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THE COURT OF APPEALS OF THE STATE OF ALASKA
RUSTY HIGHTOWER, )
) Court of Appeals No. A-4317
Appellant, ) Trial Court No. 3FA-S88-2610CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
) [No. 1262 - December 4, 1992]
Appellee. )
______________________________)
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Mary E. Greene, Larry Zervos, Jay
Hodges, Judges.
Appearances: Thomas E. Fenton, Fairbanks,
for Appellant. Eric A. Johnson, 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.]
BRYNER, Chief Judge.
In 1988, the state filed a delinquency petition against
Rusty Hightower, alleging various misconduct, including an act of
first-degree murder. The state also petitioned for waiver of
children's court jurisdiction. Hightower eventually stipulated
to waiver and was charged as an adult with first-degree murder.
He entered a plea of guilty to the charge. Superior Court Judge
Mary E. Greene sentenced Hightower to the maximum term of ninety-
nine years. Hightower appeals, contending that this sentence is
excessive. We affirm.
In R.H. v. State, 777 P.2d 204, 205-06 (Alaska App.
1989), we gave the following description of Hightower's offense
and of his personal background:
On the night of March 31, 1988, R.H. and
another minor, P.K.M., burglarized a
Fairbanks office and stole a pistol, the
owner's manual to the pistol, some
ammunition, and an extra clip. By reading
the owner's manual, R.H. and P.K.M. learned
how to operate the gun. They then decided to
rob a taxicab driver in order to obtain money
for drugs; the boys made plans to kill the
driver of the cab.
In the early morning hours of April 1,
R.H. and P.K.M. flagged down a cab driven by
Dale Baurick and asked to be taken to McGrath
road in Fairbanks. Baurick drove the boys
there and stopped the cab. R.H., who was
seated behind Baurick, fired four shots into
Baurick's back. As R.H. fired the shots,
Baurick threw a wad of money into the back
seat.
After firing the shots, R.H. searched
Baurick's pockets, taking a knife from one of
them. R.H. then pulled Baurick out of the
cab onto the road. Baurick apparently
moaned. P.K.M. told R.H. to shoot Baurick,
to make sure that he died. R.H. fired
another shot into Baurick's head as Baurick
lay on the road. R.H. and P.K.M. left the
scene, driving Baurick's cab.
Alaska State Troopers investigating the
case interviewed R.H. two days later, on
April 3, 1988. R.H. gave a videotaped
statement confessing to the murder and to the
prior burglary in which he stole the murder
weapon. The state thereafter petitioned for
waiver of children's court jurisdiction over
R.H., charging him with murder in the first
degree, robbery in the first degree, and
other offenses stemming from the burglary and
shooting of March 31 and April 1.
R.H. was born on May 22, 1971. At the
time of the offenses in this case, he was
less than two months away from his
seventeenth birthday. R.H.'s parents were
divorced in 1979. R.H. first became involved
in delinquent behavior in 1977, when he was
charged with destroying mail from mailboxes.
In 1983, at age twelve, R.H. was charged with
harassment and disorderly conduct. The
following year, he was involved in a
shoplifting.
The 1983 and 1984 offenses apparently
occurred when R.H. was living with his
mother. In 1985, while living with his
father in Delaware, R.H. was charged with
possession of marijuana. Later in 1985,
after turning fourteen, R.H. was charged with
robbery and conspiracy. In early 1986, while
awaiting disposition on the robbery charge,
R.H. was charged with consuming alcohol,
criminal trespass, and criminal
misrepresentation. In an apparent effort to
avoid Delaware delinquency proceedings,
R.H.'s father sent R.H. to live with
relatives in California.
Within a short time, in April of 1986,
R.H. robbed a woman in California. R.H.'s
father evidently misled California authori
ties, telling them that, for the most part,
R.H. had never been in trouble with the law.
R.H. was eventually released on probation on
condition that he not return to California
without being accompanied by a parent.
