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               IN THE COURT OF APPEALS OF THE STATE OF ALASKA


CORRINA I. McCORD,
                                                      Court of Appeals No. A-10982
                            Appellant,               Trial Court No. 3PA-10-1743 CR

                     v.
                                                              O P I N I O N
STATE OF ALASKA,

                            Appellee.                  No. 2537 — February 3, 2017


              Appeal from the District Court, Third Judicial District, Palmer,
              William L. Estelle, Judge.

              Appearances: Callie Patton Kim, Assistant Public Defender,
              and Quinlan Steiner, Public Defender, Anchorage, for the
              Appellant. Mary A. Gilson, 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 MANNHEIMER.


              Corrina I. McCord appeals her conviction for driving under the influence.
McCord’s blood alcohol level was not over the statutory limit, but testing of McCord’s


   *
       Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska
Constitution and Administrative Rule 24(d).
blood showed that she had four different medications in her blood when she was driving.
These medications were tramadol(a pain medication sold under the name Ultram, among
others) and three members of the benzodiazepine family: quetiapine (also known as
Seroquel), clonazepam, and 7-aminoclonazepam (a clonazepam metabolite, which is
itself a separate benzodiazepine).
              McCord was charged with violating the first subsection of Alaska’s DUI
statute, AS 28.35.030(a)(1). This provision forbids a person from operating a motor
vehicle if they are “under the influence of an alcoholic beverage, intoxicating liquor,
inhalant, or any controlled substance, singly or in combination”. (Emphasis added.)
Even though McCord’s blood showed the presence of four medications, only one of
these medications — clonazepam — is a “controlled substance” under state or federal
law. 1 Thus, the State needed to prove that McCord was under the influence of
clonazepam.
              In this appeal, McCord argues that the district court violated her Sixth
Amendment right of confrontation by allowing the State to prove the presence of
clonazepam through hearsay testimony. For the reasons explained here, we agree that
McCord’s right of confrontation was violated, and we therefore reverse McCord’s
conviction.


       Underlying facts, and the district court’s ruling


              At McCord’s trial, the State established the presence and the concentrations
of the four substances in McCord’s blood through the testimony of Lisa Noble, a forensic
toxicologist employed as an analyst at the Washington State Toxicology Lab.



   1
       See AS 11.71.170(b)(5).

                                          –2–                                        2537

                Noble conducted the initial drug screening of McCord’s blood sample, and
she performed the specific test that confirmed the presence (and the concentration) of the
tramadol. But another analyst, Sarah Swenson, performed the test that confirmed the
presence and concentrations of the three benzodiazepines in McCord’s blood —
including the clonazepam. (Swenson performed this testing because Noble was not
certified to conduct the benzodiazepine test.)
                Because Noble was the primary analyst assigned to McCord’s case, she
reviewed Swenson’s test results, and she compiled the final lab report. This final report
included the results of Swenson’s testing for benzodiazepines. In particular, Noble’s
final report recited Swenson’s findings regarding the presence and concentration of
clonazepam in McCord’s blood.
                At McCord’s trial, when the prosecutor indicated that Noble would testify
about Swenson’s findings, McCord’s attorney objected that Noble should not be allowed
to testify about the clonazepam in McCord’s blood, or about any of the other results of
the benzodiazepine testing conducted by Swenson. The defense attorney argued that,
because Swenson had done the testing, he was entitled to cross-examine Swenson about
her findings.
                McCord’s attorney specifically relied on the United States Supreme Court’s
decision in Melendez-Diaz v. Massachusetts, a case where a defendant was charged with
trafficking cocaine. 2 In Melendez-Diaz, the Supreme Court ruled that, under the
confrontation clause of the Sixth Amendment, the government was required to present
live testimony from the laboratory technician who tested the substance at issue and
concluded that it was cocaine.




   2
       557 U.S. 305, 310-11; 129 S.Ct. 2527, 2532; 174 L.Ed.2d 314 (2009).

