Made available by Touch N' Go Systems, Inc. and
This was Gottstein but needs to change to what?
406 G Street, Suite 210, Anchorage, AK 99501
(907) 274-7686 fax 274-9493

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.


Wagner v. State (1/27/2017) ap-2533

Wagner v. State (1/27/2017) ap-2533

                                                                                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@ akcourts.us  



                             IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                      



RICHARD  LAVERNE  WAGNER  JR.,  

                                                                                                       Court of Appeals No. A-11682  

                                                                                                                                                  

                                                      Appellant,                                    Trial Court No. 3AN-11-9522 CR  

                                                                                                                                                                



                                         v.  

                                                                                                                    O  P  I  N  I  O  N  

                                                                                                                                                  

STATE OF ALASKA,  

                      



                                                      Appellee.                                         No. 2533 - January 27, 2017  

                                                                                                                                                         



                           Appeal           from  the   Superior   Court,  Third  Judicial   District,  

                                                                                                                                   

                           Anchorage, Larry D. Card, Judge.  

                                                                               



                           Appearances:                  Kevin Higgins,  under  contract  with the  Public  

                                                                                                                                        

                           Defender   Agency,   and   Quinlan   Steiner,   Public   Defender,  

                                                                                                                                

                           Anchorage, for the Appellant.   Timothy  W.  Terrell, Assistant  

                                                                                                                                   

                           Attorney General, Office of Criminal Appeals, Anchorage, and  

                                                                                                                                              

                           Craig W. Richards, Attorney General, Juneau, for the Appellee.  

                                                                                                                                                       



                           Before:  Mannheimer, Chief Judge, Allard, Judge, and Suddock,  

                                                                                                                                    

                           Superior Court Judge.*  

                                                                         



                                        

                           Judge MANNHEIMER.  



       *      Sitting    by   assignment   made   pursuant   to   Article   IV,   Section   16   of   the   Alaska  



Constitution and Administrative Rule 24(d).                              


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

                                                                                                                            

                    In the early morning of August 23, 2011, Richard Laverne Wagner Jr. came  



                                                                                                                          

to the end of a street, failed to stop, and drove his van into a tree.                                   When the police  



                                                                                                                 

arrived, Wagner told the officers that he had recently dropped off some out-of-town  



                                                                                                                          

relatives at their hotel, and that he had then taken some medications and started driving  



                                                                                                                     

home. Wagner told the officers that, when he came to the end of the street, he attempted  



                                                                                                            

to apply his brakes, but he mistakenly pressed the accelerator instead.  



                                                                                                                                

                    Later, however, Wagner changed his story:  he told the police that all he  



                                                                                                                         

remembered was being in his home, and then the next thing he remembered was striking  



              

the tree.  



                                                                                                                        

                    Because Wagner admitted drinkingand smokingmarijuana, he was arrested  



                                                                                                                                 

for driving under the influence.  His breath test showed a blood alcohol concentration of  



                                                                                                                                

.066 percent  -  below  the  legal limit.                       Wagner then consented to a blood test.                           A  



                                                                                                                      

subsequent chemicalanalysis of Wagner's blood showed that he had consumed zolpidem  



                                                                                                                            

-  a  sedative  that  was  originally  sold  under  the  brand  name  Ambien,  and  is  now  



                                                          

available under several brand names.  



                                                                                                                                

                    Wagner was charged with driving under the influence and driving while his  



                                  

license was revoked.  



                                                                                                                          

                    At Wagner's trial, his defense attorney elicited testimony (from the State's  



                                                                                                                                

expert witness) that one of the potential side effects of zolpidem is "sleep-driving" -  



                                                                                          

i.e., driving a vehicle without being conscious of doing so.  



                                                                                                                              

                    During the defense case, Wagner took the stand and testified that he had  



                                                                                                                                     

been  at  home watching television,  and then he took his medication and fell asleep.  



