author: Judge MANNHEIMER.

text:
    Jackie Russell ADAMS, Appellant, v. STATE of Alaska, Appellee.
    Court of Appeals No. A-11450
    Court of Appeals of Alaska.
    March 1, 2019
    Marjorie Mock, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
    Tamara E. deLucia, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards (initial brief) and Jahna Lindemuth (supplemental brief), Attorneys General, Juneau, for the Appellee.
    Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge.

      Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).

   Judge MANNHEIMER.

Jackie Russell Adams appeals his conviction for second-degree murder. Among other things, Adams asserts that he is entitled to a new trial because, during the State's closing argument, the prosecutor openly suggested that if the jurors returned an erroneous verdict, this verdict would be corrected later by the courts.

We agree with Adams that the prosecutor's argument was improper, and we further conclude that this improper argument requires reversal of Adams's conviction.

Background facts

Adams was convicted of second-degree murder for stabbing and killing Andrew Wilson at the Inlet Inn in Anchorage in January of 2012.

On the evening in question, both men had been among the people drinking in Adams's hotel room. After Wilson spit onto the carpet, Adams physically escorted Wilson out of the room and locked the door (leaving Wilson in the hallway). From the hallway, Wilson kicked the door twice. Adams opened the door and came out of the room, into the hallway, where he and Wilson tussled.

Eventually, the two men stopped fighting, and Adams returned to his room. But a little later, Wilson kicked the door again. This time, when Adams opened the door, there was another scuffle. At the end of this scuffle, Adams re-entered the room holding a steak knife, and he declared that he had stabbed Wilson. Wilson was in fact stabbed in the stomach, and he later died from this wound.

At trial, Adams's attorney conceded that Adams stabbed Wilson, but the defense attorney contended that Wilson had been drunk and violent, and that Adams had stabbed Wilson in self-defense, or in defense of the other people in the room, or in defense of the premises against a violent intruder.

The jury rejected these defenses and found Adams guilty of second-degree murder.

Facts relating to the prosecutor's improper argument to the jury

At the close of Adams's trial, during the defense closing argument, Adams's attorney discussed the jury instruction defining the concept of "reasonable doubt." This instruction (Alaska Criminal Pattern Jury Instruction 1.06) stated in pertinent part:

Proof beyond a reasonable doubt must be proof of such a convincing character that, after consideration, you would be willing to rely and act upon it without hesitation in your own important affairs.

During his summation, Adams's attorney urged the jurors to equate the concept of "proof beyond a reasonable doubt" with the kind of convincing proof that the jurors would require before deciding to withdraw life support from a loved one:

Defense Attorney : [Proof beyond a reasonable doubt requires you to have] the same degree of confidence that you would have to have in ... another important affair in your life, and to act without hesitation in that important affair.
...
Important affairs in your life, ladies and gentlemen. What would those be? ... Well, important affairs presumably would be ... the same types of stakes that we're dealing with here: things where you have to make a decision that cannot be changed.
...
Permanent, irreversible decisions. ... That's the type of decision you're about to make in this case. ... There's only one really good example I can think of, frankly. ...
[Objection by the prosecutor; the trial judge declines to intervene ]
[Defense Attorney continues :] Important affairs in your life. Potentially, ladies and gentlemen, one example of that might be terminating life support for a loved one. ... It's a decision, an extremely important decision, that you may have to make at some point in your life. Maybe some of you have already had to make that decision; I don't know. But it's an important affair in your life. It's permanent; it's irreversible. That's analogous to the decision that you are being asked to make in this case.

As noted in this excerpt from the trial transcript, when the prosecutor objected to the defense attorney's argument, the trial judge declined to intervene. Instead, the judge told the prosecutor that he would simply caution the jury to disregard any arguments of counsel that misstated the law. But the judge never indicated, one way or the other, whether he thought that the defense attorney's argument actually misstated the law.

Having received this response from the trial judge, the prosecutor addressed this issue in her rebuttal summation. She told the jurors that the defense attorney's analogy was wrong:

Prosecutor : [The defense attorney] talked repeatedly about this term "permanent and irrevocable", and [argued to you that] ... you should equate [your decision in this case] to your life's [decisions] that are permanent and irrevocable. I would disagree. I think everybody in this room knows that there's a number of procedures after this court hearing happens.
Your decision is an important one, and I [by] no means mean to trivialize the burden of proof beyond a reasonable doubt. It's a high burden. But if he wants, Mr. Adams can ask the judge to set aside the verdict. He can appeal it to the Court of Appeals. You know that there's a Supreme Court after that. It is not a permanent and irrevocable ... decision.

At this point, Adams's attorney objected. He argued that the various ways in which the trial result might later be judicially altered "are not considerations the jury should be thinking about." In response, the judge cautioned the jurors to disregard any arguments of counsel that misstated the law. But, just as in the preceding bench conference, the judge gave the jurors no indication as to whether he thought that the prosecutor had, in fact, misstated the law.

Having received this response from the trial judge, the prosecutor then restated her point (without further objection):

Prosecutor : [Your verdict] is not permanent and irrevocable, the way it is when you decide to kill a loved one. Don't let that hyperbole skew your decision.

Following deliberations, the jury found Adams guilty of second-degree murder.

Why we conclude that both the prosecutor's and the defense attorney's arguments were improper

The concept of "proof beyond a reasonable doubt" is difficult, if not impossible, to define with precision. At the time of Adams's trial, Alaska Criminal Pattern Jury Instruction 1.06 defined "proof beyond a reasonable doubt" as evidence which, upon consideration, is so convincing that a person would be willing to act upon it, without hesitation, in their own important affairs. We recently criticized this formulation in Roberts v. State , 394 P.3d 639, 644 (Alaska App. 2017).

Here, when Adams's defense attorney delivered his summation to the jury, he urged the jurors to equate the concept of "proof beyond a reasonable doubt" with the kind of convincing proof that the jurors would require before deciding to withdraw life support from a loved one.

This argument was improper because it suggested that the jurors should decide Adams's case as if they had a powerful, if not overwhelming, personal interest in the outcome. The defense attorney told the jurors that they should not be satisfied with the State's evidence unless it was so convincing that they would be willing to act on it, without hesitation, when making a decision that was fraught with emotion and which would have irrevocable and irremediable consequences for one or more people whom they loved.

When the prosecutor objected to the defense attorney's argument, it would have been better if the trial judge had told the jurors that the defense attorney's argument was improper for these reasons, and if the judge had reminded the jurors that they had been selected precisely because they were capable of being disinterested judges of Adams's case - capable of deciding Adams's guilt or innocence without having their decision "influenced by sentiment, prejudice, [or] passion." Indeed, the jurors had taken an oath to abide by this standard.

But after the prosecutor obtained no remedy from the trial judge, she responded to the defense attorney's argument with improper argument of her own.

When the prosecutor addressed the defense attorney's argument during her rebuttal, the prosecutor did not focus solely on the impropriety of the defense attorney's analogy (a decision whether to withdraw life support from a loved one). Instead, the prosecutor also urged the jurors not to view their decision as final - assuring the jurors that, if they made a mistake, the trial judge or an appellate court would fix it later. This argument was almost certain to mislead the jurors regarding the importance and finality of their decision.

It is true that trial judges have the authority to vacate a jury's verdict and grant a new trial under Alaska Criminal Rule 33(a) based on "any claim of trial error or pretrial error that would justify reversal of [the] conviction", or based on the judge's assessment that the verdict is against the clear weight of the evidence.

But this authority is circumscribed. For example, when a defendant claims that the jury's verdict is against the weight of the evidence, a judge may grant a new trial only if the judge concludes that the jury's verdict is manifestly against the weight of the evidence - i.e. , that the jury's view of the evidence "is plainly unreasonable and unjust." Likewise, claims that a verdict should be overturned based on newly discovered evidence "are not favored by the courts, and ... are viewed with great caution."

An appellate court has even less authority to second-guess a jury's weighing of the evidence. An appellate court must uphold a jury's verdict unless, even viewing the evidence (and all reasonable inferences to be drawn from it) in the light most favorable to the jury's verdict, no reasonable person could have concluded that the government had proved its case.

In other words, even though our legal system provides certain avenues for challenging a jury's verdict, there are significant limits on judicial authority to interfere with a jury's decision. The prosecutor was technically correct in saying that the jury's decision was not as final and irrevocable as a decision to withdraw life support. But the prosecutor's argument was materially misleading to the extent it suggested that the judiciary could correct any mistake the jurors made. That is simply not true.

In addition, the prosecutor's remarks could be interpreted as downplaying the importance of the jury's decision. One implication of the prosecutor's remarks is the suggestion that, if the jurors were having a difficult time deciding whether the State had proved Adams's guilt, they could simply return a mutually agreeable verdict and then trust that things would be sorted out later by the courts.

The courts of several other jurisdictions have found this type of prosecutorial argument to be reversible error. For example, in Johnson v. State , the Maryland Court of Appeals (that state's highest court) ruled that a similar argument entitled the defendant to a new trial.

In Johnson , the defense attorney urged the jury to "think very, very carefully" before reaching its verdict, because a verdict "is not exchangeable" and "not returnable tomorrow." In rebuttal, the prosecutor told the jurors that the defense attorney "[was] not being quite honest [with] you" when the defense attorney characterized the verdict as final. The prosecutor told the jurors that the defense attorney's assertion was misleading because a defendant can appeal a guilty verdict, and because "[a defendant has] rights of the appeal [that] go all the way up to the [United States] Supreme Court."

The Maryland high court concluded that the prosecutor's argument was reversible error:

The message conveyed by the [prosecutor's] remarks was plain .... The implication was that the jurors need not be unduly concerned about convicting Johnson. If the conviction turned out to be improper, it may be wiped out on appeal .... One of the most egregious errors counsel can make is to attempt to put the responsibilities of the jurors on some other body.

