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State v. Baker (6/22/2018) ap-2607

State v. Baker (6/22/2018) ap-2607

                                                    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  



STATE OF ALASKA,  

                                                                   Court of Appeals No. A-12295  

                                   Appellant,                     Trial Court No. 4FA-14-318 CR  



                          v.  

                                                                              O P I N I O N  

TIMOTHY SANTA BAKER,  



                                   Appellee.                         No. 2607 - June 22, 2018  



                                                                 

                  Appeal  from  the  Superior  Court,  Fourth  Judicial  District,  

                  Fairbanks, Bethany S. Harbison, Judge.  



                  Appearances: Timothy W. Terrell, Assistant Attorney General,  

                                                                                        

                  Office of Criminal Appeals, Anchorage, and Craig W. Richards,  

                               

                  Attorney  General,  and  James  E.  Cantor,  Acting  Attorney  

                               

                  General,  Juneau,  for  the  Appellant.    Dan  S.  Bair,  Assistant  

                  Public Advocate, Appeals and Statewide Defense Section, and  

                  Richard Allen, Public Advocate, Anchorage, for the Appellee.  



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

                                                       

                  Superior Court Judge. *  

                                                 



                  Judge ALLARD.  



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



Constitution and Administrative Rule 24(d).  


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

                    This appeal requires us to construe Alaska Criminal Rule 45(c)(3) and to  

                                                                                                     



clarify when criminal offenses arise from the "same criminal episode" for purposes of  

                                                                                                             



determining a defendant's speedy trial rights under Criminal Rule 45.  

                                                                                                      



          Relevant facts  

                         



                    Responding to a tip about drug dealing at a local gas station, an Alaska  

                                                                                                                          



State Trooper observed Timothy Santa Baker drive up to a gas pump and a woman get  

                                                                                                                                



into Baker's vehicle. The trooper then watched as Baker drove his car across the parking  

                                                                                                                         



lot and parked next to another parked vehicle.  Once there, Baker interacted with the  

                                                                                                                                



woman and another man outside of the two vehicles.  

                                                                    



                    After observing this activity, the trooper approached Baker and the two  

                                                                                                                               



other people and requested their identifications.  In response, Baker fled the scene on  

                                                                                                                                 



foot, abandoning his phone and several small plastic bags filled with a white powdery  

                                                                                                              



substance along the way.  (The police later collected the plastic bags and field-tested  

                                                                                                                   



their contents, which tested presumptively positive for cocaine.)  

                                                                                     



                    The trooper gave immediate chase to Baker and eventually caught him.  

                                                                                                                                      



After  discovering  that  Baker  was  on  bail  release  and  that  his  driver's  license  was  

                                                                                                                              



revoked, the trooper arrested Baker and charged him with the following misdemeanor  

                                                        



offenses: driving while license revoked, violating the conditions of his release, and  

                                                                                                                               



disorderly conduct. (The disorderly conduct charge was later dismissed at arraignment.)  

                                                                                                                                      



Baker was not charged with any drug-related crimes at that time.  

                                                                                                      



                    Approximately three months after his arrest, Baker pleaded guilty to the  

                                                                                                                                



driving while license revoked charge, and the State dismissed the remaining violating  

                                                                                                                       



conditions of release charge.   In the interim, the State obtained a search warrant for  

                                                                                                                                



Baker's mobilephone, which revealed evidencethat hewasengaged in drug distribution.  

                                                                                                                                      



                                                              - 2 -                                                         2607
  


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

The State also sent the white powder for further testing at the crime lab, and the lab                                                                                                          



confirmed that the white powder was cocaine.                                            



                               Approximately four months after Baker's initial arrest, and one month after                                                                                    



Baker pleaded guilty to the driving while license revoked charge, the State indicted                                                                                                



Baker for third-degree misconduct involving a controlled substance (possessing cocaine                                                                                                 

with intent to distribute).                               1  



                                                                                                                                                                                      

                               Approximately a year into the pretrial litigation of the drug charge, Baker's  



                                                                                                                                                                                           

defense attorney moved to dismiss the indictment, arguing that the drug charge arose  



                                                                                                                                                                                              

from "the same criminal episode" as the driving while license revoked charge  and  



                                                                                                                                                                                         

therefore, under Alaska Criminal Rule 45(c)(3), the speedy trial time for the drug charge  



                                                                                                                                                  

began running when the earlier charges were served on Baker.  



