State v. Leopold

State v. Leopold (2004-178); 179 Vt. 558; 889 A.2d 707

2005 VT 94

[Filed 02-Aug-2005]

[Motion for Reargument Denied 09-Nov-2005]

                                 ENTRY ORDER

                                 2005 VT 94

                      SUPREME COURT DOCKET NO. 2004-178

                             FEBRUARY TERM, 2005

  State of Vermont	               }	APPEALED FROM:
                                       }
                                       }	District Court of Vermont,
       v.	                       }	Unit No. 3, Orleans Circuit
                                       }	
  Elizabeth Leopold	               }
                                       }	DOCKET NO. 677-12-02 OsCr

                                                Trial Judge: Matthew I. Katz

             In the above-entitled cause, the Clerk will enter:

       ¶  1.  Elizabeth Leopold appeals her conviction for operating a
  vehicle while intoxicated in violation of 23 V.S.A. § 1201(a)(2).  She
  contends the district court erred by refusing to instruct the jury
  regarding the affirmative defense provided in § 1201(f).  We affirm the
  trial court.

       ¶  2.  On the night of November 22, 2002, Hardwick police officer
  Joey LaFlamm was on patrol in Greensboro when he observed appellant's car
  parked by the side of the road near a cemetery.  He noted that the car's
  engine was running, and that appellant was sitting in the driver's seat. 
  When Officer LaFlamm asked appellant what she was doing, she said that she
  was listening to the radio and needed some time to herself.  He then made a
  note of the car's license plate number and drove away.

       ¶  3.  Officer LaFlamm continued his patrol through Greensboro for
  approximately thirty minutes, during which time the police dispatcher
  advised him that appellant's car was registered to Jane Woodruff, whose
  driver's license had expired.  He then returned to the location where he
  had spoken with appellant, and observed that, though the engine remained
  running, the car had not moved.  Officer LaFlamm approached the car,
  addressed appellant as Ms. Woodruff, and advised her that her license had
  expired.  Appellant then became angry and told Officer LaFlamm that she was
  not Ms. Woodruff, and that her license was not expired. 

       ¶  4.  During this exchange, Officer LaFlamm smelled alcohol on
  appellant's breath, and he asked her to get out of the car and perform a
  series of roadside sobriety tests.  Although appellant refused to submit to
  a preliminary breath test, Officer LaFlamm noted that her eyes were
  bloodshot, that her speech was impaired, and that she swayed noticeably as
  she walked.  Officer LaFlamm then arrested appellant for operating a
  vehicle while intoxicated and transported her to the Hardwick Police
  Department for processing.
   
       ¶  5.  Appellant pled not guilty to the charge and demanded a jury
  trial, which was held on November 21, 2003.  At trial, Jane Woodruff
  testified that she and appellant each had one drink between nine and eleven
  o'clock on the night of appellant's arrest.  Woodruff said she went to
  sleep at eleven and did not see appellant again until after the arrest, but
  she testified that appellant described the night's events to her in detail
  a few days later.  Appellant told Woodruff that she had poured some liquor
  into a travel mug and taken it with her to the cemetery at about 11:30 p.m.  
  Appellant said she parked the car by the side of the road before drinking
  the liquor, and she never moved the car again before her arrest.  Finally,
  Woodruff testified that appellant told her that she "wanted to die" at the
  cemetery that night. 

       ¶  6.  At the close of the State's evidence, appellant moved the
  court to instruct the jury regarding 23 V.S.A. § 1201(f), which provides an
  affirmative defense for a defendant who: "(1) had no intention of putting
  the vehicle in motion; and (2) had not put the car in motion while under
  the influence."  The court determined that appellant had not established a
  prima facie case that she did not intend to put the car in motion, and
  therefore refused to instruct the jury regarding the affirmative defense. 
  The jury returned a guilty verdict, and this appeal followed.

