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Alto v. State (2/14/2003) ap-1856
Alto v. State (2/14/2003) ap-1856
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
FRANK A. ALTO, )
) Court of Appeals No.
A-7961
Appellant, ) Trial
Court No. 3AN-S98-9776 CR
)
v. ) O P I N I O
N
)
STATE OF ALASKA, )
)
Appellee. )
[No. 1856 - February 14, 2003]
)
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Larry D. Card,
Judge.
Appearances: Quinlan Steiner, Assistant
Public Defender, and Barbara K. Brink, Public
Defender, Anchorage, for Appellant. Kenneth
M. Rosenstein, 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.
COATS, Chief Judge.
This case raises the question of whether a person who
is found not guilty by reason of insanity and committed to the
custody of the Commissioner of Health and Social Services can be
convicted of escape for removing himself from that custody. We
conclude that the defendant can be convicted of escape under
these circumstances.
Facts and proceedings
Frank A. Alto brutally beat and killed a woman in
1973.1 He was convicted of rape, grand larceny, and murder in
the first degree in a court trial.2 On appeal, the Alaska
Supreme Court reversed Altos convictions and ordered that a
judgment of not guilty by reason of insanity under former AS
12.45.083 be entered against Alto because the court determined
that the State had not proved beyond a reasonable doubt that Alto
was sane.3 On remand, the trial court found that Alto was
suffering from a mental disease or defect that causes him to be a
danger to the public peace and safety. The court committed Alto
to the custody of the Commissioner of Health and Social Services
for a term not to exceed 30 years.
Alto was committed to the Alaska Psychiatric Institute.
While he was returning from a field trip to Girdwood, Alaska,
Alto managed to evade the person who was guarding him. He was
later located and detained in New York State after which an
Alaska State Trooper returned him to Alaska. The State charged
Alto with escape in the second degree,4 a class B felony. In a
trial conducted by Superior Court Judge Larry D. Card, a jury
convicted Alto. Judge Card sentenced Alto to 6 years of
imprisonment. Alto appeals his conviction and his sentence. We
affirm.
Whether an individual who is adjudicated not
guilty by reason of insanity may be convicted
of escape
In order to convict a person of escape in the second
degree, the State must prove that the person unlawfully removed
[himself] from official detention for a felony. Alto contends
that because he was found not guilty by reason of insanity of his
felony offenses, he was not in official detention for a felony,
and therefore he could not be convicted of felony escape. Alto
was charged with violating AS 11.56.310(a)(1)(B), which provides
that: One commits the crime of escape in the second degree if,
without lawful authority, one removes oneself from official
detention for a felony or for extradition.5 Alaska Statute
11.81.900(b)(39) defines official detention as: custody, arrest,
surrender in lieu of arrest, or actual or constructive restraint
under an order of a court in a criminal or juvenile proceeding,
other than an order of conditional bail release.
Alto does not contest that he was in official detention
as defined in this statute. Instead, he argues that his
detention was not for a felony. He argues that the phrase
official detention for a felony does not apply to individuals who
are found not guilty by reason of insanity and subsequently
committed because the commitment is not in connection with or in
reference to a felony. Specifically, he contends that [t]he
felony charge for which an insanity acquittee is initially
detained is merely an allegation which brings an individual to
the attention of the court. The subsequent commitment is in
reference to and in connection with the defendants mental status
and its relationship to public safety. Because the issue that
Alto raises is one of statutory interpretation, this court must
review it de novo.6
This court addressed the definition of the phrase for a
felony, as contained in AS 11.56.310(a)(1)(B), in State v.
Stores.7 In Stores, a police officer arrested Stores on a felony
warrant for a parole violation.8 Stores was on parole on a
felony burglary conviction.9 Stores ran away after the officer
began handcuffing him, but the officer apprehended him fifteen to
twenty minutes later.10 The State charged Stores with escape in
the second degree for removing himself from official detention
for a felony.11 Stores moved to dismiss, arguing that he was in
detention on a parole violation, not for a felony.12 The trial
court agreed with Stores and dismissed the indictment.13 The
State appealed, and we reversed the trial court.
In arguing for its interpretation of the statute
criminalizing escape in the second degree, the State argued that
if the phrase for a felony did not apply to a person who
absconded from detention for a parole violation, then it would
not be a crime for a parolee to remove himself from custody. The
State argued that this would be an unreasonable interpretation.14
We agreed with the States reasoning.15 We then examined the
language of the statute and concluded:
According to these sources, a fair
definition of the term for a felony is in
reference to a crime that is punishable by
more than one years imprisonment. This is a
broad definition, which suggests that the
statute was intended to cover a wide variety
of cases and situations, including detentions
for both felony convictions and felony
charges.[16]
We then examined the legislative history and concluded
that the history was consistent with the plain meaning of the
statute:
[The legislature] intended [the statute]
to apply to those who abscond from detention
for a felony. It is a felony, whether the
person is detained for a felony that has not
yet been charged, or a felony that has been
formally charged or for a felony on which a
conviction has been entered.[17]
We concluded that Stores could be convicted of escape in the
second degree.
