|
You can of the Alaska Court of Appeals opinions.
|
|
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
| WARREN E. EIDE, | ) |
| ) Court of Appeals No. A-9350/A-9609 | |
| Appellant/Cross-Appellee, | ) Trial Court No. 3KN-04-2656 CR |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee/Cross-Appellant. | ) No. 2120 October 5, 2007 |
| ) | |
Appeal from the
Superior Court, Third Judicial District,
Kenai, Harold M. Brown, Judge.
Appearances: Dan Lowery, Assistant Public
Defender, and Quinlan Steiner, Public
Defender, Anchorage, for the Appellant/Cross-
Appellee. W.H. Hawley, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and Talis J. Colberg,
Attorney General, Juneau, for the Appel
lee/Cross-Appellant.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
STEWART, Judge.
MANNHEIMER, Judge, concurring.
A jury convicted Warren Eide of first-degree vehicle
theft, driving while his license was revoked, and resisting
arrest. After determining that the evidence was insufficient to
sustain the conviction for resisting arrest, Judge Brown entered
a judgment of acquittal on the resisting arrest conviction. In
this appeal, we address the sufficiency of the evidence
supporting the jurys guilty verdicts at Eides trial. Eide
contends that insufficient evidence supports his convictions for
first-degree vehicle theft and for driving while his license was
revoked.1 The State, as cross-appellant, argues that Judge Brown
improperly set aside the jurys verdict finding Eide guilty of
resisting arrest.2
We reject Eides claim because we conclude that a fair-
minded juror exercising reasonable judgment could conclude that
the State had proven the vehicle theft and revoked license
charges. We also reject the States claim because insufficient
evidence was admitted at trial to support the jurys verdict on
the subsection of the resisting arrest statute that Eide was
charged with violating. Accordingly, we affirm the superior
court.
Facts and proceedings
On the evening of November 9, 2004, Jack Thomas drove
Eide and his roommate, Victoria Miller Cameron, to his recently
completed log house in the Soldotna area to celebrate Thomas and
his wife moving into the house. Eide lived near Thomas and
Thomas frequently picked Eide up when he was hitchhiking.
All four at the house were drinking. Eventually,
everyone went to bed, but during the night a dispute developed.
Thomas started his truck, expecting to drive Eide and Cameron to
their house. The dispute became heated, and Eide and Cameron
refused to leave. Thomas called 911.
Cameron left the house, walked down the driveway, and
did not return. Eide remained and continued to argue with
Thomas. Eide got dressed, spoke with a 911 dispatcher, and
proceeded to leave the house. Thomas tended to his wife who
developed a medical problem and he asked the dispatcher to send
an ambulance.
Looking out of a window, Thomas saw Eide in his truck,
staring back at Thomas as he backed Thomass truck out of the
driveway and drove away. Thomas had not given Eide permission to
drive the truck and did not do anything that would indicate to
Eide that he was free to drive the truck. Thomas also knew that
Eide did not have a license. The truck was found empty a few
miles away. Cameron testified that she left the house and walked
home through the woods.
A few days later, Alaska troopers went to Eides
residence to arrest him. Eide told Sergeant Barry Wilson that he
had not been at Thomass residence but had spent the night at his
parents place. (Sergeant Wilson had monitored Thomass 911 call
and heard Eide identify himself when he got on the line.) Eide
was on the floor in a sleeping bag. The troopers told Eide
several times that he was under arrest. Trooper Lawrence
Erickson grabbed Eide by the wrist to pull him up, but Eide
jerked away, told the trooper No, leave me alone, I aint going.
Eide rolled onto his stomach with his arms underneath him.
Trooper Erickson told Eide several times to stop resisting
arrest.
Trooper Erickson was concerned that he or Eide would
get hurt if he had to wrestle Eide into submission. Accordingly,
Trooper Erickson chose to apply an electric shocking device to
Eide in an attempt to gain his cooperation. The electric
shocking device causes pain and can temporarily disable the
recipient of the shock. After Trooper Erickson applied the
device to Eide, Eide jumped up and submitted to his arrest.
