Notes to Decisions

Former law construed. —

See Tarnef v. State, 512 P.2d 923 (Alaska 1973) (decided under former AS 11.10.010).

Legal accountability statutes apply to fish and wildlife offenses. Knutson v. State, 736 P.2d 775 (Alaska Ct. App. 1987).

Notice to defendant of theories of liability. —

When an indictment alleges that the defendant personally committed the acts constituting the crime, the defendant is on notice that he or she may also be convicted under a theory of accomplice liability if the state establishes that the defendant is responsible for the acts of others under AS 11.16.110 . Baker v. State, 905 P.2d 479 (Alaska Ct. App. 1995).

Evidence held sufficient. —

Sufficient evidence supported defendant's conviction for transporting alcohol into a community that banned alcohol importation because a jury could find from defendant's acts, the acts of another for which defendant was legally responsible, or a combination thereof, that the two executed a plan to import alcohol into such a community. Demantle v. State, — P.3d — (Alaska Ct. App. Oct. 25, 2017) (memorandum decision).

Jury instructions. —

In a case in which defendant was convicted of fourth degree theft, the district court erred in including additional language in the pattern jury instruction regarding accomplice liability because defendant's case was not a case that involved the more subtle forms of abetting, as the State's theory of prosecution was that defendant directly participated in the theft; however, the error was harmless as the trial focused on whether defendant actively participated in the shoplifting, the jury was otherwise properly instructed on the elements of complicity, and the jury was specifically instructed that mere knowledge and failure to report a crime was not sufficient to establish vicarious liability. Larson v. State, — P.3d — (Alaska Ct. App. Mar. 21, 2018) (memorandum decision).

Unanimity in verdict not required. —

The jury was not required to be unanimous as to the precise theory upon which it returned its guilty verdicts, where it found beyond a reasonable doubt that both defendants participated jointly in the endeavor of shooting deer with the aid of a handheld spotlight. As a matter of law, both men could be held accountable for their own acts or as accomplices. Totemoff v. State, 866 P.2d 125 (Alaska Ct. App. 1993), rev'd in part, — P.2d — (Alaska 1995).

Applied in

Kinegak v. State, 747 P.2d 541 (Alaska Ct. App. 1987).

Cited in

Dailey v. State, 675 P.2d 657 (Alaska Ct. App. 1984).

Notes to Decisions

Annotator’s notes. —

Some of the cases cited in the notes below were decided under former AS 12.15.010.

Distinction between principals and accessories abrogated. —

Former AS 12.15.010 abrogated the distinction between principals and accessories. Tarnef v. State, 492 P.2d 109 (Alaska 1971).

By former AS 12.15.010, Alaska abolished the common-law distinction between accessories and principals to a crime. Rice v. State, 589 P.2d 419 (Alaska 1979).

Alaskan law does not distinguish the criminal liability of principals and accomplices. Machado v. State, 797 P.2d 677 (Alaska Ct. App. 1990).

Legal accountability statutes apply to fish and wildlife offenses. Knutson v. State, 736 P.2d 775 (Alaska Ct. App. 1987).

Knowledge of fact of criminality irrelevant. —

In order for a defendant to be found liable as an accomplice, the state need only prove that defendant intentionally aided codefendant, knowing of codefendant’s criminal purpose. It is not necessary that he know of the criminality of the conduct. Mudge v. State, 760 P.2d 1046 (Alaska Ct. App. 1988).

Arrest based on identification by co-defendant. —

Police did not need a warrant to arrest defendant for sexual assault in the first degree because they had probable cause, based in part on the victim’s statement that she had been raped by two men and an identification of defendant by the other man. Shorty v. State, 214 P.3d 374 (Alaska Ct. App. 2009).

Evidence sufficient to establish accomplice liability. —

Evidence was sufficient for convictions of first-degree assault and kidnapping, where defendant and a cohort bound and repeatedly hit a victim over several hours, based on a theory of accomplice liability under paragraph (2) of this section, since defendant and the cohort both actively participated in the binding of the victim and in repeatedly striking him, which resulted in serious injury to the victim, including broken ribs, a broken ankle, and a punctured lung. Anderson v. State, 163 P.3d 1000 (Alaska Ct. App. 2007), cert. denied, 552 U.S. 1249, 128 S. Ct. 1486, 170 L. Ed. 2d 306 (U.S. 2008).

Sufficient evidence supported defendant’s second-degree theft convictions because (1) the State did not have to prove under the complicity statute that defendant committed thefts personally, and (2) defendant was criminally responsible for all the thefts. McCourt v. State, — P.3d — (Alaska Ct. App. Mar. 5, 2014) (memorandum decision).

Defendant’s conviction for robbery in the first degree was proper where the evidence showed that defendant assisted the robbery by holding the restaurant door open. Egbe v. State, — P.3d — (Alaska Ct. App. Feb. 8, 2012) (memorandum decision).

Even if a cautionary instruction was not an adequate remedy for the potential danger posed by questions to defendant referring to her husband’s purported out-of-court statements, the error was harmless because the evidence was sufficient to support the conclusion that defendant acted with the mens rea for accomplice liability to first-degree murder. Estes v. State, 249 P.3d 313 (Alaska Ct. App. 2011).

If appellant was an accomplice to the burglaries, then she could be held accountable for repaying the losses of the victims regarding all the unrecovered property. Ketcham-Ross v. State, — P.3d — (Alaska Ct. App. Apr. 18, 2012) (memorandum decision).

In a case in which defendant's third conviction for evidence tampering was based on evidence that he solicited or directed his son to remove all the marijuana plants and seeds from the house, and to throw those materials over the riverbank, the evidence was sufficient to sustain that conviction because, although there was no evidence that defendant personally removed the marijuana from the residence, the evidence showed that defendant solicited or directed his son to remove the marijuana and dispose of it; thus, defendant could be found criminally responsible for his son's action. Kangas v. State, — P.3d — (Alaska Ct. App. June 13, 2018) (memorandum decision).

Abrogation did not apply only to punishment. —

The abrogation of the distinction between accessories and principals mandated by former AS 12.15.010 did not apply only to punishment. Scharver v. State, 561 P.2d 300 (Alaska 1977).

To “prosecute” one as a principal includes charging him as a principal. Scharver v. State, 561 P.2d 300 (Alaska 1977).

Notice to defendant of theories of liability. —

When an indictment alleges that the defendant personally committed the acts constituting the crime, the defendant is on notice that he or she may also be convicted under a theory of accomplice liability if the state establishes that the defendant is responsible for the acts of others under this section. Baker v. State, 905 P.2d 479 (Alaska Ct. App. 1995).

Aiders and abettors as principals. —

Former AS 12.15.010 provided that anyone aiding or abetting the commission of a crime should be prosecuted, tried, and punished as a principal. Tarnef v. State, 492 P.2d 109 (Alaska 1971).

An accused who is indicted as a principal is subject to conviction upon evidence which shows that he only aided and abetted. Scharver v. State, 561 P.2d 300 (Alaska 1977).

One indicted as a principal may be convicted of the crime on evidence which shows that he merely aided and abetted. Ransom v. State, 460 P.2d 170 (Alaska 1969).

“Aid and abet” means to help, assist, or facilitate the commission of a crime, promote the accomplishment thereof, help in advancing or bringing it about, or encourage, counsel, or incite as to its commission. Thomas v. State, 391 P.2d 18 (Alaska 1964), limited, Doisher v. State, 632 P.2d 242 (Alaska Ct. App. 1981); Carman v. State, 602 P.2d 1255 (Alaska 1979); Hensel v. State, 604 P.2d 222 (Alaska 1979).

It can be inferred that the words “aid and abet” are used synonymously with various combinations of the words assist, advise, counsel, procure, encourage, incite and instigate. Tarnef v. State, 512 P.2d 923 (Alaska 1973); Carman v. State, 602 P.2d 1255 (Alaska 1979).

Intent. —

The plain language of this section indicates that an accomplice must intend the commission of the particular offense committed by the principal in order to be convicted of the offense. Erickson v. State, 824 P.2d 725 (Alaska Ct. App. 1991).

Under the complicity statute, there is no criminal liability if the state can prove only that the defendant recklessly disregarded the possibility that his conduct might promote or facilitate a crime, since all accomplice behavior must be intentional. Ashenfelter v. State, 988 P.2d 120 (Alaska Ct. App. 1999).

Culpable mental state. —

When two or more people are jointly accountable for conduct under Alaska’s complicity statute, AS 11.16.110 , and if, on the basis of that conduct, they are charged with a crime that is defined in terms of an unintended injury or death, i.e., an injury or death for which the accompanying culpable mental state is something other than “intentionally”, that same culpable mental state, whether it be “extreme indifference to the value of human life”, “recklessness”, or “criminal negligence,” applies to the State’s prosecution of all participants, whether they acted as principals or accomplices, and regardless of whether the resulting injury or death can be linked beyond a reasonable doubt to a particular defendant’s conduct. Riley v. State, 60 P.3d 204 (Alaska Ct. App. 2002).

The same culpable mental state applied to the State’s prosecution of defendant and co-defendant, whether they acted as principals or accomplices, and regardless of whether victims’ injuries could be linked beyond a reasonable doubt to defendant. Riley v. State, 60 P.3d 204 (Alaska Ct. App. 2002).

When AS 11.16.110 (2) speaks of a person’s “intent to promote or facilitate the commission of the offense”, this phrase means that the accomplice must act with the intent to promote or facilitate the conduct that constitutes the actus reus of the offense. With respect to offenses that require proof of a particular result, the government must prove that the accomplice acted with the culpable mental state that applies to that result, as specified in the underlying statute. Riley v. State, 60 P.3d 204 (Alaska Ct. App. 2002).

A defendant need not commit every element of an offense to be guilty as a principal under the law, so long as the state proves commission of the whole offense by someone and the aiding or abetting of the offense by the defendant. Anthony v. State, 521 P.2d 486 (Alaska 1974).

When person is guilty as accomplice. —

See Gordon v. State, 533 P.2d 25 (Alaska 1975).

Not just any act of the defendant will suffice. The act must aid, abet, assist, or facilitate the commission of the particular substantive crime for which the state seeks to hold the defendant liable as an accomplice. Hensel v. State, 604 P.2d 222 (Alaska 1979).

Focus in determining accomplice’s liability. —

In determining an accomplice’s liability for the crime committed by another, the focus is not only upon the substantive offense committed by the perpetrator; it is also upon the accomplice’s acts and mental state vis-a-vis the criminal enterprise in general. Hensel v. State, 604 P.2d 222 (Alaska 1979).

With respect to the mental element, liability for the crime of another will attach only upon a showing that an individual had knowledge of the criminal enterprise and specifically intended, by his conduct, to aid, abet, assist, or participate in the criminal enterprise. Hensel v. State, 604 P.2d 222 (Alaska 1979).

There was sufficient evidence to support a second-degree murder conviction under an accomplice liability theory where the defendant participated in the severe beating of the victim, although another inflicted the fatal injuries. From the evidence, a fair-minded juror could reasonably infer that defendant’s actions constituted aiding and abetting the principal actor’s assault on the victim and constituted a manifest indifference to human life. Anderson v. State, — P.3d — (Alaska Ct. App. Feb. 27, 2013) (memorandum decision).

Sufficiency of complicity jury instructions. —

The trial court did not err in not having its complicity instructions track the words of this section because under plain error review the concept of complicity was adequately communicated when the jury was informed not to convict the accomplice unless they were convinced that he had desired to see the crime succeed and that he had performed acts in furtherance of this desire. Hansen v. State, 845 P.2d 449 (Alaska Ct. App. 1993); Baker v. State, 905 P.2d 479 (Alaska Ct. App. 1995).

Evidence of the defendant’s diminished capacity is admissible to negate the elements of knowledge and specific criminal intent required for accomplice liability. Hensel v. State, 604 P.2d 222 (Alaska 1979).

Proof required to convict accomplice of 1st degree assault. —

In order to convict defendant of assault in the first degree as an accomplice, the state was required to show that when she solicited her husband to commit the offense she intended that the victim suffer serious physical injury. Echols v. State, 818 P.2d 691 (Alaska Ct. App. 1991), overruled, Riley v. State, 60 P.3d 204 (Alaska Ct. App. 2002).

Prosecution for conduct of 20-year-old mentally retarded daughter. —

Where defendant was prosecuted for theft on the theory that he was legally accountable for the conduct of his 20-year-old mentally retarded daughter, the trial court committed reversible error in taking judicial notice of the “fact” that defendant’s daughter was not mentally culpable for the crime of theft and then advising the jury that they must accept this fact as conclusively proven. Smallwood v. State, 781 P.2d 1000 (Alaska Ct. App. 1989).

Photographs are relevant to establish aiding and abetting the commission of the crime and may be admitted into evidence. P.H. v. State, 504 P.2d 837 (Alaska 1972).

A witness’ testimony that he bought two ski masks at defendant’s request which he knew at the time would be used for a “hold-up,” and that he paid his own money for them would have been sufficient to allow the jury to conclude that the witness was an accomplice to the robbery. Carman v. State, 602 P.2d 1255 (Alaska 1979).

In order to establish liability as accomplice in sale of cocaine, it was incumbent on the state to prove, first, that defendant was aware of another individual’s plan to resell the cocaine, and, second, that in supplying the individual with cocaine, defendant acted with the intent to promote the other individual’s plan. The state was not required to show defendant’s awareness of and intent to promote the specific sale that actually occurred. Shindle v. State, 731 P.2d 582 (Alaska Ct. App. 1987).

Aiding and abetting undercover agents. —

Defendants who aided and abetted undercover agents in committing illegal hunting acts were properly convicted as accomplices despite agents’ lack of criminal liability. Vaden v. State, 768 P.2d 1102 (Alaska), cert. denied, 490 U.S. 1109, 109 S. Ct. 3162, 104 L. Ed. 2d 1025 (U.S. 1989).

Ambiguous indictment. —

Language of an indictment which appeared to charge defendant as a principal, but which cited subparagraph (2)(B), was sufficient to charge him as an accomplice in a car bombing. Machado v. State, 797 P.2d 677 (Alaska Ct. App. 1990).

Instruction on accomplice liability. —

In a prosecution for second-degree robbery, even though the state’s primary theory was that the defendant struck the victim, while others took the property, it was not error for the trial court to instruct on accomplice liability since, to evaluate the defendant’s guilt, the jury necessarily had to receive instruction of the rules governing the defendant’s liability for the acts of the others in taking the property. Baker v. State, 905 P.2d 479 (Alaska Ct. App. 1995).

Where eyewitnesses saw defendant and his accomplice beat a homeless man to death in an empty lot, defendant was properly convicted of second degree murder, and the the trial court did not err by instructing the jury as to accomplice liability. Grossman v. State, 120 P.3d 1085 (Alaska Ct. App. 2005).

In convictions of first-degree assault and kidnapping, based on a theory of accomplice liability where defendant and a cohort bound and repeatedly hit a victim over several hours, the jury was properly instructed under paragraph (2) of this section that accomplice liability required knowing and assisting or participating with criminal intent, the instruction did not have to state that defendant specifically intended the precise crimes that were committed to have been accomplished. Spencer v. State, 164 P.3d 649 (Alaska Ct. App. 2007).

Absence of accomplice-as-matter-of-law instruction not erroneous. —

See Mossberg v. State, 624 P.2d 796 (Alaska 1981).

Restitution. —

Superior court could properly require minor to pay restitution for jewelry which was taken during a burglary which he admitted and for which the court adjudicated him a delinquent, where he did not contest the fact that his participation in the burglary made him legally accountable as an accomplice of the theft of the jewelry. J.M. v. State, 786 P.2d 923 (Alaska Ct. App. 1990).

Applied in

Bowell v. State, 728 P.2d 1220 (Alaska Ct. App. 1986); Kinegak v. State, 747 P.2d 541 (Alaska Ct. App. 1987); Thiel v. State, 762 P.2d 478 (Alaska Ct. App. 1988); Miller v. State, 866 P.2d 130 (Alaska Ct. App. 1994); Braun v. State, 911 P.2d 1075 (Alaska Ct. App. 1996); Avila v. State, 22 P.3d 890 (Alaska Ct. App. 2001).

Quoted in

Cole v. State, 754 P.2d 752 (Alaska Ct. App. 1988); Wagers v. State, 810 P.2d 172 (Alaska Ct. App. 1991).

Cited in

Dailey v. State, 675 P.2d 657 (Alaska Ct. App. 1984); Hale v. State, 764 P.2d 313 (Alaska Ct. App. 1988); Dawson v. State, 894 P.2d 672 (Alaska Ct. App. 1995); Brown v. State, 12 P.3d 201 (Alaska Ct. App. 2000); Buckwalter v. State, 23 P.3d 81 (Alaska Ct. App. 2001); Maness v. State, 49 P.3d 1128 (Alaska Ct. App. 2002); Lambert v. State, 172 P.3d 838 (Alaska Ct. App. 2007); Shinault v. State, 258 P.3d 848 (Alaska Ct. App. 2011); Rofkar v. State, 305 P.3d 356 (Alaska Ct. App. 2013).

Notes to Decisions

Establishing accountability. —

Defendant’s potential liability for solicitation was dubious because, under AS 11.16.120(b)(2) , a purchaser of controlled substances is not legally accountable when his conduct is inevitably incidental to the commission of the offense. Ivanoff v. State, 9 P.3d 294 (Alaska Ct. App. 2000).

Diverging verdicts upheld as logically consistent. —

The trial court’s diverging convictions for first and second-degree arson for the principal and an accomplice, respectively, were not logically inconsistent where the jury might reasonably have construed its instructions to require proof of a different, higher culpable mental state to secure the accomplice’s conviction for the first-degree offense. Hansen v. State, 845 P.2d 449 (Alaska Ct. App. 1993).

Conviction of accessory when principal is undercover agent. —

A professional hunting guide could properly be convicted as an accessory to hunting violations when the principal was an undercover agent for the government, since the defense of entrapment under AS 11.81.450 provides an adequate remedy for any government overreaching. Vaden v. State, 742 P.2d 784 (Alaska Ct. App. 1987), aff'd in part, modified, 768 P.2d 1102 (Alaska 1989).

A justification defense is personal to an undercover agent, and not transferable to a defendant charged as his accomplice. Vaden v. State, 768 P.2d 1102 (Alaska), cert. denied, 490 U.S. 1109, 109 S. Ct. 3162, 104 L. Ed. 2d 1025 (U.S. 1989).

Because the accomplice’s state of mind is the focus in determining accomplice liability, defenses of entrapment, duress and heat of passion are not imputed to the accomplice. Vaden v. State, 768 P.2d 1102 (Alaska), cert. denied, 490 U.S. 1109, 109 S. Ct. 3162, 104 L. Ed. 2d 1025 (U.S. 1989).

Person acting on behalf of drug purchaser. —

Under the definition of “delivery” found in AS 11.71.900 , a person who acts as a go-between or facilitator for an illegal drug transaction can be prosecuted and convicted as an accomplice to the delivery even though he or she is acting on behalf of the purchaser. State v. Burden, 948 P.2d 991 (Alaska Ct. App. 1997).

“Renunciation” is an affirmative defense, and the burden is on the defendant to prove it by a preponderance of the evidence. Hale v. State, 764 P.2d 313 (Alaska Ct. App. 1988).

Applied in

Braun v. State, 911 P.2d 1075 (Alaska Ct. App. 1996).

Quoted in

Kott v. State, 678 P.2d 386 (Alaska 1984); Wagers v. State, 810 P.2d 172 (Alaska Ct. App. 1991).

Notes to Decisions

“Organizations.” —

Sole proprietorships are not “organizations” for purposes of this section. State v. ABC Towing, 954 P.2d 575 (Alaska Ct. App. 1998).

Vessel captain was not agent of environmental group using the vessel. —

Vessel captain and charter company were not agents of an environmental group when they violated AS 46.04.055(f) by failing to have an oil spill contingency plan on file because there was no evidence that any person in the environmental group had the authority to control the captain or charter company, and an agent of the group onboard ship had insufficient knowledge of the violation to ratify the captain’s conduct. State v. Greenpeace, Inc., 187 P.3d 499 (Alaska Ct. App. 2008).

Jury instructions.—

Reversal of a business corporation's conviction for fourth-degree assault, based on the conduct of its security personnel in the assault of an unruly patron at the bar and grill which the corporation ran, was appropriate because the jury was wrongly instructed with regard to whether the corporation was criminally responsible for the conduct of its personnel in that the jury instruction misstated the State of Alaska's burden of proof to be by a preponderance of the evidence rather than beyond a reasonable doubt. AB&M Enters. v. State, 389 P.3d 863 (Alaska Ct. App. 2016), modified, — P.3d — (Alaska Ct. App. 2017).

Reversal of a business corporation's conviction for fourth-degree assault, based on the alleged conduct of a supervisor of its security personnel in soliciting a security guard to assault an unruly patron at the bar and grill which the corporation ran, was appropriate because the jury was never directly instructed on what the phrase “solicited by the corporation” meant. Instead, the jury was wrongly told that a solicitation made by any employee was to be viewed as a solicitation made by the corporation. AB&M Enters. v. State, 389 P.3d 863 (Alaska Ct. App. 2016), modified, — P.3d — (Alaska Ct. App. 2017).

Notes to Decisions

Annotator’s notes. —

Many of the cases cited in the notes below were decided under former AS 11.05.020.

The word “attempt” generally means the trial or physical effort to do a particular thing. Wooldridge v. United States, 237 F. 775, 4 Alaska Fed. 485 (9th Cir. Alaska 1916).

When attempt complete under former law. —

See Lemke v. United States, 211 F.2d 73, 14 Alaska 587 (9th Cir. Alaska), cert. denied, 347 U.S. 1013, 74 S. Ct. 866, 98 L. Ed. 1136 (U.S. 1954); Wooldridge v. United States, 237 F. 775, 4 Alaska Fed. 485 (9th Cir. Alaska 1916).

In the area of attempt, criminal culpability was present under former AS 11.05.020 where there was the formation of criminal attempt, a preparation to commit the crime, and a direct unequivocal act toward its perpetration. Braham v. State, 571 P.2d 631 (Alaska 1977), cert. denied, 436 U.S. 910, 98 S. Ct. 2246, 56 L. Ed. 2d 410 (U.S. 1978).

Mere preparation to commit a crime, not followed by an overt act done toward its commission, did not constitute an attempt under former AS 11.05.020. There were borderline cases where it was sometimes difficult to determine whether preparation to commit a crime has come near enough to the accomplishment of the act so that an attempt had been committed. Gargan v. State, 436 P.2d 968 (Alaska 1968).

Mere preparation to commit a crime, not followed by an overt act done toward its commission, did not constitute an attempt. Lemke v. United States, 211 F.2d 73, 14 Alaska 587 (9th Cir. Alaska), cert. denied, 347 U.S. 1013, 74 S. Ct. 866, 98 L. Ed. 1136 (U.S. 1954).

When one’s acts were of such a preliminary nature so as to constitute mere preparation for the contemplated crime, there was no crime of attempt. Braham v. State, 571 P.2d 631 (Alaska 1977), cert. denied, 436 U.S. 910, 98 S. Ct. 2246, 56 L. Ed. 2d 410 (U.S. 1978).

Question of degree. —

Whether acts taken or done in contemplation of the commission of a crime were merely preparatory and did not constitute attempt, or whether they were sufficiently close to the consummation of the crime to amount to attempt, was a question of degree and depended upon the facts and circumstances of a particular case. Braham v. State, 571 P.2d 631 (Alaska 1977), cert. denied, 436 U.S. 910, 98 S. Ct. 2246, 56 L. Ed. 2d 410 (U.S. 1978).

Double jeopardy. —

The statutes which proscribe attempted murder, possession of explosives, and arson differ markedly in the conduct which they prohibit and in the specific societal interests which they seek to preserve, and multiple sentences for the three offenses do not violate double jeopardy. Machado v. State, 797 P.2d 677 (Alaska Ct. App. 1990).

Inadequacy of former statute. —

Former AS 11.05.020 was apparently inadequate to codify effectively as a crime the situation involving the single act of contracting for another to perform a criminal act. Braham v. State, 571 P.2d 631 (Alaska 1977), cert. denied, 436 U.S. 910, 98 S. Ct. 2246, 56 L. Ed. 2d 410 (U.S. 1978).

Applicability of this section. —

Since under Alaska law, delivery of cocaine is expressly defined to include an attempted delivery, the more specific statute controls and this section, the general attempt statute, is therefore not applicable to delivery of cocaine. Stuart v. State, 698 P.2d 1218 (Alaska Ct. App. 1985).

Where defendant contracted with someone to kill another, when he instructed the killer to visit the victim, his intention being that there would be fostered a relationship of trust and confidence between the killer and the victim, thus placing the killer in a position where he would be closer to the victim and could more readily kill him, the killer’s visit with the victim, at defendant’s direction, was the doing of a direct, unequivocal act toward the commission of the crime of murder, which followed the formation of a criminal intent and a preparation to commit this crime. Braham v. State, 571 P.2d 631 (Alaska 1977), cert. denied, 436 U.S. 910, 98 S. Ct. 2246, 56 L. Ed. 2d 410 (U.S. 1978).

Factual impossibility not apparent to actor. —

A factual impossibility which was not apparent to the actor at the time should not, as a matter of policy, insulate him from conviction for attempting the commission of the offense. Gargan v. State, 436 P.2d 968 (Alaska 1968).

“Empty pocket doctrine”. —

A factual impossibility which was not apparent to the actor at the time should not, as a matter of policy, insulate him from conviction for attempting the commission of the offense. Gargan v. State, 436 P.2d 968 (Alaska 1968).

Attempt conviction proper where substance was a fake version of controlled substance. —

Evidence before a grand jury was sufficient to support an indictment charging defendant with attempted misconduct involving a controlled substance in the third degree although the pills in question looked like illegal Ecstasy, but were fakes. The grand jury could reasonably have inferred that defendant believed the drugs were the illegal form of Ecstasy. Humpherville v. State, — P.3d — (Alaska Ct. App. May 30, 2012) (memorandum decision).

Attempt statute applied to attempted violation of narcotic drug statute. —

Persons attempting to commit the crime defined by former AS 17.10.010 of the Alaska Uniform Narcotic Drug Act (now repealed) were not exempted or excepted from the provisions of the attempt statute. Simpson v. United States, 195 F.2d 721, 13 Alaska 635 (9th Cir. Alaska 1952).

An attempt was necessarily included in an indictment for statutory rape. Sekinoff v. United States, 283 F. 38, 5 Alaska Fed. 130 (9th Cir. Alaska 1922).

Attempted sexual assault in the second degree. —

Evidence was sufficient to convict defendant of attempted sexual assault in the second degree; an eyewitness’s testimony, which was corroborated, was that the victim was incapacitated. Other corroborating evidence led the trial judge to the conclusion that defendant had at least attempted sexual penetration, which might not have been completed due to defendant’s obvious level of intoxication. Cano v. State, — P.3d — (Alaska Ct. App. Oct. 7, 2009) (memorandum decision).

Evidence was sufficient to support defendant’s conviction of attempted second-degree sexual abuse of a minor because it showed that while in the victim’s bedroom defendant put his fingers slightly inside her pants and he put one hand on her ribs below her breast. There was also evidence that earlier in the living room defendant tried to kiss the victim, touched her breast, and put his fingertips inside the waistband of her pants. Kvasnikoff v. State, — P.3d — (Alaska Ct. App. Dec. 3, 2014).

Defendant's indictment was properly dismissed where the evidence showed that he engaged in offensive and unwanted touching of the victim, but did not show that he acted with the intent to force his hand down the victim's pants and touch her genitals without consent. State v. Mayfield, 442 P.3d 794 (Alaska Ct. App. 2019).

To prove that a defendant committed the crime of attempted second-degree sexual assault under AS 11.41.420(a)(1) , the State must establish that: the defendant (1) intended to engage in sexual contact with the victim; (2) recklessly disregarded a substantial and unjustifiable risk that the victim was unwilling to engage in the sexual contact; (3) intended to use force or threat of force if necessary to achieve the sexual contact; and (4) took a substantial step toward achievement of the completed crime. State v. Mayfield, 442 P.3d 794 (Alaska Ct. App. 2019).

Failure to include “substantial step” language in indictment for attempted murder was a defect only as to form, where the indictment included a concise description of defendant’s actions that constituted the offense, including the proper language regarding his state of mind. Ciervo v. State, 756 P.2d 907 (Alaska Ct. App. 1988), overruled, Swain v. State, 817 P.2d 927 (Alaska Ct. App. 1991).

Indictment need not specify intent to be proved for attempted rape. —

There is authority for the proposition that a specific intent must be proven for the crime of attempted rape. But there is no authority supporting the proposition that the indictment must specify that intent. State v. Thomas, 525 P.2d 1092 (Alaska 1974).

Even though there is no question that the crime of attempt requires a specific intent, it seems equally beyond dispute that a charge of attempt to commit a specific crime clearly advises the defendant of the offense with which he is charged. State v. Thomas, 525 P.2d 1092 (Alaska 1974).

Indictment charging attempted rape and citing only the rape statute held sufficient. —

See State v. Thomas, 525 P.2d 1092 (Alaska 1974).

Attempted kidnapping was class A felony under this section before 1982 amendment. —

Under the law as it existed before the 1982 amendment to this section became effective, attempted kidnapping was unquestionably a class A felony. Galbraith v. State, 693 P.2d 880 (Alaska Ct. App. 1985).

Attempted kidnapping and other attempted crimes. —

Every attempted sexual assault, attempted physical assault, or attempted armed robbery does not necessarily involve an attempted kidnapping. In order to make these distinctions clear, it is important that the jury be properly instructed that conviction of attempted kidnapping under AS 11.41.300(a)(1)(C) and this section requires a dual intent (1) to physically or sexually assault the victim and (2) to restrain the victim beyond what was necessary to effectuate the assault. Alam v. State, 793 P.2d 1081 (Alaska Ct. App. 1990).

Attempted first-degree sexual assault. —

At the very least, a defendant must have formed a specific intent to engage in sexual penetration in order to be convicted of attempted first-degree sexual assault. Baden v. State, 667 P.2d 1275 (Alaska Ct. App. 1983).

Five-year presumptive sentence for attempted sexual assault. —

It was not manifestly unjust to impose a five-year presumptive term upon defendant’s conviction of attempted sexual assault of a minor, and he was not automatically entitled as a matter of law to have his case referred to a three-judge panel for sentencing. Aveoganna v. State, 757 P.2d 75 (Alaska Ct. App. 1988).

Attempt to commit second-degree sexual assault is a crime under Alaska law and requires that defendant, intending to engage in sexual contact with another person without regard to that person’s lack of consent, take a substantial step toward accomplishing this goal. Guertin v. State, 854 P.2d 1130 (Alaska Ct. App. 1993).

Merger of attempted sexual assualt convictions. —

Where defendant entered the victim’s apartment with the intent to sexually assault her, ripped off her clothing, continued to attack her while she struggled to fight him off, and a rescuer entered the apartment to intervene, defendant’s convictions for attempted first-degree sexual assault and attempted second-degree sexual assault should have been merged, because the same conduct was basis for both convictions. Moore v. State, 123 P.3d 1081 (Alaska Ct. App. 2005).

Merger of charges. —

Trial court was not required to merge charges of first degree sexual assault and attempted first degree sexual assault offenses for sentencing purposes. The offenses were separate offenses because the attempted first-degree sexual assault involved attempted anal penetration while the first-degree sexual assault involved fellatio, which meant that defendant could be sentenced for both offenses without violating double jeopardy. Iyapana v. State, 284 P.3d 841 (Alaska Ct. App. 2012).

Offense of attempted second-degree murder was an impossibility. Huitt v. State, 678 P.2d 415 (Alaska Ct. App. 1984).

Applicability of partial affirmative defenses. —

A person charged with attempted kidnapping is not entitled to assert a partial defense when the intended victim of the crime is voluntarily released unharmed. Under the plain language of AS 11.41.300(d) , the partial affirmative defense applies only in a prosecution for kidnapping. Laraby v. State, 710 P.2d 427 (Alaska Ct. App. 1985).

Defendant may be found guilty though attempt not expressly charged. —

Jury could find defendant guilty of the attempt to commit the crime of possessing narcotic drugs despite the fact that the attempt was not expressly charged. Simpson v. United States, 195 F.2d 721, 13 Alaska 635 (9th Cir. Alaska 1952).

Intoxication defense to attempt. —

Where defendant was charged with attempted first-degree sexual assault, attempted second-degree sexual assault, and burglary, defendant’s intoxication at the time of the offense offered a defense to the culpable mental state. Moore v. State, 123 P.3d 1081 (Alaska Ct. App. 2005).

Trial court's instruction tracking the language of the intoxication defense statute was flawed because the instruction referred only to the fact that voluntary intoxication could negate an element of an offense that required that defendant intentionally cause a result, but the two charges of attempted first-degree sexual assault did not involve actual causation of a result as those charges required the State to prove that defendant intended to cause a result; thus, the jury should have been instructed that voluntary intoxication could negate an element of an offense that required that defendant intentionally cause or attempt to cause a specified result; however, that flaw was remedied by the summations of the parties. Standifer v. State, — P.3d — (Alaska Ct. App. June 20, 2018) (memorandum decision).

Substantial evidence of attempt. —

In a prosecution for possession of narcotic drugs, although there was no substantial evidence that defendant committed the crime charged in the information, there was substantial evidence that she attempted to commit the crime charged. Simpson v. United States, 195 F.2d 721, 13 Alaska 635 (9th Cir. Alaska 1952).

Substantial evidence supported defendant’s conviction for attempted first-degree sexual assault; the evidence, when viewed in the light most favorable to the verdict, established that defendant attacked wife and removed some of her clothing while the wife vigorously resisted. Sergie v. State, 105 P.3d 1150 (Alaska Ct. App. 2005).

Evidence was adequate to support a conclusion that defendant was guilty of attempted possession of a controlled substance. The jury knew that defendant actively tracked the whereabouts of a package containing pain killers, knew when the package should have arrived, and called the post office to determine the package’s whereabouts when it was not delivered. Edenso v. State, — P.3d — (Alaska Ct. App. Dec. 8, 2010) (memorandum decision).

Evidence was sufficient to reasonably establish defendant’s purpose and to support his conviction for attempted first-degree sexual assault because he had a sexual purpose when he began groping the victim; and he beat the victim and dragged her toward some bushes so that he could further his sexual assault on her. Moore v. State, 262 P.3d 217 (Alaska Ct. App. 2011).

Where defendant presented a check payable to himself, drawn on an account where checks had been reported stolen, and where he left the bank, leaving the check, after the teller took the check to obtain advice from the manager, a reasonable jury could conclude that the defendant attempted to deprive another person of property. Davis v. State, — P.3d — (Alaska Ct. App. Oct. 19, 2011) (memorandum decision).

Jury properly convicted defendant of attempted first-degree murder, third-degree assault, first-degree harming a police dog, and felony failure to stop at the direction of a peace officer because the evidence—defendant shot and killed a police dog, and fired multiple rounds in the direction of the two officers—was sufficient to conclude that defendant intended to kill the officers. Abarca v. State, — P.3d — (Alaska Ct. App. Dec. 9, 2020) (memorandum decision).

Conviction of attempted first-degree sexual assault affirmed. —

Conviction of attempted sexual assault in the first degree under AS 11.41.410 (as it read before the 1983 amendment) and this section was affirmed. Sexual charges based on non-consensual genital intercourse do not require proof of a specific sexual intent, and plain error was not established though the prosecutor’s expressions which might have been construed as a personal opinion of the guilt of the defendant or an argument relating to a defendant’s need for treatment were improper and uninvited. Potts v. State, 712 P.2d 385 (Alaska Ct. App. 1985).

Evidence supported defendant’s conviction of attempted sexual assault in the first degree, where he brought his eight-year old stepdaughter and some syrup into a bathroom and asked the child if she would lick the syrup from his penis, and the fact that a wet drop of syrup was found on the counter supported the conclusion that he actually opened the syrup and poured some amount of it. Mitchell v. State, 818 P.2d 688 (Alaska Ct. App. 1991).

Evidence sufficient to support conviction. —

See McCarlo v. State, 677 P.2d 1268 (Alaska Ct. App. 1984).

Conviction and sentence upheld. —

See Andrejko v. State, 695 P.2d 246 (Alaska Ct. App. 1985).

Conviction reversed because of insufficient evidence. —

See Brower v. Alaska, 728 P.2d 645 (Alaska Ct. App. 1986).

Defendant’s conviction of attempted sexual abuse of a minor in the second degree was reversed, where evidence showing that he wrote notes to an eight-year-old girl asking her to be his girlfriend and to kiss him established only that he engaged in preparatory conduct and not that he took a substantial step toward sexual contact with the girl. Sullivan v. State, 766 P.2d 51 (Alaska Ct. App. 1988).

Convictions reversed because of erroneous jury instruction. —

Convictions for attempted sexual assault in the first degree and kidnapping were reversed because of an erroneous jury instruction on sexual assault in the first degree concerning consent. The correct standard is whether the defendant recklessly disregarded the victim’s lack of consent. Laseter v. State, 684 P.2d 139 (Alaska Ct. App. 1984).

Sex-offender registration.

While the superior court properly found that the first defendant did not have to register as a sex offender in Alaska, it erred in finding that the second defendant had to register as a sex offender because both the Washington statute, related to communicating with a minor (or someone believed to be a minor) for immoral purposes, and the California statute, related to annoying or molesting any child under 18 years of age, under which defendants were respectively convicted, were significantly broader than and different from the Alaska offense of attempted sexual abuse of a minor in the second degree. State v. Doe, 425 P.3d 115 (Alaska 2018).

Same offense for sentencing purposes. —

Assault with intent to rob and attempted robbery constituted the “same offense” for sentencing purposes. Brookins v. State, 600 P.2d 12 (Alaska 1979).

Sentence upheld. —

See Bowie v. State, 494 P.2d 800 (Alaska 1972); Spearman v. State, 543 P.2d 202 (Alaska 1975); Braham v. State, 571 P.2d 631 (Alaska 1977), cert. denied, 436 U.S. 910, 98 S. Ct. 2246, 56 L. Ed. 2d 410 (U.S. 1978); Johnson v. State, 580 P.2d 700 (Alaska 1978); Ferguson v. State, 590 P.2d 43 (Alaska 1979); Morris v. State, 592 P.2d 1244 (Alaska 1979); Ramil v. State, 619 P.2d 722 (Alaska 1980); Travelstead v. State, 689 P.2d 494 (Alaska Ct. App. 1984); Schnecker v. State, 739 P.2d 1310 (Alaska Ct. App. 1987).

Superior court did not err when it found that defendant, convicted of attempting to possess cocaine with intent to distribute it, was not eligible for consideration of the mitigating factor recognized by AS 12.55.155(d)(13) ; although authorities found only trace amounts of cocaine in defendant’s possession, court properly considered the fact that defendant possessed two scales with cocaine residue on them, a substantial quantity of cutting agents, and 31 small baggies. Whiting v. State, 191 P.3d 1016 (Alaska Ct. App. 2008).

Defendant agreed to plead no contest to attempted first-degree sexual abuse of a minor and received a sentence of 12 years’ imprisonment with seven years suspended, for an effective five-year sentence. To establish the sentencing range, defendant stipulated to two aggravating factors: defendant knew the victim of his offense was particularly vulnerable, and his prior criminal history included a delinquency adjudication for felony conduct. Malutin v. State, 198 P.3d 1177 (Alaska Ct. App. 2009).

Defendant’s 75-year prison sentence for first-degree murder, attempted first-degree murder, and first-degree burglary was not erroneous because the trial judge reasonably concluded that a lengthy sentence was necessary to serve as a warning to others who might be tempted by jealousy to turn to extreme violence. Gordon v. State, — P.3d — (Alaska Ct. App. Aug. 18, 2010) (memorandum decision).

Sentence imposed upon defendant for attempted medical assistance fraud was within the permissible range of sentences that a reasonable judge would impose under the circumstances and was not clearly mistaken; the sentencing judge's findings regarding defendant's involvement were supported by the record, and his sentencing remarks and imposition of three years to serve were in accord with the case law. Francisco v. State, — P.3d — (Alaska Ct. App. Nov. 16, 2016) (memorandum decision).

In sentencing defendant to 25 years with 3 years suspended and 10 years of probation after defendant pleaded guilty pursuant to a plea agreement to one consolidated count of attempted first-degree sexual abuse of a minor, the superior court appropriately reviewed the facts of the case and considered the applicable Chaney criteria. Based on its review of the record, the appellate court concluded that defendant's sentence was not clearly mistaken. Argueta v. State, — P.3d — (Alaska Ct. App. May 10, 2017) (memorandum decision).

Trial court properly sentenced defendant to 10 years to serve and 10 years of probation for attempted second-degree sexual abuse of a minor with “most serious” aggravator because he seized a seven-year-old child, pulled him into a carport, covered his mouth, kissed him, and touched his penis and buttocks, immediately confessed his actions to the police; the record showed that the trial court carefully considered and found defendant's prospects for rehabilitation to be “very guarded” and found him to “as clear and present a danger as he had seen”, and the record documented multiple acts of assault and continued engagement in sexually inappropriate behavior within institutionalized settings. Konovalov v. State, — P.3d — (Alaska Ct. App. Aug. 2, 2017) (memorandum decision).

Superior court properly imposed a composite sentence of 55 years to serve and an additional 10 years suspended for second-degree sexual abuse of a minor and attempted second-degree sexual abuse of a minor because the counts included 15 different acts with 11 different victims over a period of nearly five years, the absence of the “most serious” aggravator meant only that defendant's conduct fell within the broad middle range of conduct, the court was required to impose at least some portion of the sentences consecutively and to suspend at least two to three years of defendant's sentence, and the court thoroughly analyzed the required criteria and concluded a lesser sentence would be insufficient to meet the goals of sentencing. Kashatok v. State, — P.3d — (Alaska Ct. App. Aug. 9, 2017) (memorandum decision).

Sentence for attempted first degree murder upheld. —

See Staael v. State, 718 P.2d 948 (Alaska 1986).

Maximum sentence upheld. —

Severity of victim’s injury, and his resulting long-term impairment, supported judge’s conclusion that defendant’s assault was among the worst attempted murders and that he should receive the maximum term for the crime. Nelson v. State, 874 P.2d 298 (Alaska Ct. App. 1994).

Consecutive sentences unsupported. —

Consecutive sentences for first degree murder and attempted murder were remanded because judge had failed to find that a sentence of that length was necessary to protect the public. Nelson v. State, 874 P.2d 298 (Alaska Ct. App. 1994).

Prohibiting suspended sentence. —

The prohibition against the granting of a suspended imposition of sentence applies to persons convicted of an attempt to commit one of the sexual offenses defined in the criminal code. Mack v. State, 900 P.2d 1202 (Alaska Ct. App. 1995).

Sentence under former AS 11.41.410(b) and this section held excessive. —

See Bolhouse v. State, 687 P.2d 1166 (Alaska Ct. App. 1984).

Sentence held excessive. —

See Hansen v. State, 657 P.2d 862 (Alaska Ct. App. 1983).

Applied in

Nicholson v. State, 656 P.2d 1209 (Alaska Ct. App. 1982); Patterson v. State, 732 P.2d 1102 (Alaska Ct. App. 1987); Allen v. State, 769 P.2d 457 (Alaska Ct. App. 1989); Dandova v. State, 72 P.3d 325 (Alaska Ct. App. 2003); Parker v. State, 151 P.3d 478 (Alaska Ct. App. 2006).

Quoted in

Lindbo v. Colaska, Inc., 414 P.3d 646 (Alaska 2018).

Stated in

State v. Silas, 595 P.2d 651 (Alaska 1979); Ramil v. State, 619 P.2d 722 (Alaska 1980); Coleman v. State, 621 P.2d 869 (Alaska 1980); Clark v. State, 645 P.2d 1236 (Alaska Ct. App. 1982); Tazruk v. State, 655 P.2d 788 (Alaska Ct. App. 1982); Velez v. State, 762 P.2d 1297 (Alaska Ct. App. 1988); Young v. State, 331 P.3d 1276 (Alaska Ct. App. 2014).

Cited in

Handley v. State, 615 P.2d 627 (Alaska 1980); Walker v. State, 662 P.2d 948 (Alaska Ct. App. 1983); Bell v. State, 668 P.2d 829 (Alaska Ct. App. 1983); Brower v. State, 683 P.2d 290 (Alaska Ct. App. 1984); Hart v. State, 702 P.2d 651 (Alaska Ct. App. 1985); Chief v. State, 718 P.2d 475 (Alaska Ct. App. 1986); Hastings v. State, 736 P.2d 1157 (Alaska Ct. App. 1987); James v. State, 739 P.2d 1314 (Alaska Ct. App. 1987); Stevens v. State, 748 P.2d 771 (Alaska Ct. App. 1988); James v. State, 754 P.2d 1336 (Alaska Ct. App. 1988); Ervin v. State, 761 P.2d 124 (Alaska Ct. App. 1988); Stern v. State, 827 P.2d 442 (Alaska Ct. App. 1992); Konrad v. State, 763 P.2d 1369 (Alaska Ct. App. 1988); Lawrence v. State, 764 P.2d 318 (Alaska Ct. App. 1988); Charles v. State, 780 P.2d 377 (Alaska Ct. App. 1989); Gantner v. State, 789 P.2d 381 (Alaska Ct. App. 1990); Capwell v. State, 823 P.2d 1250 (Alaska Ct. App. 1991); Sam v. State, 842 P.2d 596 (Alaska Ct. App. 1992); Kolkman v. State, 857 P.2d 1202 (Alaska Ct. App. 1993); Rudden v. State, 881 P.2d 328 (Alaska Ct. App. 1994); Marino v. State, 934 P.2d 1321 (Alaska Ct. App. 1997); Gwalthney v. State, 964 P.2d 1285 (Alaska Ct. App. 1998); Wilson v. State, 967 P.2d 98 (Alaska Ct. App. 1998); Griffin v. State, 9 P.3d 301 (Alaska Ct. App. 2000); Avila v. State, 22 P.3d 890 (Alaska Ct. App. 2001); State v. Brueggeman, 24 P.3d 583 (Alaska Ct. App. 2001); Ramsey v. State, 56 P.3d 675 (Alaska Ct. App. 2002); Wholecheese v. State, 100 P.3d 14 (Alaska Ct. App. 2004); Kelly v. State, 116 P.3d 602 (Alaska Ct. App. 2005); State v. Parker, 147 P.3d 690 (Alaska 2006); Lambert v. State, 172 P.3d 838 (Alaska Ct. App. 2007); Moore v. State, 174 P.3d 770 (Alaska Ct. App. 2008); Tuttle v. State, 175 P.3d 60 (Alaska Ct. App. 2008); Oviuk v. State, 180 P.3d 388 (Alaska Ct. App. 2008); Douglas v. State, 214 P.3d 312 (Alaska 2009); Bates v. State, 258 P.3d 851 (Alaska Ct. App. 2011); Rogers v. State, 280 P.3d 582 (Alaska Ct. App. 2012); Ahvakana v. State, 283 P.3d 1284 (Alaska Ct. App. 2012); Murray v. State, 344 P.3d 835 (Alaska Ct. App. 2015); Goldsbury v. State, 342 P.3d 834 (Alaska 2015); Nelson v. State, 397 P.3d 350 (Alaska Ct. App. 2017); Lindbo v. Colaska, Inc., 414 P.3d 646 (Alaska 2018); Fedolfi v. State, 456 P.3d 999 (Alaska Ct. App. 2019); Alvarez-Perdomo v. State, 454 P.3d 998 (Alaska 2019); Marrera v. State, — P.3d — (Alaska Ct. App. May 22, 2019); Macmurray v. State, — P.3d — (Alaska Ct. App. Mar. 13, 2019); Hayes v. State, 474 P.3d 1179 (Alaska Ct. App. 2020); Ahvakana v. State, 475 P.3d 1118 (Alaska Ct. App. 2020); Collins v. State, — P.3d — (Alaska Ct. App. Feb. 10, 2021); Williams v. State, 480 P.3d 95 (Alaska Ct. App. 2021).

Collateral references. —

Attempt to commit assault as criminal offense. 93 ALR5th 683.

Notes to Decisions

Former law construed. —

See McConkey v. State, 504 P.2d 823 (Alaska 1972); Cassell v. State, 645 P.2d 219 (Alaska Ct. App. 1982) (decided under former AS 11.10.070).

Soliciting unlawful exploitation of minor. —

Where defendant was charged with soliciting the crime of unlawful exploitation of a minor based on his asking victims to take off their clothes and let him photograph them, defendant’s argument that he did not “solicit” the crime because the victims could not be guilty of the intended crime was foreclosed by the provision of this section that it is no defense that the person solicited could not be guilty of the crime that is the object of the solicitation. Braun v. State, 911 P.2d 1075 (Alaska Ct. App. 1996).

Defendant’s convictions for soliciting the crime of unlawful exploitation of a minor which were based on his asking victims to take off their clothes and let him photograph them were erroneous since defendant did not ask anyone else to engage in the prohibited conduct, i.e., inducing a child to engage in one of the sexual activities prohibited by AS 11.41.455 , and thus he did not commit the crime of solicitation. Braun v. State, 911 P.2d 1075 (Alaska Ct. App. 1996).

One contracting with another to kill a third person was guilty of attempted first-degree murder, not solicitation. —

See Braham v. State, 571 P.2d 631 (Alaska 1977), cert. denied, 436 U.S. 910, 98 S. Ct. 2246, 56 L. Ed. 2d 410 (U.S. 1978) (decided under former AS 11.10.070 and 11.15.010 ).

Merger. —

Trial court was not required to merge defendant's convictions for soliciting second-degree sexual abuse of a minor and misdemeanor prostitution because the prostitution statute, consisting of offering a fee in return for sexual conduct, did not require proof of an unwilling or underage recipient of an offer incapable of informed consent. Kuller v. State, — P.3d — (Alaska Ct. App. Sept. 25, 2019) (memorandum decision).

Sentence upheld. —

Composite sentence of 40 years of imprisonment for solicitation of murder in the first degree, attempted murder in the first degree, and assault in the first degree was not clearly mistaken. Marzak v. State, 796 P.2d 1374 (Alaska Ct. App. 1990).

Quoted in

Sullivan v. State, 766 P.2d 51 (Alaska Ct. App. 1988); Gargan v. State, 805 P.2d 998 (Alaska Ct. App. 1991); Williams v. State, 480 P.3d 95 (Alaska Ct. App. 2021).

Cited in

Hoover v. State, 641 P.2d 1263 (Alaska Ct. App. 1982); P.S. v. State, 655 P.2d 1319 (Alaska Ct. App. 1982); Monroe v. State, 752 P.2d 1017 (Alaska Ct. App. 1988); Bachlet v. State, 941 P.2d 200 (Alaska Ct. App. 1997); Ivanoff v. State, 9 P.3d 294 (Alaska Ct. App. 2000); Zemljich v. Municipality of Anchorage, 151 P.3d 471 (Alaska Ct. App. 2006).

Notes to Decisions

Sentence unlawful. —

In a case in which defendant was convicted of conspiracy to commit first-degree robbery and in which defendant, who was a first felony offender, faced a presumptive range of 1 to 3 years' imprisonment for the crime, the sentencing judge erred in imposing a sentence of 4 years' imprisonment with 2 years suspended as it was above the presumptive range; and the sentence was unlawful because the judge found no aggravating factors. Pfister v. State, 425 P.3d 183 (Alaska Ct. App. 2018).

Notes to Decisions

Conspiracy is separate offense. —

The crime of conspiracy is generally regarded as a separate offense from the substantive crime that is the object of the conspiracy. Unlike the other preliminary offenses of attempt and solicitation, conspiracy does not merge into a conviction for the substantive crime. Lythgoe v. State, 626 P.2d 1082 (Alaska 1980).

The no-merger rule means that a defendant can be convicted of both conspiracy and the object of the conspiracy. One reason advanced for this special treatment of conspiracy as a separately punishable offense is that conspiracy has been regarded as a serious crime in itself. Lythgoe v. State, 626 P.2d 1082 (Alaska 1980).

Convictions for attempt and solicitation. —

Defendant should not have been convicted separately for attempt and solicitation because subsection (b) declares that a defendant may be convicted of only one of these inchoate crimes when the charges are based on conduct that is designed to culminate in the commission of the same crime. Avila v. State, 22 P.3d 890 (Alaska Ct. App. 2001).

Notes to Decisions

Cited in

Stuart v. State, 698 P.2d 1218 (Alaska Ct. App. 1985).

Notes to Decisions

Annotator’s notes. —

Many of the cases cited in the notes below were decided under former AS 11.15.010 .

The crime of murder protects the greater and distinct interest in the sanctity of life. Ladd v. State, 568 P.2d 960 (Alaska 1977), cert. denied, 435 U.S. 928, 98 S. Ct. 1498, 55 L. Ed. 2d 524 (U.S. 1978), overruled in part, Giacomazzi v. State, 633 P.2d 218 (Alaska 1981).

Under the common law, murder is the unlawful killing of a human being with malice aforethought. That definition of murder was substantially the equivalent of that found in former AS 11.15.010 . United States v. Barbeau, 92 F. Supp. 196, 12 Alaska 725 (D. Alaska 1950), aff'd, 193 F.2d 945, 13 Alaska 551 (9th Cir. Alaska 1951).

Murder, at common law, was defined as the unlawful killing of a human being with malice aforethought, either express or implied. Express malice could be found in the deliberate intention of the defendant to take the life of the deceased unlawfully, while implied malice could be found either where the evidence showed circumstances indicating that the defendant had a heart regardless of social duty, in that he knowingly did an act which might result in death or grievous bodily harm, or where defendant killed another in the course of perpetrating a felony. In all of these instances it did not matter whether the defendant actually intended to kill the deceased. Once malice could be found, the defendant could be held liable for all results which flowed naturally and probably from his volitional acts. In many cases the killing itself, if unexplained, was enough to support an inference of malice. Gray v. State, 463 P.2d 897 (Alaska), limited, Wilson v. State, 473 P.2d 633 (Alaska 1970).

Elements of aggravated first-degree murder. —

Subsection (a) and AS 12.55.125(a) jointly create two offenses, first-degree murder and aggravated first-degree murder, and the factors specified in AS 12.55.125(a)(1) -(3) are elements of aggravated first-degree murder. Malloy v. State, 1 P.3d 1266 (Alaska Ct. App. 2000).

Intent to kill required. —

All intentional killings unless legally excused or mitigated to manslaughter are first-degree murder under the new code, and felony murder, which is second-degree murder, does not currently require an intent to kill. Carman v. State, 658 P.2d 131 (Alaska Ct. App. 1983).

A specific intent or purpose to kill is an essential element of the crime. Gray v. State, 463 P.2d 897 (Alaska), limited, Wilson v. State, 473 P.2d 633 (Alaska 1970).

The purpose to kill is an essential averment in any indictment for the violation of this section. Gray v. State, 463 P.2d 897 (Alaska), limited, Wilson v. State, 473 P.2d 633 (Alaska 1970).

Paragraph (a)(1) plainly requires proof of knowing (but not intentional) conduct rather than mere recklessness. Odom v. State, 798 P.2d 353 (Alaska Ct. App. 1990).

Jury properly convicted defendant of attempted first-degree murder, third-degree assault, first-degree harming a police dog, and felony failure to stop at the direction of a peace officer because the evidence, that defendant shot and killed a police dog, and fired multiple rounds in the direction of the two officers, was sufficient to conclude that defendant intended to kill the officers. Abarca v. State, — P.3d — (Alaska Ct. App. Dec. 9, 2020) (memorandum decision).

Regardless of the means used. —

See Gray v. State, 463 P.2d 897 (Alaska), limited, Wilson v. State, 473 P.2d 633 (Alaska 1970).

The purpose to kill is a state of mind which must be proved as a fact before there may be a conviction of first degree murder under this section. Gray v. State, 463 P.2d 897 (Alaska), limited, Wilson v. State, 473 P.2d 633 (Alaska 1970).

The element of purpose must be alleged and proved. Marrone v. State, 359 P.2d 969 (Alaska 1961).

But proof of purpose need not be direct. It may be inferred from the circumstances attending the killing. Gray v. State, 463 P.2d 897 (Alaska), limited, Wilson v. State, 473 P.2d 633 (Alaska 1970).

Use of a deadly weapon if unexplained is one circumstance which tends to prove intent to kill. Gray v. State, 463 P.2d 897 (Alaska), limited, Wilson v. State, 473 P.2d 633 (Alaska 1970).