                                                                                                                              

According to Wagner, the next thing he remembered was waking up when he hit the tree  



                                                                                                                         

and his air bag deployed.  Wagner asserted that he remembered nothing about getting  



                                                    

into a motor vehicle and driving.  



                                                              - 2 -                                                          2533
  


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

                                                                                                                                

                     Based on this testimony, Wagner's attorney asked the judge to instruct the  



                                                                                                                           

jury  that the State was required to prove that Wagner consciously drove the motor  



                                                                                                                                      

vehicle.   More specifically, Wagner's attorney asked the judge to give this instruction:  



                       

                                                                                                              

                     If   you  find  that  [Wagner]  was  under  the  effects  of  a  

                                                                                                         

                     prescription medication, [and] that he was not aware of those  

                                                                                                            

                     effects  when  he  consumed  the  medication,  and  that  he  

                                                                                                               

                     performed an otherwise criminal act while unconscious as a  

                                                                                                        

                     result of this medication, [then] you must find him not guilty  

                                                    

                     of that criminal act.  



                                                                                                                             

                     The trial judge rejected this proposed instruction because the judge ruled  



                                                                                                                           

that, if Wagner voluntarily  took the medication, then Wagner could be found legally  



                                                                                                                                

responsible for what ensued, even if he was not consciously driving at the time of the  



            

crash.  



                                                                                                                              

                     But even though the judge declined to instruct the jury on Wagner's view  



                                                                                                                                

of the law, the judge did not instruct the jury on his view of the law either.  Instead, the  



                                                                                                                               

judge  simply  gave  the  jury  instructions  on  (1)  the  definition  of  driving  under  the  



                                                                                    

influence and (2) the definition of acting "knowingly".  



                                                                                                                         

                     When the attorneys delivered their summations to the  jury, the defense  



                                                                                                                        

attorney argued that Wagner had not "knowingly" driven his motor  vehicle because  



                                                                                                                                

Wagner had been sleep-driving under the influence of the zolpidem.   In rebuttal, the  



                                                                                                                            

prosecutor argued that Wagner's ability to carry on detailed conversations with the police  



                                                                                                                                  

showed that he had not been sleep-driving.  But the prosecutor also argued that even if  



                                                                                                                                 

Wagner had been sleep-driving, Wagner still "knowingly" drove the motor vehicle.  In  



                                                                                                                               

support of this last argument, the prosecutor relied on the concludingsentence of the jury  



                                                                                                                               

instruction on "knowingly":   "A person who is unaware of conduct ...  of which the  



                                                               - 3 -                                                          2533
  


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

                                                                                                                          

person would have been aware had he not been intoxicated acts knowingly with respect  



                               

to that conduct[.]"  



                                                                                                                               

                    The jury convicted Wagner of both charges, and Wagner then filed this  



               

appeal.  



                                                                                                                             

                    Wagner's  primary  claim  on  appeal is  that  the  jury  should  have  been  



                                                                                                                              

instructed along the lines that Wagner's attorney proposed - i.e., that if Wagner was  



                                                           

sleep-driving, he should be acquitted.  



                                                                         

          The correct categorization of Wagner's claim  



                                                                                                                             

                    Although the attorneys and the judge at Wagner's trial discussed this issue  



                                                                                                                                

in terms of  mens rea -  i.e., whether Wagner acted "knowingly" when he drove the  



                                                                                                                     

motor  vehicle  -  Wagner's  appellate  attorney  correctly  recognizes  that  Wagner's  



                                                                                                                                

proposed defense was actually a claim that Wagner could not be held responsible for the  



                                                                                                                                      

actus reus of driving.  Wagner does not claim that his act of driving was "unknowing".  



                                                                                            

Rather, he claims that his act of driving was "involuntary".  



