State v. Carpenter

State v. Carpenter (99-105); 170 Vt. 371; 749 A.2d 1137

[Filed 10-Mar-2000]


       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, 109 State Street, Montpelier, Vermont 05609-0801 of
  any  errors in order that corrections may be made before this opinion goes
  to press.

                                 No. 99-105

State of Vermont	                         Supreme Court

                                                 On Appeal from
     v.	                                         District Court of Vermont,
                                                 Unit No. 3, Washington Circuit

Charles E. Carpenter	                         November Term, 1999

Alan W. Cheever, J.

Paul Finnerty, Washington County Deputy State's Attorney, Barre, for 
  Plaintiff-Appellee.

Robert Appel, Defender General, and William A. Nelson, Appellate Attorney, 
  Montpelier, for Defendant-Appellant.

PRESENT:  Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.


       AMESTOY, C.J.   Defendant appeals his conviction by a Washington
  District Court jury  of driving under the influence of intoxicating liquor
  (DUI), arguing that the court committed plain  error in charging a
  permissive inference of intoxication based on a blood-alcohol test taken
  more  than two hours after estimated operation and where the evidence
  showed that defendant consumed  alcohol after operation.  Defendant also
  argues that the court erred by permitting the jury to find  defendant
  guilty of a third or subsequent DUI offense on the basis of a conviction
  more than fifteen  years old.  We affirm.

                                  I.  Facts

       Evidence presented at trial established that at some unknown time on
  the evening of July 20,  1998, defendant Charles Carpenter drove his car
  into a ditch.  At 9:52 p.m., defendant arrived at the  home of Doreen
  Gilmore, about  1/4 mile down the road from the accident scene, seeking
  assistance  pulling his car out of the ditch.  Ms. Gilmore testified that
  defendant was drinking from a bottle of  beer and appeared intoxicated.  He
  told her that he had just driven off the road and that it took him 


 

  ten to fifteen minutes to walk to her house.  Ms. Gilmore declined his
  request for help and directed  him to her neighbors' home.  She then called
  the State Police to report the incident and her neighbor  Marion Hebert to
  warn her that defendant was on his way over.  After these calls, Ms.
  Gilmore  walked to where the car was stuck and noted that its engine was
  still running.  

       Defendant went next door to the Hebert home, still carrying a bottle
  of beer, and again  requested assistance.  He told Ms. Hebert that the
  accident had happened just a little while before,  and that he'd gone to
  her neighbor's house first.  Ms. Hebert testified that she could tell
  defendant  had been drinking, but that he was not staggering drunk.  Ms.
  Hebert's husband called defendant's  uncle, who had a chain, and evidently
  he and defendant returned to the car to pull it out of the ditch. 
 	
       State Police Trooper Robert Snetsinger arrived at the accident scene
  at approximately 10:12  p.m.  Trooper Snetsinger identified defendant as
  the owner and operator of the vehicle.  Defendant  told the trooper that he
  had consumed "a couple, three beers," that he was traveling from Cabot to 
  Barre, had pulled over to urinate, and gotten stuck when he attempted to
  return the car to the road.  Defendant told Trooper Snetsinger that his
  last drink was thirty minutes ago (approximately 9:45  p.m.), that the
  accident had occurred two-and-a-half hours ago (approximately 7:45 p.m.),
  and that  defendant had done all his drinking after the accident had
  occurred.  At another point in their  conversation, defendant stated that
  he had gone off the road at 8:30 p.m.  When the trooper asked  defendant
  where he had been drinking and with whom, defendant pointed in a southerly
  direction  and replied "over there," and that he had drank with a woman
  named Jenny Bressett and an Angie,  whose last name he did not know.	

       After failing a series of field dexterity tests, defendant was placed
  under arrest and taken to  the State Police Barracks.  There, at 12:19
  a.m., defendant consented to a breath test that indicated  a blood alcohol
  content (BAC) of .177%.    

       Defendant was charged with 23 V.S.A. § 1201(a)(1) ("A person shall not
  operate, attempt  to operate, or be in actual physical control of any
  vehicle on a highway . . . when the person's alcohol  concentration is 0.08
  or more) and § 1201(a)(2) ("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.").  The State also
  charged defendant as a recidivist under 23 V.S.A. § 1210(d)  ("A person
  convicted of violating section 1201 of this title who has twice been
  convicted of violation  of that section shall be fined not more than
  $2,500.00 or imprisoned not more than five years, or  both.").

