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Baker v. State (4/20/2001) ap-1734
Baker v. State (4/20/2001) ap-1734
NOTICE
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:
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
TIMOTHY S. BAKER, )
) Court of Appeals No. A-7259
Appellant, ) Trial Court No. 4FA-98-1328 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1734 April 20, 2001]
)
Appeal from the Superior Court, Fourth Judicial
District, Fairbanks, Mary E. Greene, Judge.
Appearances: Marcia E. Holland, Assistant
Public Defender, Fairbanks, and Barbara K. Brink, Public Defender,
Anchorage, for Appellant. Ben M. Herren, 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.
Timothy S. Baker appeals his convictions for two felonies:
interference with official proceedings (threatening a witness or
offering a bribe to a witness to get them to change their
testimony), and first-degree witness tampering (attempting to induce
a witness to offer false or misleading testimony, or to unlawfully
withhold their testimony). [Fn. 1] He contends that the evidence
presented at his trial is insufficient to sustain his convictions.
He further contends that there was a fatal variance between the
State's proof at grand jury and its proof at trial. Finally, Baker
contends that the interference with official proceedings statute and
the witness tampering statute are unconstitutionally vague or
overbroad. For the reasons explained here, we reject Baker's
contentions and affirm his convictions.
Underlying facts and brief procedural history
Because Baker's claims require us to assess the evidence
in the light most favorable to upholding the jury's verdicts, we
present the evidence in that light.
One afternoon in April 1998, Timothy Baker was sitting in
a parked car near a Fairbanks apartment complex, smoking marijuana
with a friend, when a police officer drove by. Baker knew this
officer from prior encounters. Because Baker was on felony
probation, and because there was a handgun in the car, Baker decided
to put some distance between himself and the car.
Baker and his friend got out of the car, and Baker walked
up to Marsha Nesmith, a woman who lived in the apartment complex and
who was standing outside, barbecuing. Baker was a friend of
Nesmith's brother, and so he was acquainted with Nesmith.
As Baker approached Nesmith, he threw his car keys at her.
Baker told Nesmith that, if anyone asked, she should say that she
had been driving the car. Baker explained that there was a gun in
the car and thus he could get in trouble if the police found out
that he had been driving the car.
At about this time, the police officer whom Baker had seen
a few minutes earlier returned to the apartment complex. He was
soon joined by a second officer. Baker walked up to these officers
and began conversing with them. Baker then told the officers that
he had left his coat in Nesmith's apartment, that he was going to
retrieve it, and that he would be right back. As Baker walked away,
he passed by Nesmith and again told her to say that she had been
driving the car.
After Baker left, Nesmith went up to the police officers
and informed them that there was a gun in the car and that Baker had
asked her to say that she had been driving the vehicle. The
officers looked inside the car and found a handgun; they also found
Baker's coat.
At this point, the building manager asked the police to
remove Baker and his friend from the property. A little later,
Baker and his friend left voluntarily. As they were leaving, a
bystander heard Baker exclaim that "the bitch [had] better shut her
mouth, or I'll shut it for her." The bystander could not tell
whether Baker was speaking about the building manager or Nesmith.
Later that day, Nesmith was inside her apartment giving
a statement to the police when the telephone rang. It was Baker.
He asked Nesmith if she had told the police that she was the driver
of the car. He reiterated how much trouble he could be in if the
police found out that he was driving the vehicle. At this point,
Nesmith handed the telephone to one of the officers, who informed
Baker that they had found the gun inside the car. Upon hearing
this, Baker ended the conversation.
Baker called Nesmith again later that night. He demanded
to know what Nesmith had told the police. He reminded her again how
much trouble he could be in if the police linked him to the car.
Nesmith told Baker that if he wanted to know what she had said to
the police, he should ask the police.
The next day, Baker's probation officer contacted him and
told him that he would be seeking to terminate Baker's probation
because Baker possessed a handgun.
During the next week (i.e., between April 9th and April
16th), Baker made a series of calls to Nesmith, even though both
Nesmith and her mother, and later the police, repeatedly told Baker
to stop calling. One evening, when the building manager was present
in Nesmith's apartment, Baker called approximately six times within
the span of an hour. After a couple days of repeated phone calls,
Nesmith began to tape record Baker's calls.
