Opinion
Court of Appeals No. A-9351.
June 13, 2007.
Appeal from the Superior Court, Third Judicial District, Kenai, Harold M. Brown, Judge, Trial Court No. 3KN-04-1721 CR.
Kathleen M . Murphy, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Blair M. Christensen, 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 Stewart, Judges.
MANNHEIMER, Judge, with whom STEWART, Judge, joins, concurring in the result.
MEMORANDUM OPINION AND JUDGMENT
Mark A. Ridl was convicted of first-degree failing to stop at the direction of a peace officer and felony driving while under the influence of alcohol, both of which are class C felonies.
AS 28.35.182(a).
AS 28.35.030(a)(1) or (2).
AS 28.35.182(e) and AS 28.35.030(n), respectively.
At grand jury, an Alaska state trooper testified that, on the evening of June 10, 2004, Ridl failed to stop at his direction. At Ridl's trial, the State offered the testimony of the trooper and, in addition, offered the testimony of a Soldotna police officer who stated that, a few minutes earlier on that same evening, Ridl also failed to stop at his direction (prior to Ridl's encounter with the state trooper).
Ridl asked the trial judge to preclude the jury from considering the Soldotna police officer's testimony as a basis for convicting him of failing to stop. Ridl argued that his encounter with the Soldotna police officer was a separate incident — a separate offense, evidence of which had not been presented to the grand jury. He argued that if the jury was allowed to convict him based on his refusal to heed the police officer's order to stop, this would constitute a fatal variance from the crime for which he had been indicted ( i.e., his failure to heed the state trooper's order to stop).
Superior Court Judge Harold M. Brown concluded that the entire incident — that is, Ridl's flight from both officers — constituted one continuous event, and that it was therefore proper for the jury to consider the testimony of both officers when determining whether Ridl had committed the offense of failing to stop at the direction of a peace officer.
The jury convicted Ridl, and Ridl now appeals, again asserting that there was a fatal variance between the offense for which he was indicted and the offense for which he was convicted. For the reasons explained here and in the concurring opinion, we affirm Ridl's conviction.
Factual and procedural background
Soldotna Police Officer Tony Garcia was on patrol the evening of June 10, 2004, when he saw an individual — later identified as Ridl — traveling on a four-wheeler headed northbound on Kobuk Street. The four-wheeler caught Officer Garcia's attention because off-road vehicles are prohibited inside the city of Soldotna. The four-wheeler was traveling toward Officer Garcia and swerving all over the bike lane, which is a three-foot wide lane between the car lane and the curb. Garcia stopped in the southbound lane, activated his police cruiser's emergency lights, and gestured with his hand for Ridl to stop. The still-swerving four-wheeler came within four or five feet of Officer Garcia's cruiser — close enough that Ridl made eye contact with Garcia. Instead of stopping, Ridl accelerated and continued down Kobuk Street. Garcia observed that, in addition to swerving, Ridl had bloodshot, red, watery eyes.
Garcia made a U-turn and then followed the four-wheeler down Kobuk Street. He observed the four-wheeler turn left onto Vine Street at a high rate of speed. He followed the four-wheeler down Vine until it cut through a residential lawn and headed toward Marydale Avenue. Garcia lost track of the four-wheeler at this point, so he informed dispatch that he had lost sight of the four-wheeler and prepared to resume his normal patrol. But a few moments later, Garcia saw the four-wheeler again, traveling eastbound on Marydale. Garcia followed the four-wheeler as it turned back onto Kobuk and then proceeded past city limits. When the four-wheeler passed city limits, Garcia contacted dispatch and requested that any state troopers in the area be advised that a four-wheeler was headed out of town, driving erratically. He then resumed his normal patrol.
In response to Garcia's report, dispatch informed Alaska State Trooper Mike Cresswell that a four-wheeler was on the Spur Highway headed towards Kenai, and the driver was believed to be intoxicated. Trooper Cresswell responded to the call and headed down the Spur Highway toward Kenai with his siren activated and emergency lights flashing. He proceeded as far as Kenai Auto before he saw the four-wheeler. Cresswell made eye contact with Ridl, but Ridl turned the four-wheeler 180 degrees and sped through a series of natural and artificial barriers outside Kenai Auto. Cresswell lost sight of the four-wheeler as it maneuvered through these barriers. After a few minutes, Cresswell found a way through the barriers and drove into a parking lot. At this point, he observed Ridl lying on the ground about twenty feet away from the still-running four-wheeler. Cresswell observed as Ridl stood up, dusted himself off, and staggered toward the four-wheeler. He then gave Ridl a clear hand signal to stop. But Ridl continued walking toward the four-wheeler, even after Cresswell again instructed him to stop. Ridl continued walking and reached out to grab the handlebars of the four-wheeler. Cresswell approached Ridl to stop him. Ridl then attempted to strike Cresswell, but Cresswell was able to grab Ridl's arm and detain him on the ground.