The use of a deadly weapon without circumstances of explanation or mitigation may justify a jury in inferring an intent to kill. Gray v. State, 463 P.2d 897 (Alaska), limited, Wilson v. State, 473 P.2d 633 (Alaska 1970).

Legally sufficient evidence supported the finding that defendant was guilty of first-degree murder, because it was undisputed that he used a deadly weapon to shoot the victim in his torso. The jury was entitled to infer from defendant’s use of a deadly weapon that he intended to kill the victim. Vongthongdy v. State, — P.3d — (Alaska Ct. App. Sept. 18, 2013) (memorandum decision).

The fact of the killing, alone, does not support the finding of purpose or intent to kill. Gray v. State, 463 P.2d 897 (Alaska), limited, Wilson v. State, 473 P.2d 633 (Alaska 1970).

Intent to kill found. —

First-degree murder charge was supported by sufficient evidence of an intent to kill where defendant and friend were incensed by the fact that a Toyota had come so close to their car; their anger provided a motive for shooting at the driver. Moreover, the grand jury heard testimony that, when the Toyota failed to stop or veer off following defendant’s rifle shot, defendant declared, “I missed.” Gustafson v. State, 854 P.2d 751 (Alaska Ct. App. 1993).

Evidence was legally sufficient to support defendant's first-degree murder conviction; although defendant claimed self-defense, even if the jury believed that the victim brought the knife to the encounter and that defendant had disarmed him, defendant went looking for the victim and attacked the victim even after he retreated, and thus defendant acted with the intent to kill. Kone v. State, — P.3d — (Alaska Ct. App. Oct. 31, 2018) (memorandum decision).

Doctrine of diminished capacity. —

See Johnson v. State, 511 P.2d 118 (Alaska 1973).

Defendant who murdered her three sons was properly found to be guilty of first degree murder but mentally ill, rather than not guilty by reason of insanity, because the trial court found, in a bench trial, that defendant engaged in a deliberate, conscious, and detailed plan to kill her three sons and thus had the required intent. Lord v. State, 262 P.3d 855 (Alaska Ct. App. 2011).

Heat of passion. —

The defense of heat of passion is available in prosecutions for attempted murder. Dandova v. State, 72 P.3d 325 (Alaska Ct. App. 2003).

Because the heat of passion statute declared that the defense applied only to charges of first-degree murder and charges of second-degree murder, defendant could only claim heat of passion with respect to one of the murder charges against him; since defendant was indicted for first-degree murder, the heat of passion defense potentially applied to that charge. Luch v. State, 413 P.3d 1224 (Alaska Ct. App. 2018) (memorandum decision).

Defendant's convictions for first-degree murder and second-degree murder with intent to cause serious physical injury were reversed because it was error to deny a heat of passion jury instruction; defendant presented some evidence of each element of that defense, since defendant told police the victim attacked defendant with a machete and defendant killed the victim immediately after being attacked, and the victim's injuries and defendant's claim defendant blacked out and woke up standing over the victim's body holding a machete supported an inference defendant was in the throes of emotion and out of control when defendant attacked the victim. Cottam v. State, — P.3d — (Alaska Ct. App. Nov. 20, 2019) (memorandum decision).

Distinction between first degree murder, second degree murder, and manslaughter. —

The offenses of first degree murder, second degree murder and manslaughter all require the same physical act, the unlawful killing of a human being. The difference is in the mental state of the perpetrator. Padie v. State, 557 P.2d 1138 (Alaska 1976); Eben v. State, 599 P.2d 700 (Alaska 1979).

Manslaughter is included in the greater charge of murder. United States v. Barbeau, 92 F. Supp. 196, 12 Alaska 725 (D. Alaska 1950), aff'd, 193 F.2d 945, 13 Alaska 551 (9th Cir. Alaska 1951).

Every essential element of manslaughter by negligent homicide is necessarily included in the offense of murder in the first degree. United States v. Barbeau, 92 F. Supp. 196, 12 Alaska 725 (D. Alaska 1950), aff'd, 193 F.2d 945, 13 Alaska 551 (9th Cir. Alaska 1951).

Both second degree murder and manslaughter could be lesser included offenses to first degree murder. Gray v. State, 463 P.2d 897 (Alaska), limited, Wilson v. State, 473 P.2d 633 (Alaska 1970); Bendle v. State, 583 P.2d 840 (Alaska 1978); Gieffels v. State, 590 P.2d 55 (Alaska 1979).

Inciting commission of crime as lesser offense of first-degree murder under former AS 11.15.010 . —

See Cassell v. State, 645 P.2d 219 (Alaska Ct. App. 1982).

Contracting to kill. —

One contracting with another to kill a third person was guilty of attempted first-degree murder, not solicitation. Braham v. State, 571 P.2d 631 (Alaska 1977), cert. denied, 436 U.S. 910, 98 S. Ct. 2246, 56 L. Ed. 2d 410 (U.S. 1978).

Joinder of charges. —

Cocaine charges and murder, kidnapping, and robbery charges were properly joined, where the state’s theory of the murder, kidnapping, and robbery offenses was that defendants committed the murder and carried out the kidnapping and robbery in defense of their cocaine distribution business. Mathis v. State, 778 P.2d 1161 (Alaska Ct. App. 1989).

Unlawful separate convictions. —

Legislature did not intend to have defendants convicted and punished separately for both attempted murder and first-degree assault when an attempted murder resulted in serious physical injury to the victim; separate convictions for attempted murder, and for first-degree assault, arising from the same attack, were unlawful. Starkweather v. State, 244 P.3d 522 (Alaska Ct. App. 2010).

Admissibility of evidence. —

Where evidence of cocaine possession and sale would have been admissible on murder, kidnapping, and robbery charges, but the murder, robbery, and kidnapping evidence would not have been admissible on the cocaine charges, the appropriate action upon appeal from conviction on all counts was to vacate the cocaine convictions but affirm the other convictions. Mathis v. State, 778 P.2d 1161 (Alaska Ct. App. 1989).

Trial court did not abuse its discretion by admitting evidence that defendant strangled a correctional officer a few years before the instant murder where, at trial, defendant claimed that his mother’s death was an accident or was at least justified by self-defense, and evidence of the prior strangling provided the jury with probative evidence to evaluate defendant’s state of mind when he struggled with his mother. Nichols v. State, — P.3d — (Alaska Ct. App. Nov. 19, 2008) (memorandum decision).

In a trial for sexual assault and murder, there was no error under Alaska Evid. R. 403 in admitting evidence that defendant attempted suicide six weeks after the murder. The attempt could be probative of consciousness of guilt where a sufficient connection was established by testimony that defendant considered suicide the night of the murder and experienced personality changes after the murder. McKinley v. State, — P.3d — (Alaska Ct. App. Feb. 2, 2011) (memorandum decision).

Testimony by defendant’s children that he was a good father and that he did not resent his daughter, who might not have been his biological child, was properly excluded under Alaska R. Evid. 403; evidence of defendant’s character as a good father was not admissible under Alaska R. Evid. 404(a) and 405 to show that he was not the murderer of his wife; such testimony would have been unfairly prejudicial. Sawyer v. State, 244 P.3d 1130 (Alaska Ct. App. 2011).

Trial court properly convicted and sentenced defendant to serve 60 years for first-degree murder because trial counsel made a tactical decision to not file a motion to suppress defendant's statements to the police and health clinic personnel, was aware of defendant's mental health issues and the types of medication that he received, and believed that there was a strategic advantage to having the jury hear the statements at trial, the sentencing judge gave adequate consideration to the appropriate criteria, focused on the horrific nature of defendant's crime, its impact on defendant's family, his past antisocial behavior, mental health issues, and potential for rehabilitation, and the sentence was within the appropriate range. Buxton v. State, — P.3d — (Alaska Ct. App. May 3, 2017) (memorandum decision).

Although the trial court erred in defendant's trial for first-degree murder when it refused to allow defendant's attorney to elicit testimony in cross-examination from witnesses about the victim's reputation for violence or prior violent acts until the defense attorney had first presented some evidence of self-defense, the error was rendered harmless later, when the attorney was able to introduce the same evidence through other witnesses. Furthermore, the attorney also chose not to recall and question the witnesses. Jones-Nelson v. State, 446 P.3d 797 (Alaska Ct. App. 2019).

Evidence sufficient. —

Evidence of motive and premeditation was sufficient. The defendant was infatuated with the victim’s wife and believed the victim was drugging the wife. Moreover, defendant had purchased the gun and ammunition just a day before the shooting. Wagner v. State, — P.3d — (Alaska Ct. App. Dec. 11, 2013), aff'd, 347 P.3d 109 (Alaska 2015) (memorandum decision).

Evidence was sufficient to support defendant’s convictions of murder and sexual assault, given that jurors could have found that the victim was sexually assaulted and intentionally killed based on the forensic evidence presented at trial, and jurors could have rejected defendant’s explanation for the presence of his sperm in the victim’s vagina. Dion v. State, — P.3d — (Alaska Ct. App. Feb. 11, 2015) (memorandum decision).

Evidence necessary for conviction in homicide case. —

See Armstrong v. State, 502 P.2d 440 (Alaska 1972); Simpson v. State, 877 P.2d 1319 (Alaska Ct. App. 1994).

Although the evidence of underlying felonies was very limited for purposes of a felony murder conviction under (a)(3), any error was harmless because the felony murder conviction merged with defendant’s conviction for second-degree murder on intent-to-cause-injury and extreme indifference theories. Lawson v. State, 264 P.3d 590 (Alaska Ct. App. 2011).

Evidence sufficient although one witness discredited. —

Appellant convicted of first degree murder was not entitled to post-conviction relief based on new evidence discrediting an FBI agent’s expert testimony about bullets taken from the victim’s body. Even without the agent’s testimony, the evidence showed that appellant was found in possession of the victim’s car, had property stolen from the victim’s home, and told inmates that he shot and killed a man. Newby v. State, — P.3d — (Alaska Ct. App. Aug. 18, 2010) (memorandum decision).

There was no error in allowing lay testimony from an officer that mainly consisted of observations at the crime scene, even though it was arguable that the officer gave some expert testimony concerning the cause of death, because the cause of death was not disputed at trial. Pickering v. State, — P.3d — (Alaska Ct. App. Feb. 9, 2011) (memorandum decision).

Statements against interest. —

In defendant’s murder-arson trial, hearsay statements of his wife and a third party implicating both defendant and his wife in the crimes were admissible as statements against interest. Porterfield v. State, 68 P.3d 1286 (Alaska Ct. App. 2003).

Questioning wife concerning husband’s admission of guilt. —

Trial court erred in granting a protective order which prohibited defendant, who was charged with first degree murder, from questioning a wife concerning her husband’s statement to her that he had committed the murder. Salazar v. State, 559 P.2d 66 (Alaska 1976).

Evidence of victim’s reputation for violence. —

The court properly refused to allow the defendant to introduce evidence of the victim’s reputation for violence, where the defendant picked up a rifle, hit the victim in the head with it, then knocked her down again, straddled her, and pointed the barrel toward her head as she lay prostrate, at which point the rifle discharged, killing the victim. Given this progress of events, the reasonableness of the defendant’s initial decision to pick up the rifle had essentially no bearing on his guilt of second-degree murder. Norris v. State, 857 P.2d 349 (Alaska Ct. App. 1993).

Prior acts held relevant. —

In a murder trial, there was no error in allowing a witness to testify about a prior incident in which defendant assaulted his wife and threatened to shoot the witness because the evidence was relevant to intent. Pickering v. State, — P.3d — (Alaska Ct. App. Feb. 9, 2011) (memorandum decision).

Indictment sufficient. —

See Flores v. State, 443 P.2d 73 (Alaska 1968).

Aggravating and mitigating factors. —

Even though the aggravating and mitigating factors in AS 12.55.155(c) and (d) did not apply to first-degree murder, it was proper for the parties to use these factors as points of reference at the defendant’s sentencing. Sakeagak v. State, 952 P.2d 278 (Alaska Ct. App. 1998).

Dismissal of ill juror was appropriate. —

Defendant’s convictions for murder in first degree and tampering with physical evidence in violation of AS 11.56.610(a)(1) were appropriate because defendant did not argue any specific prejudice arising from superior court’s decision to release juror who was ill and juror’s illness was a legitimate reason for dismissal. Collins v. State, 182 P.3d 1159 (Alaska Ct. App. 2008).

Instructions. —

Where defendant was charged with first degree murder and the statute of limitations had run on the lesser offense of manslaughter, while the jury should not be instructed that they might find defendant guilty of manslaughter, defendant was entitled to an instruction on the mitigating effects of passion and provocation, requiring the jury to acquit him if he presented such evidence in mitigation and the state did not negate it. Padie v. State, 557 P.2d 1138 (Alaska 1976).

Normally a second-degree murder instruction should be given as a matter of course to juries hearing a first-degree murder case. This will avoid any possibility that such juries might be foreclosed from an alternative verdict which would be justified by certain possible findings of fact. Bendle v. State, 583 P.2d 840 (Alaska 1978).

Although the trial court erred in failing to give the jury an instruction of second-degree murder, the error became harmless once the jury found that the intentional killing was in the perpetration of the robbery. Bendle v. State, 583 P.2d 840 (Alaska 1978).

In a prosecution for first-degree murder, the terms contained in the indictment were sufficiently clear to be understood by the grand jury so that the prosecutor need not define them and the statute involved, and, in light of the evidence, the prosecutor was not required to instruct as to possible lesser included offenses. Oxereok v. State, 611 P.2d 913 (Alaska 1980).

Where the jury was given a proper lesser-included offense instruction on murder in the second degree, but nevertheless convicted defendant of murder in the first degree, given the jury’s rejection of second-degree murder as a lesser-included offense, it is evident that defendant suffered no prejudice, even assuming a manslaughter instruction he challenged was inadequate. Ridgley v. State, 739 P.2d 1299 (Alaska Ct. App. 1987).

Where defendant convicted of first-degree murder claimed the trial court erred in failing to give a proper instruction on the lesser included offense of manslaughter, premised on the fact that the manslaughter instruction given to the jury referred only to reckless homicide and did not inform the jury that knowing and intentional homicides may qualify as manslaughter, this claim must fail if defendant has suggested no theory under which the evidence might have supported a conviction of manslaughter based on intentional or knowing conduct. Ridgley v. State, 739 P.2d 1299 (Alaska Ct. App. 1987).

In a prosecution for first-degree murder, the terms contained in the indictment were sufficiently clear to be understood by the grand jury so that the prosecutor need not define them and the statute involved, and, in light of the evidence, the prosecutor was not required to instruct as to possible lesser included offenses. Oxereok v. State, 611 P.2d 913 (Alaska 1980).

Trial court did not abuse its discretion in refusing to instruct the jury on the defense of diminished capacity due to intoxication, where the jury focused on defendant’s main defense that he acted in the heat of passion, even though the jury asked the judge whether a person who was intoxicated could avail himself of heat of passion as a defense and was answered in a separate instruction. Thompson v. State, 768 P.2d 127 (Alaska Ct. App. 1989).

In defendant's first-degree murder trial, the trial court did not commit obvious error in failing to give defendant's proposed instruction based on a theory of hot pursuit; by the time defendant again confronted the victim, there had been a substantial break in time, and defendant was not entitled to return to the scene of the robbery and attempt to recover his property through the use of force an hour after the taking was complete. Kone v. State, — P.3d — (Alaska Ct. App. Oct. 31, 2018) (memorandum decision).

Only one conviction of murder should be allowed for the killing of one man. Gray v. State, 463 P.2d 897 (Alaska), limited, Wilson v. State, 473 P.2d 633 (Alaska 1970).

Although there are several ways of committing first degree murder, it is still only one crime; and only one sentence can be imposed. Gray v. State, 463 P.2d 897 (Alaska), limited, Wilson v. State, 473 P.2d 633 (Alaska 1970).

“Purposely” under former AS 11.15.010 . —

See Gray v. State, 463 P.2d 897 (Alaska), limited, Wilson v. State, 473 P.2d 633 (Alaska 1970).

Former requirements of deliberation and premeditation construed. —

See Jones v. United States, 175 F.2d 544, 12 Alaska 405 (9th Cir. Alaska 1949).

Penalties under former AS 11.15.010 . —

See Daniels v. United States, 246 F.2d 194, 17 Alaska 179 (9th Cir. Alaska 1957); Green v. State, 390 P.2d 433 (Alaska 1964).

Maximum sentence for first-degree murder upheld. —

See Hoover v. State, 641 P.2d 1263 (Alaska Ct. App. 1982); Riley v. State, 720 P.2d 951 (Alaska Ct. App. 1986); Colgan v. State, 838 P.2d 276 (Alaska Ct. App. 1992).

Lengthy sentence held justified. —

Trial judge was not clearly mistaken when he sentenced defendant to serve 75 years in prison where the crime was one of domestic violence, defendant had a history of repeated assaultive conduct, and defendant engaged in a significant and protracted effort to conceal the murder and to avoid apprehension. Noyakuk v. State, 127 P.3d 856 (Alaska Ct. App. 2006).

Defendant’s discretionary parole eligibility was properly restricted until he served 50 years of imprisonment where the trial court decided that defendant should be incarcerated until he was no longer physically able to hurt people. Defendant had 10 prior convictions, including two felonies and two assaults. Nichols v. State, — P.3d — (Alaska Ct. App. Nov. 19, 2008) (memorandum decision).

Attorney request for withdrawal on appeal inadequate. —

Where defendant’s attorney submitted a brief identifying six issues that might be raised on appeal but did not explain why he believed those issues were frivolous, and where the brief contained only a cursory discussion of the facts underlying these potential issues and no discussion of the law, such abbreviated treatment did not allow the court to discharge its constitutional duty to verify independently that defendant’s potential appellate issues were as frivolous as his attorney contended, and prevented the court from ruling on the attorney’s request of withdrawal. Johnson v. State, 24 P.3d 1267 (Alaska Ct. App. 2001).

That crime would have been first-degree murder even under the common law’s more restrictive definition of this crime. This alone would have justified judge in finding defendant’s murder to be among the most serious first-degree murders and to merit the 99-year maximum sentence. Nelson v. State, 874 P.2d 298 (Alaska Ct. App. 1994).

Sentence upheld. —

See Hofhines v. State, 511 P.2d 1292 (Alaska 1973); Braham v. State, 571 P.2d 631 (Alaska 1977), cert. denied, 436 U.S. 910, 98 S. Ct. 2246, 56 L. Ed. 2d 410 (U.S. 1978); Wilson v. State, 582 P.2d 154 (Alaska 1978); Morgan v. State, 582 P.2d 1017 (Alaska 1978); Bendle v. State, 583 P.2d 840 (Alaska 1978); Vail v. State, 599 P.2d 1371 (Alaska 1979); Brown v. State, 601 P.2d 221 (Alaska 1979); Sovalik v. State, 612 P.2d 1003 (Alaska 1980); Gest v. State, 619 P.2d 724 (Alaska 1980); Tugatuk v. State, 626 P.2d 95 (Alaska 1981); Carman v. State, 658 P.2d 131 (Alaska Ct. App. 1983); Nukapigak v. State, 663 P.2d 943 (Alaska 1983); Travelstead v. State, 689 P.2d 494 (Alaska Ct. App. 1984); Lewis v. State, 731 P.2d 68 (Alaska Ct. App. 1987); Jackson v. State, 750 P.2d 821 (Alaska Ct. App.), cert. denied, 488 U.S. 828, 109 S. Ct. 80, 102 L. Ed. 2d 56 (U.S. 1988); Denbo v. State, 756 P.2d 916 (Alaska Ct. App. 1988); Alexander v. State, 838 P.2d 269 (Alaska Ct. App. 1992).

Where two defendants were convicted of first-degree murder and one of second-degree murder for the same crime, the sentencing judge was entitled to make his own evaluation of the evidence in deciding how culpable was the behavior of the one convicted of second-degree murder, and where the record before the jury sufficed to support the conclusion that she was as guilty of premeditated murder as were the other defendants, the maximum term of 99 years received by each of the defendants, though certainly severe, was justified by the extreme nature of their crime. Ridgley v. State, 739 P.2d 1299 (Alaska Ct. App. 1987).

Sentence of consecutive 99-year terms for two murders is not clearly mistaken where the defendant presents a risk of continued criminal conduct which would seriously threaten the public safety. Krukoff v. State, 702 P.2d 664 (Alaska Ct. App. 1985).

Sentence of three consecutive 99-year terms for three counts of murder and another consecutive seven-year term for attempted murder (for a total sentence of 304 years) was not excessive, where defendant had gone on a killing spree, essentially hunting his victims down, and there was no way to rule out the possibility that he might commit another series of homicides. Kanulie v. State, 796 P.2d 844 (Alaska Ct. App. 1990).

Denial of parole eligibility for defendant, who received a 99-year sentence after being convicted of murder, was not clearly mistaken, where the record showed him to be a racist, a man full of anger, a man with a severe alcohol problem, and a man with a proclivity for assaulting people with firearms, and showed that he had just been released on felony probation a few days before the murder. Stern v. State, 827 P.2d 442 (Alaska Ct. App. 1992).

Sentencing of a 19-year-old to a 65-year term of imprisonment for second-degree murder was justified where defendant had burglarized a store and had stolen about $19,000, threatened two people who knew that he had committed the burglary and theft, had other instances of violent tendencies, and his offense was among the most serious within the definition of second-degree murder because defendant, incensed over a perceived minor slight, deliberately aimed at a small car and, from short range, fired a shot from a high caliber rifle toward its occupants. Gustafson v. State, 854 P.2d 751 (Alaska Ct. App. 1993).

Defendant’s 75-year prison sentence for first-degree murder, attempted first-degree murder, and first-degree burglary was not erroneous because the trial judge reasonably concluded that a lengthy sentence was necessary to serve as a warning to others who might be tempted by jealousy to turn to extreme violence. Gordon v. State, — P.3d — (Alaska Ct. App. Aug. 18, 2010) (memorandum decision).

Superior court properly sentenced defendant to 99 years for the murder of his wife and concurrent terms of five years for tampering with evidence (hiding her body), to run consecutive to the 99 years because the judge's findings were supported by the record and fully justified the finding that it was a premeditated offense by a dangerous offender who was likely to commit similar offenses if not confined. Wyatt v. State, — P.2d — (Alaska Ct. App. May 14, 1997).

Defendant's composite sentence of 68 years for first-degree murder, second-degree assault, and fourth-degree assault was proper; the superior court analyzed the facts of the case using the appropriate criteria and the most critical factor was the fact that defendant chased the victim even after the victim had retreated from the altercation. Kone v. State, — P.3d — (Alaska Ct. App. Oct. 31, 2018) (memorandum decision).

Sentence not excessive. —

Sentence was not excessive where the trial court relied on the presentence report, defendant’s prior convictions, and the fact that he fired a shotgun through a door knowing that the victim was outside the door. The sentence was imposed in the lower range of permissible sentences based upon the absence of serious injury, and substantial reasons were given for imposing a sentence above the minimum. Goldsbury v. State, — P.3d — (Alaska Ct. App. Nov. 27, 2013) (memorandum decision).

Sentence for attempted first-degree murder upheld. —

See Staael v. State, 718 P.2d 948 (Alaska 1986).

Sentence for first-degree murder not clearly mistaken. —

See Green v. State, 761 P.2d 726 (Alaska Ct. App. 1988).

Convictions affirmed but sentence remanded for consideration of consecutive sentencing. —

See Tucker v. State, 721 P.2d 639 (Alaska Ct. App. 1986).

Consecutive sentences for first degree murder and attempted murder were remanded because judge had failed to find that a sentence of that length was necessary to protect the public. Nelson v. State, 874 P.2d 298 (Alaska Ct. App. 1994).

Consecutive sentence vacated. —

Trial court should not have imposed a five-year sentence for tampering with physical evidence consecutively to a 99-year sentence for murder, where the record would not support the conclusion that defendant must be incarcerated for the remainder of his life without any possibility of parole. Thompson v. State, 768 P.2d 127 (Alaska Ct. App. 1989).

Conviction reversed where trial court’s finding of voluntary Miranda waiver was in error. —

See Hampel v. State, 706 P.2d 1173 (Alaska Ct. App. 1985).

Conviction reversed because of admission of improperly seized evidence. —

See Lowry v. State, 707 P.2d 280 (Alaska Ct. App. 1985).

Applied in

Nukapigak v. State, 645 P.2d 215 (Alaska Ct. App. 1982); Clark v. State, 645 P.2d 1236 (Alaska Ct. App. 1982); Dandova v. State, 72 P.3d 325 (Alaska Ct. App. 2003).

Quoted in

Martusheff v. State, 474 P.3d 12 (Alaska Ct. App. 2020).

Stated in

Neitzel v. State, 655 P.2d 325 (Alaska Ct. App. 1982); Lowery v. State, 762 P.2d 457 (Alaska Ct. App. 1988); Burton v. State, 180 P.3d 964 (Alaska Ct. App. 2008); Young v. State, 331 P.3d 1276 (Alaska Ct. App. 2014).

Cited in

Handley v. State, 615 P.2d 627 (Alaska 1980); Kirby v. State, 649 P.2d 963 (Alaska Ct. App. 1982); Page v. State, 657 P.2d 850 (Alaska Ct. App. 1983); Lerchenstein v. State, 697 P.2d 312 (Alaska Ct. App. 1985); Hart v. State, 702 P.2d 651 (Alaska Ct. App. 1985); Ridgely v. State, 705 P.2d 924 (Alaska Ct. App. 1985); Peckham v. State, 723 P.2d 638 (Alaska Ct. App. 1986); Hastings v. State, 736 P.2d 1157 (Alaska Ct. App. 1987); Clifton v. State, 751 P.2d 27 (Alaska 1988); Peel v. State, 751 P.2d 1366 (Alaska Ct. App. 1988); Cole v. State, 754 P.2d 752 (Alaska Ct. App. 1988); Ciervo v. State, 756 P.2d 907 (Alaska Ct. App. 1988); Zeciri v. State, 779 P.2d 795 (Alaska Ct. App. 1989); Charles v. State, 780 P.2d 377 (Alaska Ct. App. 1989); Odom v. State, 798 P.2d 353 (Alaska Ct. App. 1990); Beagel v. State, 813 P.2d 699 (Alaska Ct. App. 1991); Dunkin v. State, 818 P.2d 1159 (Alaska Ct. App. 1991); Sam v. State, 842 P.2d 596 (Alaska Ct. App. 1992); Edwards v. State, 842 P.2d 1281 (Alaska Ct. App. 1992); Rudden v. State, 881 P.2d 328 (Alaska Ct. App. 1994); Tucker v. State, 892 P.2d 832 (Alaska Ct. App. 1995); Marino v. State, 934 P.2d 1321 (Alaska Ct. App. 1997); Wilson v. State, 967 P.2d 98 (Alaska Ct. App. 1998); Flanigan v. State, 3 P.3d 372 (Alaska Ct. App. 2000); Maness v. State, 49 P.3d 1128 (Alaska Ct. App. 2002); Ramsey v. State, 56 P.3d 675 (Alaska Ct. App. 2002); Johnson v. State, 77 P.3d 11 (Alaska Ct. App. 2003); State v. Kalmakoff, 122 P.3d 224 (Alaska Ct. App. 2005); State v. Garrison, 128 P.3d 741 (Alaska Ct. App. 2006); Serradell v. State, 129 P.3d 461 (Alaska Ct. App. 2006); Porterfield v. State, 145 P.3d 613 (Alaska Ct. App. 2006); Blodgett v. Blodgett (In re Estate of Blodgett), 147 P.3d 702 (Alaska 2006); Lambert v. State, 172 P.3d 838 (Alaska Ct. App. 2007); Oviuk v. State, 180 P.3d 388 (Alaska Ct. App. 2008); Holden v. State, 190 P.3d 725 (Alaska Ct. App. 2008); Hinson v. State, 199 P.3d 1166 (Alaska Ct. App. 2008); State v. Galbraith, 199 P.3d 1216 (Alaska Ct. App. 2009); Bates v. State, 258 P.3d 851 (Alaska Ct. App. 2011); Rogers v. State, 280 P.3d 582 (Alaska Ct. App. 2012); Ahvakana v. State, 283 P.3d 1284 (Alaska Ct. App. 2012); Goldsbury v. State, 342 P.3d 834 (Alaska 2015); Doe v. Dep't of Pub. Safety, 444 P.3d 116 (Alaska 2019); Alvarez-Perdomo v. State, 454 P.3d 998 (Alaska 2019); C.D. v. State, 458 P.3d 81 (Alaska 2020); Lord v. State, 489 P.3d 374 (Alaska Ct. App. 2021); Collins v. State, — P.3d — (Alaska Ct. App. Feb. 10, 2021); Macmurray v. State, — P.3d — (Alaska Ct. App. Mar. 13, 2019).

Collateral references. —

Inference of malice or intent to kill where killing is by blow without weapon, 22 ALR2d 854.

Felonious killing of one cotenant or tenant by the entireties by the other as affecting latter’s rights in the property, 42 ALR3d 1116.

What constitutes attempted murder, 54 ALR3d 612.

What constitutes murder by torture, 83 ALR3d 1222.

Spouse’s confession of adultery as affecting degree of homicide involved in killing spouse or his or her paramour, 93 ALR3d 925.

Propriety of imposition of death sentence by state court following jury’s recommendation of life imprisonment or lesser sentence, 8 ALR4th 1028.

Judicial abrogation of felony-murder doctrine, 13 ALR4th 1226.

Modern status of rules requiring “malice aforethought,” “deliberation” or “premeditation” as elements of murder in first degree, 18 ALR4th 961.

Criminal liability for death resulting from unlawfully furnishing intoxicating liquor or drugs to another, 29 ALR7th 8.

Validity and construction of statute defining homicide by conduct manifesting “depraved indifference”, 25 ALR4th 311.

Sufficiency of evidence to support homicide conviction where no body was produced, 65 ALR6th 359.

Notes to Decisions

Analysis

• I. General Consideration
• II. Felony Murder

Notes to Decisions

Origin. —

This section is based on Illinois Criminal Code, Chapter 38 § 9-2(a). Martin v. State, 664 P.2d 612 (Alaska Ct. App. 1983), cert. denied, 465 U.S. 1007, 104 S. Ct. 1001, 79 L. Ed. 2d 234 (U.S. 1984).

Heat of passion. —

Finding in felony-murder prosecution that defendant did not act in self defense did not preclude heat of passion defense. Kirby v. State, 649 P.2d 963 (Alaska Ct. App. 1982).

Trial court did not err in refusing to instruct the jury on heat of passion because the evidence at defendant's trial did not constitute "some evidence" of serious provocation; there was no evidence in the record to support a finding that the victim assaulted her daughter because the origin of the daughter's injuries went unexplained; Lopez v. State, — P.3d — (Alaska Ct. App. Aug. 8, 2018).

Insufficient evidence of “heat of passion” to warrant instruction. Martin v. State, 664 P.2d 612 (Alaska Ct. App. 1983), cert. denied, 465 U.S. 1007, 104 S. Ct. 1001, 79 L. Ed. 2d 234 (U.S. 1984).

Victim’s preexisting anger did not in itself support a reasonable inference that his killer acted in a heat of passion after being seriously provoked by victim. Hilbish v. State, 891 P.2d 841 (Alaska Ct. App. 1995).

The reasonable person standard set forth in subsection (f)(2) governs the determination of whether that provocation was “by the intended victim,” as required under subsection (a). Howell v. State, 917 P.2d 1202 (Alaska Ct. App. 1996).

To place the heat of passion defense in issue, a defendant need only produce “some evidence” to support it and so long as some evidence is presented to support the defense, matters of the credibility of conflicting witnesses is left to the jury. Howell v. State, 917 P.2d 1202 (Alaska Ct. App. 1996).

In a first-degree murder case where two brothers were arguing over drugs and money, a heat of passion instruction was not required; the victim’s belligerent words did not constitute the kind of serious provocation that would have caused a reasonable person to lose self-control to the point of shooting the victim several times in the head and the back. Undisputed evidence showed that defendant acted deliberately; he was preparing to assault the victim even before the victim uttered the words that supposedly triggered the passion. Wilkerson v. State, 271 P.3d 471 (Alaska Ct. App. 2012).

Because the heat of passion statute declared that the defense applied only to charges of first-degree murder and charges of second-degree murder, defendant could only claim heat of passion with respect to one of the murder charges against him; since defendant was indicted for first-degree murder, the heat of passion defense potentially applied to that charge. Luch v. State, 413 P.3d 1224 (Alaska Ct. App. 2018) (memorandum decision).

Because the heat of passion statute declared that the defense applied only to charges of first-degree murder and charges of second-degree murder, defendant could only claim heat of passion with respect to one of the murder charges against him; the defense of heat of passion did not apply to charges under AS 11.41.110(a)(2) , i.e., causing the victim's death while engaging in conduct manifesting an extreme indifference to the value of human life. Luch v. State, 413 P.3d 1224 (Alaska Ct. App. 2018) (memorandum decision).

Trial court did not err by failing to instruct the jury on the defense of heat of passion because there was insufficient evidence defendant was subjected to a serious provocation; the fact that, several months before the shooting, defendant had good reason to believe his wife was having an affair did not mean that he was experiencing a “serious provocation” when he could not find her where he expected her to be, and defendant never claimed that he had personal knowledge of his wife's adultery. Luch v. State, 413 P.3d 1224 (Alaska Ct. App. 2018) (memorandum decision).

In an attempted murder conviction, the trial judge erred by failing to grant the request for a jury instruction on heat of passion as it was at least reasonably possible that the victim attacked defendant with a knife, and that his overwhelming emotion was engendered by that attack because defendant testified that the victim attacked him with a knife and that, as a consequence, he went into defense mode and blacked out, leaving him with no memory of events until the police arrived; and the evidence of defendant's frenzied attack on the victim, as well as the number of people and the kind of force that was required to subdue him, supported an inference that he was in the throes of emotion and out of control when he stabbed the victim. Horton v. State, — P.3d — (Alaska Ct. App. May 23, 2018) (memorandum decision).

Defendant's convictions for first-degree murder and second-degree murder with intent to cause serious physical injury were reversed because it was error to deny a heat of passion jury instruction; defendant presented some evidence of each element of that defense, since defendant told police the victim attacked defendant with a machete and defendant killed the victim immediately after being attacked, and the victim's injuries and defendant's claim defendant blacked out and woke up standing over the victim's body holding a machete supported an inference defendant was in the throes of emotion and out of control when defendant attacked the victim. Cottam v. State, — P.3d — (Alaska Ct. App. Nov. 20, 2019) (memorandum decision).

Trial court's error in denying defendant's request for a heat of passion jury instruction did not affect the validity of the conviction for extreme indifference second-degree murder because heat of passion was not a defense to extreme indifference murder. Cottam v. State, — P.3d — (Alaska Ct. App. Nov. 20, 2019) (memorandum decision).

Heat of passion defense. In presenting a heat of passion defense under AS 11.41.115 , a defendant cannot establish “serious provocation” by relying on the cumulative effect of acts and events which, as a matter of law, do not qualify as provocations. Dandova v. State, 72 P.3d 325 (Alaska Ct. App. 2003).

The father’s act of purchasing a new vehicle could not as a matter of law constitute adequate provocation for homicide or attempted homicide under AS 11.41.115 . The purchase of the vehicle was a lawful act, it was not directed at the mother, and it was not intended to influence her actions or emotions, despite the fact that the mother stated that seeing the father getting out of his new vehicle and walking to his attorney’s office reminded the mother of how the father had obtained a judgment against her and had executed on her assets, so that she was left poor while he could afford a new vehicle. Dandova v. State, 72 P.3d 325 (Alaska Ct. App. 2003).

The rationale of allowing a heat of passion defense is that a person who commits murder in response to serious provocation is less blameworthy, and assumedly less of a danger to society, than a typical murderer. This same rationale applies equally to a person who attempts but fails to kill in response to serious provocation. Dandova v. State, 72 P.3d 325 (Alaska Ct. App. 2003).

When mother observed physical evidence suggesting that the father had sexually abused their child, this might have constituted provocation adequate to mitigate an ensuing homicidal assault on the father; however, this incident occurred years before the mother’s attempted murder of the father, thus, as a matter of law, the mother could not rely on this incident as adequate provocation for her act of shooting the father, because any reasonable person would have cooled. Dandova v. State, 72 P.3d 325 (Alaska Ct. App. 2003).

Mother’s phone call from her attorney’s paralegal that trial court’s custody order recommended that mother pay a portion of child’s counseling expenses, which mother misunderstood to mean that the father declared he was too poor to bear, could not be categorized as provocation under the heat of passion defense of AS 11.41.115(f)(2) because the statute expressly stated that hearsay reports of the victim’s conduct could not constitute serious provocation. Dandova v. State, 72 P.3d 325 (Alaska Ct. App. 2003).

Although defendant convicted of first-degree murder claimed that his jury was improperly instructed on the heat-of-passion defense by the trial court’s failure to explain the term “proportionality,” the absence of the definition did not amount to plain error because “proportionality” is a common term with no special legal meaning in the context in which it was used. Leng Moua v. State, — P.3d — (Alaska Ct. App. Jan. 4, 2012) (memorandum decision).

Prisoner was precluded from bringing an ineffective assistance of counsel claim for failure to raise a “heat of passion” defense where that issue had already been ruled on in his first petition for post-conviction relief, and was not raised in his second petition. Hall v. State, — P.3d — (Alaska Ct. App. Nov. 21, 2012) (memorandum decision).

Trial court erred by failing to instruct the jury on defendant's heat-of-passion defense, and therefore his second-degree murder conviction was vacated; he presented some evidence that he acted in the heat of passion based on fear, some evidence of serious provocation, and an insufficient opportunity to cool in the immediate aftermath, as he testified that the victim threatened to shoot him the day before and then again at the mall while his hand was on the butt of a gun. Gray v. State, — P.3d — (Alaska Ct. App. Mar. 6, 2019) (memorandum decision).

Serious provocation. —

Defendant showed no plain error when a prosecutor mischaracterized serious provocation in closing because (1) the misstatements were only a few sentences in an entire rebuttal argument focusing on whether defendant was in the throes of passion when defendant shot the victim, and (2) the jury was correctly instructed on heat of passion and serious provocation and to disregard any argument contrary to the facts or the law. Marquez v. State, — P.3d — (Alaska Ct. App. Jan. 16, 2019), rev'd, vacated, — P.3d — (Alaska 2019) (memorandum decision).

Extreme emotional disturbance. —

The legislature did not intend to make “extreme emotional disturbance” a defense to murder. Martin v. State, 664 P.2d 612 (Alaska Ct. App. 1983), cert. denied, 465 U.S. 1007, 104 S. Ct. 1001, 79 L. Ed. 2d 234 (U.S. 1984).

As commonly defined, “passion” is sufficiently broad to encompass a range of emotions including fear, such that, in the absence of specific, narrowing statutory language, the heat of passion defense should be broadly interpreted to include emotions other than just rage or anger. LaPierre v. State, 734 P.2d 997 (Alaska Ct. App. 1987).

The state bears the burden of disproving heat of passion once the accused has presented “some evidence” on the issue. LaPierre v. State, 734 P.2d 997 (Alaska Ct. App. 1987).

Reasonable person. —

Trial judge’s failure to include “in the defendant’s situation” in the part of the heat-of-passion instruction describing a reasonable person as someone who was mentally healthy, was not plain error because the term “reasonable person” was referred to in three other places, twice in the same jury instruction and again in a separate instruction defining that term. Leng Moua v. State, — P.3d — (Alaska Ct. App. Jan. 4, 2012) (memorandum decision).

Consideration of defendants mental abnormality. —

The law has traditionally refused to consider a defendant’s mental abnormality when deciding heat of passion claims. Xi Van Ha v. State, 892 P.2d 184 (Alaska Ct. App. 1995).

Self-defense. —

See Pedersen v. State, 420 P.2d 327 (Alaska 1966). (Decided under former AS 11.15.010 ).

Person provoking difficulty thereby forfeits right to self-defense. This doctrine has been extended to preclude a person who commits a felony from claiming self-defense not only to the intended victim of the felony, but also as to any person intervening in an attempt either to prevent the crime or to apprehend the criminal. Gray v. State, 463 P.2d 897 (Alaska), limited, Wilson v. State, 473 P.2d 633 (Alaska 1970).

Where the defendant commits a felony which includes an immediate threat of violence, he has created a situation so fraught with peril as to preclude his claim of self-defense to any act of violence arising therefrom. This holding is limited to the situation where the armed robbery is still in progress and where there is grave danger of violence, injury, or loss of life because a weapon is being used to consummate the felony. Gray v. State, 463 P.2d 897 (Alaska), limited, Wilson v. State, 473 P.2d 633 (Alaska 1970).

A person who commits an armed robbery forfeits his right to claim as a defense the necessity to protect himself against the use of excessive force by either the intended victim of the robbery or by any person intervening to prevent the crime or to apprehend the criminal, absent a factual showing that at the time the violence occurred, the dangerous situation created by the armed robbery no longer existed. Gray v. State, 463 P.2d 897 (Alaska), limited, Wilson v. State, 473 P.2d 633 (Alaska 1970).

Constitutionality of separate convictions and punishments for felony murder and underlying felony. —

The Alaska Constitution allows separate convictions and punishments for felony murder and the underlying felony, even though, under Alaska’s cognate approach, the underlying felony may be a lesser included offense of felony murder. Todd v. State, 884 P.2d 668 (Alaska Ct. App. 1994), aff'd, 917 P.2d 674 (Alaska 1996).

Legislature intended separate convictions and punishments for homicide and underlying felony. —

Clearly Alaska law calls for separate convictions and punishments when the victim of the homicide is someone other than the victim of the underlying felony, as when a bystander or a police officer is killed during a robbery; but even when the defendant’s crimes involve only one victim, the Alaska legislature intended to authorize separate convictions and punishments for the underlying felony and the resulting homicide. Todd v. State, 884 P.2d 668 (Alaska Ct. App. 1994), aff'd, 917 P.2d 674 (Alaska 1996).

From the legislative commentary to AS 11.41.115 , two things are apparent: first, even in the situation described in the statute (a burglary committed for the purpose of killing someone) when the felony-murder rule does not apply, the legislature still envisioned the defendant might be separately convicted of murder (first-degree murder) or manslaughter and the underlying burglary; second, because the legislature enacted a special provision to merge the two potential offenses in this specific situation, the legislature must have intended that defendants in other felony-murder situations would be subject to conviction and punishment for both the homicide and the underlying felony. Todd v. State, 884 P.2d 668 (Alaska Ct. App. 1994), aff'd, 917 P.2d 674 (Alaska 1996).

Defense too speculative. —

Although the State offered no motive for defendant’s attack on the victim and defendant was bleeding from a wound to his thigh when the police stopped his car, under all of the evidence, any argument that defendant acted in self-defense or as a result of serious provocation by the victim would have been based on pure speculation, and defendant’s request for jury instructions on self-defense and heat of passion were properly denied. Hamilton v. State, 59 P.3d 760 (Alaska Ct. App. 2002), cert. denied, 540 U.S. 915, 124 S. Ct. 302, 157 L. Ed. 2d 209 (U.S. 2003).

Applied in

Weston v. State, 656 P.2d 1186 (Alaska Ct. App. 1982); Blackhurst v. State, 721 P.2d 645 (Alaska Ct. App. 1986).

Quoted in

Houston v. State, 602 P.2d 784 (Alaska 1979); Roark v. State, 758 P.2d 644 (Alaska Ct. App. 1988).

Stated in

Walsh v. State, 677 P.2d 912 (Alaska Ct. App. 1984); Burton v. State, 180 P.3d 964 (Alaska Ct. App. 2008).

Cited in

Wright v. State, 656 P.2d 1226 (Alaska Ct. App. 1983); Stoneking v. State, 800 P.2d 949 (Alaska Ct. App. 1990); State v. Dague, 143 P.3d 988 (Alaska Ct. App. 2006); Silvera v. State, 244 P.3d 1138 (Alaska Ct. App. 2010).

Collateral references. —

Insulting words as provocation of homicide or as reducing the degree thereof, 2 ALR3d 1292.

Modern status of the rules as to voluntary intoxication as defense to criminal charge, 8 ALR3d 1236.

Relationship with assailant’s wife as provocation depriving defendant of right of self-defense, 9 ALR3d 933.

Mental or emotional condition as diminishing responsibility for crime, 22 ALR3d 1228.

Duty to retreat as condition of self-defense when one is attacked at his office, or place of business or employment, 41 ALR3d 584.

Unintentional killing of or injury to third person during attempted self-defense, 55 ALR3d 620.

Withdrawal, after provocation of conflict, as reviving right of self-defense, 55 ALR3d 1000.

Criminal liability where act of killing is done by one resisting felony or other unlawful act committed by defendant, 56 ALR3d 239.

Effect of voluntary drug intoxication upon criminal responsibility, 73 ALR3d 98.

When intoxication deemed involuntary so as to constitute a defense to criminal charge, 73 ALR3d 195.

Accused’s right, in homicide case, to have jury instructed as to both unintentional shooting and self-defense, 15 ALR4th 983.

Notes to Decisions

Annotator’s notes. —

Many of the cases cited in the notes below were decided under former AS 11.15.040.

Alaska’s new criminal code totally abandons the unlawful act approach to manslaughter and contains no misdemeanor-manslaughter provisions. Keith v. State, 612 P.2d 977 (Alaska 1980).

For case holding that the misdemeanor-manslaughter doctrine was encompassed within former manslaughter statute, see Keith v. State, 612 P.2d 977 (Alaska 1980).

Requirements for manslaughter under former law. —

See United States v. Barbeau, 92 F. Supp. 196, 12 Alaska 725 (D. Alaska 1950), aff'd, 193 F.2d 945, 13 Alaska 551 (9th Cir. Alaska 1951); United States v. Aloowsine, 17 F.R.D. 211, 15 Alaska 483 (D. Alaska 1955); Jennings v. State, 404 P.2d 652 (Alaska 1965); Johnson v. State, 511 P.2d 118 (Alaska 1973).

Offense is included in the greater charge of murder. United States v. Barbeau, 92 F. Supp. 196, 12 Alaska 725 (D. Alaska 1950), aff'd, 193 F.2d 945, 13 Alaska 551 (9th Cir. Alaska 1951).

Heat of passion manslaughter was properly determined to be a lesser-included offense of second-degree murder where justification was a disputed factual element distinguishing second-degree murder from manslaughter. Blackhurst v. State, 721 P.2d 645 (Alaska Ct. App. 1986).

An indictment for first degree murder is sufficient to embrace involuntary manslaughter. United States v. Barbeau, 92 F. Supp. 196, 12 Alaska 725 (D. Alaska 1950), aff'd, 193 F.2d 945, 13 Alaska 551 (9th Cir. Alaska 1951).

Involuntary manslaughter is necessarily included in the offense of second degree murder. Johnson v. State, 511 P.2d 118 (Alaska 1973).

Depending on the facts of a given case both second degree murder and manslaughter could be lesser included offenses to first degree felony murder. Gieffels v. State, 590 P.2d 55 (Alaska 1979).

Second-degree murder distinguished. —

The requirement of “extreme indifference to the value of human life” contained in the definition of second-degree murder (AS 11.41.110(a)(2) ) sufficiently distinguishes that offense from manslaughter so as to satisfy the requirements of equal protection. Neitzel v. State, 655 P.2d 325 (Alaska Ct. App. 1982).

State properly established the element of “extreme indifference to the value of human life” required for conviction of second-degree murder, and not simply the “recklessness” required for conviction of manslaughter, not only through evidence of defendant’s egregiously dangerous driving, but also through evidence of defendant’s extreme intoxication, decision to ignore warnings not to drive, and past dealings with the legal system regarding his attitude toward driving while intoxicated offenses. Jeffries v. State, 90 P.3d 185 (Alaska Ct. App. 2004), aff'd, 169 P.3d 913 (Alaska 2007).

Statutory phrase “under circumstances not amounting to murder in the first or second degree” does not constitute an element of the offense of manslaughter under this section; rather, this language means that a manslaughter conviction should be entered unless the jury concludes that the unlawful homicide is not just a manslaughter, but rather constitutes a murder. Edwards v. State, 158 P.3d 847 (Alaska Ct. App. 2007).

Distinction between first degree murder, second degree murder, and manslaughter. —

The offenses of first degree murder, second degree murder, and manslaughter all require the same physical act, the unlawful killing of a human being. The difference is in the mental state of the perpetrator. Padie v. State, 557 P.2d 1138 (Alaska 1976).

Alaska legislature has intended manslaughter to be a residual category of unlawful homicide, encompassing any unlawful killing done with recklessness, knowledge, or intent, unless the state proves that the killing constitutes first- or second-degree murder. Edwards v. State, 158 P.3d 847 (Alaska Ct. App. 2007).

If a jury finds that a defendant committed an unlawful homicide and acted with recklessness, knowledge, or intent, but if the jury has a reasonable doubt as to whether the state has proved murder, then the defendant is entitled to the benefit of the jury’s doubt and must be convicted only of manslaughter under paragraph (a)(1) of this section; however, the fact that the jury may believe that there is a reasonable possibility, or even a likelihood, that the defendant’s conduct constituted murder does not entitle the defendant to be acquitted of manslaughter. Edwards v. State, 158 P.3d 847 (Alaska Ct. App. 2007).

Criminally negligent homicide distinguished. —

Criminally negligent homicide is not the same as manslaughter based on recklessness under the relevant statute since recklessness requires conscious disregard of a known risk, while in contrast, the essence of criminal negligence is failure to perceive the risk. Edgmon v. State, 702 P.2d 643 (Alaska Ct. App. 1985).

The fact that a given defendant did not perceive a risk because he or she was mentally retarded, because he or she had bad eyesight or bad hearing, or because his or her experience had not fitted him or her to appreciate the risk would be irrelevant in proving negligence but highly relevant with regard to recklessness, whether the given individual was intoxicated or not, and consequently, elimination of intoxication as a basis for a finding that a specific individual did not appreciate a specific risk does not totally destroy the distinction between criminal negligence and recklessness. Edgmon v. State, 702 P.2d 643 (Alaska Ct. App. 1985).

The sole distinction between recklessness and criminal negligence — and, by extension, between manslaughter and criminally negligent homicide — lies in the accused’s awareness of the risk that is caused by the accused’s conduct. Panther v. State, 780 P.2d 386 (Alaska Ct. App. 1989).

Involuntary manslaughter is not a lesser crime than voluntary manslaughter. Des Jardins v. State, 551 P.2d 181 (Alaska 1976).

There is no statutory distinction in Alaska between voluntary and involuntary manslaughter. La Londe v. State, 614 P.2d 808 (Alaska 1980).

Second degree arson and manslaughter considered separate offenses. —

Since the second degree arson statute protected a property interest while the manslaughter statute protected the paramount personal interest of protection of human life, they should have been considered separate offenses for double jeopardy purposes. Jacinth v. State, 593 P.2d 263 (Alaska 1979).

Only one statutory crime. —

There was only one statutory crime of manslaughter in Alaska, although it was defined in two statutes, former AS 11.15.040 (manslaughter) and former AS 11.15.080 (negligent homicide). Des Jardins v. State, 551 P.2d 181 (Alaska 1976).

For cases construing former culpable negligence statute, Giles v. United States, 144 F.2d 860, 10 Alaska 455 (9th Cir. Alaska 1944); United States v. Barbeau, 92 F. Supp. 196, 12 Alaska 725 (D. Alaska 1950), aff'd, 193 F.2d 945, 13 Alaska 551 (9th Cir. Alaska 1951).

Statute of limitations. —

While there is no statute of limitations in Alaska for the offense of murder, the crime of manslaughter is subject to a five-year statute of limitations. Padie v. State, 594 P.2d 50 (Alaska 1979).

Where defendant’s waiver of the relevant statute of limitations was knowingly, intelligently, and voluntarily entered; it was made for defendant’s benefit and after consultation with counsel; and defendant’s waiver did not contravene any of the policy reasons underlying criminal statutes of limitations, the superior court possessed jurisdiction to accept defendant’s plea of nolo contendere to the charge of manslaughter after the statute of limitations had run. Padie v. State, 594 P.2d 50 (Alaska 1979).

Use of a dangerous instrument is not necessarily an element of manslaughter, even though it is safe to assume that the vast majority of manslaughter cases will involve the use of an object or implement that falls within the definition of a dangerous instrument. Krasovich v. State, 731 P.2d 598 (Alaska Ct. App. 1987).

The use of a dangerous instrument is characteristic of manslaughter, and the automobile is a dangerous instrument characteristically used in committing the offense. Krasovich v. State, 731 P.2d 598 (Alaska Ct. App. 1987).

Doctrine of diminished capacity. —

See Johnson v. State, 511 P.2d 118 (Alaska 1973).

Intoxication constituted no defense to the crime of manslaughter because the crime as defined under former AS 11.15.040 required no specific intent which could possibly have been negated by the intoxication. Kvasnikoff v. State, 521 P.2d 903 (Alaska 1974).

Statutory presumption concerning intoxication. —

A jury considering drunk driving, assault (involving motor vehicles), manslaughter, and negligent homicide cases should be made aware of the statutory presumption concerning intoxication in AS 28.35.033(a) . Dresnek v. State, 718 P.2d 156 (Alaska), cert. denied, 479 U.S. 1021, 107 S. Ct. 679, 93 L. Ed. 2d 729 (U.S. 1986).

Strict treatment of drunk-driving manslaughter. —

The crime of drunk-driving manslaughter merits high societal condemnation, and the judicially recognized importance of the goals of community condemnation and deterrence of others justified sentencing the defendant to the presumptive 5-year term, despite the non-statutory mitigating factor of the defendant’s exceptional potential for rehabilitation. Bossie v. State, 835 P.2d 1257 (Alaska Ct. App. 1992).

Second jury trial to address aggravating factors. —

In a manslaughter case, the double jeopardy clause did not prohibit a second jury trial to address the aggravator under AS 12.55.155(c)(5) as such a trial was not a second prosecution; further, the aggravating factor was not an element of defendant’s crime for purposes of Alaska Const. art. I, § 8, requiring a jury trial under Blakely v. Washington , 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). State v. Dague, 143 P.3d 988 (Alaska Ct. App. 2006).

Prima facie case. —

In most cases, when the state shows that an intoxicated person drove a car and caused a death, it has made a prima facie case of manslaughter as defined in this statute. St. John v. State, 715 P.2d 1205 (Alaska Ct. App. 1986).

Self-defense. —

See Gregory v. State, 492 P.2d 108 (Alaska 1971).

Confession not rendered inadmissible by memory loss. —

Defendant’s memory loss following an accident fatal to his passenger did not significantly interfere with his ability to act with a “rational mind and free will” in deciding to talk with investigating troopers and did not thereby render his confession involuntary or inadmissible in a subsequent trial for manslaughter. Macauly v. State, 734 P.2d 1020 (Alaska Ct. App. 1987), overruled in part, Moberg v. Municipality of Anchorage, 152 P.3d 1170 (Alaska Ct. App. 2007).

Judge entitled to know details of accused’s criminal conduct. —

The trial judge is entitled to know to the fullest extent possible the details of accused’s criminal conduct. Egelak v. State, 438 P.2d 712 (Alaska 1968).

Hence, he may examine photographs of victim’s body. —

It was not prejudicial error for the trial judge to have examined the photographs of the victim’s body prior to imposition of sentence. Egelak v. State, 438 P.2d 712 (Alaska 1968).

View of evidence on motion for judgment of acquittal. —

Where defendant was tried for murder and convicted of the included offense of manslaughter, the supreme court stated that the rule adopted for Alaska was that on a motion for judgment of acquittal, the trial court must take the view of the evidence, and the inferences therefrom, which is most favorable to the prosecution. Eaton v. State, 390 P.2d 218 (Alaska 1964).

Evidence held sufficient to establish cause of death. —

See West v. State, 409 P.2d 847 (Alaska 1966).

The circumstantial evidence was substantial evidence sufficient, beyond a reasonable doubt, to support the superior court’s finding that defendant was guilty of the crime of manslaughter. Kvasnikoff v. State, 521 P.2d 903 (Alaska 1974).

Evidence necessary for conviction in homicide case. —

See Armstrong v. State, 502 P.2d 440 (Alaska 1972).

Evidence held sufficient to convict. —

See Jacinth v. State, 593 P.2d 263 (Alaska 1979); Gibbs v. State, 676 P.2d 606 (Alaska Ct. App. 1984).

