NOTICE: This opinion is subject to formal
correction before publication in the Pacific
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THE COURT OF APPEALS OF THE STATE OF ALASKA
JIM FIELDING, )
)
Appellant, ) Court of Appeals No. A-4261
) Trial Court No. 3AN-S91-4473CR
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1264 - December 4, 1992]
______________________________)
Appeal from the District Court of the State
of Alaska, Third Judicial District,
Anchorage, John D. Mason, Judge.
Appearances: Jennifer A. Walker, Assistant
Public Defender, and John B. Salemi, Public
Defender, Anchorage, for Appellant. Donald
R. Kitchen, Assistant District Attorney,
Edward E. McNalley, District Attorney,
Anchorage, and Charles E. Cole, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
COATS, Judge.
Jim Fielding was convicted following a jury trial of
driving while license suspended (DWLS), AS 28.15.291(a)(1). On
appeal, he contends the trial court erred in instructing the jury
that the Glenn Highway is a highway as that term is used in the
DWLS statute. We reverse.
At trial, the primary fact in contention was
whether Fielding drove on a highway or a vehicular way. See
AS 28.15.291(a).1 The defense claimed that Fielding drove within
the parking lot of the Eagle River Department of Motor Vehicles,
while the state alleged that Fielding drove from the parking lot
onto the Glenn Highway.
At the close of the evidence, Fielding requested the
court to instruct the jury that a shopping center parking lot is
not a vehicular way or area. District Court Judge John D. Mason
stated that he would comply with Fielding's request. However,
the judge also ruled, over defense objection, that he would take
judicial notice of the fact that the Glenn Highway is a highway.
The court ultimately instructed the jury as follows:
To find the defendant guilty of driving
while his license was suspended, you must
also find that the state has proved beyond a
reasonable doubt that he drove on a "highway
or vehicular way or area." The law defines
a vehicular way or area as a way, path or
area, other than a highway or private
property.
Alaska case law holds a shopping center
parking lot is not a vehicular way or area.
It is clear, and the court so instructs you,
that the Glenn Highway is a highway as used
in the statute.
Jury Instruction No. 6 (emphasis added).
On appeal, Fielding claims, as he did below, that the
trial court's instruction resulted in a directed verdict for the
state on an essential element of the offense.
In order to convict Fielding, the jury was required
to find that he drove on a highway or vehicular way or area.
AS 28.15.291(a).2 The manner in which the trial court took
judicial notice of the Glenn Highway's status affected a
substantial right of Fielding's: the right to have a jury decide
every element of the crime. See Smallwood v. State, 781 P.2d
1000, 1003 (Alaska App. 1989); Sandstrom v. Montana, 442 U.S.
510, 520 (1979). We agree that the court's instruction amounted
to a directed verdict for the prosecution on one of the essential
elements of the charge; "the error in such a case is that the
wrong entity judged the defendant guilty." Smallwood, 781 P.2d
at 1003, citing Rose v. Clark, 478 U.S. 570, 578 (1986).
Assuming that it was proper for the court to take
judicial notice that the Glenn Highway was a highway for purposes
of AS 28.15.291 and AS 28.40.100, the court's instruction to the
jury was improper under Evidence Rule 203(c). Evidence Rule
203(c) provides in pertinent part that when a court takes
judicial notice of a fact "[i]n a criminal case the court shall
instruct the jury that it may, but is not required to, accept as
conclusive any fact judicially noticed." Cf. Brackhan v. State,
___ P.2d ____, Op. No. 1252 (Alaska App., October 2, 1992).
The state contends the court's error, while
substantial, does not compel a reversal under the plain error
rule because it was not prejudicial. However, in Smallwood, we
determined that "harmless error principles should not be applied
to a jury instruction which conclusively establishes an essential
element of the crime charged." 781 P.2d at 1004. Thus, there is
no need for further inquiry concerning the prejudice stemming
from the court's order; the court's instruction, in depriving
Fielding of his right to have the jury decide every element of
the charge, was per se prejudicial.
Accordingly, the conviction is REVERSED.
_______________________________
1. AS 28.15.291 reads in pertinent part as follows:
Driving while license canceled, suspended,
revoked, or in violation of a limitation.
(a) a person is guilty of a class A
misdemeanor if the person
(1) drives a motor vehicle on a highway
or vehicular way or area at a time when that
person's driver's license, privilege to
drive, or privilege to obtain a license has
been canceled, suspended, or revoked in this
or another jurisdiction[.]
(Emphasis added.)
2. AS 28.40.100(10) states:
(10) "highway" means the entire width
between the boundary lines of every way that
is publicly maintained when a part of it is
open to the public for purposes of vehicular
travel, including but not limited to every
street and the Alaska state marine highway
system but not vehicular ways or areas[.]
