author: COATS, Chief Judge.

text:
    Alfred H. PAUL, Appellant, v. STATE of Alaska, Appellee.
    No. A-7773.
    Court of Appeals of Alaska.
    Oct. 25, 2002.
    Sharon Barr, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for Appellant.
    Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Bo-telho, Attorney General, Juneau, for Appel-lee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

COATS, Chief Judge.

P.B. went to the Sitka Police Department and told an officer that he had broken into his Uncle Alfred Paul’s locked bedroom and obtained a videotape which he watched. He said the tape showed Alfred Paul having sex with C.P., P.B.’s fifteen or sixteen-year-old cousin. The officer watched the videotape and saw the sexual act. The police used information obtained from the videotape to obtain a warrant and ultimately charged Alfred Paul with criminal offenses involving his sexual acts with C.P. Paul moved to suppress the evidence which the police obtained from observing the videotape. He argued that the police violated his rights by observing the videotape without obtaining a search warrant. Superior Court Judge Larry C. Zervos denied Paul’s suppression motion and Paul was ultimately convicted of several charges. Paul appeals, arguing that Judge Zervos erred in denying his suppression motion. We affirm.

Factual background

On the morning of September 12, 1999, nineteen-year-old P.B. informed Sitka Police Officer Dawn Augustus that his uncle, Larry Paul, had sexually assaulted him earlier that morning. P.B. lived in his grandmother’s household with his cousin, C.P., and his uncles, Larry Paul and Alfred Paul. After complaining of the assault by Larry Paul, P.B. told Officer Augustus that he had a videotape showing Alfred Paul having sex with P.B.’s fifteen or sixteen-year-old cousin, C.P.

P.B. stated that a few months prior to his conversation with Officer Augustus, he and his cousin Charles had broken into Paul’s locked bedroom using a credit card. The bedroom had a “Do Not Enter” sign posted on the door. A videotape was in the VCR, and they turned it on. It showed Paul and C.P. engaging in sexual relations. P.B. said he was disgusted by what he saw and turned the player off. The boys broke into the room on other occasions. Several days before his conversation with Officer Augustus, P.B. broke into Paul’s room for the last time.

This time he took a videotape labeled “10/28/98.” P.B. said that he had started watching this tape somewhere in the middle. He watched it for a couple of minutes; it showed C.P. and Paul engaging in sexual relations, but it was not the same tape he and his cousin had watched before. P.B. was not specific about the sexual acts depicted on the video, but he told Officer Augustus he was shocked by what he saw. He kept this video by his bed until he took it to the police station the morning he reported being sexually assaulted.

After this conversation, Officer Augustus watched a couple of minutes of the video without rewinding it. She saw a native female performing fellatio on a man.

Sitka Police Detective Teague Widmier became involved in the case at this point. Officer Augustus relayed to Detective Widmier what she had seen on the video and P.B.’s statements. After interviewing P.B., Detective Widmier watched the entire eight-hour videotape — from near the beginning until the end. The tape contained recordings of television commercials and shows in addition to recordings of Paul and C.P. having sex in various ways. Detective Widmier fast forwarded through everything but the sexual acts; viewing the tape in this manner took thirty to forty minutes. Prior to watching the video, he did not ask P.B. how much of the tape P.B. had seen.

After watching the video, Detective Widmier obtained a search warrant for Paul’s bedroom and person based on Widmier’s assertion that the video depicted sexual acts and P.B.’s hearsay statements.

The police searched Paul’s room and person. The search turned up a number of pornographic magazines, videos, and pictures; at least one other videotape taken from the bedroom showed Paul and C.P. having sex. The following day, September 13, 1999, Detective Widmier spoke with C.P. regarding the sex scenes recorded on the videos. That same day, the police arrested Paul.

The State indicted Paul on fifteen counts of unlawful exploitation of a minor, twelve counts of incest, and twelve counts of sexual abuse of a minor in the third degree. Paul moved to suppress the fruits of the warrant-less search of the videotape. Judge Zervos held an evidentiary hearing, and he denied the motion to suppress. Pursuant to stipulated facts, Judge Zervos found Paul guilty of one count of unlawful exploitation of a minor, one count of incest, and one count of sexual abuse of a minor in the third degree.

Resolution of the legal issue

The issue before us is whether the police could view the videotape which P.B. brought into the police station without first obtaining a warrant in compliance with the Alaska and United States Constitutions. The resolution of this case is governed by two cases decided by the United States Supreme Court.

In a fragmented decision, Walter v. United States, the United States Supreme Court overturned the admission of films of obscene material where the government viewed the films without a warrant. In Walter, a shipping company delivered twelve cartons to an incorrect address. Employees of the recipient company opened the packages and found film canisters, the labeling of which indicated they depicted scenes of homosexual activity. The employees attempted to view the film by holding it up to the light but were unsuccessful. They contacted the Federal Bureau of Investigations (FBI), whose agents picked up the cartons and viewed the approximately 900 films using a projector. Justice Stevens, writing for the Court, with whom one other justice concurred, held that the FBI’s screening of the films violated Walter’s Fourth Amendment rights by expanding the scope of the private search:

[T]he Government may not exceed the scope of the private search unless it has the right to make an independent search. In these cases, the private party had not actually viewed the films. Prior to the Government screening one could only draw inferences about what was on the films. The projection of the films was a significant expansion of the search that had been conducted previously by a private party and therefore must be characterized as a separate search.
The fact that the cartons were unexpectedly opened by a third party before the shipment was delivered to its intended consignee does not alter the consignor’s legitimate expectation of privacy. The private search merely frustrated that expectation in part. It did not simply strip the remaining unfrustrated portion of that expectation of all Fourth Amendment protection. Since the additional search conducted by the FBI — the screening of the films — was not supported by any justification, it violated that Amendment.

These two justices suggested that the question remained open whether the government’s projection of the films would have infringed on Walter’s Fourth Amendment rights if the recipient employees had actually viewed the films before turning them over to the government.

A third justice concurred in the judgment without joining the reasoning.

Justice White, with one other justice joining, concurred with the judgment but stated that even if the private parties had projected the films before turning them over to the FBI, the FBI could have only viewed them pursuant to a warrant. He wrote that a subsequent police search without a warrant would permit government agents to conduct warrantless searches of personal property whenever probable cause existed as a result of a prior private search — even where the police could not conduct such a warrantless search when probable cause existed for any other reason. The concurrence concluded that the opening of the packages by the employees destroyed Walter’s expectation of privacy to the contents because the contents were left in plain view. However, a private projection of the films would not so destroy the privacy interest in the contents of the films.

Justice Blackmun, with three justices joining, dissented, concluding that Walter had no expectation of privacy remaining in the films once the private employees had ascertained the nature of the films from the depictions on their containers, which were revealed when they opened the packages. Under the dissenting opinion, the FBI did not need a warrant to view the films because viewing the movies on a projector did not change the nature of the private search.

Although the majority opinion in Walter is fragmented, because the majority concluded that the evidence should be suppressed, Professor LaFave concludes that “it is clear from Walter that a private search does not permit a later government [warrantless] search which is more intrusive or extensive than the earlier private search.”

In United States v. Jacobsen, a majority of the Supreme Court adopted Justice Stevens’s “scope of search” standard, holding that the Fourth Amendment is not implicated unless the government expands the scope of the prior search and uses “information with respect to which the expectation of privacy has not already been frustrated” by the private search. “The additional invasions of respondents’ privacy by the government agent must be tested by the degree to which they exceed[ ] the scope of the private search.” In Jacobsen, Federal Express employees opened a damaged package and discovered a suspiciously wrapped quantity of white powder. They resealed the package and notified the Drug Enforcement Agency (DEA). When the DEA agent arrived, he opened the package, conducted a field test on the powder, and determined it to be cocaine.

The Supreme Court held that the government’s actions in reopening the package did not infringe on Jacobsen’s Fourth Amendment rights because the government confined its search to the scope of the prior private search. The Federal Express employees had destroyed any privacy interest Jacobsen had in the package.

[T]he removal of the plastic bags from the tube and the agent’s visual inspection of their contents enabled the agent to learn nothing that had not previously been learned during the private search. It infringed no legitimate expectation of privacy and hence was not a “search” within the meaning of the Fourth Amendment.

After Walter and Jacobsen, the test to determine the validity of a warrantless government search following a private search is the degree to which the government’s invasion of the privacy interest exceeds the scope of the private search.

In the present case, P.B. had taken the tape from Alfred Paul’s bedroom and viewed it. He saw Paul engaging in sexual relations with C.P. Without rewinding the tape, Officer Augustus placed the tape in a VCR and saw C.P. performing fellatio on Alfred Paul. Judge Zervos found that this activity was the same activity that P.B. had previously observed.

Paul argues that the Sitka Police violated his rights because Detective Widmier watched the entire tape and, therefore, expanded P.B.’s original search. Judge Zervos concluded that Detective Widmier’s viewing of the videotape exceeded P.B.’s viewing “in only the most technical sense.” He concluded that Detective Widmier’s viewing “of the same people doing the same sort of acts on the same videotape that had already been viewed by private parties does not compromise any privacy interest that had not already been compromised.” This view seems sound and appears consistent with Jacobsen.

In Jacobsen, the court allowed the police to search all of the bags which contained cocaine in the packages and to test it. The court did not require the police to show that they had only opened the same cocaine bag that the private parties had previously opened. But even if we were to conclude that Detective Widmier’s viewing of the entire tape was improper, it would still not lead to suppression of the evidence against Paul. Judge Zervos found that the police would have obtained a warrant based solely on the information available to them before Detective Widmier viewed the tape. This finding is fully supported by the record.

