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Wall v. State (3/27/2009) ap-2209

Wall v. State (3/27/2009) ap-2209

                             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
          

CLAUDE D. WALL,                    
                                   
                    Appellant,          Court  of Appeals No.  A-
                                   10010
               v.                          Trial Court No. 3KN-06-
                                   981 Cr
STATE OF ALASKA,                   
                                   
                    Appellee.                    O  P  I  N  I  O
End of Caption                     N
                                   
                                   
                                      No. 2209    March 27, 2009
                                   
          Appeal  from the Superior Court,  Third  Judi
          cial District, Kenai, Harold M. Brown, Judge.

          Appearances:   Linda  K.  Wilson,   Assistant
          Public  Defender, and Quinlan Steiner, Public
          Defender,   Anchorage,  for  the   Appellant.
          Blair   M.  Christensen,  Assistant  Attorney
          General,  Office of Special Prosecutions  and
          Appeals,  Anchorage, and  Talis  J.  Colberg,
          Attorney General, Juneau, for the Appellee.

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

          MANNHEIMER, Judge.

          Claude  D.  Wall  appeals  his  conviction  for  felony
driving  under  the  influence.1  He contends that  the  evidence
presented  at  his trial was legally insufficient to 
establish that he was operating the vehicle, or (alternatively) that the vehicle in question was operable. For the reasons explained here, we conclude that the evidence was sufficient on both of these issues. Wall also claims that the trial judge should have instructed the jury on the defense of necessity. We conclude that the evidence presented at Walls trial did not support this defense. Accordingly, we affirm Walls conviction for felony driving under the influence.
Underlying facts
     
               In  the early morning of June 5, 2006, Alaska
     State  Trooper Lawrence Erickson was on patrol  in  the
     Soldotna  area.   Erickson saw a  car  stopped  at  the
     intersection  of  Bennett Court and  Kalifornsky  Beach
     Road.   The car was in the right lane of Bennett Court,
     with its front end pointing toward the intersection.
               When  Erickson  approached  the  vehicle,  he
     found  Wall  sitting  in the drivers  seat,  wearing  a
     seatbelt.   Wall was holding an open beer in his  right
     hand, and he had the keys to the car in his left hand.
               When  Erickson questioned him, Wall  admitted
               that the vehicle was his, and that he had removed the
     keys from the ignition.  Wall also admitted that he did
     not   have  a  drivers  license.   (Walls  license  was
     suspended.)  However, Wall claimed that he had not been
     driving the car:  he told the trooper that a friend  of
     his  had been driving, but the friend had abandoned him
     there.
               Wall  showed  signs of intoxication;  he  was
     disoriented,  and he had a hard time  focusing  on  the
     trooper.
               While  Erickson  was talking to  Wall,  three
     more  people arrived on the scene by cab:  Royce  Kenny
     Oder,  Josephine Mestas, and Rita Lindsey. These people
     had  apparently been with Wall earlier in the  evening,
     and  one  or  two  of  these people contradicted  Walls
     account:  they told Erickson that Wall had been driving
     the vehicle.
          Evidently the four people (i.e., Wall and the
three  others) had been out for the evening.  They  got
into  an  argument, and Oder (who was driving  at  that
time)  turned  the vehicle around in  the  road  rather
quickly, and the car stalled.  Despite Oders and  Walls
efforts, they could not get the vehicle started  again,
so  everyone except Wall left the area on  foot.   Wall
stayed   with  the  vehicle   which  is  where  Trooper
Erickson found him.
          The  State  charged Wall with felony  driving
under  the  influence,  as  well  as  driving  with   a
suspended  license.   At trial, the parties  stipulated
that  Walls  blood  alcohol content  was  .156  percent
(i.e.,  almost  twice  the  legal  limit),  that  Walls
drivers license was suspended, and that Wall knew  that
his license was suspended.
          During trial, Walls attorney asked the  trial
judge,  Superior  Court  Judge  Harold  M.  Brown,   to
instruct the jury on the defense of necessity (i.e., on
the  claim  that  Wall  operated  the  vehicle  out  of
necessity even though he was intoxicated).  When  Judge
Brown asked Walls attorney what harm Wall was trying to
prevent,  the defense attorney responded that Wall  had
been  trying to move the car out of the roadway so that
it  would  not  constitute a hazard to other  vehicles.
Judge  Brown  refused  to give the requested  necessity
instruction.
          The  jury convicted Wall of driving under the
influence but acquitted him of driving with a suspended
license.

