State v. Longe

• Decision Date: 24 September 1999
• Docket Number: No. 98-088.,98-088.
• Citation: 743 A.2d 569
• Parties: STATE of Vermont v. Barry LONGE.
• Court: Vermont Supreme Court

743 A.2d 569

STATE of Vermont v. Barry LONGE.

No. 98-088.

Supreme Court of Vermont.

September 24, 1999.

Edward G. Adrian, Franklin County Deputy State's Attorney, St. Albans, for Plaintiff-Appellee.

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

Present AMESTOY, C.J., and DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.

AMESTOY, C.J.

Defendant Barry Longe appeals the decision of the Franklin District Court denying his motion for judgment of acquittal following a jury verdict of guilty for operating a motor vehicle after license suspension in violation of 23 V.S.A. § 674(b). On appeal, defendant argues that the reason for defendant's underlying suspension is an essential element of a § 674(b) charge which the trial court erroneously removed from the jury's consideration. We disagree and affirm the conviction.

As a threshold matter, the parties disagree on our standard of review. Defendant maintains that this case presents an error of law, and accordingly is subject to de novo review. The State contends that this case involves a discretionary ruling regarding prejudicial evidence pursuant to V.R.E. 403 which is reviewed only for abuse of discretion. Although the issue was raised initially under V.R.E. 403, the actual question before us is whether the trial court improperly removed an essential element from the jury's consideration. This question presents a question of law and, accordingly, we review it de novo.

At issue in this case is the connection among three related sections of Title 23 of the Vermont statutes. Defendant was charged with operating a motor vehicle while his license was still suspended as a result of his failure to comply with 23 V.S.A. § 1209a. Section 1209a provides in relevant part that no license suspended or revoked under the subchapter shall be reinstated unless the person has successfully completed an alcohol and driving education program. Section 1201 prohibits any person from operating, attempting to operate, or being in actual physical control of any vehicle on a highway when the person's alcohol concentration is .08 or more. See 23 V.S.A. § 1201(a)(1). Finally, § 674(b), the section with which defendant was charged, provides in part that:

A person whose license or privilege to operate a motor vehicle has been suspended or revoked for a violation of section 1201 of this title ... and who operates or attempts to operate a motor vehicle upon a public highway before reinstatement of the license shall be imprisoned not more than two years or fined not more than $5,000, or both.

23 V.S.A. § 674(b). Stated more succinctly: first, defendant's license was revoked for driving under the influence of alcohol, see id; second, he failed to satisfy the alcohol and driving education program, see id. § 1209a; third, he was charged with operating a motor vehicle while his license was still suspended (DLS) due to his failure to satisfy the requirements of § 1209a, see id. § 674(b).

Before the trial began, defendant indicated to the State and the court that he would object to any mention of driving under the influence (DUI). Accordingly, the State produced two witnesses, neither of whom testified that the defendant had been suspended for a DUI conviction. An employee of the Department of Motor Vehicles (DMV) testified that defendant's privilege to operate a motor vehicle was suspended on October 24, 1997, and had not been reinstated as a result of his failure to complete the § 1209a requirements. During the employee's testimony, however, the State introduced two exhibits documenting the suspension, one of which was a license suspension notice from the DMV indicating that defendant's license was suspended for operating a motor vehicle with a blood alcohol content of .08 or more. Defendant objected to admitting the documents, arguing that any language relating to alcohol concentration be redacted. Before admitting these documents, the court agreed to delete all language relating to DUI to avoid prejudice to the defendant.

Later, during a colloquy regarding jury instructions, the State suggested that § 1201 need not be mentioned to the jury. Instead, the State contended that § 1209a could act as a "surrogate" for § 1201, thereby avoiding the potentially prejudicial language of § 1201. The court responded that the issue raised a question of law for the court to resolve. In the presence of counsel only, the court found, as a matter of law, that the defendant had a previous conviction for operating a motor vehicle with a blood alcohol concentration of more than .08 percent, and that the underlying suspension was a result of that conviction. The court later instructed the jury that the State's information charged the defendant with DLS for failing to satisfy 23 V.S.A. § 1209a, in violation of 23 V.S.A. § 674(b). The court further instructed:

The information that I read to you earlier made reference to ... § 674(b) and that statute provides a person whose license or privilege to operate a motor vehicle has been suspended or revoked for a violation of § 1209 of this title and who operates ... a motor vehicle upon a public highway before the suspension period imposed for the violation has expired shall be punished according to the law.

