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Wagner v. State (1/27/2017) ap-2533

Wagner v. State (1/27/2017) ap-2533


              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@  

                             IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                      


                                                                                                       Court of Appeals No. A-11682  


                                                      Appellant,                                    Trial Court No. 3AN-11-9522 CR  



                                                                                                                    O  P  I  N  I  O  N  




                                                      Appellee.                                         No. 2533 - January 27, 2017  


                           Appeal           from  the   Superior   Court,  Third  Judicial   District,  


                           Anchorage, Larry D. Card, Judge.  


                           Appearances:                  Kevin Higgins,  under  contract  with the  Public  


                           Defender   Agency,   and   Quinlan   Steiner,   Public   Defender,  


                           Anchorage, for the Appellant.   Timothy  W.  Terrell, Assistant  


                           Attorney General, Office of Criminal Appeals, Anchorage, and  


                           Craig W. Richards, Attorney General, Juneau, for the Appellee.  


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


                           Superior Court Judge.*  



                           Judge MANNHEIMER.  

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

Constitution and Administrative Rule 24(d).                              

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


                    In the early morning of August 23, 2011, Richard Laverne Wagner Jr. came  


to the end of a street, failed to stop, and drove his van into a tree.                                   When the police  


arrived, Wagner told the officers that he had recently dropped off some out-of-town  


relatives at their hotel, and that he had then taken some medications and started driving  


home. Wagner told the officers that, when he came to the end of the street, he attempted  


to apply his brakes, but he mistakenly pressed the accelerator instead.  


                    Later, however, Wagner changed his story:  he told the police that all he  


remembered was being in his home, and then the next thing he remembered was striking  


the tree.  


                    Because Wagner admitted drinkingand smokingmarijuana, he was arrested  


for driving under the influence.  His breath test showed a blood alcohol concentration of  


.066 percent  -  below  the  legal limit.                       Wagner then consented to a blood test.                           A  


subsequent chemicalanalysis of Wagner's blood showed that he had consumed zolpidem  


-  a  sedative  that  was  originally  sold  under  the  brand  name  Ambien,  and  is  now  


available under several brand names.  


                    Wagner was charged with driving under the influence and driving while his  


license was revoked.  


                    At Wagner's trial, his defense attorney elicited testimony (from the State's  


expert witness) that one of the potential side effects of zolpidem is "sleep-driving" -  


i.e., driving a vehicle without being conscious of doing so.  


                    During the defense case, Wagner took the stand and testified that he had  


been  at  home watching television,  and then he took his medication and fell asleep.  


According to Wagner, the next thing he remembered was waking up when he hit the tree  


and his air bag deployed.  Wagner asserted that he remembered nothing about getting  


into a motor vehicle and driving.  

                                                              - 2 -                                                          2533

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                     Based on this testimony, Wagner's attorney asked the judge to instruct the  


jury  that the State was required to prove that Wagner consciously drove the motor  


vehicle.   More specifically, Wagner's attorney asked the judge to give this instruction:  



                     If   you  find  that  [Wagner]  was  under  the  effects  of  a  


                     prescription medication, [and] that he was not aware of those  


                     effects  when  he  consumed  the  medication,  and  that  he  


                     performed an otherwise criminal act while unconscious as a  


                     result of this medication, [then] you must find him not guilty  


                     of that criminal act.  


                     The trial judge rejected this proposed instruction because the judge ruled  


that, if Wagner voluntarily  took the medication, then Wagner could be found legally  


responsible for what ensued, even if he was not consciously driving at the time of the  




                     But even though the judge declined to instruct the jury on Wagner's view  


of the law, the judge did not instruct the jury on his view of the law either.  Instead, the  


judge  simply  gave  the  jury  instructions  on  (1)  the  definition  of  driving  under  the  


influence and (2) the definition of acting "knowingly".  


                     When the attorneys delivered their summations to the  jury, the defense  


attorney argued that Wagner had not "knowingly" driven his motor  vehicle because  


Wagner had been sleep-driving under the influence of the zolpidem.   In rebuttal, the  


prosecutor argued that Wagner's ability to carry on detailed conversations with the police  


showed that he had not been sleep-driving.  But the prosecutor also argued that even if  


Wagner had been sleep-driving, Wagner still "knowingly" drove the motor vehicle.  In  


support of this last argument, the prosecutor relied on the concludingsentence of the jury  


instruction on "knowingly":   "A person who is unaware of conduct ...  of which the  

                                                               - 3 -                                                          2533

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


person would have been aware had he not been intoxicated acts knowingly with respect  


to that conduct[.]"  


                    The jury convicted Wagner of both charges, and Wagner then filed this  




                    Wagner's  primary  claim  on  appeal is  that  the  jury  should  have  been  


instructed along the lines that Wagner's attorney proposed - i.e., that if Wagner was  


sleep-driving, he should be acquitted.  