In one of these telephone calls, Baker began the
conversation with, "What are you doing, baby girl?" Nesmith told
Baker that she could not talk to him right then because she was
talking to her father about trying to obtain a car. Baker replied,
"You need a car, girl? You need a car? That ain't no problem; that
ain't no problem. ... A car, that ain't no problem." Nesmith
interpreted this comment to mean that, if she declined to testify
against him, Baker would help her obtain a car.
On a subsequent occasion when Baker called, Nesmith hung
up on him. Baker called right back. He made comments about what
Nesmith was doing at that moment comments that led Nesmith to
believe that Baker might be spying on her. Baker suggested that if
Nesmith was frightened, she should call the police. He also
repeatedly urged her to say that someone else had been driving the
car on April 9th.
Nesmith ultimately informed Baker that she was recording
his calls. When Baker learned about the taping, he called Nesmith
back and left a message saying that he bore her no hard feelings and
that he was not mad at her.
Nesmith testified that Baker never threatened her
directly, but she felt threatened by Baker's repeated phone calls.
Nesmith became so scared that she stayed at her mother's home rather
than live in her own apartment. Fearing for her own safety and that
of her children, Nesmith made plans to move from Alaska.
On May 14, 1998, a grand jury indicted Baker for first-
degree witness tampering and for interference with official
proceedings (both on the theory that he threatened Nesmith and on
the theory that he offered her a bribe). [Fn. 2] Baker was
convicted of these crimes following a jury trial.
At Baker's sentencing, Superior Court Judge Mary E. Greene
ruled that Baker's two convictions should merge. She therefore
imposed a single sentence of 4 years, 9 months' imprisonment, with
no time suspended.
The evidence is sufficient to support Baker's conviction
for interference with official proceedings on the theory that he
threatened Nesmith
Baker was charged with the crime of interference with
official proceedings, AS 11.56.510, under two alternative theories.
First, the State alleged that Baker threatened Nesmith, knowing that
she was a witness, with the intent to improperly influence her. [Fn.
3] Second, the State alleged that Baker offered to confer a benefit
on Nesmith, knowing that she was a witness, with the intent to
improperly influence her. [Fn. 4]
Baker contends that the State failed to present any
evidence to support a finding that he threatened Nesmith. To
analyze this contention, we must examine the definition of "threat"
codified in AS 11.81.900(b)(60).
Under this statute, the term "threat" is defined as "[any]
menace, however communicated," to engage in any of the types of
conduct proscribed by the extortion statute, AS 11.41.520(a). For
purposes of Baker's case, the pertinent types of conduct proscribed
by the extortion statute are (1) "inflict[ing] physical injury on
anyone", (2) "commit[ting] any other crime", and (3) "inflict[ing]
any other harm which would not benefit the person making the threat".
[Fn. 5]
If Baker had expressly announced his intention to do any
of these three things, his conduct would obviously have constituted
a "threat". But AS 11.81.900(a)(60) declares that threats are not
limited to express manifestations of an intent to do harm; rather,
"threat" includes any menace, however communicated. Thus, if Baker
communicated, by any means, his intention to inflict harm on Nesmith
or his intention to commit any other crime against Nesmith (or
against anyone else), his conduct constituted a "threat" for purposes
of the Criminal Code.
Over the course of a week, Baker telephoned Nesmith again
and again, demanding to know what she had told the police and what
she intended to tell the authorities in the future. On one
occasion, Baker telephoned Nesmith six times within the same hour.
He continued to make these telephone calls even though he was
repeatedly informed that Nesmith did not wish to speak with him
further. At one point, Baker commented on what Nesmith was doing
at that moment a comment that could reasonably be interpreted as
an implied assertion that Baker was maintaining surveillance over
Nesmith's residence.
Moreover, Baker's intention in making these telephone
calls was potentially clarified by two of his actions at the time
of the incident. First, Baker threw his car keys at Nesmith and
directed her to tell the police that she had been driving the car.
He explained to her that he would be in trouble if the police linked
him to the car, because the car contained a gun. Second, as Baker
walked away from the scene of the incident, he declared that "the
bitch [had] better shut her mouth, or I'll shut it for her."
