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
Panel:
SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and
HUMPHREY, JJ.
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 ...