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Forsythe v. State (1/27/2017) ap-2535

Forsythe v. State (1/27/2017) ap-2535

                                                                                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                                                      



NICHOLAS  FORSYTHE,  

                                                                                                        Court of Appeals No. A-11871  

                                                                                                                                                   

                                                       Appellant,                                    Trial Court No. 4FA-12-3374 CR  

                                                                                                                                                                



                                         v.  

                                                                                                                     O  P  I  N  I  O  N  

                                                                                                                                                   

STATE OF ALASKA,  

                       



                                                       Appellee.                                         No. 2535 - January 27, 2017  

                                                                                                                                                          



                           Appeal   from  the   District   Court,  Fourth  Judicial   District,  

                                                                                                                                    

                           Fairbanks, Patrick S. Hammers, Judge.  

                                                                                          



                           Appearances:  David D. Reineke, under contract with the  Public  

                                                                                                                                          

                           Defender   Agency,   and   Quinlan   Steiner,   Public   Defender,  

                                                                                                                                 

                           Anchorage,  for   the   Appellant.                                   David   Buettner,  Assistant  

                                                                                                                                   

                           District Attorney, Fairbanks, 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-----------------------

                           On November 5, 2012, Alaska Railroad Special Agent Kathy Kraft received                                                             



a    report    that    a    car    was    "spinning    brodies"    in    a    parking    lot    owned    by    the  

                  1  When Kraft drove her patrolcar to the property, she found a dark-colored jeep  

railroad.                                                                                                                                                             



parked in a corner of the lot.  

                                                            



                           Kraft tried to make contact with the driver (who turned out to be Nicholas  

                                                                                                                                                             



Forsythe), but he began to drive away.  Kraft then activated the overhead lights of her  

                                                                                                                                                                        



patrol car  (as  a  signal for  Forsythe  to  stop),  but  Forsythe  continued  driving away.  

                                                                                                                                                                                



Thinking that Forsythe might not have observed her flashing lights, Kraft activated her  

                                                                                                                                                                        



siren - but Forsythe still failed to stop.  Kraft then pulled alongside Forsythe and, using  

                                                                                                                                                                    



her hands, directed him to pull over.  Forsythe responded by shaking his head "no", and  

                                                                                                                                                                       



he continued to drive.  

                                              



                           Kraft decided to radio the Alaska State Troopers for assistance.  Even after  

                                                                                                                                                                      



a  trooper  patrol car  arrived  on  the  scene  and  signaled  Forsythe  to  stop,  Forsythe  

                                                                                                                                                            



continued driving for approximately another mile before he finally pulled over.  

                                                                                                                                                                



                           Based on these events, Forsythe was  charged with failing to stop at the  

                                                                                                                                                                        



direction of a peace officer,  AS 28.35.182(b),  for failing to pull over when he was  

                                                                                                                                                                      



directed to do so by Special Agent Kraft.  

                                                                                    



                           At  Forsythe's  trial,  after  the  State  presented  its  evidence,  Forsythe's  

                                                                                                                                                        



attorney sought a judgement of acquittal, arguing that Kraft was not a "peace officer" for  

                                                                                                                                                                         



purposes of AS 28.35.182.  The district court denied the defense attorney's motion, and  

                                                                                                                                                                       



Forsythe was convicted.   Now, on appeal,  Forsythe renews his claim that the State's  

                                                                                                                                                                



evidence was legally insufficient because Kraft was not a peace officer.  

                                                                                                                                                 



       1     As   explained in Wikipedia, the term "spinning brodies" refers to a maneuver where                                                                   



a driver           rotates either the rear or front set of wheels around the other set of wheels in a                                                                       

continuous motion, creating a circular skid-mark pattern of rubber on the roadway.                                                                            

       See  https://en.wikipedia.org/wiki/Doughnut_(driving)  

                                                                                                               



                                                                                   - 2 -                                                                              2535
  


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

                           This Court                recently issued an opinion -                                Sapp v. State               , 379 P.3d 1000        



(Alaska App. 2016) - in which we addressed the question of what types of officials                                                                            



qualify as "peace officers" for purposes of AS 28.35.182.                                                              



                           In  Sapp, we held that this question is controlled by the definition of "peace                                                        

                                                                               2    This statute contains six subsections - (A)  

officer"   codified in AS 01.10.060(7).                                                                                                                                



through (F) - each of which specify a different type of official who qualifies as a peace  

                                                                                                                                                                   



officer.  

                  



                           The   subsection   of   the   statute   that   applies   to   Forsythe's                                                            case   is  

                                                                                                                                                                         



subsection (F),  which declares that the term "peace officer" includes "[any] officer  

                                                                                                                                                                 



whose  duty it is to enforce and preserve the public peace".   In Sapp, we interpreted  

                                                                                                                                                         



subsection (F) as encompassing only "publicly employed law enforcement officers who  

                                                                                                                                                                      



have full police responsibility and who spend substantially  all of their working hours  

                                                                                                                                                                   



                                                                       3  

performing these police functions."  

