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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Greenwood v. State (8/20/2010) sp-6503
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| JENNIFER GREENWOOD, | ) |
| ) Supreme Court No. S- 13449 | |
| Petitioner, | ) |
| ) Court of Appeals No. A-9930 | |
| v. | ) Superior Court No. 4FA-06-3015 CR |
| ) | |
| STATE OF ALASKA, | ) O P I N I O N |
| ) | |
| Respondent. | ) No. 6503 August 20, 2010 |
| ) | |
Petition for Hearing from the Court of
Appeals of the State of Alaska, on appeal
from the Superior Court, Fourth Judicial
District, Fairbanks, Randy M. Olsen, Judge.
Appearances: Margi Mock, Assistant Public
Defender, and Quinlan Steiner, Public
Defender, Anchorage, for Petitioner. Diane
L. Wendlandt, Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and Daniel S. Sullivan, Attorney
General, Juneau, for Respondent.
Before: Carpeneti, Chief Justice, Fabe,
Winfree, Christen, and Stowers, Justices.
FABE, Justice.
I. INTRODUCTION
In August 2006 Jennifer Greenwood fled from her home in
North Pole in the middle of the night, believing that she was
about to be attacked by her former boyfriend and that he was
planning to burn down his parents nearby home. After screaming
for help and calling 911, Greenwood got into her van and drove
away. Greenwood drove less than a mile to her ex-boyfriends
parents home and honked to try to wake them. She then drove a
few blocks to the nearest well-lighted area along the highway,
where she stopped to wait for the troopers who were responding to
her 911 call, flagging them down when they arrived.
Greenwood had been drinking, and she was arrested and
charged with felony driving under the influence. After hearing
evidence and testimony about these incidents, the trial court
denied Greenwood a jury instruction on the necessity defense,
concluding that Greenwood was justified only in driving as far as
her ex-boyfriends parents home. A jury convicted Greenwood, and
the court of appeals affirmed, reasoning that Greenwood had
presented no evidence that the danger continued after she reached
the parents home and that she had the alternative of remaining in
her van with the doors locked. Because we conclude that
Greenwood presented some evidence of each of the elements of the
necessity defense, we reverse and remand for a new trial with a
necessity instruction.
II. FACTS AND PROCEEDINGS
On August 10, 2006, Jennifer Greenwood was home alone
in her camper in North Pole waiting for Jay Way to arrive.
Greenwood wanted to speak with Way, whom she had dated that
summer, about her missing puppy that she suspected he may have
taken. Because Greenwoods camper did not have electricity, she
started a bonfire outside and lit some candles both inside and
outside of the camper. As it grew late, Greenwood assumed that
Way was not coming, and she let the fire burn down and began
preparing for bed.
But Way did arrive on his four wheeler, and he and
Greenwood had a couple of glasses of wine. Greenwood testified
that when she brought up the subject of the missing puppy, Way
seemed kind of [] mad, which made her feel vulnerable and afraid.
Greenwood testified that she had been told that Way had been
physically abusive with his previous girlfriend and had drug
problems, and she decided that the best way to avoid conflict in
the situation would be to agree to have sex with Way.
Afterwards, Greenwood went outside to check on the
fire. While she was outside, she overheard Way mumbling inside
the camper about how he was going to burn down both Greenwoods
camper and his parents home and how he would not go back to jail
because there wont be any witnesses. Greenwood then observed Way
flinging the lit candles around her camper, so she began
screaming for her neighbors to help her or call 911. When no one
came to her aid, Greenwood ran into the woods barefoot with her
other dog. She testified that she could hear Way thrashing
around and throwing things, presumably in his search for her.
Greenwoods dog got away from her, ran towards Way, and
began to bark. Way picked up a two-by-four board and swung it at
the dog. While Way was distracted, Greenwood sneaked into the
camper to grab her purse containing her cell phone and quietly
headed back into the woods. Greenwood called her dog back to her
and dialed 911 to request help. After she explained that Way was
trying to burn down her house, the dispatch operator wanted her
to stay on the line, but the dog got away again and started
barking at Way, so Greenwood hung up. Way then hit Greenwoods
dog with the two-by-four and began to ride all around on his four
wheeler.
