| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
This site is possible because of the following site sponsors. Please support them with your business.
|
| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
|
|
This site is possible because of the following site sponsors. Please support them with your business.
|
You can search the entire site. or go to the recent opinions, or the chronological or subject indices. McGee v. State (07/27/2007) sp-6143
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| CHRISTIAN McGEE, | ) Supreme Court No. S-11611 |
| ) | |
| Petitioner, | ) Court of Appeals No. A-8452 |
| ) Superior Court No. 3VA-01-229 CR | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) [No. 6143 - July 27, 2007] | |
| Respondent. | ) |
| ) | |
Petition for Hearing from the Court of
Appeals of the State of Alaska, on Appeal
from the Superior Court, Third Judicial
District, Valdez, Joel H. Bolger, Judge.
Appearances: Colleen A. Libbey, Libbey Law
Offices, Anchorage, for Petitioner. John A.
Scukanec, Assistant Attorney General, Office
of Special Prosecutions and Appeals,
Anchorage, and David W. M rquez, Attorney
General, Juneau, for Respondent.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, and Fabe, Justices. [Carpeneti,
Justice, not participating.]
BRYNER, Chief Justice.
MATTHEWS, Justice, dissenting.
I. INTRODUCTION
Christian McGee was charged with criminal mischief for
smashing out the windows of a truck belonging to Wesley
Alexander. McGee contended at trial that he broke the windows to
protect himself from being run over by Alexander. The Alaska
Criminal Code recognizes the defense of necessity but generally
treats it as an affirmative defense, which gives the defendant
the burden of proving necessity by a preponderance of the
evidence. After being instructed that this approach applied to
McGee, the jury convicted him of criminal mischief. We reverse.
Alaska law specifically defines the essential elements of
criminal mischief to require proof of intentional damage to
property of another by a person having no right to cause the
damage or any reasonable ground to believe such a right existed.
Given this statutory definition of the offense, we conclude that
the state bore the burden of proving beyond a reasonable doubt
that McGee lacked any reasonable ground to believe that his
actions were justified by his need for self-protection.
II. FACTS AND PROCEEDINGS
A. Facts
On October 27, 2001, Donna McGee met Wesley Alexander
at the Elks Lodge in Valdez. They eventually went to Donnas
trailer home. At around 1:30 a.m., Donnas son, Christian McGee
who then lived at her trailer returned home.
According to McGee, he began cooking something to eat
in the kitchen area when he heard a commotion toward the back of
the trailer. His mother soon came out with a pretty large gash
in her head. McGee also noticed Alexander in back, asleep in the
bed. McGee asked his mother what happened, and she replied that
she had brought Alexander home. McGee tried to waken Alexander,
who, in McGees words, got up out of bed . . . naked and started
getting real mouthy, belligerent. McGee started backing up, but
Alexander took upon himself to decide . . . to whoop my [McGees]
ass. The two men wrestled in the hallway and into the kitchen,
where Alexander placed McGee in a headlock. McGee managed to
free himself and ran from the trailer; as he fled, he heard
Alexander say something like Im going to run your little punk ass
over, you little sorry bastard.
Once outside, McGee grabbed a snow shovel and smashed
out the windows of Alexanders pickup truck. McGee claimed that
he did so to make sure [Alexander] couldnt see to hit me. McGee
then walked toward the dark end of the trailer court, hoping to
avoid Alexander and call police from a neighbors residence.
The Valdez Police received several 911 calls about the
disturbance. As they approached the scene they found McGee in
the road walking away from his mothers home. He appeared
intoxicated and highly agitated; officers reported McGee as
saying, Im going to jail, I did it. Donna McGee told the police
that she had cut her head when she tripped getting out of bed;
she declined to say anything more. McGee acknowledged that he
might have pushed his mother while trying to reach Alexander, but
denied knowing how she had cut her head.
Alexander gave a different account of the incident.
According to Alexander, he got out of bed after hearing McGee
pound on the trailer door. Alexander dressed himself as McGees
mother went to open the door. He then saw McGee punch his mother
in the face and begin moving toward Alexander, threatening to
kill him. The two men wrestled, and Alexander gained the upper
hand. He released McGee after McGee calmed down; McGee then left
the trailer as Alexander called the police. While on the phone,
Alexander heard breaking glass outside but he remained in the
trailer until officers arrived.
The police arrested McGee and charged him with two
misdemeanor counts of assault (one for Alexander and one for
McGees mother) and one felony count of criminal mischief for
intentionally damaging Alexanders truck in excess of $500.
B. Proceedings
Before trial, McGee gave notice that he wanted to
assert self defense as to the criminal mischief charge. The
superior court allowed McGee to present evidence supporting his
theory but declined to rule whether it would instruct on self
defense as to the criminal mischief charge, taking that issue
under advisement. Ultimately, the court declined to give a self-
defense instruction as to the charge, concluding that, as defined
under Alaska law, self defense applies only to the use of force
against persons. But given the evidence presented at trial, the
court determined that McGee could rely on the defense of
necessity instead. Accordingly, the court offered to give the
jury a standard necessity defense instruction.
The prosecution voiced no objection to the instruction,
conceding that McGees claim amounted to a sort of common sense
necessity and . . . if the court doesnt instruct them somebody in
there is going to . . . be back there arguing necessity without
instructions. Given the courts refusal to instruct on self
defense, McGee reluctantly accepted the courts offer to give the
necessity instruction but expressly noted his objection that the
instruction would essentially, shift part of the burden . . .
more to the defense.
The court instructed the jury on the defense of
necessity. The instruction informed the jury that McGee bore the
burden of proving his claim of necessity by a preponderance of
the evidence. The jury returned a verdict acquitting McGee of
assaulting Alexander but convicting him of criminal mischief for
damaging Alexanders truck. The jury deadlocked on the assault
involving Donna McGee, and the state later dismissed the charge.
McGee appealed to the court of appeals, challenging the
superior courts refusal to instruct the jury on self defense. In
arguing the point, McGee relied on the language of Alaskas
criminal mischief statute, which specifically requires the
offense to be committed by a person who intentionally damages
property having no right to do so or any reasonable ground to
believe the person has such a right.1 McGee argued that this
element of the offense required the state to disprove his claim
of self defense because, [a] person has a right to defend himself
in certain circumstances. If, in the course of protecting
oneself property is damaged, a person should be able to raise
self defense. McGee further contended that the standard
necessity instruction given to his jury failed to cure the
problem because [t]he burden of establishing necessity rests on
the defendant . . . . In contrast, the State must disprove self
defense.
