Wylie v. State

• Decision Date: 10 August 1990
• Docket Number: No. A-2730,A-2730
• Citation: 797 P.2d 651
• Parties: Ronald Lee WYLIE, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Court of Appeals

Page 651

797 P.2d 651

Ronald Lee WYLIE, Appellant, v. STATE of Alaska, Appellee.

No. A-2730.

Court of Appeals of Alaska.

Aug. 10, 1990.

Phillip Paul Weidner, Weidner & Associates, Anchorage, for appellant.

Tonja Woelber, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, and Douglas B. Baily, Atty. Gen., Juneau, for appellee.

Before COATS and SINGLETON, ^* JJ., and REESE, Superior Court Judge. ^**

OPINION

SINGLETON, Judge.

Ronald Lee Wylie was convicted of one count each of leaving the scene of an accident, a misdemeanor, in violation of AS 28.35.050(a), ¹ failure to render assistance, a felony, in violation of AS 28.35.060(a), (c), ² failure to report an accident, a misdemeanor, in violation of AS 28.35.080(a), ³ and driving while intoxicated, a misdemeanor, in violation of AS 28.35.030.

The charges against Wylie grew out of an incident that occurred at approximately 3:00 a.m. on September 20, 1987. Wylie and his wife, Theresa, were driving home after an evening of drinking and dancing in a number of Kenai Peninsula nightclubs. Theresa jumped or fell from the moving vehicle, hung on briefly, and then fell striking her head on the pavement. She died almost instantly. Wylie did not stop. He drove home and called his mother who rushed to the scene, discovered Theresa's body, and summoned help. Earlier, a passerby saw Theresa's body by the side of the road and called the police who arrived shortly after Wylie's mother. At trial, Wylie conceded that he did not stop, render aid, or notify the authorities. He argued that he had no duty to do so because Theresa intentionally jumped out of his car and consequently, neither she nor he was involved in an accident. Wylie was convicted by a jury and he appeals. We affirm Wylie's conviction but vacate his sentence and remand for resentencing.

DISCUSSION

Wylie first argues that the trial court erred in refusing to grant his pretrial motion to change venue. He points out that he, his wife, and their families were well-known in the Kenai/Soldotna area where the incident occurred. Along with his motion, he introduced copies of newspaper clippings detailing the police investigation of the incident which mentioned that Wylie and Theresa had been having marital problems, that she had sued for divorce and had obtained a restraining order against him. The articles also indicated that Theresa accused Wylie of having beaten her and indicated that the police considered Theresa's death "suspicious." The newspaper also carried an article entitled "Domestic Violence--A Dark Path to Death" which included a discussion of the Wylies in a chronicle of local cases of domestic violence and indicated that Wylie had a history of domestic violence against a former wife, Lois, and that Theresa had accused him of severely beating her on two occasions. The article went on to detail Theresa's experience with the counselors at "The Women's Resource and Crisis Center" where Theresa spent some time allegedly as a result of domestic discord.

In addition, Wylie offered an affidavit from Robert M. Henderson, a former police officer, who was working as a private investigator. Henderson indicated that he had spoken with numerous people in the Kenai/Soldotna area who had read about the Wylie case in the local newspaper and believed that Wylie had intentionally shoved his wife out of the moving car. In his motion below, Wylie relied on AS 22.10.030, AS 22.10.040 and Alaska Criminal Rule 18(g) for the proposition that venue should have been changed prior to jury selection because there was reason to believe that an impartial trial could not be held.

Generally, criminal trials should be held where the alleged offense occurred. See Alvarado v. State, 486 P.2d 891, 902 (Alaska 1971). Nevertheless, the trial court has discretion to change venue where necessary to ensure a fair trial. Oxereok v. State, 611 P.2d 913, 919 (Alaska 1980); Mallott v. State, 608 P.2d 737, 746 (Alaska 1980); Brown v. State, 601 P.2d 221, 229-30 (Alaska 1979); Nylund v. State, 716 P.2d 387, 388 (Alaska App.1986); Nickolai v. State, 708 P.2d 1292, 1293 (Alaska App.1985); Chase v. State, 678 P.2d 1347, 1350 (Alaska App.1984). The general rule is that jury selection should be commenced in the venue of the crime and then moved only if voir dire reveals that an impartial jury cannot be obtained. Nevertheless, there may be circumstances in which the community where the incident occurred is so small, the parties so well-known, and pretrial publicity so pervasive that venue should be changed even though prospective jurors on voir dire assure the court that they can be fair. Nickolai, 708 P.2d at 1293.

