People of Guam v Cox [2018] GUSC 16 (12 October 2018)

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Appeal from the Superior Court of Guam
Argued and submitted on February 18, 2016
Hagåtña, Guam

Appearing for Defendant-Appellant:
James M. Maher, Esq.
Law Office of James M. Maher
238 Archbishop Flores St., Ste. 300
Hagåtña, GU 96910

Appearing for Plaintiff-Appellee:
Yoav S. Sered, Esq.
Office of the Attorney General
590 S. Marine Corps Dr., Ste. 706
Tamuning, GU 96913

BEFORE: ROBERT J. TORRES, Chief Justice; F. PHILIP CARBULLIDO, Associate Justice; KATHERINE A. MARAMAN, Associate Justice.^[1]

[1] Defendant-Appellant Afio Cox appeals from final judgment of conviction on two counts of Vehicular Homicide While Intoxicated (as a Second Degree Felony), two counts^[2] of Vehicular Homicide (as a Second Degree Felony), one count of Driving While Under the Influence of Alcohol with Injuries (as a Third Degree Felony), one count of Driving While Under the Influence of Alcohol with Injuries (BAC) (as a Third Degree Felony), one count of Driving while Under the Influence of Alcohol (as a Misdemeanor), and one count of Driving While Under the Influence of Alcohol (BAC) (as a Misdemeanor). The convictions arise out of a single-vehicle accident where Cox was the driver and his passenger died.
[2] Cox argues on appeal that the trial court’s failure to instruct the jury sua sponte on the justification of self-defense and the court’s instruction regarding the presumption of intoxication were plain error.^[3] The People argue that the jury was properly instructed. For the following reasons, we affirm in part, reverse in part, and remand for further proceedings.
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[3] Cox drove his girlfriend Maria Guevarra home after a night out at several bars where they consumed alcoholic beverages. On the way home, the two began arguing. Cox testified that while he was driving, Guevarra punched him twice, slapped his hands, and yanked the steering wheel, causing them to cross two traffic lanes and crash into a power pole on the side of the road. Guevarra died on impact as the result of a broken neck, an injury consistent with an unexpected collision.
[4] Investigation revealed the car drove straight into the pole, and there were no skid marks on the road, suggesting that the crash may have been intentional and the driver did not attempt to slow or stop the vehicle. Evidence showed Cox’s blood alcohol concentration level (“BAC”) after the accident was over the legal limit of 0.08%.^[4]
[5] Cox was found guilty of multiple counts of Vehicular Homicide and Driving While Under the Influence of Alcohol (“DUI”). The trial court entered final judgment, and Cox timely appealed.

[6] This court has jurisdiction over appeals from final judgments of conviction. See 48 U.S.C.A. § 1424-1(a)(2) (Westlaw through Pub. L. 115-223 (2018)); 7 GCA §§ 3107, 3108(b) (2005); 8 GCA §§ 130.10, 130.15(a) (2005).

[7] We review jury instructions for plain error when no objection was made at trial. See People v. Gargarita, 2015 Guam 28 ¶ 11 (citing People v. Felder, 2012 Guam 8 ¶ 8); see also Felder, 2012 Guam 8 ¶¶ 13-18 (explaining why harmless error does not apply when no objection was made). When considering “whether the proffered instructions accurately stated the relevant law,” we review “under a de novo standard.” Gargarita, 2015 Guam 28 ¶ 12 (citing People v. Diego, 2013 Guam 15 ¶ 9).

A. The Trial Court’s Omission of a Jury Instruction on Self-Defense Was Not Plain Error

[8] Cox argues that the trial court’s failure to instruct the jury on a justification of self-defense was plain error. See Appellant’s Br. at 3-5 (Oct. 8, 2015). The People argue that the trial court did not err because Cox did not invoke self-defense at trial and presented no evidence to support the justification. See Appellee’s Br. at 5-9 (Nov. 30, 2015). Specifically, the People argue that Cox’s theory of the case and evidence do not support the “use of force” necessary to qualify for self-defense. See id. at 5-6. Cox replies that defensive actions such as deflecting punches may satisfy the definition of “use of force upon or toward” another person in self-defense. See Appellant’s Reply Br. at 1-4 (Dec. 9, 2015). Cox did not request a self-defense instruction at trial and did not object to the omission of a self-defense instruction. Therefore, we review for plain error. See Gargarita, 2015 Guam 28 ¶ 11 (citation omitted).

