author: Judge WOLLENBERG.

text:
    Dwight Samuel O'CONNOR, Appellant, v. STATE of Alaska, Appellee.
    Court of Appeals No. A-12328
    Court of Appeals of Alaska.
    May 24, 2019
    Jason A. Weiner, Gazewood & Weiner, P.C., Fairbanks, under contract with the Office of Public Advocacy, Anchorage, for the Appellant.
    Eric A. Ringsmuth, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.
    Before: Allard, Chief Judge, Wollenberg, Judge and Mannheimer, Senior Judge.

      Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).

   Judge WOLLENBERG.

Dwight Samuel O'Connor was indicted on three counts of first-degree sexual assault against P.A.B. - one count of penile-vaginal penetration, one count of digital-vaginal penetration, and one count of fellatio. A jury acquitted O'Connor of digital penetration and fellatio but did not reach a verdict on the charge of penile penetration. The State then retried O'Connor. At the second trial, a jury convicted O'Connor of the remaining count.

On appeal, O'Connor argues that the trial court erred in precluding him from introducing evidence of the acquittals from his first trial.

Initially, the court ruled that O'Connor's two prior acquittals would be admissible if the State introduced testimony regarding the conduct underlying those two counts. But at trial, the State did not elicit testimony from P.A.B. regarding the conduct for which O'Connor had been acquitted, nor did the State rely on this conduct as substantive evidence of O'Connor's guilt. Rather, the evidence pertaining to the digital penetration and the fellatio was elicited by O'Connor's attorney during his cross-examination of P.A.B., solely for the purpose of impeaching P.A.B.'s testimony.

Accordingly, the trial court instructed the jury that any testimony about those other alleged acts of penetration was relevant only to assessing the credibility of the witnesses - and not as substantive evidence of O'Connor's guilt. And the court declined to admit evidence of O'Connor's prior acquittals.

As we explain in this opinion, we conclude that the trial court's ruling was not an abuse of discretion, given the way this issue was litigated.

O'Connor also argues that the State presented insufficient evidence to support his conviction. Viewing the evidence in the light most favorable to the jury's verdict, we conclude that the evidence was sufficient to support O'Connor's conviction.

Finally, O'Connor argues that the sentencing judge erred in declining to refer his case to the statewide three-judge sentencing panel based on the non-statutory mitigating factor of extraordinary potential for rehabilitation. For the reasons explained in this opinion, we conclude that a remand is required so that the sentencing judge can re-assess whether referral to the three-judge panel is warranted under the totality of the circumstances.

Factual background and procedural history

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

In July 2011, after a night of drinking and socializing, P.A.B. took a taxi to Penland Mobile Home Park in Anchorage. At the time, P.A.B. was homeless, and she would often sleep at a friend's house.

When P.A.B. arrived at the residence where she was supposed to sleep that night, P.A.B. discovered that the door was locked and she could not get inside. P.A.B. walked back to the road and decided to hitchhike to the apartment of another friend.

P.A.B. eventually saw a white truck drive past her. This truck turned around and pulled up next to her. The driver - later identified as O'Connor - offered P.A.B. a ride, and P.A.B. got into the truck.

Instead of driving P.A.B. to her friend's apartment, O'Connor took her to a fenced-off construction yard. O'Connor unlocked the gate, parked the truck, and guided P.A.B. to a small camper trailer. P.A.B. went inside because she assumed that O'Connor was taking her to get another drink.

The next thing P.A.B. remembered was O'Connor lying naked on top of her, with her pants removed. P.A.B. tried to kick O'Connor off of her, but she was unable to do so. According to P.A.B.'s later testimony, O'Connor pulled P.A.B.'s hair back and put his hands around her neck. O'Connor repeatedly yelled at P.A.B. that he could not "come" in her vagina and that he wanted "to rape [P.A.B.'s] ass"; P.A.B. told him to stop and to get off of her.

At some point, O'Connor put lotion on both of their genitals and penetrated P.A.B.'s vagina with his penis, but he did not ejaculate. When he could not maintain an erection, O'Connor became angry, and he threw P.A.B. face down on the bed and attempted to penetrate her anus with his penis, but he was unable to do so.

O'Connor eventually stopped and drove P.A.B. to her friend's apartment. P.A.B. knocked on the door, and when her friend answered, she immediately told him that she had been raped. P.A.B. then reported the sexual assault, and she subsequently met with the police. P.A.B. described O'Connor, his white truck, and the last three numbers of the truck's license plate.

P.A.B. underwent a SART examination, during which she reported feeling pain and soreness in her vaginal area. The forensic examination revealed an abrasion on P.A.B.'s chest, a bruise on P.A.B.'s hymen, and a laceration to P.A.B.'s perineal area, in addition to bruises on P.A.B.'s shoulder, back, clavicle, and right inner thigh.

The police subsequently located O'Connor and talked with him at the construction yard. O'Connor told the police that he had picked up P.A.B. and dropped her off at her friend's residence without incident; he denied having any sexual contact with P.A.B.

When the police interviewed O'Connor a second time, O'Connor again initially denied having any sexual contact with P.A.B. But when the police presented O'Connor with evidence that undermined his account, O'Connor admitted that he had lied when he denied having sexual contact with P.A.B. O'Connor now claimed that P.A.B. voluntarily removed her pants after he drove her back to his trailer, and she started performing oral sex on him. O'Connor stated that he rubbed his hands and penis against P.A.B.'s vagina, but he continued to deny that he had penetrated her with his penis, claiming that he was physically unable to do so.

Later during the same interview, O'Connor again changed his story and said that he had managed to penetrate P.A.B.'s vagina with his penis for a few seconds.

A grand jury indicted O'Connor on three counts of first-degree sexual assault. At O'Connor's first trial in February 2014, the jury acquitted O'Connor of two counts (digital-vaginal penetration and fellatio), but the jury could not reach a verdict on the remaining count (penile-vaginal penetration).

The State retried the remaining count. At the second trial, the previous evidence was adduced, and O'Connor testified. O'Connor stated that the entire encounter with P.A.B. was consensual. The jury convicted O'Connor of first-degree sexual assault for engaging in penile penetration with P.A.B. without her consent.

Why we uphold the trial court's decision to preclude the admission of evidence of O'Connor's prior acquittals

Prior to O'Connor's second trial, O'Connor's attorney filed a motion to introduce evidence of the acquittals from the first trial. In this motion, O'Connor's attorney announced that he intended to rely on a defense of consent, and he anticipated that the State would seek to introduce the acts for which O'Connor was acquitted as propensity evidence under Alaska Evidence Rule 404(b)(3). O'Connor's attorney argued that, if the State introduced evidence of the conduct for which O'Connor was acquitted, then he should be permitted to introduce evidence of the acquittals.

After the prosecutor told the court that she anticipated that P.A.B. would discuss this other conduct as part of her description of the events, the judge preliminarily ruled that evidence of the prior acquittals would be admissible under the Alaska Supreme Court's decision in Hess v. State and this Court's unpublished decision in Espinal v. State .

But during P.A.B.'s direct examination, when the prosecutor asked P.A.B. to describe what had happened with O'Connor, P.A.B. testified about O'Connor's attempts at penile penetration, but she did not testify to any acts of fellatio or digital penetration. As a result, following P.A.B.'s direct examination, the prosecutor asked the judge to reconsider his ruling about O'Connor's prior acquittals.

O'Connor's attorney did not present a new legal argument in favor of admitting the acquittals. He indicated, however, that he might seek to impeach P.A.B. with her prior statements from the first trial about these acts. He argued that, if he did so, at a minimum there would need to be a limiting instruction advising the jurors to use the evidence of this other conduct solely for purposes of assessing P.A.B.'s credibility, and not for O'Connor's propensity to commit sexual assault. (O'Connor's attorney specifically noted that he was not contending that the prosecutor had instructed P.A.B. not to discuss the conduct for which O'Connor had been acquitted.)

