Dukes v. State

³⁹ HOLLANDER, J. Following a bench trial in the Circuit Court for Anne Arundel County on January 16, 2007, Dwight Dukes, appellant, was convicted of driving or attempting to drive while impaired by alcohol, in violation of Md.Code (2006 & 2007 Supp.), § 21-902(b) of the Transportation Article (“Transp.”), and driving on a revoked license, in violation of Transp. § 16-303(d). The court sentenced appellant to a one-year term of imprisonment for driving while impaired and to a consecutive, suspended term of two years for driving while revoked. Dukes presents a single question for our review: “Was the evidence sufficient to sustain the conviction[s]?” For the reasons that follow, we hold that it was, and shall therefore affirm. I. FACTUAL & PROCEDURAL BACKGROUND 1 The underlying incident occurred on October 3, 2006.

At trial, the court was informed that the parties disputed whether appellant was “driving” at that time, within the meaning of the relevant statutes. Appellant waived a jury trial and proceeded on an agreed statement of facts. The court read into the record the arresting officer’s report, as follows: “On 10/3/06, at approximately 04:47 hours[”]—so that is 4:47 in the morning—[“]I located an '86 Cadillac” something. “A two-door, grey,” with a Maryland registration that is identified here. I won’t read it. “On Baydale Drive north and College Parkway.

The vehicle was stopped in a right turn lane with its headlights on, but they were dim.” “I had passed the vehicle approximately half an hour before in route to a B & E in progress. It had not moved from that position. I contacted the operator, who was asleep in the driver’s seat, and the vehicle keys were on the floor mat below the steering wheel. I woke him and ⁴⁰ detected a strong odor of an alcoholic beverage emanating from his breath, and his speech was slurred.” “He had trouble locating identification] and handed me his wallet with a Maryland I.D. only.

He couldn’t find a vehicle registration card. His movements were slow and not fluid. He exited his vehicle to attempt several field tests at the rear.... ” According to the officer’s report, appellant failed the field sobriety tests and was arrested. He “refused the chemical test—” Appellant’s driving record showed that his driver’s license had been revoked on March 20, 1980.

Over the years, appellant’s revocation had been extended several times, most recently for two years beginning May 25, 2005. In a ruling that appellant does not contest, the court found that appellant had actual knowledge of the revocation, because he had unsuccessfully applied for reinstatement on a number of occasions. The defense argued that, under Atkinson v. State, 331 Md. 199 , 627 A.2d 1019 (1993), the evidence was insufficient to support a conviction for driving while impaired. The court rejected that argument, reasoning as follows: In analyzing the[ ] [Atkinson ] factors ... it seems to me that when I consider them all together, the fact that the vehicle is in a travel portion of the road, in a turn lane, and that the car is at that point being manipulated at least to the effect that the lights are on and that the Defendant is in the driver’s seat, creates that potentiality, which is what Atkinson talks about.

The potentiality of him putting the public at risk. Quite candidly, the public is at risk just by the mere fact that he is sitting there and perhaps somebody might [hit] him. Moreover, the court disagreed with Dukes’s contention that, because the headlights were dim, the vehicle was not operable. It stated: But I would not find that to be a sufficient concern in terms of deciding the case, and I would not draw the ⁴¹ inference that because the lights were dim you would not be able to start it.

I would draw the opposite inference!)] that so long as the lights were on to some degree, there was some ignition available to the Defendant. This was in October____ [T]he weather hadn’t been extremely cold. During those types of circumstances the likelihood that the battery is not going to kick over the car is not all that strong. Defense counsel then pointed out that the evidence showed the lights on the car had been on for at least a half hour.

The court responded: About a half of an hour. I appreciate that.... The car had been driven there. So presumably [it] had been engaged and the engine had been running.

It is not a situation where the car had been sitting for a week or so without being started. So, the amount of ignition power that is necessary to get it restarted is not as great as if the car had been sitting for a long time. So, I don’t consider that to be an element that causes me to have a reasonable doubt that the vehicle was operable, and I think the factors in this case, the location of the vehicle and the location of the Defendant, suggests to me that he fits within the definition of being in actual physical control of the vehicle and that he is not an Atkinson exception. This is not a situation where he was basically in the back taking a snooze in some parking lot and had the radio on or had the ignition on to keep warm.

