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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
ROY K. FOXGLOVE, JR., )
) Court of Appeals No. A-5160
Appellant, ) Trial Court No. 2KB-93-001 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1512 - January 3, 1997]
______________________________)
Appeal from the Superior Court, Second Judicial
District, Kotzebue, Michael I. Jeffery, Judge.
Appearances: Larry Cohn, Anchorage, for
Appellant. Cynthia M. Hora, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and Bruce M. Botelho,
Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
MANNHEIMER, Judge.
On the morning of January 1, 1993, Roy K. Foxglove, Jr.,
was driving his snow machine at high speed through and around the
village of Selawik. He was intoxicated from a night of New Year's
celebration. Foxglove struck a twelve-year-old boy, seriously
injuring the boy's ankle. Foxglove stopped and told the boy to go
home, then drove on. Several people (including Foxglove's brother)
warned Foxglove that he was too intoxicated to drive. He ignored
them. One-half hour later, Foxglove intentionally drove his snow
machine at a speed of 70 miles per hour through a crowd of people
gathered around a bonfire. He killed one person (a child) and
seriously injured four other people (three children and one adult).
For his actions, Foxglove was convicted of one count of
manslaughter and five counts of first-degree assault. AS 11.41.-
120(a)(1); AS 11.41.200(a)(1). He received a composite sentence of
25 years' imprisonment with 6 years suspended (19 years to serve).
Foxglove appeals this sentence, contending it is excessive. We
affirm the sentence. (EN1)
Foxglove's offenses þ manslaughter and first-degree
assault þ are class A felonies with maximum sentences of 20 years'
imprisonment. AS 11.41.120(b); AS 11.41.200(b); AS 12.55.125(c).
Foxglove was a first felony offender; he therefore faced a
presumptive term of 5 years' imprisonment for each of his crimes.
AS 12.55.125(c)(1)-(2); Pruett v. State, 742 P.2d 257, 262-63
(Alaska App. 1987) (holding that a 5-year presumptive term applies
to first felony offenders convicted of first-degree assault under
AS 11.41.200(a)(1)).
Superior Court Judge Michael I. Jeffery found that
Foxglove's first crime (striking the twelve-year-old boy) was a
typical first-degree assault. The judge therefore sentenced
Foxglove to the 5-year presumptive term. However, with respect to
Foxglove's five later crimes (the death and injuries he inflicted
at the bonfire), Judge Jeffery found that the State had proved three
aggravating factors under AS 12.55.155(c): (c)(6) þ that Foxglove
had created a risk of harm to three or more people; (c)(21) þ that
Foxglove had a history of similar conduct; and (c)(10) þ that
Foxglove's conduct was among the worst included within the
definition of manslaughter and first-degree assault. Foxglove does
not contest any of these aggravators.
Foxglove had two prior convictions for driving while
intoxicated. In July 1990, Foxglove was arrested in Seward; he had
been weaving down the road in a Ford van, driving at night with his
lights off. His blood alcohol level was .22 percent. Foxglove
pleaded no contest and was sentenced to 45 days with 42 days
suspended. One of his conditions of probation was that he submit
to screening for alcohol treatment. Foxglove refused to do this.
In April 1991, Foxglove was again arrested for DWI after
he crashed his snow machine. He pleaded no contest and was
sentenced to 65 days with 45 days suspended. He was also ordered
to pay restitution to a woman whose sled he had run into, and he was
again ordered to report to alcohol screening. Foxglove never
reported to jail to serve his sentence; the court had to issue a
bench warrant for his arrest. He further refused to pay the
restitution, and he never reported to the alcohol screening program.
With respect to Foxglove's history of similar assaults,
Judge Jeffery found that Foxglove had used his snow machine to
commit an assault on several villagers in the winter of 1991. The
villagers were crossing the ice on the Selawik River, walking home
from a bingo game. Foxglove chased after them at high speed, drove
in circles around the group, and then "dusted" them þ that is, he
intentionally made high-speed passes at the villagers, steering his
snow machine within a few feet of them, so that they were covered
with the plume of snow thrown up by the speeding vehicle.
In concluding that Foxglove's conduct was among the most
serious within the definition of manslaughter, Judge Jeffery found
that Foxglove had committed second-degree murder because he had
manifested extreme indifference to the value of human life. In
addition, Judge Jeffery concluded that even when Foxglove's offense
was compared to other vehicular homicides charged as second-degree
murders, Foxglove's offense was still among the most serious. Judge
Jeffery noted that all the reported cases of vehicular second-degree
murder involved "accidents". That is, the defendants in those
cases, despite their extreme recklessness, had not purposefully
collided with or purposefully run over their victims. Judge Jeffery
found that Foxglove had purposefully run over his victims, and
therefore his conduct was significantly more blameworthy:
[T]here's a distinction between what happened
out on the river in Selawik ... and somebody
running a red light. ... [N]o one [has] shown
me a [prior] case of somebody using a vehicle
to ram people, deliberately ram them. And
that's what this case is about.
Based on Foxglove's conduct and his history of vehicular
assaults and recklessness, Judge Jeffery found that Foxglove was a
worst offender. See State v. Wortham, 537 P.2d 1117, 1120 (Alaska
1975). Nevertheless, Judge Jeffery credited defense testimony that
Foxglove had made serious attempts to rehabilitate himself in
prison. The judge concluded that a maximum sentence for
manslaughter would not be justified; he therefore sentenced Foxglove
to 20 years' imprisonment with 6 years suspended (14 years to
serve). However, Judge Jeffery imposed this manslaughter sentence
consecutively to Foxglove's 5-year term for injuring the twelve-
year-old boy.
