Young v. State

• Decision Date: 12 July 2016
• Docket Number: S–15–0232
• Parties: Donald Earl Young, Appellant (Defendant), v. The State of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

375 P.3d 792
2016 WY 70

Donald Earl Young, Appellant (Defendant)
v.
The State of Wyoming, Appellee (Plaintiff).

S–15–0232

Supreme Court of Wyoming.

July 12, 2016

Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel. Patricia L. Bennett, Appellate Counsel. Argument by Ms. Bennett.

Representing Appellee: Peter K. Michael, Attorney General; David L. Delicath, Deputy Attorney General; Christyne M. Martens, Senior Assistant Attorney General; Jesse B. Naiman, Assistant Attorney General. Argument by Mr. Naiman.

Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

BURKE, Chief Justice.

[¶1] Donald Young appeals his conviction of driving under the influence of alcohol. He contends that the district court erred in permitting the State to introduce expert testimony involving retrograde extrapolation to prove that Mr. Young's blood alcohol level was above 0.08% while he was driving on the night in question.¹ We affirm.

ISSUE

¶2] The issue to be resolved, as set forth by the State, is whether the district court committed plain error when it allowed the State to introduce retrograde extrapolation evidence.

FACTS

[¶3] On the evening of August 1, 2014, Lanette Brown and her son, DY, were visiting her cousin and his children. They were outside in the yard. At around 10:30 that evening, Mr. Young drove his vehicle, a red Cadillac, to the cousin's home, intending to pick up his son. Ms. Brown testified that she “knew [Mr. Young] was intoxicated because he was kind of staggering, and he was a little bit belligerent towards my cousin.” She

[375 P.3d 794

smelled the odor of alcohol on him. He asked where his son was, even though the boy was standing nearby. She told Mr. Young that he could not take his son.

¶4] Apparently ignoring her, Mr. Young took his son by the arm and pulled him toward the car. The son also smelled alcohol on his father's breath, and did not want to get in the car with him. He pulled away from his father, and ran to his own home a short distance away. Mr. Young returned to his car, and started driving it down the street in reverse. He was driving fast, and his tires were squealing and screeching, when he struck a parked vehicle. Hearing the crash, Ms. Brown called 911. She made the call at 10:39 p.m.

[¶5] By the time police arrived, Mr. Young and his car had left the scene of the collision. Another team of police went directly to Mr. Young's residence. They arrived at the residence at approximately 10:50 p.m. and found Mr. Young outside his residence. They also observed a Cadillac with damage that an investigating officer described as “fresh.” When the officers interviewed Mr. Young, they observed that he smelled of alcohol, had bloodshot eyes, and slurred his speech. The police subjected him to field sobriety tests. After concluding the tests, the officers determined that Mr. Young was intoxicated and arrested him. At the police station, at sixteen minutes after midnight, Mr. Young was given a breath test, which indicated his blood alcohol level was 0.079%. He was charged with driving under the influence of alcohol, fourth offense, in violation of Wyo. Stat. Ann. § 31–5–233(b) (LexisNexis 2013). He was also charged with unlawfully operating a vehicle without a required ignition interlock device in violation of Wyo. Stat. Ann. § 31–7–404(a), failure to stop upon colliding with an unattended vehicle in violation of Wyo. Stat. Ann. § 31–5–1104, and failure to maintain liability coverage in violation of Wyo. Stat. Ann. § 31–4–103(a).

[¶6] Prior to trial, Mr. Young filed a motion in limine. According to the motion, “It is the Defendant's intent to object at trial, if and when, the [State] attempts to put on any and all evidence in reference to the defendant's consumption of alcohol (without accounting for the time the defendant was not in the presence of law enforcement or any other witness).” The motion asserted that this evidence is irrelevant “without accounting for the Defendant's actions between the period of time police responded to a report of a hit and run accident; and, the time law enforcement made contact with the defendant.” The motion identified the Defendant's blood alcohol content taken at the Natrona County Detention Center, testimony from a retrograde extrapolation expert, video from the police cruiser of the field sobriety tests administered by the Casper Police Department, and video from the police cruiser of the Defendant being transported to the Natrona County Detention Center as examples of evidence that were included in the motion. After argument, the district court denied the motion. The court did, however, clarify that the evidence at issue could be challenged during trial and that the court would be “inclined to give the Defense a right to voir dire if there needs to be clarification with testimony under oath to support the concerns that have been expressed by the Defense.”

[¶7] During trial, the State called Moss Kent, a forensic toxicologist, to testify. Mr. Kent testified that based on his retrograde extrapolation calculations, Mr. Young's blood alcohol concentration at 10:39 p.m. on the night in question would have been between 0.095% and 0.124%, above the legal limit of 0.08% set out in Wyo. Stat. Ann. § 31–5–233(b)(i). He explained that his opinion was based on the undisputed fact that the breathalyzer test Mr. Young took 97 minutes after the accident showed a blood alcohol level of 0.079%. He testified that a person eliminates alcohol from his body at a steady, constant rate. Accordingly, if a person's blood alcohol level is known at a certain point in time, his blood alcohol level at an earlier time may be determined by calculating how much alcohol was eliminated from his body between the two points in time. Mr. Kent also testified that different people eliminate alcohol at different rates. Because he did not know Mr. Young's particular rate of elimination, he used a range of elimination rates. He calculated that Mr. Young's blood alcohol level when he was driving his car would have

[375 P.3d 795

ranged from 0.095% to 0.124%. His opinion was predicated upon the assumption that Mr. Young was in the post absorption phase when the breathalyzer test was given.

¶8] When the State sought to admit Mr. Kent's retrograde extrapolation calculations into evidence, the district court asked Mr. Young if he had any objection. Mr. Young did not object. After the State rested, Mr. Young moved for a judgment of acquittal. The district court granted the motion as to the charge of failure to maintain liability coverage, but denied the motion as to the three other charges.

[¶9] The jury was provided with two options for determining whether Mr. Young was guilty of driving under the influence: The jury could find Mr. Young guilty if it determined that he was 1) driving with a blood alcohol concentration of 0.08% or more and/or 2) driving “under the influence of alcohol to a degree which rendered him incapable of safely driving a vehicle.” The jury was instructed that it could find Mr. Young guilty on “one theory, or the other, or both.” The jury found Mr. Young guilty of driving “under the influence of alcohol to a degree which rendered him incapable of safely driving a vehicle.” The jury did not find that Mr. Young was guilty of driving with a blood alcohol concentration of 0.08% or more. Mr. Young was also found guilty of driving without an interlock device and of failure to stop after colliding with an unattended vehicle. The district court sentenced Mr. Young to four to six years for driving under the influence.² This appeal followed.

STANDARD OF REVIEW

[¶10] Mr. Young asserts that the district court's decision to admit the retrograde extrapolation evidence should be reviewed for an abuse of discretion. The State contends that the decision must be reviewed for plain error. We agree with the State.

[¶11] We have previously ruled that a party must “object during trial to preserve the issue raised in its motion in limine, unless it can be said that the district court's ruling on that motion was definitive.” Hicks v. Zondag , 2014 WY 16, ¶ 14, 317 P.3d 606, 610 (Wyo.2014). In Mr. Young's case, when the district court denied the motion, it expressly indicated that Mr. Young could raise the objection again at trial:

[H]ere's how I see this, is the challenge really may be as to the qualifications and surely as to the proper foundation for any opinion testimony such as that that's been identified here. And it seems to me that those may be matters that can be challenged at the time any proposed opinion is to be rendered, whether there's sufficient foundation, whether the opinion can be rendered to a degree of scientific certainty, whether the opinion is one that meets the standards of

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