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Hughes v. State (10/17/2002) ap-1835
Hughes v. State (10/17/2002) ap-1835
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:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
SEAN BURDETTO HUGHES, )
) Court of Appeals No.
A-7713
Appellant, )
Trial Court No. 3AN-99-1882 Cr
)
v. )
) O P I N
I O N
STATE OF ALASKA, )
)
Appellee. )
[No. 1835 October 17, 2002]
)
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Larry D. Card,
Judge.
Appearances: Rex Lamont Butler, Anchorage,
for Appellant. John A. Scukanec, 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.
Sean Burdetto Hughes entered the house of his estranged
wife after he learned that another man, Derwin Hunter, had spent
the night there. Brandishing a chefs knife, Hughes threatened to
kill his wife, and then he stormed to the bedroom where Hunter
was located. Hughes tried to break into the bedroom, first with
a knife and then with a screwdriver.
Hughes finally succeeded in kicking down the bedroom
door. He and Hunter struggled briefly until a friend of the
family, Ricky Meredith, intervened. Meredith restrained Hughes
and advised Hunter to leave the house. Hunter took this advice:
he gathered his belongings and left before the police arrived.
Based on this episode, Hughes was convicted of third-
degree assault (for placing Hunter in fear of imminent serious
physical injury by means of a dangerous instrument)1, third-
degree criminal mischief (for intentionally damaging his wifes
property by breaking the bedroom door)2, and reckless
endangerment (for recklessly engaging in conduct that created a
substantial risk of serious physical injury to his estranged
wife, Meredith, and Hunter)3.
Hughes appeals his convictions on various grounds, each
of which is discussed below. For the reasons explained here, we
affirm Hughess convictions.
The claim that the State failed to present exculpatory
evidence at grand jury regarding the third-degree
assault charge
Shortly after the incident, an Anchorage
police officer interviewed Derwin Hunter. When the
officer asked Hunter, Were you afraid?, Hunter replied:
No, not really. I didnt think he was gonna do anything
to me. ... As far as the knife is concerned, I deal
with that every day ... .
Hughes points out that a charge of third-
degree assault under AS 11.41.220(a)(1)(A) requires the
State to prove that the victim was place[d] ... in fear
of imminent serious physical injury. Based on this
statutory language, Hughes argues that he would be
innocent of this charge if, despite his actions, Hunter
was not afraid of being hurt. Hughes therefore
contends that Hunters statement was exculpatory
evidence under the rule announced in Frink v. State,
597 P.2d 154, 164-66 (Alaska 1979), and that the
prosecutor was obliged to present Hunters statement to
the grand jury.
Under Frink, a prosecutor is obliged to
inform the grand jury of evidence that exculpates the
defendant. However, the States duty to present
exculpatory evidence to the grand jury extends only to
evidence that tends to negate the defendants guilt in
and of itself.4 Here, Hunters statement may
conceivably have provided some ammunition for the
defense, but it was not exculpatory in and of itself.
It is true that the third-degree assault
statute requires proof that the defendant place[d]
another person in fear of imminent serious physical
injury.5 But, as used in this statute, the word fear
does not refer to fright, dread, intimidation, panic,
or terror. Rather, a person is placed in fear of
imminent injury if the person reasonably perceives or
understands a threat of imminent injury. The victims
subjective reaction to this perception is irrelevant.
It does not matter whether the victim of the assault
calmly confronts the danger or quivers in terror. The
question is whether the victim perceives the threat.
This point of law is discussed in Wayne R.
LaFave and Austin W. Scott, Jr., Substantive Criminal
Law (1986), 7.16(b), a subsection entitled, Assault as
Intentional Scaring. Immediately following this
heading, the authors provide an explanatory footnote:
The word scare or frighten is ... used
loosely herein as a short term for the more
cumbersome but more accurate expression
causing reasonable apprehension of immediate
bodily harm. See W. Prosser and W. Keeton,
Torts, 10 (5th ed. 1984), speaking of the
requirement of apprehension of immediate
bodily harm required for a civil assault:
Apprehension is not the same thing as fear,
and the plaintiff is not deprived of his
action merely because he is too courageous to
be frightened or intimidated.
Id., Vol. 2, p. 315 n.26.
