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Taylor v. State (5/26/2017) ap-2555

Taylor v. State (5/26/2017) ap-2555

                                                                                              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                                                                        



CYRUS  GREGORY  TAYLOR,  

                                                                                                                                                                           

                                                                                                                         Court of Appeals No. A-11719  

                                                                                                                                                                                           

                                                                Appellant,                                           Trial Court No. 3AN-12-4678 CR  



                                                v.  

                                                                                                                                         O  P  I  N  I  O  N  

                                                                                                                                                                           

STATE  OF  ALASKA,  



                                                                Appellee.                                                     No. 2555 - May 26, 2017  

                                                                                                                                                                                



                                Appeal   from  the   Superior   Court,  Third  Judicial                                                                     District,  

                                                                                                                                                          

                                Anchorage, Stephanie E. Joannides, Judge.  

                                                                                                                 



                                Appearances:                      Glenda J. Kerry, Girdwood, for the Appellant.  

                                                                                                                                                                                 

                                Eric  A.  Ringsmuth,  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.  



                                Cyrus Gregory Taylor appeals his conviction for first-degree failure to stop                                                                                         



at the direction of a peace officer - otherwise known as "felony eluding".                                                                                                         



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



Constitution and Administrative Rule 24(d).                                          


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

                                                                                                                              

                     Under the statute defining this crime - AS 28.35.182(a) - the State must  



                                                                                                                                

prove two elements:  first, that the motorist failed to stop when directed to do so; and  



                                                                                                                          

 second, that the motorist, while eluding the police, (1) committed the separate offense  



                                                                                                                           

of reckless driving, or (2) committed the separate offense of vehicle theft, or (3) caused  



                                                                              

an accident, or (4) caused serious physical injury.  



                                                                                                                          

                     Taylor was indicted on the theory that he committed the offense of reckless  



                                                                                                                                

driving while he was eluding the officers.  However, toward the end of the trial, the trial  



                                                                                                                                 

judge (apparently acting sua sponte) amended the jury instruction on the elements of the  



                                                                                                                                  

crime - adding a provision which said that Taylor could alternatively be convicted of  



                                                                                                                                 

felony eluding if the jurors found that he caused an accident while he was eluding the  



                

officers.  



                                                                                                                                 

                     Even though the instruction on the elements of the crime now allowed the  



                                                                                                                       

jurors to convict  Taylor under either a "reckless driving" or a "caused an accident"  



                                                                                                                            

theory, the judge did not instruct the jurors that they had to be unanimous as to which  



                                                                   

theory they thought the State had proved.  



                                                                                                                         

                     Taylor's attorney did not object when the trial judge amended the elements  



                                                                                                                            

instruction to include both a "reckless driving" theory and a "caused an accident" theory  



                                                                                                                      

of  the  crime.          Nor  did  Taylor's  attorney  object  to  the  lack  of  a  factual unanimity  



instruction.  



                                                                                                                                  

                     But on appeal, Taylor argues that it was plain error for the trial judge to let  



                                                                                                                           

the jurors decide the eluding charge based on a "caused an accident" theory.   Taylor  



                                                                                                                                 

contends that this theory was a fatal variance from the theory of reckless driving that the  



                                                      

 State presented to the grand jury.  



                                                                                                                                  

                     In the alternative,  Taylor argues that the judge committed plain error by  



                                                                                                                        

failing to give the jurors a factual unanimity instruction - i.e., an instruction requiring  



                                                               - 2 -                                                          2555
  


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

                                                                                                                            

the jurors to reach unanimous agreement as to which  of the two theories had been  



               

proved.  



                                                                                                                          

                    For the reasons we are about to explain, we find that neither of these alleged  



                                                                                                                  

errors constitutes plain error, and we therefore affirm Taylor's conviction.  



                              

           Underlying facts  



                                                                                                                              

                    On  May  15,  2012,  Anchorage  police  officers  Christopher  Nelson  and  



                                                                                                                              

Matthew Jensen were on patrol, in separate patrol cars, when they saw a Suburban run  



                                                                                                                               

a red light on DeBarr Road and then turn onto Pine Street.  Officer Nelson activated his  



                                                                                                                                     

overhead lights and began to pursue the Suburban.  Officer Jensen joined in the pursuit.  