Johnson , 601 A.2d at 1096.

Other courts have reached similar conclusions. In Borgen v. State , the prosecutor told the jury, during closing argument in the penalty phase of the trial, that "some other court will rectify" any mistake they made. The Texas Court of Appeals condemned this argument:

The argument was calculated to and probably did give the impression to the jury that, no matter what it did, a higher court would ensure ultimate, perfect justice for [the] appellant, and that therefore [the jury] need not concern itself with assessing a punishment that it sincerely felt was proper. This was ... expressly contrary to our system of criminal justice, for it[,] in effect, told the jury that it could deal harshly with appellant at the punishment stage, rather than concerning itself with an honest effort to determine a proper punishment.

Borgen , 682 S.W.2d at 623.

Likewise, in Howell v. State , the Mississippi Supreme Court reversed the defendant's conviction because the prosecutor repeatedly told the jury that its verdict was not final and could be appealed. The Mississippi court emphasized the danger that the jury would mistakenly believe that any erroneous findings of fact were readily correctable on appeal:

The jury was not informed that the jurors ... were the ones who determined the facts, not the appellate court. Just the opposite was left in the minds of the jurors. The [prosecutor's] argument could only leave in the jurors' minds [the mistaken impression] that if they decided a close, contradicted [question of] fact and found the defendant guilty[,] the appellate court could change that finding.

Howell , 411 So.2d at 777.

We agree with these courts that it is error for a prosecutor to assure the jury that any mistakes in its verdict can and will be remedied later, either by the trial judge or on appeal. In Adams's case, the prosecutor may not have directly assured the jurors that they could count on the judiciary to correct their mistakes, but the prosecutor's remarks implied as much.

Even though Adams's attorney overstepped the bounds of proper argument when he offered his "terminating life support for a loved one" analogy for "proof beyond a reasonable doubt", this was no justification for the prosecutor's remarks. The prosecutor's remarks were clearly improper. The trial judge should have sustained the defense attorney's objection to those remarks and should have given an immediate curative instruction.

Why we conclude that the prosecutor's argument requires reversal of Adams's conviction

Our next task is to decide whether the prosecutor's improper argument requires reversal of Adams's conviction, or whether it was harmless error.

Several times in the past, both this Court and the Alaska Supreme Court have dealt with cases where a prosecutor made arguments to the jury that potentially disparaged or undermined the procedural protections afforded to criminal defendants by our constitution. As shown by these cases, the supreme court has applied two different standards when assessing whether a prosecutor's improper argument requires reversal of a defendant's conviction.

In cases where the prosecutor's improper argument did not deny a constitutional right of the defendant, the supreme court has used the "appreciably affected the verdict" test (i.e. , the test that applies to non-constitutional error) to assess whether the prosecutor's improper argument required reversal of a criminal conviction.

For example, in Brown v. State , 601 P.2d 221 (Alaska 1979), the prosecutor argued, at the close of the trial, that the defendant was no longer entitled to the presumption of innocence "because [the] State [has] proven, beyond a reasonable doubt, that he is guilty [of the charged crimes]." This argument was improper because, as a matter of law, the defendant's presumption of innocence continues until such time as the jury reaches a verdict of guilty.

Nevertheless, the supreme court declared that the "harmless beyond a reasonable doubt" test does not apply unless the court concludes, not only that the prosecutor's argument was improper, but also that it actually had the effect of denying one of the defendant's constitutional rights:

[W]here the error denies a constitutional right, ... reversal is required unless the error is found to be harmless beyond a reasonable doubt. However, we have never held that the standard of harmless beyond a reasonable doubt applies merely because a constitutional right is involved. While it is true that a constitutional right, the right to the presumption of innocence, is involved here, we believe that the instructions given by the judge both before the trial and before the jury's deliberations were sufficient to ensure that the defendant enjoyed that right and therefore no constitutional right was denied. ...
We are convinced that the court's instructions prevented the error from rising to the level of plain error.

Brown , 601 P.2d at 226 (emphasis in the original) (citations omitted).

Similarly, in State v. Gilbert , 925 P.2d 1324 (Alaska 1996), the prosecutor suggested that the jury might reasonably draw an adverse inference from the fact that the defense did not call a particular witness (a witness who purportedly could have corroborated the defendant's alibi), but the supreme court concluded that the error was not constitutional. The supreme court noted that the prosecutor prefaced his remarks by expressly telling the jurors that "Mr. Gilbert had [no] burden of proving anything", and the defense attorney echoed this principle in his summation. The court further noted that the trial judge had expressly instructed the jurors that the government bore the sole burden of proof, and that this burden was proof beyond a reasonable doubt.

The supreme court concluded that the attorneys' other statements to the jury, along with the court's jury instructions, "were sufficient to ensure that the burden of proof did not shift to the defendant." The court therefore treated the error as non-constitutional, and the court employed the "appreciably affected the verdict" test when assessing whether the prosecutor's comment required reversal of the defendant's conviction.

But in cases where the record revealed that the prosecutor's improper comment had the effect of denying a defendant's constitutional rights, the supreme court has held that the defendant's conviction must be reversed unless the error is shown to be harmless beyond a reasonable doubt (the test that applies to constitutional errors).

For instance, in Goldsbury v. State , 342 P.3d 834 (Alaska 2015), the supreme court concluded that the prosecutor's adverse comment on the defendant's failure to take the stand at trial was constitutional error because "the language used [by the prosecutor] was manifestly intended or was of such a character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify." Thus, the supreme court ruled that the error would require reversal of Goldsbury's conviction unless the court was convinced that the error was harmless beyond a reasonable doubt.

We think that this case is closer to Goldsbury than to Brown and Gilbert . The challenged remarks were a prominent part of the prosecutor's rebuttal summation, and one obvious implication of the prosecutor's remarks was that the jurors did not need to worry too much about reaching the proper verdict, because the judiciary would correct any mistake the jurors made. These remarks created a significant possibility that, if one or more jurors found it difficult to reach a decision in Adams's case, those jurors would nevertheless acquiesce in a verdict because of the mistaken belief that some other entity - either the trial judge or an appellate court - bore the ultimate responsibility of doing justice in Adams's case.

We thus conclude that the jurors would naturally and necessarily have drawn an improper inference from the prosecutor's remarks - the inference that the jurors could rely on the courts to cure any mistake in their verdict.

We must then ask whether this improper inference was negated or cured by the trial judge's instructions to the jury.

We note that in both Brown and Gilbert , the supreme court relied on the trial court's jury instructions as a basis for concluding that the prosecutor's statements did not result in a denial of the defendant's constitutional rights, and that the error was therefore non-constitutional. In Goldsbury , on the other hand, the supreme court first concluded, based solely on the nature of the prosecutor's statements, that the error was constitutional, and then the court relied on the trial court's jury instructions to conclude that the error was harmless beyond a reasonable doubt.

Given this discrepancy in the case law, it is unclear whether a trial court's jury instructions are a factor to be considered when determining whether a prosecutor's improper remarks were an error of constitutional dimension, or whether the jury instructions are only relevant when evaluating whether the error was harmless.

However, this distinction is irrelevant to our decision of Adams's case - because, as we have already explained, the trial judge refused to intervene to clarify these matters for the jury, even after the defense attorney objected to the prosecutor's argument. The judge cautioned the jurors to disregard any arguments of counsel that misstated the law - but the judge gave the jurors no indication as to whether he thought that the prosecutor had, in fact, misstated the law.

Thus, even if an appellate court should consider a trial court's jury instructions when assessing whether a prosecutor's improper remarks amounted to a constitutional error or only a non-constitutional error, it makes no difference to our decision in Adams's case because no pertinent curative instructions were given.

Because the prosecutor told the jurors that they could rely on the judiciary to correct any mistakes in their verdict, and because the trial judge did nothing to alert the jury to the error in the prosecutor's improper argument, we conclude that the prosecutor's improper argument was an error of constitutional dimension: it undermined Adams's right to insist that the government prove its case beyond a reasonable doubt. The prosecutor essentially told the jurors that they should not be overly concerned if they were having difficulty deciding what verdict to render, because they could rely on the courts to set things right later.

We must now ask whether this error was harmless beyond a reasonable doubt, given the evidence in the case and the way it was litigated. Based on our review of the record, we conclude that the error in Adams's case was not harmless beyond a reasonable doubt.

Adams acknowledged that he caused Wilson's death by stabbing him. The question litigated at trial was whether Adams acted in self-defense - or, more precisely, whether the State had proved beyond a reasonable doubt that Adams's claim of self-defense had no merit.

Given the actions of both Adams and Wilson that night, as well as their states of intoxication, Adams's claim of self-defense was at least arguable. And as we have explained, the prosecutor's improper remarks created a significant possibility that, if one or more jurors found it difficult to resolve Adams's claim of self-defense, those jurors would nevertheless acquiesce in a guilty verdict because of the mistaken belief that the judiciary, and not the jurors themselves, bore the ultimate responsibility of doing justice in Adams's case.

For these reasons, we conclude that the State has failed to show that this error was harmless beyond a reasonable doubt. Accordingly, Adams's conviction must be reversed.

If Adams is retried, the trial judge should revisit the jury instruction on the justified use of deadly force to resist a burglary

At Adams's trial, the judge (over defense objection) modified the pattern jury instruction on the justified use of deadly force to resist a burglary. Specifically, the judge told the jurors that the use of deadly force is not justified when a person resists a burglary if the burglary was committed solely for the purpose of damaging property inside the building.

