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               IN THE COURT OF APPEALS OF THE STATE OF ALASKA


CYRUS GREGORY TAYLOR,
                                                      Court of Appeals No. A-11719
                            Appellant,               Trial Court No. 3AN-12-4678 CR

                     v.
                                                              O P I N I O N
STATE OF ALASKA,

                            Appellee.                    No. 2555 — May 26, 2017


              Appeal from the Superior Court, Third Judicial District,
              Anchorage, Stephanie E. Joannides, Judge.

              Appearances: Glenda J. Kerry, Girdwood, for the Appellant.
              Eric A. Ringsmuth, Assistant Attorney General, Office of
              Criminal Appeals, Anchorage, and Craig W. Richards, Attorney
              General, Juneau, for the Appellee.

              Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock,
              Superior Court Judge. *

              Judge MANNHEIMER.


              Cyrus Gregory Taylor appeals his conviction for first-degree failure to stop
at the direction of a peace officer — otherwise known as “felony eluding”.



   *
       Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska
Constitution and Administrative Rule 24(d).
               Under the statute defining this crime — AS 28.35.182(a) — the State must
prove two elements: first, that the motorist failed to stop when directed to do so; and
second, that the motorist, while eluding the police, (1) committed the separate offense
of reckless driving, or (2) committed the separate offense of vehicle theft, or (3) caused
an accident, or (4) caused serious physical injury.
               Taylor was indicted on the theory that he committed the offense of reckless
driving while he was eluding the officers. However, toward the end of the trial, the trial
judge (apparently acting sua sponte) amended the jury instruction on the elements of the
crime — adding a provision which said that Taylor could alternatively be convicted of
felony eluding if the jurors found that he caused an accident while he was eluding the
officers.
               Even though the instruction on the elements of the crime now allowed the
jurors to convict Taylor under either a “reckless driving” or a “caused an accident”
theory, the judge did not instruct the jurors that they had to be unanimous as to which
theory they thought the State had proved.
               Taylor’s attorney did not object when the trial judge amended the elements
instruction to include both a “reckless driving” theory and a “caused an accident” theory
of the crime. Nor did Taylor’s attorney object to the lack of a factual unanimity
instruction.
               But on appeal, Taylor argues that it was plain error for the trial judge to let
the jurors decide the eluding charge based on a “caused an accident” theory. Taylor
contends that this theory was a fatal variance from the theory of reckless driving that the
State presented to the grand jury.
               In the alternative, Taylor argues that the judge committed plain error by
failing to give the jurors a factual unanimity instruction — i.e., an instruction requiring



                                             –2–                                         2555

the jurors to reach unanimous agreement as to which of the two theories had been
proved.
              For the reasons we are about to explain, we find that neither of these alleged
errors constitutes plain error, and we therefore affirm Taylor’s conviction.


       Underlying facts


              On May 15, 2012, Anchorage police officers Christopher Nelson and
Matthew Jensen were on patrol, in separate patrol cars, when they saw a Suburban run
a red light on DeBarr Road and then turn onto Pine Street. Officer Nelson activated his
overhead lights and began to pursue the Suburban. Officer Jensen joined in the pursuit.
              Rather than stopping, the driver of the Suburban accelerated away from the
officers. Traveling at speeds of up to 70 miles per hour, the driver of the Suburban
engaged in evasive maneuvers through residential streets and alleys where the speed
limit was between 25 and 30 miles per hour. The driver swerved, slid, made sharp turns,
and at times fish-tailed out of control.
              The officers followed the Suburban until it stopped just behind a parked
Nissan Maxima. Although the officers did not perceive it at the time, the Suburban
apparently collided lightly with the Maxima.
              Officer Nelson pulled his patrol car in behind the Suburban, intending to
box it in and prevent it from leaving. The driver of the Suburban then backed his vehicle
into Nelson’s patrol car. At this point, both officers saw Taylor exit the Suburban
through the driver’s door and start running away toward the south. There was a second
man in the Suburban, and he fled toward the northwest.
              Nelson and his police dog followed Taylor, and Taylor was apprehended
approximately two minutes later. The police were unable to track down the other man.

