State v. Cheney

• Decision Date: 29 June 1989
• Docket Number: No. 17311,17311
• Citation: State v. Cheney, 116 Idaho 917, 782 P.2d 40 (Idaho App. 1989)
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Richard CHENEY, Jr., Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 40

782 P.2d 40

116 Idaho 917

STATE of Idaho, Plaintiff-Respondent, v. Richard CHENEY, Jr., Defendant-Appellant.

No. 17311.

Court of Appeals of Idaho.

June 29, 1989.

Petition for Review Denied Nov. 30, 1989.

William J. Brauner, Caldwell, for defendant-appellant.

Jim Jones, Atty. Gen. and Myrna A.I. Stahman, Deputy Atty. Gen., Boise, for plaintiff-respondent.

WINMILL, Judge Pro Tem.

Richard Cheney was convicted in the magistrate division of the district court for Canyon County of driving an automobile while under the influence of alcohol. I.C. § 18-8004. For this offense, Cheney was fined $750, he was placed on probation for two years, and his driver's license was restricted for a period of 180 days. Cheney's conviction was affirmed by the district court on appeal. Appealing further, Cheney argues that his conviction should be reversed for two reasons. First, he contends that the state should not have been permitted to amend its complaint before trial without affording him an opportunity to prepare for what appeared to be new charges. Second, he submits that the evidence at trial was insufficient to support his conviction. For the reasons explained below, we affirm the district court's decision upholding Cheney's conviction.

The essential facts of this case are as follows. Early on the morning of July 20, 1986, Officers Angela Fannin and Gary Cram of the Caldwell City Police Department encountered Cheney's vehicle stopped at the corner of Seventeenth and Blaine Avenues in Caldwell. The automobile was parked on the wrong side of the street, facing south in the north-bound lane of Seventeenth Avenue. The vehicle's lights were on and the engine was running. Cheney was seated in the driver's seat of the automobile with his eyes closed and his head resting on his chest.

Fearing that Cheney may have had a heart attack, the officers approached the vehicle and tried to awaken him. Officer Fannin knocked on the driver's window, but Cheney did not respond. Fannin then opened the driver's door and shook Cheney, who awoke, disoriented. The officer noticed a half-empty beer can propped between Cheney's legs.

The officers then asked Cheney to step out of his automobile. Cheney stumbled from the vehicle, apparently intoxicated. Noting a strong odor of alcohol on Cheney, the officers questioned him regarding his whereabouts that evening. Cheney responded that he was returning home from a friend's house. However, when asked about his present location, Cheney said that he was at a location approximately ten miles from the intersection. The officers then placed Cheney under arrest. He was administered a breathalyzer test which showed his blood-alcohol content to be between .15 and .16 percent. A pool of transmission fluid was found underneath Cheney's automobile when it was towed from the intersection.

Cheney pled not guilty to driving under the influence of alcohol, and a trial on this matter was set for April 21, 1987. On April 20, 1987, the prosecutor moved to amend the complaint against Cheney to reflect the state's intention of relying on the theory that Cheney was guilty of the offense of exercising actual physical control over his motor vehicle while intoxicated. I.C. § 18-8004(1). At trial, Cheney's attorney opposed the motion, arguing that he was unprepared to defend Cheney on the "additional" charge. The attorney asked for a continuance in order to prepare Cheney's defense. The trial court granted the state's motion to amend its complaint, and denied Cheney's motion for a continuance. The jury returned a guilty verdict against Cheney. The district court, in its appellate capacity, affirmed the conviction. This appeal followed.

We first note our standard of review. When reviewing a district court's decision rendered in that court's appellate capacity, we review the record before the magistrate independently of the district court's determination. State v. Allison, 112 Idaho 572, 733 P.2d 793 (Ct.App.1987). A judgment of conviction, entered upon a jury verdict, will not be set aside where there is substantial evidence upon which any rationale trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Decker, 108 Idaho 683, 701 P.2d 303 (Ct.App.1985). We will not substitute our judgment for that of the jury as to the credibility of witnesses, the weight of the testimony, and the reasonable inferences to be drawn from the evidence. State v. Campbell, 104 Idaho 705, 662 P.2d 1149 (Ct.App.1983). However, as to questions of law, we exercise free review. Standards of Appellate Review in State and Federal Courts, IDAHO APPELLATE HANDBOOK § 3.2.1 (Idaho Law Foundation, Inc.1985). Depending upon the outcome of our review, we will either affirm or reverse the district court's appellate decision accordingly. State v. Hayes, 108 Idaho 556, 700 P.2d 959 (Ct.App.1985).

