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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
| DOMINIC ALLEN, | ) |
| ) Court of Appeals No. A-8740 | |
| Appellant, | ) Trial Court No. 3KN-03-796 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) [No. 2019 November 18, 2005] |
| ) | |
Appeal from the District Court, Third Judi
cial District, Kenai, David S. Landry,
Magistrate.
Appearances: John P. Morrison, Assistant
Public Defender, Kenai, and Barbara K. Brink,
Public Defender, Anchorage, for the
Appellant. Terisia K. Chleborad, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Gregg D. Renkes, Attorney General, Juneau,
for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
STEWART, Judge, dissenting.
Dominic Allen appeals his convictions for driving with
a suspended license and violating the conditions of his release
(based on the same act of unlicensed driving). Allen contends
that his trial judge should have instructed the jury on his
proposed defense of necessity. For the reasons explained here,
we agree with Allen and we therefore conclude that he is entitled
to a new trial.
Underlying facts, and the trial judges ruling on Allens
proposed defense of necessity
On the evening of April 24, 2003, a state
trooper pulled Allen over for driving with his
headlights off. (Allen was driving with only his
parking lights on.) Allens mother, Sharon Allen, was a
passenger in the car. The trooper determined that
Allens drivers license was suspended, and so he
arrested Allen for driving with a suspended license.
At the time, Allen was on bail release from
another criminal charge. Allen was later charged with
violating the condition of his release that required
him to obey all laws.
Before trial, Allens attorney notified the
State that he intended to assert the affirmative
defense of necessity under AS 11.81.320. On the first
day of trial, the State asked the trial judge to
preclude Allen from discussing this proposed defense in
front of the jury until Allen made an offer of proof
demonstrating that there was some evidence to support
the defense.
In response, Allens attorney asserted that
the defense was prepared to present the following
evidence: On the evening in question, Allens mother
(Sharon Allen) had initially been driving the car, but
she had to pull over because she began to suffer
fatigue and double vision. Although Allen knew that he
was not supposed to drive, he believed that his mother
needed medical attention, so (with his mother now in
the passenger seat) Allen started driving to Big Johns
Liquors, approximately one-half mile down the road,
where there was a telephone. Shortly after Allen began
driving, he was stopped by the state trooper.
Later in the trial, the defense attorney
called Allens mother to the stand (outside the presence
of the jury) in support of the proposed necessity
defense.
Sharon Allen testified that she picked her
son up from a class that night. As she was driving to
Sterling, Allen told her to pull the car over because
she was weaving. Mrs. Allen stated that she was
suffering from fatigue and double vision at the time,
recurring symptoms that stemmed from her being doused
with gasoline three years earlier. She testified that,
after she pulled over, Allen took the wheel and drove
to Big Johns to use the telephone to find a ride for
[her]. Mrs. Allen further testified that, although her
physical ailments were recurring, Allen had not
previously seen her in this condition, and he was
scared about her health.
Mrs. Allen admitted that, when the trooper
stopped them, she did not ask the trooper for help in
obtaining medical assistance, nor did she go to a
hospital or call a doctor later that night. She
explained that her symptoms were recurring, and that
there was nothing to be done except wait for them to
subside. She testified that she sometimes sleeps for a
couple of hours until her symptoms go away.
During cross-examination by the prosecutor,
Sharon Allen conceded that, during the time her son was
driving to Big Johns, they must have passed Good Time
Charlies, a strip club. Mrs. Allen further conceded
that they did not stop at the strip club. She
explained that the only telephone she knew about was at
Big Johns, that she was not a bar person, and that she
wouldnt have considered going in [Good Time Charlies].
In addition to presenting this testimony,
Allens attorney also offered to prove that Allen
believed that his mother needed medical attention, that
he wanted to transport her to Big Johns because that
was the nearest place he knew of where there was a
telephone, and that Allen believed there was no
adequate alternative to his driving the car to Big
Johns.
When the trial judge, Magistrate David S.
