Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding precedent for any proposition of law.
MEMORANDUM OPINION AND JUDGMENT
BOLGER, Judge.
Ricardo Molina was convicted of felony refusal to submit to a chemical test and sentenced to four years to serve. He argues that his arrest for driving under the influence was illegal because the police did not have probable cause to believe he was intoxicated. He also argues that the sentencing court erred by refusing to find that his conduct was the "least serious" within the definition of the offense of felony breath test refusal. We find no merit to these claims, and therefore affirm the decisions of the superior court.
Molina also argues that his four-year sentence is excessive. As Molina concedes, we have no jurisdiction to decide this claim, because Molina's sentence falls within the presumptive range for his offense. We therefore refer this claim to the supreme court.
Background
On July 27, 2008, Michael Terrazas, the manager of an apartment complex in Anchorage, heard "rumbling" noises from an upstairs apartment — noises he associated with a fight or wrestling. He went upstairs and spoke with the occupants of the apartment, Ricardo Molina and his girlfriend, Dorraine Shangin. Molina and Shangin were "obviously arguing." Shangin was angry, and she was pushing and shoving Molina and telling him to leave. Terrazas told them to quiet down or else he would call the police. After Terrazas went back downstairs, the noises continued, so he called the police.
Anchorage Police Officer Brian Burton was among the officers dispatched to investigate this disturbance. Burton went to the apartment and spoke with Shangin, who said she and Molina had been drinking and arguing, and that she had "slapped ... a beer can out of his hand to stop him from drinking" because she "didn't want him to get really drunk and out of control." Shangin told Burton that Molina had just left, and that he drove a red Ford Bronco. (From other testimony, it appears that the vehicle was actually a Ford Explorer.) Burton radioed this information to other officers outside the apartment.
As Officer Brian Wilson, a trainee at the time, approached the apartment complex, he saw a man get into a red Ford Explorer and rev the engine "very loudly twice, to the point where it would squeal." Wilson continued into the complex until he heard on his radio that the man involved in the disturbance at the apartment had been drinking and was leaving in a red Ford.
Officer Wilson then returned to the parking lot, where he observed Molina rev the engine again and then shut it off and get out of the vehicle. Wilson contacted Molina and noticed that he had bloodshot, watery eyes and a strong odor of alcohol. The odor was noticeable from several feet away, and it was stronger when Molina was talking. Molina was also "very aggressive." He admitted to operating the vehicle in the parking lot.
After Molina refused to perform field sobriety tests, Wilson arrested him for driving under the influence. Molina was transported to the Anchorage jail, where he refused to submit to a breath test. He was subsequently charged with felony driving under the influence,1 felony refusal to submit to a chemical test,2 driving with a suspended license,3 and resisting arrest.4
Before trial, Molina moved to suppress the evidence against him, arguing that the police lacked probable cause to arrest him for driving under the influence. Superior Court Judge Eric A. Aarseth denied the motion after an evidentiary hearing. A jury later convicted Molina of refusal to submit to a chemical test but acquitted him of driving under the influence and resisting arrest.5 (The State dismissed the charge of driving with a suspended license before trial.) The court sentenced Molina to four years to serve. Molina appeals.
Discussion
Molina's arrest was supported by probable cause to believe he was under the influence.
On appeal, Molina renews his claim that the police did not have sufficient probable cause to arrest him for driving under the influence. He does not dispute that the police had probable cause to believe he was operating a motor vehicle; he argues that the police did not have probable cause to believe he was under the influence at the time.
The police have probable cause for an arrest when they are "aware of facts and circumstances, based on reasonably trustworthy information, that are sufficient in themselves to warrant a reasonable belief that an offense has been or is being committed."6 A finding that there was probable cause for an arrest "does not require a showing that criminal activity actually occurred, but requires only `a fair probability or substantial chance of criminal activity.'"7 When we review the denial of a motion to suppress the evidence, we view the facts in the light most favorable to the trial court's ruling.8
Based on the testimony presented at Molina's suppression hearing, Judge Aarseth found that the police responded to Molina's apartment based on a report of a loud verbal disturbance. Molina's girlfriend, Shangin, told the police that Molina had been drinking, and her statement was corroborated by Officer Wilson's observations that Molina had an odor of alcohol on his breath and red, bloodshot, and watery eyes. The judge found that Molina had operated his vehicle, and that he had done so abnormally — by revving the engine unusually loudly. The judge found that this revving was consistent with Molina not having complete control over his physical movements. He also found that Molina's aggressive emotional state was indicative of someone whose "inhibitions have been let down and ... they no longer are able to speak in a polite and civil tone to the police." Judge Aarseth concluded that the totality of these circumstances gave the police probable cause to arrest Molina for driving under the influence.