                                                                                                                         

                    Normally, a person can not be held criminally responsible for their conduct  



                                                                                                                                  

unless they have engaged in a voluntary act or omission.   The term "voluntary act" is  



                                                                                                                             

defined in AS 11.81.900(b)(66) as "a bodily movement performed consciously as a result  



                                                                                                                               

of effort and determination".   As we explained in Mooney v. State, 105 P.3d 149, 154  



                                                                                                                    

(Alaska App.  2005),  the criminal law defines "voluntary act" as a willed movement  



                                                                                                               

(or a willed refraining from action) "in the broadest sense of that term".  



                                                                                                                                  

                    But  as  we  are  about  to  explain,  a  voluntary  act  is  not  necessarily  a  



                                                                                       

"knowing" act, as that term is used in our criminal code.  



                                                               - 4 -                                                          2533
  


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

                      Many criminaloffenses                  require proof         of a particular type of conduct -                    e.g.,  

delivering a controlled substance to another person,                                 1                                                  

                                                                                       or warning a fugitive felon of their  

                                                               2  When a crime is defined this way, there will be  

                                                                                                                                           

impending discovery or apprehension.  



circumstances when a defendant's willed actions (their  "voluntary" acts) will fit the  

                                                                                                                                          



statutory definition of the prohibited conduct, but the defendant will not have been aware  

                                                                                                                                     



that they were engaging in this defined type of conduct.  

                                                                                              



                      For instance, a mail carrier or other delivery person may deliver a letter or  

                                                                                                                                            



package  without  knowing that  it  contains  a  controlled  substance.                                              Or  someone  (a  

                                                                                                                                           



neighbor or a news reporter, for example) may unwittingly say or do something that tips  

                                                                                                                                          



off a fugitive felon to their impending discovery or apprehension.  In these instances, the  

                                                                                                                                          



person  will have  performed  a  "voluntary  act",  but  they  will  not  have  "knowingly"  

                                                                                                                          



engaged in the conduct specified in the statute.  

                                                                              



                      This is not the kind of  defense that Wagner wished to raise at his trial.  

                                                                                                                                                 



Wagner's attorney did not argue that, even though Wagner knew he was engaging in  

                                                                                                                                            



some form of action, Wagner somehow remained unaware that, by his actions, he was  

                                                                                                                                         



putting a motor vehicle into operation.  

                                                                  



                      Rather than raisinga defense of "unknowing" conduct, the defense attorney  

                                                                                                                                  



argued  that  Wagner  did  not  engage  in  any  conscious  action  -  that  Wagner  was  

                                                                                                                                        



essentially asleep, and that he was unaware that he was engaged in activity of any kind.  

                                                                                                                                                 



This was a claim of involuntariness.  

                                                             



      1    See,  e.g., AS 11.71.030(a)(1).                  



      2  

                                                    

           See AS 11.56.770(b)(2).  



                                                                    - 5 -                                                               2533
  


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

                         Why we reverse Wagner's conviction                                                            



                                                In  State v. Simpson                                               , 53 P.3d 165 (Alaska App. 2002), this Court recognized                                                                                                    



that even though the voluntariness of a defendant's                                                                                                                                             conduct   is rarely disputed,                                                                           the  



requirement   of   a   voluntary   act   is   "an   implicit   element   of   all crimes".                                                                                                                                                                              Thus,   "[i]f  



voluntariness is actively disputed, the government must prove it."                                                                                                                                                                        53 P.3d at 169.                                               



                                                The criminal law's concept of involuntariness includes instances where a                                                                                                                                                                                        



defendant    is    rendered    unconscious    by    conditions    or    circumstances    beyond    the  



defendant's control, if the defendant neither knew nor had reason to anticipate this result.                                                                                                                                                                                                                            



See  Wayne R. LaFave,                                                            Substantive Criminal Law                                                                       (2nd ed. 2003), 9.4 ("Automatism"),                                      



Vol. 2, pp. 32-37.                                                 



                                                Compare  Solomon v. State                                                                     , 227 P.3d 461, 467 (Alaska App. 2010), where                                                                                                   



this   Court ruled that defendants charged with driving under the influence can raise a                                                                                                                                                                                                                        



defense of "unwitting intoxication" if the defendant made "a reasonable, non-negligent                                                                                                                                                                              



mistake   concerning   the   intoxicating   nature   of   the   beverage   or   substance   that   they  



ingested".    



