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.


Scharen v. State (3/18/2011) ap-2301

Scharen v. State (3/18/2011) ap-2301

                                               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 

DAVID J. SCHAREN, 
                                                            Court of Appeals No. A-10550 
                                Appellant,                  Trial Court No. 1JU-09-098 Cr 

                        v. 
                                                                    O   P  I  N  I  O  N 
STATE OF ALASKA, 

                                Appellee.                   No. 2301    -    March 18, 2011 

                Appeal from the District Court, First Judicial District, Juneau, 
                Keith B. Levy, Judge. 

                Appearances:     Margi A. Mock, Assistant Public Defender, and 
                Quinlan Steiner, Public Defender, Anchorage, for the Appellant. 
                Ann B. Black, Assistant Attorney General, Office   of   Special 
                Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, 
                Attorney General, Juneau, for the Appellee. 

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

                MANNHEIMER, Judge. 

                David J. Scharen appeals his conviction for driving under the influence. 

Scharen argues that the trial judge committed error by refusing to instruct the jury on the 

defense of "necessity".       For the reasons explained in this opinion, we conclude that the 

trial evidence fails to support a defense of necessity.         In particular, the evidence, even 

----------------------- Page 2-----------------------

when construed in the light most favorable to Scharen, fails to support the conclusion 

that Scharen had no reasonable alternative but to take control of a motor vehicle while 

intoxicated.   We therefore affirm Scharen's conviction. 

        Underlying facts 

                In January 2009, Scharen and his wife attended a Juneau Ski Club fund- 

raising event that was held at a downtown bar, the Viking Lounge.                (Scharen's wife's 

employer was a member of the ski club, and she was one of the people working at this 

fund-raiser.) 

                The Scharens arrived around 6:00 p.m., and over the course of the next 

hour, Scharen drank alcoholic beverages.          Around 7:00 or 7:30, Scharen began to fall 

asleep, so his wife told him to go outside and wait for her in their minivan until the fund- 

raiser was over.    Scharen's wife gave him the keys so he could get into the vehicle. 

                Scharen   left   the   Viking   Lounge   and   walked   to   the   minivan. When   he 

arrived at the vehicle, he got into the driver's seat, inserted the keys into the ignition, and 

started the engine (so that the vehicle would be warm; the outside temperature was 18 

degrees).   Scharen then deliberately went to sleep. 

                Around 9:00 p.m., a passerby saw Scharen sitting or lying unconscious in 

the driver's seat, inside the running vehicle.        When the passerby was unable to rouse 

Scharen, he summoned the police.           A police officer arrived and woke Scharen up by 

knocking on the window and shining a light into Scharen's eyes.  Scharen stumbled out 

of the minivan; he smelled of alcoholic beverages, and he swayed while standing.  The 

officer administered field sobriety tests to Scharen, and then he arrested Scharen for 

operating a motor vehicle under the influence. Scharen's breath test revealed that he had 

a blood alcohol level of .13 percent. 

                                                - 2 -                                           2301
 

----------------------- Page 3-----------------------

                 At trial, Scharen's lawyer asked the trial judge - District Court Judge 

Keith B. Levy - to instruct the jury on the defense of necessity.                 Judge Levy declined 

to give the proposed instruction because Scharen failed to present any evidence that he 

lacked reasonable alternatives to (1) leaving the bar, (2) deciding to sleep in the minivan, 

and (3) operating the vehicle's engine to stay warm.  Here is the pertinent part of Judge 

Levy's ruling: 

                         Scharen [has] failed to produce any evidence that [a] 
                 threat [of] imminent harm required him to leave the bar, go to 
                 his   car,   and  start   the  engine.  [The     immediate     difficulty 
                 confronting Scharen was that he] was falling asleep in the 
                bar.  But the theoretical social embarrassment caused by that 
                 situation did not create an emergency that required him to 
                 [assume control of a motor vehicle and] start the engine.  He 
                 was    not   stranded   in  a  vehicle   without   a   sober   driver   or 
                 [without] alternatives to starting the engine.          He was sitting 
                 in a warm bar in downtown Juneau.  To the extent that there 
                 was any ... threat [of] imminent harm [because of the cold 
                 weather] when Scharen left the bar and entered his vehicle, 
                 he created that situation [by leaving the bar and going to sit 
                 in the vehicle]. 