At that point, Greenwood ran to her van with her dog.
She testified that she felt that she needed to get out of the
situation and to drive to Ways parents house to warn them of the
danger because she did not have their telephone number.
Greenwood decided to drive on the back road to reach Ways parents
house, less than a mile away, in order to avoid the fast traffic
on the main road and to avoid crossing paths with Way. When
Greenwood arrived at Ways parents home, she saw that all of the
lights were off, so she slowed down and honked her horn to try to
rouse them. She did not stop because she was afraid of running
into Way, who lived with his parents, and because there were no
lights on at the house. Greenwood then drove a couple of blocks
to the nearest well-lighted spot on the main road, Holmes Road.
She parked to wait for the troopers who would be responding to
her 911 call, and when she saw them, she flagged them down by
honking her horn and opening her door.
When the troopers arrived sometime after 2:00 a.m.,
they found Greenwood distraught and crying on the side of the
road. While interacting with Greenwood, the troopers smelled
alcohol and observed that she was exhibiting signs of
intoxication. Greenwood submitted to a portable breath test and
was arrested for driving under the influence. A Datamaster test
later showed Greenwoods blood alcohol concentration to be 0.134
percent.
Greenwood was charged with felony driving under the
influence in violation of AS 28.35.030(n) on August 16, 2006.
The case was assigned to Superior Court Judge Randy M. Olsen for
trial. Before trial began, the State moved for a protective
order that would prevent Greenwood from raising the affirmative
defense of necessity. The trial court did not rule on this
matter immediately, but instead elected to hear the evidence
before making a decision. After the State presented its case,
Greenwood made an offer of proof to the court on what her
expected evidence of the defense would be. The court allowed her
to present this evidence despite the States argument that
Greenwood had reasonable alternatives available to her.
After hearing Greenwoods testimony, the superior court
stated that Greenwood had at least created a jury question as to
whether or not Greenwood had an adequate alternative method of
warning Ways parents of the evil she was seeking to prevent. The
trial court ruled as a matter of law, however, that upon
Greenwoods arrival at Ways parents house, the necessity ended:
[O]nce she got to the parents house, she would have accomplished
everything that she wanted to accomplish. It wouldve been
warning the parents. It wouldve been finding a safe haven. It
was a house that she knew. At that point, she was not justified
in driving further. The court explained that if theres a
continuing offense, like drunk driving, the illegal conduct must
be stopped as soon as the necessity ends, and it refused to
instruct the jury on the necessity defense.
Greenwood immediately moved for reconsideration and a
mistrial, arguing that it would be extremely prejudicial for her
testimony to be stricken. The trial court denied both of the
motions but did not strike Greenwoods testimony. Greenwood was
convicted and sentenced to 24 months in prison with 20 months
suspended.
Greenwood appealed her conviction to the court of
appeals, arguing that she was entitled to a necessity
instruction under the circumstances.1 The court of appeals
affirmed the trial courts ruling, reasoning that Greenwoods
failure to remain at Ways parents house because she did not wish
to encounter Way undermined her argument that it was necessary
for her to drive to their house to warn them of Ways intentions,
making an encounter with Way seemingly . . . inevitable.2 The
court of appeals further pointed out that Greenwood did not offer
any evidence that Way ever arrived at his parents house or that
she would have been in danger had she simply stayed in her car,
with the doors locked, and continued honking her horn until she
roused Ways parents.3
Chief Judge Coats dissented from the memorandum
opinion, maintaining that Greenwood had presented some evidence
to justify her decision to drive to the main road to contact the
state troopers because her testimony demonstrated that she was
concerned about an encounter with Way and that she wanted to
ensure that the troopers were able to find both her and the Way
residence.4 In the dissents view, a jury could reasonably find
that Greenwoods decision to avoid a confrontation with Way was
justifiable.5 Moreover, the dissent noted that Greenwood had
asserted the basis for her defense before she was arrested.6
We granted Greenwoods petition for hearing on the
question of whether she was entitled to a necessity instruction
at trial.