[9] Under the Fifth and Sixth Charges, the People prosecuted Cox for two misdemeanors under 16 GCA § 18102(a) and (b). Record on Appeal (“RA”), tab 59 at 4 (2d Superseding Indictment, Oct. 17, 2013); see also 16 GCA § 18102(a)-(b) (as amended by P.L. 30-156:6 (July 8, 2010)). These two charges require proving only that Cox operated or was in physical control of a motor vehicle, while either under the influence of alcohol, in the case of section 18102(a), or while having a BAC level of 0.08% or more, in the case of section 18102(b). See 16 GCA § 18102(a)-(b); see also People v. Manila, 2005 Guam 6 ¶ 40. For these misdemeanors, Cox’s conduct that served as a basis for his convictions cannot reasonably be justified under any self-defense theory. Therefore, the question before us is whether a self-defense instruction should have been given with respect to the First, Second, Third and Fourth Charges.

[10] A court must provide a “straightforward and accurate” instruction on the justification of self-defense where the evidence demands it. Gargarita, 2015 Guam 28 ¶ 21 (citation omitted). Yet, “[c]ourts are not bound to present every conceivable defense potentially suggested by the evidence.” People v. Camacho, 1999 Guam 27 ¶ 20 (citing United States v. Span, 970 F.2d 573, 576-78 (9th Cir. 1992)); see also People v. Root, 2005 Guam 16 ¶ 28 (“[T]he standard is that ‘an instruction must be given if there is evidence upon which the jury could rationally sustain the defense.’” (quoting United States v. Jackson, 726 F.2d 1466, 1468 (9th Cir. 1984))). We have previously declined to find plain error where a defendant “did not present a self-defense theory at trial but instead relied upon the alternative theory that he did not commit the crime.” Camacho, 1999 Guam 27 ¶ 21; cf. People v. Barton, 906 P.2d 531, 535 (Cal. 1995) (“A trial court’s duty to instruct, sua sponte, or on its own initiative, on particular defenses . . . aris[es] ‘only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.’” (quoting People v. Sedeno, 518 P.2d 913, 921 (Cal. 1974) (en banc), overruled on other grounds by People v. Breverman, 960 P.2d 1094 (Cal. 1998))); State v. Kiehl, 78 N.E.3d 1226, 1231-34 (Ohio Ct. App. 2016) (finding no instructional error in part because defenses of self-defense and accident were inconsistent), appeal denied, 87 N.E.3d 221 (Ohio 2017).
[11] At trial, Cox testified that he and Guevarra were arguing inside the vehicle after leaving the bar where she worked. Tr. at 45-46 (Jury Trial, Oct. 31, 2013). Cox testified that, during this argument, she punched him twice and that he held his face at one point. Id. at 47-48. He further testified that Guevarra then slapped his hands and “yanked the [steering] wheel,” and that they “hit the power pole after she yanked the wheel.” Id. at 48. Cox now argues on appeal that his testimony invoked self-defense and that:

The jury could infer that [he] believed that the force he used to block his girlfriend’s strikes was necessary to protect his face, that [Guevarra’s] strikes were the proximate cause of [him] temporarily releasing his hands from the steering wheel which enabled [Guevarra] to “yank” the steering wheel from his control causing the vehicle to collide with the telephone pole.
Appellant’s Br. at 3-4 (citations omitted). Cox argues the act of raising his hands to protect his face constitutes the “use of force upon or toward” another person, and that therefore the trial court committed plain error by failing to instruct on self-defense pursuant to 9 GCA § 7.84. See, e.g., Appellant’s Reply Br. at 1-4. We are not persuaded.
[12] Cox’s testimony and the theory advanced by his counsel indicate that he was claiming that he did not cause the accident, but rather that Guevarra’s actions were the proximate cause of the accident. During trial, Cox’s testimony, as well as his counsel’s questioning and closing argument, focused on the factual issues of whether Cox attempted to stop and whether Guevarra grabbed the steering wheel—i.e., issues of proximate cause—but did not raise any theory of self-defense. Tr. at 37-38, 41, 43-46 (Jury Trial, Nov. 6, 2013); Tr. at 11-14, 21-26, 48, 50, 54-57 (Jury Trial, Oct. 31, 2013); Tr. at 86-95, 106-107, 119-125 (Jury Trial, Oct. 30, 2013). Defense counsel argued at length regarding issues of intoxication, motivation and cause, but never introduced any issues particular to a self-defense theory. Tr. at 32-48 (Jury Trial, Nov. 6, 2013); cf. United States v. Napue, 401 F.2d 107, 110-12 (7th Cir. 1968) (finding omission of jury instruction was harmless error in light of factual circumstances and counsel’s closing argument); United States v. Thomas, 484 F.2d 909, 912 (6th Cir. 1973) (same). The pertinent testimony proffered by Cox and other witnesses, and his counsel’s closing arguments, were squarely aimed at negating the element of proximate cause rather than presenting an affirmative justification; and the jury was properly instructed with respect to the element of cause. See Tr. at 77-78, 81-84 (Jury Trial, Nov. 6, 2013).
[13] Thus, Cox’s theory on appeal—that he acted in self-defense—is essentially incompatible with the defense theory he presented at trial—that he did not commit the crime. It is inconsistent to say that he did not cause the accident while simultaneously claiming that he was justified in causing it. Therefore, we find the trial court did not commit plain error in failing to grant the instruction. See Camacho, 1999 Guam 27 ¶ 21; cf. Jackson, 726 F.2d at 1468 (finding no error in failing to give self-defense instruction); Hall v. United States, 46 F.3d 855, 857 (8th Cir. 1995) (same); State v. Bogenreif, 465 N.W.2d 777, 781 (S.D. 1991) (same).

B. The Trial Court’s Jury Instructions Regarding Presumptions of Intoxication Were Plain Error
[14] “The [United States] Supreme Court has delineated three types of criminal presumptions: 1) permissive, 2) mandatory rebuttable, and 3) mandatory conclusive.” McLean v. Moran, 963 F.2d 1306, 1308 (9th Cir. 1992) (citing Francis v. Franklin, 471 U.S. 307, 314 & n.2 (1985); County Court of Ulster Cty. v. Allen, 442 U.S. 140, 157 & n.16 (1979)). A permissive presumption allows—but does not require—the jury to infer proof of an elemental fact from proof of a basic fact and “does not shift the burden of production or persuasion to the defendant.” Id. (citing Ulster Cty., 442 U.S. at 157). In contrast, a mandatory rebuttable presumption tells the jury that it must find the presumed element upon proof of the basic fact, unless the defendant provides some evidence to rebut the presumed connection between the two facts; if the defendant produces such evidence, then the ultimate burden of persuasion returns to the prosecution. Id. (citing Ulster Cty., 442 U.S. at 157). A mandatory rebuttable presumption is not per se unconstitutional, but such a presumption may create constitutional problems if it shifts to the defendant the prosecution’s burden of persuasion to prove the facts of each element of the crime beyond a reasonable doubt. See id. at 1308-09. A mandatory conclusive presumption goes a step further and removes the presumed element from the case after the prosecution has proven predicate facts that give rise to the presumption, effectively eliminating the jury’s fact-finding role. Id. at 1309 (citing Francis, 471 U.S. at 314 n.2).
[15] Cox argues that the trial court committed plain error with Jury Instructions 6E and 6G.
He alleges these instructions improperly created a rebuttable presumption not contemplated by 16 GCA § 18103. Appellant’s Br. at 6-7. Jury Instruction 6E stated, in relevant part:

The amount of alcohol in the person’s blood . . . shall give rise to the following presumptions affecting the burden of proof. . . .