                                                                                                                                

                    Rather than stopping, the driver of the Suburban accelerated away from the  



                                                                                                                    

officers.   Traveling at speeds of up to 70 miles per hour, the driver of the Suburban  



                                                                                                                           

engaged in evasive maneuvers through residential streets and alleys where the speed  



                                                                                                                           

limit was between 25 and 30 miles per hour.  The driver swerved, slid, made sharp turns,  



                                                            

and at times fish-tailed out of control.  



                                                                                                                         

                    The officers followed the Suburban until it stopped just behind a parked  



                                                                                                                     

Nissan Maxima.              Although the officers did not perceive it at the time, the Suburban  



                                                                     

apparently collided lightly with the Maxima.  



                                                                                                                                     

                    Officer Nelson pulled his patrol car in behind the Suburban, intending to  



                                                                                                                         

box it in and prevent it from leaving.  The driver of the Suburban then backed his vehicle  



                                                                                                                     

into Nelson's patrol car.                At this point,  both officers  saw Taylor exit the Suburban  



                                                                                                                          

through the driver's door and start running away toward the south.  There was a second  



                                                                                       

man in the Suburban, and he fled toward the northwest.  



                                                                                                                

                    Nelson and his police dog followed Taylor, and Taylor was apprehended  



                                                                                                                                     

approximately two minutes later.  The police were unable to track down the other man.  



                                                              - 3 -                                                          2555
  


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

                                                                                                                                

                    When Taylor was apprehended, he had a strong odor of alcohol and his  



                                                                                                                                

speech was slurred; he also had bloodshot, watery eyes.  The police arrested Taylor for  



                                                                                                                          

driving under the influence, and Taylor later refused to submit to a breath test.  



                                                                                                                          

                    Based on these events,  Taylor was  charged with five offenses:   felony  



                                                                                                                            

eluding (i.e., first-degree failure to stop at the direction of a peace officer), driving under  



                                                                                                                                 

the influence, refusing to submit to a breath test, leaving the scene of a collision with an  



                                                                                                                                 

unattended vehicle (the Nissan Maxima), and leaving the scene of a collision with an  



                                                    

attended vehicle (the patrol car).  



                                                                                                                                  

                     The indictment for felony eluding alleged that Taylor knowingly failed to  



                                                                                                                                 

stop his vehicle when he was signaled to do so by the police, and that, in the process of  



                                                                                                                                   

eluding the officers, Taylor committed the offense of reckless driving "by creating a  



                                                                                                                 

substantial and unjustifiable risk of harm to a person and/or to property".  



                                                                                                                                  

                    At Taylor's trial, the State presented evidence of all five charges.  Thus, in  



                                                                                                                          

addition to presenting evidence that Taylor drove recklessly through residential streets  



                                                                                                                         

while he was eluding the officers, the State also presented evidence that Taylor collided  



                                                                                                                          

with the unattended Nissan Maxima, and that Taylor backed the Suburban into Officer  



                                 

Nelson's patrol car.  



                                                                                  

          The jury instruction on the elements of felony eluding  



                                                                                                                                

                    Both Taylor and the State offered jury instructions on the elements of the  



                                                                                                                                

felony eluding charge.  Both of these proposed instructions were worded based on the  



                                                                                                                     

State's theory at grand jury:  that Taylor's offense was a felony because he committed  



                                                                              

reckless driving while he was eluding the officers.  



                                                               - 4 -                                                          2555
  


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

                                                                                                                               

                     Neither  of  the  proposed  instructions  included  the  alternate  theory  that  



                                                                                                                                 

Taylor's  offense  was  a  felony  because  he  caused  an  accident,  and  there  was  no  



                                                                                                                                    

discussion at Taylor's trial about amending the jury instruction to include this theory.  