Although there was some dispute as to which person Baker was
referring to (Nesmith or the building manager), the jury might
reasonably have found that Baker was talking about Nesmith.
Based on this evidence, the jury could reasonably conclude
that Baker's conduct toward Nesmith constituted a "threat".
The trial judge's failure to instruct the jury on the
meaning of "threaten" was not plain error
Baker's jury was instructed that, before Baker could be
convicted of interference with official proceedings, the State had
to prove (among other things) that Baker "threatened a witness,
Marsha Nesmith". On appeal, Baker argues that the trial judge should
have given the jury an additional instruction defining the word
"threaten" with more specificity.
However, Baker's trial attorney did not request such an
instruction. Therefore, to prevail on appeal, Baker must
demonstrate that the failure to give this type of instruction was
"plain error" that any competent attorney and judge would have
recognized the need for such an instruction, and that the lack of
such an instruction manifestly prejudiced the fairness of Baker's
trial. [Fn. 6] With respect to claims involving jury instructions,
plain error will be found only when the purported flaw in the jury
instructions created "a high likelihood that the jury followed an
erroneous theory[,] resulting in a miscarriage of justice." [Fn. 7]
Baker contends that a more elaborate definition of
"threaten" was needed to forestall the possibility that the jury
might find Baker guilty of threatening Nesmith based solely on
Nesmith's subjective interpretation of Baker's conduct her
conclusion that Baker was trying to threaten her. From our
examination of the record, we conclude that this possibility is
unlikely.
In his summation to the jury, the prosecutor repeatedly
argued that Baker should be convicted because he had intentionally
tried to intimidate Nesmith into changing her story. The prosecutor
never argued that Baker could be found guilty based simply on the
fact that he made several telephone calls to Nesmith and, as a
result, Nesmith became fearful.
The defense attorney's position was that Baker never made
any threats to Nesmith, and that Baker could not be convicted based
solely on Nesmith's subjective interpretation of Baker's phone
calls. In his summation to the jury, the defense attorney argued
that Baker never intended to threaten Nesmith and that he could not
reasonably have foreseen that Nesmith would interpret his phone
calls as a threat:
Defense Attorney: [Baker told Nesmith,]
"Marsha, I'm not mad at you. I'm getting out [of jail] anyway. I
just don't want any hard feelings." Boy you know, that's
threatening. Ladies and gentlemen, I'm going to submit to you that
anybody saying those words would have no reason to believe that they
were making a threatening gesture. Simply no reason whatsoever.
Now, maybe Tim called more times than he
should have. You know, maybe ... he should have cut it off because
he was [getting] bothersome. But that, in and of itself, doesn't
[prove] interference with official proceedings or witness tampering
... . The issue ... is not whether Ms. Nesmith felt herself to be
threatened, or [felt herself to be] in a tough position. The issue
in this case boils down to whether Tim Baker knew [that] the words
he ... was saying [constituted a threat], and [whether he] intended
to threaten this lady.
In rebuttal, the prosecutor did not challenge the defense
attorney's view of the law. Rather, the prosecutor responded that
the defense attorney was taking an unreasonable view of the
evidence. The prosecutor asserted that Baker knowingly made veiled
threats to Nesmith to induce her to change her testimony, and that
Nesmith interpreted those threats as any reasonable person would.
Based on this record, we conclude that there was no
reasonable possibility that the jury found Baker guilty of making
threats based solely on Nesmith's subjective reaction to Baker's
telephone calls. Therefore, the trial judge did not commit plain
error in failing to define the term "threaten" more specifically.
The crime of interference with official proceedings does
not punish speech protected by the First Amendment
Baker contends that AS 11.56.510(a), the statute defining
interference with official proceedings, is unconstitutionally broad
because it forbids people from engaging in speech that is protected
by the First Amendment. Baker argues that he, for example, was
convicted of this crime for making a series of telephone calls, "none
of [which was] overtly threatening in any way".
AS 11.56.510(a) forbids a person from threatening or
bribing a witness. Since threats and bribes are normally
communicated through speech, the statute is obviously aimed at
speech. However, the statute does not punish protected speech, for
there is no First Amendment right to threaten someone else with
harm. [Fn. 8]
We addressed a similar contention in Allen v. State [Fn.
