Seibold v. State

959 P.2d 780, 1998 Alas. App. LEXIS 31, 1998 WL 271258

• Court: Court of Appeals of Alaska
• Decided: May 29, 1998
• Docket: 1593
• Status: Published

Opinions

OPINION

COATS, Chief Judge.

Dean Seibold was convicted, following a jury trial, of criminal mischief in the third degree, a class A misdemeanor. AS 11.46.484. Seibold appeals his conviction to this court, arguing that District Court Judge Charles R. Pengilly erred in refusing to instruct the jury on the defense of necessity. We reverse Seibold’s conviction.

On September 25, 1995, Paul Knopp was driving home to his farm near Delta Junction in his flatbed truck. Dean Seibold, a neighbor of Knopp, was on the highway behind Knopp. When Knopp slowed down to turn into his driveway, there was a collision between the two trucks. Knopp drove seventy-five to one hundred feet up the driveway. Seibold followed, stopping his truck in Knopp’s driveway. Seibold approached Knopp’s truck, and an altercation occurred between the two men which resulted in Sei-bold breaking the window in Knopp’s truck. Knopp testified that he was locking the door of his truck and rolling up the window as Seibold approached, and Seibold broke the window of the truck with his fist. He testified that Seibold attempted to assault him, but Knopp picked up a hammer from the floor of his truck, and Seibold retreated to his own truck. Seibold testified that when he approached Knopp’s truck the window was still open, and that when he reached in to unlock the door Knopp closed the window on his arm. The window broke while Seibold was struggling to free his arm.

At this point Knopp’s wife, Laure, approached from the driveway of the residence. Laure was carrying a nine-millimeter senii-automatic handgun in a shoulder holster and she was carrying a camcorder with which to film the incident. Apparently Seibold also had a camcorder with which he did some filming of the- incident. There was then an altercation between Laure Knopp and Sei-bold. According to Laure Knopp, she told Seibold to get off of the Knopps’ property. Seibold hit Laure on the side of the head, knocking her down. Seibold then took the nine-millimeter semi-automatic handgun from her. According to Laure Knopp, at this point Seibold’s wife, Patty, who had arrived at the scene in her truck, assaulted Laure by grabbing her by the hair and flinging her into a ditch. According to Laure Knopp, Seibold then pointed the gun in the air and fired a shot. Seibold and Patty then went back to their truck. Seibold then put the gun on the ground, and destroyed it. According to Dean Seibold, when Laure arrived at the scene, Seibold was filming the Knopps with his camcorder. Laure starting hitting him, and in the course of defending himself, he was able to take the gun away from her. Seibold then tried to back away with the gun but Laure kept pursuing him, attempting to take the gun back from him. According to Seibold, the gun went off when he was pointing it toward the ground, trying to' figure out how to unload the gun. Apparently the Sei-bolds had summoned the troopers on a han-dheld radio. However, Seibold testified that because the police had not yet arrived he felt that he had no choice but to destroy the gun. Seibold maintained that he destroyed the gun out of “total fear.” He said he felt that he was in immediate danger from the gun even though he had control of it because he feared the Knopps might get it away from him. After he destroyed the gun, Seibold tossed it on top of his truck. Patty Seibold then left in her truck. A short time later Trooper Steve Baer arrived at the scene and Seibold handed him the handgun.

The state charged Dean Seibold with three misdemeanor offenses: criminal mischief in the third degree for smashing the window of Paul Knopp’s truck, criminal mischief in the third degree for destroying the nine-millimeter handgun, and assault in the fourth degree for assaulting Laure Knopp. The state charged Patty Seibold with assaulting Laure Knopp. The state tried the Seibolds together in a joint trial. The Seibolds defended on the ground that they acted in self defense, and Judge Pengilly gave the jury instructions on self defense. Judge Pengilly stated that the evidence in support of self defense and defense of others was "very, very thin" but agreed to give the proposed instruction. However Judge Pengilly declined to instruct the jury on the defense of necessity, which Seibold contended was applicable to the criminal mischief charge for damaging the nine-millimeter semi-automatic. The jury acquitted the Seibolds on all of the charges except for the criminal mischief charge for destroying the handgun.

