MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 201 9 ME 6 Docket: Ken

- 18

- 6 Argued: October	23,	2018 Decided: January	15,	2019 Panel: SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.

STATE	OF	MAINE

v. TODD	J. PERKINS

HUMPHREY,	J. [¶1]		 In	 this	appeal,	we	consider	whether	jury	instructions	given	in	an OUI	case	were	confusing	where	the	State presented two	alternative	theories	of guilt

— principal	liability	and	accomplice	liability. We	affirm	the	judgment,	and, b ecause	 these	alternative	 theories	are	not	commonly	pursued	 together	in	an OUI	prosecution,	we	also	take	this	opportunity	to	clarify	and	distinguish	them. [¶ 2 ]		Todd	J.	Perkins	appeals	from	a	judgment	of	conviction	for	operating under	the	influence	with	a	r efusal	to	submit	to	a	chemical	test	(Class	D), 29

- A M.R.S.	 §	 2411(1

- A)(C)(1)	 (2017) ,	 entered	 by	 the	 court	 (Kennebec	 County, Benson,	 J. )	 after	 a	 jury	 trial.	 	 Perkins	 contends	 that	 the	 court	 abused	 its discretion	 when	 it	 denied	 his	 motion	 for	 a	 new	 trial	 bec ause	 the	 court’s instructions	on	a	driver’s	duty	to	submit	to	a	chemical	test	and	on	accomplice2 liability	confused	the	jury	and	did	not	provide	a	roadmap for	the	jury	to	be	able

to	return a	not	guilty	verdict. 1
I.		BACKGROUND [¶ 3 ] “ Viewing	the	evidence in	the	light	most	favorable	to	the	State,	the jury	 rationally	 could	 have	 found	 the	 following	 facts	 beyond	 a	 reasonable doubt. ” State v. Hurd, 2010	ME	118,	¶	4,	8	A.3d	651. Late	in	the	afternoon	of August 26,	 2016,	 Richard	 Tuttle	 picked	 up	 Perkins	 at	 his home	 in	 Windsor, Maine,	and	drove	the	pair	in	Perkins’s	truck	to	several	bars	in	Hallowell. 2 The men	 visited	 three	 bars	 that	 evening	 and	 had	 a	 “few	 beers”	 at	 each	 stop. Sometime	 late	 in	 the	 night , a	 bartender	 refused	 Perkins	 and	 Tuttle	 further service	du e	to	their	high level	of	intoxication. T he	manager	of	the	bar	asked	the men	to	leave	and	advised	Perkins	not	to	drive. The	manager saw	the	men	exit the	bar,	walk	to	the	back	of	Perkins’s	truck,	and	consume	the	contents	of	two cans	they	retrieved	from	the back	of	the	vehicle.		Concerned	that	Perkins	was

1 Perkins	also	argues	that,	consistent	with	the	theory	of	accomplice	liability,	the	court	should	have instructed	the	jury sua	sponte regarding	a	voluntary	intoxication	defense.		Because	Perkins	did	not request	a	voluntary	intoxication	instruction	or	object to	its	omission	at	trial,	he	did	not	preserve	that argument,	and	the	court’s	alleged	failure	to	provide	the	instruction sua	sponte was	not	obvious	error. See State	v.	Gauthier ,	2007	ME	156,	¶	26,	939	A.2d	77 (stating	that	in	an	obvious	error	review,	“we will	 not	grant	 relief	 unless	 the	 error	in	 the	instructions	is	 so	 highly	 prejudicial	and	 so	 taints	 the proceedings	as	to	virtually	deprive	the	defendant	of	a	f a ir	trial.”)	(quotation	marks	omitted)

. We	do not	consider	th is argument	further.

