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.
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. [*]
Gregory Taylor appeals his conviction for first-degree
failure to stop at the direction of a peace officer -
otherwise known as "felony eluding".
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.
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.
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.
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.
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.
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.
reasons we are about to explain, we find that neither of
these alleged errors constitutes plain error, and we
therefore affirm Taylor's conviction.
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.
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
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
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.
and his police dog followed Taylor, and Taylor was
apprehended approximately two minutes later. The police were
unable to track down the other man.
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 ...