Opinion
Court of Appeals No. A-9775.
April 8, 2009.
Appeal from the Superior Court, Third Judicial District, Palmer, Eric Smith, Judge, Trial Court No. 3PA-05-3616 Cr.
Glenda Kerry, Assistant Public Advocate, and Rachel Levitt, and Joshua P. Fink, Public Advocate, Anchorage, for the Appellant. Terisia K. Chleborad, 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 Bolger, Judges.
MEMORANDUM OPINION
Billie Rae Deemer was stopped by a state trooper for a traffic violation (failing to signal a turn). When the trooper asked Deemer to identify herself, she lied about her identity. A short time later, another trooper arrived on the scene who was acquainted with Deemer. The troopers then ran Deemer's name through their computer; this check revealed that there was a warrant for Deemer's arrest for failing to appear in a criminal case. Deemer was arrested, and the troopers searched her car. This search revealed a handgun and cocaine.
Based on these events, Deemer was convicted of fourth-degree misconduct involving a controlled substance (possession of cocaine), second-degree weapons misconduct (possession of a firearm in furtherance of a drug felony), third-degree weapons misconduct (possession of a concealable firearm by a felon), and giving false information to a police officer.
In this appeal, Deemer challenges the search of her car. She also argues that her conviction for second-degree weapons misconduct is flawed because the jurors were not apprised of the State's obligation to prove a nexus between her possession of the firearm and her commission of a drug felony. In addition, Deemer argues that her conviction for giving false information must be reversed because, when she misidentified herself to the trooper, she had no reason to know that she was about to receive a traffic citation or to be arrested.
For the reasons explained in this opinion, we conclude that Deemer's conviction for second-degree weapons misconduct must be reversed because the jurors were not apprised of the nexus requirement, but in all other respects we uphold the judgement of the superior court.
Underlying facts
In the early morning of December 30, 2005, Alaska State Trooper Shane M. Calt observed a car make a left turn without signaling. Calt turned around and followed the vehicle. When the car pulled into a driveway, Calt turned on his overhead lights and parked behind it.
When Calt parked behind the car, Deemer was the sole occupant of the vehicle, but she was sitting in the passenger seat. When Calt asked Deemer to identify herself, she told him that her name was "Jackie Bain". When Calt asked Deemer to produce some identification, Deemer responded that she did not have any. She also asserted that she had not been driving the car — that someone else had been driving, and that he had run away.
Calt had Deemer get out of her car and sit in the front seat of his patrol car with him. While they were sitting in the patrol car, Deemer repeatedly asked Calt if she was under arrest. Calt answered that he did not know yet. At this point, Deemer opened the passenger-side door and started to get out of the patrol car. Calt then placed her under arrest; he put her in handcuffs and moved her to the back seat of the patrol car.
At about this time, another trooper (Trooper Baker) arrived on the scene. From previous acquaintance, Baker identified the arrestee as Billie Rae Deemer.
Once Deemer had been identified, Calt ran her name through the computer and learned that a felony arrest warrant had been issued for Deemer — for failing to appear in court on burglary, forgery, and theft charges.
After learning of this warrant, Calt conducted a search of Deemer's vehicle. He found a large folding knife with four blades clipped to the visor on the driver's side of the car. He then searched a coat that was lying in the middle of the back seat. Going through the pockets of this coat, he found two clear plastic bags containing a white substance — later identified as cocaine. (This cocaine weighed about 33 grams and had a street value of approximately $3,300.) After Calt found the cocaine in the coat, a third trooper found a loaded handgun under the driver's seat of the car. The legality of the search of the car
As we noted earlier, Deemer challenges the legality of the search of her car. In her brief to this Court, Deemer argues that the search can not be justified as a search incident to arrest because, according to her, the troopers had no probable cause to arrest her until after they conducted the search. In particular, Deemer claims that the troopers did not find out about the warrant for her arrest until almost fifteen minutes after they began to search the vehicle. However, the video recording of Deemer's encounter with the troopers shows that this claim is inaccurate.