The trial court agreed with the prosecutor that the acquittals were not relevant to P.A.B.'s testimony at that point, since the State had not introduced evidence of the conduct underlying those acquittals to rebut O'Connor's consent defense. And the court ruled that if the defense attorney introduced evidence of these acts during cross-examination for impeachment purposes (and the prosecutor did not suggest that this evidence was otherwise relevant for propensity purposes), then the acquittals would remain inadmissible.

During his cross-examination of P.A.B., O'Connor's attorney impeached P.A.B. with her prior statements that O'Connor had forced her to perform fellatio and had forcibly penetrated her vagina with his fingers. The attorney did not mention the prior trial or the prior charges; he simply confronted P.A.B. with the fact that she had made these prior allegations, both before the grand jury and again later "under oath." When pressed as to why she had omitted discussion of these other acts during her testimony on direct examination, P.A.B. said that she "forgot" about those aspects of the assault.

The prosecutor did not address this issue on redirect, and the prosecutor did not argue in closing that these other acts made it more likely that O'Connor engaged in the conduct for which he was on trial. As a result, the jury was never informed of the prior acquittals.

Consistent with O'Connor's request for a limiting instruction, the trial court instructed the jury to restrict its consideration of the other-acts evidence solely to assessing P.A.B.'s credibility. In particular, the court instructed the jury that O'Connor was "on trial solely for one count of penile-vaginal penetration," and that the jury should not consider evidence of other types of sexual penetration "when determining whether the State has satisfied its burden of establishing, beyond a reasonable doubt, that the defendant engaged in sexual penetration, penis to genitals, with P.A.B., without the consent of P.A.B." Rather, the court told the jury that it could consider this evidence only in "assessing [the] witnesses' overall credibility regarding the events on the night in question." In his closing argument, O'Connor's attorney argued - consistent with this instruction - that P.A.B.'s failure to remember such significant aspects of the assault undermined P.A.B.'s credibility.

On appeal, O'Connor argues that the trial court erred in precluding him from introducing evidence of his prior acquittals. In support of his argument, O'Connor relies on the supreme court's decision in Hess .

As a general matter, "a defendant's acquittal of one charge is ... not relevant to prove [the defendant's] factual innocence of the facts underlying that charge." Rather, the acquittal "proves only that the state did not prove every element of the crime beyond a reasonable doubt."

Nevertheless, the Alaska Supreme Court held in Hess that when the State introduces evidence that the defendant has committed another crime, the defense may introduce evidence that the defendant was acquitted of that other crime. The court concluded that, in those instances, the acquittal helps the jury weigh the evidence of the prior act. That is, "[e]ven though the defendant's acquittal does not prove that he was innocent of the prior act, a jury may reasonably infer a greater probability of innocence from the fact of the acquittal."

O'Connor's case is distinguishable from Hess . Here, the other conduct was not admitted as substantive evidence tending to establish O'Connor's guilt. That is, the other conduct was not admitted for propensity purposes, nor was it admitted to contextualize and explain P.A.B.'s account and chronology of the events.

Indeed, this evidence was not introduced by the State at all. Rather, the evidence of these other acts was introduced by O'Connor's attorney, solely to impeach P.A.B. And the parties' use of this evidence was limited throughout the trial to that purpose, consistent with the trial judge's instruction to the jury.

Thus, unlike in Hess , the acquittals in this case were not relevant to rebut an argument by the prosecutor that O'Connor's other acts of sexual assault tended to prove his propensity to commit the charged sexual assault.

Seemingly, the only purpose of the acquittals would have been to suggest that the prior jury had doubts about P.A.B.'s credibility. But under Hess , a prior acquittal is not admissible for this purpose. That is, an acquittal is not admissible to establish the historical facts underlying the prior jury's verdict or the reasons why the prior jury had a reasonable doubt. And in any event, O'Connor's attorney never argued that the prior jury acquitted him because of doubts about P.A.B.'s credibility, and O'Connor does not argue this on appeal. (In fact, he has not requested or supplied a transcript of the first trial for our review.)

On appeal, O'Connor does not cite any authority that would support admission of the acquittals under these circumstances. Given this record, we uphold the trial court's decision precluding admission of the acquittals.

Why we uphold the trial court's denial of O'Connor's motion for a judgment of acquittal

After the State rested at O'Connor's second trial, O'Connor's attorney moved for a judgment of acquittal. The trial court denied this motion.

On appeal, O'Connor renews his claim that there was insufficient evidence to support his conviction. O'Connor argues that P.A.B. was not a credible witness and that the physical evidence was consistent with consensual sexual activity.

But when this Court reviews the sufficiency of the evidence to support a conviction, we do not weigh the credibility of witnesses, as witness credibility is exclusively a question for the jury. Rather, we view the evidence, and all reasonable inferences from that evidence, in the light most favorable to upholding the jury's verdict. Viewing the evidence in that light, we then ask whether a reasonable juror could have concluded that the State proved its case beyond a reasonable doubt.

Here, the jury could reasonably credit P.A.B.'s testimony about the events and her reports to her friend and to the police that she was sexually assaulted, together with her injuries, to conclude that O'Connor engaged in sexual penetration with P.A.B. without her consent within the meaning of AS 11.41.410(a)(1). The jury could also reasonably consider O'Connor's own shifting statements to the police regarding these events.

Viewing the evidence in the light most favorable to the jury's verdict, we conclude that the State presented sufficient evidence to support O'Connor's first-degree sexual assault conviction.

Why we remand O'Connor's case to the trial court for reconsideration of his request for referral to the three-judge sentencing panel

As a first felony offender convicted of first-degree sexual assault, O'Connor was subject to a presumptive sentencing range of 20 to 30 years. Under former AS 12.55.125(o)(1), the court was also required to impose a minimum period of suspended imprisonment of 5 years. O'Connor was fifty-one years old at the time he sexually assaulted P.A.B. He had little criminal history, having been convicted of negligent driving in 1979 and taking a sub-legal Dall sheep in 2003.

Prior to sentencing, O'Connor's attorney filed a motion seeking referral of O'Connor's case to the statewide three-judge sentencing panel based on the non-statutory mitigator of extraordinary potential for rehabilitation. In support of this motion, O'Connor's attorney noted O'Connor's minor criminal history, his history of community service, including his service as a member of the Public Safety Advisory Commission and a regular volunteer for the Community Safety Patrol, and his strong support system of friends and family (as evidenced by the letters submitted to the court on O'Connor's behalf). At the sentencing hearing itself, O'Connor's attorney further noted that O'Connor had participated in the Static-2002R, an actuarial tool designed to assess the risk of recidivism for sex offenders, and that this test classified him as having a low risk of re-offending.

The State opposed O'Connor's three-judge panel request. The prosecutor argued that O'Connor had to prove "five elements" to establish that he had extraordinary potential for rehabilitation, and that he had failed to do so. (The prosecutor also variously referred to these considerations as "factors" or "steps.")

According to the prosecutor, these five elements were: (1) that the defendant is a first felony offender; (2) that the crime is out of character for the defendant; (3) that the court understands the problems that led the defendant to engage in criminal conduct; (4) that the criminal conduct is unlikely to be repeated; and (5) that there is reason to believe that the defendant can be rehabilitated in a period shorter than the presumptive sentencing range.

The trial court denied O'Connor's request to refer his case to the three-judge panel. Significantly, the court found that O'Connor was unlikely to ever repeat his criminal conduct. However, the court expressed uncertainty as to why O'Connor had committed the sexual assault, and the court therefore concluded that it could not determine whether he could be adequately rehabilitated in a period shorter than the presumptive range. The court ultimately imposed a sentence of 25 years with 5 years suspended (20 years to serve) - the lowest permissible sentence within the presumptive range.

