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Andrew Craig Simpson v State of Alaska (5/21/2021) ap-2703

Andrew Craig Simpson v State of Alaska (5/21/2021) ap-2703


             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 Nos. A-13129,  

                                                   Appellant,                                            A-13139, & A-13130  

                                                                                           Trial Court Nos. 3AN-16-08118 CR, 

                                      v.                                               3AN-11-01816 CR, & 3AN-14-11502 CR  

STATE OF ALASKA,                                                                                                O P I N I O N  

                                                   Appellee.                                      [No. 2703 - May  21, 2021]  

                         Appeal  from  the  Superior  Court,   Third  Judicial  District,  


                         Anchorage, Michael D. Corey and Eric A. Aarseth, Judges.  

                         Appearances:  Bradly A. Carlson, The Law Office of Bradly A.  



                         Carlson, LLC, under contract with the Public Defender Agency,  

                         and  Samantha  Cherot,  Public  Defender,  Anchorage,  for  the  

                         Appellant.              Patricia  L.  Haines,  Assistant  Attorney  General,  


                         Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson,  


                         Attorney General, Juneau, for the Appellee.  

                         Before:  Allard, Chief Judge, and Harbison and Terrell, Judges.  


                         Judge ALLARD.  

                         Andrew   Craig   Simpson   was   charged   with   felony  driving   under   the  

influence, third-degree weapons misconduct, fourth-degree weapons misconduct, fifth-                                                                        

degree weapons misconduct, and driving with a canceled, suspended, or revoked license                                                                   

after police responded to a report that Simpson was parked in front of his girlfriend's                                                         

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


home   and   refusing  to   leave.     Simpson   pleaded   guilty   to   fifth-degree   weapons  

misconduct   and   driving   with   a   canceled,   suspended   or  revoked   license.     He   was  

convicted   by   a   jury   of   felony   driving   under   the   influence,   third-degree   weapons  

misconduct, and fourth-degree weapons misconduct.                                                                                    On appeal, Simpson raises four                                       

claims of error.         

                                 First, Simpson argues that the trial court erred when it denied his motion                                                        

to suppress the evidence obtained against him after the police initiated an investigative                                                                                            

stop, turned arrest.                            For the reasons explained here, we find no error in the trial court's                                                                              


                                 Second, Simpson argues that the trial court failed to give an additional                                                                                  

curative instruction after the prosecutor repeated an argument that the court had ruled                                                                                                                 

was improper.   Because the record shows that the trial court did give an additional  


curative instruction, we find no merit to this claim.  


                                 Third,   Simpson   argues   that   the   trial   court  erred  when   it   allowed   the  

prosecutor to argue an "operating" theory to the jury because, according to Simpson,  


there was legally insufficient evidence to convict him of operating.  Because the record  


shows that there was legally sufficient evidence to convict Simpson of operating, we find  


no error.  


                                 Lastly, Simpson argues that the trial court erred when it refused to merge  


his convictions for third-, fourth-, and fifth-degree weapons misconduct.  Because we  


conclude that merger was not required, we affirm the separate convictions for these  



         1      AS 28.35.030(n), AS 11.61.200(a)(1), AS 11.61.210(a)(1), AS 11.61.220(a)(1)(A),  

and AS 28.15.291(a)(1), respectively.  

                                                                                                    - 2 -                                                                                               2703

----------------------- Page 3-----------------------

                 Background facts and prior proceedings                                    

                                  During the late morning of October 9, 2016, Simpson picked up his then-                                                                                                        

girlfriend, Nora Hadley, from a local hotel to take her to her parents' home.                                                                                                                                When  

Simpson arrived, Hadley smelled alcohol on his breath and could tell he had been                                                                                                                                 

drinking.  Simpson and Hadley then drank more alcohol while sitting in the car in the                                                                                                                                 

hotel parking lot before departing for Hadley's parents' home.                                                                                                        Upon arriving at her                           

parents' home, Hadley told Simpson she needed to change her clothes and went inside.                                                                                                                                             

Once inside her parents' home, she called 911 to report that Simpson was "intoxicated,"                                                                                                    

"smoking weed and meth," parked outside her home, and refusing to leave.                                                                                                                          2  


                                  Officers Heidi Schaeffer and Aaron Hostetter responded to  the call in  


separate cars.  One officer parked in front of Simpson's car and the other parked behind  


Simpson's car in order to block it in.  Officer Schaeffer then walked up to the driver's  


side door and asked Simpson for his license and if he had any weapons. Simpson denied  


having any weapons, but he patted a long object in his front left pants pocket as he did  



                                   Simpson's car was not running, but Simpson was in the driver's seat and  


the keys were on a belt loop in Simpson's lap.  Simpson admitted to driving the vehicle  


to its current location, and he indicated that he intended to drive away when his girlfriend  


returned.  Simpson also admitted to drinking a couple shots of alcohol before driving.  