       At trial, defendant argued that he was not under the influence when he
  was operating his car,  emphasizing the undisputed evidence that defendant
  was drinking after operation and that the State  had no direct evidence of
  consumption before operation.  The State called Ms. Gilmore and Ms. 
  Hebert, each of whom essentially testified that defendant told them that he
  had run off the road just  before appearing at their respective homes. 
  Trooper Snetsinger also testified about his conversation  with defendant,
  highlighting defendant's conflicting statements as to the time of the
  accident and the  sobriety tests he performed upon defendant.  Finally, the
  State presented its chemist, whose  testimony supported the State's
  contention that defendant's BAC was over .08 at the time of  operation. 
  The chemist testified that a person of defendant's size would not be able
  to obtain a BAC  of .177% two and a half hours after his last drink by
  consuming three or four beers.  The chemist  testified that a person of
  defendant's size who started drinking at 8:30 p.m. and had his last drink
  at  9:45 p.m., would have had to consume seven-and-one-quarter standard
  drinks to produce a test result  similar to defendant's.  

       The court's jury charge included a permissive inference instruction,
  pursuant to 23 V.S.A.  § 1204(a)(3): "[I]f you find that at any time within
  two hours of the time Mr. Carpenter allegedly  operated a motor vehicle on
  a highway Mr. Carpenter's alcohol concentration was .10 or more, you  may
  infer that he was under the influence of intoxicating liquor at the time of
  operation."  The jury  acquitted defendant of the § 1201(a)(1) (operation
  over .08 BAC) charge, but found him guilty of  the § 1201(a)(2) (operation
  under the influence of intoxicating liquor) charge.  In a bifurcated 
  enhancement hearing, the jury found defendant guilty of the recidivist
  charge under § 1210(d).  

 

       On appeal, defendant argues the court committed plain error in
  charging the two-hour  inference of the DUI law (a) in a case where the
  breath test was not taken within two hours of  operation, and (b) where the
  evidence showed that defendant consumed alcohol after operation.  
  Defendant also contends that the court erred at the recidivist stage of the
  trial by permitting the jury  to find defendant guilty of a third or
  subsequent DUI offense on the basis of a conviction that was  more than
  fifteen years old.

                               II. Discussion

                           A. Permissive Inference

       Defendant did not object to the court's permissive inference
  instruction at trial.  Thus, his  claims "were not properly preserved
  following the charge and are only reviewable under a plain error 
  standard."  State v. Brooks, 163 Vt. 245, 250, 658 A.2d 22, 26 (1995). 
  Jury instructions should be  viewed in their entirety and must be well
  balanced and fair.  See State v. Chambers, 144 Vt. 377,  382, 477 A.2d 974,
  978 (1984).  Error will be assigned only when the entire charge undermines 
  confidence in the verdict, and only in extraordinary cases will we find
  plain error.  See State v.  Johnson, 158 Vt. 508, 513-14, 615 A.2d 132, 135
  (1992).  Plain error exists "only in exceptional  circumstances where a
  failure to recognize error would result in a miscarriage of justice, or
  where  there is glaring error so grave and serious that it strikes at the
  very heart of the defendant's  constitutional rights."  State v. Pelican,
  160 Vt. 536, 538, 632 A.2d 24, 26 (1993).  The error must  not only affect
  substantial rights, but also have an unfair prejudicial impact on the
  jury's  deliberations.  See id. at 539, 632 A.2d  at 26.

       Defendant acknowledges his burden to demonstrate plain error, but
  contends that he was  denied his "constitutional right to a jury
  determination of [a] simple factual dispute" because of the  trial court's
  permissive inference instruction.  We disagree because we conclude that
  there was ample  evidence to support the jury's verdict that defendant was
  guilty of operating a vehicle while he was  under the influence of
  intoxicating liquor, without relying on the permissive inference
  instruction. 
  
 

       If it is axiomatic that "facts are troublesome things," lack of facts
  can be equally  troublesome.  In this case, defendant did not put on any
  evidence.  Evidence of post-operation  drinking was placed before the jury
  by the investigating officer who testified that defendant told him  that he
  had "a couple, three beers" after driving into the ditch.  Evidence of the
  time of operation also  was presented through the State's witnesses.  From
  defendant's perspective, the best - and indeed,  only - evidence of "early"
  operation was Trooper Snetsinger's testimony that when the officer  arrived
  at the scene of the accident at 10:12 p.m., defendant gave conflicting
  statements as to when  he ran off the road: either "two-and-a-half-hours
  ago" (approximately 7:45 p.m.) or "8:30 p.m."  Of  course, the jury also
  had before it the evidence of two disinterested witnesses who testified to
  their  belief that defendant had driven into the ditch shortly before his
  arrival at Ms. Gilmore's house at  9:52 p.m.  Defendant's assertion that
  the jury lacked evidence on the time of defendant's operation  minimizes
  these statements, as well as Ms. Gilmore's additional testimony that
  defendant's vehicle  was still running when she went to view where
  defendant had gone off the road.  