Four people testified at trial, Thomas, Cameron, and
the two troopers mentioned above. Eide did not call any
witnesses. The parties stipulated that Eide knew that his
license was revoked at the pertinent time.
Discussion
When a defendant attacks a conviction for insufficiency
of the evidence, this court must view the evidence presented, and
reasonable inferences from the evidence, in the light most
favorable to upholding the jurys verdict.3 Viewing the evidence
from this perspective, we must decide whether a fair-minded juror
exercising reasonable judgment could conclude that the State had
met its burden of proving guilt beyond a reasonable doubt.4
Eide argues that his convictions must be reversed
because the evidence does not prove that he drove Thomass
vehicle. However, Eide argues the evidence in a light favorable
to himself. Viewing the evidence and reasonable inferences from
the evidence in the light most favorable to upholding the
verdicts, we conclude that the record contains substantial
evidence that Eide drove Thomass truck away from Thomass
residence. Thomass testimony alone provides support for this
fact because Thomas testified that he saw Eide back his truck up
and drive away. We conclude that the evidence was sufficient to
support the verdicts for first-degree vehicle theft and driving
while license revoked.
We next turn to the States claim that Judge Brown
erroneously entered a judgment of acquittal after the jury found
Eide guilty of resisting arrest. Double jeopardy does not bar an
appeal from a courts decision setting aside a jurys verdict.5
Eide concedes that double jeopardy does not bar this Courts
review of Judge Browns order setting aside the jurys verdict.
The State charged Eide under AS 11.56.700(a)(3). That
subsection of the resisting arrest statute required the State to
prove that Eide, knowing that a peace officer was making an
arrest, and with the intent of preventing the officer from making
the arrest, resisted the arrest by any means that created a
substantial risk of physical injury to any person. Physical
injury is defined as a physical pain or an impairment of physical
condition. The jury was so instructed, and found Eide guilty.
After accepting the jurys verdicts and before
sentencing, Judge Brown entered a judgment of acquittal,
concluding that there was insufficient evidence to support a
finding that Eide resisted arrest. Judge Brown ruled that Eides
conduct did not rise to the level of force required for resisting
arrest. Citing this Courts opinion in Howard v. State,6 Judge
Brown concluded that Eides passive resistance is insufficient to
constitute force for purposes of the resisting arrest statute.
In Howard, this court reversed a resisting arrest
conviction because we concluded that fleeing from the arresting
officer and hiding in the woods was not sufficient to support
this crime.7 The defendant never touched the arresting officer
and at best, the only contact between the two was when the
trooper touched Howards jacket or cuff as he was fleeing. Under
AS 11.81.900(b)(27), force is defined as any bodily impact,
restraint, or confinement or the threat of imminent bodily
impact, restraint, or confinement, force includes deadly and
nondeadly force. Because there was no evidence or any reasonable
inference that Howard had resisted his arrest by force, we
reversed his conviction for resisting arrest.8
After Judge Brown entered the judgment of acquittal,
the State moved for reconsideration, pointing out that Eide was
not prosecuted under the subsection of resisting arrest that
required force, but under the subsection that required the State
to prove that Eide resisted the arrest by any means that created
a substantial risk of physical injury to any person.
In response, Judge Brown ruled that there was
insufficient evidence of conduct on Eides part that created a
substantial risk of injury to any person: There was
insufficient evidence that defendant employed any means that
created a substantial risk of injury to another person.
As the State describes in its brief, Trooper Erickson
grabbed at Eide and attempted to get him up, but Eide jerked away
and, as described by Trooper Erickson, turtled Eide oriented
his body so that his arms and wrists were underneath his torso
and announced No, I aint going. As the State pointed out,
Trooper Erickson warned Eide several times that he was under
arrest. The State contends that Eides actions and Trooper
Ericksons testimony that any officer attempting to arrest Eide
would be injured if the officer got down on the floor to wrestle
Eides arms free and handcuff him, are sufficient to sustain the
conviction. The State also argues that the fact that Trooper
Erickson had to resort to using an electric shocking device to
subdue Eide further reflects the serious risk that Eide imposed.