If there was . . . 0.08 percent, or more by weight of alcohol in the person’s blood, it shall be presumed that the person was under the influence of alcohol or under the influence of an alcoholic beverage at the time of the alleged offense.
Tr. at 79-80 (Jury Trial, Nov. 6, 2013) (emphases added). Jury Instruction 6G stated, in relevant part:

In any prosecution arising out of acts involving the driving or operating or [sic] a motor vehicle while under the influence of alcohol causing bodily injury to a person other than the driver . . . it is a rebuttable presumption that the person with . . . 0.08 percent, or more by weight of alcohol in his or her blood . . . is under the influence of alcohol if the person had . . . 0.08 percent, or more by weight of alcohol in his or her blood at the time of the performance of a blood or breath test within three hours after driving.
Id. at 80-81 (emphasis added). Cox broadly posits that these two instructions constituted plain error because the language regarding presumptions inaccurately conflated 16 GCA §§ 18102 and 18103, thereby confusing the jury as to the burden of proof. Appellant’s Reply Br. at 7-8. Cox essentially argues that, while the statutory presumptions may be only evidentiary in nature, the jury instructions failed to properly allocate the burden of proof and thus violated his constitutional right to a presumption of innocence. See Appellant’s Br. at 6. The People counter that the instruction accurately tracked the applicable statutory language and, even if erroneous, any error did not prejudice Cox’s substantial rights. See Appellee’s Br. at 9.
[16] Because Cox did not object to the relevant instructions at trial, we review for plain error. See Gargarita, 2015 Guam 28 ¶ 11 (citing Felder, 2012 Guam 8 ¶ 8). To the extent “[w]e [are] consider[ing] whether the proffered instructions accurately stated the relevant law [then we review] under a de novo standard.” Id. at 12 (citing Diego, 2013 Guam 15 ¶ 9). We review jury instructions as a whole rather than in isolation. Id. (quoting People v. Jones, 2006 Guam 13 ¶ 28); see also Estelle v. McGuire, 502 U.S. 62, 72 (1991) (“It is well established that the [jury] instruction[s] ‘may not be judged in artificial isolation,’ but must be considered in the context of the instructions as a whole and the trial record.” (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973))).
[17] The “presumptions” referred to in 16 GCA §§ 18102 and 18103 have an evidentiary function. Both sections “enable[] the factfinder to proceed by inferential reasoning from one fact to another.” Commonwealth v. MacPherson, 752 A.2d 384, 389 (Pa. 2000). Evidentiary tools like this are “commonly and often interchangeably known as ‘inferences’ or ‘presumptions.’” Id.; see generally D.E. Evins, Annotation, Construction and Application of Statutes Creating Presumption or Other Inference of Intoxication from Specified Percentages of Alcohol Present in System, 16 A.L.R. 3d 748 (1967).
[18] The United States Supreme Court has stated:

Inferences and presumptions are a staple of our adversary system of factfinding. It is often necessary for the trier of fact to determine the existence of an element of the crime—that is, an “ultimate” or “elemental” fact—from the existence of one or more “evidentiary” or “basic” facts. The value of these evidentiary devices, and their validity under the Due Process Clause, vary from case to case, however, depending on the strength of the connection between the particular basic and elemental facts involved and on the degree to which the device curtails the factfinder’s freedom to assess the evidence independently. Nonetheless, in criminal cases, the ultimate test of any device’s constitutional validity in a given case remains constant: the device must not undermine the factfinder’s responsibility at trial, based on evidence adduced by the State, to find the ultimate facts beyond a reasonable doubt.
Ulster Cty., 442 U.S. at 156 (citations omitted). Evidentiary presumptions that have “the effect of relieving the [prosecution] of its burden of persuasion beyond a reasonable doubt of every essential element of a crime” are prohibited as a violation of the Due Process Clause. Francis, 471 U.S. at 313 (collecting cases).
[19] The constitutionality of a presumption in a jury instruction depends on the nature of the presumption, which “requires careful attention to the words actually spoken to the jury.” Sandstrom v. Montana, 442 U.S. 510, 514 (1979) (citing Ulster Cty., 442 U.S. at 157-59 & n.16), overruled in part on other grounds by Boyde v. California, 494 U.S. 370, 380 (1990). In determining the nature of a presumption in an individual case, “the jury instructions will generally be controlling, although their interpretation may require recourse to the statute involved and the cases decided under it.” Ulster Cty., 442 U.S. at 157 n.16; see also Brown v. State, 910 A.2d 571, 582 (Md. Ct. Spec. App. 2006) (“The [United States] Supreme Court made clear . . . that the way the jury is instructed concerning a statutory evidentiary presumption is often dispositive of the constitutional challenge.” (collecting cases)). Even if a facially constitutional statute supplies the presumption, the jury instruction may nonetheless unconstitutionally apply it as a mandatory conclusive presumption. See, e.g., McLean, 963 F.2d at 1310 (holding jury instruction was unconstitutional as a mandatory conclusive presumption without reaching issue of constitutionality of statute).
[20] Cox cites People v. Demapan for the proposition that “[i]t is plain error when the trial court’s instructions inaccurately track the language of the statute.” Appellant’s Br. at 6 (citing Demapan, 2004 Guam 24). Demapan, however, should not be read to mean that merely tracking statutory language alone determines whether a jury instruction was plain error. Rather, in Demapan—which involved jury instructions regarding the crime of burglary under 9 GCA § 37.20—we stated that the “trial court’s instructions on entry with intent accurately tracked the burglary statute and were sufficient for the jury to understand that Demapan’s intent to commit theft was to be proven to exist concurrently with his entry” (as such concurrent intent was a required element of burglary). 2004 Guam 24 ¶ 20 (emphasis added). This italicized language cannot be ignored, as Cox does, because inaccurately tracking statutory language alone—especially when the deviations are inconsequential—is not per se fatal if the instructions are otherwise sufficient to inform the jury of its duty to find facts proving the elements of a crime beyond a reasonable doubt. Reversal is required where the defendant’s rights were violated under the Due Process Clause, which “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364 (1970).
[21] Therefore, here we must determine (1) the nature of the presumption in Guam’s DUI statute, (2) the nature of the presumptions in the contested jury instructions, and (3) whether those presumptions run afoul of constitutional Due Process protections.