III. STANDARD OF REVIEW
A defendant is entitled to a jury instruction on the
necessity defense if [she] presents some evidence in support of
that defense.7 We review whether a defendant has presented some
evidence of a proposed defense de novo after considering the
entire record8 and viewing the evidence in the light most
favorable to the defendant.9
IV. DISCUSSION
The common law defense of necessity is available to
criminal defendants in Alaska except where preempted or excluded
by the legislature.10 To receive the benefit of a necessity
defense, the defendant must show the existence of three essential
elements: 1) [t]he act charged must have been done to prevent a
significant evil; 2) there must have been no adequate
alternative; 3) the harm caused must not have been
disproportionate to the harm avoided.11 When the defendant is
accused of a continuing offense, such as drunk driving, she must
also show some evidence that []4) she stopped violating the law
as soon as the necessity ended.12 In order to receive the
benefit of this defense, the accused must have reasonably
believed at the time of acting that the first, second, and . . .
fourth elements were present.13 The defendants value judgment
concerning the third element, whether the reasonably foreseeable
harm resulting from the violation would be less than the harm
resulting from compliance with the law, is evaluated objectively
using the facts as the defendant reasonably perceived them.14
If a defendant presents some evidence of each of these
elements, the defendant is entitled to a jury instruction on the
necessity defense.15 Some evidence is evidence that, viewed in
the light most favorable to the defendant, would allow a
reasonable juror to find in the defendants favor on each element
of the defense.16 The some evidence burden is not a heavy one as
long as the defendant produces some evidence to support each
element of the defense, any weakness or implausibility in that
evidence is irrelevant17 and a matter for the jury, not for the
court.18 As the court of appeals noted, a strong argument can be
made that a trial judge should err on the side of giving
instructions on a proposed defense in order to prevent the jury
from considering its own understanding of what [the proposed]
defense is in the absence of an instruction from the court.19
Greenwood argues that she presented some evidence of
each element of the necessity defense and that she was therefore
entitled to a jury instruction. The State counters that
Greenwood failed to present evidence from which a juror could
conclude that her stated belief in the need to continue driving
after reaching the Way home was reasonable. We consider de novo
whether Greenwood has presented some evidence of each of the
elements of the necessity defense.20
A. Greenwood Presented Some Evidence That She Drove Under
The Influence To Prevent A Significant Evil.
Both the trial court and the court of appeals accepted
Greenwoods contention that she needed to drive away from her
camper on the night in question to prevent a significant evil.21
But both courts seemed to define the significant evil to be
prevented narrowly: impending arson perpetrated against Ways
parents.22 Greenwood argues a broader theory of the threat she
was seeking to avoid, that she was terrified for her safety and
the safety of Ways parents.
Greenwood testified that she overheard Way say that he
was planning on burning down his parents home and would leave no
witnesses and that she saw him take aggressive actions, such as
throwing lit candles inside her camper and hitting her dog with a
board. This testimony provides some evidence that Greenwood was
seeking to prevent several evils: physical harm to herself, harm
to Ways parents, and arson to her home and Ways parents home.
These harms are significant and consistent with the requirement
that the harm sought to be avoided by a defendant raising the
necessity defense must have emanated either from a natural cause
or from illegal human acts.23
As Chief Judge Coats pointed out in his dissent,
[u]nlike most cases where defendants claim, after the fact, that
their violation of the law was justified by necessity, Greenwood
asserted the basis for her defense before she was arrested.24
Greenwoods fear apparently motivated her to call the police and
then flag them down, despite the fact that it was obvious that
she had broken the law by drinking and driving. This persuades
us that she reasonably believed that her conduct was necessary at
the time of acting. We conclude that Greenwood presented some
evidence of the first element, that there were several
significant harms that her actions were calculated to avoid.
B. Greenwood Presented Some Evidence That There Were No
Adequate Alternatives And That The Necessity Continued
Until She Stopped Driving.
We next consider whether Greenwood presented some
evidence of both the second element that there were no adequate
alternatives to the unlawful action and the fourth element that
the legal violation stopped as soon as the necessity ended.
