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Fallon v. State (1/8/2010) ap-2250

Fallon v. State (1/8/2010) ap-2250

     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-10120
Appellant, ) Trial Court No. 3KN-07-430 CR
v. )
) O P I N I O N
Appellee. )
) No. 2250 January 8, 2010
Appeal    from    the
          District  Court,  Third  Judicial  District,
          Kenai,  Sharon  A.  S. Illsley,  Judge,  and
          Matthew C. Christian, Magistrate.

          Appearances:  Arthur S. Robinson, Robinson &
          Associates,  Soldotna,  for  the  Appellant.
          Devoron    K.   Hill,   Assistant   District
          Attorney,   Lance   E.   Joanis,    District
          Attorney,  Kenai,  and  Talis  J.   Colberg,
          Attorney General, Juneau, for the Appellee.

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

          BOLGER, Judge.

          Christopher  R. Fallon was convicted of  driving  under
the  influence  and  resisting arrest.  He  argues  that  he  was
illegally  seized  when an Alaska trooper  retained  his  drivers
license  for  several  minutes to check  on  the  status  of  the
license,  and  that the district court should  have  granted  his
motion  to  suppress  on  that basis.   He  also  challenges  his
resisting  arrest  conviction on two grounds.  First,  he  argues
that  the  district  court should have  granted  his  motion  for
judgment  of  acquittal  because the conduct  the  State  alleged
amounted  to  resisting  arrest occurred  after  his  arrest  was
complete.  Second, he argues that there was insufficient evidence
for  the  jury to find that he used force to resist arrest.   For
the  reasons discussed below, we reject Fallons claims and affirm
his convictions.
     Facts and proceedings
          On  the  evening of March 11, 2007, Trooper Kyle Carson
was  on patrol on Kalifornsky Beach Road off the Sterling Highway
when he spotted a silver Chevy SUV in the ditch fifteen to twenty
feet  off the roadway.  Another motorist with a pickup truck  had
hooked  a tow strap to the SUV and was getting ready to  pull  it
out  of the ditch.  Trooper Carson turned on his emergency lights
and  pulled over to make sure the driver was not injured, and  to
offer assistance.
          Trooper  Carson  contacted  the  driver,  Fallon,   who
explained  that his tire caught the snow and pulled  his  vehicle
into  the  ditch.  Carson and the driver of the pickup  discussed
the  best  way  to  pull Fallons vehicle back onto  the  roadway.
Carson then asked Fallon for his drivers license and returned  to
his  patrol  car to call dispatch to check on the status  of  the
          After  dispatch  completed the  check,  Trooper  Carson
contacted Fallon again to return his license and to ask him if he
needed  a  tow  truck because his clutch had overheated.   During
this  discussion, Trooper Carson smelled a mild odor of  alcohol,
and   he noticed that Fallons speech was a bit slurred.  He asked
Fallon if he had consumed alcohol or medication.  Fallon said  he
was  just  tired and stressed.  After administering a  horizontal
gaze  nystagmus  test,  Carson concluded  that  Fallon  had  been
drinking,  so  he  asked Fallon to step out of  his  vehicle  for
additional field sobriety tests.  Based on the results  of  those
tests, Carson arrested Fallon for driving under the influence.  A
later breath test showed that his blood alcohol content was  .179
percent, more than twice the legal limit.1
          When  Trooper  Carson arrested Fallon, he directed  him
to  put his arms behind his back.  Fallon initially complied, but
then he tensed his arms and pressed them against his back so that
Carson  could only handcuff one arm.  Carson told Fallon  several
times  to  relax  and stop resisting, but Fallon became  verbally
belligerent and continued to tense his arms.  Trooper Carson  was
concerned Fallon might assault him, so he walked Fallon  back  to
the  patrol car.  He also used pepper spray on Fallon, but it had
no  obvious  effect. Fallon pushed himself away from  the  patrol
car,  which again made Carson concerned that Fallon would assault
him,  so  he took Fallon to the ground.  Carson could  still  not
handcuff  Fallon  because  Fallon  kept  trying  to  get  up  and
continued  to tense his arms.  At this point a motorist  stopped,
          and with the motorists help Carson was able to get Fallons second
arm handcuffed and to place him in the patrol car.
          Fallon  was  charged with driving under the  influence2
and  resisting arrest.3  Before trial, he moved to  suppress  the
evidence,  arguing  that  he  was illegally  seized  when  Carson
retained  his drivers license and called dispatch.  Following  an
evidentiary  hearing, District Court Judge Sharon A.  S.  Illsley
denied the motion.
          After the State presented its case, Fallon moved for  a
judgment  of  acquittal, arguing that, as a matter  of  law,  the
State presented insufficient evidence to convict him of resisting
arrest.  Magistrate Matthew C. Christian denied that motion,  and
the jury convicted Fallon of both offenses.