On appeal, O'Connor underscores the trial court's finding that he was unlikely to re-offend, and he argues that this finding was essentially a confirmation of his exceptionally good prospects for rehabilitation, justifying referral of his case to the three-judge panel. He contends that when a court makes a finding that a defendant is unlikely to recidivate, then it becomes less important for the court to identify the precise reasons why the defendant committed the offense.

We agree with O'Connor that the trial court's finding that O'Connor's conduct was "unlikely [to] ever be repeated" was significant and that it lessened the need to understand the precise reasons for O'Connor's criminal conduct. Given that, we are concerned that the trial court adopted the five-factor test proposed by the prosecutor and, as a result, appeared to heavily weigh one particular factor - the reason for O'Connor's conduct - to the exclusion of the totality of the circumstances.

When evaluating whether a defendant has extraordinary potential for rehabilitation, the sentencing court must apply a "totality of the circumstances" test. Although the considerations proposed by the prosecutor were relevant to the court's analysis, there is no set "five-factor" test.

Moreover, as O'Connor notes, the court made two findings that are potentially at odds with each other: the judge affirmatively found that O'Connor was unlikely to ever commit sexual assault again, but the judge declined to refer O'Connor's case to the three-judge panel because the judge could not identify the precise reason(s) why O'Connor committed the sexual assault in this case.

The judge's two findings accentuate an ambiguity or potential difficulty in the ways that this Court has described the non-statutory mitigating factor of extraordinary potential for rehabilitation.

In Kirby v. State , this Court declared that a sentencing court is justified in concluding that a defendant has unusually good potential for rehabilitation when "the court is satisfied, after reviewing the totality of the circumstances, that [the defendant] can adequately be treated in the community and need not be incarcerated for the full presumptive term in order to prevent future criminal activity."

Three years later, in Lepley v. State , this Court attempted to clarify the Kirby test: we declared that a sentencing court should not make "a prediction of successful treatment and non-recidivism" unless the court "is reasonably satisfied both that it knows why a particular crime was committed and that the conditions leading to the criminal act will not recur - either because the factors that led the defendant to commit the crime are readily correctable or because the defendant's criminal conduct resulted from unusual environmental stresses unlikely ever to recur."

In O'Connor's case, the sentencing judge found that O'Connor's criminal conduct was "unlikely [to] ever be repeated," both because it was out of character for him and because O'Connor had already been strongly deterred by the criminal justice process. Thus, even though the judge could not identify the precise reasons for O'Connor's criminal conduct, the judge affirmatively found that O'Connor was unlikely to re-offend.

However, the judge also concluded that, as a legal matter, his inability to identify the precise reasons for O'Connor's sexual assault precluded him from referring O'Connor's case to the three-judge sentencing panel. The judge reasoned that, because he could not identify the precise causes of O'Connor's criminal conduct, he could not predict with any assurance that O'Connor would be rehabilitated in a shorter time frame than the 20-year minimum sentence required by the applicable presumptive sentencing range.

Obviously, there is a tension between the judge's finding that O'Connor will not re-offend and the judge's statement that he could not reasonably predict whether O'Connor could be rehabilitated in less than 20 years.

The tension arises from the fact that, in this context, a finding that the defendant will not re-offend is equivalent to a finding of "rehabilitation." As used in the criminal law, the term "rehabilitation" (or its synonym, "reformation") means that the defendant need not be confined in order to prevent future criminal activity, and that the defendant can be expected to be a law-abiding citizen.

(See Black's Law Dictionary , which defines "rehabilitation" for criminal law purposes as "[t]he process of seeking to improve a criminal's character and outlook so that he or she can function in society without committing other crimes." Or, as this Court suggested in Kirby , "rehabilitation" is the converse of recidivism or continued dangerousness. )

Although our decision in Lepley could be interpreted as strictly prohibiting a sentencing judge from making a finding of extraordinary potential for rehabilitation unless the judge is able to identify the precise causes of the defendant's criminal behavior, such an interpretation would be unwarranted. While identifying the causes of a defendant's criminal behavior may better assist a judge in predicting rehabilitative potential, sometimes, even after a comprehensive analysis, the ultimate causes of a person's actions remain murky, and a judge may be unable to identify the precise reasons why the person engaged in particular antisocial behavior. But even in these situations, there may still be articulable reasons to conclude that the behavior will not recur.

We interpret Lepley as saying that a sentencing judge may not rely on hunches about the defendant, or personal assessments of the defendant's character, when the judge makes a finding of extraordinary potential for rehabilitation. Rather, the judge must have articulable reasons, based on the evidentiary record, for concluding that the defendant can be rehabilitated earlier than the minimum term of imprisonment prescribed by the applicable presumptive sentencing range - even though these articulable reasons may not precisely identify the ultimate causes of the defendant's criminal behavior.

Here, although the court could not pinpoint the precise reason for O'Connor's conduct, it posited several rationales. Ultimately, the court concluded that O'Connor's conduct was unlikely to "ever be repeated" - that, regardless of the reasons for O'Connor's conduct, he had been strongly deterred by the entire criminal process. The court also concluded that O'Connor had prospects for rehabilitation that were "well above average."

We acknowledge that there were factors weighing against a finding of extraordinary potential for rehabilitation: the court found that O'Connor had not expressed remorse for his conduct, and the court found that O'Connor's own evasiveness with the police, and his shifting narrative, suggested that he had exhibited some "level of deception" that contradicted his lifetime of community service. But we conclude that it is appropriate to remand O'Connor's case so that the trial court can, in the first instance, apply a totality of the circumstances test to evaluate O'Connor's request to refer his case to the three-judge panel in light of the guidance we have provided here.

Conclusion

We AFFIRM O'Connor's conviction. We REMAND O'Connor's case for reconsideration of his request for referral to the three-judge panel based on the nonstatutory mitigator of extraordinary potential for rehabilitation, and we retain jurisdiction over this matter. The superior court shall report to us within 90 days of the issuance of this opinion. This deadline may be extended for good cause.

      See Newsom v. State , 199 P.3d 1181, 1188 (Alaska App. 2009).

      AS 11.41.410(a)(1).

      See Dowling v. United States , 493 U.S. 342, 348, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990) (upholding, against constitutional challenge, the admission under Federal Evidence Rule 404(b) of conduct for which a defendant was previously acquitted). Alaska Evidence Rule 404(b)(3) provides, in relevant part, that "[i]n a prosecution for a crime of sexual assault in any degree, evidence of other sexual assaults or attempted sexual assaults by the defendant against the same or another person is admissible if the defendant relies on a defense of consent."

      Hess v. State , 20 P.3d 1121, 1127 (Alaska 2001) ; Espinal v. State , 2013 WL 6576734, at *6 (Alaska App. Dec. 11, 2013) (unpublished).

      Hess , 20 P.3d at 1125.

      Id.

      Id. at 1127 ; Espinal , 2013 WL 6576734, at *6.

      Hess , 20 P.3d at 1125 (emphasis added).

      Id. at 1127.

      See State v. Washington , 257 N.W.2d 890, 893 (Iowa 1977) (holding that the defendant was not entitled to the admission of prior acquittals because evidence of the prior charges was first elicited by defense counsel).

      Morrell v. State , 216 P.3d 574, 576 (Alaska App. 2009) ; Daniels v. State , 767 P.2d 1163, 1167 (Alaska App. 1989).

      Iyapana v. State , 284 P.3d 841, 848-49 (Alaska App. 2012).

      Johnson v. State , 188 P.3d 700, 702 (Alaska App. 2008).

      AS 12.55.125(i)(1)(A)(ii).

      AS 12.55.165(a) ; Smith v. State , 711 P.2d 561, 571-72 (Alaska App. 1985) (first recognizing extraordinary potential for rehabilitation as a non-statutory mitigator).

