Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law.

MEMORANDUM OPINION

Judge MANNHEIMER.

Adam J. Avakumoff was convicted of felony driving under the influence and driving while his license was revoked. At his trial, Avakumoff argued that his act of driving was justified by necessity.

In particular, Avakumoff contended that he had been drinking at the home of another man, Mark Donithan, when Donithan accused Avakumoff of stealing from him and then attacked Avakumoff with a knife. Avakumoff argued that his only feasible option was to grab Donithan's knife and then drive away from Donithan's house, even though he was intoxicated and even though his license was revoked. The jury rejected this necessity defense and found Avakumoff guilty.

Avakumoff argues on appeal that he should get a new trial because the state troopers returned Donithan's knife to Donithan after they performed their on-the-scene investigation of this incident.

At trial, Avakumoff asserted that the troopers' action of returning the knife to Donithan rendered the knife unavailable to Avakumoff, thus depriving him of potentially exculpatory evidence — specifically, the opportunity to demonstrate the particular physical characteristics of this knife. Avakumoff argued that he had skin injuries at the time of the traffic stop, and that these injuries were consistent with the knife's physical characteristics. Avakumoff asked the trial judge to give the jurors a Thorne instruction — that is, to instruct the jurors to assume that, had the knife been produced, it would have been favorable to Avakumoff's defense.1 The trial judge declined to give this instruction, and Avakumoff now contends that the judge's decision was reversible error.

Avakumoff was not entitled to a Thorne instruction — because Donithan's knife was not lost or destroyed by the troopers. The troopers returned the knife to Donithan because, based on their investigation, the troopers concluded that the knife belonged to Donithan, that Avakumoff had taken it, and that Donithan had not assaulted Avakumoff with the knife.

The fact that the troopers returned the knife to Donithan did not mean that the knife was "lost", "destroyed", or even unavailable. Presumably, the knife was still in Donithan's possession and was available to either party through the subpoena process. Avakumoff offered nothing to the contrary.

The knife became "unavailable" to Avakumoff purely because Avakumoff's attorney chose not to try to subpoena Donithan until the middle of trial. At that time, a defense investigator was able to contact Donithan by phone, but Donithan refused to come to court, and he declined to provide his address.

The trial judge ruled that the troopers had returned the knife to Donithan in good faith, because the knife belonged to Donithan, because the troopers reasonably believed that no assault had occurred, and because the troopers could not reasonably anticipate that the precise physical characteristics of the knife would be at issue in Avakumoff's trial. The trial judge also ruled that, to the extent the knife was currently unavailable, this was primarily because Donithan's defense attorney had failed to take "reasonable steps to acquire [this] evidence."

Under these circumstances, the trial judge correctly concluded that it would be improper to penalize the State with a Thorne instruction.

Avakumoff also challenges his sentence; he argues that the superior court imposed an excessive sentence by placing Avakumoff on probation for 5 years (after he served a 3-year term of imprisonment). Avakumoff asserts that a 3-year term of probation would have been sufficient.

At Avakumoff's sentencing, the superior court stated that a long period of probation was required to protect the public and to help Avakumoff achieve rehabilitation. The court noted that Avakumoff had a lengthy history of assaultive behavior, and that Avakumoff was on parole for another felony at the time of the current offenses. The court also noted that Avakumoff "struggle[d] with mental illness", and that the combination of this mental illness and Avakumoff's substance abuse made Avakumoff dangerous to the public.

With regard to the length of Avakumoff's probation, the sentencing judge declared:

Given the record in this case, the superior court was not clearly mistaken in placing Avakumoff on probation for 5 years.

The judgement of the superior court is AFFIRMED.