          Was  Fallon  illegally seized when Carson retained  his
          On  appeal, Fallon renews his claim that Trooper Carson
illegally  detained  him  without probable  cause  or  reasonable
suspicion when he took his drivers license and called dispatch to
check  on  the status of the license.  Fallon argues  that  Judge
Illsley  erred  by not granting his motion to suppress  for  this
          The  parties  brief  this claim  as  if  it  hinged  on
whether  Carsons  contact with Fallon was  a  consensual  police-
citizen encounter that required no reasonable suspicion,  or  was
instead a Fourth Amendment seizure.  But Carson contacted  Fallon
because he had driven his vehicle into a ditch, to see if  Fallon
was  injured  or  needed other assistance.  The more  appropriate
question,  therefore, is whether the stop was a  valid  community
caretaker  stop.   In Ozhuwan v. State,4 we held  that  a  Fourth
Amendment  seizure may be justified without reasonable  suspicion
of  criminal  activity  if the police are validly  acting  within
their community caretaker role  that is, if they are aware of  at
least  some specific circumstances supporting a reasonable belief
that the occupants of a vehicle need assistance.5
          As  already discussed, Carson contacted Fallon  to  see
if  he  needed  help because he had driven off the road  and  was
stuck in a ditch.  Fallon had apparently been trying to free  his
vehicle  for  some  time,  because  his  clutch  had  overheated.
Another  motorist had stopped and was preparing to  pull  Fallons
vehicle out, and the motorist had to block the roadway to do  so.
Given  these circumstances, it was reasonable for Trooper  Carson
to  conclude  that he should remain on the scene to  alert  other
drivers  to  the possible hazard, and to contact a tow  truck  if
efforts to pull Fallons vehicle out of the ditch failed or if the
vehicle  was  disabled.  Indeed, Carson was asking Fallon  if  he
needed  a tow truck when he first observed signs that Fallon  was
          Based  on this record, we conclude that the stop was  a
valid  community  caretaker stop.  Trooper Carson  was  therefore
authorized   under  AS  28.15.131  to  request  Fallons   drivers
license.6   By  calling dispatch to check on the  status  of  the
license, Carson did not unreasonably expand the scope or duration
of  the stop.7  Although Fallon testified that he sat in his  car
          for about five minutes waiting for Carson to return his license,
the electronic recording of the contact indicates that only three
minutes  passed between the time Carson asked for, and  returned,
Fallons  license.  Some of this time was occupied pulling Fallons
vehicle  back  onto  the  roadway.  The  restriction  on  Fallons
freedom of movement was thus minimal and outweighed by the public
interest  in  verifying that Fallon had a legal  right  to  drive
particularly given that Fallon had just driven into a ditch.   We
therefore  find  no  error  in Judge Illsleys  decision  to  deny
Fallons motion to suppress.

          Was Fallons arrest complete once Carson got one arm  in
            Fallon  next  argues that the district  court  should
have  granted  his motion for judgment of acquittal  because  the
conduct  the State alleged amounted to resisting arrest   Fallons
conduct  that prevented Trooper Carson from securing  his  second
arm in handcuffs  occurred after his arrest was already complete.
          The  resisting  arrest statute, AS 11.56.700,  provides
in pertinent part:

          (a)  A person commits the crime of resisting
          or  interfering with arrest if, knowing that
          a  peace  officer is making an arrest,  with
          the  intent  of preventing the officer  from
          making   the  arrest,  the  person   resists
          personal  arrest  or  interferes  with   the
          arrest of another[.]

