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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
WALLACE A. HANSEN, )
) Court of Appeals No. A-3863
Appellant, ) Trial Court No. 3KN-90-86 Cr
)
v. )
) O P
I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1279 - January 22, 1993]
________________________________)
Appeal from the Superior Court, Third Judi
cial District, Kenai, Victor D. Carlson,
Judge.
Appearances: R. Scott Taylor of Rice, Vol
land, & Gleason, P.C., Anchorage, for Appel
lant. Kenneth M. Rosenstein, Assistant Attor
ney General, Office of Special Prosecutions
and Appeals, Anchorage, and Charles E. Cole,
Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
MANNHEIMER, Judge.
Following a jury trial in the superior court, Wallace
A. Hansen was convicted of second-degree murder (felony murder),
AS 11.41.110(a)(3), and second-degree arson, AS 11.46.410(a).
He appeals his convictions. We reverse Hansen's second-degree
murder conviction; we affirm his second-degree arson conviction.
On January 21, 1990, Kenai resident John Griffiths was
shot to death, his property stolen, and his trailer burned,
apparently to conceal the first two crimes. A Kenai grand jury
indicted Hansen and two other men, Peter Krus and Douglas Wilson,
for first-degree murder, first-degree robbery, and first-degree
arson in connection with Griffiths's death.
Hansen, Krus, and Wilson were tried jointly. The trial
judge gave the jury instructions on the offenses contained in the
indictment: first-degree murder, first-degree robbery, and first-
degree arson. In addition, over Hansen's objection, the judge
instructed the jury on the offense of second-degree murder under
a felony-murder theory. The jury also was instructed (without
objection) on second-degree arson. No party sought an
instruction on second-degree robbery.
The jury convicted Krus of the three crimes charged in
the indictment. The jury acquitted Wilson of all charges. The
jury acquitted Hansen of the three crimes charged in the
indictment but convicted him of second-degree murder and second-
degree arson.
Sufficiency of the Evidence at Trial
Hansen argues that the State presented insufficient
evidence at trial to support his convictions. The test is
whether a reasonable fact-finder who viewed the evidence in the
light most favorable to the State could conclude that the State
had proved its case. Silvernail v. State, 777 P.2d 1169, 1172
(Alaska App. 1989). Our review of the evidence at trial convinces
us that the verdicts are supported by sufficient evidence.
The State presented evidence that Hansen, Krus, and
Wilson were living together in the same residence. Krus had
openly spoken of killing and robbing Griffiths. Hansen and
Wilson had engaged in these conversations and had encouraged
Krus. An hour before Griffiths was killed, Hansen, Krus, and
Wilson left home together; the three men departed in Hansen's
truck, with Hansen driving. Just before he left, Hansen took off
his shoes and put on a pair of a roommate's shoes, a pair that
was too small for Hansen. Krus carried Hansen's handgun and used
it as the murder weapon. The day after the homicide, Hansen and
Wilson approached a friend and told him he should telephone Krus;
in the ensuing telephone conversation, Krus asked this friend to
provide a false alibi for himself, Hansen, and Wilson. Hansen
and Wilson remained for this conversation and spoke with the
friend about the desired alibi afterwards.
From all this evidence, a reasonable fact-finder could
infer that, when Hansen drove Krus to Griffiths's trailer, Hansen
knew that Krus intended to kill and rob Griffiths, and Hansen
intended to promote or facilitate the killing and robbery. These
findings would support Hansen's conviction as an accomplice to
the murder and robbery committed by Krus. AS 11.16.110(2)(B).
Moreover, evidence at trial demonstrated that Griffiths's
residence was destroyed by fire contemporaneously with the murder
and robbery. This fire was started by an act of arson, and the
accelerant used to fuel the fire was poured either on or near
Griffiths's body. From this evidence, the jury could reasonably
infer that the fire was set for the purpose of destroying
evidence of the murder and robbery, and that Hansen, who had both
motive and opportunity, was either a principal in or an
accomplice to the arson.
