Opinion
Court of Appeals No. A-12731 No. 6842
12-18-2019
NICKOLAS ADRIAN SEIFERT, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Bradly A. Carlson, Attorney at Law, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Ann B. Black, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.
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 authority for any proposition of law, although it may be cited for whatever persuasive value it may have. See McCoy v . State , 80 P.3d 757, 764 (Alaska App. 2002). Trial Court No. 3AN-14-10444 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Jack W. Smith, Judge. Appearances: Bradly A. Carlson, Attorney at Law, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Ann B. Black, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Allard, Chief Judge, Harbison, Judge, and Suddock, Senior Superior Court Judge. Judge SUDDOCK.
Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).
Nickolas Adrian Seifert appeals his conviction for driving under the influence of alcohol. Seifert argues that the superior court erred when it denied Seifert's request for a jury instruction on the defense of necessity.
For the reasons explained in this opinion, we conclude that Seifert failed to present legally sufficient evidence to support his necessity defense. Accordingly, we affirm Seifert's conviction.
Background facts and proceedings
In November 2014, Edith King drove Seifert's recreational vehicle (RV) to the Fred Meyer gas station on Northern Lights Boulevard in Anchorage and parked next to a gas pump. Seifert, who was riding as a passenger in the RV, exited and started panhandling. Seeing this, the gas station attendant told Seifert several times that he needed to leave.
After Seifert got back into the passenger seat, King started to drive away. But she turned the RV too sharply, scraping it against a protective stanchion, and running it into a display of window washer fluid near the gas pump. The attendant banged on the RV while yelling at King to stop. King panicked and abandoned the driver's seat.
Seifert took King's place in the driver's seat and drove the RV a short distance (he estimated half a car length). He then placed the gearshift into park and turned the engine off.
The gas station attendant had by then called the police. Officers arrived and arrested both King and Seifert for driving under the influence of alcohol. Seifert was subsequently administered a DataMaster test; his breath alcohol content was .271 percent. The State charged Seifert with driving under the influence.
AS 28.35.030(n).
At trial, Seifert conceded that he had driven while intoxicated, but he contended that his conduct was justified by necessity. He testified that when King abandoned the driver's seat, he believed that the RV was not level, perhaps because it had gone onto a curb. This concerned him due to a warning from his father the previous day. His father, who had given Seifert the RV, had told him that if he moved the RV from its rental parking spot to a new parking spot, he must ensure that the RV was flat and level before lighting the RV's pilot light; otherwise the pilot light and the heating and cooling systems would present a fire hazard.
Because of this warning from his father, Seifert testified that he believed the RV's positioning at the gas station posed a fire hazard. Therefore, he moved to the driver's seat and drove the RV forward half a car length to level ground before placing it in park.
In light of this testimony, Seifert requested the superior court to instruct the jury on the affirmative defense of necessity. The judge concluded that Seifert had failed to produce sufficient evidence to support two of the elements of a necessity defense, and accordingly denied Seifert's request.
The jury convicted Seifert of driving under the influence. Seifert now appeals.
Why we conclude that Seifert failed to present sufficient evidence regarding the risk of a fire
On appeal, Seifert argues that the trial judge erred when he denied Seifert's request for a jury instruction on the necessity defense.
A defendant charged with a continuing offense (like driving under the influence) is entitled to a jury instruction on the necessity defense if they present "some evidence" of the following four elements: (1) the defendant committed the charged offense to prevent a significant evil; (2) there was no adequate alternative to the charged offense; (3) the harm caused was not disproportionate to the harm avoided by breaking the law; and (4) the defendant stopped violating the law as soon as the necessity ended. "The term 'some evidence' refers to evidence that, if viewed in the light most favorable to the defendant, would allow a reasonable juror to find in the defendant's favor on each element of the offense."
State v. Garrison, 171 P.3d 91, 94 (Alaska 2007).
Id.
With respect to the first, second, and fourth elements, the defendant must show that, at the time of acting, they reasonably believed these elements were present. But with respect to the third element — that the harm caused by the defendant's action was not disproportionate to the harm the defendant avoided by breaking the law — "[a]n objective determination must be made as to whether the defendant's value judgment was correct, given the facts as [the defendant] reasonably perceived them."
Id.
Cleveland v. Anchorage, 631 P.2d 1073, 1078 (Alaska 1981). --------
Underlying the first three elements of Seifert's necessity defense was Seifert's alleged belief that the RV was at risk of near-immediate combustion if it was not level. If Seifert presented some evidence that this belief was reasonable, then it follows that he presented some evidence that: (1) he reasonably believed he needed to move the vehicle to prevent this significant evil; (2) he reasonably believed there was no adequate alternative to moving the vehicle immediately; and (3) the harm caused (driving an RV a short distance through a gas station while intoxicated) was not disproportionate to the harm avoided (setting an RV on fire at a gas station).
After reviewing the entire record in this case, and interpreting the evidence in the light most favorable to Seifert, we conclude that Seifert failed to present some evidence that he reasonably believed that the RV was at risk of near-immediate combustion. We therefore affirm the judgment of the superior court.
Unlike the risks posed by an extremely intoxicated person operating an RV, the risk that Seifert allegedly sought to avoid — an outbreak of fire if his RV remained briefly off-level — is not a matter of common knowledge. And Seifert presented no evidence illuminating the matter. Indeed, he professed no knowledge whatsoever as to the RV's systems or the manner in which uneven terrain might pose a fire hazard from those systems; he simply testified that his father had instructed him to park the RV on level terrain to avoid any risk of fire.
Seifert's father testified that he gave the RV to Seifert, who was a chronic alcoholic, so that Seifert would have a safe place in which to live. Seifert's father did not expect that the RV would be moved from its rental space. Nonetheless, he instructed his son that if the RV were ever moved to a new location, it must then be leveled before the propane appliances were turned on, or the RV would be at risk for a fire. But Seifert's father never asserted — either to Seifert or to the jury — that briefly leaving the RV on ground that was not level would present any realistic risk of a fire.
In sum, Seifert failed to present some evidence that he reasonably believed that leaving the RV on uneven ground for a brief period of time created a serious risk of fire. For this reason, we conclude that the judge properly denied Seifert's request for a jury instruction on necessity.
Conclusion
We AFFIRM the judgment of the superior court.