9], where we upheld the terroristic threatening statute (AS
11.56.810) against a First Amendment challenge. We found that the
terroristic threatening statute did not infringe First Amendment
rights because the statute required proof (1) that the defendant
knew that their report of a danger to human life was false, and (2)
that the defendant was reckless as to the possibility that their
false report would make another person fearful that someone would
be injured. [Fn. 10]
We likewise conclude that the interference with official
proceedings statute does not infringe First Amendment rights. The
pertinent portion of the statute requires proof that the defendant
threatened someone with the intent of influencing the testimony of
a witness. We agree that a defendant does not violate this statute
simply because some other person has interpreted the defendant's
conduct as threatening. Rather, to prove that a defendant has made
a threat, the State must prove (at a minimum) that the defendant
acted recklessly concerning the possibility that their words or
conduct would be threatening to others that their words or
conduct, reasonably construed, communicated an intention to inflict
harm. [Fn. 11]
Baker conceivably is arguing that the statute is
unconstitutional because it is not confined to overt threats
because it allows a person to be punished for making veiled threats.
If this is Baker's argument, we reject it. As explained above,
Alaska's statutory definition of "threat" includes "[any] menace,
however communicated". The legislature's reason for including
implied threats in this definition is obvious. Almost everyone is
familiar with movies and television shows in which a mobster
intimidates a witness by remarking that "accidents happen" or that
"it would be too bad if something happened to your family". The
Constitution does not protect threats, whether they be express or
veiled. [Fn. 12]
The evidence is sufficient to support Baker's conviction
for interference with official proceedings on the theory that he
offered Nesmith a bribe
As explained above, during one of Baker's telephone
conversations with Nesmith, Nesmith told him that she could not talk
to him because she was busy talking to her father about trying to
obtain a car. Baker responded, "You need a car, girl? You need a
car? That ain't no problem; that ain't no problem. ... A car,
that ain't no problem." On the basis of these comments, Baker was
indicted for interference with official proceedings on the theory
that he offered Nesmith a bribe to influence her testimony.
On appeal, Baker argues that no reasonable person could
interpret his words as an offer of a bribe. Given the context in
which Baker made these remarks, we disagree.
The jurors did not need to unanimously agree on whether
Baker threatened Nesmith as opposed to offering her a bribe
As explained, the State indicted Baker for interference
with official proceedings under two different theories: that he
threatened Nesmith in an attempt to influence her testimony, and
that he offered Nesmith a bribe in an attempt to influence her
testimony. However, the jury received a single verdict form for
this charge; they were not asked to indicate whether they voted to
convict Baker because they believed that he threatened Nesmith, or
because they believed that he offered her a bribe.
On appeal, Baker argues that his conviction must be
reversed because it is impossible to tell whether all twelve jurors
voted for conviction under the same theory. But such unanimity was
not required. The interference with official proceedings statute
defines one offense but specifies several ways in which this offense
may be committed. In such situations, when a defendant is charged
with violating the statute in two or more ways, the jury need not
unanimously agree on the particular way in which the defendant
committed the crime, so long as all twelve jurors agree that he
committed the crime in at least one of the specified ways. [Fn. 13]
Baker argues that, even though jurors may not need to be
unanimous on the legal theory that justifies a guilty verdict, they
nevertheless must agree on the conduct that supports the verdict.
Baker points out that, even under the State's view of the evidence,
his offer to purchase a car for Nesmith occurred in one identifiable
conversation, while his veiled threats occurred in several of the
other conversations. From this, Baker argues that if the jurors
could not reach unanimity concerning the theory of his guilt (threat
or bribe), they also must have failed to reach unanimity concerning
what particular conduct Baker engaged in.
But, again, this type of unanimity was not required. We
addressed a similar argument in Norris v. State [Fn. 14], a case
in which the defendant was convicted of second-degree murder for
shooting his girlfriend with a rifle. At trial, the State alleged
that Norris intentionally shot his girlfriend during an argument.
