Penny v. State

• Decision Date: 06 December 1988
• Docket Number: No. F-86-132,F-86-132
• Citation: 765 P.2d 797
• Parties: Stanley Dean PENNY, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 797

765 P.2d 797

Stanley Dean PENNY, Appellant, v. STATE of Oklahoma, Appellee.

No. F-86-132.

Court of Criminal Appeals of Oklahoma.

Dec. 6, 1988.

An Appeal from the District Court of Carter County; Thomas A. Walker, District Judge.

Stanley Dean Penny, appellant, was convicted of driving under the influence of intoxicating liquor, subsequent offense, in the District Court of Carter County, Case No. CRF-84-430, sentenced to five (5) years imprisonment and a $2,500 fine, and appeals. AFFIRMED.

David Autry, Asst. Appellate Public Defender, Norman, for appellant.

Robert H. Henry, Atty. Gen., M. Caroline Emerson, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

PARKS, Judge:

Stanley Dean Penny, appellant, was tried by jury and convicted of Driving Under the Influence of Intoxicating Liquor, Subsequent Offense (47 O.S.Supp.1984, § 11-902), in Case No. CRF-84-430, in the District Court of Carter County, the Honorable Thomas S. Walker, District Judge, presiding. The jury assessed punishment at imprisonment for five (5) years and a fine of $2,500. Judgment and sentence was imposed in accordance with the jury's verdict, with all but the first eighteen (18) months imprisonment suspended. We affirm.

On the evening of December 15, 1984, an Ardmore, Oklahoma, police officer observed appellant driving partly on the shoulder of the road during a light rain. When appellant reached an overpass, he crossed the centerline and an oncoming vehicle pulled over to the guard rail to avoid a head-on collision. The officer turned on his overhead emergency lights. After crossing the overpass, appellant resumed driving partly on the shoulder and drove another half-mile before stopping. The arresting officer testified appellant exited the car and supported himself by leaning on the car, his breath smelled of alcohol, his speech was slurred, his eyes were bloodshot and he staggered when he walked. The officer arrested appellant and transported him to the city jail, where he voluntarily took a breathalyzer test. The test revealed appellant had a breath-alcohol content of 0.12.

Appellant testified he visited with a friend from 4:30 p.m. until he went to a Christmas party at a tavern between 7:00 p.m. and 7:30 p.m., and stayed at the party only half-an-hour. He testified he drank no alcoholic beverages while with his friend and only drank one beer at the party. Appellant ordered a second beer, filled his plate with food from the buffet, but was unable to ingest his food or second beer because his hiatus hernia prevented him from swallowing. He left the second beer on the bar, had his food wrapped and started driving to his motel. It began to rain so hard appellant could only see the white stripe marking the shoulder of the road, which he began following until he reached the overpass. To avoid hitting the bridge, he crossed the yellow center line, resumed following the shoulder stripe when he crossed the overpass, and pulled over when he reached a wider part of the shoulder to wait for the rain to stop. Appellant testified he did not see the officer's emergency lights and the officer startled him when he knocked on the window. Appellant testified he was surprised when the breathalyzer registered 0.12.

Appellant called Tommy Jackson, who testified appellant visited him from approximately 2:00 p.m. until he left for the party shortly after 7:00 p.m., and appellant did not have anything to drink during this period. The tavern operator testified she only served beer at the Christmas party, and although she did not know how many beers appellant drank at the party, he was not intoxicated when he arrived and did not stay long enough to become intoxicated.

For his first assignment of error, appellant asserts his conviction must be reversed with instructions to dismiss because the jury convicted him of an uncharged offense distinct from the offense alleged in the information. The State charged Appellant by information with driving while under the influence of intoxicating liquor. (O.R. at 1). The trial court instructed the jury that the elements of this offense are: (1) driving; (2) a motor vehicle; (3) on a public roadway; (4) while under the influence; (5) of intoxicating liquor. (O.R. at 23).

The trial court additionally instructed the jury on "the included offense of Driving With a Breath Alcohol Concentration of Ten-hundredths or Greater," (O.R. at 26), and defined the elements as: (1) driving; (2) a motor vehicle; (3) on a public roadway; (4) with a breath alcohol concentration of ten-hundredths (0.10); (5) resulting from a breath alcohol test being administered within two hours of the arrest of the defendant. (O.R. at 27). The jury convicted appellant under this second instruction. (O.R. at 34).

Appellant argues the second instruction on driving with a breath alcohol concentration of ten-hundredths or greater "is codified as unlawful in the same statute as Driving Under the Influence, but is an entirely separate offense with different elements, and is distinguished from Driving Under the Influence through disjunctive juxtaposition." Brief of Appellant at 8.

The statute under review provides "[i]t is unlawful and punishable ... for any person to drive, operate, or be in actual physical control of a motor vehicle within this state who:

1. Has a blood or breath alcohol concentration, as defined in Section 756 of this Title, of ten-hundredths (0.10) or...