The court of appeals affirmed the superior courts
ruling.2 While expressing doubt that Alaskas statutory
definition of self defense would extend to the use of force
against property rather than persons, the court of appeals did
not decide the point.3 The court ruled instead that there was no
need to instruct on self defense because McGee failed to
establish a basis for believing that he faced imminent harm from
Alexander a prerequisite for raising a self-defense claim.4
Relying on this factual ground, the court of appeals upheld
McGees conviction without considering whether the necessity
instruction permissibly shifted the burden of proof to McGee.5
McGee filed a petition for hearing with this court,
seeking review of the court of appeals decision. We granted the
petition, specifically asking the parties to discuss, in addition
to other issues they might brief, whether the elements of Alaskas
criminal mischief statute affirmatively require the state to
prove the absence of self defense and/or necessity, assuming that
McGee presented some evidence raising these defenses.6 Because
the answer to this question proves dispositive as it relates to
McGees necessity defense, we confine our opinion to that point
without addressing the issue of self defense.
III. DISCUSSION
A. Parties Arguments
McGee argues that the superior court erred in
instructing the jury that he bore the burden of proving necessity
by a preponderance of the evidence. McGee does not dispute that
the standard necessity instruction given in his case tracks the
Alaska criminal codes general provisions governing necessity.
Instead, he rests his claim of error on the Alaska criminal codes
specific definition of criminal mischief.
The criminal mischief provision under which McGee was
convicted, AS 11.46.482(a)(1), makes it unlawful to intentionally
damage the property of another when a person has no right to
cause the damage or any reasonable ground to believe that such a
right exists.7 This no right or reasonable ground requirement is
common to all levels of Alaskas criminal mischief statutes.8
McGee insists that the criminal mischief statute makes this
requirement a necessary element of the crime and asserts that the
state therefore had a constitutional duty to prove beyond a
reasonable doubt that he lacked any reasonable ground to believe
that he needed to damage the truck to protect himself from
Alexander.
In response, the state asserts that the codes general
justification provisions unequivocally required McGee to prove
his claim of necessity by a preponderance of the evidence. The
state argues that because necessity excuses conduct that would
otherwise amount to a crime, it is not a true defense like self
defense. Thus, in the states view, the standard necessity
instruction permissibly shifted the burden of proof to McGee.
The state further asserts that the right mentioned in
the criminal mischief statutes no right or reasonable ground
requirement bears no relationship to the defense of necessity.
According to the state, this requirement merely refers to
property rights. The state finds this limited meaning of right to
be implicit in the criminal mischief statutes provision
specifying that the crime occurs only when a person damages
property of another.9 Insisting that McGee had no legally
cognizable interest in Alexanders truck, the state reasons that
his necessity defense did not implicate any elemental right
addressed by the statute.
B. Analysis
The parties arguments require us to address two related
issues: first, we must consider the Alaska criminal codes general
provision dealing with the defense of necessity to determine
whether that provision always requires trial courts to treat
necessity as an affirmative defense; then we must consider the
criminal mischief statutes no right or reasonable ground
requirement to determine whether its use of the word right is
broad enough to allow a person to claim a right to damage
property of another on the ground that the damage was justified
under the defense of necessity.
1. Scope of the criminal codes necessity provision
The superior court gave McGees jury Alaskas standard
instruction on necessity. In keeping with the criminal codes
general provisions on justification,10 this instruction informed
the jury that McGee bore the burden of proving his claim of
necessity by a preponderance of the evidence.11
The trial courts decision to give this instruction
despite McGees objection that it shifted the burden of proof to
him suggests that the court viewed the codes justification
provisions as controlling the issue. The state adopts the same
view in its arguments here. While acknowledging that the
prosecution would have borne the burden of proof if the
circumstances had supported a claim of self defense,12 the state
asserts that necessity is entirely different from self defense
because [t]he Alaska legislature has defined necessity as an
affirmative defense. Because the law traditionally views
necessity as a legal excuse rather than as a defense negating a
necessary element of an offense, the state insists that applying
the codes general definition of necessity poses no constitutional
problem since [t]he prosecution was still held to its burden of
proving beyond a reasonable doubt [] all [of] the elements of the
criminal mischief charge.
The states position overlooks the specific language of
the codes necessity provision, AS 11.81.320. While section .320
adopts necessity as a form of justification and classifies it as
an affirmative defense, its provisions do not purport to be
exclusive. By its own terms, AS 11.81.320(a) establishes a
general definition of the defense meant to apply by default when
more specific statutes do not provide otherwise either by
plainly excluding the defense or by treating it differently in
the specific situation involved:
(a) Conduct which would otherwise be an
offense is justified by reason of necessity
to the extent permitted by common law when
(1) neither this title nor any
other statute defining the offense
provides exemptions or defenses
dealing with the justification of
necessity in the specific situation
involved; and
(2) a legislative intent to
exclude the justification of
necessity does not otherwise
plainly appear.[13]
Section .320s approach comports with the basic
principle of statutory construction favoring a specific provision
of a statute over a general one when the two conflict.14 It also
aligns with constitutional rulings that require the state to bear
the burden of proof beyond a reasonable doubt when a criminal law
specifically defines the absence of a defense as an ingredient of
the offense.15
As already noted, the specific criminal statute at
issue here, AS 11.46.482(a)(1), defines the offense of criminal
mischief to allow conviction only when property damage is
intentionally caused by a person having no right to do so or any
reasonable ground to believe the person has such a right.16 By
describing as an integral part of the offense the defendants lack
of a reasonable ground to believe that a right to damage anothers
property existed, the statutes plain language makes the absence
of any right or reasonable ground a necessary ingredient of
criminal mischief, thus requiring the state to bear the burden of
proof on the issue once it is raised. To the extent that this
allocation of the burden conflicts with the codes general
provision adopting necessity as an affirmative defense for the
defendant to prove, the criminal mischief statutes specific
requirement would prevail by the general provisions own terms,
since the criminal mischief law would be a statute defining the
offense in a manner that provides exemptions or defenses dealing
with the justification.17
2. Meaning of right as used in the criminal mischief
statute
It follows that the proper allocation of proof on
necessity in this case turns on the meaning of the criminal
mischief statutes right or reasonable ground to believe
provision. If that provision uses the word right broadly enough
to include claims of right based on legal justification, then the
criminal mischief statute would have required the state to
disprove McGees claim of necessity: if McGee had a reasonable
ground to believe that his actions were necessary, this belief
would have been a justification for causing the damage. On the
other hand, if the criminal mischief statutes no right or
reasonable ground element gives right a narrower meaning one
that excludes justifications then it would not require the state
to disprove necessity, and the criminal codes general necessity
provision would apply by default, making necessity an affirmative
defense.
The state takes the position that the element must be
given a narrow reading, contending that, as used in the criminal
mischief statute, right refers exclusively to property rights.