Hunters statement that he was not
afraid of being injured may have been false
bravado (as the State suggests).
Alternatively, Hunters statement may have
accurately reflected the calm of a man who
often faces physical danger. (Hunter told
the officer that as far as the knife is
concerned, [he] deal[s] with that every day.)
But in either case, Hunters
statement did not negate the States
allegation that Hunter reasonably perceived a
danger of imminent serious physical injury
because of Hughess actions. Thus, Hunters
statement was not exculpatory evidence within
the meaning of the Frink rule.
The trial judges ruling that Hughes could not introduce
hearsay testimony concerning a statement that Hunter
made to the police
At Hughess trial, as the defense attorney
ended his cross-examination of Officer Denise Rollins,
the attorney asked Rollins, [Is it true that] Mr.
Hunter told you [that] he was just watching the
television while [Hughes was trying to break down the
door of the bedroom]? The prosecutor objected that the
defense attorneys question called for hearsay; Hughess
attorney did not respond. The trial judge, Superior
Court Judge Larry D. Card, sustained the prosecutors
objection. The defense attorney then announced that he
had no further questions of the witness.
A few minutes later, after the witness had
left the stand, Hughess attorney offered an answer to
the prosecutors objection. The defense attorney
suggested that Hunters out-of-court statement was
admissible under the state of mind exception to the
hearsay rule. The defense attorney argued that if Mr.
Hunter was sitting up there in the bed[room], watching
TV while this fight is going on, then that means [he
was not] placed in fear of imminent physical injury.
Judge Card ruled that the state of mind exception did
not apply.
On appeal, Hughes abandons his state of mind
theory and instead argues that Hunters statement was
not hearsay at all. Under Evidence Rule 801(c),
hearsay is an out-of-court statement offered to prove
the truth of the matter asserted. Hughes contends that
Hunters statement was important because of what it
tended to prove about Hunters state of mind at the time
of the alleged assault. Hughes therefore argues that
the statement was not offered to prove the truth of the
matter asserted. But this argument is flawed.
If Hunter was watching television while an
angry husband was allegedly trying to break down the
door and was threatening his wife with a knife, this
might tend to undercut the assault charge. But any
inference about Hunters mental state his apparent lack
of concern necessarily rests on the premise that there
be admissible evidence to show that Hunter was in fact
watching television during all the commotion. There
was no evidence of this except for Hunters out-of-court
statement. Thus, the defense attorney was indeed
offering Hunters statement for the truth of the matter
asserted offering it to prove that Hunter was watching
television while Hughes was trying to break into the
bedroom.
The statement was therefore hearsay, and
Judge Card correctly sustained the objection to the
defense attorneys question.
Hughes argues for the first time on appeal
that Hunters statement may have been admissible under
the catch-all exception to the hearsay rule, Evidence
Rule 803(23). We reject this argument for two reasons.
First, Hughes did not present this theory of
admissibility to the trial judge. He therefore can not
raise it on appeal.6
Second, hearsay is not admissible under
Evidence Rule 803(23) unless the proponent of the
hearsay shows that the out-of-court statement carries
circumstantial guarantees of trustworthiness equivalent
to the other recognized exceptions to the hearsay
rule.7 Hughes does not show that Hunters statement met
this requirement.
The trial judges denial of Hughess request for a weeks
continuance
On the first day of trial, prior to the
parties opening statements, the prosecutor announced
that the State had been unable to locate Derwin Hunter,
but the prosecutor told the court that he was willing
to proceed without Hunters testimony. In response,
Hughess attorney asked Judge Card to dismiss the third-
degree assault charge. The defense attorney argued
that Hunter was a crucial witness because Hunter would
concede that he was not afraid during the incident.
This concession, according to the defense attorney,
would disprove the States allegation of assault.
The prosecutor answered that dismissal was
inappropriate. The prosecutor told the court that it
sounds ... like the defense wants [a] dismissal because
they havent bothered to subpoena the victim. ... [If]
they think his testimony is that important, maybe they
should subpoena him.
The defense attorney replied that he had, in
fact, made attempts to locate Hunter. He had traced
Hunter to North Carolina or Virginia, but there the
trail ended. The defense attorney conceded that it was
unlikely that Hunter could be found.