Defendant was properly convicted of manslaughter because a jury could reasonably conclude that defendant voluntarily and actively participated in an assault on the victim with conscious disregard of a substantial and unjustifiable risk that the assault would result in the victim’s death. Defendant held the victim down while an accomplice wearing gloves with plastic knuckles punched him several times and hit him in the forehead with the butt of his handgun, killing him. Floor v. State, — P.3d — (Alaska Ct. App. July 1, 2015) (memorandum decision).

Instructions. —

Where defendant was charged with first degree murder and the statute of limitations had run on the lesser offense of manslaughter, while the jury should not be instructed that they might find defendant guilty of manslaughter, defendant was entitled to an instruction on the mitigating effects of passion and provocation, requiring the jury to acquit him if he presented such evidence in mitigation and the state did not negate it. Padie v. State, 557 P.2d 1138 (Alaska 1976).

The trial court did not err in instructing the jury that it had to unanimously acquit defendant of manslaughter before it could consider a lesser-included offense — negligent homicide. Dresnek v. State, 718 P.2d 156 (Alaska), cert. denied, 479 U.S. 1021, 107 S. Ct. 679, 93 L. Ed. 2d 729 (U.S. 1986).

In prosecution for drunk driving manslaughter and second-degree assault, the trial court did not err in instructing the jury that if it found that there was .10% or more alcohol in defendant’s blood at the time of the accident, it could infer that he was under the influence of intoxicating liquor. Dresnek v. State, 718 P.2d 156 (Alaska), cert. denied, 479 U.S. 1021, 107 S. Ct. 679, 93 L. Ed. 2d 729 (U.S. 1986).

Jury instruction given on the relationship between intoxication and recklessness, challenged for the first time on appeal, was not plain error. Adams v. State, 718 P.2d 164 (Alaska Ct. App. 1986).

Where defendant convicted of first-degree murder claimed the trial court erred in failing to give a proper instruction on the lesser-included offense of manslaughter, premised on the fact that the manslaughter instruction given to the jury referred only to reckless homicide and did not inform the jury that knowing and intentional homicides may qualify as manslaughter, this claim must fail if defendant has suggested no theory under which the evidence might have supported a conviction of manslaughter based on intentional or knowing conduct. Ridgley v. State, 739 P.2d 1299 (Alaska Ct. App. 1987).

Where the jury was given a proper lesser-included offense instruction on murder in the second degree, but nevertheless convicted defendant of murder in the first degree, given the jury’s rejection of second-degree murder as a lesser-included offense, it is evident that defendant suffered no prejudice, even assuming a manslaughter instruction he challenged was inadequate. Ridgley v. State, 739 P.2d 1299 (Alaska Ct. App. 1987).

On appeal from a conviction of manslaughter, it was held that the trial court erred by including, in its instruction on presumption of innocence, that such presumption was not intended to prevent the conviction of any person who is in fact guilty, or to aid the guilty to escape punishment. Reynolds v. United States, 238 F.2d 460, 16 Alaska 502 (9th Cir. Alaska 1956).

It is error for a trial judge to take the wording of the manslaughter statute and import it wholesale into a jury instruction on the elements of manslaughter because jurors should not be told that the offense of manslaughter requires proof beyond a reasonable doubt that a killing was neither first-degree, nor second-degree murder, as that is not an element of manslaughter. Rather, manslaughter is a residual category of unlawful homicide that applies if the government fails to prove beyond a reasonable doubt that a homicide was murder. Clark v. State, — P.3d — (Alaska Ct. App. Jan. 6, 2016) (memorandum decision).

Counsel was not incompetent for failing to request a jury instruction on the lesser offense of third-degree assault under AS § 11.41.220 because defendant would not necessarily have committed third-degree assault if he committed first-degree assault in the manner alleged by the State. Geisinger v. State, 498 P.3d 92 (Alaska Ct. App. 2021).

Inconsistency in verdicts. —

In second-degree murder trial, there was not a fatal inconsistency of verdicts where, based upon instructions and conduct of counsel, jury found defendant guilty of both second-degree murder and manslaughter. Edwards v. State, 158 P.3d 847 (Alaska Ct. App. 2007).

“Recklessness” understood by grand jury. —

In the absence of a suggestion that “recklessness” under the criminal code was questioned, it is assumed that the grand jury understood the meaning of a reckless killing. Gustafson v. State, 854 P.2d 751 (Alaska Ct. App. 1993).

Homicide, being a most serious crime, normally calls for the imposition of significant sanctions. State v. Abraham, 566 P.2d 267 (Alaska 1977).

Review of evidence on appeal. —

In an appeal from a conviction of the crime of manslaughter, the court must consider the evidence in the light most favorable to the government. Reynolds v. United States, 238 F.2d 460, 16 Alaska 502 (9th Cir. Alaska 1956).

Reduction of murder conviction. —

The standard for reducing a murder conviction to manslaughter is the “reasonable person” standard: An unlawful killing in the sudden heat of passion is reduced from murder to manslaughter only if there was adequate provocation, such as might naturally induce a reasonable person in the passion of the moment to lose self control and commit the act on impulse and without reflection. La Londe v. State, 614 P.2d 808 (Alaska 1980).

Conviction reversed where relevant, highly probative character evidence regarding the victim was not admitted and a hearsay statement by a friend of the defendant was admitted. Williamson v. State, 692 P.2d 965 (Alaska Ct. App. 1984).

The error in refusing to admit direct evidence that the other suspect in the death of an eighteen-month-old child had formerly abused her own child was not harmless, so the defendant’s conviction was reversed. Garner v. State, 711 P.2d 1191 (Alaska Ct. App. 1986).

Sentence upheld. —

In a case where defendant was convicted of manslaughter, first-degree assault, and driving under the influence arising from a collision between a snowmobile and a dog sled, a trial court properly allowed the State to introduce evidence of defendant’s cocaine use prior to the collision because it was relevant to prove that defendant acted recklessly and was under the influence. The State presented expert testimony that cocaine was a stimulant and that it could cause a person to be inattentive, to have difficulty with complex, divided-attention tasks such as driving, and to engage in aggressive, risk-taking behavior. Tickett v. State, 334 P.3d 708 (Alaska Ct. App. 2014).

Superior court did not err when it used the clear and convincing standard when deciding whether the State of Alaska established the particularly vulnerable victim aggravator, under AS 12.55.155(c)(5) , because defendant agreed pursuant to a plea agreement for manslaughter that two aggravating factors—use of a dangerous instrument and most serious conduct—applied. Additionally, once any aggravator was established, the superior court was allowed to increase the term of imprisonment up to the maximum term. Degenstein v. State, — P.3d — (Alaska Ct. App. July 31, 2019).

Sentence for manslaughter while driving under the influence, upheld. —

See Clemans v. State, 680 P.2d 1179 (Alaska Ct. App. 1984).

The addition of five years of suspended imprisonment to a five-year presumptive term for drunk-driving manslaughter was not clearly mistaken, where the aggravating factor for increasing the sentence was defendant’s decision to operate a motor vehicle after having consumed enough intoxicating liquor to raise his blood-alcohol level to almost twice the legal maximum. Garner v. State, 711 P.2d 1191 (Alaska Ct. App. 1986); Krasovich v. State, 731 P.2d 598 (Alaska Ct. App. 1987).

Sentence the trial judge imposed for manslaughter, assault in the third degree, and failure to render assistance to an injured person after an accident was not clearly mistaken; the judge’s findings were supported by the record, as defendant was highly intoxicated and yet chose to drive, and in spite of the fact that he knew he struck a person, a young boy of thirteen, defendant fled from the scene, leaving the victim to die. Bottcher v. State, 262 P.3d 224 (Alaska Ct. App. 2011), aff'd, 300 P.3d 528 (Alaska 2013).

Multiple sentences for multiple violations of statute. —

See State v. Dunlop, 721 P.2d 604 (Alaska 1986). See also AS 11.41.135 and notes thereto .

Sentence upheld. —

See Gregory v. State, 492 P.2d 108 (Alaska 1971); Hughes v. State, 513 P.2d 1115 (Alaska 1973); Spearman v. State, 543 P.2d 202 (Alaska 1975); Layland v. State, 549 P.2d 1182 (Alaska 1976); Godwin v. State, 554 P.2d 453 (Alaska 1976); Bishop v. State, 573 P.2d 856 (Alaska 1978); Alpiak v. State, 581 P.2d 664 (Alaska 1978); Ripley v. State, 590 P.2d 48 (Alaska 1979); Jacinth v. State, 593 P.2d 263 (Alaska 1979); LaBarbera v. State, 598 P.2d 947 (Alaska 1979); Peterson v. State, 602 P.2d 1254 (Alaska 1979); Adkinson v. State, 611 P.2d 528 (Alaska), cert. denied, 449 U.S. 876, 101 S. Ct. 219, 66 L. Ed. 2d 97 (U.S. 1980); Rodriguez v. State, 613 P.2d 1255 (Alaska 1980); Nygren v. State, 616 P.2d 20 (Alaska 1980); Richards v. State, 616 P.2d 870 (Alaska 1980); Phillips v. State, 625 P.2d 816 (Alaska 1980); Maloney v. State, 667 P.2d 1258 (Alaska Ct. App. 1983); Hughes v. State, 668 P.2d 842 (Alaska Ct. App. 1983), overruled, Todd v. State, 884 P.2d 668 (Alaska Ct. App. 1994); Adams v. State, 718 P.2d 164 (Alaska Ct. App. 1986).

Sentence of eight years with three years suspended for drunk driving manslaughter and two concurrent sentences of three years for second-degree assault were not clearly mistaken. Dresnek v. State, 718 P.2d 156 (Alaska), cert. denied, 479 U.S. 1021, 107 S. Ct. 679, 93 L. Ed. 2d 729 (U.S. 1986).

Imposition of an aggravated presumptive term of ten years for nonalcohol-related vehicular manslaughter and a consecutive suspended four-year sentence for assault in the second degree was not clearly mistaken, where defendant’s callousness and irresponsibility were evidenced by his conduct in eluding police officers, racing down a highway, and running red lights before colliding with another vehicle. Barney v. State, 786 P.2d 925 (Alaska Ct. App. 1990).

Despite defendant’s good record and considerable prospects for rehabilitation, the seriousness behind defendant’s actions in shooting and killing an unarmed, fleeing youth who had attempted to remove his commercial balloon-advertisement warranted the imposition of the five-year term for manslaughter. Lowe v. State, 866 P.2d 1320 (Alaska Ct. App. 1994).

A sentence of 25 years’ imprisonment with seven years suspended (18 years to serve) for a vehicular homicide involving three deaths was supportable under Alaska sentencing law. Pusich v. State, 907 P.2d 29 (Alaska Ct. App. 1995).

Composite sentence of 25 years’ imprisonment with six years suspended, for conviction of one count of manslaughter and five counts of first-degree assault, was not clearly mistaken where defendant killed one person and seriously injured four others in two separate incidents while driving a snow machine in an intoxicated condition. Ting v. Municipality of Anchorage, 929 P.2d 673 (Alaska Ct. App. 1997).

Composite sentence of twenty-one and one-half years with five years suspended for first degree assault and manslaughter was not clearly mistaken given defendant’s background and the severity of his crimes. The trial judge could properly take into account the fact that defendant’s crimes involved three separate victims. Geisinger v. State, — P.3d — (Alaska Ct. App. Dec. 22, 2010) (memorandum decision).

In a case where defendant was convicted of manslaughter, first-degree assault, and driving under the influence arising from a collision between a snowmobile and a dog sled, a sentence of 19 years, with 15 years to serve, was not clearly mistaken because the trial court carefully considered the relevant sentencing criteria; defendant had prior contact with the juvenile court, had committed another felony after these offenses, and defendant had taken positive steps towards improvement. However, the trial court determined that death and serious injury were foreseeable consequences of operating a snow machine along a public trail at a high rate of speed, and with reduced visibility, while under the influence. Tickett v. State, 334 P.3d 708 (Alaska Ct. App. 2014).

Sentence too lenient. —

See State v. Abraham, 566 P.2d 267 (Alaska 1977).

A sentence of less than one year’s actual incarceration for drunken-driver manslaughter was too lenient. State v. Lamebull, 653 P.2d 1060 (Alaska Ct. App. 1982).

Sentence held excessive. —

See Jones v. State, 744 P.2d 410 (Alaska Ct. App. 1987).

Sentence modified. —

See Notaro v. State, 608 P.2d 769 (Alaska 1980).

Remand for sentence review. —

See Padie v. State, 594 P.2d 50 (Alaska 1979).

Applied in

Pena v. State, 684 P.2d 864 (Alaska 1984); Williams v. State, 737 P.2d 360 (Alaska Ct. App. 1987); Wickham v. State, 770 P.2d 757 (Alaska Ct. App. 1989).

Quoted in

Valentine v. State, 617 P.2d 751 (Alaska 1980); Walsh v. State, 677 P.2d 912 (Alaska Ct. App. 1984); Connolly v. State, 758 P.2d 633 (Alaska Ct. App. 1988).

Cited in

Sears v. State, 653 P.2d 349 (Alaska Ct. App. 1982); Pena v. State, 664 P.2d 169 (Alaska Ct. App. 1983); Martin v. State, 664 P.2d 612 (Alaska Ct. App. 1983); Walsh v. State, 677 P.2d 912 (Alaska Ct. App. 1984); Davis v. State, 684 P.2d 147 (Alaska Ct. App. 1984); State v. Jones, 751 P.2d 1379 (Alaska Ct. App. 1988); Roark v. State, 758 P.2d 644 (Alaska Ct. App. 1988); Ames v. Endell, 856 F.2d 1441 (9th Cir. Alaska 1988); Beagel v. State, 813 P.2d 699 (Alaska Ct. App. 1991); Puzewicz v. State, 856 P.2d 1178 (Alaska Ct. App. 1993); Panther v. Hames, — F.3d —, 991 F.2d 576 (9th Cir. Alaska 1993); Steve v. State, 875 P.2d 110 (Alaska Ct. App. 1994); Blank v. State, 3 P.3d 359 (Alaska Ct. App. 2000); Morrison v. State, 7 P.3d 955 (Alaska Ct. App. 2000); Ned v. State, 119 P.3d 438 (Alaska Ct. App. 2005); State v. Kalmakoff, 122 P.3d 224 (Alaska Ct. App. 2005); Blank v. State, 142 P.3d 1210 (Alaska Ct. App. 2006); Cleveland v. State, 143 P.3d 977 (Alaska Ct. App. 2006); Blodgett v. Blodgett (In re Estate of Blodgett), 147 P.3d 702 (Alaska 2006); Allstate Ins. Co. v. Falgoust, 160 P.3d 134 (Alaska 2007); Harapat v. State, 174 P.3d 249 (Alaska Ct. App. 2007); Hinson v. State, 199 P.3d 1166 (Alaska Ct. App. 2008); Tice v. State, 199 P.3d 1175 (Alaska Ct. App. 2008); Lapp v. State, 220 P.3d 534 (Alaska Ct. App. 2009); Johnson v. State, 224 P.3d 105 (Alaska 2010); Johnson v. State, 421 P.3d 134 (Alaska Ct. App. 2018).

Collateral references. —

Who other than actor is liable for manslaughter, 95 ALR2d 175.

Failure to provide medical or surgical attention, 100 ALR2d 483.

Insulting words as provocation of homicide or as reducing the degree thereof, 2 ALR3d 1292.

Woman upon whom abortion is committed or attempted as accomplice for purposes of rule requiring corroboration of accomplice testimony, 34 ALR3d 858.

Homicide predicated on improper treatment of disease or injury, 45 ALR3d 114.

Unintentional killing of or injury to third person during attempted self-defense, 55 ALR3d 620.

Criminal liability where act of killing is done by one resisting felony or other unlawful act committed by defendant, 56 ALR3d 239.

Homicide as affected by lapse of time between injury and death, 60 ALR3d 1323.

Necessity and effect, in homicide prosecution, of expert medical testimony as to cause of death, 65 ALR3d 283.

Proof of live birth in prosecution for killing newborn child, 65 ALR3d 413.

What constitutes “imminently dangerous” act within homicide statute, 67 ALR3d 900.

Propriety of predicating manslaughter conviction on violation of local ordinance or regulation not dealing with motor vehicles, 85 ALR3d 1072.

Spouse’s confession of adultery as affecting degree of homicide involved in killing spouse or his or her paramour, 93 ALR3d 925.

Criminal liability for injury or death caused by operation of pleasure boat, 8 ALR4th 886.

Criminal liability for death resulting from unlawfully furnishing intoxicating liquor or drugs to another, 29 ALR7th 8.

Notes to Decisions

Annotator’s notes. —

Many of the cases cited in the notes below were decided under former AS 11.15.040 and 11.15.080.

Constitutionality. —

This section is not unconstitutionally vague as the terms “substantial risk” and “gross deviation” are of general usage, commonly understood by the public, and sufficiently certain to give the requisite, guiding objective criteria for constitutional application. Panther v. Hames, — F.3d —, 991 F.2d 576 (9th Cir. Alaska 1993).

Alaska’s new criminal code totally abandons the unlawful act approach to manslaughter and contains no misdemeanor-manslaughter provisions. Keith v. State, 612 P.2d 977 (Alaska 1980).

For case holding that the misdemeanor-manslaughter doctrine was encompassed within former manslaughter statute, see Keith v. State, 612 P.2d 977 (Alaska 1980).

A criminal negligence theory was within the purview of former AS 11.15.040. DeSacia v. State, 469 P.2d 369 (Alaska 1970).

Meaning of “culpable negligence” under former AS 11.15.080. —

See United States v. Barbeau, 92 F. Supp. 196, 12 Alaska 725 (D. Alaska 1950), aff'd, 193 F.2d 945, 13 Alaska 551 (9th Cir. Alaska 1951); DeSacia v. State, 469 P.2d 369 (Alaska 1970); Stork v. State, 559 P.2d 99 (Alaska 1977).

Under the former culpable negligence statute it was assumed that purpose or intent to kill is absent. Giles v. United States, 144 F.2d 860, 10 Alaska 455 (9th Cir. Alaska 1944); United States v. Barbeau, 92 F. Supp. 196, 12 Alaska 725 (D. Alaska 1950), aff'd, 193 F.2d 945, 13 Alaska 551 (9th Cir. Alaska 1951).

Intent not element. —

In Alaska, negligent homicide is a form of manslaughter, and intent is not an element of the crime. O'Leary v. State, 604 P.2d 1099 (Alaska 1979), overruled, Evans v. State, 645 P.2d 155 (Alaska 1982).

Manslaughter distinguished. —

Criminally negligent homicide is not the same as manslaughter based on recklessness under the relevant statute since recklessness requires conscious disregard of a known risk, while in contrast, the essence of criminal negligence is failure to perceive the risk. Edgmon v. State, 702 P.2d 643 (Alaska Ct. App. 1985).

The fact that a given defendant did not perceive a risk because he or she was mentally retarded, because he or she had bad eyesight or bad hearing, or because his or her experience had not fitted him or her to appreciate the risk would be irrelevant in proving negligence but highly relevant with regard to recklessness, whether the given individual was intoxicated or not, and consequently, elimination of intoxication as a basis for a finding that a specific individual did not appreciate a specific risk does not totally destroy the distinction between criminal negligence and recklessness. Edgmon v. State, 702 P.2d 643 (Alaska Ct. App. 1985).

The sole distinction between recklessness and criminal negligence — and, by extension, between manslaughter and criminally negligent homicide — lies in the accused’s awareness of the risk that is caused by the accused’s conduct. Panther v. State, 780 P.2d 386 (Alaska Ct. App. 1989).

There was only one statutory crime of manslaughter in Alaska, although it was defined in two statutes, former AS 11.15.040 (manslaughter) and former AS 11.15.080 (negligent homicide). Des Jardins v. State, 551 P.2d 181 (Alaska 1976).

Involuntary manslaughter is not a lesser crime than voluntary manslaughter. Des Jardins v. State, 551 P.2d 181 (Alaska 1976).

Negligent homicide is included in a charge of murder. Barbeau v. United States, 193 F.2d 945, 13 Alaska 551 (9th Cir. Alaska 1951), cert. denied, 343 U.S. 968, 72 S. Ct. 1064, 96 L. Ed. 1364 (U.S. 1952).

Every essential element of manslaughter by negligent homicide is necessarily included in the offense of murder in the first degree. United States v. Barbeau, 92 F. Supp. 196, 12 Alaska 725 (D. Alaska 1950), aff'd, 193 F.2d 945, 13 Alaska 551 (9th Cir. Alaska 1951).

There is no diminished capacity defense to the crime of negligent manslaughter, since manslaughter is a general rather than a specific intent crime. O'Leary v. State, 604 P.2d 1099 (Alaska 1979), overruled, Evans v. State, 645 P.2d 155 (Alaska 1982).

Standard of care. —

It is constitutional for the legislature to specify a single standard of care for criminally negligent homicide, even when the defendant is a young adult under the age of 25, or even a teenager as young as 16; jurors found that defendant acted with criminal negligence precisely because she did not appreciate the substantial and unjustifiable danger to her mother’s life, and defendant was properly held to an adult standard of care when the jury assessed whether she acted with criminal negligence in causing the death of her mother. Waterman v. State, 342 P.3d 1261 (Alaska Ct. App. 2015).

Proof required. —

The state, in a criminal case under former AS 11.15.080, was not required to prove beyond a reasonable doubt that the defendant’s negligence was the sole proximate cause of the death. Wren v. State, 577 P.2d 235 (Alaska 1978).

Where a defendant negligently created a risk of death to another person, the fact that the person actually died as a result of the combination of that negligence plus some other contributing factor did not serve to exculpate. Wren v. State, 577 P.2d 235 (Alaska 1978).

A decedent’s conduct might be considered under former AS 11.15.080 insofar as it had a bearing on the defendant’s alleged negligence. Negligence of the deceased might also be considered with reference to the issue of whether the defendant’s culpable negligence had been the proximate cause of death. Otherwise, any negligence of the deceased was irrelevant. Wren v. State, 577 P.2d 235 (Alaska 1978).

The crime of negligent homicide is established upon proof that the accused was driving while intoxicated and that such act was the proximate cause of death. Lupro v. State, 603 P.2d 468 (Alaska 1979).

Where there is sufficient evidence that the driver was intoxicated at the time of the accident, the state need only show beyond a reasonable doubt that the intoxication was the cause of the victim’s death. Lupro v. State, 603 P.2d 468 (Alaska 1979).

In order to prove that defendant was guilty of criminally negligent homicide in failing to provide her 21-month-old child with medical care after he had been struck in his abdomen, the state needed to prove not only that defendant had acted with criminal negligence in failing to obtain medical treatment but also that her criminally negligent failure to obtain medical treatment was a legal or proximate cause of his death. Pinkerton v. State, 784 P.2d 671 (Alaska Ct. App. 1989).

When a defendant is charged with criminally negligent homicide, one of the elements the State must prove is that the defendant failed to perceive a risk of human death that was substantial and unjustifiable — of such a nature and degree that the failure to perceive it constituted a gross deviation from the standard of care that a reasonable person would observe in the situation. Waterman v. State, 342 P.3d 1261 (Alaska Ct. App. 2015).

Evidence was sufficient to support defendant's conviction for criminally negligent homicide because the jury could have concluded that defendant's actions were a gross deviation from the standard of conduct that a reasonable person would have observed in using equipment not suitable for diving—specifically, a compressor not designed to create breathable air, an air hose that was too narrow, the wrong type of oil for the compressor, and a poorly maintained filter—when the victim died from carbon monoxide poisoning while diving with defendant. Wodyga v. State, — P.3d — (Alaska Ct. App. July 17, 2019) (memorandum decision).

Reckless vs. criminally negligent. —

To be reckless, a person must be aware of and consciously disregard a risk, while a person is criminally negligent if he or she fails to perceive, and, therefore, disregards the risk in question. When a defendant is intoxicated and, therefore, unaware of a risk, the state is still obligated to prove that the defendant, given his faculties, his education, his experience, and his intelligence, would have perceived that risk but for his intoxication. St. John v. State, 715 P.2d 1205 (Alaska Ct. App. 1986).

Statutory presumption concerning intoxication. —

A jury considering drunk driving, assault (involving motor vehicles), manslaughter, and negligent homicide cases should be made aware of the statutory presumption concerning intoxication in AS 28.35.033(a) . Dresnek v. State, 718 P.2d 156 (Alaska), cert. denied, 479 U.S. 1021, 107 S. Ct. 679, 93 L. Ed. 2d 729 (U.S. 1986).

Cross-examination of psychiatrist. —

Allowing the prosecutor to cross-examine a psychiatrist by reference to defendant’s prior convictions for driving while intoxicated was not an abuse of discretion, where defendant, by putting his mens rea directly in issue through the witness’s expert testimony, opened the witness up to cross-examination about the basis for his opinion. Jansen v. State, 764 P.2d 308 (Alaska Ct. App. 1988).

Indictment supported by evidence. —

Indictment which in negligent homicide charge stated that defendant did unlawfully, by culpable negligence, kill a child by striking the child with his hands with excessive force and violence, was supported by the evidence although the pathologist who examined the infant told the grand jury that death resulted from a “blunt force injury of some kind” to the head, and no evidence showed that defendant ever struck the child on the head, since a “blunt force injury to the head” does not necessarily require a blow to the head itself; the term “striking,” as used in the indictment was not limited to a blow or a punch, but might include other forms of violent physical conduct, and the grand jury testimony established that defendant had severely spanked the child and then bounced him against the floor. Harvey v. State, 604 P.2d 586 (Alaska 1979).

Jury instructions. —

Counsel was not incompetent for failing to request a jury instruction on the lesser offense of third-degree assault under AS 11.41.220 because defendant would not necessarily have committed third-degree assault if he committed first-degree assault in the manner alleged by the State. Geisinger v. State, 498 P.3d 92 (Alaska Ct. App. 2021).

Conviction reversed because of inconsistent verdicts. —

See Davis v. State, 684 P.2d 147 (Alaska Ct. App. 1984).

Sentencing considerations. —

In any case involving loss of life, and particularly in an offense involving driving while under the influence of alcohol, major considerations in sentencing are the goals to deterrence of the members of the community, and community condemnation of the offender and the offense so as to reaffirm societal norms and to maintain respect for those norms. Rosendahl v. State, 591 P.2d 538 (Alaska 1979).

Sentence for negligent homicide upheld. —

See Sandvik v. State, 564 P.2d 20 (Alaska 1977); Annayoc v. State, 590 P.2d 904 (Alaska 1979); Rosendahl v. State, 591 P.2d 538 (Alaska 1979); Connors v. State, 652 P.2d 110 (Alaska Ct. App. 1982).

Five-year sentence for negligent homicide was not excessive, where defendant had a record of eight traffic violations (six for speeding), had twice been convicted of driving while intoxicated, and was driving with a suspended license. Jansen v. State, 764 P.2d 308 (Alaska Ct. App. 1988).

Superior court correctly applied the aggravator set forth in AS 12.55.155(c)(18)(A) to the facts, and the weight it gave the aggravator did not result in a sentence that was clearly mistaken, because defendant stipulated to the applicability of the factor in his plea agreement, and he agreed to plead guilty to criminally negligent homicide; the crime was committed against his roommate, ostensibly a member of the social unit made up of those living together in the same dwelling as defendant. State v. Tofelogo, 444 P.3d 151 (Alaska 2019).

Defendant's sentence for negligent homicide was supported by the record because defendant was swinging a very sharp, 12-inch long knife in close proximity to his roommate in an enclosed, shared living space, and there was no indication that the roommate desired the interaction; regardless of defendant's intent, his willingness to engage in the dangerous and intimidating behavior could be read as implicating the purpose of the aggravating factor set forth in AS 12.55.155(c)(18)(A) . State v. Tofelogo, 444 P.3d 151 (Alaska 2019).

Sentence for negligent homicide involving a vehicle disapproved as too lenient. —

See State v. Lupro, 630 P.2d 18 (Alaska Ct. App. 1981). (Decided under former AS 11.15.080).

Sentence excessive. —

Sentence of five years with three years suspended was clearly mistaken where defendant was young, had no prior criminal record, the evidence showed that at the time of the accident defendant had been drinking but was not intoxicated, and the major cause of the accident appeared to have been that defendant was operating the car carelessly, because she had been out all night with friends and had not had enough sleep. Sears v. State, 653 P.2d 349 (Alaska Ct. App. 1982).

A sentence of five years with three years suspended for criminally negligent homicide was excessive where defendant was a first offender and the sentencing court did not find any significant aggravating factors or extraordinary circumstances surrounding defendant’s offense; the court of appeals remanded for a reduction of the sentence to three years with two years suspended. Shaisnikoff v. State, 690 P.2d 25 (Alaska Ct. App. 1984).

Sentence of five years with three years suspended for first offender defendant was improper absent prior notice and a finding of a substantial aggravating factor or extraordinary circumstances warranting harsher treatment of the defendant than he would have been subject to as a second felony offender. Sorenson v. State, 938 P.2d 1084 (Alaska Ct. App. 1997).

Application of “slayer statute”. —

Because a criminally negligent homicide under this section is unintentional homicide, the effects of the “slayer statute,” AS 13.12.803(k) , may be avoided if it is proved that applying that statute to one convicted under this section results in manifest injustice. Blodgett v. Blodgett (In re Estate of Blodgett), 147 P.3d 702 (Alaska 2006).

Person convicted under this section disqualified from possessing firearm. —

Person convicted for criminally negligent homicide under this section and sentenced to five years’ imprisonment was properly barred from firearm possession under 18 U.S.C. § 922(g)(1). Barry v. State, 925 P.2d 255 (Alaska Ct. App. 1996).

Applied in

Smith v. State, 739 P.2d 1306 (Alaska Ct. App. 1987).

Cited in

Stiegele v. State, 685 P.2d 1255 (Alaska Ct. App. 1984); Capwell v. State, 823 P.2d 1250 (Alaska Ct. App. 1991); Puzewicz v. State, 856 P.2d 1178 (Alaska Ct. App. 1993); Steve v. State, 875 P.2d 110 (Alaska Ct. App. 1994); Johnson v. State, 421 P.3d 134 (Alaska Ct. App. 2018); Tofelogo v. State, — P.3d — (Alaska Ct. App. Nov. 20, 2019).

Collateral references. —

Druggist’s criminal responsibility for death or injury in consequence of mistake, 55 ALR2d 714.

Criminal responsibility of motor vehicle operator for accident arising from physical defect, illness, drowsiness, or falling asleep, 63 ALR2d 983.

What amounts to negligence within meaning of statutes penalizing negligent homicide by operation of a motor vehicle, 20 ALR3d 473.

Criminal liability for injury or death caused by operation of pleasure boat, 8 ALR4th 886.

Nature and elements of alcohol-related vehicular homicide, 64 ALR4th 166.

Notes to Decisions

Constitutionality of section. —

Alaska’s constitutional prohibition against double jeopardy does not bar multiple sentences for multiple victims where one statute has been violated several times. State v. Dunlop, 721 P.2d 604 (Alaska 1986), overruling, Thessen v. State, 508 P.2d 1192 (Alaska 1973), and State v. Souter, 606 P.2d 399 (Alaska 1980), as well as State v. Gibson, 543 P.2d 406 (Alaska 1975), overruled on other grounds, State v. Dunlop, 721 P.2d 604 (Alaska 1986), to the extent it affirmed Thessen .

Cited in

Nukapigak v. State, 663 P.2d 943 (Alaska 1983).

Notes to Decisions

Cited in

Blodgett v. Blodgett (In re Estate of Blodgett), 147 P.3d 702 (Alaska 2006).

Notes to Decisions

Analysis

• I. General Consideration
• II. PARAGRAPH (a)(1)
• III. Former Law

Notes to Decisions

Former law. —

See notes to AS 11.41.200 under analysis line III.

Constitutional considerations. —

The Alaska or federal constitutions did not preclude defendant’s conviction of first-degree assault, a class A felony even though the same conduct under the same circumstances could have resulted in his conviction of second-degree assault, a class B felony. Hart v. State, 702 P.2d 651 (Alaska Ct. App. 1985).

Prosecution not precluded by pleading no contest to negligent driving. —

Negligent driving was an infraction, not an offense for double jeopardy purposes, and pleading no contest to negligent driving did not preclude a subsequent prosecution for the offense of second-degree assault. Carlson v. State, 676 P.2d 603 (Alaska Ct. App. 1984).

Belt as “dangerous instrument”. —

Defendant’s use of a belt to beat his children posed a sufficient threat of serious physical injury to amount to the use of a “dangerous instrument.” S.R.D. v. State, 820 P.2d 1088 (Alaska Ct. App. 1991).

Flare gun as “dangerous instrument”. —

Defendant's convictions for second-degree assault and third-degree assault were appropriate where the defendant pulled out a flare gun, held it to the victim's neck, and fired it during an argument outside of a bar. Although the trial court should have given a jury instruction clarifying the definition of a “dangerous instrument,” defendant's flare gun was a dangerous instrument as it was used in a manner that created a substantial risk that the victim would suffer serious physical injury. Dulier v. State, 451 P.3d 790 (Alaska Ct. App. 2019).

Thumb as “dangerous instrument”. —

Defendant was properly convicted of second-degree assault because his thumb qualified as a “dangerous instrument” where he used, or attempted to use, it in a manner that rendered it capable of gouging out a police officer's eye. Reasonable jurors could conclude that the State had disproved defendant's claim of self-defense. Barclay v. State, — P.3d — (Alaska Ct. App. Mar. 29, 2017) (memorandum decision).

Inoperable firearm as “dangerous instrument.” —

In a prosecution for assault in the second degree, an instruction to the jury that any firearm, whether or not operable, was a “dangerous weapon” correctly stated the law. Rhames v. State, 907 P.2d 21 (Alaska Ct. App. 1995).

Serious physical injury. —

“Serious” injury is one that mars a victim’s physical appearance and causes a degree of unattractiveness sufficient to bring negative attention or embarrassment, and a “protracted” disfigurement does not have to be permanent; therefore, an assault by biting a victim and leaving a facial scar that was not temporary or transient after a reasonable healing period was serious. Akaran v. State, — P.3d — (Alaska Ct. App. May 4, 2005) (memorandum decision).

Statutory presumption concerning intoxication. —

A jury considering drunk driving, assault (involving motor vehicles), manslaughter, and negligent homicide cases should be made aware of the statutory presumption concerning intoxication in AS 28.35.033(a) . Dresnek v. State, 697 P.2d 1059 (Alaska Ct. App. 1985), aff'd, 718 P.2d 156 (Alaska 1986).

Not lesser included offense of first-degree assault. —

Third-degree assault, not second-degree assault, is a lesser included offense of first-degree assault. Komakhuk v. State, 719 P.2d 1045 (Alaska Ct. App. 1986).

Self-defense. —

Defendant’s assault on the victim was not justified where there was no violence or threat of violence until defendant cut the victim in the face with a knife, whereupon defendant threatened to kill the victim twice. A reasonable person would not conclude that any force, even nondeadly force, was necessary to defend the attacker against the victim. Silvera v. State, 244 P.3d 1138 (Alaska Ct. App. 2010).

Evidence was sufficient to disprove defendant’s claim of self defense and convict him of second-degree assault because the evidence showed that defendant did not tell the witnesses there was a knife involved when he was confronted during the assault on the victim; he did not mention a knife during his 15-minute interview with police a short time after the assault; the first time that defendant claimed that a knife was involved was during his testimony at trial; and defendant described a fairly large knife — one with a six-inch blade — which would be difficult to overlook, but the witnesses did not see the victim with a knife, nor did the police find a knife when they arrived at the scene. Katongan v. State, — P.3d — (Alaska Ct. App. May 18, 2016) (memorandum decision).

Merger. —

When defendant was convicted of assault in the second degree and assault in the third degree the offenses had to merge because, under the facts of the case, there was no difference in conduct or intent sufficient to warrant multiple punishments. Cronce v. State, 216 P.3d 568 (Alaska Ct. App. 2009).

Trial court erred in convicting defendant of second- and fourth-degree assault because the convictions merged with his first-degree assault conviction where the State presented its case for first-degree assault as an ongoing assault encompassing multiple acts that resulted in serious physical injury. Parks v. State, — P.3d — (Alaska Ct. App. June 21, 2017) (memorandum decision).

Effect of no contest plea. —

Where the charging document did not allege that the defendant intentionally caused physical injury to the victim, but that he “recklessly” inflicted injury, the defendant did not concede the element of intent to cause physical injury when he pleaded no contest. Ashenfelter v. State, 988 P.2d 120 (Alaska Ct. App. 1999).

Jury instructions. —

In prosecution for drunk driving manslaughter and second-degree assault, the trial court did not err in instructing the jury that if it found that there was .10% or more alcohol in defendant’s blood at the time of the accident, it could infer that he was under the influence of intoxicating liquor. Dresnek v. State, 697 P.2d 1059 (Alaska Ct. App. 1985), aff'd, 718 P.2d 156 (Alaska 1986).

Conviction upheld. —

See Stapleton v. State, 696 P.2d 180 (Alaska Ct. App. 1985).

Testimony indicating that a mother, accused of seriously injuring her two-month-old child, showed little affection for her child and little interest in him while he was being treated at the hospital, was relevant evidence for the grand jury and the trial court did not err when it denied defendant’s motion to dismiss the indictment. Willis v. State, 57 P.3d 688 (Alaska Ct. App. 2002).

Where defendant beat and sexually assaulted his mother’s boyfriend, convictions for both second degree and fourth degree assault were adequately supported by the testimony of the boyfriend and the substantial circumstantial evidence presented. Iyapana v. State, 284 P.3d 841 (Alaska Ct. App. 2012).

Defendant was properly convicted of second-degree assault because, even without a special instruction on the use of hands as a “dangerous instrument,” given the manner in which the case was litigated and argued to the jury, the jury would have understood that it was being asked to decide whether defendant had used his hands in a manner that actually created a substantial risk of death or serious physical injury to his wife; Defendant was trained in martial arts, straddled his wife, grabbed her chin with one hand and the back of her head with the other, and forcefully twisted her neck. Bowlin v. State, — P.3d — (Alaska Ct. App. Oct. 7, 2015) (memorandum decision).

Defendant was properly convicted of second- and fourth-degree assault, second-degree failure to stop at the direction of a peace officer, and misdemeanor driving under the influence because, while the superior court should have merged his two convictions for second-degree assault, defendant's attack on his ex-girlfriend and her new boyfriend was unprovoked and left the boyfriend permanently disfigured, defendant failed a sobriety test, and the sentencing judge properly rejected the proposed mitigator where defendant's conduct was within the “heartland” of the definition of the offenses, his prospects for rehabilitation were “guarded,” and he had no remorse. Lewis v. State, — P.3d — (Alaska Ct. App. Aug. 31, 2016) (memorandum decision).

Defendant was properly convicted of second-degree assault because a reasonable juror could have concluded that defendant, a 300-pound man, subjected the victim to a substantial risk of death, and that defendant did not act in self-defense where, after the victim knocked on the window of the vehicle in which he was seated, he punched, kicked, stomped on the victim’s head, and left the victim unconscious on the ground, lying in a pool of his own blood. The victim suffered nerve damage, walked with a limp, his eye no longer produced adequate moisture, and scar tissue on his eyelid affected his ability to blink. Lundy v. State, — P.3d — (Alaska Ct. App. July 27, 2016) (memorandum decision).

Conviction under amended indictment held error. —

See Bell v. State, 716 P.2d 1004 (Alaska Ct. App. 1986).

Conviction reversed. —

Since the scope of the redirect examination of a witness exceeded that which was permissible under the doctrine of curative admissibility, a reversal was in order due to the inflammatory nature of the evidence presented. Bentley v. State, 711 P.2d 544 (Alaska Ct. App. 1985).

Defendant’s conviction of assault for physical abuse of a three-year-old girl was reversed where the trial court erred in admitting the testimony concerning the girl’s out-of-court statements; the statements were not admissible as excited utterances where the evidence did not show that the child was emotionally engulfed by the situation, either inferentially from the time and circumstances, or actually from the statements of the witnesses; and the child did not testify at trial and no showing was made as to her unavailability. The child’s statements made to a doctor identifying the defendant as the child’s assailant, furthermore, were inadmissible because they were not sufficiently related to diagnosis or treatment. Sluka v. State, 717 P.2d 394 (Alaska Ct. App. 1986).

Where defendant was indicted for assault in the first degree but convicted of second-degree assault on the theory that he had breached his duty as a parent to protect his child, after becoming aware of the threat of physical abuse by the child’s mother, the conviction for an offense different than the one charged was a fatal variance, and required reversal. Michael v. State, 805 P.2d 371 (Alaska 1991).

Although the trial court did not err in admitting evidence of defendant’s prior assaults on his girlfriend, it was an abuse of discretion to admit evidence of defendant’s assaults on a prior girlfriend; that evidence did go to show defendant’s tendency to become very angry in domestic situations, and to threaten violence, but the state had available much more relevant evidence to establish this character trait. Riggins v. State, 101 P.3d 1060 (Alaska Ct. App. 2004).

Evidence was not legally sufficient to support defendant’s second-degree assault conviction because it was not reasonably foreseeable that a police officer would sustain protracted or permanent injury to his hand during his struggle with defendant. Although defendant wrestled, pushed, and otherwise struggled to escape the officer’s control, there was no evidence that defendant punched, kicked, or did anything else to inflict blunt force trauma on the officer. Schlosser v. State, 372 P.3d 272 (Alaska Ct. App. 2016).

Conviction and sentence upheld. —

See Figueroa v. State, 689 P.2d 512 (Alaska Ct. App. 1984).

Sentence upheld. —

See Williams v. State, 652 P.2d 478 (Alaska Ct. App. 1982); Brogdon v. State, 781 P.2d 1370 (Alaska Ct. App. 1989).

A 10-year total sentence with five years suspended for assault in the second degree was not excessive even though defendant was a first felony offender and the sentence exceeded the presumptive term for a second offender. Neakok v. State, 653 P.2d 658 (Alaska Ct. App. 1982).

Sentence of eight years with three years suspended for drunk driving manslaughter and two concurrent sentences of three years for second-degree assault were not clearly mistaken. Dresnek v. State, 697 P.2d 1059 (Alaska Ct. App. 1985), aff'd, 718 P.2d 156 (Alaska 1986).

Concurrent sentences of seven years with four years suspended for two counts of assault in the second degree, with probation for five years following incarceration, were upheld for a first felony offender where the offense could have been charged as a first-degree assault, the defendant registered a blood alcohol level of 0.165 percent two and one-half hours after the accident, and the defendant injured two persons in driving the wrong way on a bridge and caused the death of a fetus. Yerk v. State, 706 P.2d 341 (Alaska Ct. App. 1985).

Adjusted presumptive term of six years, with two years suspended, for assault in the second degree was not excessive. Richey v. State, 717 P.2d 407 (Alaska Ct. App. 1986).

Imposition of an aggravated presumptive term of ten years for nonalcohol-related vehicular manslaughter and a consecutive suspended four-year sentence for assault in the second degree was not clearly mistaken, where defendant’s callousness and irresponsibility were evidenced by his conduct in eluding police officers, racing down a highway, and running red lights before colliding with another vehicle. Barney v. State, 786 P.2d 925 (Alaska Ct. App. 1990).

Sentence of defendant with no prior criminal convictions to consecutive terms of four years with one year suspended and one year with six months suspended for two second-degree assaults and to a concurrent term of one year with nine months suspended for a third-degree assault, a composite term of five years with one and one-half years suspended was more favorable than the corresponding second offense presumptive term for the individual offenses and was not excessive. Splain v. State, 924 P.2d 435 (Alaska Ct. App. 1996).

Where, inter alia, defendants knew that their victim (their 2-month-old baby) was particularly vulnerable, the victim was a member of their household, and defendants’ conduct was among the most serious within the definition of the offense, because the evidence showed that the baby’s injuries had been life-threatening, sentences of six years to serve was not excessive. Willis v. State, 57 P.3d 688 (Alaska Ct. App. 2002).

Where defendant was convicted of second-degree sexual assault, second-degree assault, and manufacturing alcohol in a local option area, given defendant’s status as a third felony offender, his lengthy history of assaults and sexual assaults, his failure to be deterred by previous prison sentences, and his apparently inexplicable decision to inflict severe injuries on the victim, the trial judge was not clearly mistaken when he imposed a sentence that exceeded the normal 10-year ceiling. Cleveland v. State, 91 P.3d 965 (Alaska Ct. App. 2004).

When defendant was resentenced following convictions for sexual assault, robbery, and assault, 95-year composite sentence was not excessive because superior court was required to impose presumptive term for each count. Hunter v. State, 182 P.3d 1146 (Alaska Ct. App. 2008).

Following the revocation of defendant’s probation, a judge imposed the remainder of defendant’s previously suspended sentence, five years and four months of imprisonment. Although the defendant was a first time felony defendant, the judge’s findings were supported by the record and supported the sentence he imposed. Osborne v. State, — P.3d — (Alaska Ct. App. Apr. 11, 2012) (memorandum decision).

Sentence in assault case which included a five-year period of probation was proper. Defendant was convicted of hitting, biting and attempting to strangle the victim, had a history of misdemeanor offenses and of prior violence toward women. Tracey v. State, — P.3d — (Alaska Ct. App. Dec. 26, 2013) (memorandum decision).

Defendant’s sentence to the maximum of 10 years for second-degree assault as a fifth felony offender was proper and not excessive because the court based its worst-offender finding on the fact that defendant had intentionally committed a significant assault with a potentially deadly weapon, and that but for defendant’s inebriation and the timely intervention by witnesses, a much more substantial injury would have occurred; defendant’s criminal history included four prior felony convictions, 36 misdemeanor convictions, and 14 probation revocations over 22 years; he was unwilling or unable to seriously address his alcohol abuse problem; and he was unwilling or unable to follow court orders or release conditions while on probation or parole. Katongan v. State, — P.3d — (Alaska Ct. App. May 18, 2016) (memorandum decision).

Sentence held excessive. —

Where a 20-year-old first offender who seriously injured two persons while driving while intoxicated was sentenced to two five-year concurrent sentences after conviction of two counts of assault in the second degree, the concurrent sentences of five years were clearly mistaken and the superior court was ordered to impose sentences not exceeding four years. Though the trial judge was justified in imposing a sentence at the top of the range for first felony offenders, the case was not exceptional and the defendant should not have been sentenced to more than four years, the presumptive sentence for a second felony offender. Jacko v. State, 689 P.2d 506 (Alaska Ct. App. 1984).

Concurrent sentences of twenty years for two counts of second degree murder and five years for one count of assault in the second degree held excessive. Pears v. State, 698 P.2d 1198 (Alaska 1985).

Sentence for burglary, robbery and assault held excessive. —

See Larson v. State, 688 P.2d 592 (Alaska Ct. App. 1984).

Applied in

State v. Silas, 595 P.2d 651 (Alaska 1979); Kimbrell v. State, 647 P.2d 618 (Alaska Ct. App. 1982); Morton v. State, 684 P.2d 144 (Alaska Ct. App. 1984); Konrad v. State, 763 P.2d 1369 (Alaska Ct. App. 1988).

Quoted in

Stiegele v. State, 714 P.2d 356 (Alaska Ct. App. 1986); Cavanaugh v. State, 754 P.2d 757 (Alaska Ct. App. 1988).

Stated in

Coleman v. State, 621 P.2d 869 (Alaska 1980); Hess v. State, 435 P.3d 876 (Alaska 2018).

Cited in

State v. Ahwinona, 635 P.2d 488 (Alaska Ct. App. 1981); Larson v. State, 656 P.2d 571 (Alaska Ct. App. 1982); Davis v. State, 684 P.2d 147 (Alaska Ct. App. 1984); Stiegele v. State, 685 P.2d 1255 (Alaska Ct. App. 1984); Minano v. State, 690 P.2d 28 (Alaska Ct. App. 1984); State v. Jones, 751 P.2d 1379 (Alaska Ct. App. 1988); Mudge v. State, 760 P.2d 1046 (Alaska Ct. App. 1988); Jones v. State, 765 P.2d 107 (Alaska Ct. App. 1988); Erickson v. State, 824 P.2d 725 (Alaska Ct. App. 1991); State v. Hernandez, 877 P.2d 1309 (Alaska Ct. App. 1994); Pickard v. State, 965 P.2d 755 (Alaska Ct. App. 1998); Wardlow v. State, 2 P.3d 1238 (Alaska Ct. App. 2000); Ramsey v. State, 56 P.3d 675 (Alaska Ct. App. 2002); Phillips v. State, 70 P.3d 1128 (Alaska Ct. App. 2003); Timothy v. State, 90 P.3d 177 (Alaska Ct. App. 2004); Ward v. State, 120 P.3d 204 (Alaska Ct. App. 2005); Lamb v. Anderson, 126 P.3d 132 (Alaska 2005); Lamb v. Anderson, 147 P.3d 736 (Alaska 2006); Cooper v. State, 153 P.3d 371 (Alaska Ct. App. 2007); Heavyrunner v. State, 172 P.3d 819 (Alaska Ct. App. 2007); Lapp v. State, 220 P.3d 534 (Alaska Ct. App. 2009); Proctor v. State, 236 P.3d 375 (Alaska Ct. App. 2010); Phillips v. State, 271 P.3d 457 (Alaska Ct. App. 2012); Ahvakana v. State, 283 P.3d 1284 (Alaska Ct. App. 2012); Vent v. State, 288 P.3d 752 (Alaska Ct. App. 2012); Lane v. Ballot, 330 P.3d 338 (Alaska 2014); Faye H. v. James B., 348 P.3d 876 (Alaska 2015); Goldsbury v. State, 342 P.3d 834 (Alaska 2015); Smith v. State, 426 P.3d 1162 (Alaska Ct. App. 2018); Love v. State, 436 P.3d 1058 (Alaska Ct. App. 2018); Ahvakana v. State, 475 P.3d 1118 (Alaska Ct. App. 2020); Hedrick v. State, 474 P.3d 4 (Alaska Ct. App. 2020); Akelkok v. State, 475 P.3d 1136 (Alaska Ct. App. 2020); Sherwood v. State, 493 P.3d 230 (Alaska Ct. App. 2021); Barron-Katairoak v. State, — P.3d — (Alaska Ct. App. Apr. 17, 2019); James v. State, — P.3d — (Alaska Ct. App. Dec. 11, 2019); Kirk A. v. Barbara T., — P.3d — (Alaska July 21, 2021).

Collateral references. —

Attempt to commit assault as criminal offense. 93 ALR5th 683.

Dog as deadly or dangerous weapon for purposes of statutes aggravating offenses such as assault and robbery. 124 ALR5th 657.

Notes to Decisions

“Dangerous instrument” defined. —

Since “dangerous instrument” includes “deadly weapon,” and “deadly weapon” includes “any firearm,” which in turn is defined to include unloaded rifles, simple substitution yields an unambiguous statute that prohibits the use of an unloaded rifle to place another in fear of imminent serious physical injury. Siggelkow v. State, 648 P.2d 611 (Alaska Ct. App. 1982).

Former AS 11.41.210(a)(2) (prior to 1980 amendment) and AS 11.81.900(b) ) were not so ambiguous as to deprive defendant of fair warning that placing another in fear by means of an unloaded firearm, from any distance, was prohibited. Siggelkow v. State, 648 P.2d 611 (Alaska Ct. App. 1982).

Because of its solidity and mass, an automobile is normally easily capable of inflicting death or serious physical injury, and an automobile constitutes a “dangerous instrument” within the definition provided AS 11.81.900 , except in unusual circumstances. State v. Waskey, 834 P.2d 1251 (Alaska Ct. App. 1992).

In a prosecution of defendant, who while lying on his back and wearing heavy boots, kicked a police officer in the back of the head, for third degree assault, the State’s evidence was insufficient to support a finding that defendant’s shod foot constituted a “dangerous instrument” for purposes of the third degree assault statute, AS 11.41.220 . Hutchings v. State, 53 P.3d 1132 (Alaska Ct. App. 2002).

Where defendant grabbed the victim’s arm and jerked his torso into defendant’s truck, holding him there while he punched the victim in the face with enough force to fracture his facial bones in three places and causing bleeding in two areas around his brain, there was sufficient evidence for the jury to find that defendant struck the victim with a dangerous instrument sufficient to cause death or serious physical injury. Rupeiks v. State, 263 P.3d 57 (Alaska Ct. App. 2011).

Defendant was properly convicted of third-degree assault for recklessly inflicting physical injury by means of a dangerous instrument (strangling his girlfriend with his hands) because defendant offered nothing to show that the denial of his request for a continuance prejudiced the preparation of his defense or his rights, defendant failed to show that the superior court abused its discretion in denying his discovery request, the evidence of defendant’s prior assaults were properly admitted as directly relevant, more probative than prejudicial, and any potential for unfair prejudice could be adequately handled by a cautionary instruction, and the prosecutor’s closing argument about defendant’s failure to testify was not plainly erroneous. Timmer v. State (Alaska Ct. App. Aug. 31, 2016) (memorandum decision).

Defendant’s convictions for second-degree assault and third-degree assault were appropriate. Defendant drew a flare gun, held it to the victim’s neck, and fired it, during an argument outside a bar; athough the trial court should have given a jury instruction clarifying the definition of a “dangerous instrument,” defendant”s flare gun was a dangerous instrument as it was used in a manner that created a substantial risk that the victim would suffer serious physical injury. Dulier v. State, 451 P.3d 790 (Alaska Ct. App. 2019).

Hands as dangerous instruments.—

Jury convicted defendant of third-degree assault based on the only factual theory that was argued to it, that his hands qualified as a dangerous instrument because he attempted to strangle the victim; the prosecutor might have directed the jury to the wrong statutory subsection during closing arguments, but this did not alter the fact that the jury was properly instructed and there was sufficient evidence to support defendant's conviction. Galaktionoff v. State, — P.3d — (Alaska Ct. App. May 27, 2020) (memorandum decision).

Assault by use of motor vehicle. —

Speeding driver crossed the median, hitting another car and injuring its occupants. His blood alcohol level was in excess of .2. The evidence supported convictions for first degree and third degree assault, reckless driving, driving under the influence, and failing to render assistance in an accident where there is an injury. King v. State, — P.3d — (Alaska Ct. App. Dec. 30, 2009) (memorandum decision).

Evidence supported defendant’s convictions for second-degree robbery and third-degree assault because, when defendant’s accomplice stole a charity donation jar from the counter of a coffee shop and got into the back seat of defendant’s waiting vehicle, the shop owner and the owner’s child sustained minor injuries when they pursued the accomplice and fell to the ground after holding onto the vehicle for a short distance as defendant drove away in the vehicle. Gibson v. State, 346 P.3d 977 (Alaska Ct. App. 2015).

It was error to dismiss defendant's prosecution on grounds the statute was unconstitutional unless "places another person in fear" was construed to require proof defendant was aware of the victim and purposely directed defendant's conduct at the victim and that the grand jury evidence did not support such a finding because (1) “places another person in fear of injury” did not require proof defendant engaged in purposeful assault, and (2) the evidence showed defendant drove drunk on a public road, creating a danger of serious physical injury to others defendant might encounter, and the victim was among those foreseeably endangered by defendant's conduct. State v. Watts, 421 P.3d 124 (Alaska Ct. App. 2018).

Self-defense. —

In a case in which defendant was convicted of two counts of third-degree assault for striking two safety patrollers, who found him intoxicated and sleeping on the ground, and who were attempting to bring him to a sleep-off center, defendant's assaults on the two safety patrollers were not justified as self-defense because, although he initially cooperated with the safety patrollers, without warning or any expression of his unwillingness to go to the sleep-off center, defendant jerked his arm free and struck the first safety patroller in the chest and head; defendant straddled the second safety patroller; and, while on the ground, defendant continued punching and hitting the safety patrollers, until the police arrived and arrested him. Standifer v. State, — P.3d — (Alaska Ct. App. June 19, 2019) (memorandum decision).

“Medical treatment” defined. —

There was sufficient circumstantial evidence that defendant recklessly caused a child’s injuries; however, because the term “medical treatment” in this section is susceptible of more than one meaning, and under the meaning most favorable to defendant, the medical care the child received was not “treatment,” but arguably only diagnostic in nature, defendant’s third degree assault conviction was reversed. Wells v. State, 102 P.3d 972 (Alaska Ct. App. 2004).

Effect of no contest plea. —

Where the defendant pleaded no contest to third-degree assault, he was not entitled to dispute his guilt at the sentencing hearing, and the judge did not err in disregarding his protestations of innocence made under oath. Ashenfelter v. State, 988 P.2d 120 (Alaska Ct. App. 1999).

Lesser included offense of first-degree assault. —

Third-degree assault, not second-degree assault, is a lesser included offense of first-degree assault. Komakhuk v. State, 719 P.2d 1045 (Alaska Ct. App. 1986).

