opinions/mds/hutchings112803.htm 18:16:35 GMT --> State v. Hutchings

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IN THE UTAH COURT OF APPEALS

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Jim Hutchings,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20020840-CA

F I L E D
(November 28, 2003)

2003 UT App 409

-----

Fourth District, Provo Department

The Honorable James R. Taylor

Attorneys: Shelden R. Carter, Provo, for Appellant

Mark L. Shurtleff and Karen A. Klucznik, Salt Lake City, for Appellee

-----

Before Judges Jackson, Davis, and Thorne.

DAVIS, Judge:

Defendant challenges his conviction for driving under the influence, in violation of Utah Code Annotated section 41-6-44 (Supp. 2001). We affirm.

First, Defendant argues that because he was not in "actual physical control" of the vehicle, the trial court improperly denied Defendant's motion to dismiss the charges that were pending against him. "The denial of a motion to dismiss for failure to establish a prima facie case is a question of law [this court] review[s] for correctness." State v. Spainhower, 1999 UT App 280,4, 988 P.2d 452. "Evidence is sufficient, and the denial of a motion to dismiss proper, if 'the evidence and all inferences that can be reasonably drawn from it [establish that] some evidence exists from which a reasonable jury could find that . . . elements of the crime had been proven beyond a reasonable doubt.'" Id. at 5 (first alteration in original) (citation omitted).

In relevant part, section 41-6-44(2)(a) states that

[a] person may not operate or be in actual physical control of a vehicle within this state if the person:

(i) has sufficient alcohol in his body that a chemical test given within two hours of the alleged operation or physical control shows that the person has a blood or breath alcohol concentration of .08 grams or greater; or

(ii) is under the influence of alcohol . . . to a degree that renders the person incapable of safely operating a vehicle.

Utah Code Ann. 41-6-44(2)(a)(i)-(ii) (Supp. 2001) (emphasis added). "This court indicated that whether a person was in actual physical control of a vehicle required consideration of the totality of the circumstances." State v. Barnhart, 850 P.2d 473, 477 (Utah Ct. App. 1993).

Relevant factors for making this determination include, but are not limited to the following: (1) whether defendant was asleep or awake when discovered; (2) the position of the automobile; (3) whether the automobile's motor was running; (4) whether defendant was positioned in the driver's seat of the vehicle; (5) whether defendant was the vehicle's sole occupant; (6) whether defendant had possession of the ignition key; (7) defendant's apparent ability to start and move the vehicle; (8) how the car got to where it was found; and (9) whether defendant drove it there.

Richfield City v. Walker, 790 P.2d 87, 93 (Utah Ct. App. 1990) (Walker factors).

Defendant argues that because his vehicle was rendered inoperable, Defendant could not take "actual physical control" of his vehicle. Utah Code Ann. 41-6-44(2)(a). Defendant's prospective view of actual physical control is misplaced and he ignores all but the seventh Walker factor.(1) "To focus exclusively upon the fact that the [vehicle was immobilized] and to ignore other relevant factors, as [D]efendant would have us do, is illogical." Walker, 790 P.2d at 93.

"The focus should not be narrowly upon the mechanical condition of the car when it comes to rest, but upon the status of its occupant and the nature of the authority he or she exerted over the vehicle in arriving at the place from which, by virtue of its inoperability, it can no longer move. Where, as here, circumstantial evidence permits a legitimate inference that the car was where it was and was performing as it was because of the defendant's choice, it follows that the defendant was in actual physical control. To hold otherwise could conceivably allow an intoxicated driver whose vehicle was rendered inoperable in a collision to escape prosecution."

Lopez v. Schwendiman, 720 P.2d 778, 781 (Utah 1986) (per curiam) (quoting State v. Smelter, 674 P.2d 690, 693 (Wash. Ct. App. 1984)).

We apply the Walker factors and focus upon the status of Defendant and his apparent authority over the vehicle. First, the Utah Highway Patrol (UHP) officer investigating Defendant's traffic accident found Defendant awake in the vehicle located 100 feet off-road in a gorge area consisting of large and small rocks and bark. Second, although the vehicle's motor was not running, the UHP officer found Defendant sitting in the driver's seat. Third, Defendant was the sole occupant of the vehicle. Fourth, Defendant had possession of the vehicle's ignition key, which lay on the passenger seat, next to Defendant. Fifth, although the vehicle was immobilized, the UHP officer noticed tire tracks leading from the roadway to the immobilized vehicle. Finally, Defendant admitted that he drove the vehicle from the roadway to its immobilized position, stating, "Some lady cut me off, and I went down here."

