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Wilson v. State (10/23/98) ap-1608
NOTICE: Formal errors in the text of this opinion can be
corrected before the opinion is published in the Pacific Reporter.
Readers are encouraged to bring typographical or other formal errors
to the attention of the Clerk of the Appellate Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: twhitman@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
ARTHUR EARL WILSON, JR., )
) Court of Appeals No. A-6396
Appellant, ) Trial Court No. 3AN-95-2146 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1608 - October 23, 1998]
______________________________)
Appeal from the Superior Court, Third Judicial
District, Anchorage, Karen L. Hunt, Judge.
Appearances: Paul E. Malin, Assistant Public
Defender, and Barbara K. Brink, Public Defender, Anchorage, for
Appellant. Nancy R. Simel, Assistant Attorney General, Office of
Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho,
Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
MANNHEIMER, Judge.
In February 1995, Arthur Earl Wilson, Jr., was an inmate
in the detention unit of the McLaughlin Youth Center. In the early
morning hours of February 21st, Wilson tried to escape; his plan was
to seize a set of keys from one of the counselors in the detention
unit, Abby Baskin.
Using a strip of fabric torn from a towel, Wilson attacked
Baskin, wrapping the fabric around her neck and strangling her.
Wilson then pulled Baskin into his cell, pushed her down on his bed,
and tried to wrest the keys from her control. Unable to gain
control of the keys, Wilson continued to strangle Baskin. Wilson's
attack was halted when another counselor saw what was happening and
pulled Wilson off Baskin. Baskin suffered a number of injuries
during this attack (cuts, bruises, and abrasions), but none of them
was serious.
Wilson was indicted for attempted murder, an unclassified
felony, and two counts of first-degree assault, a class A felony.
[Fn. 1] Because Wilson was older than 16, he was tried as an adult
for these crimes. [Fn. 2] The jury acquitted Wilson of these
charged offenses, but they found him guilty of the lesser included
offense of second-degree assault. [Fn. 3]
Wilson's constitutional attacks on his conviction
Wilson argues that, even though he was properly charged
as an adult for the crimes of attempted murder and first-degree
assault, he should not have been convicted as an adult after the
jury found him guilty of only the lesser offense of second-degree
assault. Instead, Wilson argues, he should have been adjudged a
juvenile delinquent.
Under AS 47.12.030(a), had Wilson been found guilty of
either of the original charges (attempted murder or first-degree
assault), he would automatically have been sentenced as an adult.
But Wilson was convicted of second-degree assault, a class B felony.
[Fn. 4] Because Wilson was found guilty of this lesser degree of
felony, the superior court was obliged to give Wilson the
opportunity to prove, by a preponderance of the evidence, that he
was amenable to treatment within the juvenile justice system that
is, to prove that he probably could be rehabilitated (by juvenile
treatment) before he reached the age of 20. See AS 47.12.030(a) and
AS 47.12.100(b).
Instead of litigating the issue of his amenability to
treatment, Wilson instead attacked the constitutionality of
AS 47.12.030(a) specifically, the portion of the statute that
placed the burden on him to prove his amenability to juvenile
treatment. Wilson contends that the statute violates the equal
protection and due process clauses of the Alaska Constitution. He
renews these contentions on appeal.
Wilson points out that, if the original charge against him
had been second-degree assault (a class B felony), then he would
have been prosecuted under the juvenile system unless the State
affirmatively proved his lack of amenability to treatment. Wilson
argues that, because he was acquitted of the two more serious
felonies charged against him, he should be treated as if he had
never been charged with these crimes. That is, Wilson argues that,
before he can be convicted and sentenced as an adult, the State
should have to bear the burden of proving his lack of amenability
to juvenile treatment, rather than the burden being placed on him
to prove his amenability to treatment.
We addressed and rejected this same equal protection
argument in State v. Ladd. [Fn. 5] Ladd is dispositive of Wilson's
equal protection claim. Ladd also leads us to reject Wilson's
substantive due process claim because, as explained in Ladd,
"[t]here is a reasonably close fit between the legislature's purpose
and the means the legislature has employed to effect that purpose".
[Fn. 6]
In his reply brief, Wilson mounts various procedural due
process attacks on the statute. Some of these attacks are answered
in our recent decision in Nao v. State. [Fn. 7] To the extent that
Wilson raises arguments not explicitly covered in Nao, we decline
to address these arguments because they are raised for the first
time in Wilson's reply brief. [Fn. 8]
We therefore uphold Wilson's conviction against his
various constitutional attacks.