Merger. —

In defendant’s trial for first-degree robbery and third degree assault, defendants should not have received separate convictions and sentences because the assault conviction merged with the robbery conviction. Moore v. State, 218 P.3d 303 (Alaska Ct. App. 2009).

Instructions. —

In prosecution for third-degree assault, the trial court erred in failing to give a lesser-included instruction on disorderly conduct. Norbert v. State, 718 P.2d 160 (Alaska Ct. App. 1986).

There was no error in the refusal of defendant’s proposed jury instructions where the judge correctly instructed the jury that the state had to prove the defendant acted recklessly, rather than inadvertently, when he injured the victim in order to convict him of third-degree assault, and where the rejected instructions were superfluous. Ward v. State, 997 P.2d 528 (Alaska Ct. App. 2000).

Although the trial court erred in instructing that separation in time and context were merely factors as to whether defendant's various threatening statements constituted "repeated threats," the error was harmless because there was no reasonable possibility the jurors would have viewed defendant's statements in phone message as "repeated" threats; the total length of the threatening phone message was 1 minute, 20 seconds, and defendant's single-topic rant in that message lasted 45 seconds. Saunders v. State, 413 P.3d 1241 (Alaska Ct. App. 2018).

In a case in which defendant was convicted of two counts of third-degree assault for striking two Anchorage Safety Patrol employees, the trial court did not err in failing to give a unanimity instruction as the acts against the first safety patroller were properly treated as a single assault because the blows to the first safety patroller's chest and head occurred moments apart, during the same fight, and with apparently the same motive. Standifer v. State, — P.3d — (Alaska Ct. App. June 19, 2019) (memorandum decision).

Counsel was not incompetent for failing to request a jury instruction on the lesser offense of third-degree assault under AS 11.41.220 because defendant would not necessarily have committed third-degree assault if he committed first-degree assault in the manner alleged by the State. Geisinger v. State, 498 P.3d 92 (Alaska Ct. App. 2021).

Instructions on “dangerous instrument” held proper. —

Prosecutor made clear that he was not arguing that defendant's hands constituted a dangerous instrument in the abstract, and instead he argued that defendant's hands constituted a dangerous instrument because he actually used them to try to strangle the victim; any error in failing to provide a specific Konrad v. State instruction was harmless. Galaktionoff v. State, — P.3d — (Alaska Ct. App. May 27, 2020) (memorandum decision).

Charge as to fear of injury. —

Trial court properly refused to give a proposed instruction requiring the jury to find that the victim’s fear of injury was reasonable, where defendant was charged as a result of an incident in which he threatened a police officer with a chain saw, and, since the officer was not actually injured, the issue before the jury was whether he was placed in fear of serious physical injury. Wyatt v. State, 778 P.2d 1169 (Alaska Ct. App. 1989).

Trial court properly denied an instruction requiring the jury to find that the victims’ fear of injury was reasonable, where the victims, who were state troopers, testified that defendant’s actions in drawing a pistol and cocking it had placed them in fear of being shot and that this was their reason for disarming and arresting him. DeHart v. State, 781 P.2d 989 (Alaska Ct. App. 1989).

“Unequivocal, unconditional, immediate and specific.” —

The letters written by the defendant were not so “unequivocal, unconditional, immediate and specific as to the person threatened, as to convey a gravity of purpose and imminent prospect of execution,” and his probation should not have been revoked on the basis that the letters supplied proof that the defendant committed third-degree assault. Powell v. State, 12 P.3d 1187 (Alaska Ct. App. 2000).

Instruction stating relationship between recklessness and driving while intoxicated. —

In a trial for assault in the third degree and driving while intoxicated, an instruction that provided: “If you find that the defendant operated a motor vehicle while intoxicated, you may, but are not required to, infer that he acted recklessly,” correctly stated the relationship between recklessness and driving while intoxicated and was appropriately phrased as a permissive inference. Lee v. State, 760 P.2d 1039 (Alaska Ct. App. 1988).

Supplemental instruction was prejudicial error. —

It was prejudicial error requiring reversal to submit the supplemental instruction that allowed the jury to find that defendant assaulted the victim with the rifle after the close of evidence and after the jury had begun deliberating. Bowers v. State, 2 P.3d 1215 (Alaska 2000).

Domestic violence. —

A conviction for assault in the third degree was a crime involving domestic violence pursuant to AS 12.30.027 . State v. Roberts, 999 P.2d 151 (Alaska Ct. App. 2000).

Vehicular assault. —

Evidence that defendant’s sister repeatedly drove while intoxicated, and that she was present in the car at the time of the accident, could not be used to prove that defendant was not the driver. Such evidence is character evidence, barred by Alaska R. Evid. 404(b), and not habit evidence under Alaska R. Evid. 406. Wacker v. State, 171 P.3d 1164 (Alaska Ct. App. 2007).

Evidence was sufficient to support defendant’s convictions for third-degree assault, where two witnesses both testified that they saw a dark blue truck flash by in front of their vehicle; this testimony was sufficient to allow a reasonable juror to conclude that both witnesses reasonably perceived the threat of a deadly collision. Thornton v. State, — P.3d — (Alaska Ct. App. Aug. 1, 2012) (memorandum decision).

Consideration of defendant’s negligence. —

Where, in a trial for assault in the third degree and driving while intoxicated, an instruction defined “the cause of an injury” as a cause “without which the injury would not have occurred,” it required the jury to find that defendant’s recklessness was a proximate cause of the injuries that allegedly resulted to the victim — that is, a cause that “contributes substantially” to the injuries and did not preclude the jury from considering the victim’s own conduct to the extent that it may have been relevant to the issues of whether defendant acted recklessly and whether his recklessness caused the alleged injuries. Beyond that, defendant was clearly not entitled to an instruction informing the jury that the victim’s negligence was a defense to the assault charge. Lee v. State, 760 P.2d 1039 (Alaska Ct. App. 1988).

Prior misconduct evidence. —

Where defendant was tried for third-degree assault under AS 11.41.220(a)(1)(A) for threatening to kill his girlfriend and with three counts of second-degree sexual abuse of a minor under AS 11.41.436(a)(5)(A) for fondling the breasts of his girlfriend’s teenage daughter, the trial judge abused his discretion by allowing the State to present evidence of sixty prior instances of defendant’s misconduct which had little or nothing to do with the offenses charged. Defendant was entitled to a new trial. Bingaman v. State, 76 P.3d 398 (Alaska Ct. App. 2003).

Although the jurors should have been instructed not to convict defendant of assaulting the victim if there was no credible evidence that she committed the assault apart from the fact that she had attacked the victim before, the error did not appreciably affect the jury’s verdict. The defendant conceded that she hit the victim on the evening in question and the only disputed issue was whether the victim experienced pain. Dawson v. State, 264 P.3d 851 (Alaska Ct. App. 2011).

Defendant was properly convicted of third-degree assault under a recidivist theory for assaulting defendant's ex-paramour because the trial court did not err in admitting evidence of defendant's prior domestic violence assaults against the victim when defendant was jealous as this evidence was admissible. Although the court erred in admitting evidence of defendant's prior assaults against other individuals when defendant had feelings of jealousy and suspicion, any error in admitting this evidence was harmless given the context of the case. Shedlosky v. State, 472 P.3d 1094 (Alaska Ct. App. 2020).

In a third-degree assault case, the State was properly allowed to introduce evidence of an officer safety advisory that defendant had previously threatened to kill law enforcement. His specific threat, and the officer's awareness of that threat, was highly probative to whether the officer experienced fear, and to whether that fear was reasonable. Gray v. State, — P.3d — (Alaska Ct. App. Jan. 27, 2021) (memorandum decision).

Failure to preserve evidence. —

Superior court properly convicted defendants, a husband and wife, of third-degree assault and second-degree theft, respectively, because while many of their actions were recorded by a store's security cameras, the files did not include the footage from the parking lot where the husband drove into a customer or the wife's actions in taking merchandise, the original footage was no longer available, the evidence fully supported the judge's finding that a state trooper never had possession of the footage, defendants knew that the footage existed, and the fact that the trooper asked the store's loss-prevention employee to make him a copy of the store's footage did not turn the employee into the trooper's agent. Stamper v. State, 402 P.3d 427 (Alaska Ct. App. 2017).

Evidence of defendant’s arms stockpile. —

Trial judge did not abuse his discretion in allowing the state to introduce evidence of assault defendant’s stockpile of arms and ammunition, where possession of the arsenal was relevant to demonstrate defendant’s state of mind at the time he accosted victim and aimed handgun at him. Dutton v. State, 970 P.2d 925 (Alaska Ct. App. 1999).

Prior inconsistent statements about officer’s alleged fear. —

In a case in which defendant was convicted of third-degree assault for pointing a gun at a village police safety officer during what appeared to have been a failed suicide attempt, the superior court did not deprive defendant of his ability to present his defense because defendant pointed a rifle at the officer with the hammer cocked and ready to fire; the officer testified to his fear for his safety, notwithstanding the fact that defendant's finger was not on the trigger; and, other than seeking admission of the officer's purportedly prior inconsistent statements about his alleged fear, defendant's attorney did not question the officer about his fear or his perception of the threat that defendant's conduct created. Angaiak v. State, — P.3d — (Alaska Ct. App. June 21, 2017) (memorandum decision).

Variance. —

There was no variance between the State's case at grand jury and the evidence presented at defendant's trial because the State's case at grand jury was that defendant committed third-degree assault by repeatedly communicating to his mother that he would harm her and/or her brother (i.e., her "family member"); the indictment charged defendant with communicating repeated threats to his mother that he would cause death or serious physical injury either to herself or to a family member. Saunders v. State, 413 P.3d 1241 (Alaska Ct. App. 2018).

Sufficient evidence for conviction. —

Evidence was sufficient to allow reasonable jurors to conclude that a correctional officer had been placed in imminent fear of being shot by defendant, where the two men were engaged in a physical struggle over the officer’s gun and the officer believed that defendant was about to succeed in his efforts to gain control of the weapon. Perotti v. State, 818 P.2d 700 (Alaska Ct. App. 1991).

Where defendant came to a cabin occupied by the victim, demanded to be let inside, broke a window, and kicked in the door, cutting the victim’s hand, he was properly convicted on a plea of guilty of third-degree assault. Dayton v. State, 78 P.3d 270 (Alaska Ct. App. 2003).

Even excluding the statement of a family member that the “Tut” who committed the offenses of robbery, burglary, and assault was defendant, other evidence that was presented to the grand jury from the police investigation established that connection. Johnson v. State, — P.3d — (Alaska Ct. App. Apr. 18, 2012) (memorandum decision).

In a case where defendant drove a truck into a four-wheeler that was occupied by five people, one conviction for third-degree assault was not supported by sufficient evidence because a passenger did not testify that he feared being injured. As to the other counts, there was sufficient evidence for the jury to conclude that defendant’s truck, as it was used, posed an actual and substantial risk of serious injury to the other people on the four-wheeler. Akelkok v. State, — P.3d — (Alaska Ct. App. July 8, 2015) (memorandum decision).

Evidence that defendant fired multiple shots at the victims from a moving vehicle, placing them in apprehension of imminent serious physical injury was sufficient for the jury to convict him of first-degree weapons misconduct and third-degree assault. Ziegler v. State, — P.3d — (Alaska Ct. App. Sept. 9, 2015) (memorandum decision).

Evidence was sufficient to support defendant’s con- tested third-degree assault convictions under AS 11.41.220(a)(1)(A) where all of the victims testified that they believed defendant was going to shoot and kill them, and the testimony about layout of the building and the location of the victims in that building allowed the jury to determine how reasonable their belief was. Wasili v. State (Alaska Ct. App. Feb. 10, 2016) (memorandum decision).

Defendant was properly convicted of third-degree assault for strangling his girlfriend by recklessly inflicting physical injury by means of a dangerous instrument (his hands). Timmer v. State, — P.3d — (Alaska Ct. App. Aug. 31, 2016) (memorandum decision).

Viewing the evidence of the light most favorable to upholding the jury's verdict, there was sufficient evidence to support defendant's for third-degree assault of two police officers under based on defendant's firing a "warning shot" over the officers' heads. Huff v. State, — P.3d — (Alaska Ct. App. June 12, 2019) (memorandum decision).

Evidence was legally sufficient to convict defendant of third-degree assault because the officer was aware that defendant had recently threatened to kill law enforcement; when the officer asked defendant if he had any weapons, defendant informed him that he had a gun, and then proceeded to reach down and touch the gun despite the officer telling him not to; defendant placed the gun on the dashboard but refused to get out of the car; officers had to resort to pepper spray to get defendant out of the car and under arrest; and a fair-minded juror could find that the officer reasonably feared imminent serious physical injury by means of a dangerous instrument and that defendant acted recklessly with regard to that fear. Gray v. State, — P.3d — (Alaska Ct. App. Jan. 27, 2021) (memorandum decision).

Jury properly convicted defendant of attempted first-degree murder, third-degree assault, first-degree harming a police dog, and felony failure to stop at the direction of a peace officer because the evidence, that defendant shot and killed a police dog, and fired multiple rounds in the direction of the two officers, was sufficient to conclude that defendant intended to kill the officers. Abarca v. State, — P.3d — (Alaska Ct. App. Dec. 9, 2020) (memorandum decision).

Sufficient evidence supported defendant's assault convictions where the victims' testified that they saw defendant wielding his revolver when he first began to pursue them and he opened fire on them with that revolver. Defendant's actions in aggressively pursuing the victims with his revolver visibly drawn were sufficient to prove that he had recklessly placed them in fear of serious physical injury, Macmurray v. State, 2019 Alas. App. LEXIS 265 (March 13, 2019).

Evidence was sufficient to support a third-degree assault conviction under AS 11.41.220(a)(1)(A) where the victim's testimony showed that defendant quickly but deliberately withdrew a loaded gun while standing close to her, threatened to shoot her, did so in an excited and aggressive state of mind, and threw a rock that hit the victim's vehicle. Lussier v. State, — P.3d — (Alaska Ct. App. June 16, 2021).

Sentencing of first offender. —

A first offender should normally receive a more favorable sentence than the presumptive term for a second offender, but the supreme court, in applying this rule, focuses on the period of actual incarceration, excluding suspended periods of imprisonment; so where defendant received only one year of unsuspended imprisonment, since the presumptive sentence for a second felony offender convicted of assault in the third degree is two years, his sentence did not violate the rule. Lee v. State, 760 P.2d 1039 (Alaska Ct. App. 1988).

Sentence of defendant with no prior criminal convictions to consecutive terms of four years with one year suspended and one year with six months suspended for two second-degree assaults and to a concurrent term of one year with nine months suspended for a third-degree assault, a composite term of five years with one and one-half years suspended was more favorable than the corresponding second offense presumptive term for the individual offenses and was not excessive. Splain v. State, 924 P.2d 435 (Alaska Ct. App. 1996).

For a first felony offender convicted of third-degree assault, a sentence of five years with one year suspended (four years to serve), which exceeded the three-year presumptive term for a third felony offender, was not excessive based upon aggravating factors in the facts of the case, and by defendant’s history of repeated serious violence against the same victim. Pickard v. State, 965 P.2d 755 (Alaska Ct. App. 1998).

Conviction reversed. —

Defendant’s conviction for assault in the third degree was vacated where, apart from the victim’s testimony that defendant’s hand was in a fist when he struck her, there was nothing in the record to establish that the manner in which he used his hands was inordinately violent or particularly calculated to inflict serious physical injury. Konrad v. State, 763 P.2d 1369 (Alaska Ct. App. 1988).

Because the prosecutor erroneously asserted that the State did not need to prove that the officer's fear was reasonable, the trial court did not take steps to ensure that the jury properly understood the applicable law, the reasonableness of the officer's fear was a disputed issue at trial, and the jury might have convicted defendant under the erroneous impression that he could act recklessly even if the jury found that the officer's fear was unreasonable, defendant's conviction for third-degree assault was reversed. Gray v. State, — P.3d — (Alaska Ct. App. Jan. 27, 2021) (memorandum decision).

Trial court erred in instructing the jury on a dictionary definition of "threat," rather than the statutory definition, and his third-degree assault conviction was reversed; the legal definition of "threat" is not debatable, as it is clearly set out in statute and case law. The jurors asked multiple questions about the legal definition of "threat," thus demonstrating confusion, and the error was prejudicial, as the question of whether the statements constituted threats was contested at trial. Mead v. State, — P.3d — (Alaska Ct. App. Feb. 24, 2021).

Material breach of plea bargain. —

Where defendant’s conduct fell within the core of third-degree assault as defined in subparagraph (a)(1)(A) of this section, and the state had agreed to reduce the charge to a misdemeanor (fourth degree assault) only because defendant had pleaded guilty to a federal felony, defendant’s withdrawal of his federal plea significantly defeated the state’s expectations and was therefore a material breach of the plea agreement. Dutton v. State, 970 P.2d 925 (Alaska Ct. App. 1999).

Multiple sentences for multiple violations of statute. —

See State v. Dunlop, 721 P.2d 604 (Alaska 1986).

Merger of convictions. —

Where the jury made no finding as to whether two assault convictions were based on a single underlying act or two separate acts, the convictions merged. Soundara v. State, 107 P.3d 290 (Alaska Ct. App. 2005).

When defendant was convicted of assault in the second degree and assault in the third degree the offenses had to merge because, under the facts of the case, there was no difference in conduct or intent sufficient to warrant multiple punishments. Cronce v. State, 216 P.3d 568 (Alaska Ct. App. 2009).

Convictions for third-degree assault and robbery did not merge, because the robbery was directed at recovering property from a victim other than the victim of the assault. Ziegler v. State, — P.3d — (Alaska Ct. App. Sept. 9, 2015) (memorandum decision).

Double jeopardy. —

Where defendant committed arson and in doing so placed other persons in danger of serious physical injury, double jeopardy did not preclude convictions for both arson in the first degree and assault in the third degree. Hathaway v. State, 925 P.2d 1343 (Alaska Ct. App. 1996).

Where defendant brandished a firearm in two separate incidents involving the same victims, the jury convicted him of unarmed robbery for the first incident, and of assault in the second incident, where the defendant threatened the victims with his gun. The fact that the same gun was present in both incidents did not give rise to double jeopardy where it was clear the jury did not include the use of the firearm in convicting the defendant for the first incident. Kosbruk v. State, — P.3d — (Alaska Ct. App. Apr. 6, 2011) (memorandum decision).

Conviction deemed “crime of violence” for federal sentencing purposes. —

Although the district court committed plain error in relying solely on the presentence report’s factual description of defendant’s prior Alaska assault conviction to determine that it was a “crime of violence” for purposes of U.S. Sentencing Guidelines Manual § 4B1.2 following defendant’s conviction under 18 U.S.C.S. §§ 922(g)(1), 924(a)(2), the error did not substantially affect defendant’s rights for purposes of Fed. R. Crim. P. 52(b) because a conviction under AS 11.41.220(a)(1)(A) clearly qualified as a “crime of violence” under U.S. Sentencing Guidelines Manual § 4B1.2(a)(2). United States v. Rendon-Duarte, 482 F.3d 1080 (9th Cir. Alaska), reprinted, 490 F.3d 1142 (9th Cir. Alaska 2007).

A conviction under subparagraph (a)(1)(A) of this section qualifies as a crime of violence under U.S. Sentencing Guidelines Manual § 4B1.2(a)(2). United States v. Rendon-Duarte, 490 F.3d 1142 (9th Cir. Alaska 2007).

Conviction and sentence upheld. —

See Contreras v. State, 675 P.2d 654 (Alaska Ct. App. 1984); Andrejko v. State, 695 P.2d 246 (Alaska Ct. App. 1985).

Sentence upheld. —

See Smith v. State, 682 P.2d 1125 (Alaska Ct. App. 1984); Contreras v. State, 767 P.2d 1169 (Alaska Ct. App. 1989), disapproved, State v. Bumpus, 820 P.2d 298 (Alaska 1991); Perotti v. State, 818 P.2d 700 (Alaska Ct. App. 1991).

Composite sentence of 31 years with five years suspended, with one of the conditions of probation being that defendant “cannot have a family-type situation in which any children under the age of 16 are involved,” was not excessive. Sweetin v. State, 744 P.2d 424 (Alaska Ct. App. 1987).

A total term of twenty-five years with ten years suspended was not excessive where sentence represented conviction of one class A felony (convictions of alternative counts of attempted kidnapping were merged into a single count), three class C felonies (third-degree assault), and two class A misdemeanors (reckless endangerment); this was so under the circumstances of this case, even though defendant was a first offender. Ramsey v. State, 834 P.2d 811 (Alaska Ct. App. 1992).

A defendant who victimizes two or more people by a single assaultive act commits a separately punishable assault for each victim; likewise, a single act of recklessness that kills two or more people constitutes a separately punishable manslaughter for each victim. Thus, even if an assault on a bar employee had arisen from exactly the same act as the assault and killing of another bar employee, it still would constitute a separately punishable crime under Alaska law. Todd v. State, 884 P.2d 668 (Alaska Ct. App. 1994), aff'd, 917 P.2d 674 (Alaska 1996).

A sentence of five years and nine months with three years suspended for multiple convictions, the most serious of which was assault in the third degree, was not excessive where the presentence report emphasized that the defendant had a history of assaults on active duty police officers and where the sentencing judge stated that the defendant’s behavior of totally losing control of himself and engaging in dangerous and assaultive behavior was a consistent pattern and that he was a “dangerous person” for whom rehabilitation was very guarded. Lonis v. State, 998 P.2d 441 (Alaska Ct. App. 2000).

When defendant was resentenced following convictions for sexual assault, robbery, and assault, 95-year composite sentence was not excessive because superior court was required to impose presumptive term for each count. Hunter v. State, 182 P.3d 1146 (Alaska Ct. App. 2008).

Trial court did not impose an excessive sentence following defendant’s conviction of numerous counts of assault stemming from two separate incidents because the trial court found that defendant repeatedly used his airplane to try to frighten other guides and hunters away from his camps and intentionally used his airplane to make the victims fear that he was going to hit them. The judge noted that defendant had done this even though a client was in the back seat of his airplane and concluded that defendant’s actions could easily have caused a fatal accident; it was also significant that defendant committed the assaults on two separate occasions on different groups of hunters. Lamb v. State, — P.3d — (Alaska Ct. App. Jan. 14, 2009) (memorandum decision).

Where defendant kidnapped the victim, held her against her will for three days, beat her, whipped her, threatened to kill her, and watched while another man committed a degrading sexual assault on her, and where he was convicted of kidnapping, third-degree assault, third-degree misconduct involving weapons, and two counts of fourth-degree assault, a 25-year composite sentence was not excessive. While defendant may not have committed some of the most egregious violations against the victim, he was the initiator of the entire incident. McClain v. State, — P.3d — (Alaska Ct. App. June 8, 2011) (memorandum decision).

Sentence imposed for manslaughter, assault in the third degree, and failure to render assistance to an injured person after an accident was not clearly mistaken; the findings were supported by the record, as defendant was highly intoxicated and yet chose to drive, and in spite of the fact that he knew he struck a person, a young boy of thirteen, defendant fled the scene, leaving the victim to die. Bottcher v. State, 262 P.3d 224 (Alaska Ct. App. 2011), aff'd, 300 P.3d 528 (Alaska 2013).

Sentencing court was not clearly mistaken in emphasizing the Chaney goal of isolation, and in imposing the maximum five-year sentence for defendant’s third-degree assault offense, given his criminal history, poor performance on probation and parole, continuing alcohol addiction, and serious nature of the injuries he inflicted. Douglas v. State, — P.3d — (Alaska Ct. App. Sept. 23, 2015) (memorandum decision).

Sentencing judge did not err in rejecting the mitigator that defendant's conduct was among the least serious within the definition of the offense because third-degree assault only required proof that defendant placed one person in fear of imminent serious physical injury, but defendant threatened to shoot several troopers; he engaged in a six-hour stand-off with the troopers; and he twice fired his rifle out the door of the house. Cook v. State, — P.3d — (Alaska Ct. App. Mar. 29, 2017) (memorandum decision).

Superior court did not commit clear error in rejecting defendant's trial testimony that he was merely defending himself or in finding that the injuries defendant inflicted were serious because defendant's crime, assault, was among the most serious conduct included in the definition of his offense. Johnson v. State, — P.3d — (Alaska Ct. App. Apr. 19, 2017), modified, — P.3d — (Alaska Ct. App. 2017) (memorandum decision).

Defendant's sentence of five years with two and a half years suspended was not clearly mistaken because his conduct of assaulting the victim was elevated to a felony based on his two prior convictions for fourth-degree assault; defendant had over ninety prior misdemeanor and minor offense convictions and multiple probation violations. Jonas v. State, — P.3d — (Alaska Ct. App. Aug. 8, 2018) (memorandum decision).

Defendant's sentence of five years' imprisonment, with all but the time served suspended, for third-degree assault was upheld; defendant had stipulated to an aggravating factor, and thus his maximum sentence was five years, the only way the judge could give effect to the plea agreement was to impose some suspended jail time over and above the time defendant had already served, and as he terrorized his wife and daughter, the judge's sentencing decision was not clearly mistaken. Gherman v. State, — P.3d — (Alaska Ct. App. Oct. 31, 2018) (memorandum decision).

Sentence found excessive. —

Composite sentence of 41 years for convictions of sexual assault in the first degree, kidnapping, three counts of assault in the third degree and one count of assault in the fourth degree was excessive; the defendant should not have received a sentence in excess of 30 years. Patterson v. State, 689 P.2d 146 (Alaska Ct. App. 1984).

Total sentence of fifty years, imposed after convictions of two counts of first-degree robbery and two counts of third-degree assault, was clearly mistaken, where defendant was a youthful offender who had never before demonstrated a proclivity toward comparable acts of aggravated violence and the court’s decision to base defendant’s sentence on the assumption that he was incorrigible was unjustified. DeGross v. State, 816 P.2d 212 (Alaska Ct. App. 1991).

Sentence held too lenient. —

Where defendant was convicted of DWI, and his conduct and the two injuries that resulted from it justified a sentence of several months’ incarceration and he was also convicted of one count of felony assault, and defendant, a Coast Guard yeoman, might have been ordered to undergo a period of up to 90 days’ voluntary restriction to quarters, because the sentencing court ignored the 90-day confinement alternative to imprisonment that defendant himself had argued for and without explanation or comment imposed only the requirement of community service, the sentence was disapproved. State v. Monk, 886 P.2d 1315 (Alaska Ct. App. 1994).

Order to attend AA meetings vacated. —

Provision in judgment ordering defendant to attend Alcoholics Anonymous meetings was vacated, and his case was remanded for further proceedings, where the trial court’s decision was insufficiently explained and had no adequate support in the record. Karl v. State, 770 P.2d 299 (Alaska Ct. App. 1989).

Applied in

Wolf v. State, 647 P.2d 609 (Alaska Ct. App. 1982); McManners v. State, 650 P.2d 414 (Alaska Ct. App. 1982); Bidwell v. State, 656 P.2d 592 (Alaska Ct. App. 1983); Wright v. State, 656 P.2d 1226 (Alaska Ct. App. 1983); Morton v. State, 684 P.2d 144 (Alaska Ct. App. 1984); Smaker v. State, 695 P.2d 238 (Alaska Ct. App. 1985); Napageak v. State, 729 P.2d 893 (Alaska Ct. App. 1986); Wickham v. State, 770 P.2d 757 (Alaska Ct. App. 1989); Fuzzard v. State, 13 P.3d 1163 (Alaska Ct. App. 2000); Dale v. State, 209 P.3d 1038 (Alaska Ct. App. 2009); West v. State, 223 P.3d 634 (Alaska Ct. App. 2010); Moran v. State, 380 P.3d 92 (Alaska Ct. App. 2016).

Quoted in

Butts v. State, 53 P.3d 609 (Alaska Ct. App. 2002); Hughes v. State, 56 P.3d 1088 (Alaska Ct. App. 2002).

Stated in

Maynard v. State, 652 P.2d 489 (Alaska Ct. App. 1982); Edwin v. State, 762 P.2d 499 (Alaska Ct. App. 1988); Atkinson v. State, 869 P.2d 486 (Alaska Ct. App. 1994); Hess v. State, 435 P.3d 876 (Alaska 2018); Martusheff v. State, 474 P.3d 12 (Alaska Ct. App. 2020); Williams v. State, — P.3d — (Alaska Ct. App. Mar. 24, 2021); Graham v. State, — P.3d — (Alaska Ct. App. Sept. 29, 2021).

Cited in

Weston v. State, 656 P.2d 1186 (Alaska Ct. App. 1982); Lerchenstein v. State, 697 P.2d 312 (Alaska Ct. App. 1985); New v. State, 714 P.2d 378 (Alaska Ct. App. 1986); Witt v. State, 725 P.2d 723 (Alaska Ct. App. 1986); Newsom v. State, 726 P.2d 561 (Alaska Ct. App. 1986); Arenas v. State, 727 P.2d 313 (Alaska Ct. App. 1986); Rollins v. State, 757 P.2d 601 (Alaska Ct. App. 1988); Jones v. State, 765 P.2d 107 (Alaska Ct. App. 1988); Hilburn v. State, 765 P.2d 1382 (Alaska Ct. App. 1988); Newcomb v. State, 779 P.2d 1240 (Alaska Ct. App. 1989); State v. Malone, 819 P.2d 34 (Alaska Ct. App. 1991); State v. Jeske, 823 P.2d 6 (Alaska Ct. App. 1991); Lewis v. State, 845 P.2d 447 (Alaska Ct. App. 1993); Mustafoski v. State, 867 P.2d 824 (Alaska Ct. App. 1994); State v. Hernandez, 877 P.2d 1309 (Alaska Ct. App. 1994); Johnson v. State, 889 P.2d 1076 (Alaska Ct. App. 1995); Petersen v. State, 930 P.2d 414 (Alaska Ct. App. 1996); Griffin v. State, 9 P.3d 301 (Alaska Ct. App. 2000); Hurd v. State, 22 P.3d 12 (Alaska Ct. App. 2001); Brockway v. State, 37 P.3d 427 (Alaska Ct. App. 2001); Pearce v. State, 45 P.3d 679 (Alaska Ct. App. 2002); Ramsey v. State, 56 P.3d 675 (Alaska Ct. App. 2002); Cathey v. State, 60 P.3d 192 (Alaska Ct. App. 2002); Nelson v. State, 68 P.3d 402 (Alaska Ct. App. 2003); Timothy v. State, 90 P.3d 177 (Alaska Ct. App. 2004); Wholecheese v. State, 100 P.3d 14 (Alaska Ct. App. 2004); Hurd v. State, 107 P.3d 314 (Alaska Ct. App. 2005); Anderson v. State, 123 P.3d 1110 (Alaska Ct. App. 2005); Billum v. State, 151 P.3d 507 (Alaska Ct. App. 2006); Benson v. State, 160 P.3d 161 (Alaska Ct. App. 2007); MacDonald v. Riggs, 166 P.3d 12 (Alaska 2007); Cameron v. State, 171 P.3d 1154 (Alaska 2007); Lambert v. State, 172 P.3d 838 (Alaska Ct. App. 2007); Smith v. State, 187 P.3d 511 (Alaska Ct. App. 2008); Frankson v. State, 282 P.3d 1271 (Alaska Ct. App. 2012); Ahvakana v. State, 283 P.3d 1284 (Alaska Ct. App. 2012); Faye H. v. James B., 348 P.3d 876 (Alaska 2015); Pieniazek v. State, 394 P.3d 621 (Alaska Ct. App. 2017); Love v. State, 436 P.3d 1058 (Alaska Ct. App. 2018); ; Luke v. State, 469 P.3d 445 (Alaska Ct. App. 2020); Ahvakana v. State, 475 P.3d 1118 (Alaska Ct. App. 2020); Soifua v. State, — P.3d — (Alaska Ct. App. Oct. 28, 2020); Akelkok v. State, 475 P.3d 1136 (Alaska Ct. App. 2020).

Collateral references. —

Attempt to commit assault as criminal offense. 93 ALR5th 683.

Dog as deadly or dangerous weapon for purposes of statutes aggravating offenses such as assault and robbery. 124 ALR5th 657.

Notes to Decisions

Physical injury. —

It was error not to award a personal representative attorney's fees because his well-pleaded allegations satisfied the elements of assault in the fourth degree; the allegations of the complaint fit the statutory definitions of “assault in the fourth degree” and “physical injury” because the complaint alleged that a hospital employee caused an elderly woman physical injuries and harm, and the testimony at trial generally supported those allegations. Haines v. Comfort Keepers, Inc., 393 P.3d 422 (Alaska 2017).

Evidence was sufficient to support the jury's finding that defendant's conduct caused physical injury to the victim for purposes of defendant's fourth-degree assault; while defendant pointed to various reasons why the jury might have found that the physical injury element was not proven, the evidence had to be viewed in a light most favorable to the jury's decision, and the evidence showed that defendant choked the victim and held her head in a washing machine, and after she broke free, he chased her, caught her, and threw her to the ground. Andrew v. State, — P.3d — (Alaska Ct. App. Feb. 28, 2018) (memorandum decision).

“Fear of imminent physical injury”. —

To convict defendant of fourth-degree assault in beating his child with a belt, the state was not required to prove that he actually struck the child, only that he recklessly placed the child in fear of imminent physical injury. S.R.D. v. State, 820 P.2d 1088 (Alaska Ct. App. 1991).

Where, after an officer arrested defendant for DUI, defendant threatened the officer and attempted to push the officer up against a wall, the officer reasonably could have apprehended an imminent threat of physical injury. Greenwood v. State, — P.3d — (Alaska Ct. App. May 30, 2012) (memorandum decision).

Defendant was properly convicted of fourth-degree assault because his girlfriend sounded scared and distraught during a 911 call and seemed to be crying, and defendant's confrontation clause argument was foreclosed by the doctrine of invited error where his trial counsel repeatedly assured the trial judge that there was no confrontation problem, and defendant's claim was inadequately briefed. Barclay v. State, — P.3d — (Alaska Ct. App. Mar. 29, 2017) (memorandum decision).

District court properly convicted defendant of fourth-degree assault because defendant recklessly placed the victim in fear of physical injury where, during defendant's interaction with the victim, defendant grew agitated, yelled, called the victim names, and mentioned something about a gun, then, when the victim was driving away, defendant chased him and gestured as if he were reaching for a gun. Mavromatis v. State, — P.3d — (Alaska Ct. App. Aug. 15, 2018) (memorandum decision).

Single continuing assault. —

Under Alaska law, defendant committed a single continuing assault on the victim, with some of the assault occurring inside the house and some of the assault occurring outside. Andrew v. State, — P.3d — (Alaska Ct. App. Feb. 28, 2018) (memorandum decision).

Self-defense. —

Trial judge erred at defendant's trial for assault and interfering with a report of domestic violence because just prior to jury selection, at the behest of the prosecutor, the trial judge prohibited the defense attorney from mentioning anything about self-defense during jury selection and during his opening statement. Savo v. State, 382 P.3d 1179 (Alaska Ct. App. 2016).

Opening statement. —

Trial judge erred at defendant's trial for assault and interfering with a report of domestic violence because just prior to jury selection, at the behest of the prosecutor, the trial judge prohibited the defense attorney from mentioning anything about self-defense during jury selection and during his opening statement. Savo v. State, 382 P.3d 1179 (Alaska Ct. App. 2016).

Recklessness. —

Second-degree assault requires proof of intent to cause physical injury, whereas fourth-degree assault requires proof only of recklessness, the two offenses differing only in their culpable mental state elements. Willett v. State, 836 P.2d 955 (Alaska Ct. App. 1992).

The fact that defendant simply “lashed out” violently at the victim without specifically intending to cause her injuries did not substantially mitigate the offense. State v. Huletz, 838 P.2d 1257 (Alaska Ct. App. 1992).

Evidence was sufficient to support defendant’s conviction for fourth-degree assault where defendant, while flying his private aircraft, swooped down on a hunting party in an effort to frighten them and to compel them to move away from his own hunting camp. Although the victim’s testimony regarding the incident was sparse, other witnesses clearly testified to the proximity of defendant’s plane to the victim and testified that defendant was warned via radio that his plane was flying too close and that he was acting dangerously. Lamb v. State, — P.3d — (Alaska Ct. App. Jan. 14, 2009) (memorandum decision).

Sufficient evidence supported a conviction for fourth-degree assault under AS 11.41.230(a)(1) because an officer testified that he injured his knee while trying to arrest defendant and that defendant violently resisted. Shorty v. State, 214 P.3d 374 (Alaska Ct. App. 2009).

Use of airplane to harass others. —

Trial court did not impose an excessive sentence following defendant’s conviction for numerous counts for assault stemming from two separate incidents where defendant repeatedly used his airplane to try to frighten other guides and hunters away from his camps, and intentionally used his airplane to make the victims fear that he was going to hit them. The judge noted that defendant had done this even though a client was in the back seat of his airplane and concluded that defendant’s actions could easily have caused a fatal accident; it was also significant that defendant committed the assaults on two separate occasions on different groups of hunters. Lamb v. State, — P.3d — (Alaska Ct. App. Jan. 14, 2009) (memorandum decision).

“Dangerous instrument”. —

Where defendant was charged with second-degree assault for kicking the victim, there was at least some evidence to support a finding that defendant’s feet were not dangerous instruments, and because the defendant’s use of a dangerous instrument was therefore in dispute, the trial court erred in denying defendant’s request for a lesser-included offense instruction on fourth-degree assault. Willett v. State, 836 P.2d 955 (Alaska Ct. App. 1992).

Knowing assault. —

Trial court based its verdict that defendant violated a domestic violence protective order not only on defendant’s no contest plea to assault, in which he agreed the trial court could find that he engaged in knowing conduct toward the victim, but also on the testimony at trial, which was sufficient to support the conclusion that defendant knowingly committed an assault on the victim. Thompson v. State, — P.3d — (Alaska Ct. App. Sept. 24, 2014) (memorandum decision).

Joinder of charges. —

Charges of sexual assault in the first degree, resisting arrest, fourth-degree assault, and providing false information to a peace officer were sufficiently connected to justify joinder under Alaska R. Crim. P. 8(a)(3) because the evidence of the sexual assault was relevant to show that defendant had a motive for giving false information, resisting arrest, and assaulting an officer when the officers approached defendant 18 days later. And the evidence that defendant gave a false name and attempted to avoid arrest was correspondingly relevant to show guilty knowledge of the sexual assault. Shorty v. State, 214 P.3d 374 (Alaska Ct. App. 2009).

The issue of whether the trial court erred in granting the State’s motion to join two cases against the defendant was waived when defendant did not file a pretrial motion for severance; accordingly, acquittal in one case did not impact the validity of the verdict of guilty in the second case. There was no prejudicial error by the court. Price v. State, — P.3d — (Alaska Ct. App. Oct. 3, 2012) (memorandum decision).

Trial court erred in convicting defendant of second- and fourth-degree assault because the convictions merged with his first-degree assault conviction where the State presented its case for first-degree assault as an ongoing assault encompassing multiple acts that resulted in serious physical injury. Parks v. State, — P.3d — (Alaska Ct. App. June 21, 2017) (memorandum decision).

Fourth-degree assault as lesser included offense of first-degree sexual assault. —

See Nathaniel v. State, 668 P.2d 851 (Alaska Ct. App. 1983).

Fourth-degree assault as lesser included offense of attempted sexual assault in the first degree. —

See Baden v. State, 667 P.2d 1275 (Alaska Ct. App. 1983).

Fourth-degree assault as lesser included offense of robbery in the first degree. —

Trial court did not err by allowing the jury at defendant's first trial to return verdicts on the assault and theft charges after it was unable to reach a verdict on the first-degree robbery charge because theft was not a lesser-included offense of robbery; after the trial court declared the jury hung as to the robbery count, it was proper to allow the jury to continue deliberating on the assault count and return a verdict on that crime. Dere v. State, 444 P.3d 204 (Alaska Ct. App. 2019).

Fourth-degree assault as lesser included offense of robbery in the second degree. —

Conviction for robbery in the second degree was reversed where there was at least some evidence presented at trial to justify finding that the defendant was guilty of assault but not robbery, so that a lesser included offense instruction on assault was required. Marker v. State, 692 P.2d 977 (Alaska Ct. App. 1984).

Reviewability. —

Defendant was convicted of second-degree sexual assault; defendant’s argument that jury should have been instructed on the lesser offense of fourth-degree assault was rejected on appeal because defendant did not challenge the trial court’s ruling on the amended request. Wyagon v. State, — P.3d — (Alaska Ct. App. Sept. 23, 2009) (memorandum decision).

Evidence sufficient. —

Evidence was sufficient to support a conviction for assault in the fourth degree because defendant was involved in striking a victim while taking his property; the evidence showed that the victim had contusions to his face, scalp, neck, and back. Bichiok v. State, — P.3d — (Alaska Ct. App. Mar. 12, 2014) (memorandum decision).

Evidence was sufficient to sustain a fourth-degree assault conviction where the testimony showed that defendant had raised his hand as if to hit the victim, and the victim reacted by pulling out her pepper spray. Charles v. State, — P.3d — (Alaska Ct. App. Sept. 30, 2015) (memorandum decision).

Defendant was properly convicted of second- and fourth-degree assault, second-degree failure to stop at the direction of a peace officer, and misdemeanor driving under the influence because, while the superior court should have merged his two convictions for second-degree assault, defendant's attack on his ex-girlfriend and her new boyfriend was unprovoked and left the boyfriend permanently disfigured, defendant failed a sobriety test, and the sentencing judge properly rejected the proposed mitigator where defendant's conduct was within the “heartland” of the definition of the offenses, his prospects for rehabilitation were “guarded,” and he had no remorse. Lewis v. State, — P.3d — (Alaska Ct. App. Aug. 31, 2016) (memorandum decision).

Evidence was sufficient to show that defendant committed fourth-degree assault because, although the victim's testimony was inconsistent with her prior statements, she affirmatively testified that defendant struck her leg and arm, and the jury could have credited her prior statements in which she reported that defendant struck her in the head. The jury was also able to view the victim's injuries in photographs taken on the day of the incident. Wells v. State, — P.3d — (Alaska Ct. App. June 12, 2019) (memorandum decision).

Evidence was sufficient to support defendant's conviction of fourth-degree assault because an eyewitness testified that a smaller man was punched and thrown to the ground by a bigger man, minutes after the 911 call an officer located defendant who matched the eyewitness's description of the assailant, and defendant admitted to the officer that he fought everyone. Sheakley v. State, — P.3d — (Alaska Ct. App. Feb. 5, 2020) (memorandum decision).

Verbal confrontation held possible assault. —

Verbal confrontation in a parking lot between persons reported as being a “couple” in a 911 call constituted a potential crime which was properly investigated by a police officer, who stopped a car occupied by the couple to determine if there had been an incident of domestic violence. State v. Miller, 207 P.3d 541 (Alaska 2009).

Cross-examination of psychiatrist. —

Allowing the prosecutor to cross-examine a psychiatrist by reference to defendant’s prior convictions for driving while intoxicated was not an abuse of discretion, where defendant, by putting his mens rea directly in issue through the witness’s expert testimony, opened the witness up to cross-examination about the basis for his opinion. Jansen v. State, 764 P.2d 308 (Alaska Ct. App. 1988).

Judge’s interpretation of “impairment of physical condition”. —

Because judges (not juries) decide what a statute means, defendant’s attorney was not entitled to ask the jurors to adopt his own particular interpretation of the statutory phrase “impairment of physical condition;” thus, in a fourth-degree assault case, the trial judge did not exceed his lawful authority when he adopted his own interpretation of the phrase “impairment of physical condition.” Eaklor v. State, 153 P.3d 367 (Alaska Ct. App. 2007).

Instructions. —

In prosecution for fourth-degree assault, since there was evidence from which the jury could infer that defendant believed he had to kick his uncle to prevent harm to his daughter, and that this belief was reasonable, he was entitled to an instruction on defense of a third person as justification for his conduct. David v. State, 698 P.2d 1233 (Alaska Ct. App. 1985).

Trial court did not abuse its discretion in refusing to instruct the jury on the lesser-included offense of assault in the fourth degree at defendant’s trial for sexual assault in the first degree, where there was no evidence of a disputed fact to distinguish sexual assault from assault in the fourth degree, and a finding of guilt on the sexual assault offense would have been inconsistent with an acquittal on a fourth-degree assault charge. Dolchok v. State, 763 P.2d 977 (Alaska Ct. App. 1988).

Defendant was not entitled to an instruction on defense of a third person (defendant’s eight-month old daughter) under AS 11.81.340 because there was no evidence that defendant believed his daughter faced imminent harm or threat of harm. The judge focused on the appropriate question: whether the child would have been justified in throwing the victim down to defend herself, not on whether she was physically capable of doing so. Leu v. State, 251 P.3d 363 (Alaska Ct. App. 2011).

Defendant's three fourth-degree assault convictions were reversed because (1) the trial court refused to give defendant's self-defense instruction despite there being "some evidence" to support the defense, and (2) it could not be determined if guilty verdicts were based solely on injuries counsel alleged were self-inflicted. Cooper v. State, — P.3d — (Alaska Ct. App. Mar. 7, 2018), aff'd, — P.3d — (Alaska Ct. App. 2018) (memorandum decision).

Introduction into evidence of tape recording of incident not erroneous and conviction upheld. —

See O'Neill v. State, 675 P.2d 1288 (Alaska Ct. App. 1984).

Prior acts held relevant. —

In a murder trial, there was no error in allowing a witness to testify about a prior incident in which defendant assaulted his wife and threatened to shoot the witness because the evidence was relevant to intent. Pickering v. State, — P.3d — (Alaska Ct. App. Feb. 9, 2011) (memorandum decision).

Evidence of prior instances of domestic violence was admissible under Alaska R. Evid. 404(b)(4) during defendant’s trial for assault; the evidence demonstrated the nature of the relationship between defendant and the victim; it also showed the victim’s willingness to protect defendant by denying that he assaulted her when in fact he had assaulted her. Hodge v. State, — P.3d — (Alaska Ct. App. Apr. 27, 2011) (memorandum decision).

Circumstances sufficient to find “physical injury”. —

Where defendant had grabbed victim in a headlock and then punched him in the face, leaving the victim with a red, swollen eye and a bleeding scratch below the eye, and defendant argued that when the victim agreed that the punch caused him some sort of pain, the victim was referring to an emotional pain rather than the physical pain required for conviction of fourth-degree assault, reasonable jurors could interpret the victim’s testimony to mean that he suffered physical pain from the punch as well as upset from the situation; thus, pursuant to paragraph (a)(1) of this section and AS 11.81.900 , the evidence was sufficient to establish the physical injury element of the offense of fourth-degree assault. Eaklor v. State, 153 P.3d 367 (Alaska Ct. App. 2007).

Verdicts. —

Because it was possible that the jury believed defendant possessed a firearm while impaired but had a reasonable doubt as to whether he hurt his wife or caused her to be afraid of him, and had a reasonable doubt as to whether he recklessly engaged in conduct that created a substantial risk of injury to the children, his conviction for misconduct involving weapons was not obviously inconsistent with the verdicts acquitting him of assault and reckless endangerment. Poland v. State, — P.3d — (Alaska Ct. App. Dec. 5, 2012) (memorandum decision).

Rebuttable presumption against child custody award. —

Father was properly awarded child custody because the mother's domestic violence precluded awarding her custody, based on acts rising to the level of fourth degree assault, consisting of throwing a television remote at the father, causing bruising, and drugging the father with methadone. Kierston R. v. Eugene R., — P.3d — (Alaska Dec. 21, 2016) (memorandum decision).

Conviction and sentence upheld. —

See Contreras v. State, 675 P.2d 654 (Alaska Ct. App. 1984).

Where eyewitnesses saw defendant and his accomplice beat a homeless man in an empty lot, defendant was properly convicted of fourth degree assault, for which sentence to imprisonment for one year to run concurrently with another sentence was proper. Grossman v. State, 120 P.3d 1085 (Alaska Ct. App. 2005).

Where defendant beat and sexually assaulted his mother’s boyfriend, convictions for both second degree and fourth degree assault were adequately supported by the testimony of the boyfriend and the substantial circumstantial evidence presented. Iyapana v. State, 284 P.3d 841 (Alaska Ct. App. 2012).

Trial court did not err in failing to obtain defendant's personal waiver of the right to jury trial because he did not object to his attorney's waiver of a jury trial and defendant's assault on his girlfriend constituted a crime of domestic violence where they had been dating each other for seven years and had a six-year-old child together. Ivon v. State, — P.3d — (Alaska Ct. App. Sept. 27, 2017) (memorandum decision).

Sentence found excessive. —

Composite sentence of 41 years for convictions of sexual assault in the first degree, kidnapping, three counts of assault in the third degree and one count of assault in the fourth degree was excessive; the defendant should not have received a sentence in excess of 30 years. Patterson v. State, 689 P.2d 146 (Alaska Ct. App. 1984).

Sentence affirmed. —

See Afcan v. State, 711 P.2d 1198 (Alaska Ct. App. 1986).

Where defendant kidnapped the victim, held her against her will for three days, beat her, whipped her, threatened to kill her, and watched while another man committed a degrading sexual assault on her, and where he was convicted of kidnapping, third-degree assault, third-degree misconduct involving weapons, and two counts of fourth-degree assault, a 25-year composite sentence was not excessive. While defendant may not have committed some of the most egregious violations against the victim, he was the initiator of the entire incident. McClain v. State, — P.3d — (Alaska Ct. App. June 8, 2011) (memorandum decision).

Trial court properly found defendant a worst offender on his assault convictions because defendant's violence, the injuries he inflicted, and the fact that he attempted to gain control of a police officer's gun—taken together with defendant's prior record—justified the district court's finding that defendant was a worst misdemeanor-assault offender. Cimino v. State, — P.3d — (Alaska Ct. App. May 17, 2017) (memorandum decision).

Sentence disapproved. —

Trial court’s sentencing decision was clearly mistaken where the sentence fell near the bottom of the authorized range of sentences for fourth-degree assault and the evidence concerning defendant’s background and personal characteristics, including two prior misdemeanor convictions, provided little basis for characterizing his case as particularly mitigated. State v. Huletz, 838 P.2d 1257 (Alaska Ct. App. 1992).

Federal conviction improperly predicated on nolo contendere plea. —

Defendant was improperly convicted under 8 U.S.C.S. § 1253(b) for willful failure to comply with the terms of an 8 U.S.C.S. § 1231(a)(3) supervision order, as his convictions under AS 11.41.230(a)(3) and this section should not have been admitted given that he pled nolo contendere, which was not an admission of guilt; thus, his motion for acquittal pursuant to Fed. R. Crim. P. 29 was also improperly denied. United States v. Dalvan Nguyen, 465 F.3d 1128 (9th Cir. Alaska 2006).

Applied in

Bidwell v. State, 656 P.2d 592 (Alaska Ct. App. 1983); Jackson v. State, 657 P.2d 405 (Alaska Ct. App. 1983); Huitt v. State, 678 P.2d 415 (Alaska Ct. App. 1984); Olp v. State, 738 P.2d 1117 (Alaska Ct. App. 1987).

Quoted in

Maynard v. State, 652 P.2d 489 (Alaska Ct. App. 1982); Michael v. State, 767 P.2d 193 (Alaska Ct. App. 1988) (holding that parent can be held responsible for assault on child if parent, knowing that child is in danger of assault from other parent, unreasonably fails to take action to protect child), rev’d on other grounds, Michael v. State, 805 P.2d 371 (Alaska 1991); Bruce H. v. Jennifer L., 407 P.3d 432 (Alaska 2017); Sherwood v. State, 493 P.3d 230 (Alaska Ct. App. 2021).

Stated in

State v. Williams, 855 P.2d 1337 (Alaska Ct. App. 1993); Sosa v. State, 4 P.3d 951 (Alaska 2000).

Cited in

Folger v. State, 648 P.2d 111 (Alaska Ct. App. 1982); Kelly v. State, 652 P.2d 112 (Alaska Ct. App. 1982); Weston v. State, 656 P.2d 1186 (Alaska Ct. App. 1982); Moxie v. State, 662 P.2d 990 (Alaska Ct. App. 1983); Davis v. State, 684 P.2d 147 (Alaska Ct. App. 1984); Norbert v. State, 718 P.2d 160 (Alaska Ct. App. 1986); Noel v. State, 754 P.2d 280 (Alaska Ct. App. 1988); Alfred v. State, 758 P.2d 130 (Alaska Ct. App. 1988); Jones v. State, 765 P.2d 107 (Alaska Ct. App. 1988); State v. Hernandez, 877 P.2d 1309 (Alaska Ct. App. 1994); Samaniego v. City of Kodiak, 2 P.3d 78 (Alaska 2000); Griffin v. State, 9 P.3d 301 (Alaska Ct. App. 2000); Hutchings v. State, 53 P.3d 1132 (Alaska Ct. App. 2002); Nelson v. State, 68 P.3d 402 (Alaska Ct. App. 2003); Bingaman v. State, 76 P.3d 398 (Alaska Ct. App. 2003); Dayton v. State, 78 P.3d 270 (Alaska Ct. App. 2003); Paige v. State, 115 P.3d 1244 (Alaska Ct. App. 2005); Grasser v. State, 119 P.3d 1016 (Alaska Ct. App. 2005); Ward v. State, 120 P.3d 204 (Alaska Ct. App. 2005); Williams v. State, 151 P.3d 460 (Alaska Ct. App. 2006); Benson v. State, 160 P.3d 161 (Alaska Ct. App. 2007); W.S. v. State, 174 P.3d 256 (Alaska Ct. App. 2008); Parks v. Parks, 214 P.3d 295 (Alaska 2009); Douglas v. State, 215 P.3d 357 (Alaska Ct. App. 2009); Howard v. State, 239 P.3d 426 (Alaska Ct. App. 2010); Stephanie F. v. George C., 270 P.3d 737 (Alaska 2012); Ahvakana v. State, 283 P.3d 1284 (Alaska Ct. App. 2012); Young v. State, 331 P.3d 1276 (Alaska Ct. App. 2014); Jordan v. State, 407 P.3d 499 (Alaska Ct. App. 2017); Love v. State, 436 P.3d 1058 (Alaska Ct. App. 2018); State v. Mayfield, 442 P.3d 794 (Alaska Ct. App. 2019); Priser v. State, — P.3d — (Alaska Ct. App. July 17, 2019); Alvarez-Perdomo v. State, 454 P.3d 998 (Alaska 2019); Shedlosky v. State, 472 P.3d 1094 (Alaska Ct. App. 2020); Ahvakana v. State, 475 P.3d 1118 (Alaska Ct. App. 2020); Soifua v. State, — P.3d — (Alaska Ct. App. Oct. 28, 2020); Compton v. State, 485 P.3d 56 (Alaska Ct. App. 2021).

Collateral references. —

Standard for judging conduct of minor motorist charged with gross negligence, recklessness, wilful or wanton misconduct, or the like, under guest statute or similar common-law rule, 97 ALR2d 861.

Dog as deadly or dangerous weapon for purposes of statutes aggravating offenses such as assault and robbery. 124 ALR5th 657.

Notes to Decisions

Conviction reversed because of inconsistent verdicts. —

See Davis v. State, 684 P.2d 147 (Alaska Ct. App. 1984).

Term of imprisonment upheld. —

Defendant’s lengthy misdemeanor record and the circumstances of his reckless endangerment conviction, particularly the near miss of a pedestrian, justified the imposition of a maximum term for driving while his license was suspended and a consecutive three-month unsuspended term for reckless endangerment. Joseph v. State, 775 P.2d 519 (Alaska Ct. App. 1989).

A total term of twenty-five years with ten years suspended was not excessive where sentence represented conviction of one class A felony (convictions of alternative counts of attempted kidnapping were merged into a single count), three class C felonies (third-degree assault), and two class A misdemeanors (reckless endangerment); this was so under the circumstances of this case, even though defendant was a first offender. Ramsey v. State, 834 P.2d 811 (Alaska Ct. App. 1992).

Evidence sufficient. —

Evidence was sufficient to convict defendant or reckless endangerment where he fled from the police with a semi-automatic pistol in his hand, shedding drugs as he ran, the chase led defendant and the police through heavy traffic and then through a residential neighborhood occupied by adults and children on a Saturday afternoon, and defendant abandoned the weapon in the neighborhood creating further risk. Andreasyan v. State, — P.3d — (Alaska Ct. App. July 28, 2010) (memorandum decision).

