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E-mail: corrections @ akcourts.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
ANDREW CRAIG SIMPSON,
Court of Appeals Nos. A-13129,
Appellant, A-13139, & A-13130
Trial Court Nos. 3AN-16-08118 CR,
v. 3AN-11-01816 CR, & 3AN-14-11502 CR
STATE OF ALASKA, O P I N I O N
Appellee. [No. 2703 - May 21, 2021]
Appeal from the Superior Court, Third Judicial District,
Anchorage, Michael D. Corey and Eric A. Aarseth, Judges.
Appearances: Bradly A. Carlson, The Law Office of Bradly A.
Carlson, LLC, under contract with the Public Defender Agency,
and Samantha Cherot, Public Defender, Anchorage, for the
Appellant. Patricia L. Haines, Assistant Attorney General,
Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson,
Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Harbison and Terrell, Judges.
Judge ALLARD.
Andrew Craig Simpson was charged with felony driving under the
influence, third-degree weapons misconduct, fourth-degree weapons misconduct, fifth-
degree weapons misconduct, and driving with a canceled, suspended, or revoked license
after police responded to a report that Simpson was parked in front of his girlfriend's
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1
home and refusing to leave. Simpson pleaded guilty to fifth-degree weapons
misconduct and driving with a canceled, suspended or revoked license. He was
convicted by a jury of felony driving under the influence, third-degree weapons
misconduct, and fourth-degree weapons misconduct. On appeal, Simpson raises four
claims of error.
First, Simpson argues that the trial court erred when it denied his motion
to suppress the evidence obtained against him after the police initiated an investigative
stop, turned arrest. For the reasons explained here, we find no error in the trial court's
ruling.
Second, Simpson argues that the trial court failed to give an additional
curative instruction after the prosecutor repeated an argument that the court had ruled
was improper. Because the record shows that the trial court did give an additional
curative instruction, we find no merit to this claim.
Third, Simpson argues that the trial court erred when it allowed the
prosecutor to argue an "operating" theory to the jury because, according to Simpson,
there was legally insufficient evidence to convict him of operating. Because the record
shows that there was legally sufficient evidence to convict Simpson of operating, we find
no error.
Lastly, Simpson argues that the trial court erred when it refused to merge
his convictions for third-, fourth-, and fifth-degree weapons misconduct. Because we
conclude that merger was not required, we affirm the separate convictions for these
charges.
1 AS 28.35.030(n), AS 11.61.200(a)(1), AS 11.61.210(a)(1), AS 11.61.220(a)(1)(A),
and AS 28.15.291(a)(1), respectively.
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Background facts and prior proceedings
During the late morning of October 9, 2016, Simpson picked up his then-
girlfriend, Nora Hadley, from a local hotel to take her to her parents' home. When
Simpson arrived, Hadley smelled alcohol on his breath and could tell he had been
drinking. Simpson and Hadley then drank more alcohol while sitting in the car in the
hotel parking lot before departing for Hadley's parents' home. Upon arriving at her
parents' home, Hadley told Simpson she needed to change her clothes and went inside.
Once inside her parents' home, she called 911 to report that Simpson was "intoxicated,"
"smoking weed and meth," parked outside her home, and refusing to leave. 2
Officers Heidi Schaeffer and Aaron Hostetter responded to the call in
separate cars. One officer parked in front of Simpson's car and the other parked behind
Simpson's car in order to block it in. Officer Schaeffer then walked up to the driver's
side door and asked Simpson for his license and if he had any weapons. Simpson denied
having any weapons, but he patted a long object in his front left pants pocket as he did
so.
Simpson's car was not running, but Simpson was in the driver's seat and
the keys were on a belt loop in Simpson's lap. Simpson admitted to driving the vehicle
to its current location, and he indicated that he intended to drive away when his girlfriend
returned. Simpson also admitted to drinking a couple shots of alcohol before driving.
Officer Schaeffer noticed that Simpson had red, watery eyes and she smelled alcohol on
Simpson's breath and a "strong" odor of burnt marijuana coming from his car. Officer
Schaeffer also observed that Simpson "hadahard timefocusing"during his conversation
with her before he stepped out of the car.
2 Hadley's testimony at trial differed from the 911 recording. At trial, Hadley testified
that she left the vehicle and called 911 from the home because she did not feel safe in the car
and that Simpson did not smoke marijuana or methamphetamine while in the car.
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Officer Schaeffer asked Simpson to step out of the car to perform field
sobriety tests. After Simpson exited the car, Officer Schaeffer indicated that she wanted
to conduct a pat-down search. Simpson then attempted to run away from the officers.
The officers caught up with him and placed him in handcuffs. After being cuffed,
Simpson disclosed that he had a gun in his front left pocket - the same pocket with the
long object that he patted while claiming he did not have any weapons.
