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Sears v. State5/19/1999
4048 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
Appeal from the Superior Court, Third Judicial District, Palmer, Beverly W. Cutler, Judge.
A jury convicted Todd S. Sears of felony driving while intoxicated (DWI). Sears appeals, contending that the indictment should have been dismissed because the grand jury was provided with insufficient evidence, and because the grand jury was improperly instructed on the definition of "operate." Sears also contends that the police lacked probable cause to arrest him for DWI, and that Superior Court Judge Beverly W. Cutler should have granted his motion for acquittal because there was insufficient evidence at trial to support his DWI conviction. We affirm.
Shortly after midnight on March 31, 1996, Sears and two companions slid Sears' pickup truck off the road while trying to turn around in a cul-de-sac at the end of Naomi Street in Wasilla. The truck became stuck on a snow berm in the ditch in front of the Schwaderer home.
The noise of the truck sliding into the ditch, along with the noise of the efforts to extricate the truck, attracted the attention of Mr. and Mrs. Schwaderer, who watched the three from the house. Looking out from separate windows, Mr. and Mrs. Schwaderer saw Sears' companions, Stacy Erlendson and Alex Lovett, get out of the truck and push it as Sears operated it. Mrs. Schwaderer could see the truck's tires spinning and throwing snow during these efforts. Mr. Schwaderer watched the three men nearly extricate the truck several times, only to spin it sideways and go deeper into the ditch. At one point, Mrs. Schwaderer saw all three get out of the truck; she saw Sears get out of the driver's door, while the others got out of the passenger side. Mr. Schwaderer saw Sears get out when the police arrived. Although the area was not particularly well lighted, the Schwaderers could identify Sears because he wore a baseball cap, and he was noticeably shorter than the other men.
As the efforts to free the truck caused it to become more firmly stuck, Mrs. Schwaderer called the police. Wasilla Police Officer Robert Dixon responded to the dispatch. As he drove down Naomi Street, Sears, sitting in the driver's seat, flashed the truck's headlights. Dixon pulled past Sears, and then turned around and parked behind Sears. He illuminated the truck with his headlights. He was soon joined by Wasilla Police Officer Douglas Sonerholm, who arrived moments later. When Sonerholm arrived, he too saw Sears sitting behind the truck's steering wheel.
As Dixon contacted Sears he could see that the vehicle was stuck, and that the snow berm had been "chewed up" by the efforts to free the truck. Upon contact, Dixon noticed that all three men seemed highly intoxicated. Sonerholm, who took the passengers into his car, believed that they were both extremely intoxicated. Dixon noticed that the truck's engine was not running, nor were the keys in the ignition. Neither police officer saw the keys in the truck's cab, nor did Dixon find the keys on Sears' person.
Dixon took Sears to his police car, where Dixon administered a horizontal gaze nystagmus test and then a preliminary breath test. Based on the results of these tests, along with his other observations of Sears, Dixon arrested Sears for DWI. He transported him to the facility used by t
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