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Mattox v. State (8/22/2008) ap-2180

Mattox v. State (8/22/2008) ap-2180

                             NOTICE
     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
     are  encouraged to bring typographical or other  formal
     errors  to  the attention of the Clerk of the Appellate
     Courts.

             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878
       E-mail:  corrections@appellate.courts.state.ak.us

         IN THE COURT OF APPEALS OF THE STATE OF ALASKA


RICHARD A. MATTOX, )
) Court of Appeals No. A-9949
Appellant, ) Trial Court No. 3KN-06-1774 CR
)
v. )
)
STATE OF ALASKA, ) O P I N I O N
)
Appellee. )
) No. 2180 August 22, 2008
Appeal    from    the
          Superior  Court,  Third  Judicial  District,
          Kenai, Harold M. Brown, Judge.

          Appearances:  Linda  K.  Wilson,   Assistant
          Public Defender, and Quinlan Steiner, Public
          Defender,   Anchorage,  for  the  Appellant.
          Kenneth  M.  Rosenstein, Assistant  Attorney
          General, Office of Special Prosecutions  and
          Appeals,  Anchorage, and Talis  J.  Colberg,
          Attorney General, Juneau, for the Appellee.

          Before:   Coats, Chief Judge, and Mannheimer
          and Stewart, Judges.

          STEWART, Judge.

          Richard  A.  Mattox was convicted of felony refusal  to
submit  to  a chemical test.1  He asks this court to reverse  his
conviction, arguing that there was insufficient evidence that  he
understood he was required to submit to a breath test to  support
          his conviction for refusal.  Having reviewed the record, we
conclude  there  was enough evidence for a fair-minded  juror  to
find  that Mattox knew or should have known of his legal duty  to
submit to a breath test.
          Mattox  also  argues that his right to due process  was
violated in two ways: first, because the officer who arrested him
for  driving  while under the influence did not explain  that  he
would be charged with a crime if he refused to submit to a breath
test,  even  if  he offered a blood test as an alternative;  and,
second, because the superior court did not instruct the jury that
the  officer  had a duty to explain this to him.  We reject  both
claims.   Mattox never argued in superior court that the  officer
violated  his  due process rights, so he has not  preserved  this
claim.   And  to  the extent Mattox preserved his attack  on  the
superior  courts  jury  instructions,  we  find  no  error.    We
therefore affirm Mattoxs conviction.
                                        
          Facts and proceedings
          Just  before  noon on September 4, 2006,  Kenai  Police
Officer  Jay Sjogren was dispatched to a residence to investigate
the report of an assault.  Dispatch told Officer Sjogren that the
suspect  had driven away in a green minivan.  As Officer  Sjogren
responded  to  the  report, he saw a green minivan  pull  into  a
nearby   driveway.   Officer  Sjogren  saw  the   driver,   later
identified as Mattox, get out of the van and stumble and  stagger
to  the front door.  Officer Sjogren approached Mattox and  tried
to  speak with him, but Mattox ignored him.  As Mattox walked by,
Officer Sjogren noticed he smelled of alcohol.
          After  interviewing the man who reported  the  assault,
Officer  Sjogren  decided  to focus his investigation  on  Mattox
because  he  believed  Mattox had been driving  while  under  the
influence.   Officer  Sjogren  asked  Mattox  to  perform   field
sobriety  tests,  but  Mattox  refused.   Officer  Sjogren   then
arrested Mattox and transported him to Wildwood Pretrial Facility
for  a breath test.  During the observation period preceding  the
breath  test,  Officer Sjogren read Mattox  the  implied  consent
warning  informing him that he was being asked  to  submit  to  a
chemical test of his breath and telling him that if he refused to
take  the test he would be charged with a crime.  Mattox  refused
to  sign the implied consent form.   He also refused to submit to
a breath test.  Officer Sjogren gave Mattox several opportunities
to  change his mind, but Mattox stated very clearly that he would
not  provide  a breath sample.  He did, however,  say,   Take  my
blood.   Just take my blood.  Officer Sjogren did not respond  to
this  statement  because  he planned  to  read  Mattox  the  form
advising him of his right to an independent chemical test.  After
Officer  Sjogren read the form, Mattox declined the offer  of  an
independent test.
          Mattox was charged with felony driving while under  the
influence,2  felony  refusal to submit to a chemical  test,3  and
driving  while license revoked.4  In a jury trial before Superior
Court  Judge Harold M. Brown, Mattox was convicted of  all  three
offenses.  He appeals his conviction for refusal to submit  to  a
chemical test.

