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303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| CHRISTOPHER R. FALLON, | ) |
| ) Court of Appeals No. A-10120 | |
| Appellant, | ) Trial Court No. 3KN-07-430 CR |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) |
| ) No. 2250 January 8, 2010 | |
Appeal from the
District Court, Third Judicial District,
Kenai, Sharon A. S. Illsley, Judge, and
Matthew C. Christian, Magistrate.
Appearances: Arthur S. Robinson, Robinson &
Associates, Soldotna, for the Appellant.
Devoron K. Hill, Assistant District
Attorney, Lance E. Joanis, District
Attorney, Kenai, and Talis J. Colberg,
Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Bolger, Judges.
BOLGER, Judge.
Christopher R. Fallon was convicted of driving under
the influence and resisting arrest. He argues that he was
illegally seized when an Alaska trooper retained his drivers
license for several minutes to check on the status of the
license, and that the district court should have granted his
motion to suppress on that basis. He also challenges his
resisting arrest conviction on two grounds. First, he argues
that the district court should have granted his motion for
judgment of acquittal because the conduct the State alleged
amounted to resisting arrest occurred after his arrest was
complete. Second, he argues that there was insufficient evidence
for the jury to find that he used force to resist arrest. For
the reasons discussed below, we reject Fallons claims and affirm
his convictions.
Facts and proceedings
On the evening of March 11, 2007, Trooper Kyle Carson
was on patrol on Kalifornsky Beach Road off the Sterling Highway
when he spotted a silver Chevy SUV in the ditch fifteen to twenty
feet off the roadway. Another motorist with a pickup truck had
hooked a tow strap to the SUV and was getting ready to pull it
out of the ditch. Trooper Carson turned on his emergency lights
and pulled over to make sure the driver was not injured, and to
offer assistance.
Trooper Carson contacted the driver, Fallon, who
explained that his tire caught the snow and pulled his vehicle
into the ditch. Carson and the driver of the pickup discussed
the best way to pull Fallons vehicle back onto the roadway.
Carson then asked Fallon for his drivers license and returned to
his patrol car to call dispatch to check on the status of the
license.
After dispatch completed the check, Trooper Carson
contacted Fallon again to return his license and to ask him if he
needed a tow truck because his clutch had overheated. During
this discussion, Trooper Carson smelled a mild odor of alcohol,
and he noticed that Fallons speech was a bit slurred. He asked
Fallon if he had consumed alcohol or medication. Fallon said he
was just tired and stressed. After administering a horizontal
gaze nystagmus test, Carson concluded that Fallon had been
drinking, so he asked Fallon to step out of his vehicle for
additional field sobriety tests. Based on the results of those
tests, Carson arrested Fallon for driving under the influence. A
later breath test showed that his blood alcohol content was .179
percent, more than twice the legal limit.1
When Trooper Carson arrested Fallon, he directed him
to put his arms behind his back. Fallon initially complied, but
then he tensed his arms and pressed them against his back so that
Carson could only handcuff one arm. Carson told Fallon several
times to relax and stop resisting, but Fallon became verbally
belligerent and continued to tense his arms. Trooper Carson was
concerned Fallon might assault him, so he walked Fallon back to
the patrol car. He also used pepper spray on Fallon, but it had
no obvious effect. Fallon pushed himself away from the patrol
car, which again made Carson concerned that Fallon would assault
him, so he took Fallon to the ground. Carson could still not
handcuff Fallon because Fallon kept trying to get up and
continued to tense his arms. At this point a motorist stopped,
and with the motorists help Carson was able to get Fallons second
arm handcuffed and to place him in the patrol car.
Fallon was charged with driving under the influence2
and resisting arrest.3 Before trial, he moved to suppress the
evidence, arguing that he was illegally seized when Carson
retained his drivers license and called dispatch. Following an
evidentiary hearing, District Court Judge Sharon A. S. Illsley
denied the motion.
After the State presented its case, Fallon moved for a
judgment of acquittal, arguing that, as a matter of law, the
State presented insufficient evidence to convict him of resisting
arrest. Magistrate Matthew C. Christian denied that motion, and
the jury convicted Fallon of both offenses.
Discussion
Was Fallon illegally seized when Carson retained his
license?
On appeal, Fallon renews his claim that Trooper Carson
illegally detained him without probable cause or reasonable
suspicion when he took his drivers license and called dispatch to
check on the status of the license. Fallon argues that Judge
Illsley erred by not granting his motion to suppress for this
reason.
The parties brief this claim as if it hinged on
whether Carsons contact with Fallon was a consensual police-
citizen encounter that required no reasonable suspicion, or was
instead a Fourth Amendment seizure. But Carson contacted Fallon
because he had driven his vehicle into a ditch, to see if Fallon
was injured or needed other assistance. The more appropriate
question, therefore, is whether the stop was a valid community
caretaker stop. In Ozhuwan v. State,4 we held that a Fourth
Amendment seizure may be justified without reasonable suspicion
of criminal activity if the police are validly acting within
their community caretaker role that is, if they are aware of at
least some specific circumstances supporting a reasonable belief
that the occupants of a vehicle need assistance.5
As already discussed, Carson contacted Fallon to see
if he needed help because he had driven off the road and was
stuck in a ditch. Fallon had apparently been trying to free his
vehicle for some time, because his clutch had overheated.