          To  support his claim that his arrest was complete once
one arm was secured in handcuffs, Fallon relies on the common-law
definition  of  arrest we quoted in Maynard  v.  State8:   If  an
officer  having authority to make an arrest actually touches  his
arrestee,  for  the manifested purpose of apprehending  him,  the
arrest  is  complete although [the officer] does not  succeed  in
stopping or holding [the arrestee] even for an instant.9  We have
relied  on  this definition of arrest in construing  the  statute
defining the crime of escape.10
          But  unlike  the  crime  of  escape,  the  offense   of
resisting arrest does not hinge on defining the precise moment  a
defendant  is  under  arrest.  The offense  of  resisting  arrest
contemplates  conduct  that takes place  during  the  process  of
taking  the  defendant  into  custody.   This  interpretation  is
consistent with the plain language of the statute:  To be  guilty
of  resisting  arrest,  a  person must act  with  the  intent  of
preventing  an  officer  from  making  an  arrest.11   Making  is
generally   defined  as  the  process  of  being  made.12    This
construction  is  also consistent with Title  12s  definition  of
arrest  as the taking of a person into custody in order that  the
person may be held to answer for the commission of a crime.13
          In  reaching  this conclusion, we also find  persuasive
the  reasoning  of  the  Arizona Court of  Appeals  in  State  v.
Mitchell.14   In Mitchell, the defendant was told  he  was  under
          arrest for disorderly conduct, but when an officer grabbed his
arm  to  handcuff him he froze up and held his hands in front  of
him.15  An officer managed to handcuff his arms behind his  back,
but  as the defendant was escorted to the police car he struggled
and fought with the officers, wrapping his leg around one officer
and pulling everyone to the ground.16
          Under  the Arizona resisting arrest statute, the  State
had  to prove that Mitchell intentionally prevented, or attempted
to  prevent,  the  police from effecting an arrest  by  using  or
threatening  to  use physical force.17  Mitchell argued  that  no
reasonable  jury  could convict him of that offense  because  his
arrest  was complete as soon as he was handcuffed, and the  State
had  charged  him with resisting arrest based on  his  subsequent
          The  appeals court rejected this claim, ruling  that  a
reasonable jury could find that the officers were still effecting
Mitchells arrest when he struggled with the officers en route  to
the patrol car.18  The court explained that the term effecting an
arrest encompassed the process of bringing about an arrest:
          [E]ffecting  an arrest is a process  with  a
          beginning and an end.  Often, the process is
          very   brief  and  the  arrest  is   quickly
          completed.  In some situations, however, the
          process  of  effecting an arrest will  occur
          over a period of time and may not be limited
          to   an   instantaneous   event,   such   as
          As  the  Arizona  court observed,  this  interpretation
comports  with  the  purpose  of the  resisting  arrest  statute:
protecting  the  police  and citizens from  substantial  risk  of
physical   injury.20   That  purpose  would  not  be  served   by
criminalizing forceful resistance that precedes the barest  touch
that  effects  an arrest for purposes of the escape statute,  but
not forceful resistance that prevents the officer from completing
the  arrest  by handcuffing the defendant, escorting him  to  the
patrol car, or otherwise taking [him] into custody.21
          For  these  reasons, we find no merit to Fallons  claim
that, as a matter of law, his arrest was complete for purposes of
the  resisting arrest statute as soon as one of his arms  was  in
handcuffs.   We  therefore uphold Magistrate Christians  decision
denying his motion for judgment of acquittal.

          Was  there  insufficient evidence that Fallon  resisted
arrest with force?
          The State charged Fallon under the first subsection  of
the  resisting arrest statute, which makes it illegal  to  resist
arrest  by force.  The Alaska Statutes define force as any bodily
impact,  restraint,  or  confinement or the  threat  of  imminent
bodily impact, restraint, or confinement[.]22
          Fallon  argues that this case is like Eide v.  State,23
where we reversed the defendants conviction after concluding that
his  conduct was not resisting arrest but mere non-submission  to
an  arrest.24  In Eide, the defendant was at home on the floor in
a  sleeping  bag when the Alaska troopers tried to arrest  him.25
When a trooper grabbed his arm to pull him up, he jerked away and
          told the trooper I aint going.26  Then he rolled onto his stomach
with  his  arms underneath him.27  He submitted to the arrest  as
soon as the troopers used an electric shocking device on him.28
          Fallon argues that his conduct in tensing his arms  and
pressing  them  against his back was likewise mere non-submission
to  arrest, and that a fair-minded juror could not convict him of
resisting  arrest  by force based on this conduct.   But  Fallons
conduct  differed  from  Eides in key respects.   Eide  initially
pulled  his  arm away from a trooper and put his arms  under  his
body  so  he  could  not be handcuffed.29  But  as  soon  as  the
troopers  used  an  electric shock device, he  submitted  to  the
          Fallon,  by contrast, struggled against Carsons efforts
to arrest him:  When Carson took Fallon to the back of the patrol
car, Fallon pushed himself away from the car, so that Carson  had
to  take him to the ground.  With Fallon in that position, Carson
still could not handcuff him, because Fallon tried to get up  and
continued  to  tense his arms against his back.   Ultimately,  it
took the help of a passing motorist to get Fallon handcuffed  and
in  the  patrol  car.  Viewing this evidence in  the  light  most
favorable to the State, we conclude that this conduct went beyond
mere  non-submission to an arrest, and that a  fair-minded  juror
could  find beyond a reasonable doubt that Fallon was  guilty  of
resisting arrest by force.31