                                            –3–                                      2537

              But the trial judge concluded that Melendez-Diaz was distinguishable from
McCord’s case. The judge noted that, in Melendez-Diaz, the government was trying to
prove the presence of a particular substance (cocaine). According to the trial judge,
McCord’s case was different because the State’s task was not to prove the presence of
any specific substances, but rather to prove that McCord was under the influence of
controlled substances. Thus, the judge reasoned, the presence and concentrations of the
various substances in McCord’s blood was simply the underlying data that would
provide the basis for Noble’s opinion as to whether McCord was impaired when she
drove the motor vehicle.
              Relying on this analysis, the district court overruled McCord’s
confrontation clause objection and decided that Noble could properly testify about all of
the test results described in her lab report — including the results of the testing
performed by Swenson, which showed the presence and the concentration of clonazepam
in McCord’s blood.


       Why the district court’s ruling violated McCord’s right of confrontation


              To prove that McCord was guilty of driving under the influence as defined
in AS 28.35.030(a)(1), the State had to show not only that McCord was impaired, but
more specifically that her impairment was a direct result of her ingestion of “an alcoholic
beverage, intoxicating liquor, inhalant, or any controlled substance, singly or in
combination”. See Adams v. State, 359 P.3d 990, 994 (Alaska App. 2015).
              Of the various medications detected in McCord’s blood, the only controlled
substance was the clonazepam. Thus, the State was required to prove that McCord’s
impairment was a direct result of her ingestion of clonazepam.



                                           –4–                                        2537

              Swenson performed the testing that detected clonazepam in McCord’s
blood. Noble was aware of the clonazepam only because Swenson’s lab report described
her test results. For this reason, Melendez-Diaz controls, and McCord’s attorney was
entitled to cross-examine Swenson regarding the presence and concentration of
clonazepam in McCord’s blood.
              Accordingly, the district court erred when it allowed the State to introduce
this evidence through Noble’s testimony, and we must reverse McCord’s conviction
because of this error.


       McCord’s motion for a judgement of acquittal


              During the trial, McCord asked the court to grant her a judgement of
acquittal. McCord argued that even if the State validly introduced evidence of the
presence and level of clonazepam in her blood, the State’s proof of the crime charged
(driving under the influence) was still legally deficient. The trial judge denied this
motion, and on appeal McCord renews her attack on the sufficiency of the State’s
evidence.
              There are two aspects to McCord’s argument.
              McCord first argues that the State failed to present any evidence that the
concentration of clonazepam found in her blood was capable of impairing her capacity
to drive safely.
              As we have explained, under Alaska’s DUI statute, the State must prove
that the driver was impaired and that this impairment was a direct result of ingesting
alcoholic beverages, inhalants, or controlled substances. Of the four drugs found in
McCord’s body, only one of them — the clonazepam — was a controlled substance.



                                          –5–                                        2537

              McCord asserts that the evidence presented at her trial was legally
insufficient to prove that the amount of clonazepam in her blood was capable of
impairing her. This assertion is mistaken; the State did present evidence that the level
of clonazepam found in McCord’s blood was capable of impairing a person’s ability to
drive.
              Specifically, Noble testified that clonazepam affects the central nervous
system in ways quite similar to alcohol: a person on clonazepam may exhibit slurred
speech, difficulty with balance and walking, double vision, loss of finger control, and
impaired judgement. Noble also testified that the concentration of clonazepam found in
McCord’s blood was within the therapeutic range for that drug, and that therapeutic
levels of clonazepam are sufficient to cause impairment. Although Noble declined to
offer an opinion as to whether McCord was in fact impaired at the time of her driving,
Noble testified that the symptoms of impairment which the police observed in McCord
when they stopped her vehicle were consistent with the side effects of benzodiazepines.
              Because of Noble’s testimony on these subjects, the State’s case was legally
sufficient to support a verdict that McCord was impaired as a result of her ingestion of
clonazepam. This remains true even though Noble should not have been allowed to
testify about the presence of clonazepam in McCord’s blood.
              Both the United States Supreme Court and this Court have held that, even
in cases where a portion of the government’s evidence should have been excluded from
a defendant’s trial, an appellate court must still consider the entirety of the government’s
evidence — including the portion that should have been excluded — when the appellate
court assesses the legal sufficiency of the evidence to support the verdict.
              See Lockhart v. Nelson, 488 U.S. 33, 39-41; 109 S.Ct. 285, 290-91; 102
L.Ed.2d 265 (1988); Langevin v. State, 258 P.3d 866, 873-74 (Alaska App. 2011);
Houston-Hult v. State, 843 P.2d 1262, 1265 n. 2 (Alaska App. 1992). In general, see

