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Towne v. State6/10/1998
NOTICE Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited for any proposition of law, nor as an example of the proper resolution of any issue.
MEMORANDUM OPINION AND JUDGMENT
A jury convicted Robert D. Towne of felony driving while intoxicated (DWI). AS 28.35.030(a), (n). Towne appeals, contend-ing that Acting Superior Court Judge William H. Fuld improperly instructed the jury on the definitions of operating and being in physical control of a motor vehicle; Towne also argues there was insufficient evidence at trial that he was in physical control of a motor vehicle. Towne also contends that Judge Fuld should have granted a new trial because some jurors surmised during deliberations, from the fact Towne was being tried for a felony, that Towne had had prior convictions for DWI. We affirm.
On the evening of July 5, 1996, Christopher Steeves, an employee at Wal-Mart, saw a van filled with adults and children parked in the parking lot; a man, Towne, was sitting in the van's driver seat drinking a beer. Concerned for the children's safety, Steeves consulted his supervisor, who told him to telephone the police. When Anchorage Police Officer Joe Masten arrived, he parked his car behind the parked van and then walked to the driver's side doorway and spoke to Towne, who was in the driver seat. Masten asked Towne to step out of the van and observed Towne's slurred speech and poor balance and the odor of alcohol. Masten radioed other police officers to handle Towne's processing for DWI. During this investigation, Towne failed and refused field sobriety tests and was arrested for DWI; Towne later submitted to testing on the Intoximeter machine, which registered a breath-alcohol level of 0.236.
Meanwhile, because Masten had not seen Towne actually driving the van, Masten remained to ensure that Towne's van, an older-model Volkswagen bus, was actually operable. When Masten had asked Towne for the keys to the van, Towne had answered that the van did not take a key. Masten now observed (and had photographed) that there were three wires hanging down from the left side of the dashboard, taped together with electrical tape with their copper ends exposed; when Masten "just rolled the three [wires] together," the van immediately started. Masten then engaged both forward and reverse gears and confirmed that the van actually moved, and then disconnected the wires so the engine stopped. Later, when the wrecker arrived to impound the van, the wrecker driver again started the van and drove it out of the parking space.
The jury found Towne guilty of DWI. The jury reached no verdict on a separate charge of driving while license revoked; the state later dismissed this charge.
Towne first contends on appeal that Judge Fuld improperly instructed the jury regarding the definitions of "operating" and "actual physical control" for purposes of DWI. In particular, Towne objected to the portion of Judge Fuld's instruction that defined "physical control" to include "being in a position to exercise exclusive control over the operation of the vehicle while possessing the means to start the vehicle and the ability to do so." Towne also objected to the portion of Judge Fuld's instructions that stated that being in "actual physical control" of a vehicle did not necessarily "require that the vehicle engine be running that the keys be in the ignition." Towne proposed that the jury instead be instructed that actual physical control "can be inferred" from one or the oth
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