IN THE COURT OF APPEALS OF THE STATE OF IDAH()
Docket No. 34932
STATE OF IDAHO, ) 2009 Opinion No. 52
Plaintiff-Respondent, g Fifed: July 2, 2009
v. § Stephen W. Kenyon, Clerk
LARRY DEAN CORWIN, §
Defendant-Appellant. §
Appeal from the District Court of the 'I`hird Judicial District, State of ldaho,
Canyon County. I~Ion. James C. Mortitt, District Judge.
Judgment of conviction and unified sentence often years, with a minimum period
of confinement of five years, for enhanced driving under the influence, affirmed
§\/Iolly J. Huskey, State Appellate Public Defender; Sarah E. Tornpl<:ins, Deputy
Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Daniel W. Bower, Deputy
Attorney General, Boise, for respondent
GRAT'I`ON, Judge
Larry Dean Corwin appeals t`rorn his judgment of conviction and sentence entered
following a jury verdict finding him guilty of driving under the influence (DUI), idaho Code §
18-8004, enhanced to a felony following a bench trial, I.C. § 18-8005(5). For the reasons set
forth below, we affirm
I.
FACTS AND PROCEDURAL BACKGR()UND
This case stems from an automobile accident on I-84 between Na;rnpa and Caidwell.
Witnesses testified that a white car, traveling at a high rate of speed, span out of control, flipped
in the median and came to rest upside-down. The driver was described as a white male with
dark hair wearing a navy blue ball cap. A witness testified that the driver was alone in the
vehicie. After the car came to a rest in the median, a white male wearing jeans and a light-
colored t~shirt: was seen rimning from the vehicle
l
Officer Anthony Pittz testified that he found no one in the vehicle. He smelled a very
strong odor of an alcoholic beverage in the vehicle and saw an arnber-colored liquid, which
appeared to be beer, dripping from the floorboard area. lie observed beer cans outside of the
driver’s window. Witnesses told him that the driver was a white male in a white t-shirt and blue
jeans. He was directed toward the area where the driver had fled and there located a white rnale,
hiding behind a bush, wearing a white t-shirt and blue jeans with blood smears and stains.
Corwin initially denied any knowledge of a crash. lie later admitted to being in a crash but
claimed not to have been the driver Ofticer Pittz testified that Corwin’s breath smelled of
alcohol, his eyes were glassy and bloodshot, and he appeared slightly agitated. He testified that
he believed Corwin was under the influence of alcohol.
idaho State Police Trooper Deshan Cabaong testified that he observed a white
Oldsmobile lying on its top. lie observed an empty box of beer and a blue ball cap outside the
car. lie smelled the odor of alcohol inside the vehicle. A document in the glove box contained
the name of Larry Corwin. lie testified that Corwin’s breath smelled of aleohol, his eyes were
bloodshot, his speech was slnrred, and his movements were shaky. Corwin failed the horizontal
gaze nystagmus (HGN) test. Corwin swayed as he exited the patrol vehicle. Trooper Cabaong
arrested Corwin after determining that he was under the influence of alcohol. Corwin was
combative at the jail and refused to submit to a breath test. Trooper Cabaong testified that
Corwin was too impaired to operate a motor vehicle.
Corwin was charged with operating a motor vehicle while under the influence of alcohol
and/or an intoxicating substance, with a felony enhancement because it was his third DUI
offense within ten years, I.C. §§ 18~8004, 18~8005(5), and a persistent violator sentence
enhancement was sought, l.C. § 19-2514. A jury found Corwin guilty of driving under the
influence Corwin waived his right to a jury trial as to the felony enhancement and persistent
violator enhancement, and after a bench trial, Corwin was found guilty on the felony
enhancement and the persistent violator enhancement was dismissed 'l`he district court imposed
a unified sentence of ten years, with five years determinate Corwin filed an idaho Criminal
Rule 35 motion, which was denied "l`his appeal followed
II.
ANALYSIS
Corwin raises three issues on appeal First, Corwin contends that the district court erred
in ailowing the law enforcement officers to testify to an uitimate issue for the jury’s
determination, whether or not Corwin was under the influence of aicohol. Second, Corwin
argues that a statement made by the prosecutor during closing argument, allegediy expressing her
own opinion as to Corwin’s guilt, constituted prosecutorial misconduct rising to the ievei of
fundamental error. Third, Corwin claims that the district court acted in manifest disregard of
I.C.R. 32 when it sentenced Corwin without a substance abuse evaluation and that the court
further abused its discretion in denying Corwin’s I.C.R. 35 motion
A. Testimony Regarding intoxication
Corwin argues that the officers’ statements regarding whether or not Corwin was under
the influence of alcohol did not assist the trier of fact because the jury was able to evaluate the
circumstantiai evidence on its own and, therefore, admission of this testimony improperly
invaded the province of the jury. "i`he trial court has broad discretion in determining the
admissibility of testimonial evidence Stare v. Smirh, 117 idaho 225, 232, 786 P.2d 1127, §134
(1990). A decision to admit or deny such evidence wiil not be disturbed on appeal absent a clear
showing of abuse of that discretion fci
As noted, Officer Pittz testified that he believed Corwin to be under the influence of
alcohoi. Trooper Cabaong testified that Corwin was too impaired to operate a motor vehicle.]