      See Kirby v. State , 748 P.2d 757, 766 (Alaska App. 1987).

      Id.

      Lepley v. State , 807 P.2d 1095, 1100 (Alaska App. 1991).

      Black's Law Dictionary (10th ed. 2014), at 1476.

      Kirby , 748 P.2d at 766.


source: Caselaw Access Project

license: Public Domain

text:
    Mark Daniel TORGERSON, Appellant, v. STATE of Alaska, Appellee.
    Court of Appeals No. A-13416
    Court of Appeals of Alaska.
    June 7, 2019
    Mary Fleming Burnell, Assistant Public Defender, and Beth Goldstein, Acting Public Defender, Anchorage, for the Appellant.
    Bonnie E. Bull, Assistant District Attorney, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee.
    Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges.
   Judge WOLLENBERG.

Mark Daniel Torgerson seeks appellate review of the superior court's refusal to modify the conditions of his pretrial bail release. Torgerson argues that, at his first bail review hearing, the superior court failed to conduct an independent review of his bail conditions, and instead improperly deferred to the bail conditions previously set by the district court at Torgerson's first appearance.

We agree with Torgerson. We therefore remand Torgerson's case to the superior court and direct the superior court to conduct an independent review of Torgerson's bail request.

Facts and proceedings

In early March 2019, the State charged Torgerson with two counts of first-degree sexual abuse of a minor. The State alleged that, four years ago - when Torgerson was sixteen years old - he performed fellatio on his three-year-old cousin and caused his cousin to perform fellatio on him.

Torgerson was arrested and brought before District Court Judge Jo-Ann Chung. At this first court appearance, the court presented Torgerson with the charges against him and appointed the Public Defender Agency to represent him.

The court then addressed bail. The prosecutor asked the court to set monetary bail in the amount of a $ 25,000 cash or corporate appearance bond and a $ 25,000 cash performance bond, and to require that Torgerson be subject to electronic monitoring through the Pretrial Enforcement Division. Torgerson, through his newly-appointed attorney, agreed to electronic monitoring but requested monetary bail in an amount of a $ 500 cash performance bond.

The district court imposed the non-monetary conditions agreed to by the parties: namely, house arrest with electronic monitoring and a bar on contact with the alleged victim or other minors under sixteen years old. But, without any explanation, the court set monetary bail at an amount higher than that requested by the prosecutor: a $ 50,000 cash or corporate appearance bond and a $ 50,000 cash performance bond.

Following Torgerson's indictment, Torgerson's attorney requested a bail hearing, pursuant to AS 12.30.006(c). This was Torgerson's first bail review hearing. Torgerson's attorney requested that the superior court impose a monetary bail of a $ 5,000 cash or corporate appearance bond and a $ 10,000 cash performance bond, in addition to house arrest with electronic monitoring.

Superior Court Judge Kevin M. Saxby presided over the hearing. At the hearing, Torgerson presented his proposal. He noted that he had stable housing in a residence with no minors, steady employment, and no prior criminal history, and that he was willing to submit to house arrest with electronic monitoring. The State opposed Torgerson's proposal. The prosecutor argued that bail had been "meaningfully set" at Torgerson's district court arraignment, and that the district court had considered the same facts that were then before the superior court.

The superior court denied Torgerson's proposal. The court stated that it was considering "pretty much the same issue" as was before the district court judge. The court made one case-specific finding - that the fact that Torgerson was four years older than he was at the time of the offense made him better able to leave the jurisdiction. Ultimately, the court concluded, "Given my understanding of what the situation was before Judge Chung, I agree that bail was appropriately set."

Why we remand Torgerson's case for a new bail review hearing

Alaska Statute 12.30.006(c) sets out the right to a first bail hearing:

A person who remains in custody 48 hours after appearing before a judicial officer because of inability to meet the conditions of release shall, upon application, be entitled to have the conditions reviewed by the judicial officer who imposed them. If the judicial officer who imposed the conditions of release is not available, any judicial officer in the judicial district may review the conditions.

We have previously construed a prior version of this statute, with similar language - former AS 12.30.020(f) (pre-July 1, 2010 version) - to require an independent assessment of bail conditions at a defendant's first bail hearing. We now re-affirm that, at a first bail review hearing, a judicial officer is required to assess a defendant's conditions of release anew.

The requirement of an independent review is reinforced by the statutory subsection immediately following AS 12.30.006(c). Under AS 12.30.006(d)(1), with a few noted exceptions, a defendant who remains in custody after a first bail review hearing is generally entitled to a second or subsequent bail review hearing only if the defendant provides "new information" to the court not previously considered at the first bail hearing. When subsections (c) and (d) are read together, it is clear that a defendant need not present any "new" information at the first bail review hearing under AS 12.30.006(c) - that is, the defendant need not present any information that was not previously known at the time of the defendant's first appearance. Instead, at a first bail hearing, a defendant who remains in custody is "entitled" to have the conditions reviewed by a judicial officer.

Additionally, AS 12.30.006(f) requires a judicial officer to "issue written or oral findings that explain the reasons the officer imposed the particular conditions of release or modifications or additions to conditions previously imposed." This provision precludes a court from simply relying on, or deferring to, findings made at an earlier hearing when bail was initially set.

A defendant's entitlement to an independent judicial assessment of bail conditions at the defendant's first bail review hearing rests on important constitutional and policy concerns. The right to bail is guaranteed by article I, section 11 of the Alaska Constitution, which provides that "[i]n all criminal prosecutions," the accused is "entitled ... to be released on bail, except for capital offenses when the proof is evident or the presumption great." While the Alaska Supreme Court has declared that a criminal defendant is not necessarily entitled to bail in an amount the defendant can post, a judge may not set bail in an amount that goes beyond that which is necessary to fulfill the purposes of bail - i.e. , to reasonably assure the defendant's appearance and the safety of the alleged victim, other persons, and the community.

Many, if not most, criminal defendants are represented by public counsel - counsel that is first appointed at the defendant's arraignment. At the time of the appointment, an attorney from the appointed agency may not be present to assist the defendant. If an attorney is present, that attorney will generally have only a few moments in court to consult with the agency's new client and glean whatever information the attorney can to present to the judge who sets the defendant's initial bail conditions. There is no opportunity for a complete and private consultation with the client, and no ability to independently explore or confirm possible bail release plans.

The requirement that judges conduct an independent assessment of a defendant's conditions of release at the first bail review hearing affords defendants a meaningful opportunity to consult with their attorney and gather any necessary information relevant to the bail decision. It also allows the court an opportunity to explain its bail decision, in order to help foster understanding of the decision by the defendant and the public, and to allow for meaningful appellate review.

Accordingly, we conclude that at a defendant's first bail review hearing, a court is required to conduct an independent assessment of the defendant's conditions of release. The court may not simply defer to the bail conditions imposed at a defendant's first court appearance.

Here, it appears that the superior court did not conduct the required independent assessment of Torgerson's bail conditions. The court repeatedly referred to the bail set by the district court judge at Torgerson's first appearance, and noted specifically that it was facing the "same issue" as was before the district court. While the court ultimately found that bail was "appropriately set," this conclusion was couched within the context of the earlier hearing: "Given my understanding of what the situation was before Judge Chung, I agree that bail was appropriately set."

The court's failure to set forth any explanation for why the particular bail conditions were the least restrictive necessary to reasonably assure Torgerson's appearance or the safety of the alleged victim or the community, as required by AS 12.30.006(f), reinforces the notion that the court did not conduct an independent review.

Indeed, we note that, at one point during the hearing, the superior court appeared to question the need for the high monetary bail given Torgerson's willingness to submit to house arrest with electronic monitoring. But once the court realized that the electronic monitoring condition was part of the original bail set by the district court (and was not a new condition proposed by Torgerson at the bail hearing), the court "reassessed the entire bail package that was put to Judge Chung," and the court declined to modify the bail set by the district court.

Because the superior court was required to independently assess Torgerson's conditions of release, and because we are unable to say that Torgerson received the hearing to which he was entitled, we remand Torgerson's case to the superior court so that the court can conduct this independent review.

On remand, the court should independently assess the bail conditions as a whole and explain why the monetary bail imposed is the least restrictive that will reasonably assure Torgerson's appearance and the safety of the alleged victim and the community, in light of the other protective measures in place. The court should not calibrate its choice of monetary bail by reference to the amount set at Torgerson's first appearance, or require Torgerson to justify a downward deviation from that number.

Conclusion

For the reasons explained here, we VACATE the bail order issued by the superior court and REMAND Torgerson's case to the superior court for an independent assessment of Torgerson's bail proposal, in light of the guidance provided here.

We do not retain jurisdiction.

      See Mayberry v. State , Court of Appeals File No. A-10717 (Order dated Apr. 12, 2010), at 2-3.

      See AS 12.30.006(c).

      See Alaska Const. art. I, § 12 (prohibiting excessive bail); Hamburg v. State , 434 P.3d 1165, 1165 (Alaska App. 2018) (citing Martin v. State , 517 P.2d 1389, 1393-95 (Alaska 1974) ); see also former AS 12.30.011(b) (2015) & AS 12.30.011(h) (requiring the court to set "least restrictive" condition or conditions that will reasonably assure the person's appearance and the safety of the community).

      See AS 18.85.100(a).

      See Pisano v. State , Court of Appeals File No. A-13289 (Order dated Jan. 16, 2019), at 7 (noting that a sufficient explanation of why a particular monetary bail is necessary in a given case is required for meaningful appellate review); Pisano v. State , Court of Appeals File No. A-13089 (Order dated May 24, 2018), at 5 (noting that deferential review of a trial court's decision to impose a particular bail presupposes that the trial court has demonstrably considered relevant factors and has provided a sufficient explanation of why the particular bail conditions were imposed).

      Former AS 12.30.011(b) (2015); AS 12.30.011(h).

      See Pisano v. State , Court of Appeals File No. A-13289 (Order dated Jan. 16, 2019), at 6-7; Pisano v. State , Court of Appeals File No. A-13089 (Order dated May 24, 2018), at 7-8.


text:
    Lanolan ANDERSON, Appellant, v. STATE of Alaska, Appellee.
    Court of Appeals No. A-12294
    Court of Appeals of Alaska.
    June 7, 2019
    Krista Maciolek, Law Office of Krista Maciolek, Inc., Palmer, under contract with the Office of Public Advocacy, Anchorage, for the Appellant.
    Michal Stryszak, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.
    Before: Mannheimer, Chief Judge, and Allard and Wollenberg, Judges.
   Judge WOLLENBERG.

Lanolan Anderson was convicted of three counts of first-degree assault. The superior court sentenced him to a composite term of 20 years to serve.

On appeal, Anderson raises several claims. First, Anderson argues that the court erred in failing to suppress his clothing, which the police seized without a warrant. Second, Anderson argues that the court erred in instructing the jury regarding a witness's unavailability. Third, Anderson argues that the court erred in rejecting two of his proposed mitigating factors and by giving insufficient weight to a third mitigating factor. Finally, Anderson argues that the court improperly found that Anderson had two prior felony convictions, rather than one, when determining the applicable presumptive sentencing range.

For the reasons explained in this decision, we reject Anderson's claims, and we affirm Anderson's convictions and his sentence.

Underlying facts and proceedings

In May 2009, shortly before midnight, Anderson kicked in the front door of a residence in Anchorage, and he and two accomplices (all three armed with handguns) entered the residence. Once inside, Anderson's accomplices shot two of the occupants and pistol-whipped a third. Anderson was also shot during this incident.

All three occupants of the residence required medical treatment for their wounds, and two of them were taken to Providence Medical Center. Because Anderson was wounded, he contacted a friend, and this friend also took him to the emergency room at Providence.

In response to the report of the shooting, Anchorage Police Officer Jean Mills went to Providence, where she expected to meet and interview the victims of the alleged home invasion. Mills arrived at the hospital just as Anderson got out of his friend's vehicle, and Mills could see that Anderson was bleeding from a wound to his abdomen. From this, Mills assumed that Anderson was one of the victims.

Mills accompanied Anderson into the emergency room and stayed there as the hospital staff treated him. Mills took photographs of Anderson as the medical staff worked on him, and she observed a gunshot wound to Anderson's left side when the staff cut off his clothing. Anderson at first confirmed that he had been at the residence where the home invasion occurred, but he later changed his story, telling Mills that he was in a grocery store parking lot when he was shot.

Another officer then informed Mills that Anderson was a possible suspect in the home invasion. After some further questioning, Mills seized all of the clothing that the medical staff had removed from Anderson, including his shoes.

The police subsequently compared a photograph of the soles of Anderson's shoes to photographs of shoe impressions left on the kicked-in front door of the residence, and they appeared to match. At trial, a witness from the crime laboratory testified to the match between Anderson's shoes and the shoe impressions on the front door of the residence. Crime lab representatives also testified that there was a blood stain on one of the shoes and that one of the victims could not be excluded as a source of the DNA found in the stain.

Anderson and his two accomplices were charged with numerous felonies, including three counts of first-degree assault (one for each alleged victim). Prior to trial, Anderson filed a motion to suppress, arguing that the police unconstitutionally seized his clothing from the hospital emergency room. Anderson asked the court to suppress his clothing, as well as photographs of the clothing and the forensic analysis comparing the soles of his shoes to shoeprints recovered from the crime scene.

The parties agreed to forgo an evidentiary hearing and to have the court decide the motion based on Officer Mills's police report. Based on the police report, the superior court found that the seizure of Anderson's clothing was justified by the plain view exception to the warrant requirement.

Anderson and his co-defendants were tried together. At trial, Anderson argued that the alleged victims had actually assaulted him.

The jury found Anderson guilty of the three first-degree assaults, but the jury was unable to reach verdicts on the remaining counts, including counts of first-degree robbery and conspiracy to commit first-degree robbery. Ultimately, the State dismissed the remaining counts against Anderson, and his case proceeded to sentencing on the three assault convictions. (The jury could not reach verdicts as to Anderson's co-defendants, and their cases were later resolved without a trial.)

At Anderson's sentencing, the superior court rejected Anderson's two proposed mitigators - that he played a minor role in the offenses, and that his conduct was the result of serious provocation from the victims. But the superior court did find that one of the assaults qualified as among the least serious conduct within the definition of the offense. Anderson conceded one aggravating factor - that he had a history of aggravated assaultive behavior.

Finally, over Anderson's objection, the superior court found that Anderson had two prior felony convictions for purposes of determining the applicable presumptive sentencing range. Because the court found that Anderson was a third felony offender, he was subject to a presumptive sentencing range of 15 to 20 years for each first-degree assault conviction. The court sentenced Anderson to a term of 15 years on each count. The court imposed some of this time consecutively, giving Anderson a composite sentence of 20 years, with no time suspended.

Anderson now appeals.

Why we affirm the superior court's denial of Anderson's suppression motion

Prior to trial, Anderson moved to suppress his clothing, arguing that the State had no justification for seizing the clothing without a warrant. The parties agreed that the superior court could decide this motion based solely on Officer Mills's police report and the parties' briefing - that is, without holding an evidentiary hearing.

Based on the police report, the court concluded that the seizure of the evidence was lawful because the evidence was in plain view. More specifically, the court found that (1) Officer Mills was in a place where she was lawfully entitled to be; (2) the discovery of Anderson's clothing was inadvertent, since Anderson arrived at the hospital while Mills was waiting for the victims of the home invasion; and (3) the evidentiary relevance of the clothing was immediately apparent.

Before we analyze the superior court's ruling, we must discuss the two meanings of the phrase "plain view."

In his leading treatise on search and seizure law, Professor Wayne R. LaFave points out that the phrase "plain view" is actually used in two distinct Fourth Amendment contexts.

The first context, known as the "plain view doctrine," originated in Justice Stewart's plurality opinion in Coolidge v. New Hampshire . This doctrine "refers exclusively to the legal justification ... for the seizure of evidence which has not been particularly described in a warrant and which is inadvertently spotted in the course of a constitutional search already in progress or in the course of an otherwise justifiable intrusion into a constitutionally protected area."

But courts also use the phrase "plain view" in a second context: to describe the situation "in which there has been no Fourth Amendment search at all," and where "an observation is made by a police officer without a prior physical intrusion into a constitutionally protected area." In this second context, where the observation of the evidence is not the result of a Fourth Amendment intrusion, "the observation is lawful without the necessity of establishing either pre-existing probable cause or the existence of a search warrant or one of the traditional exceptions to the warrant requirement."

As Professor LaFave emphasizes, this second meaning of "plain view" "involves no intrusion covered by the Fourth Amendment [and] need not meet the three requirements set out in the Coolidge plurality opinion." For this reason, courts sometimes describe this second context as "open view" rather than "plain view," to avoid any ambiguity.

When Anderson litigated his suppression motion in the trial court, the State relied on the Coolidge plain view doctrine to justify the seizure of Anderson's clothing. But Anderson argued that the Coolidge plain view doctrine did not apply to his case.

Anderson took the position that Officer Mills was lawfully in his hospital room, and thus the seizure of Anderson's clothing was not the result of a police intrusion into a constitutionally protected space. Rather, Anderson contended, the only Fourth Amendment violation that the police committed was the seizure of his clothing.

In other words, Anderson essentially argued that his case fell within the second category of cases described by Professor LaFave - situations where the police, acting without a warrant, seize evidence that is in open view.

"Open view" seizures are not necessarily lawful. While there may have been no unconstitutional search , the State must still establish that the seizure of the evidence was justified. It is true that the seizure of an article that is in open view does not involve any invasion of privacy, but the seizure does invade the owner's possessory interest in the item. As Professor LaFave explains, "the seizure itself constitutes an interference with 'effects' protected by the Fourth Amendment." Thus, in the absence of a search warrant, "some recognized ground for [a] warrantless seizure ... must be present."

Here, as part of the superior court's ruling on Anderson's suppression motion, the court found that when Officer Mills seized Anderson's clothing, the evidentiary relevance of this clothing was "immediately apparent." In this context, the phrase "immediately apparent" refers to situations where there is probable cause to believe that the object is evidence of criminal activity. Thus, when Anderson and the State litigated whether the evidentiary relevance of Anderson's clothing was "immediately apparent," they effectively litigated whether the police had probable cause to believe that Anderson's clothing was evidence of a crime. And when the superior court found that the relevance of Anderson's clothing was "immediately apparent" to Officer Mills, the court in essence found that Mills had probable cause to believe that the clothing was evidence of the home invasion and shootings.

Based on the record before us, we uphold the superior court's finding of probable cause. Indeed, the record shows that Mills had probable cause to believe that Anderson's clothing constituted evidence of a crime even before she and Anderson entered the hospital.

Mills first saw Anderson's clothing while she was waiting for the victims of the shooting to arrive at the hospital. As Anderson exited his friend's vehicle, Mills saw that Anderson was wounded in the abdomen and that he was bleeding through his clothing. At that time, Mills mistakenly believed that Anderson was a victim of the home invasion. But regardless of whether Anderson was a victim or a suspect, the evidentiary relevance of his blood-stained clothing was immediately apparent.

(Mills understandably did not seize Anderson's clothing until after he was being treated in the hospital. And by then, Mills believed that Anderson was a suspect.)

Because the police had probable cause to believe that Anderson's clothing was evidence of criminal activity, the open view seizure of Anderson's clothing was lawful. As the United States Supreme Court has said, it is "well settled" that the seizure of property in open view "involves no invasion of privacy and is presumptively reasonable [if] there is probable cause to associate the property with criminal activity." In other words, probable cause to believe that an object is evidence of a crime is a recognized ground for a warrantless seizure, as long as seizing the object does not require any additional Fourth Amendment intrusion.

Other courts have upheld the warrantless seizure of a suspect's clothing under similar circumstances.

On appeal, Anderson argues a different Fourth Amendment theory for the suppression of his clothing. He now contends that it was unlawful for the police to enter his hospital room. Thus, Anderson argues, his case falls within the first category of plain view cases described by Professor LaFave - cases where the Coolidge plain view doctrine applies because the discovery of the evidence was preceded by a Fourth Amendment search .

But as we have explained, when Anderson's suppression motion was litigated in the trial court, Anderson did not argue that the hospital room was a constitutionally protected space, nor did he argue that the police entered that space unlawfully. Under our supreme court's decision in Moreau v. State , Anderson cannot use his appeal to raise new theories for suppression of the evidence.

For these reasons, we affirm the superior court's denial of Anderson's suppression motion.

Anderson's claim regarding Jury Instruction No. 9B

At trial, outside the presence of the jury, one of the alleged victims invoked his Fifth Amendment right against self-incrimination. The State declined to grant this witness immunity, and the superior court ruled that the witness was unavailable to testify. Over Anderson's objection, the court later instructed the jury that this witness was unavailable to testify and that the jury should not speculate on the reason for his unavailability, or speculate as to what he would have said had he testified.

On appeal, Anderson argues that the court's instruction was improper. But Anderson does not meaningfully explain how this instruction was erroneous, nor does he explain how the error, if any, prejudiced him.

Alaska Evidence Rule 512(a) declares that a claim of privilege is not a "proper subject of comment by judge or counsel," and that no inference may be drawn from the exercise of an evidentiary privilege. In addition, Evidence Rule 512(c) provides that "[u]pon request, any party against whom the jury might draw an adverse inference from a claim of privilege is entitled to an instruction that no inference may be drawn therefrom." Thus, it appears that, to the extent the jury might have drawn an adverse inference from the witness's claim of privilege, the State was entitled to this instruction, even over Anderson's objection.

In an unpublished opinion, Hesch v. State , we noted that there is a split among jurisdictions as to whether a neutralizing instruction is required when a witness invokes a privilege outside the presence of the jury and, as a result, the jurors are unaware that the privilege has been asserted. In Hesch , we declined to resolve whether Alaska Evidence Rule 512(c) entitles a party to the instruction even when the privilege is invoked outside the presence of the jury because, given the split in authority, the judge's failure to give such an instruction did not constitute plain error.

In this case, we likewise conclude that we need not decide the proper interpretation of Rule 512, for two reasons.

First, in his briefing, Anderson does not address - or even mention - Evidence Rule 512, even though this rule was discussed when the parties addressed this issue in the trial court. We therefore conclude that Anderson has inadequately briefed this claim of error.

Second, Anderson has not identified any actual prejudice that he suffered from this instruction, beyond the inability to argue the type of adverse inference precluded by Rule 512. We also note that the court separately instructed the jury (without objection) that it could only consider testimony and exhibits that were actually admitted as evidence.

Accordingly, we reject Anderson's challenge to Instruction No. 9B.

The proposed mitigators that the superior court rejected

At sentencing, Anderson asked the superior court to find either that he played a minor role in the assaults or, in the alternative, that he committed the three assaults because of serious provocation from the victims. The superior court rejected both of these proposed statutory mitigators.

On appeal, Anderson points out that the jury was unable to reach verdicts on the charges of first-degree robbery and conspiracy to commit first-degree robbery. And he notes that his trial attorney argued in closing that there was no robbery or conspiracy, but in fact the "purported robbery victims assaulted [Anderson]." From this, Anderson cursorily claims that the superior court could have found either mitigator and that the court erred in failing to do so.

But Anderson fails to address the superior court's findings, let alone explain why these findings are erroneous. The superior court found that "[Anderson's] role wasn't minor because, but for the planning, but for the recruiting, but for the kicking in the door, but for three people with weapons being present in this residence, none of the assaults would have occurred." The superior court then emphasized that Anderson "was involved in the planning. He kicked in the door. He was clearly present[;] the victim's blood was on his sweatshirt. So, but for his conduct, there wouldn't have been any assaults." The superior court therefore rejected the proposed "minor role" mitigator.

Regarding the "serious provocation" mitigator, the court found that the victims' efforts to defend themselves when their home was invaded by three armed individuals did not constitute "provocation" mitigating Anderson's conduct.

Anderson has not shown that the superior court's factual findings are clearly erroneous. Based on these facts, we conclude that Anderson failed to prove his proposed mitigators by clear and convincing evidence.

The proposed mitigator that the superior court found

Anderson proposed an additional mitigating factor as to one of his assault convictions. The superior found this mitigator - concluding that the pistol-whipping of one of the victims was among the least serious conduct included within the definition of first-degree assault.

On appeal, Anderson argues conclusorily that the superior court "declined to give [this mitigator] adequate weight" and that Anderson should be resentenced. We conclude that Anderson's briefing is inadequate to preserve this claim of error.

The superior court did not err when it found that Anderson had two prior felony convictions

The maximum sentence for first-degree assault, a class A felony, is 20 years. At the time Anderson committed his offenses, the presumptive sentencing range for a second felony offender was 10 to 14 years, and the presumptive sentencing range for a third felony offender was 15 to 20 years. Anderson argues on appeal that the superior court erred when it found he had two prior felony convictions and was therefore a third felony offender.

The calculation of the number of a defendant's prior felony convictions for purposes of presumptive sentencing is governed by AS 12.55.145. Under subsection (a)(1)(C) of that statute, two or more felony convictions "arising out of a single, continuous criminal episode" constitute a single conviction if "there was no substantial change in the nature of the criminal objective" during that episode, and if the defendant received concurrent sentences for the crimes.

At the time Anderson committed the offenses in this case, he had been previously convicted (in a single case) of two felonies in the state of Washington: manslaughter and second-degree assault, involving two separate victims. In the superior court, Anderson argued that these two prior convictions constituted a "single conviction" for purposes of AS 12.55.145(a)(1)(C).

Anderson asserted that both convictions arose out of a single "melee" and that they should therefore be treated as one prior felony conviction for purposes of presumptive sentencing. Under AS 12.55.145(d), Anderson had the burden of proving this assertion by clear and convincing evidence.

The only evidence on this issue was a Washington State police officer's affidavit describing the offenses. This affidavit was part of the presentence report in the present case.

This affidavit showed that both of Anderson's prior felonies occurred close in time and were related to each other. During an altercation between Anderson's friend and another man, Anderson shot and killed the other man. Then, when a friend of the gunshot victim intervened, Anderson pistol-whipped this person. Anderson pleaded guilty to manslaughter for the shooting and to felony assault for the pistol-whipping. He received concurrent sentences.

The superior court found that these two prior felony convictions were separate for purposes of presumptive sentencing. The court acknowledged that Anderson received concurrent sentences in the Washington case, but the court nonetheless found that, although the convictions likely arose from a single, continuous course of conduct, there was a substantial change in the nature of Anderson's criminal objective when he pistol-whipped the second man. That is, the superior court found that Anderson shot the first victim, but then pistol-whipped the second victim only when that person intervened. The superior court found that the legislature did not intend for this type of circumstance to be treated as a single conviction with a single criminal objective.

On reconsideration, the court made further findings. The court found that Anderson's initial objective was to "assault the decedent," but that Anderson did not appear to contemplate or even consider assaulting the second person until that person lunged at him, and Anderson tried to "fend" him off. The court therefore rejected Anderson's characterization of the incident as a continuing "melee," finding that it involved "a new victim, a new purpose, and a new act," and that Anderson had put forth no evidence to contradict these findings.

The superior court contrasted Anderson's case with an example given in the legislative commentary to AS 12.55.145. In the commentary, the legislature explained that "the breaking and entering of a building with the intent to commit theft" (burglary) and the resulting "taking of property in the building" (theft) would constitute a single prior conviction for presumptive sentencing purposes. The legislature noted that, under those circumstances, the crimes shared a single criminal objective: to obtain property. In contrast, the court in this case noted that the original criminal objective of Anderson's prior shooting did not extend to the second assault.

On appeal, Anderson renews his claim that his prior convictions were part of a "street brawl" with a singular criminal objective to engage in assaultive behavior. But given the evidence presented at sentencing, the trial court did not clearly err in finding that Anderson had failed to prove that he had a singular criminal objective.

We note that under AS 12.55.127(c)(2), when a defendant is convicted of two or more counts of homicide in any degree, or of assault in any degree, the defendant must receive some amount of consecutive term of imprisonment for each count. Consequently, if an Alaskan defendant were to be convicted of the same two felonies for which Anderson was convicted in the State of Washington, those two felonies could never qualify as a single prior felony offense under AS 12.55.145(a)(1)(C).

We note, too, that the Washington Supreme Court has held that crimes involving separate victims do not qualify as the "same criminal conduct" (and thus, do not constitute a single conviction) for purposes of calculating a defendant's applicable sentencing range.

Accordingly, we affirm the superior court's ruling that Anderson was a third felony offender.

Conclusion

The judgment of the superior court is AFFIRMED.

      AS 11.41.200(a)(1).

      AS 12.55.155(d)(2) and AS 12.55.155(d)(6), respectively.

      AS 12.55.155(d)(9).

      AS 12.55.155(c)(8).

      Former AS 12.55.125(c)(4) (pre-2016 version).

      See Ahvakana v. State , 283 P.3d 1284, 1288 (Alaska App. 2012) (citing Reeves v. State , 599 P.2d 727, 738 (Alaska 1979) ) (noting the three requirements of the plain view doctrine under Alaska law).

      1 Wayne R. LaFave, Search and Seizure § 2.2(a), at 597-604 (5th ed. 2012).

      Coolidge v. New Hampshire , 403 U.S. 443, 465-71, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).

      Scales v. State , 13 Md.App. 474, 284 A.2d 45, 47 n.1 (1971) ; see also State v. Spietz , 531 P.2d 521, 524 n.11 (Alaska 1975) (recognizing that "the formal 'Plain View' Doctrine, as announced in Coolidge , is exclusively a post-intrusion phenomenon") (quoting Brown v. State , 15 Md.App. 584, 292 A.2d 762, 774 (1972) ).

      LaFave, Search and Seizure § 2.2(a), at 599.

      Id. at 600; see also Spietz , 531 P.2d at 524 n.11 (noting that the "Plain View" Doctrine "does not contemplate the non-intrusion visual observation, such as where evidence is in 'open view' and therefore seizable in a 'constitutionally non-protected area' ") (quoting Brown , 292 A.2d at 774 ).

      LaFave, Search and Seizure § 2.2(a), at 601; see also McGee v. State , 614 P.2d 800, 806 n.12 (Alaska 1980) ("[I]n non-search situations ..., the requirement that discovery [of the evidence seized] be inadvertent is inapplicable. The inadvertent discovery requirement assures that police will not intentionally expand the permissible scope of an otherwise lawful search. Where there is no search, there is, a fortiori, no danger that the police will exceed their permissible limits.").