          The correct categorization of Wagner's claim  


                    Although the attorneys and the judge at Wagner's trial discussed this issue  


in terms of  mens rea -  i.e., whether Wagner acted "knowingly" when he drove the  


motor  vehicle  -  Wagner's  appellate  attorney  correctly  recognizes  that  Wagner's  


proposed defense was actually a claim that Wagner could not be held responsible for the  


actus reus of driving.  Wagner does not claim that his act of driving was "unknowing".  


Rather, he claims that his act of driving was "involuntary".  


                    Normally, a person can not be held criminally responsible for their conduct  


unless they have engaged in a voluntary act or omission.   The term "voluntary act" is  


defined in AS 11.81.900(b)(66) as "a bodily movement performed consciously as a result  


of effort and determination".   As we explained in Mooney v. State, 105 P.3d 149, 154  


(Alaska App.  2005),  the criminal law defines "voluntary act" as a willed movement  


(or a willed refraining from action) "in the broadest sense of that term".  


                    But  as  we  are  about  to  explain,  a  voluntary  act  is  not  necessarily  a  


"knowing" act, as that term is used in our criminal code.  

                                                               - 4 -                                                          2533

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                      Many criminaloffenses                  require proof         of a particular type of conduct -                    e.g.,  

delivering a controlled substance to another person,                                 1                                                  

                                                                                       or warning a fugitive felon of their  

                                                               2  When a crime is defined this way, there will be  


impending discovery or apprehension.  

circumstances when a defendant's willed actions (their  "voluntary" acts) will fit the  


statutory definition of the prohibited conduct, but the defendant will not have been aware  


that they were engaging in this defined type of conduct.  


                      For instance, a mail carrier or other delivery person may deliver a letter or  


package  without  knowing that  it  contains  a  controlled  substance.                                              Or  someone  (a  


neighbor or a news reporter, for example) may unwittingly say or do something that tips  


off a fugitive felon to their impending discovery or apprehension.  In these instances, the  


person  will have  performed  a  "voluntary  act",  but  they  will  not  have  "knowingly"  


engaged in the conduct specified in the statute.  


                      This is not the kind of  defense that Wagner wished to raise at his trial.  


Wagner's attorney did not argue that, even though Wagner knew he was engaging in  


some form of action, Wagner somehow remained unaware that, by his actions, he was  


putting a motor vehicle into operation.  


                      Rather than raisinga defense of "unknowing" conduct, the defense attorney  


argued  that  Wagner  did  not  engage  in  any  conscious  action  -  that  Wagner  was  


essentially asleep, and that he was unaware that he was engaged in activity of any kind.  


This was a claim of involuntariness.  


      1    See,  e.g., AS 11.71.030(a)(1).                  



           See AS 11.56.770(b)(2).  

                                                                    - 5 -                                                               2533

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                         Why we reverse Wagner's conviction                                                            

                                                In  State v. Simpson                                               , 53 P.3d 165 (Alaska App. 2002), this Court recognized                                                                                                    

that even though the voluntariness of a defendant's                                                                                                                                             conduct   is rarely disputed,                                                                           the  

requirement   of   a   voluntary   act   is   "an   implicit   element   of   all crimes".                                                                                                                                                                              Thus,   "[i]f  

voluntariness is actively disputed, the government must prove it."                                                                                                                                                                        53 P.3d at 169.                                               

                                                The criminal law's concept of involuntariness includes instances where a                                                                                                                                                                                        

defendant    is    rendered    unconscious    by    conditions    or    circumstances    beyond    the  

defendant's control, if the defendant neither knew nor had reason to anticipate this result.                                                                                                                                                                                                                            

See  Wayne R. LaFave,                                                            Substantive Criminal Law                                                                       (2nd ed. 2003), 9.4 ("Automatism"),                                      

Vol. 2, pp. 32-37.                                                 

                                                Compare  Solomon v. State                                                                     , 227 P.3d 461, 467 (Alaska App. 2010), where                                                                                                   

this   Court ruled that defendants charged with driving under the influence can raise a                                                                                                                                                                                                                        

defense of "unwitting intoxication" if the defendant made "a reasonable, non-negligent                                                                                                                                                                              

mistake   concerning   the   intoxicating   nature   of   the   beverage   or   substance   that   they  


                                                Having considered these authorities, as well as other authorities cited in the                                                                                                                                                                           

                                               3  we conclude Wagner would have a valid defense to the charges of driving  

 State's brief,                                                                                                                                                                                                                                                                             

under the influence and driving with a revoked license if (1) he took a prescription dose  


of zolpidem, (2) he was rendered unconscious by this drug and engaged in sleep-driving,  


and (3) he neither knew nor had reason to anticipate that the drug would have this effect.  