         Why   we   conclude   that   Scharen   failed   to   present   a   triable   issue   as   to 
        whether   his   decision   to   assume   control   of   the   motor   vehicle,   and   his 
        decision to operate this vehicle (by turning on the engine), were justified 
        by necessity 

                 A criminal defendant is entitled to a jury instruction   on   the   defense of 

necessity if the evidence, viewed in the light most favorable to the proposed defense, is 

sufficient to allow a reasonable fact-finder to conclude: (1) that the defendant committed 

the charged offense to prevent a significant evil; (2) that, given the circumstances (as the 

                                                   - 3 -                                              2301
 

----------------------- Page 4-----------------------

defendant reasonably perceived them), the defendant had no reasonable alternative - 

no adequate way to avoid this significant evil except by committing the charged offense; 

and    (3)   that  the   harm    threatened     or  caused     by   the  defendant's      crime    was   not 

disproportionate to the harm that the defendant sought to avoid by breaking the law. 

State v. Garrison, 171 P.3d 91, 94 (Alaska 2007). 

                 It is a question of law whether the trial evidence (viewed in the light most 

favorable to the proposed necessity defense) was sufficient to support a decision in the 

defendant's favor on each of these three elements.               In other words, an appellate court 

does   not   defer   to   the   trial   judge's   assessment   of   whether   the   evidence   was   legally 

sufficient to justify a jury instruction on the defense of necessity.              Rather, an appellate 

court decides this issue de novo.         Garrison, 171 P.3d at 94. 

                 Assuming   that   the   evidence   is   sufficient   to   support   a   decision   in   the 

defendant's favor on each of these three elements, Alaska law declares that the first two 

elements of the necessity test are to be decided by the finder of fact (i.e., the jury, unless 

the defendant has consented to a bench trial).            Alaska law does not yet provide a fixed 

answer to the question of whether the third element is to be decided by the fact-finder or, 

instead,   it   is   a   question   of   law   to   be   decided   by   the   judge   presiding   over   the   trial. 

Garrison, 171 P.3d at 95-97. 

                 To resolve Scharen's case, we need not resolve the question of whether the 

third element of the defense should be decided by the finder of fact or, instead, by the 

trial judge.    As was true in  Garrison, this issue is moot because the evidence was not 

legally sufficient to justify a decision in Scharen's favor on the elements of necessity. 

                 The first element is that the defendant committed the charged offense to 

prevent a significant evil.       Scharen argues that he faced a significant evil - injury or 

death because of the sub-freezing temperatures - if he sat in the unheated vehicle for 

hours.   But AS 11.81.320(a) declares that the defense of necessity is available only "to 

                                                   - 4 -                                               2301
 

----------------------- Page 5-----------------------

the extent permitted by common law".                And the common law (as   generally applied 

throughout this country) does not allow a defendant to rely on the defense of necessity 

if the underlying claim is that the defendant was required to break the law in order to 

avoid, cure, or alleviate a significant evil of their own making. 

                 As explained in Wayne   R. LaFave, Substantive Criminal Law (2nd ed. 

2003),  10.1(d)(6), Vol. 2, pp. 132-33, and in Paul H. Robinson, Criminal Law Defenses 

(1984),      123(a)   &   n.   2,   Vol.   2,   p.   30,   the   American   jurisdictions   that   recognize   a 

"necessity" or "choice of evils" defense are in general agreement that the defendant's 

creation of the danger or evil will limit the availability of the defense. There is, however, 

a split among the jurisdictions regarding the scope of this limitation. 

                 A   few   jurisdictions   declare   that   the   defense   of   necessity   is   simply   not 

available to a defendant who was at fault in creating the situation that allegedly required 

the defendant to break the law.  LaFave,  10.1(d)(6); Robinson,  123(a), n. 2. 

                 A more moderate approach - the approach reflected in  3.02(2) of the 

Model   Penal   Code   -   is   that   the   availability   of   the   necessity   defense   hinges   on   the 

defendant's level of culpability in creating the dangerous situation.  Under this approach, 

if the defendant knowingly brings about the dangerous situation, then the defendant can 

not rely on the defense of necessity to justify a criminal act designed to cure or alleviate 

the dangerous situation. 

                 (The Model Penal Code actually uses the term "intentional" to describe the 

culpable mental state denoting purposeful or deliberate conduct.                 The Alaska Criminal 

Code uses the word "knowing" to describe this culpable mental state.                      See Neitzel v. 

State, 655 P.2d 325, 326, 329-330 (Alaska App. 1982).) 

