               IN THE SUPREME COURT, STATE OF WYOMING

                                       2015 WY 147

                                                          OCTOBER TERM, A.D. 2015

                                                                  November 23, 2015

PHILIP GLENN GUILFORD,

Appellant
(Defendant),

v.                                                   S-15-0058

THE STATE OF WYOMING,

Appellee
(Plaintiff).

                     Appeal from the District Court of Albany County
                        The Honorable Jeffrey A. Donnell, Judge

Representing Appellant:
      Thomas A. Fleener, Fleener Law, LLC, Laramie, Wyoming; Tim Newcomb,
      Appellate Consultation, Laramie, Wyoming; Cody Jerabek, Third Year Law
      Student. Argument by Mr. Jerabek.

Representing Appellee:
      Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy
      Attorney General; Jenny L. Craig, Senior Assistant Attorney General; Joshua C.
      Eames, Assistant Attorney General; Charlotte M. Powers, Assistant Attorney
      General. Argument by Ms. Powers.

Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.


NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
DAVIS, Justice.

[¶1] Philip Guilford appeals from a felony conviction for driving a vehicle while under
the influence of intoxicating liquor or controlled substances (DWUI). 1 We affirm.

                                               ISSUES

[¶2]    Guilford advances two issues that we reorder and restate as follows:

      I.      Is Wyo. Stat. Ann. § 31-5-233(b)(iii)(C)                           (LexisNexis       2015)
unconstitutionally vague as applied to Guilford’s conduct?

       II.    Were Guilford’s attorneys constitutionally ineffective in failing to present
evidence relating to the concentration of alcohol and tetrahydrocannabinol (THC) in his
blood?

                                                FACTS

[¶3] After drinking beer at a friend’s home in Laramie on July 24, 2013, Guilford left
for his mountain cabin alone sometime between 11:00 p.m. and midnight.
Approximately thirty miles west of town, and around 1:00 a.m. on July 25, he rolled his
Toyota Tacoma pickup onto its passenger side off the north edge of the graveled Dutton
Creek Road. He had just crossed under Interstate 80, and he climbed over an elk fence to
reach the highway, where he was eventually found by Trooper Devries of the Wyoming
Highway Patrol.

[¶4] Corporal Yates of the Albany County Sheriff’s office met the trooper on the
interstate at approximately 3:20 a.m. He questioned Guilford briefly, and noted red eyes
and slurred speech, as well as the distinct odor of an alcoholic beverage. Yates then
accompanied the ambulance sent to transport Guilford to the hospital in Laramie and
instructed Deputy Williams to locate and begin an investigation of the crash site.

[¶5] Deputy Williams left I-80 at the Cooper’s Cove exit and drove east on Dutton
Creek Road until she came upon Guilford’s truck in the proximity of milepost 10. The
scene presented somewhat of a puzzle because nothing in the roadway or the surrounding
prairie indicated that the truck had been involved in a full rollover. It appeared to have
rolled only a quarter of a turn onto its side, but the hood had been severely damaged, the
windshield and rear window were shattered and missing, and what appeared to be
fragments of a missing camper shell were still attached to the bed of the truck.


1
 This crime is a felony if it is a defendant’s fourth or subsequent such offense resulting in a conviction
within ten years. Wyo. Stat. Ann. § 31-5-233(e).


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[¶6] After a tow truck arrived to remove the Toyota, Deputy Williams drove east on
Dutton Creek Road until she spied a camper shell in a field at approximately milepost 9.
Also scattered around that area were a ladder, a cooler, a green bag, Guilford’s cell
phone, and painting supplies. In the green bag, the deputy found Guilford’s driver’s
license, his Wells Fargo card, and a small plastic bag containing what appeared to be
marijuana.

[¶7] The deputy concluded from the materials scattered around the scene that
Guilford’s truck had rolled over fully in that area, ending up back on its wheels. In
addition, she observed tire tracks between the two rollover sites that indicated the truck
had swerved off the road four additional times between the first and second rollovers.

[¶8] Eventually Deputy Williams joined Corporal Yates at the hospital. After
undergoing a preliminary evaluation and treatment of his injuries, Guilford consented to
having his blood drawn for testing, and a sample was drawn at 6:53 a.m. on July 25,
2013. Analysis revealed that at that time his blood alcohol concentration (BAC) was
.09%, and that delta 9 THC2 was present at a concentration of 3.43 nanograms per
milliliter of blood.