Simpson was arrested and taken to jail, where the officers attempted to
administer field sobriety tests. The officers completed only the horizontal gaze
nystagmus test, which showed a lack of smooth pursuit in both eyes. The officers then
administered a breath test, which indicated that Simpson had a breath alcohol level
of .076. An expert for the State later testified that, based on the results of the breath test,
Simpson's breath alcohol level was somewhere between .069 and .12 at the time he was
driving.
Simpson was charged with driving with a canceled, suspended, or revoked
license and felony driving under the influence because he had six prior convictions for
driving under the influence. He was also charged with third-degree weapons misconduct
for possessing a concealable handgun after being convicted of a felony, fourth-degree
weapons misconduct for possessing a gun while intoxicated, and fifth-degree weapons
misconduct for failing to inform the officers regarding the presence of the gun. Simpson
pleaded guilty to the driving while license canceled, suspended, or revoked charge and
the fifth-degree weapons misconduct charge, and went to trial on the remaining charges.
Thejury convicted himofdrivingunder theinfluence,third-degreeweaponsmisconduct,
and fourth-degree weapons misconduct. Simpson waived his right to a jury trial on his
prior driving under the influence convictions, and the trial court found him guilty of
felony driving under the influence after a short bench trial. At sentencing, the trial court
imposed 5 years with 2 years suspended (3 years to serve) for driving under the
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influence, 2 years to serve for the third-degree weapons misconduct to run consecutively
to the driving under the influence charge, 180 days to serve for the fourth-degree
weapons misconduct to run concurrently, 30 days to serve for the fifth-degree weapons
misconduct to run consecutively, and 1 year to serve for the driving while license
canceled, suspended, or revoked to run concurrently for a composite sentence of 7 years
and 30 days with 2 years suspended (5 years and 30 days to serve).
This appeal followed.
Simpson's motion to suppress
Prior to trial, Simpson filed a motion to suppress the evidence obtained
against him as a result of the investigatory stop and arrest, arguing that the officers (1)
lacked reasonable suspicion to contact him; (2) lacked reasonable suspicion to conduct
the pat-down search; (3) lacked probable cause to arrest him for driving under the
influence; (4) improperly asked him to perform field sobriety tests at the police station
after his arrest; and (5) lacked authority to request a breath sample. Following an
evidentiary hearing, the trial court rejected all of these arguments and denied the motion
to suppress. Simpson now renews these arguments on appeal.
Simpson first challenges the initial investigatory stop. An investigatory
stop requires "reasonable suspicion that imminent public danger exists or serious harm
3
to persons or property has recently occurred."
Reasonable suspicion exists if the totality
of the circumstances indicates that there is a substantial possibility that conduct giving
4
rise to a public danger has occurred. Reasonable suspicion requires more than "an
3 Coleman v. State, 553 P.2d 40, 46 (Alaska 1976).
4 Beltz v. State, 221 P.3d 328, 337 (Alaska 2009).
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5
inchoate and unparticularized suspicion or hunch." The officer must identify "specific
and articulable facts which, taken together with rational inferences from those facts,
reasonably warrant [the] intrusion." 6
Here, the officers received a 911 call from Simpson's girlfriend who
reported that Simpson was intoxicated, "smoking weed and meth," and that he was
now sitting in the driver's seat of a parked car outside her residence, refusing to
leave. This information was sufficient to justify the police initiating an
7
investigatorystop so that they could question Simpson.
Moreover, as soon as theofficers arrived,they obtained additionalevidence
of potential public danger sufficient to meet the more stringent standard to arrest
Simpson. Probable cause to arrest exists if the totality of the circumstances known to the
8
officer would support a reasonable belief that an offense has been or is being committed.
After the officers parked and began to approach Simpson, they could smell a strong odor
of marijuana coming from the car. Upon contacting Simpson, the officers smelled the
odor of alcohol coming fromSimpson's breath and observed that he had red, watery eyes
and that he had difficulty tracking the conversation. Simpson also admitted to driving,
drinking shots of alcohol, and smoking "a little bit" of marijuana that day. All of this
5 McQuade v. State , 130 P.3d 973, 977 (Alaska App. 2006) (quoting In re J.A. , 962
P.2d 173, 176 (Alaska 1998)).
6 Waring v. State, 670 P.2d 357, 365 (Alaska 1983) (quoting Terry v. Ohio, 392 U.S.
1, 21 (1968)).
7
See Romo v. Anchorage, 697 P.2d 1065, 1069 (Alaska App. 1985) (holding that an
imminent public danger exists when an intoxicated driver retains possession and control of
a motor vehicle).