The defense claimed that the shooting was an accident: that Norris
had been holding the rifle to prevent his girlfriend from doing
anything rash, and that she grabbed the barrel and the rifle
accidentally discharged. [Fn. 15]
On appeal, Norris claimed that the jury should have been
directed to indicate on their verdict form, what theory they were
relying on to convict him of second-degree murder. Norris pointed
out that some of the jurors might have thought that he intentionally
shot his girlfriend, while other jurors might have believed Norris's
account of events (i.e., that the rifle discharged accidentally) but
nevertheless concluded that his handling of the firearm manifested
an extreme indifference to human life. Because the verdict form did
not require the jurors to choose between these theories, Norris
argued that he had been denied his right to a unanimous verdict:
the jurors could have convicted him "without unanimously agreeing
on the criminal conduct [that] Norris had committed." [Fn. 16]
We rejected Norris's argument because it was based on a
mistaken view of the unanimity requirement. We declared:
[J]urors need not agree on a single
interpretation of the evidence. They may reach differing
conclusions as to what exactly was said or done during a particular
episode, so long as they are all convinced that the defendant's
conduct and culpable mental state(s) during that episode satisfy the
elements of the crime. See State v. Handran, 113 Wash.2d 11, 775
P.2d 453, 456-57 (1989), in which the court held that it made no
difference whether the jury believed that the defendant had kissed
the victim without permission or had struck her, since both alleged
acts of assault had occurred during the same, continuing course of
conduct and each act independently constituted an assault.
In Norris's case, the jurors may indeed
have been split on the issue of whether Norris intentionally fired
the rifle into Booth's neck. However, even if some (or all) jurors
believed that the rifle discharged accidentally when Norris stood
over Booth and she grabbed the barrel, this interpretation of the
evidence would still support the jury's verdict of second-degree
murder. The jury instruction satisfied the [requirement of
unanimity].
Norris, 857 P.2d at 354.
We reach the same conclusion in Baker's case. Baker
engaged in a series of telephone conversations with Nesmith. The
State alleged that during this series of conversations Baker made
both veiled threats of harm and one bribe offer. Either a threat
of harm or an offer of a bribe was sufficient to establish the actus
reus of the offense, and the State's evidence was sufficient to
support a guilty verdict under either theory. Accordingly, as we
held in Norris, the jury did not need to unanimously agree on "what
exactly was said or done during [this] episode, so long as they
[were] all convinced that [Baker's] conduct and culpable mental
state(s) during that episode satisf[ied] the elements of the crime."
[Fn. 17]
There was no prejudicial variance between the State's
proof at grand jury and the State's proof at trial with regard to
the charge of interference with official proceedings
When the State presented the case against Baker to the
grand jury, the prosecutor submitted a proposed indictment that
charged Baker with interference with official proceedings under two
theories: that Baker threatened Nesmith, and that he offered her
a bribe. In support of this proposed indictment, the prosecutor
presented evidence of Baker's entire course of conduct between April
9th and April 16th. Witnesses testified about Baker's face-to-face
conversations with Nesmith on April 9th and his remark, as he left
the scene, that "the bitch [had] better shut her mouth". Witnesses
also testified about the week-long series of telephone calls that
commenced that evening, including the phone call on April 10th in
which Baker apparently offered to obtain a car for Nesmith.
The prosecutor did not try to separate out the evidence
supporting the two theories of culpability. Instead, he relied on
Baker's entire course of conduct. Thus, the grand jury had Baker's
entire course of conduct before them when they decided whether to
indict Baker on the interference with official proceedings charge.
Based on this evidence, the grand jury indicted Baker for
interference with official proceedings on both theories (that he
threatened Nesmith, and that he offered her a bribe).
But despite the fact that the jury heard evidence of
Baker's conduct throughout the week of April 9th through 16th, the
indictment charged Baker with committing the crime of interference
with official proceedings "on or about the 9th day of April".
Because the indictment expressly refers to April 9th, and because,
at trial, the State again relied on Baker's week-long course of
conduct, Baker contends that there is a fatal variance between the
indictment and the evidence at trial.
Baker's trial attorney did not raise this issue in the
superior court, so Baker must show that this discrepancy constitutes
plain error.
One of the components of plain error is proof that the
asserted error manifestly prejudiced the defendant. But Baker does
not allege that he suffered any prejudice on account of this
discrepancy. (Most notably, Baker's reply brief fails to allege
that he was prejudiced, even after the State noted in its brief that
Baker had made no claim of prejudice.) For this reason, we conclude
that Baker has failed to establish plain error.