Specifically, the video recording shows that Deemer was initially arrested about three minutes into the traffic stop, after she started to leave the patrol car. The discovery of Deemer's true name, and the existence of the warrant for her arrest, occurred about two minutes after that. The troopers did not begin the search of Deemer's car until about a minute and a half after learning that Deemer had an outstanding warrant for her arrest. Thus, the troopers had good cause to arrest Deemer before they initiated the search of her car. This search can therefore be justified as a search incident to arrest.
However, under Alaska law, the fact that the police have probable cause to arrest a motorist does not automatically give the police the authority to conduct a full search of the motorist's vehicle. Rather, the police have a more limited authority: the authority to search the portion of the car that was within the motorist's reach at the time of the stop, and (within that area) to search for weapons and for evidence of the crime or crimes that the motorist is suspected of committing.
See Wilburn v. State, 816 P.2d 907, 912-13 (Alaska App. 1991); Dunn v. State, 653 P.2d 1071, 1079-1080 (Alaska App. 1982).
See McCoy v. State, 491 P.2d 127, 138-39 (Alaska 1971); Jackson v. State, 791 P.2d 1023, 1028 (Alaska App. 1990).
In her brief to this Court, Deemer mischaracterizes this rule. She notes that, at the moment of her arrest, she was sitting in the front seat of Trooper Calt's patrol car. Based on this fact, Deemer argues that the troopers were authorized to search only the front seat of the patrol car, rather than the portion of her own car that was within her reach at the time of the traffic stop. We rejected this view of the law in Wilburn v. State, 816 P.2d 907 (Alaska App. 1991). In Wilburn, we held that even when a motorist has already been removed from their vehicle at the time of the arrest, the police are allowed to search the area of the vehicle that was within the motorist's reach "at the time the police initiated the investigative stop". 816 P.2d at 912.
With respect to the handgun found in her vehicle, Deemer raises no other challenge to the discovery and seizure of that weapon. Given our conclusion that the troopers could lawfully search the portion of the vehicle that was within Deemer's reach at the time of the stop, and because officers conducting a search incident to arrest are authorized to search for weapons, we uphold the seizure of the handgun.
However, Deemer asserts that the troopers exceeded their authority when they searched the pockets of her coat and discovered the two baggies of cocaine. Deemer's argument is based on the permissible scope of a search incident to arrest — in particular, the limitation that the search be aimed at discovering either weapons or concealable evidence of the arrestee's suspected crime(s).
Deemer contends that the troopers' search through the pockets of the coat can not be justified as a search for weapons, because it was unreasonable to suppose that the pockets contained a weapon (or, at least, any typical weapon such as a gun or knife). Deemer further contends that the search of the coat can not be justified as a search for concealable evidence, because it was unreasonable to expect that the coat pockets would contain evidence of the crime for which Deemer had been arrested ( viz., a past failure to attend a court proceeding).
Deemer's argument overlooks the fact that, even though she was formally arrested on the warrant for failing to appear, the troopers were authorized to search incident to her arrest for evidence of any crime for which they already had probable cause. Baxter v. State, 77 P.3d 19, 26 (Alaska App. 2003).
When the troopers searched Deemer's vehicle, they had probable cause to believe that she had falsely identified herself to Trooper Calt. True, Deemer had disclaimed possession of any identification documents, but the troopers had probable cause to believe that she had been driving a motor vehicle, and Alaska law requires motorists to have their driver's license in their possession. Under these circumstances, it was reasonable to believe that a search of Deemer's coat might yield evidence of her true identity — in other words, evidence that she had falsely identified herself to the troopers. Accordingly, we conclude that the troopers could lawfully search the pockets of the coat.
AS 28.15.131.
Compare Johnson v. State, 88 P.3d 1137, 1139 (Alaska App. 2004), where this Court upheld the search of the clothing of a person arrested for being a minor on licensed premises. We noted that a search incident to arrest for this offense could validly include a search for documents showing the arrestee's identity and age. Id.
(Even though Trooper Calt's subjective reasons for searching the coat are not controlling, we note that, when Calt testified at the evidentiary hearing, he stated that one of his reasons for searching the coat was to discover evidence of Deemer's identity.)