We are unaware of any legal basis for the judge's modification of the pattern jury instruction on this issue. That pattern instruction is based on the wording of AS 11.81.350(c)(2) : "A person in possession or control of any premises ... may use ... deadly force upon another when and to the extent the person reasonably believes it is necessary to terminate what the person reasonably believes to be a burglary in any degree occurring in an occupied dwelling or building."

Should this question arise on retrial, the trial judge should either instruct the jurors in accordance with this statute, or the judge should explain his legal basis for concluding that this statute does not authorize the use of deadly force against a burglar who enters an occupied dwelling with the intent to damage property inside the dwelling.

Conclusion

The judgement of the superior court is REVERSED.

      AS 11.41.110(a)(1) or (2).

      This pattern instruction was later amended in light of our decision in Roberts .

      Alaska Criminal Pattern Jury Instruction 1.07 (2011).

      Angasan v. State , 314 P.3d 1219, 1222 (Alaska App. 2013).

      White v. State , 298 P.3d 884, 885 (Alaska App. 2013), quoting Taylor v. State , 262 P.3d 232, 234 (Alaska App. 2011).

      Angasan , 314 P.3d at 1222. See also Wayne R. LaFave, Jerold H. Israel, Nancy J. King, and Orin S. Kerr, Criminal Procedure (4th ed. 2015), § 24.11(d), Vol. 6, p. 739:
      Courts are naturally skeptical of claims that a defendant [who was] fairly convicted, with proper representation by counsel, should now be given a second opportunity because of new information that has suddenly been acquired. ... Accordingly, rather exacting standards have been developed for the motion for new trial based on newly discovered evidence.

      See , e.g. , Morrell v. State , 216 P.3d 574, 576 (Alaska App. 2009).

      325 Md. 511, 601 A.2d 1093, 1098 (1992).

      Johnson , 601 A.2d at 1095.

      Id. at 1094.

      Ibid.

      682 S.W.2d 620 (Tex. App. 1984).

      Borgen , 682 S.W.2d at 622.

      411 So.2d 772 (Miss. 1982).

      Howell , 411 So.2d at 773.

      See , e.g. , Goldsbury v. State , 342 P.3d 834, 835 (Alaska 2015) (the prosecutor commented on the fact that only the victim and the defendant knew what happened, and that the victim was the one who testified at trial); State v. Gilbert , 925 P.2d 1324, 1326-27 (Alaska 1996) (the prosecutor commented on the defense attorney's failure to call a witness who, according to the defendant's testimony, could corroborate his alibi); Brown v. State , 601 P.2d 221, 225-26 (Alaska 1979) (the prosecutor told the jury that, because of the strength of the State's evidence, the defendant was no longer cloaked in the presumption of innocence); Graham v. State , 656 P.2d 1192, 1193-94 (Alaska App. 1982) (the prosecutor improperly commented on the defendant's invocation of his right against self-incrimination).

      Brown , 601 P.2d at 225.

      Ibid.

      Gilbert , 925 P.2d at 1328 n. 8.

      Ibid.

      Ibid.

      Id. at 1328-29.

      Goldsbury , 342 P.3d at 837.

      Id. at 837-38.

      See Goldsbury , 342 P.3d at 839 ; Gilbert , 925 P.2d at 1328 n. 8, 1329 ; Brown v. State , 601 P.2d 221, 225-26 (Alaska 1979).

      Brown , 601 P.2d at 226 ; Gilbert , 925 P.2d at 1328 n. 8.

      Goldsbury , 342 P.3d at 837-38.

      See Goldsbury , 342 P.3d at 839.


source: Caselaw Access Project

author: Judge ALLARD, writing for the Court. Judge MANNHEIMER, concurring. Judge MANNHEIMER, concurring.

license: Public Domain

text:
    Jerry Gene INGA, Appellant, v. STATE of Alaska, Appellee.
    Court of Appeals No. A-12067
    Court of Appeals of Alaska.
    March 1, 2019
   Judge ALLARD, writing for the Court.

Following a jury trial, Jerry Gene Inga was convicted of second-degree sexual assault and third-degree assault. According to the State's evidence, Inga committed these offenses while he was alone at his stepfather's house with his stepfather's girlfriend, L.P. Inga had been violent towards L.P. in the past, and his stepfather had previously promised L.P. that he would not leave Inga and L.P. together again.

While Inga and L.P. were watching television, Inga propositioned L.P. to have sex with him. L.P. told him no. Inga then grabbed L.P.'s breasts. (This was the basis of the second-degree sexual assault charge.) L.P. pushed Inga away. Inga then pulled L.P. to the ground and beat her brutally. During this beating, Inga straddled L.P. and tried to restrain her hands above her head. L.P. suffered multiple injuries from this assault, including a fractured nose. (This was the basis of the third-degree assault charge.)

At trial, Inga's attorney conceded that Inga was guilty of beating up L.P., but the defense attorney contended that Inga never grabbed L.P.'s breasts. The attorney argued that L.P. was lying about this aspect of the attack - that she invented a story of sexual assault so that Inga would get in more trouble for the physical assault. The jury rejected the defense attorney's contention and convicted Inga of both sexual assault and physical assault.

On appeal, Inga challenges the sufficiency of the evidence to support his conviction for second-degree sexual assault. Inga concedes that the jury could reasonably have found that he grabbed L.P.'s breasts. But Inga now argues that the State failed to present sufficient evidence of coercion to render Inga's act of grabbing L.P.'s breasts "without consent" as that term is defined in AS 11.41.470(8)(A).

For the reasons explained in this opinion, we conclude that the evidence presented at Inga's trial was sufficient to establish the "without consent" element. We therefore affirm Inga's conviction for second-degree sexual assault.

Inga also separately appeals his sentence, arguing that his sentence is excessive and that the superior court erred in rejecting the proposed mitigator that his conduct was "among the least serious" included in the definition of second-degree sexual assault. We affirm the superior court's rejection of the statutory mitigator, and we conclude that Inga's sentence is not clearly mistaken.

Factual background and proceedings in the trial court

Because Inga challenges the sufficiency of the evidence to support his sexual assault conviction, we present the following background facts in the light most favorable to upholding the jury's verdict.

In early May 2013, Inga was with his stepfather and his stepfather's girlfriend, L.P., at the house his stepfather was renting in Big Lake. A few months earlier, there had been an incident where Inga had pushed L.P., and L.P. was therefore aware that Inga could become violent. At that time, Inga's stepfather had promised L.P. that he would not leave Inga and L.P. together again.

Despite this promise, Inga's stepfather left to go to Anchorage, leaving Inga and L.P. to clean the house. After Inga and L.P. had been cleaning for a while, Inga found ten dollars, and they decided to walk to the liquor store and buy alcohol. On the way home, Inga and L.P. were drinking shots of the vodka they had purchased. L.P. later testified that Inga seemed like he was getting upset with her.

When they arrived back at the house, Inga and L.P. sat on the couch and started watching television. According to L.P.'s testimony at trial, Inga propositioned her for sex. When L.P. said no, Inga grabbed her breasts. L.P. pushed Inga away, and then he began beating her. During the beating, Inga was straddling L.P., trying to restrain her hands above her head, and biting her. L.P. fought back and punched Inga. L.P. testified that she was bitten a couple of times on the face and on her arms and then "somehow I got out of it, and I ran out the side door." L.P. suffered multiple injuries from the assault, including a fractured nose.

In her statement to the police (which was played for the jury), L.P. was asked if Inga had touched her sexually during the assault. L.P. replied, "He grabbed my boobs ... but I did not let him get any further than that." At trial, L.P. confirmed that Inga "grabbed [her] breasts in the course of the assault," and that he did so in a "groping-type way," although it "all happened so fast."

After escaping from the house, L.P. ran barefoot to a neighbor's house located about a quarter-mile away. Inga chased L.P. for part of the way, but eventually he gave up. He was found by the troopers a few hours later walking south on the Parks Highway.

At trial, Inga's defense attorney argued that L.P. was lying about Inga grabbing her breasts, and that L.P. told the trooper that this happened because she wanted to get Inga in even more trouble for the physical assault. During closing argument, the defense attorney replayed L.P.'s interview with the trooper for the jury, emphasizing that L.P. told the trooper that Inga grabbed her breasts only after the trooper asked L.P. if Inga had touched her sexually. The defense attorney also attacked L.P.'s credibility, emphasizing her intoxication and mental health issues.

Following deliberations, the jury convicted Inga of both second-degree sexual assault and third-degree assault. At sentencing, the trial court rejected Inga's proposed mitigator that his conduct was "among the least serious conduct included in the definition of the offense," rejecting Inga's contention that this was a "touch-and-go" breast grab. The superior court ultimately sentenced Inga to 13 years with 3 years suspended (10 years to serve) on the second-degree sexual assault and 5 years on the third-degree assault, to run consecutively for a composite sentence of 18 years with 3 suspended (15 years to serve).

This appeal followed.

Why we conclude that the evidence presented at Inga's trial was sufficient to establish the coercion element of "without consent"

On appeal, Inga argues that the evidence presented at trial was legally insufficient to support his conviction for second-degree sexual assault.

To prove this charge, the State had to establish (1) that Inga knowingly engaged in sexual contact with L.P. (here, touching L.P.'s breasts), (2) that this sexual contact was "without consent" as that phrase is defined in AS 11.41.470(8)(A), and (3) that Inga acted at least recklessly with respect to the circumstance that the sexual contact was "without consent."

Under AS 11.41.470(8)(A), an act of sexual penetration or sexual contact is "without consent" if:

a person[,] with or without resisting, is coerced by the use of force against a person or property, or by the express or implied threat of death, imminent physical injury, or kidnapping[.]

In other words, to establish that sexual activity occurred without consent, the State must prove that the victim was not willing to engage in the sexual activity, and that the victim was coerced by force or by the threat of force. Thus, the phrase "without consent" refers to a particular type of unwanted sexual activity: unwanted sexual activity that is coerced by force or the threat of force.