[¶9] On October 15, 2013, Guilford was charged with a single count of felony DWUI
under two alternative statutory provisions. The first prohibits driving a vehicle while
under the influence of a combination of alcohol and a controlled substance to such a
degree that the driver is incapable of doing so safely. Wyo. Stat. Ann. § 31-5-
233(b)(iii)(C). The second prohibits driving with a BAC of .08% or more. Wyo. Stat.
Ann. § 31-5-233(b)(i).

[¶10] The case was bound over to the district court on April 28, 2014, and two months
later the court scheduled a jury trial for October 6. On July 7, the cutoff date the court
established for filing motions, Guilford filed a motion for the disclosure of exculpatory
evidence. That motion included a demand that the prosecution forward a sealed container
of a portion of the blood earlier drawn from Guilford to the defense for independent
testing. 3 Two days later the court scheduled a hearing on all pending motions for August
26, 2014.

[¶11] On August 25, the day before the motion hearing, Guilford filed a motion for an
order allowing him to obtain the blood sample and retest it. The court denied the motion
at the next day’s hearing because Guilford failed to show good cause why the motion was

2
  Testimony defined delta 9 THC as the component of marijuana which, while present in the blood, is
actively affecting the user. By contrast, its various metabolites are inactive, and their presence in the
blood indicates the body has begun breaking down the active “parent” component.
3
  It is unclear whether Guilford intended the two-and-a-half-line demand to fall within the rubric of the
remainder of his five-page motion for exculpatory evidence, or to somehow stand alone as a request for
something more than exculpatory evidence.


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filed nearly seven weeks after the motion cutoff date, and why thereafter it had not been
filed within a reasonable time after learning that the Sheriff refused to turn over the blood
sample without a court order.4 The court therefore held that he had waived the right to
have the motion considered.

[¶12] At the trial held on October 6, 2014, the prosecutor introduced expert testimony
establishing that if alcohol consumption ceases six hours prior to BAC testing, a person’s
BAC will decrease significantly during that period. The same is true with respect to the
concentration of THC in a person’s blood after smoking marijuana. Moreover, a
combination of alcohol and marijuana consumption would impair one’s ability to drive to
a significantly greater degree than the use of either substance alone. Guilford put on no
witnesses.

[¶13] The jury found him guilty of DWUI under both theories advanced by the
prosecution, and on December 22, 2014, the district court sentenced Guilford to six to
seven years confinement.5 He timely perfected this appeal from that judgment.

                                           DISCUSSION
Vagueness

[¶14] Guilford contends that one of the two provisions of Wyo. Stat. Ann. § 31-5-233
under which he was alternatively charged and convicted is unconstitutionally vague as
applied to his conduct, and that his conviction must therefore be vacated. That
constitutional challenge summons our de novo standard of review, and places a heavy
burden on Guilford to overcome a presumption of constitutionality, which requires this
Court to resolve any reasonable doubts in favor of the statute’s validity. Teniente v.
State, 2007 WY 165, ¶ 83, 169 P.3d 512, 536 (Wyo. 2007); Sanderson v. State, 2007 WY
127, ¶ 31, 165 P.3d 83, 92 (Wyo. 2007).

[¶15] In evaluating an as-applied vagueness challenge, we examine the language of the
particular statutory provision under which Guilford was charged and convicted, as well as
the specifics of his conduct proven at trial. That provision is not unconstitutionally vague
if its wording can reasonably be said to provide sufficient notice to a person of ordinary
intelligence that his conduct was illegal. Teniente, ¶ 91, 169 P.3d at 537; Sanderson, ¶
30, 165 P.3d at 92.6

4
  Defense counsel appears to have conceded that the prosecutor advised him of the Sheriff’s position
within three weeks of the motion cutoff date.
5
  Guilford received only one sentence because the charges were alternatives.
6
  We have previously observed that the vagueness doctrine embodies a rough idea of fairness, and that it
is not intended to create a constitutional dilemma from the practical difficulties in crafting criminal
statutes that are both sufficiently general to take into account the desired scope of behavior and
sufficiently specific to provide fair warning that certain kinds of conduct are prohibited. Thus, to some
extent, application of the doctrine looks to whether a citizen who desires to obey the statute will have


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[¶16] The provision Guilford questions is the first of the two alternate grounds for his
DWUI prosecution and conviction, and it reads as follows.