See Beauvois v. State, 837 P.2d 1118, 1121 n. 1 (Alaska App. 1992).
We further conclude that, given the lawfulness of this search for evidence of Deemer's identity, the permitted scope and intensity of this search would uncover the baggies of cocaine.
We recognize that the superior court upheld the search of the coat on different grounds. However, we are authorized to affirm the superior court's decision on any ground that is plainly established by the record. The flaw in Deemer's conviction for second-degree weapons misconduct (possession of a firearm in furtherance of a drug felony)
Torrey v. Hamilton, 872 P.2d 186, 188 (Alaska 1994); Millman v. State, 841 P.2d 190, 195 (Alaska App. 1992).
Under AS 11.61.195(a)(1), a person commits the crime of second-degree weapons misconduct if the person "knowingly . . . possesses a firearm during the commission of [a controlled substance felony] under AS 11.71.010 — 11.71.040".
In Collins v. State, 977 P.2d 741, 748, 753 (Alaska App. 1999), this Court held that AS 11.61.195(a)(1) requires proof of more than a defendant's simultaneous possession of a firearm and commission of a drug felony. Rather, the statute requires proof of a nexus between the defendant's possession of the firearm and the defendant's commission of the felony drug offense. Id. at 753. Later, in Murray v. State, 54 P.3d 821 (Alaska App. 2002), we clarified the nature of this required nexus: we held that AS 11.61.195(a)(1) requires the State to prove that "the defendant's possession of the firearm aided, advanced, or furthered the commission of the drug offense". Id. at 824.
At Deemer's trial, the jurors were not instructed regarding the State's obligation to prove a nexus between Deemer's possession of the handgun and her commission of the drug felony (here, possession of cocaine). The pertinent jury instruction merely asked the jurors to decide whether the State had proved "that the defendant knowingly possessed a firearm during the commission of [the drug offense]".
Although Deemer did not object to this jury instruction at the time, she now argues that it was plain error for the trial judge to neglect to instruct the jurors on this element of the offense. To confuse matters slightly, Deemer characterizes her argument on appeal as a request for a "judgment of acquittal". This is not an accurate description of the issue raised, or of the relief to which Deemer would be entitled if she prevailed.
It may be that, because the jury was misinstructed on the elements of second-degree weapons misconduct, the jurors failed to reach a decision on one of the essential elements of this offense. The normal remedy for this flaw at trial is to give the defendant a new trial. A "judgement of acquittal", however, would be a judicial declaration that, even if the jury had been properly instructed regarding the elements of the offense, no reasonable juror could have found the State's case to be proved — and, thus, the defendant is entitled to absolute discharge. Although Deemer may also be pursuing this latter claim, that claim has no merit. Deemer is not entitled to an acquittal.
We addressed this same procedural situation in Collins v. State, 977 P.2d at 751. In that appeal, as in Deemer's case, the defendant argued that his weapons misconduct was flawed because the jury had not received an instruction on the requirement of a nexus between the possession of the firearm and the commission of the drug felony. Id. The defendant then asserted that, because of this flaw, he should be granted a judgement of acquittal (thus barring any renewal of the prosecution). Id. We rejected this assertion and held that the defendant's proper remedy was a new trial. Id. Similarly, this is Deemer's remedy if the flawed jury instruction amounted to plain error.
The State, in its brief, concedes that the jury instruction in Deemer's case omitted this element of the State's proof. However, the State argues that this error does not constitute plain error because (according to the State) it is inconceivable, given the evidence presented at Deemer's trial, that a properly instructed jury would have acquitted Deemer.
The flaw in the State's argument is that it is self-proclaimedly based on an analysis of the evidence in the light most favorable to the State. That is the wrong test. (The State was perhaps misled by Deemer's characterization of her claim as a request for a judgement of acquittal.)
The question presented here is whether the flawed jury instruction gave rise to a substantial likelihood that Deemer was convicted of second-degree weapons misconduct even though the State would have been unable to prove the "nexus" element beyond a reasonable doubt. The answer to this question is obtained, not by assessing the evidence in the light most favorable to conviction, but rather by assessing the evidence in the light most favorable to acquittal — and then asking whether reasonable jurors might have entertained a reasonable doubt concerning the defendant's guilt.