We have carefully reviewed the voir dire examination in this case. We have also considered Wylie's arguments regarding the small size of the relevant community and the nature of the pretrial publicity. We note that only forty-five prospective jurors were questioned before twelve jurors and three alternates were chosen and that only six panelists knew Wylie or Theresa. It is noteworthy that defense counsel did not ask for additional peremptory challenges. It is also noteworthy that Wylie never renewed his motion to change venue after the jury and alternates had been selected. The supreme court has characterized a failure to renew a motion to change venue after voir dire as an "apparently deliberate waiver." Mallott, 608 P.2d at 748. We are satisfied that Superior Court Judge Beverly W. Cutler, who considered Wylie's pretrial motion, did not abuse her discretion in denying a change of venue prior to the voir dire examination. ⁴

Wylie next argues that Judge Cutler erred in denying his motion to dismiss the grand jury indictment for lack of evidence and that Superior Court Judge Victor D. Carlson, the trial judge, compounded this error by denying Wylie's motion for judgment of acquittal. In reviewing the denial of a motion to dismiss an indictment, the appellate court views the evidence in the light most favorable to the state to determine whether the evidence presented to the grand jury, if unexplained or uncontradicted, would warrant conviction. Alaska R.Crim.P. 6(q). See Mudge v. State, 760 P.2d 1046, 1049 (Alaska App.1988).

In considering a motion for a judgment of acquittal, both at trial and on appeal, the court 'must take the view of the evidence and the inferences arising therefrom most favorable to the state. If ... fair-minded men in the exercise of reasonable judgment could differ on the question of whether guilt has been established beyond a reasonable doubt,' the motion must be denied.

Hentzner v. State, 613 P.2d 821, 823 (Alaska 1980) (quoting Gray v. State, 463 P.2d 897, 905 (Alaska 1970)).

Wylie argues that Theresa's death was not an accident because she intentionally and voluntarily jumped from his vehicle. He argues that there is no evidence to the contrary and that as a matter of law he could not be convicted of the offenses charged.

We are thus faced with the interpretation of the applicable statutes and specifically with a determination of the meaning of the phrase "a vehicle involved in an accident" which occurs in all three statutes. In order to do so, we must determine legislative intent regarding the scope of these statutes. Alaska no longer adheres to a "plain meaning rule." See Sonneman v. Knight, 790 P.2d 702, 707 (Alaska 1990); Ward v. State, 758 P.2d 87, 89-90 n. 5 (Alaska 1988); Anchorage v. Sisters of Providence in Washington, Inc., 628 P.2d 22, 27 n. 6 (Alaska 1981); State Dept. of Nat. Resources v. City of Haines, 627 P.2d 1047, 1049 n. 6 (Alaska 1981). Nevertheless, " '[w]here a statute's meaning appears clear and unambiguous, ... the party asserting a different meaning bears a correspondingly heavy burden of demonstrating contrary legislative intent.' " Ward, 758 P.2d at 89-90 n. 5 (quoting University of Alaska v. Geistauts, 666 P.2d 424, 428 n. 5 (Alaska 1983)). The word "accident" and the phrase "a vehicle involved in an accident" are not specifically defined in the statutes. Consequently, they must be construed according to their common and approved usage. AS 01.10.040. No Alaskan appellate decision defines the terms "accident" or "involved" in comparable statutes. In such cases, "[g]enerally, we look to a dictionary to determine common usage." Walker v. State, 742 P.2d 790, 791 (Alaska App.1987). "Accident" has been defined as "an event or condition occurring by chance or arising from unknown or remote causes ... an unforeseen, unplanned event or condition ..." or "a usually sudden event or change occurring without intent or volition through carelessness, unawareness, ignorance, or a combination of causes and producing an unfortunate result." Webster's Third New International Dictionary of the English Language (Unabridged 1966). "Involved" means "to relate closely." Id. at 1191.

In interpreting a statute, it is also important to consider the purposes leading the legislature to enact the statute. We agree with the Supreme Court of Iowa that "hit and run" statutes, like the ones Wylie violated, have two general purposes: first, to ensure that motorists involved in accidents causing personal injury or property damage are prevented from evading liability, civil or criminal, by escaping before their identity can be established and, second, to ensure that injured persons are protected from distress or danger from additional mutilation and exposure for want of proper treatment. State v. Sebben, 185 N.W.2d 771, 774 (Iowa 1971). Criminal statutes must be strictly construed in favor of criminal defendants. State v. Andrews, 707 P.2d 900, 907 (Alaska App.1985), aff'd, 723 P.2d 85 (Alaska 1986). Strict construction does not, however, imply an unreasonable construction of a statutory scheme. Belarde v. Anchorage, 634 P.2d 567, 568 (Alaska App.1981). Essentially, we must give the statutes " 'a reasonable or commonsense construction, consonant with the objectives of the legislature.' "...