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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Greenwood v. State (8/20/2010) sp-6503

Greenwood v. State (8/20/2010) sp-6503, 237 P3d 1018

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA

JENNIFER GREENWOOD, )
) Supreme Court No. S- 13449
Petitioner, )
) Court of Appeals No. A-9930
v. ) Superior Court No. 4FA-06-3015 CR
)
STATE OF ALASKA, ) O P I N I O N
)
Respondent. ) No. 6503 August 20, 2010
)
          Petition  for  Hearing  from  the  Court   of
          Appeals  of  the State of Alaska,  on  appeal
          from  the  Superior  Court,  Fourth  Judicial
          District, Fairbanks, Randy M. Olsen, Judge.

          Appearances:   Margi Mock,  Assistant  Public
          Defender,   and   Quinlan   Steiner,   Public
          Defender,  Anchorage, for Petitioner.   Diane
          L.  Wendlandt,  Assistant  Attorney  General,
          Office  of Special Prosecutions and  Appeals,
          Anchorage,  and Daniel S. Sullivan,  Attorney
          General, Juneau, for Respondent.

          Before:   Carpeneti,  Chief  Justice,   Fabe,
          Winfree, Christen, and Stowers, Justices.

          FABE, Justice.


I.   INTRODUCTION
          In August 2006 Jennifer Greenwood fled from her home in
North  Pole  in the middle of the night, believing that  she  was
about  to  be  attacked by her former boyfriend and that  he  was
planning  to burn down his parents nearby home.  After  screaming
for  help  and calling 911, Greenwood got into her van and  drove
away.   Greenwood  drove less than a mile  to  her  ex-boyfriends
parents  home and honked to try to wake them.  She then  drove  a
few  blocks  to the nearest well-lighted area along the  highway,
where she stopped to wait for the troopers who were responding to
her 911 call, flagging them down when they arrived.
          Greenwood  had been drinking, and she was arrested  and
charged  with felony driving under the influence.  After  hearing
evidence  and  testimony about these incidents, the  trial  court
denied  Greenwood  a  jury instruction on the necessity  defense,
concluding that Greenwood was justified only in driving as far as
her  ex-boyfriends parents home.  A jury convicted Greenwood, and
the  court  of  appeals affirmed, reasoning  that  Greenwood  had
presented no evidence that the danger continued after she reached
the parents home and that she had the alternative of remaining in
her  van  with  the  doors  locked.   Because  we  conclude  that
Greenwood presented some evidence of each of the elements of  the
necessity defense, we reverse and remand for a new trial  with  a
necessity instruction.
II.  FACTS AND PROCEEDINGS
          On  August 10, 2006, Jennifer Greenwood was home  alone
in  her  camper  in  North Pole waiting for Jay  Way  to  arrive.
Greenwood  wanted  to speak with Way, whom  she  had  dated  that
summer,  about her missing puppy that she suspected he  may  have
taken.   Because Greenwoods camper did not have electricity,  she
started  a  bonfire outside and lit some candles both inside  and
outside  of the camper.  As it grew late, Greenwood assumed  that
Way  was  not  coming, and she let the fire burn down  and  began
preparing for bed.
          But  Way  did arrive on his four wheeler,  and  he  and
Greenwood  had a couple of glasses of wine.  Greenwood  testified
that  when  she brought up the subject of the missing puppy,  Way
seemed kind of [] mad, which made her feel vulnerable and afraid.
Greenwood  testified that she had been told  that  Way  had  been
physically  abusive  with his previous girlfriend  and  had  drug
problems, and she decided that the best way to avoid conflict  in
the situation would be to agree to have sex with Way.
          Afterwards,  Greenwood went outside  to  check  on  the
fire.   While she was outside, she overheard Way mumbling  inside
the  camper  about how he was going to burn down both  Greenwoods
camper and his parents home and how he would not go back to  jail
because there wont be any witnesses.  Greenwood then observed Way
flinging  the  lit  candles  around  her  camper,  so  she  began
screaming for her neighbors to help her or call 911.  When no one
came  to her aid, Greenwood ran into the woods barefoot with  her
other  dog.   She  testified that she could  hear  Way  thrashing
around and throwing things, presumably in his search for her.
          Greenwoods dog got away from her, ran towards Way,  and
began to bark. Way picked up a two-by-four board and swung it  at
the  dog.   While Way was distracted, Greenwood sneaked into  the
camper  to  grab her purse containing her cell phone and  quietly
headed back into the woods.  Greenwood called her dog back to her
and dialed 911 to request help.  After she explained that Way was
trying  to burn down her house, the dispatch operator wanted  her
to  stay  on  the  line, but the dog got away again  and  started
barking  at  Way, so Greenwood hung up.  Way then hit  Greenwoods
dog with the two-by-four and began to ride all around on his four
wheeler.
          At  that point, Greenwood ran to her van with her  dog.
She  testified that she felt that she needed to get  out  of  the
situation and to drive to Ways parents house to warn them of  the
danger   because  she  did  not  have  their  telephone   number.
Greenwood decided to drive on the back road to reach Ways parents
house,  less than a mile away, in order to avoid the fast traffic
on  the  main  road and to avoid crossing paths  with  Way.  When
Greenwood arrived at Ways parents home, she saw that all  of  the
lights were off, so she slowed down and honked her horn to try to
rouse  them.  She did not stop because she was afraid of  running
into  Way, who lived with his parents, and because there were  no
lights  on at the house.  Greenwood then drove a couple of blocks
to  the nearest well-lighted spot on the main road, Holmes  Road.
She  parked  to wait for the troopers who would be responding  to
her  911  call, and when she saw them, she flagged them  down  by
honking her horn and opening her door.
          When  the  troopers arrived sometime after  2:00  a.m.,
they  found  Greenwood distraught and crying on the side  of  the
road.   While  interacting with Greenwood, the  troopers  smelled
alcohol   and   observed  that  she  was  exhibiting   signs   of
intoxication.  Greenwood submitted to a portable breath test  and
was  arrested for driving under the influence.  A Datamaster test
later  showed Greenwoods blood alcohol concentration to be  0.134
percent.
          Greenwood  was  charged with felony driving  under  the
