Keith Gilbert Ambacher v. State of Alaska ( 2022 )

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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
KEITH GILBERT AMBACHER,
Court of Appeals No. A-13119
Appellant, Trial Court No. 3SW-17-00226 CR
v.
OPINION
STATE OF ALASKA,
Appellee. No. 2737 — November 25, 2022
Appeal from the Superior Court, Third Judicial District, Seward,
Charles T. Huguelet, Judge.
Appearances: Glenda Kerry, Law Office of Glenda J. Kerry,
Girdwood, under contract with the Public Defender Agency, and
Samantha Cherot, Public Defender, Anchorage, for the
Appellant. Elizabeth T. Burke, Assistant Attorney General,
Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson,
Attorney General, Juneau, for the Appellee.
Before: Wollenberg, Harbison, and Terrell, Judges.
Judge WOLLENBERG.
A jury found Keith Gilbert Ambacher guilty of first-degree failure to stop
at the direction of a peace officer (felony eluding) and reckless driving.1 The trial court
subsequently merged the two verdicts into a single conviction for first-degree failure to
stop.
On appeal, Ambacher argues that there was insufficient evidence to
establish that he committed the offense of reckless driving — which elevated his crime
of failure to stop to a felony. We agree with Ambacher that the evidence was insufficient
to establish the crime of reckless driving, and we therefore reverse his conviction for
first-degree failure to stop at the direction of a peace officer. However, because the
lesser included offense of second-degree failure to stop at the direction of a peace officer
does not require proof of reckless driving, we remand for entry of a conviction and
resentencing on this lesser offense.
Given our conclusion that there was insufficient evidence of reckless
driving, we need not address Ambacher’s arguments that the prosecutor misstated the
law of reckless driving in his closing argument.
Ambacher also argues that the trial court erred in allowing a jury view
during which the jury observed and listened to the patrol car lights and sirens. Having
reviewed the record, we conclude that the trial court did not abuse its discretion in
allowing the jury view.
Underlying facts
Shortly after noon on October 15, 2017, a trooper observed a black pickup
truck turn from the Seward Highway onto Nash Road in Seward. October 15th was a
clear, dry day, and it was a Sunday, with few cars on the road. The trooper recognized
1
AS 28.35.182(a)(1) and AS 28.35.400, respectively.
–2– 2737
the truck as one driven by Keith Ambacher, whom the trooper knew had a revoked
driver’s license. The trooper activated his lights, but Ambacher continued driving. The
trooper then activated his siren. (A second officer followed, activating his own lights
and sirens.)
The trooper testified that Ambacher was driving 54 miles per hour when
he first activated his radar, but Ambacher then accelerated — ultimately driving at speeds
of up to 80 miles per hour in the 55 mile-per-hour zone. As Ambacher navigated a long
S-curve, the video from the trooper’s patrol vehicle showed that the trooper slowed to
speeds of 65 to 70 miles per hour while maintaining a similar speed to Ambacher. As
Ambacher continued through the S-curve, Ambacher’s left wheels briefly crossed the
double yellow lines, and on the subsequent righthand curve, Ambacher’s right wheels
crossed the fog line. The trooper’s video showed a pedestrian walking on the shoulder
on the other side of the road and a single truck traveling in the opposite direction.
The trooper’s video showed that, following the S-curve, the trooper’s speed
gradually accelerated to 80 miles per hour to keep up with Ambacher. Although
Ambacher was clearly speeding, nothing in the video or the trooper’s testimony indicated
that Ambacher did not have full control of his vehicle, or that he endangered other people
or property. They encountered no further cars on the road during the pursuit.
About a minute and a half into the pursuit, Ambacher slowed down and
turned into Bay View Trailer Park without activating his turn signal, and he came to a
full stop. The pursuit had covered 1.8 miles. Ambacher remained in the vehicle until the
trooper removed him at gunpoint and arrested him.
Ambacher was charged with first-degree failure to stop at the direction of
a peace officer and reckless driving.2
2
Ambacher was also separately cited for speeding and for the infraction of driving with
(continued...)
