Made available by Touch N' Go Systems, Inc. and
Law Offices of James B. Gottstein.
406 G Street, Suite 210, Anchorage, AK 99501
(907) 274-7686 fax 333-5869

You can of the Alaska Court of Appeals opinions.

Touch N' Go, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website to see how.


Eide v. State (10/5/2007) ap-2120

Eide v. State (10/5/2007) ap-2120

                             NOTICE
     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
     are  encouraged to bring typographical or other  formal
     errors  to  the attention of the Clerk of the Appellate
     Courts:
             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878
       E-mail:  corrections@appellate.courts.state.ak.us

         IN THE COURT OF APPEALS OF THE STATE OF ALASKA


WARREN E. EIDE, )
) Court of Appeals No. A-9350/A-9609
Appellant/Cross-Appellee, ) Trial Court No. 3KN-04-2656 CR
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee/Cross-Appellant. ) No. 2120 October 5, 2007
)
Appeal    from    the
          Superior  Court,  Third  Judicial  District,
          Kenai, Harold M. Brown, Judge.

          Appearances:   Dan Lowery, Assistant  Public
          Defender,   and   Quinlan  Steiner,   Public
          Defender, Anchorage, for the Appellant/Cross-
          Appellee.   W.H. Hawley, Assistant  Attorney
          General, Office of Special Prosecutions  and
          Appeals,  Anchorage, and Talis  J.  Colberg,
          Attorney  General,  Juneau,  for  the  Appel
          lee/Cross-Appellant.

          Before:   Coats, Chief Judge, and Mannheimer
          and Stewart, Judges.

          STEWART, Judge.
          MANNHEIMER, Judge, concurring.

          A  jury  convicted Warren Eide of first-degree  vehicle
theft,  driving  while  his license was  revoked,  and  resisting
arrest.  After determining that the evidence was insufficient  to
sustain  the conviction for resisting arrest, Judge Brown entered
a  judgment of acquittal on the resisting arrest conviction.   In
this   appeal,  we  address  the  sufficiency  of  the   evidence
supporting  the  jurys  guilty verdicts  at  Eides  trial.   Eide
contends that insufficient evidence supports his convictions  for
first-degree vehicle theft and for driving while his license  was
revoked.1  The State, as cross-appellant, argues that Judge Brown
improperly  set  aside the jurys verdict finding Eide  guilty  of
resisting arrest.2
          We  reject Eides claim because we conclude that a fair-
minded  juror exercising reasonable judgment could conclude  that
the  State  had  proven  the vehicle theft  and  revoked  license
charges.   We  also reject the States claim because  insufficient
evidence  was admitted at trial to support the jurys  verdict  on
the  subsection  of the resisting arrest statute  that  Eide  was
charged  with  violating.  Accordingly, we  affirm  the  superior
court.