Whether  the evidence was sufficient to establish  that
Wall was operating the vehicle

          The actus reus of driving under the influence
is  operat[ing]  or  driv[ing]  a  motor  vehicle.   AS
28.35.030(a).  Because the jury acquitted Wall  of  the
separate  charge  of  driving  while  his  license  was
suspended, we will assume that the jury did not convict
Wall  of  DUI for the act of driving his motor  vehicle
while under the influence.  Rather, we assume that  the
jury  convicted Wall of DUI under the theory that  Wall
operated  the motor vehicle while under the  influence.
In  this context, operate means to have actual physical
control  of a vehicle.  Department of Public Safety  v.
Conley,  754  P.2d 232, 234 (Alaska 1988); Jacobson  v.
State, 551 P.2d 935, 938 (Alaska 1976).
          As explained above, when Erickson encountered
Wall,  Wall  was the sole occupant of the vehicle.   He
was  sitting  in the drivers seat, with his  seat  belt
buckled, and with the keys to the vehicle in his  hand.
Wall  told Erickson that he had just removed those keys
from the ignition.
          Moreover,  other  testimony  at  Walls  trial
(viewed  in  the light most favorable to upholding  the
jurys  verdict)  showed that Wall  and  Oder  had  been
trying  to  get the stalled vehicle started  with  Oder
standing outside the car, peering under the hood, while
Wall  sat in the drivers seat, turning the key  in  the
ignition to try to start the car.
          This  evidence  was  legally  sufficient   to
support a jury finding that Wall operated the vehicle.

Whether  the evidence was sufficient to establish  that
Walls vehicle was operable

          In Department of Public Safety v. Conley, our
supreme   court   held  that,  in   an   administrative
proceeding to revoke a persons drivers license based on
the  allegation  that  they exercised  actual  physical
control over a motor vehicle while under the influence,
a  license revocation is not proper unless the  vehicle
in question was operable or reasonably capable of being
rendered  operable at the time the defendant  exercised
control  over  it.2  We will assume,  for  purposes  of
deciding  Walls appeal, that the Conley requirement  of
operability  applies in criminal cases as  well  as  in
administrative license revocation proceedings.3
          Wall   argues  that  the  State   failed   to
establish  that  his  vehicle  was  operable,  or   was
reasonably  capable  of being rendered  operable,  when
Trooper  Erickson arrived at the scene.  In support  of
this  argument, Wall relies on the testimony  that  the
vehicle stalled when Oder executed an abrupt turn,  and
that  the  vehicle  would not start again  despite  the
efforts of Oder and Wall.
          We  have rejected similar arguments twice  in
the  past,  but neither of our decisions on this  point
were  published.   See  Axford v.  State,  Alaska  App.
          Memorandum Opinion No. 2429 (May 13, 1992), 1992 WL
12153171;   and  Blanche  v.  Anchorage,  Alaska   App.
Memorandum Opinion No. 3770 (March 11, 1998),  1998  WL
106156.  Now that this issue has arisen again, we  take
this  occasion  to review these past decisions  and  to
announce  our view on this point of law in a  published
decision.
          As explained above, our supreme court held in
Conley  that operability of the vehicle is a  necessary
component   of   the   governments   proof   when    an
administrative  action to revoke a drivers  license  is
based on the persons actual physical control of a  non-
moving  vehicle.  As its source for this interpretation
of the law, our supreme court cited the rule adopted in
a  criminal  case by the Washington Court  of  Appeals:
State v. Smelter, 674 P.2d 690, 693 (Wash. App. 1984).4
          The  Smelter  definition of operability  does
not require proof that the vehicle is currently capable
of being started and moved.  Rather, the requirement is
that  either the vehicle is currently operable or  that
it  is  reasonably capable of being rendered  operable.
Smelter,  674 P.2d at 693.  The Smelter court explained
that  this latter phrase, reasonably capable  of  being
rendered operable, was intended to distinguish
     
     a car that runs out of gas on a major freeway
     near  several exits and gas stations  from  a
     car  with  a cracked block, which renders  it
     totally inoperable.
     