                                                Having considered these authorities, as well as other authorities cited in the                                                                                                                                                                           

                                               3  we conclude Wagner would have a valid defense to the charges of driving  

 State's brief,                                                                                                                                                                                                                                                                             



under the influence and driving with a revoked license if (1) he took a prescription dose  

                                                                                                                                                                                                                                                                                                    



of zolpidem, (2) he was rendered unconscious by this drug and engaged in sleep-driving,  

                                                                                                                                                                                                                                                                     



and (3) he neither knew nor had reason to anticipate that the drug would have this effect.  

                                                                                                                                                                                                                                                                                                                        



                                                The State argues that even if  Wagner articulated a valid involuntariness  

                                                                                                                                                                                                                                                               



defense (meaning that the trial judge was wrong when he ruled that Wagner's proposed  

                                                                                                                                                                                                                                                                                   



            3           People v.Holloway                                                 ,78 Cal.Rptr.3d770,782-83 (Cal.App. 2008);                                                                                                               People v. Mathson                                               ,  



 149 Cal.Rptr.3d 167, 191-93 (Cal. App. 2012);                                                                                                                        People v. Garcia                                              , 113 P.3d 775, 780-82                                 

(Colo. 2005);                                   State v. Newman                                           , 302 P.3d 436, 440-43 (Or. 2013).                                                                                        



                                                                                                                                                   - 6 -                                                                                                                                              2533
  


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

                                                                                                                            

defense  was  legally  invalid),   Wagner   should  still  be  procedurally  barred  from  



                                                                            

challenging the trial judge's ruling in this appeal.  



                                                                                                                               

                     First, the State argues that Wagner's request for a jury instruction on this  



                                                                                                                                 

issue was untimely.   More specifically, the State contends that  Wagner's defense of  



                                                                                                                              

involuntariness  falls  within  the  mandate  of  Alaska  Criminal Rule  16(c)(5);  this  rule  



                                                                                                                               

declares that defendants must notify the State in advance of trial if they "[intend] to rely  



                                                                                                                    

upon a defense of alibi, justification, duress, entrapment, or other statutory or affirmative  



                 

defense."  



                                                                                                                              

                     In its brief, the State offers a lengthy and complicated argument as to why  



                                                                                                                    

the  defense  of  involuntariness  should  be  deemed  to  fall  within  Rule  16(c)(5)'s  



                                                                                                                                 

designation of "statutory or affirmative" defenses.  But we need not resolve this issue of  



                                                                                                                                

statutory interpretation, because the prosecutor at Wagner's trial never argued that the  



                                                                                                                                

State was prejudiced by any lack of notice.  And, in any event, Wagner's trial judge did  



                                                                                                                          

not rely on the issue of timeliness when he rejected Wagner's proposed defense.  Rather,  



                                                                                                                    

the trial judge reached the merits of Wagner's proposed defense: he ruled - mistakenly  



                                                                                        

- that Wagner's defense was invalid as a matter of law.  



                                                                                                                        

                     Given these circumstances, we will not cut off Wagner's right of appellate  



                                                                                                                               

review simply because he arguably failed to comply with Criminal Rule 16(c)(5).  See  



                                                                                                                                   

generally Grimmett v. University of Alaska, 303 P.3d 482, 486 n. 9 (Alaska 2013).  