                                                                                                                                                                                           

                               The superior court agreed with the defense attorney that the driving while  



                                                                                                                                                                                    

license revoked  charge  and  the felony  drug  charge arose out of the same criminal  



                                                                                                                                                        

episode.  In its written order explaining its decision, the superior court acknowledged  



                                                                                                                                                                                      

that there was no evidentiary or elemental overlap between the two charges.  But the  



                                                                                                                                                                                   

court  concluded  that  the  two  charges  nevertheless  arose  from  the  "same  criminal  



                                                                                                                                                                                            

episode" for purposes of calculating Baker's speedy trial time under Criminal Rule  



                                                                                                                                                                                             

45(c)(3) because Baker's act of driving across the parking lot helped facilitate the drug  



                                                                                                                              

deal.  Based on this purported causal relationship, the court concluded that the speedy  



                                                                                                                                                                                                

trial time for the drug charge had already run, and the court therefore dismissed the  



                                                                                                                                                           

felony drug indictment with prejudice under Criminal Rule 45(g).  



                                                                                               

                               The State now appeals that dismissal.  



        1      Former AS 11.71.030(a)(1) (2012).  



                                                                                              -  3 -                                                                                        2607
  


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

                The definition of "same criminal episode" under Criminal Rule 45(c)(3)                                                                              



                               Alaska Criminal Rule 45 governs a defendant's statutory right to a speedy                                                                             



trial under Alaska law. Under Criminal Rule 45(b), the State is required to try a criminal                                                                                        



defendant within 120 days after the day that the charging document is served on the                                                                                                            



defendant - subject to certain statutory exceptions that toll the running of the speedy                                                     

trial time period.                    2  



                                                                                                                                                                                            

                               Criminal Rule 45(c)(3) addresses situations in which the State files a new  



                                                                                                                                                                                            

charge that  arises  out of "the same criminal episode" as the original charge.   This  



                                                                                     

provision declares, in pertinent part,  



                                                                                                                                                        

                               [t]he Rule 45 commencement date for a new charge arising  

                                                                                                                                                                 

                               out of the same criminal episode shall be the same as the  

                                                                                                                                                                

                               commencement  date  for  the  original  charge,  unless  the  

                                                                                                                                                    

                               evidence on which the new charge is based was not available  

                                                                                                                                                       

                               to the prosecution on the commencement date for the original  

                                               3  

                               charge.   



The provision further provides, that if the evidence for the new charge arising out of the  

                                                                                                                                                                                                



same criminal episode was not available at the time the original charges were filed, and  

                                                                                                                                                                                              



the State can show that it was diligent in investigating and bringing the new charge, then  

                                                                                                                                                                                             

the Rule 45 speedy trial time is calculated from the time the new charge was filed.4  

                                                                                                                                                                                                



                                                                                                                                                                                   

                               Criminal  Rule  45(c)(3)  - and,  in  particular,  the  term "same  criminal  



                                                                                                                                                                        

episode" - is derived from former Standard 12-2.2 of the American Bar Association's  



        2      Alaska R. Crim. P. 45(c)(1);                                  see also Alaska R. Crim. P. 45(e) (listing exceptions that   



toll the speedy trial time).  



        3      Alaska R. Crim. P. 45(c)(3).  



        4      Id.  



                                                                                              - 4 -                                                                                        2607
  


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

                                                                                         5  

Standards for Criminal Justice.                                                               As the Commentary to that Standard explains, the                                                              



purpose of applying the same speedy trial calculation to all charges arising from the                                                                                                                                                   



"same criminal episode" is to                                                           ensure that the prosecution                                                      is not penalized "simply                         



because the defendant is being                                                             held   to   answer   on   an   unrelated   offense," while the                                                                              



defendant does not lose the benefit of a speedy trial "simply because the offense charged                                                                                                                                  



