Summary
upholding trial court's refusal to give necessity instruction when the situation faced by the defendant "was not an emergency that required immediate action" and thus, the reasonably foreseeable harm from engaging in the illegal activity was disproportionate to the harm avoided
Summary of this case from Gentleman v. StateOpinion
Court of Appeals No. A-10145.
May 20, 2009.
Appeal from the District Court, First Judicial District, Ketchikan, Kevin G. Miller, Judge, Trial Court No. 1KE-07-1126 CR.
Catherine Boruff, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Ann B. Black, Assistant Attorney General, Office of Special Prosecutions and Appeals, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding precedent for any proposition of law.
MEMORANDUM OPINION AND JUDGMENT
Richard D. Guthrie was convicted of driving with a revoked license. He claims that the district court erred by refusing to instruct the jury on the necessity defense. He argues that he was justified in driving with a revoked license because he needed to get to the Safeway pharmacy to buy Tylenol for his adult daughter.
We agree with the district court that Guthrie was not entitled to present the necessity defense. Guthrie had eleven prior convictions for driving with a revoked license and, at the time he was stopped, he was driving an uninsured vehicle. In light of this record, we conclude that the reasonably foreseeable harm Guthrie might cause by driving was disproportionate to the harm he avoided by buying Tylenol. We therefore affirm his conviction.
Facts and proceedings
On December 7, 2007, Alaska State Trooper James Kimura was traveling northbound on the Tongass Highway in Ketchikan when he observed a van traveling in the opposite direction that "just had a horrendous noise to it, [a] real loud exhaust system." Trooper Kimura pulled the vehicle over and contacted the driver, Guthrie. Guthrie admitted he did not have a valid driver's license. He also admitted that the vehicle he was driving was uninsured. Trooper Kimura called dispatch and verified that Guthrie's driver's license was revoked.
Guthrie's daughter, Rita Evans, was in the passenger seat of the vehicle. Trooper Kimura established that Evans had a valid license and asked why she was not driving. He was told that Evans had consumed some prescription medication and was possibly too impaired to drive. Guthrie lived only about a half-mile away, but Trooper Kimura was concerned that Evans was too impaired to drive even that short distance, so he permitted Guthrie to call someone to pick up his vehicle. A woman named Gladys arrived in five to ten minutes.
Guthrie was charged with driving with a revoked license. Before trial, he requested a jury instruction on the defense of necessity. In his offer of proof, he asserted that his daughter, Evans, had been to the emergency room the day before with a temperature of 105 degrees and had been diagnosed with strep throat. She was taking antibiotics but was still in a lot of pain and needed liquid Tylenol. Guthrie called multiple people to see if he could find someone to drive her to the store to get the Tylenol, but no one was available. Guthrie and Evans did not have enough money for a cab and they believed the buses had stopped running for the night. Guthrie concluded that his only alternative was to drive Evans himself. They drove straight to Safeway, the closest open pharmacy, and back without any detours, but were stopped by Trooper Kimura on the return trip.
AS 28.15.291(a)(1).
After listening to this offer of proof, District Court Judge Kevin G. Miller refused to allow Guthrie to argue the necessity defense. The jury ultimately convicted Guthrie of driving with a revoked license. He appeals.
Why we agree that Guthrie was not entitled to raise the necessity defense
Under AS 11.81.320(a), the common-law defense of necessity is available as an affirmative defense in all criminal prosecutions unless the legislature has indicated its intent to prohibit the defense in the defendant's situation. 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; (3) the harm caused was not disproportionate to the harm avoided; and (4) if the defendant is charged with a continuing offense, the defendant stopped violating the law as soon as the necessity ended. The first and second elements and (if applicable) the fourth element are established if the defendant shows that he reasonably believed at the time of acting that those elements were present, even if that belief was mistaken. The third element — whether the harm caused was not disproportionate to the harm avoided — is an objective test: the court must independently determine whether the defendant's value judgment was correct, viewing the facts as the defendant reasonably perceived them. The defendant's actions are weighed against the harm reasonably foreseeable at the time, rather than against the harm that actually occurred.
Bird v. Anchorage, 787 P.2d 119, 120 (Alaska App. 1990).
State v. Garrison, 171 P.3d 91, 94 (Alaska 2007); Cleveland v. Anchorage, 631 P.2d 1073, 1078 (Alaska 1981) (listing first three elements).
Garrison, 171 P.3d at 94; Nelson v. State, 597 P.2d 977, 979 (Alaska 1979); Seibold v. State, 959 P.2d 780, 782 (Alaska App. 1998).
McGee v. State, 162 P.3d 1251, 1262 (Alaska 2007); Seibold, 959 P.2d at 782; Bird, 787 P.2d at 121.
Nelson, 597 P.2d at 979-80.
A defendant is not entitled to a jury instruction on the defense of necessity, and is not entitled to argue that defense to the jury, unless there is "some evidence" of necessity. "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 defenses).
