                               District of Columbia
                                Court of Appeals

No. 13-CT-1143
                                                                           FEB 25 2016
ANTHONY BELL,
                                          Appellant,

       v.                                               CTF-9340-13


DISTRICT OF COLUMBIA,
                                          Appellee.


             On Appeal from the Superior Court of the District of Columbia
                                  Criminal Division

    BEFORE: WASHINGTON, Chief Judge, THOMPSON, Associate Judge, and
NEWMAN, Senior Judge.


                                    JUDGMENT

              This case was submitted to the court on the transcript of record, the briefs
filed, and without presentation of oral argument. On consideration whereof, and for the
reasons set forth in the opinion filed this date, it is now hereby

              ORDERED and ADJUDGED that the judgment on appeal is affirmed.

                                              For the Court:




Dated: February 25, 2016.

Opinion by Associate Judge Thompson.
Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.

             DISTRICT OF COLUMBIA COURT OF APPEALS

                                 No. 13-CT-1143                    2/25/16

                          ANTHONY BELL, APPELLANT,

                                        V.

                       DISTRICT OF COLUMBIA, APPELLEE.

                         Appeal from the Superior Court
                          of the District of Columbia
                                (CTF-9340-13)

                   (Hon. A. Franklin Burgess, Jr., Trial Judge)

(Submitted September 25, 2015                       Decided November 20, 2015)

      Joseph A. Scrofano was on the brief for appellant.
       Karl Racine, Attorney General for the District of Columbia, Todd Kim,
Solicitor General, Rosalyn Calbert Groce, Deputy Solicitor General, and John J.
Woykovsky, Assistant Attorney General, were on the brief for appellee.
    Before WASHINGTON, Chief Judge, THOMPSON, Associate Judge, and
NEWMAN, Senior Judge.




      
           The decision in this case was originally issued as an unpublished
Memorandum Opinion and Judgment. It is now being published upon the court‟s
grant of appellee‟s motion to publish.
                                        2

      THOMPSON, Associate Judge:      After a bench trial, appellant Anthony Bell

was convicted of driving under the influence (“DUI”), in violation of D.C. Code

§ 50-2206.11 (2012 Repl.).     He argues on appeal that (i) the evidence was

insufficient to support a conviction because it did not establish that he was in

physical control of his vehicle, and (ii) the trial court applied a statutory

presumption that unconstitutionally relieved the District of Columbia (the

“District”) of its burden of proof as to whether he was “under the influence.” We

disagree and therefore affirm the judgment of conviction.




                                        I.




      Metropolitan Police Department Officer Calvin Branch testified that, in the

early hours of May 26, 2013, he was on patrol in the 2700 block of Martin Luther

King Jr. Avenue, S.E., watching patrons disperse from a club that was closing for

the evening. Officer Branch testified that as the parking lot emptied, he noticed a

car “sitting in the parking lot with a subject behind the wheel and the motor

running[.]” As the officer approached the vehicle, he could see a man (later
                                         3

identified as appellant) sleeping in the driver‟s seat with his chin resting on his

chest. Officer Branch knocked on the window several times in an attempt to wake

appellant, with no success. Suspecting that appellant was intoxicated, Officer

Branch radioed for assistance, and Officer Roderick Saunders responded.




      Once Officer Saunders arrived, one of the officers opened the unlocked

driver‟s door and shook appellant, who then “started to come around.” Officer

Branch testified that appellant‟s voice was “slurred,” he smelled of alcohol, and,

upon exiting the vehicle, he stumbled and “could not quite get his balance at first.”

The officers had to “grab a hold of him so that he would not fall on the ground[.]”

When the officers let go of him, he “fell back on to the car.”             Appellant

subsequently failed the standardized field sobriety tests (“SFSTs”) conducted by

Officer Saunders.




      Officer Branch acknowledged on cross-examination that he did not write on

the PD-199 report that the engine was running or that the keys were in the ignition.