8 State v. Joubert, 20 P.3d 1115, 1118-19 (Alaska 2001).
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information, taken together, was sufficient to establish probable cause to arrest Simpson
for driving under the influence.
On appeal, Simpson challenges the officers' attempt to conduct field
sobriety tests at the police station. But because the officers had probable cause to arrest
Simpson for driving under the influence, they necessarily had the reasonable suspicion
9
required to ask Simpson to perform field sobriety tests.
Moreover, contrary to
Simpson's claims, the request to complete field sobriety tests did not violate Simpson's
10
Miranda rights because field sobriety tests are generally non-testimonial in nature. We
likewise see no issue with the police administering these tests at the police station rather
than at the scene given that probable cause to arrest Simpson already existed without the
11
field sobriety tests.
Simpson also challenges the pat-down search, arguing that there was no
reasonable suspicion to believe that he had any weapons. But testimony at the
evidentiary hearing established that the officers saw a long object in Simpson's pants
pocket, and that Simpson patted that area when he denied having any weapons.
Testimony from the evidentiary hearing also established that Simpson reached for that
same pocket when he first got out of the car, further justifying the officer's decision to
conduct a pat-down search.
Lastly, Simpson argues that the officers lacked the authority to require him
to submit to a breath test. We find no merit to this claim. Under Alaska's implied
consent law, a driver of a motor vehicle who has been lawfully arrested for driving under
9 See Hurlburt v. State, 425 P.3d 189, 195 (Alaska App. 2018).
10 Palmer v. State, 604 P.2d 1106, 1109 (Alaska 1979).
11 Cf. id. (concluding that post-arrest administration of breath test at police station and
"several physical tests designed to determine whether, and to what extent, the defendant was
under the influence of intoxicating liquor" was proper).
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the influence must submit to a breath test or face potential charges for refusing to submit
12
to a chemical test.
Simpson was arrested, in part, based on probable cause that he was
driving or operating a motor vehicle while under the influence.
Accordingly, we affirm the superior court's ruling on the motion to
suppress.
The prosecutor's improper argument
During closing argument, the prosecutor argued to the jury that "it's up to
you to decide whether you think someone in Mr. Simpson's condition is okay to drive.
If you want someone like him on your roads, in your community . . . ." This line of
argument was improper.13
Simpson's attorney objected to the prosecutor's statements. The trial court
sustained the objection and gave a curative instruction, instructing the jury that "the
problem with the argument is that it puts you in the street . . . . But this isn't about any
prejudice or sympathy towards anyone in particular. You need to decide this objectively.
Are the facts there or not, regardless of how you might personally feel about it."
Despite the fact that the trial court sustained the defense attorney's
objection and gave a curative instruction, the prosecutor returned to this same line of
argument later in her closing argument, again telling the jury, "If you want an individual
like Mr. Simpson driving around, that decision is up to you."
12 See AS 28.35.031(a).
13 See ABA Standards for Criminal Justice § 3-6.8(c) at 37 (4th ed. 2017) ("The
prosecutor should not make arguments calculated to appeal to improper prejudices of the trier
of fact. The prosecutor should make only those arguments that are consistent with the trier's
duty to decide the case on the evidence, and should not seek to divert the trier from that
duty."); see also Hess v. State, 435 P.3d 876, 881 (Alaska 2018) (citing to § 3-6.8(c) to
support the conclusion that the prosecutor in that case made an improper argument).
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On appeal, Simpson argues that the trial court erred because, according to
Simpson, the trial court failed to give a second curative instruction after the prosecutor
repeated the improper argument. But the record clearly shows that the trial court did
give a second curative instruction after the closing arguments were concluded. The trial
court once again instructed the jury that their role was to view the facts objectively and
to follow the law, regardless of their personal opinion regarding drinking and driving.
The trial court also instructed the jury that this part of the prosecutor's argument was
improper and that it was to hold the State to its burden. The court then confirmed with
the jurors that they were able to do so: "Everybody clear they can follow the instruction?
Anyone can't follow the instruction, please raise your hand. No hands. Okay."
Accordingly,becausethetrial court respondedtotheprosecutor's improper
argument with appropriate curative instructions, we find no merit to this claim of error.
The jury instruction on "operating" a motor vehicle
At trial, the prosecutor argued that Simpson had driven to his girlfriend's
house while intoxicated. The prosecutor also argued that Simpson had "operated" the
parked car while intoxicated because he was in full physical control of the car with the
keys at ready access to drive away at any time. The trial court instructed the jury on both
"driving" and "operating." Simpson objected to the instruction on "operating," arguing
that there was insufficient evidence to convict himof operating. The trial court overruled
the objection.