This position mirrors the view the state advanced in Seibold v.
State, a case in which the court of appeals found the trial
courts refusal to give a necessity instruction in a criminal
mischief case was reversible error.18 There the court of appeals
described the states brief as asserting that the language in
question merely exempted from prosecution a person who destroyed
his own property or who acted in good faith on the belief he had
authority to destroy the property.19 This view failed to persuade
the court of appeals in Seibold,20 and it fares no better here.
The narrow meaning proposed by the state finds no support in the
text of Alaskas criminal mischief provision, in the traditional
view of comparable property crimes, in our criminal mischief
statutes legislative history, or in cases interpreting New Yorks
criminal mischief law, the source of our statutes wording.
a. Textual meaning of right
As commonly understood and defined, the word right
means any interest or expectation guaranteed by law, not just an
interest or expectation relating to property.21 Since this
ordinary meaning of the word is broad enough to include
expectations guaranteed by laws adopting legal defenses and
justifications, the meaning the state proposes here that right
is limited to property rights is exceedingly narrow.
The criminal mischief statute itself suggests no such
limitation. To the contrary, by specifying that a person who
intentionally damages property of another commits the offense of
criminal mischief only when the person has no right to do so or
any reasonable ground to believe that such a right exists, the
language of the statute seemingly contemplates a broad,
comprehensive meaning of the word right.22
The state suggests that its proposed limitation arises
by implication from the criminal mischief statutes requirement
that criminal mischief must involve damage to property of
another. But we can glean no implied limitation of right from
this seemingly independent requirement. As defined in the code,
property of another means property in which [another] person has
an interest which the defendant is not privileged to infringe,
whether or not the defendant also has an interest[.]23 As a
preliminary matter, we note that the codes definition of property
of another does not even use the word right. Instead, it speaks
in terms of interests and privileges. This definition implies no
limitation on the criminal mischief statutes use of the word
right. In fact, to the extent that it implies anything
concerning the meaning of right, it suggests that the word is
flexible enough to include any privilege or interest allowing a
defendant to infringe on an owners property rights a meaning
broad enough to include common law privileges, which current
criminal law classifies as justifications.24
Nor does the criminal mischief statute draw any other
connection between its no right or reasonable ground to believe
requirement and its property of another requirement. The
statutes plain language imposes these two requirements
separately: they stand independently and serve different
purposes; neither requirement appears to qualify or define the
other.
By conflating the two requirements, the state in effect
proposes to make the no right or reasonable ground to believe
requirement superfluous. As we just noted, the code defines
property of another to mean property in which [another] person
has an interest which the defendant is not privileged to
infringe, whether or not the defendant also has an interest.25 By
definition, then, a person who causes property damage but has a
legitimate interest or privilege to do so would not be damaging
property of another. By the same token, because the criminal
mischief statute specifies that the defendant must act with
intent to damage property of another,26 the property of another
requirement on its own would prevent convicting a defendant who
acted with a reasonable but mistaken belief that a property
interest or privilege existed.
Thus, if the word right refers only to a property
right, as the state insists it does, the criminal mischief
statutes no right or reasonable ground to believe requirement
becomes mere surplusage: it adds nothing to the property of
another requirement that is not already there. Adopting this
interpretation would violate the maxim of statutory construction
that forbids interpreting statutory language in a way that makes
it superfluous: It is an elementary rule of construction that
effect must be given, if possible, to every word, clause and
sentence of a statute.27
b. Traditional view of similar property crimes
The states narrow interpretation of right also
conflicts with the traditional view of criminal laws dealing with
property damage. While the basis for requiring the state to
shoulder the burden of disproving necessity in a criminal
mischief case might seem obscure at first blush, the approach
makes more sense when we consider our current provisions
predecessor. Before Alaska adopted its revised criminal code,
the counterpart of our current criminal mischief offense was
called malicious mischief and destruction of property.28 Former
AS 11.20.515 defined this crime as occurring when a person
wilfully or maliciously destroys, defaces, injures or exposes to
injury real or personal property not his own.29
These statutory elements squarely placed the burden on
the state to prove not only that the defendant intentionally
damaged property not his own30 but also that the defendant did so
wilfully or maliciously subjective culpable mental states that
our case law commonly understood as requiring the state to prove
either a conscious awareness of wrongdoing31 or the intentional
commission of an unlawful act without justification or other
legal excuse.32
In requiring wilful or malicious conduct, then, the
malicious mischief statute effectively gave the state the burden
of proving that the defendant lacked any ground to believe that a
justification for committing the damage existed: by definition,
no wilful or malicious destruction could be found if the
defendant honestly believed that property damage was justified.
Professor Perkins confirms that this view of malicious
mischief was not peculiar to Alaska law; it reflected the
prevailing view of the crime:
[T]he element of malice, as the special
mental element of malicious mischief,
requires either a specific intent to cause
the destruction of, or substantial damage to,
the property of another, or an act done in
wanton and wilful disregard of the plain and
strong likelihood of such harm, without any
circumstances of justification, excuse or
substantial mitigation. Stated in other
words:
The mens-rea requirement of malicious
mischief is a property-endangering state of
mind, without justification, excuse or
mitigation.[33]
As it existed before Alaska enacted its revised
criminal code, then, the malicious mischief statute routinely
required the state to prove that the defendant intentionally
damaged another persons property without justification, excuse,
or mitigation.34 Moreover, because the former statutes
requirement of malicious or wilful destruction turned on the
defendants subjective state of mind, it exempted any person who
acted on the basis of a genuine but mistaken belief that a
justification existed, no matter whether the belief was
reasonable or patently unreasonable.
When viewed against this historical backdrop, the
changes incorporated in the revised codes criminal mischief
provision appear to reflect a desire to narrow the malicious
destruction laws broad exemption for all conduct based on
mistaken beliefs by replacing the requirement of malice or
wilfulness with an objective test that would exempt mistaken
beliefs as to justification only when the defendant had
reasonable grounds for so believing. The codes no right or
reasonable ground requirement appears tailored to meet this goal:
it adopts a predictable and objective substitute for malice and
wilfulness that relaxes the burden borne by the state under the
criminal mischief law by eliminating the former laws built-in
exemption of conduct grounded on a defendants genuine but
unreasonable beliefs.
c. Legislative history of Alaskas current
statute
This view of our current laws no right or reasonable
ground requirement also comports with the legislative history of
Alaskas current statute. In a sectional analysis accompanying the
tentative draft of the revised criminal code, the codes authors
described the tentative drafts property-damage provisions as
generally striving to eliminate [t]he needless proliferation of
overlapping statutes which carry inconsistent penalty provisions
covering damage to or tampering with property.35 Other commentary
specifically addressing early versions of the criminal mischief
statutes no right or reasonable ground language supports the view
that this requirement worked toward the tentative drafts general
goal by replacing malice and wilfulness with a uniform test
designed to avoid rewarding unreasonable mistakes.