          There  was  sufficient evidence to  convict  Mattox  of
          refusal
             Mattox  argues  that  his  refusal  conviction   was
supported  by insufficient evidence that he understood his  legal
duty to submit to a breath test.
          In  ruling  on  a  claim  that there  was  insufficient
evidence  to support a conviction, we must view all the  evidence
and the inferences from that evidence in the light most favorable
to  the  jurys  verdict.5  The question is whether,  viewing  the
evidence in this light, there was enough relevant evidence for  a
fair-minded juror exercising reasonable judgment to find that the
State met its burden of proving guilt beyond a reasonable doubt.6
          At  trial, Officer Sjogren testified that he saw Mattox
pull  a  green minivan into a driveway, get out of the  van,  and
stagger  and  stumble to the front door of the  residence.   When
Officer Sjogren contacted Mattox, he observed that Mattox smelled
of  alcohol.   Mattox  refused to perform field  sobriety  tests.
Officer Sjogren then arrested him and transported him to jail for
a  breath  test.   At the jail, Officer Sjogren read  Mattox  the
implied consent warning informing him of his legal duty to submit
to a breath test.  That warning provided in part:
          You  are  under  arrest  for  Operating   or
          Driving  a Motor Vehicle Under the Influence
          (DUI).  You are being asked to submit  to  a
          chemical test of your breath to measure  the
          alcoholic content.  Refusal to submit  to  a
          chemical  test  can  be  either  a  class  A
          Misdemeanor or a class C Felony.
          
          Refusal to submit to a chemical test may  be
          used  against  you  in a civil  or  criminal
          action  or proceeding arising out of an  act
          alleged   to   have  been  committed   while
          operating  the  motor vehicle.   Refusal  to
          Submit to a Chemical Test is a crime that
          is  separate  from  the  crime  of  Driving  Under  the
Influence.
 Mattox would not sign the implied consent form.  He also refused
to  submit to a breath test, even though Officer Sjogren gave him
several opportunities to comply.
          A  recording  of this contact was played to  the  jury.
On  the  recording,  in addition to the implied  consent  warning
recounted above, Officer Sjogren stated: The type of test you are
requested to take is a breath test.  He also said:  Im asking you
to  take  a  breath  test.  You dont have to, thats  your  right.
Mattox at first would not answer, but eventually he said: No, no,
no.   I will not do that.  I will not. ...  Take my blood.   Just
take  my  blood.   After concluding that Mattox had  refused  the
breath  test,  Officer Sjogren advised him of  his  right  to  an
independent  chemical test of his blood.  When he advised  Mattox
of  this  right, he reiterated:  You are refusing a breath  test,
right?   Mattox  did  not  answer, but  instead  complained  that
Officer  Sjogren  had  arrested him  on  the  porch,  on  private
property.   Officer Sjogren eventually concluded that Mattox  had
also refused the offer of an independent chemical test.
          Mattox  argues  that this evidence was insufficient  to
convict  him of refusal because he said to Officer Sjogren,  Take
my  blood.  Just take my blood.  But the jury heard evidence that
Mattox  refused to perform field sobriety tests, refused to  sign
the  implied consent form, refused several times to submit  to  a
breath  test,  and  refused the opportunity  for  an  independent
chemical  test.  Given this evidence, a fair-minded  juror  could
reasonably conclude that Mattoxs statement take my blood did  not
demonstrate he was confused about his legal duty to submit  to  a
breath   test,   but  rather  was  evidence  of   his   continued
obstreperousness.  We conclude that there was sufficient evidence
to support Mattoxs conviction for refusal to submit to a chemical
test.
          