There is some inherent factual overlap between the second element
and the fourth element because an alternative that becomes
available at a given point during a continuing violation can
serve to end the necessity. Because we look to the
reasonableness of Greenwoods beliefs at the time she acted in
evaluating whether she has presented some evidence of both the
second and fourth elements, we will consider these elements
together.25
The trial court agreed with Greenwood that she provided
some evidence of a necessity that required her to drive away from
her camper and to Ways parents house, and the court of appeals
did not disturb this ruling.26 The court of appeals explained,
Greenwood presented no evidence to suggest that it was reasonable
for her to believe (1) that this danger remained an immediate one
[upon arriving at Ways parents house] and (2) that she needed to
continue driving to avert it.27 The majority opinion reasoned
that Greenwoods failure to stop at the Way residence because she
did not want to encounter Way undercut her justification for
driving there in the first place warning Ways parents of his
imminent arrival and intentions.28
The court of appeals also pointed to a potential
alternative:
In addition, Greenwood offered no evidence
that she would have been in danger had she
simply stayed in her car, with the doors
locked, and continued honking her horn until
she roused Ways parents. Greenwood may have
subjectively believed that it would not be
safe for her to follow this course of action
but . . . a defendants subjective beliefs are
not sufficient, standing alone, to establish
this prong of the necessity defense.[29]
As previously stated, in deciding whether a defendant
has produced some evidence that no adequate alternative existed
and that the violation of the law ceased once the necessity
ended, courts consider the defendants reasonable beliefs at the
time, even if those beliefs are mistaken, rather than objectively
weighing all potential alternatives.30 The implausibility of a
defendants story, or any weakness in the evidence supporting that
story, is not a relevant consideration.31 This standard is
applied to both aspects of the second element whether the
defendant believed that alternatives existed and whether the
defendant believed those alternatives were adequate as well as
to the fourth element. In applying the some evidence test in the
related self-defense context, Alaska case law has emphasized
that,
because reasonableness is a factual question
closely allied with considerations involving
the credibility of witnesses and the weight
to be given to their testimony, trial courts
must avoid basing decisions as to the
necessity of self-defense instructions on an
evaluation of the reasonableness of
defendants conduct . . . . It is not the
province of the judge to weigh the evidence
and decide if a defendants subjective belief
was reasonable or unreasonable.[32]
It was therefore error for the court of appeals to conclude that
Greenwoods subjective beliefs were not sufficient to satisfy the
some evidence test for the second and fourth elements of the
necessity defense.
This is not to say, however, that a court must always
hold that the some evidence test has been met when a defendant
asserts that her belief at the time was that there were no
adequate alternatives. Instead, as the court of appeals
explained in Siebold v. State, courts may refuse to instruct the
jury on the necessity defense when the defendant had clear legal
alternatives to violating the law.33 When a defendant testifies
to her beliefs at the time of acting, the question for the judge
is whether a clear legal alternative existed such that the
defendant is unable as a matter of law to meet her burden of
presenting some evidence that she reasonably believed that there
were no adequate alternatives to her unlawful action.
Both this court and the court of appeals have upheld
rulings where the existence of clear legal alternatives prevented
a defendant from receiving a jury instruction on the necessity
defense. For example, in Nelson v. State we held that the
defendant, who had unlawfully used two Highway Department
vehicles to free his truck that was stuck in a marshy area, had
failed to make out the case for the necessity defense because
several people had stopped and offered to help him, thus
providing lawful alternatives.34 Similarly, in Cleveland v.