Viewing the matter from this perspective, we conclude that there is a substantial likelihood that the flawed jury instruction prejudiced the fairness of Deemer's trial. Not only is the evidence on this point susceptible of differing interpretations, but the prosecutor's summation actively encouraged the jurors to follow an erroneous legal theory in determining Deemer's guilt: the prosecutor told the jurors that all the State had to prove was that Deemer simultaneously possessed both a firearm and cocaine.
Specifically, the prosecutor told the jurors:
You just have to have possession [of a firearm], constructive or otherwise. And if you find that Ms. Deemer is guilty of possessing these drugs while she has this [handgun], you'll find her guilty of Count I [ i.e., second-degree weapons misconduct]. Okay — that's just how that works. You've got to [possess] this [handgun] and this [cocaine] to [be guilty of] Count I.
For these reasons, we reverse Deemer's conviction for second-degree weapons misconduct. As we held in Murray v. State over six years ago: in a prosecution for second-degree weapons misconduct under AS 11.61.195(a)(1), the State must prove that the defendant's possession of the firearm "aided, advanced, or furthered the commission of the drug offense". 54 P.3d at 824.
The sufficiency of the evidence to support Deemer's conviction for providing false information to a law enforcement officer
Deemer was charged under AS 11.56.800(a)(1)(B)(ii) with the crime of providing false information concerning her identity to a law enforcement officer. In prosecutions under this section of the statute, the State must prove that the defendant "knowingly [gave] false information to a peace officer . . . concerning the [defendant's] identity" while the defendant was "being served with an arrest warrant or being issued a citation".
At Deemer's trial, her defense attorney conceded that Deemer falsely identified herself to Trooper Calt at an early stage of the traffic stop. However, the defense attorney argued to the jury that Deemer uttered this falsehood before either of the circumstances listed in the charging document had arisen. That is, the defense attorney argued that Deemer was innocent of the charged offense because she lied about her identity before Trooper Calt had made a final decision to give Deemer a citation, and before the trooper found out about the outstanding warrant for Deemer's arrest:
Defense Attorney: [The trooper] might [have been] investigating [the traffic offense of failing to signal a turn], but he's not issuing a citation [at that point, and] he's not serving her [with] an arrest warrant. He's not telling her, "You're under arrest. What's your name?" [or] "I'm giving you a citation; I'm giving you a ticket. Tell me your name."
. . .
She gave him a false name, it's true. But [for that] to be a crime, it's got to be done while she's being issued a citation or being served with an arrest warrant. [And that was] not happening here.
In response, the prosecutor argued that Deemer violated the statute when she lied about her identity because Trooper Calt conducted the traffic stop for the purpose of giving Deemer a citation:
Prosecutor: Ms. Deemer gave a false name, and she was cited. . . . The trooper . . . told you he followed her [into the driveway] with the purpose of citing her, and that's what happened. She gave a false name: they admit [that she] gave the false name. Somehow, they just don't think she was being investigated for a citation. She was.
After the jury convicted Deemer of this offense, the defense attorney asked the superior court to grant Deemer a judgement of acquittal despite the jury's verdict. When the defense attorney argued in favor of the judgement of acquittal, the attorney initially renewed her contention that Deemer was not being issued a citation when she misidentified herself to the trooper. Then the defense attorney presented a slightly different argument: she asserted that, even though Trooper Calt might have intended to issue a citation to Deemer, Deemer had no way of knowing about the trooper's intention.
Because Deemer raised this contention in the context of a motion for a judgement of acquittal, the superior court viewed the issue as whether the evidence presented at Deemer's trial (viewed in the light most favorable to upholding the jury's verdict) was sufficient to support a reasonable inference that Deemer knew that the trooper had stopped her for the purpose of giving her a citation:
The Court: [Deemer] was in a situation where she had been pulled over [under] circumstances [in] which a citation was authorized. . . .
