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             IN THE COURT OF APPEALS OF THE STATE OF ALASKA


NATHAN L. ADAMS,
                                                      Court of Appeals No. A-11112
                            Appellant,               Trial Court No. 3PA-11-1723 CR

                     v.
                                                               OPINION
STATE OF ALASKA,

                            Appellee.                  No. 2478 — October 2, 2015


              Appeal from the Superior Court, Third Judicial District, Palmer,
              Vanessa H. White, Judge.

              Appearances: John P. Cashion, Cashion Gilmore LLC, under
              contract with the Public Defender Agency, and Quinlan Steiner,
              Public Defender, Anchorage, for the Appellant. Kenneth M.
              Rosenstein, Assistant Attorney General, Office of Special
              Prosecutions and Appeals, Anchorage, and Michael C.
              Geraghty, Attorney General, Juneau, for the Appellee.

              Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley,
              District Court Judge. *

              Judge ALLARD.




   *
       Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska
Constitution and Administrative Rule 24(d).
              A jury convicted Nathan L. Adams of felony driving under the influence
of clonazepam, a controlled substance.1
              Adams appeals his conviction, arguing that the trial court instructed the jury
in a manner that allowed it to convict him of driving under the influence even if his
impaired driving was due to his physical exhaustion rather than his ingestion of
clonazepam. We conclude that the court’s instructions adequately conveyed to the jury
that it could not convict Adams unless (1) he was impaired to the extent that he could not
operate a motor vehicle with the caution characteristic of a person of ordinary prudence
and (2) this impairment was proximately caused by his ingestion of clonazepam.
              Adams also argues that the superior court erred when it refused to exclude
the testimony of the State’s expert witness after the State failed to provide timely notice
of the expert’s testimony.       Because Adams rejected the trial court’s offer of a
continuance, and because he has not shown that the offered continuance was insufficient
to cure any prejudice caused by the State’s late notice of its expert witness, we affirm the
trial court’s ruling as within its discretion.
              Lastly, Adams argues that the State’s evidence was insufficient to support
his conviction for driving under the influence. Viewing the evidence in the light most
favorable to the jury’s verdict, we conclude that there was legally sufficient evidence to
support the jury’s verdict.
              Accordingly, we affirm the judgment of the superior court.




   1
       AS 28.35.030(a)(1), (n). Adams was also convicted of sixth-degree misconduct
involving a controlled substance under AS 11.71.060(a) but he does not challenge that
conviction on appeal.

                                            –2–                                       2478

       Facts and proceedings
              On July 1, 2011, three individuals called 911 to report Adams’s erratic and
dangerous driving. They each reported seeing Adams’s car swerving across the road,
running multiple people into the ditch, and almost hitting a family van and a truck.
              Alaska State Trooper Jesse Lopez responded to these reports and observed
Adams’s car cross the fog line and drift back across the median of the Parks Highway.
The car then entered a ditch, struck a culvert, entered a second road, and almost hit a
garbage truck.
              When Trooper Lopez contacted the driver, Nathan Adams, he was
struggling to put the vehicle into park. Adams displayed other signs of impairment: he
was sluggish, his speech was slurred, and he staggered when he walked. Adams told
Lopez that he only had six hours of sleep and that he was tired.
              Adams performed poorly on field sobriety tests, but when he submitted to
a breath test, the test showed that he had not consumed any alcohol.
              Adams told the troopers that he had a doctor’s prescription for clonazepam,2
and the troopers recovered two empty bottles of clonazepam in the center console of his
vehicle. Also located in the console was a marijuana pipe and a small amount of
marijuana (5.82 grams).
              Approximately seven hours after Adams was arrested, the troopers obtained
a blood sample from him. The initial test of that blood sample revealed no controlled
substances. But a second test shortly before trial revealed .03 milligrams of clonazepam
per liter of Adams’s blood. At trial, the State’s expert testified, without contradiction,


   2
        Clonazepam (brand name Klonopin) is a Schedule IV controlled substance in the
benzodiazepine family. It typically has a 30- to 40-hour half-life and is commonly prescribed
to treat panic disorders and epileptic conditions. See U.S. Food and Drug Administration,
Prescribing Information for Klonopin, available at [http://www.accessdata.fda.gov/
drugsatfda_docs/label/2009/017533s045,020813s005lbl.pdf] (last visited Sep. 24, 2015).