Paul points out that P.B. told the police that he had broken into his bedroom and had stolen the videotape in order to view it and give it to the police. He argues that the police viewing of the videotape was unconstitutional because of P.B.’s illegal actions. He relies on Erickson v. State, a case decided by the Alaska Supreme Court. In Erickson, a police informant had seen the defendant place drugs in a suitcase. The informant recovered the suitcase from its hiding place outside and brought it to the police station. The suitcase was locked. The informant told the police that he had seen the defendant place the drugs in the suitcase, but he had not searched the suitcase before turning it over to the police. The police opened the suitcase without getting a warrant. The Alaska Supreme Court held that the police needed a warrant to search the locked suitcase. The Erickson decision appears to be consistent with Jacobsen. Because the informant had not previously searched the suitcase, the police substantially exceeded the earlier intrusion, i.e., the seizure of the suitcase. The defendant in Erickson retained a reasonable expectation of privacy in the contents of the suitcase. But in Erickson, the Supreme Court never addressed the issue of whether the informant’s seizure of the suitcase was unlawful. Therefore, Erickson does not support Paul’s argument.

Paul also relies on State v. Miggler. In Miggler, the Minnesota Court of Appeals distinguished Jacobsen because: the private search of a locked footlocker was conducted in the defendant’s home; Miggler had not entrusted the locked footlocker to anyone; the private searchers had broken into the footlocker; the police exceeded the scope of the private search; and, Miggler retained a privacy expectation in the non-contraband items in the footlocker. The court held that the fruits of the search were inadmissible because the private searchers had no authority to admit the police into the residence, and the contraband was not discovered inadvertently or in plain view. Miggler therefore turns on the fact that the police directly participated in an illegal search of the defendant’s residence. No such intrusion occurred in the present case, and, therefore, Miggler is distinguishable.

It is true that the Jacobsen decision did point out that the private parties lawfully possessed the searched package. But the case did not rely on the lawful possession of the package. Cases applying the prior private search exception to the warrant requirement do not limit the doctrine to private searches of legally possessed items. As the Supreme Court explained in Walter, “[i]t has, of course, been settled since Burdeau v. McDowelll, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921)], that a wrongful search or seizure conducted by a private party does not violate the Fourth Amendment and that such private wrongdoing does not deprive the government of the right to use evidence that it has acquired lawfully.” Therefore, Paul’s argument that the videotape should be suppressed because P.B. had unlawfully seized it fails.

Conclusion

We conclude that Judge Zervos did not err in refusing to suppress evidence which the police obtained from viewing the videotape. We accordingly AFFIRM Paul’s convictions.

      . AS 11.41.455(a).

      . AS 11.41.450(a).

      . AS 11.41.438(a).

      . See U.S. Const, amend. IV; Alaska Const, art. I, § 14.

      . 447 U.S. 649, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980).

      . Id. at 652, 100 S.Ct. at 2399.

      . Id. at 651, 100 S.Ct. at 2399.

      . Id. at 652, 100 S.Ct. at 2399.

      . Id.

      . Id.

      . Id. at 657-59, 100 S.Ct. at 2402-03 (footnotes and citations omitted).

      . Id. at 658 n. 9, 100 S.Ct. at 2402 n. 9.

      . Id. at 660, 100 S.Ct. at 2403 (Marshall, J„ concurring).

      . Id. at 661-62, 100 S.Ct. at 2404 (White, J., concurring).

      . Id. at 660-61, 100 S.Ct. at 2403-04 (White, J., concurring).

      . Id. at 661, 100 S.Ct. at 2404 (White, J., concurring).

      . Id. at 660-61, 100 S.Ct. at 2403-04 (White, J., concurring).

      . Id. at 663-66, 100 S.Ct. at 2404-06 (Black-mun, J., dissenting).

      . Id. at 663-66, 100 S.Ct. at 2404-06 (Black-mun, J., dissenting).

      . 1 Wayne R. LaFave, Search and Seizure § 1.8(b), at 230 (3d ed.1996).

      . 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984).

      . Id. at 117, 104 S.Ct. at 1658-59.

      . Id. at 115, 104 S.Ct. at 1657.

      . Id. at 111, 104 S.Ct. at 1655.

      . Id.

      . Id. at 111-12, 104 S.Ct. at 1655.

      . See id. at 118-22, 104 S.Ct. at 1659-61.

      . See id. at 119, 104 S.Ct. at 1659-60.

      . Id. at 120, 104 S.Ct. at 1660 (footnote omitted).

      . Id. at 115, 104 S.Ct. at 1657; Staats v. State, 717 P.2d 413, 421 (Alaska App.1986); see also Stange v. State, 559 P.2d 650, 655 (Alaska 1977) (reaching similar holding under plain view doctrine); State v. Stump, 547 P.2d 305, 307-08 (Alaska 1976) (same).

      . Jacobsen, 466 U.S. at 112, 104 S.Ct. at 1655.

      . 507 P.2d 508 (Alaska 1973).

      . Id. at 511.

      . Id. at 512.

      . Id.

      . See id. at 511-12.

      . Id. at 512.

      . Mat 513.

      . See id. at 513.

      . 419 N.W.2d 81 (Minn.App.1988).

      . See id. at 83-85.

      . Id. at 85-86; see also State v. Miller, 110 Nev. 690, 877 P.2d 1044, 1049-51 (1994) (Young, J., dissenting) (citing Miggler as distinguishing Jacobsen on grounds that police entered the home of a suspect to reenact a search conducted by a private individual).

      . Jacobsen, 466 U.S. at 120 n. 17, 104 S.Ct. at 1660 n. 17.

      . Id.

      . See, e.g., Walter v. United States, 447 U.S. 649, 656, 100 S.Ct. 2395, 2401, 65 L.Ed.2d 410 (1980); United States v. Snowadzki, 723 F.2d 1427, 1429-30 (9th Cir.1984) (government did not "search” stolen documents when it read documents because informant had privately searched the documents and turned them over to the police); State v. Christensen, 244 Mont. 312, 797 P.2d 893, 895-97 (1990) (evidence admissible even though given to police by burglars who had stolen it from defendant).

      . Walter, 447 U.S. at 656, 100 S.Ct. at 2401 (citations omitted).


source: Caselaw Access Project

author: MANNHEIMER, Judge.

license: Public Domain

text:
    Gregory J. BEAUDOIN, Appellant, v. STATE of Alaska, Appellee.
    No. A-7739.
    Court of Appeals of Alaska.
    Oct. 25, 2002.

      Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

MANNHEIMER, Judge.

In the summer of 1995, Gregory Justin Beaudoin was struck by a motor home; the resulting brain injury left him permanently disabled and mentally ill. On the evening of September 14, 1997, Beaudoin argued with his mother and fatally stabbed her. Beau-doin then called 911 to report what he had done and, to request help for his mother.

Beginning with this 911 call, Beaudoin repeatedly confessed to a number of people. Beaudoin stayed on the telephone, talking to the 911 dispatcher, while emergency medical technicians, officers of the Alaska State Troopers, and a security officer employed by the Alyeska Resort arrived at his Girdwood home. Beaudoin repeatedly confessed to the 911 dispatcher that he had stabbed his mother; he described how many times he had stabbed her, he said that he was fairly sure that he had stabbed her in the heart, and he told the dispatcher where he had put the knife after the attack. Beaudoin also walked up to the Alyeska security officer, announced, “I stabbed my mother”, and began to describe the assault.

After the emergency medical technicians determined that Beaudoin’s mother was dead^ Trooper Gary Pacolt placed Beaudoin in handcuffs and led him outside to a patrol vehicle. As they walked down the hallway, another tenant in the building opened his door and looked out. Beaudoin announced to this neighbor that he had just stabbed and killed his mother.

After Trooper Pacolt put Beaudoin- in the patrol car, he began to question him. Pacolt was a rookie, and he neglected to give Beau-doin Miranda warnings until a trooper sergeant arrived and reminded Pacolt to do this. After Beaudoin received Miranda warnings, the trooper sergeant took up the interrogation. Beaudoin continued to confess. Beau-doin was then taken to the trooper station, where he was questioned by a trooper investigator. The trooper investigator again warned Beaudoin of his Miranda rights, but Beaudoin continued to confess (at length).

Beaudoin was indicted for first-degree murder; he was ultimately found “guilty but mentally ill”. (That is, the jury found that the crime of first-degree murder was proved, but that Beaudoin, because of his mental illness, was unable to appreciate the wrongfulness of his conduct or, alternatively, was unable to conform his conduct to the requirements of law. See AS 12.47.030.)

Beaudoin now appeals his conviction and his sentence on various grounds. For the reasons explained here, we affirm the judgement of the superior court.

The admissibility of Beaudoin’s statements to the trooper sergeant and the trooper investigator

Because Beaudoin did not receive Miranda warnings during the first segment of his custodial interrogation (his interview in the patrol car with Pacolt), the State conceded that Beaudoin’s statements to Pacolt should be suppressed. However, the superi- or court allowed the State to introduce the statements that Beaudoin made during the second and third segments of his custodial interrogation — his statements to the trooper sergeant at the scene and, later, to the trooper investigator at the station.

On appeal, Beaudoin argues that these second and third segments should also be suppressed as the tainted fruit of the Miranda violation. Beaudoin contends that he “let the cat out of the bag” when he spoke to Trooper Pacolt before receiving Miranda warnings, and that he therefore believed that he had nothing to lose when he continued to confess during the second and third segments of the interrogation.

Because Beaudoin takes this view of the matter, he argues that his appeal requires us to decide a legal issue that has not yet been resolved by the appellate courts of Alaska: whether Alaska will follow the decision of the United States Supreme Court in Oregon v. Elstad. In Elstad, the Supreme Court rejected Beaudoin’s “cat out of the bag” theory of taint; instead, the Supreme Court con-eluded that the administration of Miranda warnings will normally dissipate whatever coercive pressure might have been exerted earlier on a suspect in custody — so that the suspect’s ensuing confession will be admissible despite the arguable psychological effects of the suspect’s prior, un-Mirandized confession.