[22] In analyzing the use of presumptions in criminal cases, courts distinguish statutes from the jury instructions derived therefrom, because the constitutional analysis focuses on the way the jury is instructed. See, e.g., McLean, 963 F.2d at 1310. Courts construing the presumptions in DUI statutes may in some cases hold that the statutes create permissive inferences while also holding jury instructions derived therefrom unconstitutionally burden defendant as a mandatory presumption. See, e.g., Brown, 910 A.2d at 585 (“When a constitutional problem does arise, it is due not to the statute itself, but to an improper jury instruction based on it.”). “Indeed, even where statutory language appears to create a mandatory presumption in criminal cases, courts commonly read the statute as creating only a permissive inference.” Barnes v. People, 735 P.2d 869, 872-73 (Colo. 1987) (en banc) (citations omitted); see also Salazar v. State, 505 So. 2d 1287, 1291-92 (Ala. Crim. App. 1986) (“The courts construing this type of [statutory] presumption have consistently held it to be rebuttable and not conclusive. . . . [B]ut in this case, the court simply failed to explain that this presumption is rebuttable.” (citations omitted)); People v. Roder, 658 P.2d 1302, 1309-13 (Cal. 1983) (en banc) (holding statutory presumption permissive but instruction applied an unconstitutional mandatory presumption); Busch v. State, 547 So. 2d 245, 246 (Fla. Dist. Ct. App. 1989) (“[W]e find the statute per se is not unconstitutional and falls within the prerogative of the legislature. We do agree, however, that the statute may lead to the use of a jury instruction that is unconstitutional . . . .” (citations omitted)); State v. Tiedemann, 790 P.2d 340, 341-42 (Haw. Ct. App. 1990) (same); State v. Dacey, 418 A.2d 856, 858-59 (Vt. 1980) (same).

a. Jury Instruction 6E created a mandatory conclusive presumption.
[23] Jury Instruction 6E, in its entirety, reads:

6E, driving while intoxicated, presumptions defined. Upon the trial of any criminal action arising out of acts alleged to have been committed by any person while driving or being in actual physical control of a vehicle while under the influence of an alcoholic beverage as charged in the fourth and sixth charge of the indictment.

The amount of alcohol in the person’s blood or breath shall give rise to the following presumptions affecting the burden of proof. If there was at the time less than eight one hundredths of one percent, 0.08 percent, by weight of alcohol in the person’s blood, that fact shall not give rise to any presumption that the person was or was not under the influence of an alcoholic beverage, but the fact may be considered with other competent evidence in determining whether the person was under the influence of an alcoholic beverage at the time of the alleged offense.

