BULTRON v. STATE, A-10477 (Alaska App. 11-16-2011)

NICHOLAI BULTRON, Appellant, v. STATE OF ALASKA, Appellee.

Court of Appeals Nos. A-10477 A-10478.Court of Appeals of Alaska.
November 16, 2011.

Appeal from the Superior Court, Third Judicial District, Palmer, Kari Kristiansen, Judge, Trial Court Nos. 3PA-08-3305 Cr 3PA-07-1029 Cr.

David D. Reineke, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. erisia K. Chleborad, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, Attorney General, Juneau, for the Appellee.

Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.

MEMORANDUM OPINION
MANNHEIMER, Judge.

Nicholai Bultron appeals his convictions for driving while his license was revoked, a merged count of first-degree failure to stop at the direction of a police officer and reckless driving, and resisting arrest.[fn1] Bultron also appeals the revocation of hisPage 2
probation from an earlier conviction for driving while his license was revoked. (This probation revocation was based on Bultron’s conviction for these new crimes.)

Bultron raises two claims on appeal: first, that the evidence was insufficient to identify him as the driver of the vehicle, and second, that the State failed to prove that he resisted arrest by using force against the officers (as opposed to passively resisting the officers’ efforts to arrest him). For the reasons explained in this opinion, we conclude that the evidence was sufficient to prove that Bultron was the driver of the vehicle, but we conclude that the evidence is not sufficient to establish that Bultron forcibly resisted arrest. We therefore reverse Bultron’s conviction for resisting arrest, but we affirm his other convictions. And, because we are convinced that the superior court’s decision to revoke Bultron’s probation in the earlier case was not influenced by Bultron’s conviction for resisting arrest, we affirm the revocation of Bultron’s probation.

Underlying facts

Palmer Police Officer Jason Crockett was on patrol shortly after midnight on October 25, 2008, when he saw a dark-colored Chevrolet Tahoe stopped at a red light approximately a block and a half away. While Crockett watched, the driver of the Tahoe made an abrupt right turn and then quickly accelerated. When the Tahoe reached a speed exceeding 50 miles per hour in a 35-mph zone, Crockett activated his siren and overhead lights, but the driver of the Tahoe did not stop. Crockett gave chase. About two and a half minutes later, the driver of the Tahoe pulled over.

Crockett called in the license plate number of the Tahoe. The rear window of the Tahoe was broken out, so Crockett had an unobstructed view of the vehicle’s interior. Crockett did not immediately recognize the driver of the Tahoe, but he did observe that the driver was wearing a light-colored stocking cap.Page 3

Crockett stepped out of his patrol car and told the driver to put his keys on the dash. Instead, the driver started driving away, in the direction of Butte, at speeds exceeding 100 miles per hour. Crockett began a pursuit of the Tahoe, but he ended his pursuit out of fear for his safety on the icy winter roads.

Later that night, after Crockett returned to his patrol duties, he learned that Nicholai Bultron had reported the theft of his vehicle — a Chevrolet Tahoe. About one month earlier, Crockett had arrested Bultron for driving with a revoked license, and when Crockett learned that Bultron had just reported his vehicle stolen, it reminded Crockett that Bultron was similar in appearance to the driver of the Tahoe that Crockett had just chased.

Crockett and another officer, Jamie Hammons, drove to Bultron’s residence, which was in Butte. When the officers arrived, they observed the Chevy Tahoe with the broken-out rear window parked outside Bultron’s apartment. Inside this vehicle, they found a stocking cap that appeared to be the same cap that Crockett had seen the driver wearing when he stopped the Tahoe. This cap proved to be the same one that Bultron was wearing when, one month earlier, Crockett arrested Bultron for driving with a revoked license. (Crockett reviewed the video recording of that earlier traffic stop to verify that the cap was the same.)

Crockett questioned Bultron about his w hereabouts that night. Bultron told Crockett that he had been home all night.

But when Crockett called Bultron’s girlfriend, Audrey Martin, to verify Bultron’s story, Martin informed Crockett that Bultron had been with her, at a friend’s house in Wasilla, shortly before midnight. Having received this conflicting account from Martin, Crockett told Bultron that he was under arrest.

Bultro n did not submit to this arrest. Protesting his innocence, Bultron held his hands rigidly in front of him so that the officers could not cuff his wrists in back. ThePage 4
officers forced Bultron to the ground, but Bultron pulled one of his arms underneath his body. After several minutes of struggle, the officers finally succeeded in cuffing both of Bultron’s wrists behind his back.

Whether the evidence was sufficient to support a rational conclusionthat Bultron was driving the Tahoe

Bultron contends that his convictions for driving with a revoked license and for failing to stop at the direction of a police officer should be reversed because the evidence presented at his trial was insufficient to support the conclusion that he was the one driving the Tahoe when Crockett unsuccessfully tried to make the traffic stop.

