Opinion
Court of Appeals No. A-9792.
July 23, 2008.
Appeal from the District Court, Third Judicial District, Palmer, John Wolfe, Judge, Trial Court No. 3PA-06-1623 CR.
Meagan B. Dolleris, Assistant Public Defender, Anchorage, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Blair M. Christensen, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
David Bragg II was arrested after he drove his car while he was intoxicated in an effort to intercept his sixteen-year-old daughter, who had left home and was on her way to see her boyfriend. At trial, Bragg tried to raise a necessity defense, arguing that his daughter had serious psychological problems and that he had violated the law only to prevent the greater evil of his daughter attacking someone or being attacked herself. The district court precluded the necessity defense. Because Bragg did not offer enough evidence to entitle him to a necessity defense, we affirm the district court's decision.
Facts and proceedings
On July 6, 2006, at about 10:30 in the evening, Alaska State Trooper Phillip Duce responded to a report of a male in a vehicle chasing down a female on a bike path along the Parks Highway in Wasilla. When Trooper Duce arrived on the scene, he saw a vehicle parked in a driveway off the highway. A man, later identified as David Bragg II, was hugging his sixteen-year-old daughter, who was crying. Trooper Duce asked Bragg about his driving, and Bragg admitted to slamming on his brakes and sliding through the intersection of the Parks Highway and Vine Road. Bragg explained that he had been watching his daughter on the bike path and that he did not become aware of the intersection until it was too late to stop properly. He told Trooper Duce he was trying to prevent his daughter from going to see her boyfriend. But Bragg later agreed to let his daughter see her boyfriend, and a trooper apparently drove her up the road and dropped her off to meet her ride.
Trooper Duce observed that Bragg had bloodshot, watery eyes and an odor of alcoholic beverages. He administered field sobriety tests and then arrested Bragg for driving while under the influence. Bragg was transported to the trooper station for a breath test, which showed a blood alcohol level of .085 percent.
AS 28.35.030(a).
On the first day of trial, the State moved to preclude Bragg from raising the affirmative defense of necessity. Bragg made an offer of proof on this issue. He said he drove while intoxicated to avoid potential harm to his daughter, who he claimed had severe psychological issues and had stopped taking her medication. Bragg further claimed that he had a physical disability and his only option was to pursue his daughter by car. Based on this offer of proof, District Court Judge John Wolfe initially held that Bragg could present the defense, but he told the State he would be willing to revisit the issue before closing arguments.
The State filed a motion for reconsideration the next day, which Judge Wolfe ruled on at the close of the State's case. The judge granted the motion and reversed his earlier decision, ruling that Bragg was not entitled to present a necessity defense.
Bragg then testified in his defense. He told the jury that his daughter was prone to violent emotional problems and that she had been off her medication on the evening at issue in this case. Bragg testified that when his daughter left the house that evening, he was afraid she would hurt someone or get "raped, beaten, molested, and left [for] dead."
The court did not instruct the jury on the necessity defense, and the jury convicted Bragg of driving while under the influence. Bragg appeals.
Why Bragg was not entitled to present a necessity defense
To establish a necessity defense, the defendant must show that: (1) the act charged was done to prevent a significant evil; (2) there was no adequate alternative; and (3) the harm caused was not disproportionate to the harm avoided. The first two elements are established if the defendant reasonably believed that those elements were present, even if that belief was mistaken. As to the third element, the court must make "an objective determination . . . as to whether the defendant's value judgment was correct, given the facts as [the defendant] reasonably perceived them."
Cleveland v. Anchorage, 631 P.2d 1073, 1078 (Alaska 1981).
Nelson v. State, 597 P.2d 977, 979 (Alaska 1979); Seibold v. State, 959 P.2d 780, 782 (Alaska App. 1998).
Seibold, 959 P.2d at 782 (quoting Bird v. Anchorage, 787 P.2d 119, 120-21 (Alaska App. 1990)).
A defendant is not entitled to a jury instruction on necessity, and is not entitled to argue that defense to the jury, unless there is "some evidence" of all three prongs of the defense. "In this context, `some evidence' is a term of art; it means evidence which, if viewed in the light most favorable to the defendant, is sufficient to allow a reasonable juror to find in the defendant's favor on each element of the defense."
Lacey v. State, 54 P.3d 304, 306, 308 (Alaska App. 2002); see also AS 11.81.900(b)(2)(A) (governing affirmative defenses) AS 11.81.900(b)(19)(A) (governing normal offenses).
Lacey, 54 P.3d at 308.
Having independently reviewed the record in the light most favorable to Bragg, we conclude that Bragg failed to meet his burden to show some evidence of the third prong of the necessity defense — that the harm he caused by breaking the law was not disproportionate to the harm he avoided. We therefore have no reason to decide whether Bragg offered some evidence of the other two prongs of the necessity defense.
See State v. Garrison, 171 P.3d 91, 95 (Alaska 2007).
Our supreme court recently addressed the third prong of the necessity defense in State v. Garrison. As in this case, Garrison sought to raise a necessity defense to the charge of driving while intoxicated. Garrison testified that an acquaintance had been driving her car when a pin in the steering wheel's ignition unexpectedly popped out. She said the acquaintance got the car off the highway but then left, telling Garrison he would get help but that he could not stay because there was a warrant out for his arrest. Garrison was intoxicated and had no driver's license, but she said she felt it was unsafe to walk to a phone, hitchhike, or stay in the car. She believed there was a risk the car would be struck by a passing vehicle, or that, because she was a woman alone, she would be harmed by a passing stranger. So she decided to drive to a clearing along the road and walk from there to a pay phone. Before she reached that clearing, she was arrested for driving while intoxicated.
Id.
Id. at 93.
Id.
Id. at 94-95.
Id. at 93.
Id.
After acknowledging that "the threshold for the `some evidence' test is low," the supreme court concluded that Garrison had presented "no evidence that could permit a reasonable jury to find that any of the alleged harms she avoided outweighed the very real dangers she risked by driving drunk." The court observed that Garrison offered no evidence on "the frequency, likelihood, or immediacy of the alleged harms."
Id. at 97.
Id.
The situation is the same in this case. Bragg believed his daughter might be beaten, molested or raped, or might harm someone else, if he did not drive his car and intercept her on the bike path. But he offered no evidence on "the frequency, likelihood, or immediacy" of these alleged risks. Nor did he offer any evidence that these alleged risks could not be avoided by summoning the assistance of the state troopers or other law enforcement officers. Under Garrison, a necessity defense may not be based on a generalized fear that a person might be the victim of crime; the defendant must present some evidence to establish the likelihood or imminence of that risk.
Id.
We therefore conclude that Judge Wolfe properly prevented Bragg from presenting a necessity defense to the jury. Bragg offered no evidence from which a reasonable jury could conclude that the harm he risked by driving while under the influence was proportionate to the harm he avoided.
See Fireman's Fund American Ins. Cos. v. Gomes, 544 P.2d 1013, 1017 n. 12 (Alaska 1976) (noting that an appellate court can affirm the trial court on any basis supported by the record).
Conclusion
We AFFIRM Bragg's conviction.