From California, R.H. was sent to live
with his mother in North Pole, Alaska. In
March of 1987, while fifteen years old, R.H.,
in the company of two adults, broke into
Moose Creek Lodge and stole alcohol, food,
money, and stereo equipment. At sixteen
years of age, in August of 1987, R.H. was
stopped while driving a stolen pickup truck.
An Intoximeter test indicated a breath
alcohol level of .08.
The state filed a delinquency petition
charging R.H. with burglary, theft, criminal
mischief, and consumption of alcohol. On
December 4, 1987, R.H. admitted the allega
tions of the petition. The superior court
released him to the custody of his mother
pending a disposition hearing. Six days
later, R.H. was arrested for shoplifting.
Upon arrest, he appeared to have been drink
ing; a pipe containing marijuana residue was
found on his person.
A disposition hearing was held in superi
or court in Fairbanks on January 12, 1988.
R.H. was placed on probation, on condition
that he remain in the custody of his mother,
participate in a substance abuse counseling
program, and refrain from consuming alcohol
or controlled substances.
On March 30, 1988, R.H.'s mother
reported to R.H.'s juvenile probation officer
that R.H. had stolen $4,000 worth of coins
from her boyfriend and had sold them. Less
than two days later, R.H. engaged in the
fatal shooting of Dale Baurick.
For purposes of this sentence appeal, the only facts of
significance we need add to this description pertain to
Hightower's status since his arrest on the murder charge.
Hightower remained in custody from his arrest in April of 1988
until his sentencing hearing in January of 1992; during this time
he committed numerous infractions of prison regulations and was
repeatedly subjected to disciplinary proceedings. In the course
of his pre-sentence custody -- a period of slightly less than
four years -- Hightower's infractions resulted in his having
forfeited more than one and one-half years of good-time credit.
At the time of sentencing, Hightower was not enrolled in any of
the educational or rehabilitative programs that the Department of
Corrections makes available to prisoners.
Based on Hightower's extensive history of delinquency,
the seriousness of the murder for which he was convicted, and his
poor institutional record, Judge Greene found Hightower to be a
dangerous offender whose prospects for rehabilitation were very
slight, despite his youth. Judge Greene concluded that Hightower
deserved to be classed as a worst offender and, on this basis,
imposed the maximum term of ninety-nine years.
On appeal, Hightower argues that the maximum term was
inappropriate in his case because his crime was not planned or
premeditated. But Judge Greene found otherwise, and the record
supports the judge's conclusion. Hightower also maintains that
his young age should have precluded the imposition of the maximum
term. However, youth alone does not bar the imposition of a
maximum term for murder. See, e.g., Riley v. State, 720 P.2d
951, 953 (Alaska App. 1986); Ridgely v. State, 739 P.2d 1299,
1301-02 (Alaska App. 1987). Judge Greene was well aware that
Hightower's age was a potentially relevant factor to consider in
fashioning a sentence, but ultimately concluded that it should
not be given determinative weight. The judge stated, in relevant
part:
[I]t's clear to me that youth should
only be considered in two ways. One is where
the youth of the person contributes to that
lack of self-control, impulsive behavior that
is typical of youth. Or two, in terms of
rehabilitation the, certain -- fundamental
hope that we all have that as malleable
youth[,] people can change. Neither of those
things is particularly involved here.
Again, the record supports the judge's conclusion.
As the sentencing court recognized, Hightower was
convicted of first-degree murder for a cold-blooded homicide that
he had planned in advance and that he carried out either to
facilitate the commission of a robbery or for the mere thrill of
killing another human being. This conduct places Hightower's
crime among the most serious of first-degree murders. Given the
seriousness of Hightower's conduct, his extensive history of
antisocial behavior, and his poor institutional record, the court
did not err in characterizing him as a worst offender. Having
independently reviewed the entire sentencing record, we conclude
that Hightower's sentence is not clearly mistaken. McClain v.
State, 519 P.2d 811, 813-14 (Alaska 1974).
The sentence is AFFIRMED.
_______________________________
*Sitting by assignment made pursuant to article IV, section
16 of the Alaska Constitution.