If there was at that time eight one hundredths of one percent, 0.08 percent, or more by weight of alcohol in the person’s blood, it shall be presumed that the person was under the influence of alcohol or under the influence of an alcoholic beverage at the time of the alleged offense.
Tr. at 79-80 (Jury Trial, Nov. 6, 2013) (emphases added); see also RA, tab 79 at Instr. No. 6E (Jury Instrs.).^[5] The statute from which Jury Instruction 6E is derived, states in relevant part:

(a) Upon the trial of any criminal action, or preliminary proceeding in a criminal action, arising out of acts alleged to have been committed by any person while driving or being in actual physical control of a vehicle while under the influence of an alcoholic beverage in violation of subsections (b) or (d) of § 18102 of this Chapter, the amount of alcohol in the person’s blood at the time of the test as shown by an analysis of that person’s blood or breath shall give rise to the following presumptions affecting the burden of proof[:]

(1) If there was at that time less than eight one-hundredths of one percent (0.08%) by weight of alcohol in the person’s blood, that fact shall not give rise to any presumption that the person was or was not under the influence of an alcoholic beverage, but the fact may be considered with other competent evidence in determining whether the person was under the influence of an alcoholic beverage at the time of the alleged offense.

(2) If there was at that time eight one-hundredths of one percent (0.08%) or more by weight of alcohol in the person’s blood, it shall be presumed that the person was under the influence of an alcoholic beverage at the time of the alleged offense.

The provisions of this subsection shall not be construed as limiting the introduction of any other competent evidence bearing upon the question whether the person ingested any alcoholic beverage or was under the influence of an alcoholic beverage at the time of the alleged offense.
16 GCA § 18103 (2005) (emphases added). While Cox’s trial counsel pointed out that referring to the statutory numbering scheme was problematic, he did not otherwise object to the presumption. See Tr. at 30-34 (Jury Trial, Nov. 5, 2013). The trial court included generic instructions related to the burden of proof, see Tr. at 61-63 (Jury Trial, Nov. 6, 2013), and to inferences, id. at 70-72, but these additional instructions did not further explain the burden of proof or the presumptions referred to in Jury Instruction 6E.
[24] Jury Instruction 6E applies a presumption that defendant is “under the influence” if his BAC was 0.08% or higher. The following charges required a finding that Cox was intoxicated or under the influence: (1) each of the two counts under the First Charge (Vehicular Homicide While Intoxicated (as a Second Degree Felony)); (2) the single count under the Third Charge (Driving While Under the Influence of Alcohol with Injuries (as a Third Degree Felony)); and (3) the single count under the Fifth Charge (Driving while Under the Influence of Alcohol (as a Misdemeanor)). See Tr. at 81-82, 83, 84 (Jury Instructions 7A and 7B, encompassing First Charge; 7E, encompassing Third Charge; 7G, encompassing Fifth Charge) (Jury Trial, Nov. 6, 2013); see also RA, tab 79 at Instr. Nos. 7A-7G (Jury Instrs.).
[25] For the First Charge, we note a discrepancy between the jury instruction and the statute. The two counts under the First Charge plainly instructed the jury that driving or operating a vehicle while intoxicated was a required element. See Tr. at 81-82 (Jury Trial, Nov. 6, 2013); see also RA, tab 79 at Instr. Nos. 6B, 7A, 7B (Jury Instrs.). However, 16 GCA § 18111(b), the statute on which the counts under the First Charge are based, requires in part that defendant was “driving a vehicle in violation of § 18102 of this Chapter[.]” 16 GCA § 18111(b) (2005). Section 18102 includes both per se BAC-based crimes and “under the influence” crimes. In other words, 16 GCA § 18111(b) allows for convictions based on either BAC violations, or driving while under the influence—assuming the other elements are met—but Jury Instructions 7A and 7B specifically instructed that driving or operating a vehicle while “intoxicated” was the pertinent element for the counts under the First Charge. See Tr. at 78, 81, 82 (Jury Trial, Nov. 6, 2013). The fact that the jury was specifically instructed that driving a vehicle while intoxicated

Supreme Court of Guam

People of Guam v Cox [2018] GUSC 16 (12 October 2018)