Defense Attorney: I guess I would argue [that] she would have no way of knowing that she was going to be arrested . . . or cited at the time she gave the false name.
The Court: [But] viewing the evidence most favorably to the [verdict], which I must, she was pulled over for not [using] a turn signal. And any reasonable person in a situation where you didn't turn on your turn signal, and the cops pulled you over, would know that you're in a situation where you could very well get a ticket.
Accordingly, the superior court denied Deemer's motion for a judgement of acquittal.
Now, on appeal, Deemer renews her contention that the evidence was insufficient to support her conviction. Specifically, Deemer asserts that even if the evidence was sufficient to establish that Trooper Calt stopped her for the purpose of giving her a citation, the State nevertheless failed to prove that Deemer was aware of the trooper's purpose when she lied about her name.
Deemer notes that AS 11.56.800(a)(1)(B)(ii) requires proof that a defendant "knowingly" gave false information concerning their identity while the defendant was "being served with an arrest warrant or being issued a citation". Deemer argues that this statute should be interpreted so that the culpable mental state of "knowingly" applies to both the defendant's conduct ( i.e., the act of giving false information about their identity) and the defendant's awareness of the circumstance that made it criminal for the defendant to lie about their identity. And finally, Deemer contends that the evidence presented at her trial was insufficient to support a reasonable conclusion that she knew, at the time she lied about her name, she was going to be issued a citation.
Rather than responding directly to Deemer's claim about the nature of the evidence presented at trial, the State responds by disputing Deemer's suggested interpretation of the false-information statute. According to the State, the culpable mental state of "knowingly" applies only to the defendant's conduct — and the statute does not require the government to prove that the defendant had any subjective awareness of, or even acted negligently concerning, the circumstances specified in the statute.
For this proposition, the State relies on Noblit v. State, 808 P.2d 280 (Alaska App. 1991), and Hoople v. State, 985 P.2d 1004 (Alaska App. 1999). In Noblit, this Court held that, in a prosecution for felony hindering prosecution, the State must prove that the defendant aided another person knowing that the other person had committed a crime, but the State need not show that the defendant knew that the other person's crime was a felony. 808 P.2d at 284. Similarly, in Hoople, this Court held that, in a prosecution for felony driving under the influence, the State need not show that the defendant acted with conscious awareness of the prior convictions that made the defendant's conduct a felony. 985 P.2d at 1006.
But the rationale that we applied in Noblit and Hoople does not apply to Deemer's case. Both Noblit and Hoople involved statutes where the underlying conduct was criminal even without proof of the disputed aggravating circumstance. (In Noblit, the underlying prohibited conduct was aiding a person who the defendant knew had committed a crime; in Hoople, the underlying prohibited conduct was driving under the influence.)
Deemer's offense is materially different from the crimes at issue in Noblit and Hoople because her conduct — lying about her identity — would not be a crime in the absence of one of the circumstances specified in AS11.56.800(a)(1)(B)(ii).
For this reason, we agree with Deemer that the statute requires proof that the defendant acted with a culpable mental state regarding the circumstance that made their act of lying criminal. This does not necessarily mean, however, that Deemer is correct when she identifies this culpable mental state as "knowingly".
On the one hand, we note that AS 11.81.610(b)(2), which governs the construction of the statutes in the Criminal Code, declares that the culpable mental state that normally applies to a circumstance is "recklessly". On the other hand, in Strane v. State, 16 P.3d 745 (Alaska App. 2001), we interpreted a statute worded similarly to AS 11.56.800(a)(1)(B) and concluded that the culpable mental state of "knowingly" applied to both the defendant's conduct and the defendant's awareness of the circumstance that made their conduct criminal. Id. at 752. (Our decision on this particular point was affirmed by the Alaska Supreme Court in State v. Strane, 61 P.3d 1284, 1288 (Alaska 2003).)
We need not resolve this question of statutory interpretation in Deemer's case because Deemer's jury was instructed that "knowingly" was the culpable mental state that applied to circumstances. See Jury Instruction No. 12. Deemer's jury was not instructed on the culpable mental state of "recklessly", nor was the jury apprised that "recklessly" is the culpable mental state that normally applies to circumstances.
