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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
| DON G. MULLER, | ) |
| ) Court of Appeals No. A-9934 | |
| Appellant, | ) Trial Court No. 4FA-07-548 CR |
| ) | |
| v. | ) O P I N I O N |
| ) | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2193 November 21, 2008 |
| ) | |
Appeal from the District Court, Fourth Judi
cial District, Fairbanks, Jane F. Kauvar,
Judge.
Appearances: James W. McGowan, Sitka, for
the Appellant. Blair M. Christensen,
Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Talis J. Colberg, Attorney General, Juneau,
for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge.
Don G. Muller was convicted of criminal trespass after
he entered United States Senator Ted Stevenss office to protest
the war in Iraq and then refused to leave when it was time for
the office to close for the day. Muller argues that his
conviction should be reversed because the district court wrongly
instructed the jury on the necessity defense. We conclude that
Muller was not entitled to a necessity defense and therefore
affirm his conviction.
Facts and proceedings
On February 20, 2007, at about 1:10 p.m., Muller and
eight or nine other protestors arrived at Senator Stevenss
Fairbanks office to protest the war in Iraq. Senator Stevens was
not there at the time. Muller told Diane Hutchison, who ran the
Fairbanks office for Stevens, that the protestors planned to read
a list of 6000 names of civilians killed in the Iraq war.
Another protester said he had an additional 3200 names of
American soldiers who had been killed. The protestors proceeded
to read the names. At 4:00 p.m., the offices normal closing
time, the protestors still had about 8500 names to read.
Hutchison asked the protestors to come back the following
morning. One of the protestors then said: [It] wouldnt be civil
disobedience if we left when you asked, would it? A security
guard then asked the protestors to leave. When they refused, the
guard called the police, and the police arrived at about 4:15
p.m. Three of the protesters, including Muller, were arrested.
Muller was charged with the misdemeanor offense of second-degree
criminal trespass.1
Muller appeared pro se. Before trial, he gave notice
that he intended to raise the defense of necessity, and he
proposed the pattern jury instruction on the necessity defense.
He also sought admission of thirteen articles he claimed showed
that his protest was aimed at stopping an illegal war.
District Court Judge Jane F. Kauvar denied Mullers
request to admit the articles on the war. She did, however,
allow Muller to present a necessity defense, though she rejected
the pattern jury instruction and substituted her own. Muller did
not object to Judge Kauvars substitute instruction.
In his testimony at trial, Muller admitted that he
stayed in Senator Stevenss office after closing. He testified
that he did so to stop a significant harm what he believed was
an illegal war in Iraq and that he believed he had no adequate
alternative to bring about an end to the war. He said he had
pursued other activities, from education to films to non-violence
training, and that none of these activities had ended the war.
He also testified that he believed the Iraq war was an infinitely
greater harm than staying past closing in a government office.
The jury rejected Mullers defense and convicted him of
trespass. He appeals.
Why we conclude Muller was not entitled to a necessity
defense
To establish a necessity defense the defendant must
show that: (1) the act charged was done to prevent a significant
evil; (2) there was no adequate alternative; and (3) the harm
caused was not disproportionate to the harm avoided.2 The first
two elements are established if the defendant shows that he
reasonably believed at the time of acting that those elements
were present, even if that belief was mistaken.3 As to the third
element, which involves balancing the harm caused against the
harm sought to be avoided, the court must make an objective
determination ... as to whether the defendants value judgment was
correct, given the facts as [the defendant] reasonably perceived
them.4
A defendant is not entitled to a jury instruction on
the defense of necessity and is not entitled to argue that
defense to the jury unless there is some evidence of necessity.5
In this context, some evidence is a term of art; it means
evidence which, if 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.6
Muller argues that Judge Kauvars instruction on the
necessity defense was flawed because it did not inform the jury
that the first two elements of the defense that the criminal
trespass was done to prevent a significant evil and that there
were no adequate alternatives to bring about an end to the war in
Iraq were proved as long as he reasonably believed those
elements were present, even if his belief was mistaken.
Muller is right that the jury was not properly
instructed on the mental state he had to prove to establish the
first two elements of the necessity defense. The record suggests
that Judge Kauvar intended to instruct the jury in line with our
decision in Bird v. Anchorage,7 which clearly states that the
first two elements of the defense only require proof that the
defendant reasonably believed those elements were present.8 But
this language was not in the instruction read and submitted to
the jury. Muller argued to the jury that he held these beliefs
and that his beliefs were reasonable. But given the erroneous
instruction, the jurors may not have understood that Mullers
reasonable beliefs were enough to satisfy the first two elements
of the defense.
Even so, Muller never objected to Judge Kauvars
instruction, so he cannot prevail on appeal unless he shows he
was substantially prejudiced by the courts error.9 We conclude
that Muller cannot show substantial prejudice because, as a
matter of law, he was not entitled to raise the defense of
necessity in the circumstances of his case.
The Alaska Supreme Court addressed a similar situation
in Cleveland v. Anchorage.10 In Cleveland, anti-abortion
protestors sought to raise a necessity defense after they were
charged with criminal trespass for disrupting the operations of
an abortion clinic by blocking the doorways and refusing to
leave.11 The supreme court found that the necessity defense was
unavailable in this circumstance for several reasons. First, the
defense cannot be raised if the human harm sought to be avoided
is a legal act, and abortion is lawful in Alaska.12 Second, a
protest aimed at political change does not generally present the
type of emergency situation that entitles a defendant to a
necessity defense.13
In reaching this latter conclusion, the supreme court
adopted the reasoning of the Hawaii Supreme Court in State v.
