Supreme Court No. S-13449 Court of Appeals No. A-9930 Superior Court No. 4FA-06-3015 CR
The opinion of the court was delivered by: Fabe, Justice.
Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER. Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, e-mail firstname.lastname@example.org.
Petition for Hearing from the Court of Appeals of the State of Alaska, on appeal from the Superior Court, Fourth Judicial District, Fairbanks, Randy M. Olsen, Judge.
Before: Carpeneti, Chief Justice, Fabe, Winfree, Christen, and Stowers, Justices.
In August 2006 Jennifer Greenwood fled from her home in North Pole in the middle of the night, believing that she was about to be attacked by her former boyfriend and that he was planning to burn down his parents' nearby home. After screaming for help and calling 911, Greenwood got into her van and drove away. Greenwood drove less than a mile to her ex-boyfriend's parents' home and honked to try to wake them. She then drove a few blocks to the nearest well-lighted area along the highway, where she stopped to wait for the troopers who were responding to her 911 call, flagging them down when they arrived.
Greenwood had been drinking, and she was arrested and charged with felony driving under the influence. After hearing evidence and testimony about these incidents, the trial court denied Greenwood a jury instruction on the necessity defense, concluding that Greenwood was justified only in driving as far as her ex-boyfriend's parents' home. A jury convicted Greenwood, and the court of appeals affirmed, reasoning that Greenwood had presented no evidence that the danger continued after she reached the parents' home and that she had the alternative of remaining in her van with the doors locked. Because we conclude that Greenwood presented some evidence of each of the elements of the necessity defense, we reverse and remand for a new trial with a necessity instruction.
II. FACTS AND PROCEEDINGS
On August 10, 2006, Jennifer Greenwood was home alone in her camper in North Pole waiting for Jay Way to arrive. Greenwood wanted to speak with Way, whom she had dated that summer, about her missing puppy that she suspected he may have taken. Because Greenwood's camper did not have electricity, she started a bonfire outside and lit some candles both inside and outside of the camper. As it grew late, Greenwood assumed that Way was not coming, and she let the fire burn down and began preparing for bed.
But Way did arrive on his four wheeler, and he and Greenwood had a couple of glasses of wine. Greenwood testified that when she brought up the subject of the missing puppy, Way seemed "kind of  mad," which made her feel vulnerable and afraid. Greenwood testified that she had been told that Way had been physically abusive with his previous girlfriend and had drug problems, and she decided that the best way to avoid conflict in the situation would be to agree to have sex with Way.
Afterwards, Greenwood went outside to check on the fire. While she was outside, she overheard Way "mumbling" inside the camper about how he was going to burn down both Greenwood's camper and his parents' home and how he would not go back to jail because "there won't be any witnesses." Greenwood then observed Way flinging the lit candles around her camper, so she began screaming for her neighbors to help her or call 911. When no one came to her aid, Greenwood ran into the woods barefoot with her other dog. She testified that she could hear Way thrashing around and throwing things, presumably in his search for her.
Greenwood's dog got away from her, ran towards Way, and began to bark. Way picked up a two-by-four board and swung it at the dog. While Way was distracted, Greenwood sneaked into the camper to grab her purse containing her cell phone and quietly headed back into the woods. Greenwood called her dog back to her and dialed 911 to request help. After she explained that Way was trying to burn down her house, the dispatch operator wanted her to stay on the line, but the dog got away again and started barking at Way, so Greenwood hung up. Way then hit Greenwood's dog with the two-by-four and began "to ride all around" on his four wheeler.
At that point, Greenwood ran to her van with her dog. She testified that she felt that she needed to get out of the situation and to drive to Way's parents' house to warn them of the danger because she did not have their telephone number. Greenwood decided to drive on the back road to reach Way's parents' house, less than a mile away, in order to avoid the fast traffic on the main road and to avoid crossing paths with Way.
When Greenwood arrived at Way's parents' home, she saw that all of the lights were off, so she slowed down and honked her horn to try to rouse them. She did not stop because she was afraid of running into Way, who lived with his parents, and because there were no lights on at the house. Greenwood then drove a "couple of blocks" to the nearest well-lighted spot on the main road, Holmes Road. She parked to wait for the troopers who would be responding to her 911 call, and when she saw them, she flagged them down by honking her horn and opening her door.
When the troopers arrived sometime after 2:00 a.m., they found Greenwood distraught and crying on the side of the road. While interacting with Greenwood, the troopers smelled alcohol and observed that she was exhibiting signs of intoxication. Greenwood submitted to a portable breath test and was arrested for driving under the influence. A ...