Eide v. State , 2007 Alas. App. LEXIS 182 ( 2007 )

OPINION

STEWART, Judge.

A jury convicted Warren Eide of first-degree vehicle theft, driving while his license was revoked, and resisting arrest. After determining that the evidence was insufficient to sustain the conviction for resisting arrest, Judge Brown entered a judgment of acquittal on the resisting arrest conviction. In this appeal, we address the sufficiency of the evidence supporting the jury's guilty verdicts at Eide's trial. Eide contends that insufficient evidence supports his convictions for first-degree vehicle theft and for driving while his license was revoked.¹ The State, as cross-appellant, argues that Judge Brown improperly set aside the jury's verdict finding Eide guilty of resisting arrest.²

We reject Eide's claim because we conclude that a fair-minded juror exercising reasonable judgment could conclude that the State had proven the vehicle theft and revoked license charges. We also reject the State's claim because insufficient evidence was admitted at trial to support the jury's verdict on the subsection of the resisting arrest statute that Eide was charged with violating. Accordingly, we affirm the superi- or court.

Facts and proceedings

On the evening of November 9, 2004, Jack Thomas drove Eide and his roommate, Vieto-ria Miller Cameron, to his recently completed log house in the Soldotna area to celebrate Thomas and his wife moving into the house. Eide lived near Thomas and Thomas frequently picked Eide up when he was hitchhiking.

All four at the house were drinking. Eventually, everyone went to bed, but during the night a dispute developed. Thomas started his truck, expecting to drive Eide and Cameron to their house. The dispute became heated, and Eide and Cameron refused to leave. Thomas called 911.

Cameron left the house, walked down the driveway, and did not return. Eide remained and continued to argue with Thomas. Eide got dressed, spoke with a 911 dispatcher, and proceeded to leave the house. Thomas tended to his wife who developed a medical problem and he asked the dispatcher to send an ambulance.

* Looking out of a window, Thomas saw Eide in his truck, staring back at Thomas as he backed Thomas's truck out of the driveway and drove away. Thomas had not given Eide permission to drive the truck and did not do anything that would indicate to Eide that he was free to drive the truck. Thomas also knew that Eide did not have a license. The truck was found empty a few miles away. Cameron testified that she left the house and walked home through the woods.

A few days later, Alaska troopers went to Eide's residence to arrest him. Eide told Sergeant Barry Wilson that he had not been at Thomas's residence but had spent the night at his parents' place. (Sergeant Wilson had monitored Thomas's 911 call and heard Eide identify himself when he got on the line.) Eide was on the floor in a sleeping bag. The troopers told Eide several times that he was under arrest. Trooper Lawrence Erickson grabbed Eide by the wrist to pull him up, but Eide jerked away, told the trooper "No, leave me alone, I ain't going." Eide rolled onto his stomach with his arms underneath him. Trooper Erickson told Eide several times to stop resisting arrest.

Trooper Erickson was concerned that he or Eide would get hurt if he had to wrestle Eide into submission. Accordingly, Trooper Erickson chose to apply an electric shocking device to Eide in an attempt to gain his cooperation. The electric shocking device causes pain and can temporarily disable the recipient of the shock. After Trooper Erick son applied the device to Eide, Eide jumped up and submitted to his arrest.

Four people testified at trial, Thomas, Cameron, and the two troopers mentioned above. Eide did not call any witnesses. The parties stipulated that Eide knew that his license was revoked at the pertinent time.

Discussion

When a defendant attacks a conviction for insufficiency of the evidence, this court must view the evidence presented, and reasonable inferences from the evidence, in the light most favorable to upholding the jury's verdicts.³ Viewing the evidence from this perspective, we must decide whether a fair-minded juror exercising reasonable judgment could conclude that the State had met its burden of proving guilt beyond a reasonable doubt.⁴

Eide argues that his convictions must be reversed because the evidence does not prove that he drove Thomas's vehicle. However, Eide argues the evidence in a light favorable to himself. Viewing the evidence and reasonable inferences from the evidence in the light most favorable to upholding the verdicts, we conclude that the record contains substantial evidence that Eide drove Thomas's truck away from Thomas's residence. Thomas's testimony alone provides support for this fact because Thomas testified that he saw Eide back his truck up and drive away. We conclude that the evidence was sufficient to support the verdicts for first-degree vehicle theft and driving while license revoked.