For the four first-degree assaults stemming from the
incident at the bonfire, Judge Jeffery sentenced Foxglove to
concurrent terms of 10 years' imprisonment with 5 years suspended.
The judge stated that he had originally intended to impose some
additional prison time for these first-degree assaults, but upon
reflection he concluded that Foxglove's composite sentence (19 years
to serve) was the appropriate amount of prison for Foxglove's
crimes.
On appeal, Foxglove asserts that his composite sentence
is disproportionate to the sentences imposed on other defendants
convicted of vehicular homicide, even those found guilty of second-
degree murder. To evaluate this assertion, we must examine the
degree of Foxglove's recklessness, the consequences of his conduct,
his age, his record of criminal conduct, and his record of alcohol
abuse. Pusich v. State, 907 P.2d 29, 38 (Alaska App. 1995).
Foxglove argues that his recklessness was no greater than
that of the defendants in Pears v. State, 698 P.2d 1198 (Alaska
1985), Pusich, supra, and Puzewicz v. State, 856 P.2d 1178 (Alaska
App. 1993) þ defendants who, like Foxglove, ignored explicit
warnings that they were too drunk to be driving. However, as Judge
Jeffery pointed out, Foxglove's conduct was aggravated not only
because he ignored warnings not to drive, but also because he
purposefully ran over his victims. Neither Pears nor Pusich nor
Puzewicz nor any other prior Alaska decision deals with a defendant
like Foxglove who purposefully aimed his vehicle at a group of
unsuspecting people and plowed into their midst at high speed.
Not only did this conduct constitute second-degree murder,
but it approached the culpability of first-degree murder. Even if
Foxglove had been convicted of second-degree murder, this conduct
would qualify him for an aggravated sentence. See State v. Krieger,
731 P.2d 592, 596 (Alaska App. 1987) ("a person who commits second-
degree murder under circumstances approximating first-degree murder
may receive an aggravated sentence" above the 20- to 30-year
benchmark established in Page v. State, 657 P.2d 850, 855 (Alaska
App. 1983)).
Foxglove points out that he killed only one person, while
the defendants in Pears, Pusich, and Puzewicz killed two or three
victims. However, even though Foxglove killed only one person at
the bonfire, he inflicted serious, long-term injuries on four
others. Although Judge Jeffery decided to give Foxglove concurrent
prison terms for these four first-degree assaults (i.e., he decided
not to increase Foxglove's time in prison on account of these four
assaults), Judge Jeffery explicitly stated that he reached this
decision only because Foxglove's composite term of 19 years to serve
already adequately took into account these other consequences of
Foxglove's actions.
Further, Foxglove was being sentenced for two separate
criminal episodes: his act of hitting the twelve-year-old boy, and
his later act of ramming the crowd of people at the bonfire. These
incidents occurred approximately one-half hour apart. For the
manslaughter and the four first-degree assaults at the bonfire,
Foxglove received a total of 14 years to serve. Because Foxglove's
earlier assault on the boy was a separate episode, Judge Jeffery
concluded that Foxglove should receive a consecutive sentence (the
presumptive 5-year term) for that offense.
When a defendant is sentenced for several crimes at once,
we "focus on the justification for [the defendant's] composite
sentence rather than on the justification for any individual
sentence [the defendant] received for a particular offense".
Pusich, 907 P.2d at 39 (citing Neal v. State, 628 P.2d 19, 21 n.8
(Alaska 1981)); Comegys v. State, 747 P.2d 554, 558-59 (Alaska App.
1987). Foxglove argues that his earlier act of injuring the twelve-
year-old boy should be treated, for sentencing purposes, as simply
another injury resulting from his drunken driving on the morning of
January 1, 1993.
Foxglove concedes that his commission of two separate
assaultive acts "is certainly relevant". But he argues that the
earlier incident is significant only because it gave Foxglove
"reason to know that his conduct was endangering the safety of
others". Viewed in this way, Foxglove contends, his act of striking
and injuring the boy was merely the physical equivalent of the
verbal warnings given to the defendants in Pears, Pusich, and
Puzewicz.
When a person ignores a warning that he is too drunk to
drive, he may demonstrate foolishness and recklessness, and he may
be guilty of driving while intoxicated. But when that person
recklessly strikes and seriously injures another human being, he
commits first-degree assault. Foxglove essentially argues that, if
such a driver decides to leave his injured victim behind and
continue to drive drunk, then this first assault should merge for
sentencing purposes with the punishment the driver receives for
later killing or injuring someone else. We reject this argument.
Rather, we agree with Judge Jeffery that, because Foxglove was
guilty of two separate assaultive episodes, his case is materially
different from those cases in which vehicular homicide defendants
were sentenced for killing and/or injuring several people in one
incident.
We conclude that Foxglove's sentence is not clearly
mistaken. McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).
Accordingly, the sentencing decision of the superior court is
AFFIRMED.
ENDNOTES:
1. This is our second consideration of Foxglove's case. In our
prior decision, Foxglove v. State, Memorandum Opinion No. 3042
(Alaska App., December 14, 1994), we remanded Foxglove's case to
the superior court for reconsideration of his sentence. Foxglove
was resentenced, and his case is now before us again.
