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Frankson v. State (8/17/2012) ap-2368

Frankson v. State (8/17/2012) ap-2368

                                               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
 

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               IN THE COURT OF APPEALS OF THE STATE OF ALASKA 



TANYA FRANKSON,                                 ) 

                                                )         Court of Appeals No. A-10483 

                           Appellant,           )         Trial Court No. 2KB-08-544 CR 

                                                ) 

             v.                                 ) 

                                                )                  O P I N I O N 

STATE OF ALASKA,                                ) 

                                                ) 

                           Appellee.            ) 

                                                )             No. 2368 - August 17, 2012 



                Appeal from the Superior Court, Second Judicial District, 

                Kotzebue, Richard H. Erlich, Judge. 



                Appearances: David D. Reineke, Assistant Public Defender, and 

                Quinlan Steiner, Public Defender, Anchorage, for the Appellant. 

                Timothy     W.   Terrell,  Assistant   Attorney    General,   Office   of 

                Special    Prosecutions    and   Appeals,   Anchorage,     and   John  J. 

                Burns, Attorney General, Juneau, for the Appellee. 



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

                Judges. 



                BOLGER, Judge. 



                Tanya Frankson was convicted of two counts of third-degree assault and 



one count of failing to render assistance following an accident. The State's witnesses 



testified that Frankson drove a four-wheeler toward two women, hitting one woman and 


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

frightening the other. Frankson's defense was that the two women were punching her, 



and that the accident occurred when she was trying to get away from them. On appeal, 



Frankson argues that the trial judge should have instructed the jury on the affirmative 



defense of necessity. But we decline to review Frankson's claim because Frankson's 



attorney clearly told the trial judge that the jury should not be instructed on this defense. 



       Background 



               Tanya     Frankson    was   driving   a  four-wheeler    while   looking   for  her 



boyfriend,   Adam   Tooyak.   She   found   Tooyak   at   the   home   of   Shanna   Nash.   When 



Frankson arrived at Nash's, she was upset because Nash "was drinking with [her] man." 



Frankson began yelling at Tooyak and struck him repeatedly. Tooyak decided to leave, 



but Frankson grabbed his truck's window frame and tried to hold on as he began to drive 



away. 



               At trial, Nash and her friend Helen Lane testified that they were outside of 



the   house   watching   the   argument   between   Frankson   and   Tooyak.   When   Frankson 



returned to the house, she climbed on her four-wheeler and started to drive away. After 



traveling a short distance down the road, Frankson turned the four-wheeler around and 



drove straight at Nash and Lane, hitting Nash, knocking her down, and running over the 



left side of her body. Lane was able to move out of the way and barely avoided being 



struck. After running over Nash, Frankson drove away without stopping. 



               Nash's mother and Brett Oktollik, who was across the street during the 



incident, both gave testimony corroborating much of Nash's and Lane's testimony. All 



of the witnesses agreed that nobody attacked Frankson or attempted to prevent her from 



leaving. 



                                                2                                           2368
 


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

                 After   Frankson   left   Nash's   house,   she   drove   home.   The   next   day,   she 



contacted the police to tell "her side of the story so that it would be fair." Frankson's 



conversation was recorded and the prosecutor played the recording at trial. Frankson told 



the officer that she was four months pregnant and that she was trying to get away from 



Nash and Lane because they were "trying to beat [her] up." She stated that hitting Nash 



was an accident because she was "blinded" by the women grabbing her hair and hitting 



her in the face. She "did a circle" and accidently "shoved [Nash's] hip and made her 



f[a]ll down." When the officer asked why she did not report the incident the previous 



night, Frankson stated that it was because she was frustrated and wanted to get some 



sleep. 

                 Frankson was charged with third-degree assault for striking Nash,1 with 



                                                     2 

third-degree assault for frightening Lane,  and with failing to render assistance to an 

injured person after an accident.3 



                 Prior to trial, the State filed a motion in limine seeking to prevent Frankson 



from asserting the affirmative defenses of necessity or self-defense at trial. At a pre-trial 



hearing on the motion, Frankson's attorney denied that Frankson intended to assert a 



necessity defense. Instead, the attorney stated that Frankson's defense was that she was 



just trying to flee, and that the collision was an accident. But despite the attorney's 



position, the trial judge concluded that a necessity instruction should be given to the jury. 



                 Following presentation of the State's case at trial, the prosecutor renewed 



her request that the necessity instruction be removed from the jury instructions, claiming 



     1    AS 11.41.220(a)(1)(A). 



    2     AS 11.41.220(a)(1)(B). 



    3     AS 28.35.060. 



                                                     3                                                  2368 


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

that Frankson had not established the necessary elements for that defense. In response, 



the defense attorney initially stated that he thought Frankson's recorded statement was 



sufficient to support the instruction. 



                 The    prosecutor      then   asserted    that  Frankson     had    not  established     her 



entitlement to a necessity instruction because she did not admit that she believed there 



was   no   alternative   to   violating   the   law.   The   judge   then   asked   the   defense   attorney, 



"[W]here do you want to go [with this instruction]?" The attorney said, "Your honor, I'll 



have to agree with the state. [Frankson] made no admissions that she violated the law ... 



which is a crucial element of ... necessity." (We do not endorse the parties' description 



of the necessity defense.) 