We next turn to the State's claim that Judge Brown erroneously entered a judgment of acquittal after the jury found Eide guilty of resisting arrest. Double jeopardy does not bar an appeal from a court's decision setting aside a jury's verdict.⁵ Eide concedes that double jeopardy does not bar this Court's review of Judge Brown's order setting aside the jury's verdict.

The State charged Eide under AS 11.56.700(a)(8). That subsection of the resisting arrest statute required the State to prove that Eide, knowing that a peace officer was making an arrest, and with the intent of preventing the officer from making the arrest, resisted the arrest by any means that created a substantial risk of physical injury to any person. Physical injury is defined as "a physical pain or an impairment of physical condition." The jury was so instructed, and found Eide guilty.

After accepting the jury's verdicts and before sentencing, Judge Brown entered a judgment of acquittal, concluding that there was insufficient evidence to support a finding that Eide resisted arrest. Judge Brown ruled that Eide's conduct did not rise to the level of "force" required for resisting arrest. Citing this Court's opinion in Howard v. State,⁶ Judge Brown concluded that Eide's "passive resistance is insufficient to constitute 'force' for purposes of the resisting arrest statute."

In Howard, this court reversed a resisting arrest conviction because we concluded that fleeing from the arresting officer and hiding in the woods was not sufficient to support this crime.⁷ The defendant never touched the arresting officer and at best, the only contact between the two was when the trooper touched Howard's jacket or cuff as he was fleeing. Under AS 11.81.900(b)(27), force is defined as "any bodily impact, restraint, or confinement or the threat of imminent bodily impact, restraint, or confinement, 'force' includes deadly and nondeadly force." Because there was no evidence or any reasonable inference that Howard had resisted his arrest by "force," we reversed his conviction for resisting arrest.⁸

After Judge Brown entered the judgment of acquittal, the State moved for reconsideration, pointing out that Eide was not prosecuted under the subsection of resisting arrest that required "force," but under the subsection that required the State to prove that Eide resisted the arrest "by any means" that created a substantial risk of physical injury to any person.

In response, Judge Brown ruled that there was insufficient evidence of conduct on Eide's part that created a substantial risk of injury to any person: "There was insufficient evidence that defendant employed any 'means' that created a substantial risk of injury to another person."

As the State describes in its brief, Trooper Erickson grabbed at Eide and attempted to get him up, but Eide jerked away and, as described by Trooper Erickson, "turtled"-Eide oriented his body so that his arms and wrists were underneath his torso-and announced "No, I ain't going." As the State pointed out, Trooper Erickson warned Eide several times that he was under arrest. The State contends that Eide's actions and Trooper Erickson's testimony that any officer attempting to arrest Eide would be injured if the officer got down on the floor to wrestle Eide's arms free and handcuff him, are sufficient to sustain the conviction. The State also argues that the fact that Trooper Erickson had to resort to using an electric shocking device to subdue Eide further reflects the serious risk that Eide imposed.

The commentary to AS 11.56.700⁹ indicates that the legislature did not want the crime of resisting arrest to encompass "mere non-submission to an arrest.¹⁰ The commentary includes an example of conduct that the legislature envisioned as the kind that creates a substantial risk of physical injury-"fleeing in an automobile at high speed through a residential area." The gravity and imminence of the danger imposed by this conduct contrasts sharply with Eide's passive positioning. Although Trooper Erickson was convinced that it was likely that he or Eide would be injured because Eide was uncooperative, Eide's conduct of turning "turtle" and announcing that he was not going with the trooper does not rise above "mere non-submission" because Eide's conduct did not actively create a danger of physical injury.

Conclusion

Eide's convictions for first-degree vehicle theft and driving while license revoked are AFFIRMED. The superior court's judgment of acquittal on resisting arrest is AFFIRMED.

1 . AS 11.46.360(a)(1) and AS 28.15.291(a)(1), respectively.

2 . AS 11.56.700(a)(3).

3 . See Simpson v. State, 877 P.2d 1319, 1320 (Alaska App.1994).

4 . See Dorman v. State, 622 P.2d 448, 453 (Alaska 1981).

5 . See Smith v. Massachusetts, 543 U.S. 462, 467, 125 S.Ct. 1129, 1134, 160 L.Ed.2d 914 (2005).

6 . 101 P.3d 1054 (Alaska App.2004).

7 . Id. at 1058-59.

8 . Id.

9 . Commentary on the Alaska Revised Criminal Code, 2 Senate Journal Supp. No. 47 at 85 (June 12, 1978).

10 . Id.