As we have explained, reasonable people could differ as to whether "knowingly" or "recklessly" is the culpable mental state that applies to the circumstances listed in AS 11.56.800(a)(1)(B). But even assuming that the correct culpable mental state is "recklessly", and that Deemer's jury was misinstructed on this point of law, the error ran in Deemer's favor because the jury was instructed that the State had to prove the higher culpable mental state of "knowingly".
Thus, the only remaining issue is whether the evidence at Deemer's trial was sufficient to allow reasonable, fair-minded jurors to conclude that Deemer knew, when she lied to Trooper Calt about her name, that the trooper had stopped her for the purpose of giving her a citation. Although the evidence may have been susceptible of differing interpretations, we are obliged to view the evidence in the light most favorable to upholding the jury's verdict. Viewed in this light, the evidence presented at Deemer's trial was sufficient to support a finding that Deemer knew that the trooper had stopped her for the purpose of issuing a citation. We therefore uphold Deemer's conviction for giving false information.
Dorman v. State, 622 P.2d 448, 453 (Alaska 1981); Silvernail v. State, 777 P.2d 1169, 1172 (Alaska App. 1989).
Deemer's claim that her 1-year sentence for giving false information is unlawful because the superior court failed to find that she was a "worst offender"
The crime of giving false information is a class A misdemeanor, and the maximum sentence for this crime is 1 year's imprisonment. The superior court sentenced Deemer to this 1-year maximum sentence for this crime.
See AS 11.56.800(b) (specifying that the offense of giving false information is a class A misdemeanor) and AS 12.55.135(a) (specifying that the maximum sentence for a class A misdemeanor is 1 year's imprisonment).
Under Alaska law, a defendant should not be sentenced to a maximum sentence unless the sentencing judge finds that the defendant is a "worst offender" as defined in Alaska's sentencing decisions. Deemer argues that her 1-year sentence for giving false information was imposed in violation of this rule, because the sentencing judge never explicitly declared that Deemer was a worst offender.
See State v. Wortham, 537 P.2d 1117, 1120 (Alaska 1975); Howell v. State, 115 P.3d 587, 592-93 (Alaska App. 2005); Napayonak v. State, 793 P.2d 1059, 1062 (Alaska App. 1990).
This claim would normally be moot — because Deemer was convicted of other more serious offenses, and because her 1-year sentence for giving false information was but a small component of her composite sentence of 11 years' imprisonment with 6 years suspended.
This Court has repeatedly held that "[when we are] determining whether the sentence for [one crime] is excessive, we do not look at the sentence on that charge in isolation. . . . [Rather, the] proper question for us to ask is whether the sentence on all the charges, given the totality of the circumstances, was excessive." Jones v. State, 765 P.2d 107, 109 (Alaska App. 1988), citing Waters v. State, 483 P.2d 199, 202 (Alaska 1971). Because the ultimate question is whether the defendant's composite sentence is justified in light of the entirety of the defendant's conduct and history, "the law does not require that a specific sentence imposed for a particular count or offense be individually justifiable as if that one crime were considered in isolation". Custer v. State, 88 P.3d 545, 549 (Alaska App. 2004).
In Deemer's case, moreover, the "worst offender" issue is potentially moot for a different reason. As explained earlier, we are reversing Deemer's conviction for second-degree weapons misconduct. This was Deemer's most serious offense, and the offense for which she received the longest sentence of imprisonment. If the State elects not to bring Deemer to trial again on this offense, Deemer will have to be re-sentenced on her three remaining convictions, and the superior court can at that time reconsider Deemer's sentence for giving false information.
For both of these reasons, even if the superior court did not find that Deemer was among the worst offenders who commit the crime of giving false information, the superior court's failure to make this finding does not require reversal or re-assessment of Deemer's sentence for this particular crime. Conclusion
Deemer's conviction for second-degree weapons misconduct is REVERSED; she is entitled to a new trial on that charge. Deemer's three other convictions are AFFIRMED.