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ROSS v. STATE12/26/1997
The offense of driving while intoxicated (DWI) has traditionally been a misdemeanor, but in 1995 the Alaska Legislature made this
offense a class C felony for defendants with two prior convictions for either DWI or breath-test refusal within the preceding five years. See AS 28.35.030(n), enacted by 1995 SLA ch. 80, § 7. The main issue raised in this appeal is whether the existence of the defendant's two prior convictions is an element of the crime of felony DWI, or is instead merely a factor that enhances the defendant's sentence. For the reasons explained below, we hold that the existence of the two prior convictions is an element of the crime.
In their briefs to this court, the parties to this appeal discuss one other issue that is related to the question of whether the prior convictions are an element of the crime. This second issue is whether a defendant on trial for felony DWI has a right to have the trial judge assume the role of trier of fact on the issue of the prior convictions — and to keep all evidence of the prior convictions away from the jury. We conclude that we need not decide this issue for two reasons: first, because it was not preserved for appeal; and second, because the appellant has not demonstrated that he was prejudiced by the manner in which evidence of his prior convictions was presented to the jury.
Ronald E. Ross was tried for felony DWI in the Fairbanks superior court. He was charged with driving while intoxicated on the evening of October 18, 1995; the offense was charged as a felony because Ross had been convicted of DWI in 1991 and again in 1993.
Just before the trial began, Ross asked Superior Court Judge pro tem. Charles R. Pengilly to keep all evidence of the prior DWI convictions from the jury. Ross argued that his prior convictions were not an element of the offense — that the prior convictions were relevant only to sentencing (in the event the jury found Ross guilty of the current DWI). Ross told Judge Pengilly that, because the prior convictions were a sentencing factor and not an element of the crime, it was the judge's role, not the jury's, to decide whether Ross had previously been convicted.
Judge Pengilly rejected Ross's request because he concluded that the existence of prior convictions was indeed an element of the offense, something that the State would have to prove to the jury beyond a reasonable doubt. The judge did, however, agree with Ross that evidence of the prior convictions posed a danger of unfair prejudice. He suggested that this risk of prejudice could be minimized if Ross and the State stipulated to the bare facts of the prior convictions.
Ross chose to pursue this option. He and the prosecutor agreed that a short statement concerning the prior convictions would be read to the jury during trial and then reiterated in the jury instructions at the end of the trial. In accordance with this agreement, Judge Pengilly told the jury:
Ladies and gentlemen, the State and the defense have reached a stipulation[.] . . . The parties have agreed that Mr. Ross was convicted of DWI on February 28, 1991, and again . . . on August 6, 1993. Given that the parties have agreed to those facts, you can take those facts as having been conclusively proven.
The issue of Ross's prior convictions came up one more time, during the prosecutor's summation to the jury. Ross had taken the stand at trial and had testified that he consumed only a small amount of alcohol on the evening in question. In his rebuttal argument, the prosecutor suggested to the jury that they should not believe Ross's testimony, in part because Ross had been convicted twice of DWI within the preceding f
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