The commentary to AS 11.56.7009 indicates that the
legislature did not want the crime of resisting arrest to
encompass mere non-submission to an arrest. The commentary
includes an example of conduct that the legislature envisioned as
the kind that creates a substantial risk of physical injury
fleeing in an automobile at high speed through a residential
area.10 The gravity and imminence of the danger imposed by this
conduct contrasts sharply with Eides passive positioning.
Although Trooper Erickson was convinced that it was likely that
he or Eide would be injured because Eide was uncooperative, Eides
conduct of turning turtle and announcing that he was not going
with the trooper does not rise above mere non-submission because
Eides conduct did not actively create a danger of physical
injury.
Conclusion
Eides convictions for first-degree vehicle theft and
driving while license revoked are AFFIRMED. The superior courts
judgment of acquittal on resisting arrest is AFFIRMED.
MANNHEIMER, Judge, concurring.
I write separately for two purposes: to explain my
analysis of the elements of the crime of resisting arrest, and to
explain my conclusion that the States evidence against Eide was
not sufficient to establish those elements.
The resisting arrest statute, AS 11.56.700(a), sets
forth a culpable mental state and an actus reus that the State
must prove. The culpable mental state is the intent of
preventing [an] officer from making [an] arrest. The actus reus
is resist[ing] ... or interfer[ing] with the arrest by one of
three methods:
(1) the use or threat of force;
(2) the commission of criminal mischief in any degree;
or
(3) the use of any other means that creates a
substantial risk of physical injury to any person.
Eide was charged under subsection (3) of this statute.
In other words, the State alleged that Eide resisted or
interfered with an arrest (his own) by employing a means that
created a substantial risk of physical injury to one or more
people.
To prove this actus reus, the State relied on evidence
that Eide pulled his wrist from the officers grasp and then lay
on the floor with his arms and legs tucked underneath him,
refusing to get up and be handcuffed.
The State argues that Eides conduct created a
substantial risk of injury (either to himself or to the arresting
officer) because the officer reasonably feared that if he tried
to lift Eide from the floor to effect the arrest, Eide might
physically resist the officers efforts, and someone might get
hurt.
Based both on the wording of the statute and on the
accompanying commentary, I conclude that subsection (3) of the
statute was not intended to be read in this fashion. In
particular, subsection (3) does not authorize a conviction based
on the possibility or prediction that an arrestee might later
violate subsection (1) by using force to resist or impede an
arrest. Rather, subsection (3) requires proof that the defendant
was then and there engaged in conduct that actively threatened
injury to himself or some other person.
Both the legislatures official commentary to AS
11.56.700 and the Criminal Code Subcommissions commentary to the
earlier draft statute expressly state that the offense of
resisting arrest was not intended to encompass mere non-
submission to an arrest. Here is the pertinent portion of the
official commentary, found in 1978 Senate Journal Supp. No. 47
(June 12), page 85:
[This statute] prohibits resisting or
interfering with an arrest by the use of
force. ... A person also violates the
statute by committing any degree of criminal
mischief ([e.g.], tampering with the officers
squad car) or by doing any act that creates a
substantial risk of physical injury
([e.g.], fleeing in an automobile at high
speeds through a residential area). [But]
[m]ere non-submission to an arrest does not
reach the level of resisting or interfering
with [an] arrest [prohibited by this
statute].
Based on this commentary, I conclude that
Eides act of lying on the floor and assuming
a turtle posture (i.e., placing his arms and
legs underneath him, out of the officers
immediate reach) is not the kind of conduct
that the legislature intended to punish.
Eides act of curling up on the
floor was not a use of force, nor was it
criminal mischief. The State argues that
Eides conduct created a risk of injury but
only in the sense that the officer reasonably
suspected that Eide might begin to use force
against the officer if the officer continued
his efforts to take Eide into custody. The
legislative commentary to AS 11.56.700(a)(3)
shows that this is not the kind of conduct
that the legislature was contemplating when
they enacted this substantial risk of
physical injury provision of the statute.
The legislatures example of conduct that
would violate subsection (3) fleeing in an
automobile at high speeds through a
residential area shows that the legislature
was thinking of conduct that actively and
immediately threatens peoples safety.