For purposes of our criminal code, the word "force" is defined in AS 11.81.900(b)(28) as any "bodily impact, restraint, or confinement, or the threat of imminent bodily impact, restraint, or confinement." However, in the context of sexual offenses, the "bodily impact, restraint, or confinement" that the defendant uses or threatens must be more than simply the bodily impact or restraint inherent in the charged act of sexual penetration or contact.

In the present case, Inga concedes that the State presented sufficient evidence that Inga knowingly engaged in unwanted sexual contact with L.P. - i.e. , that he knowingly touched L.P.'s breasts through her clothing when she did not want him to do so. However, Inga contends that the State failed to present sufficient evidence of the coercion element of "without consent" - that is, he contends that there was insufficient evidence that the sexual touching was "coerced by the use of force."

But, as Chief Judge Mannheimer's concurrence points out, whether coercion exists in a particular case is inherently a fact-intensive inquiry that ultimately turns on the totality of the circumstances present in a given interaction.

Inga argues that the facts of his case are analogous to the facts in State v. Townsend , an unpublished decision involving a charge of sexual assault in which a majority of this Court held that the State failed to present sufficient evidence that the victim was "coerced by the use of force." But the facts of Townsend are materially different from the facts of Inga's case.

In Townsend , T.M. and his fiancée were walking through a crowded bar, brushing against people. Townsend, dressed in drag, approached T.M. and grabbed T.M.'s penis (through T.M.'s clothing) for a few seconds. T.M. immediately chased after Townsend and reported the incident to a nearby police officer, who arrested Townsend for second-degree sexual assault - i.e. , engaging in sexual contact "without consent." When Townsend was arrested, he admitted that he had grabbed the victim's penis. He told the officer that he did not know T.M., and that he grabbed T.M.'s penis because he wanted to "hit on" T.M.

Following Townsend's indictment, Townsend's attorney moved to dismiss the sexual assault charge, arguing that the evidence did not support a finding that Townsend's act of momentarily grabbing T.M.'s penis constituted sexual contact that was "coerced by the use of force." The superior court agreed that there was insufficient proof that Townsend used any force or threat of force beyond the "bodily impact [or] restraint" inherent in the act of touching itself, so the court dismissed the indictment.

When the State appealed the superior court's decision, the case resulted in separate opinions from each of the three members of this Court - with two members of this Court voting to affirm the superior court's decision, but for slightly different reasons. Central to both the lead and concurring opinions, however, was the concept that there is a difference between an act of unwanted sexual touching that a person may find offensive and an act of unwanted sexual touching that is coerced by the use of force or threat of force. The former may constitute the criminal offense of first-degree harassment, but it does not constitute the crime of second-degree sexual assault.

In Townsend , there was no evidence of force or threat of force, apart from the force inherent in the sexual contact itself. Nor was there any evidence that the victim felt threatened or fearful. The same is not true in Inga's case. Townsend involved a momentary grab of a man's genitals in a crowded public bar. Here, the sexual contact occurred in an isolated location by a man who the victim had good reason to be afraid of. The sexual contact also occurred immediately after the victim had just unequivocally refused to have sex with the defendant, and the defendant's immediate response to the victim's attempt to resist any further contact was to physically attack her, pushing her down to the floor, straddling her body, and trying to restrain her arms as he did so.

In his briefing on appeal, Inga repeatedly tries to separate his act of grabbing L.P.'s breasts from his ensuing physical attack on L.P. that left her injured, focusing on L.P.'s comment that she momentarily looked towards her cigarettes after pushing Inga away from her breasts. But when we review a claim of evidentiary insufficiency on appeal, we are required to view the evidence presented at trial - and all reasonable inferences to be drawn from this evidence - in the light most favorable to upholding the verdict. Viewing the evidence at Inga's trial in that light, we conclude that a fair-minded juror exercising reasonable judgment could find that Inga's grabbing of L.P.'s breasts and his ensuing attack were connected parts of a continuous episode, and that Inga's contact with L.P.'s breasts occurred without consent, as that term is defined under Alaska law. Accordingly, we reject Inga's argument on appeal that the evidence was insufficient to support his conviction for second-degree sexual assault.

Inga's sentencing arguments

Inga had one prior felony conviction and multiple prior misdemeanor convictions, many of which involved assaultive behavior. As a result of his prior felony conviction, Inga faced a presumptive sentencing range of 10 to 25 years' imprisonment for the second-degree sexual assault conviction and a presumptive range of 2 to 4 years' imprisonment for the third-degree assault conviction.

At sentencing, the State established three aggravating factors under AS 12.55.155(c) : (c)(8) - that Inga had a history of aggravated assaultive behavior; (c)(21) - that Inga had a history of repeated criminal conduct similar to his present offense; and (c)(31) - that Inga's criminal history included convictions for five or more class A misdemeanors. Because of these aggravators, Inga's maximum sentence was 99 years' imprisonment for the second-degree sexual assault and 5 years for the third-degree assault.

With regard to the sexual assault conviction, Inga's defense attorney argued that statutory mitigating factor AS 12.55.155(d)(9) should apply - i.e. , that Inga's conduct was among the least serious within the definition of second-degree sexual assault. If proved, this mitigating factor would authorize the sentencing judge to impose a sentence as low as 5 years' imprisonment for the sexual assault conviction. Inga's attorney argued that this statutory mitigating factor was appropriate in this case because Inga was convicted for briefly grabbing L.P.'s breasts through her clothing, and the second-degree sexual assault statute encompasses much more serious conduct.

The sentencing judge rejected the proposed mitigator. Based on all the circumstances of this episode, the judge found that Inga's assault on L.P. was more than a "touch-and-go" grabbing of L.P.'s breasts - that it was not a "fleeting" touching that "involve[d] [no] physical harm." Rather, L.P. was "significantly beaten up" by Inga - and the judge viewed this beating as an integral facet of Inga's sexual assault on L.P., not a separate and discrete incident.

On appeal, Inga renews his argument that the judge should have found mitigator (d)(9). But the judge's findings of fact are supported by the record, and based on those findings we uphold the judge's rejection of this mitigator.

The three aggravating factors in Inga's case all related to Inga's history of assaultive crimes. Based on those aggravators, and based on Inga's prior failed efforts on probation, the sentencing judge concluded that Inga's prospects for rehabilitation were poor and that Inga posed a danger to the community, given his history of assaulting "many, many people." For these reasons, the judge imposed the 5-year maximum sentence for the offense of third-degree assault.

However, given the fact that Inga had no prior sexual assaults, the judge decided to impose a sentence at the lower end of the presumptive range for Inga's second-degree sexual assault conviction: 13 years with 3 years suspended, or 10 years to serve. The judge imposed these two sentences consecutively, giving Inga a composite 18 years with 3 years suspended (i.e. , 15 years to serve).

On appeal, Inga contends that this sentence is excessive. He argues that the sentencing judge erred when she found that further rehabilitative efforts were unlikely to accomplish anything, and that she also erred by putting too much emphasis on Inga's extensive history of violence.

The question is whether the judge's analysis of these factors was clearly mistaken. We have independently examined the record, and we conclude that the judge's sentencing decision was not clearly mistaken.

Conclusion

The judgment of the superior court is AFFIRMED.

Judge MANNHEIMER, concurring.

Judge MANNHEIMER, concurring.

I write separately to describe the historical background of our current sexual assault statutes, particularly with regard to the element of "without consent", and also to describe how other states have interpreted the requirement of coercion. I then apply Alaska's law of coercion to the facts of Inga's case.

The historical background of our sexual assault statutes and the element of "without consent"

For purposes of Alaska's sexual assault statutes, the phrase "without consent" has a special meaning that differs significantly from its everyday meaning. Under AS 11.41.470(8)(A), unwanted sexual conduct occurs "without consent" only if the person "is coerced by the use of force ... or by the express or implied threat of death, imminent physical injury, or kidnapping".

Thus, the statutory phrase "without consent" does not cover all instances where the other person does not subjectively consent to the sexual activity. Rather, sexual activity occurs "without consent" only if the victim was coerced to engage in the sexual activity by force or by the types of threat specified in the statute. See AS 11.41.470(8)(A).

This statutory definition is a modified version of the common law that applied to the crime of rape. At common law, the crime of rape was defined as "carnal knowledge of a woman forcibly and against her will". These two concepts - "forcibly" and "against the victim's will" were related, but they were not the same.

The majority view at common law was that these two phrases - "forcibly" and "against the victim's will" - were two separate elements of the crime of rape, and the government was required to prove both of these elements. Thus, even when the woman did not wish to engage in the act of intercourse, there was no rape if the coercion was not "forcible" - for example, if the woman acquiesced in an act of intercourse against her will because the offender threatened to fire her from her job, or threatened to expose some humiliating secret, if she refused.

Before the enactment of Alaska's current criminal code, the crime of rape was defined by former AS 11.15.120(a), a statute that tracked this common-law definition of the crime. Under this former statute, the crime of rape consisted of "carnal knowledge of another person, forcibly and against the will of the other person".

The Commentary to our current criminal code shows that the drafters wanted to abandon this common-law formulation of the crime because they wanted to "[e]liminate[ ] ... any contention that ... a victim must forcibly resist a sexual assault to the utmost" or "that [the victim's] resistance must continue until the act has been terminated."

In place of "forcibly" and "against the will of the other person", the drafters proposed a new phrase, "without consent". Under this new element of "without consent", the government would be required to prove that the victim, "with or without resisting", was "coerced by the use of physical force against a person or property, or by the express or implied threat of imminent death, imminent physical injury, or imminent kidnapping to be inflicted on anyone".