                                                                                                                                 

                     But somehow, by the time the trial judge assembled the final version of the  



                                                                                                                                  

jury instructions, the instruction on the elements of felony eluding had been amended to  



                                                                                                                                  

include both theories.   This amended  instruction told the jurors that Taylor could be  



                                                                                                                           

convicted of felony eluding either under the theory that he committed reckless driving  



                                                                           

or under the theory that he caused an accident.  



                                                                                                                                 

                     In Taylor's brief to this Court, he asserts that the trial judge amended the  



                                                                                                                           

jury instruction sua sponte.  The State, for its part, appears to concede that this is correct  



                                                                                                                                

- that the judge unilaterally amended the instruction to include the alternate theory that  



                                                   

Taylor had caused an accident.  



                                                                                                                          

                     In  any  event,  by  the  time  the  two  attorneys  delivered  their  closing  



                                                                                                                              

arguments to the jury,  both attorneys were aware that the jury instruction had been  



                                                                                                                           

amended  to  include the alternate theory that Taylor had caused an accident.   Taylor  



                                                                                                                               

admits  that  his  trial attorney  made  no  objection  when  the  judge  amended  the  jury  



                                                                                                    

instruction to include the alternate theory of causing an accident.  



                                                                                                                                

                     In addition, the amended jury instruction did not tell the jurors that they had  



                                                                                                                                  

to unanimously agree as to which theory the State had proved - reckless driving or  



                                                                                                                                 

causing an accident.  Taylor admits that his attorney did not object to this aspect of the  



                          

jury instruction.  



                                                                                                                                       

                     However, the judge's action had little effect on Taylor's theory of defense.  



                                                                                                                         

From  the  beginning  of  the  trial  (as  articulated  in  the  defense  attorney's  opening  



                                                                                                                                  

statement), Taylor's defense was that he had not been driving the Suburban - that he  



                                                                                                                   

was the passenger  in the Suburban, and that another man named Adrian "Geronimo"  



                                                               - 5 -                                                          2555
  


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

Beaver was the driver.                                               Taylor testified in support of this defense, and Taylor's attorney                                                                                                      



reiterated this claim when he delivered the defense summation to the jury.                                                                                                                                                        



                                         The jury rejected Taylor's defense and convicted him of driving under the                                                                                                                                           



influence, refusing to submit to a breath test, leaving the scene of an accident with an                                                                                                                                                                     



attended vehicle (Officer Nelson's patrol car), and felony eluding.                                                                                                                                        However, the jury                             



acquitted Taylor of leaving the scene of                                                                                     an   accident with an unattended vehicle (the                                                                               



Nissan Maxima), apparently under the theory that Taylor was unaware that his Suburban                                                                                                                                                    



had collided with that vehicle.                                                              



                     Taylor's claim that it was plain error for the trial                                                                                                           judge   to neglect to                                  

                     instruct the jurors on the need for factual unanimity                                                                          



                                         Alaska law requires jurors to reach unanimity regarding the act for which                                                                                                                                  

                                                                                         1   Thus, when the State presents evidence that a defendant  

the defendant is found guilty.                                                                                                                                                                                                       



committed different acts that could each separately support a criminal conviction, the  

                                                                                                                                                                                                                                                            



trial judge is required to instruct the jurors that, in order to return a verdict, they must  

                                                                                                                                                                                                                                                      

reach unanimous agreement as to which of these acts the defendant committed. 2  

                                                                                                                                                                                                                                                     



                                         But our law does not require the jurors to reach unanimity regarding the  

                                                                                                                                                                                                                                                            



theory under which the defendant's actions constitute the charged crime.  Thus, in State  

                                                                                                                                                                                                                                                      



v. James, 698 P.2d 1161, 1167 (Alaska 1985), the Alaska Supreme Court held that when  

                                                                                                                                                                                                                                                     



a statute defines a crime as an act performed with one of multiple culpable mental states,  

                                                                                                                                                                                                                                                   



the jury need not reach unanimous agreement as to exactly what culpable mental state  

                                                                                                                                                                                                                                                       



           1        See,  e.g.,  Khan v. State                                          , 278 P.3d 893, 897 (Alaska 2012).                                                                    



          2         See, e.g., Ramsey v. State , 355 P.3d 601, 602 (Alaska App. 2015); Anderson v. State ,  

                                                                                                                                                                                                                                                     

289 P.3d 1, 4 (Alaska App. 2012); Castillo v. State, 821 P.2d 133, 136-37  (Alaska App.  

                                                                                                                                                                                                                                                       

 1991);  Covington v. State, 703 P.2d 436, 440 (Alaska App. 1985).  