          Facts and proceedings
          On  the evening of November 9, 2004, Jack Thomas  drove
Eide  and  his roommate, Victoria Miller Cameron, to his recently
completed log house in the Soldotna area to celebrate Thomas  and
his  wife  moving  into the house.  Eide lived  near  Thomas  and
Thomas frequently picked Eide up when he was hitchhiking.
          All  four  at  the  house  were drinking.   Eventually,
everyone  went to bed, but during the night a dispute  developed.
Thomas started his truck, expecting to drive Eide and Cameron  to
their  house.   The dispute became heated, and Eide  and  Cameron
refused to leave.  Thomas called 911.
          Cameron  left the house, walked down the driveway,  and
did  not  return.   Eide  remained and continued  to  argue  with
Thomas.   Eide  got  dressed, spoke with a  911  dispatcher,  and
proceeded  to  leave the house.  Thomas tended to  his  wife  who
developed a medical problem and he asked the dispatcher  to  send
an ambulance.
          Looking out of a window, Thomas saw Eide in his  truck,
staring  back  at Thomas as he backed Thomass truck  out  of  the
driveway and drove away.  Thomas had not given Eide permission to
drive  the  truck and did not do anything that would indicate  to
Eide  that he was free to drive the truck.  Thomas also knew that
Eide  did  not have a license.  The truck was found empty  a  few
miles away.  Cameron testified that she left the house and walked
home through the woods.
          A  few  days  later,  Alaska  troopers  went  to  Eides
residence to arrest him.  Eide told Sergeant Barry Wilson that he
had  not been at Thomass residence but had spent the night at his
parents  place.  (Sergeant Wilson had monitored Thomass 911  call
and  heard Eide identify himself when he got on the line.)   Eide
was  on  the  floor  in a sleeping bag.  The troopers  told  Eide
several  times  that  he  was  under  arrest.   Trooper  Lawrence
Erickson  grabbed  Eide by the wrist to pull  him  up,  but  Eide
jerked  away, told the trooper No, leave me alone, I aint  going.
Eide  rolled  onto  his  stomach with his  arms  underneath  him.
          Trooper Erickson told Eide several times to stop resisting
arrest.
          Trooper  Erickson was concerned that he or  Eide  would
get hurt if he had to wrestle Eide into submission.  Accordingly,
Trooper  Erickson chose to apply an electric shocking  device  to
Eide  in  an  attempt  to  gain his  cooperation.   The  electric
shocking  device  causes  pain and can  temporarily  disable  the
recipient  of  the  shock.  After Trooper  Erickson  applied  the
device to Eide, Eide jumped up and submitted to his arrest.
          Four  people  testified at trial, Thomas, Cameron,  and
the  two  troopers  mentioned  above.   Eide  did  not  call  any
witnesses.   The  parties  stipulated that  Eide  knew  that  his
license was revoked at the pertinent time.