In his brief, Beaudoin argues that we should adopt the position espoused by Justice Brennan in his Elstad dissent. That is, Beaudoin asks us to reject Elstad as a matter of state constitutional law and instead adopt the pr e-Elstad rule that an illegally obtained confession presumptively taints a suspect’s ensuing confession unless the government rebuts this presumption by proving, under the totality of the circumstances, that the ensuing confession was “sufficiently an act of free will to purge the primary taint”— that there was a “break in the stream of events sufficient to insulate the subsequent statement from the effect of all that went before”.

Having considered this matter, we conclude that Beaudoin’s case does not present an Elstad issue.

The issue that divided the Elstad majority from the Elstad dissenters (and the issue that has fueled the ensuing debate in state courts) is whether a confession obtained in violation of Miranda will be presumed to taint any subsequent confession that a suspect makes after receiving Miranda warnings. The underlying premise of this debate — and the premise of the “cat out of the bag” theory of taint — is that the suspect’s initial confession was obtained illegally as the result of a Miranda violation.

In his Elstad dissent, Justice Brennan criticized the majority for “rejecting] ... the long-recognized presumption that an illegally extracted confession causes the accused to confess again out of the mistaken belief that he already has sealed his fate”. (Emphasis added) Justice Brennan then approvingly quoted the separate opinion of Justice Harlan in Darwin v. Connecticut:

A principal reason why a suspect might make a second or third confession is simply that, having already confessed once or twice, he might think that he has little to lose by repetition. If a first confession is not shown to be voluntary, I do not think a later confession that is merely a direct product of the earlier one should be held to be voluntary. It would [not be] fair to a suspect to allow the erroneous impression that he has nothing to lose to play the major role in a defendant’s decision to speak a second or third time.
In consequence, when the prosecution seeks to use a confession uttered after an earlier one not found to be voluntary, it has the burden of proving ... that [the later confession] was not directly produced by the existence of the earlier [involuntary] confession.

Elstad, 470 U.S. at 326, 105 S.Ct. at 1302 (Brennan, J., dissenting) (emphasis added).

Thus, the reasoning of the pr e-Elstad cases and Justice Brennan’s Elstad dissent hinges on the premise that a suspect’s initial confession was obtained illegally. The concern expressed by Justice Brennan is that the state takes unfair advantage of a suspect if (a) the police induce the suspect to confess by failing to inform him of his Miranda rights and then (b) the suspect, laboring under the psychological effects of the illegally obtained confession, repeats the confession (even after receiving Miranda warnings) because the suspect believes that there is nothing to lose by continuing to confess. The ^re-Elstad rule and the Elstad dissent are premised on skepticism as to whether Miranda warnings, standing alone, can dispel the psychological effects of an earlier, illegally obtained confession.

But that is not the issue in Beaudoin’s ease. Even if we assume that Beaudoin’s willingness to confess to the trooper sergeant and the trooper investigator can be attributed to the psychological effects of his many earlier confessions, the fact remains that all but one of these earlier confessions were lawfully obtained.

Beaudoin freely and repeatedly confessed to several people before he was taken into custody and questioned by Trooper Pacolt in the patrol car. If Beaudoin indeed felt that he had nothing to lose by continuing to confess, that feeling did not stem from his conversation with Pacolt and Pacolt’s failure to advise Beaudoin of his Miranda rights. Beaudoin’s un-Mirandized conversation with Pacolt was a minor interruption in what was otherwise a stream of legally obtained confessions. Under these circumstances, no matter whether we apply the Elstad rule or the pre-Elstad rule, Beaudoin’s subsequent confessions to the trooper sergeant and the trooper investigator were not tainted by the Miranda violation.

The admissibility of evidence that Beau-doin assaulted a corrections officer

While Beaudoin was imprisoned in Anchorage awaiting his trial, he assaulted a corrections officer. (The officer had ordered Beaudoin to return to his cell; Beaudoin moved behind the officer’s desk, then struck the officer in the eye, breaking her glasses and cutting her face. The wound required several stitches.) At Beaudoin’s trial, this assault became a point of contention.

Beaudoin was charged with first-degree murder. He defended on the theory that, due to his mental illness, he did not act with the intent to kill his mother. (Beaudoin conceded that he was guilty of a lesser degree of homicide.) To support this defense, Beau-doin called several expert witnesses (a neurologist, a neuropsychologist, a psychiatrist, and a psychologist) to analyze his mental functioning and to reconstruct his likely mental state when he attacked his mother.

When the prosecutor received a copy of the notes prepared by one of Beaudoin’s witnesses, psychologist Fred Wise, the prosecutor observed that Dr. Wise had been informed of, and had considered, Beaudoin’s assault on the corrections officer. The prosecutor therefore asked the trial judge, Superior Court Judge Milton M. Souter, for permission to cross-examine Dr. Wise concerning this incident.

Before ruling on the prosecutor’s request, Judge Souter conducted a voir dire examination of Dr. Wise outside the presence of the jury. Dr. Wise testified that, when he interviewed Beaudoin, he asked Beaudoin about the assault on the corrections officer. Beau-doin told Dr. Wise that he.struck the officer three times: once because she reminded him of his mother, once because she would not let another inmate use the telephone, and once “because he thought he was cool”. Dr. Wise acknowledged that Beaudoin’s assault on the corrections officer was one factor that he considered when assessing Beaudoin’s thinking processes and his mental state on the night of the murder.

After hearing Dr. Wise’s voir dire testimony, Judge Souter concluded that evidence of the assault on the corrections officer, and Beaudoin’s explanation of this assault, was relevant to the jury’s evaluation of Dr. Wise’s analysis and conclusions concerning Beau-doin’s mental state. The judge therefore allowed the prosecutor to pursue the requested cross-examination.

On appeal, Beaudoin argues that this ruling was error. He contends that evidence of his assault on the corrections officer was barred by Alaska Evidence Rule 404(b)(1) because the only real purpose of this evidence was to portray Beaudoin as a characteristically assaultive person.

As we explained in Smithart v. State , Evidence Rule 404(b)(1) bars the admission of evidence of a person’s other bad acts if this' evidence is introduced for a particular prohibited purpose: to prove a person’s character so that this character can be used as circumstantial evidence that the person acted true to character during the incident being litigated. But Rule 404(b)(1) does not bar evidence of a person’s bad acts if this evidence is introduced for any other valid purpose.

In Beaudoin’s case, Judge Souter found that the evidence of Beaudoin’s assault on the corrections officer was relevant, not because of what it might show about Beaudoin’s character, but rather because this information was pertinent to the jury’s evaluation of Dr. Wise’s testimony (his assessment of Beaudoin’s mental state) and, ultimately, Beaudoin’s claim of diminished capacity. The record fully supports Judge Souter’s view of this matter. Thus, the disputed evidence was not barred by Evidence Rule 404(b)(1) — because it was relevant for a purpose other than the one purpose prohibited by Rule 404(b)(1).

Beaudoin argues in the alternative that the disputed evidence still should have been excluded under Evidence Rule 403 because its potential for unfair prejudice outweighed any proper probative value that it might have. But the potential for unfair prejudice was slight. Beaudoin did not dispute that he had attacked and killed his mother. The issue litigated at his trial was whether Beaudoin acted with the intent to kill his mother when he attacked her or whether, because of his mental illness, he lacked the intent to kill. In this context, it is inconceivable that the jury would be moved to “overmastering hostility” against Beau-doin because he struck and injured a corrections officer. Rather, the jurors could be expected to use the disputed evidence in the proper way — as information pertinent to their decision concerning Beaudoin’s mental state at the time of the homicide. Judge Souter did not abuse his discretion when he allowed the prosecutor to cross-examine Dr. Wise concerning this incident.

Judge Souter did not violate the rule of Jackson v. State when he sentenced Beau-doin

In Jackson v. State, the Alaska Supreme Court criticized trial court judges for sentencing defendants to a much longer prison term than the amount of imprisonment that the judge thought the defendant really should serve, under the assumption that the Parole Board would release the defendant soon after the defendant became eligible to apply for parole. Beaudoin argues that Judge Souter violated the Jackson rule when he sentenced Beaudoin.

Beaudoin was convicted of first-degree murder. The maximum sentence for this crime is 99 years’ imprisonment, while the mandatory minimum sentence is 20 years’ imprisonment. Judge Souter sentenced Beaudoin to 99 years with 39 years suspended' — i.e., 60 years to serve.

Under Alaska law, defendants who are not subject to presumptive sentencing are generally eligible to be considered for discretionary parole release after they have served either one-fourth or one-third of their sentence (depending on the class of crime they have been convicted of). Because Beaudoin was convicted of first-degree murder, he was sentenced under AS 12.55.125(a), and thus the one-third limit applied to him. However, two other factors also limited Beaudoin’s eligibility for parole.

First, the parole statute provides that, regardless of any other limit on parole, defendants must serve the mandatory minimum sentence for their crime before they become eligible for parole release. For Beaudoin, this mandatory minimum sentence was 20 years. Second, Alaska law restricts the parole eligibility of defendants who, like Beaudoin, are found guilty but mentally ill. Under AS 12.47.050(b) and 050(d)(2), such defendants can not be released on parole until they no longer suffer from a mental disease or defect that causes them to be dangerous to the public.

It is apparent from Judge Souter’s sentencing remarks that one of his reasons for sentencing Beaudoin to serve 60 years was to make sure that Beaudoin would be eligible for parole at the earliest opportunity if Beau-doin was no longer a danger to the public.

Regardless of what sentence Beaudoin received, he could not be paroled until he had served the 20-year mandatory minimum term for first-degree murder¡ Judge Souter noted that, because one-third of 60 is 20, these two limitations on Beaudoin’s parole eligibility — the requirement that he serve one-third of his sentence, and the requirement that he serve the mandatory minimum sentence — would coincide.