                                           –3–                                         2555

              When Taylor was apprehended, he had a strong odor of alcohol and his
speech was slurred; he also had bloodshot, watery eyes. The police arrested Taylor for
driving under the influence, and Taylor later refused to submit to a breath test.
              Based on these events, Taylor was charged with five offenses: felony
eluding (i.e., first-degree failure to stop at the direction of a peace officer), driving under
the influence, refusing to submit to a breath test, leaving the scene of a collision with an
unattended vehicle (the Nissan Maxima), and leaving the scene of a collision with an
attended vehicle (the patrol car).
              The indictment for felony eluding alleged that Taylor knowingly failed to
stop his vehicle when he was signaled to do so by the police, and that, in the process of
eluding the officers, Taylor committed the offense of reckless driving “by creating a
substantial and unjustifiable risk of harm to a person and/or to property”.
              At Taylor’s trial, the State presented evidence of all five charges. Thus, in
addition to presenting evidence that Taylor drove recklessly through residential streets
while he was eluding the officers, the State also presented evidence that Taylor collided
with the unattended Nissan Maxima, and that Taylor backed the Suburban into Officer
Nelson’s patrol car.


       The jury instruction on the elements of felony eluding


              Both Taylor and the State offered jury instructions on the elements of the
felony eluding charge. Both of these proposed instructions were worded based on the
State’s theory at grand jury: that Taylor’s offense was a felony because he committed
reckless driving while he was eluding the officers.




                                             –4–                                          2555

              Neither of the proposed instructions included the alternate theory that
Taylor’s offense was a felony because he caused an accident, and there was no
discussion at Taylor’s trial about amending the jury instruction to include this theory.
              But somehow, by the time the trial judge assembled the final version of the
jury instructions, the instruction on the elements of felony eluding had been amended to
include both theories. This amended instruction told the jurors that Taylor could be
convicted of felony eluding either under the theory that he committed reckless driving
or under the theory that he caused an accident.
              In Taylor’s brief to this Court, he asserts that the trial judge amended the
jury instruction sua sponte. The State, for its part, appears to concede that this is correct
— that the judge unilaterally amended the instruction to include the alternate theory that
Taylor had caused an accident.
              In any event, by the time the two attorneys delivered their closing
arguments to the jury, both attorneys were aware that the jury instruction had been
amended to include the alternate theory that Taylor had caused an accident. Taylor
admits that his trial attorney made no objection when the judge amended the jury
instruction to include the alternate theory of causing an accident.
              In addition, the amended jury instruction did not tell the jurors that they had
to unanimously agree as to which theory the State had proved — reckless driving or
causing an accident. Taylor admits that his attorney did not object to this aspect of the
jury instruction.
              However, the judge’s action had little effect on Taylor’s theory of defense.
From the beginning of the trial (as articulated in the defense attorney’s opening
statement), Taylor’s defense was that he had not been driving the Suburban — that he
was the passenger in the Suburban, and that another man named Adrian “Geronimo”



                                            –5–                                         2555

Beaver was the driver. Taylor testified in support of this defense, and Taylor’s attorney
reiterated this claim when he delivered the defense summation to the jury.
              The jury rejected Taylor’s defense and convicted him of driving under the
influence, refusing to submit to a breath test, leaving the scene of an accident with an
attended vehicle (Officer Nelson’s patrol car), and felony eluding. However, the jury
acquitted Taylor of leaving the scene of an accident with an unattended vehicle (the
Nissan Maxima), apparently under the theory that Taylor was unaware that his Suburban
had collided with that vehicle.


       Taylor’s claim that it was plain error for the trial judge to neglect to
       instruct the jurors on the need for factual unanimity


              Alaska law requires jurors to reach unanimity regarding the act for which
the defendant is found guilty. 1 Thus, when the State presents evidence that a defendant
committed different acts that could each separately support a criminal conviction, the
trial judge is required to instruct the jurors that, in order to return a verdict, they must
reach unanimous agreement as to which of these acts the defendant committed. 2
              But our law does not require the jurors to reach unanimity regarding the
theory under which the defendant’s actions constitute the charged crime. Thus, in State
v. James, 698 P.2d 1161, 1167 (Alaska 1985), the Alaska Supreme Court held that when
a statute defines a crime as an act performed with one of multiple culpable mental states,
the jury need not reach unanimous agreement as to exactly what culpable mental state


   1
       See, e.g., Khan v. State, 278 P.3d 893, 897 (Alaska 2012).
   2
      See, e.g., Ramsey v. State, 355 P.3d 601, 602 (Alaska App. 2015); Anderson v. State,
289 P.3d 1, 4 (Alaska App. 2012); Castillo v. State, 821 P.2d 133, 136-37 (Alaska App.
1991); Covington v. State, 703 P.2d 436, 440 (Alaska App. 1985).