Propriety of Instructing the Jury on Felony Murder
As stated above, we are reversing Hansen's second-
degree murder conviction. We do this because we conclude that
the jury should not have been instructed on felony murder.
Second-degree murder was not charged in the indictment.
Because of this, Hansen could not be convicted of second-degree
murder unless that crime was necessarily included in the offenses
charged in the indictment. Alaska Criminal Rule 31(c); State v.
Minano, 710 P.2d 1013 (Alaska 1985).
The State concedes that felony murder is not a lesser
included offense of first-degree murder, since felony murder
requires proof of an element not required for first-degree
murder: proof that the defendant was engaged in the commission or
attempted commission of another felony at the time of the
homicide. The State nevertheless argues that it was proper to
instruct the jury on felony murder because Hansen was indicted,
not only for first-degree murder, but also for first-degree
robbery and first-degree arson, two of the predicate felonies
listed in the felony-murder statute, AS 11.41.110(a)(3). The
State contends that the policy of Criminal Rule 31(c) was not
violated because the elements of felony murder can be derived by
combining selected elements of the three crimes charged in
Hansen's indictment.
We reject the State's argument as flawed. The grand
jury found probable cause to believe that the State could prove
all the required elements of first-degree murder, first-degree
robbery, and first-degree arson. However, the crime of felony
murder requires proof of an additional element not included in
any of these three crimes. AS 11.41.110(a)(3) specifies that a
homicide is felony murder only if the death is caused "in the
course of or in furtherance of [one of the listed predicate
felonies], or in immediate flight from that crime". The grand
jury was never asked to decide whether the State could prove that
Griffiths met his death during the course of or in furtherance of
the robbery or the arson. The facts of Hansen's case highlight
this problem.
The State alleged that Krus and Hansen had gone to
Griffiths's trailer to rob and kill him, then had committed arson
to destroy evidence of these first two crimes. These facts do
not support a conviction of felony-murder using arson as the
predicate felony. Under the State's theory of the case,
Griffiths was not killed during the commission of the arson or to
further that crime. The arson was committed after Griffiths was
dead; it was motivated by the desire to conceal the murder and
robbery. Thus, under the State's theory of the case, even though
the grand jury might validly indict Hansen for both first-degree
murder and first-degree arson, the grand jury could not indict
Hansen for felony murder based on a combination of these two
crimes.
We acknowledge that the facts of Hansen's case might
well support a felony murder charge based on a combination of the
first-degree murder and the first-degree robbery charges, since
the State presented evidence that the murder and robbery were
intended to be contemporaneous crimes. However, even though the
extra element required for felony murder (the causal link between
the robbery and the homicide) might be apparent from the
evidence, the grand jury must still explicitly consider this
additional element and make a finding with regard to it. Cf.
Michael v. State, 805 P.2d 371 (Alaska 1991).
One of an indictment's primary functions is to notify
the defendant of the charges he or she must be prepared to defend
against. Harvey v. State, 604 P.2d 586, 588 (Alaska 1979),
quoting Thomas v. State, 522 P.2d 528, 530 (Alaska 1974).
Normally, a defendant may not be convicted of an offense that was
not specified in the indictment. Michael, 805 P.2d at 374. The
doctrine of lesser included offenses is a seeming exception to
this rule, for it allows a defendant to be convicted of charges
that are not specified in the indictment. But this is not truly
a departure from the notice requirement, because the law counte
nances a defendant's conviction of a lesser offense only when the
elements of the offense charged in the indictment necessarily
encompass the elements of the lesser offense - that is, only when
the defendant's notification of the greater charge necessarily
constitutes notification of the potential lesser charge as well.
See Elisovsky v. State, 592 P.2d 1221, 1226 (Alaska 1979).
