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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
CLAUDE D. WALL,
Appellant, Court of Appeals No. A-
10010
v. Trial Court No. 3KN-06-
981 Cr
STATE OF ALASKA,
Appellee. O P I N I O
End of Caption N
No. 2209 March 27, 2009
Appeal from the Superior Court, Third Judi
cial District, Kenai, Harold M. Brown, Judge.
Appearances: Linda K. Wilson, Assistant
Public Defender, and Quinlan Steiner, Public
Defender, Anchorage, 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 Bolger, Judges.
MANNHEIMER, Judge.
Claude D. Wall appeals his conviction for felony
driving under the influence.1 He contends that the evidence
presented at his trial was legally insufficient to | establish that he was operating the vehicle, or (alternatively | ) that the vehicle in question was operable. For the reasons explained here, we conclude that the evidence was sufficient on both of these issues. Wall also claims that the trial judge should have instructed the jury on the defense of necessity. We conclude that the evidence presented at Walls trial did not support this defense. Accordingly, we affirm Walls conviction for felony driving under the influence. |
Underlying facts
In the early morning of June 5, 2006, Alaska
State Trooper Lawrence Erickson was on patrol in the
Soldotna area. Erickson saw a car stopped at the
intersection of Bennett Court and Kalifornsky Beach
Road. The car was in the right lane of Bennett Court,
with its front end pointing toward the intersection.
When Erickson approached the vehicle, he
found Wall sitting in the drivers seat, wearing a
seatbelt. Wall was holding an open beer in his right
hand, and he had the keys to the car in his left hand.
When Erickson questioned him, Wall admitted
that the vehicle was his, and that he had removed the
keys from the ignition. Wall also admitted that he did
not have a drivers license. (Walls license was
suspended.) However, Wall claimed that he had not been
driving the car: he told the trooper that a friend of
his had been driving, but the friend had abandoned him
there.
Wall showed signs of intoxication; he was
disoriented, and he had a hard time focusing on the
trooper.
While Erickson was talking to Wall, three
more people arrived on the scene by cab: Royce Kenny
Oder, Josephine Mestas, and Rita Lindsey. These people
had apparently been with Wall earlier in the evening,
and one or two of these people contradicted Walls
account: they told Erickson that Wall had been driving
the vehicle.
Evidently the four people (i.e., Wall and the
three others) had been out for the evening. They got
into an argument, and Oder (who was driving at that
time) turned the vehicle around in the road rather
quickly, and the car stalled. Despite Oders and Walls
efforts, they could not get the vehicle started again,
so everyone except Wall left the area on foot. Wall
stayed with the vehicle which is where Trooper
Erickson found him.
The State charged Wall with felony driving
under the influence, as well as driving with a
suspended license. At trial, the parties stipulated
that Walls blood alcohol content was .156 percent
(i.e., almost twice the legal limit), that Walls
drivers license was suspended, and that Wall knew that
his license was suspended.
During trial, Walls attorney asked the trial
judge, Superior Court Judge Harold M. Brown, to
instruct the jury on the defense of necessity (i.e., on
the claim that Wall operated the vehicle out of
necessity even though he was intoxicated). When Judge
Brown asked Walls attorney what harm Wall was trying to
prevent, the defense attorney responded that Wall had
been trying to move the car out of the roadway so that
it would not constitute a hazard to other vehicles.
Judge Brown refused to give the requested necessity
instruction.
The jury convicted Wall of driving under the
influence but acquitted him of driving with a suspended
license.
Whether the evidence was sufficient to establish that
Wall was operating the vehicle
The actus reus of driving under the influence
is operat[ing] or driv[ing] a motor vehicle. AS
28.35.030(a). Because the jury acquitted Wall of the
separate charge of driving while his license was
suspended, we will assume that the jury did not convict
Wall of DUI for the act of driving his motor vehicle
while under the influence. Rather, we assume that the
jury convicted Wall of DUI under the theory that Wall
operated the motor vehicle while under the influence.
In this context, operate means to have actual physical
control of a vehicle. Department of Public Safety v.
Conley, 754 P.2d 232, 234 (Alaska 1988); Jacobson v.
State, 551 P.2d 935, 938 (Alaska 1976).
As explained above, when Erickson encountered
Wall, Wall was the sole occupant of the vehicle. He
was sitting in the drivers seat, with his seat belt
buckled, and with the keys to the vehicle in his hand.
Wall told Erickson that he had just removed those keys
from the ignition.