                                                The State argues that even if  Wagner articulated a valid involuntariness  


defense (meaning that the trial judge was wrong when he ruled that Wagner's proposed  


            3           People v.Holloway                                                 ,78 Cal.Rptr.3d770,782-83 (Cal.App. 2008);                                                                                                               People v. Mathson                                               ,  

 149 Cal.Rptr.3d 167, 191-93 (Cal. App. 2012);                                                                                                                        People v. Garcia                                              , 113 P.3d 775, 780-82                                 

(Colo. 2005);                                   State v. Newman                                           , 302 P.3d 436, 440-43 (Or. 2013).                                                                                        

                                                                                                                                                   - 6 -                                                                                                                                              2533

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


defense  was  legally  invalid),   Wagner   should  still  be  procedurally  barred  from  


challenging the trial judge's ruling in this appeal.  


                     First, the State argues that Wagner's request for a jury instruction on this  


issue was untimely.   More specifically, the State contends that  Wagner's defense of  


involuntariness  falls  within  the  mandate  of  Alaska  Criminal Rule  16(c)(5);  this  rule  


declares that defendants must notify the State in advance of trial if they "[intend] to rely  


upon a defense of alibi, justification, duress, entrapment, or other statutory or affirmative  




                     In its brief, the State offers a lengthy and complicated argument as to why  


the  defense  of  involuntariness  should  be  deemed  to  fall  within  Rule  16(c)(5)'s  


designation of "statutory or affirmative" defenses.  But we need not resolve this issue of  


statutory interpretation, because the prosecutor at Wagner's trial never argued that the  


State was prejudiced by any lack of notice.  And, in any event, Wagner's trial judge did  


not rely on the issue of timeliness when he rejected Wagner's proposed defense.  Rather,  


the trial judge reached the merits of Wagner's proposed defense: he ruled - mistakenly  


- that Wagner's defense was invalid as a matter of law.  


                     Given these circumstances, we will not cut off Wagner's right of appellate  


review simply because he arguably failed to comply with Criminal Rule 16(c)(5).  See  


generally Grimmett v. University of Alaska, 303 P.3d 482, 486 n. 9 (Alaska 2013).  


                     In Abruska v. State , 705 P.2d 1261, 1271-72 (Alaska App. 1985), and in  


Morgan v. State, 661 P.2d 1102, 1103 n. 1 (Alaska App. 1983), we held that when a trial  


court allows a defendant to raise an untimely challenge to an indictment - that is, when  


the trial court  overlooks the untimeliness and reaches the merits of the defendant's  


challenge - then an appellate court should not reject the claim on forfeiture grounds.  


We apply that same rule here.  Even assuming that the State is correct in arguing that  

                                                               - 7 -                                                          2533

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Wagner  was  required  to  raise  his  involuntariness  defense   before  trial,  we  will  


nevertheless review the trial judge's ruling on the merits of Wagner's claim.  


                    The  State  next  argues  that  Wagner  failed  to  preserve  his  claim  of  


involuntariness because Wagner's attorney presented no expert testimony to support the  


assertion that Wagner was sleep-driving as a result of his ingestion of zolpidem.   But  


given the trial judge's ruling (during the State's case-in-chief) that this proposed defense  


was legally invalid, it is unclear why Wagner's attorney should be expected to present  


expert testimony on this issue.  


                    One might argue that the trial judge would have  acted within his proper  


authority if he had rejected Wagner's proposed defense because the defense attorney  


failed to give pre-trial notice of any expert testimony to support it.  See Alaska Criminal  


Rule 16(c)(4).  But again, the prosecutor did not object on the ground of lack of notice.  


And the State's own expert (a forensic chemist from the Washington State Toxicology  


Laboratory) admitted on cross-examination - without objection from the prosecutor -  


that zolpidem can cause a person to sleep-drive.  


                    The  State  also  faults  Wagner  for  failing to  offer  any  evidence  on  the  


question  of whether Wagner personally was on notice that zolpidem might have such  


side effects.  But again, the judge had already ruled (before Wagner took the stand) that  


the proposed involuntariness defense was not legally valid.  


                    The  State's  final  argument  on  appeal  is  that,  even  if  the  trial  judge  


improperly prevented Wagner's attorney from presentingan involuntariness defense, this  


error was harmless beyond a reasonable doubt.  


                    The State points to the significant inconsistencies between Wagner's trial  


testimony and the earlier account of events that Wagner offered to the police at the scene  


and  following  his  arrest.                According  to  the  State,  these  inconsistencies  were  so  

                                                               - 8 -                                                          2533

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substantial that no juror could reasonably  have  thought there was a possibility that  


Wagner was sleep-driving.  


                    The  State  is  correct  that  the  evidence  at  Wagner's  trial offered  many  


reasons to doubt Wagner's claim of sleep-driving.  But as we have explained, Wagner  


took the stand  and  testified that (1) he took zolpidem and (2) he had no memory of  


events between the time he began feeling drowsy at home and the time he awoke in his  


vehicle with the air bag deploying.  It was up to the jury to decide whether Wagner's  


testimony created a reasonable doubt as to whether he was sleep-driving.  


                    We therefore reject the State's harmless error argument.  



                    The judgement of the superior court is REVERSED.  

                                                             - 9 -                                                        2533

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