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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
CLARENCE TROUT, )
) Court of Appeals No. A-4803
Appellant, ) Trial Court No. 1KE-92-1260
Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1333 - January 28, 1994]
________________________________)
Appeal from the District Court, First Judi
cial District, Ketchikan, George L. Gucker,
Judge.
Appearances: James Wendt, Assistant Public
Defender, Ketchikan, and John B. Salemi,
Public Defender, Anchorage, for Appellant.
Adrienne P. Bachman, Assistant District Attor
ney, Ketchikan, Richard A. Svobodny, District
Attorney, Juneau, and Charles E. Cole, Attor
ney General, Juneau, for Appellee.
Before: Coats and Mannheimer, Judges, and
Wolverton, District Court Judge.* [Bryner,
Chief Judge, not participating.]
MANNHEIMER, Judge.
Clarence Trout appeals his conviction for consuming
alcohol while under 21 years of age (often abbreviated as "minor
consuming"), AS 4.16.050. We affirm.
The statute Trout was convicted of violating, AS 4.16.
050, provides:
A person under the age of 21 years may
not knowingly consume, possess, or control
alcoholic beverages except those furnished
... under AS 04.16.051(b).
The exceptions listed in AS 04.16.051(b) allow alcoholic
beverages to be furnished or delivered (1) by parents to their
children, by guardians to their wards, and by spouses to each
other, so long as the act of furnishing or delivery does not
occur on the site of licensed premises, and (2) by a licensed
physician or nurse to a patient in the course of medical
treatment.
In the present case, the State's evidence showed that
Alaska State Trooper Burke Waldron made a traffic stop of a motor
vehicle; Trout, who was 20 years old at the time, was riding as a
passenger in the car. Trout smelled of alcoholic beverages and
he appeared intoxicated. Waldron cited Trout for consuming
alcoholic beverages while under the age of 21.
Trooper Waldron was the government's sole witness at
Trout's trial. During Waldron's cross-examination, the following
exchange occurred:
DEFENSE ATTORNEY: Did you determine in
any way where the alcohol had been consumed?
WALDRON: No.
DEFENSE ATTORNEY: Did you determine in
any way where the alcohol had been purchased?
WALDRON: No.
DEFENSE ATTORNEY: Did you determine in
any way who had purchased the alcohol?
WALDRON: No.
After the State rested, Trout asked the district court
to grant him a judgement of acquittal because the State had
failed to present any evidence to negate the possibility that
Trout's alcohol had been furnished to him by a parent, guardian,
or spouse. District Court Judge George L. Gucker denied Trout's
motion. Judge Gucker later denied Trout's request for a jury
instruction that would have required the State to prove, beyond a
reasonable doubt, that the minor's alcoholic beverage(s) had not
been furnished by a parent, guardian, or spouse.
On appeal, Trout renews his argument that the
exceptions listed in AS 4.16.051(b) are elements of the crime.
Specifically, Trout argues that, to obtain a conviction for minor
consuming, the State must always disprove the possibility that
the minor's liquor was furnished by a parent, guardian, or
spouse. We disagree. "The general rule is that a defendant must
prove that he [or she] is within an exception to a penal statute
in order to take advantage of it; the State is generally not
required to negative those exceptions." State v. Roybal, 667
P.2d 462, 464 (N.M. App. 1983).
In Roybal, the defendant was prosecuted for carrying a
firearm on licensed premises. The statute at issue, New Mexico
Statute 30-7-3A, began with a general statement prohibiting the
carrying of firearms on licensed premises, and then listed a
number of exceptions for (1) police officers in the discharge of
their duties, (2) the owner, tenant, or operator of the premises,
(3) hired security guards, (4) people in the living area of a
hotel containing licensed premises, and (5) people in a parking
lot or garage adjoining licensed premises. The defendant in
Roybal argued that the jury should have been instructed that
these exceptions were elements of the offense, and that it was
the state's burden to affirmatively prove that none of these
exceptions applied. The New Mexico court rejected this argument;
the court held that the State need not affirmatively disprove any
of the exceptions unless the defendant raises one or more of the
exceptions as a defense and presents some evidence to support it.
Roybal, 667 P.2d at 464. See also State v. Peters, 334 N.W.2d
217, 221 (S.D. 1983) ("A party invoking the protection of an
exception to a general law must show himself clearly within the
terms of the exception."); and see N. Singer, Sutherland on
Statutory Construction (5th ed. 1992), 47.11, Vol. 2A, p. 165.
Cases from early territorial days show that Alaska's
first liquor laws were interpreted in accordance with this same
principle: a defendant seeking the refuge of an exception to a
general prohibition bore the burden of establishing the
exception. Shelp v. United States, 1 Alaska Fed. 514, 81 F. 694
(C.C.A. Alaska 1897); Nelson v. United States, 1 Alaska Fed. 154,
30 F. 112 (C.C.A. Alaska 1887). No later Alaska cases appear to
have addressed Trout's claim. However, the Washington Court of
Appeals recently addressed an identical argument under that
state's minor consuming statute. The court held that the
exceptions to the general prohibition on underage consumption of
alcoholic beverages were not elements of the offense, and that a
defendant seeking to avail himself or herself of these exceptions
was obliged to plead and prove them. State v. Lawson, 681 P.2d
867 (Wash. App. 1984).
In the present case, we need not decide whether the
State or the defendant bears the ultimate burden of proving the
exceptions listed in AS 4.16.051(b). Compare Title 11's
definitions of "defense" and "affirmative defense", AS
11.81.900(b)(15) and 900(b)(1). We do hold, however, that at a
minimum these exceptions are "defenses" to criminal liability.
That is, if a defendant wishes to invoke one of these exceptions,
then at the very least the defendant must affirmatively raise the
exception and point to some evidence from which a reasonable jury
could decide that issue in his or her favor.
Trout presented no evidence that he had received his
alcoholic beverages from a parent, guardian, or spouse. Nor did
his questioning of Trooper Waldron furnish any evidence of one of
these potential exceptions to the general statutory prohibition.
Waldron testified, in answer to Trout's questions, that he had no
evidence to give concerning where or how Trout had obtained the
liquor. Thus, there was no evidence at trial from which a jury
might reasonably have concluded that Trout had obtained his
liquor from one of the exempted sources.
Even if the State ultimately bears the burden of
disproving any properly raised exception to the general rule
prohibiting minors from consuming alcoholic beverages (an issue
we do not decide), Trout failed to properly raise any of the
statutory exceptions; he failed to satisfy the "some evidence"
test. The district court therefore correctly denied Trout's
motion for a judgement of acquittal, and the court also correctly
denied Trout's request for a jury instruction that would have
required the State to disprove all possible exceptions to Trout's
criminal liability.
The judgement of the district court is AFFIRMED.
_______________________________
* Sitting by assignment of the chief justice made pursuant
to Article IV, Section 16 of the Alaska Constitution.