     Id.   We  relied on this distinction in  both
     Axford and Blanche.
               In  Axford, the defendant drove his
     vehicle  off the roadway and it became  stuck
     in  a  snow  bank.  The defendant  then  made
     efforts  to re-start the car and to  free  it
     from  the  snow,  but he  succeeded  only  in
     draining  the battery, so that the car  could
     no  longer  start.   Based  on  these  facts,
     Axford  argued  that his car  was  no  longer
     operable when the police arrived.
               We    rejected   Axfords   argument
     because,  even  though his vehicle  could  no
     longer  be  started on its own,  the  vehicle
     remained reasonably capable of being rendered
     operable.  Referring to the distinction drawn
     by   the  Washington  Court  of  Appeals   in
     Smelter, we declared:
     
     Axfords  dead car was more analogous  to  the
     car  which had run out of gas than to the car
     with  the  cracked block.  We agree with  the
     [government]  that a car with a dead  battery
     is   reasonably  capable  of  being  rendered
     operable, because it may be jump-started with
     relative ease at the scene and then  sent  on
     its  way.  Accordingly, the [trial] court did
     not abuse its discretion in declining to give
     the  operability  instruction  [requested  by
     Axford].
     
     Axford,  Alaska App. Memorandum  Opinion  No.
     2429 at 8, 1992 WL 12153171 at *3.
          Similarly, in Blanche, we concluded
that  the  defendants vehicle was  reasonably
capable of being rendered operable because it
appears  that Blanche needed only a jump  and
perhaps  some gas to start the  car.   Alaska
App.  Memorandum Opinion No. 3770 at 4,  1998
WL 106156 at *1 (emphasis omitted).
          See also Kingsley v. State, 11 P.3d
1001,   1003-04  (Alaska  App.   2000)   (the
defendants    car   remained   operable    or
reasonably capable of being rendered operable
even though the car was stuck in the snow and
could   no   longer  be  moved  without   the
assistance  of towing equipment);  Lathan  v.
State,  707 P.2d 941, 943 (Alaska App.  1985)
(the  defendants car remained  operable  even
though  it was stuck in the mud and no longer
capable of movement under its own power).
          In  Walls  case, the  evidence  was
clear  that  Walls vehicle  had  been  moving
under  its  own  power until  shortly  before
Trooper Erickson found it.  All the witnesses
agreed that Walls vehicle had been driven  to
that place, and that the vehicle stalled when
Oder made an abrupt turn.  Both Oder and Wall
then  engaged in efforts to re-start the car.
These efforts were obviously premised on  the
belief that the vehicle remained operable (in
the  sense  of  reasonably capable  of  being
rendered operable) despite the fact  that  it
had stalled.
          As in Axford and Blanche, there was
no  indication  that Oders  execution  of  an
abrupt  turn  had  suddenly  rendered   Walls
vehicle permanently inoperable.  Rather,  the
evidence    indicated   that   the   vehicles
immobility  was  due  to  either  a   flooded
engine,  or  a  dead battery, or  both.   The
vehicle  therefore remained  operable  within
the meaning of Conley and Smelter.