Lacey, 54 P.3d at 308.
Judge Miller ruled that Guthrie did not offer sufficient evidence on two elements of the necessity defense: He found that no reasonable juror could conclude that Guthrie had no adequate alternative to driving, because Guthrie could have taken a cab or a bus. He also found that no reasonable juror could conclude that Guthrie stopped violating the law as soon as the necessity ended, because Guthrie could have "stopped at any number of places to try and get a ride." Judge Miller therefore refused Guthrie's request for an instruction on the necessity defense.
Guthrie challenges Judge Miller's ruling, arguing that he offered enough evidence to create a jury question on these two elements of the necessity defense.
We need not address Guthrie's arguments because we reject his claim for a more fundamental reason: This case simply does not present the kind of emergency situation contemplated by the necessity defense. That is, we conclude, as a matter of law, that Guthrie did not offer enough evidence that the reasonably foreseeable harm he might cause by driving with a revoked license was not disproportionate to the harm he avoided by buying Tylenol.
See Anchorage v. Higgins, 754 P.2d 745, 748 (Alaska 1988) (stating that an appellate court may uphold a trial court's decision "if there is any other ground apparent, from the record, which, as a matter of law, would support the result reached by the trial court").
In his findings, Judge Miller noted that "an argument [could be made]" that a person with as many convictions as Guthrie (eleven) for driving with a revoked or suspended license posed a "substantial danger to the community." (Guthrie also had three prior convictions for driving while under the influence, as well as convictions for reckless endangerment and leaving the scene of an accident. And when he was stopped in this case, he admitted the vehicle he was driving was uninsured.) Yet Judge Miller found that Guthrie had "probably" made a sufficient showing that the reasonably foreseeable harm caused by driving with a revoked license was not disproportionate to the harm avoided by driving to the store to buy Tylenol. This conclusion fails to recognize that the necessity defense generally is available only when the defendant acted in response to an emergency of some kind. As Professor LaFave has explained:
See Cleveland, 631 P.2d at 1080; Nelson, 597 P.2d at 979; Muller v. State, 196 P.3d 815, 817 (Alaska App. 2008).
It is sometimes said that the defense of necessity does not apply except in an emergency — when the threatened harm is immediate, the threatened disaster imminent. Perhaps this is but a way of saying that, until the time comes when the threatened harm is immediate, there are generally options open to the defendant to avoid the harm, other than the option of disobeying the literal terms of the law — the rescue ship may appear, the storm may pass; and so the defendant must wait until that hope of survival disappears.
Wayne R. LaFave, 2 Substantive Criminal Law § 10.1(d), at 131 (2d ed. 2003).
Judge Miller implicitly recognized that Guthrie did not face an emergency when he found that Guthrie could have taken the bus or "stopped at any number of places to try and get a ride." These findings reflect a recognition that the situation lacked urgency.
The statute prohibiting driving with a suspended or revoked license "is premised on the legislature's conclusion that a person whose driver's license has been suspended or revoked should not be allowed to operate any motor vehicle on a highway — because this person presents a significant danger to other drivers and pedestrians." Even though Guthrie's driving with a revoked license caused no actual harm, it was reasonably foreseeable, given his driving record, that he might endanger a pedestrian or other driver — or, indeed, his passenger, the very person he was trying to help. And because he was driving an uninsured vehicle, it was reasonably foreseeable that, if someone was injured, Guthrie would not have the means to compensate that person. Balanced against these reasonably foreseeable harms was the likelihood that, without Tylenol, Evans w ould continue to suffer pain from her strep throat. While unfortunate, there was no allegation that Evans, a nurse, was in need of immediate medical attention.
Stevens v. State, 135 P.3d 688, 694 (Alaska App. 2006).
In Allen v. State, w e ruled that the defendant was entitled to raise a necessity defense to the charge of driving with a suspended license because he reasonably believed his mother needed immediate medical attention. According to Allen's offer of proof, his mother had been driving the vehicle but pulled over when she began to suffer fatigue and double vision. Allen claimed he was stopped while driving to the nearest phone to call for help.
123 P.3d 1106 (Alaska App. 2005).
Id. at 1107, 1109.
Id. at 1107.
In Guthrie's case, there was an offer of proof that Guthrie's adult daughter was in a lot of pain, but there was no allegation that she required immediate medical attention to address that pain (she had already been to the hospital and obtained antibiotics). We therefore rule as a matter of law that the reasonably foreseeable harm a person with Guthrie's driving record might cause by driving with a revoked license is disproportionate to the harm avoided by obtaining Tylenol for a sore throat. To put it another way, because the situation Guthrie faced was not an emergency that required immediate action, he could have waited until he found someone to drive to the store for him, or until some other alternative to driving with a revoked license became available.
Conclusion
We AFFIRM the judgment of the district court.