We recognize that the Alaska Supreme Court, by adopting
the cognate approach to lesser included offenses, intended to
expand the number of lesser offenses that would, by law, be
"included" within a given charged offense. Elisovsky, 592 P.2d
at 1225-26.1 We also recognize the well-established policy of
construing indictments liberally: an indictment will not be
struck down simply because the text of the indictment fails to
specifically recite every necessary element of the crime charged,
so long as the record of the grand jury proceedings clarifies and
supports the grand jury's decision to indict the defendant for
the named crime. Lupro v. State, 603 P.2d 468, 472-73 (Alaska
1979).
Nevertheless, we are unwilling to expand the doctrine
of lesser included offenses to the degree proposed by the State.
The State suggests that an "included" crime (here, felony murder)
can be cobbled from separate pieces of two or more charged crimes
(here, a homicide and a predicate felony), stitched together with
yet another element (the causal relationship between the homicide
and the felony) that is not stated anywhere in the indictment but
must be inferred from the grand jury record. Such an expansion
of the lesser included offense rule stretches to the breaking
point the concept that an indictment must notify the defendant of
the charges to be tried. If the State wished to seek Hansen's
conviction of second-degree murder under a felony murder theory,
the State was obligated to indict Hansen for felony murder.2
For these reasons, we reverse Hansen's conviction for
second-degree murder. If the State wishes to reprosecute Hansen
for felony murder, the State must seek a grand jury indictment
for this crime.
Inconsistency of the Verdicts
Hansen also attacks his convictions on the ground that
the jury reached logically inconsistent verdicts. In DeSacia v.
State, 469 P.2d 369 (Alaska 1970), the Alaska Supreme Court held
that, when a defendant is tried for two crimes and is convicted
of one but acquitted of the other, the conviction must be
reversed and the defendant re-tried if the jury's verdicts are
logically inconsistent with each other.
Regarding his felony-murder conviction, Hansen points
out that the jury convicted him of felony murder but acquitted
him of first-degree robbery and first-degree arson, the two
predicate felonies that the State relied on to prove that the
homicide constituted felony murder. These verdicts are logically
inconsistent.3 Regarding his second-degree arson conviction,
Hansen argues that the jury's decision to convict him of second-
degree arson is fundamentally inconsistent with its decision to
convict his accomplice, Krus, of the greater crime of first-
degree arson.
The State asserts that, because Hansen did not object
to the inconsistency of the verdicts in the trial court, he
cannot seek relief now on appeal. DeSacia holds that, if there
is no objection in the trial court, the issue of inconsistent
verdicts can still be addressed on appeal as a matter of plain
error. 469 P.2d at 373. The State nevertheless points out that
this court has consistently held that a defect in the trial
proceedings cannot be challenged as "plain error" unless the
defendant shows that his or her defense attorney had no tactical
reason to refrain from bringing the error to the attention of the
trial court. See Potts v. State, 712 P.2d 385, 394 n.11 (Alaska
App. 1985).
The State argues that Hansen's attorney had an obvious
tactical reason not to object to the entry of plainly
inconsistent verdicts. If Hansen's attorney had alerted the
trial court to the problem, the trial court would have advised
the jury that their verdicts were inconsistent, that the verdicts
could not be accepted, and that the jury would have to continue
their deliberations. In these continued deliberations, the jury
might have convicted Hansen of first-degree robbery and first-
degree arson. On the other hand, if Hansen's attorney remained
silent and allowed the jury's verdicts to be entered and the jury
to be discharged, the double jeopardy clause would bar Hansen's
reprosecution for first-degree robbery and first-degree arson,
and Hansen's felony murder conviction would be overturned on
appeal.
There is considerable force to the State's argument. A
defense attorney who understands DeSacia and who perceives the
possibility that a jury's verdicts are inconsistent would be
strongly motivated not to object to the verdicts. Such a
tactical decision would normally preclude plain error review.