Another motorist had stopped and was preparing to pull Fallons
vehicle out, and the motorist had to block the roadway to do so.
Given these circumstances, it was reasonable for Trooper Carson
to conclude that he should remain on the scene to alert other
drivers to the possible hazard, and to contact a tow truck if
efforts to pull Fallons vehicle out of the ditch failed or if the
vehicle was disabled. Indeed, Carson was asking Fallon if he
needed a tow truck when he first observed signs that Fallon was
intoxicated.
Based on this record, we conclude that the stop was a
valid community caretaker stop. Trooper Carson was therefore
authorized under AS 28.15.131 to request Fallons drivers
license.6 By calling dispatch to check on the status of the
license, Carson did not unreasonably expand the scope or duration
of the stop.7 Although Fallon testified that he sat in his car
for about five minutes waiting for Carson to return his license,
the electronic recording of the contact indicates that only three
minutes passed between the time Carson asked for, and returned,
Fallons license. Some of this time was occupied pulling Fallons
vehicle back onto the roadway. The restriction on Fallons
freedom of movement was thus minimal and outweighed by the public
interest in verifying that Fallon had a legal right to drive
particularly given that Fallon had just driven into a ditch. We
therefore find no error in Judge Illsleys decision to deny
Fallons motion to suppress.
Was Fallons arrest complete once Carson got one arm in
handcuffs?
Fallon next argues that the district court should
have granted his motion for judgment of acquittal because the
conduct the State alleged amounted to resisting arrest Fallons
conduct that prevented Trooper Carson from securing his second
arm in handcuffs occurred after his arrest was already complete.
The resisting arrest statute, AS 11.56.700, provides
in pertinent part:
(a) A person commits the crime of resisting
or interfering with arrest if, knowing that
a peace officer is making an arrest, with
the intent of preventing the officer from
making the arrest, the person resists
personal arrest or interferes with the
arrest of another[.]
To support his claim that his arrest was complete once
one arm was secured in handcuffs, Fallon relies on the common-law
definition of arrest we quoted in Maynard v. State8: If an
officer having authority to make an arrest actually touches his
arrestee, for the manifested purpose of apprehending him, the
arrest is complete although [the officer] does not succeed in
stopping or holding [the arrestee] even for an instant.9 We have
relied on this definition of arrest in construing the statute
defining the crime of escape.10
But unlike the crime of escape, the offense of
resisting arrest does not hinge on defining the precise moment a
defendant is under arrest. The offense of resisting arrest
contemplates conduct that takes place during the process of
taking the defendant into custody. This interpretation is
consistent with the plain language of the statute: To be guilty
of resisting arrest, a person must act with the intent of
preventing an officer from making an arrest.11 Making is
generally defined as the process of being made.12 This
construction is also consistent with Title 12s definition of
arrest as the taking of a person into custody in order that the
person may be held to answer for the commission of a crime.13
In reaching this conclusion, we also find persuasive
the reasoning of the Arizona Court of Appeals in State v.
Mitchell.14 In Mitchell, the defendant was told he was under
arrest for disorderly conduct, but when an officer grabbed his
arm to handcuff him he froze up and held his hands in front of
him.15 An officer managed to handcuff his arms behind his back,
but as the defendant was escorted to the police car he struggled
and fought with the officers, wrapping his leg around one officer
and pulling everyone to the ground.16
Under the Arizona resisting arrest statute, the State
had to prove that Mitchell intentionally prevented, or attempted
to prevent, the police from effecting an arrest by using or
threatening to use physical force.17 Mitchell argued that no
reasonable jury could convict him of that offense because his
arrest was complete as soon as he was handcuffed, and the State
had charged him with resisting arrest based on his subsequent
conduct.
The appeals court rejected this claim, ruling that a
reasonable jury could find that the officers were still effecting
Mitchells arrest when he struggled with the officers en route to
the patrol car.18 The court explained that the term effecting an
arrest encompassed the process of bringing about an arrest:
[E]ffecting an arrest is a process with a
beginning and an end. Often, the process is
very brief and the arrest is quickly
completed. In some situations, however, the
process of effecting an arrest will occur
over a period of time and may not be limited
to an instantaneous event, such as
handcuffing.[19]
As the Arizona court observed, this interpretation
comports with the purpose of the resisting arrest statute:
protecting the police and citizens from substantial risk of
physical injury.20 That purpose would not be served by
criminalizing forceful resistance that precedes the barest touch
that effects an arrest for purposes of the escape statute, but
not forceful resistance that prevents the officer from completing
the arrest by handcuffing the defendant, escorting him to the
patrol car, or otherwise taking [him] into custody.21
For these reasons, we find no merit to Fallons claim
that, as a matter of law, his arrest was complete for purposes of
the resisting arrest statute as soon as one of his arms was in
handcuffs. We therefore uphold Magistrate Christians decision
denying his motion for judgment of acquittal.
