Opinion
A-13276
06-01-2022
BRUCE A. HARRISON, Appellant, v. STATE OF ALASKA, Appellee.
Michael L. Barber, Barber Legal Services, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Nancy R. Simel, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Third Judicial District, Palmer, Vanessa H. White, Judge. Trial Court No. 3PA-16-01791 CR
Michael L. Barber, Barber Legal Services, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Nancy R. Simel, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Wollenberg, Harbison, and Terrell, Judges.
MEMORANDUM OPINION
HARBISON, JUDGE
Bruce A. Harrison was convicted, following a jury trial, of five counts of reckless endangerment after he accosted a group of rafters who had capsized during a guided tour on the Chickaloon River. Harrison now appeals, arguing that the trial court erred in instructing the jury that the portion of the river flowing through his land was a navigable and public waterway and thus open to the rafters as a matter of law. Harrison maintains that, in so instructing the jury, the trial court improperly took judicial notice of a disputed fact. He further contends that this was reversible error because the instruction precluded him from arguing that his actions were a legally justified defense of his property.
AS 11.41.250.
For the reasons explained in this opinion, we conclude that the trial court did not err in giving the disputed jury instructions. We therefore affirm Harrison's convictions.
Background facts and proceedings
Harrison and his siblings own a native allotment bisected by the Chickaloon River, not far from Palmer. A company called Nova River Runners frequently leads guided rafting trips down the river and through the Harrison allotment.
On one of these trips, four rafts with teenaged passengers were approaching a stretch of rapids when the last raft in line struck a partially submerged log and overturned. Several of the occupants were swept downstream. The guides on the remaining rafts immediately looked for a place to stop and pulled their rafts partially out of the water onto a rocky beach.
As the guides worked on rescuing the occupants of the overturned raft, Harrison came out of the woods and began untying a raft containing five teenagers. The teenagers screamed for him to stop, telling him that they did not have a guide on board and did not know what was happening. Harrison replied, "I don't care, this is my land, get off my land" and kicked the raft into the river's main current. One of the guides saw this and dove into the river, swimming approximately two hundred yards before catching up to the raft and taking the oars.
For this conduct, Harrison was charged with six counts of reckless endangerment - five counts for the teenagers in the raft and one count for the guide who swam after it. Harrison was also charged with several counts of assault for separately confronting the occupants of the first two rafts, beached farther downstream.
Before the trial, Harrison notified the court of his intent to rely on the justification of use of force in defense of property and premises. In response, the State filed a motion in limine to preclude Harrison from arguing that this defense applied to the river below the high water mark (as opposed to the remainder of his land adjacent to the river). The State claimed that, because the rafters had the legal right to use the Chickaloon River, Harrison had no legal right to use force to prevent them from doing so.
Prior to jury selection, the trial court granted the State's motion, ruling that the river was a navigable and public waterway as a matter of law. The court told Harrison that, although he was free to claim that he was acting in defense of property with respect to the land clearly titled to him (i.e., the land above the high water mark), he was prohibited from making this argument with respect to the river itself. The court also warned Harrison that if he attempted to claim defense of property with respect to the river, the court would instruct the jury that the river was navigable and available for public use.
During the trial, both Harrison and his brother testified that the Nova rafters "shouldn't have been there" because the Harrisons owned the relevant portion of the river, as well as the land next to and under it. Harrison claimed that he used force only to stop the rafters from trespassing.
After the close of evidence, the trial court gave the jury the pattern instruction on defense of premises. This instruction stated that Harrison was entitled to use reasonable, nondeadly force against the Nova rafters to the extent necessary to stop them from trespassing upon land or premises over which he had possession or control. But the court also instructed the jury that "[t]he court has taken judicial notice that the Chickaloon River, below the high water mark, is a public waterway and navigable river, and is not subject to exclusive ownership or control by Bruce Harrison or any other Chickaloon tribe member." In addition, the court instructed the jury on the public's right to access the state's navigable waters. Consistent with the Alaska Constitution, one instruction stated:
Free access to the navigable or public waters of the state, as defined by the legislature, shall not be denied any citizen of the United States or resident of the state, except that the legislature may by general law regulate and limit such access for other beneficial uses or public purposes.
