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Crawford v. State (03/26/2004) ap-1920
Crawford v. State (03/26/2004) ap-1920
NOTICE
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@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
KIRK MERLAND CRAWFORD, )
) Court of Appeals No. A-
8082
Appellant, ) Trial Court No.
3AN-S00-2385 CR
)
v. ) O P I N I O
N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1920 March
26, 2004]
)
Appeal from the Superior Court, Third Judi
cial District, Anchorage, John R. Lohff,
Judge.
Appearances: Brent R. Cole and Colleen J.
Moore, Marston & Cole, P.C., Anchorage, for
Appellant. Kenneth M. Rosenstein, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Gregg D. Renkes, Attorney General, Juneau,
for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
STEWART, Judge.
In Crawford v. State, 68 P.3d 1281 (Alaska App. 2003),
we remanded this case for additional findings from the superior
court on the justification for the search of Kirk Merland
Crawfords vehicle. The superior court found that the officer
searching Crawfords vehicle had a very real suspicion that
[Crawford] possibly possessed a weapon and an articulable and
reasonable basis to conclude the [center] console might contain a
weapon. Based on those findings, which are supported by
substantial evidence, we agree with the superior court that the
search was justified. Accordingly, we affirm the superior court.
We discussed the facts in our first opinion in this
case and need not repeat that discussion here. On remand,
Superior Court Judge pro tem John R. Lohff heard additional
testimony from Anchorage Police Officer Christopher Ritala before
he entered his additional findings on remand.
Crawford argues that the superior court exceeded its
authority by hearing additional testimony. Crawford points out
that we specifically reminded the superior court that it could
hold additional hearings in another case that we remanded for
additional findings.1 Therefore, Crawford reasons, the superior
court must refrain from hearing additional testimony on remand
unless we authorize such testimony. Because our opinion in this
case did not mention additional testimony, Crawford argues that
the superior court heard that testimony without authorization.
But the comment in the other decision reminding the trial court
of its authority to take additional evidence did not, by
implication, establish a rule authorizing that procedure only if
we mentioned that procedure in our decision. We recognize that
the superior court was empowered to take additional evidence, in
its discretion, so that it could meet its obligation to enter the
additional findings.
In our previous decision in this case, we concluded
that the officers search of the center console of Crawfords
vehicle could only be upheld as a search for weapons.2 Judge
Lohff found that the testimony of Officer Indrek Oruoja
established a number of facts: Crawfords driving was erratic
because he was driving twenty miles per hour above the speed
limit and made two double lane changes, without signaling, in
less than four blocks. Officer Oruoja signaled Crawford to stop
and Crawford stopped in a traffic lane. When Officer Oruoja used
his loudspeaker to direct Crawford to move out of traffic onto a
cross street, Crawford made motions inside the vehicle to his lap
area and to the right, fidgeting in the drivers seat as if he was
moving an object around. Officer Oruoja contacted Crawford and
asked him to shut off the vehicle and give him the keys, but
Crawford refused. Crawford was nervous, agitated, and jumpy in a
way that was different from a normal contact Officer Oruoja had
with people he stopped.
Because Crawford was not cooperating, Officer Oruoja
removed him from the vehicle and noticed a small baseball bat
wedged between the drivers seat and the console. Crawford
thrashed about and yelled profanities. Officer Oruoja testified
that he thought from a standpoint of safety, that there could be
a weapon involved, he could either be concealing a weapon or
producing a weapon.
With Officer Ritalas assistance, Officer Oruoja
handcuffed Crawford, told him he was under arrest for reckless
driving, and placed him in the patrol car. Officer Oruoja
returned to Crawfords vehicle. He checked the console because,
as he testified, I was thinking that there could be some sort of
a weapon inside and found crack cocaine and cocaine
paraphernalia. This discovery led to Crawfords conviction for
fourth-degree misconduct involving a controlled substance.3
Crawford argues that Judge Lohffs findings are not
supported by the record. However, we must accept the superior
courts findings unless Crawford convinces us that those findings
are clearly erroneous.4 Because there is substantial evidence in
the record supporting Judge Lohffs findings, we reject Crawfords
claim and uphold the findings. From those factual
findings, Judge Lohff concluded that Officer Oruoja had an
articulable and reasonable basis to search the console for a
weapon. We agree. Judge Lohffs findings support the legal
conclusion that Officer Oruojas search of the console was
justified as a search incident to arrest.5 Because the search
was justified, we uphold Crawfords conviction.
Conclusion
The judgment of the superior court is AFFIRMED.
_______________________________
1 See Brown v. State, Alaska App. Memorandum Opinion and
Judgment No. 4770 (Oct. 8, 2003), 2003 WL 22304141.
2 Crawford, 68 P.3d at 1283.
3 AS 11.71.040(a)(3)(A).
4 See State v. Joubert, 20 P.3d 1115, 1118 (Alaska 2001).
5 See Wilburn v. State, 816 P.2d 907, 911 (Alaska App.
1991) (a reviewing court independently assesses whether the facts
support a trial courts legal conclusions).
