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Muller v. State (11/21/2008) ap-2193

Muller v. State (11/21/2008) ap-2193

     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

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) Court of Appeals No. A-9934
Appellant, ) Trial Court No. 4FA-07-548 CR
v. ) O P I N I O N
Appellee. ) No. 2193 November 21, 2008
          Appeal  from the District Court, Fourth  Judi
          cial  District,  Fairbanks, Jane  F.  Kauvar,

          Appearances:   James W. McGowan,  Sitka,  for
          the    Appellant.   Blair   M.   Christensen,
          Assistant Attorney General, Office of Special
          Prosecutions  and  Appeals,  Anchorage,   and
          Talis  J. Colberg, Attorney General,  Juneau,
          for the Appellee.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Stewart, Judges.

          COATS, Chief Judge.

          Don  G. Muller was convicted of criminal trespass after
he  entered United States Senator Ted Stevenss office to  protest
the  war  in Iraq and then refused to leave when it was time  for
the  office  to  close  for  the day.   Muller  argues  that  his
conviction should be reversed because the district court  wrongly
instructed  the jury on the necessity defense.  We conclude  that
Muller  was  not  entitled to a necessity defense  and  therefore
affirm his conviction.

          Facts and proceedings
          On  February 20, 2007, at about 1:10 p.m.,  Muller  and
eight  or  nine  other  protestors arrived  at  Senator  Stevenss
Fairbanks office to protest the war in Iraq.  Senator Stevens was
not  there at the time.  Muller told Diane Hutchison, who ran the
Fairbanks office for Stevens, that the protestors planned to read
a  list  of  6000  names of civilians killed  in  the  Iraq  war.
Another  protester  said  he  had an  additional  3200  names  of
American  soldiers who had been killed.  The protestors proceeded
to  read  the  names.  At 4:00 p.m., the offices  normal  closing
time,  the  protestors  still  had  about  8500  names  to  read.
Hutchison  asked  the  protestors  to  come  back  the  following
morning.  One of the protestors then said: [It] wouldnt be  civil
disobedience  if we left when you asked, would  it?   A  security
guard then asked the protestors to leave.  When they refused, the
guard  called  the police, and the police arrived at  about  4:15
p.m.   Three of the protesters, including Muller, were  arrested.
Muller  was charged with the misdemeanor offense of second-degree
criminal trespass.1
          Muller  appeared pro se.  Before trial, he gave  notice
that  he  intended  to  raise the defense of  necessity,  and  he
proposed  the pattern jury instruction on the necessity  defense.
He  also sought admission of thirteen articles he claimed  showed
that his protest was aimed at stopping an illegal war.
          District  Court  Judge  Jane F. Kauvar  denied  Mullers
request  to  admit  the articles on the war.  She  did,  however,
allow  Muller to present a necessity defense, though she rejected
the pattern jury instruction and substituted her own.  Muller did
not object to Judge Kauvars substitute instruction.
          In  his  testimony  at trial, Muller admitted  that  he
stayed  in  Senator Stevenss office after closing.  He  testified
that  he did so to stop a significant harm  what he believed  was
an  illegal war in Iraq  and that he believed he had no  adequate
alternative  to bring about an end to the war.  He  said  he  had
pursued other activities, from education to films to non-violence
training,  and that none of these activities had ended  the  war.
He also testified that he believed the Iraq war was an infinitely
greater harm than staying past closing in a government office.
          The jury rejected Mullers defense and convicted him  of
trespass.  He appeals.