However, we need not resolve the issue raised by the
State. We have already concluded that Hansen's felony-murder
conviction must be reversed, so that issue of jury inconsistency
is moot. As to the possible inconsistency between Hansen's
conviction for second-degree arson and Krus's conviction for
first-degree arson, even assuming that Hansen's failure to object
was not tactical, we conclude that Hansen has not shown plain
error.
Hansen argues that the jury's decision to convict him
of second-degree arson is logically irreconcilable with its
decision to convict Krus of first-degree arson, since Hansen's
guilt was premised solely on his complicity in Krus's crime.
Hansen relies on a passage from the supreme court's decision in
Gray v. State, 463 P.2d 897 (Alaska 1970). Two brothers, Dewey
and Willie Gray, were charged with felony murder for killing a
police officer during their armed robbery of a liquor store.
Dewey Gray was armed with a handgun; it was he who shot the
officer. Willie Gray was unarmed and was charged with murder
under a complicity theory. Id. at 899-900.
Under Alaska's current law, a defendant commits felony
murder when anyone other than an accomplice is killed (even
accidentally) during the commission of or the immediate flight
from one of the listed predicate felonies. However, in 1970,
under Alaska's former criminal code, only an intentional
("purposeful") homicide qualified as felony murder. Gray, 463
P.2d at 902-04. The judge at the Grays' trial mistakenly told
the jury that any homicide, even an accidental one, committed
during the course of the armed robbery constituted felony murder.
Id. at 901. For this reason, the supreme court reversed Dewey
Gray's felony murder conviction. Id. at 904. The court then
addressed Willie Gray's felony murder conviction:
There is no evidence in the record that
Willie was armed or that he killed Officer
Strong. The only way he can be convicted ...
is as an accessory to felony murder[.]
Willie's guilt is dependent upon Dewey's
guilt.
Gray, 463 P.2d at 904.
Hansen relies on this passage to assert that, whenever
accomplices are tried for the same crime, the jury must return
the same verdict with regard to every accomplice. This is a
misreading of Gray and an over-simplification of the law.
The problem in Gray was that the jury had been given
inaccurate information concerning an essential element of the
crime of felony murder. Regardless of whether Willie Gray had
been convicted based on his own conduct or the conduct of his
accomplice brother, the jury's decision to convict the Grays of
felony murder had to be reversed. Under these circumstances, the
supreme court's statement, "Willie's guilt is dependent on
Dewey's guilt," is dictum.
Moreover, Alaska law now specifically provides that
accomplices need not be convicted of the same crime as the
principal actor. AS 11.16.120(a) states:
In a prosecution for an offense in which
legal accountability is based on the conduct
of another person,
. . .
(2) it is not a defense that
(A) the other person has not been
prosecuted for or convicted of an
offense based upon the conduct in
question or has been convicted of a
different offense or degree of of
fense[.]
The State relies on this statute to assert that there is no legal
problem presented by the jury's decision to convict Krus of first-
degree arson but convict Hansen of only second-degree arson.
Professor LaFave disagrees with the State's position;
he states that the "prevailing view" is to require consistency of
verdicts, even under such a statute, if the principal and the
accomplice are tried simultaneously. W. LaFave & A. Scott,
Substantive Criminal Law (1986), 6.6, Vol. 2, pp. 134-35 n.92;
and 6.8(c), Vol. 2, pp. 159-160 n.38. However, LaFave cites
only two cases to support this view. Another text, R. Perkins &
R. Boyce, Criminal Law (3rd ed. 1982), pp. 759-760, notes that
the states have enacted a wide variety of statutes on this
subject, that the courts interpreting these statutes have reached
a wide variety of conclusions, and that "generalizations are
hazardous".
Another approach to the problem is suggested by Perkins
& Boyce. The authors note that "it was clearly recognized even
in the time of Lord Hale that two [people] who jointly kill a
third may have different degrees of guilt, because one may act
with malice aforethought and the other without. ... [A]s
previously mentioned, an abettor may be convicted of either a
higher or a lower degree of guilt than the perpetrator." Perkins
& Boyce, p. 757 nn.13, 14 (citing cases in which the abettor was
found guilty of murder while the perpetrator was convicted only
of manslaughter, and vice-versa); and pp. 761-62.