                                                                                                                                                                                                                                               6  

 ... differs somewhat from the offense for which the defendant is being held to answer."                                                                                                                                                            



                                                                                                                                                                                                                           

As the Commentary also clarifies, the speedy trial protection granted to charges "arising  



                                                                                                                                                                                                                                    

out of the same criminal episode" is distinct from the due process protections that exist  



                                                                                                                                                                                                            

to protect defendants from the more general problem of pre-accusation prosecutorial  

delay.7  



                                                                                                                                                                                                                                            

                                     The former ABA standard refers to charges "based on the same conduct or  



                                                                                                              8  

                                                                                                                                                                                                                                

                                                                                                                   The Commentary explains that the term"same  

arising fromthe same criminal episode." 



         5         See  2 ABA Standards for Criminal Justice  12-2.2(a) (2d ed. 1982);                                                                                                            Peterson v. State,  



562 P.2d 1350, 1357-58 (Alaska 1977) (explaining that this portion of Rule 45 is derived                                                                                                        

from the ABA standards and interpreting the Alaska rule accordingly).  

                   We note that the ABA significantly revised its speedy trial standards in 2006 and the                                                          

new speedy trial standards are more flexible than the previous standards and provide the trial   

courts  with  more  discretion  to  set  shorter  and  longer   speedy trial                                                                                                            times  as  the  specific  

circumstances of a case may require.                                                              See  ABA Standards for Criminal Justice, Speedy Trial   

and Timely Resolution of Criminal Cases,  12-2.2 (3d ed. 2006).  



         6         2 ABA Standards for Criminal Justice  12-2.2(a) cmt. at 12-21 (2d ed. 1982).  



         7        Id.  at  12-23-25;  see  also  State  v.  Gonzales,  156  P.3d  407,  412  (Alaska  2007)  

                                                                                                                                                                                            

(recognizing the due process claim of pre-accusation delay under the Alaska Constitution);  

                                                                                                                                                              

 United States v. Marion, 404 U.S. 307 (1971).  



          8        2 ABA Standards for Criminal Justice  12-2.2(a) (2d ed. 1982).  We note that the  

                                                                                                                                                                                                     

predecessor to the current Rule 45(c)(3) was also based on the ABA standards, but it referred  

to new charges "arising out of the same conduct."  In Peterson v. State, the Alaska Supreme  

                                                                                                                                                                                            

Court held that Rule 45(c)(3) should be read consistently with the ABA standard that it was  

                                                                                                                                                        

                                                                                                                                                                                                              (continued...)  



                                                                                                                  -  5 -                                                                                                           2607
  


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

conduct" covers "those cases where several offenses arise out of the same act, [such] as                                                           



                                                                                                                                 9  

where a defendant recklessly operates an automobile and kills two persons."                                                          Likewise,  



                                                                                                                                           

the term "same criminal episode" covers those situations involving multiple but related  



                                                                                                                                                   

criminal acts such as "the simultaneous robbery of seven individuals," "the killing of  



                                                                                                                                            

several people with successive shots froma gun," "the successive burning of three pieces  



                                                                                                                                                   

of property," or "such contemporaneous and related crimes as burglary and larceny, or  



                                             10  

                             

kidnapping and robbery." 



                                                                                                                                                  

                       Alaska appellate court decisions have also provided further guidance on  



                                                                                                                                        

whencriminal offenses should beconsidered as"arisingfromthesamecriminalepisode"  



                                                                                                           11  

                                                                                                                                                

for purposes of the speedy trial calculation under Rule 45(c)(3).                                              In State v. Dunten, this  



      8     (...continued)  



modeled on and that the term "same conduct" therefore also included the concept of "same  

                                                                                                                                            

criminal  episode."                Peterson,  562  P.2d  at  1356-58  (citing  former  Alaska  R.  Crim.  P.  

                                                                                                       

45(c)(1)).  In 1993, the term "same criminal episode" was officially substituted for "same  

                                                                                                                   

conduct" in Rule 45(c)(1) and paragraph (c)(1) was renumbered as (c)(3).  Supreme Court  

Order No. 1127 (1993).  