Wilson's challenges to the jury instructions
Wilson next argues that his trial judge made several
errors when instructing the jury.
Wilson first claims that the trial judge should have
instructed the jury that proof "beyond a reasonable doubt" requires
proof to the "[u]tmost certainty". We do not agree. While various
formulations have been proposed and employed for defining
"reasonable doubt" and "beyond a reasonable doubt", [Fn. 9] the
cases are virtually unanimous that "proof beyond a reasonable doubt"
need not be "proof to an absolute certainty". [Fn. 10] The trial
judge in the present case could properly reject Wilson's proposed
language requiring the State to prove his guilt to an "utmost
certainty" because this phrase could easily be interpreted by the
jurors as requiring proof to an absolute certainty.
The jury received the Alaska pattern jury instruction on
the definition of reasonable doubt and proof beyond a reasonable
doubt:
It is not required that the prosecution
prove guilt beyond all possible doubt, for it is rarely possible to
prove anything to an absolute certainty. Rather, the test is one
of reasonable doubt. A reasonable doubt is a doubt based upon
reason and common sense. Proof beyond a reasonable doubt must be
proof of such a convincing character that, after consideration, you
would be willing to rely and act upon it without hesitation in your
important affairs. A defendant is never to be convicted on mere
suspicion or conjecture.
We conclude that the trial judge did not abuse her discretion when
she gave this pattern instruction instead of using Wilson's proposed
phrasing. [Fn. 11]
Wilson next challenges the jury instruction that discussed
his decision not to testify at trial. Wilson offered two
instructions on this issue. Wilson's first proposed instruction
stated that "[a] defendant who chooses not to testify still retains
the presumption of innocence". Wilson's second proposed instruction
stated that, in deciding whether to take the stand, a defendant can
base his decision on the evidence presented at trial or the State's
failure to produce evidence. This instruction also stated that a
defendant's decision not to testify may not be used as a means of
proving the charges against him.
The trial judge rejected both of Wilson's proposed
instructions. Instead, she instructed the jury:
It is a constitutional right of a defendant in
a criminal trial that he may not be compelled to take the witness
stand to testify. No presumption of guilt may be raised and you
must not draw any inference of any kind from the fact that a
defendant does not testify, nor should this fact be discussed by you
or enter into your deliberations in any way.
In a separate instruction, the trial judge also told the jury:
A defendant has the absolute right not to
testify, and you must not draw any inference against the defendant
for not testifying. ... Because the burden is on the prosecution
to prove every essential element of the crime charged, beyond a
reasonable doubt, a defendant has the right to rely upon failure of
the prosecution to establish such proof.
These instructions were legally sound, and they fully
informed the jury concerning the applicable law. The trial judge
did not abuse her discretion when she chose these instructions in
favor of the ones proposed by Wilson. There is, moreover, an
affirmative reason to reject Wilson's second proposed instruction:
it invited the jury to speculate as to Wilson's reasons for deciding
not to testify. Such speculation would be totally improper.
Wilson's next claim of error concerns the jury instruction
addressing the inferences that may be drawn from a person's knowing
conduct. Wilson proposed the following instruction:
You may, but need not, infer that a person
intends the natural and probable consequences of acts knowingly done
or knowingly omitted. You may, but need not, consider any such
inference, should you choose to make it, in determining whether or
not the prosecution has proved beyond a reasonable doubt that the
defendant possessed the required intent.
The trial judge declined to give Wilson's proposed instruction.
Instead, she instructed the jury:
It is reasonable to infer that a person
ordinarily intends the natural and probable consequences of acts he
knowingly does or omits.
On appeal, Wilson argues that the trial judge's
instruction was, in effect, a directive to the jury that they should
presume that Wilson intended the natural and probable consequences
of his actions.
In Menard v. State [Fn. 12], the supreme court declared
that it is error to instruct jurors that, in the absence of evidence
to the contrary, they should presume a person's intent from the
natural and probable consequences of that person's actions.
However, we do not read the instruction in Wilson's case to embody
or suggest this kind of outlawed evidentiary presumption. In Gargan
v. State [Fn. 13], this court concluded that a similarly-worded jury
instruction did not violate Menard. The instruction in Gargan read:
It is reasonable to infer that a person
ordinarily intends the natural and probable consequences of acts he
knowingly does or knowingly omits. ... Any such reasonable
inferences are entitled to be considered by the jury in determining
whether or not the prosecution has proved beyond a reasonable doubt
that the defendant possessed the required intent.