influence  in  violation of AS 28.35.030(n) on August  16,  2006.
The  case was assigned to Superior Court Judge Randy M. Olsen for
trial.   Before  trial began, the State moved  for  a  protective
order  that  would prevent Greenwood from raising the affirmative
defense  of  necessity.  The trial court did  not  rule  on  this
matter  immediately,  but instead elected to  hear  the  evidence
before  making a decision.  After the State presented  its  case,
Greenwood  made  an  offer of proof to  the  court  on  what  her
expected evidence of the defense would be.  The court allowed her
to  present  this  evidence  despite  the  States  argument  that
Greenwood had reasonable alternatives available to her.
          After  hearing Greenwoods testimony, the superior court
stated that Greenwood had at least created a jury question as  to
whether  or not Greenwood had an adequate alternative  method  of
warning Ways parents of the evil she was seeking to prevent.  The
trial  court  ruled  as  a  matter of  law,  however,  that  upon
Greenwoods  arrival at Ways parents house, the  necessity  ended:
[O]nce  she got to the parents house, she would have accomplished
everything  that  she  wanted  to accomplish.   It  wouldve  been
warning  the parents.  It wouldve been finding a safe haven.   It
was  a house that she knew.  At that point, she was not justified
in  driving  further.   The  court explained  that  if  theres  a
continuing offense, like drunk driving, the illegal conduct  must
be  stopped  as  soon as the necessity ends, and  it  refused  to
instruct the jury on the necessity defense.
          Greenwood immediately moved for reconsideration  and  a
mistrial, arguing that it would be extremely prejudicial for  her
testimony  to be stricken.  The trial court denied  both  of  the
motions  but did not strike Greenwoods testimony.  Greenwood  was
convicted  and  sentenced to 24 months in prison with  20  months
suspended.
          Greenwood  appealed  her conviction  to  the  court  of
appeals,   arguing  that   she  was  entitled  to   a   necessity
instruction  under  the circumstances.1   The  court  of  appeals
affirmed  the  trial  courts  ruling, reasoning  that  Greenwoods
failure to remain at Ways parents house because she did not  wish
to  encounter  Way undermined her argument that it was  necessary
for  her to drive to their house to warn them of Ways intentions,
making  an  encounter with Way seemingly . . . inevitable.2   The
court of appeals further pointed out that Greenwood did not offer
any  evidence that Way ever arrived at his parents house or  that
she  would have been in danger had she simply stayed in her  car,
with  the doors locked, and continued honking her horn until  she
roused Ways parents.3
          Chief   Judge  Coats  dissented  from  the   memorandum
opinion,  maintaining that Greenwood had presented some  evidence
to  justify her decision to drive to the main road to contact the
state  troopers because her testimony demonstrated that  she  was
concerned  about  an encounter with Way and that  she  wanted  to
ensure  that the troopers were able to find both her and the  Way
residence.4   In the dissents view, a jury could reasonably  find
that  Greenwoods decision to avoid a confrontation with  Way  was
justifiable.5   Moreover, the dissent noted  that  Greenwood  had
asserted the basis for her defense before she was arrested.6
          We  granted  Greenwoods petition  for  hearing  on  the
question  of  whether she was entitled to a necessity instruction
at trial.
III. STANDARD OF REVIEW
          A  defendant is entitled to a jury instruction  on  the
necessity  defense if [she] presents some evidence in support  of
that  defense.7  We review whether a defendant has presented some
evidence  of  a  proposed defense de novo after  considering  the
entire  record8  and  viewing  the evidence  in  the  light  most
favorable to the defendant.9
IV.  DISCUSSION
The common law defense of necessity is available to
criminal defendants in Alaska except where preempted or excluded
by the legislature.10  To receive the benefit of a necessity
defense, the defendant must show the existence of three essential
elements:  1) [t]he act charged must have been done to prevent a
significant evil; 2) there must have been no adequate
alternative; 3) the harm caused must not have been
disproportionate to the harm avoided.11  When the defendant is
accused of a continuing offense, such as drunk driving, she must
also show some evidence that []4) she stopped violating the law
as soon as the necessity ended.12   In order to receive the
benefit of this defense, the accused must have reasonably
believed at the time of acting that the first, second, and . . .
fourth elements were present.13  The defendants value judgment
concerning the third element, whether the reasonably foreseeable
harm resulting from the violation would be less than the harm
resulting from compliance with the law, is evaluated objectively
using the facts as the defendant reasonably perceived them.14
          If  a defendant presents some evidence of each of these
elements, the defendant is entitled to a jury instruction on  the
necessity defense.15   Some evidence is evidence that, viewed  in
the  light  most  favorable  to  the  defendant,  would  allow  a
reasonable juror to find in the defendants favor on each  element
of the defense.16  The some evidence burden is not a heavy one  as
long  as  the  defendant produces some evidence to  support  each
element  of the defense, any weakness or implausibility  in  that
evidence is irrelevant17 and a matter for the jury, not  for  the
court.18  As the court of appeals noted, a strong argument can be
made  that  a  trial  judge should err  on  the  side  of  giving
instructions on a proposed defense in order to prevent  the  jury
from  considering  its own understanding of what  [the  proposed]
defense is in the absence of an instruction from the court.19
          Greenwood  argues that she presented some  evidence  of
each  element of the necessity defense and that she was therefore
entitled  to  a  jury  instruction.   The  State  counters   that
Greenwood  failed to present evidence from which  a  juror  could
conclude  that her stated belief in the need to continue  driving
after reaching the Way home was reasonable.  We consider de  novo
whether  Greenwood has presented some evidence  of  each  of  the
elements of the necessity defense.20
     A.   Greenwood Presented Some Evidence That She Drove  Under
          The Influence To Prevent A Significant Evil.
          