The earliest tentative version of the Alaska revised
codes current provision, drafted in 1976, included a shortened
form of the no right or reasonable ground requirement that
omitted the current phrase any reasonable ground to believe; this
shortened form required the state to prove only that a defendant
intentionally damaged the property of another having no right to
do so.36 The commentary accompanying this shorter version
explained that its drafters believed that it would narrow the
existing exemption for mistaken conduct by making the new
criminal mischief law cover any mistaken belief that was
unreasonable, even if it was honestly held: Under this draft, one
who honestly but unreasonably believes he has a right to deal
with property in the way he does is covered.37
A year later, the 1977 version of the tentative draft
modified the 1976 preliminary version by adding the phrase or any
reasonable ground to believe he has such a right.38 This change
made explicit the intent described in the 1976 commentary by
specifying that mistaken beliefs would only be excused if they
were reasonable.39 The commentary to the 1977 version
specifically noted that its new wording extended to all levels of
criminal mischief: Common to each degree of criminal mischief is
the requirement that the defendant have no right nor any
reasonable ground to believe he has a right to interfere with the
property.40
By emphasizing that all of the codes criminal mischief
provisions incorporated this new language, the 1977 commentary
makes it clear that its drafters intended to narrow the malicious
mischief statutes subjective exemption for mistaken beliefs by
uniformly defining the elements of criminal mischief so that no
form of the offense would require the state to prove the absence
of unreasonable mistakes.41 But nothing in the commentary
suggests any intent to narrow the then-existing law even further
by adopting a restricted meaning of the word right that would
completely eliminate the states traditional duty to rule out
justification. To the contrary, by describing the new phrase as
a requirement that the defendant act with no right or any
reasonable ground for believing in the existence of a right to
interfere, the commentary strongly signaled that its drafters
intended right to include more than just a privilege or interest
deriving from the propertys owner.
d. Cases construing New Yorks criminal mischief
law
The 1977 tentative drafts version of the criminal
mischief provision marked the first appearance in Alaskas revised
code of language approximating the codes current no right or any
reasonable ground requirement. The requirements phrasing was
evidently drawn from almost identical language appearing in New
York law.42 New York Penal Law 145 states in relevant part that
[a] person is guilty of criminal mischief . . . when, having no
right to do so nor any reasonable ground to believe that he has
such right, the person intentionally damages the property of
another.43
New York courts have consistently treated 145s no
right or reasonable ground requirement as an essential element of
criminal mischief and have not confined the requirement to
mistakes involving property rights. In People v. Kheyfets, for
example, the court recognized that New Yorks criminal mischief
statute differs from those applied in other states in that it has
one additional element: that the person has no right nor any
reasonable ground to believe that he has the right to damage
anothers property.44 The court further held that this element
gives the state the burden of proving that a defendants belief
was not reasonable.45 Similarly, in People v. Reed, a New York
court observed that the relevant statutory provision governing
criminal mischief requires a showing that, inter alia, the
defendant had no right to damage the property and that he had no
reasonable ground to believe that he had such right.46 New Yorks
case law thus provides no support for the states narrow
interpretation.
3. Proper scope of the states burden of
proof
Because the text, context, and history of the criminal
mischief statute provide no support for the narrow meaning of
right proposed by the state, we conclude that the criminal
mischief statutes phrase having no right to do so or any
reasonable ground to believe the person has such a
rightencompasses any reasonable ground to believe that a legal
justification for causing the alleged property damage existed.
And since AS 11.46.482(a) unambiguously defines the essential
elements of criminal mischief to include the absence of any
reasonable ground to believe the person has such a right, we
further conclude that the state bears the burden of proof on this
element once an issue of justification is raised. Thus, if McGee
properly placed the defense of necessity in issue, the state bore
the burden of proving beyond a reasonable doubt that he had no
reasonable ground to believe that his actions were necessary for
self-protection.
C. Remaining Issues
Our interpretation of the criminal mischief statute
leaves two questions to consider: whether McGee properly raised
the defense of necessity and whether misallocating the burden of
proving necessity to McGee amounted to harmless error.
1. The some evidence test
A defendant who seeks to raise a defense ordinarily
must present some evidence to place the defense in issue.47 Some
evidence is evidence that, viewed in the light most favorable to
the defendant, would allow a reasonable juror to find in the
defendants favor on each element of the defense.48
Although the criminal code specifically recognizes the
defense of necessity, the codes provisions do not define the
defenses substantive elements, simply adopting the defense to the
extent permitted by common law.49 Our cases have recognized that
an otherwise unlawful act may be justified by necessity when
three elements are met: (1) the act was committed to prevent a
significant evil; (2) no adequate alternative existed; and (3)
the harm caused was not disproportionate to the harm avoided.50
The first two elements are determined by considering what the
defendant reasonably believed at the time the necessity arose an
inquiry that usually presents issues of fact for the jury.51 The
third element requires an objective comparison of the relative
seriousness of the harms caused and avoided when viewed in light
of the facts perceived by the defendant.52
In this case, when the superior court proposed to rule
that McGee had presented enough evidence to raise the defense,
the prosecutor agreed, stating his impression that if the court
failed to instruct the jury on the defense, jurors would
inevitably reach the issue on their own as sort of common sense.53
The record supports the view that McGee fairly raised the
defense. As we pointed out earlier, McGee testified at trial
that as he fled from the trailer after escaping from Alexanders
attack, Alexander threatened to run him over. McGee contended
that he took this threat seriously. On cross-examination he
insisted that Alexanders irrational behavior and unprovoked
violence had frightened him and caused him to believe that he
needed to break the trucks windows to prevent Alexander from
carrying out his threat. He also suggested that, because of the
fear and surprise he felt at the time, he saw no alternative
course of action.
When viewed in the light most favorable to McGee, his
testimony qualifies as some evidence placing the first two
elements of necessity in issue: the harm McGee feared was freshly
threatened and serious; and considering the shock and surprise
McGee described, his testimony raised a question of fact whether,
at the time of the damage, he reasonably failed to recognize
other available options.