The Alaska Legislature ultimately adopted this proposal and codified it in AS 11.41.470(8)(A).

But this new element, "without consent", still tracks the basic elements of common-law rape. The government must prove (1) that the victim was coerced into engaging in sexual activity that they otherwise were not willing to engage in, and (2) that this coercion took the form of force or the types of threat specified in the statute.

Alaska has a statutory definition of "force" which is quite expansive. Under AS 11.81.900(b)(28), "force" includes "any bodily impact" or "threat of imminent bodily impact". Since all sexual contact includes some degree of "bodily impact", one might argue that all sexual contact is, by definition, "coerced by the use of force" if the victim does not subjectively consent to the contact.

While this might appear to be a plausible reading of the two statutes, this would be a significant departure from the rule at common law.

At common law, a non-consensual act of sexual intercourse was deemed "forcible" only if it was achieved by physical compulsion apart from the force or impact inherent in the act of sexual intercourse itself. The common law required proof that the act of intercourse was achieved by some additional degree of force - either proof that the victim resisted and was overcome by force, or proof that the victim would have resisted but was intimidated into submission by force or the threat of imminent force.

In light of this common-law background of modern sexual assault statutes, courts in other states have held that, in prosecutions for sexual assault, the government must establish that the defendant used more force than simply the touching or "bodily impact" required to accomplish the sexual activity.

Alaska's sexual assault statutes are likewise derived from this common-law root. Although the drafters of our current criminal code replaced the phrase "forcibly and against the will" with the new phrase "without consent", the drafters never indicated that they wanted to eliminate the common-law requirement that the force accompanying the sexual act had to exceed the bodily impact inherent in the sexual act itself.

How other states have answered the question of what type or degree of force is required to establish that a sexual act was "coerced by the use of force"

In a prosecution for sexual assault, the State must prove that the defendant subjected the victim to coercive force or a coercive threat of force, and this force must exceed the bodily impact inherent in the act of sexual contact or sexual penetration itself. But what exactly does this mean?

Some states have divided their sex offenses into different levels - the higher level consisting of sexual activity that is coerced by force, and the lower level consisting of sexual activity where the victim does not consent, but where there is no forcible coercion. Because of this distinction between the levels of sexual offenses, the courts in these states have had to directly address the question of what type or degree of force must be proved when the government alleges that the sexual activity was coerced by force.

The Oregon Supreme Court's decision in State v. Marshall , 350 Or. 208, 253 P.3d 1017 (2011), is a good example of how courts have resolved this question.

Under Oregon law, nonconsensual sexual contact is third-degree sexual abuse, a class A misdemeanor, unless the state proves that the victim was subjected to "forcible compulsion" - in which case the crime is elevated to first-degree sexual abuse, a class B felony.

Oregon law defines "forcible compulsion" using language that is analogous to the language found in Alaska's definition of "without consent". Under Oregon law, a sexual act is accomplished by "forcible compulsion" if the act is compelled by physical force, or if it is compelled by a threat (express or implied) that the person will be killed or injured, or that the person or someone else will be kidnapped.

In Marshall , the Oregon Supreme Court provided a fuller explanation of this concept of "forcible compulsion".

First, if the government charges the defendant with using force against the victim, this force must be greater than, or qualitatively different from, the movement or bodily impact that is inherent in the charged act of sexual contact. Second, the government must prove that there was a causal relationship between the defendant's use of force and the victim's submission to, or engagement in, the charged act of sexual contact. The government need not prove that the force used by the defendant was so violent or so aggravated that the defendant physically overpowered or completely physically dominated the victim. But the defendant's use of force must have been a substantial factor in causing the victim to submit to or engage in the charged act of sexual contact.

Under Oregon law, this question - whether the defendant's use of force or threat of force caused the victim to submit to or engage in sexual contact that they otherwise would not have submitted to or engaged in - does not turn solely on the type or amount of physical force used or threatened by the defendant. It also turns on the relevant attendant circumstances - such things as the relationship between the defendant and the victim, their relative ages, the differences in their size or strength, and similar matters.

Although the members of this Court do not necessarily endorse all the specifics of the Oregon court's approach to this matter, we agree that the question of coercion is a fact-intensive inquiry that turns on the totality of the circumstances.

Application of this law to the facts of Inga's case

As explained in Judge Allard's lead opinion, Inga's defense at trial was that he never touched L.P.'s breasts - that L.P. was lying about this aspect of the attack. Given this defense, the parties did not directly litigate the issue of whether Inga used force or threat of force to coerce L.P. into submitting to the sexual touching. Rather, the parties litigated whether a sexual touching had occurred at all.

Now, on appeal, Inga raises a different defense to the State's case: he contends that even if he touched L.P.'s breasts without her subjective consent, the State's evidence was insufficient to support a finding that this touching occurred "without consent" as defined in AS 11.41.470(8)(A) - in other words, insufficient to support a finding that L.P. was coerced by force or threat of force to submit or acquiesce to this touching.

Even though Inga did not raise this issue in the trial court, he may raise it on appeal, because our supreme court has held that the question of the sufficiency of the evidence to support a particular verdict is a question of law.

But when a defendant challenges the sufficiency of the evidence to support a criminal conviction, we must view the evidence (and all reasonable inferences to be drawn from it) in the light most favorable to the verdict. Viewed in this light, the evidence presented at Inga's trial supports a finding that his touching of L.P.'s breasts was "without consent".

Inga's primary argument is that his beating of L.P. did not occur until after he grabbed L.P.'s breasts and she pushed his hand away. According to Inga, this fact demonstrates that Inga's touching of L.P.'s breasts could not have been "without consent", since Inga did not employ any greater force than was inherent in the act of touching itself - at least, not until after L.P. resisted the touching.

But as I explained earlier in this concurrence, the question of force must be resolved under the totality of the circumstances. Here, according to the State's evidence, Inga was alone with L.P. in the house when this incident occurred. The violence in the present case was precipitated when Inga propositioned L.P. to have sex with him, and she told him no. It was then that Inga grabbed L.P.'s breasts. L.P. pushed him away - and Inga immediately began beating her. During this beating, according to L.P.'s testimony, Inga was straddling her and trying to restrain her hands above her head.

Viewed in the light most favorable to the jury's verdict, Inga engaged in one continuing assault against L.P. - an assault that was motivated by a desire for sex. Inga initiated this assault immediately after L.P. rejected his verbal sexual advance. And this assault had overtly sexual components: first, Inga's forcible grabbing of L.P.'s breasts, and then Inga's act of straddling L.P. and restraining her hands above her head while he beat her.

If Inga had begun to beat L.P. before he grabbed her breasts, we would not be engaged in this debate as to whether that sexual touching was "without consent". But the same principle governs Inga's case, even though he did not beat L.P. until moments after he grabbed her breasts.

Inga committed a physical assault upon L.P. that included sexual contact. A reasonable jury could find that this sexual contact was "without consent" within the meaning of AS 11.41.470(8)(A) - i.e. , that the unwanted sexual touching was coerced by the use of force. I therefore conclude that the evidence was legally sufficient to support Inga's conviction for second-degree sexual assault.

      AS 11.41.420(a)(1) and AS 11.41.220(a)(5), respectively.

      See Iyapana v. State , 284 P.3d 841, 849 (Alaska App. 2012). We note that Inga's appellate attorney improperly relies on the grand jury transcript rather than the trial transcript in certain sections of her brief.

      AS 12.55.155(d)(9).

      See AS 11.81.900(b)(60)(A)(i) (declaring that the term "sexual contact" includes "the defendant's ... knowingly touching, directly or through clothing, the victim's genitals, anus, or female breast").

      See Reynolds v. State , 664 P.2d 621, 625 (Alaska App. 1983) (holding that, in a prosecution for first-degree sexual assault, the State must prove that the defendant knowingly engaged in sexual penetration with the victim and that the defendant recklessly disregarded the circumstance that the sexual penetration was "without consent").

      Alaska Statute 11.41.470(8)(B) also provides that an act of sexual penetration or sexual contact is "without consent" if the person "is incapacitated as a result of an act of the defendant." This alternate definition of "without consent" is not at issue in Inga's case.

      See, e.g. , Milligan v. State , 286 P.3d 1065, 1070-71 (Alaska App. 2012).

      See State v. Townsend , 2011 WL 4107008, at *7-8 (Alaska App. Sept. 14, 2011) (unpublished); Inga v. State , 2004 WL 719626, at *5 (Alaska App. Mar. 31, 2004) (unpublished). The requirement that the bodily impact, restraint, or confinement be more than simply the bodily impact or restraint inherent in the charged act of sexual penetration or contact derives from the common law and remains the law in the majority of jurisdictions. See State v. Jones , 154 Idaho 412, 299 P.3d 219, 228 (2013) ("The extrinsic force standard is the traditional view and 'is still the most commonly adopted.' "); State v. Schenck , 513 So.2d 1159, 1163 (La. 1987) (concluding that the use of force "requires use of force in addition to any mere touching or minimum effort exerted in performing the lewd act"); State v. Marshall , 350 Or. 208, 253 P.3d 1017, 1028 (2011) (the force must be "greater in degree or different in kind from the simple movement and contact that is inherent in the act of touching the intimate part of another"). See generally 2 Wayne R. LaFave, Substantive Criminal Law §§ 17.3(a) & (b), at 840-50 (3d ed. 2017) (discussing extrinsic force requirement as majority approach and collecting cases).

      A totality of the circumstances analysis is consistent with our prior case law construing AS 11.41.420(a)(1) (sexual assault in the second degree) and AS 11.41.410(a)(1) (sexual assault in the first degree). See, e.g. , Jimmy v. State , 206 P.3d 750, 751 (Alaska App. 2009) ; Grandstaff v. State , 171 P.3d 1176, 1210-11 (Alaska App. 2007) ; Ritter v. State , 97 P.3d 73, 77-78 (Alaska App. 2004) ; Nicholson v. State , 656 P.2d 1209, 1213 (Alaska App. 1982).

