Zarnoch, Leahy, Moylan, Charles E., Jr. (Retired, Specially Assigned), JJ.
The appellant, Todd Harding, was convicted in the Circuit Court for Baltimore City by a jury, presided over by Judge Videtta Brown, of 1) driving under the influence of alcohol, 2) driving with a suspended license, and 3) refusing to take a breath alcohol test. On this appeal, the appellant raises the single contention that the evidence was not legally sufficient to permit Judge Brown to submit the case to the jury.
To cut to the chase, the appellant does not challenge the adequacy of the State's evidence to show 1) that he was under the influence of alcohol when he was arrested by the police at 1:20 a.m. on October 21, 2013; 2) that at that time, his driver's license was suspended; and 3) that, when taken to the station house, he refused to submit to a breath alcohol test. The legal sufficiency battle before us focuses exclusively on the narrow issue of whether the appellant had actually been driving the 1965 Chevy pickup truck in which Baltimore City firefighters found him as they responded to a call of "a vehicle accident and report of people trapped" in a truck on Inverness Avenue.
Driving: What and When?
The driving while under the influence statute of which the appellant was convicted is Maryland Code, Transportation Article, §21-902(a), which provides:
(a) Driving while under the influence of alcohol:
(1)A person may not drive or attempt to drive any vehicle while under the influence of alcohol.
(2)A person may not drive or attempt to drive any vehicle while that person is under the influence of alcohol per se.
(3)A person may not violate paragraph (1) or (2) of this subsection while transporting a minor.
§11-114 also provides a definition of the verb "drive."
"Drive" means to drive, operate, or be in actual physical control of a vehicle, including the exercise of control over or the steering of a vehicle being towed by a motor vehicle.
Proof of the crime, moreover, may consist not only of evidence that shows that the defendant is, when observed by the police or other witnesses, driving in the present tense but also may arise from a permitted inference that the defendant was guilty of driving under the influence in the past tense. How, the inquiry may go, did the defendant get to the place where he is now observed? In the words of Owens v. State, 93 Md.App. 162, 163, 611 A.2d 1043 (1992):
"This appeal presents us with a small gem of a problem from the borderland of legal sufficiency."
The Version of the Evidence Most Favorable to the State
When the emergency call went out at approximately 1:20 a.m. that a vehicular accident had occurred and it appeared that one or more persons might be trapped in the crashed vehicle, Baltimore City firefighters were the first emergency personnel to arrive on the scene. The Baltimore City Police Department and an ambulance arrived shortly thereafter. Firefighter Jeffery Darby observed what clearly appeared to be a crash scene. An older model Chevy pickup truck had jumped a curb and crossed the sidewalk and had "nudged into ... bushes" that bordered a fence on the far side of the sidewalk.
The vehicle itself was in some distress. Firefighter Darby observed that there was "a little bit of ... a white smoke steam coming from the vehicle, " as if it were "overheating." Firefighter Matthew Blair testified that the "white smoke" was coming from the "engine compartment." When Police Officer Christopher Wesolowski arrived on the scene, the pickup truck was still smoking. Police Officer Tyrone Thomas observed that the truck was "partially up on the curb in the bushes" and radiator fluid was "coming from under the truck going around the curbside, going downhill." The truck was still running.
"[I]t appeared that the truck was still running and it had no type of ignition or anything to turn the truck off. So I don't recall how we actually got the truck turned off, but it was no type of ignition. No sign of, like, a key hole or anything."
From the raw physics of the event alone, it is clear that the pickup truck had been moving and had just come to a sudden and abrupt stop as it bounced over the curb and into the bushes just minutes before the first emergency responders arrived on the scene.
Turning our attention to the appellant, we note that as Firefighter Blair approached the pickup truck, he found the appellant "sitting ... like at the driver's wheel, slumped over ... into the bench [the seat]." He testified that the appellant "seemed out of it" and "wasn't responsive, " was intoxicated. Firefighter Darby described the appellant as "slouched over in the front seat, " "laying onto the bench seat, " apparently sleeping. Firefighter Benjamin Filer described the appellant's head as "laying up against the driver's door." The appellant woke up when Firefighter Blair rubbed his chest. At that point the firefighters left the scene because it was apparent that no one was "trapped" and the police and the ambulance were then on the scene. At that point, the appellant got out of the pickup truck and started walking away from it.
Officer Wesolowski first observed the appellant "staggering down the sidewalk going back and forth" toward his house, which was on the same block of Inverness Avenue where the truck was then sitting. It seems that the appellant had almost reached home when he lost control of the pickup truck. When the officer asked the appellant if he "was the driver of the vehicle, " "the appellant didn't confirm or deny that he was driving." The officer described the appellant's demeanor:
"He was swearing. He was laughing at times. He was aggressive, then he was calm. He was changing his demeanor constantly. I immediately smelled an alcoholic beverage when I began talking to him."
Officer Wesolowski tried to conduct a field sobriety test, but the appellant refused to cooperate. The officer then arrested him "on suspicion of a DUI [Driving Under the Influence]." The appellant was thereafter transported to the ...