State v. Huber

• Decision Date: 13 November 1996
• Docket Number: No. 960099,960099
• Citation: 555 N.W.2d 791
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Benjamin C. HUBER, Defendant and Appellant. Criminal
• Court: North Dakota Supreme Court

Page 791

555 N.W.2d 791

STATE of North Dakota, Plaintiff and Appellee, v. Benjamin C. HUBER, Defendant and Appellant.

Criminal No. 960099.

Supreme Court of North Dakota.

Nov. 13, 1996.

Larry W. Quast, State's Attorney, Stanton, for plaintiff and appellee.

Michael Ray Hoffman, Bismarck, for defendant and appellant.

SANDSTROM, Justice.

A jury convicted Benjamin Huber of driving under the influence of alcohol (DUI), a class B misdemeanor. On appeal, Huber claims the district court erred in allowing the State to amend the jury instructions to include "actual physical control" (APC). We reverse and remand for a new trial because the instructions permitted the jury to convict of DUI even if it found the defendant had only committed the lesser included offense of APC.

I

On the evening of August 4, 1995, a Mercer County Deputy Sheriff responded to a dispatcher call reporting a "suspicious" vehicle on County Road 21. Upon arriving at the location, the officer observed a black pickup off to the side of the road. He saw the vehicle move forward but could not positively identify the driver at that time. Two other persons were present at the scene--one standing outside the vehicle and the other seated in the passenger's seat. The person behind the wheel and the person outside the vehicle were arguing.

As the officer approached the vehicle, he identified the person behind the wheel as Huber. Huber was sitting in the driver's seat with the vehicle running. The other two people said one of them had been driving and Huber had slid behind the wheel when the driver stepped out of the vehicle. The officer conducted a number of field sobriety tests and placed Huber under arrest for driving under the influence of alcohol.

On the morning of trial, prior to jury selection, the State requested the jury instruction on "essential elements of the offense" be amended to include the phrase "or was in actual physical control of" a motor vehicle. The court's proposed instruction included only the term "operate" a motor vehicle. Over Huber's objection, the district court amended the instruction. The jury was instructed that "[t]he prosecution satisfies its burden of proof only if the evidence shows beyond a reasonable doubt ... Huber[ ] did operate or was in actual physical control of a motor vehicle...." The State did not amend the complaint, nor did the court amend the verdict forms to include a possible verdict of guilty of APC.

The district court had jurisdiction under N.D. Const. Art. VI, § 8, and N.D.C.C. § 27-05-06(1). The appeal from the district court was filed in a timely manner under N.D.R.App.P. 4(b). This Court has jurisdiction under N.D. Const. Art. VI, § 6, N.D.C.C. § 29-01-12, and N.D.C.C. § 29-28-06.

II

Huber claims the jury instruction was reversible error because DUI and APC are different offenses, and it is possible to commit APC without committing DUI. Because the additional instruction added a different offense, Huber argues the late amendment of the instruction prejudiced his substantial rights. We evaluate this case by first determining whether the district court erred in amending the instruction and, if so, whether the error was harmless. State v. Marshall, 531 N.W.2d 284 (N.D.1995); see also State v. Sievers, 543 N.W.2d 491 (N.D.1996) (applying harmless error standard to jury instruction). "We review jury instructions as a whole, and determine whether they correctly and adequately inform the jury of the applicable law." Marshall at 287 (citing State v. Azure, 525 N.W.2d 654, 658 (N.D.1994)). "If, as a whole, an instruction is erroneous, relates to a central subject in the case, and affects a substantial right of the accused, we will reverse for that error." Marshall.

A

" 'The purpose of jury instructions is to apprise the jury of the state of the law.' " State v. Murphy, 527 N.W.2d 254, 256 (N.D.1995) (quoting State v. Murphy, 516 N.W.2d 285, 286 (N.D.1994)). "Taken as a whole, the jury instructions 'must correctly and adequately inform the jury of the applicable law and must not mislead or confuse the jury.' " State v. Schneider, 550 N.W.2d 405, 407 (N.D.1996) (quoting City of Minot v. Rubbelke, 456 N.W.2d 511, 513 (N.D.1990)). N.D.R.Crim.P. 30 allows any party to request jury instructions. The defendant must request or object to the instructions to preserve the matter for appeal. Azure at 656. Failure to object to a jury instruction, when given opportunity to do so during trial, waives the right to challenge the instruction on appeal. State v. Trosen, 547 N.W.2d 735, 740 (N.D.1996); see also State v. Barnes, 551 N.W.2d 279, 281-82 (N.D.1996) ("[i]f the defendant does not request an instruction or object to the omission of an instruction, we will not reverse unless the failure to give the instruction constitutes obvious error").