                (b) No person shall drive or have actual physical control of
                any vehicle within this state if the person:
                                                 . . .

                       (iii) To a degree which renders him incapable of
                safely driving:
                                           . . .

                               (C) Is under the influence of a combination of
                        any of the elements named in subparagraphs (A) and
                        (B) of this paragraph.

Wyo. Stat. Ann. § 31-5-233(b)(iii)(C). Subparagraphs (A) and (B) also deal with driving
under the influence, and relate respectively to alcohol and controlled substances.

[¶17] In this as-applied challenge, we evaluate the constitutionality of that provision
solely in light of the State’s evidence of Guilford’s conduct, giving it the benefit of every
favorable factual inference that may be fairly drawn from the record. Dougherty v. State,
2010 WY 127, ¶ 16, 239 P.3d 1176, 1181 (Wyo. 2010); Sanderson, ¶ 31, 165 P.3d at 92.

[¶18] The evidence showed that Guilford drove his pickup after consuming beer and
marijuana on July 24, 2013, and that more than seven hours after having last partaken of
those substances, his BAC was .09%, and he had a THC level of 3.43 nanograms per
milliliter of his blood. It is reasonable to infer from those facts that these substances still
affected him while he was driving. Testimony also permits the reasonable inference that
the blood level of both substances was considerably higher at the time he rolled his truck
six hours before the blood was drawn for testing, and that in combination they would
impair his driving abilities to a greater extent than the use of either substance alone.7 No
person of ordinary intelligence could reasonably imagine that the statute’s proscription of
driving while under the influence of a combination of alcohol and a controlled substance
did not reach these facts.


difficulty understanding it. Giles v. State, 2004 WY 101, ¶ 21, 96 P.3d 1027, 1034 (Wyo. 2004) (citing
Colton v. Commonwealth of Kentucky, 407 U.S. 104, 110, 92 S.Ct. 1953, 1957, 32 L.Ed.2d 584 (1972)).
7
  Guilford makes much of the fact that the concentration of THC in his blood was less than the five
nanograms/milliliter that Colorado views as sufficient to raise a permissible inference that a driver is too
intoxicated to operate a vehicle. See Colo. Rev. Stat. § 42-4-1301(6)(a)(IV). However, that standard
applies to driving while under the influence of only marijuana, and seven hours after leaving Laramie
Guilford’s blood level was still 68.6% of the Colorado standard.


                                                      4
[¶19] Furthermore, the record reveals no cause other than that combination of substances
that might explain Guilford’s astounding lack of perception and dexterity approximately
one hour and thirty miles into his drive to his cabin. He left the road and completely
rolled his truck, which ripped off his camper shell, scattered the bed’s contents over the
prairie, damaged the truck’s body and windows, and the vehicle then miraculously landed
on its tires. Within the next mile he drove off the road four more times and eventually
rolled the vehicle again, this time onto its passenger side. We believe that at some point
during the events of that evening, a person of ordinary intelligence would have
understood that his actions were prohibited by the relevant statutory language—i.e., that
the influence of two intoxicating substances made him incapable of driving safely and
that he should not do so.

[¶20] Guilford has not carried his burden of showing that Wyo. Stat. Ann. § 31-5-
233(b)(iii)(C) is unconstitutionally vague as applied to his conduct on July 24 and 25,
2013.

Ineffective Assistance

[¶21] Guilford asserts that his trial attorneys were ineffective because they: (1) failed to
file a timely motion to have his blood retested; (2) failed to investigate his BAC; (3)
failed to investigate the THC level in his blood; and (4) failed to call an expert regarding
his THC level. Points 2 and 3 rely in whole or in part on point 1. We can therefore
reduce those three claims of ineffective assistance to the single question of counsel’s
failure to get Guilford’s blood retested. The remainder of point 3 and all of point 4 rely
entirely on the mistaken notion that, under Wyo. Stat. Ann. § 31-5-233(b)(iii)(C), the
State must prove that Guilford’s marijuana use alone rendered him incapable of safely
driving. As noted repeatedly above, that statute deals with the combined effect of using
both alcohol and marijuana. We therefore reject that aspect of his ineffectiveness claim
out of hand.8