Judge Souter explained that the only remaining restriction on Beaudoin’s parole eligibility stemmed from the jury’s “guilty but mentally ill” verdict: because of this verdict, Beaudoin would not be eligible for parole until he no longer suffered from a mental disease or defect that caused him to be dangerous. The judge expressed the hope that, with advances in medicine (pharmacology, mental health treatment, and even reconstructive surgery of the brain), that time would arrive within the next two decades. But Judge Souter added that if Beaudoin’s mental illness could not be cured or controlled, then his aim in imposing a 60 year sentence was to make sure that Beaudoin remained in prison for the protection of the public.

Given these remarks, it is obvious that Judge Souter did not calculate Beaudoin’s term of imprisonment using the assumption forbidden by Jackson — the assumption that Beaudoin should be sentenced to three times the proper term of imprisonment because the Parole Board would release Beaudoin as soon as he became eligible to apply for parole.

It is true that Judge Souter took parole eligibility into account when he sentenced Beaudoin to serve 60 years. But the judge’s aim in doing so was not to ensure that Beau-doin served at least 20 years. Beaudoin faced a-mandatory 20 years in prison no matter what Judge Souter did. Rather, Judge Souter?s aim was to leave the possibility open that Beaudoin might be released in as little as 20 years. This was not a violation of Jackson.

Judge Souter did not abuse his discretion when he denied Beaudoin’s motion to reduce the sentence

• Following his sentencing, Beaudoin filed a motion for sentence reduction under Alaska Criminal Rule 35(b). In this motion, Beaudoin presented a new evaluation from neuropsychologist' Paul Craig. Dr. Craig stated that Beaudoin was responding well to drug treatment, that Beaudoin’s behavior in jail had been excellent, and that there had been a “dramatic improvement in [Beau-doin’s] interpersonal skills, clarity of thought, and capacity to communicate”. Based on Dr. Craig’s evaluation, Beaudoin asked Judge Souter to reduce his time to serve to 20 years (ie., change the overall sentence to 99 years with 79 years suspended).

Judge Souter denied this motion. He declared that, despite Dr. Craig’s evaluation, “the Court’s reasons for imposing the [original] sentence ... remain valid and undiminished”.

As already explained, Judge Souter wanted Beaudoin to be eligible for supervised release after 20 years if Beaudoin no longer suffered from a mental disease or defect that caused him to be dangerous. At the same time, Judge Souter wanted to make sure that Beaudoin remained in prison for a much longer time if Beaudoin continued to suffer from a mental condition that caused him to be dangerous.

Dr. Craig’s new evaluation suggested that Beaudoin was making rapid steps toward mental health. But this improvement in Beaudoin’s condition would not necessarily call for a change in Judge Souter’s evaluation of the case or a change in the terms of Beaudoin’s sentence. No matter what Judge Souter did, Beaudoin would have to serve the 20-year minimum sentence for first-degree murder. And Judge Souter could reasonably conclude that, if Beaudoin’s progress toward mental health turned out to be temporary or was halted short of complete recovery, a 60-year sentence was still needed to protect the public. We therefore conclude that Judge Souter did not abuse his discretion when he declined to reduce Beaudoin’s time to serve to 20 years.

Beaudoin’s sentence of 60 years to serve is not clearly mistaken

As explained above, Judge Souter fashioned a sentence that would allow Beau-doin to be released in 20 years if he was no longer dangerous, but would hold Beaudoin in prison for as much as 60 years if he continued to be dangerous. Beaudoin contends that this sentence is clearly mistaken because Judge Souter failed to give adequate weight to the expert testimony offered by Beaudoin concerning the nature of his mental illness and the prospects for his successful treatment.

As the jury found, Beaudoin’s act of murder was substantially influenced by his mental illness. Because of this linkage between his mental illness and his crime, Beaudoin argues that it is not necessary to incarcerate him for 60 years. He relies on psychological evaluations which conclude that his mental illness is treatable with medication, that he understands his condition, and that he is willing to follow any regimen of treatment. Based on these factors, Beaudoin cites the Alaska Supreme Court’s decision in Hansen v. State as authority for the proposition that Judge Souter should have imposed a more lenient sentence.

In Hansen, the supreme court reversed a third felony offender’s sentence — reducing it to time served and directing the sentencing judge to release the defendant on probation — when the facts showed that the defendant

[suffered from] a clearly diagnosed mental illness; [that he had excellent] amenability to treatment; [that his] mental illness [was clearly linked to his] past anti-social behavior; [and that there was a] definite, prescribed course of treatment to mitigate the possibility of future criminal behavior....

Hansen, 582 P.2d at 1047-48.

However, as the State notes in its brief, the true lesson of Hansen may be that an appellate court should hesitate before rejecting a trial judge’s sentencing assessment in favor of the competing predictions of mental health experts regarding a defendant’s future behavior. For despite the arguable reasons for optimism recited in the supreme court’s opinion, Robert C. Hansen was already on his way to becoming the worst mass murderer in Alaska history. (Between the summer of 1971 and the time of his arrest in 1983, Hansen abducted, raped, and murdered at least seventeen women. He committed one of these murders just a few weeks after the supreme court ordered his release on probation.)

This is not to suggest that Beaudoin can be likened in any way to Hansen. Beaudoin is a youthful first offender whose criminal behavior, Judge Souter found, was clearly linked to his brain injury and resulting mental illness. And, for the most part, Judge Souter agreed with the experts’ characterization of the sources of Beaudoin’s criminal behavior and their conclusion that the real solution was to cure Beaudoin of his mental illness. But as a result of that mental illness, Beaudoin attacked and killed his mother with little or no provocation. Given Beaudoin’s demonstrated level of dangerousness, Judge Souter wanted to craft a sentence that would protect the public in case the predictions of Beaudoin’s rapid recovery proved to be too optimistic.

Given all of these circumstances, Judge Souter’s sentencing decision was a reasonable effort to protect the public and yet foster Beaudoin’s treatment and rehabilitation. The judge was not obliged to accept the most sanguine view of Beaudoin’s prospects for recovery. In short, we do not find that Beaudoin’s sentence is clearly mistaken.

Conclusion

The judgement of the superior court is AFFIRMED.

      . 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985).

      . See id., 470 U.S. at 310-11, 105 S.Ct. at 1294.

      . Halberg v. State, 903 P.2d 1090, 1094 (Alaska App.1995), quoting (respectively) Brown v. Illinois, 422 U.S. 590, 602, 95 S.Ct. 2254, 2261, 45 L.Ed.2d 416 (1975), and Clewis v. Texas, 386 U.S. 707, 710, 87 S.Ct. 1338, 1340, 18 L.Ed.2d 423 (1967).

      . Elstad, 470 U.S. at 319, 105 S.Ct. at 1298.

      . 391 U.S. 346, 88 S.Ct. 1488, 20 L.Ed.2d 630 (1968).

      . Quoting Darwin, 391 U.S. at 350-51, 88 S.Ct. at 1490 (Harlan, J., concurring and dissenting).

      . 946 P.2d 1264, 1270-71 (Alaska App.1997), reversed on other grounds, 988 P.2d 583 (Alaska 1999).

      . Adkinson v. State, 611 P.2d 528, 532 & n. 15 (Alaska 1980) (citing Charles McCormick, The Law of Evidence (2nd ed.1972), § 190, p. 453, and the Commentary to Alaska Evidence Rule 403, fifth paragraph).

      . See Betts v. State, 799 P.2d 325, 330 (Alaska App.1990) (a trial judge's decision to admit or exclude evidence of a person’s bad acts is to be affirmed unless it constitutes an abuse of discretion).

      . 616 P.2d 23, 24-25 (Alaska 1980).

      . See AS 12.55.125(a).

      . See AS 33.16.090-100, especially AS 33.16.100(c)-(d).

      . See id.

      . 582 P.2d 1041 (Alaska 1978).

      . See Bernard DuClos, Fair Game (St.Martins, 1993). This book is now out of print, but it is summarized at the following web site:
      http://www.explorenorth.com/library/weekly/aa021100a.htm (last visited September 30, 2002). See also Walter Gilmour and Leland E. Hale, Butcher, Baker (Onyx Books, 1991).

      . See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (an appellate court is to affirm a sentencing decision unless the decision is clearly mistaken).


text:
    STATE of Alaska, Petitioner, v. Candice AULIYE, Respondent.
    No. A-8084.
    Court of Appeals of Alaska.
    Oct. 25, 2002.

      John A. Scukanec, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Petitioner.
    Margi A. Mock and Wally Tetlow, Assistant Public Defenders, and Barbara K. Brink, Public Defender, Anchorage, for Respondent.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

MANNHEIMER, Judge.

Candice Auliye is charged with violating AS 04.16.050(a) — consuming or possessing alcoholic beverages while younger than twenty-one years. Superior Court Judge Ben J. Esch concluded that the potential penalty for this offense is sufficiently severe that Auliye is entitled to a jury trial and to counsel at public expense if she is unable to afford private counsel. The State has petitioned us to review this ruling.

Any person found guilty of violating AS 04.16.050 must be placed on “probation” until they are twenty-one years old (or for one year, whichever is longer). Although the legislature has chosen a familiar word to describe this penalty, it is different from the probation traditionally imposed under Alaska law. Unlike ordinary probation, neither the sentencing judge nor the defendant has any choice in the matter: the judge is obliged to place the defendant on this lengthy probation, and the defendant has no right to refuse. In other words, the probation is automatic.

Moreover, AS 04.16.050 expressly provides that the terms of the defendant’s probation can include custodial in-patient treatment and community work service. Since the defendant has no right to refuse the probation, the defendant must comply with these conditions, and the court can enforce compliance through its contempt power.

In previous cases, we have held that custodial in-patient treatment and community work service are penalties that trigger the right to trial by jury and the right to counsel at public expense. We therefore conclude that the penalties for violating AS 04.16.050 are sufficiently severe that a defendant is entitled to trial by jury and, if the defendant is indigent, to counsel at public expense.