–3– 2737
Ambacher testified at trial. He admitted to speeding down Nash Road that
day without a good reason, but maintained that he did not know that the trooper was
following him and did not see the lights or hear the sirens. He also admitted to crossing
the lane lines, but he stated that he did not see any danger in doing so, since he believed
he could have avoided a collision if he saw anyone coming. He testified that he failed
to signal his turn because he did not think there was anyone behind him, and he certainly
would have signaled if he had known there was an officer behind him. He denied
attempting to outrun the police.
The jury found Ambacher guilty of first-degree failure to stop at the
direction of a peace officer and reckless driving. The trial court merged these verdicts
into a single conviction for first-degree failure to stop.
Why we conclude that there was insufficient evidence of reckless driving
and thus, felony eluding
Ambacher was convicted of first-degree failure to stop at the direction of
a peace officer (i.e., felony eluding). A person commits first-degree failure to stop if, in
relevant part, the person (1) commits second-degree failure to stop (i.e., the person fails
to stop at the direction of a peace officer as soon as practical and in a reasonably safe
manner under the circumstances), and (2) simultaneously commits the offense of reckless
driving.3
2
(...continued)
a revoked license.
3
AS 28.35.182(a)(1). A person also commits first-degree failure to stop if the person
fails to stop at the direction of a peace officer while committing vehicle theft, or if the person
causes an accident or serious injury. AS 28.35.182(a)(2)-(3). Neither of those theories was
at issue here.
–4– 2737
Reckless driving is defined by statute as driving “in a manner that creates
a substantial and unjustifiable risk of harm to a person or to property.”4 A “substantial
and unjustifiable risk” is defined as “a risk of such a nature and degree that the conscious
disregard of it or a failure to perceive it constitutes a gross deviation from the standard
of conduct that a reasonable person would observe in the situation.”5
On appeal, Ambacher does not dispute that there was sufficient evidence
to show that he knowingly failed to stop at the trooper’s direction. Rather, he argues that
the evidence presented at trial was insufficient to establish that he drove recklessly, and
therefore insufficient to convict him of felony eluding. More specifically, he argues that
the evidence failed to show that his driving created “a substantial and unjustifiable risk
of harm” such that his disregard of the risk was “a gross deviation” from the standard of
care a reasonable driver would observe.
When a defendant challenges the sufficiency of the evidence to support a
criminal conviction, we view the evidence, and all reasonable inferences from that
evidence, in the light most favorable to upholding the jury’s verdict.6 We then ask
whether a reasonable juror could find that the State had proven the defendant’s guilt
beyond a reasonable doubt.7
Here, Ambacher’s driving was directly captured on the trooper’s patrol car
video. Thus, the facts of Ambacher’s driving were largely undisputed, and the central
question was whether those facts constituted the crime of reckless driving. We have
watched the video — which was repeatedly played for the jury at trial — and reviewed
4
AS 28.35.400(a).
5
Id.
6
Iyapana v. State, 284 P.3d 841, 848-49 (Alaska App. 2012).
7
Id.–5– 2737
the testimony. Having reviewed the record, and in particular the video, we conclude that
— while the evidence certainly supports the conclusion that Ambacher committed traffic
infractions — the evidence does not support the conclusion that Ambacher’s driving was
“a gross deviation” from the standard of care a reasonable driver would observe.8
Ambacher undoubtedly exceeded the speed limit, driving at speeds of up
to 80 miles per hour in a 55 mile-per-hour zone. But it was a clear, dry day with few cars
around. The S-curve Ambacher navigated was relatively gentle, and he slowed down to
speeds of 65 to 70 miles per hour while he did so. Although Ambacher “cut corners” —
i.e., his wheels strayed slightly outside his lane on either side as he was navigating the
road — he did not obstruct the oncoming lane of traffic. And he remained in his lane of
travel thereafter, until he turned into the trailer park 1.8 miles after the pursuit began.
Nothing in the video or the trooper’s testimony suggested that Ambacher did not have
full control of his vehicle or that he endangered other people or property.
Moreover, while the trooper estimated at trial that Ambacher made the final
turn into Bay View Trailer Park at about 40 or 45 miles per hour, the video from his
patrol vehicle shows the trooper slowing to 30 miles per hour as he made the turn —
even while maintaining a steady distance from Ambacher. And after Ambacher turned
into the trailer park, he stopped his vehicle and stayed in his car while the officer
detained him.