As to both statements, Corwin objected on the ground that the testimony elicited invaded the
province of the jury. Corwin did not object as to foundation for either offrcer’s testimony
idaho Ruie of Evidence 704 provides: "Testimony in the form of an opinion or inference
otherwise adrnissibie is not objectionable because it embraces an ultimate issue to be decided by
the trier of fact." Corwin argues, however, that pursuant to Staz‘e v. He.s'rer, 114 idaho 688, 696,
760 P.Zd 27, 35 (1988), the officers’ testimony impermissibly invaded the province of the jury.
Corwin‘s reliance on Hesz‘er is inisplaced. 'l`he Hester Court determined that expert testimony
that the child had been abused, an ultimate issue for the jury, was proper and did not invade the
province of the jury. Howevcr, the Court held that the expert exceeded the proper bounds of
l We note that 'l`rooper Cabaong also testified, without objection, that Corwin was under
the influence of alcohol
expert testimony when the expert testified that Hester was the abuser. Hester, ll¢i idaho at 692»~
96, 760 P.Zd at 31~35. 'i`he Court stated that "having an expert render an opinion as to the
identity of the abuser is more of an invasion of the jury’s function rather than an ‘assist’ to the
trier of fact." Id. at 695, 760 P.Zd at 34. "i`estimony regarding the identity of the abuser
embraced the ultimate issue in the case, whether or not Hester was the individual who abused the
child, i.e., whether or not Hester was guilty. Iol. See also Sr_crte v. Walters, 120 idaho 46, 55, 813
P..'Zd 857, 866 (1990) (testimony that the defendant was the arsonist was held improper because it
embraced "the ultimate fact," guilt, which was for the jury to decide.).
While the Court in Srare v. Gleason, l23 idaho 62, 844 P.Zd 691 (1992), was specifically
faced with the question of whether HGN-reiated testimony was adrnissible, it held:
The trial court in this case did not venture beyond the permissive bounds
of Garrerr when it aliowed Deputy Wolfinger to testify that based on Gleason’s
performance on the HGN and other tests, Deputy Wolfinger was of the opinion
that Crleason was intoxicated . . . Deputy Woliinger’s testimony relating to the
I-IGN test results was not offered as independent scientifically sound evidence of
Gleason’s intoxication Rather, it was offered and admitted for the same purpose
as other field sobriety test evidence -- a physical act on the part of Gleason
observed by the officer contributing to the cumulative portrait of Gleason
intimating intoxication in the officer’s opinion.
123 idaho at 66, 844 P.Zd at 695 (ernphasis in original).
in this case, the officers described their observations and interaction with Corwin. They
testified as to his behaviors and physical state and, from that, their belief that he was under the
influence of alcohol and too impaired to drive. The officers’ observations that Corwin was under
the influence of alcohol and too impaired to drive went to an ultimate issue of fact, but did not
invade the province of the jury as to its determination of whether Corwin was or was not guilty
of having driven an automobile while under the influence of alcohol 'l`he district court did not
abuse its discretion when it aliowed the officers to testify that Corwin was under the influence of
alcohol and too impaired to operate a motor vehicle.
B. Prosecutorial Misconduct
Corwin next contends that during closing argurnent, the prosecutor "stated a personal
belief, expressly rooted in her own opinion, that Mr. Corwin was ‘under the influence and too
impaired to drive a motor vehicie."’ Corwin’s contention, however, is without merit as it
disregards the context of the prosecutor’s statenients. During closing argurnent, the prosecutor
reiterated the officers’ testiniony, stating:
You’ve heard from both officers Both offxcers, based on their training,
based on their experience gave an opinion as to whether or not they believed l\/ir.
Corwin could safety operate a motor vehicle. Officer Pittz, who has been an
officer for years, who is a field training officer himself, gave his opinion. Based
in my opinion f believe Mr. Corwin was too -~ was under the influence and too
impaired to drive a motor vehicle.
