Summary
holding that defendant clenching his arms and refusing to put his hands behind his back was insufficient to support a conviction for resisting arrest
Summary of this case from Schumacher v. StateOpinion
Court of Appeals No. A-10919 Trial Court No. 3PA-09-2926 CR No. 5962
07-17-2013
LARRY J. HOOVER, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Callie Patton Kim, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Melissa Wininger-Howard, Assistant District Attorney, Palmer, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Coats, Senior Judge. *
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
Appeal from the District Court, Third Judicial District, Palmer, William L. Estelle, Judge.
Appearances: Callie Patton Kim, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Melissa Wininger-Howard, Assistant District Attorney, Palmer, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Coats, Senior Judge.
Sitting by assignment made pursuant to article IV, section 11 of the Alaska Constitution and Administrative Rule 23(a).
Judge ALLARD.
A jury convicted Larry J. Hoover of resisting arrest. Hoover appeals, arguing that the evidence was insufficient to support his conviction. For the reasons explained below, we reverse his conviction.
Iyapana v. State, 284 P.3d 841, 848-49 (Alaska App. 2012).
Background Facts
Because Hoover contends that the evidence presented at his trial was insufficient to support his conviction for resisting arrest, we present that evidence here in the light most favorable to upholding the jury's verdict.
Iyapana v. State, 284 P.3d 841, 848-49 (Alaska App. 2012).
Alaska State Troopers Ronald Hayes and Timothy Cronin investigated a single vehicle accident. The vehicle, which was registered to Hoover's girlfriend, had been abandoned in a ditch about a mile from where Hoover lived with his girlfriend. A motorist passing by with her children in her car saw the vehicle in the ditch and briefly spoke with a man who appeared to be the sole occupant of the car (and therefore the driver).
The police found Hoover's girlfriend walking along the side of the road with the keys to the car. She initially told the police that her son had been driving the car, although she later testified at trial that she was the person driving and Hoover was the passenger.
Troopers Hayes and Cronin interviewed Hoover at his house. Hoover appeared impaired and was, at times, belligerent. Hoover denied being the driver and told the police that it was not his car. The troopers arranged a show-up identification to determine if Hoover was the man the witness saw at the scene of the accident. Hoover was agitated; he continued to assert that it was not his car and that he was not the driver. He was upset that a witness was coming to "single him out." Trooper Hayes told Hoover that if he did not remain calm or if he yelled, the troopers would put him in handcuffs. Hoover then calmed down and exchanged pleasantries with Trooper Cronin while they waited for the witness to arrive.
When the witness arrived, she remained in her car. Trooper Hayes asked Hoover to stand up so the witness (who was about fifty feet away) could see him. Hoover again became agitated and upset. He stood up and started walking toward the witness's car, demanding to speak with the witness. Trooper Cronin ordered Hoover to stop, but Hoover kept walking. He was about twenty-five feet away from the car.
Trooper Cronin then grabbed Hoover's arm and attempted to put it behind Hoover's back to handcuff him. Hoover turned toward Trooper Cronin so that Hoover and Trooper Cronin ended up walking in a circle. Trooper Hayes ran to assist Trooper Cronin and tried to put Hoover's other arm behind his back, but Hoover clenched his hands and held his arms to his front so he could not be handcuffed. Both troopers told Hoover to put his hands behind his back. Hoover kept saying that he did not need to put his hands behind his back, that everything was "all right," and that he "ha[dn't ] done anything." Trooper Hayes asked Hoover if he wanted to "go down" and warned Hoover that he was not playing games. When Hoover did not comply, Trooper Hayes took him to the ground with a leg-sweep. Hoover and the troopers went down to the ground.
On the ground, Hoover tried to keep his arms away from the troopers. Trooper Hayes yelled at Hoover that he was under arrest, and asked him if he wanted to be "tased." When Hoover still did not comply, Trooper Hayes tasered Hoover and then handcuffed him.
The State charged Hoover with driving under the influence (DUI) and resisting arrest. Prior to the jury deliberations, Hoover moved for a judgment of acquittal on the resisting arrest charge. District Court Judge William Estelle denied the motion, finding that Hoover's conduct created a substantial risk of injury to the troopers and Hoover himself.
The jury later acquitted Hoover of DUI, but convicted him of resisting arrest. Hoover appeals.
Discussion
"When a defendant attacks a conviction for insufficiency of the evidence, this court must view the evidence presented, and reasonable inferences from the evidence, in the light most favorable to upholding the jury's verdict." Viewing the evidence from this perspective, we must decide whether a fair-minded juror exercising reasonable judgment could conclude that the State had met its burden of proving guilt beyond a reasonable doubt.
Id. at 500.
Id. at 500-01.
Alaska Statute 11.56.700(a) provides:
(a) A person commits the crime of resisting or interfering with arrest if, knowing that a peace officer is making an arrest, with the intent of preventing the officer from making the arrest, the person resists personal arrest or interferes with the arrest of another by
(1) force;
(2) committing any degree of criminal mischief; or
(3) any means that creates a substantial risk of physical injury to any person.
As this Court noted in Jones v. State, the resisting arrest statute is written narrowly to apply only to arrest situations. There are other situations, such as an investigative stop, where the police have the authority to restrain a person for reasons other than "the taking of a person into custody in order that the person may be held to answer for the commission of a crime," but the resisting arrest statute does not cover those situations.