2 Perkins	had a	conditional	license	that	prohibited	him	from	driving	after	consuming	any	amount of	alcohol.3 already	 “almost	 blackout	 drunk”	 and	 would	 attempt	 to	 drive, the	 manager called	9

- 1

- 1.		He	gave	the	police	a	description	of	the	truck	and	the	license	plate number

. [¶ 4 ] In	the	early	morning	of	August	27,	Officer	Sheridan	encountered	the truck	 traveling	 north	 towards	 Augusta.	 	 He	 followed	 the	 vehicle	 for approximately	a	quarter	of	a	mile before it	entered	Memorial	Circle,	a	rotary. At	the	rotary,	t he	truck	was	straddling the	dividing	line	with	its	right	blinker	on for	 the	Memorial	Drive	exit	when	it	suddenly	jerked	left	and	 travelled	all	 the way	around	the	circle	again.		The	truck	finally	exited,	veered	right,	and	jerked to	a	stop	with	squealing	tires.		Officer	Sheridan	ca me	to	a	stop	behind	the	truck. When	 he	 reached	 the	 driver’s	 side	 window

— five	 to	 ten	 seconds	 after stopping

— Perkins	 was	 seated	 behind	 the	 wheel.	 	 Officer	 Sheridan	 observed that	 Perkins’s	 speech	 was	 extremely	 slow	 and	 slurred,	 his	 movements	 were lethargic, and	he	gave	conflicting	statements	to	the	officer. [¶ 5 ] Approximately	 five	 minutes	 after	 Officer	 Sheridan	 stopped	 the truck,	 Officer	 Adams	 arrived	 at	 the	 scene. Officer	 Adams	 approached	 the vehicle,	 observed	 Perkins	 in	 the	 driver’s	 seat	 and	 another	 per son	 in	 the passenger’s	seat, 3 and	detected	the	odor	of	intoxicating	liquor	coming	from	the

3 Neither	officer	asked	the	passenger	for	his	name	or	ever	interviewed	him	about	the	incident.4 vehicle.		Officer	Adams	asked	Perkins	how	much	he	had	to	drink	and	Perkins responded	that	he	wasn’t	driving	because	he	was	“unsafe	to	drive.”		At	Officer Adams’s	 req uest,	Perkins	exited	 the	 truck;	his	movements	were	 slow	and	he used	 both	 hands	 on	 the	 door	 to	 maintain	 his	 balance.	 	 Officer	 Adams	 then attempted	 to	 administer	 the h orizontal g aze n ystagmus	 test,	 but	 despite multiple	attempts,	Perkins	was	unable	to	complet e	the	test. [¶ 6 ] Perkins	 was	 placed	 under	 arrest	 on	 suspicion	 of	 OUI	 and transported	to	the	Augusta	Police	Department.		Once	there,	Perkins	repeatedly declined	to	take a	breath test	and	would	not	sign	the	refusal	paperwork

. [¶ 7 ] On August 27 ,	2016,	P erkins	was	charged	with	one	count	of	criminal OUI	 with	 a	 refusal	 to	 submit	 to	 a	 chemical	 test	 (Class	 D).	 	 29

- A	 M.R.S. § 2411(1

- A)(C)(1)

. He	 waived	 arraignment	 and	 entered	 a	 not	 guilty	 plea. Perkins’s	first	trial	in	June	2017 resulted	in	a	hung	jury	and	mistrial. [¶ 8 ] The	court	held	a second jury	trial	on	November	30	and	December	1,
2017. The	 prosecution	 presented	 two	 alternative	 theories	 of	 the	 case: (1) Perkins	 operated	 a	 motor	 vehicle	 while	 under	 the	 influence	 (“principa l liability”),	or	(2)	Perkins,	knowing	that	the	other	person	in	the	truck,	Tuttle,	was intoxicated,	 intentionally	 allowed	 Tuttle	 to	 drive	 Perkins’s	 motor	 vehicle (“accomplice	liability”).5 [¶ 9 ] At	the	close	of	the	evidence	and	final	arguments,	the	court reviewed the	proposed	jury	instructions	with	counsel	in	chambers.		Perkins	objected only to	the	accomplice	liability	instruction,	asserting	that	it	would	confuse	the	jury, and	that	the	court	and	the	parties	would	not	be	able	to	“sort	out”	which	theory of	 l iability