                                           –6–                                         2555

the defendant had. As the James court explained, “where the alleged criminal deed is
restricted to a single incident, any potential difference in the jurors’ findings of intent
versus wilful disregard is not significant”. Ibid.
              Indeed, the James court went even farther — indicatingthat when a statute
defines a crime using alternative clauses or subsections, the legislature is presumed to
have defined a single crime that can be proved in different ways, and a trial jury need not
be unanimous as to which of these alternative theories the government has proved:

              We do not believe the legislature intended to force prosecu­
              tors in charging crimes, or judges in instructing juries, to
              select either one or another of the alternative subsections in
              most criminal statutes. If it had so intended, the legislature
              would not have included the various subsections in unitary
              statutory offenses. To the contrary, the legislature evidently
              contemplated disjunctive charging and wanted to make it
              possible to convict despite a potential lack of analytical
              unanimity.

James, 698 P.2d at 1167.
              Nor is this doctrine of non-unanimity restricted to differences in culpable
mental states. In Gray v. State, 463 P.2d 897, 911 (Alaska 1970), the supreme court
expressly approved the practice of having a jury return a general verdict on the crime of
first-degree murder, even though (under Alaska’s former criminal code) this crime was
defined in the disjunctive — as either a premeditated killing or an intentional killing
performed during the commission of a felony. The court stated:

              Although there are several ways of committing first-degree
              murder, it is still only one crime; and only one sentence can
              be imposed. We believe it is sound to allow multiple theories




                                           –7–                                        2555

              to be presented to the jury and not to force the jury to choose
              between them.

Gray, 463 P.2d at 911.
              Similarly, in State v. McDonald, 872 P.2d 627, 655 (Alaska App. 1994),
where the defendant was charged with murder under a complicity theory, this Court held
that the jury did not have to reach unanimous agreement as to whether the defendant
personally killed the victim or, instead, solicited another person to kill the victim.
Accord, Totemoff v. State, 866 P.2d 125, 129 (Alaska App. 1993).
              And in Cheely v. State, 850 P.2d 653, 661-63 (Alaska App. 1993), this
Court held that a theft indictment encompasses all six of the methods of committing theft
defined in AS 11.46.100, so that there is no fatal variance when a defendant who is
indicted for theft under an “unlawful taking” theory is convicted under a “knowingly
receiving stolen property” theory.
              Returning to the present case, the statute defining the crime of felony
eluding, AS 28.35.182(a), declares that the act of failing to stop at the direction of a
police officer is elevated to a felony if that act is accompanied by one of four aggravating
factors. Based on the structure of this statute, the crime of felony eluding presents the
legal situation discussed in James, Gray, McDonald, and Cheely: a single crime, with
alternative ways to commit it.
              In Taylor’s case, his reckless driving and his collision with the patrol car
were simply different aspects of one continuing act of eluding. Taylor drove recklessly
through residential streets and then, when he finally came to a stop, he backed into the
patrol car that had parked behind him to box him in.
              Because Taylor’s case involved only one act of eluding, the jurors did not
need to reach unanimity regarding the theory that made this act of eluding a felony-level
offense.

                                           –8–                                         2555

       Taylor’s claim that the trial judge’s addition of the “caused an accident”
       theory led to a fatal variance


