close to the vehicle as Overbee was to his
truck.  The danger posed by the accused's potential operation of the
vehicle serves as the underlying rationale of Godfrey, Trucott, and the
majority opinion in this case.  However, that potential exists whether the
engine is on or off, if the defendant has the keys or access to them.  See
Trucott, 145 Vt. at 277, 487 A.2d  at 151 (engine off, defendant asleep in
driver's seat).  Therefore, the fact that the motor was running in this case
cannot serve as a meaningful distinction.  Defendant's affirmative response
to the trooper's inquiry as to whether or not defendant was alone did
nothing more than affirm the obvious but said nothing about actual physical
control.
     Simply put, the State has not met its burden of proof regarding actual
physical control.  The problems caused by drunk driving are serious and the
Legislature has responded with a statute designed to reduce or eliminate
them.  Still, there must be a more substantial link of the accused to the
vehicle if we are to avoid conviction on suspicion alone.  Cf. State v.
Partlow, 143 Vt. 33, 39, 460 A.2d 454, 457 (1983) (though entirely
circumstantial, evidence "was sufficiently cogent and persuasive to lift its
effect above mere suspicion" to sustain a burglary conviction).  The State
presented no evidence associating the defendant in any way with the vehicle.
From all that appears, the defendant could have been the passenger that the
majority says could not be considered to be guilty.  Therefore, on the
evidence presented, more than a reasonable doubt exists that defendant was
in actual physical control of the vehicle.
     I would reverse.




                                                 Chief Justice