Rusty J. REDDING, Appellant,
STATE of Alaska, Appellee.
from the District Court, Third Judicial District, Palmer,
William Estelle, Judge. Trial Court No. 3PA-17-01122 CR
Bordon, Assistant Public Defender, and Quinlan Steiner,
Public Defender, Anchorage, for the Appellant.
J. Shidner, Assistant District Attorney, Palmer, and Kevin G.
Clarkson, Attorney General, Juneau, for the Appellee.
Allard, Chief Judge, and Wollenberg and Harbison, Judges.
J. Redding was charged with second-degree vehicle theft for
taking another persons 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 Reddings justification for taking the dirt bike.
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.
now appeals his conviction. Redding argues that the trial
court misallocated the burden of proof in this case with
respect to Reddings 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
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 States
burden to disprove necessity beyond a reasonable
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 States
concession is well founded.
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. 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. 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
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." 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 ...