              As we have already explained, Taylor was indicted for felony eluding under
the theory that, while he was eluding the officers, he committed the offense of reckless
driving. But Taylor was also charged with leaving the scene of a collision with an
attended vehicle (Officer Nelson’s patrol car). To prove this charge, the State presented
evidence that Taylor backed the Suburban into the patrol car after Nelson used the car
to box Taylor in.
              Apparently based on this evidence, the trial judge amended the jury
instruction on the elements of felony eluding so that it allowed the jurors to convict
Taylor either (1) under the theory that he committed reckless driving while eluding the
officers or (2) under the theory that he caused an accident while eluding the officers.
              Alaska Criminal Rule 7(e) authorizes a trial judge to permit the amendment
of an indictment to conform to the trial evidence “at any time before [the] verdict”, so
long as “no additional or different offense is charged and the substantial rights of the
defendant are not prejudiced.”
              Here, no “different offense” was charged — because, as we explained in
the preceding section of this opinion, the four different circumstances that raise an act
of eluding to a felony under AS 28.35.182(a) are not four separate crimes, but rather four
different ways of committing the same crime.
              But Taylor argues that the trial judge’s action prejudiced his substantial
rights. More specifically, Taylor argues that, by amending the instruction on the
elements of felony eluding, the judge effectively allowed the trial jurors to convict Taylor
under a theory that was not charged in the indictment, and that the grand jurors never
considered.


                                           –9–                                         2555

              As a general rule, it is improper to convict a defendant based on evidence
that is materially different from the evidence that supported the grand jury
indictment. 3 But our law recognizes various exceptions to this rule.
              As this Court said in Rogers v. State, 232 P.3d 1226 (Alaska App. 2010),
“Alaska has long recognized that the proof ultimately adduced at a criminal trial may
differ in significant ways from the evidence presented to the grand jury, and that the trial
jury may legitimately reach a different view of events from the one represented in the
grand jury indictment.” Id. at 1239. Our decision in Rogers contains a discussion of
several prior cases that apply this principle. Id. at 1239-1240. See also Andrew v. State,
237 P.3d 1027, 1034-35 (Alaska App. 2010) (holding that there is no material variance
when a defendant is indicted under the theory that they personally committed a crime,
but the defendant is convicted under a complicity theory — or vice versa).
              Here, the question is whether it is a “constructive amendment” of the
indictment if a grand jury indicts a defendant for felony eluding under one of the four
alternative theories listed in AS 28.35.182(a), but the trial jury convicts the defendant
under one of the other theories. We conclude that we need not answer this question in
Taylor’s case — because the facts of this case show that there was no significant
departure from the grand jury’s view of the case, and Taylor’s substantial rights were not
prejudiced.
              As explained by our supreme court in Michael v. State, we must decide
whether the State’s proof of the felony eluding charge at Taylor’s trial was “a departure
... from the indictment sufficiently great to be regarded as a constructive amendment”
(thus requiring reversal), or whether the difference in proof was “a mere variance, which




   3
       Lindeman v. State, 244 P.3d 1151, 1159 (Alaska App. 2011).

                                           – 10 –                                      2555

is reversible error only if prejudicial to the defendant.” 805 P.2d 371, 373 (Alaska
1991).
               The prosecutor who presented Taylor’s case to the grand jury asked the
grand jurors to indict Taylor under the theory that he committed the offense of reckless
driving while he was eluding the police — i.e., that Taylor “[drove] a motor vehicle ...
in a manner that create[d] a substantial and unjustifiable risk of harm to a person or to
property”. 4 But Taylor’s dangerous driving through residential streets and his collision
with the patrol car at the end of the chase were simply different aspects of one continuing
act of eluding. To establish that Taylor drove the Suburban in a manner that created a
substantial and unjustifiable risk of harm, the prosecutor presented testimony to the grand
jury that described Taylor’s entire course of reckless driving — including Taylor’s final
act of backing the Suburban into Officer Nelson’s patrol car.
               In this context, there is no reason to believe that the grand jurors viewed the
collision with the patrol car as separate from the dangerous driving that preceded it. The
fact that Taylor purposely backed into the patrol car at the end of the chase was simply
a component of the evidence that Taylor drove recklessly.
               Moreover, because the State separately charged Taylor with leaving the
scene of an accident (based on his act of backing into the patrol car and then running
away), it was obvious to Taylor’s defense attorney that the State’s trial evidence was
going to encompass Taylor’s entire course of driving, including the collision with the
patrol car. Thus, Taylor’s attorney knew that he was going to have to respond to that
evidence. And he did — by asserting the blanket defense that Taylor was not the driver
of the Suburban.




   4
         AS 28.35.400(a).

                                            – 11 –                                       2555

              Given these circumstances, even if some of the trial jurors relied on the fact
that Taylor had caused an accident when they found him guilty of felony eluding, we
find no fatal variance.


       Conclusion


              The judgement of the superior court is AFFIRMED.




                                           – 12 –                                      2555