When a verdict is challenged as lacking a sufficient basis in the evidence, the question is whether the evidence and the inferences to be drawn from it, viewed in the light most favorable to upholding the verdict, are sufficient to support a conclusion by fair-minded jurors that the State had met its burden of proof.[fn2]

Here, the State’s evidence may have been circumstantial, but it was sufficient to support the conclusion that Bultron falsely reported his vehicle as stolen, and that Bultron was driving his Tahoe when Crockett tried to perform the traffic stop. Viewing the evidence in the light most favorable to the jury’s verdict, (1) the Tahoe belonged to Bultron and, despite Bultron’s report that it had been stolen, the officers found the vehicle parked outside Bultron’s apartment; (2) Crockett’s limited observations of the driver during the unsuccessful traffic stop were consistent with Bultron’s physical appearance; (3) the cap that Crockett observed the driver wearing (and that was found in the Tahoe when the officers arrived at Bultron’s residence) was the same cap that Bultron had been wearing when Crockett arrested him one month earlier for driving withPage 5
a revoked license; (4) Bultron lied to Crockett concerning his whereabouts that evening; and (5) Bultron had a motive to lie, because his license was revoked and he was already facing one charge of driving with a revoked license.

This evidence was sufficient to support a reasonable conclusion that Bultron was the driver of the Tahoe.

Whether the evidence was sufficient to support Bultron’s convictionfor resisting arrest

Bultron was charged with resisting arrest under AS 11.56.700(a)(1), which requires proof that a person resisted arrest by “force”. From the facts, it is obvious that Bultron refused to willingly submit to arrest, and that he actively impeded the officers’ attempts to handcuff him. But Bultron contends that the evidence is legally insufficient to support the conclusion that he used “force” to resist his arrest.

For purposes of the criminal code, the word “force” is defined as “any bodily impact, restraint, or confinement[,] or the threat of imminent bodily impact, restraint, or confinement”. AS 11.81.900(b)(27). In Bultron’s case, the pertinent portion of this definition is the phrase “any bodily impact . . . or the threat of imminent bodily impact”.

Interpreting this phrase in its broadest sense, one might say that Bultron engaged in “bodily impact” when he resisted the officers’ efforts to arrest him. He tensed his arms and resisted the officers’ attempts to move his hands around to his back; this led to a wrestling match on the ground, during which Bultron tried to keep his arm underneath him, so that his wrist was inaccessible to the officers.

But this Court has interpreted the resisting arrest statute to require proof of more than simply a passive resistance to the arrest. InHoward v. State, 101 P.3d 1054Page 6
(Alaska App. 2004), we noted that Alaska’s resisting arrest statute is based on Hawai’i’s corresponding statute (Hawai’i Statute 710-1026), and we therefore examined the commentary to the Hawai’i statute for guidance in interpreting our statute. Id. at 1058-59. The pertinent portion of that commentary reads:

Resisting arrest is one of the commonest forms of obstructing government operation. The [statute is designed] to confine the offense to forcible resistance that involves some substantial danger to the person. Mere non-submission ought not to be an offense. One who runs away from an arresting officer or who makes an effort to shake off the officer’s detaining arm might be said to obstruct the officer physically, but this type of evasion or minor scuffling is not unusual in an arrest, nor would it be desirable to make it a criminal offense to flee arrest. In [such cases,] the proper social course is to authorize police pursuit and use of reasonable force to effect the arrest.

Quoted in Howard, 101 P.3d at 1059.

We applied this interpretation of the resisting arrest statute inEide v. State, 168 P.3d 499 (Alaska App. 2007). The defendant inEide resisted a state trooper’s attempts to arrest him by jerking away from the trooper, lying on the ground, and “turtling” —i.e., holding his arms and wrists underneath his body so that they were inaccessible to the trooper. Id. at 501-02. The trooper testified that he feared that either he or Eide would be injured if he got down on the floor to wrestle with Eide, so he used an electric shock device to incapacitate Eide and effect the arrest. Id. at 502.

The State contended that this evidence was sufficient to establish that Eide resisted arrest by force, but this Court disagreed:

The commentary to AS 11.56.700 indicates that the legislature did not want the crime of resisting arrest toPage 7
encompass “mere non-submission to an arrest.” 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 [posed] 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.

Eide, 168 P.3d at 502.

Based on this Court’s decisions in Howard and Eide, it appears that Bultron’s conduct would not constitute the crime of resisting arrest. The State, however, argues that Bultron’s conviction is supported by this Court’s most recent decision on this issue,Fallon v. State, 221 P.3d 1016 (Alaska App. 2010).

