State v. Longe

743 A.2d 569, 170 Vt. 35, 1999 Vt. LEXIS 310

• Court: Supreme Court of Vermont
• Decided: September 24, 1999
• Docket: 98-088
• Status: Published

Opinions

Amestoy, C.J.

Defendant Barry Longe appeals the decision of the Franklin District Court denying his motion for judgment of acquittal following a jury verdict of guilty for operating a motor vehicle after license suspension in violation of 23 V.S.A. § 674(b). On appeal, defendant argues that the reason for defendant’s underlying suspension is an essential element of a § 674(b) charge which the trial court erroneously removed from the jury’s consideration. We disagree and affirm the conviction.

As a threshold matter, the parties disagree on our standard of review. Defendant maintains that this case presents an error of law, and accordingly is subject to de novo review. The State contends that this case involves a discretionary ruling regarding prejudicial evidence pursuant to V.R.E. 403 which is reviewed only for abuse of discretion. Although the issue was raised initially under V.R.E. 403, the actual question before us is whether the trial court improperly removed an essential element from the jury’s consideration. This question presents a question of law and, accordingly, we review it de novo.

At issue in this case is the connection among three related sections of Title 23 of the Vermont statutes. Defendant was charged with operating a motor vehicle while his license was still suspended as a result of his failure to comply with 23 V.S.A. § 1209a. Section 1209a provides in relevant part that no license suspended or revoked under the subchapter shall be reinstated unless the person has successfully completed an alcohol and driving education program. Section 1201 prohibits any person from operating, attempting to operate, or being in actual physical control of any vehicle on a highway when the person’s alcohol concentration is .08 or more. See 23 V.S.A. § 1201(a)(1). Finally, § 674(b), the section with which defendant was charged, provides in part that:

A person whose license or privilege to operate a motor vehicle has been suspended or revoked for a violation of section 1201 of this title . . . and who operates or attempts to operate a motor vehicle upon a public highway before reinstatement of the license shall be imprisoned not more than two years or fined not more than $5,000, or both.

23 V.S.A. § 674(b). Stated more succinctly: first, defendant’s license was revoked for driving under the influence of alcohol, see id) second, he failed to satisfy the alcohol and driving education program, see id. § 1209a; third, he was charged with operating a motor vehicle while his license was still suspended (DLS) due to his failure to satisfy the requirements of § 1209a, see id. § 674(b).

Before the trial began, defendant indicated to the State and the court that he would object to any mention of driving under the influence (DUI). Accordingly, the State produced two witnesses, neither of whom testified that the defendant had been suspended for a DUI conviction. An employee of the Department of Motor Vehicles (DMV) testified that defendant’s privilege to operate a motor vehicle was suspended on October 24,1997, and had not been reinstated as a result of his failure to complete the § 1209a requirements. During the employee’s testimony, however, the State introduced two exhibits documenting the suspension, one of which was a license suspension notice from the DMV indicating that defendant’s license was suspended for operating a motor vehicle with a blood alcohol content of .08 or more. Defendant objected to admitting the documents, arguing that any language relating to alcohol concentration be redacted. Before admitting these documents, the court agreed to delete all language relating to DUI to avoid prejudice to the defendant.

Later, during a colloquy regarding jury instructions, the State suggested that § 1201 need not be mentioned to the jury. Instead, the State contended that § 1209a could act as a “surrogate” for § 1201, thereby avoiding the potentially prejudicial language of § 1201. The court responded that the issue raised a question of law for the court to resolve. In the presence of counsel only, the court found, as a matter of law, that the defendant had a previous conviction for operating a motor vehicle with a blood alcohol concentration of more than .08 percent, and that the underlying suspension was a result of that conviction. The court later instructed the jury that the State’s information charged the defendant with DLS for failing to satisfy 23 V.S.A. § 1209a, in violation of 23 Y.S.A. § 674(b). The court further instructed:

The information that I read to you earlier made reference to ... § 674(b) and that statute provides a person whose license or privilege to operate a motor vehicle has been suspended or revoked for a violation of § 1209 of this title and who operates... a motor vehicle upon a public highway before the suspension period imposed for the violation has expired shall be punished according to the law.