Was there insufficient evidence that Fallon resisted
arrest with force?
The State charged Fallon under the first subsection of
the resisting arrest statute, which makes it illegal to resist
arrest by force. The Alaska Statutes define force as any bodily
impact, restraint, or confinement or the threat of imminent
bodily impact, restraint, or confinement[.]22
Fallon argues that this case is like Eide v. State,23
where we reversed the defendants conviction after concluding that
his conduct was not resisting arrest but mere non-submission to
an arrest.24 In Eide, the defendant was at home on the floor in
a sleeping bag when the Alaska troopers tried to arrest him.25
When a trooper grabbed his arm to pull him up, he jerked away and
told the trooper I aint going.26 Then he rolled onto his stomach
with his arms underneath him.27 He submitted to the arrest as
soon as the troopers used an electric shocking device on him.28
Fallon argues that his conduct in tensing his arms and
pressing them against his back was likewise mere non-submission
to arrest, and that a fair-minded juror could not convict him of
resisting arrest by force based on this conduct. But Fallons
conduct differed from Eides in key respects. Eide initially
pulled his arm away from a trooper and put his arms under his
body so he could not be handcuffed.29 But as soon as the
troopers used an electric shock device, he submitted to the
arrest.30
Fallon, by contrast, struggled against Carsons efforts
to arrest him: When Carson took Fallon to the back of the patrol
car, Fallon pushed himself away from the car, so that Carson had
to take him to the ground. With Fallon in that position, Carson
still could not handcuff him, because Fallon tried to get up and
continued to tense his arms against his back. Ultimately, it
took the help of a passing motorist to get Fallon handcuffed and
in the patrol car. Viewing this evidence in the light most
favorable to the State, we conclude that this conduct went beyond
mere non-submission to an arrest, and that a fair-minded juror
could find beyond a reasonable doubt that Fallon was guilty of
resisting arrest by force.31
Conclusion
We AFFIRM the judgment of the district court.
_______________________________
1 AS 28.35.030(a)(2).
2 AS 28.35.030(a).
3 AS 11.56.700(a)(1).
4 786 P.2d 918 (Alaska App.1990).
5 Id. at 922.
6 See Marsh v. State, 838 P.2d 819, 820-21 (Alaska App.
1992) (citing AS 28.15.131, which requires motorists to have a
drivers license in their possession and to present the license
for inspection upon the demand of a peace officer).
7 Cf. Brown v. State, 182 P.3d 624, 629 (Alaska App. 2008)
(citing 4 Wayne R. LaFave, Search and Seizure: A Treatise on the
Fourth Amendment 9.3(c) at 378 (4th ed. 2004) (noting that a
routine traffic stop generally encompasses a request for the
motorists drivers license, registration and proof of insurance,
and a computer check to verify the validity of these documents);
Clark v. Anchorage, 112 P.3d 676, 678 (Alaska App. 2005) ([I]t
does not unreasonably expand the scope or duration of a valid
traffic stop for an officer to prolong the stop to immediately
investigate and determine if the driver is entitled to continue
to operate the vehicle by checking the status of the drivers
license, insurance, and vehicle registration[.]) (internal
citations omitted).
8 652 P.2d 489 (Alaska App. 1982).
9 Id. at 492 n.6 (quoting R. Perkins, Criminal Law at 500
(2d ed. 1969)) (citations omitted in original).
10 See MacDonald v. State, 83 P.3d 549, 551 (Alaska App.
2004).
11 AS 11.56.700(a).
12 Websters New World College Dictionary at 868 (4th ed.
2002).
13 AS 12.25.160.
14 62 P.3d 616 (Ariz. App. 2003).
15 Id. at 617.
16 Id.
17 Id. at 618. The statute at issue in Mitchell, A.R.S.
13-2508, provides:
A person commits resisting arrest by intentionally
preventing or attempting to prevent a person
reasonably known to him to be a peace officer,
acting under color of such peace officers official
authority, from effecting an arrest by:
1. Using or threatening to use physical
force against the peace officer or another[.]
18 Mitchell, 62 P.3d at 619.
19 Id. at 618 (citations omitted).
20 Id. at 619.
21 AS 12.25.160.
22 AS 11.81.900(b)(27).
23 168 P.3d 499 (Alaska App. 2007).
24 Id. at 502. Eide was convicted of resisting arrest
under AS 11.56.700(a)(3), which makes it a crime to resist arrest
by any means that created a substantial risk of physical injury
to any person. Id. at 501. However, the evidence was also
insufficient to convict Eide of resisting arrest by force under
subsection (1) of the statute. Id. at 503-04 (Mannheimer, J.,
concurring).
25 Eide, 168 P.3d at 500.
26 Id.
27 Id.
28 Id.
29 Id.
30 Id.
31 See Collins v. State, 977 P.2d 741, 747 (Alaska App.
1999); Dorman v. State, 622 P.2d 448, 453 (Alaska 1981).
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