          Discussion
          When a defendant attacks a conviction for insufficiency
of the evidence, this court must view the evidence presented, and
reasonable  inferences  from  the evidence,  in  the  light  most
favorable to upholding the jurys verdict.3  Viewing the  evidence
from this perspective, we must decide whether a fair-minded juror
exercising reasonable judgment could conclude that the State  had
met its burden of proving guilt beyond a reasonable doubt.4
          Eide  argues  that  his convictions  must  be  reversed
because  the  evidence  does  not prove  that  he  drove  Thomass
vehicle.   However, Eide argues the evidence in a light favorable
to  himself.  Viewing the evidence and reasonable inferences from
the  evidence  in  the  light  most favorable  to  upholding  the
verdicts,  we  conclude  that  the  record  contains  substantial
evidence  that  Eide  drove  Thomass  truck  away  from   Thomass
residence.   Thomass testimony alone provides  support  for  this
fact because Thomas testified that he saw Eide back his truck  up
and drive away.  We conclude that the evidence was sufficient  to
support  the verdicts for first-degree vehicle theft and  driving
while license revoked.
          We  next  turn  to  the States claim that  Judge  Brown
erroneously entered a judgment of acquittal after the jury  found
Eide guilty of resisting arrest.  Double jeopardy does not bar an
appeal  from  a  courts decision setting aside a jurys  verdict.5
Eide  concedes  that  double jeopardy does not  bar  this  Courts
review of Judge Browns order setting aside the jurys verdict.
          The  State charged Eide under AS 11.56.700(a)(3).  That
subsection of the resisting arrest statute required the State  to
prove  that  Eide,  knowing that a peace officer  was  making  an
arrest, and with the intent of preventing the officer from making
the  arrest,  resisted  the arrest by any means  that  created  a
substantial  risk  of  physical injury to any  person.   Physical
injury is defined as a physical pain or an impairment of physical
condition.  The jury was so instructed, and found Eide guilty.
          After   accepting   the  jurys  verdicts   and   before
sentencing,   Judge  Brown  entered  a  judgment  of   acquittal,
concluding  that  there was insufficient evidence  to  support  a
finding that Eide resisted arrest.  Judge Brown ruled that  Eides
conduct did not rise to the level of force required for resisting
arrest.   Citing this Courts opinion in Howard v.  State,6  Judge
          Brown concluded that Eides passive resistance is insufficient to
constitute force for purposes of the resisting arrest statute.
          In  Howard,  this  court reversed  a  resisting  arrest
conviction  because we concluded that fleeing from the  arresting
officer  and  hiding in the woods was not sufficient  to  support
this  crime.7  The defendant never touched the arresting  officer
and  at  best,  the  only contact between the two  was  when  the
trooper touched Howards jacket or cuff as he was fleeing.   Under
AS  11.81.900(b)(27),  force is defined  as  any  bodily  impact,
restraint,  or  confinement  or the  threat  of  imminent  bodily
impact,  restraint,  or confinement, force  includes  deadly  and
nondeadly force.  Because there was no evidence or any reasonable
inference  that  Howard  had resisted his  arrest  by  force,  we
reversed his conviction for resisting arrest.8
          After  Judge  Brown entered the judgment of  acquittal,
the  State moved for reconsideration, pointing out that Eide  was
not  prosecuted  under  the subsection of resisting  arrest  that
required force, but under the subsection that required the  State
to  prove that Eide resisted the arrest by any means that created
a substantial risk of physical injury to any person.
          In   response,  Judge  Brown  ruled  that   there   was
insufficient  evidence of conduct on Eides part  that  created  a
substantial risk of injury to any person:  There was
  insufficient  evidence that defendant employed any  means  that
created a substantial risk of injury to another person.
          As  the  State describes in its brief, Trooper Erickson
grabbed at Eide and attempted to get him up, but Eide jerked away
and,  as  described by Trooper Erickson, turtled   Eide  oriented
his  body  so that his arms and wrists were underneath his  torso
and  announced  No,  I  aint going.  As the  State  pointed  out,
Trooper  Erickson  warned Eide several times that  he  was  under
arrest.   The  State  contends that Eides  actions  and   Trooper
Ericksons  testimony that any officer attempting to  arrest  Eide
would  be injured if the officer got down on the floor to wrestle
Eides  arms free and handcuff him, are sufficient to sustain  the
conviction.   The  State also argues that the fact  that  Trooper
Erickson  had to resort to using an electric shocking  device  to
subdue Eide further reflects the serious risk that Eide imposed.
          The  commentary  to  AS 11.56.7009 indicates  that  the
legislature  did  not  want  the crime  of  resisting  arrest  to
encompass  mere  non-submission to  an  arrest.   The  commentary
includes an example of conduct that the legislature envisioned as
the  kind  that  creates a substantial risk  of  physical  injury
fleeing  in  an  automobile at high speed through  a  residential
area.10  The gravity and imminence of the danger imposed by  this
conduct   contrasts  sharply  with  Eides  passive   positioning.
Although  Trooper Erickson was convinced that it was likely  that
he or Eide would be injured because Eide was uncooperative, Eides
conduct  of turning turtle and announcing that he was  not  going
with  the trooper does not rise above mere non-submission because
Eides  conduct  did  not actively create  a  danger  of  physical
injury.

          Conclusion
          Eides  convictions for first-degree vehicle  theft  and
          driving while license revoked  are AFFIRMED.  The superior courts
judgment of acquittal on resisting arrest is AFFIRMED.
MANNHEIMER, Judge, concurring.