                                                                          



                           The question in Forsythe's case, then, is whether the evidence presented  

                                                                                                                                                           



at  Forsythe's  trial  was  sufficient  to  establish  that  Kraft  was  a  publicly  employed  

                                                                                                                                                          



law enforcement officer who had full police responsibility and who spent substantially  

                                                                                                                                                      



all of her working hours performing police functions.  

                                                                                                             



                           At Forsythe's trial, Kraft gave a detailed  explanation of her job and her  

                                                                                                                                                                        



duties.   She testified that, as a special agent for the Alaska Railroad, her primary duty  

                                                                                                                                                                     



was law enforcement.  She holds a police commission through the Department of Public  

                                                                                                                                                                  



Safety, and her job for the Alaska Railroad was "the same as being a police officer for  

                                                                                                                                                                         



the City of Fairbanks", except that her physical jurisdiction is railroad property.  

                                                                                                                                                                 



       2     Sapp, 379 P.3d at 1001-02.                             



       3  

                                     

             Id. at 1002.  



                                                                                   - 3 -                                                                              2535
  


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

                                                                                                                     

                     Kraft testified that, as an Alaska Railroad special agent, she was responsible  



                                                                                                                                

for  policing  all  sorts  of  offenses  -  including  traffic  violations,  driving  under  the  



                                                                                                                          

influence, domestic violence, assaults, and thefts.  She was authorized to arrest people,  



                                                                                                                     

and she was allowed to engage in active pursuit of law-breakers beyond the boundaries  



                                                                                                                                    

of railroad property.              When she was on duty, she wore a uniform and she carried a  



                                                                                                                          

sidearm, pepper spray, a taser, and handcuffs.  She drove a patrol car that was marked  



                                                                                                                                    

"police" and "special agent"; this patrol car was equipped with  red  and blue lights, a  



                                  

siren, and gun racks.  



                                                                                                                                    

                     Forsythe nevertheless argues that Kraft did not perform the functions of a  



                                                                                                                                 

public  officer,  but rather the functions of a private security guard employed by the  



                                                                                                                        

Alaska Railroad Corporation to police  the corporation's property.   Forsythe contends  



                                                                                                                                  

that,  because the physical jurisdiction of Alaska  Railroad special agents is limited to  



                                                                                                                                  

railroad  property,  Alaska  Railroad  special  agents  fail  to  meet  the  test  codified  in  



                                                                                                                                       

AS 01.10.060(7)(F) - i.e., they have no duty to "enforce and preserve the public peace".  



                                                                                                                                

                     Although  the  Alaska  Railroad  is  designated  as  a  "corporation"  by  the  



                                                                                                                         

Alaska Statutes, it is not a normal business corporation.  Rather, AS 42.40.010 declares  



                                                                                                                                

that  the  Alaska  Railroad  Corporation  is  "an  instrumentality  of  the  state  within  the  



                                                                                                                            

Department of Commerce, Community, and Economic Development." This same statute  



                                                                                                                                

further  declares  that  the  operation  of  the  Alaska  Railroad  by  the  corporation  "is  



                                                                                          

considered an essential government function of the state."  



                                                                                                                      

                     Similarly, even though AS 42.40.250(20) speaks of the Alaska Railroad's  



                                                                                                                              

power to maintain a "security force", the statute clearly envisions that this security force  



                                                                                                                           

will operate as a police force.   AS 42.40.250(20) declares that the duty of the Alaska  



                                                                                                                                  

Railroad's security force is not simply to enforce the corporation's rules and protect its  



                                                                                                                                  

interests, but also "to enforce municipal ordinances [and] state laws ... with respect to  



                                                               - 4 -                                                          2535
  


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

                                                                                                                               

violations  that  occur  on  or  to  property  owned,  managed,   or  transported  by  the  



                         

corporation[.]"  



                                                                                                                      

                    Thus, the provisions of AS 42.40.250(20) corroborate Kraft's testimony  



                                                                                                                                

that her law enforcement duties as an Alaska Railroad special agent were the same as the  



                                                                                                                              

law enforcement duties of a police officer employed by a political subdivision of the state  



                                                                                                                                

-  except that her physical jurisdiction was the property  owned or managed by the  



                                                                                                                          

railroad, rather than the political boundaries of a city, municipality, or borough.  



                                                                                                                                

                    We hold that the special agents of the Alaska Railroad's security force are  



                                                                                                                                  

"peace officers" within the meaning of AS 01.10.060(7)(F) as  interpreted in Sapp v.  



                                                                                                                                  

State.  Forsythe therefore violated AS 28.35.182(b) when he knowingly failed to stop at  



                                                                                                                                  

the  direction  of  Special Agent  Kraft  (who  was  in  active  pursuit  of  Forsythe  for  a  



                                                                                                

violation that had just occurred on Alaska Railroad property).  



                                                                                                                                 

                    The district court correctly denied Forsythe's motion for a judgement of  



                                                                                                                  

acquittal.  Accordingly, the judgement of the district court is AFFIRMED.  



                                                               - 5 -                                                          2535
  

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