On appeal, Simpson renews hisargument that thejuryshould not havebeen
instructed on "operating" because, according to Simpson, there was legally insufficient
evidence to convict him of operating because he "made no movements to indicate a
present intent to move the car." But the jury could reasonably infer an intent to move the
car based on Simpson's statements and his actions in sitting in the driver's seat with his
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keys in easy reach. In any event, as the State points out, the appellate courts have
previously upheld operating convictions based on similar facts and Simpson fails to
meaningfully distinguish his case from those prior cases. 14
Merger of the weapons misconduct convictions
Whether guilty verdicts merge into a single conviction is a mixed question
of fact and law - the facts underlying the offenses are reviewed for clear error but "[t]he
ultimate legal question of merger under the double-jeopardy clause is reviewed de
15
novo."
Multiple convictions arising from the same course of conduct do not violate
double jeopardy when the differences in intent and conduct between the offenses are
16
"substantial or significant enough to warrant multiple punishments." To determine
whether multiple punishments are warranted, this Court looks to "the quality of the
differences, if any exist, between the separate statutory offenses, as such differences
17
This
relate to the basic interests sought to be vindicated or protected by the statutes."
requires examining both "the conduct punished as well as the societal interests protected
18
by the two statutes."
14 See, e.g., State v. Conley, 754 P.2d 232, 236 (Alaska 1988) (concluding that defendant
was in "actual physical control" of her vehicle even though the engine was not running where
she was seated in driver's seat, had possession of ignition key, and was attempting to put key
in ignition); Kingsley v. State, 11 P.3d 1001, 1002-03 (Alaska App. 2000) (finding evidence
legally sufficient to convict defendant of "operating" when defendant was the sole occupant
in the vehicle and was sitting in the driver's seat with the keys in his pocket after driving his
car into a snow berm).
15 Johnson v. State , 328 P.3d 77, 81 (Alaska 2014).
16 Whitton v. State, 479 P.2d 302, 312 (Alaska 1970).
17 Id.
18 Johnson , 328 P.3d at 88 (quoting Mead v. State , 489 P.2d 738, 743 (Alaska 1971)).
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Here, Simpson was convicted of three different weapons misconduct
charges: (1) third-degree weapons misconduct for possessingaconcealablefirearmafter
19
being convicted of a felony;
(2) fourth-degree weapons misconduct for possessing a
20
and (3) fifth-
firearm while impaired by intoxicating liquor or a controlled substance;
degree weapons misconduct for failing to inform the police that he was carrying a
21
concealable deadly weapon. Simpson argues that all three convictions should have
merged into a single conviction. We disagree.
We have previously held in an unpublished opinion that separate
convictions for third-degree weapons misconduct (felon in possession of concealable
firearm) and fourth-degree weapons misconduct (possession of firearm while
intoxicated) do not merge because they "implicate significantly different societal
22
interests." As we explained in that case, the third-degree weapons misconduct statute
prohibiting felons from possessing concealable firearms is a status offense that prohibits
a certain class of people (convicted felons) from possessing firearms that can be
23
concealed.
In contrast, the fourth-degree weapons misconduct statute prohibiting
possession of a firearm while under the influence of an intoxicating liquor or controlled
substance applies equally to all persons and is more akin to the prohibition against
19 AS 11.61.200(a)(1).
20 AS 11.61.210(a)(1).
21 AS 11.61.220(a)(1)(A).
22 See Glover v. State, 2020 WL 232799, at *2 (Alaska App. Jan. 15, 2020)
(unpublished) (holding that fourth-degree weapons misconduct does not merge with third-
degree weapons misconduct); see also Ladick v. State, 2005 WL 19222, at *2 (Alaska App.
Jan. 5, 2005) (unpublished) (holding that fourth-degree weapons misconduct was not a lesser
included offense of third-degree weapons misconduct).
23 Glover, 2020 WL 232799, at *2.
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24
driving under the influence. The two offenses thus involve different elements and are
directed at different dangers.
We likewise conclude that a conviction for fifth-degree weapons
misconduct does not merge with either of the other weapons offenses because it involves
different conduct and is directed at a different societal interest - namely, the protection
of police officers by creating an affirmative duty to report any concealable deadly
25
weapons.
Accordingly, we find no error in the trial court's refusal to merge these
three convictions.
Conclusion
The judgment of the superior court is AFFIRMED.
24 Id.
25 See De Nardo v. State, 819 P.2d 903, 907 (Alaska App. 1991) ("[T]he policy
underlying concealed weapons statutes is to prevent the surprise use of deadly force by
prohibiting people from 'having, readily available for use, weapons of which others are
unaware.'") (quoting Anchorage v. Lloyd , 679 P.2d 486, 487 (Alaska App. 1984)).
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