Municipality of Anchorage we held that the defense of necessity
was not available to defendants charged with trespassing at an
abortion clinic in order to prevent abortions for several
reasons, including that the defendants could have engaged in non-
criminal forms of protest.35 The court of appeals likewise
affirmed the trial courts refusal to instruct the jury on the
necessity defense in Schnaebel v. State when the defendant failed
to pursue the judicial and administrative remedies available to
resolve his claimed necessity.36 Finally, in Gerlach v. State the
court of appeals concluded that a non-custodial mother who hid
her daughter out of state for a year was not entitled to a
necessity instruction based on her claim that the father was
abusive because adequate remedies were available at law.37
We next turn to the question whether Greenwood
fulfilled the requirement of some evidence for the second and
fourth elements. The some evidence test does not require
that the defendant testify or even offer
direct evidence in his own behalf. Some
evidence establishing a dispute as to a
factual issue may arise from weakness in the
prosecutions evidence or from impeachment of
its witness. Similarly, circumstantial
evidence presented as part of the states case-
in-chief may give rise to some evidence of a
disputed fact.[38]
In this case, we consider whether Greenwood provided some
evidence that she reasonably believed at the time of driving that
she had no adequate alternatives and that the necessity continued
until she stopped her vehicle. These questions must be evaluated
in light of our previous conclusion that the harms Greenwood was
seeking to prevent included the threat to her own safety.
Our decision in McGee v. State provides guidance on
when a court should conclude that a defendant has provided some
evidence of a subjective belief that there were no adequate
alternatives available.39 In McGee, the defendant presented
evidence that his mothers boyfriend threatened that he would run
over the defendant, McGee.40 McGee maintained that he feared that
the boyfriend would make good on this threat because of an
earlier physical altercation, so McGee claimed to have smashed
the windows of the boyfriends pickup truck to make sure that the
boyfriend could not see him to run him over.41 We held that,
although there were likely many other available options, McGees
testimony raised a question of fact concerning whether he
reasonably failed to recognize those other options because of his
agitated mental state.42 Consistent with McGee, we also consider
that the threat to Greenwoods safety was fresh and imminent, and
we take into account the emotions that a person in her position
could have experienced.
Greenwoods evidence, including her testimony that she
first screamed for help and called 911 before deciding to drive
away to escape a dangerous situation, demonstrates that she
exhausted the most obvious of her alternatives before deciding to
take the illegal action. She also offered testimony that she was
unwilling to stop at the Way residence and risk a confrontation
with her attacker because Way was on a four wheeler and she was
unsure of his whereabouts when she approached the Way residence
in her van. As Greenwood argued, she had reason to suspect that
Way was likely to return to his parents house because Way also
live[d] at that house. Greenwoods other actions, such as
stopping of her own accord in a well-lighted area, where she
waited for police until she flagged them down, are consistent
with her understanding of the necessity her need to escape from
Way and to warn his parents of the potential harm by waking them.
The court of appeals concluded that Greenwood failed to
present some evidence of the fourth element because Greenwood did
not offer any evidence that it would have been dangerous for her
to sit in her locked van outside of Ways parents house while
honking to wake the parents.43 We disagree. To meet the some
evidence test for the fourth element, Greenwood is not required
to present evidence that every possible alternative was
unavailable to her; instead she need only provide some evidence
that she reasonably believed that the necessity continued until
the point that she stopped violating the law, even if that belief
was mistaken.44 Furthermore, even if she was required to present
evidence that she reasonably believed that this alternative was
not available to her and that she believed the necessity
continued because she could not stop and wait, Greenwoods
testimony that Way had access to a two-by-four that he had
previously employed as a weapon against her dog provided a
foundation for a reasonable belief that she was not safe waiting
in a dark car, even with the doors locked.
We therefore conclude that Greenwoods testimony
constituted some evidence sufficient to enable a reasonable juror
to decide that Greenwood reasonably believed that she had no
adequate alternatives to breaking the law by driving under the
influence even if that belief was mistaken and that she stopped
driving once she believed the necessity had ended.
C. Greenwood Presented Some Evidence That The Reasonably
Foreseeable Harm Resulting From Her Unlawful Action
Would Be Less Than The Harm Resulting From Her
Compliance With The Law.
