## Facts

- Don G. Muller and eight or nine other protesters went to U.S. Senator Ted Stevens’s Fairbanks office to protest the Iraq war by reading names of civilians and soldiers killed.
- Senator Stevens was not present; the group began reading names during business hours.
- At 4:00 p.m., the office’s closing time, the protesters still had thousands of names remaining; the office manager asked them to leave and return the next morning.
- The protesters refused to leave; a security guard also asked them to leave and called police.
- Police arrived and arrested three protesters, including Muller, for staying after being directed to leave.
- Muller was charged with second-degree criminal trespass for remaining in the office after closing time.
- Proceeding pro se, Muller noticed a necessity defense and requested the pattern necessity instruction; the trial judge instead gave a modified necessity instruction, and Muller did not object.
- Muller sought to introduce articles to show the Iraq war was illegal; the court excluded the articles but allowed him to present necessity.
- At trial, Muller admitted he remained after closing and claimed he acted to prevent the harm of an illegal war and lacked adequate alternatives given prior lawful activism.
- The jury rejected necessity and convicted Muller of second-degree criminal trespass.

## Issues

1. Whether Muller was entitled to a necessity defense to second-degree criminal trespass based on remaining in a U.S. Senator’s office after closing as anti-war civil disobedience.
2. Whether any error in the trial court’s modified necessity jury instruction required reversal.

## Decision

- The Alaska Court of Appeals affirmed the conviction.
- The court held Muller was not entitled to a necessity defense on these facts as a matter of law.
- Because Muller was not entitled to the defense, any asserted defect in the necessity instruction did not warrant reversal.

## Legal Principles

- In Alaska, necessity requires proof that: (1) the defendant acted to prevent a significant evil, (2) there was no adequate alternative, and (3) the harm caused was not disproportionate to the harm avoided.
- The defendant’s belief that the unlawful act was necessary must be objectively reasonable.
- Necessity requires a realistic, non-remote causal connection between the unlawful conduct and prevention of the threatened harm; symbolic or message-driven illegality does not satisfy the causal requirement.
- The availability of lawful avenues for political expression and change generally defeats the “no adequate alternative” element, even if the defendant believes lawful efforts are ineffective.
- When a defendant is not legally entitled to a defense, an erroneous instruction on that defense is not prejudicial.

## Conclusion

The court upheld Muller’s trespass conviction because his after-hours occupation of a government office was a symbolic protest lacking an objectively reasonable, direct causal connection to ending the Iraq war, and lawful alternatives for advocacy remained available; thus, necessity did not apply and any instructional flaws were harmless.


Muller v. State, 196 P.3d 815 (Alaska Ct. App. 2008)