Officer Schaeffer noticed that Simpson had red, watery eyes and she smelled alcohol on  


Simpson's breath and a "strong" odor of burnt marijuana coming from his car.  Officer  


Schaeffer also observed that Simpson "hadahard timefocusing"during his conversation  


with her before he stepped out of the car.  

         2       Hadley's testimony at trial differed from the 911 recording.                                                                                      At trial, Hadley testified   

that she left the vehicle and called 911 from the home because she did not feel safe in the car                                    

and that Simpson did not smoke marijuana or methamphetamine while in the car.  

                                                                                                         -  3 -                                                                                                  2703

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

                    Officer Schaeffer asked Simpson to step out of the car to perform field  


sobriety tests. After Simpson exited the car, Officer Schaeffer indicated that she wanted  


to conduct a pat-down search.  Simpson then attempted to run away from the officers.  


The officers caught up with him and placed him in handcuffs.   After being cuffed,  


Simpson disclosed that he had a gun in his front left pocket - the same pocket with the  


long object that he patted while claiming he did not have any weapons.  


                     Simpson was arrested and taken to jail, where the officers attempted to  


administer  field  sobriety  tests.                  The  officers  completed  only  the  horizontal  gaze  


nystagmus test, which showed a lack of smooth pursuit in both eyes.  The officers then  


administered a breath test, which indicated that Simpson had a breath alcohol level  


of .076. An expert for the State later testified that, based on the results of the breath test,  


Simpson's breath alcohol level was somewhere between .069 and .12 at the time he was  



                     Simpson was charged with driving with a canceled, suspended, or revoked  


license and felony driving under the influence because he had six prior convictions for  


driving under the influence. He was also charged with third-degree weapons misconduct  


for possessing a concealable handgun after being convicted of a felony, fourth-degree  


weapons misconduct for possessing a gun while intoxicated, and fifth-degree weapons  


misconduct for failing to inform the officers regarding the presence of the gun. Simpson  


pleaded guilty to the driving while license canceled, suspended, or revoked charge and  


the fifth-degree weapons misconduct charge, and went to trial on the remaining charges.  


Thejury convicted himofdrivingunder theinfluence,third-degreeweaponsmisconduct,  


and fourth-degree weapons misconduct.  Simpson waived his right to a jury trial on his  


prior driving under the influence convictions, and the trial court found him guilty of  


felony driving under the influence after a short bench trial. At sentencing, the trial court  


imposed  5  years  with  2  years  suspended  (3  years  to  serve)  for  driving  under  the  


                                                              - 4 -                                                         2703

----------------------- Page 5-----------------------

influence, 2 years to serve for the third-degree weapons misconduct to run consecutively                                                                                                                                                                                                                                                  

to   the   driving   under   the   influence   charge,  180   days   to   serve   for   the   fourth-degree  

weapons misconduct to run concurrently, 30 days to serve for the fifth-degree weapons                                                                                                                                                                                                                                                                            

misconduct to run consecutively, and 1                                                                                                                                                       year  to  serve for the driving while license                                                                                                                             

canceled, suspended, or revoked to run concurrently for a composite sentence of 7 years                                                                                                                                                                                                                                                                                     

and 30 days with 2 years suspended (5 years and 30 days to serve).                                                                                                                                                                                                                

                                                             This appeal followed.                                 

                              Simpson's motion to suppress                                                                    

                                                             Prior to trial, Simpson filed a motion to suppress the evidence obtained                                                                                                                                                                                                                           

against him as a result of the investigatory stop and arrest, arguing that the officers (1)                                                                                                                                                                                                                                                                                                

lacked reasonable suspicion to contact him; (2) lacked reasonable suspicion to conduct                                                                                                                                                                                                                                                                              

the pat-down                                                       search; (3) lacked probable cause to arrest him for driving under the                                                                                                                                                                                                                                                 

influence; (4) improperly asked him to perform field sobriety tests at the police station                                                                                                                                                                                                                                                                                 

after his arrest; and (5) lacked authority to request a breath sample.                                                                                                                                                                                                                                                               Following an  

evidentiary hearing, the trial court rejected all of these arguments and denied the motion                                                                                                                                                                                                                                                                              

to suppress.                                            Simpson now renews these arguments on appeal.                                                                                                                                                     