Alaska Const. art. VIII, § 14.
Additionally, consistent with AS 38.05.126(c), a second instruction stated:
Ownership of land bordering navigable or public waters does not grant an exclusive right to the use of the water and any rights of title to the land below the ordinary high water mark are subject to the rights of the people of the state to use and have access to the water for recreational purposes or any other public purposes for which the water is used or capable of being used consistent with the public trust.
The jury found Harrison guilty of all five counts of reckless endangerment relating to the teenagers in the raft he kicked into the river. The jury acquitted Harrison of three of the assault charges. The jury was unable to reach a verdict on two other assault charges and was unable to reach a verdict on the reckless endangerment count relating to the Nova guide. The trial court subsequently declared a mistrial on these counts.
This appeal followed.
Why we conclude that the trial court did not err by instructing the jury that the relevant portion of the river was a navigable and public waterway
Harrison argues that when the trial court instructed the jury that the Chickaloon River is navigable and not subject to his exclusive ownership and control, it improperly took judicial notice of a disputed fact. He maintains that this precluded him from arguing that his actions were justified as defense of his property, which he asserts includes the portion of the Chickaloon River flowing through his allotment. According to Harrison, the trial court's actions effectively directed a verdict for the prosecution on one of the essential elements of his defense.
The justification defense claimed by Harrison - defense of property - allows a person who is "in possession or control of any premises" to use reasonable, nondeadly force to terminate a criminal trespass in any degree. Under Alaska law, a person commits the crime of criminal trespass if they enter or remain upon premises that are not open to the public or that they are not otherwise privileged to enter. Thus, Harrison was entitled to argue this defense only if there was some evidence that the Nova rafters entered or remained upon premises that were not open to the public.
AS 11.81.350(c)(1).
See AS 11.46.330; AS 11.46.350.
See Palmer v. State, 770 P.2d 296, 298 (Alaska App. 1989) (citing Folger v. State, 648 P.2d 111, 113 (Alaska App. 1982)) (recognizing that the burden is on the defendant to present some evidence in support of each element of the proposed defense before the defendant is entitled to a jury instruction on the proposed defense).
As we have explained, the trial court determined that Harrison was entitled to argue that his actions were justified as defense of property with regard to any entry onto Harrison's land that was above the high water mark abutting the Chickaloon River. But it also determined that Harrison could not make a similar argument with regard to entry onto the river itself.
Harrison maintains that this was error. According to Harrison, the "only evidence the trial court received" supported his contention that he had exclusive control and ownership over, not only the land next to the river, but also the portion of the river that runs through his land. The evidence Harrison refers to is comprised of documents showing his family's ownership of the allotment and referencing their past disputes with Nova about its use of the river.
But these documents showed only that Harrison and his family had an ownership interest in the land abutting the portion of the river at issue in this case. As the trial court recognized, AS 38.05.126(c) specifically provides that "[o]wnership of land bordering navigable or public water does not grant [the owner] an exclusive right to the use of the water." Moreover, in Alaska, "a right of title to the land below the ordinary high water mark is subject to the rights of the people of [Alaska] to use and have access to the water for recreational purposes." For this reason, the question of whether Harrison owns the land beside - or even beneath - the river does not have any bearing on the question of whether Harrison was entitled to exclude the public from using the portion of the river running through his allotment.
AS 38.05.126(c).
Indeed, AS 38.05.126(a) provides that the "people . . . have a constitutional right to free access to and use of the navigable or public water of the state." As a result, the question of whether Harrison was entitled to exclude the public from the river itself is answered by determining whether the river was a navigable or public water as defined by Alaska law.
We note that the term "navigable water" is often used in federal law and for a different purpose - to determine whether a state (as opposed to the federal government) has title to submerged lands within its boundaries. See United States v. Holt State Bank, 270 U.S. 49, 55-56 (1926). Here, however, the question is whether Harrison was authorized to use force as a matter of state criminal law, which in turn hinges on property definitions under state law. See Donnelly v. United States, 228 U.S. 243, 262 (1913) ("[W]hat shall be deemed a navigable water within the meaning of the local rules of property is for the determination of several states.").
