Summary
holding that defendant pulling his hands away from arresting officer in an attempt to avoid handcuffs was insufficient to support a conviction for resisting arrest
Summary of this case from Schumacher v. StateOpinion
Court of Appeals No. A-8860.
October 4, 2006.
Appeal from the Superior Court, Third Judicial District, Dillingham, Frederick J. Torrisi, Judge, Trial Court No. 3DI-03-622 CR.
David D. Reineke, Assistant Public Defender, and Quinlan G. Steiner, Public Defender, Anchorage, for the Appellant.
W.H. Hawley, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Robert C. Nicholai Jr. was convicted, following a jury trial, of hindering prosecution in the first degree, a class C felony, and of resisting arrest, a class A misdemeanor. Nicholai appeals, arguing that the evidence was insufficient to support his convictions. We conclude that the State presented sufficient evidence for the jury to convict Nicholai of hindering prosecution in the first degree. However, we conclude that the State did not present sufficient evidence for the jury to convict Nicholai of resisting arrest.
AS 11.56.770(a)(1) and AS 11.56.700(a)(1), respectively.
Factual background
The appellate record in this case is unfortunately limited. The electronic recording of the first day of Nicholai's trial has not been found and therefore has not been transcribed for appeal. Accordingly, Superior Court Judge Fred J. Torrisi, who presided over Nicholai's trial, ordered the parties to submit affidavits to reconstruct the trial record. Judge Torrisi gave the parties the log notes of the trial along with his own notes which he took during the trial. The parties concluded that the log notes and Judge Torrisi's notes were sufficient to allow reconstruction of the record from the first day of trial. Therefore Judge Torrisi did not order an evidentiary hearing. Given this stipulation by the parties, we have relied on this limited record to decide the case.
Judge Torrisi's trial notes reflect that the State called five witnesses: Trooper Jeffrey Laughlin; Probation Officer Michael Conlan; Trooper Michael Brandenburger; Trooper Sergeant Richard Quinn; and Trooper John Holm. The State's theory of the case was that Nicholai had hindered prosecution in the first degree by interfering with the trooper's efforts to serve a felony arrest warrant on Walter Kuku, and that Nicholai had resisted arrest by pulling his hands away when the troopers tried to arrest him for hindering prosecution. Judge Torrisi had issued an arrest warrant for Walter Kuku. The parties apparently stipulated that the arrest warrant was for a felony offense. (Kuku was on probation for a felony and had violated his felony probation.)
The trial testimony of Trooper John M. Holm was transcribed. Trooper Holm testified that he, along with the other troopers and a probation officer, went to Twin Hills to assist in serving the arrest warrant on Walter Kuku. Trooper Holm flew with an Alaska Department of Fish and Game agent from Naknek to Twin Hills. There he met up with the other troopers and the probation officer. They walked to Walter Kuku's residence.
While they were outside Walter Kuku's residence, they saw Robert Nicholai. He was driving a Honda four-wheeler. Nicholai entered the Kuku residence. After apparently having a conversation inside, Nicholai left the residence and approached the troopers. Nicholai had a pad of paper and a pen. Nicholai asked the troopers for their names and badge numbers. The troopers gave Nicholai that information and told him that they had an arrest warrant for Walter Kuku and that they were going to arrest Kuku and take him away with them. After this exchange, Nicholai went back inside the house, came back out, and drove away on his four-wheeler.
The troopers were told that Walter Kuku might be at his father's house. The troopers then walked to Walter Kuku's father's house. When they arrived, they discovered that Nicholai's four-wheeler was there.
The troopers knocked on the door, identifying themselves as Alaska State Troopers. They stated that they needed to speak with Walter Kuku. They got no response. Trooper Holm said he knocked for five to ten minutes. He then took a break from knocking, stating that it was extremely cold outside. While another trooper knocked on the door, Trooper Holm walked around the house. He saw that there was a light on in the bedroom, and he saw that there were people in the house. He heard the other trooper knocking loudly on the door identifying himself as a state trooper and stating that they needed to talk to someone.