Where defendant discharged a gun through the passenger window of his car in a restaurant parking lot full of cars and people coming and going from the restaurant, conviction under this section was proper. Contreras v. State, — P.3d — (Alaska Ct. App. Jan. 25, 2012) (memorandum decision).

Expert witness. —

It was not an abuse of discretion to allow the State to present an expert witness from the State Crime Laboratory during its rebuttal case. While the defendant testified at trial that he only consumed five drinks, that he was only slightly intoxicated, and that he had a good recall of the events being litigated, the expert witness’s testimony tended to show that he consumed at least twice as much alcohol as he admitted in his testimony. Brennick v. State, — P.3d — (Alaska Ct. App. Dec. 18, 2013) (memorandum decision).

Refusal of breath test where reported domestic dispute failed to justify stop. —

Defendant’s motion to suppress should have been granted following arrest and refusal to submit to chemical test, because an investigative stop as a party to a reported domestic dispute, predicated on a 911 call, was not justified after that party had left the scene; there was insufficient objective basis to believe that the reported argument had led, or would lead, to a crime to justify the stop. Miller v. State, 145 P.3d 627 (Alaska Ct. App. 2006), rev'd, 207 P.3d 541 (Alaska 2009).

Evidence properly admitted. —

Trial court did not abuse its discretion in admitting evidence that the pesticide was a state and federally regulated pesticide as the testimony was relevant circumstantial evidence that it was a pesticide, established that the owner and the application company acted with criminal negligence and without prior authorization of the Alaska Department of Environmental Conservation, and provided relevant context to why the pesticide's use would have required prior authorization and whether the owner and company acted with criminal negligence in spreading it on a public right of way. Alleva v. State, 479 P.3d 405 (Alaska Ct. App. 2020).

Verdicts. —

Because defendant had to knowingly fire a weapon to commit fourth-degree weapons misconduct under AS 11.61.210(a)(3) , and “knowing” firing of the weapon was not required for a reckless endangerment conviction under AS 11.41.250(a) , the verdict acquitting him of weapons misconduct and convicting him of reckless endangerment was not inconsistent. Contreras v. State, — P.3d — (Alaska Ct. App. Jan. 25, 2012) (memorandum decision).

Because it was possible that the jury believed defendant possessed a firearm while impaired but had a reasonable doubt as to whether he hurt his wife or caused her to be afraid of him, and had a reasonable doubt as to whether he recklessly engaged in conduct that created a substantial risk of injury to the children, his conviction for misconduct involving weapons was not obviously inconsistent with the verdicts acquitting him of assault and reckless endangerment. Poland v. State, — P.3d — (Alaska Ct. App. Dec. 5, 2012) (memorandum decision).

Quoted in

Michael v. State, 767 P.2d 193 (Alaska Ct. App. 1988), rev’d on other grounds, Michael v. State, 805 P.2d 371 (Alaska 1991).; Stephanie W. v. Maxwell V., 319 P.3d 219 (Alaska 2014).

Collateral references. —

Parents’ criminal liability for failure to provide medical attention to their children. 118 ALR5th 253.

Notes to Decisions

Constitutionality. —

The potential due process and overbreadth problems in the definition of stalking do not require invalidation of the stalking statutes; rather, those problems should be resolved on a case-by-case basis. Petersen v. State, 930 P.2d 414 (Alaska Ct. App. 1996).

Sufficiency of evidence. —

Grand jury evidence was sufficient for indictment for first-degree stalking where there was a protective order in place against defendant who nevertheless made ongoing contact with victim, including numerous hang-up calls to the victim and victim’s boyfriend, paging the victim when she attended one of her boyfriend’s musical performances, and slashing tires on her and her boyfriend’s cars. Kenison v. State, 107 P.3d 335 (Alaska Ct. App. 2005).

Evidence was insufficient to convict defendant of first-degree stalking because the victim never asserted that his interactions with defendant during the weeks he had contact with defendant were anything but consensual; defendant's behavior during those weeks did not cause the victim to fear injury or death; defendant's text messages to the chief of police, who had taken the cell phone that defendant had given to the victim, did not constitute a series of non-consensual contacts with the victim as he was not even aware of defendant's text messages; and only the encounter at a store could be characterized as non-consensual contact with the victim, but one act of non-consensual contact was not enough to establish the offense of stalking. Johnson v. State, 390 P.3d 1212 (Alaska Ct. App. 2017).

Legitimate nonconsensual contacts and telephone calls not prohibited. —

The stalking statutes do not prohibit telephone calls or other nonconsensual contact made for a legitimate purpose, even when the defendant knows that the person contacted may or will unreasonably perceive the contact as threatening. Petersen v. State, 930 P.2d 414 (Alaska Ct. App. 1996).

Inclusion within AS 18.66.100(c)(2) of the phrase “or otherwise communicating” immediately after “contacting” strongly suggests that nonphysical contact must involve some element of direct or indirect communication and does not merely mean coming within view. Cooper v. Cooper, 144 P.3d 451 (Alaska 2006).

Where husband admitted having been at a mall at a time when his wife, who had sought a protective order against the husband, was also there, but he denied having seen his wife, being in the mere presence of his husband’s wife did not mean the husband was “contacting” his wife; the meaning of “contacting” had a normal meaning, and a nonphysical “contact” did not mean merely coming within view. Cooper v. Cooper, 144 P.3d 451 (Alaska 2006).

Notes to Decisions

Constitutionality. —

The potential due process and overbreadth problems in the definition of stalking do not require invalidation of the stalking statutes; rather, those problems should be resolved on a case-by-case basis. Petersen v. State, 930 P.2d 414 (Alaska Ct. App. 1996).

Fourth amendment compliance. —

Regarding arrestee’s argument that any reasonable officer should have known that search and arrest warrants violated the Fourth Amendment, police officers were entitled to qualified immunity because, even assuming that a book the arrestee provided to a teenager was not obscene or indecent, under the “shield of immunity” in Messerschmidt v. Millender , 565 U.S. 535, 132 S. Ct. 1235, 182 L. Ed. 2d 47 (2012), the officers subjected every step of their invasions of the arrestee’s privacy to evaluation both by prosecutors and by neutral judicial officials before they acted. Armstrong v. Asselin, 734 F.3d 984 (9th Cir. Alaska 2013).

Sufficiency of evidence. —

Grand jury evidence was sufficient for indictment for first-degree stalking, under AS 11.41.260 , where there was a protective order in place against defendant who nevertheless made ongoing contact with victim, including numerous hang-up calls to the victim and victim’s boyfriend, paging the victim when she attended one of her boyfriend’s musical performances, and slashing tires on her and her boyfriend’s cars. Kenison v. State, 107 P.3d 335 (Alaska Ct. App. 2005).

Conviction for first-degree stalking was upheld because the evidence was sufficient to prove that defendant’s repeated contacts with victims were “nonconsensual” within meaning of AS 11.41.270(b)(3) ; the prosecution was not required to show an element of coercion or force as part of the proof that the defendant’s course of conduct against the victim was “without that person’s consent.” After defendant was told by the victims that a person he asked for did not live there, defendant repeatedly stopped by the house and left food without attempting to contact the victims, gave a false name to the victims, and, after one of the victims told defendant not to come back, defendant returned to the house with a gun. Dickie v. State, 282 P.3d 382 (Alaska Ct. App. 2012).

Evidence was insufficient to convict defendant of first-degree stalking because the victim never asserted that his interactions with defendant during the weeks he had contact with defendant were anything but consensual; defendant's behavior during those weeks did not cause the victim to fear injury or death; defendant's text messages to the chief of police, who had taken the cell phone that defendant had given to the victim, did not constitute a series of non-consensual contacts with the victim as he was not even aware of defendant's text messages; and only the encounter at a store could be characterized as non-consensual contact with the victim, but one act of non-consensual contact was not enough to establish the offense of stalking. Johnson v. State, 390 P.3d 1212 (Alaska Ct. App. 2017).

Construction of “contact”. —

Inclusion within AS 18.66.100(c)(2) of the phrase “or otherwise communicating” immediately after “contacting” strongly suggests that nonphysical contact must involve some element of direct or indirect communication and does not merely mean coming within view; further, “nonconsensual contact” in this section is not all that is needed for a crime to take place; the contact must also be “repeated,” so that it is a course of conduct, and it must place the protected person in fear. The need for these additional requirements to make stalking a crime argues against a construction that makes merely appearing in the sight of a protected person, without more, a crime. Cooper v. Cooper, 144 P.3d 451 (Alaska 2006).

Stalking of ex-wife as domestic violence. —

Ex-husband’s threatening communications to his ex-wife constituted stalking; these acts by the ex-husband were sufficient support for the issuance of a protective order under AS 18.66.990 (3)(A) because stalking in the second degree is a crime involving domestic violence when committed against a former spouse. McComas v. Kirn, 105 P.3d 1130 (Alaska 2005).

Legitimate nonconsensual contacts and telephone calls not prohibited. —

The stalking statutes do not prohibit telephone calls or other nonconsensual contact made for a legitimate purpose, even when the defendant knows that the person contacted may or will unreasonably perceive the contact as threatening. Petersen v. State, 930 P.2d 414 (Alaska Ct. App. 1996).

Husband admitted to having been at a mall at a time when his wife, who had sought a protective order against the husband, was also there, but he denied having seen his wife. Only knowing contact was required, but the superior court’s error was harmless in holding that contact must be intentional because there was no conduct that amounted to “contacting” within the meaning of AS 18.66.100(c)(2) ; being in the mere presence of the husband’s wife did not mean the husband was “contacting” his wife; the meaning of “contacting” had a normal meaning, and a nonphysical “contact” did not mean merely coming within view. Cooper v. Cooper, 144 P.3d 451 (Alaska 2006).

Applied in

Vince B. v. Sarah B., 425 P.3d 55 (Alaska 2018).

Stated in

Cook v. State, 36 P.3d 710 (Alaska Ct. App. 2001); Martusheff v. State, 474 P.3d 12 (Alaska Ct. App. 2020).

Cited in

Prentzel v. State, 169 P.3d 573 (Alaska 2007); In re Ivy, 374 P.3d 374 (Alaska 2016).

Notes to Decisions

Annotator’s notes. —

Many of the cases cited in the notes below were decided under former AS 11.15.260.

The crime of kidnapping is designed to protect the general personal security of citizens both in their persons and property. Ladd v. State, 568 P.2d 960 (Alaska 1977), cert. denied, 435 U.S. 928, 98 S. Ct. 1498, 55 L. Ed. 2d 524 (U.S. 1978), overruled in part, Giacomazzi v. State, 633 P.2d 218 (Alaska 1981).

Constitutionality of former statute. —

See Levshakoff v. State, 565 P.2d 504 (Alaska 1977).

Scope of former statute. —

See Crump v. State, 625 P.2d 857 (Alaska 1981).

For discussion of elements that were required to be proved under former AS 11.15.260, see Davis v. State, 635 P.2d 481 (Alaska Ct. App. 1981).

Admissibility of evidence. —

Where evidence of cocaine possession and sale would have been admissible on murder, kidnapping, and robbery charges, but the murder, robbery, and kidnapping evidence would not have been admissible on the cocaine charges, the appropriate action upon appeal from conviction on all counts was to vacate the cocaine convictions but affirm the other convictions. Mathis v. State, 778 P.2d 1161 (Alaska Ct. App. 1989).

Defense that victim was defendant’s relative. —

The new criminal code, which states that it is an affirmative defense that defendant was a relative of the victim, provides for a broader exemption from the kidnapping statute than the absolute exemption for the abduction of a minor by his parent under former AS 11.15.260. Crump v. State, 625 P.2d 857 (Alaska 1981).

Former parental exemption. —

For case discussing the parental exemption contained in Alaska’s former kidnapping statute, AS 11.15.260, see Lythgoe v. State, 626 P.2d 1082 (Alaska 1980).

Lack of evidence. —

Trial court did not err in finding a lack of evidence of domestic violence in the proposed custodial household where the father’s girlfriend’s conduct as described in the protective order application and the trial testimony was not assault, custodial interference, or kidnapping, and the finding that there was no history of domestic violence by either party was not clearly erroneous. Jaymot v. Skillings-Donat, 216 P.3d 534 (Alaska 2009).

Liability of agent for person not entitled to custody of child. —

Where a person, while acting as an agent for a parent not entitled to custody, takes a child from one entitled to custody, the person can be convicted of both the substantive crime of kidnapping and conspiracy to kidnap. Crump v. State, 625 P.2d 857 (Alaska 1981).

Act of restraint shown. —

The jury could have concluded that defendant had secured victim’s presence in his van through deception — by luring her with false promises of information concerning a child custody dispute — thereby committing an act of restraint. State v. McDonald, 872 P.2d 627 (Alaska Ct. App. 1994).

Defendant and defendant’s companions restrained the victim for purposes of the kidnapping statute because they pinned the victim to his bunk on a fishing boat and beat him for a quarter of an hour, took him onto a dock and placed a noose around his neck and continued to assault him, and then forced the victim to walk almost a mile to a house and tried to force him to lure his cousin out of the house so that they could beat up the cousin. Davis v. State, — P.3d — (Alaska Ct. App. June 26, 2019) (memorandum decision).

“Restraint” incidental to some other offense. —

Dismissal is the proper remedy where kidnapping has been charged, but it is apparent that any “restraint” was incidental to the commission of some other offense, whether that offense be robbery or sexual assault. Alam v. State, 776 P.2d 345 (Alaska Ct. App. 1989).

Evidence was sufficient to support jury’s decision that defendant engaged in sexual contact with four female clients in his work as a massage therapist, in violation of AS 11.41.420(a)(1) ; the evidence reasonably supported the finding that the women were coerced by an implicit threat of imminent physical injury or kidnapping. Ritter v. State, 97 P.3d 73 (Alaska Ct. App. 2004).

Defendant’s conviction for the kidnapping of his estranged wife was supported by the evidence; jurors could reasonably have found that his hours-long restraint of the wife was more than merely incidental to his sexual and physical assaults upon her. Torrence v. State, — P.3d — (Alaska Ct. App. Mar. 27, 2013) (memorandum decision).

Act of restraint as basis for kidnapping and murder. —

In prosecution for kidnapping and murder, the jury was not instructed that, for purposes of the kidnapping charge, it was required to find an act of restraint going beyond any act incidental to victims murder; the jury instructions thus left open the possibility that the verdict of guilt on the kidnapping charge was based on the jury’s finding of an act of restraint that was integral to the conduct on which it based defendant’s conviction for murder. Therefore, the trial court properly recognized the potential violation of defendant’s double jeopardy rights and correctly declined to impose a sentence for kidnapping. State v. McDonald, 872 P.2d 627 (Alaska Ct. App. 1994).

If the defendant’s restraint of a victim is significant enough, that restraint can constitute the independent crime of kidnapping even though the restraint might simply be part of the defendant’s plan for committing the target crime. Hurd v. State, 22 P.3d 12 (Alaska Ct. App. 2001).

Coercion. —

Evidence was sufficient that defendant kidnapped the victim before shooting the victim because the victim was aware that defendant had earlier mused about killing a loved one when defendant appeared uninvited at the home of the victim's friend at around 3:00 a.m., displaying and racking a handgun. The jury could reasonably have concluded that the victim would not have departed but for coercion as the victim left the house without the victim's shoes or cell phone. Miftari v. State, — P.3d — (Alaska Ct. App. Dec. 20, 2017) (memorandum decision).

Restraint exceeded minimal necessary for crime of coercion. —

Where the state presented evidence that defendant restrained the victim for thirty to forty-five minutes, a restraint that far exceeded whatever minimal restraint might conceivably be inherent in the crime of coercion, the superior court correctly denied defendant’s motion for a judgment of acquittal on the kidnapping charge. Hurd v. State, 22 P.3d 12 (Alaska Ct. App. 2001).

Conspiracy to kidnap. —

Conspiracy to kidnap is no longer defined as an offense in Alaska under the newly revised criminal code. Lythgoe v. State, 626 P.2d 1082 (Alaska 1980).

Attempted kidnapping and other attempted crimes. —

Every attempted sexual assault, attempted physical assault, or attempted armed robbery does not necessarily involve an attempted kidnapping. In order to make these distinctions clear, it is important that the jury be properly instructed that conviction of attempted kidnapping under subsection (a)(1)(C) and AS 11.31.100 requires a duel intent (1) to physically or sexually assault the victim and (2) to restrain the victim beyond what is necessary to effectuate the assault. Alam v. State, 793 P.2d 1081 (Alaska Ct. App. 1990).

Separate crimes. —

Rape, assault with a dangerous weapon, and kidnapping are separate crimes with separate elements. Lacy v. State, 608 P.2d 19 (Alaska 1980).

Three separate counts of kidnapping. —

Defendant, who was charged with three separate counts of kidnapping, could be convicted on only one count, where all three counts involved the same victim and a single, continuing episode of restraint. Yearty v. State, 805 P.2d 987 (Alaska Ct. App. 1991).

Defendant’s restraint of a pedestrian, by blocking her movements with his automobile and by temporarily struggling with her, was at most incidental to an attempt to sexually assault or physically assault her and, consequently could not, as a matter of law, constitute kidnapping. Alam v. State, 793 P.2d 1081 (Alaska Ct. App. 1990).

Separate sentences were called for where defendant’s conduct in kidnapping and raping his victim and assaulting her with a deadly weapon constituted the commission of three distinct offenses, each of which violated a different societal interest. State v. Occhipinti, 562 P.2d 348 (Alaska 1977).

Applicability of partial affirmative defenses. —

A person charged with attempted kidnapping is not entitled to assert a partial defense when the intended victim of the crime is voluntarily released unharmed; under the plain language of subsection (d), the partial affirmative defense applies only in a prosecution for kidnapping. Laraby v. State, 710 P.2d 427 (Alaska Ct. App. 1985).

Safe release not found. —

Defendant was not entitled to a judgment of acquittal on the affirmative defense of safe release of the victim because defendant and defendant's companions did not voluntarily release the kidnapping victim in a safe place, but, instead, coerced the victim to enter a house to lure the victim's cousin out of the house under threat of injury, and departed when the victim defied their orders by closing and locking the door and calling the police upon entering the house. Moreover, the victim suffered serious shoulder injury in the assault. Davis v. State, — P.3d — (Alaska Ct. App. June 26, 2019) (memorandum decision).

Joinder of charges. —

Cocaine charges and murder, kidnapping, and robbery charges were properly joined, where the state’s theory of the murder, kidnapping, and robbery offenses was that defendants committed the murder and carried out the kidnapping and robbery in defense of their cocaine distribution business. Mathis v. State, 778 P.2d 1161 (Alaska Ct. App. 1989).

Sexual assault and kidnapping are sufficiently distinct to warrant separate sentences without violation of double jeopardy, even when the assault and kidnapping are part of a single continuous transaction. Wilson v. State, 670 P.2d 1149 (Alaska Ct. App. 1983).

Convictions for kidnapping and sexual assault do not merge. Yearty v. State, 805 P.2d 987 (Alaska Ct. App. 1991).

Conviction upheld. —

Evidence was sufficient to support defendant’s kidnapping conviction where she and a co-defendant picked the victim up off the street and brought her to a secure, discreet location where the defendants tortured and beat her for days. In addition, the victim was moved miles across Anchorage and restrained for at least two days, and the restraint far exceeded the minimal time required to perpetrate sexual and physical assaults. Cleveland v. State, 258 P.3d 878 (Alaska Ct. App. 2011).

Defendant was properly convicted of kidnapping and first-degree assault because he demanded that his long-term partner (the victim) get into the car with him, bound her hands and feet, and refused to allow her to leave the home to seek medical assistance for two days, defendant was on notice from the grand jury presentation that the State would be relying on evidence that he bound the victim's arms and legs to support the kidnapping charges, a unanimity instruction was not so obvious that any competent judge or attorney would have recognized it given the way the case was litigated, and the State proved that the binding was more than “incidental” to the accompanying assault. Parks v. State, — P.3d — (Alaska Ct. App. June 21, 2017) (memorandum decision).

Conviction and sentence upheld. —

Conviction and sentence for kidnapping, assault in the first degree, misconduct involving weapons in the first degree and robbery in the first degree were affirmed. See Wortham v. State, 689 P.2d 1133 (Alaska Ct. App. 1984); Andrejko v. State, 695 P.2d 246 (Alaska Ct. App. 1985).

Evidence was sufficient for conviction of kidnapping under subparagraph (a)(1)(C) of this section, where defendant and a cohort bound and repeatedly hit a victim over several hours. Spencer v. State, 164 P.3d 649 (Alaska Ct. App. 2007).

Convictions reversed because of erroneous jury instruction. —

Convictions for attempted sexual assault in the first degree and kidnapping were reversed because of an erroneous jury instruction on sexual assault in the first degree concerning consent. The correct standard is whether the defendant recklessly disregarded the victim’s lack of consent. Laseter v. State, 684 P.2d 139 (Alaska Ct. App. 1984).

Sentences upheld. —

See Morrell v. State, 575 P.2d 1200 (Alaska 1978); Post v. State, 580 P.2d 304 (Alaska 1978); Davis v. State, 635 P.2d 481 (Alaska Ct. App. 1981); Williams v. State, 652 P.2d 478 (Alaska Ct. App. 1982); Contreras v. State, 767 P.2d 1169 (Alaska Ct. App. 1989), disapproved, State v. Bumpus, 820 P.2d 298 (Alaska 1991); Yearty v. State, 805 P.2d 987 (Alaska Ct. App. 1991); Alexander v. State, 838 P.2d 269 (Alaska Ct. App. 1992).

Sentence of 20 years for kidnapping and 10 years for first-degree sexual assault, with the sexual assault sentence made consecutive to the kidnapping sentence, was not excessive. Wilson v. State, 670 P.2d 1149 (Alaska Ct. App. 1983).

The court’s imposition of consecutive sentences for the two kidnappings and one robbery arising out of the same transaction does not violate double jeopardy. Walker v. Endell, 828 F.2d 1378 (9th Cir. Alaska), amended, 850 F.2d 470 (9th Cir. Alaska 1987).

Composite sentence of 12 years for kidnapping, first-degree physical assault, and first-degree sexual assault not too lenient. See Garrison v. State, 762 P.2d 465 (Alaska Ct. App. 1988).

A total term of twenty-five years with ten years suspended was not excessive where sentence represented conviction of one class A felony (convictions of alternative counts of attempted kidnapping were merged into a single count), three class C felonies (third-degree assault), and two class A misdemeanors (reckless endangerment); this was so under the circumstances of this case, even though defendant was a first offender. Ramsey v. State, 834 P.2d 811 (Alaska Ct. App. 1992).

Court properly applied the seven-year presumptive sentence because the mandatory minimum sentences were intended for the least serious offenses within the statutory definition and defendant should receive a more severe sentence than the five-year mandatory minimum unless he affirmatively convinces the sentencing judge that his conduct was uncommonly mitigated. Soundara v. State, 107 P.3d 290 (Alaska Ct. App. 2005).

Where defendant was convicted of second-degree murder and kidnapping, the trial court’s decision to restrict defendant’s eligibility to apply for discretionary parole until he had served 30 years of his sentence was not clearly mistaken where the trial court found there was a need to protect the public, where the defendant’s prior offenses, though misdemeanors, were numerous and serious, where defendant was a cocaine dealer, and where defendant had committed fourteen infractions while in jail awaiting trial. Page v. State, — P.3d — (Alaska Ct. App. Sept. 22, 2010) (memorandum decision).

Defendant’s sentence of 45 years’ imprisonment for kidnapping and assault was not excessive because she received a sentence near the minimum for the offenses; the trial judge determined that defendant would fail if she was again released on probation, and the judge felt strongly about the need to protect the public from future retaliation. Cleveland v. State, 258 P.3d 878 (Alaska Ct. App. 2011).

Where defendant kidnapped the victim, held her against her will for three days, beat her, whipped her, threatened to kill her, and watched while another man committed a degrading sexual assault on her, and where he was convicted of kidnapping, third-degree assault, third-degree misconduct involving weapons, and two counts of fourth-degree assault, a 25-year composite sentence was not excessive. While defendant may not have committed some of the most egregious violations against the victim, he was the initiator of the entire incident. McClain v. State, — P.3d — (Alaska Ct. App. June 8, 2011) (memorandum decision).

Sentence found excessive. —

See Hintz v. State, 627 P.2d 207 (Alaska 1981).

Composite sentence of 41 years for convictions of sexual assault in the first degree, kidnapping, three counts of assault in the third degree and one count of assault in the fourth degree was excessive; the defendant should not have received a sentence in excess of 30 years. Patterson v. State, 689 P.2d 146 (Alaska Ct. App. 1984).

Parental kidnapping. —

In a child custody proceeding, the court erred in implying that a mother had violated policies against parental kidnapping where the most serious allegation against her was that she took the child to another state because she wanted to get away from the father and did not want any interference in raising the child. Vachon v. Pugliese, 931 P.2d 371 (Alaska 1996).

Applied in

Nukapigak v. State, 645 P.2d 215 (Alaska Ct. App. 1982); Baker v. State, 655 P.2d 1324 (Alaska Ct. App. 1983); Bidwell v. State, 656 P.2d 592 (Alaska Ct. App. 1983); Reynolds v. State, 664 P.2d 621 (Alaska Ct. App. 1983); Barry v. State, 675 P.2d 1292 (Alaska Ct. App. 1984); Manrique v. State, 177 P.3d 1188 (Alaska Ct. App. 2008).

Quoted in

Bowell v. State, 728 P.2d 1220 (Alaska Ct. App. 1986).

Stated in

Walker v. Endell, 850 F.2d 470 (9th Cir. Alaska 1987); Martusheff v. State, 474 P.3d 12 (Alaska Ct. App. 2020).

Cited in

Nukapigak v. State, 663 P.2d 943 (Alaska 1983); Johnson v. State, 665 P.2d 566 (Alaska Ct. App. 1983); Nylund v. State, 716 P.2d 387 (Alaska Ct. App. 1986); Newsom v. State, 726 P.2d 561 (Alaska Ct. App. 1986); Ervin v. State, 761 P.2d 124 (Alaska Ct. App. 1988); Robison v. State, 763 P.2d 1357 (Alaska Ct. App. 1988); White v. State, 773 P.2d 211 (Alaska Ct. App. 1989); Brandon v. State, 778 P.2d 221 (Alaska Ct. App. 1989); Ross v. State, 877 P.2d 777 (Alaska Ct. App. 1994); Johnson v. State, 889 P.2d 1076 (Alaska Ct. App. 1995); Howarth v. State, Public Defender Agency, 925 P.2d 1330 (Alaska 1996); Wardlow v. State, 2 P.3d 1238 (Alaska Ct. App. 2000); Pearce v. State, 45 P.3d 679 (Alaska Ct. App. 2002); Hurd v. State, 107 P.3d 314 (Alaska Ct. App. 2005); State v. Kalmakoff, 122 P.3d 224 (Alaska Ct. App. 2005); State v. Dague, 143 P.3d 988 (Alaska Ct. App. 2006); Heavyrunner v. State, 172 P.3d 819 (Alaska Ct. App. 2007); Smith v. State, 185 P.3d 767 (Alaska Ct. App. 2008); Doe v. Dep't of Pub. Safety, 444 P.3d 116 (Alaska 2019).

Notes to Decisions

In general. —

The crime of custodial interference was designed to protect any custodian from deprivation of his or her custody rights — even if that deprivation results from the actions of a person who also has a right to physical custody of the child; the crime does not focus on the legal status of the defendant, but rather focuses on the defendant’s actions, the effect of the defendant’s actions, and the intent with which those actions were performed. Strother v. State, 891 P.2d 214 (Alaska Ct. App. 1995).

Rights of joint custodian. —

When a child is entrusted to joint custodians, neither custodian may take exclusive physical custody of the child in a manner that defeats the rights of the other joint custodian. Strother v. State, 891 P.2d 214 (Alaska Ct. App. 1995).

After a mother left the country with her daughter to live in a cabin in the woods which had no electricity, and did not honor the week on/week off summer custody order, she was guilty of custodial interference in the first degree. Her actions did not justify a jury instruction on misdemeanor failure to permit visitation. There are critical differences between the two offenses, the most significant of which is that the father had custody during his on weeks in the summer, and not just visitation. Jorgens v. State, — P.3d — (Alaska Ct. App. Nov. 20, 2013) (memorandum decision).

Protracted period. —

Retention of child in another state for over a year satisfied the “protracted period” requirement. Gerlach v. State, 699 P.2d 358 (Alaska Ct. App. 1985).

Defendant’s knowledge and intent. —

In a prosecution for custodial interference, the trial court erred in barring the testimony of defendant’s attorney that he had advised defendant that there was a substantial doubt as to the validity of the state’s actions relating to the custody of her child since such testimony was relevant to the issue of whether defendant had the culpable mental state required for custodial interference. Cornwall v. State, 915 P.2d 640 (Alaska Ct. App. 1996).

Defendant’s testimony. —

In a prosecution of defendant for first degree custodial interference, the trial court erred when it barred defendant’s testimony; defendant, who disclaimed any reliance on the affirmative defense of necessity, was entitled to testify that he did not have the conscious objective to withhold his child for a protracted period, even if his proffered testimony did not appear plausible in the circumstances of his case. Perrin v. State, 66 P.3d 21 (Alaska Ct. App. 2003).

Necessity defense unavailable. —

The trial court did not err in denying defendant the right to rely on a necessity defense in prosecution for custodial interference in the first degree. Gerlach v. State, 699 P.2d 358 (Alaska Ct. App. 1985).

Proof of elements of first-degree custodial interference. —

A person commits first-degree custodial interference regardless of whether the child’s removal from Alaska occurs before or after the person takes unlawful control of the child. State v. District Court, 962 P.2d 895 (Alaska Ct. App. 1998).

It was not clear error, in a custody case, to find a mother committed custodial interference in the first degree because, (1) at the time the mother kept the children from the children's father, the father was the children's lawful custodian pursuant to a visitation order granting the father visitation during that period, and (2) it was not clear error to find the mother intentionally kept the children from the father for a protracted period when the mother's alleged efforts to have the children board a plane were found to be for show. Regina C. v. Michael C., 440 P.3d 199 (Alaska 2019).

Lack of evidence of domestic violence. —

Trial court did not err in finding a lack of evidence of domestic violence in the proposed custodial household where the father’s girlfriend’s conduct as described in the protective order application and the trial testimony was not assault, custodial interference, or kidnapping, and the finding that there was no history of domestic violence by either party was not clearly erroneous. Jaymot v. Skillings-Donat, 216 P.3d 534 (Alaska 2009).

Attorney-client privilege. —

Portions of an email to the defendant from her attorney should not have been admitted into evidence. There was nothing in the email to suggest that the attorney was providing defendant guidance as to eluding police or furthering her crime. However, other parts of the email, related to informing defendant of a court date and attaching court documents, were not privileged. Although the protected communication part of the email should not have been admitted, it was harmless error as the prosecution did not rely upon it in arguing the case, and there was substantial additional evidence supporting defendant’s conviction. Jorgens v. State, — P.3d — (Alaska Ct. App. Nov. 20, 2013) (memorandum decision).

Sentence upheld. —

Sentence of five years with three years suspended for custodial interference in the first degree, followed by a five-year suspended imposition of sentence for theft in the second degree, was not excessive, where defendant had seized his children in direct defiance of a court order and it was deemed necessary to impose a substantial suspended sentence in order to deter him from future criminal violations. Sandelin v. State, 766 P.2d 1184 (Alaska Ct. App. 1989).

Prosecution not barred. —

Alaska prosecution for custodial interference, based on defendant’s act of taking his son out of the state on or about August 2, 1988, was not barred by an Arizona conviction for custodial interference on or about March 9, 1990, and based upon defendant’s act of keeping his son from the lawful custody of the son’s natural mother. The two charges encompassed different acts and could support different charges. Seaman v. State, 825 P.2d 907 (Alaska Ct. App. 1992).

Collateral references. —

Kidnapping or other criminal offense by taking or removal of child by, or under authority of, parent or one in loco parentis, 20 ALR4th 823.

Validity, construction and application of state statutes or ordinances regulating sexual performance by child, 42 ALR5th 291.

Notes to Decisions

In general. —

The crime of custodial interference was designed to protect any custodian from deprivation of his or her custody rights — even if that deprivation results from the actions of a person who also has a right to physical custody of the child; the crime does not focus on the legal status of the defendant, but rather focuses on the defendant’s actions, the effect of the defendant’s actions, and the intent with which those actions were performed. Strother v. State, 891 P.2d 214 (Alaska Ct. App. 1995).

Superior court did not err in granting a mother’s motion for sole legal and primary physical custody because its factual finding supported the conclusion that the father substantially interfered with the mother’s visitation rights, which was a substantial change in circumstances justifying a modification of the existing custody arrangement; the father took the parties’ child out of the State without informing the mother and caused the mother to miss six visitations in a row. Graham R. v. Jane S., 334 P.3d 688 (Alaska 2014).

Modification of custody and visitation. —

Because a father alleged that a mother committed multiple acts of custodial interference, he should have been allowed the opportunity to prove his allegations of domestic violence at a hearing on his motion to modify custody and visitation. Daniel H. v. Amber G., — P.3d — (Alaska June 10, 2020).

Rights of joint custodian. —

When a child is entrusted to joint custodians, neither custodian may take exclusive physical custody of the child in a manner that defeats the rights of the other joint custodian. Strother v. State, 891 P.2d 214 (Alaska Ct. App. 1995).

Proof of elements of first-degree custodial interference. —

A person commits first-degree custodial interference regardless of whether the child’s removal from Alaska occurs before or after the person takes unlawful control of the child. State v. District Court, 962 P.2d 895 (Alaska Ct. App. 1998).

It was not clear error, in a custody case, to find a mother committed custodial interference in the first degree because, (1) at the time the mother kept the children from the children's father, the father was the children's lawful custodian pursuant to a visitation order granting the father visitation during that period, and (2) it was not clear error to find the mother intentionally kept the children from the father for a protracted period when the mother's alleged efforts to have the children board a plane were found to be for show. Regina C. v. Michael C., 440 P.3d 199 (Alaska 2019).

Evidence held sufficient. —

Husband engaged in acts that undeniably defeated his wife’s co-extensive right of custody when he removed child to another state, left two letters telling his wife that she would never again see either him or their daughter, and for several weeks was successful in keeping both his own whereabouts and the child’s whereabouts hidden from his wife and the authorities; this conduct was sufficient to constitute that actus reus of the offense of custodial interference: the keeping of the child with no legal right to do so. Strother v. State, 891 P.2d 214 (Alaska Ct. App. 1995).

Mother committed custodial interference, a crime of domestic violence, when the mother, who claimed concerns about the child's safety, refused to return the parties' daughter to the father's care at the end of regular weekend visitation as required by a custody order, and refused to tell the father where the child was for two days thereafter. The necessity defense was not applicable to the mother's conduct. Kelly D. v. Anthony K., — P.3d — (Alaska May 29, 2019) (memorandum decision).

Protracted period. —

See note under same catchline, AS 11.41.320 , Gerlach v. State, 699 P.2d 358 (Alaska Ct. App. 1985).

Quoted in

Susan M. v. Paul H., 362 P.3d 460 (Alaska 2015).

Cited in

Perrin v. State, 66 P.3d 21 (Alaska Ct. App. 2003).

Notes to Decisions

“Lawful custodian.” —

It was not clear error, in a custody case, to find a mother committed custodial interference in the first degree because, (1) at the time the mother kept the children from the children's father, the father was the children's lawful custodian pursuant to a visitation order granting the father visitation during that period, and (2) it was not clear error to find the mother intentionally kept the children from the father for a protracted period when the mother's alleged efforts to have the children board a plane were found to be for show. Regina C. v. Michael C., 440 P.3d 199 (Alaska 2019).

Restraint that constitutes independent crime of kidnapping. —

If the defendant’s restraint of a victim is significant enough, that restraint can constitute the independent crime of kidnapping even though the restraint might simply be part of the defendant’s plan for committing a separate target crime. Hurd v. State, 22 P.3d 12 (Alaska Ct. App. 2001).

Restraint by deception. —

The jury could have concluded that defendant had secured victim’s presence in his van through deception — by luring her with false promises of information concerning a child custody dispute — thereby committing an act of restraint. State v. McDonald, 872 P.2d 627 (Alaska Ct. App. 1994).

Defense that victim was defendant’s relative. —

The new criminal code, which states in AS 11.41.300(b)(1) that it is an affirmative defense that defendant was a relative of the victim, provides for a broader exemption from the kidnapping statute than the absolute exemption for the abduction of a minor by his parent under former AS 11.15.260. Crump v. State, 625 P.2d 857 (Alaska 1981).

Quoted in

Alam v. State, 793 P.2d 1081 (Alaska Ct. App. 1990).

Stated in

Strother v. State, 891 P.2d 214 (Alaska Ct. App. 1995).

Cited in

Gerlach v. State, 699 P.2d 358 (Alaska Ct. App. 1985); Dickie v. State, 282 P.3d 382 (Alaska Ct. App. 2012).

Notes to Decisions

Analysis

• I. General Consideration
• II. Former Law
  • A. Generally
  • B. Age of Consent
  • C. Procedure

Notes to Decisions

For cases construing former crime of rape, see notes to AS 11.41.410 .

Constitutionality. —

Where man was convicted of second-degree sexual assault under paragraph (a)(3) for engaging in sexual penetration with a woman who was so intoxicated that she was either incapacitated or unaware of the sexual penetration, the court of appeals held that the definition of second-degree sexual assault did not violate the single subject clause of the Alaska Constitution and was not unconstitutionally vague. Ragsdale v. State, 23 P.3d 653 (Alaska Ct. App. 2001).

Attempted sexual assault in the first degree and sexual assault in the second degree are closely related, since sexual penetration involves sexual contact and both offenses proceed on a theory of coerced assent. Nicholson v. State, 656 P.2d 1209 (Alaska Ct. App. 1982).

Construction. —

The statutory language in this section is not so imprecise that ordinary persons of common intelligence are left to guess at its meaning and are apt to differ as to its scope; the trial court did not err in rejecting defendant’s claim of vagueness and overbreadth. Jackson v. State, 890 P.2d 587 (Alaska Ct. App. 1995).

To prove that a defendant committed the crime of attempted second-degree sexual assault under AS 11.41.420(a)(1) , the State must establish that: the defendant (1) intended to engage in sexual contact with the victim; (2) recklessly disregarded a substantial and unjustifiable risk that the victim was unwilling to engage in the sexual contact; (3) intended to use force or threat of force if necessary to achieve the sexual contact; and (4) took a substantial step toward achievement of the completed crime. State v. Mayfield, 442 P.3d 794 (Alaska Ct. App. 2019).

Constitutionality of conviction where original charge was under AS 11.41.410 . —

Where defendant was charged with attempted sexual assault in the first degree, he was thereby assumed to have notice that he might be convicted of second-degree sexual assault because of the similarities in the elements of the two offenses, and his conviction for the latter offense did not violate due process. Nicholson v. State, 656 P.2d 1209 (Alaska Ct. App. 1982).

Attempt to commit sexual assault is a crime under Alaska law and requires that defendant, intending to engage in sexual contact with another person without regard to that person’s lack of consent, take a substantial step toward accomplishing this goal. Guertin v. State, 854 P.2d 1130 (Alaska Ct. App. 1993).

Evidence was sufficient to convict defendant of attempted sexual assault in the second degree; an eyewitness’s testimony, which was corroborated, was that the victim was incapacitated. Other corroborating evidence led the trial judge to the conclusion that defendant had at least attempted sexual penetration, which might not have been completed due to defendant’s obvious level of intoxication. Cano v. State, — P.3d — (Alaska Ct. App. Oct. 7, 2009) (memorandum decision).

Indictment. —

There was no fatal variance between the first-degree sexual assault counts for which defendant was indicted and the second-degree sexual assault counts for which defendant was convicted, as the grand jury heard evidence that could potentially have supported an incapacitation “without consent” theory; defendant's preparations for trial indicated that he expected to be tried under an incapacitation “without consent” theory for at least some of the counts. Holt v. State, — P.3d — (Alaska Ct. App. Apr. 3, 2019) (memorandum decision).

Without consent. —

Evidence supported conviction where it showed that defendant had to be aware that his stepdaughters were in fear of him and were too intimidated to stop or resist unwanted sexual contact. When he assaulted a sleeping stepdaughter who awoke but was afraid to protest or resist, her lack of resistance did not constitute consent. Adams v. State, — P.3d — (Alaska Ct. App. Mar. 28, 2012) (memorandum decision).

Trial judge erred in instructing the jury on the “incapacitation” clause of the definition of without consent, because while defendant gave the victim sleeping pills, there was no evidence that she was incapacitated at the time; however, the error was harmless as the jury was correctly instructed on the legal meaning of incapacitated and could see for themselves that the evidence failed to support the prosecutor's assertion that the victim was incapacitated. Malyk v. State, — P.3d — (Alaska Ct. App. Dec. 19, 2018) (memorandum decision).

Instruction on the elements of second-degree sexual assault was flawed, as the list of elements failed to explicitly reiterate the requirement that the sexual contact occurred without the victim's consent; however, the flaw was cured by the prosecutor's repeated statements that the State was required to prove that defendant's sexual contact with the victim was without consent. Malyk v. State, — P.3d — (Alaska Ct. App. Dec. 19, 2018) (memorandum decision).

Sufficient evidence supported defendant's second-degree sexual assault conviction because the evidence showed the coercion element of “without consent,” as a reasonable juror could find defendant's grabbing of the victim's breasts and ensuing attack were connected parts of a continuous episode and occurred without consent. Inga v. State, 440 P.3d 345 (Alaska Ct. App. 2019).

Incapacitated. —

Superior court properly convicted defendant, following a jury trial, of second-degree sexual assault for vaginally penetrating his cousin (the victim) while she was unconscious because the evidence established that the victim was incapacitated and that defendant knew that she was incapacitated—she had four to six shots of whiskey, did not remember lying down in the bed in which she woke up, did not remember the sexual assault, and never would have consciously consented to have sex with defendant. Defendant failed to explain how an error in the timing of the admission of the text messages prejudiced him, and the court engaged in a thorough review of the statutory criteria and explained in detail the reasons it imposed the sentence it did. Williams v. State, 486 P.3d 1134 (Alaska Ct. App. 2021).

Mentally incapable. —

To appreciate the nature and consequences of engaging in an act of sexual penetration, the victim must have the capacity to understand the full range of ordinary and foreseeable social, medical, and practical consequences that the act entails. Jackson v. State, 890 P.2d 587 (Alaska Ct. App. 1995).

To prove that defendant knew of victim’s incapacity, the state was not required to demonstrate absolute certainty on defendant’s part; there was substantial circumstantial evidence in the trial record to support an inference that defendant acted with awareness of a substantial probability that victim was mentally incapable. Jackson v. State, 890 P.2d 587 (Alaska Ct. App. 1995).

Where the state presented no expert testimony to prove that victim was “mentally incapable” but instead, relied on the testimony of victim’s mother and on the jury’s ability to observe the manner in which victim spoke and acted, both when she testified at trial and during a videotaped pretrial police interview which was introduced at trial, defendant’s argument that, absent expert testimony, there was insufficient evidence to support a finding that victim was “mentally incapable” was unpersuasive; victim’s personal appearance before the jury and her videotaped pretrial interview with the police provided compelling evidence of her incapacity. Jackson v. State, 890 P.2d 587 (Alaska Ct. App. 1995).

Exchange of drugs for sex by physician. —

In a case where defendant had sexual relations with patients in exchange for prescriptions, there was sufficient evidence to support convictions for first and second degree sexual assault, despite contradictions in the testimony and the uncertainty of dates. Patients testified about sexual intercourse occurring after medication, and about inappropriate fondling. Grandstaff v. State, 171 P.3d 1176 (Alaska Ct. App. 2007).

Health care workers. —

When the state’s case for second degree sexual assault is based on the allegation that a conscious patient was subjected to touching that exceeded the bounds of legitimate treatment, the state must also prove that the health care worker knew that there was at least a substantial probability that the patient was unaware that the touching exceeded the bounds of legitimate treatment. Ritter v. State, 16 P.3d 191 (Alaska Ct. App. 2001).

The evidence presented to the grand jury was sufficient to support the massage therapist/health care worker’s indictment on six counts of second-degree sexual assault under (a)(4), under the theory that the massage therapist engaged in sexual contact with patients who he knew were unaware that sexual contact was occurring. Ritter v. State, 16 P.3d 191 (Alaska Ct. App. 2001).

Incapacitated. —

A sleeping person can be “incapacitated” within the meaning of AS 11.41.470 (2). King v. State, 978 P.2d 1278 (Alaska Ct. App. 1999).

Jury verdict of second-degree sexual assault, under subsection (a)(3)(B) and (C), was proper where there was sufficient direct and circumstantial evidence that defendant removed the victim’s clothing and had sex with her after she went to sleep, and that the defendant knew that the victim was unaware or incapacitated by intoxication. Bartman v. State, — P.3d — (Alaska Ct. App. Jan. 7, 2009) (memorandum decision).

Evidence which the State presented to the grand jury was insufficient to show that defendant compelled the victim to submit to sexual touching by the use of force; the evidence showed that, when defendant assaulted him, the victim was not intimidated but reacted immediately to terminate the assault, and the evidence which the State presented to the grand jury was insufficient to indict defendant for sexual assault in the second degree. State v. Townsend, — P.3d — (Alaska Ct. App. Sept. 14, 2011) (memorandum decision).

Evidence was sufficient for a jury to conclude that the defendant knew his victim was incapacitated under this section where both the victim’s son and the village public safety officer testified that the victim was so extremely intoxicated that they felt they needed to put her in a secure place for her own protection. Bavilla v. State, — P.3d — (Alaska Ct. App. May 23, 2012) (memorandum decision).

Evidence was sufficient to support a conviction for sexual assault in the second degree because the evidence showed that a victim was incapacitated when defendant had sexual intercourse with her; the victim consumed an entire bottle of whiskey, her blood-alcohol level was .377 percent nine hours after the sexual assault, a witness testified that the victim was too drunk to be having sex, and expert testimony established that her blood-alcohol content would have been even higher when the sexual assault occurred. Russell-Durant v. State, — P.3d — (Alaska Ct. App. Apr. 11, 2012) (memorandum decision).

Superior court properly convicted defendant, following a jury trial, of second-degree sexual assault for vaginally penetrating his cousin (the victim) while she was unconscious because the evidence was sufficient to establish both that the victim was incapacitated and that defendant knew she was incapacitated. She testified that she had four to six shots of whiskey, did not remember lying down in the bed in which she woke up, did not remember the sexual assault, and never would have consciously consented to have sex with defendant. A witness testified that defendant was coherent and offered the witness a drink just minutes before the sexual assault occurred. Williams v. State, — P.3d — (Alaska Ct. App. Mar. 24, 2021), op. withdrawn, — P.3d — (Alaska Ct. App. 2021), sub. op., 486 P.3d 1134 (Alaska Ct. App. 2021).

Coercion established. —

Defendant inserted his hand under his 16-year-old niece's clothing, and he held his hand on top of her genitals, and when his niece pulled his hand out, he grabbed her hand and held it against his penis; in both instances, defendant's conduct was legally sufficient to establish that his niece was coerced to engage in this sexual contact. Malyk v. State, — P.3d — (Alaska Ct. App. Dec. 19, 2018) (memorandum decision).

Evidence. —

Where victim woke up in the early morning hours to find defendant in her bed and fondling her breast, and where she testified that she was temporarily in shock and afraid he would hurt her, a jury could find that defendant’s actions constituted second-degree sexual assault despite victim’s momentary acquiescence in defendant’s fondling her breast. Nicholson v. State, 656 P.2d 1209 (Alaska Ct. App. 1982).

Exclusion of expert testimony regarding problems in evaluating the accuracy of eyewitness testimony was reversible error, where the case turned on the testimony of a single witness — the victim, the excluded testimony was central to the defense, and it could not be said that its exclusion did not appreciably affect the jury’s verdict. Skamarocius v. State, 731 P.2d 63 (Alaska Ct. App. 1987).

Evidence was sufficient to support jury’s decision that defendant engaged in sexual contact with four female clients in his work as a massage therapist, in violation of this section; the evidence reasonably supported the finding that the women were coerced by an implicit threat of imminent physical injury or kidnapping. Ritter v. State, 97 P.3d 73 (Alaska Ct. App. 2004).

Evidence was sufficient to support a conviction for second-degree sexual assault where a victim and a witness both testified that defendant had sex with the victim while she was incapacitated from drinking; this evidence was sufficient for a fair-minded juror to conclude that defendant sexually penetrated the victim while she was incapacitated and unaware of what was happening. Kobuk v. State, — P.3d — (Alaska Ct. App. Apr. 8, 2015) (memorandum decision).

Evidence was sufficient to convict defendant of second-degree sexual assault of an incapacitated woman because, after buying gas and cigarettes, the next thing the victim remembered was drifting into and out of consciousness on a stranger's bed, and that two men she did not know each pinned her shoulders to the bed as the other had intercourse with her; an officer discovered defendant passed out in a nearby backyard and found the victim's driver's license, social security card, and pill bottle on him; defendant later called his sister from the jail and told her that he and an accomplice had found the victim falling asleep in her car; and the victim identified defendant with reasonable certainty in a photo lineup. Creson v. State, — P.3d — (Alaska Ct. App. June 1, 2016) (memorandum decision).

While the trial court erred in convicting defendant of second-degree sexual assault by prohibiting defendant's attorney from introducing evidence of the victim's bias, the error was harmless because there was no evidence that anyone threatened to report the victim to the Office of Children's Services (OCS), or that the victim was otherwise afraid of OCS involvement for any reason other than her report of the sexual assault, and defendant repeatedly apologized for sexually assaulting the victim during a monitored telephone conversation between him and the victim. Lee v. State, — P.3d — (Alaska Ct. App. May 17, 2017) (memorandum decision).

Defendant was properly found guilty of second-degree sexual assault because the superior court properly excluded evidence of a sexual assault of the victim slightly more than a year before the current sexual assault where there was no possibility that the victim's testimony was based on a confused recollection of a prior sexual assault, the State proved its case through the three testifying eyewitnesses, and there was no likelihood that evidence regarding a 2009 sex-in-the-park incident would have affected the jury's verdict. Luke v. State, — P.3d — (Alaska Ct. App. Sept. 19, 2018) (memorandum decision).

Verdicts convicting defendant of first-degree sexual assault and second-degree sexual assault were not inconsistent because a reasonable jury could find the victim was initially incapacitated during the assault, regained capacity, and defendant continued the assault after the victim communicated a lack of consent. Dunn v. State, — P.3d — (Alaska Ct. App. Nov. 20, 2019) (memorandum decision).

Evidence was sufficient to support defendant's conviction for second-degree sexual assault for making hand-to-genital contact with a woman in a grocery store because a reasonable juror could have concluded that defendant's act of touching the victim's genitals was coerced by the use of force without consent. Dorsey v. State, 480 P.3d 1211 (Alaska Ct. App. 2021).

Crime committed before sex offender registration law effective. —

Where defendant was convicted of second-degree sexual assault, a crime he committed before the sex offender registration law took effect, he could not pursue his claim of a violation of the ex post facto clause in applying that law on appeal since the application thereof had no effect on the validity of his conviction. Bobby v. State, 950 P.2d 135 (Alaska Ct. App. 1997).

Instructions. —

The trial judge did not err in refusing to instruct on the lesser included offense of attempted sexual contact in the second degree. Johnson v. State, 665 P.2d 566 (Alaska Ct. App. 1983).

The trial judge did not err in failing to give an instruction on assault in the fourth degree as a lesser included offense to the two counts of sexual assault in the second degree where any assault occurred after the consensual sexual contact. Reischman v. State, 746 P.2d 912 (Alaska Ct. App. 1987).

For sufficiency of instructions on incapacity of victim, see Dexter v. State, 672 P.2d 144 (Alaska Ct. App. 1983) (decided under former AS 11.41.430 ).

Instruction on attempted second-degree sexual assault correctly informed jury that the state had to prove that defendant intended to engage in sexual contact with the victim. Guertin v. State, 854 P.2d 1130 (Alaska Ct. App. 1993).

To the extent that a jury instruction on second-degree sexual assault lacked clarity regarding the necessity that the sexual contact occur “without consent,” that flaw was rectified by the prosecutor's explanation of the charge during her statement to the jury in which she told the jurors that the State was required to prove that the sexual activity occurred without consent. Malyk v. State, — P.3d — (Alaska Ct. App. Sept. 18, 2019) (memorandum decision).

Unanimity instruction. —

Trial judge's failure to give a factual unanimity instruction was error, but even if the jury had been instructed on the need for factual unanimity, there was no reasonable possibility that any of the jurors would have voted to acquit defendant of forcing his niece to touch his penis, and thus the trial judge's failure to give the instruction was harmless beyond a reasonable doubt. Malyk v. State, — P.3d — (Alaska Ct. App. Dec. 19, 2018) (memorandum decision).

Lesser included offense. —

Assault in the fourth degree is a lesser included offense of first or second-degree sexual assault in which the defendant claims that sexual contact was consensual, and there is some evidence to show that the defendant assaulted the victim. Reischman v. State, 746 P.2d 912 (Alaska Ct. App. 1987).

Conviction reversed because of insufficient evidence. —

See Brower v. Alaska, 728 P.2d 645 (Alaska Ct. App. 1986); Lamont v. State, 934 P.2d 774 (Alaska Ct. App. 1997).

Merger of attempted sexual assault convictions. —

Where defendant entered the victim’s apartment with the intent to sexually assault her, ripped off her clothing, continued to attack her while she struggled to fight him off, and a rescuer entered the apartment to intervene, defendant’s convictions for attempted first-degree sexual assault and attempted second-degree sexual assault should have been merged, because the same conduct was basis for both convictions. Moore v. State, 123 P.3d 1081 (Alaska Ct. App. 2005).

Separate convictions and sentences were appropriate because defendant was convicted for penile/vaginal penetration, for digital/vaginal penetration and for oral/vaginal penetration, and all three counts involved different penetrating objects. Holt v. State, — P.3d — (Alaska Ct. App. Apr. 3, 2019) (memorandum decision).

Convictions merged. —

Defendant's convictions for second-degree sexual assault and fourth-degree sexual abuse of a minor, which stemmed from sexual contact with the victim on a couch, had to merge into a single conviction. Malyk v. State, — P.3d — (Alaska Ct. App. Dec. 19, 2018) (memorandum decision).

Jury decision not supported by evidence. —

There was insufficient evidence to support jury’s decision that defendant engaged in sexual contact with two female clients in his work as a massage therapist under the guise of providing professional health care, by finding that the clients were unaware of the sexual act under this section; one of the clients never thought there was a legitimate purpose for the touching. Ritter v. State, 97 P.3d 73 (Alaska Ct. App. 2004).

Sentence upheld. —

See Goodman v. State, 756 P.2d 918 (Alaska Ct. App. 1988).

Sentence of eight years with three years suspended for sexual assault in the second degree was not clearly mistaken. Howard v. State, 664 P.2d 603 (Alaska Ct. App. 1983).

There was no error in trial court’s rejection of two mitigating factors proposed by defendant: that his conduct was among the least serious included in the definition of sexual assault in the second degree, and that the harm caused by his criminal conduct was consistently minor and did not warrant the imposition of a substantial period of incarceration; defendant’s sentence of an adjusted presumptive term of seven years with two years suspended and three years’ probation was not clearly mistaken. Jackson v. State, 890 P.2d 587 (Alaska Ct. App. 1995).

Where defendant was convicted of second-degree sexual assault, second-degree assault, and manufacturing alcohol in a local option area, given defendant’s status as a third felony offender, his lengthy history of assaults and sexual assaults, his failure to be deterred by previous prison sentences, and his apparently inexplicable decision to inflict severe injuries on the victim, the trial judge was not clearly mistaken when he imposed a sentence that exceeded the normal 10-year ceiling. Cleveland v. State, 91 P.3d 965 (Alaska Ct. App. 2004).

In a second-degree sexual assault case, defendant’s constitutional right to be free from cruel and unusual punishment was not violated by the imposition of a 99-year presumptive sentence because defendant sexually assaulted a woman while she was incapacitated and unaware of what was happening, and he later exhibited no remorse for his conduct. He had prior convictions for similar offenses, he did not reform his behavior, he did not address his alcohol problem, and he had numerous misdemeanor convictions. Kobuk v. State, — P.3d — (Alaska Ct. App. Apr. 8, 2015) (memorandum decision).