We have previously held that a person need not actually endanger anyone
in order to commit the crime of reckless driving.9 But the legislative history of the felony
8
To watch the patrol car video is to understand best why the driving in this case did not
meet the legal standard for “reckless driving.” The video is on file with the Appellate
Clerk’s Office.
9
State v. Comeau, 758 P.2d 108, 116 (Alaska App. 1988).
–6– 2737
eluding statute illustrates that the crime of reckless driving requires something beyond
the conduct that occurred here.
As originally enacted in 1984, the crime of failure to stop at the direction
of a peace officer encompassed what is today the base-level misdemeanor offense — i.e.,
knowingly failing to stop a vehicle as soon as practical and in a reasonably safe manner
under the circumstances when requested to do so by a peace officer.10 In 1998, the
legislature added degrees to the statute, raising the offense from a misdemeanor to a
felony under certain broad circumstances — i.e., when the driver engaged in eluding was
also “violat[ing] a traffic law” or “commit[ting] another crime.”11 “Traffic law” was
expansively defined to include all statutes or ordinances “governing the driving or
movement of vehicles.”12
Four years later, in 2002, the legislature changed course, narrowing the
circumstances that elevate failure to stop to a felony out of concern that the felony
offense was being overcharged.13 As the counsel to the House Judiciary Committee
explained, the proposed amendment was intended to clarify that felony failure to stop
“requires something above and beyond a basic traffic violation” — in particular, it
10
SLA 1984, ch. 66, § 1 (enacting AS 28.35.182).
11
SLA 1998, ch. 136, § 1.
12
Former AS 28.35.182 (1998) (defining “traffic law” by reference to AS 28.15.261).
13
See, e.g., Audio of House Judiciary Comm., House Bill 381, testimony of Heather
Nobrega, counsel to House Judiciary Comm., at 1:14:14 – 1:14:49 (Feb. 13, 2002). (The
times cited refer to the time stamps in the audio recordings of the committee hearings, and
not to the time of day.)
–7– 2737
requires a simultaneous violation of the reckless driving statute, which is itself a criminal
offense.14
At that same hearing, a representative from the Department of Public
Safety, Deputy Commissioner Del Smith, expressed concern that the existing felony
eluding statute was being abused, and that “common sense” with respect to charging
decisions “has not carried through in each and every case.”15 For example, Smith
testified about a motorist who was charged with felony eluding after the motorist rapidly
accelerated to 10 miles an hour over the speed limit in response to a police pursuit, made
a left turn without a signal, and ultimately stopped after 1.25 miles — conduct similar
to Ambacher’s. Smith stated his belief that charging that driver with felony-level eluding
was “very inappropriate.”16 Rather, Smith stated that the charge of felony eluding “is
intended for the most egregious circumstances.”17
14
Id.
15
Id. at 1:18:38 – 1:19:25 (testimony of Deputy Public Safety Comm’r Del Smith); see
also Audio of Senate Judiciary Comm., House Bill 381, testimony of Heather Nobrega,
counsel to House Judiciary Comm., at 3:14 – 3:40 (Apr. 17, 2002) (explaining that a
representative from the Department of Public Safety had testified before the House Judiciary
Committee that the current felony eluding law was being “abused by the police officers”).
16
Audio of House Judiciary Comm., House Bill 381, testimony of Deputy Public Safety
Comm’r Del Smith, at 1:20:32 – 1:20:59 (Feb. 13, 2002).
17
Id. at 1:23:56 – 1:24:01. Indeed, Assistant Attorney General Anne Carpeneti, on
behalf of the Department of Law, agreed that the felony eluding statute was “too broad” as
originally written and she thought it was a “good idea” to limit it. However, she expressed
concern that limiting the aggravating circumstance only to the crime of “reckless driving”
was going “too far in the opposite direction.” The Department of Law therefore proposed
additional aggravating circumstances. Id. at 1:25:12 – 1:26:50 (testimony of Assistant
Attorney General Anne Carpeneti).
