Redding v. State

          Appeal from the District Court, Third Judicial District No. 3PA-17-01122 CR, Palmer, William Estelle, Judge.

          Tristan Bordon, Assistant Public Defender, and Quinlan Steiner, Anchorage, for the Appellant.

          Glenn J. Shidner, Assistant District Attorney, Palmer, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee.

          Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges.

          OPINION

          WOLLENBERG JUDGE.

         Rusty J. Redding was charged with second-degree vehicle theft for taking another person's dirt bike. At trial, Redding argued that he took the dirt bike for the sole purpose of getting to an area where he could place a call for help. The State contested Redding's justification for taking the dirt bike.

         The trial court instructed the jury on the defense of necessity. The instruction stated, and the prosecutor argued, that Redding had the burden of proving this necessity defense by a preponderance of the evidence. The jury rejected the necessity defense as instructed and convicted Redding of second-degree vehicle theft.

         Redding now appeals his conviction. Redding argues that the trial court misallocated the burden of proof in this case with respect to Redding's necessity defense. Redding notes that a person commits the crime of second-degree vehicle theft if, in relevant part, the person drives, tows away, or takes the propelled vehicle of another, "having no right to do so, or a reasonable ground to believe the person has such a right[.]"^[1] Relying on McGee v. State, a case in which the Alaska Supreme Court interpreted similar language in the criminal mischief statutes, Redding contends that it was the State's burden to disprove necessity beyond a reasonable doubt.^[2]

         The State agrees with Redding and concedes error. The parties jointly ask this Court to vacate the judgment and remand for further proceedings. Having independently reviewed the record and the parties' pleadings, we conclude that the State's concession is well founded.^[3]

         A defendant is entitled to a jury instruction on the defense of necessity if the defendant presents "some evidence" that: (1) the charged offense was committed to prevent a significant evil; (2) there was no adequate alternative to the charged offense; and (3) the foreseeable harm from the unlawful conduct was not disproportionate to the harm avoided by breaking the law.^[4] In this case, the State did not contest that Redding was entitled to a necessity instruction.

         Generally, once an instruction is warranted, the necessity defense is an affirmative defense that the defendant must prove by a preponderance of the evidence.^[5]But in McGee, the Alaska Supreme Court held that, in the context of a criminal mischief case where the defendant places necessity at issue, the State bears the burden of proving beyond a reasonable doubt that the defendant had no reasonable ground for believing that his actions were necessary.^[6]

         The McGee court noted that, under Alaska law, the offense of criminal mischief requires proof that a person intentionally damaged the property of another, while "having no right to do so or any reasonable ground to believe the person has such a right."^[7] The court held that this language was an "integral part of the offense" itself, and that the State therefore had the burden of proving that the defendant lacked any "right" or "reasonable ground," once the issue was raised.^[8]

         The court further concluded that the word "right," as used in the criminal mischief statutes, was not limited to a property right, but was instead broad enough to encompass claims of right based on legal justifications like necessity.^[9] Consequently, the supreme court held that, once McGee placed the defense of necessity at issue in his criminal mischief case, the State bore the burden of proving beyond a reasonable doubt that he had no reasonable ground to believe that his actions were necessary.^[10]

         In this case, Redding was charged with second-degree vehicle theft, not criminal mischief. But like the criminal mischief statutes, the second-degree vehicle theft statute criminalizes certain conduct when the person engaging in that conduct has "no right to ...