          Both  the trial court and the court of appeals accepted
Greenwoods  contention that she needed to  drive  away  from  her
camper  on the night in question to prevent a significant evil.21
But  both  courts  seemed to define the significant  evil  to  be
prevented  narrowly:  impending arson  perpetrated  against  Ways
parents.22   Greenwood argues a broader theory of the threat  she
was  seeking to avoid, that she was terrified for her safety  and
the safety of Ways parents.
          Greenwood testified that she overheard Way say that  he
was planning on burning down his parents home and would leave  no
witnesses and that she saw him take aggressive actions,  such  as
throwing lit candles inside her camper and hitting her dog with a
board.  This testimony provides some evidence that Greenwood  was
seeking to prevent several evils: physical harm to herself,  harm
to  Ways  parents, and arson to her home and Ways  parents  home.
These  harms  are significant and consistent with the requirement
that  the  harm sought to be avoided by a defendant  raising  the
necessity defense must have emanated either from a natural  cause
or from illegal human acts.23
          As  Chief  Judge  Coats pointed  out  in  his  dissent,
[u]nlike most cases where defendants claim, after the fact,  that
their  violation of the law was justified by necessity, Greenwood
asserted  the  basis for her defense before she  was  arrested.24
Greenwoods  fear apparently motivated her to call the police  and
          then flag them down, despite the fact that it was obvious that
she  had  broken the law by drinking and driving.  This persuades
us that she reasonably believed that her conduct was necessary at
the  time  of acting.  We conclude that Greenwood presented  some
evidence   of   the  first  element,  that  there  were   several
significant harms that her actions were calculated to avoid.
     B.   Greenwood  Presented Some Evidence That There  Were  No
          Adequate  Alternatives And That The Necessity Continued
          Until She Stopped Driving.
          We  next  consider  whether  Greenwood  presented  some
evidence  of both the second element  that there were no adequate
alternatives to the unlawful action  and the fourth element  that
the  legal  violation  stopped as soon as  the  necessity  ended.
There is some inherent factual overlap between the second element
and  the  fourth  element  because an  alternative  that  becomes
available  at  a  given point during a continuing  violation  can
serve   to   end  the  necessity.   Because  we   look   to   the
reasonableness  of Greenwoods beliefs at the time  she  acted  in
evaluating  whether she has presented some evidence of  both  the
second  and  fourth  elements, we will  consider  these  elements
together.25
          The trial court agreed with Greenwood that she provided
some evidence of a necessity that required her to drive away from
her  camper  and to Ways parents house, and the court of  appeals
did  not  disturb this ruling.26  The court of appeals explained,
Greenwood presented no evidence to suggest that it was reasonable
for her to believe (1) that this danger remained an immediate one
[upon arriving at Ways parents house] and (2) that she needed  to
continue  driving  to avert it.27  The majority opinion  reasoned
that Greenwoods failure to stop at the Way residence because  she
did  not  want  to  encounter Way undercut her justification  for
driving  there  in the first place  warning Ways parents  of  his
imminent arrival and intentions.28
          The  court  of  appeals  also pointed  to  a  potential
alternative:
          In  addition, Greenwood offered  no  evidence
          that  she would have been in danger  had  she
          simply  stayed  in her car,  with  the  doors
          locked, and continued honking her horn  until
          she  roused Ways parents.  Greenwood may have
          subjectively  believed that it would  not  be
          safe  for her to follow this course of action
          but . . . a defendants subjective beliefs are
          not  sufficient, standing alone, to establish
          this prong of the necessity defense.[29]
          