Additionally, we find no plain error because the record
shows that Baker's trial attorney had a plausible tactical reason
for failing to object to the purported discrepancy. As explained
above, when the State presented Baker's case to the grand jury, the
prosecutor relied on Baker's conduct as a whole. The prosecutor
relied on Baker's conduct throughout the week to prove the State's
"threat" theory of prosecution. More significantly, the prosecutor
relied on Baker's phone call of April 10th as the basis for the
State's "bribery" theory of prosecution. Given this record, it
appears that the indictment's reference to April 9th (as opposed to
"April 9th through 16th") is likely a clerical error or, at most,
a drafting error that the superior court would have allowed the
State to correct, pursuant to Criminal Rule 7(e), if Baker's
attorney had raised the issue.
For these two reasons, Baker has failed to show that there
was a manifestly prejudicial difference between the State's proof
at grand jury and its proof at trial. The indictment's reference
to "on or about April 9th" did not amount to plain error.
There was no prejudicial variance between the State's
proof at grand jury and the State's proof at trial with regard to
the charge of first-degree witness tampering
Baker makes a related variance argument concerning his
conviction for witness tampering. Under AS 11.56.540(a), a person
commits first-degree witness tampering if they knowingly induce or
attempt to induce a witness to give false or misleading testimony
in an official proceeding, or to unlawfully withhold testimony in
an official proceeding. ("Official proceeding" is defined in AS
11.81.900(b)(40) as "a proceeding heard before a legislative,
judicial, administrative, or other governmental body or official
authorized to hear evidence under oath".)
With regard to this crime, Baker's argument is the reverse
of the attack he made on the interference with official proceedings
charge. The indictment expressly declared that Baker's conduct
throughout the entire week of April 9th through April 16th was the
actus reus of the witness tampering charge. But at trial, the
prosecutor focused on Baker's conduct of April 9th rather than
relying on the entire week's conduct. Baker now contends that this
was a prejudicial variance.
Again, Baker's trial attorney made no objection to this
purported discrepancy, so Baker must show plain error. There is no
plain error here.
Baker's variance argument rests on the assertion that,
after a grand jury concludes that two or more of the defendant's
acts, taken in combination, constitute the actus reus of a crime,
the law forbids the prosecutor from arguing at trial that a smaller
subset of the defendant's acts might be sufficient, in itself, to
constitute the actus reus. We are aware of no such rule, and Baker
offers no authority in support of this purported rule.
If the rule against variance is viewed from the standpoint
of protecting defendants' right to advance notice of the allegations
they must defend against, it would seem that defendants could not
properly complain if the grand jury record contains many allegations
and the prosecutor chooses to narrow the State's case at trial.
Likewise, if the rule against variance is viewed from the standpoint
of protecting defendants' right to a grand jury's independent review
of the State's proposed charging decision, it would seem that
defendants could not properly complain if the grand jury concludes
that the charge is potentially proved in several different ways but
the prosecutor chooses to argue only some of these evidentiary
theories at trial.
Even if such a turn of events might conceivably prejudice
a particular defendant under certain circumstances, Baker has again
failed to allege that he was prejudiced by the prosecutor's decision
to concentrate on the events of April 9th rather than the events of
the entire week. For these reasons, we conclude that Baker has
failed to demonstrate that there was a manifestly prejudicial
difference between the State's proof at grand jury and its proof at
trial. The fact that the prosecutor narrowed the State's theory of
the witness tampering charge at trial did not amount to plain error.
Baker also contends that another plain error was committed
when the prosecutor suggested at trial that Baker's intent was to
induce Nesmith to offer false or misleading testimony at Baker's
probation revocation hearing. [Fn. 18] At grand jury, the State
had alleged that Baker's intent was to induce Nesmith to offer false
or misleading testimony at grand jury.
Baker contends that one essential element of any charge
of witness tampering is the specific identity of the "official
proceeding" whose outcome the defendant wants to affect. Thus, Baker
argues, once the State committed itself at grand jury to the theory
that Baker wanted Nesmith to lie in order to affect the outcome of
the grand jury proceeding, the prosecutor was prohibited from
arguing at trial that Baker's intent was to affect the outcome of
the probation revocation hearing.
