Erickson
v.
State

COURT OF APPEALS OF THE STATE OF ALASKAFeb 1, 2017
Court of Appeals No. A-11459 (Alaska Ct. App. Feb. 1, 2017)

Court of Appeals No. A-11459 No. 6426

02-01-2017

ZACHARY E. ERICKSON, Appellant, v. STATE OF ALASKA, Appellee.

Appearances: Laurence Blakely, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Raymond E. Beard, Assistant District Attorney, Palmer, and Michael C. Geraghty and Craig W. Richards, Attorney's General, Juneau, for the Appellee.


NOTICE Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law. Trial Court No. 3GL-12-37 CR MEMORANDUM OPINION Appeal from the District Court, Third Judicial District, Glennallen, Daniel Schally, Judge. Appearances: Laurence Blakely, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Raymond E. Beard, Assistant District Attorney, Palmer, and Michael C. Geraghty and Craig W. Richards, Attorney's General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. Judge ALLARD.

Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).

A jury convicted Zachary E. Erickson of misdemeanor driving under the influence. On appeal, Erickson argues that the trial court erred in giving the jury the then-existing pattern jury instruction on "operating"—an instruction that has since been replaced by the Alaska Criminal Pattern Jury Instructions Committee.

For the reasons explained here, we conclude that any error in using this instruction in Erickson's case was harmless, given the manner in which this case was litigated and argued to the jury.

Background facts and proceedings

Alaska State Troopers James Kimura and Wallace Kirksey were on patrol in the early morning of April 13, 2012, at the "Arctic Man" event just north of Paxson, when they saw a black Toyota pickup truck backing up in a campsite, and heard somebody yell, "[S]top, there's the police." The troopers went to investigate and found Zachary Erickson exiting the driver's side of the truck. Erickson was clearly intoxicated, as later field sobriety tests and a DataMaster breath test confirmed.

When he was questioned by the troopers, Erickson denied driving the truck. He told Trooper Kimura that he had gotten into the driver's seat of the truck while the truck's engine was running in order to warm up.

Meanwhile, Trooper Kirskey interviewed Nils Thiesen, Erickson's friend and the owner of the truck. Thiesen originally told Trooper Kirksey that Erickson was driving the truck — that is, he was moving the truck because it was blocking a neighboring campsite. But Thiesen later changed his story (at the urging of Erickson's then-girlfriend, Kendall Knight), and told the troopers that another person that he did not know had moved his truck.

At trial, both Erickson and Thiesen testified, although to a different version of events from the versions they had originally given the troopers. Erickson testified that he was not sitting in the driver's seat of the truck trying to warm up. Instead, he testified that he was standing outside the truck, reaching over the driver's seat, and trying to get beer from the passenger-side floorboard. Erickson admitted that he previously told Trooper Kimura that he was in the truck, with the engine running, trying to get warm, but he testified that he only said this because he felt put "on the spot" and "under pressure."

Thiesen likewise contradicted his prior statements to the police, testifying that he did not recall anybody moving the truck. He also testified that he had never given the keys of the truck to Erickson.

Before voir dire and again before closing arguments, the trial court indicated that it intended to use the then-existing pattern jury instruction on the definition of "operating" a motor vehicle.

See former Alaska Criminal Pattern Jury Instruction 28.35.030(a) #3 (revised 2009). This pattern instruction was substantially revised in 2015 and no longer resembles the instruction used in Erickson's case.

This prior pattern instruction provided:

To "operate" a motor vehicle means to drive or to have actual physical control over the vehicle. The following three examples illustrate what it means for a person to "operate" a motor vehicle. If you find that the defendant in this case had as much physical control over a motor vehicle as the persons in these examples, or more, then you must find that the defendant was "operating" the vehicle.
First, if a person is seated in the driver's seat and the vehicle's engine is running, then the person is "operating" the vehicle, even if the vehicle isn't moving, and even if the vehicle isn't capable of moving.
Second, if a person is seated in the driver's seat, is in possession of the ignition key for the vehicle, and is physically capable of starting the engine and causing the vehicle to move, then the person is "operating" the vehicle, even if the engine

isn't running, and even if the vehicle isn't moving.
Third, if the vehicle is moving and the person is steering the vehicle, then the person is "operating" the vehicle, even if the vehicle's engine isn't running, and even if the vehicle's engine isn't capable of running.