                                           –6–                                         2537

LaFave, Israel, King, and Kerr, Criminal Procedure (4th ed. 2015), § 25.4(c), Vol. 6,
pp. 841-45.
              In other words, even if particular evidence should have been excluded from
the defendant’s trial, and even if the government’s remaining evidence was insufficient
to support the defendant’s conviction, the double jeopardy clause does not bar the
government from retrying the defendant if the entire evidence (including the evidence
that should have been kept out of the trial) was sufficient to support the defendant’s
conviction. Lockhart, 488 U.S. at 39-40, 109 S.Ct. at 290.
              The reason for the Lockhart rule is that, had the State known that a portion
of its intended evidence was inadmissible, the State might have restructured its
presentation to compensate for the unavailability of this evidence. 3 In McCord’s case,
for instance, the record shows that the prosecutor had made tentative arrangements to
bring both Noble and Swenson to Alaska to testify, and that the prosecutor refrained
from bringing Swenson to Alaska only after the district court ruled that Noble would be
allowed to testify concerning all aspects of the Washington State Toxicology Lab’s
testing (including Swenson’s test results).
              We therefore conclude that the State’s evidence was sufficient to allow the
jury to conclude that the amount of clonazepam in McCord’s blood was capable of
impairing her.
              The second aspect of McCord’s argument for a judgement of acquittal is
her claim that, even if the State’s evidence was sufficient to show that the amount of
clonazepam found in McCord’s blood could have impaired her ability to drive, the State
nevertheless failed to prove that McCord’s impairment was due solely to the clonazepam,




   3
       See Lockhart, 488 U.S. at 42, 109 S.Ct at 291-92.

                                              –7–                                    2537

as opposed to the other drugs found in McCord’s blood (drugs that were not controlled
substances) and her unrelated physical condition at the time (e.g., her emotional state).
              When the trialjudge addressed this argument at McCord’s trial, he correctly
perceived that the argument was not really an attack on the sufficiency of the State’s
evidence, but was rather an argument about the law of causation.
              As we have explained, the State presented sufficient evidence to justify the
conclusion that McCord was impaired as a result of her ingestion of clonazepam. But
McCord argues that even if the clonazepam in her body could have impaired her ability
to drive, the State nevertheless was required to prove that her impairment was due solely
to the clonazepam.
              This contention is incorrect. As this Court explained in Adams v. State, 359
P.3d 990, 994 (Alaska App. 2015), when a defendant is prosecuted for driving under the
influence, Alaska law does not require the State to prove that the alcohol or controlled
substances in the defendant’s body were the sole cause of the defendant’s impairment —
only that the alcohol or controlled substances were a “substantial factor” in causing the
defendant’s impairment. Ibid.
              Thus, McCord is wrong when she argues that the State was required to
show that the other substances in her blood played no role in causing her impairment.
The jury could properly find that McCord was under the influence of clonazepam even
if the jurors believed that the other substances in her blood, or her unrelated physical
condition, also contributed in some manner to her impairment, so long as the jurors were
convinced that McCord’s ingestion of clonazepam was a substantial factor in causing her
impairment.
              Accordingly, the trial judge correctly denied McCord’s motion for a
judgement of acquittal.



                                          –8–                                        2537

Conclusion


     McCord’s conviction is REVERSED, but McCord can be retried.




                              –9–                                  2537