      9     2 ABA Standards for Criminal Justice  12-2.2(a) cmt. at 12-21 (2d ed. 1982).  



      10   Id.  



      11  

                                                           

            See, e.g., Westdahl v. State, 592 P.2d 1214, 1216 (Alaska 1979) (concluding, under  

                                                                   

former version of Rule 45, that speedy trial time on drunk driving charge began running  

when defendant was arrested for violating an ordinance that prohibited intoxicated persons  

                                                             

from possessing open containers of alcohol while driving because the two charges shared  

                                                                                                                                   

similar elements and involved the same evidence); Peterson, 562 P.2d at 1358  (concluding  

                                                                                              

that the successive killing of four individuals arose out of same criminal episode for purposes  

                                                                           

of calculating defendant's speedy trial time); Koch v. State, 653 P.2d 664, 668 (Alaska App.  

                                                    

1982) (concluding that speedy trial time for negligent homicide charge began running when  

                                                                                                                                  

the State charged defendant with traffic infraction for following too closely because the  

negligent homicide charge was predicated entirely on the defendant's conduct in allegedly  

                                                                                                                  

following  too  closely);  State  v.  Williams,  653  P.2d  1067,  1070  (Alaska  App.  1982)  

                                                                                                                               (continued...)  



                                                                       -  6 -                                                                2607
  


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

Court summarized the prior Alaska case law and identified the governing principle as                                                                                                                  



follows:     



                               No Alaska speedy trial case has found separate charges to                                                                              

                               arise from the same criminal episode merely because they                                                                          

                               occurred simultaneously or at closely related times.                                                                      In each   

                               case, some additional similarity between the initial and later                                                                    

                               charges   -   either   a   causal   link   or   a   close   evidentiary   or  

                               elemental "nexus" - has justified the finding of a single                                                                     

                               criminal episode.                        12  



                                                                                                                                                                                                      

Thus, under Alaska law, criminal offenses that occur within close temporal proximity to  



                                                                                                                                                                                                   

one another should be considered as arising out of the "same criminal episode" for  



                                                                                                                                                                                              

purposes of calculating the defendant's speedy trial time only when there is a close  



                                                                                                                                                                                           

elemental or evidentiary overlap between the charged offenses or when there is a causal  



                                                                                                                                                             

link that directly connects the commission of one criminal offense to the other offense  



                                                                                                                                                        

- such as exists in the "contemporaneous and related crimes of burglary and larceny,  



                                                                                                                                                                                                

kidnapping and robbery" mentioned in the ABA commentary.  Other jurisdictions with  



                                                                                                                                                                                          13  

                                                                                                                                                                                               

speedy trial rules modeled on the same ABA standard use similar formulations. 



        11      (...continued)  



(concluding that the defendant's arrest for murder also commenced the running of the speedy  

                                                                                                                                                                                    

trial time for subsequently filed evidence tampering charges because a clear causal link  

                                                               

existed between William's commission of the murder and his attempt to dispose of the body).  

                                                                                                                                                                                     



        12      State v. Dunten, 785 P.2d 907, 909 (Alaska App. 1990).  



        13  

                                                                                                                                                                         

                See, e.g., State v. White, 990 P.2d 90, 97-98 (Haw. 1999) (defining "same criminal  

                                                                                                                                                                                      

episode" as requiring a close relationship between the two offenses such that "a complete  

                                                                                                                                                                                      

account of one charge cannot be related without referring to details of the other charge");  

State v. Kindsvogel, 69 P.3d 870, 873 (Wash. 2003) (concluding that the offenses must share  

                                                                                                                                                                         

"close logical and temporal proximity" and applying the same definition of "same criminal  

                                                                                        

episode" that applies in the mandatory joinder context).  



                                                                                                -  7 -                                                                                        2607
  


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

                     After articulating this standard in                  Dunten, we then applied it to the facts of                    



               14  

that case.                                                                                                                              

                   Dunten involved a woman who shot her husband following an argument in  



                     15 

a parked car.                          