Landry, suggested that Allen might have walked the half-
mile to Big Johns, Allen interjected, And leave my
mother in the car? Is that what you would do, Your
Honor?
In response to Allens offer of proof, the
prosecutor offered to prove that Allen had driven for
more than half a mile, and that he and his mother had
passed up many opportunities to stop and use a
telephone. The prosecutor also emphasized that, when
the trooper stopped Allen, Sharon Allen made no request
for medical assistance.
After listening to these offers of proof and
the parties arguments, Magistrate Landry refused to
instruct the jury on the defense of necessity, and he
precluded Allen from presenting any evidence in support
of this defense. Magistrate Landry concluded that
Allen had an adequate, reasonable alternative to
breaking the law: he could have walked to Good Time
Charlies (which was closer than Big Johns) and used the
telephone there.
Why we conclude that this ruling was error
To establish the defense of necessity, a
defendant must show (1) that they committed the charged
offense to prevent a significant evil, (2) that there
was no adequate, reasonably available alternative to
committing the offense, and (3) that the harm caused by
the charged offense was not disproportionate to the
harm the defendant avoided by breaking the law.1
Moreover, if the offense is a continuing one (such as a
driving offense), the defendant must show (4) that they
stopped violating the law as soon as the necessity
ended.2
Of the elements listed in the preceding
paragraph, elements (1), (2), and (4) are judged from
the perspective of a reasonable person in the
defendants position. Thus, the question is what the
defendant reasonably believed at the time, even if it
later turns out that the defendants belief was
partially or wholly mistaken.3
There is one caveat, however: to the extent
that the debate over the adequacy of an available
alternative really hinges on an assessment of the harm
done versus the harm avoided, adequacy will be a
question of law. This follows from the rule that, once
the facts have been established, the third element of
the necessity defense the proportionality of the harm
done compared to the harm avoided is a question of law
to be decided by the judge. The judge must make an
objective determination ... as to whether the
defendants value judgment was correct, given the facts
as [the defendant] reasonably perceived them.4 This
remains the rule even when the defendant attempts to re-
frame a proportionality argument as a claim that the
available alternatives were not adequate.
(For example, in State v. Marley, 509 P.2d
1095 (Hawaii 1973), the defendants were charged with
criminal trespass after they entered and disrupted the
offices of the Honeywell Corporation in an effort to
stop that companys war crimes (i.e., the companys
contracts with the Department of Defense to manufacture
anti-personnel weapons). The Hawaii Supreme Court held
that, as a matter of law, peaceful protest outside the
companys offices was an adequate alternative method of
dramatizing, and perhaps ultimately stopping, the
companys activities. Id. at 1109.)
In Allens case, the trial judge precluded him
from presenting a necessity defense because the judge
concluded that Allen had an adequate, reasonably
available alternative to driving to Big Johns Liquors
to wit, leaving his mother in the car and walking to
Good Time Charlies.
As just explained, the adequacy of available
alternatives can sometimes be a question of law. But
this is true only in cases where, even viewing the
facts in the light most favorable to the defendant, the
defendant knew or reasonably should have known of the
availability and reasonableness of these alternatives.
Here, Allen asserted that he drove to Big
Johns Liquors because he knew that a telephone was
available there. Moreover, Allen asserted that even if
a telephone had been available at Good Time Charlies,
it would have been unreasonable for Allen to walk to
this telephone and leave his mother alone in the car
when he reasonably believed that she was in need of
speedy medical attention. Allen presented evidence (or
an offer of proof) on these issues, and we conclude
that this evidence created a jury question on both
issues. That is, jurors who viewed this evidence in
the light most favorable to Allen could properly find
in Allens favor on these issues. For this reason, it
was error for the trial judge to refuse to instruct the
jury on the defense of necessity.
Conclusion
The judgement of the district court is
REVERSED. Allen is entitled to a new trial.