–8– 2737
The legislature subsequently adopted “reckless driving” as a circumstance
elevating misdemeanor eluding to a felony, along with the two other aggravating
circumstances that exist today (eluding while (1) committing a vehicle theft, or (2)
causing an accident or serious physical injury).18
In this case, Ambacher’s speed was excessive.19 But driving in excess of
the speed limit — a traffic infraction for which Ambacher was separately convicted —
is not necessarily sufficient to satisfy Alaska’s reckless driving statute. Indeed, we have
suggested that violating the speed limit, even by up to 20 miles per hour, is not alone
sufficient to sustain a negligent driving conviction, which is a lesser included offense of
reckless driving.20
18
SLA 2002, ch. 93, § 1.
19
See 2 Alaska Administrative Code (AAC) 90.310(a)(20) (assigning six demerit points
for driving 20 or more miles per hour over the speed limit).
20
See Comeau v. State, 758 P.2d 108, 115-16 (Alaska App. 1988); Lajiness v. State,
1997 WL 129084, at *1-2 (Alaska App. Mar. 19, 1997) (unpublished); AS 28.35.410(b).
Some states have held that speeding alone is insufficient to constitute recklessness unless the
speeding is grossly excessive or if there are additional circumstances that make the speeding
particularly dangerous. See, e.g., Damoah v. State, 189 So.3d 316, 320 (Fla. Dist. App.
2016) (“Speed alone does not constitute reckless conduct unless the speed is shown to be
grossly excessive.” (citation omitted)); State v. Munoz, 336 P.3d 424, 426 (N.M. App. 2014)
(“[S]peeding alone is insufficient to constitute recklessness. . . . But speeding can constitute
recklessness if the speeding created a danger for others and additional conduct establishes
that a driver willfully disregarded the safety of others.”). Other states have reckless driving
statutes that are expressly predicated on exceeding the speed limit by a certain amount. See,
e.g., Va. Code Ann. § 46.2-862 (“A person is guilty of reckless driving who drives . . . (i) at
a speed of 20 miles per hour or more in excess of the applicable maximum speed limit or (ii)
in excess of 85 miles per hour regardless of the applicable maximum speed limit.”); see also
Conn. Gen. Stat. § 14-222 (“The operation of a motor vehicle . . . at a rate of speed greater
than eighty-five miles per hour shall constitute [reckless driving].”); N.H. Rev. Stat. Ann.
§ 265:79 (defining reckless driving, in part, as “driv[ing] a vehicle at a speed of 100 miles
(continued...)
–9– 2737
Rather, as we have previously noted, in order to commit the crime of
reckless driving, a person’s conduct must create a “substantial and unjustifiable risk of
harm to a person or to property” and this risk must constitute “a gross deviation from the
standard of conduct that a reasonable person would observe in the situation.”21 That is,
the risk presented by an individual driver’s conduct must be analyzed within the context
of the circumstances in the case at hand, not in a generalized manner.
Here, there was no evidence that Ambacher was intoxicated, which we have
recognized as prima facie evidence of recklessness.22 He did not fail to stop at any traffic
signals,23 and while the wheels of his vehicle briefly crossed over the lane lines, he did
20
(...continued)
per hour or greater”).
21
AS 28.35.400 (emphasis added).
22
See Comeau, 758 P.2d at 115.
23
See, e.g., Lovett v. State, 2016 WL 362779, at *1 (Alaska App. Jan. 27, 2016)
(unpublished) (finding sufficient evidence of reckless driving when the defendant sped
through icy and snowy roads, drove through two stop signs, and had a blood alcohol content
of 0.197 percent); Williams v. State, 2015 WL 4599554, at *1-2 (Alaska App. July 29, 2015)
(unpublished) (finding sufficient evidence of reckless driving where, during a police pursuit
that lasted approximately thirty minutes, the defendant swerved from lane to lane, drove
through a trailer park in the opposite lane of travel, sped on the highway in icy conditions
(forcing cars to pull over), and ultimately drove through a red light); Snider v. State, 2018
WL 4908355, at *1-2 (Alaska App. Oct. 10, 2018) (unpublished) (finding sufficient evidence
of reckless driving where, in addition to driving 50 miles per hour over the speed limit on a
winding, hilly road, the defendant ran a stop sign, repeatedly crossed and swerved over the
center line, and eventually drove along active railroad tracks and then down the railway
embankment into a marsh).