                                                                                                                                                                                                   



                                                                                                                             - 6 -                                                                                                                       2555
  


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

                                                                                                                                   

the defendant had.   As the James  court explained, "where the alleged criminal deed is  



                                                                                                                             

restricted to a single incident, any potential difference in  the jurors' findings of intent  



                                                                  

versus wilful disregard is not significant".  Ibid.  



                                                                                                                            

                     Indeed, the James court went even farther - indicatingthat when a statute  



                                                                                                                                  

defines a crime using alternative clauses or subsections, the legislature is presumed to  



                                                                                                                                 

have defined a single crime that can be proved in different ways, and a trial jury need not  



                                                                                                                                

be unanimous as to which of these alternative theories the government has proved:  



                       

                                                                                                    

                     We do not believe the legislature intended to force prosecu- 

                                                                                                              

                     tors  in  charging crimes,  or  judges  in  instructing juries,  to  

                                                                                                              

                     select either one or another of the alternative subsections in  

                                                                                                  

                     most criminal statutes.   If it had so intended, the legislature  

                                                                                                      

                     would  not have included the various subsections in unitary  

                                                                                                   

                     statutory offenses.   To the contrary, the legislature evidently  

                                                                                                               

                     contemplated  disjunctive  charging and  wanted  to  make  it  

                                                                                                  

                     possible  to  convict  despite  a  potential  lack  of  analytical  

                                       

                     unanimity.  



                                          

James, 698 P.2d at 1167.  



                                                                                                                         

                     Nor is this doctrine of non-unanimity restricted to differences in culpable  



                                                                                                                                      

mental states.  In  Gray v. State, 463 P.2d 897, 911 (Alaska 1970), the supreme court  



                                                                                                                                  

expressly approved the practice of having a jury return a general verdict on the crime of  



                                                                                                                                

first-degree murder, even though (under Alaska's former criminal code) this crime was  



                                                                                                                            

defined in the disjunctive - as either a premeditated killing or an intentional killing  



                                                                                                    

performed during the commission of a felony.  The court stated:  



                       

                                                                                                

                     Although there are several ways of committing first-degree  

                                                                                                            

                     murder, it is still only one crime; and only one sentence can  

                                                                                                      

                     be imposed.  We believe it is sound to allow multiple theories  



                                                               - 7 -                                                          2555
  


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

                                                                                                      

                     to be presented to the jury and not to force the jury to choose  

                                   

                    between them.  



                                        

Gray, 463 P.2d at 911.  



                                                                                                                           

                     Similarly, in State v. McDonald, 872 P.2d 627, 655 (Alaska App. 1994),  



                                                                                                                              

where the defendant was charged with murder under a complicity theory, this Court held  



                                                                                                                     

that the jury did not have to reach unanimous agreement as to whether the defendant  



                                                                                                                                      

personally  killed  the  victim  or,  instead,  solicited  another  person  to  kill  the  victim.  



                                                                                                        

Accord, Totemoff v. State, 866 P.2d 125, 129 (Alaska App. 1993).  



                                                                                                                               

                     And in  Cheely v. State, 850 P.2d 653, 661-63 (Alaska App. 1993),  this  



                                                                                                                              

Court held that a theft indictment encompasses all six of the methods of committing theft  



                                                                                                                                  

defined in AS 11.46.100, so that there is no fatal variance when a defendant who is  



                                                                                                                  

indicted for theft under an "unlawful taking" theory is convicted under a  "knowingly  



                                                     

receiving stolen property" theory.  