And you heard front 't`rooper Cabaong who is new. . . . Based on his
experience, based on his training he believed Mr. Corwin was under the influence
of alcohol and could not safely operate a motor vehicle.
lt is clear that, when taken in context, the prosecutor was not offering her own opinion but was
simply reiterating ()fticer Pittz’ opinion testimony for the jury. Corwin has failed to show any
prosecutorial misconduct
C. Substance Abuse Evaluation
The district court ordered a substance abuse evaluation in addition to the presentence
investigation report (PSI). 'i`he court inquired as to whether Corwin wished to obtain his own
substance abuse evaluator or whether he wished to use Mr. Lirnus, "the gentleman normally used
by Canyon County." Corwin indicated that Mr. Limus would be fine, and the court entered an
oral order to that effect 'i`hereafter, the court entered a written order for completion of a PSi and
a substance abuse evaluation 'l`he written order included a handwritten notation stating that a
copy of the order was sent to "Juan Limus 10-25-0'7."
At sentencing, the court noted that it had received the PSI and made corrections on the
record to that report "fhe court also inquired as to whether Corwin had an opportunity to review
the report and whether “any additional corrections" needed to be made "in that report." "i`he PSI
indicates that Corwin told the investigator that he "never underwent a drug/alcohol evaluation as
requested on the PSI Order." The PSI states on the last page, “INSERT DRUG ALCOHOL
EVALUATION." However, the record does not reflect that a substance abuse evaluation was
ever completed Corwin did not raise this issue at the sentencing hearing and the district court
did not inquire as to why the substance abuse evaluation had not been completed.z
2 We do note, however, that the judge ordering the substance abuse evaluation was not the
same judge that sentenced Corwin.
Corwin argues that I.C.R. 32 and l.C. § 18~8005(9) mandate that a substance abuse
evaluation be ordered in DUI cases and that the failure of the district court to have that
evaluation prior to sentencing constitutes a manifest disregard of the requirement Corwin
contends that "the district court was required to order and obtain a substance abuse evaluation
for purposes of sentencing." (Emphasis added.) The State argues that it was Corwin’s
obligation to have the evaluation completed and delivered to the court We agree
The language in l.C. § 18-8005(9) indicates that "any person” convicted of a DUI shall
undergo an alcohol evaluation at his own expense, unless paid for by the county. The statute
also provides that “tbe person" shall request that a copy of the completed evaluation be
forwarded to the court 'l`herefore, it is clear from this language that it is the defendant’s
responsibility, not the court’s, to ensure that the evaluation is completed and that a report is
provided to the court for its review. Frorn the record in this case, it does not appear that Corwin
did so.
idaho Code § 18-8005(9) also contemplates the circumstance where a completed
evaluation is not provided to the court:
if a copy of the completed evaluation has not been provided to the court,
the court may proceed to sentence the defendant; however, in such event, it shall
be presumed that alcohol treatment is required unless the defendant makes a
showing by a preponderance of evidence that treatment is not required. If the
defendant has not made a good faith effort to provide the completed copy of the
evaluation to the court, the court rnay consider the failure of the defendant to
provide the report as an aggravating circumstance in determining an appropriate
sentence.
Thus, securing completion of the evaluation and delivery to the court is the responsibility of the
defendant. As set forth above, in the event a completed evaluation is not delivered to the court,
the court may proceed to sentencing without the evaluation in that circumstance, sentencing
without a substance abuse evaluation is not a manifest disregard of I.C.R. 32, although it is
presumed at sentencing that alcohol treatment is required As such, the court shall order alcohol
treatment unless the court determines that alcohol treatment would be inappropriate or
undesirable and articulates the reasons for such determination on the record. l.C. § l8-8G05(l2).
The PSI included a "substance abuse comments" section, which noted that Corwin
reported that he was an "alcoholic and drug addict." The PSI also noted that Corwin had
participated in several programs for substance abuse treatment, which included eight different
programs Corwin’s counsel argued at sentencing that he needed better programming to correct
his alcohol and drug abuse. 'fhereafter, the court proceeded to sentencing and stated:
f have reviewed the presentence investigation report. You have six prior
felony convictions You’ve served time on all of those. You have been paroled
on at least two and violated your parole Your prior record consists of two
burglaries, a prior felony DUI, two grand thefts, and a felony possession of a
controlled substance.
You have six prior DUi convictions, including one prior felony DUI.
There’s an outstanding ~~ according to the PSI -- BUI warrant at this time.
You have a number of dismissed felonies and two dismissed DUIs. You
were noncompliant with parole as evidenced by your parole revocations. You do
have significant drug and aicohol issues You have been unsuccessful when given
the opportunity to participate in a number of substance abuse programs, which is
what you’re asking the Court to allow you to do at this time
i heard the circumstances of the accident that you were involved in out on
the interstate You easily could have killed or injured some of the other motorists
that were on the roadway at that tirne. lt is simply unacceptable And l would he
remiss in my duty to provide for the safety of the public and to provide deterrence
to the public and to provide punishment for lawbreal