                                            –3–                                        2478

that this amount of clonazepam was sufficient to impair a driver’s balance, cognition, and
reaction time, and that Adams likely had more clonazepam in his system at the time he
was driving.
               Because Adams had previous convictions for driving under the influence,
the State charged him with a felony offense.3 He was also charged with sixth-degree
misconduct involving a controlled substance based on the marijuana found in his car.4
Adams remained incarcerated pending his trial because he was unable to meet his bail
conditions.
               The day before trial, the State gave the defense notice that it intended to
present the testimony of the expert who had analyzed Adams’s blood sample for the
presence of controlled substances. Adams’s attorney objected to the testimony, pointing
out that Alaska Rule 16 required the State to provide notice of expert testimony at least
forty-five days before trial.5 The defense attorney asked the court to either exclude the
testimony or grant a forty-five-day continuance with the time counted against the State
for purposes of Criminal Rule 45, which would result in dismissal of the case for
violation of Adams’s right to a speedy trial.
               Superior Court Judge Vanessa White refused to exclude the expert
testimony or dismiss Adams’s case, ruling that a continuance was the appropriate remedy
for the State’s late notice. The judge gave Adams two options: a continuance of a few
weeks to allow him to prepare his defense to the State’s late-noticed expert, or the full
forty-five-day continuance he requested provided that he waived his right to a trial within
the 120-day period required by Criminal Rule 45.


   3
       AS 28.35.030(a)(1), (n).
   4
       AS 11.71.060(a).
   5
       See Alaska R. Crim. P. 16(b)(1)(B).

                                             –4–                                     2478

              Adams’s attorney rejected both of these options as inadequate. Because
Adams refused any continuance that would not result in dismissal of his case under Rule
45, his trial began that day.
              At trial, Adams argued that the jury should acquit him because his erratic
driving was caused by his exhaustion, not by his ingestion of clonazepam. The jury
ultimately rejected that defense and convicted Adams of felony driving under the
influence and sixth-degree misconduct involving a controlled substance.
              This appeal followed.


       Why we conclude that the trial court’s instructions to the jury regarding
       the cause of Adams’s impairment were legally adequate in this case
              Adams’s jury was instructed that to convict Adams of driving under the
influence, the State had to prove beyond a reasonable doubt that Adams drove while
“under the influence of [an] alcoholic beverage, intoxicating liquor, inhalant, or any
controlled substance, singly or in combination.”6
              The jury was also given the following instruction, defining “under the
influence”:
              A person is under the influence when as a result of the use
              thereof, his or her physical or mental abilities are impaired so
              that he or she no longer has the ability to operate or drive a
              motor vehicle with the caution characteristic of a person of
              ordinary prudence who is not under the influence of such a
              substance.[7]


   6
       AS 28.35.030(a)(1).
   7
      See Molina v. State, 186 P.3d 28, 29 (Alaska App. 2008); Gunderson v. Anchorage,
762 P.2d 104, 114 n.7 (Alaska App. 1988).

                                           –5–                                     2478

(Although no one noticed the omission in this instruction when it was first submitted to
the jury, on appeal the parties agree that the instruction should have read: “A person is
under the influence of an alcoholic beverage, intoxicating liquor, inhalant, or any
controlled substance, singly or in combination, when as a result of the use thereof ...” or
alternatively, “[a] person is under the influence of clonazepam, a controlled substance,
when as a result of the use thereof ...”8)
              During deliberations the jury asked the court for clarification of these
instructions. First, the jury asked the court to explain whether the phrase “singly or in
combination” meant “in combination [with] anything (exhaustion), or just those on this
list?” The parties agree that the court responded appropriately to this question by
instructing the jury that “singly or in combination” referred only to an alcoholic
beverage, intoxicating liquor, inhalant or controlled substance, not “to other possible
conditions, such as sleepiness or exhaustion.”
              Second, the jury asked for clarification of the instruction defining “under
the influence” (Instruction No. 15). The court’s response to that question is the subject
of this appeal.
              Specifically, the jury sought clarification on what it meant for a driver to
be impaired “as a result of” his or her use of a controlled substance:
              In instruction 15, does “as a result of” mean the controlled
              substance must be the sole cause? Or are other factors
              (exhaustion) allowed? In short: can we convict based on
              shared cause of guilt?
After consulting with the parties, the court provided the following response to the jury’s
question:
              In Instruction #15, the phrase “as a result of” means as a
              direct result of the use of an alcoholic beverage, intoxicating