Now, in this case the State must prove the essential elements as follows, each of them beyond a reasonable doubt:

First, that it was the defendant....

That his operation of a motor vehicle was on a public highway.

That at the time of the operation, the defendant’s right to operate a motor vehicle was under active suspension, and that it had not been reinstated.

Do not be concerned about the actual language of . . . § 1209a or § 1201. It is sufficient if the State has shown beyond a reasonable doubt that the defendant was under suspension at the time of operation.

Defendant was convicted of DLS in violation of 23 V.S.A. § 674(b). Defendant made a motion for judgment of acquittal or, alternatively, for a new trial, both of which were denied.

On appeal, defendant argues that the court erred in instructing the jury not to be concerned with the language of §§ 1201 or 1209a. He contends that the court’s determination that, as a matter of law, defendant had been convicted of DUI, along with the corresponding jury instruction, removed an essential element of the crime from the jury’s province and generated two errors. First, defendant argues that there was no evidence that defendant’s license was suspended for violation of § 1201 and, accordingly, the motion to acquit should have been granted. Second, even if there were sufficient evidence to convict defendant of a § 1201 violation, defendant argues that the court erred in refusing to instruct the jury that a verdict of guilty depended on a finding as to the reason for the suspension.

The statutes governing DLS grade the offense depending on the section violation on which the underlying suspension is based. In the instant case, § 674(b) establishes a maximum of two years imprisonment, a fine of $5,000, or both, if the underlying suspension was a result of a violation of § 1201. Operation after suspension for any reason other than a violation of §§ 674, 1091, 1094, 1128, 1133, 1201 or 1205 of Title 23 constitutes a civil traffic violation. See 23 V.S.A. § 674. Defendant argues that because the section violation of the underlying suspension determines whether the offender will be subject to criminal or civil penalties, the fact that defendant drove after his license was suspended for a violation of § 1201 was an essential element of § 674(b), and this element should have been determined by the jury rather than the court. See State v. Williams, 160 Vt. 615, 617, 627 A.2d 1254, 1255 (1993) (mem.).

We explained in Williams that prior to its amendment in 1991 § 674 set forth maximum fines and terms of imprisonment for operating a motor vehicle with a suspended license based on the number of the defendant’s prior offenses. The reason for the underlying offense, therefore, was not relevant to the fine or sentence imposed. As amended, however, § 674 subjects a defendant to criminal penalties only when the defendant’s underlying suspension resulted from violation of certain statutory sections. We explained:

If the underlying suspension was for any reason other than a violation of the sections listed in amended § 674(a), an operator commits a civil traffic violation . . . and is subject only to civil penalties. Thus, under the amended statute, the reason for the underlying suspension determines whether the offender will be subject to criminal or civil penalties.

Id. at 616, 627 A.2d at 1254 (internal quotation marks omitted).

Relying on this language, defendant argues that the reason for an underlying suspension is an essential element of a § 674 charge and that this element was improperly removed from the jury’s province. In Williams, we reversed a § 674 conviction because the information stated that defendant operated a motor vehicle while his license was suspended in violation of § 674, but did not state the reason of the underlying suspension. See id. at 617, 627 A.2d at 1255. We concluded that the conviction could not stand because the information omitted an essential element of the offense and, therefore, the defendant had no opportunity to present any potential defense concerning the reason for the suspension. See id.

In the instant case, the information stated that the defendant operated a motor vehicle when his “right to operate a motor vehicle was under active suspension by the Commissioner of Motor Vehicles for Title 23 V.S.A. § 1209a and the same not having been reinstated, in violation of Title 23 V.S.A. § 674(b).” Unlike the information in Williams, this information sufficiently informed the defendant of the basis and nature of the charge so as to enable him to prepare his defense. See, e.g., State v. Towne, 158 Vt. 607, 631, 615 A.2d 484, 497 (1992) (information must set forth charges with such particularity as will reasonably indicate the exact offense with which the accused is charged). Moreover, at oral argument, defendant conceded that the information sufficiently apprised him of the charge he faced. Accordingly, while we agree that Williams requires that the State provide the reason for the underlying suspension in the information, we are unpersuaded that it requires the State to prove beyond a reasonable doubt to the factfinder that defendant’s license was suspended because he was convicted of driving under the influence of alcohol. Indeed, it was defendant’s claim of undue prejudice that induced the court to prohibit the introduction of evidence referring to the reason for defendant’s underlying suspension.