[¶22] Whether Guilford’s attorneys were ineffective in failing to timely seek a blood
sample which could be retested, like all ineffectiveness claims, involves mixed questions
of law and fact and invokes de novo review. To prevail on that claim, Guilford must
show both that counsel’s performance was deficient because it fell below the standard

8
  Guilford’s arguments relating to points 3 and 4 rely heavily on the Colorado statute discussed in n.7
above, and he claims that the statute deems it safe to operate a vehicle at THC concentrations below five
nanograms per milliliter of blood. It does not – it says only that five nanograms/milliliters are sufficient
to raise a permissible inference that a driver is too intoxicated to operate a motor vehicle safely.
Moreover, one respected authority has confessed that, with most drugs, it is not currently possible to
establish from available studies any threshold concentration at which they impair the ability to operate a
motor vehicle. Research does show, however, that combining alcohol and marijuana may create a greater
risk for vehicular accidents than using either by itself. 5 Modern Scientific Evidence § 42:56 (2014-2015
ed.).


                                                     5
required of a reasonably competent attorney, and that those inadequacies prejudiced the
defense. Hibsman v. State, 2015 WY 122, ¶¶ 14-15, 355 P.3d 1240, 1244 (Wyo. 2015);
McGarvey v. State, 2014 WY 66, ¶ 12, 325 P.3d 450, 454 (Wyo. 2014).

[¶23] Proof of prejudice requires that Guilford demonstrate a reasonable probability that,
absent counsel’s alleged shortcomings, the outcome of his trial would have been
different. Hibsman, ¶ 18, 355 P.3d at 1245; McGarvey, ¶ 14, 325 P.3d at 455. This
Court need not and should not evaluate an attorney’s performance if we can dispose of an
ineffective assistance claim on the lack of sufficient prejudice. Hibsman, ¶ 15, 355 P.3d
at 1244; McGarvey, ¶ 15, 325 P.3d at 455. That is the course we follow in this case.

[¶24] Guilford has never claimed that weather conditions, the condition or features of
Dutton Creek Road, medical problems, or the mechanical condition of his Tacoma
contributed in the slightest degree to his vehicular mishaps. He told Corporal Yates that
he quit drinking before leaving Laramie, and by all accounts his marijuana remained
among the detritus at the scene of his first rollover, meaning that he could not have
consumed it after that. Consequently, the only evident cause of his repeated off road
excursions was the alcohol he consumed in Laramie and any marijuana he consumed in
an unknown time period prior to 1:00 a.m. on July 25, 2013.

[¶25] Six to seven hours after Guilford last partook of those substances, the
concentration of alcohol in his blood was greater than the legal limit in Wyoming, and the
concentration of THC was 68.6% of the level which, in Colorado, would indicate that he
was too intoxicated to drive by virtue of marijuana alone. He points to no authority
contradicting testimony that the concentration of both substances would have been higher
at the time of his rollovers, or that their combined effect would have been greater than
that of just one. Nor does he point to anything uncovered during discovery that would
suggest the testing protocols or results were faulty or inaccurate.

[¶26] Even if there was a strong likelihood that retesting of Guilford’s blood would have
yielded a significantly smaller concentration of both substances (nothing so indicates
because the blood has never been retested), we are still left with a detectable amount of
THC in his system, his admission that he drank “a few beers” before leaving Laramie,
and the fact that slightly more than an hour later he drove off the road more than four
times and rolled his pickup twice in the span of one mile. On that evidence, a jury could
still have found him guilty of driving under the influence of the combination of those
substances when he could not safely do so.

[¶27] Under these circumstances we are unable to conclude that the results of retesting
the blood samples would have made acquittal under both of the alternatives charged by
the State reasonably probable even if counsel had timely sought and obtained leave to
retest. In short, Guilford has not shown the required prejudice to prove that his trial
counsel was ineffective.


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                                     CONCLUSION

[¶28] Wyo. Stat. Ann. § 31-5-233(b)(iii)(C) is not unconstitutionally vague as applied to
Guilford’s conduct, and he has not carried his burden of showing his trial attorneys were
constitutionally ineffective in failing to present evidence relating to the concentration of
alcohol and THC in his blood. Consequently, we affirm his felony DWUI conviction.




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