                         Prior to the shooting and immediately after the shooting, Dunten (who  



                                                 16  

                                                                                                                                  

                                                     Dunten was arrested and prosecuted for driving while  

was intoxicated) drove the car. 

                                17  However, the State did not charge Dunten with the murder of her  

                                                                                                                                      

                 

under the influence. 

husband until eighteen months later.18   Dunten moved to dismiss the murder indictment  

                                                                                                                          



under Criminal Rule 45, arguing that the State's delay in bringing that charge violated  

                                                                                                           

her speedy trial rights under that rule.19   Dunten argued that the driving while under the  

                                                                                                                                      



influence charge and the murder charge both arose out of the "same criminal episode"  

                            



and therefore the speedy trial time for the murder charge began running when the DUI  

                                                                                                                                   

charge was served on Dunten.20  

                                                                                                                              

                                                   The trial court agreed with Dunten that the two offenses  



                                                                                                                         

arose out of the same criminal episode and the court dismissed the murder indictment  



                                                                   21  

                                                                         

with prejudice under Criminal Rule 45(g). 



                                                                                                                                      

                     We reversed this ruling on appeal, concluding that the two charges -  



                                                                                                                              

although temporally linked - were not sufficiently related to qualify as charges "arising  



                                                                                                                                    

from the same criminal episode" for purposes of calculating Dunten's speedy trial time  



      14  Dunten, 785 P.2d at 907-08, 911.  



      15  Id. at 907.  



      16  Id.  



      17  Id. at 907-08.  



      18  Id. at 908.  



      19  Id.  



     20    See id.  



     21   Id. at 908-09.  



                                                                 -  8 -                                                           2607
  


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

under Rule 45(c)(3).22  As we explained, the two charges were not causally connected   



-  that is, Dunten's driving while under the influence was not the cause of her husband's                                              



           23  

death.                                                                                                                                           

               The two charges also did not share any elements in common, and proof of each  



                                                                                                    24  

                                                                                                         

                                                                                    

crime would require an entirely different set of evidence. 



                       We acknowledged that the crimes could be viewed as interrelated because  

                                                                                                                                           

evidence of Dunten's intoxication was likely to play a role in both prosecutions.25  

                                                                                                                                                 But  



                                                                                                                                                   

weemphasized that intoxicationis notan essential elementofsecond-degreemurder, and  



                                                                                                                                                  

that Dunten's separate criminal acts of driving while under the influence otherwise had  



                                                                             26  

                                                                                                                                                   

"virtually no bearing on the murder charge."                                     We therefore concluded that because the  



                                                                                                                                                

connection between the two offenses was primarily temporal and incidental, the State  



                                                                                                                                          

was  entitled  to  prosecute  these  independent  criminal  offenses  separately  without  



                                                                                                                  27  

                                                                                                                      

                                                                                                             

implicating Dunten's speedy trial rights under Criminal Rule 45. 



                                                                                                                                                     28  

                                                                                                                                                          

                       We reached a similar conclusion in a more recent case, Pitka v. State. 



                                                                                                                                          

Pitka  involved a defendant who was arrested after for criminal trespass and criminal  



                29                                                                                                                                   30  

mischief.                                                                                                                                                 

                      During Pitka's arrest, the police discovered cocaine in Pitka's pocket. 



      22    Id. at 911.  



      23    Id.  



      24    Id.  



      25    Id.  



      26    Id. at 911.  



      27    Id. .  



      28    Pitka v. State, 19 P.3d 604 (Alaska App. 2001).  



      29    Id. at 605.  



      30    Id.  



                                                                        -  9 -                                                                 2607
  


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

However, the State did not indict Pitka for his possession of cocaine until six months                                                        



                                                                                                                                             31  

after it prosecuted Pitka for the criminal trespass and criminal mischief offenses.                                                               Pitka  



                                                                                                                                                   

moved to dismiss the later-filed drug charge, asserting that all three offenses arose from  



                                                                                                                                                    

"the same criminal episode" and that his speedy trial time on  the drug charge had  



                                                                                             32  

                                                                                                                                                     

                                                                                                  The superior court rejected this  

therefore already run under Criminal Rule 45(c)(3). 