That is the kind of exception that Atkinson recognizes, but I don’t think it applies in this case. So based on that, I do find that the Defendant was in actual physical control of the vehicle. Accordingly, the court ruled: “I do find that the Defendant was in actual physical control of the vehicle. I find that the information contained in the report establishes that the Defendant was also under the influence of alcohol and that he is, therefore, guilty of [Transp. § ] 21—902(b), driving or attempt ⁴² ing to drive while impaired by alcohol.” 2 He was also convicted of driving while his license was revoked, in violation of Transp. § 16-303(d).

This appeal followed. DISCUSSION Appellant does not challenge the sufficiency of the evidence to establish that he was intoxicated, nor does he dispute that, at the time in question, his license had been revoked. His sole claim on appeal is that the evidence set forth in the agreed statement of facts was insufficient to support the finding that he was “driving,” because, argues appellant, he was not in “actual physical control” of an operable vehicle. We disagree.

In a challenge to the sufficiency of the evidence, the standard of review is well settled. The Court said in Harrison v. State, 382 Md. 477, 487-88 , 855 A.2d 1220 (2004) (quoting Moye v. State, 369 Md. 2, 12-13 , 796 A.2d 821 (2002)): “The standard of review for appellate review of evidentiary sufficiency is whether any rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt. See State v. Albrecht, 336 Md. 475, 478-79 [ 649 A.2d 336 ] (1994). We view the evidence in the light most favorable to the prosecution.

See id. (citing Jackson v. Virginia, 443 U.S. 307, 319 [ 99 S.Ct. 2781 , 61 L.Ed.2d 560 ] (1979) and Branch v. State, 305 Md. 177, 182-83 [ 502 A.2d 496 ] (1986)). We give ‘due regard to the [fact finder’s] finding of facts, its resolution of conflicting evidence, and, significantly, its opportunity to observe and assess the credibility of witnesses.’ McDonald v. State, 347 Md. 452, 474 [ 701 A.2d 675 ] (1997), cert. denied, 522 U.S. 1151 [ 118 S.Ct. 1173 , 140 L.Ed.2d 182 ] (1998) (quoting Albrecht, 336 Md. at 478 [ 649 A.2d 336 ]).” Maryland Rule 8-131(c) is also pertinent: When an action has been tried without a jury, the appellate court will review the case on both the law and the evidence. ⁴³ It will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge the credibility of the witnesses. Transp. § 11-114 defines “drive” as follows: “to drive, operate, move, or be in actual physical control of a vehicle .... ” (emphasis added).

In Atkinson v. State, 331 Md. 199 , 627 A.2d 1019 (1993), upon which appellant relies, the Court examined the meaning of the phrase “actual physical control.” There, a sheriffs deputy found the defendant inebriated and asleep in his vehicle, which was parked on the shoulder of a road. The keys were in the ignition and the engine was off. Id. at 203-204 , 627 A.2d 1019 . In reasoning equally applicable to the case at bar, the Atkinson Court analyzed the definition of “drive” in § 11-114 and made the following observation, id. at 206, 627 A.2d 1019 (internal citations omitted): “[Djrive” (as a definition), “operate” and “move” are not at issue here, for each of these terms clearly connotes either some motion of the vehicle or some physical movement or manipulation of the vehicle’s controls.

To “move” a vehicle plainly requires that the vehicle be placed in motion.... “[T]he term ‘driving’... mean[s] ... steering and controlling a vehicle while in motion; the term ‘operating,’ on the other hand, is generally given a broader meaning to include starting the engine or manipulating the mechanical or electrical devices of a standing vehicle.” The Court considered the meaning of “actual physical control” of a vehicle. It declined to adopt the majority view, which is that “ ‘[a]s long as a person is physically or bodily able to assert dominion in the sense of movement by starting the car and driving away, then he has substantially as much control over the vehicle as he would if he were actually driving it.’ ” Atkinson, 331 Md. at 212 , 627 A.2d 1019 (quoting Adams v. State, 697 P.2d 622, 625 (Wyo.l985)). 3 The Court character ⁴⁴ ized this view as “excessively rigid,” reasoning that “intoxicated persons sitting in their vehicles while in possession of their ignition keys would, regardless of other circumstances, always be subject to criminal penalty____” Atkinson, 331 Md. at 212 , 627 A.2d 1019 . In its view, “this construction effectively creates a new crime, ‘Parked While Intoxicated.’ ” Id. (citing, with approval, Petersen v. Dept. of Public Safety, 373 N.W.2d 38, 40 (SD.1985) (Henderson, J., dissenting)).