805 P.2d at 1005. The instruction in Wilson's case, like the
instruction in Gargan, speaks of a permissive inference, not a
presumption. That is, the jury could infer that Wilson intended the
natural and probable consequences of his actions, but they were not
required to draw this inference or make this finding.
As this court stated in Gargan [Fn. 14], the ultimate
question is whether, taking the jury instructions as a whole,
Wilson's jury understood that it was the State's burden to prove
(beyond a reasonable doubt) every element of the offenses charged
against Wilson including all of the applicable culpable mental
states. The challenged jury instruction did not direct the jury to
presume that Wilson acted with the required culpable mental state,
and the trial judge's other instructions repeatedly stressed to the
jury that the burden always lay upon the State to prove Wilson
guilty. We conclude that the trial judge did not abuse her
discretion in choosing her wording over Wilson's.
Wilson's final attack on the jury instructions concerns
the instruction dealing with witnesses' prior out-of-court
statements. The trial judge instructed the jury:
Prior statements of witnesses which are
inconsistent with their trial testimony may be used by you both to
determine the facts and to determine [the] credibility of the
witness. However, prior statements of witnesses which are
consistent with their trial testimony may be considered by you only
to determine credibility of the witness.
It is up to the jury to decide which
statements, if any, you believe and what weight to give those
statements.
Wilson proposed alternative wording wording which, on appeal, he
characterizes as "clearer and [a] more accurate statement of the
law". That is not the test. Under the "abuse of discretion"
standard of review, the question is whether the trial judge's
wording wrongly stated the law or was otherwise likely to have led
the jury astray. Wilson has failed to show this. Accordingly, we
uphold the trial judge's wording.
Having rejected all of Wilson's attacks on his conviction,
we now turn to his sentencing argument.
Was Wilson subject to a presumptive term under former
AS 12.55.125(d)(3)?
As we have already explained, Wilson was convicted of
second-degree assault, a class B felony. Because Wilson was a first
felony offender, he normally would not face a presumptive term for
this crime. However, the superior court ruled that Wilson was
subject to a 2-year presumptive term pursuant to former AS 12.55.-
125(d)(3) (now repealed) [Fn. 15], because his assault was directed
at a correctional officer who was engaged in the performance of her
duties. Wilson challenges this ruling on appeal.
The statute at issue, AS 12.55.125(d)(3), stated:
A defendant convicted of a class B felony
may be sentenced to a definite term of imprisonment of not more than
10 years, and shall be sentenced to the following presumptive terms,
subject to adjustment as provided in AS 12.55.155 - 12.55.175:
. . .
(3) if the offense is a first felony
conviction, and the defendant knowingly
directed the conduct constituting the offense at a uniformed or
otherwise clearly identified peace officer, fire fighter,
correctional officer, emergency medical technician, paramedic,
ambulance attendant, or other emergency responder who was engaged
in the performance of official duties at the time of the offense,
[the presumptive term is] two years.
Whether Wilson was subject to a 2-year presumptive term hinges on
whether the victim of his assault, a counselor at the McLaughlin
Youth Center, was a "correctional officer" within the meaning of
this statute.
Neither Title 11 nor Title 12 of the Alaska Statutes
contains a definition of "correctional officer". Wilson points out
that this phrase is defined in AS 18.65.130 290, the group of
statutes establishing the Alaska Police Standards Council (the
government agency charged with setting minimum standards for police
officers, probation and parole officers, and correctional officers).
In particular, AS 18.65.290(2) defines "correctional officer" as
a person appointed by the commissioner of
corrections whose primary duty under AS 33.30 is to provide custody,
care, security, control, and discipline of persons charged or
convicted of offenses against the state or held under authority of
state law[.]
Essentially the same definition is found in 13 AAC 85.900(3).
Wilson points out that youth counselors at McLaughlin
Youth Center do not qualify as "correctional officers" under this
definition because they are not employees of the Department of
Corrections. Rather, counselors at McLaughlin are employees of the
Department of Health and Social Services (the department of state
government that runs juvenile institutions). [Fn. 16]
Wilson is correct that youth counselors at McLaughlin are
not "correctional officers" within the meaning of AS 18.65.290(2).
But this statutory definition does not control the issue before us.
When the legislature enacted the definition of "correctional
officer" contained in AS 18.65.290(2), the legislature specified
that this definition was to apply only for purposes of interpreting
AS 18.65.130 290 (the statutes defining the powers and duties of
the Police Standards Council). Likewise, the definition of "correc-
tional officer" contained in 13 AAC 85.900(3) applies, by its terms,
only to 13 AAC 85.
