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THE COURT OF APPEALS OF THE STATE OF ALASKA
KEN NOBLIT, )
)
Appellant, ) Court of Appeals No. A-3140
) Trial Court No. 4FA-S88-2608CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1118 - March 29, 1991]
______________________________)
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Niesje J. Steinkruger, Judge.
Appearances: Charles Easaw, Assistant Public
Advocate, Fairbanks, and Brant McGee, Public
Advocate, Office of Public Advocacy,
Anchorage, for Appellant. David Mannheimer,
Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Douglas B. Baily, Attorney General, Juneau,
for Appellee.
Before: Bryner, Chief Judge, Coats, Judge,
and Andrews, District Court Judge.*
BRYNER, Chief Judge.
Ken Noblit was convicted, after a jury trial, of
hindering prosecution in the first degree. Superior Court Judge
Niesje J. Steinkruger sentenced Noblit to a term of three years
with one and one-half years suspended. Noblit appeals,
contending that the trial court failed to instruct the jury
properly on the culpable mental state for his offense and that
his sentence is excessive. We affirm.
On August 19, 1988, Noblit's housemate, Phillip Baird
stabbed and killed a man -- apparently while engaging in
sadomasochistic sexual activities. The homicide occurred in the
victim's apartment and was not discovered until the following
day, August 20. Noblit played no part in the killing and was not
present when it happened. During the ensuing weeks, however, he
engaged in a variety of acts that hindered police efforts to
locate and apprehend Baird. Baird was ultimately arrested on
September 15, 1988, at the trailer he shared with Noblit. He was
eventually convicted of murder in the second degree.
The state charged Noblit with hindering prosecution in
the first degree, in violation of AS 11.56.770(a):
(a) A person commits the crime of
hindering prosecution in the first degree if
the person renders assistance to a person who
has committed a crime punishable as a felony
with intent to
(1) hinder the apprehension,
prosecution, conviction, or punishment of
that person; or
(2) assist that person in
profiting or benefiting from the commission
of the crime.
At the conclusion of Noblit's trial, the superior court
instructed the jury, in relevant part, that the state was
required to prove that Noblit "knowingly rendered assistance to a
person who had committed a crime punishable as a felony," and
that, in doing so, he "intended to hinder the apprehension,
prosecution, conviction, or punishment of that person." The
court rejected, however, Noblit's request to further instruct the
jury that Noblit was required to have acted knowingly or
recklessly with respect to the fact that Baird's crime was
"punishable as a felony." While specifying that the state was
required to prove that Baird's crime had in fact been a felony,
the court instructed that "it is not required that the defendant
knew the crime was a felony."
On appeal, Noblit challenges the validity of the trial
court's instructions on the elements of the offense. In
addressing Noblit's argument, we begin by considering Alaska's
hindering prosecution statutes.
Under Alaska law, the distinction between hindering
prosecution in the first and second degrees hinges on the
seriousness of the crime committed by the person whose
prosecution is hindered. Hindering prosecution in the first
degree, a class C felony, occurs when a "person renders
assistance to a person who has committed a crime punishable as a
felony . . . ." AS 11.56.770(a). Hindering prosecution in the
second degree, a class B misdemeanor, occurs when a "person
renders assistance to another who has committed a crime
punishable by imprisonment for more than 90 days . . . ." AS
11.56.780(a). The first- and second-degree offenses are
identical in all respects other than the seriousness of the
underlying crime. For both offenses the defendant must engage in
conduct that "renders assistance"1 to a person who has actually
committed a crime. Both offenses are specific intent crimes:
the state must prove, in relevant part, that the defendant acted
"with intent to hinder the apprehension, prosecution, conviction,
or punishment of that person; or assist that person in profiting
or benefiting from the commission of the crime." AS
11.56.770(a)(1) and (2); AS 11.56.780(a)(1) and (2). This
requirement of a specific intent to hinder the prosecution of a
person who has committed a crime necessarily presupposes the
defendant's knowledge that the underlying crime has been
committed.2
To prove its charge of hindering prosecution in the
first degree in Noblit's case, it was thus incumbent on the state
to establish that Phillip Baird had committed a homicide, that
his crime was punishable as a felony, and that Noblit rendered
assistance to Baird after he had committed a crime. The state
was further required to show that Noblit assisted Baird with
knowledge of Baird's criminal conduct and with the specific
intent to hinder Baird's prosecution.
The jury instructions in this case adequately recited
these statutory elements. Noblit nevertheless insists that the
instructions were flawed because they omitted a further element.
According to Noblit, the trial court should have told the jury
that it could not convict for hindering prosecution in the first
degree unless it found that Noblit actually knew or recklessly
disregarded that Baird's illegal conduct was punishable as a
felony. While Noblit concedes that this element does not appear
in the statutory definition of hindering prosecution in the first
degree, he contends that it should be added by judicial
interpretation.
We disagree. In enacting our hindering prosecution
statutes, the Alaska legislature unequivocally expressed the
intent to dispense with any requirement of awareness as to the
legal classification of the crime committed by the assisted
person:
To commit either degree of hindering
prosecution, the defendant must act with an
"intent to hinder the apprehension,
prosecution, conviction or punishment" of a
person or to assist a person "in profiting or
benefiting from the crime." The first-degree
offense, a class C felony, requires that a
felon be aided. The defendant is not
required to know that the crime committed by
the person he aided was a felony. Strict
liability is applied to this element.
Commentary on the Alaska Revised Criminal Code, Senate Journal
Supp. No. 47 at 86-87, 1978 Senate Journal 1399.
This commentary is particularly significant in light of
the prominent role that legislative intent plays in determining
when a culpable mental state should be deemed to attach to an
element of an offense. Under AS 11.81.600(b)(2), when no
culpable mental state is specified for an element of an offense,
none need be implied "if a legislative intent to dispense with
the culpable mental state requirement is present." In the case
of hindering prosecution in the first degree, the legislature
clearly expressed its intent to dispense with the disputed
element.3
The commentary to Model Penal Code 242.34 further
undercuts Noblit's culpable mental state argument. Section 242.3
is generally similar to Alaska's hindering prosecution statutes.
Like the Alaska statutes, it hinges the seriousness of a
hindering prosecution charge on the seriousness of the underlying
crime. The commentary to Model Penal Code 242.3 highlights the
difference between the defendant's awareness of the conduct
constituting the underlying crime and actual knowledge of the
legal classification that would apply to that conduct:
Section 242.3 . . . limits the heavier
sanction based on the seriousness of the
principal offense to circumstances in which
the aider is culpable with respect to that
consideration. Of course, it is not
necessary that the defendant know the law of
the crime for which the other is sought. For
this reason the grading provision for this
offense requires only that the aider know
that the conduct charged or liable to be
charged against the other person is of the
sort proscribed by one of the more serious
degrees of felony.
Model Penal Code 242.3, commentary at 239 (1980) (footnote
omitted).
At least one other jurisdiction has specifically
considered and rejected a culpable mental state argument similar
to Noblit's. In People v. Young, 555 P.2d 1160 (Colo. 1976) (en
banc), the Colorado Supreme Court construed its accessory to a
crime statute, whose provisions were analogous to Alaska's
hindering prosecution statutes. The court in Young expressly
declined to require that knowledge of the classification of the
underlying offense be proven:
The relevant standard for knowledge in regard
to the accessory statute is whether defendant
knew the principal had committed a crime. It
is not necessary for the defendant to have
known that the crime committed was a
particular class. The statutory classifi-
cation of the crime committed by the
principal (class one or two felony) is only
relevant in determining the degree of the
accessory charge . . . .
Id. at 1162.
In short, Noblit's culpable mental state argument finds
no support in the legislative history of Alaska's hindering
prosecution statutes, in the Model Penal Code, or in the
decisions of other jurisdictions. Noblit nevertheless maintains
that his constitutional right to due process will be violated
unless Alaska's first-degree hindering prosecution statute is
read to require knowledge or recklessness as to the fact that the
underlying crime was punishable as a felony. For his
constitutional claim, Noblit relies on cases such as Hentzner v.
State, 613 P.2d 821 (Alaska 1980), Kimoktoak v. State, 584 P.2d
25 (Alaska 1978), Speidel v. State, 460 P.2d 77 (Alaska 1969),
and Beran v. State, 705 P.2d 1280 (Alaska App. 1985), all of
which stand for the general proposition that due process
precludes the imposition of criminal sanctions on the basis of
strict liability -- that is, when criminal acts are committed
without an accompanying culpable mental state. Noblit insists
that failure to attach a culpable mental state to the legal
classification of the underlying crime would transform hindering
prosecution in the first degree into a strict liability crime.
There is little merit to this claim. Although the due
process clause unquestionably protects against imposition of
criminal sanctions for innocent conduct, a culpable mental state
need not attach to every element of an offense. Alaska Statute
11.81.600(b) generally requires criminal acts to be performed
with an accompanying culpable mental state, but the provision
allows exceptions when the legislature has clearly expressed its
intent to apply strict liability to a specific element of a
crime.
Moreover, the legislature unambiguously expressed its
desire to avoid requiring a culpable mental state for
every element of a crime when it decided to repeal former AS
11.81.610(a). As originally enacted in 1978, AS 11.81.610(a)
created a rebuttable presumption attaching a culpable mental
state to all elements of an offense:
(a) When only one culpable mental state
appears in a provision of law defining an
offense, it is rebuttably presumed to apply
to every element of the offense unless an
intent to limit its application clearly
appears.
Ch. 166, 10, SLA 1978. The legislature repealed this provision
in 1980. See Ch. 102, 44, SLA 1980. Commenting on the reasons
for this repeal, the legislature said, in relevant part:
The . . . amendment repeals AS 11.81.-
610(a) which provided that the use of one
culpable mental state in a statute rebuttably
presumes that the mental state applies to all
elements of the crime. This rule is
inappropriately broad and ignores the fact
that, by definition, particular mental states
only apply to particular elements of a crime.
Commentary on the Revised Alaska Criminal Code, Senate Journal
Supp. No. 44 at 28 1980 Senate Journal 1434.
In prior decisions, we have consistently recognized
that no culpable mental state need attach to circumstances
rendering an offense more or less serious when a culpable mental
state attaches to the core conduct of the offense itself. In
Bell v. State, 668 P.2d 829 (Alaska App. 1983), Bell was
convicted for promoting prostitution in the first degree by
inducing a person under sixteen years of age to be a prostitute.
The same conduct would only have been punishable as promoting
prostitution in the third degree if the victim had been sixteen
years of age or older. Compare AS 11.66.110(a)(2) with AS
11.66.130(a)(2).
Bell argued on appeal that he was unfairly deprived of
the opportunity to raise a reasonable mistake of fact defense as
to the age of his victim. We rejected this argument, concluding
that Bell could be convicted of the first-degree offense
regardless of his awareness of the victim's age. We reasoned
that, because Bell acted intentionally in promoting prostitution,
and because this conduct would have been criminal even if his
victim had been sixteen years of age or older, due process did
not require proof of a culpable mental state as to the victim's
age. Id. at 832-33.
We reached a like conclusion in Ortberg v. State, 751
P.2d 1368 (Alaska App. 1988). Ortberg was convicted of malicious
mischief in the second degree. Higher and lower degrees of the
malicious mischief statute turned on the value of the property
destroyed. See AS 11.46.480 (first-degree malicious mischief --
value exceeding $100,000), AS 11.46.482 (second-degree malicious
mischief -- $500 or more in value), AS 11.46.484 (third-degree
malicious mischief -- $50 or more), AS 11.46.486 (fourth-degree
malicious mischief -- less than $50). We found Bell dispositive
and held that Ortberg was subject to conviction regardless of his
awareness of the value of the property he destroyed. Id. at
1374.
As in Bell and Ortberg, the illegality of Noblit's
conduct did not depend on the circumstance that changed his
offense from a second-degree to a first-degree crime. Rendering
assistance to Baird would still have been unlawful if Baird's
crime had not been punishable as a felony. Under the trial
court's instructions, Noblit's jury necessarily found that he
rendered assistance to Baird with knowledge of Baird's wrongdoing
and with the specific intent to hinder his prosecution.5 This
culpable mental state affords adequate protection against the
possibility of a conviction based on innocent conduct; no
additional culpable mental state is necessary for due process
purposes.
Under the circumstances, the following passage from the
Alaska Supreme Court's decision in Alex v. State, 484 P.2d 677,
681-82 (Alaska 1971), is particularly apt:
[A]s applied to crimes generally, what is
imperative, is that an accused's act be other
than simply inadvertent or neglectful. What
is essential is not an awareness that a given
conduct is a "wrongdoing" in the sense that
it is proscribed by law, but rather, that an
awareness that one is committing the specific
acts which are defined by law as a
"wrongdoing." It is, however, no defense
that one was not aware that his acts were
wrong in the sense that they were proscribed
by law. So long as one acts intentionally,
with cognizance of his behavior, he acts with
the requisite awareness of wrongdoing.6
It is thus no defense that Noblit may have been unaware
that Baird's "acts were wrong in the sense that they were
proscribed by law." Id. Just as Baird's guilt and consequent
punishment did not turn on proof of his awareness that his
criminal acts amounted to second-degree murder, so Noblit's guilt
should not depend on his own knowledge of the potential legal
consequences stemming from Baird's conduct. We find no error.
Noblit separately contends that his sentence is
excessive. Hindering prosecution in the first degree is a class
C felony, punishable by a maximum of five years. AS
11.56.770(c); AS 12.55.125(f). As a first felony offender,
Noblit was not subject to presumptive sentencing. In imposing a
term of three years with one and one-half years suspended, Judge
Steinkruger recognized that Noblit had a clean record and a
steady employment history. Although expressing concern about
Noblit's apparent lack of insight into the seriousness of his
misconduct, Judge Steinkruger found Noblit's potential for
rehabilitation to be strong. Nevertheless, Judge Steinkruger
believed that Noblit's conduct was exceptionally aggravated and
among the most serious in its class. For this reason, the judge
concluded that a substantial sentence was necessary to express
community condemnation and to deter other potential offenders.
In assessing the overall seriousness of Noblit's
conduct, Judge Steinkruger properly considered that the
underlying crime was a murder and that Noblit's conviction
resulted from a continuing course of conduct that substantially
delayed Baird's apprehension.
The one and one-half year unsuspended portion of
Noblit's sentence is significantly less than the two-year
presumptive term for a second felony offender; the sentence thus
comports with the rule we adopted in Austin v. State, 627 P.2d
657 (Alaska App. 1981). See also Tazruk v. State, 655 P.2d 788
(Alaska App. 1982). Having independently reviewed the entire
sentencing record, we are unable to say that the sentence imposed
below was clearly mistaken. McClain v. State, 519 P.2d 811, 813-
14 (Alaska 1974).
The judgment is AFFIRMED.
_______________________________
*Sitting by assignment made pursuant to article IV, section
16 of the Alaska Constitution.
1. The term "renders assistance" is identically defined in
AS 11.56.770(b) for both offenses:
(b) For purposes of this section, a
person "renders assistance" to another person
if the person
(1) harbors or conceals the other
person;
(2) warns the other person of
impending discovery or apprehension;
(3) provides or aids in providing
the other person with money, transportation,
a dangerous instrument, a disguise, or other
means of avoiding discovery or apprehension;
(4) prevents or obstructs, by
means of force, threat, or deception, anyone
from performing an act which might aid in the
discovery or apprehension of the other
person;
(5) suppresses by an act of
concealment, alteration, or destruction
physical evidence which might aid in the
discovery or apprehension of the other
person; or
(6) aids the other person in
securing or protecting the proceeds of the
crime.
2. In this context, however, knowledge does not equate
with certainty. Alaska Statute 11.81.900(a)(2) provides, in
relevant part: "[W]hen knowledge of the existence of a
particular fact is an element of an offense, that knowledge is
established if a person is aware of a substantial probability of
its existence . . . ." The trial court accurately instructed the
jury that the state was required to prove that Noblit "was aware
of a substantial probability" that Baird had committed a crime.
This language reflects the statutory definition of knowing
conduct.