       Thus, as to the charge of whether defendant operated a vehicle under
  the influence of  intoxicating liquor in violation of 23 V.S.A. §
  1201(a)(2), the jury did indeed have before it "a  simple factual dispute." 
  If the jury believed the State's witnesses, the permissive inference 
  instruction was irrelevant.(FN1)  There was ample evidence to support the
  State's theory that  defendant was under the influence of intoxicating
  liquor at the time of operation.  The jury did not  need to rely on the
  permissive inference instruction to reach its verdict because there was
  credible  evidence to support a conclusion that defendant's visibly
  intoxicated state was very close in time to  his operation of the vehicle. 
  We are not prepared to find plain error without some demonstration,  not
  made here, that the asserted error was the cause of defendant's conviction. 
  If the instruction was  error - a conclusion not reached here - that error
  did not rise to the level of plain error because it  was not 

 

  demonstrated to have "an unfair prejudicial impact on the jury's
  deliberations."  Pelican, 160  Vt. at 538, 632 A.2d  at 26 (quoting United
  States v. Young, 470 U.S. 1, 16 n.14 (1985)). 

                           B.  Forgiveness Period

       Defendant also argues that the court erred in admitting his 1981
  conviction under the  recidivism charge because it fell outside 23 V.S.A. §
  1210(d)'s amended  "forgiveness period."  To  support its enhanced charge,
  the State alleged three prior convictions, dated August 18, 1981,  October
  21, 1985, and November 13, 1990.  Defendant moved to strike the 1981
  conviction on the  ground that it was more than fifteen years old.  

       Before 1991, the statute's enhanced penalties applied to a person
  convicted of violating  § 1201 twice within the preceding fifteen years.  A
  1991 amendment deleted this forgiveness period  for future cases, but
  specifically continued its application for convictions rendered before the 
  amendment:

     With respect to section 1210 of Title 23, the 15-year forgiveness 
     period used to determine third convictions shall be considered a right 
     which has accrued to the operator if the prior convictions occurred at 
     any time prior to July 1, 1991.

  1991, No. 55, § 19(5).  Defendant argued that this savings clause
  prohibited the State's use of his  1981 conviction for purposes of the
  recidivism charge.  The State countered that the savings clause  conferred
  no benefits on defendant because he had been convicted three times before
  the date of the  amendment.  The court agreed with the state, and all three
  prior convictions were admitted into  evidence and submitted to the jury,
  which returned a guilty verdict on the enhanced recidivist charge. 

       We decline to reach this issue because § 1210(d) requires only two
  prior convictions for the  enhanced penalties to apply.  Defendant's 1985
  and 1990 convictions are admissible, being less than  fifteen years old. 
  Any confusion as to which convictions the jury weighed in its deliberations
  was  harmless.  See V.R.Cr.P. 52(a) ("Any error, defect, irregularity or
  variance which does not affect  substantial rights shall be disregarded."). 
  "'[I]t is clear beyond a reasonable doubt that the jury would  have
  returned a guilty verdict regardless of the error'" if the court admitted
  only the 1985 and 

 

  1990 convictions.  See State v. Fuller, 168 Vt. 396, 408, 721 A.2d 475, 484
  (1998) (quoting State  v. Hamlin, 146 Vt. 97, 106, 499 A.2d 45, 52 (1985)
  (citations omitted)).  Thus, it is unnecessary to  decide whether the court
  should have excluded defendant's 1981 conviction.

       Affirmed.

                                       FOR THE COURT:



                                       _______________________________________
                                       Chief Justice



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                                  Footnotes


FN1.  We do not reach defendant's claim that the State was not entitled to
  the § 1204(a)(3)  permissive inference instruction because the breath test
  was not administered within two hours of  operation.  The error, if any,
  was harmless.  See State v. Bartlett, 165 Vt. 590, 591, 683 A.2d 9, 10
  (1996) (mem.) (no error where no need to charge inference permitted by §
  1204(a)(3)).