                                                                               33  

                                                                                    

claim, and denied Pitka's motion to dismiss. 



                                                                                                                   34  

                                                                                                                                    

                        We affirmed the superior court's ruling on appeal.                                              In our decision, we  



                                                                                                                                         

acknowledged that Pitka's possession of cocaine could have "some arguable relevance"  



                                                                                                                               

to his criminal acts of trespass and criminal mischief in the sense that consumption of  



                                                                                                                                                        35  

                                                                                                                                                             

that cocaine could have been part of the reason why he committed those criminal acts. 



                                                                                                                                                  

We also acknowledged Pitka's argument that he was in possession of the cocaine when  



                                                                                                       36  

                                                                                                                                                     

                                                                                                            But we explained that this  

he committed the criminal trespass and criminal mischief. 



                                                                                                                                                       

arguable relevancy did not mean that the drug charge should therefore be viewed as  



                                                                                                                                    37  

                                                                                                                                                         

                                                                                                                                         Nor did it  

"arising out of the same criminal episode" as the other criminal charges. 



                                                                                                                                                  

mean that the same speedy trial calculation should govern the prosecution of all three  

offenses.38           As we pointed  out,  the drug charge shared no elements with the other  

                                                                                                                                                  



      31    Id.  



      32    Id. at 607.  



      33    Id.  



      34    Id.  



      35    Id.  



      36    Id.  



      37    Id.  



      38    Id.  



                                                                        -  10 -                                                                   2607
  


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

charges, and the evidence needed to prove the drug charge was entirely different from     



                                                                                39  

the evidence used to prove the other charges.                                                                                                  

                                                                                     There was also no direct causal link  



                                                                                           40  

                                                                                                 

between the drug offense and the other two offenses. 



                                                                                                                                                

                       In explaining the lack of causal relationship, we noted that "Pitka has not  



                                                                                                                                    

suggested that his acts of trespass and criminal mischief were motivated by a desire to  



                                                                                                                            41 

                                                                               

obtain or sell cocaine, or that these acts were related in any other way."                                                      As we have  



                                                                                                      

acknowledged elsewhere, this dictum has sometimes been misconstrued as suggesting  



                                                                                                                                               

that any articulable relationship between two criminal acts is sufficient to make thempart  



                                                                                                                        42  

                                                                                                                                                       

of the same criminal episode for purposes of Criminal Rule 45(c)(3).                                                         But our intent  



                                                                                                                                       

was only to highlight the absence of any direct causal relationship between the criminal  



                                                                                                                       

offenses at issue in Pitka and to distinguish those crimes from "such contemporaneous  



                                                                                                                                                 

and related crimes as burglary and larceny, or robbery and kidnapping" referred to in the  



                                                 43  

                          

relevant ABA Commentary. 



                                                                                                                                        

                       Thus,  because  we  concluded  that  there  was  an  insufficient  causal,  



                                                                                                                                                 

evidentiary, or elemental nexus connecting Pitka's drug offense to his commission of the  



                                                                                        

other offenses, we concluded that the felony drug charge did not arise out of the same  



                                                                                                                                                       

criminal episode as the earlier charges, and the trial court properly ruled that the State's  



      39   See id.
  



      40   See id.
  



      41   Id.
  



      42   See  State  v.  Sheldon,  2018  WL  566293,  at  *3  (Alaska  App.  Jan.  24,  2018)
  



(unpublished).  



      43    2 ABA Standards for Criminal Justice  12-2.2(a) cmt. at 12-21 (2d ed. 1982).  



                                                                     -  11 -                                                                2607
  


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

prosecution of Pitka for the felony drug offense was governed by its own independent                       

Rule 45 calculation.              44  



                                                                                                                                

                       We  come  to  the  same  conclusion  in  the  present  case.                                      As  previously  



                                                                                                                                           

explained, this case began as an investigation into suspected illegal drug activity.  But,  



                                                                                                                                     

during the course of that investigation, the trooper also became aware that Baker's  



                                                        

license was revoked and that he was on bail release.  Baker was subsequently arrested  



                                                                                                                                             

and prosecuted for driving while license revoked and violating the conditions of his  



                                                                                                                                 

release. Four months later, after that prosecution was resolved, the State separately  



                                                                                                                                      

indicted Baker for third-degree misconduct involving acontrolledsubstance. At Baker's  



                                                                                                                                           

request, the superior court dismissed this indictment with prejudice under Criminal Rule  



                                                                                                                                              

45(g) on the ground that the drug charge arose from "the same criminal episode" as the  



                                                                                                                                      

driving while license revoked charge because Baker's act of driving across the parking  



                                                                                                                                                    

lot had facilitated the underlying drug transaction at issue in the felony drug prosecution.  