The history of AS 0^.16.050 in its prior forms, and the legislature’s initial attempt to “de-criminalize” this offense — that is, reduce the penalties to a level where defendants would no longer have the right to trial by jury and, if indigent, the right to counsel at public expense

Until 1995, violation of AS 04.16.050 was a class A misdemeanor. This meant that defendants between the ages of 18 and 21 (that is, youths who were too old to be treated under the juvenile system) faced up to 1 year’s imprisonment if convicted. The legislature discovered that, in practice, this penalty did more to deter enforcement of the law than to deter minors from violating the law. Many law enforcement officers were reluctant to bring criminal charges against a youth for conduct that was often viewed as a rite of passage, especially when conviction would jeopardize the youth’s future military and employment opportunities.

At the same time, the legislature received complaints from parents of youths younger than 18 — that is, youths who were referred to the juvenile justice system for underage drinking. According to these parents, juvenile authorities had their hands full with more serious teenage crime, so the authorities gave low priority to teenage drinking. Offenders often received no greater punishment than a scolding letter which arrived months after the offense.

In 1994 and 1995, the legislature tried an alternate approach. Instead of relying on prison terms to deter teenage drinking, the legislature attacked the problem by requiring the Department of Public Safety to administratively revoke the driver’s license of any minor (older than 13) who consumed or possessed alcoholic beverages, regardless of whether the minor’s consumption or possession of alcoholic beverages was connected to the minor’s operation or control of a motor vehicle. Having adopted this license-revocation approach, the legislature amended AS 04.16.050 to reduce the offense from a class A misdemeanor to a “violation” whose sole penalty was a fine of not less than $100. In another section of the same session law, the legislature amended the juvenile delinquency laws to exempt underage drinkers from juvenile jurisdiction. That is, all such offenders (no matter what their age) would be prosecuted in district court and, if convicted, they would face only a fine and administrative revocation of their driver’s license (rather than the institutionalization or involuntary placement in a foster home that were possible dispositions in a juvenile delinquency proceeding).

One of the perceived benefits of this new approach was that the state would not have to spend so much money to prosecute youths for underage drinking. The legislature anticipated that, because of these changes in the penalty structure, youths charged with underage drinking would no longer be entitled to court-appointed counsel or to trial by jury.

In a pair of decisions issued in 1970 and 1971, Baker v. Fairbanks and Alexander v. Anchorage, the Alaska Supreme Court ruled that the Alaska Constitution guarantees defendants the right to trial by jury and (if indigent) the right to court-appointed counsel if they are charged with an offense that carries a potential penalty of (1) imprisonment, (2) the loss of valuable license (e.g., a driver’s license), or (3) a fine so large as to connote criminality. And in R.L.R. v. State, the supreme court held that juvenile offenders facing similar consequences also have the right to trial by jury.

As just explained, the legislature’s amendments of 1994 and 1995 removed the offense of underage drinking from the juvenile delinquency laws and reduced the punishment for this offense to a small fine. Although youths who consumed or possessed alcoholic beverages would suffer revocation of their driver’s license, the revocation would be imposed by the Department of Public Safety in an administrative proceeding, not by the district court in a sentencing proceeding. In fact, the license revocation could occur even though the youth was never prosecuted for violating AS 04.16.050. The legislature hoped that, with this new penalty structure, the offense of “minor consuming” would not require a jury trial or court-appointed counsel under the Baker-Alexander-R.L.R. test.

But in State v. Niedermeyer, the Alaska Supreme Court ruled that the “administrative” license revocation enacted by the legislature was in fact punitive (because the statute required revocation of the minor’s license even when there was no proof that the minor’s consumption or possession of alcohol had any connection to the operation of a motor vehicle). Because the license revocation was punitive, the court ruled, the State could not impose the license revocation unless it accorded the minor “[all] the safeguards of criminal process that normally apply to criminal punishment”.

Baker v. Fairbanks and Alexander v. Anchorage hold that when a defendant faces the potential loss of a driver’s license, two of the defendant’s prime procedural safeguards are the right to trial by jury and the right to counsel. Thus, after Niedermeyer, the State was obliged to give minors a jury trial, and give indigent minors court-appointed counsel, if the State wished to revoke a minor’s driver’s license based on the minor’s consumption or possession of alcoholic beverages.

The legislature’s response to Niedermeyer: the rewriting of AS 0A.16.050

After the supreme court’s decision in Nied-ermeyer, the legislature was faced with a choice.

One option was to continue the policy of attempting to deter teenage drinking by revoking the driver’s licenses of all minors who consumed or possessed alcoholic beverages. To pursue this policy, the legislature would simply redraw the penalty provisions of AS 04.16.050 so that license revocation was again a direct punishment for this offense. With this change in the statute, the threat of license revocation would remain a deterrent to teenage drinking, but the legislature would have to abandon their other goal of prosecuting minors without giving them the protections of trial by jury and court-appointed counsel.

The legislature chose instead to pursue a modified strategy. They abandoned license revocation as a punishment for first offenders so that first offenders could be prosecuted without jury trials and without court-appointed defense counsel.

The amended version of AS 04.16.050 creates three tiers of defendants: first offenders, “repeat” offenders, and “habitual” offenders. When the court sentences a “repeat” or “habitual” offender, the court must revoke the offender’s driver’s license and must order the offender to perform a specified minimum number of hours of “community work service” (i.e., forced labor). The legislature was aware that both of these penalties trigger a defendant’s rights to jury trial and court-appointed counsel.

(As already explained, the Alaska Supreme Court held in Baker and Alexander that revocation of a driver’s license is the type of penalty that triggers a defendant’s rights to jury trial and court-appointed counsel. And this Court held in Booth v. State, 903 P.2d 1079, 1087-88 (Alaska App.1995), that community work service is also the type of penalty that triggers these procedural rights.)

But the legislature still hoped to allow the government to prosecute first offenders without giving them a jury trial or court-appointed counsel — by keeping the penalty for a first offense small enough to escape Baker, Alexander, and Booth. The problem with this strategy is that, under the Alaska Constitution, a person can not be subjected to increased criminal penalties as a repeat offender unless they were accorded the right to counsel in the proceedings that led to their prior conviction. Pananen v. State, 711 P.2d 528, 531-32 (Alaska App.1985).

Thus, the legislature was apparently caught between Scylla and Charybdis: If they made the penalty for a first offense too severe, first offenders would be entitled to a jury trial and to court-appointed counsel. Yet if they enacted a small penalty for a first offense, so that first offenders could be tried and convicted without a jury trial and without court-appointed defense counsel, the resulting conviction could not be used later to establish the youth’s status as a “repeat” or “habitual” offender.

The drafters of AS 04.16.050 attempted to solve this problem by creating a new kind of criminal penalty. Under the current version of the statute, minors convicted for the first time of consuming or possessing alcoholic beverages still face a small fine (not less than $200 and not more than $600). But, in addition, they face a new penalty that the legislature labeled “probation”.

The nature of the probation authorized by AS 0116.050

AS 04.16.050(e) declares that all youths (including first offenders) who are sentenced for consuming or possessing alcoholic beverages must be placed on probation until they are twenty-one years old (or for one year, whichever is longer). The statute declares that the convicted youth “may not refuse probation”.

As part of this probation, the court “may require the [offender] to pay for and enroll in a juvenile alcohol safety action program, if one is available.” Moreover, the sentencing judge can authorize the officials of the alcohol safety action program to require the youth to submit to in-patient (i.e., residential) treatment, so long as “the judgment specifies the maximum period of inpatient treatment authorized”. In addition to the possibility of enforced residential treatment, subsection (e) requires the sentencing judge to “impose the following conditions of probation”:

(1) the person shall pay for and successfully complete any education or treatment recommended;
(2) the person may not consume inhalants or possess or consume controlled substances or alcoholic beverages, except [those provided by a parent, guardian, or spouse off licensed premises, or as part of medical treatment];
(3) the person shall timely complete any community work ordered, as provided in (f) of this section; and
(4) other conditions the court considers appropriate.

There is one other alternative available to the sentencing judge. Under subsection (b)(1) of the statute, a judge can grant a first offender a suspended imposition of sentence as provided in AS 12.55.085. However, any youth who receives a suspended imposition of sentence must likewise be placed on probation until they are twenty-one years old (or for one year, whichever is longer).

Under AS 12.55.085, any person who receives a suspended imposition of sentence is released to “the charge and supervision of [a] probation officer”, under “the terms and conditions that the court determines”. In addition, AS 04.16.050(b)(1) specifies that the youth’s SIS probation can include “treatment” and “community work” in an amount determined by a “community diversion panel” (which the statute defines as “a youth court or other group selected by the court to serve as a sentencing option”).

Thus, whether a first offender receives a normal sentence or a suspended imposition of sentence, they must be placed on probation until they are twenty-one years old. And, because they are on probation, they can be ordered to submit to custodial in-patient treatment (i.eresidential treatment which includes constraints on the patient’s liberty equivalent to the constraints of incarceration), and they can also be ordered to perform community work service.

Under Alaska law, a person facing either of these penalties has a right to trial by jury and (if indigent) a right to defense counsel at public expense. This Court has ruled that “[cjustodial confinement in a residential alcohol treatment program is the functional equivalent of jail time and therefore constitutes a sentence of imprisonment”. Thus, a person who faces custodial in-patient alcohol treatment as a penalty for an offense is entitled to a jury trial and to court-appointed counsel. Likewise, this Court held in Booth v. State that a person facing the possibility of community work service is entitled to these same procedural rights.

In addition to custodial in-patient treatment and community work service, first offenders can be ordered to submit to “[any] other conditions [of probation] the court considers appropriate”. This clause is potentially quite expansive. For example, to pursue the aim of rehabilitating a youth who has consumed alcoholic beverages, a sentencing judge might require a youth to obey a curfew, or remain enrolled in school past the legally mandated age of 16, or find after-school employment. The judge might also forbid the youth from associating with friends who the judge believes are a bad influence.