                                                             Simpson first challenges the initial investigatory stop.                                                                                                                                                                                                   An investigatory   

 stop requires "reasonable suspicion that imminent public danger exists or serious harm                                                                                                                                                                                                                                                                                          


to persons or property has recently occurred."                                                                                                                                                                                                                                                                                                                           

                                                                                                                                                                                                                  Reasonable suspicion exists if the totality  


of the circumstances indicates that there is a substantial possibility that conduct giving  



rise to a public danger has occurred.                                                                                                                                                 Reasonable suspicion requires more than "an  

               3               Coleman v. State, 553 P.2d 40, 46 (Alaska 1976).  

               4              Beltz v. State, 221 P.3d 328, 337 (Alaska 2009).  

                                                                                                                                                                                          -  5 -                                                                                                                                                                                 2703

----------------------- Page 6-----------------------


inchoate and unparticularized suspicion or hunch."                                                 The officer must identify "specific              

and articulable facts which, taken together with rational inferences from those facts,                                                                    

reasonably warrant [the] intrusion."                                6  


                         Here, the officers received a 911 call from Simpson's girlfriend who  


reported that Simpson was intoxicated, "smoking weed and meth," and that he was  


now sitting in the driver's seat of a parked car outside her residence, refusing to  


leave.         This         information                was        sufficient            to      justify         the       police          initiating           an  



investigatorystop so that they could question Simpson. 


                         Moreover, as soon as theofficers arrived,they obtained additionalevidence  


of  potential  public  danger  sufficient  to  meet  the  more  stringent  standard  to  arrest  


Simpson. Probable cause to arrest exists if the totality of the circumstances known to the  




officer would support a reasonable belief that an offense has been or is being committed. 


After the officers parked and began to approach Simpson, they could smell a strong odor  


of marijuana coming from the car.  Upon contacting Simpson, the officers smelled the  


odor of alcohol coming fromSimpson's breath and observed that he had red, watery eyes  


and that he had difficulty tracking the conversation.  Simpson also admitted to driving,  


drinking shots of alcohol, and smoking "a little bit" of marijuana that day.  All of this  

      5     McQuade v. State , 130 P.3d 973, 977 (Alaska App. 2006) (quoting                                                             In re J.A. , 962  

P.2d 173, 176 (Alaska 1998)).  

      6      Waring v. State, 670 P.2d 357, 365 (Alaska 1983) (quoting Terry v. Ohio, 392 U.S.  

 1, 21 (1968)).  



             See Romo v. Anchorage, 697 P.2d 1065, 1069 (Alaska App. 1985) (holding that an  

imminent public danger exists when an intoxicated driver retains possession and control of  

a motor vehicle).  

      8      State v. Joubert, 20 P.3d 1115, 1118-19 (Alaska 2001).  

                                                                             - 6 -                                                                        2703

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

information, taken together, was sufficient to establish probable cause to arrest Simpson                                                                     

for driving under the influence.            

                           On   appeal,   Simpson   challenges   the   officers'   attempt   to   conduct   field  

sobriety tests at the police station.                                But because the officers had probable cause to arrest                                          

Simpson for driving under the influence, they necessarily had the reasonable suspicion                                                                      


required   to   ask   Simpson   to   perform   field   sobriety   tests.                                                                                                  

                                                                                                                               Moreover,  contrary  to  


Simpson's claims, the request to complete field sobriety tests did not violate Simpson's  



Miranda rights because field sobriety tests are generally non-testimonial in nature.                                                                                   We  


likewise see no issue with the police administering these tests at the police station rather  


than at the scene given that probable cause to arrest Simpson already existed without the  



field sobriety tests. 


                           Simpson also challenges the pat-down search, arguing that there was no  


reasonable  suspicion  to  believe  that  he  had  any  weapons.                                                                  But  testimony  at  the  


evidentiary hearing established that the officers saw a long object in Simpson's pants  


pocket,  and  that  Simpson  patted  that  area  when  he  denied  having  any  weapons.  


Testimony from the evidentiary hearing also established that Simpson reached for that  


same pocket when he first got out of the car, further justifying the officer's decision to  


conduct a pat-down search.  


                           Lastly, Simpson argues that the officers lacked the authority to require him  


to submit to a breath test.   We find no merit to this claim.   Under Alaska's implied  


consent law, a driver of a motor vehicle who has been lawfully arrested for driving under  

       9      See Hurlburt v. State, 425 P.3d 189, 195 (Alaska App. 2018).  

       10    Palmer v. State, 604 P.2d 1106, 1109 (Alaska 1979).  

       11     Cf. id.  (concluding that post-arrest administration of breath test at police station and   

"several physical tests designed to determine whether, and to what extent, the defendant was  

under the influence of intoxicating liquor" was proper).  