*

At oral argument, however, defendant contended the court’s instructions to the jury that it “not be concerned about the actual language” of § 1201 or § 1209a improperly relieved the jury of its obligation to find that defendant’s conviction under § 1201 accounted for his suspension. Although the court instructed the jury that it need not be concerned with the actual statutory language, the instructions required a finding that at the time of the operation defendant’s right to operate a motor vehicle was under active suspension and had not been reinstated. The instructions also included a recitation of the information which, as quoted above, made explicit reference to § 1209a as the reason for the § 674(b) charge. Although we perceive some ambiguity in the court’s explanation, the instructions, when read in their entirety, required the jury to find that defendant’s license was suspended for failing to comply with § 1209a.

Defendant further argues, however, that a conviction under § 1201 is an essential element of a § 674(b) conviction, yet the State did not present any evidence of a § 1201 violation. During oral argument, defendant suggested that the decision in Old Chief v. United States, 519 U.S. 172 (1997), provides examples of possible methods for establishing the requisite elements of a crime, while simultaneously avoiding unfairly prejudicing the jury. We conclude, however, that both requirements were achieved through the use of and reference to § 1209a which served as a surrogate for the potential prejudice that reference to § 1201 might have engendered. Although we recognize that the State did not present evidence of the § 1201 conviction, we do not agree that the State was required to prove that defendant’s license was suspended for violation of § 1201 to convict him under § 674(b). A reading of the alcohol and driving education course requirements of § 1209a would be meaningless without a reference to § 1201, which establishes in the first instance that driving under the influence of alcohol is unlawful. Indeed, a subsection of § 674 itself explicitly establishes that “ [f]or the purposes of this section . . . the suspension period for a violation of section 1201... of this title shall not be deemed to expire until the person has complied with section 1209a of this title.” 23 V.S.A § 674(f). The evidence of defendant’s failure to satisfy the § 1209a requirements was sufficient to establish the reason for the underlying suspension.

We find the decision in Old Chief instructive nevertheless, albeit for reasons other than those which defendant posits. The petitioner in Old Chief was charged with violating a statute that made it unlawful for anyone to possess a firearm if they had been convicted of a crime punishable by imprisonment for a term exceeding one year. See Old Chief, 519 U.S. at 174-75. Before trial, petitioner moved for an order requiring the government to refrain from offering any evidence regarding the defendant’s prior criminal convictions, except to state that he was convicted of a crime punishable by a term exceeding one year. See id. at 175. He proposed that the jury be instructed that the defendant was convicted of a crime punishable by a term of at least one year, but the government refused to join the stipulation, insisting on its right to prove the case in its own way. See id. at 176-77. The district court agreed with the government’s position. See id. at 177. The Supreme Court, however, reversed the judgment. In so doing it held:

The issue is not whether concrete details of the prior crime should come to the jurors’ attention but whether the name or general character of that crime is to be disclosed. . . . [T]he fact of the qualifying conviction is alone what matters under the statute. . . . The most the jury needs to know is that the conviction admitted by the defendant falls within the class of crimes that Congress thought should bar a convict from processing a gun, and this point may be made readily in a defendant’s admission and underscored in the court’s jury instructions.

Id. at 190-91.

Here, the evidence of defendant’s failure to satisfy the § 1209a requirements was sufficient for the jury to find the fact of the qualifying underlying suspension. A DMV employee testified that on the date of the alleged offense, defendant’s license was suspended for failing to comply with the § 1209a requirements, and the jury was presented with exhibits documenting defendant’s suspension. Furthermore, a failure to comply with the requirements of § 1209a places the reason for defendant’s underlying suspension within the class of suspensions which subject an offender to criminal penalties.

