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Taylor v. State

Court of Appeals of Alaska

May 26, 2017

CYRUS GREGORY TAYLOR, Appellant,
v.
STATE OF ALASKA, Appellee.

         Appeal from the Superior Court, Third Judicial District Trial Court No. 3AN-12-4678 CR, Anchorage, Stephanie E. Joannides, Judge.

          Appearances: Glenda J. Kerry, Girdwood, for the Appellant.

          Eric A Ringsmuth, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee.

          Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. [*]

          OPINION

          MANNHEIMER Judge.

         Cyrus Gregory Taylor appeals his conviction for first-degree failure to stop at the direction of a peace officer - otherwise known as "felony eluding".

         Under the statute defining this crime-AS 28.35.182(a) - the State must prove two elements: first, that the motorist failed to stop when directed to do so; and second, that the motorist, while eluding the police, (1) committed the separate offense of reckless driving, or (2) committed the separate offense of vehicle theft, or (3) caused an accident, or (4) caused serious physical injury.

         Taylor was indicted on the theory that he committed the offense of reckless driving while he was eluding the officers. However, toward the end of the trial, the trial judge (apparently acting sua sponte) amended the jury instruction on the elements of the crime - adding a provision which said that Taylor could alternatively be convicted of felony eluding if the jurors found that he caused an accident while he was eluding the officers.

         Even though the instruction on the elements of the crime now allowed the jurors to convict Taylor under either a "reckless driving" or a "caused an accident" theory, the judge did not instruct the jurors that they had to be unanimous as to which theory they thought the State had proved.

         Taylor's attorney did not object when the trial judge amended the elements instruction to include both a "reckless driving" theory and a "caused an accident" theory of the crime. Nor did Taylor's attorney object to the lack of a factual unanimity instruction.

         But on appeal, Taylor argues that it was plain error for the trial judge to let the jurors decide the eluding charge based on a "caused an accident" theory. Taylor contends that this theory was a fatal variance from the theory of reckless driving that the State presented to the grand jury.

         In the alternative, Taylor argues that the judge committed plain error by failing to give the jurors a factual unanimity instruction - i.e., an instruction requiring the jurors to reach unanimous agreement as to which of the two theories had been proved.

         For the reasons we are about to explain, we find that neither of these alleged errors constitutes plain error, and we therefore affirm Taylor's conviction.

         Underlying facts

         On May 15, 2012, Anchorage police officers Christopher Nelson and Matthew Jensen were on patrol, in separate patrol cars, when they saw a Suburban run a red light on DeBarr Road and then turn onto Pine Street. Officer Nelson activated his overhead lights and began to pursue the Suburban. Officer Jensen joined in the pursuit.

         Rather than stopping, the driver of the Suburban accelerated away from the officers. Traveling at speeds of up to 70 miles per hour, the driver of the Suburban engaged in evasive maneuvers through residential streets and alleys where the speed limit was between 25 and 30 miles per hour. The driver swerved, slid, made sharp turns, and at times fish-tailed out of control.

         The officers followed the Suburban until it stopped just behind a parked Nissan Maxima. Although the officers did not perceive it at the time, the Suburban apparently collided lightly with the Maxima.

         Officer Nelson pulled his patrol car in behind the Suburban, intending to box it in and prevent it from leaving. The driver of the Suburban then backed his vehicle into Nelson's patrol car. At this point, both officers saw Taylor exit the Suburban through the driver's door and start running away toward the south. There was a second man in the Suburban, and he fled toward the northwest.

         Nelson and his police dog followed Taylor, and Taylor was apprehended approximately two minutes later. The police were unable to track down the other man.

         When Taylor was apprehended, he had a strong odor of alcohol and his speech was slurred; he also had bloodshot, watery eyes. The police arrested Taylor for driving under the ...


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