                 If, on the   other   hand, the defendant was  reckless in bringing about the 

dangerous situation, then the defendant   will be allowed to raise a necessity defense 

against a criminal charge that requires proof of intentional or knowing conduct, but will 

                                                   - 5 -                                              2301
 

----------------------- Page 6-----------------------

not be allowed to raise the defense against a charge that only requires proof of reckless 

or negligent conduct.      And if the defendant was merely negligent in bringing about the 

dangerous situation, then the defendant   will   be allowed to raise a necessity defense 

against a criminal charge that requires proof of intentional, knowing, or reckless conduct, 

but will not be allowed to raise the defense against a charge that only requires proof of 

negligent conduct.  LaFave and Robinson, supra. 

                Turning to the facts of Scharen's case, Judge Levy found that Scharen 

knowingly created the situation that allegedly required him to turn the vehicle's engine 

on.   As Judge Levy explained in his ruling, the testimony presented at Scharen's trial 

showed that Scharen was sitting in a warm bar, safe from the elements, and that Scharen 

then made a conscious decision to leave the bar and go sit in the minivan until his wife 

finished her work at the ski club fund-raiser. 

                We further note that Scharen's initial act of taking the keys from his wife 

and going to wait in the driver's seat of the minivan was itself illegal.             Even if Scharen 

had   never   started   the   engine,   his   act   of   assuming   physical   control   of  the   vehicle 

constituted the offense of "driving while under the influence" - because, for purposes 

of this offense, "driving" includes the act of assuming actual physical control of an 

operable motor vehicle, even if one does not operate the vehicle.  See Kingsley v. State, 

11 P.3d 1001, 1003 (Alaska App. 2000), where this Court held that a defendant was 

properly   convicted   of   driving   under   the   influence   when   the   defendant   was   the   sole 

occupant of the vehicle, he was sitting behind the steering wheel, and he had the keys to 

the vehicle in his pocket - even though the engine was not running and even though the 

defendant made no active attempt to start the engine. 

                Thus, Scharen's alleged necessity to turn the engine on (so that he could 

stay warm) was created by Scharen's own unlawful act of assuming physical control of 

the vehicle and waiting in the car for his wife. 

                                                  - 6 -                                             2301
 

----------------------- Page 7-----------------------

               Because, under Alaska law, the necessity defense is available only to the 

extent allowed by the common law, and because Scharen made a conscious choice to 

unlawfully put himself in a position where he would need to start the engine to keep 

warm, Scharen had no legal right to rely on a defense of necessity. 

               We expressly do not decide the precise extent to which a defendant's own 

fault in creating the dangerous situation will limit or bar the defendant from raising a 

defense of necessity.     Our holding is limited to the situation presented here, where the 

defendant knowingly created a situation that would require the defendant to engage in 

unlawful conduct. 

               Turning to the second element of the necessity defense, we conclude that 

Scharen likewise failed to present sufficient evidence to justify a verdict in his favor on 

this element of the defense - the requirement that, given the circumstances (as the 

defendant   reasonably   perceived   them),   the   defendant   had   no   reasonable   alternative 

method to avoid the significant evil except by committing the charged offense. 

               The pertinent circumstances were that Scharen went to sit in the minivan 

until his wife was done with the ski club fund-raiser, and it was so cold outside that 

Scharen could not realistically continue to sit in the vehicle unless he turned the engine 

on and generated heat.       But as Judge Levy noted, Scharen had several alternatives to 

continuing to sit in the minivan. 

               First, Scharen could have returned to the bar.         Scharen's only ostensible 

reason for leaving the bar in the first place was that he or his wife might potentially be 

embarrassed because Scharen was visibly falling asleep at the fund-raiser.                 The bar 

remained an easily available and adequate alternative solution to the problem of the cold 

weather. 

               Scharen points to trial testimony (from a police officer) indicating that it 

would have been unlawful for Scharen to stay in the bar.           According to this testimony, 

                                               - 7 -                                          2301
 

----------------------- Page 8-----------------------

it is a crime under Alaska law for a person to remain in a bar if the person is intoxicated. 

The officer was apparently referring   to   AS   04.16.040, which states that "a drunken 

person may not knowingly enter or remain on [licensed] premises". 

                 We are not sure whether the legislature intended this category of "drunken" 

persons to be construed as broadly as the category of persons who would be considered 

"under the influence" for purposes of Alaska's motor vehicle laws.  Moreover, as Judge 

Levy found, there is nothing in the evidence to suggest that Scharen's decision-making 

was   influenced   in   any   fashion   by   this   supposed   statutory   ban   on     the  presence   of 

intoxicated people in bars. 