The defendant in Fallon was arrested for driving under the influence. When the trooper announced that Fallon was under arrest, and when he directed Fallon to put his arms behind his back, Fallon tensed his arms and pressed them against his back so that the trooper could only handcuff one of Fallon’s wrists.[fn3] The trooper told Fallon to relax his arms and stop resisting, but Fallon would not cooperate, and he continued to tense his arms.[fn4] The trooper walked Fallon back to his patrol car. When they got to the patrol car, Fallon pushed himself away from the vehicle.[fn5] This action caused the trooperPage 8
to believe that Fallon was about to assault him, so he took Fallon to the ground.[fn6] During this struggle, Fallon kept trying to get up, and he continued to tense his arms.[fn7] At this point, a passing motorist stopped and, with this motorist’s help, the trooper was able to get Fallon’s second wrist handcuffed.[fn8]

On appeal, Fallon contended that this evidence was insufficient to prove that he had resisted arrest by “force”. He argued that, under this Court’s decision in Eide, his conduct amounted to no more than passive resistance to the arrest. This Court disagreed:

Fallon’s conduct differed from Eide’s in key respects. . . . Fallon . . . struggled against [the trooper’s] efforts to arrest him: When [the trooper] took Fallon . . . [to] the patrol car, Fallon pushed himself away from the car, so that [the trooper] had to take him to the ground. . . . Fallon tried to get up and continued to tense his arms against his back. . . . Viewing this evidence in the light most favorable to the State, we conclude that this conduct went beyond “mere non-submission to an arrest,” and that a fair-minded juror could find . . . that Fallon was guilty of resisting arrest by force.

Fallon, 221 P.3d at 1021.

The State argues that Bultron’s actions in the present case are analogous to the defendant’s actions in Fallon. The State notes that, just as in Fallon, the officers had to wrestle with Bultron on the ground, and that this wrestling was strenuous. (On the audio recording of this struggle, Bultron can be heard yelling, and Officer Crockett can be heard gasping for air, apparently from shortness of breath.)Page 9

But our decision in Fallon did not turn on the fact that the trooper had to wrestle with Fallon on the ground, nor did it turn on the strenuousness of Fallon’s resistance to being handcuffed. Rather, our decision was based on the fact that Fallon pushed himself away from the patrol car, and that Fallon repeatedly tried to get up from the ground during his struggle with the trooper. A jury could reasonably conclude that these actions exceeded the scope of “mere non-submission” — that these actions constituted a use of forcedirected at the trooper, rather than merely an attempt to obstruct the trooper’s efforts to complete the arrest.

In Bultron’s case, the evidence supports a finding that Bultron strenuously sought to impede the two officers from completing the arrest. But even when the evidence is viewed in the light most favorable to the jury’s verdict, it does not support a finding that Bultron used force directed against either of the two officers. Rather, Bultron confined himself to passive resistance. Accordingly, the evidence is insufficient to support Bultron’s conviction for resisting arrest under AS 11.56.700(a)(1).

Whether our reversal of Bultron’s conviction for resisting arrestrequires us to vacate the lower court’s decision to revoke Bultron’sprobation from his earlier conviction for driving with a revokedlicense

At the time of the events in this case, Bultron was on probation from an earlier conviction for driving while his license was revoked. Based on Bultron’s convictions in the present case — for resisting arrest, for again driving while his license was revoked, and for failing to stop at the direction of a police officer (which included an act of reckless driving) — the superior court revoked Bultron’s probation from the earlier case and sentenced Bultron to serve a previously suspended term of imprisonment.Page 10

Because we are reversing Bultron’s conviction for resisting arrest, we have examined the record pertaining to the probation revocation to see if there is a possibility that the superior court might alter its decision, now that one of Bultron’s convictions has been reversed.

Bultron’s earlier conviction was for driving while his license was revoked. Bultron’s new convictions include another act of driving while his license was revoked, as well as an act of reckless driving that Bultron committed while eluding a police officer who was attempting to stop him for a just-committed traffic offense (speeding). Given these facts, and given the superior court’s remarks at the disposition hearing, we conclude that there is essentially no possibility that our reversal of Bultron’s conviction for resisting arrest would prompt the superior court to alter its decision to revoke Bultron’s probation, or would prompt the superior court to alter its probation revocation sentencing decision.

Conclusion

Bultron’s conviction for resisting arrest is REVERSED. Bultron’s other convictions, and the revocation of his probation from the earlier case, are AFFIRMED.

[fn1] AS 28.15.291(a), AS 28.35.182(a), and AS 11.56.700(a), respectively.

[fn2] See, e.g., H e w itt v. State,188 P.3d 697, 698 (A laska A pp. 2008).

[fn3] Fallon, 221 P.3d at 1018.

[fn4] Ibid.

[fn5] Ibid.

[fn6] Ibid.

[fn7] Ibid.

[fn8] Ibid.Page 1