11 P.3d 998, 1001 (Alaska App. 2000).
See id.; AS 12.25.160 (defining an arrest).
To convict a person of resisting arrest, therefore, the State must prove (1) that the police were arresting the person; (2) the person knew that the police were arresting him; (3) the person used force (or criminal mischief or means that created a substantial risk of physical injury) with the intent to prevent the police from making the arrest. "Although it is not invariably necessary for the state to prove that a person was explicitly told that he was under arrest in order to prove that the person knew that he was under arrest, the state must prove that the defendant was otherwise aware of the arrest."
Jones, 11 P.3d at 1001 (emphasis added).
Id.
Hoover argues that the evidence presented at trial was insufficient to establish that he knew the troopers were arresting him until the troopers explicitly told him, shortly before tasering him. The State does not address this argument in its brief. At oral argument, however, the State conceded that Hoover may not have understood that he was being arrested until Trooper Hayes told him that he was "under arrest" after he was already on the ground.
The evidence presented at trial establishes that Hoover was subject to an investigative stop and that he knew that he was the subject of a DUI investigation. It also indicates that Hoover knew that he could be handcuffed as part of the investigative stop and had been explicitly warned by Trooper Hayes that he would be handcuffed if he did not remain calm when the witness arrived. Despite this warning, Hoover did not remain calm. Instead, he began walking towards the witness's car, ignoring Trooper Cronin's order to stop. Both troopers immediately responded to contain the situation, grabbing Hoover's arm and following through on their previous warning that they would handcuff Hoover if he did not remain calm. It is not clear, however, when this attempt to restrain Hoover actually turned into an attempt to take Hoover into custody in order that Hoover could be held to answer for a crime (whether for the DUI or for something else). The law is clear that a person is not entitled to resist an arrest, even if it is illegal, but the person must know that an arrest is happening. Here, there is little reason to believe that Hoover would have understood that this was an actual "arrest" until Trooper Hayes told him so.
Id.
The State points out that Hoover continued to struggle with the officers even after he was told that he was "under arrest," requiring the officers to use the taser before Hoover finally submitted to the handcuffing. But relatively little time passed between when Hoover was told that he was under arrest and when the taser was used, and Hoover's actions during that time appear to have been limited to trying to roll over to keep his arms away from the troopers.
Hoover argues that his conduct constituted mere non-compliance with the troopers' attempts to handcuff him, and that none of his actions (including his actions when he was standing) created a "substantial risk of danger" to anyone. Emphasizing that the legislature did not intend resisting arrest to encompass "mere non-submission to arrest," Hoover compares his case favorably to Eide v. State.
168 P.3d 499, 502 (Alaska App. 2007) (citing Commentary on the Alaska Revised Criminal Code, 2 Senate Journal Supp. No. 47 at 85 (June 12, 1978)).
In Eide, the defendant was lying on the floor in a sleeping bag when the troopers came to arrest him. After telling Eide multiple times that he was under arrest, one of the troopers grabbed Eide's wrist and attempted to pull him up. Eide jerked his arm away and "turtled" into his sleeping bag, orienting his body so that his arms and wrists were underneath his torso and the troopers could not reach them to handcuff him. After repeatedly telling Eide to stop resisting arrest, the trooper used a taser on Eide. The trooper later explained that he was concerned that he or Eide would get hurt if he had to wrestle Eide into submission. After the trooper used the taser, Eide jumped up and submitted to the arrest.
Id. at 500.
Id.
Id. at 501-02.
Id. at 500.
Id.
Id.
We upheld the trial court's judgment of acquittal in Eide, holding that the evidence was insufficient to establish the crime of resisting arrest. We based our decision directly on the legislative commentary to AS 11.56.700, which indicated that the legislature did not intend to criminalize "mere non-submission to an arrest." We noted that the commentary included an example of conduct that the legislature envisioned as the kind that creates a "substantial risk of physical injury" — "fleeing in an automobile at high speed through a residential area" — and concluded that "[t]he gravity and imminence of the danger imposed by this conduct contrasts sharply with Eide's passive positioning."
Id. at 501-02.
Id. at 502.
Id.
The State argues that Eide is distinguishable from Hoover's case because Hoover's conduct was much less passive than Eide's. The State contends that Hoover "actively" tried to control the situation and that his conduct was inherently more dangerous because, for most of the interaction, he was standing and walking around the troopers, not curled up and lying on the ground.
But virtually all of the State's arguments distinguishing Hoover's case from Eide's rely on conduct that occurred prior to Hoover being brought to the ground and prior to Hoover being told that he was under arrest. As noted above, there was very little time between when Trooper Hayes told Hoover he was "under arrest" and when the taser was used. There was likewise very little testimony about what occurred during that time, and Hoover's actions appear to have been limited to the same type of "passive positioning" described in Eide.
The State argues that Hoover's failure to cooperate even after he was told he was under arrest resulted in the trooper's decision to taser him and that the tasering (or the need for tasering) demonstrates that Hoover resisted arrest by means that created "a substantial risk of physical injury" to himself and/or the troopers. But we rejected a similar argument in Eide, concluding that Eide's failure to cooperate was insufficient to show that Eide's conduct alone "actively create[d] a danger of physical injury."
Id. at 502.
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Based on the record presented here, we conclude that there was insufficient evidence to convict Hoover of the crime of resisting arrest.
Conclusion
The judgment of the superior court is REVERSED.