Ambacher v. State, A-13119

CourtCourt of Appeals of Alaska
Writing for the CourtWOLLENBERG, JUDGE
PartiesKEITH GILBERT AMBACHER, Appellant, v. STATE OF ALASKA, Appellee.
Docket NumberA-13119
Decision Date25 November 2022

KEITH GILBERT AMBACHER, Appellant,
v.

STATE OF ALASKA, Appellee.

No. A-13119

Court of Appeals of Alaska

November 25, 2022


Appeal from the Superior Court, No. 3SW-17-00226 CR Third Judicial District, Seward, Charles T. Huguelet, Judge.

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.

WOLLENBERG, JUDGE

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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

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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]

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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]

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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

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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

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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 "violating] a traffic law" or "committing] 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...

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