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State v. Perkins

Supreme Court of Maine

January 15, 2019


          Argued: October 23, 2018

          Jeremy Pratt, Esq. (orally), and Ellen Simmons, Esq., Cam den, for appellant Todd J. Perkins

          Maeghan Maloney, District Attorney, Christy Stilphen, Stud. Atty., and Tyler J. LeClair, Asst. Dist. Atty. (orally), Prosecutorial District IV, Kennebec, for appellee State of Maine


          HUMPHREY, J.

         [¶1] In this appeal, we consider whether jury instructions given in an OUI case were confusing where the State presented two alternative theories of guilt-principal liability and accomplice liability. We affirm the judgment, and, because these alternative theories are not commonly pursued together in an OUI prosecution, we also take this opportunity to clarify and distinguish them.

         [¶2] Todd J. Perkins appeals from a judgment of conviction for operating under the influence with a refusal to submit to a chemical test (Class D), 29-A M.R.S. § 2411(1-A)(C)(1) (2017), entered by the court (Kennebec County, Benson, J.) after a jury trial. Perkins contends that the court abused its discretion when it denied his motion for a new trial because the courts instructions on a drivers duty to submit to a chemical test and on accomplice liability confused the jury and did not provide a roadmap for the jury to be able to return a not guilty verdict.[1]

         I. BACKGROUND

         [¶3] "Viewing the evidence in the light most favorable to the State, the jury rationally could have found the following facts beyond a reasonable doubt." State v. Hurd, 2010 ME 118, ¶ 4, 8 A.3d 651. Late in the afternoon of August 26, 2016, Richard Tuttle picked up Perkins at his home in Windsor, Maine, and drove the pair in Perkinss truck to several bars in Hallowell.[2] The men visited three bars that evening and had a "few beers" at each stop. Sometime late in the night, a bartender refused Perkins and Tuttle further service due to their high level of intoxication. The manager of the bar asked the men to leave and advised Perkins not to drive. The manager saw the men exit the bar, walk to the back of Perkinss truck, and consume the contents of two cans they retrieved from the back of the vehicle. Concerned that Perkins was already "almost blackout drunk" and would attempt to drive, the manager called 9-1-1. He gave the police a description of the truck and the license plate number.

         [¶4] In the early morning of August 27, Officer Sheridan encountered the truck traveling north towards Augusta. He followed the vehicle for approximately a quarter of a mile before it entered Memorial Circle, a rotary. At the rotary, the truck was straddling the dividing line with its right blinker on for the Memorial Drive exit when it suddenly jerked left and travelled all the way around the circle again. The truck finally exited, veered right, and jerked to a stop with squealing tires. Officer Sheridan came to a stop behind the truck. When he reached the drivers side window-five to ten seconds after stopping-Perkins was seated behind the wheel. Officer Sheridan observed that Perkinss speech was extremely slow and slurred, his movements were lethargic, and he gave conflicting statements to the officer.

         [¶5] Approximately five minutes after Officer Sheridan stopped the truck, Officer Adams arrived at the scene. Officer Adams approached the vehicle, observed Perkins in the drivers seat and another person in the passengers seat, [3] and detected the odor of intoxicating liquor coming from the vehicle. Officer Adams asked Perkins how much he had to drink and Perkins responded that he wasn't driving because he was "unsafe to drive." At Officer Adams's request, Perkins exited the truck; his movements were slow and he used both hands on the door to maintain his balance. Officer Adams then attempted to administer the horizontal gaze nystagmus test, but despite multiple attempts, Perkins was unable to complete the test.

         [¶6] Perkins was placed under arrest on suspicion of OUI and transported to the Augusta Police Department. Once there, Perkins repeatedly declined to take a breath test and would not sign the refusal paperwork.

         [¶7] On August 27, 2016, Perkins was charged with one count of criminal OUI with a refusal to submit to a chemical test (Class D). 29-A M.R.S. § 2411(1-A)(C)(1). He waived arraignment and entered a not guilty plea. Perkinss first trial in June 2017 resulted in a hung jury and mistrial.

         [¶8] The court held a second jury trial on November 30 and December 1, 2017. The prosecution presented two alternative theories of the case: (1) Perkins operated a motor vehicle while under the influence ("principal liability"), or (2) Perkins, knowing that the other person in the truck, Tuttle, was intoxicated, intentionally ...

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