Officer Saunders testified and gave substantially the same account of what

happened after he arrived on the scene. He did not “recall specifically” whether

the engine of appellant‟s vehicle was running when he arrived, but he testified that
                                          4

Officer Branch told him that the “vehicle was running” when Officer Branch first

approached it.




      Appellant was arrested for DUI and transported to the Seventh District

police station, where Officer Saunders advised him of his rights under the Implied

Consent Act, D.C. Code § 50-1905 (2012 Repl.). Appellant refused to consent to a

breathalyzer test and instead signed the PD-29 Implied Consent Form indicating

that he understood the consequences of refusal.




      Appellant testified that when he got into his vehicle, he was tired from

having worked a week of ten-hour shifts, so he put the keys in his pocket and lay

back in the seat, not intending to drive home. He testified that he fell into a “deep

sleep” and was “just still asleep” when the officers “pulled [him] out” of the

vehicle and when Officer Saunders had him take the SFSTs. He testified that

because he was “still asleep,” he “could not comprehend all of the questions the

officers read to [him]” when they asked him to sign the breathalyzer-test form, but,

upon questioning by the court, explained that he refused to take the breathalyzer

test because he had had “a couple of beers” and “figured that it would register[.]”
                                          5

      The trial court found that the evidence was “overwhelming” that appellant

was under the influence when the officers encountered him, discrediting

appellant‟s testimony that he was merely exhibiting the signs of having been

suddenly awakened from a deep sleep. Given that Officer Branch‟s written report

said nothing about the vehicle‟s engine running, the court was unable to find

beyond a reasonable doubt that the vehicle was “actually in operation” at the time

of the encounter. The court found, however, that appellant “was in control of the

car” in that he was in the driver‟s seat and “had the keys [to the vehicle] in his

pocket[,]” and therefore was guilty of DUI.




                                          II.




      Appellant argues that his conviction cannot stand because the evidence

failed to establish that he “was in actual physical control of the vehicle” as required

by D.C. Code § 50-2206.11 (2012 Repl.). Our review of this issue is de novo.1



      1
          See Russell v. United States, 65 A.3d 1172, 1176 (D.C. 2013).
                                           6

      Section 50-2206.11 provides that “[n]o person shall operate or be in physical

control of any vehicle in the District: (1) [w]hile the person is intoxicated; or (2)

[w]hile the person is under the influence of alcohol or any drug or any combination

thereof.” This court addressed the meaning of “physical control” in Berger v.

District of Columbia, 597 A.2d 407 (D.C. 1991). In Berger, police officers found

the allegedly intoxicated Berger sitting in the driver‟s seat of his parked car; he

was alone in the vehicle and no one else was in the vicinity. Id. at 408. The sole

officer who testified at trial could “not remember whether the engine was running

or whether the keys were in the ignition” and could not “recall how he obtained

possession of the keys.” Id. The officer testified, however, that when Berger was

released on citation, he was “given his keys back[.]” Id. This court concluded that

“[t]he trier-of-fact could reasonably find that [Berger] was in [physical] control of

the vehicle under the statute[,]” because the evidence established “that he alone

was in the car, that he was sitting behind the steering wheel, and that the car keys

were given to him when he was released only hours later [supporting an inference

that, when Berger was placed under arrest, the keys were on him or were otherwise

readily accessible to police and thus to him].” Id. at 409. 2


      2
         The Berger panel went on to say that “[e]ven a drunk with the ignition
keys in his pocket would be deemed sufficiently in control of the vehicle to
warrant conviction.” Id.
                                          7

      Berger controls the outcome here, because the facts of this case cannot be

distinguished in any material way. Like Berger, appellant was alone in his car and

behind the steering wheel, and the trial court found that the ignition keys were in

his pocket. In that position and with the keys at hand, appellant was capable of

starting the vehicle should he have awakened and, in his impaired state, made a

decision to drive.    We therefore sustain the trial court‟s determination that

appellant was in physical control of the vehicle for the purpose of § 50-2206.11.3