This does not mean that the definition of "correctional
officer" contained in AS 18.65.290(2) is necessarily irrelevant to
the interpretation of the sentencing statute at issue in Wilson's
case, AS 12.55.125(d)(3). However, there is a substantial differ-
ence between the legislative policies underlying these two statutes.
The stated legislative purpose behind AS 18.65.130 290
was the desire to set minimum standards for certain categories of
law enforcement officers. [Fn. 17] On the other hand, AS
12.55.125(d)(3) appears to have been intended to deter and to punish
assaults directed against people whose public duty not only exposes
them to assault but also forbids them from turning away and avoiding
the assault: police officers; firefighters; emergency medical
technicians, paramedics, and ambulance attendants; and correctional
officers.
As explained above, there is no definition of
"correctional officer" in either Title 11 or Title 12. There is,
however, a definition of "correctional facility" in Title 11.
"Correctional facility" is defined in AS 11.81.900(b)(7) as
"premises, or a portion of premises, used for the confinement of
persons under official detention". The phrase "persons under
official detention" includes delinquent minors in the custody of the
Department of Health and Social Services, because "official
detention" is defined in AS 11.81.900(b)(36) to include any "custody
... under an order of a court in a ... juvenile proceeding". Thus,
juvenile institutions run by the Department of Health and Social
Services institutions such as the McLaughlin Youth Center are
"correctional facilities" for purposes of the criminal code.
The State argues that, if the McLaughlin Youth Center is
a "correctional facility" for purposes of Title 11, it would seem
logical to classify the people who supervise McLaughlin inmates as
"correctional officers". Besides logic, there is also statutory
support for the State's argument.
AS 18.65, AS 33.05, and AS 33.16 use terms such as
"corrections officer", "probation officer", and "parole officer" to
describe the persons employed in the adult corrections system. [Fn.
18] The legislature chose a different term "youth counselor"
to describe the people who perform analogous functions within the
juvenile justice system. This term is defined in AS 47.12.270:
The department [of Health and Social
Services] may employ youth counselors. Youth counselors shall
exercise the duties of probation officers and shall prepare
preliminary investigations for the information of the court. They
shall also carry out other duties in the care and treatment of
minors that are consistent with the intent of this chapter. Youth
counselors have the powers of a peace officer with respect to the
service of process, the making of arrests of minors who violate
state or municipal law, and the execution of orders of the court
relating to juveniles, and shall assist and advise the courts in the
furtherance of the welfare and control of minors under the court's
jurisdiction.
A noteworthy component of this statutory definition is the
directive that youth counselors "shall also carry out other duties
in the care and treatment of minors that are consistent with the
intent of this chapter". Apparently based on this clause of the
statute, the Department of Health and Social Services has interpret-
ed the term "youth counselor" to encompass the people who supervise
and control the residents of juvenile institutions. [Fn. 19] In
7 AAC 52.170, "Training of Youth Counselors", the Department
specifies that all youth counselors must receive training in the
following areas:
(1) care and control of children and
institutional security procedures;
(2) self-defense;
(3) treatment and program procedures;
(4) [the] juvenile code (AS 47 and
Children's Rules);
(5) first aid and emergency medical
treatment;
(6) administration of medication;
(7) report writing;
(8) counseling and other interpersonal
communication techniques; and
(9) the provisions of this chapter.
In other words, the "youth counselors" employed by the Department
of Health and Social Services at juvenile institutions like
McLaughlin are expected to perform duties that are analogous to the
duties entrusted to corrections officers at adult institutions.
Like their counterparts at adult correctional
institutions, the youth counselors who supervise and control the
inmates at juvenile institutions are duty-bound to expose themselves
to potential assault and duty-bound not to turn away when assault
actually occurs. Thus, they are members of the same class of public
employees that the legislature wished to protect and vindicate when
the legislature enacted former AS 12.55.125(d)(3).
Because of this, and because the legislature specifically
limited the applicability of the contrasting definition of
"correctional officer" contained in AS 18.65.290(2), we conclude
that the term "correctional officer" used in former AS 12.55.-
125(d)(3) and used in present AS 12.55.125(c)(2) encompasses
the youth counselors who supervise the inmates at the McLaughlin
Youth Center. The superior court therefore correctly ruled that
Wilson was subject to a 2-year presumptive term for his assault on
Baskin.