Baker's contention that the precise identity of the
official proceeding is an essential element of the crime of witness
tampering does not appear to be consistent with the legislature's
definition of "witness". Under AS 11.56.900(6), "witness" means not
only a person who is currently giving testimony at an official
proceeding, and not only a person who has been summoned to give
testimony at an official proceeding, but also "[any] person who the
defendant believes may be called as a witness in an official
proceeding, present or future".
As explained above, the term "official proceeding" is quite
broad. It encompasses all legislative, judicial, and executive
branch hearings at which the presiding officers are authorized to
place witnesses under oath. Thus, when someone violates the law,
their conduct may potentially provide the impetus for several
"official proceedings", some of which may not be convened until
months or even years after the criminal act. A law breaker might
wish to alter the outcome of all of these official proceedings
even the proceedings that are only conceivable and do not yet appear
likely.
Because the number and nature of the resulting official
proceedings may remain tentative for some time, and because the
legislature has defined "witness" as including people who potentially
could be called to testify at some future official proceeding, it
does not seem likely that the legislature intended to bar the
government from charging a defendant with witness tampering unless
the government could identify the specific official proceeding that
the defendant intended to thwart. Rather, it appears that the
"official proceeding" element of witness tampering should be treated
in the same way as the "intent to defraud" element in a forgery or
theft prosecution where the precise identity of the defrauded
victim is normally considered a non-material allegation of the
indictment that can be amended to conform to the evidence at trial.
[Fn. 19]
We need not definitively resolve this issue of law in
Baker's case because Baker raises this issue as a question of plain
error. As we have just explained, there are good reasons for
concluding that the precise identity of the official proceeding is
not a material element of a witness tampering charge. Baker's brief
contains conclusory statements that the identity of the official
proceeding should be considered a material element, but he offers
no legal authority directly on point. In the end, Baker has shown
only that this issue might be debatable. But this means that he has
failed to show plain error for if competent judges could differ
on the correct resolution of a legal issue, there is no plain error.
[Fn. 20]
The evidence is sufficient to support Baker's conviction
for first-degree witness tampering
Baker was charged with first-degree witness tampering for
attempting to induce Nesmith to offer false or misleading testimony
at an official proceeding in particular, trying to persuade
Nesmith to say that someone other than Baker had been driving the
car. Baker contends that the evidence at trial was insufficient to
support his conviction for this offense. This claim is frivolous.
Baker's First Amendment challenge to the first-degree
witness tampering statute
Baker contends that the witness tampering statute is
overbroad. In essence, he argues that people have a First Amendment
right to ask other people to lie or cover up for them. Baker cites
no legal authority for this proposition, but assuming for purposes
of argument that people do have such a constitutional right, it ends
at the perjury statute's doorstep. That is, a person has no First
Amendment right to ask other people to lie under oath or to try to
persuade them to do so.
The major portion of Baker's argument on this issue
actually consists of assertions that he should have been acquitted.
Baker argues that the State failed to prove that, when he tried to
persuade Nesmith to lie for him, he had any reason to believe that
any official proceeding would take place. We disagree. The
evidence, viewed in the light most favorable to the jury's verdict,
supports the conclusion that Baker knew that one or more official
proceedings might be convened to investigate or adjudicate his
conduct.
The jurors did not need to unanimously agree on what
precise conduct justified Baker's conviction for witness tampering
Baker raises a jury unanimity challenge to his witness
tampering conviction (a challenge similar to the one he raised with
respect to his interference with official proceedings conviction).
Baker points out that, during the week of April 9th through April
16th, he engaged in several acts that, solely or in combination,
might be viewed as witness tampering. Baker contends that he was
denied his right to a unanimous verdict because the jurors were not
asked to unanimously agree on the precise conduct that supported
their guilty verdict.
As we explained when we rejected Baker's similar attack
on his interference with official proceedings conviction, this type
of jury unanimity is not required. Our decision in Norris v. State
controls this issue. [Fn. 21]
Baker's sentence is not clearly mistaken
As already noted, Superior Court Judge Mary E. Greene
ruled that Baker's two convictions should merge for sentencing
purposes. She therefore entered judgement against Baker only for
the more serious crime interference with official proceedings,
a class B felony. [Fn. 22] Baker had one prior felony conviction,
so he faced a presumptive term of 4 years' imprisonment. [Fn. 23]
Because Baker was on felony probation when he committed
the present offense, Judge Greene found that the State had proved
aggravating factor AS 12.55.155(c)(20). In addition, Baker had a
long string of misdemeanor offenses spanning the previous seven
years. Based on Baker's criminal history and his conduct in the
present case, Judge Greene concluded that Baker's potential for
rehabilitation was "virtually nil". Because of Baker's poor
potential for rehabilitation, the judge concluded that Baker's
sentence should be increased by 9 months to serve based on the
aggravating factor.