Examining these facts under the totality of the circumstances, we conclude that sufficient evidence was presented by which a reasonable jury could infer that Defendant had actual physical control of his vehicle because it "'was where it was and was performing as it was because of the defendant's choice.'" Lopez, 720 P.2d at 781 (quoting Smelter, 674 P.2d at 693).

Next, we must determine if enough evidence existed to establish that Defendant was intoxicated while in actual physical control of his vehicle. Utah law prevents a person from operating a vehicle if that person "is under the influence of alcohol . . . to a degree that renders the person incapable of safely operating a vehicle." Utah Code Ann. 41-6-44(2)(a)(ii). The UHP officer testified that he noticed Defendant's speech was slow and slurred, that his eyes were glassy and bloodshot, and that the odor of alcohol emanated from Defendant's clothing and vehicle. The UHP officer further testified that, based upon his experience, the alcohol odor was not fresh. Defendant then performed and failed three field sobriety tests. Defendant presented no evidence at trial that would show that he was not intoxicated while in actual physical control of his vehicle.

Based on the foregoing, we conclude that "'the evidence and inferences that can be reasonably drawn from it [establish that] some evidence exists from which a reasonable jury could find that the elements of the crime had been proven beyond a reasonable doubt,'" State v. Spainhower, 1999 UT App 280,5, 988 P.2d 452 (alteration in original) (citation omitted), and that Defendant was intoxicated while in actual physical control of an operable motor vehicle. We therefore affirm the trial court's denial of Defendant's motion to dismiss.

Defendant's second argument is that the trial court erroneously instructed the jury with regard to "actual physical control." Utah Code Ann. 41-4-44(2)(a). "[W]hen a jury instruction is erroneous, we will reverse only if the defendant shows a reasonable probability the error affected the outcome of [the] case." State v. Perez, 2002 UT App 211,22, 52 P.3d 451 (quotations and citation omitted).

Defendant argues that jury instruction 6 impermissibly lowered the burden of proof for the prosecution by stating "[w]here circumstantial evidence permits a legitimate inference that the vehicle was where it was and was performing as it was because of the Defendant's choice, it follows that the Defendant was in actual physical control." We disagree. Although jury instruction 6 is no model of clarity, the issue raised by Defendant is covered by three other jury instructions. "Jury instructions must be evaluated as a whole to determine their adequacy." State v. Garcia, 2001 UT App 19,13, 18 P.3d 1123. "Jury instructions will be affirmed when the instructions, taken as a whole, fairly tender the case to the jury [even where] one or more of the instructions, standing alone, are not as full or accurate as they might have been." State v. Hobbs, 2003 UT App 27,31, 64 P.3d 1218 (alteration in original) (quotations and citations omitted), cert. denied, 72 P.3d 685 (Utah 2003).

These other jury instructions, including the instruction that listed the elements of the charged offense, informed the jury that the State must prove each element of the crime charged "beyond a reasonable doubt."(2) Because the jury could have relied upon any or all of the three instructions that mandated the State to prove each element of the offense "beyond a reasonable doubt," Defendant fails to show, in the context of the other jury instructions, a reasonable probability that the challenged instruction affected the outcome of his case.

Because a reasonable jury could have inferred from the evidence that Defendant was in actual physical control of his vehicle while intoxicated, and because Defendant fails to show how the challenged jury instruction prejudiced his case, we affirm Defendant's conviction for driving under the influence under section 41-6-44.

______________________________

James Z. Davis, Judge

-----

WE CONCUR:

______________________________

Norman H. Jackson,

Presiding Judge

______________________________

William A. Thorne Jr., Judge

1. "[S]ome of the more persuasive indicia of actual physical control are how the car got to where it was found and whether the defendant drove it there." Richfield City v. Walker, 790 P.2d 87, 92 (Utah Ct. App. 1990).

2. Specifically, jury instruction 4 stated "you must find that each of the following essential elements of the crime charged in the Information have been established beyond a reasonable doubt"; jury instruction 12 stated "[a] person charged with a crime is presumed to be innocent until such person is proved guilty beyond a reasonable doubt," and "[t]he presumption of innocence must continue to prevail in the minds of the jury unless and until the jury is satisfied beyond a reasonable doubt"; and jury instruction 13 stated "the State is required to prove each element of the crime charged against a defendant beyond a reasonable doubt," and "[i]f . . . you have a reasonable doubt as to a defendant's guilt, you must acquit that defendant."

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opinions/mds/hutchings112803.htm 18:16:35 GMT -->