          As  previously stated, in deciding whether a  defendant
has  produced some evidence that no adequate alternative  existed
and  that  the  violation of the law ceased  once  the  necessity
ended,  courts consider the defendants reasonable beliefs at  the
time, even if those beliefs are mistaken, rather than objectively
weighing all potential alternatives.30  The implausibility  of  a
defendants story, or any weakness in the evidence supporting that
story,  is  not  a  relevant consideration.31  This  standard  is
          applied to both aspects of the second element  whether the
defendant  believed  that alternatives existed  and  whether  the
defendant believed those alternatives were adequate  as  well  as
to the fourth element.  In applying the some evidence test in the
related  self-defense  context, Alaska case  law  has  emphasized
that,
          because  reasonableness is a factual question
          closely  allied with considerations involving
          the  credibility of witnesses and the  weight
          to  be given to their testimony, trial courts
          must   avoid  basing  decisions  as  to   the
          necessity of self-defense instructions on  an
          evaluation    of   the   reasonableness    of
          defendants  conduct . . . .  It  is  not  the
          province  of the judge to weigh the  evidence
          and  decide if a defendants subjective belief
          was reasonable or unreasonable.[32]
It  was therefore error for the court of appeals to conclude that
Greenwoods subjective beliefs were not sufficient to satisfy  the
some  evidence  test for the second and fourth  elements  of  the
necessity defense.
          This  is not to say, however, that a court must  always
hold  that  the some evidence test has been met when a  defendant
asserts  that  her  belief at the time was that  there  were   no
adequate   alternatives.   Instead,  as  the  court  of   appeals
explained in Siebold v. State, courts may refuse to instruct  the
jury  on the necessity defense when the defendant had clear legal
alternatives to violating the law.33  When a defendant  testifies
to  her beliefs at the time of acting, the question for the judge
is  whether  a  clear  legal alternative existed  such  that  the
defendant  is  unable as a matter of law to meet  her  burden  of
presenting some evidence that she reasonably believed that  there
were no adequate alternatives to her unlawful action.
          Both  this  court and the court of appeals have  upheld
rulings where the existence of clear legal alternatives prevented
a  defendant  from receiving a jury instruction on the  necessity
defense.   For  example,  in Nelson v. State  we  held  that  the
defendant,   who  had  unlawfully  used  two  Highway  Department
vehicles  to free his truck that was stuck in a marshy area,  had
failed  to  make  out the case for the necessity defense  because
several  people  had  stopped  and  offered  to  help  him,  thus
providing  lawful  alternatives.34  Similarly,  in  Cleveland  v.
Municipality  of Anchorage we held that the defense of  necessity
was  not available to defendants charged with trespassing  at  an
abortion  clinic  in  order  to  prevent  abortions  for  several
reasons, including that the defendants could have engaged in non-
criminal  forms  of  protest.35  The court  of  appeals  likewise
affirmed  the trial courts refusal to instruct the  jury  on  the
necessity defense in Schnaebel v. State when the defendant failed
to  pursue the judicial and administrative remedies available  to
resolve his claimed necessity.36  Finally, in Gerlach v. State the
court  of appeals concluded that a non-custodial mother  who  hid
her  daughter  out  of state for a year was  not  entitled  to  a
necessity  instruction based on her claim  that  the  father  was
          abusive because adequate remedies were available at law.37
          We   next   turn  to  the  question  whether  Greenwood
fulfilled  the  requirement of some evidence for the  second  and
fourth elements.  The some evidence test does not require
          that  the  defendant testify  or  even  offer
          direct  evidence  in his  own  behalf.   Some
          evidence  establishing  a  dispute  as  to  a
          factual issue may arise from weakness in  the
          prosecutions evidence or from impeachment  of
          its   witness.    Similarly,   circumstantial
          evidence presented as part of the states case-
          in-chief may give rise to some evidence of  a
          disputed fact.[38]
          