                                                                                                                                  

                     In Abruska v. State , 705 P.2d 1261, 1271-72 (Alaska App. 1985), and in  



                                                                                                                               

Morgan v. State, 661 P.2d 1102, 1103 n. 1 (Alaska App. 1983), we held that when a trial  



                                                                                                                            

court allows a defendant to raise an untimely challenge to an indictment - that is, when  



                                                                                                                   

the trial court  overlooks the untimeliness and reaches the merits of the defendant's  



                                                                                                                                      

challenge - then an appellate court should not reject the claim on forfeiture grounds.  



                                                                                                                               

We apply that same rule here.  Even assuming that the State is correct in arguing that  



                                                               - 7 -                                                          2533
  


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

                                                                                                                              

Wagner  was  required  to  raise  his  involuntariness  defense   before  trial,  we  will  



                                                                                                                      

nevertheless review the trial judge's ruling on the merits of Wagner's claim.  



                                                                                                                                

                    The  State  next  argues  that  Wagner  failed  to  preserve  his  claim  of  



                                                                                                                                

involuntariness because Wagner's attorney presented no expert testimony to support the  



                                                                                                                              

assertion that Wagner was sleep-driving as a result of his ingestion of zolpidem.   But  



                                                                                                                         

given the trial judge's ruling (during the State's case-in-chief) that this proposed defense  



                                                                                                                         

was legally invalid, it is unclear why Wagner's attorney should be expected to present  



                                                 

expert testimony on this issue.  



                                                                                                                          

                    One might argue that the trial judge would have  acted within his proper  



                                                                                                                        

authority if he had rejected Wagner's proposed defense because the defense attorney  



                                                                                                                        

failed to give pre-trial notice of any expert testimony to support it.  See Alaska Criminal  



                                                                                                                                      

Rule 16(c)(4).  But again, the prosecutor did not object on the ground of lack of notice.  



                                                                                                                    

And the State's own expert (a forensic chemist from the Washington State Toxicology  



                                                                                                                                 

Laboratory) admitted on cross-examination - without objection from the prosecutor -  



                                                                            

that zolpidem can cause a person to sleep-drive.  



                                                                                                                               

                    The  State  also  faults  Wagner  for  failing to  offer  any  evidence  on  the  



                                                                                                                             

question  of whether Wagner personally was on notice that zolpidem might have such  



                                                                                                                               

side effects.  But again, the judge had already ruled (before Wagner took the stand) that  



                                                                                            

the proposed involuntariness defense was not legally valid.  



                                                                                                                            

                    The  State's  final  argument  on  appeal  is  that,  even  if  the  trial  judge  



                                                                                                                                

improperly prevented Wagner's attorney from presentingan involuntariness defense, this  



                                                                           

error was harmless beyond a reasonable doubt.  



                                                                                                                               

                    The State points to the significant inconsistencies between Wagner's trial  



                                                                                                                            

testimony and the earlier account of events that Wagner offered to the police at the scene  



                                                                                                                                

and  following  his  arrest.                According  to  the  State,  these  inconsistencies  were  so  



                                                               - 8 -                                                          2533
  


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

                                                                                                                           

substantial that no juror could reasonably  have  thought there was a possibility that  



                                          

Wagner was sleep-driving.  



                                                                                                                        

                    The  State  is  correct  that  the  evidence  at  Wagner's  trial offered  many  



                                                                                                                     

reasons to doubt Wagner's claim of sleep-driving.  But as we have explained, Wagner  



                                                                                                                             

took the stand  and  testified that (1) he took zolpidem and (2) he had no memory of  



                                                                                                                             

events between the time he began feeling drowsy at home and the time he awoke in his  



                                                                                                                  

vehicle with the air bag deploying.  It was up to the jury to decide whether Wagner's  



                                                                                         

testimony created a reasonable doubt as to whether he was sleep-driving.  



                                                                                                         

                    We therefore reject the State's harmless error argument.  



          Conclusion  



                                                                                                   

                    The judgement of the superior court is REVERSED.  



                                                             - 9 -                                                        2533
  

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