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Rusty J. Redding v. State of Alaska (11/15/2019) ap-2662

Rusty J. Redding v. State of Alaska (11/15/2019) ap-2662


             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 @



                                                                                                 Court of Appeals No. A-13023  

                                                   Appellant,                                Trial Court No. 3PA-17-01122 CR  


                                                                                                                O P I N I O N  


                                                   Appellee.                                   No. 2662 - November 15, 2019  

                          Appeal f                 

                                          rom the District Court, Third Judicial District, Palmer,  


                          William Estelle, Judge.  


                          Appearances:  Tristan Bordon, Assistant Public Defender, and  

                          Quinlan  Steiner,  Anchorage,  for  the  Appellant.    Glenn  J.  

                          Shidner,  Assistant  District  Attorney,  Palmer,  and  Kevin  G.  

                          Clarkson, Attorney General, Juneau, for the Appellee.  

                          Before:   Allard, Chief Judge, and Wollenberg and Harbison,  



                          Judge WOLLENBERG.  

                          Rusty J. Redding was charged with second-degree vehicle theft for taking                                                         

another person's dirt bike. At trial, Redding argued that he took the dirt bike for the sole                                                                    

purpose of getting to an area where he could place a call for help.                                                             The State contested     

Redding's justification for taking the dirt bike.                                

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                                The   trial   court   instructed   the   jury   on   the   defense   of   necessity.     The  

instruction stated, and the prosecutor argued, that Redding had the burden of proving this                                                                                                              

necessity defense by a preponderance of the evidence.  The jury rejected the necessity                                                                                                    

defense as instructed and convicted Redding of second-degree vehicle theft.                                                                                                              

                                Redding now appeals his conviction.                                                         Redding argues that the trial court                                     

misallocated the burden of proof in this case with respect to Redding's necessity defense.                                                                                                                         

Redding notes that a person commits the crime of second-degree vehicle theft if, in                                                                                                                        

relevant part, the person drives, tows away, or takes the propelled vehicle of another,                                                                                                      

"having no right to do so, or a reasonable ground to believe the person has such a                                                                                                                           



                           Relying  on McGee  v.  State,  a  case  in  which  the  Alaska  Supreme  Court  


interpreted similar language in the criminal mischief statutes, Redding contends that it  



was the State's burden to disprove necessity beyond a reasonable doubt. 


                                The State agrees with Redding and concedes error.  The parties jointly ask  


this  Court  to  vacate  the  judgment  and  remand  for  further  proceedings.                                                                                                               Having  


independently reviewed the record and the parties' pleadings, we conclude that the  



State's concession is well founded.   

                                A defendant is entitled to a jury instruction on the defense of necessity if  


the defendant presents "some evidence" that:  (1) the charged offense was committed to  


prevent a significant evil; (2) there was no adequate alternative to the charged offense;  

        1       AS 11.46.365(a)(1).    If a person drives, tows away, or takes a particular kind of                                                                                            

propelled vehicle - the car, truck, motorcycle, motor home, bus, aircraft, or watercraft of  

another - the person commits first-degree vehicle theft.  AS 11.46.360(a)(1).  

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

        3       See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (requiring an appellate court to  


independently assess whether a concession of error "is supported by the record on appeal and  

has legal foundation").  

                                                                                                  - 2 -                                                                                               2662

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and (3) the foreseeable harm from the unlawful conduct was not disproportionate to the                                                                


harm avoided by breaking the law.                                                                                                            

                                                                  In this case, the State did not contest that Redding  


was entitled to a necessity instruction.  


                        Generally, once an instruction is warranted, the necessity defense is an  



affirmative defense that the defendant must prove by a preponderance of the evidence. 


But in McGee, the Alaska Supreme Court held that, in the context of a criminal mischief  


case where the defendant places necessity at issue, the State bears the burden of proving  


beyond a reasonable doubt that thedefendant had no reasonableground for believing that  



his actions were necessary. 


                        The McGee  court noted that, under Alaska law, the offense of criminal  


mischief requires proof that a person intentionally damaged the property of another,  


while "having no right to do so or any reasonable ground to believe the person has such  



a right."   The court held that this language was an "integral part of the offense" itself,  


and that the State therefore had the burden of proving that the defendant lacked any  



"right" or "reasonable ground," once the issue was raised. 

      4     State v. Garrison, 171 P.3d 91, 94-95 (Alaska 2007); Seibold v. State, 959 P.2d 780,   

782 (Alaska App. 1998).  