Seibold contends that Judge Pengilly erred in rejecting his request to instruct on the defense of necessity. Under Alaska law, the common-law affirmative defense of necessity is available to criminal defendants except where preempted by the legislature. AS 11.81.320; Bird v. Anchorage, 787 P.2d 119, 120 (Alaska App.1990). 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; and

(3) the harm caused was not disproportionate to the harm avoided.

Bird 787 P.2d at 121. The defense is established if the accused reasonably believed at the time of acting that the first and second elements were present, but a reasonable belief will not suffice for the third element; the court makes "an objective determination ... as to whether the defendant's value judgment was correct, given the facts as he reasonably perceived them." Bird, 787 P.2d at 120-21 (citing Cleveland v. Anchorage, 631 P.2d 1073, 1078 (Alaska 1981)). A defendant is entitled to a jury instruction on the necessity defense if he presents "some evidence" in support of each of the three elements of the defense. Degler v. State, 741 P.2d 659, 661 (Alaska App.1987); Schnabel v. State, 663 P.2d 960, 966 (Alaska App.1983).

In rejecting Seibold's request for a necessity defense, Judge Pengilly found that Seibold had not presented evidence that he had no reasonable alternative to destroying the gun. Judge Pengilly contended that the evidence showed that Seibold could have given the weapon to Patty Seibold or that Sei-bold could have locked the weapon in the cab of Seibold's truck.¹

We start out with the premise that a defendant is entitled to a trial by jury and that the court should instruct the jury on the defendant's defense. Folger v. State, 648 P.2d 111, 113-14 (Alaska App.1982). In determining whether a defendant has presented some evidence in support of his defense, "any weakness or implausibility in the evidence supporting [a defendant's) story is not a relevant consideration." Toomey v. State, 581 P.2d 1124, 1126 n. 10 (Alaska 1978); Houston v. State, 602 P.2d 784, 785-88 (Alaska 1979). In Folger, a case where the defendant alleged self defense, we stated:

We think a strong argument can be made that a trial judge should err on the side of giving instructions on self defense so as to avoid a needless appellate issue in cases in which a weak case for self defense is presented. We also think that in a case such as this where self defense is presented as a possible defense, there is a danger that the jury may consider its own understanding of what self defense is in the absence of an instruction from the court. It seems preferable to have the jury correctly instructed.

Folger, 648 P.2d at 114 n. 3. In general, similar considerations apply regardless of what defense the defendant proposes. The defendant is entitled to a jury trial, and it is the duty of the trial judge to instruct on any defense for which there is some evidence. In Willett v. State, 836 P.2d 955, 958 (Alaska App.1992), we stated:

"In order to satisfy the `some evidence' test, it is not necessary that the defendant testify or even offer direct evidence in his own behalf. Some evidence establishing a dispute as to a factual issue may arise from weakness in the prosecution’s evidence or from impeachment of its witness. Similarly, circumstantial evidence presented as part of the state’s case-in-chief may give rise to some evidence of a disputed fact.” Nathaniel v. State, 668 P.2d at 855 (Alaska 1983) (citations omitted). To determine whether this test has been met in a particular case the court must view the evidence in the light most favorable to the defendant. Paul v. State, 655 P.2d 772, 776 (Alaska App.1982). As long as there is some evidence to support the defendant’s theory of the case, any weakness or implausibility in that theory is a matter for the jury, not for the court. See Folger v. State, 648 P.2d at 113.