Trial court's decision declining to refer defendant's case to the three-judge sentencing panel was not clearly mistaken as the trial court found that defendant's rehabilitative prospects were guarded at best, given his 17 prior misdemeanors and his mature age of 45 years; and the judge still imposed a sentence near the bottom of the 5- to 15-year presumptive range for second-degree sexual assault of an incapacitated woman. Creson v. State, — P.3d — (Alaska Ct. App. June 1, 2016) (memorandum decision).

Mitigation not found. —

Evidence that defendant did not plan or orchestrate the sexual assault victim’s incapacity, that he did not complete the sexual act, and that he did not cause her any physical injury supported the charge of second degree rather than first degree sexual assault. The evidence warranted the lesser charge, and the same evidence could not also support his assertion in mitigation that his conduct was among the least serious for that charge. Bavilla v. State, — P.3d — (Alaska Ct. App. May 23, 2012) (memorandum decision).

The proposed mitigating factor that defendant's conduct was among the least serious included in the definition of second-degree sexual assault, based on how defendant committed the crime, was properly rejected because each statutory method of committing the crime was equally serious, for sentencing purposes, and defendant's conduct was not among the least serious. Custer v. State, — P.3d — (Alaska Ct. App. Sept. 21, 2016) (memorandum decision).

Conviction and sentence upheld. —

See Contreras v. State, 675 P.2d 654 (Alaska Ct. App. 1984).

Sentence held clearly mistaken. —

Sentence of eight years with one year suspended for a first offender convicted of assault in the second degree was clearly mistaken. Benboe v. State, 698 P.2d 1230 (Alaska Ct. App. 1985).

Remand for resentencing was required because the panel sentenced defendant under the general provisions of AS 12.55.175(b) and (c), and its error made a difference with respect to defendant's sentences for his second-degree sexual assault convictions since the applicable presumptive range for those four counts was 5 to 15 years; thus, under AS 12.55.175(b) (e) defendant's minimum active term of imprisonment for each count was 2.5 years, but the panel only gave him 1 year on each conviction. Holt v. State, — P.3d — (Alaska Ct. App. Apr. 3, 2019) (memorandum decision).

Trial court exceeded scope of sentencing powers by ordering defendant to attend a sexual offender rehabilitation program while incarcerated, where the order was set out as a separate provision of the written judgment and not as a condition of probation, and any failure to abide by the order could not have served as a predicate for a finding of criminal contempt. Benboe v. State, 738 P.2d 356 (Alaska Ct. App. 1987); Cavanaugh v. State, 754 P.2d 757 (Alaska Ct. App. 1988).

Separate sentences for incest and second-degree assault. —

Where the two statutes required proof of different conduct and the social interests to be vindicated or protected by each statute were different, separate sentences on defendant’s convictions for incest and second-degree sexual assault did not violate double jeopardy. Harmon v. State, 11 P.3d 393 (Alaska Ct. App. 2000).

Applied in

Jonas v. State, 773 P.2d 960 (Alaska Ct. App. 1989); Milligan v. State, 286 P.3d 1065 (Alaska Ct. App. 2012); Cleveland v. State, 469 P.3d 1215 (Alaska Ct. App. 2020).

Quoted in

State v. Thompson, 435 P.3d 947 (Alaska 2019).

Stated in

State v. Williams, 855 P.2d 1337 (Alaska Ct. App. 1993).

Cited in

Stores v. State, 625 P.2d 820 (Alaska 1980); Bolhouse v. State, 687 P.2d 1166 (Alaska Ct. App. 1984); James v. State, 739 P.2d 1314 (Alaska Ct. App. 1987); James v. State, 754 P.2d 1336 (Alaska Ct. App. 1988); Ross v. State, 877 P.2d 777 (Alaska Ct. App. 1994); Johnson v. State, 889 P.2d 1076 (Alaska Ct. App. 1995); Howarth v. State, Public Defender Agency, 925 P.2d 1330 (Alaska 1996); McGill v. State, 18 P.3d 77 (Alaska Ct. App. 2001); Snyder v. State, 113 P.3d 683 (Alaska Ct. App. 2005); State v. Kalmakoff, 122 P.3d 224 (Alaska Ct. App. 2005); Cleveland v. State, 143 P.3d 977 (Alaska Ct. App. 2006); Moore v. State, 174 P.3d 770 (Alaska Ct. App. 2008); Murray v. State, 344 P.3d 835 (Alaska Ct. App. 2015); Doe v. Dep't of Pub. Safety, 444 P.3d 116 (Alaska 2019); Jill Y. v. Casey Y., 463 P.3d 833 (Alaska 2020); Crowley v. State, — P.3d — (Alaska Ct. App. Apr. 10, 2019); Paul v. State, — P.3d — (Alaska Ct. App. Dec. 9, 2020); .

Notes to Decisions

Rejection of proposed mitigator. —

Based on defendant's status as a stepfather, the judge rejected the proposed mitigator under AS 12.55.155(d)(9) , despite the fact that the sexual contact with defendant's stepdaughter was brief; even if the judge had found the mitigator based on the brevity of the offense, there was no realistic possibility that she would have imposed a lesser sentence, and thus any error in the judge's rejection of the mitigator did not prejudice defendant at his sentencing for third-degree sexual assault. Thiele v. State, — P.3d — (Alaska Ct. App. Nov. 21, 2018) (memorandum decision).

First-degree harassment not a lesser offense. —

Proposed lesser offense of first-degree harassment requires something more than the charged offense of third-degree sexual assault under AS 11.41.425(a)(1)(C) : an intent to harass or annoy the victim; thus, defendant might be found guilty of third-degree sexual assault even though he had not committed the proposed lesser offense of first-degree harassment, and therefore the judge correctly ruled that first-degree harassment was not a lesser included offense of the third-degree sexual assault charge. Thiele v. State, — P.3d — (Alaska Ct. App. Nov. 21, 2018) (memorandum decision).

Cited in

Herreid v. State, 69 P.3d 507 (Alaska Ct. App. 2003); Simon v. State, 121 P.3d 815 (Alaska Ct. App. 2005); Doe v. Dep't of Pub. Safety, 444 P.3d 116 (Alaska 2019); Paul v. State, — P.3d — (Alaska Ct. App. Dec. 9, 2020);.

Notes to Decisions

Cited in

Doe v. State, 189 P.3d 999 (Alaska 2008); Doe v. Dep't of Pub. Safety, 444 P.3d 116 (Alaska 2019).

Notes to Decisions

Annotator’s notes. —

Some of the cases cited in the notes below were decided under former AS 11.15.134. Some were also decided under former AS 11.41.410(a)(4) , which provided that a person 18 years of age or older who engaged in sexual penetration with another person under 18 years of age who was entrusted to his care by authority of law or was his child committed sexual assault in the first degree.

For cases construing former rape statute, see AS 11.41.410 , Notes to Decisions, analysis line II, “Former Law.”

State’s authority to control sexual conduct of children. —

Where juveniles have certain rights to privacy and to express their own autonomy, the state’s interest in the well-being of its children may justify legislation that could not properly be applied to adults. Anderson v. State, 562 P.2d 351 (Alaska 1977).

As to constitutionality of former statute making lewd and lascivious acts toward children a crime, see Anderson v. State, 562 P.2d 351 (Alaska 1977).

Physical conduct punished under former statute. —

See Anderson v. State, 562 P.2d 351 (Alaska 1977); Smiloff v. State, 579 P.2d 28 (Alaska 1978).

Former section prohibited fellatio. —

See Anderson v. State, 562 P.2d 351 (Alaska 1977).

Specific intent is no longer an element of sexual abuse of a minor. Boggess v. State, 783 P.2d 1173 (Alaska Ct. App. 1989).

Consent is not at issue. —

The state may forbid an adult to have fellatio with a child under the statutorily prescribed age regardless of whether the child consents to the act. Anderson v. State, 562 P.2d 351 (Alaska 1977).

Intrusion into genitals. —

Cunnilingus and fellatio do not require an intrusion into the genitals. Murray v. State, 770 P.2d 1131 (Alaska Ct. App. 1989).

Joinder of offenses. —

Where defendant was charged with sexual abuse of a minor, unlawful exploitation of a minor, distribution of child pornography, and possession of child pornography stemming from his sexual involvement with his girlfriend’s minor daughter, the trial court did not err in denying defendant’s motion to sever the sexual abuse charges from the pornography charges because all charges stemmed from defendant’s inappropriate relationship with the young girl and were connected. Ogletree v. State, — P.3d — (Alaska Ct. App. Aug. 19, 2009) (memorandum decision).

Joinder with second-degree offense count. —

Because defendant was contemplating a defense of accident or inadvertence to second-degree sexual abuse charges, the court did not abuse its discretion in ordering continued joinder of the two counts of second-degree sexual abuse and one count of sexual abuse of a minor in the first degree. Petersen v. State, 838 P.2d 812 (Alaska Ct. App. 1992).

Similar out-of-state statutes. —

The elements of the California statute under which the defendant was convicted for lewd or lascivious acts upon a child were not sufficiently similar to the Alaska offense of attempted sexual abuse of a minor in the first degree to qualify as a prior felony for presumptive sentencing purposes. Scroggins v. State, 951 P.2d 442 (Alaska Ct. App. 1998).

Testimony by victim via closed-circuit television. —

The superior court did not violate the defendant’s right to confrontation by permitting the minor alleged to have be abused to testify via one-way closed-circuit television from a room adjacent to the courtroom, pursuant to AS 12.45.046 . Reutter v. State, 886 P.2d 1298 (Alaska Ct. App. 1994).

Victim’s statement held admissible under hearsay exception. —

The victim’s statement to a prosecution witness, made two or three days after the incident, that the victim’s father came into her bed while she was undressed and “did something wrong” was admissible under the first-complaint hearsay exception. Nusunginya v. State, 730 P.2d 172 (Alaska Ct. App. 1986).

A child’s statement about the defendant’s pants was not hearsay because it was not introduced to prove the matter asserted; rather, this statement was circumstantial evidence that sexual abuse had occurred, by tending to prove that the child had seen the defendant’s penis. Sharp v. State, 837 P.2d 718 (Alaska Ct. App. 1992).

Trial court properly convicted defendant of first-degree sexual abuse of a minor because the victim's uncle observed the victim on a couch next to defendant shortly before the alleged abuse and testified that the victim's behavior after the incident indicated to him that she was scared and confused about what had happened, a video-recorded interview was properly admitted as a recorded statement by a child victim of a crime, and defendant did not argue that he was prejudiced thereby. Voyles v. State, — P.3d — (Alaska Ct. App. June 21, 2017) (memorandum decision).

Evidence of assault of various children. —

Where one of the issues litigated at defendant’s trial was whether the defendant could be identified beyond a reasonable doubt as the one who had abused several children, evidence of defendant’s sexual abuse of various children would have been admissible, even at separate trials, on the issue of identity. Sharp v. State, 837 P.2d 718 (Alaska Ct. App. 1992).

Victim’s identification of accused. —

Prosecution could properly present to the grand jury a child abuse victim’s statements identifying the accused which the victim made during her medical treatment, where, even if the testimony did not fall within the medical diagnosis exception to the hearsay rule, the victim’s inability to testify before the grand jury constituted “compelling justification” for presenting hearsay evidence under Criminal Rule 6(r). State v. Nollner, 749 P.2d 905 (Alaska Ct. App. 1988).

Sufficiency of evidence on defendant’s age. —

Where the state presented a substantial amount of circumstantial evidence implying that the defendant was an adult, the jury could reasonably have inferred that the defendant was 16 years of age or older, properly warranting submission of the case to the jury. Flynn v. State, 847 P.2d 1073 (Alaska Ct. App. 1993).

Evidence was insufficient to support defendant's conviction for first-degree sexual abuse of a minor under subsection (a)(1) for sexually penetrating his daughter between January 1 and December 31, 2009 because the daughter was younger than thirteen years old during more than nine months of 2009, but the prosecutor expressly told the jurors the count referred to an incident that occurred when the daughter was thirteen years old. Hughes v. State, — P.3d — (Alaska Ct. App. May 20, 2020).

Mental examination of victim. —

Defendants’ convictions of sexual abuse of a minor in the first degree and sexual abuse of a minor in the second degree were reversed, where the trial court denied defendants’ request for a mental examination of the victims after a psychologist’s testimony had placed the children’s psychological characteristics in controversy. Anderson v. State, 749 P.2d 369 (Alaska Ct. App. 1988).

Trial court did not abuse its discretion in denying defendant’s motion for a psychiatric evaluation of the victim, where the corroborating evidence against him was relatively slight and he failed to establish some specific ground for concluding that the victim suffered from psychological or emotional problems that might affect her veracity or have a direct bearing on some other material issue. Daniels v. State, 767 P.2d 1163 (Alaska Ct. App. 1989).

Testimony as to typical child abuser traits. —

Admission of a state trooper’s testimony regarding the characteristics of a typical child sexual abuser, at defendant’s trial for sexual abuse of a minor, was sufficiently prejudicial to warrant reversal of his conviction. Haakanson v. State, 760 P.2d 1030 (Alaska Ct. App. 1988).

Inadmissibility of testimony on confessions. —

The superior court made a reversible error in allowing a police officer to express his opinion about the truthfulness of the defendant’s confession, through statements concerning the truthfulness of all the confessions he had heard throughout his career. Flynn v. State, 847 P.2d 1073 (Alaska Ct. App. 1993).

Child victim’s hearsay. —

In a criminal prosecution for sexual abuse of a minor, the court was permitted to hear evidence of the child-victim’s hearsay statements of the abuse without violating defendant’s right of confrontation. Vaska v. State, 74 P.3d 225 (Alaska Ct. App. 2003).

Admissibility of evidence of false charges previously made by alleged victim. —

Extrinsic evidence that an alleged victim of sexual abuse had previously made false charges of sexual assault is permitted where the defendant who wishes to use the evidence obtains a preliminary ruling from the trial court that it is admissible. Covington v. State, 703 P.2d 436 (Alaska Ct. App.), different results reached on reh'g, 711 P.2d 1183 (Alaska Ct. App. 1985).

False charges previously made by victim’s mother. —

Although previous false charges made by an alleged victim were admissible, it was not error to deny defendant’s request to offer evidence that the victim’s mother had made previous false charges of sexual abuse against other parties. Bryant v. State, 115 P.3d 1249 (Alaska Ct. App. 2005).

Testimony as to victim’s prior consistent statements. —

Admission of testimony concerning a sexual abuse victim’s prior consistent statements was reversible error, where some of the witnesses testified before the victim had even taken the stand and been impeached, and another witness was allowed to express her personal belief in the truth of the accusations that the victim made against defendant. Thompson v. State, 769 P.2d 997 (Alaska Ct. App. 1989).

Leeway in charging time of offense. —

The state must be given considerable leeway in charging the time that sexual activity with a minor occurred. Horton v. State, 758 P.2d 628 (Alaska Ct. App. 1988).

Sexual offenses performed as part of one continuous assault. —

Where defendant was convicted on separate sexual abuse counts alleging fellatio and masturbation, his conviction on the masturbation count was vacated in view of evidence showing that defendant could have performed the acts of fellatio and masturbation together as part of one continuous assault. Clifton v. State, 758 P.2d 1279 (Alaska Ct. App. 1988).

Two acts of sexual contact performed as part of a single transaction with a single incident of sexual penetration permit but one conviction for the most serious contact, i.e., the sexual penetration. Johnson v. State, 762 P.2d 493 (Alaska Ct. App. 1988).

Offenses held not part of continuous course of conduct. —

Insufficient evidence supported defendant’s conviction for digitally penetrating the victim (a third-grader) under a continuing course of conduct theory because the State did not sufficiently show the frequency and timing of digital penetration, as (1) the victim’s statement that defendant “touched her” between ages four and six was insufficiently specific, (2) if another child’s statements indicated abuse during the third-grade year, the statements did not state the type of abuse, and (3) defendant gave no more specificity about the frequency of defendant’s abuse by digital penetration. George v. State, 362 P.3d 1026 (Alaska 2015).

Record ambiguous as to whether separate counts part of single incident. —

Separate sexual abuse counts alleging genital contact and digital penetration of the victim merged, where the record was ambiguous as to whether the counts arose at the same time and as a single incident, or whether two separate incidents occurred, and defendant could be sentenced on only one of the two charges. Horton v. State, 758 P.2d 628 (Alaska Ct. App. 1988).

Residing. —

“Residing” clause does not require proof of a permanent abode, but the term “residing” should not cover any and all instances where a child might temporarily stay in the same dwelling as an adult; however, with regard to the meaning of “reside” in this statute, an obvious error occurred when the trial judge told the jurors that it was up to them to decide what “reside” meant. Given the way the prosecutor argued this issue to the jury, the error was harmless; the victim was not just staying overnight at defendant’s house, but was living there for weeks at a time in order to fulfill a work requirement for home schooling. Thompson v. State, 378 P.3d 707 (Alaska Ct. App. 2016), aff'd in part and rev'd in part, 435 P.3d 947 (Alaska 2019).

Evidence held sufficient. —

Direct testimony from defendant’s children about the abuse was legally sufficient to support his convictions for first-degree sexual abuse of a minor. Belluomini v. State, — P.3d — (Alaska Ct. App. July 1, 2015) (memorandum decision).

Sufficient evidence supported defendant's conviction for sexual assault of a child despite a lack of the victim's specific testimony of penetration; the victim's testimony that defendant followed the same routine as with other assaults involving penetration was sufficient. Gilliam v. State, — P.3d — (Alaska Ct. App. June 24, 2020).

Evidence of prior assault held admissible. —

Evidence that defendant had been convicted of sexually assaulting the same victim two years prior to the alleged indictment was admissible because it indicated a significant sexual desire for the specific victim, thus supplying persuasive circumstantial evidence that he had sexually assaulted the victim. Patterson v. State, 732 P.2d 1102 (Alaska Ct. App. 1987).

Evidence of defendant’s interest in children. —

It was not error to allow the state to admit hearsay evidence that tended to show that defendant had a sexual interest in minor children when defendant had offered testimony on his own behalf to portray defendant as having a benign and benevolent, non-sexual relationship with children in his life, including the alleged victim. Bryant v. State, 115 P.3d 1249 (Alaska Ct. App. 2005).

Exclusion of evidence of victim’s involvement in a sexual assault on another child deprived defendant of his constitutional right to confront the witnesses against him, where his defense was based on the premise that the victim fabricated her accusation in retaliation for defendant’s attempt to oust her from her foster home for sexual misconduct. Daniels v. State, 767 P.2d 1163 (Alaska Ct. App. 1989).

Mistake of age defense. —

In prosecution for sexual abuse of minor in first degree, trial court was required to allow defendant to present an affirmative defense that he reasonably believed that at the time that he engaged in sexual penetration with victim, she was sixteen years of age or older. State v. Fremgen, 889 P.2d 1083 (Alaska Ct. App. 1995).

Motion for judgment of acquittal denied. —

Trial court properly denied defendant’s motion for a judgment of acquittal and submitted his case to the jury, where the evidence was sufficient to allow fair-minded jurors to differ on the issue of his guilt. Daniels v. State, 767 P.2d 1163 (Alaska Ct. App. 1989).

Conviction upheld. —

Evidence supported defendant’s conviction of attempted sexual assault in the first degree, where he brought his eight-year old stepdaughter and some syrup into a bathroom and asked the child if she would lick the syrup from his penis, and the fact that a wet drop of syrup was found on the counter supported the conclusion that he actually opened the syrup and poured some amount of it. Mitchell v. State, 818 P.2d 688 (Alaska Ct. App. 1991).

There was sufficient evidence of genital intercourse to support defendant's conviction for sexual penetration, specifically genital intercourse, with his daughter when she was under thirteen years of age because the daughter testified that defendant "put it in, and then he spermed," which was an explicit assertion that sexual penetration had occurred. Hughes v. State, — P.3d — (Alaska Ct. App. May 20, 2020) (memorandum decision).

Daughter's testimony was sufficient to support the State's course of conduct theory relating to acts of sexual penetration because she testified that defendant put his penis in her vagina three or four times a month from the time she was eight until the time she was twelve; she testified where the acts occurred, the time of day they occurred, who was in the house at the time, her body position when defendant penetrated her, where he ejaculated and how he would clean it up, and who she told. Hughes v. State, — P.3d — (Alaska Ct. App. May 20, 2020).

Convictions under former law reversed. —

Convictions under former AS 11.15.134, former AS 11.41.410(a)(4) and former AS 11.41.440(a)(2) were reversed where extensive evidence of prior consistent statements was admitted at trial without any determination of its actual probative value and before any charge of recent fabrication or improper motive or influence was made against the victim. Nitz v. State, 720 P.2d 55 (Alaska Ct. App. 1986).

Convictions for lewd and lascivious acts toward children under former AS 11.15.134(a) and for rape under former AS 11.15.120(a) were reversed where evidence admitted concerning alleged assaults on victims other than those in the case at hand was improper propensity evidence; neither intent nor identity were at issue, and the acts did not constitute an admissible common scheme or plan or prove facts in dispute. Bolden v. State, 720 P.2d 957 (Alaska Ct. App. 1986).

Conviction reversed. —

Defendant’s jury trial conviction was reversed, where a psychologist’s rebuttal testimony that because the victim gave a detailed account of the sexual abuse, she had been sexually abused, approached plain error and the trial court refused to allow defendant to put on surrebuttal. Cox v. State, 805 P.2d 374 (Alaska Ct. App. 1991).

Insufficient evidence supported defendant’s conviction for digitally penetrating a victim when the victim was in the third grade because (1) a prosecutor’s alleged misimpression of when the crime occurred had little bearing, and (2) the structure of questions and responses did not support characterizing the victim’s testimony about digital penetration as occurring in the third-grade year. George v. State, 362 P.3d 1026 (Alaska 2015).

Because the grand jury did not indict defendant under the theory that defendant could have validly been convicted of the same offense, first-degree sexual abuse of a minor against the daughter, under a different subsection of the statute, subsection (a)(2), and the trial jury was not asked to resolve the elements of that theory, it would be illegal to convict defendant under subsection (a)(2). Hughes v. State, — P.3d — (Alaska Ct. App. May 20, 2020) (memorandum decision).

Insufficient evidence supported defendant's conviction for sexual assault of a child because (1) the victim did not recall the incident, and (2) witnesses on whose testimony the conviction was based did not see penetration. Gilliam v. State, — P.3d — (Alaska Ct. App. June 24, 2020).

Insufficient evidence supported a count alleging defendant's sexual assault of a child because the conduct alleged was also alleged in another count. Gilliam v. State, — P.3d — (Alaska Ct. App. June 24, 2020).

Defendant was entitled to reversal of his conviction for first-degree sexual abuse of a minor because evidence that defendant touched the victim in the area of her vagina, that he used his fingers, and that he was capable of assessing the dampness of her vagina did not support an inference strong enough to allow a juror to conclude beyond a reasonable doubt that defendant digitally penetrated the victim's vagina. Paul v. State, — P.3d — (Alaska Ct. App. Dec. 9, 2020) (memorandum decision).

Double jeopardy. —

While the superior court properly convicted defendant of first-degree sexual assault, it erred in entering a separate conviction for first-degree sexual abuse of a minor because, regardless of whether he occupied a "position of authority" over the victim, he should not have received a separate conviction and sentence for this offense since the standard for determining whether two convictions constituted double punishment for purposes of the double jeopardy clause of the Alaska Constitution, and must therefore merge, these two sets of statutes had the same overriding purpose—to protect victims from unacceptable sexual activity—and, thus, only one conviction was supportable for any single act of sexual penetration. Fowlkes v. State, — P.3d — (Alaska Ct. App. July 21, 2021) (memorandum decision).

Merger of sexual assault and sexual abuse convictions. —

Defendant’s convictions for sexually assaulting a twelve year old boy and sexually abusing the boy merged, where a single act of sexual penetration with a child could not properly support separate sentences and convictions for both offenses. Yearty v. State, 805 P.2d 987 (Alaska Ct. App. 1991).

Merger. —

Defendant's sexual assault of a child convictions based on digital and penile penetration did not merge because the convictions were based on penetration by different body parts. Gilliam v. State, — P.3d — (Alaska Ct. App. June 24, 2020).

Admissibility of evidence of false charges previously made by alleged victim. —

Extrinsic evidence that an alleged victim of sexual abuse had previously made false charges of sexual assault is permitted where the defendant who wishes to use the evidence obtains a preliminary ruling from the trial court that it is admissible. Covington v. State, 703 P.2d 436 (Alaska Ct. App.), different results reached on reh'g, 711 P.2d 1183 (Alaska Ct. App. 1985).

Mitigating factors. —

In prosecution for first-degree sexual assault, defendant’s familiarity with his victim (his 12-year old daughter) was not a mitigating factor. Hodges v. State, 660 P.2d 1203 (Alaska Ct. App. 1983).

Even though aggravator AS 12.55.155(c)(18)(B) applied to defendant who pled guilty to sexual abuse of a minor, the trial court was not precluded by AS 12.55.165(b) from referring the case to a three-judge panel based on defendant’s favorable post-offense conduct, and the panel could mitigate defendant’s presumptive term based on this non-statutory factor. State v. McKinney, 946 P.2d 456 (Alaska Ct. App. 1997).

Federal sentencing enhancement. —

District court erred in applying multiple-conviction enhancement in 18 U.S.C.S. § 2251(e) and sentencing defendant to life imprisonment because “sexual exploitation of children” as contained in § 2251 was defined within that statute as production of child pornography, and because defendant’s prior Alaska convictions concerning sexual abuse and sexual assault of minors did not require visual depiction element, they did not relate to sexual exploitation of children and could not serve as predicate offenses for purposes of enhancement. United States v. Schopp, 938 F.3d 1053 (9th Cir. Alaska 2019).

Sentence after plea of no contest. —

Defendant’s no contest plea to attempted first-degree abuse of a minor conclusively established his guilt, and therefore the sentencing judge court had a reasoned basis for ordering him to undergo sex offender treatment while in prison. Scott v. State, 928 P.2d 1234 (Alaska Ct. App. 1996).

Sentence under former AS 11.15.134 upheld. —

See Noble v. State, 552 P.2d 142 (Alaska 1976); Buchanan v. State, 554 P.2d 1153 (Alaska 1976); Morgan v. State, 598 P.2d 952 (Alaska 1979); Baker v. State, 602 P.2d 797 (Alaska 1979); Alvarado v. State, 626 P.2d 582 (Alaska 1981).

Sentence upheld. —

Sentence of eight-year presumptive term for first-degree sexual abuse of a minor and concurrent sentences of three years for two counts of second-degree sexual abuse of a minor to run concurrently with the eight-year term were upheld. The defendant’s continued efforts to justify his conduct as “sex education” and his only limited acceptance and understanding of the grave risks of psychological damage to children that his conduct presented led the court of appeals to conclude the trial judge was not clearly erroneous in concluding that the mitigating factor of conduct among the least serious in the definition of the offense was not established by clear and convincing evidence. S.B. v. State, 706 P.2d 695 (Alaska Ct. App. 1985); Bynum v. State, 708 P.2d 1293 (Alaska Ct. App. 1985); Yearty v. State, 805 P.2d 987 (Alaska Ct. App. 1991).

Imposition of presumptive sentence of eight years for a first felony offender convicted of having sexual relations with his stepdaughter over five years was upheld; rejection of a proposed mitigating factor, that the offense was committed under some degree of compulsion, was proper. Bynum v. State, 708 P.2d 1293 (Alaska Ct. App. 1985).

A sentence of eight years with two years suspended was affirmed, where there was evidence of defendant’s knowledge that his victim had previously been sexually abused, his persistent approaches to the victim, his fleeing the jurisdiction to avoid apprehension, and his unwillingness or inability to concede responsibility. Gnegy v. State, 729 P.2d 895 (Alaska Ct. App. 1986).

It was not manifestly unjust to impose a five-year presumptive term upon defendant’s conviction of attempted sexual assault of a minor, and he was not automatically entitled as a matter of law to have his case referred to a three-judge panel for sentencing. Aveoganna v. State, 757 P.2d 75 (Alaska Ct. App. 1988).

Defendant’s use of his position of authority at his mother’s day-care center to obtain access to the children, the number of his victims, coupled with the length of the time over which he abused them, and his inability to admit his problem, supported his sentence of 16 years for sexual abuse. Sharp v. State, 837 P.2d 718 (Alaska Ct. App. 1992).

In prosecution of defendant with no prior criminal record on two counts of first-degree sexual assault of his 12-year old daughter, sentence of two consecutive eight-year terms with five years suspended was not excessive. Hodges v. State, 660 P.2d 1203 (Alaska Ct. App. 1983).

In light of the substantial duration of defendant’s sexual abuse of his stepdaughter (three years), his failure to learn from the earlier discovery of his prior offenses, his disregard of a court order that he avoid contact with the victim, and his total failure to take any meaningful step toward rehabilitation, 10-year sentence with four years suspended was not excessive for conviction of first-degree sexual assault. Langton v. State, 662 P.2d 954 (Alaska Ct. App. 1983).

Where there is evidence from which the trial court could infer that a sentence of incarceration would have destroyed a viable family and cause long-term psychological damage to the victim, sentence under former AS 11.41.410(a)(4) involving no incarceration is not too lenient. State v. Morris, 680 P.2d 1190 (Alaska Ct. App. 1984).

A sentence of eight years with three years suspended, upon defendant’s conviction on one count of sexual abuse of a minor in the first degree, was affirmed, where, although the abuse occurred over a period of two or three years and involved his step-daughter, evidence of his potential for rehabilitation was found to be compelling. State v. Ridgway, 750 P.2d 362 (Alaska Ct. App. 1988).

A sentence of three concurrent eight-year presumptive terms upon defendant’s conviction of three counts of sexual abuse of a minor in the first degree was affirmed, where, according to the evidence, the abuse included digital and penile sexual penetration, as well as oral sexual contact, and there may have been as many as fifty separate incidents of sexual abuse. Winther v. State, 749 P.2d 1356 (Alaska Ct. App. 1988).

Evidence that, besides acts of sexual abuse, defendant had engaged in significant acts of violence both toward strangers and toward members of his own households, had already served a substantial prison sentence for a felony theft conviction, had persistently resisted both rehabilitative programs and probation supervision, and that his criminal behavior had escalated in seriousness over the past 15 years, placed his case among the most aggravated category of sexual abuse and sexual abuse offenders, and supported the court’s conclusion that defendant posed a substantial degree of danger to society and that, in order to protect society, the court needed to sentence defendant to a term of imprisonment exceeding the 30-year maximum for any single count of first-degree sexual abuse. Mullin v. State, 886 P.2d 1323 (Alaska Ct. App. 1994).

Repeated sexual abuse of stepdaughter over a number of years, which, while it did not inflict serious physical injury, inflicted long-term, debilitating and severe psychological injury, and rendered the stepdaughter incapable of leading a normal life, supported composite term of 12 years, nine months’ imprisonment. Reyes v. State, 978 P.2d 635 (Alaska Ct. App. 1999).

In a case where defendant agreed to plead no contest to attempted first-degree sexual abuse of a minor and received a sentence of 12 years’ imprisonment with seven years suspended, for an effective five-year sentence, to establish the sentencing range defendant stipulated to two aggravating factors; defendant knew the victim of his offense was particularly vulnerable and his prior criminal history included a delinquency adjudication for felony conduct. Malutin v. State, 198 P.3d 1177 (Alaska Ct. App. 2009).

Superior court properly sentenced defendant to 30 years to serve for first-degree sexual abuse of his minor stepdaughter because he had a criminal history—he had physically and sexually abused his biological sister—he was not eligible for good time deductions where he was sentenced for an unclassified sexual felony, and he was not eligible for discretionary parole. Evans v. State, — P.3d — (Alaska Ct. App. Aug. 23, 2017) (memorandum decision).

In sentencing defendant to 25 years with 3 years suspended and 10 years of probation after defendant pleaded guilty pursuant to a plea agreement to one consolidated count of attempted first-degree sexual abuse of a minor, the superior court appropriately reviewed the facts of the case and considered the applicable Chaney criteria. Based on its review of the record, the appellate court concluded that defendant's sentence was not clearly mistaken. Argueta v. State, — P.3d — (Alaska Ct. App. May 10, 2017) (memorandum decision).

Sentence under former AS 11.15.134 held excessive. —

See Qualle v. State, 652 P.2d 481 (Alaska Ct. App. 1982).

Sentence for assault held excessive. —

Sentence of 20 years imprisonment for first-degree sexual assault of two-year old child was excessive and case was remanded for resentencing not to exceed 10 years. Langton v. State, 662 P.2d 954 (Alaska Ct. App. 1983).

Sentence for assault held too lenient. —

Suspended five-year sentence for first-degree sexual assault of defendant’s four-year old son was disapproved as too lenient, with a 90-day to three-year sentence suggested. Langton v. State, 662 P.2d 954 (Alaska Ct. App. 1983).

Sentence under former AS 11.41.410(a)(4) for assault held too lenient. —

See State v. Rushing, 680 P.2d 500 (Alaska Ct. App. 1984); State v. Woods, 680 P.2d 1195 (Alaska Ct. App. 1984).

Given a series of nine assaults of a stepdaughter by a stepfather, substantial evidence that intercourse was accomplished without consent, and the fact that the victim has left the defendant’s home, a sentence of one year of incarceration under former AS 11.41.410(a)(4) was disapproved and a sentence of at least three years recommended. State v. Couey, 680 P.2d 513 (Alaska Ct. App. 1984).

Remand for resentencing for conviction under former law. —

See State v. Covington, 711 P.2d 1183 (Alaska Ct. App. 1985).

Sentence clearly mistaken. —

A sentence of 24 years with four years suspended, upon conviction of three counts of sexual abuse of a minor in the first degree, was clearly mistaken, where the trial court did not address the 10- to 15-year benchmark established in prior decisions concerning aggravated cases of sexual assault, and nothing in the record established that a sentence in excess of 15 years was necessary to protect the public. Mosier v. State, 747 P.2d 548 (Alaska Ct. App. 1987).

A sentence of 20 years with five years suspended for a first felony offender, for sexual abuse of a minor in the first degree, was clearly mistaken, where the offense did not involve multiple acts with multiple victims or a prior felony record. Zackar v. State, 761 P.2d 1015 (Alaska Ct. App. 1988).

Sentence of 15 years with five years suspended was clearly mistaken, where defendant was a first felony offender with an otherwise good record. Lawrence v. State, 764 P.2d 318 (Alaska Ct. App. 1988).

Composite term of sixty years upon conviction of two counts of sexual abuse of a minor in the first degree was clearly mistaken, and the case was remanded for imposition of a total sentence not to exceed sixty years with ten years suspended, where the sentencing court’s reliance upon the seriousness of defendant’s prior murder conviction placed inordinate and disproportionate weight on a single aggravating factor. Murray v. State, 770 P.2d 1131 (Alaska Ct. App. 1989).

Composite sentence justified. —

Defendant committed multiple instances of sexual abuse, his acts of sexual abuse involved two victims, and he was also being sentenced for possessing quantities of child pornography. His overall conduct was aggravated for sentencing purposes, and his composite sentence of 14 years to serve was well within benchmark limits. Carr v. State, — P.3d — (Alaska Ct. App. Oct. 3, 2012) (memorandum decision).

In a case where defendant was convicted of eight counts of first-degree sexual abuse of a minor, the trial court did not err in imposing a composite sentence in excess of the maximum presumptive sentence for his most serious offense, and defendant’s sentence of 60 years’ incarceration with 10 years suspended was justifiable because defendant stipulated to a statutory aggravator that he was 10 or more years older than the victim. Johnson v. State, — P.3d — (Alaska Ct. App. June 8, 2016) (memorandum decision).

Remand for resentencing. —

See Lewis v. State, 706 P.2d 715 (Alaska Ct. App. 1985); Bodine v. State, 737 P.2d 1072 (Alaska Ct. App. 1987); Howell v. State, 758 P.2d 103 (Alaska Ct. App. 1988).

Conditions of probation. —

Conditions of probation restricting defendant from unauthorized contact with his daughter and with other girls under 18-years of age were not vague or unduly restrictive of his constitutionally protected right to freedom of association. Nitz v. State, 745 P.2d 1379 (Alaska Ct. App. 1987).

Defendant's probation conditions limiting family contact were not an abuse of discretion because (1) defendant's 218-year sentence made it unlikely defendant would be released, (2) defendant did not show sex offender treatment was unavailable, and (3) the conditions were properly limited by construing the conditions to permit contact if the family members filed a written consent and served the consent on the district attorney and the provider of any offered sex offender treatment consented in writing. Gilliam v. State, — P.3d — (Alaska Ct. App. June 24, 2020).

Applied in

Seymore v. State, 655 P.2d 786 (Alaska Ct. App. 1982); Juelson v. State, 758 P.2d 1294 (Alaska Ct. App. 1988); Allen v. State, 769 P.2d 457 (Alaska Ct. App. 1989); Simpson v. State, 796 P.2d 840 (Alaska Ct. App. 1990); Carr v. State, 840 P.2d 1000 (Alaska Ct. App. 1992); Hess v. State, 20 P.3d 1121 (Alaska 2001); State v. Moreno, 151 P.3d 480 (Alaska Ct. App. 2006); Sikeo v. State, 258 P.3d 906 (Alaska Ct. App. 2011).

Stated in

Flood v. State, 304 P.3d 1083 (Alaska Ct. App. 2013).

Quoted in

Harris v. State, 790 P.2d 1379 (Alaska Ct. App. 1990); State v. Thompson, 435 P.3d 947 (Alaska 2019); Dapo v. State, 454 P.3d 171 (Alaska 2019).

Cited in

Higgs v. State, 676 P.2d 610 (Alaska Ct. App. 1984); Benboe v. State, 698 P.2d 1230 (Alaska Ct. App. 1985); Dancer v. State, 715 P.2d 1174 (Alaska Ct. App. 1986); James v. State, 739 P.2d 1314 (Alaska Ct. App. 1987); Patterson v. State, 747 P.2d 535 (Alaska Ct. App. 1987); Kirby v. State, 748 P.2d 757 (Alaska Ct. App. 1987); Jager v. State, 748 P.2d 1172 (Alaska Ct. App. 1988); James v. State, 754 P.2d 1336 (Alaska Ct. App. 1988); Osterback v. State, 789 P.2d 1037 (Alaska Ct. App. 1990); Cook v. State, 792 P.2d 682 (Alaska Ct. App. 1990); Capwell v. State, 823 P.2d 1250 (Alaska Ct. App. 1991); Curl v. State, 843 P.2d 1244 (Alaska Ct. App. 1992); Boerma v. State, 843 P.2d 1246 (Alaska Ct. App. 1992); Nunn v. State, 845 P.2d 435 (Alaska Ct. App. 1993); State v. Angaiak, 847 P.2d 1068 (Alaska Ct. App. 1993); Haire v. State, 877 P.2d 1302 (Alaska Ct. App. 1994); Beltz v. State, 895 P.2d 513 (Alaska Ct. App. 1995); Plate v. State, 925 P.2d 1057 (Alaska Ct. App. 1996); State v. Simpson, 946 P.2d 890 (Alaska Ct. App. 1997); Gwalthney v. State, 964 P.2d 1285 (Alaska Ct. App. 1998); Krack v. State, 973 P.2d 100 (Alaska Ct. App. 1999); Harmon v. State, 11 P.3d 393 (Alaska Ct. App. 2000); Schumacher v. State, 11 P.3d 397 (Alaska Ct. App. 2000); Jack C. v. State, 68 P.3d 1274 (Alaska 2003); Parker v. State, 90 P.3d 194 (Alaska Ct. App. 2004); Wholecheese v. State, 100 P.3d 14 (Alaska Ct. App. 2004); Bryant v. State, 133 P.3d 690 (Alaska Ct. App. 2006); State v. Parker, 147 P.3d 690 (Alaska 2006); Zemljich v. Municipality of Anchorage, 151 P.3d 471 (Alaska Ct. App. 2006); Garland v. State, 172 P.3d 827 (Alaska Ct. App. 2007); Doe v. State, 189 P.3d 999 (Alaska 2008); Holden v. State, 190 P.3d 725 (Alaska Ct. App. 2008); Davison v. State, 282 P.3d 1262 (Alaska 2012); Trout v. State, 377 P.3d 296 (Alaska Ct. App. 2016); Nelson v. State, 397 P.3d 350 (Alaska Ct. App. 2017); Kozevnikoff v. State, 433 P.3d 546 (Alaska Ct. App. 2018); Doe v. Dep't of Pub. Safety, 444 P.3d 116 (Alaska 2019); Cole v. State, 452 P.3d 704 (Alaska Ct. App. 2019); Cole v. State, 452 P.3d 704 (Alaska Ct. App. 2019); Hayes v. State, 474 P.3d 1179 (Alaska Ct. App. 2020); Dalton v. State, 477 P.3d 650 (Alaska Ct. App. 2020); Marrera v. State, — P.3d — (Alaska Ct. App. May 22, 2019).

Notes to Decisions

Prior law. —

For cases decided under prior law, see notes to AS 11.41.434 , Notes to Decisions.

“Female breast.” —

The legislature intended that the term “female breast,” as used in the statutory definition of “sexual contact” contained in AS 11.81.900(b) , be applied according to its plain meaning — referring to all females regardless of age or degree of development. Stephan v. State, 810 P.2d 564 (Alaska Ct. App. 1991).

“Crime of violence.” —

Defendant’s conviction for sexual abuse constituted a crime of violence for purposes of a sentence enhancement under the Armed Career Criminal Act, 18 U.S.C.S. § 924(e). United States v. Melton, 344 F.3d 1021 (9th Cir. Alaska 2003), cert. denied, 541 U.S. 953, 124 S. Ct. 1696, 158 L. Ed. 2d 386 (U.S. 2004).

Mother was properly awarded child custody because, among other things, the father’s statutory rape of the mother, violation of a domestic violence protection order, and striking another child, triggered the presumption in AS 25.24.150(g) against awarding the father custody. Thomas G. v. Sonya G., — P.3d — (Alaska June 24, 2015), cert. denied, 577 U.S. 1079, 136 S. Ct. 834, 193 L. Ed. 2d 741 (U.S. 2016) (memorandum decision).

No culpable mental state required. —

Under the current statutory definition of “sexual contact,” the offense of sexual abuse of a minor in the second degree may properly be established by evidence proving knowing conduct within the scope of AS 11.81.900(b) ; no secondary culpable mental state need be established with respect to surrounding circumstances. Van Meter v. State, 743 P.2d 385 (Alaska Ct. App. 1987).

In a prosecution for sexual abuse of a minor in the second degree, there was no need for the jury to find that defendant acted with the specific intent of achieving sexual satisfaction. Braun v. State, 911 P.2d 1075 (Alaska Ct. App. 1996).

Burden of proving exclusions. —

If some evidence of justification is advanced in the record, the state must bear the additional burden of establishing that the defendant’s conduct did not fall within the exclusions of AS 11.81.900(b) . Van Meter v. State, 743 P.2d 385 (Alaska Ct. App. 1987).

Defense of misunderstanding as to victim’s age. —

Defendant was entitled to defend on the ground that he reasonably believed the thirteen year old victim was sixteen years of age or older, where most of the information he knew about her came from a telephone conversation with her in which he claimed she discussed her prior sexual history and experience in detail. Bibbs v. State, 814 P.2d 738 (Alaska Ct. App. 1991).

Separate counts arising from single episode. —

Defendant was properly convicted of four counts of second-degree sexual abuse of a minor where the counts involved the same victim and arose from a single episode of sexual abuse, but each count alleged a different form of sexual penetration. Erickson v. State, 950 P.2d 580 (Alaska Ct. App. 1997).

Superior court correctly refused to merge defendant's convictions on two counts of second-degree sexual abuse of a minor where the act of digital penetration charged in count 1 occurred first, followed by an act of fellatio, defendant then moved to a different location in the house and beckoned the victim to follow him and performed the act of penile penetration charged in count 2, and thus, the two acts were sufficiently separated in time and circumstance to support two convictions. Edenfield v. State, — P.3d — (Alaska Ct. App. July 5, 2017) (memorandum decision).

Acts performed as part of single incident. —

Two acts of sexual contact performed as part of a single transaction with a single incident of sexual penetration permit but one conviction for the most serious contact, i.e., the sexual penetration. Johnson v. State, 762 P.2d 493 (Alaska Ct. App. 1988).

Joinder with first-degree offense count. —

Because defendant was contemplating a defense of accident or inadvertence to second-degree sexual abuse charges, the court did not abuse its discretion in ordering continued joinder of the two counts of second-degree sexual abuse of a minor in the first degree. Petersen v. State, 838 P.2d 812 (Alaska Ct. App. 1992).

Merger of counts. —

Defendant’s convictions for sexual abuse of a minor in the second degree for digital penetration, sexual abuse of a minor in the third degree for touching the victim’s breasts, and sexual abuse of a minor in the second degree for cunnilingus merged, and he should have been sentenced only on a single count of sexual abuse of a minor in the second degree. Newsome v. State, 782 P.2d 689 (Alaska Ct. App. 1989).

Conviction for lesser degree of offense. —

The legislature intended AS 11.81.615 to permit a court or jury to convict a sexual offender of a lesser degree of offense, in this case third-degree sexual abuse, despite the fact that the evidence reasonably (or even convincingly) demonstrated that the defendant committed a greater degree of offense because the victim was younger than alleged. Thiessen v. State, 844 P.2d 1137 (Alaska Ct. App. 1993).

Sufficiency of evidence. —

Evidence showed that while in the victim’s bedroom defendant put his fingers slightly inside her pants and he put one hand on her ribs below her breast. There was also evidence that earlier in the living room defendant tried to kiss the victim, touched her breast, and put his fingertips inside the waistband of her pants. Kvasnikoff v. State, — P.3d — (Alaska Ct. App. Dec. 3, 2014).

Since the jury was presented with testimony that defendant touched the victim "down there," that he put his hand down the back of her pants, that he used his fingers, and that he was in a position to assess the dampness of her vagina, the evidence was sufficient to support a finding that defendant engaged in sexual contact with the victim and was therefore guilty of second-degree sexual abuse of a minor. Paul v. State, — P.3d — (Alaska Ct. App. Dec. 9, 2020) (memorandum decision).

Evidence of prior misconduct. —

Where defendant was tried for third-degree assault under AS 11.41.220(a)(1)(A) for threatening to kill his girlfriend and with three counts of second-degree sexual abuse of a minor under AS 11.41.436(a)(5)(A) for fondling the breasts of his girlfriend’s teenage daughter, the trial judge abused his discretion by allowing the State to present evidence of sixty prior instances of defendant’s misconduct which had little or nothing to do with the offenses charged. Defendant was entitled to a new trial. Bingaman v. State, 76 P.3d 398 (Alaska Ct. App. 2003).

Evidence of prior assault held admissible. —

Evidence that defendant had been convicted of sexually assaulting the same victim two years prior to the alleged indictment was admissible because it indicated a significant sexual desire for the specific victim, thus supplying persuasive circumstantial evidence that he had sexually assaulted the victim. Patterson v. State, 732 P.2d 1102 (Alaska Ct. App. 1987).

Mental examination of victim. —

Defendants’ convictions of sexual abuse of a minor in the first degree and sexual abuse of a minor in the second degree were reversed, where the trial court denied defendants’ request for a mental examination of the victims after a psychologist’s testimony had placed the children’s psychological characteristics in controversy. Anderson v. State, 749 P.2d 369 (Alaska Ct. App. 1988).

Confessions. —

Confession made by a defendant arrested for two counts of first-degree sexual assault, AS 11.41.410(a)(1) , and two counts of second-degree sexual abuse of a minor, AS 11.41.436 , was taken involuntarily. Police promised the defendant that the statement would be “off the record”; court erred in admitting the statement at trial. Jones v. State, 65 P.3d 903 (Alaska Ct. App. 2003).

Testimony by victim via closed-circuit television. —

The superior court did not violate the defendant’s right to confrontation by permitting the minor alleged to have been abused to testify via one-way closed-circuit television from a room adjacent to the courtroom, pursuant to AS 12.45.046 . Reutter v. State, 886 P.2d 1298 (Alaska Ct. App. 1994).

Testimony as to typical child abuser traits. —

Admission of a state trooper’s testimony regarding the characteristics of a typical child sexual abuser, at defendant’s trial for sexual abuse of a minor, was sufficiently prejudicial to warrant reversal of his conviction. Haakanson v. State, 760 P.2d 1030 (Alaska Ct. App. 1988).

Testimony as to victim’s prior consistent statements. —

Admission of testimony concerning a sexual abuse victim’s prior consistent statements was reversible error, where some of the witnesses testified before the victim had even taken the stand and been impeached, and another witness was allowed to express her personal belief in the truth of the accusations that the victim made against defendant. Thompson v. State, 769 P.2d 997 (Alaska Ct. App. 1989).

Erroneous admission of witness’s testimony, over defense objection, that defendant had once admitted being sexually abused as a boy by his father, necessitated reversal of defendant’s conviction, where such error, when considered in combination with other errors, appreciably affected the jury’s verdict and deprived defendant of a fair trial. Nelson v. State, 782 P.2d 290 (Alaska Ct. App. 1989).

Admissibility of evidence. —

See Van Meter v. State, 743 P.2d 385 (Alaska Ct. App. 1987).

Evidence held inadmissible. —

See Van Meter v. State, 743 P.2d 385 (Alaska Ct. App. 1987).

Admission of an investigator’s statements concerning defendant’s sexual fantasies and orientation, at defendant’s trial for attempted sexual abuse of a minor in the second degree, was harmless error, where the evidence against defendant was substantial and defendant’s attorney demonstrated the irrelevance of the statements on cross-examination. Stevens v. State, 748 P.2d 771 (Alaska Ct. App. 1988).

Applicability of motor vehicle insurance. —

Where taxi driver was found to have knowingly engaged in sexual penetration and sexual contact with a minor, his sexual contact with the minor was deliberate rather than accidental, and because his motor vehicle insurance agreement only covered injuries “caused by an accident,” there was no coverage under this provision. Kim v. National Indem. Co., 6 P.3d 264 (Alaska 2000), overruled in part, Shaw v. State Farm Mut. Auto. Ins. Cos., 19 P.3d 588 (Alaska 2001).

Lesser included offenses. —

Trial court properly treated the crime of contributing to the delinquency of a minor as a lesser included offense of attempted sexual abuse of a minor in the second degree, where defendant, by encouraging an eight-year-old girl to have sexual contact with him, encouraged her to engage in conduct prohibited by law. Sullivan v. State, 766 P.2d 51 (Alaska Ct. App. 1988).

Failure to give jury instruction on unanimity. —

Although a trial court erred in failing to instruct the jury that it must unanimously agree on the particular conduct underlying a count spanning several months of alleged sexual abuse of a minor, the error was harmless in light of defendant’s claim that the children lied and that no touching or abuse occurred. Anderson v. State, 289 P.3d 1 (Alaska Ct. App. 2012), reaff'd, 337 P.3d 534 (Alaska Ct. App. 2014).

Effect of no-contest plea. —

Debtor’s judgment debt arising from a civil judgment that followed his no contest plea to a charge of sexual assault of a minor under AS 11.41.436(a)(2) was nondischargeable under 11 U.S.C.S. § 523(a)(6) because he was precluded from denying that he sexually abused plaintiff when she was a minor and such abuse was necessarily willful and malicious. Doe v. Fleetwood (In re Fleetwood), — B.R. — (Bankr. D. Alaska May 17, 2013).

Conviction upheld. —

Evidence was sufficient to sustain defendant’s conviction where the state relied substantially upon the seven-year old victim’s grand jury testimony and her interview with an investigating officer which was videotaped and played to the jury to sustain the burden of proof. Sheldon v. State, 796 P.2d 831 (Alaska Ct. App. 1990).

Conviction of attempted sexual abuse reversed. —

Defendant’s conviction of attempted sexual abuse of a minor in the second degree was reversed, where evidence showing that he wrote notes to an eight-year-old girl asking her to be his girlfriend and to kiss him established only that he engaged in preparatory conduct and not that he took a substantial step toward sexual contact with the girl. Johnson v. State, 730 P.2d 175 (Alaska Ct. App. 1986); Sullivan v. State, 766 P.2d 51 (Alaska Ct. App. 1988).

Imposition of direct no-contact orders. —

Where defendant pleads nolo contendere to a charge of sexual abuse of a minor, the superior court has no authority — statutory or inherent — to impose a direct no-contact order against defendant as part of the punishment for the offense. Skrepich v. State, 740 P.2d 950 (Alaska Ct. App. 1987) (not determining if superior court’s general authority to enter injunctions empowers it to enter no-contact order as an independent equitable requirement).

Sex-offender registration.

While the superior court properly found that the first defendant did not have to register as a sex offender in Alaska, it erred in finding that the second defendant had to register as a sex offender because both the Washington statute, related to communicating with a minor (or someone believed to be a minor) for immoral purposes, and the California statute, related to annoying or molesting any child under 18 years of age, under which defendants were respectively convicted were significantly broader than and different from the Alaska offense of attempted sexual abuse of a minor in the second degree. State v. Doe, 425 P.3d 115 (Alaska 2018).

Sentence upheld. —

See Bartholomew v. State, 720 P.2d 54 (Alaska Ct. App. 1986); Goodman v. State, 756 P.2d 918 (Alaska Ct. App. 1988); State v. Clark, 782 P.2d 308 (Alaska Ct. App. 1989).

Superior court properly sentenced defendant to 12 years with five years suspended, for attempted second-degree sexual abuse of a minor because, inter alia, the judge concluded that defendant's lengthy allocution at sentencing contained “a lot of excuses,” and that a substantial sentence was required in order to deter others from committing the crime, and to re-affirm the societal values that defendant had violated. Hottenstein v. State, — P.3d — (Alaska Ct. App. Aug. 22, 2018) (memorandum decision).

Sentence of eight-year presumptive term for first-degree sexual abuse of a minor and concurrent sentences of three years for two counts of second-degree sexual abuse of a minor to run concurrently with the eight-year term were upheld. The defendant’s continued efforts to justify his conduct as “sex education” and his only limited acceptance and understanding of the grave risks of psychological damage to children that his conduct presented led the court of appeals to conclude the trial judge was not clearly erroneous in concluding that the mitigating factor of conduct among the least serious in the definition of the offense was not established by clear and convincing evidence. S.B. v. State, 706 P.2d 695 (Alaska Ct. App. 1985).

Sentencing goals of general deterrence and community condemnation cannot, in themselves, support the imposition of a maximum 10-year term for a first offender convicted of a class B felony, such as sexual assault of a minor. Skrepich v. State, 740 P.2d 950 (Alaska Ct. App. 1987).

Sentences of ten years with four years suspended on each of two counts of sexual abuse of a minor in the second degree, such sentences to run consecutively to each other and consecutively to defendant’s seven-year sentence which he was serving in another state, were affirmed where the record established that he had a long history of sexual involvement with children. Kirlin v. State, 779 P.2d 1251 (Alaska Ct. App. 1989).

Sentence of 180 days, with 180 days suspended and probation, was affirmed, where there was no evidence that the victim suffered any physical or psychological injury, and appropriate therapy to resolve defendant’s problems was available in his community. State v. Capjohn, 779 P.2d 1255 (Alaska Ct. App. 1989).

Sentence of ten years with four years suspended, in the case of a first offender convicted of six counts of sexual abuse of a minor in the second degree, was affirmed, where defendant was the victim’s music teacher and his abuse of the student-teacher relationship made it an exceptionally aggravated case. Osterback v. State, 789 P.2d 1037 (Alaska Ct. App. 1990).

Sentence of ten years with four years suspended was not clearly mistaken where defendant was a second felony offender, both the current and past felonies involved sexual misconduct, the conviction involved a pattern of sexual abuse that occurred on a monthly basis over a period of three years, and the court found three aggravating factors and no mitigating factors. Wassillie v. State, 911 P.2d 1071 (Alaska Ct. App. 1996).

A composite sentence of six years to serve, with an additional three years suspended, for second-degree sexual abuse of a minor and fourth-degree misconduct involving possession of cocaine was affirmed where the sentencing judge noted that defendant had penetrated the victim against her will, both vaginally and anally, she had suffered physical injury to her genitals and rectum, and defendant threatened to kill her if she told anyone about the assault. Reese v. State, 930 P.2d 1295 (Alaska Ct. App. 1996).

A composite sentence comprised of a 13-year component attributable to second-degree sexual abuse convictions and a 15-year term for drug offenses, while admittedly severe, was not clearly mistaken. Krack v. State, 973 P.2d 100 (Alaska Ct. App. 1999).