      Townsend , 2011 WL 4107008, at *1.

      Id.

      Id.

      Id.

      Id.

      Id. at *1, 5.

      Compare AS 11.61.118(a)(2)with AS 11.41.420(a)(1).

      See Iyapana v. State , 284 P.3d 841, 849 (Alaska App. 2012).

      Cf. State v. Middleton , 386 N.W.2d 226, 230 (Minn. 1986) ("The criminal sexual conduct statutes do not protect only the victim who submits to a sexual assault. The victim who resists is also protected.").

      See AS 12.55.125(i)(3)(B) ; former AS 12.55.125(e)(2) (2013).

      See AS 12.55.155(a)(1), (2) ; AS 12.55.125(i)(3) ; AS 12.55.125(e).

      See AS 12.55.155(a)(2) & AS 12.55.125(i)(3)(B).

      See Michael v. State , 115 P.3d 517, 519 (Alaska 2005) (holding that when an appellate court reviews a sentencing judge's ruling on a proposed mitigating factor, the appellate court applies the deferential "clearly erroneous" standard of review when evaluating the sentencing judge's findings of historical fact, but the appellate court then employs its independent judgment when evaluating whether, under those facts, the mitigating factor is applicable).

      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).

      Rollin M. Perkins & Ronald N. Boyce, Criminal Law (Third Edition 1982), p. 210, quoting Blackstone's Commentaries on the Laws of England , Vol. 4, § 210.

      See Wayne R. LaFave, Substantive Criminal Law (Third Edition 2017), §§ 17.3(a) through 17.3(d), Vol. 2, pp. 840-860.

      See LaFave, § 17.3(d), Vol. 2, pp. 855-60.

      Commentary to Tentative Draft 11.41.460(6), found in Alaska Criminal Code Revision Subcommission Tentative Draft , Vol. 1, pp. 74, 79-80.

      See LaFave, § 17.3(a), Vol. 2, pp. 841-46.

      See, e.g. , People v. Denbo , 372 Ill.App.3d 994, 311 Ill.Dec. 347, 868 N.E.2d 347, 355, 358 (2007) ; Scott-Gordon v. State , 579 N.E.2d 602, 603-04 (Ind. 1991) ; Chatham v. State , 845 N.E.2d 203, 207-08 (Ind. App. 2006) ; State v. Schenck , 513 So.2d 1159, 1163 (La. 1987) ; Johnson v. Commonwealth , 5 Va.App. 529, 365 S.E.2d 237, 240 (1988).

      ORS § 163.415.

      ORS § 163.427(1)(a)(B).

      ORS § 163.305(1)(a)-(b).

      Marshall , 253 P.3d at 1025.

      Id. at 1023.

      Id. at 1027.

      Id. at 1024-27.

      Id. at 1027.

      See Shafer v. State , 456 P.2d 466, 467-68 (Alaska 1969) ; see also Marshall v. Peter , 377 P.3d 952, 956 (Alaska 2016).

      See Iyapana v. State , 284 P.3d 841, 848-49 (Alaska App. 2012) ; Silvera v. State , 244 P.3d 1138, 1142 (Alaska App. 2010).

      See Iyapana , 284 P.3d at 848-49 ; Silvera , 244 P.3d at 1142.


text:
    Teddy SMITH, Appellant, v. STATE of Alaska, Appellee.
    Court of Appeals No. A-12309
    Court of Appeals of Alaska.
    March 1, 2019
    Kelly R. Taylor, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
    Ann B. Black, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.
    Erin Dougherty Lynch, Native American Rights Fund, Anchorage, for Amicus Curiae Association of Village Council Presidents, aligned with the Appellant.
    Susan Orlansky, Anchorage, for Amicus Curiae ACLU of Alaska Foundation, aligned with the Appellant.
    Thomas Amodio, Reeves Amodio, LLC, Anchorage, for Amicus Curiae Alaska Court System, aligned with the Appellee.
    Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge.

      Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).

   Judge MANNHEIMER.

In early September 2012, in the village of Kiana, Teddy Smith fired a shotgun at a group of people. He then fled into the wilderness, where he spent seven to ten days subsisting on berries and water. Smith became exhausted and delirious, and he later reported that he had been visited by "inukins" - supernatural beings who are reputed to live on the tundra.

Eventually, Smith came upon a hunting cabin north of Kiana, along the Squirrel River. There was no one in the cabin when Smith found it, but the cabin contained food. Smith decided to stay in the cabin.

While Smith was there, two brothers - Paul and Chuck Buckel - arrived at the cabin. Paul had lived in Kotzebue for more than twenty years, and his brother Chuck was visiting from out of state. The Buckels were on a bear-hunting trip, and they had permission from the cabin owner to use the cabin.

Smith greeted the Buckels, identifying himself by a false name. Smith helped the brothers bring their gear into the cabin, and he conversed with them for about an hour. All of a sudden, Smith began screaming for the Buckels to "get the fuck out". Smith then grabbed his pistol and shot Chuck Buckel in the chest.

Smith forced the Buckels out of the cabin, and he ordered Paul Buckel to bring the brothers' boat closer to the cabin. After Paul tied off the boat, Smith shot Paul in the arm. Fearing for his life, Paul ran into the woods. His brother Chuck also tried to run, but because of his chest wound, he had to stop and lean against a tree to catch his breath. Smith watched Chuck from about ten feet away, but he did not shoot Chuck again. Eventually Chuck made his way into the woods, where the brothers were reunited.

In the meantime, Smith loaded most of the Buckels' gear into their boat, and then he took off in their boat down the river. When the Buckels discovered that Smith had left, they returned to the cabin and used the cabin owner's marine radio to call for help. The following morning, the state troopers arrived, and the Buckels were medivacked to receive care for their wounds. Both of them survived.

The troopers found Smith down-river from the cabin, and they took him into custody.

Smith was brought to trial in Kotzebue on charges of attempted murder, first-degree assault, first-degree robbery, and third-degree assault. He was convicted following a jury trial.

Smith now seeks reversal of his convictions. He raises a series of legal challenges to the rules that the Alaska Court System uses for summoning prospective jurors for criminal trials in court locations around the state - including the authority that the rules give the presiding judges of each judicial district to restrict the geographic area from which prospective jurors are summoned.

For the reasons explained in this opinion, we reject most of Smith's claims and we affirm the rulings of the trial court. But with respect to Smith's claim that he should be able to challenge a ruling made by the presiding judge of his judicial district to restrict the area from which jurors are summoned, we conclude that we must remand this case to the superior court for further proceedings on this matter.

The law that governs the summoning of prospective jurors for trials in the different court locations within Alaska

The Alaska Supreme Court has established venue districts for every court location in Alaska. These venue districts are defined by a venue map promulgated by the Alaska Supreme Court. See Alaska Criminal Rule 18(a). The purpose of these venue districts is to identify the court site where a defendant's trial will presumptively be held if the crime is alleged to have occurred within that venue district.

For example, as defined by the supreme court's venue map, the Kotzebue venue district is a sizeable region that (1) extends east from Kotzebue approximately 250 miles inland, (2) extends south from Kotzebue approximately 100 miles, and extends more than 150 miles northwest from Kotzebue along the coast of Kotzebue Sound, past Point Hope. When a crime is alleged to have occurred within this district, the trial will presumptively be held in Kotzebue.

As might be imagined, all of the venue districts in Alaska include smaller towns and villages in addition to the court site itself. For example, the Kotzebue venue district includes approximately a dozen smaller villages in addition to the regional hub city of Kotzebue. But when the Alaska Court System prepares its lists of prospective jurors within the various venue districts - i.e. , the lists of people who can be summoned to serve on juries at the various court locations around the state - these jury lists will often exclude the people living in outlying towns and villages.

Under Alaska Administrative Rule 15(c) - a rule that was numbered "15(b)" at the time of the proceedings in this case - the list of prospective jurors for any particular court site is not drawn from the population of the entire corresponding venue district. Rather, the list of prospective jurors comprises only the people living within a 50-mile radius of that court site, unless the presiding judge of that judicial district designates a different selection area.

In some venue districts, this 50-mile selection radius excludes a relatively small percentage of the population of that district. But in far-flung rural venue districts, the 50-mile radius rule can exclude the residents of many towns and villages.

In the Kotzebue venue district, for example, only two villages (Noorvik and Noatak) are located within a 50-mile radius of the Kotzebue court.

Moreover, for the past thirty years, the presiding judges of the Second Judicial District (the judicial district that includes Kotzebue) have concluded that the cost of transporting and housing prospective jurors from even these two villages is unreasonably high. For this reason, over the years, the various presiding judges of the Second Judicial District have exercised their authority under Administrative Rule 15(c) to alter the 50-mile jury selection radius. Instead of employing the normal 50-mile radius, these presiding judges have issued orders declaring that the list of prospective jurors for trials in Kotzebue should be confined to the people living within a 5-mile radius of Kotzebue.

In other words, the list of prospective jurors for trials in Kotzebue is essentially limited to the people living in or nearby the city of Kotzebue itself.

The constitutional limitations on the Alaska Court System's authority to define jury selection areas based on cost and convenience

On its face, Administrative Rule 15 gives the Court System, and the presiding judges of the four judicial districts, broad authority to define jury selection areas so as to reduce jury expenses and increase the convenience of jurors' travel and lodging.