I

We first discuss Cheney's challenge to the magistrate's decision allowing the state to amend its complaint. Cheney submits that I.C. § 18-8004, commonly referred to as the Idaho DUI statute, creates two offenses: (1) "driving" under the influence of alcohol, drugs or other intoxicating substances; and (2) exercising "actual physical control" over a motor vehicle while under the effect of similar intoxicants. ¹ Cheney contends that the magistrate abused her discretion by allowing the state to amend its complaint--prior to trial--by charging him not only with the crime of driving under the influence, but also with the crime of being in actual physical control of a motor vehicle while he was in an intoxicated state. Cheney submits that, as a result of the magistrate's decision, he was unprepared to defend himself at trial against the additional "charge" filed against him by the state, and that his motion for a continuance to prepare himself should have been granted. ²

Based upon our review, we conclude, as a matter of law, that I.C. § 18-8004 does not create separate offenses. We have previously held that Idaho's DUI statute does not embody separate crimes for driving while under the influence and driving with a specified blood-alcohol content. State v. Knoll, 110 Idaho 678, 718 P.2d 589 (Ct.App.1986). Rather, the statute provides for one crime with alternative methods of proof: violation per se by proof of blood-alcohol content in excess of .10 percent, or, alternatively, by proving with other circumstantial evidence that the defendant was driving under the influence of alcohol. State v. Hartwig, 112 Idaho 370, 732 P.2d 339 (Ct.App.1987). In Knoll, the defendant contended that the two methods of proof created separate offenses. Therefore, she argued that evidence of her blood alcohol content was inadmissible at trial on a complaint charging her with driving under the influence. However, in reaching our decision in that case we stated that, when construing the DUI statute, we were bound to give the language of the statute a sensible interpretation. State v. Knoll, 110 Idaho at 682, 718 P.2d at 593. By noting the exigencies inherent in establishing proof of intoxication, we construed the statute to contain only one offense, and held that evidence of Knoll's blood alcohol content was admissible at trial upon the complaint charging her with driving under the influence. Id. ³

In the present case, we reach a similar conclusion. The language of the DUI statute states that it is unlawful to drive or to exercise actual physical control of a motor vehicle while under the influence of alcohol, drugs or other intoxicating substances. The statute does not, as Cheney suggests, list these conditions separately, as if each were an offense distinct from the other. We believe that "driving" and being in "actual physical control" of a motor vehicle are alternative "circumstances" under which the crime of driving under the influence may be charged. Cf. State v. Banks, 113 Idaho 54, 740 P.2d 1039 (Ct.App.1987) (I.C. § 18-6101 lists six circumstances under which the crime of rape may be charged). ⁴ This appears to be a sensible interpretation of the DUI statute. We are bolstered in our opinion by the fact that the legislative history of the DUI statute does not recognize any distinction between driving and exercising actual physical control of a motor vehicle. See 1983 Idaho Sess.Laws (Ex. Sess.) ch. 3 § 1, p. 9-10.

Furthermore, we are unpersuaded that Cheney was prejudiced by the state's decision to amend its complaint immediately before trial. Although Cheney argues that his defense at trial would have been entirely different if the state's complaint had been limited to charging him with driving under the influence, we fail to see such a distinction. By his own admission, Cheney points out that his defense to the DUI charge was that his automobile was inoperable at the time of his arrest. See II, infra. Arguably, this defense would be applicable in circumstances involving either driving under the influence or to being in actual physical control of a motor vehicle while intoxicated. Thus, regardless of how the state's complaint was worded, Cheney's defense would have been based upon the same set of circumstances as those he presented at trial. Without more, we fail to see how he was prejudiced by not being given a continuance to prepare his defense.

We therefore conclude that the magistrate did not abuse her discretion in granting the state's motion to amend its complaint against Cheney, and in her decision to deny Cheney a continuance to prepare his defense.

II

Next we consider Cheney's argument regarding the sufficiency of the evidence. Cheney points out that the jury found him guilty of driving while under the influence of an intoxicating beverage. However, Cheney contends that, at the time of his arrest, he was not driving his vehicle, but rather was sitting in the driver's...