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             IN THE COURT OF APPEALS OF THE STATE OF ALASKA


BOBBY JACK BASS,
                                                      Court of Appeals No. A-11536
                            Appellant,               Trial Court No. 3PA-11-2791 CR

                     v.
                                                               OPINION
STATE OF ALASKA,

                            Appellee.                No. 2527 — November 18, 2016


              Appeal from the Superior Court, Third Judicial District, Palmer,
              Gregory Heath, Judge.

              Appearances: Andrew Steiner, Attorney at Law, Bend, Oregon,
              for the Appellant. Nancy R. Simel, 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 ALLARD.




   *
       Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska
Constitution and Administrative Rule 24(d).
              Bobby Jack Bass was convicted of failure to render assistance to an injured
person after a vehicle accident, a class C felony. On appeal, he argues that the superior
court improperly instructed the jury on the elements of that crime.
              We agree with Bass, and we reverse his conviction.


       Relevant legal background
              A pair of statutes, AS 28.35.050 and AS 28.35.060, define the duties of a
driver who is involved in an accident where one or more people are injured or killed.1
              Alaska Statute 28.35.050(a) declares that the driver “shall immediately stop
the vehicle at the scene of the accident or as close to it as possible,” and that the driver
shall then “return to, and remain at, the scene until the [driver] has fulfilled the
requirements of AS 28.35.060.”
              Subsection (a) of AS 28.35.060 defines two distinct groups of duties that
the driver must fulfill. First, the driver must give his or her “name, address, and vehicle
license number” to the injured person or to some other attending person. Second, the
driver must “render ... reasonable assistance” to the injured person, “including making
of arrangements for attendance upon the person by a physician and [for transporting the
person], in a manner that will not cause further injury, to a hospital for medical treatment
if it is apparent that treatment is desirable.”
              Although the driver must comply with both sets of duties, AS 28.35.060(b)
and (c) create different penalties for a defendant’s failure to perform each duty. Under
AS 28.35.060(b), a driver who fails to provide identifying information is guilty of a
misdemeanor and faces up to 1 year’s imprisonment. Under AS 28.35.060(c), a driver

   1
       See also Drahosh v. State, 442 P.2d 44, 47-48 (Alaska 1968) (referring to
AS 28.35.050 and AS 28.35.060 as constituting an “interlocking statutory scheme
proscribing conduct commonly known as ‘hit and run’ driving”).

                                            –2–                                       2527

who fails to render reasonable assistance to an injured person is guilty of a felony and
faces up to 10 years’ imprisonment.


       Why we reverse Bass’s conviction
             In the current case, Bass was indicted under the felony provision of
AS 28.35.060. That is, he was charged with failing to remain at the scene until he had
rendered reasonable assistance to the person who was injured in the collision.2
             But at trial, the jury was instructed that Bass would be guilty of the charged
felony if he failed to comply with either of the two groups of duties imposed by
AS 28.35.060(a). That is, the jury was told that Bass should be found guilty of the
felony if the State proved either that Bass failed to provide identifying information or
that Bass failed to render reasonable assistance.
             Bass objected to this jury instruction, pointing out (correctly) that the
instruction permitted the jury to convict Bass of a felony for conduct that was only a
misdemeanor under Alaska law. The court overruled Bass’s objection and gave the
erroneous jury instruction. The prosecutor subsequently exacerbated this error by
expressly arguing to the jurors during his summation that Bass should be convicted of
the charged felony because he failed to provide identifying information. The jury
convicted Bass, and Bass now appeals.
             On appeal, the State argues that the erroneous instruction was harmless
because Bass never argued that he rendered reasonable assistance to the driver in the
other vehicle; instead, he argued only that he was not the driver of his vehicle. (Bass
claimed that his wife was driving.)




   2
       AS 28.35.060(a) and (c).

                                          –3–                                        2527

              But as Bass points out, there was evidence presented at trial that Bass got
out of his vehicle and approached the other driver to check on his welfare, and that Bass
did not leave the scene until the situation appeared to be under control and other people
had directly assumed responsibility for taking care of the other driver.
              Bass’s attorney did not argue this evidence during his closing argument, but
the attorney’s omission is easily explained by the fact that the trial judge had already
rejected the defense attorney’s objection to the erroneous jury instruction on the elements
of the crime. That is, when the defense attorney delivered his summation, he already
knew that the jury was going to be instructed that Bass could be convicted either if he
failed to provide his identifying information or if he failed to render assistance to the
other driver. There was no evidence that Bass provided his identifying information to
anyone — so, under the erroneous jury instruction, it made no difference whether Bass
checked on the other driver’s well-being before he left the scene.
              Given these circumstances, we cannot say that the erroneous jury
instruction was harmless. We accordingly reverse Bass’s conviction for violating
AS 28.35.060(c), and we remand this case to the superior court for further proceedings
consistent with this decision.


       Conclusion
              We REVERSE the judgment of the superior court.




                                           –4–                                       2527