      5     See  AS 11.81.320; AS 11.81.900(b)(2)(B); see also McGee, 162 P.3d at 1252, 1255.  

      6     McGee , 162 P.3d at 1260-61.  

      7     Id. at 1256 (quoting AS 11.46.482(a)(1)).  



            Id.     The court reasoned that the language set out in the criminal  mischief  statute  


prevailed over the general criminal code provision defining the defense of necessity as an  


"affirmative defense," since the general necessity provision specifically exempts a "statute  


defining the offense" that otherwise  "provides exemptions or defenses dealing with the  


justification  of  necessity  in  the  specific  situation  involved."                                          Id.  (quoting  AS  11.81.- 


                                                                         -  3 -                                                                    2662

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                        The court further concluded that the word "right," as used in the criminal                                             

mischief statutes, was not limited to a property right, but was instead broad enough to                                                                    


encompass claims of right based on legal justifications like necessity.                                                            Consequently,  


the supreme court held that, once McGee placed the defense of necessity at issue in his  


criminal mischief case, the State bore the burden of proving beyond a reasonable doubt  



that he had no reasonable ground to believe that his actions were necessary. 


                        In this case, Redding was charged with second-degree vehicle theft, not  


criminal mischief. But likethecriminal mischiefstatutes, thesecond-degreevehicletheft  


statute criminalizes certain conduct when the person engaging in that conduct has "no  



right to do so, or a reasonable ground to believe [he] had such a right." 


                        Moreover, the legislative history of the second-degree vehicle theft statute  


shows that this language was drawn directly from the criminal mischief statutes.  Prior  


to 1996, the offense of driving or taking the propelled vehicle of another (traditionally  




referred to as "joyriding") was codified in the Alaska statutes as criminal mischief. 


 1996, the legislature - seeking to better convey to the public the seriousness of this  


offense - removed it from the criminal mischief statutes and recodified it as the crime  

      9     Id. at 1256-57, 1260.  

      10    Id. at 1260-61.  

      11    AS 11.46.365(a)(1).  

      12    Former AS 11.46.484(a)(2) (pre-June 1996 version); see also Allridge v. State, 969  


P.2d 644, 645 (Alaska App. 1998) (explaining that the crime of vehicle theft - for driving,  


towing away, or taking a motor vehicle, having no reasonable ground to believe one has a  


right to do so - is "a recodified version of what is commonly called 'joyriding' [which is]  


the  crime  of  taking  a  vehicle  without  permission,  but  not  necessarily with  an  intent  to  


permanently deprive the owner or permanently appropriate the vehicle for oneself" (citing  


R.  Perkins & R. Boyce,  Criminal Law, at 333-34 (3d ed. 1982); Alaska Criminal Code  

Revision, Tentative Draft, Part III, at 43-46 (1977))).  

                                                                           - 4 -                                                                      2662

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of "vehicle theft."                      But aside from tying the level of the offense to the type of vehicle                                                  

taken, the substantive language of the offense remained largely unchanged.                                                                             14  


                           In McGee, the supreme court relied on the textual meaning of the word  


"right" and the legislative history of the criminal mischief statutes to conclude that the  


phrase "no right . . . or any reasonable ground to believe the person has such a right" was  


broad enough to include claims of right based on necessity and thus required the State  


to disprove necessity in a case where it is placed at issue.  Given that the language in the  


vehicle theft statutes was drawn directly from the criminal mischief statutes, we agree  


with the parties that the State had the burden of proving beyond a reasonable doubt that  


Redding had no right or reasonable ground to believe that his act of taking the dirt bike  


was justified.  


                           We therefore accept the State's concession of error. We also agree with the  


parties that this error was not harmless and requires us to reverse Redding's conviction.  


                           Accordingly, the judgment of the district court is REVERSED, and this  


case is remanded for a new trial.  

       13     SLA  1996,   ch.   71,    1,  11  (House  Bill  75);  see  also  House  Bill  75,  Sponsor  

Statement of Representative Jerry Sanders (1996) (explaining that House Bill 75 "labels       

those who take cars belonging to others as what they are - thieves - not joy riders or                                                                       




             Unlike the criminal mischief statutes, the second-degree vehicle theft statute uses the  


word "a" instead of "any" before the phrase "reasonable ground to believe the person has  


such a right." Compare AS 11.46.365(a) (second-degree vehicle theft) with AS 11.46.482(a)  


(third-degree criminal mischief).  But the use of the word "any" in the first -degree vehicle  

theft statute, which was enacted at the same time as the second-degree vehicle theft statute,  


suggests that the use of the word "a" in the second-degree vehicle theft statute was simply  


a scrivener's error.  See SLA 1996, ch. 71,  1.  There is nothing in the legislative history of  


House Bill 75, which added the crimes of first- and second-degree vehicle theft, to indicate  


that the legislature attached any significance to the use of "a" rather than "any."  

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