In  this  case,  we  consider  whether  Greenwood  provided  some
evidence that she reasonably believed at the time of driving that
she had no adequate alternatives and that the necessity continued
until she stopped her vehicle.  These questions must be evaluated
in  light of our previous conclusion that the harms Greenwood was
seeking to prevent included the threat to her own safety.
          Our  decision  in McGee v. State provides  guidance  on
when  a court should conclude that a defendant has provided  some
evidence  of  a  subjective belief that there  were  no  adequate
alternatives  available.39   In McGee,  the  defendant  presented
evidence that his mothers boyfriend threatened that he would  run
over the defendant, McGee.40  McGee maintained that he feared that
the  boyfriend  would  make good on this  threat  because  of  an
earlier  physical altercation, so McGee claimed to  have  smashed
the  windows of the boyfriends pickup truck to make sure that the
boyfriend  could not see him to run him over.41   We  held  that,
although  there were likely many other available options,  McGees
testimony  raised  a  question  of  fact  concerning  whether  he
reasonably failed to recognize those other options because of his
agitated mental state.42  Consistent with McGee, we also consider
that the threat to Greenwoods safety was fresh and imminent,  and
we  take  into account the emotions that a person in her position
could have experienced.
          Greenwoods evidence, including her testimony  that  she
first  screamed for help and called 911 before deciding to  drive
away  to  escape  a  dangerous situation, demonstrates  that  she
exhausted the most obvious of her alternatives before deciding to
take the illegal action.  She also offered testimony that she was
unwilling  to  stop at the Way residence and risk a confrontation
with  her attacker because Way was on a four wheeler and she  was
unsure  of  his whereabouts when she approached the Way residence
in  her van.  As Greenwood argued, she had reason to suspect that
Way  was  likely to return to his parents house because Way  also
live[d]  at  that  house.   Greenwoods  other  actions,  such  as
stopping  of  her  own accord in a well-lighted area,  where  she
waited  for  police until she flagged them down,  are  consistent
with  her understanding of the necessity  her need to escape from
Way and to warn his parents of the potential harm by waking them.
          The court of appeals concluded that Greenwood failed to
present some evidence of the fourth element because Greenwood did
          not offer any evidence that it would have been dangerous for her
to  sit  in  her locked van outside of Ways parents  house  while
honking  to wake the parents.43  We disagree.  To meet  the  some
evidence  test for the fourth element, Greenwood is not  required
to   present   evidence  that  every  possible  alternative   was
unavailable  to her; instead she need only provide some  evidence
that  she reasonably believed that the necessity continued  until
the point that she stopped violating the law, even if that belief
was mistaken.44  Furthermore, even if she was required to present
evidence  that she reasonably believed that this alternative  was
not  available  to  her  and  that  she  believed  the  necessity
continued  because  she  could  not  stop  and  wait,  Greenwoods
testimony  that  Way  had  access to a two-by-four  that  he  had
previously  employed  as  a weapon against  her  dog  provided  a
foundation for a reasonable belief that she was not safe  waiting
in a dark car, even with the doors locked.
          We   therefore   conclude  that  Greenwoods   testimony
constituted some evidence sufficient to enable a reasonable juror
to  decide  that Greenwood reasonably believed that  she  had  no
adequate  alternatives to breaking the law by driving  under  the
influence  even if that belief was mistaken  and that she stopped
driving once she believed the necessity had ended.
     C.   Greenwood  Presented Some Evidence That The  Reasonably
          Foreseeable  Harm  Resulting From Her  Unlawful  Action
          Would  Be  Less  Than  The  Harm  Resulting  From   Her
          Compliance With The Law.
          