McGees testimony also addressed the third element of
the defense, the proportionality requirement. As noted above,
even though we exercise independent legal judgment in ruling on
proportionality, we must view the facts from the defendants point
of view under the circumstances existing when the disputed action
occurred. Here, McGee claimed that he caused the property damage
to avoid a potentially serious physical injury just threatened by
Alexander. Viewing the situation from McGees perspective and
considering his testimony suggesting that the panic of the moment
blinded him to various alternative courses of action, we see no
basis for declaring as a matter of law that the physical damage
he caused to the truck was disproportionate to the serious
physical injury he feared at the time.54
In short, we conclude that rational jurors could have
differed as to whether the totality of the evidence raised a
reasonable doubt based on McGees claim of necessity.
2. Harmless error
The state does not claim harmless error; nor would the
record support such a claim. By misallocating the burden of
proving necessity to McGee, Jury Instruction Number 9 confronted
McGees attorney with an awkward dilemma in arguing McGees case to
the jury. On the one hand, the jury instruction describing the
statutory elements of criminal mischief seemingly gave the state
the burden of negating McGees claim that he had acted out of a
reasonable belief that he had a right to damage the truck.55 On
the other hand, Instruction Number 9 specifically told the jury
that, while [t]he state has the burden of proving beyond a
reasonable doubt all necessary elements of an offense as well as
the absence of defenses that have been raised . . . the defendant
has the burden of establishing the affirmative defense of
necessity by a preponderance of the evidence.
In arguing its case to the jury, the prosecution
pointed out that the criminal mischief statutes no right or
reasonable ground to believe requirement dealt with the defense
of necessity. After reminding jurors that McGee had the burden
of proving this defense by a preponderance of the evidence, the
prosecution emphatically argued that McGee had failed to meet his
burden: [T]he no right or no reasonable ground to believe you
have such a right is talking about necessity. I[t] i[s] because
necessity is that reasonable ground to believe that you have []
such a right. Its not present in this case. It has not been
proved by a preponderance [of the evidence.]
Forced to respond as best she could, McGees counsel
initially tried to describe the no right or reasonable ground
requirement as an element of the crime that the state had to
prove: The first element is that the defendant that the state
has to prove that the defendant had no right or any reasonable
grounds to believe in a right that to commit the act charged.
But later, in attempting to reconcile this view with the
necessity instruction, McGees counsel had to acknowledge that the
necessity instruction ultimately shifted the burden from the
state to McGee:
[S]o to recap, the state has the burden of
proving that the defendant has no right or
any reasonable ground to believe in a right
to commit this act of criminal mischief. But
we do have the burden of showing that by a
preponderance of the evidence, which is [less
than] proving beyond a reasonable doubt, but
proving that its more likely than not that
necessity applies in this case. In other
words, that the act charged, the criminal
mischief, was done to present prevent a
significant evil.
Despite McGees trial counsels best efforts to overcome
the disadvantage of the misallocated burden, then, the only
argument she could muster was essentially that the state would
have the burden of proof on the no right or reasonable ground
requirement, but only if McGee first met his burden of proving
necessity.
The jury acquitted McGee of assaulting Alexander but
convicted him of criminal mischief. The split verdicts suggest a
likelihood that the instruction shifting the burden of proof on
necessity played a substantial part in McGees conviction.
Considering these circumstances, we see no basis for holding that
the error in giving McGee the burden of proof on necessity was
harmless.
IV. CONCLUSION
Alaska law defines the essential elements of criminal
mischief to require proof of intentional damage to property of
another caused by a person having no right to do so or any
reasonable ground to believe that the person had such a right.56
Because we conclude that the right to cause damage addressed by
this element of the offense includes a claim of right based on a
legal justification such as the defense of necessity, we hold
that McGee was improperly required to bear the burden of proof on
his claim of necessity. We therefore REVERSE the conviction and
REMAND for further proceedings consistent with this opinion.
MATTHEWS, Justice, dissenting.
I agree with todays holding that the state had the
burden to prove beyond a reasonable doubt that McGee lacked any
reasonable ground to believe his act was justified. I
nonetheless dissent because the facts viewed most favorably to
him did not support a necessity defense. The superior courts
error as to the burden of proving the defense was therefore
harmless.
The elements of necessity are: 1) the act charged must
have been done to prevent a significant evil; 2) there must have
been no adequate alternative; 3) the harm caused must not have
been disproportionate to the harm avoided.1 As the court notes,
a defendant must present some evidence to adequately raise the
defense.2 Some evidence is evidence in light of which a
reasonable juror could have entertained a reasonable doubt . . .
as to the element in question.3 To determine whether this test
has been met in a particular case the court must view the
evidence in the light most favorable to the defendant.4 I do not
believe that McGee presented evidence that could cause a
reasonable juror to entertain a doubt about whether McGees
destruction of the truck windows was justified by necessity.
McGees story is implausible. At trial he told the jury
that Anderson threatened to run him over after they scuffled. So
he broke the trucks windows so that Anderson would not be able to
see McGee well enough to hit him with the truck. While a
reasonable juror could conceivably find, as the court suggests,
that the panic of the moment blinded him to various alternative
courses of action,5 McGees explanation is still dubious at best.
McGee had a multitude of more reasonable, not to mention more
effective, options at hand, the most obvious of which would have
been to stay off the road and seek immediate help.6 Furthermore,
the question presented to the jury would not have been whether
McGee subjectively believed that there were legal alternatives,
but whether this belief was objectively reasonable. It is highly
unlikely that, even viewing the evidence in the light most
favorable to McGee, any juror would entertain a reasonable doubt
regarding the second element of the necessity defense that there
were no adequate alternatives to breaking the windows.7
Even if McGee satisfied the some evidence standard with
respect to the second element of necessity, he definitely did not
do so with respect to the first element. A closer look at what
he actually did to the truck makes it clear that no reasonable
juror could entertain a doubt about whether McGee reasonably
believed his actions were done to prevent a significant evil.8
The vast majority of the damage done to Andersons truck would not
have impaired Andersons ability to target and run over a
pedestrian, which renders McGees explanation unbelievable.
If McGee was really trying to make it difficult for
Anderson to see out of the truck, one would expect a great deal
of damage to the drivers side of the front windshield. Yet,
photographs show that McGee concentrated his front windshield
destructive efforts largely on the passengers side. Although he
did smash a portion of the drivers side, he left a large area of
untouched glass through which a driver could easily see.
Further, McGee smashed out at least two of the trucks
rear window panels and three out of four of the trucks side
windows. These acts of destructive mischief might make the truck
more drafty but they could not have been meant to reduce
visibility and thus thwart a vengeful driver. First, the windows
were on the side and the back of the truck, so it would not have
significantly hampered the drivers ability to aim the truck at
someone in front of him. Second, McGee completely broke out all
of the glass, so Anderson would have had no trouble seeing
through the windows. There are numerous cases that indicate that
a successful necessity defense must establish a direct causal
relationship reasonably anticipated between the criminal action
taken and the avoidance of the threatened harm.9 There is
plainly no direct causal relationship between breaking the side
and rear windows and stopping the harm McGee claims he was trying
to avoid.