Under Alaska law, navigable or public waters are defined expansively to include not only waters that are susceptible to being used for trade or travel, but also waters that are suitable for floating logs, landing aircraft, fishing, hunting water fowl, and, of critical importance to this case, public boating. "Navigable water" is defined in AS 38.05.965(14) as:
any water of the state forming a river, stream, lake, pond, slough, creek, bay, sound, estuary, inlet, strait, passage, canal, sea or ocean, or any other body of water or waterway within the territorial limits of the state or subject to its jurisdiction that is navigable in fact in any season, whether in a frozen or liquid state, and for any useful public purpose, including water suitable for commercial navigation, floating of logs, landing and takeoff of aircraft, and public boating, trapping, hunting waterfowl and aquatic animals, fishing, or other public recreational purposes.
AS 38.05.965(14) (emphasis added).
And the definition of "public water" is similarly broad:
navigable water and all other water, whether inland or coastal, fresh or salt, that is reasonably suitable for public use and utility, habitat for fish and wildlife in which there is a
public interest, or migration and spawning of fish in which there is a public interest.
AS 38.05.965(21).
These statutes establish that the public has the right to access any waterway that is able to be used for recreational boating, such as rafting.
The undisputed evidence presented at trial established that Nova frequently uses the Chickaloon River, including the portion of the river that flows through Harrison's allotment, for guided rafting trips. Indeed, Harrison and his brother both testified at trial that they had an ongoing dispute with the company because of its use of the river for rafting. We accordingly conclude that the uncontroverted evidence presented at trial demonstrated that the Chickaloon River is suitable for public boating and is therefore a navigable water.
Harrison nevertheless claims that when the trial court instructed the jury that the Chickaloon River was navigable and thus was not subject to exclusive ownership or control by the Harrisons, it improperly took judicial notice of a disputed fact.
We reject this claim for two reasons. First, as we have just explained, there were no relevant disputed facts relating to the question of the river's navigability. Second, the navigability of the Chickaloon River was not relevant to an element of any of the offenses. Navigability was relevant only to Harrison's defense, because if the river was not open to the public and instead was subject to Harrison's exclusive control, he would have the right to use nondeadly force to terminate the rafters' use of it. And although it is well-settled that a colorable justification defense must be resolved by the jury, it is equally well-settled that, before the court instructs the jury on a justification defense, the burden is on the defendant to produce some evidence in support of the defense.
See, e.g., Toomey v. State, 581 P.2d 1124, 1126 n.6 (Alaska 1978); Paul v. State, 655 P.2d 772, 775-76 (Alaska App. 1982). We also note that, under AS 11.81.350, a person can only use nondeadly force to terminate a trespass; they cannot use deadly force. There is a strong argument that Harrison's act of pushing a raft containing five teenagers into a rapidly running river constituted deadly forcei.e., constituted force used under circumstances that Harrison knew created a substantial risk of serious physical injury. See AS 11.81.900(b)(16). We therefore question whether Harrison would have been successful in raising this justification defense even if he had not been precluded by the court.
In the present case, Harrison failed to present any evidence that the rafters' use of the river was a trespass. Indeed, the only relevant evidence presented to the court - that Nova frequently ran rafting trips down the river - supported the court's ruling that the Chickaloon River was a navigable and public waterway. Once Harrison and his brother testified that the Nova rafters "shouldn't have been there" because the Harrisons owned the relevant portion of the river, the court was authorized to explain the limitations of Harrison's defense to the jury - i.e., that the river and the land below the high water mark of the river were freely accessible to the public and not subject to Harrison's exclusive possession and control. The court's jury instructions were not equivalent to either judicial notice of a disputed fact or a directed verdict, but rather were a correct statement of the law the jury was required to follow when evaluating the evidence presented during the trial.
Conclusion
The judgment of the superior court is AFFIRMED.