The State presented Ridl's case to a grand jury on July 30, 2004. Officer Garcia did not testify before the grand jury; the State relied on the testimony of Trooper Cresswell. Cresswell testified that on June 10, dispatch informed him that someone who appeared to be intoxicated was headed down the Spur Highway toward Kenai on a four-wheeler. Cresswell pursued the four-wheeler, and when he encountered it, the operator (Ridl) turned in the opposite direction and sped away. Cresswell testified that when he encountered Ridl again in the Kenai Auto parking lot, Ridl refused to stop at his command, and Ridl had to be physically restrained from getting back onto the four-wheeler. Cresswell testified that Ridl smelled of alcohol. After Cresswell got Ridl under control, officers from the Soldotna Police Department arrived on scene.
The grand jury indicted Ridl on one count of felony driving while under the influence and one count of first-degree failing to stop at the direction of a peace officer.
AS 28.35.030(a)(1) or (2).
AS 28.35.182(a). For the State to prove first-degree failure to stop at the direction of a peace officer, the State had to prove that Ridl was driving a motor vehicle in "a manner that create[d] a substantial and unjustifiable risk of harm to a person or to property" — i.e., a violation of Alaska's reckless driving statute, AS 28.35.400(a). See AS 28.35.182(a)(1).
At the beginning of Ridl's trial, Ridl's attorney asked Judge Brown to prohibit the State from offering the testimony of Officer Garcia. (Officer Garcia was on the State's witness list.) Ridl's attorney anticipated (correctly) that Officer Garcia would be testifying that Ridl failed to stop at his direction. The defense attorney argued that this was not the same failure to stop that the State had presented to the grand jury, and thus the State would be creating a variance — by inviting the jury to convict Ridl for failing to stop at Officer Garcia's direction, even if the jury believed that Ridl was not guilty of failing to stop for Trooper Cresswell.
In response, the State argued that Ridl's failure to stop was a continuous event that involved both officers. Judge Brown agreed with the State's position. He ruled that Ridl had committed only one offense, and that this single offense was observed by both Officer Garcia and Trooper Cresswell. The judge pointed out that the indictment did not name a specific peace officer as the person for whom Ridl had failed to stop. The judge also pointed out that there was no rule limiting the State's evidence at trial to the evidence that was presented to the grand jury.
Both Officer Garcia and Trooper Cresswell testified at trial that Ridl had failed to stop at their direction. Before the case went to the jury for decision, Ridl's attorney asked Judge Brown to require the jury to return a special verdict setting out whether the jury found that Ridl had failed to stop at the direction of Trooper Cresswell or had failed to stop at the direction of Officer Garcia, or both. Judge Brown denied this request for the special instruction — again ruling that all of Ridl's actions constituted a single continuous offense.
The jury found Ridl guilty of first-degree failure to stop at the direction of a peace officer and felony driving while under the influence. Ridl appeals, contending that he was potentially convicted of an offense that differed from the one for which he was indicted.
Why we uphold Judge Brown's ruling
Ridl argues that the State constructively amended the charge against him when the State presented Officer Garcia's testimony. Ridl contends that Garcia's testimony dealt with a criminal event that was not presented to the grand jury ( i.e., Ridl's failure to stop at Garcia's direction). The State again responds that all of Ridl's actions leading up to his arrest — his failure to stop for Officer Garcia, and his later failure to stop for Trooper Cresswell — constituted one continuous offense, and thus the trial jury convicted Ridl of the same offense specified in the indictment.
The Alaska Supreme Court has explained that "[t]he purpose of an indictment is `to furnish the accused with a description of the charge against him to enable him to prepare his defense.'" Indictments are to be construed liberally. But "[a]n indictment is insufficient if it fails either to inform adequately the defendant of the charges against him or to identify the offense with sufficient particularity so that the resulting judgment may be pleaded as a bar to subsequent prosecutions for the same crime." A "fatal variance" between the indictment and the conviction occurs if a defendant is convicted of a crime different than that charged in the indictment.