Admittedly, there are some exceptions to this doctrine where the defense of necessity is concerned. There are several Alaska eases which conclude that trial judges did not abuse their discretion in refusing to give necessity defenses. However, we believe that a close reading of those cases establishes that the defendants in those cases had clear legal alternatives to violating the law. See Nelson v. State, 597 P.2d 977, 980 (Alaska 1979) (finding that defendant had several lawful alternatives and that “[t]he seriousness of the offenses committed by Nelson were disproportionate to the situation he faced.”); Schnabel, 663 P.2d at 966 (holding that defendant “had adequate alternatives in judicial and administrative remedies to the course he took”); Cleveland, 631 P.2d at 1081 (holding necessity defense not available to abortion clinic protesters since “Alaska’s Legislature has ... already spoken as to the balancing before us, and concluded that the interests in potential life appellants sought to vindicate are outweighed by the very privacy interests in potential life appellants sought to invade.”); Gerlach v. State, 699 P.2d 358, 361-63 (Alaska App.1985) (finding that noncustodial mother charged with custodial interference for taking her child out of the state for a year was not entitled to necessity instruction based on her claim that the child’s father was abusive, because the harm she caused was disproportionate to the harm avoided and because she “had adequate remedies at law. Her failure to avail herself of those remedies precludes her reliance on a necessity defense.”). In all of the above cited cases, it seems clear that the defendants had clear legal alternatives. However this is not so in the present case. The general principle for which Seibold argues appears beyond dispute: it would be preferable for Seibold to destroy the handgun rather than have it used in an assault, which could have resulted in death or serious physical injury. The question that the case raises is whether it was necessary for Seibold to destroy the weapon to avoid this possibility. The answer to this question turns on the specific facts of the case and therefore falls particularly within the province of the jury. Although Judge Pengilly’s view of the facts was that Seibold had several preferable alternatives to destroying the weapon, the jury might have taken a different view. We note that although Judge Pengilly described Sei-bold’s self defense claims as “very, very thin” the jury ultimately acquitted based on that self defense theory. This illustrates that the jury might have taken a different view of the evidence than Judge Pengilly. Since Seibold was entitled to a jury trial, he was entitled to have the jury pass, on the sufficiency of his defense.

We are also influenced, to some degree, by the statute which criminalizes criminal mischief in the third degree. AS 11.46.484(a)(1) provides: ■ ■

(a) A person commits the crime of criminal mischief in the third degree if, having no right to do so or any reasonable ground to believe the person has such a right

(1) with intent to damage property of another, the person damages property of another in a amount of $50 or more but less than $500[.]

(Emphasis supplied.) In reviewing this case, we discovered that the trial court did not instruct on the language which we have emphasized in the statute. It occurred to us that the omitted language could arguably encompass a necessity defense. We therefore asked the parties to submit supplemental briefs discussing whether the omission of this language might constitute plain error. The parties submitted supplemental briefs which were not helpful in resolving this question. The state alleged that the language in question merely exempted from prosecution a person who destroyed his own property or who acted in good faith on the belief he had authority to destroy the property. The state did not cite to any authority for this proposition. Seibold contended that the language in question authorized a necessity defense and that, therefore, the omission of this language constituted plain error. Seibold also did not cite any authority for this proposition. With this limited briefing, we do not believe that it is appropriate for us to attempt to interpret the statute.²

The conviction is REVERSED.

1 . Seibold testified that he did not give the handgun to Patty Seibold to take away from the scene because Patty was afraid of guns.

2 . We have done some limited research on the derivation of the Alaska statute. Alaska’s pre-1978 "malicious mischief" did not contain the phrase, “having no right to do so or any reasonable ground to believe the person has such a right.” The 1976 preliminary report of the Criminal Code Revision included in the criminal mischief statute the words, "having no right to do so.” The commentary says, "Under this draft, one who honestly but unreasonably believes he has a right to deal with the property in the way he does is covered.” The commentary also says that the statute is "derived from the New York Revised Penal Law § 145 et seq” and is "almost identical to the Oregon Code.”

By the time of the 1977 Tentative Draft of the Criminal Code Revision, the phrase had evolved to the language: "having no right to do so or any reasonable ground to believe he has such a right.” Alaska Criminal Code Revision, Part XV at 17 (Ten. Draft 1977). The commentary to the draft says only: "Common to each degree of criminal mischief is the requirement that the defendant have no right nor any reasonable ground to believe he has a right to interfere with the properly."

AS 11.46.484 was enacted using the language of the 1977 Tentative Draft in § 4 ch 166 SLA 1978. The 1978 Senate Journal Supplement No. 47, which contains commentary to the 1978 Criminal Code, contains no reference to the enigmatic phrase.

Both the Oregon and New York statutes use the phrase, "having no right to do so nor reasonable ground to believe that the person has such a right." The New York statute is accompanied by commentary that says:

Finally, defendant must have no right to damage the property of another nor any reasonable ground to believe that he/she has such right. Notably, the crime is not committed where there is a reasonable, but mistaken, belief in the right to destroy the property in question. Thus, if A intentionally destroys property of B, under the mistaken but reasonable belief that A has title to such property, A is not guilty of criminal mischief.

New York Penal Code Sec. 145, commentary at 61 (1988) (citations omitted).