Conclusion
The judgement of the superior court is AFFIRMED.
FOOTNOTES
Footnote 1:
Attempted first-degree murder, AS 11.41.100(a)(1), is an
unclassified felony; see AS 11.31.100(d)(1). First-degree assault,
AS 11.41.200(a)(2), is a class A felony; see AS 11.41.200(b).
Footnote 2:
Former AS 47.10.010(e), now renumbered as AS 47.12.030(a).
Footnote 3:
AS 11.41.210(a)(1).
Footnote 4:
AS 11.41.210(b).
Footnote 5:
951 P.2d 1220, 1224-26 (Alaska App. 1998), petition for hearing
granted, 9/14/98 (Supreme Court File No. S-8495).
Footnote 6:
951 P.2d at 1225.
Footnote 7:
953 P.2d 522 (Alaska App. 1998).
Footnote 8:
See Petersen v. Mutual Life Ins. Co. of New York, 803 P.2d 406,
411 (Alaska 1990); Hitt v. J.B. Coghill, Inc., 641 P.2d 211, 213 n.4
(Alaska 1982).
Footnote 9:
"Although this standard is an ancient and honored aspect of our
criminal justice system, ['reasonable doubt'] defies easy
explication." Victor v. Nebraska, 511 U.S. 1, 5; 114 S.Ct. 1239,
1242; 127 L.Ed.2d 583 (1994). See the discussion of various
formulations of "reasonable doubt" in Rivett v. State, 578 P.2d 946,
949-950 (Alaska 1978).
Footnote 10:
"[A]bsolute certainty is unattainable in matters relating to
human affairs." Victor v. Nebraska, 511 U.S. at 13, 114 S.Ct. at
1246. In Victor, the United States Supreme Court rejected
constitutional challenges to the following definition of "reasonable
doubt":
"Reasonable doubt" is such a doubt as would
cause a reasonable and prudent person, in one of the graver and more
important transactions of life, to pause and hesitate before taking
the represented facts as true and relying and acting thereon. It
is such a doubt as will not permit you, after full, fair, and
impartial consideration of all the evidence, to have an abiding
conviction, to a moral certainty, of the guilt of the accused. At
the same time, absolute or mathematical certainty is not required.
You may be convinced of the truth of a fact beyond a reasonable
doubt and yet be fully aware that possibly you may be mistaken. You
may find an accused guilty upon the strong probabilities of the
case, provided such probabilities are strong enough to exclude any
doubt of his guilt that is reasonable. A reasonable doubt is an
actual and substantial doubt reasonably arising from the evidence,
from the facts or circumstances shown by the evidence, or from the
lack of evidence on the part of the State, as distinguished from a
doubt arising from mere possibility, from bare imagination, or from
fanciful conjecture.
511 U.S. at 18, 114 S.Ct. at 1249 (emphasis added). In particular,
the Court rejected a challenge to the "strong probabilities"
language. 511 U.S. at 22, 114 S.Ct. at 1251.
See the instruction concerning "reasonable doubt" approved by
the Alaska Supreme Court in Rivett, 578 P.2d at 949 n.7. See also
Ramirez v. Hatcher, 136 F.3d 1209, 1212 (9th Cir. 1998) (approving
the phrasing, "Doubt to be reasonable must be actual and
substantial, not mere possibility or speculation.")
Footnote 11:
See Jackson v. State, 890 P.2d 587, 596 (Alaska App. 1995) (a
trial judge's decisions concerning the wording of jury instructions
will be upheld unless the trial judge's wording is shown to be an
abuse of discretion).
Footnote 12:
578 P.2d 966, 968-970 (Alaska 1978).
Footnote 13:
805 P.2d 998, 1005 (Alaska App. 1991).
Footnote 14:
Id.
Footnote 15:
See SLA 1996, ch. 6, sec. 6. A similar provision still exists
in
AS 12.55.125(c)(2), which imposes an enhanced presumptive term on
first felony offenders convicted of class A felonies.
Footnote 16:
See AS 47.14.010 050 and AS 47.14.100 130; see alsoAS 47.05.010(13).
Footnote 17:
See AS 18.65.130.
Footnote 18:
See AS 18.65.220, AS 18.65.242 245, and 18.65.290; AS 33.05,
AS 33.16.
Footnote 19:
See 7 AAC 52.900(5), which defines "counselor" as "a person who
provides counseling, care, and supervision services for residents
of a juvenile institution".