Perkins & Boyce advocates the view that Hansen's
complicity makes him accountable for Krus's physical acts, but
Hansen's culpable mental state must be determined separately. If
so, then under the facts of this case and under the instructions
the jury received, the jury could reasonably have concluded that
Hansen should be convicted of a lesser degree of arson.
Under AS 11.46.400(a), a person commits the crime of
arson in the first degree if he or she "intentionally damages any
property by starting a fire or causing an explosion and by that
act recklessly places another person in danger of serious
physical injury." Second-degree arson, AS 11.46.410(a), is
committed if a person "intentionally damages a building by
starting a fire or causing an explosion."
When, as in this case, the damaged property is undis
putedly a "building", the difference between first-degree arson
and second-degree arson normally lies in the fact that the higher
degree of crime requires proof that the defendant recklessly
placed another person in danger of serious physical injury.
Proof of this distinguishing element would consist of two parts:
(1) that other people were actually endangered by the fire, and
(2) that the defendant acted "recklessly" with regard to this
circumstance.
These are the elements the State had to prove to secure
Krus's conviction for first-degree arson. However, because
Hansen was charged as an accomplice to the arson, the jury might
reasonably have read the instructions on complicity to require
that the State prove a different, higher culpable mental state to
secure Hansen's conviction for first-degree arson.
The instructions on complicity informed the jury that
an accomplice must "in some way associate [him or herself] with
the venture, that the person participate in [the venture] as in
something that he or she wishes to bring about, and that the
person seek by his or her actions to make it succeed." Further,
the jury was told that, when a crime requires proof of a
particular result, a defendant is said to have acted "inten
tionally" when his or her conscious objective was to cause that
result. Arguably, the jury could have interpreted these
instructions to require proof that Hansen intended for other
people to be endangered by the fire at Griffiths's trailer before
he could be convicted of first-degree arson. Cf. Echols v.
State, 818 P.2d 691, 695 (Alaska App. 1991).
The State's theory of first-degree arson was that the
fire endangered passersby as well as the fire fighters who were
called to the scene because Griffiths's residence had a propane
gas tank and because Griffiths stored a large quantity of ammuni
tion in an out-building. We agree with Hansen that it would be
logically inconsistent for the jury to conclude that the fire
created this danger for purposes of judging Krus's guilt but did
not create the same danger for purposes of judging Hansen's
guilt. However, the jury may have reached its differing verdicts
because it believed that, while Krus (and perhaps Hansen) had
acted recklessly with regard to the danger posed to other people,
Hansen had not intended to endanger other people.
We do not decide what culpable mental state was
actually required for Hansen's conviction of first-degree arson.
That issue is not before us. The precise question raised by
Hansen's claim of inconsistent verdicts is whether there is any
logical way to reconcile the jury's differing verdicts with
regard to him and his co-defendant Krus. The answer to that
question is "yes", because the jury could reasonably have
construed the jury instructions to require proof of differing
culpable mental states.
We have discussed unresolved issues of statutory and
common law regarding the comparative guilt of principal and accom
plice. We have also noted that the jury's verdicts might be the
result of their conception that the law required differing
evaluations of Krus's and Hansen's culpable mental states. Under
these circumstances, we find that reasonable judges could differ
on the question of verdict inconsistency, and thus Hansen has not
established plain error. Marrone v. State, 653 P.2d 672, 676
(Alaska App. 1982).
Validity of the Indictment
Hansen asserts that his grand jury indictment was
flawed because a police officer who testified at grand jury
seriously mischaracterized a statement given by Hansen's co-
defendant, Wilson. The officer told the grand jury that Wilson
had confessed that he and Hansen were aware of Krus's plan to
kill and rob Griffiths, and that they were also aware that Krus
planned to burn Griffiths's body and residence to eliminate any
evidence of the first two crimes. Wilson had not said this.