Now, in this case the State must prove the essential elements as follows, each of them beyond a reasonable doubt:

First, that it was the defendant....

That his operation of a motor vehicle was on a public highway.

That at the time of the operation, the defendant's right to operate a motor vehicle was under active suspension, and that it had not been reinstated.

Do not be concerned about the actual language of ... § 1209a or § 1201. It is sufficient if the State has shown beyond a reasonable doubt that the defendant was under suspension at the time of operation.

Defendant was convicted of DLS in violation of 23 V.S.A. § 674(b). Defendant made a motion for judgment of acquittal or, alternatively, for a new trial, both of which were denied.

On appeal, defendant argues that the court erred in instructing the jury not to be concerned with the language of §§ 1201 or 1209a. He contends that the court's determination that, as a matter of law, defendant had been convicted of DUI, along with the corresponding jury instruction, removed an essential element of the crime from the jury's province and generated two errors. First, defendant argues that there was no evidence that defendant's license was suspended for violation of § 1201 and, accordingly, the motion to acquit should have been granted. Second, even if there were sufficient evidence to convict defendant of a § 1201 violation, defendant argues that the court erred in refusing to instruct the jury that a verdict of guilty depended on a finding as to the reason for the suspension.

The statutes governing DLS grade the offense depending on the section violation on which the underlying suspension is based. In the instant case, § 674(b) establishes a maximum of two years imprisonment, a fine of $5,000, or both, if the underlying suspension was a result of a violation of § 1201. Operation after suspension for any reason other than a violation of §§ 674, 1091, 1094, 1128, 1133, 1201 or 1205 of Title 23 constitutes a civil traffic violation. See 23 V.S.A. § 674. Defendant argues that because the section violation of the underlying suspension determines whether the offender will be subject to criminal or civil penalties, the fact that defendant drove after his license was suspended for a violation of § 1201 was an essential element of § 674(b), and this element should have been determined by the jury rather than the court. See State v. Williams, 160 Vt. 615, 617, 627 A.2d 1254, 1255 (1993) (mem.).

We explained in Williams that prior to its amendment in 1991 § 674 set forth maximum fines and terms of imprisonment for operating a motor vehicle with a suspended license based on the number of the defendant's prior offenses. The reason for the underlying offense, therefore, was not relevant to the fine or sentence imposed. As amended, however, § 674 subjects a defendant to criminal penalties only when the defendant's underlying suspension resulted from violation of certain statutory sections. We explained:

If the underlying suspension was for any reason other than a violation of the sections listed in amended § 674(a), an operator commits a civil traffic violation... and is subject only to civil penalties. Thus, under the amended statute, the reason for the underlying suspension determines whether the offender will be subject to criminal or civil penalties.

Id. at 616, 627 A.2d at 1254 (internal quotation marks omitted).

Relying on this language, defendant argues that the reason for an underlying suspension is an essential element of a § 674 charge and that this element was improperly removed from the jury's province. In Williams, we reversed a § 674 conviction because the information stated that defendant operated a motor vehicle while his license was suspended in violation of § 674, but did not state the reason of the underlying suspension. See id. at 617, 627 A.2d at 1255. We concluded that the conviction could not stand because the information omitted an essential element of the offense and, therefore, the defendant had no opportunity to present any potential defense concerning the reason for the suspension. See id.

In the instant case, the information stated that the defendant operated a motor vehicle when his "right to operate a motor vehicle was under active suspension by the Commissioner of Motor Vehicles for Title 23 V.S.A. § 1209a and the same not having been reinstated, in violation of Title 23 V.S.A. § 674(b)." Unlike the information in Williams, this information sufficiently informed the defendant of the basis and nature of the charge so as to enable him to prepare his defense. See, e.g., State v. Towne, 158 Vt. 607, 631, 615 A.2d 484, 497 (1992) (...