      3
           Contrary to the suggestion in appellant‟s brief, nothing in this holding
suggests that we would sustain a finding that a defendant who was “under the
influence” was in physical control of her vehicle if the evidence was merely that
she “possess[ed] keys to a vehicle in her vicinity” or was “waiting outside near
[the] vehicle with keys in [her] pocket waiting for a taxi [she had] called to take
[her] home[.]” But, as some courts have found, “an intoxicated person seated
behind the steering wheel of a motor vehicle is a threat to the safety and welfare of
the public.” Hughes v. State, 535 P.2d 1023, 1024 (Okla. Crim. App. 1975)
(emphasis added) (acknowledging that “[t]he danger is less than where an
intoxicated person is actually driving a vehicle,” but reasoning that there still “is a
legitimate inference to be drawn that he placed himself behind the wheel of the
vehicle and could have at any time started the automobile and driven away”); see
also City of Naperville v. Watson, 677 N.E.2d 955, 958-59 (Ill. 1997) (“A person
may embark upon an evening of drinking with the intention of sleeping in his or
her car, but the actual decision whether to do so will be made at a time when the
person‟s judgment is impaired by alcohol.”); Thorne v. Contee, 565 A.2d 102, 107
(Md. Ct. Spec. App. 1989) (“An intoxicated driver has his judgment impaired by
the effects of alcohol when making the decision to drive.”); Buck v. North Dakota
State Highway Comm’r, 425 N.W.2d 370, 372-73 (N.D. 1988) (agreeing with other
courts that “[t]he purpose of the „actual physical control‟ offense is a preventive
measure” and that “[a]n intoxicated person in a motor vehicle poses a threat to
public safety because he might set out on an inebriated journey at any moment.”)
(citations and internal quotation marks omitted). We note that the evidence that
Officer Branch found appellant asleep with his chin resting on his chest suggests
                                                                         (continued…)
                                         8




                                        III.




      Appellant‟s remaining claim relates to D.C. Code § 50-1905 (b) (2012

Repl.), which provides that:

             If a person under arrest refuses to submit specimens for
             chemical testing as provided in § 50-1904.02 (a), and the
             person has had a conviction for a prior offense under §
             50-2206.11, § 50-2206.12, or § 50-2206.14, there shall
             be a rebuttable presumption that the person is under the
             influence of alcohol or a drug or any combination
             thereof.



      Appellant does not dispute that he had a prior DUI conviction that subjected

him to this statutory presumption, but argues that the statute shifts the burden to a

defendant to prove that he was not under the influence and for that reason is

facially unconstitutional. Appellant also contends that the trial court “explicitly

relied on the presumption and engaged in unconstitutional burden shifting[.]”

Because appellant raises these arguments for the first time on appeal, our review is
(…continued)
that appellant fell asleep in the upright position of one intending to drive, rather
than in a reclined position such as the officers might have observed had he lowered
his seat back in order to sleep for a while.
                                           9

for plain error. See Kinane v. United States, 12 A.3d 23, 26 (D.C. 2011). “To

prevail, appellant[] must demonstrate that an error occurred, that the error was

plain, and that the error was material or affected [his] substantial rights.” Id.




      Appellant is correct that “[m]andatory presumptions . . . violate the Due

Process Clause if they relieve the State of the burden of persuasion on an element

of an offense.” Francis v. Franklin, 471 U.S. 307, 314 (1985). However, “[a]

permissive inference does not relieve the State of its burden of persuasion because

it still requires the State to convince the jury that the suggested conclusion should

be inferred based on the predicate facts proved.” Id.; see also id. at 317 (“A

permissive inference suggests to the jury a possible conclusion to be drawn if the

State proves predicate facts, but does not require the jury to draw that

conclusion.”). Thus, whether a statutory presumption is constitutional turns on

whether the presumption amounts to a mandatory presumption or a permissive

inference. Appellant has not shown that it is clear (and thus should have been

obvious to the trial judge) that § 50-1905 (b) imposes a mandatory presumption.