Marley.14 In Marley, the defendants were charged with criminal
trespass for entering the offices of Honeywell Corporation in an
effort to stop what they believed were war crimes being committed
by Honeywell.15 The protest was non-violent, but it disrupted
normal business operations.16 The supreme court found that two of
the Hawaii Supreme Courts grounds for rejecting the necessity
defense in Marley were applicable in Cleveland: (1) the
defendants had other forms of non-criminal protest available to
enable them to dramatize, and hence hopefully terminate, conduct
which they may view [as] harmful, and (2) the defendants actions
were not reasonably designed to actually prevent the threatened
greater harm ... Under any possible set of hypotheses, defendants
could foresee that their actions would fail to halt the practices
to which they objected.17
In Cleveland, the defendants attempted to distinguish
Marley, arguing that the alleged harm in Marley the manufacture
of weapons for use in the Vietnam war was spacially and
temporally remote from the site of the trespass, while their
protest halted abortions scheduled in the very rooms [they]
blocked, within minutes of the time of their entry.18 The supreme
court found that this distinction was not determinative:
In both cases, it was obvious to the
trespassers that their actions could not halt
the alleged greater harm to which society had
given its imprimatur, but rather that, at
best, the harm could be only postponed for a
brief interval, following which societys
normal operations would reassert themselves.
This was simply not the kind of emergency
situation contemplated by the defense of
necessity.
Further, in spite of appellants
protestations to the contrary, their acts,
like the acts of the Marley defendants, are
much more appropriately characterized as
protesting with the intent to dramatize, and
hence hopefully terminate, conduct which they
may view [as] harmful, [than], as appellants
describe their own behavior, directly
intervening to avert an imminent threat to
human life. Appellants protest was, in fact,
part of a nationwide protest that resulted in
several similar arrests in other cities.
Appellants appear to concede that if their
actions are best described as a protest, the
necessity defense would be unavailable. We
think it manifest that it would be
inappropriate to characterize these
trespasses as anything other than a protest,
and that appellants argument of necessity
must therefore be rejected.[19]
This reasoning is even more applicable in the
circumstances of this case. Although Muller testified that he
believed the only adequate alternative to halting the Iraq war
was staying in Senator Stevenss office after closing because he
had already tried other types of protest and they had failed he
offered no evidence that coming back at 8:00 a.m. the following
morning to finish reading the names of Iraq war casualties would
have been any less effective. Moreover, Muller offered no
evidence that, [u]nder any possible set of hypotheses, his
actions had any realistic hope of ending the war in Iraq.20 And,
unlike the protestors in Cleveland, Muller has not asserted, much
less shown, that his acts were anything other than a symbolic
protest intended to dramatize, and hence hopefully terminate
conduct he viewed as harmful.21 Thus, Muller had no right to a
necessity defense: he offered no evidence that he reasonably
believed his protest could prevent a significant evil or that he
reasonably believed there were no adequate alternatives to
criminal trespass to achieve his goal.
Because Muller offered no evidence that his actions had
any realistic hope of ending the war in Iraq, the harm caused by
disrupting normal operations in Stevenss office, objectively
viewed, was disproportionate to the harm Muller could
realistically hope to avoid by his trespass.22
And lastly, because Muller as a matter of law was not
entitled to raise a necessity defense, the court did not abuse
its discretion by refusing to admit the articles he argued would
show he reasonably believed the war in Iraq was a significant
harm. Even if Muller reasonably believed the war in Iraq was
illegal and morally wrong, he offered no evidence that his
protest had any realistic hope of ending the war, or that it
would be any less effective if it was completed during normal
business hours.
Conclusion
Mullers conviction is AFFIRMED.
_______________________________
1 AS 11.46.330(a).
2 Cleveland v. Anchorage, 631 P.2d 1073, 1078 (Alaska 1981).
3 Nelson v. State, 597 P.2d 977, 979 (Alaska 1979); Seibold
v. State, 959 P.2d 780, 782 (Alaska App. 1998).
4 Seibold, 959 P.2d at 782 (quoting Bird v. Anchorage, 787
P.2d 119, 120-21 (Alaska App. 1990)).
5 Lacey v. State, 54 P.3d 304, 306, 308 (Alaska App. 2002);
see also AS 11.81.900(b)(2)(A) (governing affirmative defenses)
and AS 11.81.900(b)(19)(A) (governing normal defenses).
6 Lacey, 54 P.3d at 308.
7 787 P.2d 119.
8 Id. at 121.
9 See Alaska R. Crim. P. 47(b); Bidwell v. State, 656 P.2d
592, 594 (Alaska App. 1983).
10 631 P.2d 1073.
11 Id. at 1075, 1078.
12 Id. at 1078-79.
13 Id. at 1079-80.
14 509 P.2d 1095 (Hawaii 1973).
15 Id., cited in Cleveland, 631 P.2d at 1079.
16 Id. at 1099, cited in Cleveland, 631 P.2d at 1079.
17 Cleveland, 631 P.2d at 1079 (quoting Marley, 509 P.2d at
1109).
18 Id. at 1079.
19 Id. at 1080 (quoting Marley, 509 P.2d at 1109).
20 See id. at 1079 (quoting Marley, 509 P.2d at 1109).
21 See id.
22 See Nelson, 597 P.2d at 979-80.
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