          Why  we conclude Muller was not entitled to a necessity
          To  establish  a  necessity defense the defendant  must
show  that: (1) the act charged was done to prevent a significant
evil;  (2)  there was no adequate alternative; and (3)  the  harm
caused was not disproportionate to the harm avoided.2  The  first
two  elements  are  established if the defendant  shows  that  he
reasonably  believed  at the time of acting that  those  elements
were present, even if that belief was mistaken.3  As to the third
element,  which  involves balancing the harm caused  against  the
harm  sought  to  be  avoided, the court must make  an  objective
          determination ... as to whether the defendants value judgment was
correct,  given the facts as [the defendant] reasonably perceived
          A  defendant  is not entitled to a jury instruction  on
the  defense  of  necessity and is not  entitled  to  argue  that
defense  to the jury unless there is some evidence of necessity.5
In  this  context,  some  evidence is a term  of  art;  it  means
evidence  which,  if viewed in the light most  favorable  to  the
defendant, is sufficient to allow a reasonable juror to  find  in
the defendants favor on each element of the defense.6
          Muller  argues  that Judge Kauvars instruction  on  the
necessity defense was flawed because it did not inform  the  jury
that  the  first two elements of the defense  that  the  criminal
trespass  was done to prevent a significant evil and  that  there
were no adequate alternatives to bring about an end to the war in
Iraq   were  proved  as  long  as he  reasonably  believed  those
elements were present, even if his belief was mistaken.
          Muller   is  right  that  the  jury  was  not  properly
instructed  on the mental state he had to prove to establish  the
first two elements of the necessity defense.  The record suggests
that Judge Kauvar intended to instruct the jury in line with  our
decision  in  Bird v. Anchorage,7 which clearly states  that  the
first  two  elements of the defense only require proof  that  the
defendant reasonably believed those elements were present.8   But
this  language was not in the instruction read and  submitted  to
the  jury.  Muller argued to the jury that he held these  beliefs
and  that  his beliefs were reasonable.  But given the  erroneous
instruction,  the  jurors  may not have understood  that  Mullers
reasonable beliefs were enough to satisfy the first two  elements
of the defense.
          Even   so,  Muller  never  objected  to  Judge  Kauvars
instruction, so he cannot prevail on appeal unless  he  shows  he
was  substantially prejudiced by the courts error.9  We  conclude
that  Muller  cannot  show substantial prejudice  because,  as  a
matter  of  law,  he  was not entitled to raise  the  defense  of
necessity in the circumstances of his case.
          The  Alaska Supreme Court addressed a similar situation
in   Cleveland   v.  Anchorage.10   In  Cleveland,  anti-abortion
protestors  sought to raise a necessity defense after  they  were
charged  with criminal trespass for disrupting the operations  of
an  abortion  clinic  by blocking the doorways  and  refusing  to
leave.11  The supreme court found that the necessity defense  was
unavailable in this circumstance for several reasons.  First, the
defense  cannot be raised if the human harm sought to be  avoided
is  a  legal act, and abortion is lawful in Alaska.12  Second,  a
protest aimed at political change does not generally present  the
type  of  emergency  situation that entitles  a  defendant  to  a
necessity defense.13
          In  reaching this latter conclusion, the supreme  court
adopted  the  reasoning of the Hawaii Supreme Court in  State  v.
Marley.14   In Marley, the defendants were charged with  criminal
trespass for entering the offices of Honeywell Corporation in  an
effort to stop what they believed were war crimes being committed
by  Honeywell.15  The protest was non-violent, but  it  disrupted
normal business operations.16  The supreme court found that two of
          the Hawaii Supreme Courts grounds for rejecting the necessity
defense  in  Marley  were  applicable  in  Cleveland:   (1)   the
defendants  had other forms of non-criminal protest available  to
enable  them to dramatize, and hence hopefully terminate, conduct
which  they may view [as] harmful, and (2) the defendants actions
were  not  reasonably designed to actually prevent the threatened
greater harm ... Under any possible set of hypotheses, defendants
could foresee that their actions would fail to halt the practices
to which they objected.17
          In  Cleveland, the defendants attempted to  distinguish
Marley,  arguing that the alleged harm in Marley  the manufacture
of  weapons  for  use  in  the Vietnam  war   was  spacially  and
temporally  remote  from the site of the  trespass,  while  their
protest  halted  abortions scheduled in  the  very  rooms  [they]
blocked, within minutes of the time of their entry.18  The supreme
court found that this distinction was not determinative:
          In   both  cases,  it  was  obvious  to   the
          trespassers that their actions could not halt
          the alleged greater harm to which society had
          given  its  imprimatur, but rather  that,  at
          best, the harm could be only postponed for  a
          brief   interval,  following  which  societys
          normal  operations would reassert themselves.
          This  was  simply not the kind  of  emergency
          situation  contemplated  by  the  defense  of
               Further,    in   spite   of   appellants
          protestations  to the contrary,  their  acts,
          like  the acts of the Marley defendants,  are
          much  more  appropriately  characterized   as
          protesting with the intent to dramatize,  and
          hence hopefully terminate, conduct which they
          may  view [as] harmful, [than], as appellants
          describe   their   own   behavior,   directly
          intervening  to avert an imminent  threat  to
          human  life. Appellants protest was, in fact,
          part of a nationwide protest that resulted in
          several  similar  arrests  in  other  cities.
          Appellants  appear to concede that  if  their
          actions are best described as a protest,  the
          necessity  defense would be unavailable.   We
          think   it   manifest  that   it   would   be
          inappropriate    to    characterize     these
          trespasses as anything other than a  protest,
          and  that  appellants argument  of  necessity
          must therefore be rejected.[19]
          This   reasoning  is  even  more  applicable   in   the
circumstances  of this case.  Although Muller testified  that  he
believed  the only adequate alternative to halting the  Iraq  war
was staying in Senator Stevenss office after closing  because  he
had already tried other types of protest and they had failed   he
offered  no evidence that coming back at 8:00 a.m. the  following
morning to finish reading the names of Iraq war casualties  would
have  been  any  less  effective.  Moreover,  Muller  offered  no
          evidence that, [u]nder any possible set of hypotheses, his
actions had any realistic hope of ending the war in Iraq.20  And,
unlike the protestors in Cleveland, Muller has not asserted, much
less  shown,  that his acts were anything other than  a  symbolic
protest  intended  to  dramatize, and hence  hopefully  terminate
conduct he viewed as harmful.21  Thus, Muller had no right  to  a
necessity  defense:   he offered no evidence that  he  reasonably
believed his protest could prevent a significant evil or that  he
reasonably  believed  there  were  no  adequate  alternatives  to
criminal trespass to achieve his goal.
          Because Muller offered no evidence that his actions had
any realistic hope of ending the war in Iraq, the harm caused  by
disrupting  normal  operations  in Stevenss  office,  objectively
viewed,   was   disproportionate  to  the   harm   Muller   could
realistically hope to avoid by his trespass.22
            And lastly, because Muller as a matter of law was not
entitled  to raise a necessity defense, the court did  not  abuse
its  discretion by refusing to admit the articles he argued would
show  he  reasonably believed the war in Iraq was  a  significant
harm.   Even  if Muller reasonably believed the war in  Iraq  was
illegal  and  morally  wrong, he offered  no  evidence  that  his
protest  had  any realistic hope of ending the war,  or  that  it
would  be  any  less effective if it was completed during  normal
business hours.