Wilson admitted that Krus had spoken of killing and
robbing Griffiths. However, Wilson told the officer that Krus
was always getting drunk and bragging about shooting people;
Wilson declared several times that he "never thought [Krus] would
do it". Wilson told the officer that he, Hansen, and Krus drove
to Griffiths's house and were socializing with him when, without
warning, Krus shot Griffiths. Wilson told the officer that he
and Hansen "wanted to get out of there so bad. [Hansen] didn't
think [Krus] was going to do it either." Wilson conceded that he
had fetched a gas can at Krus's request, so that Krus could burn
Griffiths's body. However, Wilson told the officer that he
helped Krus only because "I wasn't about to argue with [Krus]
with a god-damned gun in his god-damned hand." According to
Wilson, he and Hansen sat in Hansen's truck while Krus doused
Griffiths's body and the trailer with gasoline.
On appeal, Hansen asserts that the grand jury's
decision to indict him was fundamentally flawed by the police
officer's mischaracterization of Wilson's statement. Indeed,
Hansen argues that Wilson's statement to the police (if
accurately conveyed) was exculpatory evidence.
We have already held that Hansen's second-degree murder
conviction must be reversed. And, as noted above, the trial jury
acquitted Hansen of robbery. Thus, the validity of the portions
of Hansen's indictment charging him with murder and robbery is
moot. The only remaining issue is the validity of Hansen's
indictment for arson.
The grand jury heard independent evidence of Krus's
plans to murder and rob Griffiths, as well as testimony that
Wilson and Hansen had actively participated in the discussions of
these plans. The grand jury also heard testimony that, just as
the three men were leaving, Krus strapped on a holster, arming
himself with Hansen's gun. At the same time, Hansen changed his
shoes, selecting another pair that was too small for him. This
evidence suggests that Krus was about to put his plan into
action, that Hansen was aware of Krus's intentions, that Hansen
planned to take Krus to Griffiths's residence, and that Hansen
wanted to disguise his own presence at the scene of the impending
homicide.
We agree that Wilson's statement was seriously
misreported to the grand jury. But the question is whether, if
the grand jury had heard an accurate account of Wilson's
statement, this evidence would have appreciably affected the
grand jury's decision to indict Hansen for arson. Clifton v.
State, 728 P.2d 649, 651-52 (Alaska App. 1986), rev'd on other
grounds, 751 P.2d 27 (Alaska 1988). The crucial portion of
Wilson's statement was his repeated protestation that Krus's
murder of Griffiths took him completely by surprise. To the
extent that this evidence tended to exculpate Hansen, it related
primarily to the murder and robbery charges against Hansen, not
to the arson. In the context of the State's evidence at grand
jury, we conclude that this evidence would not have appreciably
affected the grand jury's decision to indict Hansen for arson.
Hansen also asserts that his indictment must be
dismissed because the prosecutor misinstructed the grand jury on
the law of complicity. Hansen did not raise this issue in the
trial court, so we review it only for plain error.
Responding to a grand juror's question concerning how
Hansen and Wilson might be charged for acts actually done by
Krus, the prosecutor told the grand jury:
PROSECUTOR: [The State] will be
alleging [that] Doug Wilson and Allen Hansen
are accomplices. You don't have to find that
they had the intent specifically to kill John
Griffith[s]. They need only know that that
was Peter Krus's intent and they then aided
and abetted him, knowing that that was his
intent. They can then be charged ... under
the law [as] accomplices. ...