Eides act of curling up on the
floor did not create such a risk. Rather,
Eides conduct fell within the range of
passive resistance that the legislature
called mere non-submission conduct that the
legislature did not intend to punish.
It was not enough for the State to
prove that the officer reasonably suspected
that, if he pursued further efforts to remove
Eide from the floor and take him into
custody, this would prompt Eide to begin
engaging in conduct that created a danger of
physical harm. Unless and until Eide
actually began to engage in such conduct, he
did not commit the crime of resisting arrest
as defined in subsection (3) of the statute.
The State has one more potential
argument. As the State points out in its
brief, Eide did not merely curl up on the
floor. Eide also pulled the sleeping bag
over his body and, when the officer attempted
to grab Eides wrist (so that he could
handcuff him), Eide yanked his wrist away and
tucked his hands underneath his body.
It could be argued that these
actions constituted the use of force to
impede the arrest and, thus, a violation of
subsection (1) of the statute. However, the
State does not make this argument. Rather,
the State argues that these actions, too,
constituted a violation of subsection (3)
because, again, they suggested that any
further efforts to take Eide into custody
would be met with more forcible resistance.
Both of these arguments i.e., the
arguments that Eides conduct violated either
subsection (1) or subsection (3) of the
statute are answered in the Criminal Code
Subcommissions commentary to the draft
statute, TD 11.56.700. This commentary
(found in Part 4 of the Tentative Draft of
our criminal code) mirrors the later
legislative commentary by declaring that an
act of mere non-submission is not included
within the definition of the crime. The
draft commentary then adds an explanatory
quote from Hawaiis commentary to its
corresponding statute:
Mere non-submission to an arrest does
not reach the level of resisting or
interfering with [an] arrest [as defined in
this statute]. As noted in the Commentary to
the Hawaii Penal Code:
One who runs away from an arresting
officer or who makes an effort to shake
off the officers detaining arm might be
said to obstruct the officer physically,
but this type of evasion or minor
scuffling is not unusual in an arrest,
nor would it be desirable to make it a
criminal offense ... . In [such]
case[s,] the proper social course is to
authorize police pursuit and [the] use
of reasonable force to effect the
arrest.
Alaska Criminal Code Revision, Tentative
Draft, Part 4 (1977), page 74, Commentary to
TD 11.56.700.
Eides acts of covering himself with
a sleeping bag and pulling his wrist away
from the officers grasp are the types of
evasion or minor scuffling that, according to
the commentary, do not constitute the crime
of resisting arrest.
It may well be that, given Eides
actions, the officer reasonably concluded
that Eide might engage in future violent
resistance if the officer continued his
efforts to take Eide into custody. And, as
the commentary to the draft statute suggests,
the reasonableness of the officers prediction
of potential violence would be significant
if, for example, the issue being litigated
was whether the officer was justified in
using the stun gun on Eide.
But the issue in this case is
whether the State proved that Eide resisted
arrest as defined in AS 11.56.700(a). Based
on the wording of this statute, and based on
the descriptions of the intended scope of
this statute in both the official legislative
commentary and the Criminal Code
Subcommissions commentary to the draft
statute, I conclude that Eides conduct (even
viewed in the light most favorable to the
State) does not fall within the conduct
prohibited by AS 11.56.700.
Accordingly, I agree with my
colleagues that Eide was entitled to a
judgement of acquittal on the charge of
resisting arrest.
_______________________________
1 AS 11.46.360(a)(1) and AS 28.15.291(a)(1), respectively.
2 AS 11.56.700(a)(3).
3 See Simpson v. State, 877 P.2d 1319, 1320 (Alaska App.
1994).
4 See Dorman v. State, 622 P.2d 448, 453 (Alaska 1981).
5 See Smith v. Massachusetts, 543 U.S. 462, 467, 1125 S.Ct.
1129, 1134, 160 L.Ed.2d 914 (2005).
6 101 P.3d 1054 (Alaska App. 2004).
7 Id. at 1058-59.
8 Id.
9 Commentary on the Alaska Revised Criminal Code, 2 Senate
Journal Supp. No. 47 at 85 (June 12, 1978).
10 Id.
 |
| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
|