The third element of proportionality requires that [a]n
objective determination . . . be made as to whether the
defendants value judgment was correct, given the facts as [she]
reasonably perceived them.45 As discussed previously, the trial
court and the court of appeals assumed that the only harm that
Greenwood was seeking to avoid was possible arson or a threat of
arson, but we have concluded that the potential harm to Greenwood
herself must also be considered. The harm that Greenwood
identifies, including risk to her personal safety because of Ways
threats and physical aggression, are significant.46 Further, her
testimony about the rumors that she had heard about Ways drug use
and violent history are relevant because the third element
requires an objective comparison of the relative seriousness of
the harms caused and avoided when viewed in light of the facts
perceived by the defendant.47
Our analysis and balancing process must also account
for the serious risk that drunk driving poses to the public,48
particularly because we consider the harm reasonably foreseeable
from a defendants actions, not the harm that actually occurred.49
Greenwood had already exhausted available options such as
screaming for help and calling the police, and she testified that
she took concrete steps to mitigate the risk of driving under the
influence by driving on a back road and reaching speeds of only
35 miles per hour. Although driving any distance under the
influence poses a significant risk, Greenwood testified that she
continued driving only a couple of blocks after reaching Ways
parents home until she reached a well-lighted home on the route
that she assumed that the troopers would take in responding to
her 911 call a total drive of less than one mile from beginning
to end.
Considering that the trial court and the court of
appeals agreed that Greenwood was justified in driving the
distance between her camper and the Way residence, the question
presented is whether Greenwoods decision to continue driving
those last few blocks was disproportionate to the harm she was
seeking to prevent potential physical harm to herself resulting
from an altercation with Way. As Chief Judge Coats pointed out
in his dissent, [p]olice agencies often warn the public to seek
police help rather than to directly intervene in potentially
dangerous situations.50 The rationale behind the necessity
defense is one of public policy: the law ought to promote the
achievement of higher values at the expense of lesser values, and
sometimes the greater good for society will be accomplished by
violating the literal language of the criminal law.51
Because the threshold for the some evidence test only
requires more than a scintilla of evidence with any doubt
resolved in Greenwoods favor,52 we conclude that Greenwood has
offered some evidence of the third element. Viewing the totality
of the situation from Greenwoods perspective and considering her
testimony regarding her emotional distress, we cannot conclude
that there was not some evidence presented that the serious risk
that she posed by driving under the influence was
disproportionate to the serious physical injury, significant
property damage, and other harms she reasonably feared at the
time.
V. CONCLUSION
Because we conclude that Greenwood has met the some
evidence test with respect to all four elements required for an
instruction on the necessity defense, we REVERSE her conviction
and REMAND for a new trial at which an instruction on Greenwoods
necessity defense be given.
_______________________________
1 Greenwood v. State, Mem. Op. & J. No. 5438, 2009 WL
250348 (Alaska App., Feb. 4, 2009).
2 Id. at *2-*3.
3 Id. at *3.
4 Id. at *4 (Coats, C.J., dissenting).
5 Id.
6 Id.
7 State v. Garrison, 171 P.3d 91, 94 (Alaska 2007)
(footnote omitted).
8 Id.
9 McGee v. State, 162 P.3d 1251, 1261 (Alaska 2007).
10 P.3d at 94; Cleveland, 631 P.2d at 1078.Garrison, 1
71 P.3d at 94; McGee v. State, 162 P.3d 1251, 1261 (Alaska 2007).
McGee, 162 P.3d at 1261.Garrison, 171 P.3d at 95 (in
ternal quotation marks omitted).Seibold
11 . State, 959 P.2d 780, 783 (Alaska App. 1998) (quoting W
illett v. State, 836 P.2d 955, 958 (Alaska App. 1992)).Id. a
t 782 (quoting
12 lger v. State, 648 P.2d 111, 114 n.3 (Alaska App. 1982
)).Garrison, 171 P.3d at 94.Greenwood v. State, Mem. Op. & J
. No. 5438, 2009 WL 250348, at *2 (Alaska App., Feb. 4, 2009
).Id.Bird v. Municipality of Anchorage, 787 P.2d 119, 12
2 (Alaska Ap
13 1990).Greenwood, 2009
14 Nelson, 597 P.2d at 980 n.6; see also Garrison, 171
P.3d at 94; Cleveland, 631 P.2d at 1078.