I expect the evidence to show, for exam
ple, that Peter Krus got to John Griffiths's
residence because Allen Hansen drove him in
Allen Hansen's pickup truck. I expect the
evidence to show that Peter Krus was able to
kill John Griffith[s] using Allen Hansen's
revolver, and Allen Hansen allowed him to use
the revolver. If you find that to be the
evidence, ... that would be aiding and abet
ting, and if you find that [Hansen] had knowl
edge that Peter Krus was going to kill John
Griffith[s] after he drove him there, using
his weapon, he would also be chargeable with
first-degree murder as an accomplice. ...
You can also be an accomplice simply by
encouraging that an act be done. If you take
part in it, if you participate, you go along,
you encourage it, you expect to share in the
monetary rewards, ... [you] are as guilty as
the one [who] goes in and holds the gun[.]
Later, responding to another grand juror's question, the
prosecutor elaborated on complicity:
GRAND JUROR: I have [a question].
You're - the ... first, second, and third
[counts] for the, like Wilson and Hansen ...
PROSECUTOR: Um-hum
GRAND JUROR: ... would that, although
they might not have had the weapon or they
didn't potentially hurt Griffith[s], but they
could still be charged for that ... as an
accomplice?
PROSECUTOR: If you find that they ...
did something to encourage Krus, if they did
something to associate themselves with what
Krus was going to do, they aided him in some
way, if they planned to share in the
proceeds, for example, they would be charged
under Alaska law ... as if they did it
themselves.
We agree with Hansen that some elements of the prosecu
tor's instruction to the grand jury are technically incorrect.
Under AS 11.16.110(2), complicity requires proof, not just that
the defendant knew of someone else's desire to commit a crime,
and not just that the defendant provided aid or encouragement to
that other person, but also that the defendant intended to
"promote or facilitate" the crime - that the defendant intended
his actions to encourage the crime or make its accomplishment
easier.
If a defendant knows of another's plan to commit a
crime and, with this knowledge, performs acts that aid or abet
the commission of the crime, one might reasonably infer that the
defendant acted with the required intent to promote or facilitate
the crime, but this will not be invariably true. It is conceiv
able that a defendant could know of another person's desire to
commit murder, and could furnish the weapon to the murderer, yet
not act with the intent to kill required for first-degree murder
(although the defendant's indifference to whether the victim
lived or died might support a conviction for second-degree murder
or manslaughter). It is also conceivable that the defendant
might engage in conversation with the murderer and speak words
(criticism of the intended victim, for example) that have the
effect of encouraging or inciting ("abetting") the murderer to
commit the crime, even though this effect was unintended.
However, given the absence of any evidence indicating that Hansen
did not intend to help Krus commit arson, we conclude that any
infirmity in the grand jury instructions was not plain error.
The Jury Instructions on Complicity
We now turn to Hansen's final attack on his arson
conviction. Hansen argues that the trial jury was misinstructed
on the culpable mental state required to prove complicity. This
culpable mental state is specified in AS 11.16.110(2):
A person is legally accountable for the
conduct of another constituting an offense if
. . .
(2) with intent to promote or facilitate
the commission of the offense, the person
(A) solicits the other to commit the
offense; or
(B) aids or abets the other in
planning or committing the offense[.]
This statute clearly distinguishes the culpable mental state of
complicity (the intent to promote or facilitate the commission of
the offense) from the actus reus of complicity (soliciting
another to commit the offense, aiding another to plan or commit
the offense, or abetting another to plan or commit the offense).
At Hansen's trial, neither the court nor the parties
suggested that the jury be instructed using the words of this
statute. Instead, the court instructed the jury that Hansen
could be convicted of arson as an accomplice if Hansen
"intentionally aided and [sic] abetted another who [purposely
damaged a building by fire]."
On appeal, Hansen argues that this instruction should
have tracked the words of the statute - that it should have
informed the jury that the required culpable mental state was
Hansen's "intent to promote or facilitate" the commission of
arson. However, Hansen did not raise this objection in the trial
court.4 We therefore examine the jury instruction for plain
error only. Alaska Criminal Rule 30(a); Alaska Criminal Rule
47(b). But cf. Green v. State, 579 P.2d 14, 19 (Alaska 1978),
indicating that the point of error may have been waived.