       ¶  7.  Appellant raises two arguments on appeal.  First, she
  contends that 23 V.S.A. § 1201(f) provides a defense that directly negates
  one of the elements of operating while intoxicated, and therefore the
  burden falls upon the State to prove, beyond a reasonable doubt, that she
  intended to put the car in motion.  Second, even if she bears the burden of
  proving the affirmative defense, appellant contends that Woodruff's
  uncontroverted testimony established a prima facie case that appellant
  neither moved the car while intoxicated nor intended to move the car again,
  and therefore the court should have instructed the jury on the defense.  

       ¶  8.  Appellant contends that the State bears the burden of proving
  that she either placed her vehicle in motion while intoxicated or intended
  to do so.  She is charged with violating 23 V.S.A. § 1201(a)(2), which
  states: "A person shall not operate, attempt to operate, or be in actual
  physical control of any vehicle on a highway . . . when the person is under
  the influence of intoxicating liquor."  Section 1201(f), however, permits a
  defendant to assert "as an affirmative defense that [the defendant] was not
  operating, attempting to operate, or in actual physical control of the
  vehicle because [the defendant]: (1) had no intention of placing the
  vehicle in motion; and (2) had not placed the vehicle in motion while under
  the influence."  23 V.S.A. § 1201(f) (Cum. Supp. 2004).  Because the
  defense provided in § 1201(f) appears to negate an element of the charged
  offense, appellant contends that the State must prove that she either moved
  the car-or intended to-while intoxicated.
        
       ¶  9.  Appellant's contention is without merit.  The Legislature
  expressly stated that § 1201(f) provides an "affirmative defense."  An
  affirmative defense typically carries with it two distinct burdens: the
  burden of production, and the burden of persuasion.  State v. Baker, 154
  Vt. 411, 414, 579 A.2d 479, 480 (1990).  While the allocation of the second
  burden is sometimes controversial, it is well settled that the first burden
  falls to the defendant, who "must establish a prima facie case on each of
  the elements of the affirmative defense before the court can submit the
  defense to the jury."  Id.  The defense at issue here describes factual
  circumstances that, if established, would excuse a defendant's otherwise
  criminal conduct, but it does not, as appellant suggests, add an element to
  the charged offense.  A defendant need not place a car in motion to operate
  it.  See State v. Emmons, 173 Vt. 492, 493, 788 A.2d 24, 26 (2001) (mem.)
  (defining operation to include the act of starting a vehicle's engine). 
  If, however, a defendant is found operating a vehicle while intoxicated,
  §1201(f) will excuse the crime if she can demonstrate that she neither
  placed the car in motion nor intended to do so.  Thus, the defense provides
  an excuse for operating a vehicle while intoxicated, but the State need not
  demonstrate that the defendant intended to move the vehicle during its
  case-in-chief.  

       ¶  10.  Appellant next contends that the trial court erred in
  concluding that she had not presented sufficient evidence to merit a jury
  instruction on § 1201(f).  At trial, Officer LaFlamm testified that
  appellant had not moved the vehicle during the thirty-minute interval
  between his conversations with her; but the court did not find this period
  of time persuasive evidence of appellant's future intentions.  Without any
  further evidence that she did not intend to move the car, the court
  concluded that appellant had not satisfied the burden of production
  necessary to go forward with the defense.  See State v. Knapp, 147 Vt. 56,
  59, 509 A.2d 1010, 1011 (1986) ("To be entitled to an instruction . . . the
  defendant must establish a prima facie case on each of the elements of the
  defense asserted.").

       ¶  11.  Section 1201(f) provides an affirmative defense that excuses
  the offense of operating a vehicle while intoxicated under certain factual
  circumstances.  Because the section specifies that it provides an
  affirmative defense,  the defendant bears the burden of establishing a
  prima facie case on the statutory elements.  Appellant here did not present
  sufficient evidence to establish such a  prima facie case, and therefore we
  affirm the trial court's refusal to instruct the jury on the defense. 

       Affirmed. 

                                       BY THE COURT:


                                       _______________________________________
                                       Paul L. Reiber, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice
     
                                       _______________________________________
                                       Denise R. Johnson, Associate Justice 

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _______________________________________
                                       Frederic W. Allen, Chief Justice (Ret.),
                                       Specially Assigned