Whether Wall was entitled to a jury instruction on the
defense of necessity

     The last issue in this appeal is whether Wall
was  entitled to a jury instruction on the defense
of necessity.
          When  Judge  Brown and the parties  discussed
jury  instructions, Walls attorney  proposed  that  the
jury  be  instructed on the defense of  necessity  with
respect  to Walls alleged act of operating the vehicle.
Walls  attorney claimed that Wall operated the  vehicle
only for the purpose of trying to move it off the road,
or  at  least out of the lanes of travel.  Judge  Brown
rejected the defense attorneys request.
          According  to  the testimony at trial,  Walls
vehicle  was stopped in the right-hand lane of  Bennett
Court,  about eight to ten feet from the traffic  lanes
of  Kalifornsky Beach Road.  Wall testified that he was
really  foggy about the details of the evening, but  he
remembered  that Kenny Oder was driving  his  car,  and
that the car stalled when Oder was turning the vehicle.
Oder got out of the vehicle, raised the hood, and tried
to  start  the vehicle (going back and forth  from  the
drivers  seat  to  the front of the car).   When  these
efforts proved unsuccessful, Oder yelled at Wall to get
into  the  drivers  seat and try to start  the  car  by
turning the ignition.
          Wall  testified  that, in response  to  Oders
request,  he got behind the wheel and, using the  keys,
he  tried  several times to start the car  but  without
success.   Wall then thought that they might  push  the
vehicle  off  the road (so that they would  not  impede
traffic  at the intersection), but Oder and  the  other
people  in  the vehicle all left the vicinity   leaving
Wall  in  sole  charge of the vehicle.  Wall  testified
that  when  Trooper  Erickson arrived,  he  (Wall)  was
sitting  in  the  drivers seat of  the  car  and  still
thinking about trying to push the car off the road.
          To  be  entitled  to  a jury  instruction  on
necessity, Wall had to show that, viewing the  evidence
in  the  light most favorable to him, it was reasonable
for  him  to  conclude  (1) that his  unlawful  act  of
operating  the  vehicle while under the  influence  was
performed to prevent a significant evil, and  (2)  that
there  was no adequate alternative course of action  to
prevent  this evil.  In addition, Wall had to establish
that the foreseeable harm created by his action was not
disproportionate to the foreseeable harm he was  trying
to avoid.5
          On  appeal, Wall argues that this test is met
because it was necessary for him to operate the vehicle
in  order to get the vehicle out of the roadway.   This
argument fails for three reasons.
          First,  when  Wall got behind the  wheel  and
started  cranking the ignition, Oder  was  still  there
and he could have operated the vehicle instead of Wall.
          Second, the chronology of events described by
Wall  does  not support a necessity defense.  According
to  Walls testimony, he operated the vehicle  that  is,
he  got behind the wheel and repeatedly turned the  key
in  the ignition  because he and Oder believed that the
          car could be started and then driven away.  It was only
after these attempts failed that Wall decided that they
should  push the vehicle off the road so that it  would
not  constitute a traffic hazard.  (As explained above,
Oder  and the other passengers left the scene at  about
this  time, and Wall  who was now alone in the  vehicle
never made any effort to get the vehicle off the road.)
          In  other  words, the asserted  necessity  to
move  the car off the roadway did not arise until  Wall
had already committed the offense.
          Furthermore, Wall did not testify  about  the
alternatives that were seemingly available to him.  For
instance, Wall did not discuss the possibility of using
flares  or  emergency blinkers to alert other motorists
to  the hazard.  In addition, Walls vehicle was stopped
less  than a quarter-mile from another road (Ciechanski
Road),  and there was also a bar (the Duck Inn) in  the
same  area.  But when Wall took the stand, he  did  not
discuss the possibility of going to the bar to call for
a  tow  truck, or (alternatively) flagging down another
motorist, or going to the bar to enlist someones aid in
pushing his vehicle off the road.
          For  these  reasons, we uphold  Judge  Browns
decision  not  to instruct the jury on the  defense  of
necessity.

Conclusion

          The  judgement  of  the  superior  court   is
AFFIRMED.

_______________________________
     1AS 28.35.030(n).

2Conley, 754 P.2d at 236.

3See  Kingsley  v.  State, 11 P.3d 1001, 1004  (Alaska  App.
2000);  Williams  v. State, 884 P.2d 167, 170  (Alaska  App.
1994), abrogated on other grounds by State v. Coon, 974 P.2d
386, 391 (Alaska 1999).

4See Conley, 754 P.2d at 236.

5Lacey v. State, 54 P.3d 304, 307 (Alaska App. 2002).

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