Perhaps most significant, the youth’s probation status would give the sentencing judge the, opportunity to effectively revoke the youth’s- driver’s license — the very penalty that, according to the supreme court’s decision in Niedermeyer, can not be imposed unless a defendant is afforded the right to trial by jury and the right to court-appointed counsel.

In Baum v. State, 24 P.3d 577, 581-82 (Alaska App.2001), this Court ruled that a sentencing judge can impose a condition of probation that requires a defendant to refrain from engaging in a licensed activity for a longer period than the amount of license suspension or revocation that could be imposed on the defendant as a direct component of the defendant’s sentence. Indeed, the Alaska Supreme Court has ruled that a sentencing judge can, as a condition of probation, impose a penalty that the judge could not impose as a direct component of the defendant’s sentence. See Brown v. State, 559 P.2d 107, 109-110 (Alaska 1977) (holding that a judge can order a probationer to pay a fine even when the applicable sentencing statute does not authorize imposition of a fine as a direct component of the defendant’s sentence).

It is therefore at least arguable that, as a condition of a first offender’s probation, a judge could forbid the youth from operating a motor vehicle until the end of their probation — ie., until they turned twenty-one.

Why the probation authorized by AS 0k-16.050 differs from normal probation, and why we hold that a youth charged with violating AS 0k-16.050 is entitled to a jury trial and, if indigent, to court-appointed defense counsel

Normally, probation is a counterpart to a suspended or partially suspended sentence. It is a contract between the court and the defendant: the defendant consents to be supervised and to live under the conditions imposed by the court in exchange for the court’s agreement to suspend imposition of the defendant’s sentence or to suspend execution of a prison term and/or a fine. Because probation is a contract, and because this contract allows a judge to control a' defendant’s life in ways that the defendant may deem more burdensome than normal criminal penalties, a defendant is free to refuse probation and to insist on a normal sentence.

But the probation mandated by AS 04.16.050(e) is not a contract. It has no relationship to whether any portion of the defendant’s sentence is suspended. Nor is this probation the result of a voluntary agreement between the sentencing judge and the offender. The sentencing judge must place the defendant on probation until the defendant is twenty-one years old, and the defendant has no discretion to refuse.

In other words, this “probation” is unlike normal probation because it is automatic. And because all first offenders automatically receive this “probation”, a sentencing judge automatically has the authority to order a first offender to submit to custodial in-patient treatment, to engage in community work service, and perhaps to surrender the privilege to operate motor vehicles — all penalties that trigger the defendant’s right to trial by jury and the defendant’s right to court-appointed counsel if indigent.

Seven centuries ago, the English philosopher William of Occam described a philosophical principle that is still employed to good effect today: the best explanation of a condition or phenomenon is the one that is the simplest, ie., the one that uses the fewest assumptions or hypotheses to adequately explain what is observed. This principle, known as Occam’s razor, is used to pare away extraneous labels and concepts, thus allowing the unadorned truth of the matter to be seen. We now use Occam’s razor on the case before us.

All youths convicted of violating AS 04.16.050 for the first time are automatically placed on “probation”. As a consequence, in all such eases, sentencing judges are empowered to impose penalties on these youths that are sufficiently severe to trigger the rights to jury trial and court-appointed counsel. Using Occam’s razor, we strip away the reference to “probation”, and what is left is the unadorned truth: In all cases, first offenders convicted of violating AS 04.16.050 can be punished with penalties that are sufficiently severe to trigger the rights to jury trial and court-appointed counsel.

The statute does not oblige sentencing judges to impose these penalties on a first offender. But, as we held in Booth v. State, it is the possibility of these penalties that triggers the defendant’s procedural rights.

We therefore hold that all youths (including first offenders) who are charged with violating AS 04.16.050 are entitled to trial by jury and, if they are indigent, to counsel at public expense.

The State’s alternative construction of AS 0j.16.Q50, and, why we reject it

In its arguments to this Court, the State acknowledges that penalties such as community work service and custodial in-patient treatment trigger the right to jury trial and the right to court-appointed counsel. But the State suggests that AS 04.16.050 does not authorize sentencing judges to force first offenders to engage in community work service or custodial in-patient treatment. This suggestion is based on the State’s unusual interpretation of what AS 04.16.050(e) means by “probation”.

The State concedes that the probation described in AS 04.16.050(e) is not like normal probation, for there is no suspended sentence hanging over the defendant. But the State takes this fact and gives it an unexpected twist:

Because the statute requires sentencing judges to place first offenders on probation even though, in most cases, there will be no suspended sentence to impose in the event that the defendant fails to honor the terms of probation, the State suggests that the legislature must not have intended to force defendants to comply with the terms of their probation. Instead, the , State argues, the legislature crafted AS 04.16.050(e) with the expectation that defendants would be free to disregard the terms of their probation. The only real purpose of the probation, according to the State, is to establish the defendant’s status as a second offender if the defendant is ever convicted again.

We find the State’s suggestion far-fetched. We can think of few things that would be more certain to undermine respect for the law than to require a sentencing judge to impose conditions of probation that, by design, can never be enforced. AS 04.16.050(e) requires judges to place all first offenders on probation, and the statute also specifies the conditions of probation that a judge must impose. It seems improbable (to say the least) that the legislature would require sentencing judges to engage in the charade of ordering youths to comply with terms of probation if the legislature intended these terms of probation to be unenforceable.

The State’s request that we strike all provisions of the statute that allow a sentencing judge to require a first offender to submit to in-patient treatment, to engage in community work service, or to give up their right to drive

At oral argument, the State suggested an alternative way to resolve this case: to strike those portions of AS 04.16.050(e) that authorize a sentencing judge to impose custodial in-patient treatment, community work service, or any other penalty that would trigger the rights to jury trial and court-appointed counsel. We reject this suggestion for two reasons.

First, striking these provisions of the statute would leave little of the legislature’s intended result. The legislature clearly wanted to.subject underage drinkers to rehabilitative efforts that might include custodial in-patient treatment. They also intended to punish and deter underage drinkers by making them perform community work ■service. The importance of these two sentencing goals is apparent from the fact that in-patient treatment and community work service are listed separately among the permissible terms of probation in AS 04.16.050(e) and (g).

Second, even if we followed the State’s suggestion and struck the provisions of the statute that authorize a sentencing judge to impose custodial in-patient treatment and community work service for first offenders, so that first offenders could be tried and convicted without a jury trial and without counsel, a major constitutional "problem would remain. This problem would surface if the offender was ever prosecuted again under AS 04.16.050.

As explained above, we held in Pananen v. State that a person can not be subjected to increased criminal penalties as a repeat offender unless they were accorded the right to counsel in the proceedings that led to their prior conviction. If we were to strike the major penalty provisions for first offenders, so that first offenders could be tried without counsel, Pananen says that the resulting conviction could not be used to establish the offender’s status as a repeat offender in a subsequent prosecution. Thus, the State’s suggestion would defeat the legislature’s scheme of increased penalties for “repeat” and “habitual” offenders (as these terms are defined in subsections (c) and (d) of AS 04.16.050).

Conclusion

The decision of the district court is AFFIRMED. Auliye is entitled to a jury trial and, if she is indigent, to court-appointed counsel.

      . See AS 04.16.050 & AS 04.16.180 as enacted in SLA 1980, ch. 131, § 3, and as amended by SLA 1983, ch. 109, § 8.

      . See AS 12.55.135(a).

      . See Minutes of the Senate Finance Committee for March 22, 1995, Minutes of the House Judiciary Committee for April 21, 1995, and Minutes of the House Finance Committee for May 3, 1995, all discussing SB 46.

      . See Minutes of the Senate Finance Committee for March 22, 1995, discussing SB 46.

      . See AS 28.15.183-184 (as enacted in SLA 1994, ch. 71, § 1).

      . See SLA 1995, ch. 81, § 1.

      . See former AS 47.10.010(b)(5) (as enacted in SLA 1995, ch. 81, § 5), now recodified as AS 47.12.030(b)(5).

      . See former AS 47.10.080(b), now recodified as AS 47.12.120(b).

      . Alexander v. Anchorage, 490 P.2d 910, 913 (Alaska 1971); Baker v. Fairbanks, 471 P.2d 386, 401-02 (Alaska 1970).

      . 487 P.2d 27, 31-33 (Alaska 1971).

      . This aspect of AS 28.15.183 was changed in 1999; see SLA 1999, ch. 88, § 5. Under the current version of the statute — specifically, under subsection (i)(2) — the minor’s driver’s license must be restored if the government does not prosecute the minor for consuming or possessing alcoholic beverages, or if the charge is dismissed, or if the minor is acquitted at trial.

      . 14 P.3d 264, 269-271 (Alaska 2000).

      . Id. at 272.

      . Enacted in SLA 2001, ch. 65, §§ 1 and 2.

      . See AS 04.16.050(c) ("repeat” offenders) and 04.16.050(d) (“habitual” offenders).

      .AS 04.16.050(g).

      . AS 04.16.050(b)(1).

      . See AS 12.55.085(a).

      . AS 04.16.050(b)(1).

      . Dodge v. Anchorage, 877 P.2d 270, 272 (Alaska App.1994) (citing Lock v. State, 609 P.2d 539 (Alaska 1980)); cf. Hester v. State, 777 P.2d 217, 219 (Alaska App.1989) (the addition of thirty days' in-patient treatment as a condition of the defendant’s probation, when custodial treatment was not specified in the original judgement, constituted . an illegal increase in the defendant's sentence when the in-patient treatment program subjected the defendant to restraints equivalent to custody).

      . Booth, 903 P.2d at 1087-88.

      . AS 04.16.050(e)(4).

      . Alvin v. State, 42 P.3d 1156, 1159-1160 (Alaska App.2002); Joubert v. State, 926 P.2d 1191, 1193 (Alaska App. 1996) (quoting McRae v. State, 909 P.2d 1079, 1083 (Alaska App.1996)).