Harvey v. State, 604 P.2d 586, 588 (Alaska 1979) (quoting Thomas v. State, 522 P.2d 528, 530 (Alaska 1974)).
Bowers v. State, 2 P.3d 1215, 1218 (Alaska 2000) (citing Lupro v. State, 603 P.2d 468, 472-73 (Alaska 1979)).
Kott v. State, 678 P.2d 386, 389 n. 4 (Alaska 1984).
Michael v. State, 805 P.2d 371, 373 (Alaska 1991) (citing 2 W. R. LaFave J. Israel, Criminal Procedure § 19.2(h) at 466-67 (1984)).
In the trial court, Ridl pointed out that Officer Garcia never testified at the grand jury. He argued that his failure to stop at the direction of Officer Garcia was a separate charge from the one for which he was indicted and that he could therefore only be convicted for failing to stop at the direction of Trooper Cresswell. Judge Brown rejected this contention. He pointed out that it was undisputed that the State, through the testimony of Trooper Cresswell, had presented sufficient evidence for the grand jury to indict Ridl for failing to stop at the direction of a peace officer. He concluded that the testimony of Officer Garcia and Trooper Cresswell at trial demonstrated that they were talking about a single incident. He pointed out that Ridl received police reports which would have alerted him to the fact that this single incident involved more than one police officer. The judge reasoned that the State was only obligated to present sufficient evidence to support the indictment, and to give Ridl adequate notice of the charge against him. Judge Brown concluded that, since this was a single continuing offense, the State was not limited at trial to the testimony which it presented to the grand jury.
Although the other two members of this Court decline to decide this issue because of Ridl's inadequate briefing, the present author agrees with Judge Brown's ruling. The indictment gave Ridl notice that he was charged with failing to stop at the direction of a peace officer on June 10, 2004. The State, through the testimony of Trooper Cresswell, presented sufficient evidence for the grand jury to indict Ridl on this charge. Ridl does not argue that he did not have notice of the nature of the charges against him.
Officer Garcia was listed first on the State's witness list which the State provided to Ridl approximately three weeks before trial. And Ridl did not dispute Judge Brown's observation that the police report alerted him to Officer Garcia's participation in the failure to stop offense. Finally, Ridl could have moved for a bill of particulars under Alaska Criminal Rule 7(f) prior to trial if he needed to have more information about the nature of the charge.
See Lupro, 603 P.2d at 472 (stating that "[t]he purpose of a bill of particulars is to inform the defendant of the nature of the charges against him so that he may prepare a defense, to avoid prejudicial surprise at trial[,] and to protect against a second prosecution for the same offense") (citation omitted).
The evidence the State presented at trial supports Judge Brown's conclusion that this was a continuing incident. According to Officer Garcia, within a few minutes after he informed his dispatcher that he was no longer trying to stop the four-wheeler, Trooper Cresswell passed him with his lights and siren activated. Garcia then followed the trooper in a support role. Garcia arrived at the scene and saw Cresswell arrest Ridl. Cresswell's testimony corresponded to Garcia's testimony. The trooper testified that, after he received the message from his dispatcher about a possible intoxicated driver on a four-wheeler, he concluded that the incident was serious enough to respond with his emergency lights and siren activated. After passing a number of Soldotna Police Department cars, Cresswell saw Ridl on the four-wheeler.
All of this testimony supports Judge Brown's ruling that Ridl's failure to stop was a continuous event which took place over a short period of time. The present author therefore concludes that there is no merit to Ridl's claim that there was a fatal variance between the offense specified in the indictment and the offense for which the jury convicted Ridl at trial.
The judgment of the superior court is AFFIRMED.
I agree that Ridl's conviction should be affirmed, but I write separately because the lead opinion fails to adequately discuss the underlying legal issue presented in this appeal, and because the lead opinion also fails to point out Ridl's failure to meaningfully address that issue.
Ridl frames his argument in terms of his grand jury rights: the purported variance between the charge that was presented to the grand jury and the charge that was litigated at his trial. Judge Coats's lead opinion responds in kind. But the underlying legal issue in this case has little to do with grand jury law. Rather, the underlying question is how to define the offense of failing to stop at the direction of a peace officer.