Composite sentence of 37 years with 18 years suspended, 19 years to serve, on 10 counts of child abuse involving three very young children over a period of many months, was authorized. Anderson v. State, 289 P.3d 1 (Alaska Ct. App. 2012), reaff'd, 337 P.3d 534 (Alaska Ct. App. 2014).

Trial court properly sentenced defendant to 10 years to serve and 10 years of probation for attempted second-degree sexual abuse of a minor with “most serious” aggravator because he seized a seven-year-old child, pulled him into a carport, covered his mouth, kissed him, and touched his penis and buttocks, and immediately confessed his actions to the police; the record showed that the trial court carefully considered and found defendant's prospects for rehabilitation to be “very guarded” and found him to “as clear and present a danger as he [the judge] had seen, and the record documented multiple acts of assault and continued engagement in sexually inappropriate behavior within institutionalized settings. Konovalov v. State, — P.3d — (Alaska Ct. App. Aug. 2, 2017) (memorandum decision).

Superior court properly imposed a composite sentence of 55 years to serve and an additional 10 years suspended for second-degree sexual abuse of a minor and attempted second-degree sexual abuse of a minor because the counts included 15 different acts with 11 different victims over a period of nearly five years, the absence of the “most serious” aggravator meant only that defendant's conduct fell within the broad middle range of conduct, the court was required to impose at least some portion of the sentences consecutively and to suspend at least two to three years of defendant's sentence, and the court thoroughly analyzed the required criteria and concluded a lesser sentence would be insufficient to meet the goals of sentencing. Kashatok v. State, — P.3d — (Alaska Ct. App. Aug. 9, 2017) (memorandum decision).

When defendant was convicted of attempted sexual abuse of a minor, it was not error to deny defendant’s request for referral to a three-judge sentencing panel based on harsh immigration consequences because the sentence defendant sought to avoid such consequences would have substantially reduced defendant’s active minimum prison term and completely eliminated probation and supervision, which the legislature required for sex crimes. Bangout v. State, — P.3d — (Alaska Ct. App. July 13, 2016) (memorandum decision).

Because the superior court found one or more aggravators, it was authorized to impose a sentence of up to 99 years for defendant's attempted second-degree sexual abuse of a minor conviction; the superior court found two aggravating factors, that the conduct constituting the offense was among the most serious conduct included in the definition of the offense and that defendant, having been convicted of a specified sexual felony, was ten or more years older than the victim. Rosario v. State, — P.3d — (Alaska Ct. App. Feb. 3, 2021) (memorandum decision).

Sentence imposed for attempted second-degree sexual abuse of a minor was not clearly mistaken because defendant stipulated to conduct that constituted a completed offense; the superior court, therefore, concluded that defendant's offense was very serious in comparison to other crimes of attempted sexual abuse. Rosario v. State, — P.3d — (Alaska Ct. App. Feb. 3, 2021) (memorandum decision).

Federal sentencing enhancement. —

District court erred in applying multiple-conviction enhancement in 18 U.S.C.S. § 2251(e) and sentencing defendant to life imprisonment because “sexual exploitation of children” as contained in § 2251 was defined within that statute as production of child pornography, and because defendant’s prior Alaska convictions concerning sexual abuse and sexual assault of minors did not require visual depiction element, they did not relate to sexual exploitation of children and could not serve as predicate offenses for purposes of enhancement. United States v. Schopp, 938 F.3d 1053 (9th Cir. Alaska 2019).

Sentence held excessive. —

See Whitlow v. State, 719 P.2d 267 (Alaska Ct. App. 1986); Weiss v. State, 784 P.2d 251 (Alaska Ct. App. 1989); Davis v. State, 793 P.2d 1064 (Alaska Ct. App.), amended, — P.2d — (Alaska Ct. App. 1990).

Where a defendant who pleaded nolo contendere to a charge of sexual abuse of a minor was undeniably dishonest and abused the trust inherent in his role as the victim’s karate instructor, but there was no evidence of any assaultive conduct or of any physical or psychological coercion or intimidation and the victim was 15-years old, the upper age limit included in the definition of the offense of second-degree sexual abuse, the absence of any prior conviction precluded the court of appeals from predicting with any degree of confidence that the defendant was in fact incapable of rehabilitation and could not be deterred. The sentencing court’s abandonment of rehabilitation and personal deterrence as sentencing goals was unwarranted; its imposition of a maximum sentence was clearly mistaken; and the case was remanded for imposition of a sentence of not more than 10 years with four years suspended. Skrepich v. State, 740 P.2d 950 (Alaska Ct. App. 1987).

Sentence held inadequate. —

Sentence requiring 1,000 hours of community work, while suspending the entire term of three years’ incarceration imposed upon a 27-year-old gym teacher convicted of sexually abusing a 14-year-old female student, was disapproved, where the sentence unduly depreciated the significance of his misconduct and inadequately served the sentencing goal of community condemnation. State v. Jackson, 776 P.2d 320 (Alaska Ct. App. 1989).

Enhanced parole eligibility. —

Trial court erred in failing to consider whether the prohibition on discretionary parole would result in manifest injustice after it imposed a sentenced of 15 years with 9 years suspended for second-degree sexual abuse of a minor, and the three-judge sentencing panel had statutory authority to grant enhanced parole eligibility to defendants who were subject to presumptive sentencing. Lochridge v. State, — P.3d — (Alaska Ct. App. June 8, 2016) (memorandum decision).

Applied in

Higgs v. State, 676 P.2d 610 (Alaska Ct. App. 1984); Olp v. State, 738 P.2d 1117 (Alaska Ct. App. 1987); Horton v. State, 758 P.2d 628 (Alaska Ct. App. 1988); Juelson v. State, 758 P.2d 1294 (Alaska Ct. App. 1988); Sikeo v. State, 258 P.3d 906 (Alaska Ct. App. 2011); Leavitt v. State, — P.3d — (Alaska Ct. App. Nov. 12, 2020).

Quoted in

Toney v. Fairbanks N. Star Borough Sch. Dist., Bd. of Educ., 881 P.2d 1112 (Alaska 1994); Moore v. State, 298 P.3d 209 (Alaska Ct. App. 2013); State v. Thompson, 435 P.3d 947 (Alaska 2019).

Stated in

State v. Williams, 855 P.2d 1337 (Alaska Ct. App. 1993); Flood v. State, 304 P.3d 1083 (Alaska Ct. App. 2013).

Cited in

Smith v. State, 745 P.2d 1375 (Alaska Ct. App. 1987); Patterson v. State, 747 P.2d 535 (Alaska Ct. App. 1987); Jager v. State, 748 P.2d 1172 (Alaska Ct. App. 1988); Foster v. State, 751 P.2d 1383 (Alaska Ct. App. 1988); Russell v. State, 752 P.2d 1022 (Alaska Ct. App. 1988); Lahmeyer v. State, 765 P.2d 985 (Alaska Ct. App. 1988); Allen v. State, 769 P.2d 457 (Alaska Ct. App. 1989); Geer v. State, 778 P.2d 599 (Alaska Ct. App. 1989); Hayes v. State, 790 P.2d 713 (Alaska Ct. App. 1990); Nunn v. State, 845 P.2d 435 (Alaska Ct. App. 1993); Heath v. State, 849 P.2d 786 (Alaska Ct. App. 1993); Kolkman v. State, 857 P.2d 1202 (Alaska Ct. App. 1993); Steve v. State, 875 P.2d 110 (Alaska Ct. App. 1994); Mullin v. State, 886 P.2d 1323 (Alaska Ct. App. 1994); State v. Fremgen, 889 P.2d 1083 (Alaska Ct. App. 1995); Cole v. State, 923 P.2d 820 (Alaska Ct. App. 1996); Plate v. State, 925 P.2d 1057 (Alaska Ct. App. 1996); Williams v. State, 928 P.2d 600 (Alaska Ct. App. 1996); Beaver v. State, 933 P.2d 1178 (Alaska Ct. App. 1997); State v. Simpson, 946 P.2d 890 (Alaska Ct. App. 1997); Scroggins v. State, 951 P.2d 442 (Alaska Ct. App. 1998); Schumacher v. State, 11 P.3d 397 (Alaska Ct. App. 2000); Wholecheese v. State, 100 P.3d 14 (Alaska Ct. App. 2004); Kelly v. State, 116 P.3d 602 (Alaska Ct. App. 2005); Labrake v. State, 152 P.3d 474 (Alaska Ct. App. 2007); Garland v. State, 172 P.3d 827 (Alaska Ct. App. 2007); Malutin v. State, 198 P.3d 1177 (Alaska Ct. App. 2009); Thompson v. State, 210 P.3d 1233 (Alaska Ct. App. 2009); Diorec v. State, 295 P.3d 409 (Alaska Ct. App. 2013); Faye H. v. James B., 348 P.3d 876 (Alaska 2015); Trout v. State, 377 P.3d 296 (Alaska Ct. App. 2016); Reasner v. State, 394 P.3d 610 (Alaska 2017); Doe v. Dep't of Pub. Safety, 444 P.3d 116 (Alaska 2019); Cole v. State, 452 P.3d 704 (Alaska Ct. App. 2019); Cole v. State, 452 P.3d 704 (Alaska Ct. App. 2019); Hayes v. State, 474 P.3d 1179 (Alaska Ct. App. 2020); Olmstead v. State, 477 P.3d 656 (Alaska Ct. App. 2020); Dalton v. State, 477 P.3d 650 (Alaska Ct. App. 2020); Marrera v. State, — P.3d — (Alaska Ct. App. May 22, 2019).

Notes to Decisions

Prior law. —

For cases decided under prior law, see notes to AS 11.41.434 , Notes to Decisions.

Merger of counts. —

Defendant’s convictions for sexual abuse of a minor in the second degree for digital penetration, sexual abuse of a minor in the third degree for touching the victim’s breasts, and sexual abuse of a minor in the second degree for cunnilingus merged, and he should have been sentenced only on a single count of sexual abuse of a minor in the second degree. Newsome v. State, 782 P.2d 689 (Alaska Ct. App. 1989).

Conviction for lesser degree of offense. —

The legislature intended AS 11.81.615 to permit a court or jury to convict a sexual offender of a lesser degree of offense, in this case, third-degree sexual abuse, despite the fact that the evidence reasonably (or even convincingly) demonstrated that the defendant committed a greater degree of offense because the victim was younger than alleged. Thiessen v. State, 844 P.2d 1137 (Alaska Ct. App. 1993).

Probation. —

After defendant was convicted for sexual abuse of a minor, he raised first amendment concerns related to the imposition of probation conditions that prohibited him from possessing “sexually explicit material” or entering a business that sold “sexually explicit material”; there were no findings supporting the imposition of those restrictions, and no clarification of what they meant. Johnston v. State, — P.3d — (Alaska Ct. App. Sept. 4, 2013) (memorandum decision).

Position of authority. —

Whether the live-in boyfriend of the minor’s mother was in a position of authority was a question of fact for the jury; and because defendant assumed authority over the victim as her stepfather and primary caretaker, the jury reasonably concluded that he was in a position of authority over her for purposes of this statute. Wurthmann v. State, 27 P.3d 762 (Alaska Ct. App. 2001).

Applicability of motor vehicle insurance. —

Where taxi driver was found to have knowingly engaged in sexual penetration and sexual contact with a minor, his sexual contact with the minor was deliberate rather than accidental, and because his motor vehicle insurance agreement only covered injuries “caused by an accident,” there was no coverage under this provision. Kim v. National Indem. Co., 6 P.3d 264 (Alaska 2000), overruled in part, Shaw v. State Farm Mut. Auto. Ins. Cos., 19 P.3d 588 (Alaska 2001).

Sentence remanded. —

Defendant's sentence, after pleading guilty to third-degree sexual abuse of a minor and fourth-degree misconduct involving a controlled substance and furnishing alcoholic beverages to a person under the age of 21, and stipulating to the aggravating factor that defendant's conduct was among the most serious conduct included in the definition of third-degree sexual abuse of a minor, was remanded because, while it was not error for a judge to reference the judge's past experiences in other cases, the record did not support the judge's finding that defendant got the victim "drunk and high" in order to sexually abuse the victim. Jackson v. State, — P.3d — (Alaska Ct. App. July 1, 2020) (memorandum decision).

Quoted in

Toney v. Fairbanks N. Star Borough Sch. Dist., Bd. of Educ., 881 P.2d 1112 (Alaska 1994).

Stated in

State v. Williams, 855 P.2d 1337 (Alaska Ct. App. 1993).

Federal sentencing enhancement. —

District court erred in applying multiple-conviction enhancement in 18 U.S.C.S. § 2251(e) and sentencing defendant to life imprisonment because “sexual exploitation of children” as contained in § 2251 was defined within that statute as production of child pornography, and because defendant’s prior Alaska convictions concerning sexual abuse and sexual assault of minors did not require visual depiction element, they did not relate to sexual exploitation of children and could not serve as predicate offenses for purposes of enhancement. United States v. Schopp, 938 F.3d 1053 (9th Cir. Alaska 2019).

Cited in

State v. Ridgway, 750 P.2d 362 (Alaska Ct. App. 1988); M.C. v. Northern Ins. Co., 1 P.3d 673 (Alaska 2000); Kelly v. State, 116 P.3d 602 (Alaska Ct. App. 2005); Malutin v. State, 198 P.3d 1177 (Alaska Ct. App. 2009); Reasner v. State, 394 P.3d 610 (Alaska 2017); Alexie v. State, 402 P.3d 416 (Alaska Ct. App. 2017); Doe v. Dep't of Pub. Safety, 444 P.3d 116 (Alaska 2019).

Notes to Decisions

Prior law. —

For cases decided under prior law, see notes to AS 11.41.434 , Notes to Decisions.

Specific intent crime. —

Sexual abuse of a minor is a specific intent crime. J.E.C. v. State, 681 P.2d 1358 (Alaska Ct. App. 1984).

Coercion established. —

Defendant inserted his hand under his 16-year-old niece's clothing, and he held his hand on top of her genitals, and when his niece pulled his hand out, he grabbed her hand and held it against his penis; in both instances, defendant's conduct was legally sufficient to establish that his niece was coerced to engage in this sexual contact. Malyk v. State, — P.3d — (Alaska Ct. App. Dec. 19, 2018) (memorandum decision).

Instructions. —

The trial court erred in its instructions regarding the mens rea required for sexual abuse of a minor under former AS 11.41.440(a)(2) and contributing to the delinquency of a minor under former AS 11.51.130(a)(4) . Flink v. State, 683 P.2d 725 (Alaska Ct. App. 1984).

Although the trial court erred in refusing to give defendant’s proposed instruction that he had to have a specific intent to arouse or gratify his or the child’s sexual desires in order to be convicted of violating former AS 11.41.440(a)(2) , this error was harmless beyond reasonable doubt where the jury was told that defendant had to knowingly engage in sexual contact with the child. J.E.C. v. State, 681 P.2d 1358 (Alaska Ct. App. 1984).

Unanimity instruction. —

Trial judge's failure to give a factual unanimity instruction was error, but even if the jury had been instructed on the need for factual unanimity, there was no reasonable possibility that any of the jurors would have voted to acquit defendant of forcing his niece to touch his penis, and thus the trial judge's failure to give the instruction was harmless beyond a reasonable doubt. Malyk v. State, — P.3d — (Alaska Ct. App. Dec. 19, 2018) (memorandum decision).

Probationary sentence. —

Although a probationary sentence may properly be used when a first offender is convicted of a class C felony involving sexual abuse of a child, such a sentence will be appropriate only if mitigating circumstances exist and the offender is a promising candidate for rehabilitation through probationary supervision. State v. Coats, 669 P.2d 1329 (Alaska Ct. App. 1983).

Use of prior offense as aggravating factor. —

In a case where defendant agreed to plead no contest to attempted first-degree sexual abuse of a minor in exchange for a sentence of 12 years’ imprisonment with seven years suspended, he stipulated to two aggravating factors, one of which was misapplied in this case because defendant’s prior juvenile offense of fourth-degree sexual abuse of a minor as defined in AS 11.41.440(a)(1) was a misdemeanor and not a felony; however, defendant was not entitled to rescission of his plea bargain under Alaska R. Crim. P. 11(h) because the other stipulation was sufficient to establish superior court’s authority to impose the negotiated sentence. Malutin v. State, 198 P.3d 1177 (Alaska Ct. App. 2009).

Conviction under pre-1983 section upheld. —

See Moor v. State, 709 P.2d 498 (Alaska Ct. App. 1985).

Conviction and sentence under pre-1983 section upheld. —

See Depp v. State, 686 P.2d 712 (Alaska Ct. App. 1984).

Convictions merged. —

Defendant's two convictions of second-degree sexual assault and fourth-degree sexual abuse of a minor, which stemmed from sexual contact with the victim on a couch, had to merge into a single conviction. Malyk v. State, — P.3d — (Alaska Ct. App. Dec. 19, 2018) (memorandum decision).

Conviction reversed. —

Conviction under the pre-1983 version of this section was reversed where the jury was not properly instructed regarding the culpable mental state for the crime. Potts v. State, 712 P.2d 385 (Alaska Ct. App. 1985).

Remand in light of Flink v. State. —

In Flink v. State , 683 P.2d 725 (Alaska Ct. App. 1983), superseded by statute as stated in Scroggins v. State , 951 P.2d 442 (Alaska Ct. App. 1998), involving a non-jury trial under this section as it read before 1983 was remanded for application of the specific intent standard that the defendant acted with the specific intent to achieve his own sexual arousal or the sexual arousal of the victim. Colgan v. State, 711 P.2d 533 (Alaska Ct. App. 1985).

Applied in

Goulden v. State, 656 P.2d 1218 (Alaska Ct. App. 1983); Higgs v. State, 676 P.2d 610 (Alaska Ct. App. 1984).

Cited in

Stores v. State, 625 P.2d 820 (Alaska 1980); Hodges v. State, 660 P.2d 1203 (Alaska Ct. App. 1983); State v. R.H., 683 P.2d 269 (Alaska Ct. App. 1984); Kizzire v. State, 715 P.2d 272 (Alaska Ct. App. 1986); Agwiak v. State, 750 P.2d 846 (Alaska Ct. App. 1988); McGlauflin v. State, 857 P.2d 366 (Alaska Ct. App. 1993); Toney v. Fairbanks N. Star Borough Sch. Dist., Bd. of Educ., 881 P.2d 1112 (Alaska 1994); Doe v. Dep't of Pub. Safety, 444 P.3d 116 (Alaska 2019).

Collateral references. —

Assault with intent to commit unnatural sex act upon minor as affected by latter’s consent, 65 ALR2d 748.

Applicability of rape statute covering children of a specified age, with respect to a child who has passed the anniversary date of such age, 73 ALR2d 874.

Liability of parent for injury to unemancipated child caused by parent’s negligence — modern cases. 6 ALR4th 1066.

Notes to Decisions

Constitutionality of mistake of age defense. —

In promulgating subsection (b), the Alaska legislature balanced society’s interest in deterring sexual abuse of minors against the policy of allowing defendants to show that they did everything reasonably possible to ascertain the age of their sexual partners; such a balancing — and, in particular, the decision to allocate the burden of proof to the defendant — is within the constitutional bounds of legislative action and does not violate the Federal Constitution’s guarantee of due process. Steve v. State, 875 P.2d 110 (Alaska Ct. App. 1994).

Because the defendant’s belief concerning the victim’s age is a matter of defense, not an element of the crime, the legislature can constitutionally allocate the burden of proof where it sees fit, in light of the societal interests involved; therefore, subsection (b) is constitutional. Steve v. State, 875 P.2d 110 (Alaska Ct. App. 1994).

The government’s failure to disclose the sexual relationship between the prosecutor and state trooper did not violate appellant’s right to due process of law; the disputed issue at trial was whether appellant reasonably believed that the victim was old enough to validly consent to sexual activity, and the State’s evidence on that issue did not come from the trooper or rest on his credibility. Thompson v. State, — P.3d — (Alaska Ct. App. Dec. 11, 2013) (memorandum decision).

Burden of proof in mistake of age defense. —

Subsection (b) creates a mistake-of-age defense to relieve defendants from strict liability for sexual relations with children older than 13 and younger than 16; however, the defendant must prove this exculpatory mistake by a preponderance of the evidence. Steve v. State, 875 P.2d 110 (Alaska Ct. App. 1994).

Prosecutor's improper statements implying defendant had to offer direct evidence to prove an affirmative defense of mistake of age and wrongly stating defendant offered no supporting evidence were harmless beyond a reasonable doubt because (1) the indirect comments were curable by instructions, and, (2) if the jury believed defendant's witnesses, the jury could still reject the defense. Burgess v. State, — P.3d — (Alaska Ct. App. Apr. 19, 2017) (memorandum decision).

Allowance of affirmative defense required. —

In prosecution for sexual abuse of minor in first degree, trial court was required to allow defendant to present an affirmative defense that he reasonably believed that at the time that he engaged in sexual penetration with victim, she was sixteen years of age or older. State v. Fremgen, 889 P.2d 1083 (Alaska Ct. App. 1995).

Applied in

Jager v. State, 748 P.2d 1172 (Alaska Ct. App. 1988).

Cited in

Peters v. State, 943 P.2d 418 (Alaska Ct. App. 1997); Kelly v. State, 116 P.3d 602 (Alaska Ct. App. 2005); Doe v. State, 189 P.3d 999 (Alaska 2008).

Notes to Decisions

Separate sentences for incest and second-degree assault. —

Where the two statutes required proof of different conduct and the social interests to be vindicated or protected by each statute were different, separate sentences on defendant’s convictions for incest and second-degree sexual assault did not violate double jeopardy. Harmon v. State, 11 P.3d 393 (Alaska Ct. App. 2000).

Death of defendant abated prosecution under former section. Hartwell v. State, 423 P.2d 282 (Alaska 1967), overruled, State v. Carlin, 249 P.3d 752 (Alaska 2011) (decided under former AS 11.40.110).

Applied in

Kasgnoc v. State, 448 P.3d 883 (Alaska Ct. App. 2019).

Stated in

Flood v. State, 304 P.3d 1083 (Alaska Ct. App. 2013).

Cited in

Theodore v. State, 692 P.2d 987 (Alaska Ct. App. 1985); Bingaman v. State, 76 P.3d 398 (Alaska Ct. App. 2003); Alaska Civ. Liberties Union v. State, 122 P.3d 781 (Alaska 2005); Davison v. State, 282 P.3d 1262 (Alaska 2012).

Collateral references. —

Consent as element of incest, 36 ALR2d 1299.

Prosecutrix in an incest case as accomplice or victim, 74 ALR2d 705.

Incest as included in charge of rape, 76 ALR2d 484.

Sexual intercourse between persons related by half blood as incest, 34 ALR5th 723.

Notes to Decisions

Sufficiency of evidence. —

Defendant’s convictions for two counts of online enticement of a minor were proper because the statute could be read narrowly to avoid the danger of unconstitutionality; there was no question that he intended to solicit two police officers, who were posing as 14-year-old girls, to masturbate for his own sexual gratification. Moore v. State, 298 P.3d 209 (Alaska Ct. App. 2013).

Evidence was sufficient to convince jurors that the State had proven its case against defendant for online enticement of a minor, as he engaged in conversations with a police officer posing as a teenage girl, and defendant said he wanted to have sex with her after being told she was only 15 years old; defendant’s arguments hinged on viewing the evidence in the light most favorable to himself, but that was not the standard. Olsen v. State, — P.3d — (Alaska Ct. App. July 22, 2015) (memorandum decision).

Construction. —

Language of the statute requiring an offender to “solicit, entice, or encourage” a minor to engage in listed sexual activities must be interpreted to require the State to prove that the offender intended to cause or persuade the minor to engage in the listed sexual activities; the statute does not penalize advice from a family member or a medical provider. Moore v. State, 298 P.3d 209 (Alaska Ct. App. 2013).

Cited in

Diorec v. State, 295 P.3d 409 (Alaska Ct. App. 2013); Doe v. Dep't of Pub. Safety, 444 P.3d 116 (Alaska 2019).

Collateral references. —

Construction and application of U.S. sentencing guideline 2G1.3(b)(3), providing two-level enhancement for use of computer to persuade, induce, entice, coerce, or facilitate the travel of, minor to engage in prohibited sexual conduct, 58 ALR Fed. 2d 1.

Notes to Decisions

“Live performance”. —

This section covers private, noncommercial live performances; however, “live performance” does not include the situation in which a single adult requests a child to display his or her genitals to that adult in private. Braun v. State, 911 P.2d 1075 (Alaska Ct. App. 1996).

Statutory construction. —

Defendant’s interpretation of this section under the rule of lenity, alleging that it was absurd that he was permitted to have sex with someone between the ages of 16 and 18, yet he was prohibited from photographing someone between those ages, was not persuasive; the relevant provisions simply refer to a child under 18 years of age, and do not distinguish between child pornography produced or possessed for private purposes and that intended for distribution. State v. Parker, 147 P.3d 690 (Alaska 2006).

AS 11.61.127(a) forbids the possession of pornographic material that is generated by the conduct prohibited by AS 11.41.455(a) , pornography that was generated by the use of a child under the age of 18; the government had to prove that defendant knew that this child pornography was in his possession and that defendant acted knowingly with respect to the circumstance that the pornography was generated illegally. Ferrick v. State, 217 P.3d 418 (Alaska Ct. App. 2009).

Joinder of offenses. —

Where defendant was charged with sexual abuse of a minor, unlawful exploitation of a minor, distribution of child pornography, and possession of child pornography stemming from his sexual involvement with his girlfriend’s minor daughter, the trial court did not err in denying defendant’s motion to sever the sexual abuse charges from the pornography charges because all charges stemmed from defendant’s inappropriate relationship with the young girl and were connected. Ogletree v. State, — P.3d — (Alaska Ct. App. Aug. 19, 2009) (memorandum decision).

Merger. —

Defendant’s separate convictions for exploitation of a minor and possession of child pornography had to merge when they were based on evidence that defendant took a sexually explicit photograph of his victim and then kept this photograph. Thompson v. State, 378 P.3d 707 (Alaska Ct. App. 2016), aff'd in part and rev'd in part, 435 P.3d 947 (Alaska 2019).

Defendant’s creation of separate photographs will support separate convictions, even if those photo- graphs are created during the same photo shoot; therefore, defendant’s argument that double jeopardy required a merger of any sexual exploitation convictions involving photographs that were taken during the same photo shoot was rejected. Thompson v. State, 378 P.3d 707 (Alaska Ct. App. 2016), aff'd in part and rev'd in part, 435 P.3d 947 (Alaska 2019).

Solicitation of crime. —

Where defendant was charged with soliciting the crime of unlawful exploitation of a minor based on his asking victims to take off their clothes and let him photograph them, defendant’s argument that he did not “solicit” the crime because the victims could not be guilty of the intended crime was foreclosed by the provision of AS 11.31.110 that it is no defense that the person solicited could not be guilty of the crime that is the object of the solicitation. Braun v. State, 911 P.2d 1075 (Alaska Ct. App. 1996).

Defendant’s convictions for soliciting the crime of unlawful exploitation of a minor which were based on his asking victims to take off their clothes and let him photograph them were erroneous since defendant did not ask anyone else to engage in the prohibited conduct, i.e., inducing a child to engage in one of the sexual activities prohibited by this section, and thus he did not commit the crime of solicitation. Braun v. State, 911 P.2d 1075 (Alaska Ct. App. 1996).

Aggravating factors. —

Where the superior court found an aggravating factor at the defendant’s original sentencing, he faced a sentence more severe than the four-year presumptive term for second felony offenders at the time of his sentencing for exploitation of a minor. Harris v. State, 980 P.2d 482 (Alaska Ct. App. 1999).

Federal sentencing enhancement. —

District court erred in applying multiple-conviction enhancement in 18 U.S.C.S. § 2251(e) and sentencing defendant to life imprisonment because “sexual exploitation of children” as contained in § 2251 was defined within that statute as production of child pornography, and because defendant’s prior Alaska convictions concerning sexual abuse and sexual assault of minors did not require visual depiction element, they did not relate to sexual exploitation of children and could not serve as predicate offenses for purposes of enhancement. United States v. Schopp, 938 F.3d 1053 (9th Cir. Alaska 2019).

Conviction and sentence upheld. —

See Depp v. State, 686 P.2d 712 (Alaska Ct. App. 1984).

Withdrawal of plea bargain denied. —

Where defendant pleaded no contest to three felonies as part of a plea bargain, his decision to plead no contest was not materially influenced by his mistaken understanding concerning the consequences of winning a suppression motion; trial court did not err in denying defendant’s motion to withdraw his plea. Parker v. State, 90 P.3d 194 (Alaska Ct. App. 2004), rev'd, 147 P.3d 690 (Alaska 2006).

“Least serious” mitigator held inapplicable. —

Defendant’s alleged lack of intent to distribute pornographic photographs and videos of children, purportedly evidenced by his concealment of them in a locked briefcase in a closet in his house, even if proven by clear and convincing evidence, did not mandate a “least serious” mitigator. State v. Parker, 147 P.3d 690 (Alaska 2006).

Probation condition proper. —

Trial court did not err in imposing a probation condition prohibiting defendant from possessing “sexually explicit material” because it was related to his offense of unlawful exploitation of a minor for surreptitiously filming his stepdaughter in her bedroom; however the parameters of the prohibition had to be more precisely defined. Diorec v. State, 295 P.3d 409 (Alaska Ct. App. 2013).

Applied in

Qualle v. State, 652 P.2d 481 (Alaska Ct. App. 1982); Harris v. State, 790 P.2d 1379 (Alaska Ct. App. 1990); Parker v. State, 151 P.3d 478 (Alaska Ct. App. 2006).

Quoted in

Moore v. State, 298 P.3d 209 (Alaska Ct. App. 2013).

Stated in

Hayes v. State, 474 P.3d 1179 (Alaska Ct. App. 2020); Galindo v. State, 481 P.3d 686 (Alaska Ct. App. 2021).

Cited in

Lawrence v. State, 764 P.2d 318 (Alaska Ct. App. 1988); Scroggins v. State, 951 P.2d 442 (Alaska Ct. App. 1998); Labrake v. State, 152 P.3d 474 (Alaska Ct. App. 2007); Doe v. Dep't of Pub. Safety, 444 P.3d 116 (Alaska 2019).

Collateral references. —

Construction and application of U.S. sentencing guideline 2G1.3(b)(3), providing two-level enhancement for use of computer to persuade, induce, entice, coerce, or facilitate the travel of, minor to engage in prohibited sexual conduct, 58 ALR Fed. 2d 1.

Notes to Decisions

Mistrial properly denied. —

Trial court did not err by denying defendant’s request for a mistrial when, in the middle of the trial, the state discovered and disclosed the dispatched log of a 911 call that placed defendant’s first act of self-exposure on an earlier date than had previously been thought and tended to defeat his alibi defense because, even though the court had doubts as to whether the late disclosure of the 911 dispatch log violated Alaska R. Crim. P. 16, it concluded that defendant was not unfairly prejudiced. Butler v. State, — P.3d — (Alaska Ct. App. Nov. 12, 2008) (memorandum decision).

Jury instructions. —

It was no error to deny defendant's proposed instruction on the definition of “presence” because (1) an elements instruction sufficiently told the jury what the State had to prove, and (2) closing arguments cleared up any confusion on this element. Davis v. State, — P.3d — (Alaska Ct. App. Jan. 16, 2019) (memorandum decision).

Judicial notice. —

Judge who presided both in a father’s divorce case and in the father’s criminal case in which the father pled guilty to indecent exposure was not disqualified because, inter alia, the judge properly took judicial notice of the father’s conviction. Jerry B. v. Sally B., 377 P.3d 916 (Alaska), modified, — P.3d — (Alaska 2016).

Sentencing. —

It was no error to deny defendant's proposed mitigator at sentencing because findings of defendant's conduct supported the conclusion that the conduct was not among the least serious covered by the first-degree indecent exposure statute. Davis v. State, — P.3d — (Alaska Ct. App. Jan. 16, 2019) (memorandum decision).

Cited in

Doe v. Dep't of Pub. Safety, 444 P.3d 116 (Alaska 2019).

Collateral references. —

What constitutes “public place” within meaning of state statute or local ordinance prohibiting indecency or commission of sexual act in public place. 95 ALR5th 229.

Notes to Decisions

Deviation from Neal-Mutschler rule. —

Based on evidence showing multiple acts of aggravated indecent exposure to a minor, and failure to appear for over 15 years, conviction on four misdemeanor counts was proper. While defendant’s composite sentence could not exceed one year under the Neal-Mutschler rule, the sentencing court was permitted to impose a composite sentence of one and a half years based upon a consideration of the factors set forth in AS 12.55.005 ; defendant’s offenses were among the most serious, his failure to appear prolonged the criminal prosecution, and he caused the victim to suffer emotional problems. Phelps v. State, 236 P.3d 381 (Alaska Ct. App. 2010).

Cited in

Labrake v. State, 152 P.3d 474 (Alaska Ct. App. 2007); Doe v. Dep't of Pub. Safety, 444 P.3d 116 (Alaska 2019).

Collateral references. —

What constitutes “public place” within meaning of state statute or local ordinance prohibiting indecency or commission of sexual act in public place. 95 ALR5th 229.

Notes to Decisions

“Incapacitated” victim as basis for aggravating factor. —

Where jury found defendant guilty of second-degree sexual assault under AS 11.41.420(a)(3)(B) , the state alleged that defendant engaged in sexual penetration with the victim when he knew that she was incapacitated, the jury necessarily found that defendant knew that his victim was incapacitated; therefore, when the trial judge used this as an aggravating factor, defendant’s right to a trial by jury at sentencing, under Blakely v. Washington , 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004),, was not violated. Cleveland v. State, 143 P.3d 977 (Alaska Ct. App. 2006).

Incapacitated. —

A sleeping person can be “incapacitated” within the meaning of paragraph (2) of this section. King v. State, 978 P.2d 1278 (Alaska Ct. App. 1999).

Where three counts of the indictment charged that defendant committed second- and third-degree sexual assault and attempted second-degree sexual assault based on the allegation that the victim was incapacitated, the State presented evidence the victim had consumed a large quantity of alcohol and there was a significant gap in her memory after leaving the bar; the evidence was sufficient to show to support the counts that required proof that the victim was incapacitated. Kittick v. State, — P.3d — (Alaska Ct. App. Aug. 18, 2010) (memorandum decision).

Evidence was sufficient to support a conviction for sexual assault in the second degree because the evidence showed that a victim was incapacitated when appellant had sexual intercourse with her; the victim consumed an entire bottle of whiskey, her blood-alcohol level was .377 percent nine hours after the sexual assault, a witness testified that the victim was too drunk to be having sex, and expert testimony established that her blood-alcohol content would have been higher when the sexual assault occurred. Russell-Durant v. State, — P.3d — (Alaska Ct. App. Apr. 11, 2012) (memorandum decision).

Without consent. —

Evidence was sufficient to support jury’s determination that defendant engaged in sexual contact with four female clients in his work as a massage therapist; it was reasonable for the jury to find that the women were coerced by an implicit threat of imminent physical injury or kidnapping. Ritter v. State, 97 P.3d 73 (Alaska Ct. App. 2004).

Evidence which the State presented to the grand jury was insufficient to show that defendant compelled the victim to submit to sexual touching by the use of force; the evidence showed that, when defendant assaulted him, the victim was not intimidated but reacted immediately to terminate the assault, and the evidence which the State presented to the grand jury was insufficient to indict defendant for sexual assault in the second degree. State v. Townsend, — P.3d — (Alaska Ct. App. Sept. 14, 2011) (memorandum decision).

Where defendant had a history of sexually abusing his stepdaughters, the failure of a stepdaughter to protest when she awoke to find him assaulting her did not constitute consent. The evidence showed that defendant should have known the victim was intimidated and that sexual contact with her would thus be nonconsensual. Adams v. State, — P.3d — (Alaska Ct. App. Mar. 28, 2012) (memorandum decision).

Evidence was sufficient to support defendant’s convictions for sexual assault based on his coercion of the victim, his wife, to engage in sexual penetration and sexual contact; he used force when he carried the victim to the bedroom, removed her underwear, and engaged in sexual penetration. Joseph v. State, 293 P.3d 488 (Alaska Ct. App. 2012).

Conviction for first-degree sexual assault was reversed because certain evidence was improperly excluded at trial. Failure to present that allegedly exculpatory evidence to the grand jury did not constitute grounds for dismissal of the charges, but did entitle the defendant to a new trial. Milligan v. State, 286 P.3d 1065 (Alaska Ct. App. 2012).

Grand jury was given an accurate definition of “without consent,” including the requirement of coercion, even if the initial definition was incomplete, because the statutory definition from this section was later provided. Nicoli v. State, — P.3d — (Alaska Ct. App. Feb. 20, 2013) (memorandum decision).

During defendant’s trial for sexual assault, the court did not err in allowing the State to argue both theories of “without consent” in paragraph (8). The assertions about defendant’s conduct remained the same under either the coercion theory or the incapacitation theory; under both theories, the State alleged that he beat the victim as part of the sexual assault. Bernhardt v. State, — P.3d — (Alaska Ct. App. Feb. 6, 2013) (memorandum decision).

Statutory definition of “without consent” differs from the common understanding of this phrase, in that the State is required to prove not only the victim’s lack of subjective consent to the sexual conduct, but also coercion. Kuku v. State, — P.3d — (Alaska Ct. App. Oct. 2, 2013) (memorandum decision).

Trial judge erred in instructing the jury on the “incapacitation” clause of the definition of without consent, because while defendant gave the victim sleeping pills, there was no evidence that she was incapacitated at the time; however, the error was harmless as the jury was correctly instructed on the legal meaning of incapacitated and could see for themselves that the evidence failed to support the prosecutor's assertion that the victim was incapacitated. Malyk v. State, — P.3d — (Alaska Ct. App. Dec. 19, 2018) (memorandum decision).

Sufficient evidence supported defendant’s second-degree sexual assault conviction because the evidence showed the coercion element of “without consent,” as a reasonable juror could find defendant’s grabbing of the victim’s breasts and ensuing attack were connected parts of a continuous episode and occurred without consent. Inga v. State, 440 P.3d 345 (Alaska Ct. App. 2019).

Evidence was sufficient to uphold defendant’s conviction for first-degree sexual assault because a fair-minded juror could find that fellatio was coerced by the use of force; defendant’s act of grabbing the victim’s jaw was force beyond the bodily impact required for the act of penetration itself, and the victim testified that his actions caught her off guard and made her feel fearful and intimidated. Holt v. State, — P.3d — (Alaska Ct. App. Apr. 3, 2019) (memorandum decision).

Jury was properly instructed on the statutory definition of “without consent“ in one instruction so that the jury was aware that, in the context of attempted sexual assault, without consent incorporated both the concept of the victim’s lack of subjective consent and the defendant's use of coercion. The jury was also aware, from another instruction, that the completed crime of second-degree sexual assault required proof that defendant took a substantial step toward accomplishing a sexual contact with the victim that would occur without consent. Davis v. State, — P.3d — (Alaska Ct. App. July 17, 2019) (memorandum decision).

Sexual assault instruction omitting Alaska's non-standard definition of "without consent" was harmless error because (1) instructions were uncontested, and (2) consent was uncontested issue, as defendant denied being present. Active v. State, — P.3d — (Alaska Ct. App. Dec. 18, 2019) (memorandum decision).

Coercion established. —

Defendant inserted his hand under his 16-year-old niece's clothing, and he held his hand on top of her genitals, and when his niece pulled his hand out, he grabbed her hand and held it against his penis; in both instances, defendant's conduct was legally sufficient to establish that his niece was coerced to engage in this sexual contact. Malyk v. State, — P.3d — (Alaska Ct. App. Dec. 19, 2018) (memorandum decision).

Position of authority. —

With regard to the meaning of “position of authority”, the jury was correctly instructed and informed that they could consider if defendant’s role was similar to one of the roles listed in this section. This element was met by the State because defendant and his mother were in charge of taking care of the victim and had a role substantially similar to a babysitter. Thompson v. State, 378 P.3d 707 (Alaska Ct. App. 2016), aff'd in part and rev'd in part, 435 P.3d 947 (Alaska 2019).

First-degree sexual assault convictions were affirmed where the victim’s testimony established that she believed that she could not resist defendant’s abuse because of his threats to her family. Werder v. State, — P.3d — (Alaska Ct. App. May 25, 2016) (memorandum decision).

Defendant was in a position of authority because he effectively functioned as the victim's surrogate parent or full-time sitter for weeks, or even months, while the victim was away from her mother. State v. Thompson, 435 P.3d 947 (Alaska 2019).

No right to jury trial on certain fact questions triggering higher mandatory sentence. —

In trial for second-degree murder, defendant had no Sixth Amendment right to a jury trial on issues of fact about the victim’s age and defendant’s position of authority in relation to the deceased child within the meaning of paragraph (5) of this section, because AS 12.55.125(b) applied those issues of fact that increase the mandatory minimum term of imprisonment for a crime rather than the maximum term of imprisonment; the factual issues that trigger the higher mandatory minimum sentence for second-degree murder are not elements of the offense. Edwards v. State, 158 P.3d 847 (Alaska Ct. App. 2007).

Applied in

Nicholson v. State, 656 P.2d 1209 (Alaska Ct. App. 1982); Reynolds v. State, 664 P.2d 621 (Alaska Ct. App. 1983); Juneby v. State, 665 P.2d 30 (Alaska Ct. App. 1983); Nathaniel v. State, 668 P.2d 851 (Alaska Ct. App. 1983); Wilson v. State, 670 P.2d 1149 (Alaska Ct. App. 1983).

Quoted in

Woods v. State, 667 P.2d 184 (Alaska 1983); Hancock v. State, 706 P.2d 1164 (Alaska Ct. App. 1985); Velez v. State, 762 P.2d 1297 (Alaska Ct. App. 1988); Ritter v. State, 16 P.3d 191 (Alaska Ct. App. 2001); Dorsey v. State, 480 P.3d 1211 (Alaska Ct. App. 2021); Galindo v. State, 481 P.3d 686 (Alaska Ct. App. 2021).

Cited in

Hartley v. State, 653 P.2d 1052 (Alaska Ct. App. 1982); Jackson v. State, 890 P.2d 587 (Alaska Ct. App. 1995); McGill v. State, 18 P.3d 77 (Alaska Ct. App. 2001); Dickie v. State, 282 P.3d 382 (Alaska Ct. App. 2012); State v. Mayfield, 442 P.3d 794 (Alaska Ct. App. 2019); Jill Y. v. Casey Y., 463 P.3d 833 (Alaska 2020).

Notes to Decisions

Analysis

• I. General Consideration
• II. Former Law

Notes to Decisions

For cases construing former law, see notes to AS 11.41.500 .

Legislative intent. —

From the face of the statute it is clear that the legislature, in passing this robbery statute, intended to emphasize the fact that robbery is a crime against the person and deemphasize the theft aspects of the offense. Nell v. State, 642 P.2d 1361 (Alaska Ct. App. 1982).

Intent to deprive victim of property. —

The plain language of this section does not indicate that an intent to permanently deprive the victim of the property is an essential element of the offense. Nell v. State, 642 P.2d 1361 (Alaska Ct. App. 1982).

Sufficient evidence of intent to steal supported defendant's robbery conviction because jurors could reasonably conclude defendant searched for a tangible object defendant would have taken if defendant had found the object, despite defendant's irrational behavior, as the grabbing and rummaging defendant engaged in was sufficient evidence of force. Syvinski v. State, — P.3d — (Alaska Ct. App. Mar. 7, 2018) (memorandum decision).

Immediate presence or control. —

Evidence was sufficient to convict defendant of second-degree robbery because the computer was within the victim’s control as it was only 10-12 feet from the victim’s bed. Moto v. State, — P.3d — (Alaska Ct. App. Oct. 20, 2010) (memorandum decision).

Use of force against any person. —

The crime of robbery is committed not only when a defendant uses force upon the person who possesses the property, but whenever a defendant uses force upon any person with the intent to prevent or overcome anyone’s resistance to the taking, or to compel any person to engage in conduct that might facilitate the taking. Thus, if defendant used force or threatened to use force against wife with the intent of preventing or overcoming resistance to the taking of property from husband, he committed robbery; if defendant used a knife against wife for these purposes, then he used a dangerous instrument during the commission of the offense under AS 12.55.125(c)(2) . McGrew v. State, 872 P.2d 625 (Alaska Ct. App. 1994).

Where a security officer, after monitoring defendant’s actions on a store security camera, saw defendant conceal merchandise, intercepted defendant in the parking garage where defendant used force with an intent to prevent or overcome resistance to his retention of the merchandise, defendant’s conduct supported a charge and conviction for second degree robbery under this section. Ward v. State, 120 P.3d 204 (Alaska Ct. App. 2005).

Duress treated as affirmative defense. —

In a trial for robbery and kidnapping, placing the burden to prove duress on defendant was constitutional, since the statutes as to robbery and kidnapping prohibit particular action undertaken with a particular objective, and because Alaska does not consider duress to be the negation of specific intent, duress may, consistent with due process, be treated as an affirmative defense. Walker v. Endell, 828 F.2d 1378 (9th Cir. Alaska), amended, 850 F.2d 470 (9th Cir. Alaska 1987).

Lesser offense not included in robbery. —

The lesser offense of third-degree theft was not a lesser included offense within the charge of robbery made pursuant to subsection (a) of this section, where defendant could have been charged with both the robbery of a pizza delivery man, and the theft of money in possession of the delivery man: The robbery consisted of the assault upon the delivery man for the purpose of taking money from his immediate presence and control, but the money he was carrying belonged to the pizza parlor, and the two offenses could have supported separate convictions. Middleton v. State, 164 P.3d 659 (Alaska Ct. App. 2007).

Double jeopardy. —

Defendant’s robbery conviction and his assault conviction were not based on the same conduct; the jury convicted defendant of assault in the third degree for assaulting the victim during a later incident when defendant kicked in a door and threatened the victims with a firearm. Kosbruk v. State, — P.3d — (Alaska Ct. App. Apr. 6, 2011) (memorandum decision).

Merger. —

In defendant’s trial for first-degree robbery and third degree assault, defendants should not have received separate convictions and sentences because the assault conviction merged with the robbery conviction. Moore v. State, 218 P.3d 303 (Alaska Ct. App. 2009).

Identification of defendant not tainted. —

Defendant’s convictions for second-degree robbery and first-degree burglary were upheld because defendant failed to show that the victim’s identification of him was the result of a suggestive procedure. The record showed that the victim recognized defendant — both his physical features and his voice — based on her previous contacts with him; when the victim spoke to her boyfriend, she identified the intruder as the son of an individual who had stayed with the victim and her boyfriend, but she could not recall the son’s name until her boyfriend prompted her with a name; and, while the victim’s boyfriend did suggest defendant’s first name to her, that was not the same as suggesting his identity to her. Zaukar v. State, — P.3d — (Alaska Ct. App. Oct. 14, 2015) (memorandum decision).

Evidence held sufficient. —

Evidence was sufficient to convict defendant of robbery in the second degree and theft in the fourth degree where he was clearly identified as being at the scene when the victim was hit; the victim heard someone say to get his money, and the police found items from the victim’s backpack in defendant’s car and in his residence. Woods v. State, — P.3d — (Alaska Ct. App. Aug. 31, 2011) (memorandum decision).

Evidence was sufficient to support a conviction for robbery in the second degree because defendant struck one victim in the course of taking property from the immediate presence and control of another. Defendant aided in the conduct of taking the victim’s pants. Bichiok v. State, — P.3d — (Alaska Ct. App. Mar. 12, 2014) (memorandum decision).

Evidence supported defendant’s convictions for second-degree robbery and third-degree assault because, when defendant’s accomplice stole a charity donation jar from the counter of a coffee shop and got into the back seat of defendant’s waiting vehicle, the shop owner and the owner’s child sustained minor injuries when they pursued the accomplice and fell to the ground after holding onto the vehicle for a short distance as defendant drove away in the vehicle. Gibson v. State, 346 P.3d 977 (Alaska Ct. App. 2015).

In a case in which a jury found defendant guilty of, inter alia, two counts of second-degree robbery for hitting the victim and taking two cell phones from him, there was sufficient evidence to support the jury's verdict on the second-degree robbery count. The evidence showed that defendant inflicted bodily injury to the victim immediately following the taking, as the victim tried in vain to retrieve his phone. Ashepak v. State, — P.3d — (Alaska Ct. App. June 23, 2021) (memorandum decision).

Failure to instruct on whether cocaine constitutes ‘‘property.’’ —

Declining to instruct a jury if cocaine were “property” in a robbery and theft prosecution was not plain error because jurors could not reach a decision prejudicing defendant, as (1) any conclusion that cocaine was property was correct, and (2) a conclusion that cocaine was not property would benefit defendant by resulting in an acquittal. Smith v. State, — P.2d — (Alaska Ct. App. Oct. 9, 1996) (memorandum decision).

Instruction on accomplice liability. —

In a prosecution for second-degree robbery, even though the state’s primary theory was that the defendant struck the victim, while others took the property, it was not error for the trial court to instruct on accomplice liability since, to evaluate the defendant’s guilt, the jury necessarily had to receive instruction of the rules governing the defendant’s liability for the acts of the others in taking the property. Baker v. State, 905 P.2d 479 (Alaska Ct. App. 1995).

Failure to instruct held harmless error. —

Where defendant was charged with robbery under subsection (a) of this section, any error in failing to instruct the jury on third-degree theft, so that there would be a verdict available to them in case they believed defendant’s assertion that there had been no robbery nor kidnapping, but rather an elaborately-concocted plan by defendant and apparent victim to steal money from the apparent victim’s employer was harmless where jury rejected defendant’s version of the facts by finding him guilty of kidnapping. Middleton v. State, 164 P.3d 659 (Alaska Ct. App. 2007).

Sentence affirmed. —

See Solomon v. State, 730 P.2d 809 (Alaska Ct. App. 1987).

Upon conviction of second-degree robbery, where the defendant was a third-felony offender, eligible for a presumptive term of six years imprisonment, and two aggravating factors were found, i.e., the victim sustained physical injury and the defendant was on felony probation when he committed the crime, the court did not err in sentencing the defendant to serve an additional three years beyond a composite term of six years and 10 months to which he had been sentenced in two unrelated cases. Baker v. State, 905 P.2d 479 (Alaska Ct. App. 1995).

Where defendant pled guilty to second degree robbery, a sentence of eight years’ imprisonment with four years suspended fell within the permissible range of reasonable sentences for the offense. Montoya v. State, — P.3d — (Alaska Ct. App. Feb. 13, 2013) (memorandum decision).

Defendant’s four-year sentence for second-degree robbery was not excessive, even though his codefendant was sentenced to two-and-a-half years, because the trial court found two aggravating factors that applied based on defendant's criminal history and defendant’s more severe sentence was justified by his more blameworthy role in the robbery. The evidence showed that defendant knocked the victim to the ground and then stomped and kicked him, breaking his ribs and his codefendant simply stood by and watched the assault and then he helped carry away the victim’s groceries and beer. Sheakley v. State, — P.3d — (Alaska Ct. App. Feb. 5, 2020) (memorandum decision).

Consecutive sentences not violative of double jeopardy. —

The court’s imposition of consecutive sentences for two kidnappings and one robbery arising out of the same transaction does not violate double jeopardy. Walker v. Endell, 828 F.2d 1378 (9th Cir. Alaska), amended, 850 F.2d 470 (9th Cir. Alaska 1987).

Determination of whether sentence excessive. —

When a state sentence is imposed consecutively to a federal term of imprisonment, the combined length of incarceration must be considered in determining whether the sentence imposed by the state court is excessive. Williams v. State, 759 P.2d 575 (Alaska Ct. App. 1988).

Conviction and sentence affirmed. —

See Roberts v. State, 680 P.2d 503 (Alaska Ct. App. 1984).

Conviction reversed where assault in the fourth degree was a lesser offense necessarily included in the offense charged, robbery in the second degree; since there was at least some evidence presented at trial to justify a finding that the defendant was guilty of assault but not of robbery, a lesser included offense instruction on assault was required. Marker v. State, 692 P.2d 977 (Alaska Ct. App. 1984).

Applied in

Abdulbaqui v. State, 728 P.2d 1211 (Alaska Ct. App. 1986).

Quoted in

Frankson v. State, 645 P.2d 225 (Alaska Ct. App. 1982); Minano v. State, 690 P.2d 28 (Alaska Ct. App. 1984); Napayonak v. State, 793 P.2d 1059 (Alaska Ct. App. 1990); Martusheff v. State, 474 P.3d 12 (Alaska Ct. App. 2020).

Stated in

Walker v. Endell, 850 F.2d 470 (9th Cir. Alaska 1987); State v. Delagarza, 8 P.3d 362 (Alaska Ct. App. 2000).

Cited in

Hugo v. City of Fairbanks, 658 P.2d 155 (Alaska Ct. App. 1983); Nighswonger v. State, 662 P.2d 445 (Alaska Ct. App. 1983); Nighswonger v. State, 680 P.2d 105 (Alaska Ct. App. 1984); Newell v. State, 771 P.2d 873 (Alaska Ct. App. 1989); Singleton v. State, 921 P.2d 636 (Alaska Ct. App. 1996); Lamont v. State, 934 P.2d 774 (Alaska Ct. App. 1997); Andrews v. State, 967 P.2d 1016 (Alaska Ct. App. 1998); Paige v. State, 115 P.3d 1244 (Alaska Ct. App. 2005); Snelling v. State, 123 P.3d 1096 (Alaska Ct. App. 2005); Surrells v. State, 151 P.3d 483 (Alaska Ct. App. 2006); Smith v. State, 426 P.3d 1162 (Alaska Ct. App. 2018); Graham v. State, — P.3d — (Alaska Ct. App. Sept. 29, 2021).

Collateral references. —

“Intimidation” as element of bank robbery under 18 U.S.C.A. § 2113(a). 163 ALR Fed. 225.

Notes to Decisions

Offense against person. —

The legislature adhered to the majority view that extortion is a crime against the person, not against property. Woodward v. State, 855 P.2d 423 (Alaska Ct. App. 1993).

Claim-of-right does not include physical threats. —

Claim-of-right provision set out in subsection (c) of this statute does not extend to threats of physical injury charged under subparagraph (a)(1). Woodward v. State, 855 P.2d 423 (Alaska Ct. App. 1993).

Applied in

Williams v. State, 151 P.3d 460 (Alaska Ct. App. 2006).

Quoted in

Powell v. Powell, 194 P.3d 364 (Alaska 2008).

Cited in

Baker v. State, 22 P.3d 493 (Alaska Ct. App. 2001).

Collateral references. —

31A Am. Jur. 2d, Extortion, Blackmail, and Threats, §§ 7-41.

35 C.J.S., Extortion, §§ 1-17

86 C.J.S., Threats, §§ 3-39.

What constitutes “property” obtained within extortion statute, 67 ALR3d 1021.

Truth as defense to state charge of criminal intimidation, extortion, blackmail, threats, and the like, based upon threats to disclose information about victim, 39 ALR4th 1011.

Injury to reputation or mental well-being as within penal extortion statutes requiring threat of “injury to the person.” 87 ALR5th 715.

Notes to Decisions

Evidence supported separate charge of kidnapping. —

Where the state presented evidence that defendant restrained the victim for thirty to forty-five minutes, a restraint that far exceeded whatever minimal restraint might conceivably be inherent in the crime of coercion, the superior court correctly denied defendant’s motion for a judgment of acquittal on the kidnapping charge. Hurd v. State, 22 P.3d 12 (Alaska Ct. App. 2001).

Silence by means of threat.—

Prosecutor suggested to the jury that it could convict defendant of coercion if it found that the victim decided not to leave the cabin or answer the phone based on what defendant had done, but this was not a correct statement of the law; to convict defendant of coercion, the jury had to find that the victim refrained from reporting the assault specifically because of defendant’s threat to kill her and her family if she did; demanding that a person be silent and then stuffing a shirt in the person's mouth, as here, is not obtaining silence by means of a threat, but is instead obtaining silence by means of force, which is a criminal offense, but not the offense of coercion. Schilber v. State, — P.3d — (Alaska Ct. App. Apr. 27, 2016) (memorandum decision).

Attempted coercion is not lesser included offense of terroristic threatening. Konrad v. State, 763 P.2d 1369 (Alaska Ct. App. 1988).