Trooper Holm then went back to the front door and continued knocking. He stated that the total period of time the troopers knocked on the door was probably thirty-five to forty minutes. Meanwhile, the troopers were in the process of obtaining a telephonic search warrant for Walter Kuku's father's residence. The troopers obtained the warrant and were waiting until the trooper who obtained the warrant got to the house. At this point Nicholai opened the front door of the residence. Trooper Holm told Nicholai that he needed to speak with Walter Kuku. One of the troopers told Nicholai that they had a search warrant to enter the house to look for Kuku. Nicholai then tried to step out of the house and close the door behind him. The troopers tried to stop Nicholai from closing the door, but Nicholai was able to close it. Trooper Holm then placed Nicholai under arrest for hindering prosecution. The door was locked, and the troopers had to kick the door in to enter the residence and arrest Walter Kuku. According to the State, Nicholai resisted arrest by trying to pull his hands away when Trooper Brandenburger attempted to handcuff him.
Under the Alaska Statutes, "[a] person commits the crime of hindering prosecution in the first degree if the person renders assistance to a person who has committed a crime punishable as a felony with the intent to hinder the apprehension [of the person]." The statutes define "renders assistance" broadly. A person renders assistance if he "harbors or conceals" a person, warns the person of "impending discovery or apprehension," aids the person in "avoiding discovery or apprehension," or "prevents or obstructs, by means of force, threat, or deception, anyone from performing an act which might aid in the discovery or apprehension of the other person. . . ." If we evaluate the evidence in the light most favorable to the State, a jury could find that Nicholai committed hindering prosecution in the first degree. The troopers told Nicholai that they had a warrant for Walter Kuku and intended to arrest him and take him away. After this conversation, Nicholai got on his four-wheeler and drove to the residence where Walter Kuku was staying. The residence was apparently a considerable distance from where Nicholai first encountered the troopers because the troopers were not able to see where he went after he left Kuku's residence on his four-wheeler. They discovered that he was at Walter Kuku's father's residence when they saw his four-wheeler there.
AS 11.56.770(a)(1).
AS 11.56.770(b)(1)-(4).
When the troopers arrived at the father's residence, they knocked on the door for a considerable period of time, announcing that they were state troopers and that they needed to talk to Walter Kuku. Although it was clear that there were people in the residence, no one answered the door. Nicholai knew that the troopers had a warrant for Kuku, and, in all probability, told Kuku and the people in the residence that the troopers had a warrant. Finally, Nicholai opened the door and encountered the troopers. One of the troopers told Nicholai that they had a search warrant for the residence. It is difficult to tell exactly what happened at this point. But taking the evidence in the light most favorable to the State, when the troopers tried to keep the door to the residence open, Nicholai managed to close the door behind him, locking it. Looking at the evidence in the light most favorable to the State, a jury could find that Nicholai rendered assistance to Walter Kuku under AS 11.56.770(b) by hindering his apprehension by the troopers.
We conclude, however, that the State did not present sufficient evidence for the jury to convict Nicholai of resisting arrest. We rely on our decision in Howard v. State. In Howard, we interpreted the resisting arrest statute. In interpreting the statute we discovered that it was derived from Hawaii's resisting arrest statute. We examined the commentary to the Hawaii statute. We relied on the Hawaii commentary which stated that the resisting arrest statute was intended "to confine the offense to forcible resistance that involves some substantial danger to the person." The State's theory of the case was that Nicholai resisted arrest by pulling his hands away from Trooper Brandenburger when Brandenburger was trying to handcuff him. The State never asserted that Nicholai engaged in any forcible resistance that involved substantial danger either to himself or the trooper. We accordingly conclude that the State did not present sufficient evidence to the jury to support a verdict that Nicholai committed the offense of resisting arrest.
101 P.3d 1054, 1058-59 (Alaska App. 2004).
Id. at 1059 (quoting Commentary on Haw. Rev. Stat. § 710-1026).
Conclusion
We conclude that the State presented sufficient evidence for the jury to convict Nicholai of hindering prosecution in the first degree. We affirm that conviction. We conclude that the State did not present sufficient evidence to allow the jury to convict Nicholai of resisting arrest. We therefore remand the case with directions to the superior court to enter a judgment of acquittal on the resisting arrest charge.
REMANDED.