State v. Blankenship
| Citation | 198 W.Va. 290,480 S.E.2d 178 |
| Decision Date | 10 December 1996 |
| Docket Number | No. 23114,23114 |
| Court | Supreme Court of West Virginia |
| Parties | STATE of West Virginia, Appellee, v. Scott E. BLANKENSHIP, Appellant. |
3. Syllabus Point 2, State v. Adams, 193 W.Va. 277, 456 S.E.2d 4 (1995).
4. Syllabus Point 3, State v. Adams, 193 W.Va. 277, 456 S.E.2d 4 (1995).
Darrell V. McGraw, Jr., Attorney General, Victor S. Woods, Assistant Attorney General, Charleston, for Appellee.
R. Thomas Czarnik, Princeton, for Appellant.
1
The appellant herein, and the defendant below, Scott Blankenship, appeals his conviction in the Circuit Court of Mercer County upon a charge of "Driving While Under the Influence of Alcohol--Third Offense," 2 in violation of W. Va.Code 17C-5-2(j) (1995). 3 , 4
Upon his conviction, the appellant was sentenced to the West Virginia Penitentiary System for a period of not less than one nor more than three years.
The appellant seeks to reverse this conviction by challenging: (1) the legal sufficiency of the core instruction relating to driving under the influence of alcohol; (2) the trial court's refusal to admit the testimony of an unavailable witness; and (3) the trial court's amendment of the indictment to change the year of one of the predicate offenses. 5 Because we find merit in the first challenge to the conviction, we reverse the conviction and remand this case to the Circuit Court of Mercer County.
On March 20, 1994, at approximately 2:00 a.m., Sergeant Tom Johnson of the West Virginia State Police passed a Chevrolet pickup truck which was traveling in the opposite direction. Believing the truck to have a "loud exhaust," Sgt. Johnson turned around and followed the truck into the parking lot of a local restaurant.
Upon pulling into the parking lot, Sgt. Johnson observed the appellant leaning into the truck through the door on the driver's side. As Sgt. Johnson approached the truck, he noticed the appellant was reaching into his pocket. Although the appellant was actually reaching into his pocket for cigarettes, Sgt. Johnson believing that the appellant might possibly be in possession of a weapon, drew his gun and ordered the appellant to submit to arrest. The appellant complied.
Sgt. Johnson observed the appellant to be intoxicated and asked him to perform a series of field sobriety tests. The appellant refused to comply. Believing the appellant to be the operator of the truck, and despite vigorous protestations to the contrary, the appellant was placed under arrest upon suspicion of driving under the influence of alcohol.
The appellant was taken to the police station where he registered a 0.14 percent blood alcohol content on an intoxilyzer at 2:56 a.m., approximately fifty minutes after Sgt. Johnson made the initial observation of the truck with the loud exhaust. While the appellant was at the police station, Sgt. Johnson received information relating to the appellant's driving record, which indicated that his license had been revoked five days earlier on March 15, 1994. The culmination of all these events was the indictment and subsequent conviction which is the subject of this appeal.
Content of Instruction on the Law in West Virginia Relating
to the Driving Under the Influence of Alcohol
The instruction which was given by the trial court over the objection of the appellant presents another opportunity to analyze the distinction between being charged with a crime of driving a motor vehicle in this state while under the influence of alcohol in violation of W. Va.Code 17C-5-2(d)(1)(A),(2) (1995), which provides:
(d) Any person who:
(1) Drives a vehicle in this state while:
(A) He is under the influence of alcohol;
(2) Is guilty of a misdemeanor....
as compared and contrasted with being charged with the crime of driving a vehicle in this state while having an alcohol concentration in his or her blood of ten one hundredths of one percent or more in violation of W. Va.Code 17C-5-2(d)(1)(E),(2) (1995), which provides:
(d) Any person who:
(1) Drives a vehicle in this state while:
(E) He has an alcohol concentration in his or her blood of ten hundredths of one percent or more, by weight;
(2) Is guilty of a misdemeanor....
These two statutory provisions contain subtle yet significant distinctions which become manifest when examining the instruction which was given to the jury in this case.
The entire instruction given by the trial court regarding the crime charged in the indictment is as follows:
The [c]ourt instructs the jury that any person who drives a vehicle in this state while he is under the influence of alcohol, or he has an alcohol concentration in his blood of ten hundredths of one percent or more, by weight, is guilty of a crime.
Because, as we will discuss, this instruction actually informs a jury of two separate crimes--one of which the appellant was not charged--the instruction is misleading and constitutes reversible error.
Our standard of appellate review of a jury instruction was formulated in Syllabus Point 15, State v. Bradshaw, 193 W.Va. 519, 457 S.E.2d 456, cert. denied --- U.S. ----, 116 S.Ct. 196, 133 L.Ed.2d 131 (1995):
Jury instructions are reviewed by determining whether the charge, reviewed as a whole, sufficiently instructed the jury so they understood the issues involved and were not misled by the law. A jury instruction cannot be dissected on appeal; instead, the entire instruction is looked at when determining its accuracy. The trial court, therefore, has broad discretion in formulating its charge to the jury, so long as it accurately reflects the law. Deference is given to the circuit court's discretion concerning the specific wording of the instruction, and the precise extent and character of any specific instruction will be reviewed for an abuse of discretion.
This standard of review was further refined in State v. Guthrie, 194 W.Va. 657, 671, 461 S.E.2d 163, 177 (1995), to the extent that if an objection to a jury instruction is a challenge to a trial court's statement of the legal standard, as is the case here, we will conduct our review de novo.
Until 1986, West Virginia regarded a driver with a blood alcohol content of ten hundredths of one percent or more by weight as prima facie evidence of intoxication, however, driving with such a blood alcohol content was not a crime per se. See State ex rel. Kutsch v. Wilson, 189 W.Va. 47, 50-51, 427 S.E.2d 481, 484-85 (1993). Prior to 1986, it was possible, therefore, for a person driving a motor vehicle with a blood alcohol content of ten hundredths of one percent or more by weight to be found not guilty of driving under the influence of alcohol. The West Virginia Legislature corrected this anomaly in 1986 by amending W. Va.Code 17C-5-2 to make the act of driving a vehicle in this State, while having an alcohol concentration in his or her blood of ten hundredths of one percent or more, a crime per se.
We, therefore, must examine the instruction given in this case with the understanding that the Legislature clearly intended to create a separate crime of: (1) driving a vehicle while under the influence of alcohol; and (2) driving a vehicle with a blood alcohol concentration of ten hundredths of one percent or more. The instruction given in this case must inform the jury of the elements of the crime for which the appellant was charged--driving while under the influence of alcohol. 6
The jury instruction given by the trial court told the jury that in order to convict the defendant of the crime of driving a motor vehicle while under the influence of alcohol (the crime for which the defendant was indicted), they could find that he was driving a motor vehicle with a blood alcohol concentration of ten hundredths of one percent (a crime of which he was not indicted). It is reversible error for a trial court to give an instruction that permits the jury to convict a defendant of a crime for which he was not indicted, because "[t]he court may not substantially amend the indictment through its instructions to the jury." United States v. Vowiell, 869 F.2d 1264, 1271 (9th Cir.1989) (citations omitted). See Stirone v. United States, 361 U.S. 212, 217, 80 S.Ct. 270, 273, 4 L.Ed.2d 252 (1960), holding that a...
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