– 10 – 2737
not engage in any particularly dangerous maneuvers in traffic.24 He was not speeding
in hazardous road conditions,25 and he stopped after a minute and a half.
Other courts considering similar or more egregious conduct have concluded
that the defendant was not guilty of reckless driving. In Luzardo v. State, the Florida
District Court of Appeal considered a case in which a driver involved in a fatal collision
was charged with vehicular homicide.26 Like Alaska’s felony eluding statute, Florida’s
vehicular homicide statute requires proof of the elements of reckless driving.27 The
Florida court concluded that driving 84 miles per hour in a 55 mile-per-hour zone on a
“narrow, straight, two-lane road” in a rural area on a clear, sunny day with light traffic
24
See, e.g., Calder v. State, 619 P.2d 1026, 1027 (Alaska App. 1980) (defendant
convicted of reckless driving for making a sudden left turn from the right lane and spinning
out of control on icy patches in a parking lot); Newsom v. State, 199 P.3d 1181, 1188 (Alaska
App. 2009) (finding sufficient evidence of reckless driving where the defendant accelerated,
changed lanes quickly, dangerously darted between adjacent cars, and made a right turn so
abruptly that his tires went over the curb in the process); Griffeth v. State, 2014 WL 895221,
at *1 (Alaska App. Mar. 5, 2014) (unpublished) (defendant convicted of reckless driving
after he unsafely passed two drivers on the Seward Highway in his semi-truck, causing the
drivers to swerve or drive onto the shoulder); Tok O v. Anchorage, 2004 WL 2173379, at
*1-2 (Alaska App. Sept. 29, 2004) (unpublished) (finding sufficient evidence of reckless
driving where the defendant drove against oncoming traffic in an effort to bypass traffic
congestion, causing an oncoming vehicle to abruptly slow and get rear-ended); Stites v. State,
1987 WL 1357061, at *1 (Alaska App. Oct. 7, 1987) (unpublished) (defendant convicted of
reckless driving after he sped in an attempt to elude an officer, used both lanes of traffic to
negotiate turns in the road, then slammed on his brakes, skidding approximately 105 feet,
before jumping from his vehicle and neglecting to place it in park, such that the vehicle
crossed the oncoming traffic lane).
25
See, e.g., Lovett, 2016 WL 362779, at *1; Williams, 2015 WL 4599554, at *1, 3.
26
Luzardo v. State, 147 So.3d 1083 (Fla. Dist. App. 2014).
27
Id. at 1085-86.
– 11 – 2737
did not constitute reckless driving.28 Florida courts have also found that driving 94 miles
per hour in a 40 mile-per-hour zone was not reckless given the circumstances, but have
affirmed convictions based on driving at least 82 miles per hour in a 40 mile-per-hour
zone and 82 miles per hour in a 45 mile-per-hour zone where additional circumstances
— other traffic, pedestrians, or the defendant rapidly changing lanes between cars —
were present.29
The Tennessee Court of Criminal Appeals confronted similar evidence to
this case in an unpublished decision in State v. Mitchell:
[T]he Defendant was clocked going seventy-seven miles per
hour when the posted speed limit was fifty miles per hour.
The roadway was straight and flat. It was late at night, and
he passed another vehicle. Shortly thereafter, he turned into
his girlfriend’s driveway. The primary evidence which could
be considered as reckless driving was driving seventy-seven
miles per hour.[30]
Comparing that evidence to cases in which Tennessee courts had affirmed reckless
driving convictions — driving 120 miles per hour over a highway with hills and curves,
driving 106 miles per hour and crashing into another vehicle, or passing four vehicles
28
Id. at 1084, 1088-89.
29
Harris v. State, 318 So.3d 645, 648-49 (Fla. Dist. App. 2021) (discussing Natal v.
State, 278 So.3d 705, 706-08 (Fla. Dist. App. 2019), and State v. Desange, 294 So.3d 433,
436-39 (Fla. Dist. App. 2020)). The Harris court noted that “[a]lthough [the defendant’s]
excessive speed” — 94 miles per hour in a 40 mile-per-hour zone — “is clearly concerning
and constitutes a civil infraction that is a moving violation, his excessive speed alone was
insufficient to prove recklessness,” especially in the absence of additional dangerous
circumstances. Id. at 648-49.