— principal	 or	 accomplice

— the	 jury	 based	 its	 verdict	 on	 when considering	the	refusal	instruction. [¶1 0 ] Relevant	 to	 this appeal ,	 the	 court	 gave	 the	 following	 jury instructions	regarding	Maine’s	OUI	law,	accomplice	liability,	and	a	driver’s	duty

t o	submit	to	a	chemical	test: [ OUI

— Principal	Liability ] A	 person	 under	 our	 law	 is	 guilty	 of	 operating	 under	 the influence	if	he	operates	a	motor	vehicle	while	under	the	influence of	intoxicants. In	order	for	you	to	find	the	defendant	guilty,	the	State	mu st prove	beyond	a	reasonable	doubt;	one,	that	the	defendant	operated a	motor	vehicle;	and	two,	at	the	time	of	the	operation	the	defendant was	under	the	influence	of	intoxicants.

.	.	.	. [ OUI

— Accomplice	Liability ] .	.	.		A	person	may	also	be	found guilty	of	operating	under	the influence	as	a	princi [ p a l ] or	as	an	accomplice,	thus	you	may	return a	 verdict	 of	guilty	if	 you	 find	 that	 the	State	has	 proven	beyond	a reasonable	 doubt;	 one,	 that	 the	 defendant,	 Todd	 Perkins,	 was operating	 a	 motor	 vehicle,	 and at	 the	 time	 of	 operation	 he	 was under	the	influence	of	intoxicants	or	that;	two,	the	defendant,	Todd6 Perkins,	 knew	 that	 Richard	 Tuttle	 was	 under	 the	 influence	 of intoxicants,	 and	 with	 the	 intent	 Richard	 Tuttle	 operate	 Todd Perkins’ [s] motor	vehicle,	Todd Perkins	allowed	Richard	Tuttle	to operate	the	motor	vehicle,	and	Richard	Tuttle	operated	the	motor vehicle	while	under	the	influence	of	intoxicants. So,	 there	were	 two	 separate	 theories	under	which	 you	can consider	 whether	 the	 defendant,	 Mr.	 Perkins,	 co mmitted	 the offense	of	operating	under	the	influence. [ Refusal	Instruction ] The	 Law	 in	 Maine	 provides	 that	 a	 person	 has	 the	 duty	 to submit	to	chemical	testing	to	determine	the	person’s	blood	alcohol level	if	 there	is	probable	cause	 that	 the	person	opera ted	a	motor vehicle	while	 under	 the	influence	 of	intoxicants.		While	a	 person has	a	duty	to	submit	to	chemical	testing,	the	person	is	not	required to	sign	the	implied	consent	form.		The	chemical	test	to	which	the person	has	a	duty	to	submit	is	a	breath	tes t	unless	the	investigating police	officer	determines	that	a	breath	test	is	not	reasonable.		If	the officer	determines	a	breath	test	is	not	reasonable,	another	chemical test,	such	as	a	blood	test,	shall	be	administered	instead. In	 this	 case,	 the	 State, and	 the	 complaint	 allege	 that	 the defendant	failed	to	submit	to	a	chemical	test.		The	State	must	prove beyond	a	reasonable	doubt	that	the	defendant	failed	to	submit	to	a test.		 If	you	 find	as	a	 fact	 that	 the	defendant	 failed	 to	submit	 to	a test,	 that	 failu re	 is	 evidence	 that	 may	 be	 considered	 by	 you	 in determining	 whether	 the	 defendant	 was	 under	 the	 influence	 of intoxicants,	and	 you	may	give	 that	evidence	of	 failure	 the	weight you	believe	it	deserves. [¶1 1 ] The	jury	found	Perkins	guilty.		Neither	party	r equested	a	special verdict	 and	 the	 jury	 did	 not	 disclose	 whether	 it	 found	 Perkins	 guilty	 as	 the principal	or	as	an	accomplice.7 [¶1 2 ] On	December	15,	2017,	Perkins	moved	for	a	new	trial.		M.R.	Crim. P.	 33.	 	 He	 argued	 that	 the	 court	 erred	 by	 failing	 to	 su fficiently	 clarify	 “the interplay	of	the	accomplice	liability	instruction	[and]	the	refusal	language.”		The court	denied	his	motion and sentenced	Perkins	to ninety days	in	the	Kennebec County	 Jail,	suspended	his	driver’s	license	 for	150	days,	and	assessed a	$650 fine.		Perkins	filed	a	timely	notice	of	appeal. See 15	M.R.S.	§	2115	(2017); M.	R. App.	P.	2 B(b)