          Mattox  did not preserve his claim that Officer Sjogren
          violated his due
          process rights
          Mattox   argues  that  his  due  process  rights   were
violated because Officer Sjogren did not give him adequate notice
that  he  would be charged with refusal if he refused to  take  a
breath test, even if he offered to take a blood test instead.
          In  superior court, Mattox did not argue, in a pretrial
motion  or  during trial, that his due process  rights  had  been
violated by Officer Sjogrens conduct, and the superior court  did
not  rule on this issue.  Mattox instead elected to argue to  the
jury that he should be acquitted of refusal because his statement
take my blood was an offer to submit to a chemical test.  Because
Mattox never argued in superior court that his due process rights
were violated, he did not preserve this claim for appeal.7
          Nor   has  Mattox  shown  (or  even  argued)  that  the
superior  court committed plain error by failing to  find  a  due
process  violation sua sponte.  This court will  not  find  plain
error  unless  the  error  affects a  substantive  right  and  is
obviously  prejudicial.8  The jury was instructed that  it  could
not  convict Mattox unless he knew or should have known  that  he
had  a  legal duty to submit to a breath test.9  Thus,  the  jury
must  have found that Mattox had enough notice of his legal  duty
to  submit  to  a  breath test to be convicted of  refusal,  even
though  Officer Sjogren did not explain to Mattox that  he  could
not  satisfy  this legal duty by offering to submit  to  a  blood
test.

          The court did not err in instructing the jury
          Mattox  next  challenges the superior courts  responses
to several questions the jury posed during deliberations.
          The jurys first question read:
          Does the law state that a blood test can  be
          given instead of a
          breath test?
The court responded:
          The  law  does  not  give the  defendant  an
          option.   The law requires submission  to  a
          test of the persons breath by an approved[,]
          certified  testing device.  The law  permits
          the  defendant  to  request  an  independent
          blood test.
The court also addressed another, related jury question:
          [In] Instruction #6 [listing the elements of
          refusal],  the term Chemical Test of  Breath
          is  not used in [elements] #5, 6, & 7.   Can
          we get you to clarify if [the] chemical test
          [language used in elements #5, 6, & 7] means
          Chemical Test of Breath?
The  court instructed the jury that the references to a  chemical
test in the jury instruction means chemical test of breath.
          Mattox  argues that the statute defining the  crime  of
refusal  permits a blood test to be offered in lieu of  a  breath
test  and that the courts responses to these jury questions  were
wrong.   But  we rejected this claim in Hamilton v.  Anchorage.10
Hamilton   argued that his refusal conviction should be dismissed
because  even if he wilfully refused to take a breath  test,  his
offer  to  take a blood test cured that refusal.11  In  rejecting
that  claim,  this  court explained that the municipal  ordinance
Hamilton  had been charged with violating obliged him to  take  a
breath  test,  as  opposed to some other chemical  test.12   This
court noted that the state refusal statute, AS 28.35.032(f),  was
identical in relevant respects.13  This court went on to rule, in
line  with other courts that had considered this issue, that  the
due  process  clause does not confer on motorists  the  right  to
control or dictate the form of chemical testing.14
          Mattox  distinguishes his case from  Hamilton,  arguing
that the relevant statutory language has changed.  At the time of
Hamiltons offense, the refusal statute, AS 28.35.032(f), made  it
a  crime  to  [refuse] to submit to the chemical test  of  breath
authorized by ... AS 28.35.031(a), the implied consent statute.15
The current provision, which was in effect at the time of Mattoxs
offense,  makes it a crime to [refuse] to submit  to  a  chemical
test authorized by ... AS 28.35.031(a) or (g).16  Thus, Mattox is
correct  that  the legislature dropped the express  reference  to
breath from the refusal statute.
          But  the legislatures reason for dropping this language
does  not support Mattoxs claim.  The current statute makes it  a
crime   to  refuse  a  chemical  test  authorized  under   either
subsection  (a)  or  (g)  of the implied  consent  statute.   The
statute  at  issue in Hamilton only made it a crime to  refuse  a
test  under subsection (a) (subsection (g) did not exist at  that
time).17   Subsection (a) authorizes a breath test of any  person
lawfully  arrested  for  driving  while  under  the  influence.18
Subsection (g) authorizes a breath and blood test for any  person
who  is  involved in a motor vehicle accident that causes serious
physical  injury or death.19  Thus, the statute now  makes  it  a
crime  to  refuse  a breath or blood test, depending  on  whether
subsection (a) or (g) applies in the circumstances of  the  case.
Therefore,  to  the  extent  that  Mattox  is  arguing  that  the
legislature  dropped  the  of breath language  from  the  refusal
statute because it wanted to overrule Hamilton and give motorists
the  option  of  providing a blood test instead,  that  claim  is
without  merit.   The legislature dropped the of breath  language
because  it  added  subsection (g)  and  now,  depending  on  the
circumstances  of  the case, a defendant may  be  prosecuted  for
          refusal to submit to either a breath or blood test, or both.20
          Mattox  also  raises a claim that was not addressed  in
Hamilton:  that he had a due process right under the facts of his
case  to  be told before deciding whether to submit to  a  breath
test  that  he had no right to elect the type of test.   But,  as
discussed earlier, Mattox did not argue in superior court that he
had  this  due  process  right; nor did he  ask  Judge  Brown  to
instruct the jury that Officer Sjogren had a duty to explain that
he would be charged with refusal despite his purported offer of a
blood test.
          At  trial,  during discussion about how to  respond  to
the  jurys  questions,  Mattox did state  that  Officer  Sjogrens
conduct probably gave rise to a duty to explain to Mattox that he
could not avoid a refusal charge by offering to submit to a blood
test:
          Defense  counsel:  Well, maybe the  maybe  I
          should  have raised this earlier  and  maybe
          its  still  important.  And I  think  it  is
          still important.  Because the point is, once
          a  person asks a question and says, take  my
          blood   instead,  it  seems  to  me   theres
          probably an obligation to say, Im not  going
          to do that unless you blow first.