30
State v. Mitchell, 1997 WL 567913, at *7 (Tenn. Crim. App. Sept. 15, 1997)
(unpublished).
– 12 – 2737
and nearly forcing a fifth off the road — the court found that the evidence was
insufficient to support the reckless driving conviction.31
Those courts that have affirmed reckless driving convictions in which the
driver traveled at similar speeds to Ambacher have usually done so because of
substantially more aggravated circumstances. For instance, in State v. Agard, the driver
passed about six other vehicles, changed lanes twice to pass the other vehicles, swerved
into an oncoming lane at a high speed, and disregarded two stop signs while driving
80 miles per hour in a 55 mile-per-hour zone.32 In Crussel v. State, the driver “drove his
car ninety-one miles per hour in a fifty-five mile-per-hour zone in the dark of night on
a country road that had houses and cross streets in the area.”33 And in Blevins v.
Commonwealth, the defendant drove aggressively and failed to control his truck on a
rainy night with limited visibility, at speeds of up to 80 miles per hour, before causing
a fatal accident.34
Putting aside the fact that Ambacher knowingly failed to stop for the
trooper (an element of the offense he does not contest on appeal), the question is whether
Ambacher’s driving — i.e., driving in excess of the speed limit by up to 25 miles per
hour on a clear, dry day and partially straying into the other lane of traffic — created a
“substantial and unjustifiable risk of harm to a person or to property” constituting “a
gross deviation from the standard of conduct that a reasonable person would observe in
31
Id. at *6-7 (citing cases).
32
State v. Agard, 151 P.3d 802, 809 (Haw. 2007).
33
Crussel v. State, 29 N.E.3d 746, 752 (Ind. App. 2015).
34
Blevins v. Commonwealth, 762 S.E.2d 396, 400 (Va. App. 2014).
– 13 – 2737
the situation.”35 We have reviewed the video ourselves, and even drawing all inferences
in favor of the State, as we are required to do, we cannot conclude that Ambacher’s
driving was a gross deviation from a reasonable person’s standard of conduct that went
above and beyond basic traffic law violations.
We therefore conclude that there was insufficient evidence to support the
conclusion that Ambacher was guilty of reckless driving. We reverse Ambacher’s
conviction for first-degree failure to stop at the direction of a peace officer (and the jury’s
verdict for reckless driving).
Given this resolution, we need not address Ambacher’s arguments that the
prosecutor misstated the law of reckless driving in his closing argument. However, we
must address Ambacher’s additional challenge to his conviction for failure to stop — i.e.,
that the trial court erred in allowing a jury view of the patrol vehicle lights and sirens —
to determine whether to remand this case to the superior court for entry of conviction for
second-degree failure to stop (a lesser included offense of first-degree failure to stop that
does not require proof of reckless driving) or to reverse Ambacher’s conviction in its
entirety and allow a new trial.
Why we conclude that the trial court did not abuse its discretion in
allowing a jury view of the patrol car lights and sirens
Ambacher’s remaining argument on appeal is that the trial court erred in
allowing the jury to observe the lights and sirens on the pursuing trooper’s patrol vehicle
(and on a second patrol vehicle that was also involved in the traffic stop) in an alley
behind the courthouse. On appeal, Ambacher calls this demonstration a “reenactment
35
AS 28.35.400(a).
– 14 – 2737
of the police pursuit” that was not substantially similar to the incident itself and that
caused him unfair prejudice. We reject this argument.
Ambacher argued at trial that he did not see the lights or hear the sirens and
therefore did not know that the officers wanted him to pull over. During the testimony
of the respective officers at trial, the prosecutor asked that the jurors, judge, and counsel
go outside and observe each officer activate the lights and sirens on his patrol vehicle.
The prosecutor proposed that the jurors would first observe the vehicle lights and hear
the sirens while the vehicle was stationary from twenty to thirty feet away for ten
seconds. Second, the officer would drive toward the jurors down the alley with the siren
and lights activated.
Ambacher did not object to the first part of the demonstration, but he did
object to the second, arguing that it did not accurately reenact what occurred during the
police pursuit. The trial court overruled the objection. No record was made of the jury
views themselves, but given that there was no further discussion of the procedure, we
presume that the jury observed the lights and heard the sirens in the manner requested
by the State.