Judge Card denied the defense motion to
dismiss the assault charge. The judge ruled that if
Hunter was unavailable to testify, each side would have
to deal with that fact.
This issue surfaced again at the end of the
third day of trial, after the prosecution had rested
its case-in-chief. Hughess attorney argued that
Hunters absence from the trial constituted a denial of
Hughess right of due process. The defense attorney
contended that the State had a constitutional
obligation to present Hunter as a witness if he was
available. Judge Card denied the defense request for
two reasons. First, the record indicated that Hunter
could not be located that he was, in fact,
unavailable. Second, assuming that Hunter was
available, he was equally available to both parties, so
the State did not violate Hughess right of due process
by failing or neglecting to subpoena him.
At this point, the defense attorney asked
Judge Card to continue the trial for one week so that
the defense could locate Hunter and procure his
testimony. Judge Card did not reject this request out
of hand, but he told the defense attorney that he was
not inclined to declare a recess in the middle of the
trial unless the defense attorney was able to tell
[him] something more about the situation:
The Court: [You must let me know]
whether ... you have an idea of where
[Hunter] is, and [then] talk to him or his
mother or whomever he lives with and see when
he could get up here, and how long it would
take you folks to get him. Then well decide
if were going to recess the trial. Im not
going to recess the trial for a week without
knowing any of that. ...
[T]he State has indicated from the
beginning that they werent going to call
[Hunter] as a witness. And so its not like
the first notice was given today that he
wasnt going to be called. So if you want to
find out ... if you can get in touch with
him, how long it would take him to get up
here, assuming you can get a ticket. ... I
may be willing to recess for twenty-four
hours, till ... Friday, and continue the
trial Friday and get done or even [next]
Monday if, for example, he has to finish ...
a work shift. [N.B.: This conversation was
taking place on a Wednesday afternoon.] You
know, that sounds reasonable ... . But not a
week without [any more information].
Judge Card then told the defense
attorney that he would take the request for a
continuance under advisement overnight. The
judge directed the defense attorney to give
[him] some more information tomorrow morning.
Hughess attorney responded, Okay. Good. The
defense attorney then mentioned the
possibility that Hunter might not come to
Alaska voluntarily that Hughes would have to
apply for an interstate subpoena. Judge Card
responded, Ill sign whatever you need.
The next morning, Judge Card asked
the defense attorney if he had anything to
report about Hunters availability as a
witness. The defense attorney answered,
Defense Attorney: Judge, Im going to be
honest with you: I didnt have time to try to
call yesterday. I was in court [all day],
and then [I] tried to deal with some office
matters before everyone went home at five
oclock, [so] I didnt have time to call down
there realizing that [Hunter] does not have
a home phone and it would be nine oclock on
the East Coast ... , and so I just it was a
crash and burn evening, pretty much.
Based on the defense attorneys response,
Judge Card denied the request for a
continuance. The judge reiterated that he
was not going to give a weeks continuance
based on ... no [information] at all.
On appeal, Hughes does not
challenge Judge Cards refusal to dismiss the
assault charge because of Hunters absence.
Hughes does, however, challenge Judge Cards
denial of the weeks continuance. He contends
that Judge Card unreasonably denied him an
extra week to find a crucial defense witness.
In Ross v. State, 836 P.2d 378
(Alaska App. 1992), this Court listed the
factors that a trial judge should consider
when deciding whether to grant a mid-trial
request for a continuance to obtain the
testimony of an absent witness:
(1) whether the [absent witnesss]
testimony is material to the case;
(2) whether the testimony can be
elicited from another source;
(3) whether the testimony is cumulative;
(4) [the] probability of securing the
absent witness in a reasonable time;
(5) whether the requesting party was
diligent and acted in good faith;
(6) the inconvenience to the court
and/or others; [and]
(7) the likelihood that the testimony
would have affected the jurys verdict.
Ross, 836 P.2d at 381 (summarizing the
discussion in Salazar v. State, 559 P.2d 66,
72-75 (Alaska 1976)).
Using these criteria, we conclude
that Judge Card acted reasonably when he
denied Hughess mid-trial request for a
continuance.