          Court:  Well, youve made that argument to the jury.

          Defense  counsel:  Right, and the point  is,
          he  didnt refuse.  He said, you can  take  a
          chemical  test.   And, you  know,  he  wasnt
          told, you dont have that option, you got  to
          do  breath, you cant do blood.  But he said,
          take it.
In  the  above  discussion, when the court characterized  Mattoxs
argument as an argument for the jury, Mattox did not correct  the
court or argue that he was raising a legal issue  that is, a  due
process claim that he wanted the court to resolve as a matter  of
law.  Nor did he ask the court to instruct the jury that  Officer
Sjogren  had  a duty to make clear to Mattox that  he  could  not
avoid  a  refusal charge by submitting to a blood  test.   Mattox
therefore  did not preserve this claim.21  And he has  not  shown
plain error.22  The jury heard evidence and argument that Officer
Sjogren failed to explain to Mattox that he would be charged with
refusal even if he offered to submit to a blood test instead of a
breath  test.  The jury nevertheless found that Mattox had enough
notice of his duty to submit to a breath test to be guilty of the
crime of refusal.

          Conclusion
          We AFFIRM Mattoxs conviction.
          
     
_______________________________
     1 AS 28.35.030(n).

     2 AS 28.35.030(n).

     3 AS 28.35.032(p).

     4 AS 28.15.291(a)(1).

     5 Dorman v. State, 622 P.2d 448, 453 (Alaska 1981); Brown v.
State, 693 P.2d 324, 329 (Alaska App. 1984).

     6  Dorman, 622 P.2d at 453; Collins v. State, 977 P.2d  741,
747 (Alaska App. 1999).

7  See  Mahan  v.  State,  51 P.3d 962, 966  (Alaska  App.  2002)
(To  preserve  an issue for appeal, an appellant must  obtain  an
adverse ruling.).

     8 Dorman, 622 P.2d at 457 (citing Alaska R. Crim. P. 47(b)).

     9  See  Yang  v.  State, 107 P.3d 302, 309-11  (Alaska  App.
2005); Brown v. State, 739 P.2d 182, 184-86 (Alaska App. 1987).

10   878 P.2d 653 (Alaska App. 1994).

     11   Id. at 654.

     12   Id.

     13   Id.

     14   Id. at 655.

     15   Former AS 28.35.032(f) (pre-August 22, 1994, version).

     16   AS 28.35.032(f).

     17   See ch. 55,  7, SLA 1994.

     18   AS 28.35.031(a).

     19   AS 28.35.031(g).

     20   See ch. 55,  8-11, SLA 1994.

     21   See Mahan, 51 P.3d at 966.

     22   See Alaska R. Crim. P. 47(b).

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