                                                                                                                                              

                       This reasoning is inconsistent with our holdings in Pitka and Dunten .  As  



                                                                                                                                         

the  superior  court  otherwise  recognized,  the  two  prosecutions  involved  no  close  



                                                                                                                                    

evidentiary or elemental overlap. The two offenses shared no elements and the evidence  



                                                                                                                                            

required to prove each offense was entirely different.   Moreover, like in Pitka  and  



                                                                                                                                                    

Dunten,  the  primary  relationship  between  the  two  offenses  was  their  simultaneity.  



                                                                                                                                              

Although Baker may have driven his car as part of the drug transaction witnessed by the  



                                                                                                                                        

trooper, his driving was not an essential part of that drug transaction. As the State points  



                                                                                                                                               

out, it was not necessary for Baker to drive his car across the parking lot in order to  



                                                                                                                                              

facilitate the ongoing drug transaction. Baker could just as easily have walked across the  



                                                                                                                       

parking lot or he could have ridden as a passenger with someone else driving.  



   



      44   Pitka, 19 P.3d at 605.  



                                                                    -  12 -                                                              2607
  


----------------------- Page 13-----------------------

                                       Moreover, Baker's act of driving was not itself a criminal act.                                                                                                                     What made   



Baker's act of driving a separate chargeable criminal offense was the fact that his driver's                                                                                                                                            



license was revoked -acircumstanceentirely divorced fromthe drug transaction taking                                                                                                                                                         



place at the same time.                                                  The fact that Baker drove across the parking lot might be                                                                                                                    



"relevant" to the felony drug prosecution in the sense that it might be included as part of                                                                                                                                                             



the sequence of events witnessed by the trooper.                                                                                                       But the fact that Baker's driver's                   



license was revoked and that this act of driving was itself independently unlawful would                                                                                                                                                    



not be relevant - if it was even mentioned at all.                                                                                                 



                                       As our holdings in                                      Pitka  and  Dunten  make clear, offenses arise from the                                                                                               



"same criminal episode" for purposes of triggering the safeguards of Rule 45(c)(3) only                                                                                                                                                          



                                                                                                                                                                                                               45  

when their connection is more than merely temporal and incidental.                                                                                                                                                                         

                                                                                                                                                                                                                         Here, Baker  



                                                                                                                                                                                                                                                     

happened to commit the crime of driving while license revoked at the same time that the  



                                                                                                                                                                                                                                               

police were investigating  what appeared  to  be Baker's  involvement in  illegal drug  



                                                                                                                                                                                                                 

activity.  Because there was no close evidentiary, elemental, or causal nexus between  



                                                                                                                                                                                                                                             

what was otherwise two separate criminal acts, the State was entitled to prosecute Baker  



                                                                                                                                                                                                                                                       

for the independent crime of driving while license revoked (and the related crime of  



                                                                                                                                                                                                                                                     

violating conditions of release) without triggering Baker's right to a speedy trial on the  



                                                                                                                                                                                                                                                                 

separate  drug  offense.                                                  It was  therefore  error  for  the  superior  court  to  dismiss  the  



                                                                                                                                                                                                                                   

indictment for third-degree misconduct involving a controlled substance with prejudice  



                                   

under Rule 45(g).  



                    Conclusion  



                                                                                                                                                                                                                                                    

                                       We REVERSE the judgment of the superior court, and we reinstate the  



                                                        

indictment against Baker.  



          45        See Pitka, 19 P.3d at 607; Dunten, 785 P.2d at 909.  



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