          The third element of proportionality requires that [a]n
objective  determination  .  .  .  be  made  as  to  whether  the
defendants value judgment was correct, given the facts  as  [she]
reasonably perceived them.45   As discussed previously, the trial
court  and  the court of appeals assumed that the only harm  that
Greenwood was seeking to avoid was possible arson or a threat  of
arson, but we have concluded that the potential harm to Greenwood
herself  must  also  be  considered.   The  harm  that  Greenwood
identifies, including risk to her personal safety because of Ways
threats and physical aggression, are significant.46  Further, her
testimony about the rumors that she had heard about Ways drug use
and  violent  history  are  relevant because  the  third  element
requires  an objective comparison of the relative seriousness  of
the  harms  caused and avoided when viewed in light of the  facts
perceived by the defendant.47
          Our  analysis  and balancing process must also  account
for  the  serious risk that drunk driving poses to the  public,48
particularly because we consider the harm reasonably  foreseeable
from a defendants actions, not the harm that actually occurred.49
Greenwood  had  already  exhausted  available  options  such   as
screaming for help and calling the police, and she testified that
she took concrete steps to mitigate the risk of driving under the
influence by driving on a back road and reaching speeds  of  only
35  miles  per  hour.   Although driving any distance  under  the
influence poses a significant risk, Greenwood testified that  she
continued  driving  only a couple of blocks after  reaching  Ways
parents  home until she reached a well-lighted home on the  route
          that she assumed that the troopers would take in responding to
her  911 call  a total drive of less than one mile from beginning
to end.
          Considering  that  the trial court  and  the  court  of
appeals  agreed  that  Greenwood was  justified  in  driving  the
distance  between her camper and the Way residence, the  question
presented  is  whether Greenwoods decision  to  continue  driving
those  last few blocks was disproportionate to the harm  she  was
seeking  to prevent  potential physical harm to herself resulting
from  an altercation with Way.  As Chief Judge Coats pointed  out
in  his dissent, [p]olice agencies often warn the public to  seek
police  help  rather  than to directly intervene  in  potentially
dangerous  situations.50   The  rationale  behind  the  necessity
defense  is  one of public policy: the law ought to  promote  the
achievement of higher values at the expense of lesser values, and
sometimes  the  greater good for society will be accomplished  by
violating the literal language of the criminal law.51
          Because  the threshold for the some evidence test  only
requires  more  than  a  scintilla of  evidence  with  any  doubt
resolved  in  Greenwoods favor,52 we conclude that Greenwood  has
offered some evidence of the third element.  Viewing the totality
of  the situation from Greenwoods perspective and considering her
testimony  regarding her emotional distress, we  cannot  conclude
that  there was not some evidence presented that the serious risk
that   she   posed   by   driving   under   the   influence   was
disproportionate  to  the  serious physical  injury,  significant
property  damage, and other harms she reasonably  feared  at  the
time.
V.   CONCLUSION
          Because  we  conclude that Greenwood has met  the  some
evidence test with respect to all four elements required  for  an
instruction  on the necessity defense, we REVERSE her  conviction
and  REMAND for a new trial at which an instruction on Greenwoods
necessity defense be given.
_______________________________
     1     Greenwood  v. State, Mem. Op. & J. No. 5438,  2009  WL
250348 (Alaska App., Feb. 4, 2009).