      . See Brown v. State, 559 P.2d 107, 111 n. 13 (Alaska 1977); Bland v. State, 846 P.2d 815, 818 (Alaska App.1993); Alfred v. State, 758 P.2d 130, 131 (Alaska App.1988).

      . See Webster's New World Dictionary of American English (Third College Edition, 1988), p. 937.

      . See Booth, 903 P.2d at 1088.

      . 711 P.2d 528, 531-32 (Alaska App. 1985).


author: STEWART, Judge.

text:
    Henry WASSILIE, Appellant, v. STATE of Alaska, Appellee.
    No. A-7266.
    Court of Appeals of Alaska.
    Oct. 25, 2002.
    Kathleen A. Murphy, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for Appellant.

      Maarten Vermaat and Kenneth M. Rosen-stein, Assistant Attorneys General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

STEWART, Judge.

Henry Wassilie was convicted of one count of second-degree assault for assaulting his mother, Mary Wassilie, and one count of fourth-degree assault for assaulting his father, Evan Wassilie. During the trial, Evan was asked if he spoke to the village police about the assaults. He answered that he “didn’t see” police officers at his house on night of the assault. Wasillie’s attorney interrupted Evan’s direct examination by the State to consult with his client. After that consultation, the defense attorney spoke with the prosecutor, and they both told the court that Evan was released. The State later introduced as prior inconsistent statements Evan’s statements to Village Police Chief Steven Alexie that Henry Wassilie hit and kicked both him and Mary.

When this case first appeared before us, we remanded for further findings on the circumstances of Evan Wassilie’s dismissal as a witness at trial. Superior Court Judge Dale O. Curda found on remand that Wassi-lie’s defense counsel made a tactical decision not to cross-examine Evan and that both parties consented to Evan’s dismissal.

The remaining legal issue in this case is whether the trial court properly admitted Evan’s out-of-court statement to Chief Alexie as a prior inconsistent statement under Alaska Rule of Evidence 801(d)(1)(A). Evidence Rule 801(d)(1)(A) provides:

A statement is not hearsay if ... the de-clarant testifies at the trial or hearing and the statement is inconsistent with the de-clarant’s testimony.

Wassilie argues that Evan’s statement to the police should have been excluded because the prosecutor did not lay a sufficient foundation for admissibility under Evidence Rule 801(d)(1)(A). He also claims that the statement should have been excluded because Evan’s genuine loss of memory at trial was not inconsistent with his prior statement for purposes of the rule.

Evan’s testimony was translated from Yu-pik to English. During direct examination, the State asked Evan whether his wife, Mary, was injured the previous winter, and Evan testified that she was injured. However, he could not answer how she was injured. He also could not remember when she was injured. Evan said it was hot out and the sun was up at the time of the assault, but the assault actually occurred on January 8, 1998.

Evan also testified that he could not remember the last time Henry Wassilie, the defendant, was at his house. When the State asked him what time of year Wasillie last lived at his house, he answered, “1917. He was a little boy. But he was always out on the tundra hunting.” The State then asked when Henry was born, and Evan answered, “I think it was in '67, but I don’t think I have it right, it’s on the papers.” At that point, the following exchange occurred:

Prosecutor: Do you remember talking to Chief Alexie about the last time your wife lived in your home? ... Do you remember the police coming to your house this winter, Chief Alexie and VPO Jerry Wassi-lie? Chief Steven Alexie and VPO Jerry Wassilie.
Evan: Yes. I didn’t see any of those guys.
Prosecutor: Does Henry Wassilie live at your house any more?
Evan’s translator: He just said, “I can’t do it.”

At this point, Wassilie’s attorney consulted with Wassilie and informed the State that Evan could be released from further testimony. The State agreed to end questioning, and the court excused Evan with both parties’ consent.

Later in the trial, the State called Chief Alexie and asked him if he interviewed Evan on the night of the alleged assault. Wassilie objected on hearsay grounds. Judge Curda found that Evan had a loss of memory and admitted the statement to Chief Alexie as a prior inconsistent statement under Evidence Rule 801(d)(1)(A).

Chief Alexie testified as follows:
Prosecutor: What did Evan tell you happened that night?
Alexie: That both he and Mary got beat up by Henry.
Prosecutor: Okay. Did he describe it to you at all?
Alexie: Yes. By hitting with his fists and sometimes kicking also.

Chief Alexie also testified that Evan said he kept his eyes closed to try to avoid the beatings, said that Mary was “crying and wailing aloud” during the beatings, and said that during the beatings Henry announced that he was getting fed up with all of them.

We first address Wassilie’s claim that the foundation for Evan’s prior statement was inadequate. Evidence Rule 801(d)(1)(A) sets out the foundation requirement for prior inconsistent statements:

Unless the interests of justice otherwise require, the prior statement shall be excluded unless (i) the witness was so examined while testifying as to give the witness an opportunity to explain or to deny the statement or (ii) the witness has not been excused from giving further testimony in the action.

Wassilie argues that Evan was not “so examined while testifying as to give [him] an opportunity to explain or deny the [prior inconsistent] statement.”

During its direct examination, the State did not directly confront Evan with his prior statement and ask him to explain or deny it. However, the State did ask Evan if he remembered the police coming to his house (at which time Chief Alexie took Evan’s statement) and asked him if he remembered talking to the police about the last time his wife lived in his home. Evan testified that he “did not see” Chief Alexie and Village Police Officer Wassilie at his house. The defense then interrupted the examination and asked the prosecutor to stop questioning Evan, apparently because Wassilie was concerned about Evan’s health.

In McMaster v. State, , the Alaska Supreme Court reviewed the sufficiency of the foundation for a prior inconsistent statement under former Alaska Rule of Civil Procedure 43(g)(ll)(c), the predecessor of Evidence Rule 801(d)(1)(A). The court announced that the foundational requirement “should not be mechanically applied in every instance.” The witness whose prior statement was admitted in McMaster was five years old. The court noted that a trial court must be given wide latitude when a young child is called as a witness. The testimony of the child in question in McMaster highlighted the problem of a young witness because the transcript showed that the child gave unresponsive answers to straight-forward questions and inconsistent answers to questions put by both parties. Although the foundation for the child’s prior statement did not technically comply with the rule, the court held that the trial court did not abuse its discretion by overruling McMaster’s foundational objection.

In this case, Evan was not a child of tender years but was over 90 years old. The State asked Evan if he remember talking with the officers, and Evan responded that he “didn’t see” the officers. We note from our examination of the transcript that at points during his examination, Evan was not able to answer straight-forward questions and some of his answers were inconsistent. And because of apparent concerns about Evan’s health, the defense urged that Evan be excused during the prosecutor’s direct examination. Thus, Evan’s advanced age and apparent poor health presented similar challenges for the superior court as did the testimony of the five-year-old in McMaster. And there is no question of bad faith on the prosecutor’s part by agreeing to Wassilie’s request for Evan’s discharge. Under these circumstances, we conclude that the superior court did not abuse its discretion when it admitted Evan’s prior inconsistent statement with the minimal foundation presented.

Wassilie next argues that Evan’s pri- or statement is not “inconsistent” when, as the trial judge found, Evan had no memory. In Richards v. State, the Alaska Supreme Court held that a videotape in which a witness re-enacted the offense was admissible as a prior inconsistent statement after the witness testified that he could not remember much of what happened on the night of the offense. The court stated, “When [the witness] testified at trial that he had forgotten much of what he had seen that night, the tape was admissible as a prior inconsistent statement.” The court did not address the distinction between feigned and genuine memory loss.

In Van Hatten v. State we held that feigned memory loss at trial is inconsistent with an earlier statement for purposes of Rule 801. Van Hatten had argued that a witness’s prior statement was not inconsistent for purposes of Rule 801, because a witness’s feigned inability to remember amounts to a refusal to testify. However, we concluded that the Richards decision implicitly adopted “a broad definition of inconsistency” and determined that there was no reason to adopt a stricter standard when a witness feigned a memory loss. And in Brandon v. State, we upheld the admission of a witness’s prior statements as inconsistent even though the witness had no memory at trial of those prior statements.

Also, it is noteworthy that most federal circuit courts have not distinguished between actual and feigned memory loss in interpreting Federal Rule of Evidence 801(d)(1)(A)— which is similar to Alaska Rule of Evidence 801(d)(1)(A) but only applies to prior statements made under oath. Three circuits have held that if a witness testifies not to remember the prior statement at trial, the prior statement is inconsistent for purposes of Rule 801(d)(1)(A). Those circuits did not address the distinction between feigned and genuine memory loss. In United States v. Gajo, the Seventh Circuit declined to limit Rule 801(d)(1)(A) to cases of turncoat witnesses and held that “[i]n some cases, a witness’s genuine lack of memory may be inconsistent with his prior testimony.”

Only two circuits have implied that there may be a distinction between cases of feigned and genuine memory loss. The Fifth Circuit has left open the issue of whether Rule 801(d)(1)(A) applies to genuine memory loss. And, the Third Circuit has implied in dicta that a prior statement may not be inconsistent with genuine memory loss at trial. However, the Third Circuit’s decision was issued in 1981, and the position it stated in dicta has not been adopted by the court.

Consistent with the majority view of the federal circuits involving cases of memory loss, we confirm that the rule announced in Richards extends to cases of genuine as well as cases of feigned memory loss. If a witness claims not to remember the substance of a prior statement at trial, the witness’s trial testimony is inconsistent with the prior statement for purposes of Rule 801(d)(1)(A). It is irrelevant for purposes of the rule whether the claimed memory loss is genuine or feigned because the claimed lack of memory at trial (whether genuine or feigned) is inconsistent with the witness’s earlier claim to remember. We conclude that the superior court did not abuse its discretion by ruling that Evan Wassilie’s pri- or statements were inconsistent with his genuine lack of memory at trial.