                                                                                                                           

                     Returning  to the present case,  the statute defining the crime of felony  



                                                                                                                                   

eluding, AS 28.35.182(a), declares that the act of failing to  stop at the direction of a  



                                                                                                                    

police officer is elevated to a felony if that act is accompanied by one of four aggravating  



                                                                                                                                

factors.  Based on the structure of this statute, the crime of felony eluding presents the  



                                                                                                                              

legal situation discussed in James, Gray, McDonald, and Cheely:  a single crime, with  



                                                

alternative ways to commit it.  



                                                                                                                                

                     In Taylor's case, his reckless driving and his collision with the patrol car  



                                                                                                                      

were simply different aspects of one continuing act of eluding.  Taylor drove recklessly  



                                                                                                                                

through residential streets and then, when he finally came to a stop, he backed into the  



                                                                                 

patrol car that had parked behind him to box him in.  



                                                                                                                                

                     Because Taylor's case involved only one act of eluding, the jurors did not  



                                                                                                                    

need to reach unanimity regarding the theory that made this act of eluding a felony-level  



              

offense.  



                                                               - 8 -                                                          2555
  


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

                                                                                                           

          Taylor's claim that the trial judge's addition of the "caused an accident"  

                                           

          theory led to a fatal variance  



                                                                                                                            

                    As we have already explained, Taylor was indicted for felony eluding under  



                                                                                                                         

the theory that, while he was eluding the officers, he committed the offense of reckless  



                                                                                                                                 

driving.      But Taylor was  also  charged with leaving the scene of a collision with an  



                                                                                                                      

attended vehicle (Officer Nelson's patrol car).  To prove this charge, the State presented  



                                                                                                                                

evidence that Taylor backed the Suburban into the patrol car after Nelson used the car  



                             

to box Taylor in.  



                                                                                                                              

                    Apparently  based  on  this  evidence,  the  trial  judge  amended  the  jury  



                                                                                                                         

instruction on the elements of felony eluding so that it allowed the jurors to convict  



                                                                                                                                

Taylor either (1) under the theory that he committed reckless driving while eluding the  



                                                                                                                                   

officers or (2) under the theory that he caused an accident while eluding the officers.  



                                                                                                                   

                    Alaska Criminal Rule 7(e) authorizes a trial judge to permit the amendment  



                                                                                                                                 

of an indictment to conform to the trial evidence "at any time before [the] verdict", so  



                                                                                                                                

long as "no additional or different offense is charged and the substantial rights of the  



                             

defendant are not prejudiced."  



                                                                                                                                  

                    Here, no "different offense" was charged - because, as we explained in  



                                                                                                                                

the preceding section of this opinion, the four different circumstances that raise an act  



                                                                                                                              

of eluding to a felony under AS 28.35.182(a) are not four separate crimes, but rather four  



                                                                       

different ways of committing the same crime.  



                                                                                                                   

                    But Taylor argues that the trial judge's action prejudiced his substantial  



                                                                                                                               

rights.      More  specifically,  Taylor  argues  that,  by  amending the  instruction  on  the  



                                                                                                                           

elements of felony eluding, the judge effectively allowed the trial jurors to convict Taylor  



                                                                                                                            

under a theory that was not charged in the indictment, and that the grand jurors never  



                    

considered.  



                                                               - 9 -                                                          2555
  


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

                       As a general rule, it is improper to convict a defendant based on evidence                                      



that    is    materially    different    from    the    evidence    that    supported    the    grand    jury  

                    3   But our law recognizes various exceptions to this rule.  

indictment.                                                                                                            



                       As this Court said in Rogers v. State, 232 P.3d 1226 (Alaska App. 2010),  

                                                                                                                                           



"Alaska has long recognized that the proof ultimately adduced at a criminal trial may  

                                                                                                                                              



differ in significant ways from the evidence presented to the grand jury, and that the trial  

                                                                                                                                                



jury may legitimately reach a different view of events from the one represented in the  

                                                                                                                                                 



grand jury indictment."  Id.  at 1239.   Our decision in Rogers  contains a discussion of  

                                                                                                                                                  



 several prior cases that apply this principle.  Id. at 1239-1240.  See also Andrew v. State,  

                                                                                                                                            



237 P.3d 1027, 1034-35 (Alaska App. 2010) (holding that there is no material variance  

                                                                                                                                        



when a defendant is indicted under the theory that they personally committed a crime,  

                                                                                                                                           



but the defendant is convicted under a complicity theory - or vice versa).  