     2    Id. at *2-*3.

     3    Id. at *3.

     4    Id. at *4 (Coats, C.J., dissenting).

     5    Id.

     6    Id.

     7     State  v.  Garrison,  171 P.3d 91,  94  (Alaska  2007)
(footnote omitted).

     8    Id.

     9    McGee v. State, 162 P.3d 1251, 1261 (Alaska 2007).

     10     P.3d  at 94; Cleveland, 631 P.2d at 1078.Garrison,  1
71 P.3d at 94; McGee v. State, 162 P.3d 1251, 1261 (Alaska 2007).
McGee,   162  P.3d  at  1261.Garrison,  171  P.3d   at   95   (in
ternal quotation marks omitted).Seibold

     11    . State, 959 P.2d 780, 783 (Alaska App. 1998) (quoting W
illett  v.  State,  836 P.2d 955, 958 (Alaska App.  1992)).Id.  a
t 782 (quoting

     12    lger v. State, 648 P.2d 111, 114 n.3 (Alaska App. 1982
)).Garrison,  171 P.3d at 94.Greenwood v. State,  Mem.  Op.  &  J
.  No.  5438,  2009 WL 250348, at *2 (Alaska App., Feb.  4,  2009
).Id.Bird  v.  Municipality  of  Anchorage,  787  P.2d  119,   12
2 (Alaska Ap

     13     1990).Greenwood, 2009

     14     Nelson,  597 P.2d at 980 n.6; see also Garrison,  171
P.3d at 94; Cleveland, 631 P.2d at 1078.

     15     Garrison,  171 P.3d at 94; McGee v. State,  162  P.3d
1251, 1261 (Alaska 2007).

     16    McGee, 162 P.3d at 1261.

     17     Garrison,  171 P.3d at 95 (internal  quotation  marks
omitted).

     18    Seibold v. State, 959 P.2d 780, 783 (Alaska App. 1998)
(quoting Willett v. State, 836 P.2d 955, 958 (Alaska App. 1992)).