Conclusion

The judgment of the superior court is AFFIRMED.

      . AS 11.41.210(a)(1).

      . AS 11.41.230(a)(1).

        .See Wassilie v. State, Memorandum Opinion and Judgment No. 4492, 2-6 (Alaska App., November 14, 2001).

      . 512 P.2d 879 (Alaska 1973).

      . Former Alaska R.Civ.P. 43(g)(ll)(c) which was applicable to criminal proceedings under former Criminal Rule 26(a) at the time of McMaster's trial provided:
      Prior Inconsistent Statement. A witness may be impeached by evidence that he has made at other times statements inconsistent with his present testimony. The statements must first be related to him, with the circumstances of times, places, and persons present, and the witness shall be asked whether he has made such statements and, if so, shall be allowed to explain them. If the statements are in writing, they shall be shown to the witness before he is asked any question concerning them.

      . See McMaster, 512 P.2d at 882-84.

      . Id. at 882.

      . Id. at 880.

      . Id. at 883-84.

      . Id. at 884.

      . See id. at 884; Richards v. State, 616 P.2d 870, 871-72 (Alaska 1980); Bodine v. State, 737 P.2d 1072, 1074 (Alaska App.1987).

      . 616 P.2d 870 (Alaska 1980).

      . See id. at 871.

      . Id. at 871.

      . 666 P.2d 1047 (Alaska App.1983).

      . Id. at 1051.

      . Id.

      . 839 P.2d 400 (Alaska App.1992).

      . Brandon, 839 P.2d at 411-12.

      . See United States v. Gajo, 290 F.3d 922, 930-32 (7th Cir.2002); United States v. Milton, 8 F.3d 39, 46-47 & n. 9 (D.C.Cir.1993); United States v. Russell, 712 F.2d 1256, 1258 (8th Cir.1983); United States v. Distler, 671 F.2d 954, 958 (6th Cir.1981); United States v. Marchand, 564 F.2d 983, 999 (2d Cir.1977); see also Comment, The Forgetful Witness, 60 U.Chi.L.Rev. 167, 189-90 (1993). But see United States v. Bigham, 812 F.2d 943, 946-47 & n. 2 (5th Cir.1987) (leaving open whether Rule 801 applies to cases of genuine memory loss); United States v. Palumbo, 639 F.2d 123, 128 n. 6 (3d Cir.1981) (implying in dicta that a prior statement is not inconsistent with genuine memory loss at trial).

      . See Milton, 8 F.3d at 46-47 & n. 9; Russell, 712 F.2d at 1258; Distler, 671 F.2d at 958.

      . 290 F.3d 922 (7th Cir.2002).

      . Gajo, 290 F.3d at 930-32.

      . See Bighorn, 812 F.2d at 946-47.

        .See Palumbo, 639 F.2d at 128 n. 6.


text:
    Ronald J. AHVAKANA, Appellant, v. STATE of Alaska, Appellee.
    No. A-8142.
    Court of Appeals of Alaska.
    Nov. 1, 2002.
    David Reineke, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for Appellant.
    Mary E. Fischer, Assistant District Attorney, Barrow, Susan A. Parkes, District Attorney, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

COATS, Chief Judge.

Ronald Ahvakana was convicted, based upon his plea, of criminally negligent homicide, a class B felony. Superior Court Judge Michael Jeffery imposed the maximum term of 10 years of imprisonment. Ahvakana appeals to this court, arguing that the sentence is excessive. We remand.

On Sunday, October 24, 1999, Ahvakana called to invite his cousin over to his residence to drink. E.S. answered the phone and told Ahvakana that her brother was out of town but that she would come over to his place to drink. E.S. went over to Ahvakana’s residence and drank a large quantity of alcoholic beverages while watching movies. According to Ahvakana, E.S. indicated an interest in sexual activity and pulled down her pants. She then passed out. Ahvakana stated that he believed that she had not really passed out and put his fingers into her vagina and rectum. Ahvakana felt blood but concluded that E.S. had started her menstrual cycle. At some point in the evening, Ahva-kana went to sleep. In the morning, he discovered that E.S. was lying on the floor next to his bed dead. There was a significant amount of blood on and under her body. After several minutes of cleaning up the blood from E.S. and himself, Ahvakana called the police.

The police found multiple scratches and bruises on E.S. She had human bite marks on her back, buttocks, and inner thigh. She was lying in a pool of blood, which had come from the pelvic area of her body. The doctor who performed the autopsy found a massive tear to E.S.’s rectal and anal area and concluded that E.S. had died from bleeding related to the tear. He concluded that the initial tear had been caused by a foreign object.

The State charged Ahvakana with murder in the second degree and sexual assault in the second degree. Ahvakana ultimately entered a plea to criminally negligent homicide.

Ahvakana was thirty-seven years old at the time of sentencing. In 1990, he had been convicted of two counts of assault in the fourth degree, a class A misdemeanor, for physically abusing his daughters. Ahvakana was sentenced to a year suspended sentence, and the convictions were set aside in 1994. In 2000, Ahvakana was convicted of sexual abuse of a minor in the second degree, a class B felony, for having sexual intercourse with a minor under the age of sixteen. The court sentenced Ahvakana to 5 years with 2 years suspended on this offense. Ahvakana was on release on this offense at the time he committed the homicide. But because he had not been convicted of the sexual abuse of a minor charge at the time he had committed the homicide, Ahvakana was a first felony offender for purposes of presumptive sentencing. Ahvakana’s sentence for. criminally negligent homicide is consecutive to his sexual abuse of a minor sentence.

Criminally negligent homicide is a class B felony with a maximum sentence of 10 years’ imprisonment. The presumptive term for a second felony conviction is 4 years and the presumptive term for a third felony conviction is 6 years. Judge Jeffery found that four aggravating factors applied to Ahvakana’s offense: (1) that Ahvakana “employed a dangerous instrument in furtherance of the offense” (Ahvakana conceded that E.S.’s injuries, whether caused by a fist or another object, were sufficiently serious to imply that a dangerous instrument was used); (2) that Ahvakana should have known that E.S. was particularly vulnerable; (3) that “the conduct constituting the offense was among the most serious conduct included in the definition of the offense;” and, (4) that Abvakana was on release on another felony charge.

In sentencing Ahvakana, Judge Jeffery concluded that Ahvakana had committed a particularly serious criminally negligent homicide because his crime was actually “closer to a manslaughter case.” Judge Jeffery reasoned that because of Ahvakana’s extreme intoxication, his culpable mental state went beyond criminal negligence and actually constituted recklessness, thus supporting a manslaughter charge. He pointed out that, at a minimum, Ahvakana should have been aware, and would have been aware but for his intoxication, with the amount of blood that was flowing from E.S., that he needed to summon aid rather than continue to take sexual liberties. He pointed out that E.S.’s injuries seemed to support the conclusion that Ahvakana put his fist and arm into E.S.’s rectum or vagina while he was excited or drunk and caused a huge tear which caused E.S.’s death.

We set out guidelines for sentencing first felony offenders convicted of class B felonies in State v. Jackson, In Jackson, we stated:

1. A typical offender committing a typical or moderately aggravated offense should receive an unsuspended term of a year or more to serve. The upper limit in such cases should be four years, reflecting our decision in Austin v. State, 627 P.2d 667, 667-58 (Alaska App.1981). In Austin, we indicated that first offenders should normally receive a sentence more lenient than the presumptive term for a second felony offender.
2. For an offense that is exceptionally aggravated — one that involves the existence of significant statutorily specified aggravating factors or other extraordinarily aggravated circumstances — a term of up to six years of unsuspended incarceration, the presumptive term for a third felony offender, would be justified.

Therefore, the sentence which Judge Jeffery imposed falls outside the guidelines which we set out in Jackson. Judge Jeffery did not address the Jackson guidelines.

In imposing sentence, Judge Jeffery did rely on the case of Rosendahl v. State. The defendant in Rosendahl was convicted of negligent homicide and failure to render assistance under the former criminal code. Judge Jeffery pointed out that Rosendahl had received a sentence of 10 years of imprisonment, which had been upheld by the supreme court. But Rosendahl is distinguishable.

Rosendahl, driving while intoxicated, struck and killed a woman and then left the scene. Rosendahl had two prior convictions for operating a motor vehicle while under the influence of intoxicating beverages as well as five speeding convictions within a three and one-half-year period. The court emphasized the dangers of driving while intoxicated and Rosendahl’s record of these prior offenses in upholding his 10-year sentence.

The important distinction between Rosen-dahl and the current case is that Rosendahl was sentenced under a different statutory scheme. Under the former criminal code, negligent homicide was a form of manslaughter and was punishable by a maximum term of imprisonment of 20 years. Therefore, Rosendahl was sentenced under a different statutory scheme and his sentence was only half of the statutory maximum. It is therefore not persuasive authority for upholding the sentence in the present case.

Furthermore, the supreme court has consistently held that a sentencing court should not impose a maximum sentence unless the defendant can be characterized as a “worst offender.” Although he imposed a maximum sentence, Judge Jeffery did not find that Ahvakana was a “worst offender.”

We accordingly conclude that Judge Jeffery’s sentencing remarks are insufficient to support the sentence which he imposed. We VACATE the sentence and REMAND for resentencing.

      . AS 11.41.130(a).

      . AS 11.41.130(b); AS 12.55.125(d).

      . AS 12.55.125(d)(1), (2).

      . AS 12.55.155(c)(4), (5), (10), (20).

      . 776 P.2d 320, 326-27 (Alaska App.1989).

      . Id. at 326 (footnote omitted).

      . 591 P.2d 538 (Alaska 1979).

      . Id.

        . Id. at 539.

      . Id.

      . Id. at 538 n. 1, 540 n. 7.

      . Hintz v. State, 627 P.2d 207, 210 (Alaska 1981).