                                                                                                                     



                       Here,  the question is whether it is a "constructive amendment" of the  

                                                                                                                                                 



indictment if a grand jury indicts a defendant for felony eluding under one of the four  

                                                                                                                                               



 alternative theories listed in AS 28.35.182(a), but the trial jury convicts the defendant  

                                                                                                                                     



under one of the other theories.  We conclude that we need not answer this question in  

                                                                                                                                                   



Taylor's  case  -  because the facts of this case show that there was no significant  

                                                                                                                                     



departure from the grand jury's view of the case, and Taylor's substantial rights were not  

                                                                                                                                                 



prejudiced.  

                      



                       As explained by our supreme court in Michael v. State,   we must decide  

                                                                                                                                           



whether the State's proof of the felony eluding charge at Taylor's trial was "a departure  

                                                                                                                                      



 ... from the indictment sufficiently great to be regarded as a constructive amendment"  

                                                                                                                                



 (thus requiring reversal), or whether the difference in proof was "a mere variance, which  

                                                                                                                                            



      3     Lindeman v. State             , 244 P.3d 1151, 1159 (Alaska App. 2011).                   



                                                                      -  10 -                                                                 2555
  


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

 is reversible error only if prejudicial                                                to the defendant."                            805 P.2d 371,                         373 (Alaska   



 1991).   



                                The prosecutor who presented Taylor's case to the grand jury asked the                                                                                            



 grand jurors to indict Taylor under the theory that he committed the offense of reckless                                                                                              



 driving while he was eluding the police -                                                        i.e., that Taylor "[drove] a motor vehicle ...                                                    



 in a manner that create[d] a substantial and unjustifiable risk of harm to a person or to                                                                                                          

                         4    But Taylor's dangerous driving through residential streets and his collision  

property".                                                                                                                                                                            



with the patrol car at the end of the chase were simply different aspects of one continuing  

                                                                                                                                                                                 



 act of eluding.  To establish that Taylor drove the Suburban in a manner that created a  

                                                                                                                                                                                                      



 substantial and unjustifiable risk of harm, the prosecutor presented testimony to the grand  

                                                                                                                                                                                            



jury that described Taylor's entire course of reckless driving - including Taylor's final  

                                                                                                                                                                                               



 act of backing the Suburban into Officer Nelson's patrol car.  

                                                                                                                                              



                                In this context, there is no reason to believe that the grand jurors viewed the  

                                                                                                                                                                                                  



 collision with the patrol car as separate from the dangerous driving that preceded it.  The  

                                                                                                                                                                                               



 fact that Taylor purposely backed into the patrol car at the end of the chase was simply  

                                                                                                                                                                                          



 a component of the evidence that Taylor drove recklessly.  

                                                                                                                                          



                               Moreover, because the State separately  charged Taylor with leaving the  

                                                                                                                                                                                                  



 scene of an accident (based on his act of backing into the patrol car and then running  

                                                                                                                                                                                       



 away), it was obvious to Taylor's defense attorney that the State's trial evidence was  

                                                                                                                                                                                               



 going to encompass Taylor's entire course of driving, including the  collision with the  

                                                                                                                                                                                                 



patrol car.  Thus, Taylor's attorney knew that he was going to have to respond to that  

                                                                                                                                                                                                



 evidence.  And he did - by asserting the blanket defense that Taylor was not the driver  

                                                                                                                                                                                           



 of the Suburban.  

                                         



        4       AS 28.35.400(a).                        



                                                                                              -  11 -                                                                                          2555
  


----------------------- Page 12-----------------------

                                                                                                                           

                    Given these circumstances, even if some of the trial jurors relied on the fact  



                                                                                                                           

that Taylor had caused an accident when they found him guilty of felony eluding, we  



                                   

find no fatal variance.  



          Conclusion  



                                                                                                  

                    The judgement of the superior court is AFFIRMED.  



                                                            -  12 -                                                      2555
  

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