. II.		DISCUSSION [¶1 3 ]		On	appeal,	Perkins	argues	that	the court’s denial	of	his	motion	for a	new	trial	was	an	abuse	of	discretion	because	the	court failed	to	clarify	in	its instructions	that,	in	the	context	of	an	OUI	charge under	the	accomplice	liability theory ,	a	defendant’s	refusal	to	submit	to	a	chemical	test	has	no	bearing	on	a determination	of	the	defendant’s	guilt.		He	also	argues	that	he	was	de prived	of a	 fair	 trial	 because	 the	 court’s	 instructions	 failed	 to	 provide	 the	 jury	 with	 a roadmap	to	a	not	guilty	verdict. [¶1 4 ]		We	review	the	court’s	denial	of	a	motion	for	a	new	trial	for	abuse of	discretion. See State	v McNaughton ,	20 17 ME 173 ,	¶ 45 , 168 A.3d 807. In doing	 so,	we	 consider	 the	jury	instructions	 as	 a	whole	 and	 review	 “the	 total effect	 created	 by	 all	 the	 instructions	 and	 the	 potential	 for	 juror8 misunderstanding.” State	 v.	 Daniels, 663	 A.2d	 33,	 36	 (Me.	 1995) (quotation marks	 omitted) ; see	 also State	 v.	 Garcia ,	 2014	 ME	 150,	 ¶	 15,	 106	 A.3d	 1137 (quotation	 marks	 omitted)

. A	 conviction	 must	 be	 vacated	 if	 “the	 erroneous instruction[s]	resulted	in	prejudice.” State	v.	Anderson ,	2016	ME	183,	¶	18,	152 A.3d	623 ; see	also State	v.	Gauthier ,	20 07	ME	156,	¶	14,	939	A.2d	77. [¶1 5 ] In	Maine,	a	defendant	may	be	found	guilty	of	OUI	as	a	principal

— the	operator

— or	as	an	accomplice. See State	v.	Stratton ,	591	A.2d	246,	247	(Me. 1991) ; Hurd, 2010	ME	118,	¶29,	8	A.3d	651. 4 These	distinct	theories	differ	most notably	 in	 that	 a	 defendant	 need	 not	 be	 intoxicated	 or	 be	 the	 operator	 of	 a vehicle	 to	 be	 found	 guilty	 of	 OUI	 under	 the	 accomplice	 liability	 theory. See
Stratton ,	 591	 A.2d at 247

- 48.	 	 A	 defendant	 need	 only	 intentional ly	 allow another	 to	 operate	 his	 vehicle	 knowing	 that	 the	 other	 person	 is	 under	 the influence	 of	intoxicants.		 Because	 the	 point	cannot	be	 overstated, we	 restate that the	nondriver	defendant’s	state	of	intoxication	is	wholly	irrelevant	to	his guilt	under	an accomplice	liability	 theory;	he	can	be	sober	and still	be	 f ound guilty.

4 Although	the	jury	must	return	a	unanimous	verdict,	the	members	of	the	jury	need	not	agree	as to	which	theory	of	guilt	applies	to	the	defendant. State	v.	Hurd, 2010	ME	118,	¶	29,	8	A.3d	651. It	is well established	that a court	is	“generally	barred	 from inquiring	into	 the	jury’s	deliberations

. ” Id. ¶ 32.9 [¶1 6 ]		In	this	case,	Perkins	was	charged	with	OUI	and	the	State argued both	 theories	 of	 liability