With regard to the defense
attorneys diligence, Judge Card noted that
the defense attorney had known since the
beginning of the case that Hunter was a
potential witness, and had known for several
days that Hunter was not going to testify for
the State. Nevertheless, Judge Card did not
deny Hughess request for a continuance out of
hand. Instead, he gave the defense attorney
a day in which to find out more information
about where Hunter was and whether he could
be brought to Alaska to testify.
Despite the defense attorneys claim
that Hunter was a crucial witness for the
defense, the defense attorney took no steps
to locate Hunter in the time given him. The
defense attorney explained that he was in
court for much of the day, but Judge Card
reasonably could have concluded that a
diligent attorney would have assigned other
people to this task if Hunter was indeed such
an important witness. Moreover, the defense
attorney admitted that, even when he got out
of court, he attended to office business
instead of using the time to try to locate
Hunter until it was too late to call the
East Coast. In short, the defense attorney
did not act diligently.
The probability that Hunters
testimony could be secured in a reasonable
amount of time appears to have been Judge
Cards central concern. He repeatedly told
the defense attorney that he was not prepared
to order a recess of the trial without some
reason to think that Hunter could be located
and brought to Alaska to testify. As
described above, when the issue of Hunters
testimony arose early in the trial, the
defense attorney conceded that Hunter
probably could not be located. As the
proponent of the continuance, the defense
attorney was obliged to present Judge Card
with good reason to believe that this was no
longer the case that Hunter could be located
and his testimony procured. The defense
attorney did not do so.
And with regard to the materiality
of Hunters testimony, we note that the
defense attorneys claim that Hunter was a
crucial witness rested on the same argument
that we rejected in the first section of this
opinion the argument that Hughes could not
be convicted of assault if Hunter was not
subjectively afraid of Hughes. This
proposition of law is mistaken. This
undercuts Hughess assertion that he could not
get a fair trial without Hunters testimony.
In the last analysis, Hughess
attorney asked Judge Card to continue the
trial for a week without giving the judge any
reason to believe that the delay would
achieve anything. We therefore conclude that
Judge Card did not abuse his discretion when
he denied Hughess mid-trial request for a
continuance.
Hughess motion for a judgement of acquittal on the
assault charge
Hughes argues that he is entitled to a
judgement of acquittal on the third-degree assault
charge involving Derwin Hunter. But Hughes argues
the evidence in the light most favorable to
himself. The test is whether the evidence is
sufficient to support the conviction when viewed
in the light most favorable to upholding the jurys
verdict.8
Moreover, Hughess primary argument for
acquittal is the same argument that we rejected in the
first section of this opinion the argument that the
State could not prove assault if there was no evidence
that Hunter was subjectively afraid of Hughes. That is
not the issue. The question is whether the State
presented evidence from which the jury could reasonably
conclude that, because of Hughess conduct, Hunter
reasonably perceived a danger that he would suffer
imminent serious physical injury. Viewed in the light
most favorable to upholding the jurys verdict, the
States evidence was sufficient to establish this
element.
Hughess motion for a judgement of acquittal on the
criminal mischief charge
Under AS 11.46.484(a)(1), a person commits
the crime of third-degree criminal mischief if the
person intentionally damages property of another having
a value of at least $50, and if the person ha[s] no
right to do so [and no] reasonable ground to believe
[that they have] such a right.
Hughes concedes that the State presented
sufficient evidence to support the conclusion that
Hughes intentionally broke down the bedroom door. But
Hughes argues that he could not lawfully be convicted
of criminal mischief for this conduct because he and
his estranged wife were co-owners of the house. Based
on this co-ownership, Hughes contends that he did not
damage property of another.
Hughes underlying argument is that, even
though his wife was co-owner of the door, the door
could not be property of another so long as it also
belonged to him. We explicitly rejected this argument
in LaParle v. State, 957 P.2d 330 (Alaska App. 1998).
Property of another is defined in AS
11.46.990(13) as property in which [another] person has
an interest which the defendant is not privileged to
infringe, whether or not the defendant also has an
interest in the property. In LaParle, we noted that
the drafters of this provision, in their commentary,
had clearly indicated their intention [that] co-owners
of property should be as well protected against
depredations by other co-owners as they are against
outsiders.9 We also noted several decisions from other
states holding that a spouse can be convicted for
stealing or vandalizing property co-owned by the
married couple.10 We then concluded:
Based on the [statutory definition of
property of another], the commentary that
accompanied the tentative draft of this
provision, and the decisions of other
jurisdictions cited in the preceding
paragraph, we conclude that the commonly-held
property of a married couple can constitute
property of another, even as between the two
spouses. That is, it is legally possible in
Alaska for a spouse to commit theft of
marital property.