On appeal, Baker argues that Judge Greene should not have
adjusted his sentence based on the aggravating factor, but rather
should have imposed only the 4-year presumptive term. Baker points
out that he received a suspended imposition of sentence for his
prior felony, and that he has never previously served more than 30
days in jail. Thus, Baker contends, he has never "been given the
opportunity for reformation in any meaningful fashion".
However, according to the information in the pre-sentence
report, Baker has a long-standing pattern of criminal conduct, and
he has never been deterred by his previous convictions. Judge
Greene relied on this information when she assessed Baker's
potential for reformation. She also considered the seriousness of
Baker's present offense.
Having reviewed the sentencing record, we conclude that
Baker's sentence of 4 years, 9 months to serve is not clearly
mistaken. [Fn. 24]
Conclusion
The judgement of the superior court is AFFIRMED.
FOOTNOTES
Footnote 1:
AS 11.56.510(a) and AS 11.56.540(a), respectively.
Footnote 2:
Baker was also indicted for third-degree weapons misconduct
(felon in possession of a concealable firearm), AS 11.61.200(a).
The jury acquitted him of this charge.
Footnote 3:
See AS 11.56.510(a)(1).
Footnote 4:
See AS 11.56.510(a)(2).
Footnote 5:
AS 11.41.520(a)(1) and (a)(7).
Footnote 6:
See Marrone v. State, 653 P.2d 672, 675-681 (Alaska App. 1982);
Potts v. State, 712 P.2d 385, 394 n.11 (Alaska App. 1985).
Footnote 7:
Holiday Inns of America, Inc. v. Peck, 520 P.2d 87, 91 (Alaska
1974).
Footnote 8:
See Petersen v. State, 930 P.2d 414, 427 (Alaska App. 1996).
Footnote 9:
759 P.2d 541 (Alaska App. 1988).
Footnote 10:
See id. at 545.
Footnote 11:
See Petersen v. State, 930 P.2d 414, 430-31 (Alaska App. 1996);
DeHart v. State, 781 P.2d 989, 990 (Alaska App. 1989); Wyatt v.
State, 778 P.2d 1169, 1170 (Alaska App. 1989) (holding that, to
establish that a defendant "recklessly" placed another person in fear
of injury, the State must prove that the victim's fear was
reasonable).
Footnote 12:
See Commonwealth v. Chou, 741 N.E.2d 17, 23 (Mass. 2001);
People v. Borrelli, 91 Cal.Rptr.2d 851, 861 (Cal. App. 2000);
Planned Parenthood of the Columbia/Willamette, Inc. v. American
Coalition of Life Activists, 23 F.Supp.2d 1182, 1188-1190 (D. Or.
1998).
Footnote 13:
See State v. James, 698 P.2d 1161, 1165 (Alaska 1985); State
v. Ward, 758 P.2d 87, 92 (Alaska 1988).
Footnote 14:
857 P.2d 349 (Alaska App. 1993).
Footnote 15:
See id. at 351-52.
Footnote 16:
Id. at 353.
Footnote 17:
Id.
Footnote 18:
As noted above, Baker was on felony probation at the time of
these events; his smoking marijuana and his alleged possession of
a handgun were both violations of his probation.
Footnote 19:
See Hosier v. State, 1 P.3d 107, 109 (Alaska App. 2000).
Footnote 20:
See Marrone v. State, 653 P.2d 672, 676 (Alaska App. 1982).
Footnote 21:
857 P.2d 349, 354 (Alaska App. 1993).
Footnote 22:
AS 11.56.510(b).
Footnote 23:
AS 12.55.125(d)(1).
Footnote 24:
See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (an
appellate court is to affirm a sentencing decision unless the
decision is clearly mistaken).