— principal	 and	 accomplice

— at	 trial.	 	 The	 court instructed	the	jury	with	regard	to	the	elements	of	each	theory.		The	court	also instructed	the	jury	on	Maine	law	regarding	the	duty	of	the	operator	of	a	motor vehicle	to	submit	to	ch emical	testing	to	determine his blood	alcohol	level	and informed	the	jury	that	it	was	free	to	use	the	operator’s	refusal	as	evidence	of his	intoxication	if	the	State	proved,	beyond	a	reasonable	doubt,	that he failed	to submit	to	a	chemical	test. Perkins argues	that	the	refusal	instruction	misled	the jury	because	the	court	did	not	specifically	limit	its	applicability	to	the	principal liability	 theory

— an	 error,	 he	 argues,	 that	 resulted	 in	 an	 unfair	 trial.	 	 We disagree. [¶1 7 ]		First,	the court’s refusal inst ruction wa s clear:	“a	person	has	the duty	to	submit	to	chemical	testing	.	.	.	if	there	is	probable	cause	that	the	person operated	 a	motor	vehicle	while	 under	 the	influence .” ( E mphasis	 added

. ) The instruction	unmistakably	(1)	applie s to	 the	defendant only as	the	operator	of the	vehicle,	not,	alternatively,	as	a	non

- driver	accomplice,	(2)	provide s that	the State	must	prove	 that	it	was	“the	defendant	 [who]	 failed	 to	submit	 to	a	 test , ” and	(3)	permit s the	jury ,	if	persuaded	by	that	proof, to	consider	evidence	of	the refusal	in	deciding	“whether	the	defendant	was under	the	influence .”10 [¶1 8 ]		The	uncontroverted	record	evidence	is	that	Perkins	was	the	only
person ( 1 ) charged	 with	 operating	 the	 truck	 while	 under	 the	 influence, ( 2 ) specifical ly	 identified	 as	 “the	 defendant”	 in	 the	 instructions,	 ( 3 ) offered	 a chemical	 test, and	 ( 4 ) who	 refused	 to	 take	a	 test ; therefore, he	was the	 only person	to	whom	the	refusal	instruction	could	apply. [¶1 9 ]	 	 Second, because	 the	 refusal	 instruction unambiguo usly applied only to	 the	 operator	 of	 the	 vehicle, it clearly did	 not	 apply to a nonoperator accomplice. The	 accomplice	 liability	 instruction	 reflects	 this	 important distinction .	 	 It identif ies two discrete actors

— the	 operator	 and	 the accomplice

— and	 two discrete inquiries:	 did	 the	 principal	 operate	 a	 motor vehicle	while	under	the	influence	of	intoxicants , and	did	the	person	charged	as an	accomplice	intentionally	allow	the	principal	to	operate	the	vehicle	knowing that	the	principal	was	under	the	influence of	intoxicants

. It	is	clear	from	these siloed	inquiries	 that	 the	 accomplice’s	 state	 of impairment is not relevant,	 or something	 that	 the	 State	 is required to	 prove under	 an	 accomplice	 liability theory,	and that	the	instruction does	not	provide	a	pathway	t o	Perkins’s guilt of	OUI	as	an	accomplice	on	the	basis	of	his	refusal. See State v. Ashley , 666 A.2d 103, 107 (Me. 1995) (stating	 that	i t	is	well	established	 that	jury	instructions need	not	be	perfect,	and	the	trial	court	has	“ wide discretion in formulating its11 instructions to the jury so long as it accurately and coherently reflects the applicable law” )

. [¶ 20 ] Because	the	jury	instructions are clear	that	the	refusal	instruction is	inapplicable	to	the	charge	of	accomplice	liability	in	an	OUI	case,	and	because we	can	identify	no	prejudice	to	Perkins	that	resulted	in	an	unfair	trial,	the	court did	not	abuse	its	discretion	by	denying	the	defendant’ s	motion	for	a	new	trial. The	entry	is: Judgment	affirmed.

Jeremy Pratt, Esq. (orally) , and Ellen Simmons, Esq., Camden, for appellant Todd J. Perkins Maeghan Maloney, District Attorney, Christy Stilphen, Stud. Atty., and Tyler J. LeClair, Asst. Dist. Atty. (orally) , Prosecutorial District IV, Kennebec, for appellee State of Maine

Kennebec	County	Unified	Criminal	Docket	docket	number	CR

- 2016

- 2176 F OR C LERK R EFERENCE O NLY