LaParle, 957 P.2d at 334. For these same
reasons, we conclude that it is legally
possible for a spouse to be convicted of
criminal mischief for vandalizing marital
property.
However, this does not completely
resolve the matter, for the criminal mischief
statute also requires proof that the
defendant [had no] reasonable ground to
believe [that they had] a right to destroy
the property at issue. Although Hughess co-
ownership of the door does not, in itself,
give him a defense to the charge of criminal
mischief, the question remains whether
Hughess co-ownership of the property might
have given him a reasonable ground to believe
that he was entitled to infringe his wifes
interest in the door by breaking it down.
It is conceivable that, under
certain circumstances, a spouse might
reasonably believe that they were entitled to
destroy or intentionally damage marital
property e.g., to accomplish the remodeling
of a room, or to save life or property during
a fire or other emergency. But this would be
an issue of fact for the jury.
The question here is whether Hughes
subjectively and reasonably believed that,
given the circumstances of this case, he had
a right to vandalize or destroy a door that
belonged (in part) to his wife. The evidence
at trial, if viewed in the light most
favorable to upholding the jurys verdict, was
sufficient to support the conclusion that
Hughes had no such reasonable belief. (We
note, moreover, that when Hughess attorney
delivered his summation to the jury, the
attorney never suggested that Hughes believed
that he had a right to destroy or damage the
door.)
In sum, the States evidence was
sufficient to support Hughess conviction for
third-degree criminal mischief.
Hughess argument that his conviction for reckless
endangerment should merge with his conviction for
third-degree assault on Hunter
As discussed above, Hughes was convicted of
third-degree assault for recklessly causing Derwin
Hunter to apprehend imminent serious physical
injury by means of a dangerous instrument a
knife. In addition, Hughes was convicted of
reckless endangerment under AS 11.41.250(a) for
recklessly engag[ing] in conduct that created a
substantial risk of serious physical injury to
another person.
The above-quoted language is from the
indictment as well as the statute. In other words, the
indictment did not specify the victims of the offense
the people for whom Hughess conduct created a risk of
injury. This lack of specificity in the indictment
engendered a legal controversy at the end of the trial.
After Hughes was convicted of both third-
degree assault and reckless endangerment, the defense
attorney asked Judge Card to merge the reckless
endangerment conviction into the third-degree assault
conviction. The defense attorney argued that this was
required because (1) reckless endangerment is a lesser
offense included within third-degree assault, (2) both
offenses stemmed from the same conduct, and (3) Derwin
Hunter was the victim of both crimes.11 Judge Card
rejected this argument because he concluded that there
were as many as three victims of the reckless
endangerment count all three of the persons present in
the home: Hughess wife, Ricky Meredith (the friend who
intervened in the fight), and Hunter.
On appeal, Hughes renews his argument that
the two crimes should merge. He points out that the
jury was not asked to fill out a special verdict form
specifying the person or persons endangered by Hughess
conduct. Thus, Hughes claims, the jurys decision is
irresolvably ambiguous regarding the identity of the
victim(s) of the reckless endangerment charge. Hughes
argues that, because of this ambiguity, it is possible
that the jury concluded that Hunter was the sole victim
of the reckless endangerment in which case, the
reckless endangerment conviction should merge with the
third-degree assault conviction because both
convictions punish essentially the same act.
But the alleged ambiguity vanishes when the
record is examined. Although the indictment does not
specify the victims of the reckless endangerment, the
prosecutor repeatedly told the jury both in opening
statement and in summation that the conduct underlying
this charge was Hughess act of waving a knife in the
presence of his wife and his friend Meredith (initially
in the kitchen, and then as Hughes first approached the
bedroom). Hughess wife and Ricky Meredith were the
only people in Hughess presence during this time.