B

The State contends Huber acquiesced in the instruction on APC by submitting a proposed instruction on APC, and he cannot object to the instruction on appeal. In this case, however, Huber objected prior to jury selection to the inclusion of APC in the jury instructions. The district court granted the State's request to include APC. Only after the court's ruling on the State's request did Huber agree to submit a proposed instruction on APC. We conclude Huber adequately objected to the instruction on APC.

C

The State contends there was no error because APC is, in fact, DUI under North Dakota law.

Under N.D.C.C. § 39-08-01(1):

"[a] person may not drive or be in actual physical control of any vehicle upon a highway or upon public or private areas to which the public has a right of access for vehicular use in this state if any of the following apply:

a. That person has an alcohol concentration of at least ten one-hundredths of one percent by weight at the time of the performance of a chemical test within two hours after the driving or being in actual physical control of a vehicle.

b. That person is under the influence of intoxicating liquor."

The State argues the amended instruction did not add a new or different offense because both APC and DUI appear in the same statute. A statute may contain more than one separate offense. See, e.g., State v. Vance, 537 N.W.2d 545 (N.D.1995) ("sexual act" and "sexual contact" are different offenses despite appearing in the same statute). Despite appearing in the same statute, DUI and APC are different offenses. See, e.g., State v. Schuh, 496 N.W.2d 41 (N.D.1993).

"Driving" is an element of DUI. N.D.C.C. § 39-08-01. N.D.C.C. Ch. 39-08 does not define "drive." The State argues the definition of "drive" under N.D.C.C. § 39-06.2-02(10) should apply. Generally, "[w]henever the meaning of a word or phrase is defined in any statute, such definition is applicable to the same word or phrase wherever it occurs in the same or subsequent statutes, except when a contrary intention plainly appears." N.D.C.C. § 1-01-09; Northern X-Ray Co., Inc. v. State, 542 N.W.2d 733 (N.D.1996).

Under N.D.C.C. § 39-06.2-02(10), "drive" is defined as "drive, operate, or be in physical control of a motor vehicle." Under this definition, being in "physical control" constitutes "driving" and APC would be the same offense as DUI. But the definition of "drive" relied on by the State is in N.D.C.C. Ch. 39-06.2, the chapter on commercial drivers' licenses, and is limited to "[a]s used in this chapter, unless the context or subject matter otherwise requires." N.D.C.C. § 39-06.2-02. DUI and APC appear in N.D.C.C. Ch. 39-08. As we have held, "driving is an element required in DUI, but not APC." City of Fargo v. Schwagel, 544 N.W.2d 873, 875 (N.D.1996). ¹

Under the rules of statutory construction, statutes are construed "to avoid absurd and ludicrous results." State v. Erickson, 534 N.W.2d 804, 807 (N.D.1995). If the definition of "drive" included both "operating" and being in "physical control," there would be no distinction between DUI and APC. They are, in fact, distinguishable. "The use of the word 'or' between DUI and APC in the statute indicates that the Legislature intended to establish two distinct offenses." State v. Jacobson, 338 N.W.2d 648, 650 (N.D.1983). "The execution or imposition of sentence under [N.D.C.C. § 39-08-01] may not be suspended or deferred" for a DUI violation. N.D.C.C. § 39-08-01(4)(e). Sentence may, however, be suspended for an APC violation. N.D.C.C. § 39-08-01(4)(e)(1).

Because APC and DUI are different offenses, "drive" cannot mean "physical control." We reject application of the definition of "drive" under N.D.C.C. § 39-06.2-02(10) to DUI. DUI and APC are different offenses.

D

Alternatively, the State argues APC is a lesser included offense of DUI.

Under N.D.C.C. § 12.1-01-04(15), an "[i]ncluded offense" means an offense:

"a. Which is established by proof of the same or less than all the facts required to establish commission of the offense charged;

b. Which consists of criminal facilitation of or an attempt or solicitation to commit the offense charged; or

c. Which differed from the offense charged only in that it constitutes a less serious harm or risk of harm to the same person, property, or public interest, or because a lesser degree of culpability suffices to establish its commission."

" 'An offense is a lesser included one of another only if, in order to commit the greater offense, it is necessary to commit the lesser.' " Jacobson at 650 (quoting 21 Am.Jur.2d, Criminal Law, § 269 (1981)). The difference between DUI and APC is DUI contains the element of "driving" and APC contains the element of "actual physical control." N.D.C.C. § 39-08-01. While it is possible to be in actual physical control without driving, it is not possible to drive without being in actual physical control.

In defining statutory terms, "words must be given their plain, ordinary and commonly understood meaning, and consideration should be given to the ordinary sense of statutory words, the context in which they are used, and the purpose which prompted...