IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 33154
STATE OF IDAHO, )
) 2009 Opinion No. 42
Plaintiff-Respondent, )
) Filed: June 2, 2009
v. )
) Stephen W. Kenyon, Clerk
PHILIP ANDREW TURNEY, )
)
Defendant-Appellant. )
)
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
County. Hon. Cheri C. Copsey, District Judge.
Judgment of conviction and sentences for two counts of aggravated driving under
the influence and enhancements for being a persistent violator, affirmed.
Molly J. Huskey, State Appellate Public Defender; Justin M. Curtis, Deputy
Appellate Public Defender, Boise, for appellant. Justin M. Curtis argued.
Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.
______________________________________________
PERRY, Judge
Philip Andrew Turney appeals from his judgment of conviction and sentences for two
counts of aggravated driving under the influence (DUI) and enhancements for being a persistent
violator. Specifically, Turney contends that the state violated his right against double jeopardy
by subjecting him to multiple criminal punishments for the same offense. For the reasons set
forth below, we affirm.
I.
FACTS AND PROCEDURE
Two police officers, in separate patrol vehicles, were engaged in a DUI traffic stop of a
vehicle when another vehicle driven by Turney then crashed violently into the stopped patrol
vehicles causing serious injury to the two police officers. Turney was arrested at the scene with
a blood alcohol content of .16. Turney was charged with two counts of aggravated DUI, I.C. §
18-8006, and sentence enhancements for being a persistent violator, I.C. § 19-2514. After a jury
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trial, Turney was found guilty of both counts of aggravated DUI and being a persistent violator.
The district court sentenced Turney to concurrent unified terms of life imprisonment, with
minimum periods of confinement of fifteen years, for each count of aggravated DUI enhanced
for being a persistent violator. Turney appeals.
II.
ANALYSIS
A. Double Jeopardy
Turney argues that the state violated his right against being placed in double jeopardy by
penalizing him twice for a single act of DUI. The state responds that Turney did not properly
preserve his double jeopardy defense by challenging any defect in the information prior to trial
pursuant to I.C.R. 12(b).1 Turney concedes that the issue was not raised below, but argues that it
is well-established that subjecting a defendant to double jeopardy is fundamental error. We do
not address the issue of waiver under Rule 12(b) and fundamental error. Even assuming that
subjection to double jeopardy could in some circumstances constitute fundamental error, we hold
that no error, and thus no fundamental error, is shown here.
Turney argues that he cannot be charged for injuries caused to multiple victims stemming
from a single act of DUI. Turney relies primarily on State v. Major, 111 Idaho 410, 725 P.2d
115 (1986). In Major, the Idaho Supreme Court held that a charge of multiple counts of
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Idaho Criminal Rule 12(b) provides, in pertinent part:
Any defense objection or request which is capable of determination
without trial of the general issue may be raised before the trial by motion. The
following must be raised prior to trial:
....
(2) Defenses and objections based on defects in the complaint,
indictment or information (other than it fails to show jurisdiction of the court or to
charge an offense which objection shall be noticed by the court at any time during
the pendency of the proceedings); or
....
(6) Motion to dismiss based upon former jeopardy.
As a penalty, subsection (f) provides, in pertinent part:
Failure by the defendant to raise defenses or objections or to make
requests which must be made prior to trial, or at the time set by the court pursuant
to subsection (d), or prior to any extension thereof made by the court, shall
constitute waiver thereof . . . .
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violating a statute is appropriate only where the actus reus prohibited by the statute--the
gravamen of the offense--has been committed more than once. Id. at 415, 725 P.2d at 120; see
also Wilkoff v. Superior Court, 696 P.2d 134, 137 (Cal. 1985). Therefore, Turney contends, if
the actus reus of driving under the influence was only committed once, he could only have been
charged with one count of aggravated DUI.
We conclude, however, that driving is not the actus reus of the offense defined in Idaho
Code Section 18-8006(1). That statute provides that any “person causing great bodily harm,
permanent disability or permanent disfigurement to any person other than himself in committing
a violation of the provisions of section 18-8004(1)(a) or (1)(c), Idaho Code, is guilty of a
felony.” This Section provides for an offense which is separate and distinct from the crime of
DUI and its penalties and enhancements in I.C. §§ 18-8004 and 18-8005. Idaho Code Section
18-8006 makes it a crime to cause great bodily harm to another person while in violation of I.C.
§ 18-8004. The actus reus, or gravamen, of the offense defined by I.C. § 18-8006 is the act of
causing injury to another, not the act of driving under the influence. Therefore, when there are
multiple victims that have received great bodily harm, multiple charges may appropriately be
filed against the offender.
In the context of vehicular manslaughter, I.C. § 18-4006(3), this Court has held that
multiple charges were appropriate when multiple deaths result from a defendant’s single act of
DUI. State v. Lee, 116 Idaho 515, 516-17, 777 P.2d 737, 738-39 (Ct. App. 1989). In Lee, the
defendant was driving with a blood alcohol content of .19 when his truck entered the wrong side
of the highway and struck another vehicle, killing both of its occupants. Lee was charged with
two counts of vehicular manslaughter. Idaho Code Section 18-4006 provides:
Manslaughter is the unlawful killing of a human being including, but not
limited to, a human embryo or fetus, without malice. It is of three (3) kinds:
....