However, the working of Administrative Rule 15 hinges in large measure on the boundaries of the various venue districts drawn in the supreme court's venue map. And the driving force behind the supreme court's selection of those venue district boundaries is the supreme court's 1971 decision in Alvarado v. State , 486 P.2d 891 (Alaska 1971). Alvarado is the seminal Alaska case defining a criminal defendant's right to demand that prospective jurors summoned for jury service reflect the community where the crime is alleged to have occurred.

The defendant in Alvarado was an Alaska Native man who was charged with committing a rape in the village of Chignik. This village is located on the Alaska Peninsula, approximately 450 air miles southwest of Anchorage, and the great majority of its residents were Alaska Natives who primarily pursued a rural, subsistence lifestyle. However, the city of Anchorage was the specified court site for crimes committed in Chignik - and, under the jury selection rules that were in force at the time, the prospective jurors for Alvarado's trial were drawn from the people living within 15 miles of Anchorage.

This 15-mile jury selection radius effectively excluded not only the residents of Chignik but also the residents of every other Native village. And even though the Alaska Natives comprised nearly 30 percent of the population of the Third Judicial District (where Anchorage is located), Alaska Natives comprised only 3.5 percent of the population of Anchorage.

The supreme court held that the 15-mile jury selection radius - and its concomitant exclusion of jurors from Chignik and every other Native village - violated Alvarado's right under the Alaska Constitution to have prospective jurors drawn from a pool of people that represents a fair cross-section of the community where the crime occurred.

In reaching this conclusion, the supreme court relied on evidence presented to the trial court concerning the salient characteristics of Alaska Native cultures, and the profound differences between those Alaska Native cultures and the urban lifestyle that typified Alaska's larger cities, such as Anchorage. As the supreme court observed, the distinguishing characteristics of Alaska Native cultures include:

economies which rely on hunting, fishing, and gathering activities, strong kinship bonds, isolation from those parts of Alaska that approximate mainstream America, different seasonal activity patterns, concepts of time and scheduling which ... may be quite different from those of mainstream America, and finally, very limited participation in the cash economy.

Alvarado , 486 P.2d at 894.

The supreme court noted that, even though most Alaska Native villages are exposed to some extent to the Western culture of Alaska's cities, "the gap separating Native villages from the mainstream of urban society is vast":

Examples of the unique qualities of Native culture ... encompass such factors as ... childhood exposure to two languages, cultural disorientation reflecting the imposition on the Native villages of the dominant society's way of life, a distinct social history, ... and basic differences in family structure.

Id. at 895.

Based on all of these significant differences, the supreme court concluded that "the remote Native villages of the third judicial district" - villages such as Chignik - were "vastly dissimilar from the metropolis of Anchorage":

The gap stretching between these two distinct classes of community is of far greater magnitude than that which normally separates city from city or small town from city elsewhere in the United States. We are faced here with the order of differences which distinguishes one culture from another.

Id. at 900. And because of this cultural divide between life in Alaska's large urban centers and life in the Native villages, the supreme court held that, when a crime is alleged to have occurred in a Native village, it is unconstitutional to select prospective jurors in a manner that essentially excludes all residents of Native villages. The supreme court declared that, in such cases, the pool of prospective jurors must include people who are representative of the community residing at the location of the alleged offense. Id. at 902.

This rule means that a jury can be validly selected even if the pool of prospective jurors does not actually include people living at the location of the alleged offense - what the law calls the rule of "vicinage". Instead, the supreme court endorsed Alvarado's suggestion that the concept of vicinage was no longer an inflexible requirement of jury selection - "no longer a mechanical formula which requires, in all cases, that the jury be selected from the precise locale of the crime".

Nevertheless, the supreme court declared that the concept of vicinage "serves primarily as a guide" to assessing whether the people who live in the jury selection area are properly "representative" of the community that lives at the location of the alleged offense. Thus, even though the jury selection area does not include the residents of the place where the crime occurred, the people living in that jury selection area may "still reasonably represent a cross-section of the community [residing at] the scene of the offense" if the population of the jury selection area does not differ significantly from the population of the place where the crime occurred.

In order to facilitate jury pools that comply with Alvarado , the supreme court promulgated Alaska Criminal Rule 18 and an accompanying series of venue district maps. The current venue district map divides Alaska into 25 superior court venue districts, with each venue district containing a city or town designated as a suitable site for felony trials. As this Court explained in John v. State , "The supreme court's goal was that, by using Rule 18(b) in combination with the venue map, judges would be able to identify a presumptive trial site where the composition of the jury pool could be expected to satisfy Alvarado ."

However, if it is shown that the pool of prospective jurors prescribed by the provisions of Criminal Rule 18 and Administrative Rule 15(c) does not satisfy Alvarado , then the trial court must use a different pool of prospective jurors - because the constitutional requirements of Alvarado take precedence.

The litigation of Smith's jury claims in the superior court

As we explained earlier, Administrative Rule 15(c) normally calls for the list of prospective jurors to be drawn from the people living within a 50-mile radius of the court location, but over the years the presiding judges of the Second Judicial District have issued orders limiting the jury selection area for Kotzebue to a 5-mile radius. Thus, as a practical matter, the pool of prospective jurors included only the people living in and nearby Kotzebue itself.

Prior to Smith's trial, Smith's attorney filed a motion asking the superior court to expand the jury selection area to include everyone living in the entire Kotzebue venue district. (As we have explained, there are about a dozen villages scattered throughout the Kotzebue venue district.)

Smith's attorney argued that any smaller pool of prospective jurors would violate Smith's constitutional right under Alvarado to have the group of prospective jurors drawn from a pool that included a fair cross-section of the community where Smith's crimes allegedly occurred - i.e. , the village of Kiana and the surrounding areas.

The defense attorney also argued that any smaller pool of prospective jurors would violate the rights of all the village residents within the Kotzebue venue district - specifically, the right of these village residents to serve on juries. Smith's attorney noted that the total population of these outlying villages was significantly greater than the population of Kotzebue. Thus, jury pools in Kotzebue were being drawn from a minority of the residents of the venue district.

In support of Smith's Alvarado claim (i.e. , his claim that a jury pool drawn solely from the residents of Kotzebue would not represent a fair cross-section of the community where the crimes occurred), Smith's attorney argued that each and every village in the Kotzebue venue district had its own distinct characteristics, and thus it was especially important for the jury selection area to include the village of Kiana. However, the defense attorney's fall-back claim was that the dozen outlying villages, considered as a whole, constituted a distinct cultural group that was not fairly represented by the residents of Kotzebue.

With regard to this latter claim (that the outlying villages, taken as a whole, constituted a distinct cultural group for purposes of an Alvarado analysis), Smith's attorney argued that these villagers were far more likely than the residents of Kotzebue to practice a subsistence hunting lifestyle. According to the defense attorney, this was important because it meant that these villagers would be more familiar with firearms, and they would more readily understand that Smith would have been able to kill the Buckels if he had wanted to.

The defense attorney also argued that the villagers living in Kiana and along the Squirrel River would be more familiar with people who believed in inukins - and, therefore, these villagers would be more likely to credit Smith's statements about encountering inukins while he was wandering in the wilderness, rather than immediately concluding that Smith was either lying or delusional.

The superior court, in a lengthy written decision, rejected the defense attorney's contention that the residents of the outlying villages constituted a group whose culture was distinct, for Alvarado purposes, from the culture of the residents of Kotzebue.

The superior court noted that, even though Kotzebue was a hub city, almost 75 percent of the residents of Kotzebue were Alaska Natives, with an additional 5 percent identifying themselves as having an Alaska Native heritage. (In Kiana, the percentage of Alaska Natives was 90 percent.) Perhaps more importantly, the superior court also found that the "attitudes[,] ideas, [and] experience" of Kotzebue residents exhibited a "basic similarity" to the attitudes, ideas, and experience of the people living in the other villages within the Kotzebue venue district.

The superior court explained that Smith was essentially asking the court to assume that, because Kotzebue was a city, the people living in Kotzebue must have a materially different culture and lifestyle from the people living in the smaller villages. But the court declined to make this assumption in the absence of evidence.

The court noted that even though Smith's attorney had made several assertions about the purported cultural differences between the residents of Kotzebue and the residents of the outlying villages, Smith's attorney "present[ed] no evidence that hunting or the subsistence lifestyle [was] any less prevalent in Kotzebue than in other communities [within the venue district]". Nor did Smith present any evidence that Kotzebue residents would not reflect "the same attitudes, ideas, and experiences as other residents of the [venue] district."

Apparently on its own initiative, the superior court examined census information comparing the residents of Kotzebue to the residents of Kiana, the residents of House District 40, and residents of the Second Judicial District as a whole. This data included information as to what percentage of residents identified themselves as Alaska Natives, or as having an Alaska Native heritage. The data also included information regarding how many people had salaried employment, how many people were unemployed, how many people were receiving food stamps, and how many households were multi-generational.

The court found that this data supported the conclusion that the residents of Kotzebue "[fell] squarely within the same culture as Kiana [and] House District 40", and that there was "no cognizable group ... present in Kiana [or] House District 40" that was not "also present in Kotzebue".

And with particular respect to the belief in "inukins", the court noted that Smith presented no evidence regarding how many residents of Kiana believed in these supernatural beings. Rather, Smith's only evidence of this cultural belief was a decades-old Kotzebue newspaper article which stated that some residents of Kotzebue believed in inukins.

Based on all this, the superior court concluded that Smith had failed to show that a jury pool drawn from the residents of Kotzebue would not adequately represent the "attitudes, ideas[,] and experiences" of the residents of Kiana and the other villages within the Kotzebue venue district.

After the superior court issued this ruling, Smith's attorney separately challenged the presiding judge's decision to reduce the Kotzebue jury selection area from the normal 50-mile radius to a smaller 5-mile radius. As we have already explained, the Administrative Rules give presiding judges the authority to reduce a jury selection radius if the transportation and housing of prospective jurors from this normal 50-mile radius would pose an unreasonable expense.