Defendant contends, however, that the reason for defendant’s license suspension involved purely historical fact, and therefore was an element that required resolution by the jury and not the court. Defendant argues that the decision in United States v. Gaudin, 515 U.S. 506 (1995), reveals the trial court’s error as a matter of basic constitutional law. In Gaudin, the Court held that in a perjury prosecution, where criminal liability depended on the materiality of the alleged falsehood, due process required that the issue of materiality by submitted to the jury. The materiality of a falsehood was a jury question because it turned on a mixed question of law and fact, which is typically resolved by juries. See id. at 512-13. Defendant argues that the element at issue in the instant case — the reason for defendant’s license suspension — involved purely historical fact and therefore should have been resolved by the jury.

Defendant overlooks, however, that although the court determined independently that defendant had a previous conviction for DUI, the instructions both reiterated the language in the information which indicated that defendant’s failure to comply with § 1209a led to the charge under § 674(b), and required the jurors to find that at the time of the alleged incident, defendant’s right to operate a motor vehicle was under active suspension. The reason for the underlying suspension was removed from the jury’s consideration at defense counsel’s request. The issue of fact — whether at the time of operating the motor vehicle defendant’s right to operate was under active suspension and had not been reinstated — was left for the jury to decide. The jury considered the essential elements of the offense charged and had a sufficient evidentiary basis for finding defendant guilty of violating § 674(b). Accordingly, we affirm the conviction.

Affirmed.

The dissent minimizes defense counsel’s active role in inviting the error defendant now challenges. Before trial, defendant made clear his objection to any mention of DUI. The court granted his request, admonishing the State to only refer to § 1201 by statute number, thereby avoiding the alleged prejudice which concerned defendant. During the State’s case, defendant objected to the State’s attempt to introduce the suspension notice because it revealed defendant’s blood-alcohol concentration and would indirectly inform the jury of his DUI conviction. Again, the court granted defendant’s request, deleting the reference to blood-alcohol concentration and explaining:

[I]t would seem to be sufficient in that the court could find at the conclusion of the evidence that the State has met its burden if they introduce sufficient evidence to show that the defendant at the time of the operation in question was under active suspension as you claim and had not been reinstated. There doesn’t seem to be any requirement for showing the reason for the suspension.

Defense counsel did not respond to this, allowing the evidence portion of the trial to close without objection. However, when discussing jury instructions before closing arguments, defense counsel reversed his position and, for the first time, raised the issue that he brings before this Court:

The Court [to Defense Counsel]: You feel that the information is fatally defective because it does not allege that the . . . defendant was under suspension for violation of § 1201.

Defense Counsel: Among other things, and it’s impossible to argue nor is there any proof of that.

The invited error doctrine, which applies in both civil and criminal cases, see State v. Massey, 169 Vt. 180, 185, 730 A.2d 623, 627 (1999), is “a branch of the doctrine of waiver by which courts prevent a party from inducing an erroneous ruling and later seeking to profit from the legal consequences of having the ruling set aside.” Harvis v. Roadway Express, Inc., 923 F.2d 59, 61 (6th Cir. 1991); see also State v. Crabtree, 482 S.E.2d 605, 612 (W. Va. 1996) (“Having induced an error, a party in a normal case may not at a later stage of the trial use the error to set aside its immediate and adverse consequences.”).

Here, the court granted defendant’s pretrial request to keep from the jury any mention of the DUI conviction and sustained his objection during the State’s case to the inclusion of defendant’s blood-alcohol concentration on the suspension notice. Defendant did much more than merely “minimal[ly] contribute] to the actions of the court.” 170 Vt. at 44 n.1, 743 A.2d at 575-76 n.1. He actively induced the error and now attempts to profit from it, asking for, in effect, a “built-in ‘veto’ over the litigation if it took a course unfavorable to him.” See Rash v. Waterhouse, 124 Vt. 476, 478, 207 A.2d 130, 132 (1965). The invited error doctrine prevents defendant from utilizing such a veto, particularly where, as here, the error was harmless because the court did charge the jury with finding the ultimate fact of whether at the time of the operation defendant’s right to operate a motor vehicle was under active suspension and had not been reinstated.