The basic definition of this offense is codified in AS 28.35.182(b). The offense consists of "knowingly fail[ing] to stop as soon as [it is] practica[ble] and . . . reasonably safe . . . when requested or signaled to do so by a peace officer." The question presented in Ridl's case is how this statute should be applied to cases where, during a single continuing episode of flight, a driver is separately directed to stop by two or more officers, and the defendant refuses to honor any of the officers' requests.
Ridl's "variance" argument rests on the premise that, in such circumstances, the driver has committed two or more separately punishable failures to stop. Judge Brown declined to interpret the statute in this manner. Instead, he ruled that a driver violates the statute only once — i.e., the driver commits only one offense of failing to stop — under these circumstances.
If Judge Brown's interpretation of the statute is correct, then Ridl's "variance" argument evaporates — because, under this reading of the statute, Ridl committed a single continuing offense, with different officers witnessing this offense at various points in time.
The lead opinion endorses Judge Brown's construction of the statute. And it may be that Judge Brown's interpretation is correct — although the answer is not open and shut.
This type of statutory construction problem — trying to decide whether a defendant's course of conduct during a continuous criminal episode constitutes only one violation of the statute or, alternatively, several separately punishable violations of the statute — can be a particularly difficult one.
For instance, in Rodríquez v. State, 741 P.2d 1200, 1207-08 (Alaska App. 1987) (often miscited as "Rodriguez" in later cases), this Court held that different acts of sexual penetration committed during a single continuing sexual assault will support separate convictions only if the acts involved different forms of sexual penetration. Another instance of the same problem was presented to the Alaska Supreme Court in Thessen v. State, 508 P.2d 1192 (Alaska 1973). The question in Thessen was whether a defendant should be convicted of one count of manslaughter or several counts if the defendant, through a single act of recklessness, killed two or more people. In Thessen, the supreme court held that the defendant should be convicted of only one count of manslaughter. Id. at 1195. Thirteen years later, in State v. Dunlop, 721 P.2d 604 (Alaska 1986), the supreme court reversed Thessen and held that the defendant was properly convicted of a separate count of manslaughter for each victim. Dunlop, 721 P.2d at 608-09.
In Ridl's case, our job of interpreting AS 28.35.182(b) is made particularly difficult by the fact that Ridl's brief to this Court contains absolutely no discussion of this issue. Ridl does not argue that Judge Brown's interpretation of the statute was wrong. In fact, Ridl does not even mention Judge Brown's ruling.
This Court has repeatedly held that a party who seeks reversal of a trial court's decision forfeits their claim of error (because of inadequate briefing) if they make no attempt to address the basis of the trial court's ruling.
See Garhart v. State, 147 P.3d 746, 752 (Alaska App. 2006); Stevens v. Matanuska-Susitna Borough, 146 P.3d 3, 7-8 (Alaska App. 2006); Bobby v. State, 950 P.2d 135, 138 (Alaska App. 1997).
This rule of forfeiture stems from subsections (1)(G) and (1)(I) of Alaska Appellate Rule 212(c). Under these subsections, an appellant's brief must contain "a concise statement of . . . the decision of . . . the trial court" and "[a]n argument section . . . contain[ing] the contentions of the appellant with respect to the issues presented [in the appeal], and the reasons therefor".
As the supreme court explained in Lewis v. State, 469 P.2d 689, 691 n. 2 (Alaska 1970) (construing the predecessor rule, Supreme Court Rule 11(a)(8)), "[i]f the adversary system is to function at the appellate level, counsel's participation and minimal compliance with the rules of this court are necessary." These words are particularly apt in Ridl's case.
Even though Ridl does not acknowledge it, his case presents a matter of first impression: his claim of error hinges on a particular interpretation of AS 28.35.182(b), a statute that has not previously been interpreted. Although I believe that Judge Brown's interpretation of the statute is plausible and justifiable, I hesitate to give our imprimatur to Judge Brown's interpretation of the statute in the absence of any meaningful briefing.
Because Ridl has failed to address Judge Brown's interpretation of the statute, all that need be said here is that Ridl has failed to offer a convincing reason — indeed, any reason at all — for believing that Judge Brown's interpretation of the statute is erroneous.
I therefore concur in the decision to affirm Ridl's conviction, but my concurrence is based purely on the fact that Ridl, through inadequate briefing, has failed to address the key legal issue in this case. Under these circumstances, this Court need not, and should not, adopt Judge Brown's interpretation of AS 28.35.182(b). Instead, we should leave that question of statutory construction for another day.