Instead, the Atkinson Court determined that the Legislature did not intend to punish criminally an intoxicated person who uses his vehicle merely to “sleep it off.” Atkinson, 331 Md. at 214 , 627 A.2d 1019 . Rather, it concluded that the General Assembly “intended to differentiate between those inebriated people who represent no threat to the public because they are only entering their vehicles as shelters until they are sober enough to drive and those people who represent an imminent threat to the public by reason of their control of a vehicle.” Id. at 216 , 627 A.2d 1019 . In this regard, the Court identified six non-exhaustive factors relevant in determining whether an individual in a vehicle has “actual physical control” over the vehicle, or is merely using it as shelter: 1) whether or not the vehicle’s engine is running, or the ignition on,; 2) where and in what position the person is found in the vehicle; 3) whether the person is awake or asleep; ⁴⁵ 4) where the vehicle’s ignition key is located; 5) whether the vehicle’s headlights are on; 6) whether the vehicle is located in the roadway or is legally parked. Id.

The Court cautioned that the inquiry “will inevitably depend on the facts of the individual case,” and that “[n]o one factor alone will necessarily be dispositive----” Id. Rather, “[c]ourts must in each case examine what the evidence showed the defendant was doing or had done, and whether these actions posed an imminent threat to the public.” Id. at 216-17 , 627 A.2d 1019 . The Atkinson Court seemed to suggest that the factors are not all of equal weight, stating: “Perhaps the strongest factor ... is whether there is evidence that the defendant started or attempted to start the vehicle’s engine.” Id. at 217 , 627 A.2d 1019 . Further, it explained that, “once an individual has started the vehicle, he or she has come as close as possible to actually driving without doing so....” Id Of import here, the Court also said that “the location of the vehicle can be a determinative factor in the inquiry because a person whose vehicle is parked illegally or stopped in the roadway is obligated by law to move the vehicle.... ” Id.

Applying the factors to the case before it, the Atkinson Court observed that, although the defendant was in the driver’s seat and the keys were in the ignition, the vehicle was legally parked, the ignition was off, and the defendant was fast asleep. Id. On balance, the Court concluded that there was reasonable doubt that the defendant was in “actual physical control” of his vehicle. Id.

In the instant case, appellant argues that the circuit court misapplied the Atkinson factors and, when properly considered, the factors compelled his acquittal. He observes that the Atkinson factors are in numerical equipoise: in favor of appellant are the facts that appellant was asleep; the key was not in the ignition; and the headlights were on but were “dim”; in the State’s favor, appellant was in the driver’s seat, the headlights were on; and the vehicle was located in the ⁴⁶ roadway. 4 He asserts: “Logically, even by a preponderance of the evidence standard, this might resolve the case against the party with the burden of proof in the case.” Appellant concedes, however, that “resolution of the issue involves more than just a score analysis of the ... factors.... ” As the Atkinson Court made clear, “the primary focus” in the court’s determination of “actual physical control” turns on “whether it is reasonable to assume that the person will, while under the influence, jeopardize the public by exercising some measure of control over the vehicle.” Atkinson, 331 Md. at 217 , 627 A.2d 1019 . According to appellant, the “critical fact” here is that his headlights had been on for at least a half-hour (between the time the officer initially saw appellant’s vehicle and the time the officer returned to investigate), without the engine running, which would have depleted the battery in his vehicle. In appellant’s view, the fact that his headlights had grown dim suggests that, under these circumstances, there was “considerable doubt” as to whether “the car could have been started and driven at the time charged.” (Emphasis added.) Appellant maintains that under Atkinson it was “not reasonable to assume that Appellant could have ... presented a threat to the highway____” He draws our attention to the circuit court’s “inference” finding on this issue: “I would not draw the inference that because the lights were dim you would not be able to start it.

I would draw the opposite inference!)] that so long as the lights were on to some degree, there was some ignition available to the Defendant.” Appellant complains that “whether there was enough charge to actually start the engine is a matter left to complete speculation under the circumstances,” (emphasis in original), and that the circuit