STEWART, Judge, dissenting:
Alaska Statute 11.81.320(a) codifies the
necessity defense in the criminal code to the extent
permitted by common law. In Cleveland v. Anchorage,1
the Alaska Supreme Court described the necessity
defense as having three elements: (1) the defendant's
violation of the law must have been done to prevent a
significant evil, (2) there must have been no adequate
alternative method to prevent this evil, and (3) the
harm caused by the defendants violation of the law must
not have been disproportionate to the foreseeable harm
that the defendant was trying to avoid.2 The court
explained that the defense is available:
if the accused reasonably believed
at the time of acting that the
first and second elements were
present, even if that belief was
mistaken; but the accuseds belief
will not suffice for the third
element. An objective
determination must be made as to
whether the defendants value
judgment was correct, given the
facts as he reasonably perceived
them.[3]
The necessity defense is an affirmative defense; a
defendant must present some evidence of that defense
before the defendant is entitled to a jury instruction
on the necessity defense.4 Some evidence is evidence
which, viewed in the light most favorable to the
defendant, is sufficient to allow a reasonable juror to
find in the defendants favor on each element of the
defense.5
I conclude that the record did not support
Allens request for a necessity instruction. Allen was
required to present some evidence that he reasonably
believed that he had no adequate alternative to driving
with his suspended license. In my view, the trial
courts obligation does not end with confirming whether
a defendant testified that he or she believed there was
no adequate alternative. The trial court must decide
whether, in context, a reasonable juror might conclude
that the defendants belief was reasonable. This
requires the court to address a question of law; the
adequacy of the alternatives available to the
defendant.
In Nelson v. State,6 the Alaska Supreme Court
ruled, as a matter of law, that Nelson was not entitled
to a necessity defense where the record showed that he
had adequate alternatives available to breaking the
law.7 Nelson drove his vehicle off the road and got it
stuck. He then took heavy equipment from a nearby
state highway facility to retrieve his vehicle. The
court said that, according to the record, there were
several alternatives available to Nelson that did not
involve breaking the law. In Schnabel v. State,8 this
court ruled that Schnabel was not entitled to
instructions on a necessity defense because Alaska law
provided Schnabel with an adequate alternative to
illegally crossing a salmon stream with heavy
equipment. Schnabel was entitled to seek an
administrative waiver to allow him to ford the stream
with his vehicles, with administrative and judicial
review available if his waiver application was denied.9
Thus, a court faced with a request for a jury
instruction on a necessity defense should consider
whether there was an adequate legal alternative
available to the defendant. In other words, does the
law allow a person in the defendants position to break
the law rather than pursuing the alternative?
As the majority describes, Allen was less
than half a mile from Big Johns Liquors when he started
breaking the law by driving. I see nothing in the
record that shows that Allen was at risk because of the
weather or that Allen was disabled. I conclude that
the record shows Allen had an adequate alternative; he
could have walked less than one-half of a mile for his
phone call.
_______________________________
1 Cleveland v. Anchorage, 631 P.2d 1073, 1078 (Alaska 1981).
2 Reeve v. State, 764 P.2d 324, 326 (Alaska App. 1988);
Gerlach v. State, 699 P.2d 358, 362 (Alaska App. 1985);
Wells v. State, 687 P.2d 346, 350 (Alaska App. 1984).
3 Nelson v. State, 597 P.2d 977, 979 (Alaska 1979); Seibold v.
State, 959 P.2d 780, 782 (Alaska App. 1998).
4 Seibold v. State, 959 P.2d 780, 782 (Alaska App. 1998),
quoting Bird v. Anchorage, 787 P.2d 119, 120-21 (Alaska App.
1990).
1 631 P.2d 1073 (Alaska 1981).
2 Id. at 1078.
3 Id.
4 AS 11.81.320(b); AS 11.81.900(b)(2)(A).
5 Lacey v. State, 54 P.3d 304, 308 (Alaska App. 2002).
6 597 P.2d 977 (Alaska 1979).
7 Id. at 980.
8 663 P.2d 960 (Alaska App. 1983).
9 Id. at 966.
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