          Mullers conviction is AFFIRMED.

     1 AS 11.46.330(a).

     2 Cleveland v. Anchorage, 631 P.2d 1073, 1078 (Alaska 1981).

     3  Nelson v. State, 597 P.2d 977, 979 (Alaska 1979); Seibold
v. State, 959 P.2d 780, 782 (Alaska App. 1998).

     4  Seibold, 959 P.2d at 782 (quoting Bird v. Anchorage,  787
P.2d 119, 120-21 (Alaska App. 1990)).

     5  Lacey v. State, 54 P.3d 304, 306, 308 (Alaska App. 2002);
see  also  AS 11.81.900(b)(2)(A) (governing affirmative defenses)
and AS 11.81.900(b)(19)(A) (governing normal defenses).

     6 Lacey, 54 P.3d at 308.

     7 787 P.2d 119.

     8 Id. at 121.

     9  See Alaska R. Crim. P. 47(b); Bidwell v. State, 656  P.2d
592, 594 (Alaska App. 1983).

     10 631 P.2d 1073.

     11 Id. at 1075, 1078.

     12 Id. at 1078-79.

     13 Id. at 1079-80.

     14 509 P.2d 1095 (Hawaii 1973).

     15 Id., cited in Cleveland, 631 P.2d at 1079.

     16 Id. at 1099, cited in Cleveland, 631 P.2d at 1079.

     17  Cleveland, 631 P.2d at 1079 (quoting Marley, 509 P.2d at

     18 Id. at 1079.

     19 Id. at 1080 (quoting Marley, 509 P.2d at 1109).

     20 See id. at 1079 (quoting Marley, 509 P.2d at 1109).

     21 See id.

     22 See Nelson, 597 P.2d at 979-80.

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