                                                                                   -  7 -                                                                           2703

----------------------- Page 8-----------------------

the influence must submit to a breath test or face potential charges for refusing to submit                                                                                          


to a chemical test.                                                                                                                                                                         

                                              Simpson was arrested, in part, based on probable cause that he was  


driving or operating a motor vehicle while under the influence.  


                              Accordingly,  we  affirm  the  superior  court's  ruling  on  the  motion  to  


                The prosecutor's improper argument  


                              During closing argument, the prosecutor argued to the jury that "it's up to  


you to decide whether you think someone in Mr. Simpson's condition is okay to drive.  


If you want someone like him on your roads, in your community . . . ."  This line of  


argument was improper.13  



                               Simpson's attorney objected to the prosecutor's statements. The trial court  


sustained the objection and gave a curative instruction, instructing the jury that "the  


problem with the argument is that it puts you in the street . . . .  But this isn't about any  


prejudice or sympathy towards anyone in particular. You need to decide this objectively.  


Are the facts there or not, regardless of how you might personally feel about it."  


                              Despite  the  fact  that  the  trial  court  sustained  the  defense  attorney's  


objection and gave a curative instruction, the prosecutor returned to this same line of  


argument later in her closing argument, again telling the jury, "If you want an individual  


like Mr. Simpson driving around, that decision is up to you."  

        12     See AS 28.35.031(a).  

        13     See  ABA  Standards  for  Criminal   Justice    3-6.8(c)  at  37  (4th  ed.  2017)  ("The  

prosecutor should not make arguments calculated to appeal to improper prejudices of the trier                                                                                               

of fact. The prosecutor should make only those arguments that are consistent with the trier's       

duty to decide the case on the evidence, and should not seek to divert the trier from that                                                                                                  

duty."); see also Hess v. State, 435 P.3d 876, 881 (Alaska 2018) (citing to  3-6.8(c) to  

support the conclusion that the prosecutor in that case made an improper argument).  

                                                                                             -  8 -                                                                                      2703

----------------------- Page 9-----------------------

                     On appeal, Simpson argues that the trial court erred because, according to  


Simpson, the trial court failed to give a second curative instruction after the prosecutor  


repeated the improper argument.  But the record clearly shows that the trial court did  


give a second curative instruction after the closing arguments were concluded. The trial  


court once again instructed the jury that their role was to view the facts objectively and  


to follow the law, regardless of their personal opinion regarding drinking and driving.  


The trial court also instructed the jury that this part of the prosecutor's argument was  


improper and that it was to hold the State to its burden.  The court then confirmed with  


the jurors that they were able to do so: "Everybody clear they can follow the instruction?  


Anyone can't follow the instruction, please raise your hand.  No hands.  Okay."  


                    Accordingly,becausethetrial court respondedtotheprosecutor's improper  


argument with appropriate curative instructions, we find no merit to this claim of error.  


           The jury instruction on "operating" a motor vehicle  


                    At trial, the prosecutor argued that Simpson had driven to his girlfriend's  


house while intoxicated.  The prosecutor also argued that Simpson had "operated" the  


parked car while intoxicated because he was in full physical control of the car with the  


keys at ready access to drive away at any time. The trial court instructed the jury on both  


"driving" and "operating." Simpson objected to the instruction on "operating," arguing  


that there was insufficient evidence to convict himof operating. The trial court overruled  


the objection.  


                     On appeal, Simpson renews hisargument that thejuryshould not havebeen  


instructed on "operating" because, according to Simpson, there was legally insufficient  


evidence to convict him of operating because he "made no movements to indicate a  


present intent to move the car." But the jury could reasonably infer an intent to move the  


car based on Simpson's statements and his actions in sitting in the driver's seat with his  


                                                               -  9 -                                                        2703

----------------------- Page 10-----------------------

keys in easy reach.                    In any event, as the State points out, the appellate courts have                                             

previously upheld operating convictions based on similar facts and Simpson fails to                                                                      

meaningfully distinguish his case from those prior cases.                                              14  


            Merger of the weapons misconduct convictions  


                        Whether guilty verdicts merge into a single conviction is a mixed question  


of fact and law - the facts underlying the offenses are reviewed for clear error but "[t]he  


ultimate legal question  of merger  under  the double-jeopardy  clause is reviewed  de  



                  Multiple convictions arising from the same course of conduct do not violate  


double jeopardy when the differences in intent and conduct between the offenses are  



"substantial or significant enough to warrant multiple punishments."                                                                To determine  


whether multiple punishments are warranted, this Court looks to "the quality of the  


differences, if any exist, between the separate statutory offenses, as such differences  



relate to the basic interests sought to be vindicated or protected by the statutes." 


requires examining both "the conduct punished as well as the societal interests protected  



by the two statutes." 