Molina does not contest any of Judge Aarseth's factual findings. Instead, relying on Saucier v. State,9 he argues that the findings fail to establish probable cause to believe he was under the influence. In Saucier, we ruled that the trial court's findings that the defendant admitted to drinking a couple of beers, emitted a "normal" odor of alcohol, committed some minor driving errors, and refused to perform field sobriety tests, failed to establish probable cause to arrest him for driving under the influence.10
Viewing the facts in the light most favorable to the trial court's ruling, Molina was involved in an argument that was loud and persistent enough to precipitate a call to the police. Molina's girlfriend, Shangin, told the police that Molina had been drinking; though she did not specify how much alcohol he had consumed, she said she slapped a beer out of his hand to prevent him from getting "really drunk and out of control." Officer Wilson observed that Molina had red, watery, bloodshot eyes and a strong odor of alcohol on his breath. Molina was aggressive in his physical stance, speech, and movements — behavior the court found indicative of someone whose "inhibitions have been let down." And the court found that Molina's manner of operating the vehicle — by revving the engine unusually loudly — suggested that his physical dexterity might be impaired.
In Saucier, apart from a "normal" odor of alcohol, the defendant exhibited none of these physical indicia of intoxication. Molina's case is therefore more like Russell v. Anchorage, where we held that the defendant's strong odor of alcohol, watery and glassy eyes, and evidence of impaired manual dexterity (together with the evidence that he had been driving) established probable cause to arrest him.11
Molina argues that the trial court's probable cause analysis was flawed because the court considered only facts favorable to the State. But Molina does not point to any specific facts that the court should have considered but did not. Judge Aarseth discussed Molina's version of the facts in his findings. He noted the contention that Molina smelled of alcohol because Shangin had spilled beer on him. He also noted Molina's assertion that his eyes might have been bloodshot and watery because he was upset by his domestic situation and had been crying.
Judge Aarseth was not persuaded by Molina's view of the evidence. He found that Molina's odor of alcohol was indicative of his having consumed alcohol, because Officer Wilson testified that the odor was stronger when Molina was speaking. And the judge found that, although Molina's bloodshot, watery eyes could have resulted from crying, the evidence was also consistent with his being under the influence of alcohol. We have previously held that a fact or circumstance that is as consistent with innocence as guilt may still support probable cause when viewed in the totality of the circumstances.12 Because Judge Aarseth's findings are supported by the record, and because those findings support his legal conclusion that the police had probable cause to arrest Molina, we affirm the judge's decision denying the motion to suppress.
The court did not err by rejecting the least serious mitigator.
Molina argues that the superior court should have mitigated his sentence for felony breath test refusal because his conduct was the "least serious" within the definition of the offense. There are two steps to determining whether the "least serious" mitigator applies: "the court must (1) assess the nature of the defendant's conduct, a factual finding, and then (2) make a legal determination of whether that conduct falls within the statutory standard of `among the least serious conduct within the definition of the offense.'"13
As already explained, the jury acquitted Molina of felony driving under the influence and resisting arrest and convicted him of felony breath test refusal. In superior court, Molina argued that his sentence for felony breath test refusal should be mitigated as "least serious" conduct under AS 12.55.155(d)(9) because the jury acquitted him of driving under the influence, and because his driving did not endanger anyone. The court properly rejected these arguments because they related to the conduct underlying the offense of driving under the influence, and Molina was not being sentenced for that offense.14
The trial court found that Molina's conduct in refusing to submit to a chemical test
probably was among the worst conduct in terms of a refusal because of how belligerent the defendant was. This was a conscious choice that the defendant was making to try to obfuscate the entire process, to try to intimidate the police, and to interfere in any way possible he could with the collection of evidence.
Molina does not challenge Judge Aarseth's findings that he was belligerent and deliberately obstreperous in his refusal to submit to a chemical test. Instead, he asks this court to find that his conduct was "least serious" because he was upset at the police for arresting him after Shangin threw "booze" and a bowl of noodles at him. We conclude that this argument was not preserved because it was not raised below.15 We also conclude that it fails on the merits. Molina has cited no authority to support his argument that his offense of felony breath test refusal should be mitigated as a "least serious" offense because he was upset that the police had arrested him.
Officer Wilson testified that even before arriving at the Anchorage jail for the breath test processing, Molina indicated that he would refuse to take the breath test. Molina was "very uncooperative," talking loudly while Wilson and another officer, Alan Skaggs, read the implied consent warning advising him that he would be charged with a separate crime if he did not submit to a breath test. Molina was so "all around uncooperative" that the officers at one point turned his chair around and put him in the corner. Skaggs explained, "[W]e [were] trying everything we [could] to just calm him down. It's obviously much more pleasant, much easier to deal with, if he's cooperative." The officers' testimony, as well as the audio recording of the contact, support the trial court's findings that Molina was belligerent and uncooperative. Based on these findings, we conclude that Molina failed to establish that his conduct in refusing to submit to a breath test was among the "least serious" conduct within the definition of the offense.
Molina concedes that under AS 12.55.120(e), he has no right to appeal his sentence to this court because it falls within the presumptive range for his offense. Accordingly, we refer his excessive sentence claim to the supreme court.
Conclusion
We REFER Molina's excessive sentence claim to the supreme court under Appellate Rule 215(k). In all other respects, we AFFIRM the judgment of the superior court.
