RUSTY J. REDDING, Appellant,
STATE OF ALASKA, Appellee.
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.
J. Shidner, Assistant District Attorney, Palmer, and Kevin G.
Clarkson, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Harbison,
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
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 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[.]" 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.
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.
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.
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 necessary.
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 lacked any
"right" or "reasonable ground," once the
issue was raised.
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. 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.
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 ...