The lack of a causal relationship between breaking the
side and rear windows and stopping Anderson from running over
McGee causes McGees necessity defense to fail the some evidence
test. First, the fact that he had no reason for breaking those
windows completely undermines his proffered explanation regarding
the front windshield. If his goal really was to reduce
visibility, why would he have risked encountering an angry
Anderson by expending considerable time and energy in order to
completely break out the other five windows? These actions are
not in any way consistent with his story and render his story
unbelievable.
Second, the destruction of the side and rear windows,
viewed in isolation, is sufficient to establish liability. The
defense of necessity, like self-defense, is based on the belief
that one should not be convicted of a crime when there is no
reasonable alternative to committing it. It is a law of
necessity, arising only when the necessity begins, and equally
ends with the necessity.10 In self-defense no more force than
appears reasonable to repel a threat may be used.11 Likewise, no
greater destruction of property than appears reasonably necessary
to repel a threat can be justified by the defense of necessity.
When greater force, or more destruction, than reasonable is used,
necessity-based defenses are not available as to the conduct that
exceeds the justification.12 Whether these limits are exceeded
will be a jury question, except when no reasonable juror could
conclude otherwise. Here that is precisely our situation. As is
discussed above, while a juror might accept McGees contention
that he bashed in the trucks windshield so that Anderson could
not see well enough to pursue him, no similar justification is
available as to the destruction of the trucks side and rear
windows. Since the malicious destruction crime is complete in
terms of the required value of property destroyed when only the
side and rear windows are considered,13 there was no need for an
instruction on the necessity defense. Thus, the error the
instruction contained was harmless.
For these reasons, I do not believe that McGee
presented sufficient evidence to raise the defense of necessity.
Since no instruction on the defense was needed, the error in the
instruction that was given is harmless. I would therefore affirm
McGees conviction of criminal mischief.
_______________________________
1 AS 11.46.482(a).
2 McGee v. State, 95 P.3d 945, 947 (Alaska App. 2004).
3 Id.
4 Id.
5 Id.
6 McGee v. State, No. S-11611, Petition for Hearing Order
at 1 (December 27, 2004).
7 AS 11.46.482(a) states in relevant part:
A person commits the crime of criminal
mischief . . . if, having no right to do so
or any reasonable ground to believe the
person has such a right, . . . with intent to
damage property of another, the person
damages property of another in an amount of
$500 or more.
At the time of the incident at issue here, section .482
designated the level of this offense as second-degree criminal
mischief. The following year in 2002 the legislature
redesignated section .482 as covering third-degree criminal
mischief but did not alter the provisions substantive elements or
the applicable penalties. Ch. 92, 9-11, SLA 2002. Since the
amendment has no bearing on McGees case, this opinion cites
subsection .482(a) as though it remained unamended.
8 See AS 11.46.475.486. Cf. Seibold v. State, 959 P.2d
780, 784 n.2 (Alaska App. 1998).
9 AS 11.46.482(a).
10 See AS 11.81.320 (adopting necessity as a justification
to the extent permitted at common law and classifying it as an
affirmative defense); see also AS 11.81.900(b)(2)(B) (defining
affirmative defense as requiring defendants to prove the defense
by a preponderance of the evidence).
11 Jury Instruction No. 9 stated in relevant part:
The defendant has raised the affirmative
defense of necessity with respect to Count 1,
the charge of criminal mischief in the second
degree. The defendant normally has no burden
of proof in a criminal case. The state has
the burden of proving beyond a reasonable
doubt all necessary elements of an offense as
well as the absence of defenses that have
been raised. However, the defendant has the
burden of establishing the affirmative
defense of necessity by a preponderance of
the evidence.
12 The criminal code classifies self defense as a defense,
AS 11.81.300 .330, and requires the state to bear the burden of
disproving a defense once it is placed in issue. AS
11.81.900(b)(19).
13 AS 11.81.320(a).
14 2A Norman J. Singer, Statutes and Statutory
Construction 46:05, at 177 (6th ed. 2000) (Where there is
inescapable conflict between general and specific terms or
provisions of a statute, the specific will prevail.); see also
Allen v. Alaska Oil & Gas Conservation Commn, 147 P.3d 664, 668
(Alaska 2006) (In general, if two statutes conflict . . . the
specific controls over the general.).
15 State v. McCullum, 656 P.2d 1064, 1068 (Wash. 1983),
abrogated on other grounds by State v. Camara, 781 P.2d 483, 487
(Wash. 1989) (citing Patterson v. New York, 432 U.S. 197, 206-07
(1977)); cf. Blackhurst v. State, 721 P.2d 645, 648 (Alaska App.
1986) (requiring state to bear burden of proving lack of
justification when statute requires defendant to act without
justification); Taylor v. State, 710 P.2d 1019, 1021 (Alaska App.
1985) (language specifying that conduct must be without lawful
excuse requires state to disprove excuse).
16 AS 11.46.482(a).
17 AS 11.81.320(a)(1).
18 Seibold v. State, 959 P.2d 780, 783 (Alaska App. 1988).
19 Id. at 784.
20 The court of appeals found both parties briefing on
this point not helpful and declined to decide the issue. Id.
21 Blacks Law Dictionary at 551 (Bryan A. Garner ed.,
pocket ed. 1996) (A right is [a]n interest or expectation
guaranteed by law; for every right that a person has, somebody
else has a corresponding duty.).
22 AS 11.46.482(a) (emphasis added).
23 AS 11.46.990(13).
24 See, for example, Model Penal Code 3.10 & cmt.
(1985). Section 3.10 broadly defines justification in property
crimes to cover any conduct damaging property under circumstances
that would establish a defense of privilege in a civil action
based thereon; the accompanying commentary describes the breadth
of this justification as both proper and necessary.
25 AS 11.46.990(13).
26 AS 11.46.482(a)(1).
27 2A Norman J. Singer, Statutes and Statutory
Construction 46:06, at 181 (6th ed. 2000); see also Mechanical
Contractors of Alaska, Inc. v. State, Dept of Pub. Safety, 91
P.3d 240 (Alaska 2004) (When we engage in statutory construction
we will presume that the legislature intended every word,
sentence, or provision of a statute to have some purpose, force,
and effect, and that no words or provisions are superfluous. ).
28 Former AS 11.20.515.
29 Alaska Criminal Code Revision Part IV, at 19 (Tent.
Draft 1977).
30 This requirement was the equivalent of the current
criminal mischief provisions property of another requirement.
See AS 11.46.482(a).