Hughess wife testified that, during the
confrontation in the kitchen, Hughes was waving the
knife, making threats, and yelling for Hunter to come
out of the bedroom. Meredith agreed that Hughes
grabbed a knife during the confrontation. But Meredith
testified unambiguously that, at his urging, Hughes put
the knife down and returned the weapon to the kitchen
before he went back to the bedroom, broke down the
bedroom door, and began struggling with Hunter.
The prosecutors description of the reckless
endangerment charge and the testimony supporting this
charge resolved the potential ambiguity in the jurys
verdict. Because the actus reus of the charge was
Hughess act of brandishing the knife in the presence of
his wife and Meredith, the jury must have concluded
that one or both of them were victims of this crime.
It is conceivable that the jury concluded
that Hunter was a third victim of the reckless
endangerment charge. Hunter never actually saw Hughes
with the knife in his hand, but the State argued that
Hunter was placed in fear of imminent serious physical
injury by the commotion outside the bedroom door, by
Merediths pleas to Hughes to put down the knife, and by
Hughess eventual act of breaking down the door. But
this is not sufficient for Hughes to win his merger
argument.
To show entitlement to a merger of the two
convictions, Hughes must demonstrate either that Hunter
was the sole victim of both charges or, at least, that
it is impossible to tell whether the jury might have
viewed Hunter as the sole victim of both charges.
Here, although the evidence conceivably supported the
conclusion that Hunter was an additional victim of the
reckless endangerment charge, the evidence and the
prosecutors arguments ineluctably lead to the
conclusion that the jury viewed Hughess wife and/or
Meredith as victims of this crime. The fact that the
reckless endangerment charge included two victims other
than Hunter means that this charge does not merge with
the third-degree assault charge in which the sole
victim was Hunter.
Compare State v. Dunlop, 721 P.2d 604, 609
(Alaska 1986), where the supreme court held that a
single act of reckless driving can support multiple
convictions for homicide and assault when more than one
victim is killed or injured; and Cooper v. State, 595
P.2d 648, 649 (Alaska 1979), where the supreme court
held that the act of firing one shot toward three
people will support three convictions for assault.
Conclusion
The judgement of the superior court is
AFFIRMED.
_______________________________
1 AS 11.41.220(a)(1)(A).
2 AS 11.46.484(a)(1).
3 AS 11.41.250(a).
4 See Mustafoski v. State, 954 P.2d 1042, 1045 (Alaska App.
1998); State v. McDonald, 872 P.2d 627, 639 (Alaska App.
1994).
5 AS 11.41.220(a)(1)(A).
6 See Jones v. State, 576 P.2d 997, 1000-1001 (Alaska 1978);
Dyer v. State, 666 P.2d 438, 450-451 (Alaska App. 1982) (a
defendant who unsuccessfully offers evidence under one
theory of admissibility at trial can not argue a different
theory of admissibility on appeal).
7 See Ryan v. State, 899 P.2d 1371, 1379 (Alaska App. 1995)
([T]he touchstone for determining the admissibility of
hearsay under [the catch-all exception] is its
trustworthiness. The hearsay must possess at least the same
guarantees of trustworthiness that characterize the other
types of admissible hearsay listed [in the rule].).
8 See Hentzner v. State, 613 P.2d 821, 823 (Alaska 1980);
Siggelkow v. State, 648 P.2d 611, 613 (Alaska App.
1982).
9 LaParle, 957 P.2d at 333-34 (quoting Alaska Criminal Code
Revision, Tentative Draft, Part 3, p. 21).
10 LaParle, 957 P.2d at 334, citing: People v. Llamas, 60
Cal.Rptr.2d 357, 361-62 (Cal. App. 1997) (holding that a
spouse can be convicted of theft for taking community
property); Commonwealth v. Mescall, 592 A.2d 687, 690-91
(Penn. App. 1991) (same); People v. Kahanic, 241 Cal.Rptr.
722, 723 (Cal. App. 1987) (holding that a spouse can be
convicted of vandalism for destroying community property);
State v. Webb, 824 P.2d 1257, 1262-63 (Wash. App. 1992)
(same).
11 See Tuckfield v. State, 621 P.2d 1350, 1352 (Alaska
1981); but cf. Todd v. State, 917 P.2d 674 (Alaska 1996)
(holding that a defendant can be separately convicted of
both felony murder and the underlying felony).