                 The judge   then specifically asked whether he should take the necessity 



instruction out of the instruction packet, and the defense attorney answered, "Yes." The 



defense   then     rested   its  case   without   presenting     any   evidence.   The     jury   convicted 



Frankson of all three charges. 



        Discussion 



                 If Frankson had requested the instruction on the necessity defense, then she 



would have been required to prove three elements: "(1) [t]he act charged must have been 



done to prevent a significant evil; (2) there must have been no adequate alternative; (3) 



                                                                                              4 

the harm caused must not have been disproportionate to the harm avoided."  On appeal, 



Frankson argues that she established "some evidence" of each of these elements, and that 



    4     Greenwood  v.   State,   237   P.3d   1018,   1022   (Alaska   2010)   (alteration   in   original) 



(quoting Cleveland v. Anchorage, 631 P.2d 1073, 1078 (Alaska 1981)). 



                                                      4                                                  2368 


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

                                                                                                       5 

the court committed plain error when it did not instruct the jury on this defense.  The 



State asserts that Frankson voluntarily chose not to pursue the necessity instruction and 



has waived this claim entirely. 



                 Under Alaska Criminal Rule 30(a), a party does not preserve a claim of 



error relating to a jury instruction unless the party requests the instruction in the trial 

court and distinctly states the grounds for his or her request.6   If a jury instruction claim 



is   not   properly   preserved,   the   defendant   must   show   plain   error.7     Plain   error   review 



applies to a jury instruction issue when a party "remains silent, failing to object to an 

alleged error, and then urges the error on appeal."8 



                 However, the separate doctrine of "invited error" applies when the trial 

court takes erroneous action at the request of the party claiming error on appeal.9 The 



Alaska Supreme Court has held on several occasions that an appellant may not rely on 



an   error   in   the   jury   instructions   when   the   party   invites   the   error   by   agreeing   to   the 



    5   See generally State v. Garrison , 171 P.3d 91, 94   (Alaska 2007) ("A defendant is 



entitled to a jury instruction on the necessity defense if [they] present 'some evidence' in 

support of that defense."). 



    6    Alaska R. Crim P. 30(a) provides in part, "No party may assign as error any portion 



of the charge or omission therefrom unless the party objects thereto before the jury retires to 

consider its verdict, stating distinctly the matter to which the party objects and the grounds 

of the objections." 



    7    See Willis v. State, 57 P.3d 688, 694 (Alaska App. 2002); see also Alaska R. Crim. 



P. 47(b). 



    8    Barrett v. State, 772 P.2d 559, 568 n.10 (Alaska 1989). 



    9    Id. (indicating that an appellate court may decline to consider an "invited error" even 



if the error would otherwise qualify as plain error). 



                                                       5                                                 2368
 


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

instructions at trial.10 Where an error is invited, this court "examines the error to see if 



there is an exceptional situation where reversal is necessary to preserve the integrity of 

the judicial process or to prevent a miscarriage of justice."11 



                In Frankson's case, the defense attorney affirmatively told the judge that 



the   necessity   instruction   should   be   removed   from   the   jury   instruction   packet.   Thus, 



Frankson did not simply fail to preserve her claim - her attorney actively told the judge 



that the necessity instruction should not be given to the jury. We must therefore review 



the trial record to determine whether this case involves an exceptional situation where 



we are required to reverse an invited error. 



                We note that, in final argument, Frankson's attorney argued that Frankson 



was afraid because Nash and Lane were punching her, and that Frankson ran over Nash 



accidentally as she was trying to get away. He argued that the State had not proven that 



Frankson knew she had been in an accident and, because Frankson was being threatened, 



she was not required to stop to render aid. 



                Despite the decision by Frankson's attorney to forgo an instruction on the 



necessity defense, he was able to argue to the jury that Frankson's conduct was justified 



    10  See Power Constructors, Inc. v. Taylor & Hintze, 960 P.2d 20, 32-34 (Alaska 1998) 



(holding that the plaintiff waived its claim of error when it endorsed a modification to the 

jury instructions following final arguments); Aviation Assocs., Ltd. v. TEMSCO Helicopters, 

Inc ., 881 P.2d 1127, 1131-32 (Alaska 1994) (holding that a party cannot complain of errors 

in jury instructions after it advocates for the disputed language at trial); Ben Lomond, Inc. v. 

Campbell,      691   P.2d  1042,   1048    (Alaska   1984)   (rejecting   defendant's    appeal   of  jury 

instructions that it had approved at trial); Saxton v. Harris, 395 P.2d 71, 72-73 (Alaska 1964) 

(ruling that the party who drafts inconsistent jury instructions cannot complain about the 

inconsistency on appeal). 



    11  Roderer v. Dash , 233 P.3d 1101, 1114 (Alaska 2010) (quoting Parson v. State, Dep't 



of Revenue, Alaska Hous. Fin. Corp., 189 P.3d 1032, 1038 (Alaska 2008)) (internal quotation 

marks omitted). 



                                                    6                                               2368
 


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

because     she   was   threatened    with   physical    injury.  Under    these   circumstances,      we 



conclude that the trial court's failure to give the necessity instruction did not create an 

"exceptional situation" where reversal is necessary to prevent a miscarriage of justice.12 



        Conclusion 



                We therefore AFFIRM the superior court's judgment of conviction. 



    12  Id. 



                                                    7                                               2368
 

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