On appeal, Ambacher renews his argument that the second part of the jury
view — when the officers drove their vehicles toward the jurors with their lights and
sirens activated — was improper.36 Ambacher relies on a line of cases holding that when
an experiment or reenactment purports to simulate actual events, the party introducing
the experimental evidence has a heavy burden to demonstrate the substantial similarity
36
Parts of Ambacher’s brief could be construed as challenging both parts of the
demonstration. Ambacher, however, never objected to the first part of the demonstration at
trial and would be required to show plain error. We therefore note that to the extent
Ambacher is now challenging the first part of the jury view, we find no plain error. See
Adams v. State, 261 P.3d 758, 764 (Alaska 2011).
– 15 – 2737
of the conditions of the experiment to the actual event in order to provide a fair
comparison.37 As we have previously explained:
Evidence of this kind should be received with caution, and
only be admitted when it is obvious to the court, from the
nature of the experiments, that the jury will be enlightened,
rather than confused. In many instances, a slight change in
the conditions under which the experiment is made will so
distort the result as to wholly destroy its value as evidence,
and make it harmful, rather than helpful.[38]
Relying on these rules governing experimental evidence, Ambacher argues
that the conditions of the second part of the jury view were not substantially similar to
the actual event, and that the court therefore erred in allowing it to occur.
But contrary to Ambacher’s assertion, the jury view that occurred in this
case was not an “experiment” or a “reenactment.”39 There was no attempt to re-create
the police chase or the environment in which it occurred; rather, the purpose of the jury
view was to enable the jurors to watch the patrol vehicle lights and listen to the sirens so
that they could understand what those lights and sirens looked and sounded like.
Other courts have similarly concluded that allowing jurors to observe the
emergency lights and sirens of the vehicles involved in the charged offense does not
constitute an experiment or reenactment, but rather serves to illustrate the testimony of
witnesses and constitutes “real evidence” of items that played a role in the incident.40
37
See Smith v. State, 771 P.2d 1374, 1378 (Alaska App. 1989).
38
Id. at 1379 (quoting Pacheco v. United States, 367 F.2d 878, 881-82 (10th Cir. 1966)).
39
See 2 McCormick on Evidence, § 217 (8th ed. 2020) (discussing how a demonstration
becomes an experiment “when the witness, particularly an expert witness, attempts to reenact
some aspect of an event in order to show a specific result that is at issue in the trial”).
40
See, e.g., Williams v. Bethany Volunteer Fire Dep’t, 298 S.E.2d 352, 354 (N.C. 1983);
(continued...)
– 16 – 2737
Ambacher argues that those cases are distinguishable because the trial court
in this case did not instruct the jury that the evidence was not intended to replicate the
events of the underlying incident. Ambacher, however, never sought any such
instruction at trial, and, given the significant differences between the circumstances of
the jury view and the actual police pursuit that occurred in this case, there is little risk
that the jury would have been confused on this point. (Indeed, Ambacher’s attorney
highlighted the differences in closing argument.) Certainly, if Ambacher had requested
such an instruction, it would have been appropriate to provide it. But in the absence of
any request, the court did not commit plain error in failing to instruct the jury on this
point sua sponte.41
Here, the officers testified that the vehicles viewed by the jurors (including
the lights and sirens) were the same vehicles in which they pursued Ambacher.
Ambacher has failed to show that the trial court’s decision to allow this jury view was
an abuse of discretion.42
Conclusion
We REVERSE Ambacher’s conviction for first-degree failure to stop at the
direction of a peace officer (and the jury’s verdict for reckless driving), and we
REMAND this case to the superior court with directions to enter a conviction for second-
degree failure to stop at the direction of a peace officer and sentence Ambacher for this
offense.
40
(...continued)
State v. Mitchell, 784 P.2d 568, 612 (Wash. App. 1990).
41
See Lindbo v. Colaska, Inc., 414 P.3d 646, 651 (Alaska 2018) (“Plain error review
applies when a party failed to properly raise a jury instruction error at trial.”).
42
See Bowlin v. State, 823 P.2d 676, 680 (Alaska App. 1991).
– 17 – 2737