Taylor v. State, 400 P.3d 130

On May 15, 2012, Taylor fled from Anchorage police in a Suburban after running a red light; he drove at high speeds with evasive maneuvers through residential streets and ultimately stopped behind a parked Nissan Maxima.
The Suburban lightly collided with the Maxima and then, when boxed in by a patrol car, backed into Officer Nelson’s patrol car; Taylor exited and fled on foot and was arrested shortly thereafter.
Taylor was indicted for five offenses including felony eluding (first-degree failure to stop) on the theory that he committed reckless driving while eluding.
At trial the judge sua sponte amended the felony-eluding elements instruction to add an alternative theory that Taylor could be convicted if he “caused an accident” while eluding; counsel did not object and no unanimity instruction was given.
The jury convicted Taylor of felony eluding (and several related offenses) but acquitted him of leaving the scene of a collision with the unattended Maxima.
On appeal Taylor argued plain error: (1) the trial judge constructively amended the indictment by allowing conviction on a theory (caused an accident) not presented to the grand jury, and (2) the judge failed to give a factual-unanimity instruction requiring jurors to agree on which theory supported the conviction.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether addition of the “caused an accident” theory was a constructive amendment of the indictment	Taylor: amendment allowed conviction on a theory not presented to grand jury and thus prejudiced his rights	State: the statute lists alternative means to elevate eluding to a felony; the alternatives are ways to prove one crime, not separate offenses	No constructive amendment; no prejudice — alternatives are means of committing same offense and the evidence at grand jury/trial covered the same course of conduct
Whether jury must be unanimous as to which alternative theory (reckless driving vs. caused an accident) supports the felony eluding conviction	Taylor: failure to give a factual-unanimity instruction was plain error because jurors may have convicted on different theories	State: when statute defines a single crime by alternative clauses, jury unanimity on the precise theory is not required	No plain error — jury need not unanimously agree on which of statutory alternatives makes the single charged act a felony

State v. James, 698 P.2d 1161 (Alaska 1985) (when statute defines a crime with alternative culpable states, jurors need not unanimously agree on the particular theory)
Gray v. State, 463 P.2d 897 (Alaska 1970) (allowing general verdicts where single crime defined in disjunctive; jury need not choose among alternative theories)
Michael v. State, 805 P.2d 371 (Alaska 1991) (distinguishes constructive amendment from mere variance; reversal only if substantial rights prejudiced)
Rogers v. State, 232 P.3d 1226 (Alaska App. 2010) (proof at trial may differ from grand jury evidence without causing material variance)
Cheely v. State, 850 P.2d 653 (Alaska App. 1993) (an indictment can encompass several statutory methods of committing a single offense; conviction under an alternative theory is not fatal variance)