                 When Judge Levy denied the proposed jury instruction on the necessity 

defense, he stated: 

                         Scharen      argue[s]   ...  that  he  had   to  leave   the   bar 
                 because[,] if he ... remained in the bar, he could have been 
                 charged   with   being   intoxicated   on   license[d]   premises   in 
                 violation of AS 04.16.040.  But in ... Scharen's statements to 
                 [the police officer], Scharen is heard to insist repeatedly that 
                 he was not under the influence and that he had consumed 
                 only two drinks.      Therefore, the evidence does not indicate 
                 that [Scharen] believed [that] he [would   be] committing a 
                 crime by remaining in the bar. 

                 Although Judge Levy's finding refers only to Scharen's statements to the 

police officer at the scene, we also note that when Scharen took the stand at his trial, 

explaining   his   actions   and   decisions,   he   never   referred   to   this   supposed   ban   on   the 

presence of intoxicated people in bars.           Much less did Scharen state (or even suggest) 

that his decisions and actions in this case were premised on this supposed statutory ban. 

                 According to Professor LaFave's Substantive Criminal Law,  10.1(d)(3), 

Vol. 2, pp. 125-26, a claim of necessity can not be premised on a necessity that was 

                                                   - 8 -                                              2301
 

----------------------- Page 9-----------------------

perceived only after the fact.      A defendant who advances a claim of necessity must 

present evidence that they acted  with the subjective intention of avoiding, curing, or 

alleviating aperceived evil. It is not enough for the defendant to show, after the fact, that 

an actual necessity existed, and that this necessity would have justified the defendant in 

breaking the law if the defendant had known about it.  If the defendant did not perceive 

the competing evils, and if the defendant broke the law without making a conscious 

choice among these competing evils, then the necessity defense is unavailable to the 

defendant.  Ibid. 

               That is the situation in Scharen's case.   There is no evidence that Scharen 

believed (at the time) that he was legally obliged to leave the bar, or that, having once 

left the bar, he was legally banned from returning.   This supposed statutory ban played 

no part in his decision-making or his actions.     Accordingly, under the law as described 

in LaFave, Scharen would be unable to rely on the argument that he was prohibited by 

statute from remaining in (or returning to) the Viking Lounge. 

               But see the discussion of this point in Robinson's Criminal Law Defenses, 

 122, Vol. 2, pp. 12-29, where Professor Robinson questions the fairness of denying a 

necessity defense to a person whose conduct,   viewed objectively and after the fact, 

turned out to be appropriate. 

               We need not decide this issue - because, even if we assume that Scharen 

could not lawfully stay in the bar, there were other ways he might have dealt with the 

situation.   It was early in the evening, and other businesses and restaurants were open in 

downtown Juneau.      Alternatively, Scharen might have asked a friend or other member 

of the ski club to drive him home, or to lend him the money to take a cab.          It appears, 

from Scharen's testimony, that he did not even consider these alternatives.         Here is the 

pertinent   excerpt   of  Scharen's  cross-examination     by  the  prosecutor,   in  which  the 

prosecutor asked Scharen why he had not taken a cab home: 

                                             - 9 -                                         2301
 

----------------------- Page 10-----------------------

                        Prosecutor :    So, Mr. Scharen, you indicated that you 
                had credit cards on you, but that you didn't have any [credit 
                remaining] on them? 

                        Scharen:      No, there [was] nothing on them. 

                        Prosecutor :    So, as a matter of personal convenience, 
                you couldn't have called a taxicab to go home? 

                        Scharen:      No. 

                        Prosecutor :    [You] couldn't have called a friend? 

                        Scharen:  Not really. I mean, why would I call a friend 
                when I was waiting for my wife? 

                Based on this record, we conclude that no reasonable fact-finder could have 

decided   in   Scharen's   favor   on   the   question   of   whether   Scharen   had   other   adequate 

methods (apart from breaking the law) to deal with the situation. 

                Because there was insufficient evidence to support findings in Scharen's 

favor on the first and second elements of necessity, the third element of the necessity 

defense is moot.      The question presented by this third element -   whether the harm 

threatened or caused by the defendant's crime was disproportionate to the harm that the 

defendant sought to avoid by breaking the law - does not arise unless the evidence 

would   support   a   finding   in   the   defendant's   favor   on   the   first   two   elements   of   the 

necessity defense. 

                For these reasons, we uphold Judge Levy's decision not to instruct the jury 

on Scharen's proposed necessity defense. 

                                                 -  10 -                                           2301
 

----------------------- Page 11-----------------------

Conclusion 

       The judgement of the district court is AFFIRMED. 

                                    -  11 -                                       2301
 
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