   8
       Cf. Alaska Criminal Pattern Jury Instruction 28.35.030(a) #4 (2011).

                                             –6–                                     2478

              liquor, inhalant or any controlled substance. The controlled
              substance need not be the only cause of the driver’s impaired
              performance, but, for purposes of evaluating whether the
              defendant was driving under the influence, the use of the
              substance must be one direct cause of the driver’s inability
              “to operate or drive a motor vehicle with the caution
              characteristic of a person of ordinary prudence.”
Adams agreed with the first part of the court’s instruction — that “as a result of” meant
“as a direct result of.” But he objected to the rest of the instruction. The court overruled
his objection.
              On appeal, Adams argues that the court’s clarifying instruction was error.
He asserts that the court should have specifically instructed the jury that it “could not
incorporate Adams’s exhaustion into the equation” in deciding whether to convict him
of driving under the influence.
              The parties agree that, under Alaska law, a person’s conduct is the
proximate cause of a result only if (1) the result would not have occurred “but for” the
conduct and (2) the conduct was “so important” in bringing about the result “that
reasonable individuals would regard it as a cause and attach responsibility to it.”9 This
test is sometimes referred to as the “substantial factor test.”10
              Thus, the State bore the burden of proving, inter alia, that but for Adams’s
ingestion of clonazepam, he would have been able to drive “with the caution



   9
       Winschel v. Brown, 171 P.3d 142, 148 (Alaska 2007); see generally Wayne R.
LaFave, Substantive Criminal Law § 6.4(a), at 466 (2d ed. 2003) (discussing proximate
causation in criminal cases).
   10
        Winschel, 171 P.3d at 148; see also Wayne R. LaFave, Substantive Criminal Law §
6.4(b) at 468-69 (noting that courts will use the term “substantial factor” rather than “but for”
when there are multiple forces operating to cause the harmful result, and each force by itself
is sufficient to cause the result).

                                              –7–                                          2478

characteristic of a person of ordinary prudence who is not under the influence”;11 but the
State was not required to prove that Adams’s alleged lack of sleep played no role in his
impairment. Similarly, the jury could properly convict Adams of being under the
influence of clonazepam even if it found that his lack of sleep contributed in some
manner to his impairment.
              We think that, taken as a whole, the trial court’s instructions adequately
conveyed this law to the jury. The jury was told that it could not convict Adams unless
the State proved beyond a reasonable doubt that Adams drove while “under the influence
of alcoholic beverage, intoxicating liquor, inhalant, or any controlled substance, singly
or in combination” and that “singly or in combination” did not encompass “other
possible conditions, such as sleepiness or exhaustion.” The jury was also instructed that
Adams’s ingestion of clonazepam had to be a “direct cause” of his legal impairment —
though it did not have to be the sole cause of his impaired performance.
              On appeal, Adams contends that the instruction was not as clear as it could
have been and that it may have led the jury to erroneously convict him of being “under
the influence” of exhaustion, rather than “under the influence” of a controlled substance.
But, in the proceedings below, Adams’s attorney failed to offer the trial judge any
alternative language that might have better clarified the legal standard. Instead, the
defense attorney insisted that the clonazepam had to be the sole cause of Adams’s
impairment and the trial court had to remove any and all language from the instruction
suggesting otherwise. But, as we just explained, that is not the law.
              Moreover, if we adopted Adams’s contention — that AS 28.35.030(a)
requires the State to prove that a defendant’s impairment is attributable solely to the
ingestion of alcoholic beverages or controlled substances — this would create a defense
inconsistent with the underlying purpose of the statute. Under Adams’s interpretation

   11
        Molina, 186 P.3d at 29.

                                          –8–                                       2478

of the law, defendants who consumed alcoholic beverages and/or controlled substances
to the point where they were impaired would nevertheless be entitled to an acquittal on
the DUI charge if they could convince the jury of a reasonable possibility that their
impairment was augmented by fatigue or some other extraneous cause.
               For these reasons, we conclude that the court’s instruction was not error.


        Why we conclude that the trial court did not abuse its discretion by
        allowing the State’s expert witness to testify despite the State’s late notice
        of the expert
               Adams next argues that the superior court erred by allowing the State’s
expert to testify as an expert witness without timely notice under Criminal Rule
16(b)(1)(B). He contends that, as an incarcerated, pretrial defendant, he was unfairly
forced to choose between foregoing his right to a speedy trial and having adequate,
timely notice of the expert witness.
               Criminal Rule 16(b)(1)(B) provides that “[u]nless a different date is set by
the court, as soon as known and no later than 45 days prior to trial, the prosecutor shall
inform the defendant of the ... expert witnesses ... the prosecutor is likely to call at
trial.”12 The rule also describes the remedy for violations of the disclosure requirements:
               Failure to provide timely disclosure under this rule shall
               entitle the defendant to a continuance. If the court finds that
               a continuance is not an adequate remedy under the
               circumstances of the case, the court may impose other
               sanctions, including prohibiting the prosecutor from calling
               the expert at trial or declaring a mistrial.13