31 See, e.g., Hentzner v. State, 613 P.2d 821, 827 (Alaska
1980) (construing wilful to require awareness of wrongdoing as an
essential element of the offense).
32 See, e.g., Tarnef v. State, 512 P.2d 923, 929 & n.9
(Alaska 1973) (approving jury instruction defining malice stating
that [m]alice exists when a defendant intentionally does an
unlawful act without justification or other legal excuse).
33 Rollin M. Perkins & Ronald N. Boyce, Criminal Law, ch.
4, 7, at 413 (3d ed. 1982) (emphasis in original).
34 Id.
35 Alaska Criminal Code Revision Part IV, at 20 (Tent.
Draft 1977).
36 Alaska Criminal Code Revision Preliminary Report, at 90-
91 (1976), available at Seibold, 959 P.2d at 784 n.2.
37 Preliminary Report, at 92, available at Seibold, 959
P.2d at 784 n.2.
38 Alaska Criminal Code Revision Part IV, at 16-17,
available at Seibold, 959 P.2d at 784 n.2.
39 Alaska Criminal Code Revision Part IV, at 16-17,
available at Seibold, 959 P.2d at 784 n.2.
40 Alaska Criminal Code Revision Part IV, at 21, available
at Seibold, 959 P.2d at 784 n.2.
41 Arguably, the commentarys explanation that this
language applied to all classes of criminal mischief might also
provide insight to the basis for the revised codes otherwise
curious omission of any justification provision allowing self-
defensive conduct toward property: when broadly applied, the no
right or reasonable ground requirement would act as an offense-
specific surrogate for a general property crimes justification
provision allowing a person to act in self defense by disabling
an assailants property rather than the assailant. Compare, e.g.,
Model Penal Code 3.10 (1985) (broadly allowing justification to
be claimed in a prosecution for any property crime involving
damage to property when the conduct damaging the property
occurred under circumstances that would establish a defense of
privilege in a civil action based thereon).
42 Seibold v. State, 959 P.2d 780, 784 n.2 (Alaska App.
1998); see also Neitzel v. State, 655 P.2d 325, 327 (Alaska App.
1982) (The Tentative Draft [of the Alaska Revised Criminal Code]
prepared by the Subcommission on Criminal Law was based on a
number of recent state codifications of criminal law. These codes
in turn were substantially derived from the New York Revised
Penal Code of 1965.).
43 E.g., N. Y. Penal Code 145 (1998).
44 People v. Kheyfets, 665 N.Y.S.2d 802, 805 (N.Y. Sup.
Ct. 1997).
45 Id.
46 People v. Reed, 503 N.Y.S.2d 624, 625-26 (N.Y. App.
Div. 1986). See also People v. Cantalino, 632 N.Y.S.2d 445, 448
(N.Y. Crim. Ct. 1995) (dismissing criminal mischief charge that
accused the defendant of damaging a door while attempting to
serve a court order, ruling that the language of the order gave
the defendant a reasonable ground to believe that she had the
right to do what was reasonably necessary to serve the order,
which resulted in the alleged property damage).
47 See, e.g., Seibold, 959 P.2d at 782 (A defendant is
entitled to a jury instruction on the necessity defense if he
presents some evidence in support of each of the three elements
of the defense.). Compare AS 11.81.900(b)(2)(A) (defining
affirmative defense) and (b)(19)(A) (defining defense), which
both include a threshold requirement that some evidence must be
admitted which places in issue the defense.
48 Seibold, 959 P.2d at 782-83.
49 AS 11.81.320(a).
50 See, e.g., Cleveland v. Municipality of Anchorage, 631
P.2d 1073, 1078 (Alaska 1981). In cases involving continuing
offenses such as driving offenses or escape, the court of appeals
has recognized that the defendant must also present some evidence
tending to show that the violation stopped as soon as the
necessity ended. See Allen v. State, 123 P.3d 1106, 1108 (Alaska
App. 2005) (citing 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, 350-51 (Alaska App. 1984)).
51 See id. (Jury must determine that the defendant
reasonably believed at the time of acting that the first and
second elements were present, even if that belief was mistaken.).
52 Id. (holding that, as to the third element, [a]n
objective determination must be made as to whether the defendants
value judgment was correct, given the facts as he reasonably
perceived them); accord Seibold, 959 P.2d at 782; Bird v.
Municipality of Anchorage, 787 P.2d 119, 121 (Alaska App. 1990).
53 The states briefing before this court is silent on the
point, and its briefing before the court of appeals similarly
omitted any argument that McGee failed to present sufficient
evidence to raise the defense of necessity.
54 The dissent finds that McGees story is implausible.
Dissent at 30. Yet our case law applying the some evidence test
has emphasized that [a]ny weakness or implausibility in the
evidence supporting [the defendants] story is not a relevant
consideration. Toomey v. State, 581 P.2d 1124, 1126 n.10 (Alaska
1978). More specifically, in the analogous context of self-
defense, Alaska case law has also emphasized that, [p]articularly
because reasonableness is a factual question closely allied with
considerations involving the credibility of witnesses and the
weight to be given to their testimony, trial courts must avoid
basing decisions as to the necessity of self-defense instructions
on an evaluation of the reasonableness of defendants
conduct. . . . It is not the province of the judge to weigh the
evidence and decide if defendants subjective belief was
reasonable or unreasonable. Paul v. State, 655 P.2d 772, 778
(Alaska App. 1982) (internal citations omitted) (quoting State v.
Lockett, 413 N.E.2d 378, 382 (Ill. 1980)).
The dissent also likens McGees conduct to a continuing
offense and suggests that he should have been required to justify
his conduct as to each damaged window by presenting some evidence
that the particular damage was necessary. Dissent at 33-34 n.12.
But McGee was not convicted of a continuing offense; he was
convicted for engaging in a brief course of conduct involving
several discrete but closely connected acts of destruction. This
court has declined to parse conduct of this kind as though it
involved multiple crimes, holding instead that [w]e view [such]
events as a series of acts, in a short and continuous sequence,
which amount to a unitary criminal episode. Mill v. State, 585
P.2d 546, 552 (Alaska 1978); cf. AS 11.46.980(c) (requiring
aggregation of property damage for purposes of determining
classification of a property crime that involves multiple
criminal acts committed under one course of conduct). Because
Alaska law views McGees short and continuous sequence of
destructive acts as a unitary criminal episode, McGees claim of
necessity which included his testimony indicating that he acted
in a panicked state of mind triggered by Alexanders sudden,
unprovoked attack and express threat of imminent death suffices
to meet the some evidence test. To be sure, McGees multiple acts
of destruction might have weakened his claim and made it less
plausible in the eyes of the jury. But as we have already noted,
weakness or implausibility . . . is not a relevant consideration.