Moreover, other testimony at Walls trial
(viewed in the light most favorable to upholding the
jurys verdict) showed that Wall and Oder had been
trying to get the stalled vehicle started with Oder
standing outside the car, peering under the hood, while
Wall sat in the drivers seat, turning the key in the
ignition to try to start the car.
This evidence was legally sufficient to
support a jury finding that Wall operated the vehicle.
Whether the evidence was sufficient to establish that
Walls vehicle was operable
In Department of Public Safety v. Conley, our
supreme court held that, in an administrative
proceeding to revoke a persons drivers license based on
the allegation that they exercised actual physical
control over a motor vehicle while under the influence,
a license revocation is not proper unless the vehicle
in question was operable or reasonably capable of being
rendered operable at the time the defendant exercised
control over it.2 We will assume, for purposes of
deciding Walls appeal, that the Conley requirement of
operability applies in criminal cases as well as in
administrative license revocation proceedings.3
Wall argues that the State failed to
establish that his vehicle was operable, or was
reasonably capable of being rendered operable, when
Trooper Erickson arrived at the scene. In support of
this argument, Wall relies on the testimony that the
vehicle stalled when Oder executed an abrupt turn, and
that the vehicle would not start again despite the
efforts of Oder and Wall.
We have rejected similar arguments twice in
the past, but neither of our decisions on this point
were published. See Axford v. State, Alaska App.
Memorandum Opinion No. 2429 (May 13, 1992), 1992 WL
12153171; and Blanche v. Anchorage, Alaska App.
Memorandum Opinion No. 3770 (March 11, 1998), 1998 WL
106156. Now that this issue has arisen again, we take
this occasion to review these past decisions and to
announce our view on this point of law in a published
decision.
As explained above, our supreme court held in
Conley that operability of the vehicle is a necessary
component of the governments proof when an
administrative action to revoke a drivers license is
based on the persons actual physical control of a non-
moving vehicle. As its source for this interpretation
of the law, our supreme court cited the rule adopted in
a criminal case by the Washington Court of Appeals:
State v. Smelter, 674 P.2d 690, 693 (Wash. App. 1984).4
The Smelter definition of operability does
not require proof that the vehicle is currently capable
of being started and moved. Rather, the requirement is
that either the vehicle is currently operable or that
it is reasonably capable of being rendered operable.
Smelter, 674 P.2d at 693. The Smelter court explained
that this latter phrase, reasonably capable of being
rendered operable, was intended to distinguish
a car that runs out of gas on a major freeway
near several exits and gas stations from a
car with a cracked block, which renders it
totally inoperable.
Id. We relied on this distinction in both
Axford and Blanche.
In Axford, the defendant drove his
vehicle off the roadway and it became stuck
in a snow bank. The defendant then made
efforts to re-start the car and to free it
from the snow, but he succeeded only in
draining the battery, so that the car could
no longer start. Based on these facts,
Axford argued that his car was no longer
operable when the police arrived.
We rejected Axfords argument
because, even though his vehicle could no
longer be started on its own, the vehicle
remained reasonably capable of being rendered
operable. Referring to the distinction drawn
by the Washington Court of Appeals in
Smelter, we declared:
Axfords dead car was more analogous to the
car which had run out of gas than to the car
with the cracked block. We agree with the
[government] that a car with a dead battery
is reasonably capable of being rendered
operable, because it may be jump-started with
relative ease at the scene and then sent on
its way. Accordingly, the [trial] court did
not abuse its discretion in declining to give
the operability instruction [requested by
Axford].
Axford, Alaska App. Memorandum Opinion No.
2429 at 8, 1992 WL 12153171 at *3.
Similarly, in Blanche, we concluded
that the defendants vehicle was reasonably
capable of being rendered operable because it
appears that Blanche needed only a jump and
perhaps some gas to start the car. Alaska
App. Memorandum Opinion No. 3770 at 4, 1998
WL 106156 at *1 (emphasis omitted).
See also Kingsley v. State, 11 P.3d
1001, 1003-04 (Alaska App. 2000) (the
defendants car remained operable or
reasonably capable of being rendered operable
even though the car was stuck in the snow and
could no longer be moved without the
assistance of towing equipment); Lathan v.
State, 707 P.2d 941, 943 (Alaska App. 1985)
(the defendants car remained operable even
though it was stuck in the mud and no longer
capable of movement under its own power).
In Walls case, the evidence was
clear that Walls vehicle had been moving
under its own power until shortly before
Trooper Erickson found it. All the witnesses
agreed that Walls vehicle had been driven to
that place, and that the vehicle stalled when
Oder made an abrupt turn. Both Oder and Wall
then engaged in efforts to re-start the car.