          I  write  separately for two purposes:  to  explain  my
analysis of the elements of the crime of resisting arrest, and to
explain  my conclusion that the States evidence against Eide  was
not sufficient to establish those elements.
          The  resisting  arrest statute, AS  11.56.700(a),  sets
forth  a  culpable mental state and an actus reus that the  State
must  prove.   The  culpable  mental  state  is  the  intent   of
preventing [an] officer from making [an] arrest.  The actus  reus
is  resist[ing] ... or interfer[ing] with the arrest  by  one  of
three methods:
          (1) the use or threat of force;
          (2)  the commission of criminal mischief in any degree;
or
          (3)  the  use  of  any  other  means  that  creates   a
     substantial risk of physical injury to any person.
          Eide  was charged under subsection (3) of this statute.
In   other  words,  the  State  alleged  that  Eide  resisted  or
interfered  with an arrest (his own) by employing  a  means  that
created  a  substantial risk of physical injury to  one  or  more
people.
          To  prove this actus reus, the State relied on evidence
that  Eide pulled his wrist from the officers grasp and then  lay
on  the  floor  with  his  arms and legs tucked  underneath  him,
refusing to get up and be handcuffed.
          The   State   argues  that  Eides  conduct  created   a
substantial risk of injury (either to himself or to the arresting
officer)  because the officer reasonably feared that if he  tried
to  lift  Eide  from the floor to effect the arrest,  Eide  might
physically  resist  the officers efforts, and someone  might  get
hurt.
          Based  both  on the wording of the statute and  on  the
accompanying commentary, I conclude that subsection  (3)  of  the
statute  was  not  intended  to be  read  in  this  fashion.   In
particular, subsection (3) does not authorize a conviction  based
on  the  possibility or prediction that an arrestee  might  later
violate  subsection  (1) by using force to resist  or  impede  an
arrest.  Rather, subsection (3) requires proof that the defendant
was  then  and there engaged in conduct that actively  threatened
injury to himself or some other person.
          Both   the  legislatures  official  commentary  to   AS
11.56.700 and the Criminal Code Subcommissions commentary to  the
earlier  draft  statute  expressly  state  that  the  offense  of
resisting  arrest  was  not  intended  to  encompass  mere   non-
submission  to an arrest.  Here is the pertinent portion  of  the
official  commentary, found in 1978 Senate Journal Supp.  No.  47
(June 12), page 85:
          
               [This  statute] prohibits  resisting  or
          interfering  with an arrest  by  the  use  of
          force.   ...   A  person  also  violates  the
          statute  by committing any degree of criminal
          mischief ([e.g.], tampering with the officers
          squad car) or by doing any act that creates a
          substantial    risk   of   physical    injury
          ([e.g.],  fleeing  in an automobile  at  high
          speeds  through a residential  area).   [But]
          [m]ere  non-submission to an arrest does  not
          reach  the  level of resisting or interfering
          with   [an]   arrest  [prohibited   by   this
          statute].
          
          Based  on  this  commentary, I conclude  that
          Eides  act of lying on the floor and assuming
          a  turtle posture (i.e., placing his arms and
          legs  underneath  him, out  of  the  officers
          immediate  reach) is not the kind of  conduct
          that the legislature intended to punish.
          Eides  act  of curling  up  on  the
floor  was  not a use of force,  nor  was  it
criminal  mischief.  The  State  argues  that
Eides  conduct created a risk of injury   but
only in the sense that the officer reasonably
suspected that Eide might begin to use  force
against  the officer if the officer continued
his  efforts to take Eide into custody.   The
legislative  commentary to AS 11.56.700(a)(3)
shows  that  this is not the kind of  conduct
that  the legislature was contemplating  when
they   enacted  this  substantial   risk   of
physical  injury  provision of  the  statute.
The  legislatures  example  of  conduct  that
would  violate subsection (3)  fleeing in  an
automobile   at   high   speeds   through   a
residential  area  shows that the legislature
was  thinking  of conduct that  actively  and
immediately threatens peoples safety.
          Eides  act  of curling  up  on  the
floor  did  not create such a risk.   Rather,
Eides  conduct  fell  within  the  range   of
passive   resistance  that  the   legislature
called mere non-submission  conduct that  the
legislature did not intend to punish.
          It  was not enough for the State to
prove  that the officer reasonably  suspected
that, if he pursued further efforts to remove
Eide   from  the  floor  and  take  him  into
custody,  this  would prompt  Eide  to  begin
engaging in conduct that created a danger  of
physical   harm.   Unless  and   until   Eide
actually began to engage in such conduct,  he
did  not commit the crime of resisting arrest
as defined in subsection (3) of the statute.
          The  State  has one more  potential
argument.   As the State points  out  in  its
brief,  Eide did not merely curl  up  on  the
floor.   Eide  also pulled the  sleeping  bag
over his body and, when the officer attempted
to   grab  Eides  wrist  (so  that  he  could
handcuff him), Eide yanked his wrist away and
tucked his hands underneath his body.
          It   could  be  argued  that  these
actions  constituted  the  use  of  force  to
impede the arrest  and, thus, a violation  of
subsection (1) of the statute.  However,  the
State  does not make this argument.   Rather,
the  State  argues that these  actions,  too,
constituted  a  violation of  subsection  (3)
because,  again,  they  suggested  that   any
further  efforts  to take Eide  into  custody
would be met with more forcible resistance.
          Both of these arguments  i.e.,  the
arguments that Eides conduct violated  either
subsection  (1)  or  subsection  (3)  of  the
statute   are  answered in the Criminal  Code
Subcommissions  commentary   to   the   draft
statute,   TD  11.56.700.   This   commentary
(found  in Part 4 of the Tentative  Draft  of
our   criminal   code)  mirrors   the   later
legislative commentary by declaring  that  an
act  of  mere non-submission is not  included
within  the  definition of  the  crime.   The
draft  commentary  then adds  an  explanatory
quote   from   Hawaiis  commentary   to   its
corresponding statute:

     Mere  non-submission to an  arrest  does
not   reach   the  level  of   resisting   or
interfering with [an] arrest [as  defined  in
this statute].  As noted in the Commentary to
the Hawaii Penal Code:

     One  who  runs  away from  an  arresting
     officer or who makes an effort to  shake
     off the officers detaining arm might  be
     said to obstruct the officer physically,
     but   this  type  of  evasion  or  minor
     scuffling  is not unusual in an  arrest,
     nor  would it be desirable to make it  a
     criminal   offense  ...  .   In   [such]
     case[s,] the proper social course is  to
     authorize  police pursuit and [the]  use
     of   reasonable  force  to  effect   the
     arrest.

Alaska   Criminal  Code  Revision,  Tentative
Draft, Part 4 (1977), page 74, Commentary  to
TD 11.56.700.
          Eides acts of covering himself with
a  sleeping  bag and pulling his  wrist  away
from  the  officers grasp are  the  types  of
evasion or minor scuffling that, according to
the  commentary, do not constitute the  crime
of resisting arrest.
          It  may  well be that, given  Eides
actions,  the  officer  reasonably  concluded
that  Eide  might  engage in  future  violent
resistance  if  the  officer  continued   his
efforts  to take Eide into custody.  And,  as
the commentary to the draft statute suggests,
the reasonableness of the officers prediction
of  potential  violence would be  significant
if,  for  example, the issue being  litigated
was  whether  the  officer was  justified  in
using the stun gun on Eide.
          But  the  issue  in  this  case  is
whether  the State proved that Eide  resisted
arrest as defined in AS 11.56.700(a).   Based
on  the wording of this statute, and based on
the  descriptions  of the intended  scope  of
this statute in both the official legislative
commentary    and    the    Criminal     Code
Subcommissions  commentary   to   the   draft
statute, I conclude that Eides conduct  (even
viewed  in  the light most favorable  to  the
State)  does  not  fall  within  the  conduct
prohibited by AS 11.56.700.
          Accordingly,   I  agree   with   my
colleagues  that  Eide  was  entitled  to   a
judgement  of  acquittal  on  the  charge  of
resisting arrest.

_______________________________
     1 AS 11.46.360(a)(1) and AS 28.15.291(a)(1), respectively.

     2 AS 11.56.700(a)(3).

3  See  Simpson  v.  State,  877 P.2d  1319,  1320  (Alaska  App.
1994).

     4 See Dorman v. State, 622 P.2d 448, 453 (Alaska 1981).

     5  See Smith v. Massachusetts, 543 U.S. 462, 467, 1125 S.Ct.
1129, 1134, 160 L.Ed.2d 914 (2005).

     6 101 P.3d 1054 (Alaska App. 2004).

7 Id. at 1058-59.

     8 Id.

     9  Commentary on the Alaska Revised Criminal Code, 2  Senate
Journal Supp. No. 47 at 85 (June 12, 1978).

     10   Id.

Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC