Notice: This opinion is subject to formal
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THE COURT OF APPEALS OF THE STATE OF ALASKA
RICHARD A. ERICKSON, )
) Court of Appeals No. A-2725
Appellant, ) Trial Court No. 3AN-S88-105CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1179 - December 13, 1991]
)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Karl S. Johnstone and Peter A.
Michalski, Judges.
Appearances: Richard A. Erickson, pro se,
Eagle River, and David E. George, Anchorage,
for Appellant. John A. Scukanec, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Charles E. Cole, Attorney General, Juneau,
for Appellee.
Before: Bryner, Chief Judge, Coats, Judge,
and Andrews, Superior Court Judge.*
[Mannheimer, Judge, not participating.]
COATS, Judge.
A grand jury indicted Richard A. Erickson for one count
of assault in the second degree and two counts of interference
with official proceedings. AS 11.41.210(a)(2); AS
11.56.510(a)(1)(C). The charges arose from a car bombing incident
in Anchorage on May 19, 1986. The victim, Andrew Twogood, was
seriously injured when a bomb, planted in his car, exploded.
After a jury trial, Erickson was acquitted of the two counts of
interference with official proceedings, but he was convicted of
second-degree assault. Erickson now appeals, claiming various
errors. We affirm.
Erickson and Robert Marzak operated an automobile
wrecking and salvage business in Fairbanks, Andy's Auto Wrecking,
which they leased from Twogood. Twogood also maintained a car
rental business on one portion of the property. In addition,
Twogood owned and operated ABC Auto Recycling in Anchorage.
Erickson and Marzak were engaged in ongoing business
disputes with Twogood over rent and other lease terms. Erickson
had filed a civil suit against Twogood to resolve some of these
matters. Meanwhile, Twogood had discovered that Marzak was
operating a "chop shop" on the premises, a business that stripped
stolen vehicles for parts.
Twogood went to the police about the stolen vehicles.
Based on Twogood's testimony, Investigator Frank Coletta obtained
a search warrant for the salvage yard.1 During the execution of
the warrant on May 12, 1986, Erickson was "hot, angry, [and]
violent" when he spoke to Twogood on the phone. He demanded to
know why Twogood had called the police.
Four days later, Twogood attempted to remove his rental
vehicles from the Fairbanks yard. Erickson refused to let him
take the vehicles.
On May 19, 1986, Twogood went to work at his Anchorage
business. At approximately 1:00 p.m., Twogood and one of his
employees, Fred Neubauer, went to run an errand in Twogood's car.
Entering first, Twogood got into the driver's seat. Before
Twogood could open the passenger door for Neubauer, the car
exploded.
As a result of the explosion, Twogood is permanently
blind, his eardrums are severely damaged, he has lost parts of
his fingers, and his body is burned. Neubauer has shrapnel
remaining in his body, and has permanently lost some function in
his arm. Erickson claimed that he first learned of the
car bombing from an Anchorage Daily News reporter, who called him
that afternoon. Erickson then contacted the police. He told
Investigator Coletta that he had lent his truck to Marzak, who
had wanted to send two men, Darren Taylor and Robert Machado, to
Anchorage to beat up Twogood to teach Twogood a lesson because of
the search warrant incident. He claimed that he was unaware of a
plan to murder Twogood; he thought Marzak was only planning to
"rough him up." However, Erickson also indicated that Marzak
might have mentioned the possibility of a "hit and run deal" and
that Marzak had referred to "hit and run" as a method of killing
someone in the past.
Erickson offered to cooperate with the police. He gave
them his truck to investigate for fingerprints or other evidence.
He also wore an electronic wire during a conversation with
Marzak, in which Marzak made incriminating statements. The
police then wanted Erickson to arrange and record a meeting
between himself and the other three men involved in the incident
(Marzak, Machado, and Taylor), but Erickson refused to do so.
The police spoke to Machado on March 23, 1987. Machado
agreed to cooperate with the police in exchange for immunity.
Machado then recorded conversations with Marzak and Taylor. When
confronted with the contents of these conversations, Marzak and
Taylor confessed to their roles in the attempted murder of
Twogood. According to Taylor, Machado knowingly aided Taylor in
the plan to bomb Twogood's car and therefore had lied about his
role in violation of the immunity agreement. According to
Marzak, Erickson initiated the plan to murder Twogood. See
Machado v. State, 797 P.2d 677, 679-80 (Alaska App. 1990).
Taylor and Marzak entered plea agreements with the
state, and agreed to testify against Erickson and Machado.
Marzak pled no contest to charges of solicitation of murder,
attempted murder, and first-degree assault. Taylor pled no
contest to attempted murder and first-degree assault. Both
Marzak and Taylor received sentences of forty years in prison.
Machado pled not guilty to charges of attempted first-
degree murder, assault in the first degree, arson in the first
degree, criminal possession of explosives, and perjury; Erickson
pled not guilty to second-degree assault and two counts of
interference with official proceedings. The charges against
Machado and Erickson were joined for trial.
The joint trial began on May 31, 1988, in front of
Superior Court Judge Karl S. Johnstone. Marzak testified that
Erickson initially approached him to arrange to have Twogood
murdered. Marzak contacted Taylor and told Erickson that "it was
going to be a hit and run."
It was undisputed at trial that Erickson never spoke to
Taylor about the plans to murder Twogood. Taylor testified that
he and Machado drove to Anchorage, in Erickson's truck, on May
16, 1986. On May 19, Taylor placed the bomb in Twogood's car.
Erickson testified in his own defense. He stated that
his business relationship with Marzak had deteriorated over
Marzak's illegal activities -- drug dealing and stripping stolen
cars. He also testified that he did not know of the plan to kill
Twogood; he lent his truck to Marzak with the belief that Marzak
planned to have Twogood beaten up. At the end of the trial, the
jury convicted Erickson of assault in the second degree, a class
B felony with a maximum sentence of ten years' imprisonment.
Judge Johnstone sentenced Erickson to ten years with
one year suspended, restricting Erickson's eligibility for
parole. He also placed Erickson on five years' probation
following his release from confinement. This appeal followed.
Erickson initially contends that the state presented
insufficient evidence at trial to justify his conviction.
Specifically, he argues that the state presented insufficient
evidence to corroborate Marzak's testimony. Because Marzak was
an accomplice, under AS 12.45.020 the state was required to
corroborate his testimony "by other evidence that tends to
connect the defendant with the commission of the crime." In
Silvernail v. State, 777 P.2d 1169, 1172 (Alaska App. 1989), we
discussed the corroboration requirement as follows:
Corroborative evidence is not sufficient if
it "merely shows the commission of the crime
or the circumstances of the commission." [AS
12.45.020.] To be sufficient, however, cor-
roborating evidence need not independently
establish the accused's guilt. Brown v.
State, 693 P.2d 324, 329 (Alaska App. 1984).
It need only induce "a rational belief that
the accomplice was speaking the truth. . . ."
Oxenberg v. State, 362 P.2d 893, 897 (Alaska
1961). Accord Brown v. State, 693 P.2d at
329.
In determining the sufficiency of the
evidence, the totality of the evidence at
trial must be considered. Martin v.
Fairbanks, 456 P.2d 462, 464 (Alaska 1969).
The evidence, and all of the reasonable
inferences arising therefrom, must be viewed
in the light most favorable to the state.
Brown v. State, 693 P.2d at 328. The
evidence, when so viewed, will be deemed
sufficient if reasonable jurors could
conclude that the accused's guilt has been
established beyond a reasonable doubt. Id.;
Cole v. State, 754 P.2d 752, 755 (Alaska App.
1988).
In the instant case, the state presented sufficient
evidence to corroborate Marzak's testimony. Both Twogood and
Investigator Coletta testified that Erickson was extremely angry
when the police executed the warrant for the stolen cars on May
12, 1986. The bombing occurred on May 19, 1986. This testimony
corroborated Marzak's testimony concerning Erickson's motive for
participating in the assault on Twogood. In addition, Coletta
testified that Erickson told him:
that he'd loaned his truck to Robert Marzak
for the specific purpose of two men that
Marzak knew . . . as Darren and Bob to drive
that truck to Anchorage because it was street
legal . . . and that these two men were going
to go to Anchorage and the words he used were
"fuck up Andy Twogood."
According to Coletta, Erickson stated that he knew Taylor had a
drug debt which Marzak would forgive after Taylor and Machado
finished with Twogood. Erickson stated that Marzak told him this
information before Erickson loaned the truck. Erickson also told
Coletta that he provided Marzak with Twogood's address in
Anchorage. Erickson indicated that he was aware that Marzak had
access to explosives and that Marzak had threatened a "hit and
run deal" when angry at someone in the past. We conclude that
this evidence was legally sufficient to induce a rational jury to
conclude that Marzak was telling the truth about Erickson's
involvement in the crime.
Erickson next contends that there was insufficient
evidence to convict him under an accomplice liability theory. He
claims that loaning his truck to Marzak was not sufficient to
satisfy the actus reus requirement of Hensel v. State, 604 P.2d
222, 238 (Alaska 1979). He further argues that the state must
show an accomplice's specific intent to promote particular
criminal conduct and that the evidence in this case did not
establish his specific intent. Finally, he argues that an error
in the court's jury instruction on accomplice liability diluted
the mens rea requirement and allowed the jury to convict on
insufficient evidence.
Erickson first argues that the mere act of loaning his
truck to Marzak was insufficient to satisfy the actus reus
requirement for accomplice liability. This argument is
unpersuasive. In the case relied upon by Erickson, Hensel, the
court held that an act of assistance by an accomplice does not
need to be, in and of itself, criminal. Any act which "helps or
facilitates the commission of the substantive crime" is
sufficient, even if the act is "remote in both time and space
from the criminal conduct." Id. at 238 & n.66. Erickson's act
of loaning his truck to Marzak promoted or facilitated the
commission of the offense; he provided the necessary vehicle so
that Taylor and Machado could drive to Anchorage and carry out
the plan to either seriously assault or murder Twogood.
Erickson next argues that the state presented
insufficient evidence to establish his specific intent to bomb
Twogood. The state responds that the evidence was sufficient to
show that Erickson acted recklessly in causing serious physical
injury to Twogood.
In Echols v. State, _____ P.2d _____, Op. No. 1164
(Alaska App., October 4, 1991), we concluded that a defendant can
be convicted as an accomplice under AS 11.16.110 only if the
defendant intended to promote or facilitate the commission of the
specific offense. We pointed out that "the statute requires the
accomplice to act `with intent to promote or facilitate the
commission of the offense' (emphasis supplied)." Id. at 3-4
(quoting AS 11.16.110(2)). However, in that case, the state
charged Echols only under AS 11.16.110. Here, the state charged
that Erickson "did unlawfully and recklessly cause serious
physical injury to Andrew Twogood." In the indictment, the state
cited both the statute for assault in the second degree and AS
11.16.110.2 We believe that a fair reading of the indictment is
that Erickson was charged both as an accomplice under AS
11.16.110(2)(B) and as a principal under AS 11.41.210(a)(2). We
have reviewed the arguments at trial and the court's jury
instructions. It appears that the jury could properly have
convicted Erickson either as an accomplice or as a principal, and
that the court's instructions were proper.
As far as accomplice liability under AS 11.16.110, the
court instructed the jury in part as follows:
A person is legally accountable for the
conduct of another person constituting an
offense if, with intent to promote or
facilitate the commission of the offense, the
person aids or abets the other person in
planning or committing the offense.
In order to establish that Richard
Erickson is legally accountable in this case,
the state must prove beyond a reasonable
doubt the following:
First, that the event in question
occurred at or near Anchorage and on or about
May 19, 1986;
Second, that the defendant acted with
intent to promote or facilitate the
commission of an offense; and
Third, that the defendant aided or
abetted another person in planning or
committing the offense.
(Emphasis supplied.) Erickson argues that, because AS
11.16.110(2)(B) states that a defendant must intend "to promote
or facilitate the commission of the offense," the court erred by
instructing the jury that Erickson had to intend to promote or
facilitate the commission of an offense.
The plain language of AS 11.16.110(2)(B) does seem to
indicate that an accomplice must intend the commission of the
particular offense committed by the principal in order to be con-
victed of the offense. Echols, P.2d , Op. No. 1164 at
4. However, Erickson never objected to this deficiency in the
instruc-tion at trial. Furthermore, the first part of the
instruction clearly states that the accomplice must act "with
intent to promote or facilitate the commission of the offense."
Given this fact, it seems unlikely that the jury would
misinterpret the instruction, and Erickson's claim does not rise
to the level of plain error.
In addition to instructing the jury on accomplice
liability under AS 11.16.110, the court also instructed the jury
as follows:
A person commits the crime of Assault in
the Second Degree if the person recklessly
causes serious physical injury to another
person.
In order to establish the crime of
Assault in the Second Degree, it is necessary
for the state to prove beyond a reasonable
doubt the following:
First, that the event in question
occurred at or near Anchorage and on or about
May 19, 1986;
Second, that Richard Erickson acted
recklessly and;
Third, that the defendant caused serious
physical injury to Andrew Twogood.
Under this instruction, which charged Erickson as a
principal, the jury would only have to find that Erickson acted
recklessly, and not that he "acted with intent to promote or
facilitate the commission of the offense." However, to convict
Erickson as a principal, the jury would also have to find that he
caused serious physical injury to Andrew Twogood. In order to
convict Erickson as an accomplice, the jury did not have to find
that Erickson's conduct was the proximate cause of Twogood's
injuries.
In conclusion, we hold that the indictment charged
Erickson both as an accomplice and as a principal, that the state
presented sufficient evidence for the jury to consider Erickson's
guilt under both theories, and that the jury instructions on
these two theories were sufficient under the plain error rules.
Erickson was charged with assault in the second degree.
At Erickson's request, the court also instructed the jury on the
lesser-included offenses of third- and fourth-degree assault. In
closing argument, the prosecutor urged the jury to convict
Erickson of second-degree assault, arguing that the less serious
charges were inappropriate for this offense:
To find him guilty of assault in the fourth
degree you have got to find objectively that
Andy Twogood only suffered physical injury,
and I think that's an insult. . . .
. . . .
The fact is under the law that to find a
lesser included you would have to find that
the injury that Andy Twogood sustained was
not serious, and you know from the moment
that he walked into this courtroom that
that's a ludicrous proposition.
. . . .
. . . And I apologize for any emotion in
my voice at considering that what happened to
Andy Twogood was only physical injury instead
of serious physical injury, because to find
one of those lessers that's what you have to
find, that objectively under the definition
that the Judge is going to tell you, that
what happened to Andy Twogood was only
physical injury and not serious physical
injury.
Erickson contends that the prosecutor misstated the law
to the jury. He argues that she led the jury to believe that it
could not convict Erickson of the lesser-included offenses,
regardless of his culpable mental state, because Twogood had
obviously suffered serious physical injury.
The trial court correctly instructed the jury on the
elements of the lesser-included offenses. We have read the
arguments of counsel. In context, we fail to see how the state's
argument would have misled the jury. We find no error.
Erickson next contends that Judge Johnstone erred in
denying his motion to sever his case from the case against his
codefendant, Robert Machado. Erickson argues both improper
joinder under Alaska Criminal Rule 8(b) and prejudicial joinder
under Alaska Criminal Rule 14.
Rule 8(b) permits two or more defendants to be joined
in the same indictment "if they are alleged to have participated
in the same act or transaction or in the same series of acts or
transactions constituting an offense or offenses." Erickson
argues that his case was improperly joined with Machado's because
several counts against Machado -- perjury, possession of
explosives, and arson -- did not relate to the charges against
Erickson. The perjury counts allege that Machado lied at a
search warrant hearing, a year after the bombing incident,
concerning his knowledge of and involvement with the explosives
and bomb which injured Twogood and Neubauer. The other charges
against Machado alleged his actual participation in the bombing
incident. Since there was no evidence at trial to prove that
Erickson knew in advance of a plan to use explosives to injure
Twogood, Erickson argues that all charges concerning the use of
the car bomb were improperly joined with his case.
To be charged in a single indictment, it is not
necessary that each defendant participate in each act. Larson v.
State, 566 P.2d 1019, 1021 (Alaska 1977). However, the
defendants' offenses will only constitute a series of acts or
transactions under Rule 8(b) if there is "a significant
connection between the different acts charged." Greiner v.
State, 741 P.2d 662, 664 (Alaska App. 1987). In Greiner, this
court found that joinder was improper because there was no
evidence of a common scheme or plan among the four defendants.
Id. at 665. In Mathis v. State, 778 P.2d 1161, 1167 (Alaska App.
1989), this court found that joinder was proper under Rule 8(b)
because there was "an identity of participants" in a single plan
to murder the victim.
According to the state's evidence, a common scheme or
plan did exist in this case; Machado and Erickson played separate
roles in that single plan. The state charged Erickson with
initiating the plan to murder Twogood. The evidence at trial
indicated that Erickson approached Marzak to arrange the murder,
that he lent his truck to Taylor and Machado to drive to
Anchorage to carry out those arrangements, and that he at least
knew of the plan to assault Twogood. All the charges against
Machado related to that attempt on Twogood's life, including the
perjury charges. Machado's acts bear a significant connection to
Erickson's involvement in the plan to murder Twogood. Therefore,
Judge Johnstone could find that the state properly joined the
charges for trial.
Alaska Rule of Criminal Procedure 14 provides, in
pertinent part:
If it appears that a defendant or the
state is prejudiced by a joinder of offenses
or of defendants in an indictment or
information or by such joinder for trial
together, the court may order an election or
separate trials of counts, grant a severance
of defendants, or provide whatever other
relief justice requires.
An appellate court should overturn a trial judge's
decision to deny severance only where the trial court has abused
its discretion. We are to find an abuse of discretion only where
the defendant has shown prejudice from joinder. Abdulbaqui v.
State, 728 P.2d 1211, 1219 (Alaska App. 1986). Erickson first
claims that he was prejudiced by joinder because he was unable to
call Machado as a witness.
In Hawley v. State, 614 P.2d 1349 (Alaska 1980), the
defendant wanted to sever the trials so that he could call the
codefendant on his behalf. Finding that, even if the codefendant
was willing to testify, it was not clear that her testimony would
have been more than minimally significant, the supreme court held
that the trial court did not abuse its discretion in denying the
defendant's severance motion. Id. at 1360.
Similarly, in this case, Erickson has failed to show
that Machado was willing to testify or that Machado's testimony
would have been significantly exculpatory. In Hawley, the
defendant submitted an affidavit from the codefendant about her
willingness to testify; there was no such indication of Machado's
willingness to testify in this case. Additionally, there is
little in the record to indicate that Machado's testimony would
have been helpful. Machado's recorded statement merely indicates
his lack of knowledge about Erickson's involvement.
Erickson also argues that he was prejudiced because
Machado did not testify but the state presented Machado's
statements into evidence. Erickson relies on Newcomb v. State,
779 P.2d 1240, 1242-43 (Alaska App. 1989). In that case, the
state admitted into evidence the confession of a non-testifying
codefendant. The codefendant's statements directly implicated
Newcomb as an accomplice in the offense. We reversed Newcomb's
conviction because the statements were clearly inculpatory of
Newcomb and Newcomb was never able to cross-examine the
codefendant. In contrast, Erickson has failed to show that
Machado's statements prejudiced him. Machado never stated that
Erickson was involved in the attempted murder. Specifically, in
response to Investigator Coletta's suggestion that Erickson might
be involved, Machado denied knowing anything about Erickson's
role. We find that Judge Johnstone did not abuse his discretion
in concluding that Erickson did not show prejudice from being
jointly tried with Machado.
Erickson next contends that Judge Johnstone erred in
denying his motion to enforce an alleged immunity agreement with
the state. Prior to trial, Erickson filed a "Motion to Impose
Implied Immunity Agreement," in which he requested the court to
enforce an implied promise of immunity which Erickson claimed
Investigator Coletta gave him in exchange for his cooperation in
the police investigation. Alternatively, Erickson moved to
suppress his statements to the police because they were made as a
result of duress and coercion. Erickson claimed that the actions
which the police took to encourage him to cooperate made his
statements involuntary.
Following an extensive evidentiary hearing, Judge
Johnstone denied Erickson's motion, ruling that the state had not
made any express or implied promises of immunity. Judge
Johnstone never explicitly ruled on Erickson's alternative motion
to suppress his statements to the police as involuntary.
Judge Johnstone's findings that the state did not
expressly or impliedly promise immunity are supported by the
record. In reviewing the judge's decision, we review the facts
in the light most favorable to the state, the prevailing party.
Wilburn v. State, 816 P.2d 907, 911 (Alaska App. 1991).
According to the evidence which the state presented, Erickson
voluntarily approached Investigator Coletta to draw suspicion
away from himself. Judge Johnstone found that Coletta never made
any promises of immunity or implied that he could give Erickson
immunity. The state's position was that if Erickson was being
truthful, he did not need immunity.
By finding that the state had not expressly or
impliedly offered Erickson immunity, Judge Johnstone implicitly
found that Erickson's statements to the police were voluntary.
Although Erickson contends that Judge Johnstone did not make
sufficient findings on this issue, in order to properly preserve
this issue for appeal, it was Erickson's duty to insist that the
trial court rule on his motion. Jonas v. State, 773 P.2d 960,
963 (Alaska App. 1989). We conclude that there was sufficient
evidence to support Judge Johnstone's implied finding that
Erickson's statements were voluntary.
Erickson next contends that Judge Johnstone erred in
denying his motion for a mistrial. During Marzak's testimony,
the prosecutor brought out that during a taped conversation, when
Taylor asked Marzak whether Erickson could have been involved in
an unrelated homicide, Marzak replied that he had no reason to
believe that Erickson was involved. This testimony came in
without objection. Later, during closing argument, the
prosecutor referred to this testimony. She pointed out that
Marzak could have falsely tried to implicate Erickson in the
unrelated homicide, but did not. From this she argued that
Marzak was not willing to falsely accuse Erickson, and
consequently was telling the truth when he stated that Erickson
was involved in a plan to kill Twogood.
Erickson's counsel objected to this argument on the
ground that it was not supported by the evidence. Judge
Johnstone overruled this objection. Following the conclusion of
the prosecutor's argument, Erickson moved for a mistrial. Judge
Johnstone denied this motion.
A trial court is vested with wide discretion in
determining whether to grant a mistrial; the decision will be
overturned only if it is clearly erroneous. Roth v. State, 626
P.2d 583, 585 (Alaska App. 1981). In the instant case, Marzak's
testimony came in without any objection. The prosecutor was
therefore entitled to argue the weight of this testimony. We
believe that Judge Johnstone could properly conclude that the
testimony and argument were not unduly prejudicial. The clear
point of the testimony was that Erickson was not involved in the
unrelated homicide. We find no error.
Erickson next contends that Superior Court Judge Peter
A. Michalski abused his discretion in denying Erickson's motion
for a new trial which was based on an alleged improper contact
between Judge Johnstone and one of the jurors. Judge Michalski
heard testimony from several witnesses including Judge Johnstone
and the juror. Judge Michalski concluded that there had been no
improper contact or communication between Judge Johnstone and the
juror. Judge Michalski's findings are supported by the record
and are not clearly erroneous. We conclude that Judge Michalski
did not err in denying Erickson's motion for a new trial.
Erickson contends that Judge Johnstone erred in
increasing Erickson's bail during trial. He claims that being
remanded to custody denied him an opportunity for a fair trial.
However, nothing in the record reflects that Erickson was
prejudiced by the fact that he was incarcerated during part of
the trial. We find no error.