3. Vehicular--in which the operation of a motor vehicle is a
significant cause contributing to the death because of:
(a) The commission of an unlawful act, not amounting to a
felony, with gross negligence; or
(b) The commission of a violation of section 18-8004 or 18-
8006, Idaho Code; or
(c) The commission of an unlawful act, not amounting to a
felony, without gross negligence.
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Lee argued that an act of driving that causes death constitutes a single offense, regardless of the
number of deaths that result. This Court held:
Lee’s argument ignores the operative language of the statute that
“[m]anslaughter is the unlawful killing of a human being. . . .” The rest of the
statute simply describes the ways in which the crime of manslaughter may be
committed. Read as a whole, the statute clearly and unambiguously indicates the
legislature’s intent to protect individual victims and to criminalize the unlawful
killing of a human being. It necessarily follows that multiple deaths resulting
from a single act of driving can be charged as separate offenses under the
manslaughter statute.
Lee, 116 Idaho at 516, 777 P.2d at 738.
Similarly, in this case, I.C. § 18-8006 criminalizes causing great bodily harm, permanent
disability, or permanent disfigurement to any person. As with I.C. § 18-4006, by enacting I.C. §
18-8006, the legislature sought to protect individual victims and criminalize the unlawful act of
causing great bodily harm to another while driving under the influence. Accordingly, in this
case, Turney was correctly charged with and punished for two violations of I.C. § 18-8006 and
was not, as he contends, placed in double jeopardy for the commission of a single offense.
B. Excessive Sentences
Turney next argues that his concurrent unified sentences of life imprisonment, with
minimum periods of confinement of fifteen years, for each count of aggravated DUI, enhanced
for being a persistent violator, are excessive. Turney acknowledges that his sentences are within
the statutory limits. However, he alleges that they are excessive under any view of the facts. An
appellate review of a sentence is based on an abuse of discretion standard. State v. Burdett, 134
Idaho 271, 276, 1 P.3d 299, 304 (Ct. App. 2000). Where a sentence is not illegal, the appellant
has the burden to show that it is unreasonable, and thus a clear abuse of discretion. State v.
Brown, 121 Idaho 385, 393, 825 P.2d 482, 490 (1992). A sentence may represent such an abuse
of discretion if it is shown to be unreasonable upon the facts of the case. State v. Nice, 103 Idaho
89, 90, 645 P.2d 323, 324 (1982). A sentence of confinement is reasonable if it appears at the
time of sentencing that confinement is necessary “to accomplish the primary objective of
protecting society and to achieve any or all of the related goals of deterrence, rehabilitation or
retribution applicable to a given case.” State v. Toohill, 103 Idaho 565, 568, 650 P.2d 707, 710
(Ct. App. 1982). Where an appellant contends that the sentencing court imposed an excessively
harsh sentence, we conduct an independent review of the record, having regard for the nature of
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the offense, the character of the offender, and the protection of the public interest. State v.
Reinke, 103 Idaho 771, 772, 653 P.2d 1183, 1184 (Ct. App. 1982). When reviewing the length
of a sentence, we consider the defendant’s entire sentence. State v. Oliver, 144 Idaho 722, 726,
170 P.3d 387, 391 (2007).
At the sentencing hearing, the district court recognized its discretion in imposing
sentence upon Turney. The district court noted that Turney continued in his denial of being the
driver of the car but that Turney and his story lacked any credibility. The district court
considered the nature of the offense and the goal of protecting society. It found that aggravated
DUI is a particularly heinous offense because of the risk of potential serious injury to innocent
people. The district court also considered deterrence and the potential for rehabilitation. Two
psychological evaluations that were conducted after one of Turney’s prior offenses had
concluded that he had problems with immaturity, poor interpersonal relationships, anger
management, self-centeredness, impulsivity, recognizing authority, and minimizing criminal
behavior. Turney’s record also disclosed numerous treatment programs which had all failed to
change Turney’s behavior. Turney’s record included an extensive criminal history over sixteen
years, including nine felonies and numerous disciplinary reports while Turney was previously
incarcerated. The district court determined that the state’s recommendations of terms of fixed
life imprisonment were not appropriate but that indeterminate terms of life imprisonment were
necessary because Turney had never done well on probation or parole and needed supervision.
Finally, the district court concluded that Turney had continually flaunted and broken the law at
the risk of the public and was the prototypical persistent violator from whom the public needed
protection.
Turney has repeatedly broken the law over many years. He has shown an inability to
conform his conduct to lawful standards despite various programming and rehabilitation
methods. The district court properly recognized its discretion and considered the sentencing
factors relevant to its determination. Therefore, we conclude that the district court did not abuse
its discretion by imposing concurrent unified sentences of life imprisonment, with minimum
periods of confinement of fifteen years.
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III.
CONCLUSION
Injuries to multiple victims resulting from a single act of DUI can be charged as separate
offenses under the aggravated DUI statute, I.C. § 18-8006. Turney caused great bodily harm to
two victims and, therefore, he was properly charged with multiple counts of aggravated DUI and
was not twice placed in jeopardy for a single offense of DUI. Turney’s sentences are not
excessive. Accordingly, Turney’s judgment of conviction and sentences for two counts of
aggravated DUI, enhanced for being a persistent violator, are affirmed.
Chief Judge LANSING and Judge GUTIERREZ, CONCUR.
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