          We AFFIRM the judgment of the district court.
     1 AS 28.35.030(a)(2).

2 AS 28.35.030(a).

     3 AS 11.56.700(a)(1).

     4 786 P.2d 918 (Alaska App.1990).

     5 Id. at 922.

     6  See  Marsh  v. State, 838 P.2d 819, 820-21  (Alaska  App.
1992)  (citing AS 28.15.131, which requires motorists to  have  a
drivers  license in their possession and to present  the  license
for inspection upon the demand of a peace officer).

     7   Cf. Brown v. State, 182 P.3d 624, 629 (Alaska App. 2008)
(citing 4 Wayne R. LaFave, Search and Seizure:  A Treatise on the
Fourth  Amendment  9.3(c) at 378 (4th ed. 2004)  (noting  that  a
routine  traffic  stop generally encompasses a  request  for  the
motorists  drivers license, registration and proof of  insurance,
and  a computer check to verify the validity of these documents);
Clark  v.  Anchorage, 112 P.3d 676, 678 (Alaska App. 2005)  ([I]t
does  not  unreasonably expand the scope or duration of  a  valid
traffic  stop  for an officer to prolong the stop to  immediately
investigate  and determine if the driver is entitled to  continue
to  operate  the  vehicle by checking the status of  the  drivers
license,   insurance,  and  vehicle  registration[.])   (internal
citations omitted).

8 652 P.2d 489 (Alaska App. 1982).

     9  Id.  at 492 n.6 (quoting R. Perkins, Criminal Law at  500
(2d ed. 1969)) (citations omitted in original).

     10    See MacDonald v. State, 83 P.3d 549, 551 (Alaska  App.

     11   AS 11.56.700(a).

     12    Websters New World College Dictionary at 868 (4th  ed.

     13   AS 12.25.160.

     14   62 P.3d 616 (Ariz. App. 2003).

15   Id. at 617.

     16   Id.

     17    Id.  at 618.  The statute at issue in Mitchell, A.R.S.
13-2508, provides:

       A person commits resisting arrest by intentionally
       preventing  or  attempting  to  prevent  a  person
       reasonably  known  to him to be a  peace  officer,
       acting under color of such peace officers official
       authority, from effecting an arrest by:
          1.   Using  or  threatening to  use  physical
          force against the peace officer or another[.]
     18   Mitchell, 62 P.3d at 619.

     19   Id. at 618 (citations omitted).

     20   Id. at 619.

     21   AS 12.25.160.

     22   AS 11.81.900(b)(27).

     23   168 P.3d 499 (Alaska App. 2007).

     24    Id.  at  502.  Eide was convicted of resisting  arrest
under AS 11.56.700(a)(3), which makes it a crime to resist arrest
by  any  means that created a substantial risk of physical injury
to  any  person.   Id. at 501.  However, the  evidence  was  also
insufficient to convict Eide of resisting arrest by  force  under
subsection  (1)  of the statute.  Id. at 503-04 (Mannheimer,  J.,

     25   Eide, 168 P.3d at 500.

     26   Id.

     27   Id.

     28   Id.

     29   Id.

     30   Id.

     31    See  Collins v. State, 977 P.2d 741, 747 (Alaska  App.
1999); Dorman v. State, 622 P.2d 448, 453 (Alaska 1981).

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