The complained-of instruction was supplemented by
various other instructions defining complicity. The jury was
instructed that complicity is established when a defendant
"knowingly and with criminal intent aids, abets, assists, or
participates in a criminal act". Also, as noted above, the jury
was told that an accomplice must "in some way associate [him or
herself] with the venture, that the person participate in [the
venture] as in something that he or she wishes to bring about,
and that the person seek by his or her actions to make it
succeed." Finally, the jury was told that, with regard to the
result required for the commission of a crime, "intentionally"
means that the person's conscious objective was to cause that
result.
Given these other instructions, we conclude that the
concept of complicity was adequately communicated to the trial
jury; there is no plain error. In particular, we conclude that
the instructions adequately communicated the concept that the
jury should not convict Hansen as an accomplice to arson unless
they were convinced that Hansen desired to see the arson succeed
and that he performed acts in furtherance of this desire.
Conclusion
Hansen's conviction for second-degree arson is
AFFIRMED, but Hansen's conviction for second-degree murder is
REVERSED.
_______________________________
1 Under the statutory elements approach, a lesser offense
is not "included" unless it is impossible under any imaginable
circumstances for the defendant to have committed the charged
crime without also having committed the lesser crime. Under the
more liberal cognate approach adopted in Elisovsky, a lesser
offense will qualify as "included" if, under the factual
allegations against the defendant, it would be impossible for the
defendant to have committed the charged crime without also having
committed the lesser offense.
For example, to prove first-degree arson, the government
must show that the defendant intentionally damaged "any property"
by fire or explosion and placed another person at risk of injury.
AS 11.46.400(a). Second-degree arson requires proof that the
defendant intentionally damaged "a building" by fire or
explosion. AS 11.46.410(a). Assume that a defendant charged
with first-degree arson disputed the government's allegation that
other people had been placed at risk. Under the statutory
elements approach, second-degree arson would not be a lesser
included offense, because first-degree arson can be committed
upon "any property", and some types of property are not
"buildings". Under the cognate approach, on the other hand, if
the defendant was in fact indicted for burning a building, second-
degree arson would be a lesser included offense.
2 We do not decide whether second-degree murder under
either AS 11.41.110(a)(1) or (a)(2) could be considered a lesser
included offense of first-degree murder. These offenses appear
to stand on a different footing; see AS 11.81.610(c).
3 The State argues that the jury might have thought Hansen
was guilty of attempted robbery or second-degree robbery, both of
which are predicate felonies for felony murder. However, the
jury was not instructed on either of these crimes. More
importantly, the evidence cannot rationally support the
conclusion that Hansen was innocent of first-degree robbery but
guilty of attempted robbery or of second-degree (unarmed)
robbery.
See Valentine v. State, 617 P.2d 751, 752 (Alaska 1980): "If
the defendant is charged with armed robbery, for example, and the
presence of a weapon is uncontested, but [the] defendant pleads
insanity, no instruction on a lesser included offense of
[unarmed] robbery is necessary." Hansen's case is similar to the
supreme court's hypothetical. Hansen did not dispute the
occurrence of an armed robbery and murder; he disputed the
State's assertion that he had been an accomplice to those crimes.
It therefore appears that, even if Hansen or the State had
requested instructions and verdicts on the lesser offenses of
either attempted robbery or second-degree robbery, the trial
court could have properly denied those requests.
4 Hansen proposed an alternative complicity instruction
which would have informed the jury that a person is guilty as an
accomplice when that person "specifically intended to associate
with [another person's] venture". We agree with the State that
this proposed instruction was simply a rephrasing of the instruc
tions the jury did in fact receive. Hansen's proposed
instruction did nothing to flag the issue he raises on appeal -
that the court should have instructed the jury using the culpable
mental state specified in AS 11.16.110(2).