      See LaFave, Search and Seizure § 2.2(a), at 599 (noting that this type of plain view is perhaps "deserving of a different label so as to avoid confusion of it with that discussed in Coolidge "); State v. Kaaheena , 59 Haw. 23, 575 P.2d 462, 466 (1978) (distinguishing "[t]he 'open view' doctrine" from the "visually similar, but legally distinct, 'plain view' doctrine"); Scales , 284 A.2d at 47 n.1 (stating that "[n]eedless confusion is frequently engendered by the employment in many opinions of the same phrase - 'in plain view' - to describe two visually similar but legally distinct situations[,]" and that it would be preferable to use "some alternative phraseology such as 'clearly visible,' 'readily observable,' 'open to public gaze,' etc.").

      Horton v. California , 496 U.S. 128, 133-34, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990).

      LaFave, Search and Seizure § 2.2(a), at 604.

      Id. ; see also Soldal v. Cook County , 506 U.S. 56, 66, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992) (holding that, "the absence of a privacy interest notwithstanding, '[a] seizure of the article ... would obviously invade the owner's possessory interest' " and implicate the Fourth Amendment) (quoting Horton , 496 U.S. at 134, 110 S.Ct. 2301 ); Sheffield v. United States , 111 A.3d 611, 619 (D.C. 2015) ("[T]he Fourth Amendment protects against unreasonable seizures of property in which the individual has a possessory interest, even if a privacy or liberty interest is not at issue."); Jones v. State , 648 So.2d 669, 675 (Fla. 1994) ("[E]ven if we were to find that Jones' privacy interests were in no way compromised, there clearly was a meaningful interference with his constitutionally protected possessory rights when his effects were seized without a warrant.").

      United States v. Hamie , 165 F.3d 80, 83 (1st Cir. 1999) ; see also Arizona v. Hicks , 480 U.S. 321, 326, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987) (holding that the police must have probable cause to believe an item is evidence of a crime or contraband when seizing the item pursuant to the "plain view" doctrine); United States v. Davis , 690 F.3d 226, 237 (4th Cir. 2012) (collecting cases stating that "an item need not itself be contraband before it has an 'incriminating nature,' but instead, an item need only be evidence of a crime"); McGee , 614 P.2d at 806 ("The Fourth Amendment ... requires that before seizing an item in plain view, the police must have probable cause to believe that the item seized is a fruit, instrumentality or evidence of a crime.").

      Payton v. New York , 445 U.S. 573, 586-87, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) ; see also Texas v. Brown , 460 U.S. 730, 748, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (Stevens, J., concurring) ("[I]f an officer has probable cause to believe that a publicly situated item is associated with criminal activity, the interest in possession is outweighed by the risk that such an item might disappear or be put to its intended use before a warrant could be obtained. The officer may therefore seize it without a warrant."); Brown v. State , 15 Md.App. 584, 292 A.2d 762, 774 (1972) (noting that the seizure of evidence when there has been no prior intrusion into a constitutionally-protected zone is permissible without further justification), cited in State v. Spietz , 531 P.2d 521, 524 n.11 (Alaska 1975) & id. at 525-26 (Erwin, J., concurring).

      See State v. Ricks , 816 P.2d 125, 125 (Alaska 1991) (distinguishing between the justified warrantless seizure of a jacket when police had probable cause to believe it contained contraband and the subsequent search of the jacket, for which the police needed a warrant); cf. Moore v. State , 372 P.3d 922, 926 (Alaska App. 2016) (noting that "[w]hen the police have probable cause to believe that an article of luggage contains evidence of a crime, and when there are no exigent circumstances authorizing an immediate warrantless search, the police are authorized to seize the luggage (but not search it) and to carry the luggage away for safe-keeping while they apply for a search warrant").

      Compare Davis , 690 F.3d at 233-38 (upholding the warrantless seizure of clothing from the hospital when it was undisputed that the officer was lawfully present in the hospital room and had lawful access to the clothing, and it was apparent that the patient had been shot in the leg and that his clothing was beneath his bed); Chavis v. Wainwright , 488 F.2d 1077, 1078 (5th Cir. 1973) (upholding the seizure of clothing from the foot of the stretcher at the hospital); Sheffield , 111 A.3d at 618-21 (upholding the seizure of clothing from the defendant's hospital room); People v. Miller , 19 Ill.App.3d 103, 311 N.E.2d 179, 180 (1974) (upholding the seizure of burned clothing remnants that the officer saw being removed at the hospital from the defendant, who was suspected of arson); Floyd v. State , 24 Md.App. 363, 330 A.2d 677, 679 (1975) (holding that the police could validly seize, as evidence of a crime, bloody clothing cut from the defendant's body prior to his treatment for gunshot wounds ), with People v. Jordan , 187 Mich.App. 582, 468 N.W.2d 294, 299-300 (1991) (holding that the seizure of a defendant's clothing from the hospital where he was undergoing surgery was impermissible because the clothing was "neither obviously incriminating or contraband"); People v. Sanders , 26 N.Y.3d 773, 27 N.Y.S.3d 491, 47 N.E.3d 770, 777-78 (2016) (holding that the seizure of the defendant's clothing from the hospital was not supported by probable cause; the defendant, who had been shot, was dressed in different clothing by the time the officer arrived, and there was no evidence that the officer knew that the defendant's wounds were located in an area of the body that would be covered by clothing).
      See also 3 Wayne R. LaFave, Search and Seizure § 5.5(c), at 321 (5th ed. 2012) (noting that "a plain view seizure of personal effects of evidentiary value may also occur, for example, when those effects are viewed on or near the defendant's person rather than within premises or a vehicle in which he has a privacy interest, as where clothing of an injured person at a hospital is seized because it constitutes evidence of a crime committed on or by that person").

      Moreau v. State , 588 P.2d 275, 280 (Alaska 1978).

      See Commentary to Alaska Evid. R. 512(c) ("Whether an instruction shall be given is left to the sound judgment of counsel for the party against whom the adverse inference may be drawn. The instruction is a matter of right, if requested.").

      See Hesch v. State , 2010 WL 1838597, *3 (Alaska App. May 5, 2010) (unpublished).

      Id. at *4.

      See Berezyuk v. State , 282 P.3d 386, 399 (Alaska App. 2012) (holding that when an opening brief "merely mentions a claim, with no substantive argument of the issue, and with no citation to pertinent legal authority, the claim will be deemed waived").

      AS 12.55.155(d)(2) and AS 12.55.155(d)(6), respectively.

      This sweatshirt was not seized from the hospital but rather from the residence of the woman who drove Anderson to the hospital.

      See Michael v. State , 115 P.3d 517, 519 (Alaska 2005) (holding that the existence or non-existence of a mitigating factor is a mixed question of fact and law; any factual findings regarding the nature of the defendant's conduct are reviewed for clear error and whether those facts establish the mitigator is a legal question reviewed de novo).

      See AS 12.55.155(f)(1) (mitigating factors must be established by clear and convincing evidence).

      AS 12.55.155(d)(9).

      See Petersen v. Mutual Life Ins. Co. of New York , 803 P.2d 406, 410 (Alaska 1990) ("Where a point is not given more than a cursory statement in the argument portion of a brief, the point will not be considered on appeal.").

      AS 12.55.125(c). First-degree assault is a class A felony. AS 11.41.200(b).

      Former AS 12.55.125(c)(3) (2009) and former AS 12.55.125(c)(4) (2009), respectively.

      Commentary to Alaska's Revised Criminal Code, 1978 Senate Journal Supp. No. 47 (June 12), at 156-59.

      Id.

      State v. Dunaway , 109 Wash.2d 207, 743 P.2d 1237, 1241 (1987) (en banc). The Dunaway rule has now been statutorily codified. See RCW 9.94A.589(1)(a) ; State v. Yusuf , 2018 WL 1168724, at *7 (Wash. App. Mar. 5, 2018) (unpublished) (Spearman, J., concurring).