Erickson next raises several issues concerning his
sentence. Erickson was convicted of assault in the second
degree, a class B felony with a maximum sentence of ten years of
imprisonment. AS 11.41.210(b); AS 12.55.125(d). A second felony
offender convicted of a class B felony is subject to a
presumptive sentence of four years; a third felony offender faces
a presumptive sentence of six years. Erickson is a first felony
offender for purposes of presumptive sentencing. Judge Johnstone
sentenced Erickson to ten years with one year suspended. He also
ordered that Erickson was not to be released on parole.
Erickson argues that Judge Johnstone was improperly
influenced by talking with Twogood ex parte. However, there is
nothing in the record to suggest that Judge Johnstone and Twogood
had an improper ex parte conversation. Twogood made a lengthy
oral statement at the sentencing hearing, with no objection from
Erickson. In addition, the presentence report, the trial, and
other sources gave Judge Johnstone extensive information about
Twogood.
Erickson argues that Judge Johnstone put undue emphasis
on Erickson's prior felony conviction. Erickson had previously
been convicted of bank robbery when he was seventeen years old
and sentenced to four years of imprisonment. This conviction was
later set aside, following Erickson's discharge from parole.
Judge Johnstone could properly consider this prior offense in
evaluating Erickson's background and prospects for
rehabilitation. There is no indication that Judge Johnstone
placed undue emphasis on this prior offense. We find no error.
Erickson argues that Judge Johnstone erred in requiring
him to submit to a psychiatric evaluation within ninety days of
his release from prison. However, we believe that Judge
Johnstone could properly find that Erickson was a dangerous
offender and that the examination might help probation officials
plan for Erickson's supervision following his release from
confinement. It appears that the condition is reasonably related
to the protection of the public and is not unduly restrictive of
Erickson's liberty. Roman v. State, 570 P.2d 1235, 1240 (Alaska
1977).
Erickson argues that Judge Johnstone erred in requiring
as a condition of probation that Erickson not reside in the same
community as Twogood and Neubauer and their families. The state
agrees that Judge Johnstone's oral condition is too broad, but
points out that in the judgment, the court merely requires
Erickson to have "no contact, direct or indirect, with either of
the victims or any member of their families." We agree that this
condition is proper. As amended in the judgment, the condition
is consistent with Roman.
Erickson next argues that Judge Johnstone erred in
failing to hold a hearing on Erickson's ability to pay
restitution. See Karr v. State, 686 P.2d 1192, 1196-97 (Alaska
1984). The state agrees that Judge Johnstone erred in requiring
Erickson to apply one-half of his future earnings to restitution
upon his release from prison. The state's concession is
consistent with the Karr case. We accordingly vacate condition
No. 2, which requires Erickson to contribute all of his earnings
while in custody and fifty percent of his earnings while he is on
probation. We remand for further proceedings in light of Karr.
Erickson next argues that his sentence is excessive.
However, Judge Johnstone stated at sentencing that he believed
the testimony of Marzak that Erickson initiated the plan to kill
Twogood, with the full understanding that Twogood would be killed
or seriously injured. Essentially, Judge Johnstone found that
Erickson was actually guilty of a much more serious offense than
the offense for which he was convicted -- the attempted murder of
Andrew Twogood. He found that Erickson was an extremely
dangerous offender who needed to be isolated to protect the
public.
Judge Johnstone was able to see all the evidence
presented at trial in this case. His factual findings concerning
the seriousness of the offense are entitled to substantial
deference. Given his conclusion that Erickson's conduct actually
amounted to a more serious offense than the offense for which he
was convicted, we believe that the sentence of ten years with one
year suspended, with Erickson ineligible for parole release, was
not clearly mistaken.
The conviction is AFFIRMED. The sentence is AFFIRMED
in part and REMANDED.
_______________________________
*Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
1. Marzak was ultimately convicted for a theft
offense which was upon his possession of stolen vehicles and
parts. See Marzak v. State, 796 P.2d 1374, 1375 (Alaska App.
1990).
2. The state actually cited AS 11.16.100(2)(B) in the
indictment. However, in context, it is obvious that the state
intended to cite AS 11.16.110(2)(B), and Erickson has not argued
that this was error or that he was misled.