      14    See, e.g., State v. Conley, 754 P.2d 232, 236 (Alaska 1988) (concluding that defendant  

was in "actual physical control" of her vehicle even though the engine was not running where  


she was seated in driver's seat, had possession of ignition key, and was attempting to put key  


in ignition); Kingsley v. State, 11 P.3d 1001, 1002-03 (Alaska App. 2000) (finding evidence  

legally sufficient to convict defendant of "operating" when defendant was the sole occupant  


in the vehicle and was sitting in the driver's seat with the keys in his pocket after driving his  

car into a snow berm).  

      15    Johnson v. State , 328 P.3d 77, 81 (Alaska 2014).  

      16     Whitton v. State, 479 P.2d 302, 312 (Alaska 1970).  

      17    Id.  

      18    Johnson , 328 P.3d at 88 (quoting Mead v. State , 489 P.2d 738, 743 (Alaska 1971)).  

                                                                         -  10 -                                                                    2703

----------------------- Page 11-----------------------

                     Here,   Simpson   was   convicted   of   three   different   weapons   misconduct  

charges: (1)        third-degree weapons misconduct for possessingaconcealablefirearmafter                                     


being convicted of a felony;                                                                                                        

                                               (2) fourth-degree weapons misconduct for possessing a  



                                                                                                                 and (3) fifth- 

firearm while impaired by intoxicating liquor or a controlled substance; 


degree weapons misconduct for  failing to inform the police that he was carrying a  



concealable deadly weapon.                       Simpson argues that all three convictions should have  


merged into a single conviction.  We disagree.  


                     We  have  previously  held  in  an  unpublished  opinion  that  separate  


convictions for third-degree weapons misconduct (felon in possession of concealable  


firearm)   and   fourth-degree   weapons   misconduct   (possession   of   firearm   while  


intoxicated)  do  not  merge  because  they  "implicate  significantly  different  societal  



interests."        As we explained in that case, the third-degree weapons misconduct statute  


prohibiting felons from possessing concealable firearms is a status offense that prohibits  


a  certain  class  of  people  (convicted  felons)  from  possessing  firearms  that  can  be  



                      In contrast, the fourth-degree weapons misconduct statute prohibiting  


possession of a firearm while under the influence of an intoxicating liquor or controlled  


substance applies equally to all persons and is more akin to the prohibition against  

     19   AS 11.61.200(a)(1).  

     20   AS 11.61.210(a)(1).  

     21   AS 11.61.220(a)(1)(A).  

     22   See  Glover  v.  State,  2020  WL  232799,  at  *2  (Alaska    App.   Jan.  15,  2020)  

(unpublished) (holding that fourth-degree weapons misconduct does not merge with third- 

degree weapons misconduct); see also Ladick v. State, 2005 WL 19222, at *2 (Alaska App.  

Jan. 5, 2005) (unpublished) (holding that fourth-degree weapons misconduct was not a lesser  

included offense of third-degree weapons misconduct).  

     23   Glover, 2020 WL 232799, at *2.  

                                                              -  11 -                                                        2703

----------------------- Page 12-----------------------


driving under the influence.                                        The two offenses thus involve different elements and are                                                                  

directed at different dangers.                 

                              We    likewise    conclude    that    a    conviction    for    fifth-degree    weapons  

misconduct does not merge with either of the other weapons offenses because it involves                                                                                          

different conduct and is directed at a different societal interest - namely, the protection                                                                                   

of police officers by creating                                         an   affirmative duty to                              report any                 concealable deadly   




                              Accordingly, we find no error in the trial court's refusal to merge these  


three convictions.  



                              The judgment of the superior court is AFFIRMED.  

        24     Id.  

        25     See  De  Nardo  v.  State,  819  P.2d  903,  907  (Alaska  App.  1991)  ("[T]he  policy  


underlying concealed weapons statutes is to prevent the surprise use of deadly force by  


prohibiting people from 'having, readily available for use, weapons of which others are  

unaware.'") (quoting Anchorage v. Lloyd , 679 P.2d 486, 487 (Alaska App. 1984)).  

                                                                                            -  12 -                                                                                      2703  

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