15 Garrison, 171 P.3d at 94; McGee v. State, 162 P.3d
1251, 1261 (Alaska 2007).
16 McGee, 162 P.3d at 1261.
17 Garrison, 171 P.3d at 95 (internal quotation marks
omitted).
18 Seibold v. State, 959 P.2d 780, 783 (Alaska App. 1998)
(quoting Willett v. State, 836 P.2d 955, 958 (Alaska App. 1992)).
19 Id. at 782 (quoting Folger v. State, 648 P.2d 111, 114
n.3 (Alaska App. 1982)).
20 Garrison, 171 P.3d at 94.
21 Greenwood v. State, Mem. Op. & J. No. 5438, 2009 WL
250348, at *2 (Alaska App., Feb. 4, 2009).
22 Id.
23 Bird v. Municipality of Anchorage, 787 P.2d 119, 122
(Alaska App. 1990).
24 Greenwood, 2009 WL 250348, at *4 (Coats, C.J.,
dissenting).
25 See State v. Garrison, 171 P.3d 91, 94 (Alaska 2007);
see also McGee v. State, 162 P.3d 1251, 1261 & n.50 (Alaska
2007); Cleveland v. State, 631 P.2d 1073, 1078 (Alaska 1981).
26 Greenwood, 2009 WL 250348, at *2.
27 Id. at *3.
28 Id. at *2-*3.
29 Id. at *3.
30 Garrison, 171 P.3d at 94.
31 Toomey v. State, 581 P.2d 1124, 1126 n.10 (Alaska
1978).
32 Paul v. State, 655 P.2d 772, 778 (Alaska App. 1982)
(internal quotation marks omitted); see also McGee v. State, 162
P.3d 1251, 1262 n.54 (Alaska 2007) (recognizing that the self-
defense context is analogous to the necessity defense context).
33 959 P.2d 780, 783 (Alaska App. 1998).
34 597 P.2d 977, 980 (Alaska 1979).
35 631 P.2d 1073, 1079 (Alaska 1981); see also Bird v.
Municipality of Anchorage, 787 P.2d 119, 121-22 (Alaska App.
1990).
36 663 P.2d 960, 966 (Alaska App. 1983).
37 699 P.2d 358, 362 (Alaska App. 1985).
38 Seibold v. State, 959 P.2d 780, 782-83 (Alaska App.
1998) (quoting Willett v. State, 836 P.2d 955, 958 (Alaska App.
1982)).
39 162 P.3d 1251 (Alaska 2007).
40 Id. at 1252.
41 Id.
42 Id. at 1262 (considering the defendants testimony about
his shock and surprise as enough to raise a question of fact that
he was unable to recognize other available options at the time
that he took the unlawful action).
43 Greenwood v. State, Mem. Op. & J. No. 5438, 2009 WL
250348, at *3 (Alaska App., Feb. 4, 2009).
44 Garrison v. State, 171 P.3d 91, 94 (Alaska 2007).
45 Id. (quoting Cleveland v. Municipality of Anchorage,
631 P.3d 1073, 1078 (Alaska 1981)).
46 This case can easily be distinguished from Garrison,
where Garrison failed to present any evidence that could permit a
reasonable jury to find that any of the alleged harms she avoided
outweighed the very real dangers she risked by driving drunk.
Id. at 97. As discussed, Greenwood presented evidence that the
harms she sought to avoid were significant and included physical
injury, arson, and death and that she perceived these harms to be
imminent, not speculative like those argued by Garrison.
47 McGee, 162 P.3d at 1261 (emphasis added).
48 See Jansen v. State, 764 P.2d 308, 311 (Alaska App.
1988) (A drunk driver presents a universal risk to the community
at large . . . .).
49 Nelson v. State, 597 P.2d 977, 979-80 (Alaska 1979).
50 Greenwood v State, Mem. Op. & J. No. 5438, 2009 WL
250348, at *4 (Alaska App., Feb. 4, 2009) (Coats, C.J.,
dissenting).
51 Nelson, 597 P.2d at 979.
52 Garrison v. State, 171 P.3d 91, 97 (Alaska 2007).
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