Smith's attorney noted that, in the case of the Kotzebue jury selection area, the presiding judge's order declared that a 50-mile jury selection radius would pose an unreasonable expense, but the judge's order did not provide any of the data or financial information that the judge relied on when reaching this conclusion. The defense attorney asked the superior court to give him an opportunity to show that the presiding judge's conclusion was wrong, so that the Kotzebue jury selection area could at least be expanded to the normal 50-mile radius - a radius that would include the two villages of Noorvik and Noatak.

The superior court summarily denied the defense attorney's motion.

Smith's claims on appeal

On appeal, Smith asserts that all residents of Alaska have a right to serve on juries. Based on this assertion, Smith suggests that Administrative Rule 15(c) is unconstitutional, at least as it is applied in many areas of Alaska, because the 50-mile jury selection radius prescribed by Rule 15(c) often excludes significant numbers of rural residents, and because there are many areas of the state where these excluded rural residents are predominantly Alaska Native.

Smith did not raise this generalized, state-wide attack on Administrative Rule 15(c) in the trial court. Nor is it clear that Smith has standing to attack the method of jury selection that is employed in other areas of Alaska. We therefore will address Smith's contentions only as they apply to the method of jury selection in the Kotzebue venue district.

Smith contends that all residents of the Kotzebue venue district have a right to serve on juries, and that Administrative Rule 15(c) unlawfully abridges this right. But while courts often speak of jury service as a "right", such statements are generally made in the context of ensuring that all adults within a legally defined vicinage have an equal chance of being included in the lists of prospective jurors drawn from that vicinage.

As the Supreme Court of California has explained, citizens have no freestanding right to serve on juries:

While trial by jury is constitutionally implanted in our system of justice, an individual's interest in serving on a jury cannot be held a fundamental right. The [jury trial] guarantee of the Sixth Amendment is primarily for the benefit of the litigant - not persons seeking service on the jury; and even though [a citizen is] lawfully qualified, a citizen may not demand to serve on a jury. At most, the citizen is entitled to be considered for jury service. His interest in becoming a juror is clearly secondary to the interests of the litigants in securing an impartial jury, as shown by the traditional exclusion of prospective jurors for cause or upon peremptory challenge. Jury service is commonly viewed more as a combination of duty and privilege than as a right, sanctions being imposed for failure to appear.

Adams v. Superior Court of San Diego County , 12 Cal.3d 55, 115 Cal.Rptr. 247, 524 P.2d 375, 379 (1974).

Moreover, because Smith's argument implicitly rests on the concept of vicinage (i.e. , the assertion that all adults within a vicinage should have an equal chance of being included in the lists of prospective jurors), his argument is fundamentally at odds with our supreme court's decision in Alvarado .

As we have explained, Alvarado expressly holds that Alaska law does not incorporate the traditional notion of vicinage - and, thus, juries need not be drawn from the geographic locale where the crime was allegedly committed, so long as the pool of prospective jurors includes people who are representative of the community residing at the location of the alleged offense. Alvarado , 486 P.2d at 902. Thus, the decision in Alvarado implicitly rejects the idea that all citizens within a venue district have an equal right to be included in that district's lists of prospective jurors.

For these reasons, we reject Smith's argument that Administrative Rule 15(c) is unconstitutional because it authorizes the Alaska Court System to compile lists of prospective jurors that do not include all residents of the Kotzebue venue district.

We now turn to Smith's argument that the Alaska Court System is violating his rights under Alvarado by limiting the pool of prospective jurors to those people living within a 5-mile radius of the Kotzebue court.

To prevail on this claim, Smith must show (1) that the residents of the community where his crime occurred (Kiana and its environs) are members of a culture that is materially distinct from the culture of the residents of Kotzebue under the test announced in Alvarado , and (2) that a jury pool drawn from the residents of Kotzebue will fail to fairly and reasonably represent the culture of the residents of Kiana (in proportion to the number of Kiana residents within the venue district). See Tugatuk v. State , 626 P.2d 95, 100 (Alaska 1981). See also Wyatt v. State , 778 P.2d 1169, 1170-71 n. 2 (Alaska App. 1989) (clarifying that Alvarado does not invariably require that the jury selection pool include residents of the place where the crime occurred, so long as the jury selection pool includes a reasonable number of people who share the culture of that place).

Here, it was Smith's burden to affirmatively demonstrate to the superior court that the residents of Kiana and its environs were members of a separate, cognizable cultural group whose interests could not be adequately protected by a jury pool whose members were drawn from the residents of Kotzebue. See Hampton v. State , 569 P.2d 138, 148 (Alaska 1977) ; Dana v. State , 623 P.2d 348, 351-52 (Alaska App. 1981).

In Alvarado , the supreme court found that the defendant met this burden through census and sociological data of the kind that the superior court examined in Smith's case, as well as through the testimony of a professor of sociology and the affidavits submitted by a cultural anthropologist and by the former director of the Alaska Human Rights Commission.

But as we have already explained, Smith relied on arguments and assumptions that were supported by very little evidence.

Unlike the defendant in Alvarado , Smith did not provide the superior court with testimony or other evidence to back up his assertion that the residents of Kotzebue and the residents of the outlying villages constituted two distinct cultural groups. Indeed, the only evidence pertinent to Smith's claim was the census data that the superior court provided sua sponte . And based on the record in front of it, the superior court concluded that Smith had failed to meet his burden of proof.

To the extent that the superior court's ruling rested on questions of fact - for example, findings regarding the general attitudes, experiences, and lifestyles of the residents of Kiana versus the residents of Kotzebue - we conclude that the superior court's findings are not clearly erroneous.

The superior court's ruling also rested on its legal conclusion that, whatever differences might exist between life in Kiana and life in Kotzebue, those differences did not amount to a "cognizable" cultural difference for purposes of Alvarado , Hampton , Tugatuk , and Wyatt . We review this aspect of the superior court's ruling de novo .

But given the superior court's ultimate finding of fact - its finding that Smith failed to establish any significant differences between the attitudes, ideas, and experience of Kotzebue residents and the attitudes, ideas, and experience of the people living in the other villages within the venue district - we affirm the superior court's legal conclusion that Smith failed to demonstrate any cognizable cultural difference for purposes of Alvarado , Hampton , Tugatuk , and Wyatt .

We therefore reject Smith's claim that the Alaska Court System violated his rights under Alvarado by limiting the jury selection area to a 5-mile radius of Kotzebue.

Finally, Smith argues that even if the 5-mile jury selection radius did not violate his rights under Alvarado , this jury selection area was nevertheless unlawful because the presiding judge of the Second Judicial District lacked a sufficient factual basis for reducing the Kotzebue jury selection to a radius of 5 miles, rather than using the normal 50-mile jury selection radius prescribed by Administrative Rule 15(c).

As we have explained, the presiding judge's order was based on a finding that the transportation and housing of prospective jurors from Noorvik and Noatak (the two villages within a 50-mile radius of Kotzebue) would pose an unreasonable expense. In the superior court, Smith argued that the facts did not support the presiding judge's finding, or (alternatively) that conditions had changed since the presiding judge made this finding, and the finding was now outdated. But the superior court refused to grant Smith an evidentiary hearing on this issue.

We conclude that it was error for the superior court to refuse Smith a hearing on this issue. In reaching this conclusion, we express no opinion as to whether the facts support the presiding judge's finding that it would be unreasonable for the Court System to bear the cost of transporting and housing prospective jurors from the villages of Noorvik and Noatak. Nor do we express any opinion as to what remedy Smith would be entitled to, even if he could show that the presiding judge's finding was not supported by the facts.

Conclusion

Based on the findings of the superior court, we reject Smith's claim that the jury selection pool in his case failed to represent a fair cross-section of the community living where the crime occurred. We also reject Smith's claim that all adult citizens living in the Kotzebue venue district have a right to serve on juries, and that Alaska Administrative Rule 15(c) is unconstitutional because it restricts the jury selection area to a 50-mile radius of the court location.

But with respect to Smith's claim that the facts do not support the presiding judge's decision to restrict the Kotzebue jury selection area to a 5-mile radius (rather than the normal 50-mile radius prescribed by Administrative Rule 15(c) ), we conclude that it was error for the superior court to deny Smith a hearing on this issue.

We therefore remand Smith's case to the superior court, to give Smith the opportunity to make his case that the costs of transporting and housing prospective jurors from Noorvik and Noatak - the two villages within a 50-mile radius of Kotzebue - would not be unreasonable. If Smith establishes that the cost of summoning prospective jurors from these two villages would not be unreasonable, then the superior court should decide the further issue of whether Smith is entitled to any relief.

The superior court shall conduct these additional proceedings within 90 days of the issuance of this opinion. After the superior court issues its decision on these matters, the parties (either or both of them) shall have 30 days to seek our review of the superior court's decision. We retain jurisdiction of this appeal for that purpose.

      This map is available at: https://public.courts.alaska.gov/web/rules/docs/venuemap.pdf

      Alvarado , 486 P.2d at 892-93.

      Id. at 894.

      Id. at 892-93.

      Id. at 895.

      Id. at 903-05.

      Id. at 895, 903.

      Id. at 896.

      Ibid.

      Ibid .

      Id. at 902 n. 29.

      John v. State , 35 P.3d 53, 55 (Alaska App. 2001) ; see also Dana v. State , 623 P.2d 348, 351 (Alaska App. 1981) (stating that a former version of Criminal Rule 18 was "directly aimed at avoiding the type of situation which gave rise to Alvarado ").

      John v. State , 35 P.3d 53, 55 (Alaska App. 2001).

      Alvarado v. State , 486 P.2d 891, 894-95 (Alaska 1971).