     19    Id. at 782 (quoting Folger v. State, 648 P.2d 111, 114
n.3 (Alaska App. 1982)).

     20    Garrison, 171 P.3d at 94.

     21     Greenwood v. State, Mem. Op. & J. No. 5438,  2009  WL
250348, at *2 (Alaska App., Feb. 4, 2009).

     22    Id.

     23     Bird v. Municipality of Anchorage, 787 P.2d 119,  122
(Alaska App. 1990).

     24     Greenwood,  2009  WL  250348,  at  *4  (Coats,  C.J.,
dissenting).

     25     See State v. Garrison, 171 P.3d 91, 94 (Alaska 2007);
see  also  McGee  v. State, 162 P.3d 1251, 1261  &  n.50  (Alaska
2007); Cleveland v. State, 631 P.2d 1073, 1078 (Alaska 1981).

     26    Greenwood, 2009 WL 250348, at *2.

     27    Id. at *3.

     28    Id. at *2-*3.

     29    Id. at *3.

     30    Garrison, 171 P.3d at 94.

     31     Toomey  v.  State, 581 P.2d 1124, 1126  n.10  (Alaska
1978).

     32     Paul  v. State, 655 P.2d 772, 778 (Alaska App.  1982)
(internal quotation marks omitted); see also McGee v. State,  162
P.3d  1251, 1262 n.54 (Alaska 2007) (recognizing that  the  self-
defense context is analogous to the necessity defense context).

     33    959 P.2d 780, 783 (Alaska App. 1998).

     34    597 P.2d 977, 980 (Alaska 1979).

     35     631  P.2d 1073, 1079 (Alaska 1981); see also Bird  v.
Municipality  of  Anchorage, 787 P.2d 119,  121-22  (Alaska  App.
1990).

     36    663 P.2d 960, 966 (Alaska App. 1983).

     37    699 P.2d 358, 362 (Alaska App. 1985).

     38     Seibold  v. State, 959 P.2d 780, 782-83 (Alaska  App.
1998)  (quoting Willett v. State, 836 P.2d 955, 958 (Alaska  App.
1982)).

     39    162 P.3d 1251 (Alaska 2007).

     40    Id. at 1252.

     41    Id.

     42    Id. at 1262 (considering the defendants testimony about
his shock and surprise as enough to raise a question of fact that
he  was  unable to recognize other available options at the  time
that he took the unlawful action).

     43     Greenwood v. State, Mem. Op. & J. No. 5438,  2009  WL
250348, at *3 (Alaska App., Feb. 4, 2009).

     44    Garrison v. State, 171 P.3d 91, 94 (Alaska 2007).

     45     Id.  (quoting Cleveland v. Municipality of Anchorage,
631 P.3d 1073, 1078 (Alaska 1981)).

     46     This  case can easily be distinguished from Garrison,
where Garrison failed to present any evidence that could permit a
reasonable jury to find that any of the alleged harms she avoided
outweighed  the  very real dangers she risked by  driving  drunk.
Id.  at 97.  As discussed, Greenwood presented evidence that  the
harms  she sought to avoid were significant and included physical
injury, arson, and death and that she perceived these harms to be
imminent, not speculative like those argued by Garrison.

     47    McGee, 162 P.3d at 1261 (emphasis added).

     48     See  Jansen v. State, 764 P.2d 308, 311 (Alaska  App.
1988)  (A drunk driver presents a universal risk to the community
at large . . . .).

     49    Nelson v. State, 597 P.2d 977, 979-80 (Alaska 1979).

     50     Greenwood  v State, Mem. Op. & J. No. 5438,  2009  WL
250348,  at  *4  (Alaska  App.,  Feb.  4,  2009)  (Coats,   C.J.,
dissenting).

     51    Nelson, 597 P.2d at 979.

     52    Garrison v. State, 171 P.3d 91, 97 (Alaska 2007).

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