These efforts were obviously premised on the
belief that the vehicle remained operable (in
the sense of reasonably capable of being
rendered operable) despite the fact that it
had stalled.
As in Axford and Blanche, there was
no indication that Oders execution of an
abrupt turn had suddenly rendered Walls
vehicle permanently inoperable. Rather, the
evidence indicated that the vehicles
immobility was due to either a flooded
engine, or a dead battery, or both. The
vehicle therefore remained operable within
the meaning of Conley and Smelter.
Whether Wall was entitled to a jury instruction on the
defense of necessity
The last issue in this appeal is whether Wall
was entitled to a jury instruction on the defense
of necessity.
When Judge Brown and the parties discussed
jury instructions, Walls attorney proposed that the
jury be instructed on the defense of necessity with
respect to Walls alleged act of operating the vehicle.
Walls attorney claimed that Wall operated the vehicle
only for the purpose of trying to move it off the road,
or at least out of the lanes of travel. Judge Brown
rejected the defense attorneys request.
According to the testimony at trial, Walls
vehicle was stopped in the right-hand lane of Bennett
Court, about eight to ten feet from the traffic lanes
of Kalifornsky Beach Road. Wall testified that he was
really foggy about the details of the evening, but he
remembered that Kenny Oder was driving his car, and
that the car stalled when Oder was turning the vehicle.
Oder got out of the vehicle, raised the hood, and tried
to start the vehicle (going back and forth from the
drivers seat to the front of the car). When these
efforts proved unsuccessful, Oder yelled at Wall to get
into the drivers seat and try to start the car by
turning the ignition.
Wall testified that, in response to Oders
request, he got behind the wheel and, using the keys,
he tried several times to start the car but without
success. Wall then thought that they might push the
vehicle off the road (so that they would not impede
traffic at the intersection), but Oder and the other
people in the vehicle all left the vicinity leaving
Wall in sole charge of the vehicle. Wall testified
that when Trooper Erickson arrived, he (Wall) was
sitting in the drivers seat of the car and still
thinking about trying to push the car off the road.
To be entitled to a jury instruction on
necessity, Wall had to show that, viewing the evidence
in the light most favorable to him, it was reasonable
for him to conclude (1) that his unlawful act of
operating the vehicle while under the influence was
performed to prevent a significant evil, and (2) that
there was no adequate alternative course of action to
prevent this evil. In addition, Wall had to establish
that the foreseeable harm created by his action was not
disproportionate to the foreseeable harm he was trying
to avoid.5
On appeal, Wall argues that this test is met
because it was necessary for him to operate the vehicle
in order to get the vehicle out of the roadway. This
argument fails for three reasons.
First, when Wall got behind the wheel and
started cranking the ignition, Oder was still there
and he could have operated the vehicle instead of Wall.
Second, the chronology of events described by
Wall does not support a necessity defense. According
to Walls testimony, he operated the vehicle that is,
he got behind the wheel and repeatedly turned the key
in the ignition because he and Oder believed that the
car could be started and then driven away. It was only
after these attempts failed that Wall decided that they
should push the vehicle off the road so that it would
not constitute a traffic hazard. (As explained above,
Oder and the other passengers left the scene at about
this time, and Wall who was now alone in the vehicle
never made any effort to get the vehicle off the road.)
In other words, the asserted necessity to
move the car off the roadway did not arise until Wall
had already committed the offense.
Furthermore, Wall did not testify about the
alternatives that were seemingly available to him. For
instance, Wall did not discuss the possibility of using
flares or emergency blinkers to alert other motorists
to the hazard. In addition, Walls vehicle was stopped
less than a quarter-mile from another road (Ciechanski
Road), and there was also a bar (the Duck Inn) in the
same area. But when Wall took the stand, he did not
discuss the possibility of going to the bar to call for
a tow truck, or (alternatively) flagging down another
motorist, or going to the bar to enlist someones aid in
pushing his vehicle off the road.
For these reasons, we uphold Judge Browns
decision not to instruct the jury on the defense of
necessity.
Conclusion
The judgement of the superior court is
AFFIRMED.
_______________________________
1AS 28.35.030(n).
2Conley, 754 P.2d at 236.
3See Kingsley v. State, 11 P.3d 1001, 1004 (Alaska App.
2000); Williams v. State, 884 P.2d 167, 170 (Alaska App.
1994), abrogated on other grounds by State v. Coon, 974 P.2d
386, 391 (Alaska 1999).
4See Conley, 754 P.2d at 236.
5Lacey v. State, 54 P.3d 304, 307 (Alaska App. 2002).
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