   12
        Alaska R. Crim. P. 16(b)(1)(B).
   13
        Id.

                                            –9–                                          2478

                Thus, in the absence of bad faith, a continuance is normally the appropriate
remedy for a discovery violation.14 But if a continuance is shown to be an inadequate
remedy, the trial court may consider other remedies, including exclusion of evidence or
a mistrial.15
                Here, when the State notified Adams of its expert witness, approximately
thirty-three days of speedy trial time remained. The court offered to continue trial to
allow Adams the opportunity to prepare for the testimony of the State’s expert and to
give him a date-certain trial within his current Rule 45 calculation. The court also
offered to continue the case for the full forty-five days provided for under Criminal Rule
16, if Adams consented to a trial outside the current Rule 45 calculation.
                Adams rejected both of these options, insisting that the only adequate
remedy was to either exclude the expert testimony or dismiss his case for violation of his
speedy trial rights under Rule 45. On appeal, Adams abandons his claim that the case
should have been dismissed under Rule 45 and argues only that the offered continuance
within the current Rule 45 calculation was inadequate and that the appropriate remedy
was exclusion of the expert at trial.
                But Adams does not explain why the offered continuance was “inadequate.”
And his refusal to take any additional time to prepare for the State’s expert directly
undermines his claim that the offered continuance was inadequate.
                Adams contends that “the degree to which the prosecution disregarded its
obligation to engage in timely discovery and submit timely filings is staggering” and that
exclusion was therefore the appropriate remedy in this circumstance, particularly given
his continued pretrial incarceration.

   14
      Bostic v. State, 805 P.2d 344, 348 (Alaska 1991); Johnson v. State, 577 P.2d 230, 233
(Alaska 1978).
   15
        Bostic, 805 P.2d at 348.

                                            – 10 –                                    2478

              But the record shows that the trial judge was concerned about the
prosecutor’s actions and their effect on an incarcerated pretrial defendant. The judge
held an inquiry into why expert notice was so late and found that it was based on
inadvertence, not bad faith. She also found that, contrary to the defense attorney’s
claims, the proposed expert testimony should not have come as a surprise to the defense
because the prosecutor had sent the results of the second blood test to the defense a week
earlier. Lastly, the court found that the prosecutor had acted diligently in sending the
defense the results of the second blood test as soon as he received them.
              Given this record, we conclude that the trial court acted within its discretion
when it denied Adams’s request for exclusion of the State’s expert testimony.


        The State presented sufficient evidence that Adams was under the influence
        of clonazepam
              Lastly, Adams argues that the State presented insufficient evidence that his
impairment was directly caused by his ingestion of clonazepam.
              In reviewing a motion for a judgment of acquittal, we view the evidence in
the light most favorable to upholding the verdict.16 Evidence is sufficient to support a
conviction if a “fair-minded juror exercising reasonable judgment could conclude that
the State had met its burden of proving [the defendant’s] guilt beyond a reasonable
doubt.”17
              Here, the evidence at trial established that Adams’s driving was extremely
erratic and dangerous. The trooper who contacted Adams observed many signs of
impairment: he was sluggish, his speech was slurred, he staggered when he walked, and


   16
        Moore v. State, 262 P.3d 217, 220 (Alaska App. 2011).
   17
      Hinson v. State, 199 P.3d 1166, 1170 (Alaska App. 2008) (quoting Dailey v. State, 65
P.3d 891, 898 (Alaska App. 2003)) (alteration in Hinson).

                                           – 11 –                                      2478

he performed poorly on field sobriety tests. The evidence also established that Adams
had been consuming 2 milligrams of clonazepam twice a day, and that he had .03
milligrams of clonazepam per liter in his blood seven hours after he was arrested. The
State’s expert testified that clonazepam is a central nervous system depressant that, like
alcohol, can impede a person’s balance, coordination, thought process, reaction times,
and vision. When asked if .03 milligrams of clonazepam per liter in a person’s blood
was enough to cause these impairments, the expert testified that it was.
             Viewing this evidence in the light most favorable to upholding the verdict,
we conclude that fair-minded jurors could reasonably find that Adams was driving while
under the influence of clonazepam. We therefore conclude that the evidence was
sufficient to support Adam’s DUI conviction.


      Conclusion
             We AFFIRM the judgment of the superior court.




                                          – 12 –                                    2478