      In Raymond v. United States, 396 A.2d 975 (D.C. 1979), a failure-to-appear

case, this court considered an argument similar to the one appellant makes here.
                                          10

The issue was statutory language stating that “[a]ny failure to appear after notice of

the appearance date shall be prima facie evidence that such failure to appear is

willful.” Citing the Criminal Jury Instructions for the District of Columbia, we

said that “although the wording of [the statute] may be read to imply that the

inference of willfulness is mandatory, it appears that in practice, the trier of fact

has merely been permitted and not required to infer willfulness” Id. at 976-77. We

concluded that the standard jury instruction, which “incorporate[d] a permissive

inference, properly construes the statute.” Id. at 977.




      Here, on plain-error review, while we need not decide the issue definitively,

it similarly appears that the presumption established by § 50-1905 (b) is not a

mandatory presumption and does not unconstitutionally shift the burden of proof to

the defendant.    Like the standard jury instruction discussed in Raymond, the

standard jury instruction corresponding to § 50-1911 (b) states that if a defendant

who has a qualifying prior conviction refuses to submit to chemical testing, jurors

“may, but are not required to, conclude that s/he was under the influence . . . at the

time that s/he operated the vehicle.” D.C. Criminal Jury Instruction 6.401 (5th ed.

rev. 2015) (emphasis added). Thus, in practice, the statute is interpreted as “a

permissive presumption . . . to avoid the constitutional infirmity of directing a
                                         11

verdict on an essential element.”     Id. (comment).     It therefore is not plainly

unconstitutional.4




      Appellant‟s trial was a bench trial, and the trial judge did not explicitly

instruct himself that the presumption authorized by § 50-1905 (b) is a permissive

presumption. However, “[t]rial judges are presumed to know the law[.]” Saidi v.

United States, 110 A.3d 606, 613 (D.C. 2015). Moreover, although counsel for the

District advised the judge at the outset that appellant was “subject[] . . . to the

rebuttable presumption” and also referred to the presumption in closing argument,

the trial judge made no reference to the presumption in explaining why he found

appellant guilty.5 After announcing his finding of guilt, the judge mentioned “[b]y

the way” that the fact that appellant refused to give a breathalyzer sample “for the

reason that the prosecutor argued” (a reference to appellant‟s testimony that he

      4
          Our conclusion is consistent with the principle that “in order to avoid
serious constitutional questions, we should construe the statute, according to its
terms, as creating a permissive presumption or inference rather than a mandatory
presumption.” In re Warner, 905 A.2d 233, 246 (D.C. 2006).
      5
           The court mentioned only the “following factors” in concluding that the
evidence was “overwhelming” that appellant was under the influence: “the
difficulty in awakening him; he could only awaken him by shaking; strong odor of
alcohol; the slurred speech; the unsteadiness in getting out of the car[] and walking
to the level ground where he was given the test; [and his] performance on the field
sobriety tests…was almost a perfect failure.”
                                         12

feared that two beers he claimed he had consumed over three hours earlier would

affect his breath score) “b[ore] on his credibility” and was “evidence of his guilt.”6

Thus, although the court considered appellant‟s refusal to give a breath sample,

that fact was not a factor in the court‟s ruling, and the court in no way indicated

that it thought that fact mandated a finding of guilt unless appellant proved he was

not under the influence.




                                         IV.




             For the foregoing reasons, the judgment of the trial court is

                                               Affirmed.



      6
          We read the court‟s statement as meaning that appellant‟s explanation for
his refusal supported an inference of consciousness of guilt. Cf. Karamychev v.
District of Columbia, 772 A.2d 806, 813 (D.C. 2001) (“Karamychev‟s refusal to
take chemical tests at the police station was evidence from which the judge could
properly infer consciousness of guilt.”); D.C. Criminal Jury Instruction 6.401 (“If
you find that s/he did refuse to submit to a request for chemical testing, you may
consider his/her refusal as tending to show his/her feelings of guilt, which you
may, in turn, consider as tending to show actual guilt.”).