Toomey, 581 P.2d at 1126 n.10.
55 Jury Instruction Number 8 stated, in relevant part:
To prove that the defendant committed the
crime of criminal mischief in the second
degree, the state must prove each of the
following elements beyond a reasonable doubt:
1. the defendant had no right or any
reasonable ground to believe in a right
to commit the acts charged;
2. the defendant intended to damage property of
another;
3. the defendant damaged property of another; and
4. the property was damaged in an amount of $500 or
more.
56 AS 11.46.482(a).
1 Nelson v. State, 597 P.2d 977, 979 (Alaska 1979). The
defense is established if the accused reasonably believed at the
time of acting that the first and second elements were present,
but a reasonable belief will not suffice for the third element;
the court makes an objective determination . . . as to whether
the defendants value judgment was correct, given the facts as he
reasonably perceived them. Seibold v. State, 959 P.2d 780, 782
(Alaska App. 1998).
2 Slip Op. at 22.
3 Folger v. State, 648 P.2d 111, 113 (Alaska App. 1982)
(quoting LaLonde v. State, 614 P.2d 808, 810 (Alaska 1980)).
4 Seibold, 959 P.2d at 783. The court points to language
in Toomey v. State that states that when determining whether
there is some evidence to support a defense, [a]ny weakness or
implausibility in the evidence supporting [the defendants] story
is not a relevant consideration. Slip Op. at 25 n.54 (citing
Toomey v. State, 581 P.2d 1124, 1126 n.10 (Alaska 1978)).
However, this language must be read in conjunction with the some
evidence test. If this court cannot consider a weakness or
implausibility in a defendants story that is so glaring as to
render the defendants story such that no reasonable person could
entertain a reasonable doubt about it, then the Toomey exception
would make the some evidence rule meaningless. In fact, the
language in Toomey relies on Brooke v. United States, 385 F.2d
279, 284 (D.C. Cir. 1967), as well as a dissenting opinion by
Justice Rabinowitz in Wilson v. State, 473 P.2d 633, 638 n.2
(Alaska 1970), which also relies on Brooke. The Brooke court
does state that no weakness or implausibility should be
considered, but it only applied this rule to cases where there is
already evidentiary support for special facts sustaining a
rational defensive theory. 385 F.2d at 284 (emphasis added).
5 Slip Op. at 24.
6 McGee testified that he knew that a friend of his was
home only a block away.
7 Nelson, 597 P.2d at 979. There are several Alaskan
cases holding that a defendant did not properly raise the defense
of necessity that emphasize the availability of adequate
alternatives. E.g., Gerlach v. State, 699 P.2d 358, 361 (Alaska
App. 1985); Schnabel v. State, 663 P.2d 960, 966 (Alaska App.
1983); Nelson, 597 P.2d at 980.
8 Nelson, 597 P.2d at 979.
9 United States v. Butler, 485 F.3d 569, 572 (10th Cir.
2007); also, e.g., United States v. Poe, 442 F.3d 1101, 1104 (8th
Cir. 2006); United States v. Cervantes-Flores, 421 F.3d 825, 829
(9th Cir. 2005); United States v. Johnson, 416 F.3d 464, 468 (6th
Cir. 2005); United States v. Dixon, 413 F.3d 520, 523 (5th Cir.
2005); United States v. Nelson-Rodriguez, 319 F.3d 12, 40 (1st
Cir. 2003); United States v. Salgado-Ocampo, 159 F.3d 322, 326
(7th Cir. 1998); United States v. Perrin, 45 F.3d 869, 874 (4th
Cir. 1995).
10 Harper v. United States, 608 A.2d 152, 154 (D.C. 1992)
(quotations omitted).
11 E.g., State v. Walker, 887 P.2d 971, 978 (Alaska App.
1994) (citing P. Robinson, Criminal Law Defenses 131(c), vol. 2,
p. 77 (1984)); United States v. Biggs, 441 F.3d 1069, 1071 (9th
Cir. 2006); People v. Rodriguez, 631 N.E.2d 427, 430 (Ill. App.
1994); Martin v. State, 784 N.E.2d 997, 1006 (Ind. App. 2003);
Jones v. State, 745 A.2d 396, 403 (Md. 2000); Com. v. Haddock,
704 N.E.2d 537, 540 (Mass. App. 1999); State v. Bland, 337 N.W.2d
378, 381 (Minn. 1983); State v. Habermann, 93 S.W.3d 835, 837
(Mo. App. 2002); State v. Colon, 689 A.2d 1359, 1363 (N.J. Super.
App. Div. 1997); Baier v. State, 891 P.2d 754, 758 (Wyo. 1995); 6
Am. Jur. 2d Assault & Battery 57 (1999).
12 Cf. Martin, 784 N.E.2d at 997 (noting that [w]here a
person has used more force than necessary to repel an attack the
right to self-defense is extinguished, and the ultimate result is
that the victim then becomes the perpetrator) (quotations
omitted); People v. Carrera, 725 N.Y.S.2d 344, 346 (N.Y. App.
Div. 2001) (Even if a defendant is initially justified in using
deadly physical force in self-defense, if he or she continues to
use deadly physical force after the assailant no longer poses a
threat, a jury may find that the defendant is no longer acting in
self-defense. Where homicide is charged, the People must prove
that it was the excessive force which caused death.); 2 Charles
E. Torcia, Whartons Criminal Law 190, at 453 (15th ed. 1993)
(If a defendant uses more force than is reasonably necessary to
defend himself, he is guilty of battery.); 6A C.J.S. Assault 28
([W]hen a person responds to an attack by using more force than
is necessary to repel the aggression or apparent aggression, he
or she is liable for injuries caused by the unnecessary force.).
Similarly, under our necessity jurisprudence, a person claiming
necessity in justification of a continuing offense must offer
some evidence that the continued violation of the law as well as
the initial violation was justified. Reeve v. State, 764 P.2d
324, 326 (Alaska App. 1988). It would be highly undesirable to
establish a precedent suggesting that, even though a defendant
must use only the force necessary when claiming self-defense and
a defendant must take only the actions necessary when relying on
necessity in the context of a continuing offense, a defendant
need not show any such circumspection when relying on a necessity
defense for a non-continuing offense.
13 A person commits the crime of criminal mischief . . .
if, having no right to do so or any reasonable ground to believe
the person has such a right, . . . with intent to damage property
of another, the person damages property of another in an amount
of $500 or more. AS 11.46.482(a). The cost of replacing just
the side and rear windows was over $1,200. These acts are
therefore in and of themselves sufficient to establish the
elements of criminal mischief.
 |
| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
|