Erickson's defense attorney objected to the use of this pattern instruction, arguing that the instruction was improper and misleading.

The trial judge overruled the defense objection to the pattern instruction, commenting that he did not feel that he was "in a position to second-guess the committee [that created the pattern instruction]." However, the judge offered to instruct the jury using only the first example because this fact pattern best fit the facts of Erickson's case. That is, the judge offered to instruct the jury that "if a person is seated in the driver's seat and the vehicle's engine is running, then the person is "operating" the vehicle, even if the vehicle isn't moving, and even if the vehicle isn't capable of moving." The defense attorney rejected this offer, contending that either all or none of the fact patterns should be provided to the jury. The court therefore read the full pattern instruction with all three examples to the jury.

In closing argument, the prosecutor primarily argued that the jury should convict Erickson under a "driving" theory based on the troopers' testimony that they saw the truck move, and based on Thiesen's original statement that Erickson moved the truck because it was blocking another campsite. The prosecutor also argued that, even if the jury believed there was reasonable doubt that Erickson actually drove the truck, the jury should still convict Erickson under an "operating" theory based on his own admission to the trooper that he was seated in the driver's seat of the truck while the engine was running. The prosecutor asserted that Erickson's trial testimony that he remained outside the truck was not credible.

In the defense closing argument, the defense attorney implicitly conceded that Erickson would be guilty if, as Erickson initially claimed, he was sitting in the driver's seat with the engine running because he was "warming up." But the defense attorney argued that Erickson was confused when he was answering the trooper's questions and that Erickson's testimony at trial was the credible version of events.

The jury ultimately convicted Erickson of driving under the influence. The jury returned a general verdict that did not specify whether Erickson's conviction was based on a "driving" theory or an "operating" theory. Erickson was later sentenced to 30 days of imprisonment with 27 days suspended, 3 days to serve.

This appeal followed.

The use of the former pattern instruction on operating, even if error, was harmless given the way this case was litigated and argued

On appeal, Erickson renews his various objections to the former pattern instruction on "operating," and he argues that the former instruction was improper and misleading. But based on our review of the trial record, we conclude that any error in using this instruction was harmless because the parties clearly agreed as to what constituted "operating" under the facts of this case. In other words, we conclude that the instruction, although potentially misleading in other circumstances, did not "create confusion or prejudice against" Erickson.

Love v. State, 457 P.2d 622, 631-32 (Alaska 1969).

Id.

As just explained, the prosecutor and the defense attorney were seemingly in agreement that Erickson's original description of his actions to Trooper Kimura did not constitute a valid defense to a charge of driving under the influence. That is, they both appeared to agree that a person sitting in the driver's seat of a functional motor vehicle while the engine is running is necessarily "operating" that vehicle as that term is defined under Alaska law.

See, e.g., Jacobson v. State, 551 P.2d 935, 939 (Alaska 1976); Kingsley v. State, 11 P.3d 1001, 1003 (Alaska App. 2000); Stickman v. State, 1997 WL 732608, at *1, *3 (Alaska App. Nov. 26, 1997) (unpublished).

The main point of contention between the parties was whether Erickson's and Thiesen's trial testimony raised a reasonable doubt as to whether their original statements to the police were accurate. It is clear from the jury's verdict that it did not find Erickson's trial testimony credible and instead credited the troopers' version of events and/or Erickson and Thiesen's original statements to the police.

Because there was no substantive dispute about the law of operating as it applied to the facts of Erickson's case, we conclude that any latent ambiguities in the then-existing pattern "operating" instruction did not affect the jury's verdict in this case.

See Buckwalter v. State, 23 P.3d 81, 87 (Alaska App. 2001) (arguments of counsel can cure deficiencies or defects in jury instructions); Braun v. State, 911 P.2d 1075, 1081 (Alaska App. 1996) (same); O'Brannon v. State, 812 P.2d 222, 229 (Alaska App. 1991) (same). --------

Conclusion

The judgment of the district court is AFFIRMED.