Attempt. —

Domestic violence protective order was properly granted against a man where sufficient evidence showed that he attempted to commit the crime of coercion to get his former girlfriend to return to him because he had threatened to provide evidence to the lawyers of the girlfriend’s ex-husband regarding a custody dispute, to report her parents’ alleged marijuana operation to the police, and to report her to the Alaska Office of Children’s Services (OCS) for sexually abusing her children. The man did not establish that he reasonably believed that girlfriend’s parents were growing marijuana or that the man acted inappropriately with her children, and his threats to talk to the lawyer of her ex-husband and OCS occurred only after she told him that she did not want to be in a relationship with him. McGraw v. Cox, 285 P.3d 276 (Alaska 2012).

To prove that defendant was guilty of coercion, it was not enough for the State to show that the victim was afraid of defendant because he had assaulted her that night or because he had a history of assaulting her; the State had to show that the victim abstained from reporting the assault because of defendant’s specific threat to kill her and her family if she did. Because the State offered no evidence from which a juror could have made that finding, the superior court erred in denying defendant’s motion for judgment of acquittal on the coercion charge. Schilber v. State, — P.3d — (Alaska Ct. App. Apr. 27, 2016) (memorandum decision).

Proof of specific threat. —

Prosecutor suggested to the jury that it could convict defendant of coercion if it found that the victim decided not to leave the cabin or answer the phone based on what defendant had done, but this was not a correct statement of the law; to convict defendant of coercion, the jury had to find that the victim refrained from reporting the assault specifically because of defendant’s threat to kill her and her family if she did. Schilber v. State, — P.3d — (Alaska Ct. App. Apr. 27, 2016) (memorandum decision).

Sufficiency of the evidence. —

The evidence was sufficient to convince fair-minded jurors that reason-able people would take defendant’s threats of violence as true threats and not merely as forceful expressions of anti-government sentiment or political hyperbole, where at least one member of a community group feared for her physical safety and quit the group after defendant interrupted a public meeting of the group and threatened to kill the group’s members. Tolotta v. State, — P.3d — (Alaska Ct. App. July 27, 2016) (memorandum decision).

Defendant was properly convicted of coercion because he made his former romantic partner fearful that she, her current boyfriend, or one of her family members, would be hurt if she did not meet defendant at a local convenience store, and while the jury instruction at issue could have been more precise with respect to the culpable mental states, it did not prevent defendant's attorney from raising or arguing any defenses that he wished to, nor did it prevent the jurors from considering those “defenses”; the concept of knowing or deliberate action was inherent in the word “demand,” defendant openly admitted that his various statements were a “scare tactic,” and an element of an offense could be established if a person acted intentionally. Wilson v. State, — P.3d — (Alaska Ct. App. Sept. 19, 2018) (memorandum decision).

Sufficient evidence supported conviction for sexual assault of a child despite a lack of the victim's specific testimony of penetration because the victim's testimony that defendant followed the same routine as with other assaults involving penetration was sufficient. Gilliam v. State, — P.3d — (Alaska Ct. App. June 24, 2020) (memorandum decision).

State failed to prove element of demand. —

The court’s adjudication that defendant violated his probation by committing coercion was reversed where the letters written by defendant did not contain any explicit demand for specific action or restraint from action on the part of anyone and the state did not prove the element of demand. Powell v. State, 12 P.3d 1187 (Alaska Ct. App. 2000).

Elements not proven.—

To prove that defendant was guilty of coercion, it was not enough for the State to show that the victim was afraid of defendant because he had assaulted her that night or because he had a history of assaulting her; the State had to show that the victim abstained from reporting the assault because of defendant’s specific threat to kill her and her family if she did, and because the State offered no evidence from which a juror could have made that finding, the superior court erred in denying defendant’s motion for judgment of acquittal on the coercion charge. Schilber v. State, — P.3d — (Alaska Ct. App. Apr. 27, 2016) (memorandum decision).

Supervised visitation. —

Trial court's findings on the status of the father's girlfriend as a domestic living partner when ordering the father's supervised visitation due to domestic violence against the girlfriend, consisting of criminal trespass and coercion, were insufficient because (1) the parties had to reside together to be domestic living partners, and (2) the court's findings did not determine when this status began or ended or explain how the status applied when the father was not permitted in the girlfriend's residence. Timothy W. v. Julia M., 403 P.3d 1095 (Alaska 2017).

Cited in

Mustafoski v. State, 867 P.2d 824 (Alaska Ct. App. 1994); Hurd v. State, 107 P.3d 314 (Alaska Ct. App. 2005).

Collateral references. —

31A Am. Jur. 2d, Extortion, Blackmail, and Threats, §§ 7-45.

52 Am. Jur. 2d, Malicious Mischief, § 1 et seq.

86 C.J.S., Threats, §§ 3-39.

Coercion, compulsion, or duress as defense to charge of robbery, larceny, or related crime, 1 ALR4th 481.

State prosecution of union officer or member for specific threats to employer’s property or person, in connection with labor dispute, 43 ALR4th 1141.

Notes to Decisions

Analysis

• I. General Consideration
• II. Larceny

Notes to Decisions

Annotator’s notes. —

Most of the cases cited in the notes below were decided under former AS 11.20.140 .

Aiding and abetting conviction precludes receiving stolen property conviction. —

Defendant who was convicted strictly on a theory of aiding or abetting a theft offense could not also be convicted of receiving or concealing the same stolen property. Sundberg v. State, 636 P.2d 619 (Alaska Ct. App. 1981).

Sufficiency of indictment. —

An indictment under the former larceny section was held sufficient if as a practical matter it stated the elements of the offense clearly enough to enable the defense to prepare for trial and to plead a judgment in bar of a future prosecution for the same offense. Prejudice to the defendant was a controlling consideration. Stapleton v. United States, 260 F.2d 415, 17 Alaska 713 (9th Cir. Alaska 1958).

An indictment charging violation of the former section was not required to set out all those elements of the offense which must be found by the jury before they may find the accused guilty. It was sufficient that the necessary facts appear in any form, or by fair construction could be found within the terms of the indictment. Stapleton v. United States, 260 F.2d 415, 17 Alaska 713 (9th Cir. Alaska 1958).

Where indictment alleged a willful taking with intent permanently to deprive the owner of the property, lack of consent was implicit in the language. Stapleton v. United States, 260 F.2d 415, 17 Alaska 713 (9th Cir. Alaska 1958).

Indictment charging defendant with theft adequately informed him of offense with which he was charged, although it did not allege a specific theory of theft. Williams v. State, 648 P.2d 603 (Alaska Ct. App. 1982).

Burden of proof. —

The burden was not on a defendant under the former larceny section to prove his innocence since the burden rested upon the prosecution to establish every element of the crime of larceny to a moral certainty and beyond reasonable doubt. Karn v. United States, 158 F.2d 568, 11 Alaska 225 (9th Cir. Alaska 1946).

Under the former larceny section, it was essential that the prosecution prove beyond a reasonable doubt, as an essential element of its case, that defendant took the property with the intent permanently to deprive the owner of its possession, and, furthermore, once sufficient evidence had been adduced either by defendant(s) concerning the owner’s purported abandonment of the property, it then became incumbent upon the prosecution as part of its overall burden of proof to demonstrate beyond a reasonable doubt that the property was not abandoned at the time the alleged larceny was perpetrated. If the property was in fact abandoned, then it was neither owned by nor in the possession of another person or entity and thus could not be the subject of a larceny. Howard v. State, 583 P.2d 827 (Alaska 1978).

Possession of stolen property merely a circumstance tending to show guilt. —

Where the accused was unable to explain his possession of recently stolen property, such possession was merely a circumstance tending to show guilt, and to instruct a jury that such evidence was prima facie proof of guilt, and, unless satisfactorily explained, may be of controlling weight, was clearly erroneous under the law of Alaska, which prohibits a judge from instructing a jury with reference to the facts. Fosse v. United States, 44 F.2d 915, 5 Alaska Fed. 580 (9th Cir. Alaska 1930).

Identity of property had to be shown. —

It was true that actual possession of stolen property could be shown under the former larceny section, but it was equally true that the prosecution must also prove, beyond a reasonable doubt, that the property found in possession of the accused was, in truth and in fact, the identical property which was stolen. A bare assertion that property in the hands of accused was similar property or property that looked like it, was not sufficient to establish such property as the stolen property. Karn v. United States, 158 F.2d 568, 11 Alaska 225 (9th Cir. Alaska 1946).

Requirements as to circumstantial evidence. —

Where prosecution relied entirely upon circumstantial evidence for a conviction under the former larceny section, under such circumstances the evidence must not only be consistent with guilt, but inconsistent with every reasonable hypothesis of innocence. The evidence should be required to point so surely and unerringly to the guilt of the accused as to exclude every reasonable hypothesis but that of guilt. Karn v. United States, 158 F.2d 568, 11 Alaska 225 (9th Cir. Alaska 1946).

In a prosecution under the former larceny section the evidence, while circumstantial, was clearly adequate and measured up to the standards which the court of appeals has laid down in such cases. Yoho v. United States, 202 F.2d 241, 14 Alaska 174 (9th Cir. Alaska 1953).

Prosecution could waive felony and prosecute for misdemeanor. —

If on trial a misdemeanor (e.g., larceny) turned out to be a felony (e.g., robbery), then the prosecution could in such cases waive the felony, and prosecute only for the constituent misdemeanor, supposing the misdemeanor be proved. Perkins v. United States, 237 F.2d 857, 16 Alaska 471 (9th Cir. Alaska 1956).

Harmless error. —

Although Alaska’s aggregation statute was enacted to require proof of a single course of conduct and the state should have instructed the grand jury on this requirement, it was harmless error where the grand jurors understood that they were dealing with a related series of thefts and that the state’s theory of the case was based on the aggregated value of stolen property. Buckwalter v. State, 23 P.3d 81 (Alaska Ct. App. 2001).

Notes to Decisions

Evidence sufficient. —

The evidence provided the grand jury with a rational basis for concluding that defendant’s theft totaled at least the jurisdictional minimum for first-degree theft where pawn shop records showed that defendant stole goods from businesses in three cities during a ten-month period and pawned the goods for cash. Buckwalter v. State, 23 P.3d 81 (Alaska Ct. App. 2001).

Relation to other law. —

Creditors were denied summary judgment on their 11 U.S.C.S. § 523(a)(4) claim, as they failed to develop their argument that theft under AS 11.46.120 equated to fraud or defalcation while acting in a fiduciary capacity. However, creditors were granted summary judgment on their 11 U.S.C.S. § 523(a)(6) claim, as Alaska's definition of theft in the first degree satisfied the elements for willful and malicious injury. White v. Skupa (In re Skupa), — B.R. — (Bankr. D. Alaska Apr. 14, 2021).

Convictions reversed for improper forum. —

Defendant’s first degree theft convictions were reversed because the proper forum to attack the validity of defendant’s medical license was the State Medical Board. Gottlieb v. State, 175 P.3d 664 (Alaska Ct. App. 2008).

Sentence upheld. —

Trial court did not err in sentencing defendant to 10 years’ imprisonment with five years suspended and ordering her to pay $300,000 restitution upon her conviction of embezzlement by an employee for money taken prior to January 1, 1980, and of theft in the first degree for money taken after January 1, 1980, the effective date for the revised criminal code. Karr v. State, 660 P.2d 450 (Alaska Ct. App. 1983), aff'd in part and rev'd in part, 686 P.2d 1192 (Alaska 1984).

While no violence was involved, trial court properly found that appellant’s embezzlement of $140,000 from her employer over a one-year period was among the most serious conduct prescribed by the statute and served to distinguish it from prior cases in which substantial sentences for embezzlement were disapproved, and eight-year sentence with four years suspended was not excessive. Brezenoff v. State, 658 P.2d 1359 (Alaska Ct. App. 1983) superseded by statute as stated in Dayton v. State, 120 P.3d 1073 (Alaska Ct. App. 2005).

The evidence was sufficient to uphold the sentence. Short v. State, 676 P.2d 612 (Alaska Ct. App. 1984).

Sentence of 10 years’ imprisonment with five years suspended imposed upon a defendant employee convicted of embezzlement for money taken before and after January 1, 1980, the effective date for the revised criminal code, was upheld because of the exceptional magnitude and manner of the theft where a trusted employee embezzled over $356,000 in more than 50 thefts over a two-year period; the sentence facilitated reaffirmation of societal norms and deterrence. Karr v. State, 686 P.2d 1192 (Alaska 1984).

Sentence not upheld. —

Although the defendant had a history of increasingly serious criminal misconduct and had persisted in offending despite a prior misdemeanor conviction in Florida and his current felony conviction, given the absence of significant past deterrent or rehabilitative efforts, and in light of a finding that the defendant may have been amenable to treatment for the psychological problems underlying his criminal behavior, the record did not support the sentencing court’s finding that the defendant could neither be rehabilitated nor deterred. The court’s imposition of a maximum sentence of 10 years based on this finding was, therefore, clearly mistaken. Keyser v. State, 856 P.2d 1170 (Alaska Ct. App. 1993).

Sentence held too lenient. —

Where an office manager stole approximately $115,000 between January, 1979 and April, 1982, a sentence of five years, all suspended, for a period of ten years was held too lenient despite the fact that the defendant had no prior criminal record, was apparently very repentant, had made substantial efforts toward restitution, had lost his insurance licenses and was faced with a substantial fine. State v. Karnos, 696 P.2d 685 (Alaska Ct. App. 1985).

Where a first felony offender embezzled almost four times the jurisdictional amount for first degree theft, the imposition of a relatively modest term of incarceration would not have conflicted with or impeded the court’s goal of assuring the defendant’s rehabilitation, and might have contributed to fulfilling the sentencing goals of general deterrence and community condemnation, and a sentence including a fine and community service, with a term of imprisonment suspended, was disapproved. State v. Buza, 886 P.2d 1318 (Alaska Ct. App. 1994).

Cited in

Putnam v. State, 629 P.2d 35 (Alaska 1980); Lindsay v. State, 698 P.2d 659 (Alaska Ct. App. 1985); Christianson v. State, 734 P.2d 1027 (Alaska Ct. App. 1987); Kramer v. State, 735 P.2d 754 (Alaska Ct. App. 1987); Moore v. State, 740 P.2d 472 (Alaska Ct. App. 1987); Luepke v. State, 765 P.2d 988 (Alaska Ct. App. 1988); Willett v. State, 826 P.2d 1142 (Alaska Ct. App. 1992); LaParle v. State, 957 P.2d 330 (Alaska Ct. App. 1998); Allridge v. State, 969 P.2d 644 (Alaska Ct. App. 1998); Casciola v. F. S. Air Serv., 120 P.3d 1059 (Alaska 2005); State v. Garrison, 128 P.3d 741 (Alaska Ct. App. 2006); Byford v. State, 352 P.3d 898 (Alaska Ct. App. 2015).

Notes to Decisions

Failure to preserve evidence. —

Convictions for second-degree theft were reduced to convictions for third-degree theft where the state failed to preserve the scrap copper which was the object of the theft. Hatfield v. State, 663 P.2d 987 (Alaska Ct. App. 1983).

Superior court properly convicted defendants, a husband and wife, of third-degree assault and second-degree theft, respectively, because while many of their actions were recorded by a store's security cameras, the files did not include the footage from the parking lot where the husband drove into a customer or the wife's actions in taking merchandise, the original footage was no longer available, the evidence fully supported the judge's finding that a state trooper never had possession of the footage, defendants knew that the footage existed, and the fact that the trooper asked the store's loss-prevention employee to make him a copy of the store's footage did not turn the employee into the trooper's agent. Stamper v. State, 402 P.3d 427 (Alaska Ct. App. 2017).

Construction. —

Subsection (a)(6) is interpreted to mean that a theft which would normally be of the third degree will be enhanced to a theft of the second degree if, within the preceding five years, the defendant was convicted and sentenced for one theft, then committed another theft and was convicted and sentenced for it, and then committed the current theft. Wooley v. State, 221 P.3d 12 (Alaska Ct. App. 2009).

No change of venue.—

Defendant did not renew the motion for a change of venue during jury selection, and in reviewing only for plain error, none was found; the primary issue in connection with defendant's trial for forgery, theft, and felony criminal simulation was whether defendant had an intent to defraud when he presented the counterfeit checks, and the fact that many of the jurors knew defendant and the witnesses was not particularly prejudicial, as familiarity was expected in a small town, plus nothing indicated that the panel would be prejudiced against defendant. Kelly v. State, — P.3d — (Alaska Ct. App. Mar. 5, 2008) (memorandum decision).

Rulings on evidence.—

Trial court did not err in refusing to admit emails sent to and from defendant after the date the bank confronted him with the fact that the checks he presented were counterfeit; the essential question was whether defendant, at the time he presented the counterfeit checks, had an intent to defraud, and his state of mind after he was confronted with the fact that the checks were counterfeit was not relevant, plus he was able to establish his defense through earlier emails that were admitted. Kelly v. State, — P.3d — (Alaska Ct. App. Mar. 5, 2008) (memorandum decision).

For effect of failure to explain statutory definition of recklessness on plea of nolo contendere to theft by receiving in second degree, see Bratcher v. State, 681 P.2d 358 (Alaska Ct. App. 1984).

Complicity. —

Sufficient evidence supported defendant’s second-degree theft convictions because under the complicity statute the State did not have to prove that defendant committed all the thefts personally so long as he was complicit with the other two thieves; thus defendant was criminally responsible for all the thefts. McCourt v. State, — P.3d — (Alaska Ct. App. Mar. 5, 2014) (memorandum decision).

“Access device.” —

Defendant who intentionally stole a purse intended to deprive the owner of all the contents of the purse although she represented that her intent was only to obtain whatever cash the purse contained. It is to be expected that a purse will contain “access devices” under (a)(7), such as debit cards or social security cards, and theft of a container encompasses all of the contents. Lawrence v. State, 269 P.3d 672 (Alaska Ct. App. 2012).

Defendant’s conviction for second-degree theft of a driver’s license was reversed because a driver’s license does not qualify as an “access device”. Although a driver’s license, like an access device, might be used “to obtain property or services,” if the legislature had intended “theft of an access device” to mean “theft of an access device or an identification document,” it would have said so. The legislative intent was, at best, ambiguous, and the rule of lenity requires the definition to be construed against the imposition of criminal liability. Kankanton v. State, 342 P.3d 840 (Alaska Ct. App. 2015), aff'd, 368 P.3d 613 (Alaska 2016).

Value of property stolen. —

Defendant’s contention that the term “market value” had no ascertainable legal meaning, and was thus subject to the rule of lenity, was rejected where the term had a recognized meaning at common law, i.e., the price at which the property would have changed hands in an arm’s length transaction between a willing seller and a willing buyer who were aware of the pertinent facts. Morris v. State, 334 P.3d 1244 (Alaska Ct. App. 2014).

Defendant’s conviction for second-degree theft under former AS 11.46.130(a)(1) was affirmed where the jury heard evidence that the stolen parka had a retail price of $659.95 and that other reputable retailers were asking even higher prices for the same parka, and thus, a fair-minded juror could have reasonably concluded that the market value of the stolen parka was more than $500. Morris v. State, 334 P.3d 1244 (Alaska Ct. App. 2014).

Defendant had an itemized receipt that recited the prices attributed to the necklaces by the store, as well as information from which defendant could have researched the items' value, and thus the court rejected defendant's claim that he could not meaningfully contest the State's evidence regarding the value of the necklaces. Smith v. State, — P.3d — (Alaska Ct. App. Feb. 20, 2019) (memorandum decision).

State presented sufficient proof that the value of the property stolen equaled or exceeded $500 as the jury heard direct testimony from defendant's grandfather that the total value of the property taken exceeded $500 in 2009 when they were stolen; defendant told his grandfather that he could buy the property back from him by sending $2000 to Texas; and the jury could reasonably have concluded that defendant, in making his statements, provided sufficient evidence that the property's market value was $500 or more. Thomas v. State, — P.3d — (Alaska Ct. App. Apr. 8, 2020) (memorandum decision).

Market value. —

Had the jury been properly instructed on the definition of market value, it might have concluded that the market value of the stolen items was lower than the sticker price; the instructional error was not harmless and defendant was entitled to a new trial. Henson v. State, — P.3d — (Alaska Ct. App. Jan. 7, 2015) (memorandum decision).

Actus reus. —

Definition of “obtain” includes a requirement that the defendant’s exertion of control over the property was unauthorized; therefore, defendant was properly convicted of second-degree theft because his conduct of carrying items toward the exit of a retail store after going through the check-out line was inconsistent with the scope of physical possession granted to customers by the store owner. This conduct constituted the actus reus of theft. Simon v. State, 349 P.3d 191 (Alaska Ct. App. 2015).

Lesser included offense of robbery. —

For discussion of theft as a lesser included offense of robbery, see Minano v. State, 690 P.2d 28 (Alaska Ct. App. 1984), rev'd in part, 710 P.2d 1013 (Alaska 1985).

Amendment to indictment. —

Amendment to the theft indictment brought the indictment into conformity with the evidence presented, correcting what was a clerical error, defendant did not argue that he lacked notice or that he was otherwise prejudiced, and while the prosecutor did not instruct the grand jury on the specific elements of third-degree theft based on value, defendant did not contend that the third-degree theft judgment was not a qualifying conviction; the amendment was upheld. Smith v. State, — P.3d — (Alaska Ct. App. Feb. 20, 2019) (memorandum decision).

Prior convictions. —

The provision of paragraph (a)(6) defines a separate method of committing the crime of second-degree theft, and a defendant’s prior convictions are an essential element of that crime. Tallent v. State, 951 P.2d 857 (Alaska Ct. App. 1997).

Date of defendant’s sentencing for the prior theft offenses was the date that determined whether the prior offenses fell within the five-year time period specified in paragraph (a)(6); defendant was sentenced for both of his prior thefts within the five years preceding his commission of the current theft; thus, defendant was properly convicted of second-degree theft under subsection (a)(6), and not third-degree theft under AS 11.46.140(a)(1) . Wooley v. State, 157 P.3d 1064 (Alaska Ct. App. 2007).

Calculation of time. —

For purposes of the five-year period specified in subsection (a)(6), a defendant is convicted and sentenced on the day that the court enters judgment against the defendant, as opposed to the day on which a jury finds the defendant guilty, or the day on which the defendant enters a guilty plea to the charge. Wooley v. State, 221 P.3d 12 (Alaska Ct. App. 2009).

State could not have successfully prosecuted defendant for second-degree theft under (a)(6) where defendant committed a second prior theft before defendant was sentenced for a first prior theft. Wooley v. State, 221 P.3d 12 (Alaska Ct. App. 2009).

Consideration of juvenile record in sentencing. —

Where defendant was convicted of theft in the second degree, the court was permitted to consider material in defendant’s presentence report concerning an informal disposition of a juvenile case in which defendant was charged with burglary in the second degree and theft in the third degree. State v. Short, 96 P.3d 526 (Alaska Ct. App. 2004).

Theft of a firearm. —

The legislature had a specific purpose to punish the theft of a firearm as a separate crime distinct from the theft of other kinds of property. The theft of a firearm is therefore not included within the single larceny rule, and a defendant charged with other theft counts can be separately convicted and punished for the theft of a firearm. Martin v. State, 797 P.2d 1209 (Alaska Ct. App. 1990).

Medicaid fraud held theft. —

Where defendant prescribed medications for patients in exchange for sexual favors, a composite 3-year sentence with 1 year suspended for three counts of second-degree theft was not excessive. The theft involved the use of Medicaid funds for prescriptions and office visits. Grandstaff v. State, 171 P.3d 1176 (Alaska Ct. App. 2007).

Unlawful obtaining of unemployment benefits prosecutable as theft. —

Legislature did not intend for AS 23.20.485 to provide the sole remedies available to prosecute the unlawful obtaining of unemployment benefits; the legislature intended for the state to be able to prosecute the unlawful obtaining of unemployment benefits as theft. Ornelas v. State, 129 P.3d 934 (Alaska Ct. App. 2006).

Issuing bad checks found to be theft. —

Conviction under this section was proper because a reasonable jury could find that defendant acted with the intent to deprive the bank of property worth more than $500. The defendant knew that there was not a sufficient amount of money in the account on which the checks were drawn to pay the checks when she deposited them. Defendant also withdrew substantial amounts of cash from her account before the bank realized that the checks were not good. Delay-Wilson v. State, 264 P.3d 375 (Alaska Ct. App. 2011).

Prejudicial witness testimony. —

In a prosecution for second-degree theft, trial court’s decision to admit witnesses’ testimony amounted to an abuse of discretion; although witnesses’ testimony concerning defendant’s use of cocaine was brief, the testimony introduced an extraneous and potentially highly prejudicial dimension to defendant’s case. Toomer v. State, 890 P.2d 598 (Alaska Ct. App. 1995).

Limitation on cross-examination. —

Ruling that defendant’s attorney could not cross-examine a prosecution witness about his pending criminal case unless the witness gave trial testimony that was materially different from his testimony before the grand jury was harmless error. Even if the jury had questioned the witness’s testimony because of his incentive to testify in favor of the State, there was ample other evidence that defendant had the intent to commit second-degree theft. Baker v. State, — P.3d — (Alaska Ct. App. May 20, 2015) (memorandum decision).

Denial of witness immunity. —

A motion requesting that the State confer immunity on a juvenile under the theory that he was a co-conspirator in a fraudulent check scheme, and that he would (if forced to testify) identify defendant’s niece as a ringleader of the scheme, was properly denied. Dismissal of charges was denied because nothing in that proposed testimony clearly would have led to acquittal of the defendant. Wash. v. State, — P.3d — (Alaska Ct. App. May 1, 2013) (memorandum decision).

Erroneous suppression of incriminating statements. —

In defendant’s trial for theft of unemployment benefits, in violation of subsection (a) of this section and AS 11.46.180 , and making false statements to obtain unemployment benefits in violation of AS 23.20.485 , a trial court erroneously suppressed incriminating statements defendant made to an Employment Security Division of the Department of Labor investigator regarding defendant’s unemployment benefits, where defendant failed to assert his right against self-incrimination under AS 23.20.070 and defendant was not in custody for Miranda purposes or coerced when he made the statements: Defendant had forfeited the privilege and was not entitled to suppression of his statements. State v. Rivers, 146 P.3d 999 (Alaska Ct. App. 2006).

Stipulations. —

Trial court adequately inquired as to whether defendant personally waived his right to a jury trial on the prior-convictions element, as the trial court addressed defendant and ensured that he, not his attorney, made the decision to waive his right to a jury trial; defendant never suggested that he wished to present any evidence beyond the stipulation, and the trial judge relied on the stipulation as the basis for finding him guilty of second-degree theft. Smith v. State, — P.3d — (Alaska Ct. App. Feb. 20, 2019) (memorandum decision).

Evidence sufficient. —

Where defendant presented a check payable to himself, drawn on an account where checks had been reported stolen, and where he left the bank, leaving the check, after the teller took the check to obtain advice from the manager, a reasonable jury could conclude that the defendant likely knew the check he presented at a bank was stolen and forged. Davis v. State, — P.3d — (Alaska Ct. App. Oct. 19, 2011) (memorandum decision).

Evidence was sufficient for the jury to convict defendant of second-degree theft where troopers testified that defendant was in possession of a rifle when they found him hiding in the woods. The victim, a property owner, identified the rifle as his and stated that it had been removed from his house. Dreves v. State, — P.3d — (Alaska Ct. App. Dec. 21, 2011) (memorandum decision).

Sufficient evidence supported defendant’s burglary and theft convictions. Inter alia, a neighbor across from the house where the crime occurred observed defendant repeatedly enter and leave the garage, piling stolen articles at the end of the driveway. Although the neighbor’s identification of the defendant occurred under suggestive circumstances, shortly after he had been apprehended and handcuffed, the court below had accepted the identification and there was no basis to disturb that finding on appeal. McCourt v. State, — P.3d — (Alaska Ct. App. Mar. 5, 2014) (memorandum decision).

State presented sufficient evidence to support defendant’s convictions of theft, forgery, and fraudulent use of an access device; the State called the current manager of the store where the checks in question were cashed to testify, the store had a photograph of defendant, and the back of each of the checks written on the victim’s account contained a person’s signature, which was similar to the signatures from two of defendant’s records from the Division of Motor Vehicles, and contrary to defendant’s argument, the court had to view the evidence in the light most favorable to upholding the jury’s verdicts. Smith v. State, — P.3d — (Alaska Ct. App. Sept. 24, 2014) (memorandum decision).

Defendant was properly convicted of second-degree theft because, while the prosecutor's cross-examination was improper, the error was harmless and did not affect the outcome of the proceeding where the prosecutor did not assert that defendant was a congenital liar, did not engage in inflammatory assertions against him, reminded the jurors that it was their job to weigh witness credibility, and the evidence linked the thefts to a particular red truck and a photograph of the truck's license plate linked that truck to defendant. Brown v. State, 400 P.3d 142 (Alaska Ct. App. 2017).

Evidence was sufficient to support a second-degree theft conviction where testimony established that defendant had pawned a bicycle that was stolen from the victim, which supported either the taking the property of another with intent to deprive or recklessly receiving stolen property. Yarra v. State, — P.3d — (Alaska Ct. App. Aug. 16, 2017) (memorandum decision).

Evidence was sufficient for a reasonable juror to find that defendant was the person who committed the charged crimes of burglary, theft, and criminal mischief because police officers noticed the door to a bicycle shed had been forced open, there were two bicycles on the ground nearby, and a van in the vicinity, later identified as belonging to defendant. Coleman v. State, 407 P.3d 502 (Alaska Ct. App. 2017).

Evidence of prior convictions. —

In a prosecution of defendant for theft in the second degree, the trial court erred in allowing the introduction of his prior convictions for forgery and theft, because they showed nothing but defendant’s criminal propensity and were not relevant to the issue of whether he knew the jewelry was stolen. Calapp v. State, 959 P.2d 385 (Alaska Ct. App. 1998).

In a case where defendant was convicted of second- degree theft, the trial court erred in admitting evidence of a prior conviction for third-degree theft because identity was not in issue in the case; it was not offered to prove intent as defendant's attorney argued a defense to the actus reus of the crime of theft (taking goods without paying) rather than to the mens rea element (intent to deprive); there was no overarching scheme; and defendant made no claim of mistake. However, the error was harmless because the State's case against defendant was overwhelming; thus, the erroneous admission of defendant's prior shoplifting conviction did not appreciably affect the jury's verdict. Belcher v. State, 372 P.3d 279 (Alaska Ct. App. 2016).

Argument by prosecutor. —

In a second-degree theft and forgery case, the prosecutor’s argument referencing the criminal history of defendant’s friend, which was not admitted, did not amount to plain error as it was fleeting and not a significant part of the prosecutor’s overall attack on defendant’s credibility. In his closing argument and rebuttal the prosecutor focused primarily on defendant’s own prior convictions for crimes of dishonesty and on the ways that defendant’s testimony and version of events was not credible because defendant had tried to negotiate a higher fee for cashing the check when he realized that the check was for $900, and his behavior at the bank and his willingness to abandon his identification demonstrated consciousness of guilt. McKinnon v. State, — P.3d — (Alaska Ct. App. Nov. 12, 2015) (memorandum decision).

Jury's verdicts held not inconsistent. —

Trial court properly recognized that the jury's verdict was not inconsistent when it convicted defendant of second-degree theft and acquitted him of second-degree forgery, The jury might reasonably have concluded that defendant acted with reckless disregard as to whether a check was stolen, but that the State failed to prove beyond a reasonable doubt that defendant actually knew the check was forged; defendant's failure to object to the purported inconsistency of the verdicts meant that he waived his claim, and his claim of error would fail even were it not foreclosed by his failure to object to the verdicts in the trial court. Steward v. State, — P.3d — (Alaska Ct. App. June 1, 2016) (memorandum decision).

Conviction reversed. —

See Ace v. State, 672 P.2d 159 (Alaska Ct. App. 1983).

Mitigation factor in AS 12.55.155(d)(9) did not apply to defendant’s second-degree theft convictions because a stolen credit card’s quick recovery did not mitigate defendant’s conduct; defendant’s thefts were complete as soon as defendant obtained the property, AS 11.46.100 (1), 11.46.990 (12)(A), and the value of stolen property was not merely marginally higher than the statute’s lower limit. McCourt v. State, — P.3d — (Alaska Ct. App. Mar. 5, 2014) (memorandum decision).

Sentence excessive. —

First felony offender convicted of four counts of theft in the second degree for numerous thefts of crab pots should not have received a sentence greater than five years with two years suspended, even though the trial judge could find that the theft offenses were particularly serious and that the defendant was convicted for failure to appear for trial and had prior misdemeanor convictions. Thomas v. State, 710 P.2d 1017 (Alaska Ct. App. 1985).

Sentence to a composite term in excess of ten years of unsuspended incarceration for convictions of multiple counts of misconduct involving controlled substances in both the second and third degrees and for theft in the second degree was excessive, as defendants were first felony offenders apparently amenable to rehabilitation, and the evidence did not establish a public safety need to isolate them for more than ten years. Castle v. State, 767 P.2d 219 (Alaska Ct. App. 1989).

Composite sentence of six years, with one year suspended, upon conviction on one count of misconduct involving a controlled substance in the third degree and one count of theft in the second degree, was excessive in the case of a youthful first offender convicted of selling relatively small quantities of cocaine. Smith v. State, 767 P.2d 211 (Alaska Ct. App. 1989).

Special condition of probation unjustified. —

Condition of probation prohibiting felon convicted of numerous thefts of crab pots from engaging in any aspect of commercial fishing was far too broad where commercial fishing was his primary means of livelihood. Thomas v. State, 710 P.2d 1017 (Alaska Ct. App. 1985).

Sentence greater than presumptive term reversed. —

Where the defendant, a first felony offender, was convicted of one count of theft in the second degree and three counts of forgery in the second degree, she should not have received a total sentence, including consecutive increments, more severe than the presumptive term established for a third felony offender, where there was nothing in the record to suggest that a composite sentence of imprisonment, including all consecutive increments, greater than this presumptive term was needed to deter the defendant. Young v. State, 762 P.2d 497 (Alaska Ct. App. 1988).

Sentence upheld. —

See Montes v. State, 669 P.2d 961 (Alaska Ct. App. 1983); Ewell v. State, 730 P.2d 164 (Alaska Ct. App. 1986); Pittenger v. State, 757 P.2d 77 (Alaska Ct. App. 1988).

Sentence of four years with two years suspended for embezzling more than $25,000 from employer was not excessive. Crain v. State, 744 P.2d 423 (Alaska Ct. App. 1987).

A composite sentence of five years with two years suspended, imposed upon a first felony offender upon conviction of two counts of burglary in the second degree, one count of theft in the second degree, and one count of theft in the third degree, was not excessive, where defendant’s conviction of two separate burglaries and related thefts, and his admission of two additional burglaries and related thefts, justified a greater sentence than would a conviction of an isolated burglary and theft. Comegys v. State, 747 P.2d 554 (Alaska Ct. App. 1987).

Imposition of two three-year concurrent sentences with one year suspended for forging fraudulent permanent fund applications and fraudulently obtaining fund checks was affirmed where the trial judge found that the crimes were easy to commit, difficult to detect and generated a substantial income; if the defendant had been subject to presumptive sentencing, the defendant’s multiple acts of theft, which extended over a substantial period of time and required numerous separate intents to steal, coupled with generally fraudulent behavior, might have warranted referral of the case to a three-judge sentencing panel for consideration of a more severe sentence; and the defendant’s consistent pattern of deceptive behavior in dealing with former employers and with the state probation officer strongly militated against her potential for rehabilitation. Hads v. State, 727 P.2d 11 (Alaska Ct. App. 1986).

Sentence of five years with three years suspended for custodial interference in the first degree, followed by a five-year suspended imposition of sentence for theft in the second degree, was not excessive, where defendant had seized his children in direct defiance of a court order and it was deemed necessary to impose a substantial suspended sentence in order to deter him from future criminal violations. Sandelin v. State, 766 P.2d 1184 (Alaska Ct. App. 1989).

Where it was proven that defendant committed the charged offenses over a relatively short period of time, had a criminal history that spanned 30 years and included 9 prior felonies, and demonstrated an inability to comply with the conditions of parole, the sentence imposed did not constitute cruel and unusual punishment. Hernandez v. State, — P.3d — (Alaska Ct. App. Aug. 8, 2012), dismissed in part, — P.3d — (Alaska Ct. App. 2019) (memorandum decision).

Conviction and sentence upheld. —

See Champion v. State, 908 P.2d 454 (Alaska Ct. App. 1995).

Appellant’s conviction of second-degree burglary, second-degree theft, and second-degree criminal mischief in violation of AS 11.46.310(a) , 11.46.130 , 11.46.482(d) was affirmed because (1) the trial court’s finding that appellant’s confession was voluntary was supported by the evidence in that appellant was provided heat in his cell, he slept with a blanket, and appellant initiated the offer to confess if he could see his family, (2) the trial court’s refusal to allow impeachment of the State’s witness based on an unspecified crime that was committed over ten years ago was proper because appellant failed to comply with the admissibility prerequisites of Alaska R. Evid. 609, (3) the sentence imposed was not excessive under the provisions of AS 12.55.125(e)(2) because as a third felony offender appellant faced a 3-year presumptive term for each crime, and (4) the trial judge’s failure to expressly find that the sentence imposed was required to protect the public did not require reversal because the facts showed that appellant presented a serious threat to public safety. Waters v. State, 64 P.3d 169 (Alaska Ct. App. 2003).

Defendant was properly convicted of attempted second- and third-degree theft because the facts did not establish a statutory mitigator where he lied to a teller that the issuing bank assured him that the account held sufficient funds to cover the check, he presented no evidence as to the circumstances under which he received the check, whether he was the one who filled it out, why the particular amount was chosen, and whether he had access to the other stolen checks. Soellner v. State, — P.3d — (Alaska Ct. App. Aug. 20, 2014) (memorandum decision).

Incarceration required. —

Given defendants’ exemplary backgrounds, and the fact that they were convicted of class C felonies, the court was not required to impose the equivalent of at least 90 days in jail; however, the court was required to sentence defendants to some period of incarceration in order to emphasize the criminal nature of their acts; a sentence which does not require some period of incarceration would send the message that white-collar criminals who commit major theft offenses are able to avoid incarceration. State v. Sykes, 891 P.2d 232 (Alaska Ct. App. 1995).

Restitution upheld. —

Further inquiry into defendant’s ability to pay was unnecessary where nothing in the record indicated that defendant could not have realistically been expected to pay $8,300 in restitution over the course of his five-year probationary term. Noffsinger v. State, 850 P.2d 647 (Alaska Ct. App. 1993).

Applied in

Nell v. State, 642 P.2d 1361 (Alaska Ct. App. 1982); Williams v. State, 648 P.2d 603 (Alaska Ct. App. 1982); Corbin v. State, 672 P.2d 156 (Alaska Ct. App. 1983); Elerson v. State, 732 P.2d 192 (Alaska Ct. App. 1987); Luepke v. State, 765 P.2d 988 (Alaska Ct. App. 1988); Glidden v. State, 842 P.2d 604 (Alaska Ct. App. 1992); Cowles v. State, 961 P.2d 438 (Alaska Ct. App. 1998); Bradley v. State, 197 P.3d 209 (Alaska Ct. App. 2008).

Quoted in

Frankson v. State, 645 P.2d 225 (Alaska Ct. App. 1982).

Stated in

Leuch v. State, 633 P.2d 1006 (Alaska 1981).

Cited in

Williams v. State, 614 P.2d 1384 (Alaska 1980); P.S. v. State, 655 P.2d 1319 (Alaska Ct. App. 1982); Namen v. State, 665 P.2d 557 (Alaska Ct. App. 1983); Walsh v. State, 677 P.2d 912 (Alaska Ct. App. 1984); Garroutte v. State, 683 P.2d 262 (Alaska Ct. App. 1984); Winfree v. State, 683 P.2d 284 (Alaska Ct. App. 1984); Brown v. State, 684 P.2d 874 (Alaska Ct. App. 1984); Ridgely v. State, 705 P.2d 924 (Alaska Ct. App. 1985); Trudeau v. State, 714 P.2d 362 (Alaska Ct. App. 1986); Jones v. State, 719 P.2d 265 (Alaska Ct. App. 1986); Miller v. State, 739 P.2d 1303 (Alaska Ct. App. 1987); State v. Jackson, 776 P.2d 320 (Alaska Ct. App. 1989); Kinnish v. State, 777 P.2d 1179 (Alaska Ct. App. 1989); Willett v. State, 826 P.2d 1142 (Alaska Ct. App. 1992); Wesolic v. State, 837 P.2d 130 (Alaska Ct. App. 1992); Coleman v. State, 846 P.2d 141 (Alaska Ct. App. 1993); Bland v. State, 846 P.2d 815 (Alaska Ct. App. 1993); McGrew v. State, 872 P.2d 625 (Alaska Ct. App. 1994); Griffin v. State, 9 P.3d 301 (Alaska Ct. App. 2000); State v. Saathoff, 29 P.3d 236 (Alaska 2001); Timothy v. State, 90 P.3d 177 (Alaska Ct. App. 2004); Paige v. State, 115 P.3d 1244 (Alaska Ct. App. 2005); Ward v. State, 120 P.3d 204 (Alaska Ct. App. 2005); McDole v. State, 121 P.3d 166 (Alaska Ct. App. 2005); State v. Kalmakoff, 122 P.3d 224 (Alaska Ct. App. 2005); Vandergriff v. State, 125 P.3d 360 (Alaska Ct. App. 2005); Gottlieb v. State, 175 P.3d 664 (Alaska Ct. App. 2008); Smith v. State, 187 P.3d 511 (Alaska Ct. App. 2008); Newsom v. State, 199 P.3d 1181 (Alaska Ct. App. 2009); McKinley v. State, 215 P.3d 378 (Alaska Ct. App. 2009).

Notes to Decisions

Prosecution for conduct of 20-year-old mentally retarded daughter. —

Where defendant was prosecuted for theft on the theory that he was legally accountable for the conduct of his 20-year-old mentally retarded daughter, the trial court committed reversible error in taking judicial notice of the “fact” that defendant’s daughter was not mentally culpable for the crime of theft and then advising the jury that they must accept this fact as conclusively proven. Smallwood v. State, 781 P.2d 1000 (Alaska Ct. App. 1989).

Failure to preserve evidence. —

Convictions for second-degree theft were reduced to convictions for third-degree theft where the state failed to preserve the scrap copper which was the object of the theft. Hatfield v. State, 663 P.2d 987 (Alaska Ct. App. 1983).

Although troopers gave a rifle and wine found with the defendant back to the property owner after photographing the items, this action did not constitute a failure to preserve evidence for which forensic testing would have produced exculpatory evidence. Dreves v. State, — P.3d — (Alaska Ct. App. Dec. 21, 2011) (memorandum decision).

In a case in which defendant was convicted of third-degree theft for stealing money from a wallet during an Easter service at a rescue mission, the police were under no duty to collect or preserve a video that recorded the theft. Defendant had essentially the same opportunity as the government to subpoena or otherwise obtain the evidence. Carter v. State, 356 P.3d 299 (Alaska Ct. App. 2015).

Theft of cable television services. —

Defendant was properly convicted of third-degree theft of services even though the State did not prove that he watched the cable services he was accused of stealing. Cruz-Reyes v. State, 74 P.3d 219 (Alaska Ct. App. 2003).

Joinder of charges. —

The issue of whether the trial court erred in granting the State’s motion to join two cases against the defendant was waived when defendant did not file a pretrial motion for severance; accordingly, acquittal on one case did not impact the validity of the verdict of guilty in the second case. There was no prejudicial error by the court. Price v. State, — P.3d — (Alaska Ct. App. Oct. 3, 2012) (memorandum decision).

Lesser included offense. —

Trial court did not err by allowing the jury at defendant's first trial to return verdicts on the assault and theft charges after it was unable to reach a verdict on the first-degree robbery charge because theft was not a lesser-included offense of robbery and, after the trial court declared the jury hung as to the robbery count, it was proper to allow the jury to continue deliberating on the assault count and return a verdict on that crime. Dere v. State, 444 P.3d 204 (Alaska Ct. App. 2019).

Evidence sufficient. —

Evidence was sufficient for the jury to convict defendant of third-degree theft where the victim, a property owner, testified that he thought three or four bottles of wine were taken from his house, and his estimate of the total cost of the wine taken was more than $50. Dreves v. State, — P.3d — (Alaska Ct. App. Dec. 21, 2011) (memorandum decision).

Evidence was sufficient to convict defendant of third-degree theft because the store's loss prevention manager testified that he observed defendant deliberately conceal merchandise and then leave the store without paying for it; he testified that he watched defendant continuously from the time she retrieved a cart until she left the store without paying for the items in the cart; and he testified that $108.49 worth of merchandise was recovered from defendant's shopping cart. Goodwin v. State, — P.3d — (Alaska Ct. App. Dec. 7, 2016) (memorandum decision).

This section gives adequate notice of what conduct is prohibited, an ordinary person would, at a minimum, understand that defendant's conduct, placing multiple items into a shopping cart, paying for a single item, and then attempting to leave the store with the remaining unpurchased merchandise, falls within the “hard core” of theft. Rocero v. State, — P.3d — (Alaska Ct. App. Dec. 21, 2016) (memorandum decision).

Remand for vacation of sentence. —

Where defendant appealed from convictions and sentences simultaneously entered for the offenses of first-degree robbery and theft by taking in the third degree on the ground that all of the elements involved in his conviction of theft by taking in the third degree were necessarily included in his conviction for the offense of first-degree robbery and thus, the imposition of separate sentences on the theft and robbery charges was precluded by double jeopardy, and on appeal the state confessed error as to this issue and requested that the judgment and commitment entered as to the lesser offense of theft be vacated upon remand to the superior court, the court remanded for that purpose. Dunn v. State, 653 P.2d 1071 (Alaska Ct. App. 1982).

Effect of prior conviction determination. —

Date of defendant’s sentencing for the prior theft offenses was the date that determined whether the prior offenses fell within the five-year time period specified in AS 11.46.130(a)(6) ; defendant was sentenced for both of his prior thefts within the five years preceding his commission of the current theft; thus, defendant was properly convicted of second-degree theft under AS 11.46.130(a)(6) , and not third-degree theft under paragraph (a)(1) of this section. Wooley v. State, 157 P.3d 1064 (Alaska Ct. App. 2007).

Sentence upheld. —

A composite sentence of five years with two years suspended, imposed upon a first felony offender upon conviction of two counts of burglary in the second degree, one count of theft in the second degree, and one count of theft in the third degree, was not excessive, where defendant’s conviction of two separate burglaries and related thefts, and his admission of two additional burglaries and related thefts, justified a greater sentence than would a conviction of an isolated burglary and theft. Comegys v. State, 747 P.2d 554 (Alaska Ct. App. 1987).

Sentence of six months for stealing less than $150 was not excessive where defendant engaged in calculated theft from his employer — repeatedly taking small amounts of money and covering up the missing amounts by entering false amounts in the cash register. Williams v. State, 928 P.2d 600 (Alaska Ct. App. 1996).

Defendant was properly convicted of attempted second-and third-degree theft because the facts did not establish a statutory mitigator where he lied to a teller that the issuing bank assured him that the account held sufficient funds to cover the check, he presented no evidence as to the circumstances under which he received the check, whether he was the one who filled it out, why the particular amount was chosen, and whether he had access to the other stolen checks. Soellner v. State, — P.3d — (Alaska Ct. App. Aug. 20, 2014) (memorandum decision).

Conviction reversed. —

See Ace v. State, 672 P.2d 159 (Alaska Ct. App. 1983).

Applied in

Simon v. State, 349 P.3d 191 (Alaska Ct. App. 2015).

Stated in

Morris v. State, 334 P.3d 1244 (Alaska Ct. App. 2014); Kankanton v. State, 342 P.3d 840 (Alaska Ct. App. 2015).

Cited in

Law v. State, 624 P.2d 284 (Alaska 1981); Wasson v. State, 652 P.2d 117 (Alaska Ct. App. 1982); Miller v. State, 739 P.2d 1303 (Alaska Ct. App. 1987); Gantner v. State, 789 P.2d 381 (Alaska Ct. App. 1990); Willett v. State, 826 P.2d 1142 (Alaska Ct. App. 1992); Green v. State, 857 P.2d 1197 (Alaska Ct. App. 1993); Morton v. State, 68 P.3d 1285 (Alaska Ct. App. 2003); Wooley v. State, 221 P.3d 12 (Alaska Ct. App. 2009).

Notes to Decisions

Restatement of Miranda warning not required. —

Where police initially questioned defendant for shoplifting, the Fifth Amendment did not require that they restate the Miranda warnings after defendant admitted that he owned drugs found in his pocket; therefore, a subsequent statement about selling the drugs should not have been suppressed in a trial for second-degree misconduct involving a controlled substance. State v. Amend, 250 P.3d 541 (Alaska Ct. App. 2011).

Sufficient evidence. Sufficient evidence of defendant’s intent to deprive a cab driver of money for his services supported her conviction for fourth-degree theft. Although defendant claimed that her failure to pay was the result of an honest dispute about the amount she owed, a reasonable jury could find that defendant did not intend to pay and that she hoped the driver would leave instead of waiting for her. Hartnell v. State, — P.3d — (Alaska Ct. App. Sept. 21, 2011) (memorandum decision).

Regarding defendant’s convictions for fourth-degree escape and fourth-degree theft, fair-minded jurors could find that the State had proved the elements of these crimes beyond a reasonable doubt. Schlosser v. State, 372 P.3d 272 (Alaska Ct. App. 2016).

Sufficiency of evidence. —

Evidence was sufficient to convict defendant of robbery in the second degree and theft in the fourth degree because he was clearly identified as being at the scene when the victim was hit; the victim heard someone say to get his money, and the police found items from the victim’s backpack in defendant’s car and in his residence. Woods v. State, — P.3d — (Alaska Ct. App. Aug. 31, 2011) (memorandum decision).

Regarding defendant's convictions for fourth-degree escape and fourth-degree theft, the appellate court concluded that fair-minded jurors could find that the State had proved the elements of these crimes beyond a reasonable doubt. Therefore, the appellate court rejected defendant's arguments that the evidence was legally insufficient to support these convictions. Schlosser v. State, 372 P.3d 272 (Alaska Ct. App. 2016).

Accomplice liability. —

In a case in which defendant was convicted of fourth degree theft, the district court erred in including additional language in the pattern jury instruction regarding accomplice liability because defendant's case was not a case that involved the more subtle forms of abetting as the State's theory of prosecution was that defendant directly participated in the theft; however, the error was harmless as the trial focused on whether defendant actively participated in the shoplifting, the jury was otherwise properly instructed on the elements of complicity, and the jury was specifically instructed that mere knowledge and failure to report a crime was not sufficient to establish vicarious liability. Larson v. State, — P.3d — (Alaska Ct. App. Mar. 21, 2018).

Applied in

Martin v. State, 797 P.2d 1209 (Alaska Ct. App. 1990).

Quoted in

Walsh v. State, 758 P.2d 124 (Alaska Ct. App. 1988).

Cited in

Arabie v. State, 699 P.2d 890 (Alaska Ct. App. 1985); Cross v. State, 813 P.2d 691 (Alaska Ct. App. 1991); Willett v. State, 826 P.2d 1142 (Alaska Ct. App. 1992); Gottlieb v. State, 175 P.3d 664 (Alaska Ct. App. 2008); Kankanton v. State, 342 P.3d 840 (Alaska Ct. App. 2015); Soifua v. State, — P.3d — (Alaska Ct. App. Oct. 28, 2020); Baer v. State, 499 P.3d 1037 (Alaska Ct. App. 2021).

Notes to Decisions

Failure to instruct on whether cocaine constitutes “property.” —

Declining to instruct a jury if cocaine were “property” in a robbery and theft prosecution was not plain error because jurors could not reach a decision prejudicing defendant, as (1) any conclusion that cocaine was property was correct, and (2) a conclusion that cocaine was not property would benefit defendant by resulting in an acquittal. Smith v. State, — P.2d — (Alaska Ct. App. Oct. 9, 1996) (memorandum decision).

For cases construing former AS 11.20.360 , relating to obtaining money or property by false pretenses, see Griggs v. United States, 158 F. 572, 3 Alaska Fed. 1 (9th Cir. Alaska 1908); United States v. Pearce, 7 Alaska 246 (D. Alaska 1924); Lemke v. United States, 211 F.2d 73, 14 Alaska 587 (9th Cir. Alaska), cert. denied, 347 U.S. 1013, 74 S. Ct. 866, 98 L. Ed. 1136 (U.S. 1954); Bonney v. United States, 254 F.2d 392, 17 Alaska 542 (9th Cir. Alaska 1958); Risher v. State, 523 P.2d 421 (Alaska 1974); Black v. State, 569 P.2d 804 (Alaska 1977); Dayton v. State, 598 P.2d 67 (Alaska 1979); Robertson v. State, 606 P.2d 393 (Alaska 1980).

For case construing former AS 12.45.030 , relating the necessary evidence for false pretenses, see Lanier v. State, 448 P.2d 587 (Alaska 1968).

Erroneous suppression of incriminating statements. —

In defendant’s trial for theft of unemployment benefits, in violation of this section and AS 11.46.130(a) , and making false statements to obtain unemployment benefits in violation of AS 23.20.485 , a trial court erroneously suppressed incriminating statements defendant made to an Employment Security Division of the Department of Labor investigator regarding defendant’s unemployment benefits where defendant failed to assert his right against self-incrimination under AS 23.20.070 and defendant was not in custody for Miranda purposes or coerced when he made the statements: Defendant had forfeited the privilege and was not entitled to suppression of his statements. State v. Rivers, 146 P.3d 999 (Alaska Ct. App. 2006).

Merger. —

Defendant’s convictions for third degree theft and issuing a bad check merged because the State had to prove defendant knew his account would lack sufficient funds when the check was presented for payment; the two statutes protect the same societal value, and the crimes were based on one act. Cohen v. State, — P.3d — (Alaska Ct. App. Nov. 4, 2015) (memorandum decision).

Conviction reversed because of prosecutorial misconduct. —

See Pritchard v. State, 673 P.2d 291 (Alaska Ct. App. 1983).

Applied in

Linne v. State, 674 P.2d 1345 (Alaska Ct. App. 1983).

Cited in

Casciola v. F. S. Air Serv., 120 P.3d 1059 (Alaska 2005).

Collateral references. —

Forgery: use of fictitious or assumed name, 49 ALR2d 852.

Changing of price tags by patron in self-service store as criminal offense, 60 ALR3d 1293.

Notes to Decisions

Analysis

• I. General Consideration
• II. Former Law

Notes to Decisions

Theft of cable television services. —

Defendant was properly convicted of theft of services even though the State did not prove that he watched the cable services he was accused of stealing. By installing a decoder and enabling his television set to display premium programs without notifying the cable television provider and paying the appropriate monthly fee, he knowingly “secured performance” of the premium cable television service as described in AS 11.46.200(a)(1) and AS 11.46.990 (12)(B). Cruz-Reyes v. State, 74 P.3d 219 (Alaska Ct. App. 2003).

Evidence was sufficient to prove that defendant’s television was capable of receiving and displaying unauthorized cable programming, even though troopers did not flip through the channels, where the black box had been hooked up to defendant’s television for four months and where technicians at the provider later connected the black box and found that it permitted display of every channel that their company distributed via cable. Cruz-Reyes v. State, 74 P.3d 219 (Alaska Ct. App. 2003).

Theft of transportation services. —

Sufficient evidence of defendant’s intent to deprive a cab driver of money for his services supported her conviction for fourth-degree theft. Although defendant claimed that her failure to pay was the result of an honest dispute about the amount she owed, a reasonable jury could find that defendant did not intend to pay and that she hoped the driver would leave instead of waiting for her. Hartnell v. State, — P.3d — (Alaska Ct. App. Sept. 21, 2011) (memorandum decision).

Presumption of deception not mandatory. —

In a prosecution for theft pursuant to paragraph (a)(1), the trial court erred in instructing the jury that, pursuant to subsection (b), proof of “absconding” without payment for certain services amounted to a prima facie showing of deception, without also instructing the jury, pursuant to Rule 303 of the Alaska Rules of Evidence, that this language did not create a mandatory presumption and that the weight and effect of this presumption were matters within the jury’s exclusive province. Brackhan v. State, 839 P.2d 414 (Alaska Ct. App. 1992).

Quoted in

Walsh v. State, 758 P.2d 124 (Alaska Ct. App. 1988).

Cited in

Gottlieb v. State, 175 P.3d 664 (Alaska Ct. App. 2008).

Collateral references. —

Telephone services obtained by unauthorized use of another’s telephone number, 61 ALR4th 1197.

Notes to Decisions

Former embezzlement statutes construed. —