3. The Commentary to the Tentative Draft of Alaska's
Revised Criminal Code underscores the inappropriateness of
construing the hindering prosecution statute to require knowledge
of the legal classification of the crime committed by the person
who has been assisted. The Tentative Draft's hindering
prosecution provisions differed only slightly from the versions
enacted in AS 11.56.770 and AS 11.56.780. One difference was the
extent of awareness of the underlying crime. Instead of
requiring the defendant to know of the underlying crime, the
Tentative Draft required only recklessness, specifying that "[a]
person commits the crime of hindering prosecution in the first
degree if he renders assistance to a person who has committed a
crime punishable as a felony, with reckless disregard that that
person has engaged in the conduct constituting the crime . . . ."
Alaska Criminal Code Revision Part IV, at 69 (Tent. Draft 1977).
The writers of the Tentative Draft clearly distinguished,
however, between proof of reckless disregard of "the conduct
constituting the crime" and proof of reckless disregard as to the
legal consequences of that conduct:
The first-degree offense, TD AS
11.56.770, a class C felony, requires that a
felony be committed by the person aided and
that the defendant be at least reckless as to
whether that person has engaged in conduct
constituting a felony. Note that while the
statute requires that the person aided
actually have committed a felony, there is no
requirement that the defendant be aware of
the legal classification of the conduct.
Id. at 78-79.
Noblit mistakenly relies on the Tentative Draft to urge
that a defendant must be required to act at least recklessly with
regard to the legal classification of the crime committed by the
person to whom assistance is rendered. The Tentative Draft does
not support this conclusion, and its commentary makes clear that
no culpable state was contemplated. While the Tentative Draft
did propose recklessness as the culpable mental state attaching
to the defendant's awareness of "the conduct constituting the
[underlying] crime," our current hindering prosecution statute
has actually imposed a somewhat more rigorous requirement. Under
our current statutory scheme, a defendant must have actual
knowledge of the underlying conduct by the assisted person.
4. The immediate sources of Alaska's current hindering
prosecution statutes were Hawaii Revised Statutes 710-1028,
1029 and 1030. See Alaska Criminal Code Revision Part IV, at 126
(Tent. Draft 1977). The Hawaii provisions, in turn, seem
patterned on the Model Penal Code. The similarity of the Model
Penal Code to Alaska's hindering prosecution statutes is
reflected in the commentary to AS 11.56.770 and AS 11.56.780,
which incorporates by reference pertinent commentary to Model
Penal Code 242.3. See Commentary on the Alaska Revised
Criminal Code, Senate Journal Supp. No. 47 at 86-87, 1978 Senate
Journal 1399.
5. One aspect of the trial court's instructions requires
specific comment. As we have indicated, AS 11.56.770 requires
the state to prove the defendant's knowledge of the conduct
involved in the crime committed by the person who has been aided.
In Instruction No. 17, however, the trial court instructed the
jury that Noblit need only have known that Baird committed "some
crime" and that it was unnecessary for the state to prove that
Noblit actually knew Baird had killed another person. This
portion of Instruction No. 17 may have been incorrect in
suggesting that Noblit could be convicted for assisting Baird
based on a mistaken belief that Baird had engaged in misconduct
other than homicide. However, Noblit has not specifically raised
or briefed this issue, so we need not decide it. In any event,
assuming the instruction was incorrect in this respect, the error
was plainly harmless under the facts of this case. The only
disputed issue below was Noblit's awareness of Baird's complicity
in the homicide. There is nothing in the record to suggest that
Noblit might have thought Baird engaged in misconduct other than
homicide. Under the evidence, it is clear beyond a reasonable
doubt that the jury could only have found Noblit guilty by
concluding that he was aware that Baird had committed a homicide.
6. The Model Penal Code's commentary to 242.3 makes
essentially the same point:
Consistently with the obstruction-of-justice
theory on which the provision is based,
Section 242.3 requires that the actor have a
"purpose to hinder the apprehension,
prosecution, conviction or punishment of
another for crime." Given such a purpose,
any further requirement of knowledge or
belief in the guilt of the person aided would
be unwarranted.
Model Penal Code 242.3, commentary at 228-229 (1985).