We also interpreted the phrase for a felony in LeFever
v. State.18 LeFever was in official detention as a result of
juvenile proceedings for offenses that would have been felonies
if he had been an adult.19 LeFever absconded from custody and
was charged and convicted of unlawful evasion in the first degree
for failing to return to official detention while charged with or
convicted of a felony.20 LeFever argued that because juvenile
delinquency proceedings are distinct from adult criminal
proceedings under Alaska law, he had not been charged with or
convicted of a crime but had been adjudicated a delinquent.21 He
argued that therefore he had not been charged with or convicted
of a felony for purposes of the statute.22
We concluded that the unlawful evasion statutes . . .
are together intended to cover all people who fail to return to
official detention, and that the statutes introductory language
[specifying a felony or misdemeanor conviction] is intended
simply to classify unlawful evasion by seriousness of the evaders
conduct, not to exclude adjudicated delinquents from the
definition of unlawful evasion.23
Therefore, in Stores and LeFever we found that the
critical element of the offense was whether the defendant removed
himself from official detention. We concluded that the
legislature divided official detention into two categories:
official detention for a felony and official detention for a
misdemeanor. If the underlying charge that placed the defendant
in official detention was a felony, then he committed a more
serious offense than if he had been in official detention for a
misdemeanor.
If we apply a similar analysis to Altos escape
conviction, we come to the conclusion that Alto was properly
convicted of escape. We first turn to the analysis by the Alaska
Supreme Court in State v. Alto (Alto II),24 a case in which the
Supreme Court determined that Alto had the burden of proving his
sanity in order to be released from detention. Alto was
originally charged and convicted of murder, rape, and grand
larceny.25 He was only found not guilty by reason of insanity
after the supreme court concluded that the State had not
established his sanity beyond a reasonable doubt.26 After the
case was remanded to the superior court, both Alto and the State
petitioned the supreme court to decide who had the burden of
establishing whether Alto was or was not suffering from a mental
disease or defect that caused him to be a danger to the public
peace and safety.27 The supreme court concluded that Alto had the
burden to establish by a preponderance of the evidence that he
was not presently suffering from a mental disease or defect that
caused him to be a danger.28
In reaching this decision, the supreme court made
several pertinent observations about a verdict of not guilty by
reason of insanity. The court concluded that [a] verdict of not
guilty by reason of insanity contains within it the finding that,
beyond a reasonable doubt, the defendant committed the act
charged.29 The court observed that in the criminal case in order
to convict Alto of a criminal offense, the State had the burden
of establishing Altos sanity beyond a reasonable doubt.30 The
court reasoned that requiring the State to prove Altos sanity in
order to hold him could create a dangerous loophole. The State
might be unable to prove Alto sane beyond a reasonable doubt and
might also be unable to prove that he was insane and must be
committed.31 The court observed that placing such a burden on
the State would allow dangerous offenders to evade both
conviction and commitment to a mental hospital.32 Consequently,
the court concluded that Alto had the burden of proving, by a
preponderance of the evidence, that he was not suffering from a
mental disease or defect that caused him to be a danger to the
public.33
The supreme courts analysis supports the conclusion
that Alto was in official detention for a felony. As the supreme
court noted, Alto had been found, beyond a reasonable doubt, to
have committed the serious felony offenses that resulted in his
detention. He was found not guilty by reason of insanity because
the State did not establish his sanity beyond a reasonable doubt.
But Alto remained in official detention because he was unable to
establish that he was not suffering from a mental disease or
defect that caused him to be dangerous. Altos detention is
clearly connected with his commission of a felony offense and
seems similar to the connection that we found in Stores and
LeFever.
Alto tries to compare criminal commitments after a
finding of not guilty by reason of insanity to involuntary civil
commitments, arguing that the original felony charge is merely an
allegation which brings an individual to the attention of the
court. But many courts, including the United States Supreme
Court, treat these two classes of commitments differently.34
These courts have reasoned that the differential treatment was
justified because insanity acquittees have already demonstrated
their dangerousness through violent antisocial behavior.35 As
the Alaska Supreme Court explained in Alto II, [the acquittee by
reason of insanity] differs from the civil committee who is
confined because of his potential to commit dangerous acts, not
because he has committed them.36
Altos conclusion about the similarities between civil
and criminal commitments also ignores many of the important
differences between the two statutory schemes that the
legislature has provided for in Alaska.37 For instance, the
maximum term that a judge may impose after an insanity acquittal
under our current statutory scheme is limited only by the maximum
term of imprisonment for the crime from which the defendant was
acquitted.38 Only upon completing a term of commitment equal to
the maximum term of imprisonment for the crime for which the
defendant was acquitted is the acquittee governed by the same
civil procedures as other civil committees.39 In contrast, the
maximum term that a civil court may commit an individual
involuntarily is 180 days.40 Once the original 180-day period
expires, a court may recommit the individual only upon a properly
filed petition for an additional maximum term of 180 days.41
Thus on its face, the Alaska legislature has linked the insanity
acquitees commitment term to the underlying crime. This link
provides additional support that the commitment is in reference
to the felony charge, as we outlined in Stores.
Furthermore, similarly to Stores and LeFever, if we
were to conclude that the escape statute did not apply to Alto,
this would mean that the legislature did not establish an offense
for a person who removed himself from official detention when
committed for an offense for which he has been found not guilty
by reason of insanity. Such an interpretation of the statute is
unreasonable. In contrast to Altos argument that criminal and
civil commitments are similar, the relevant enabling statutes
differ on this point as well.
The civil statutory scheme provides a procedure for
returning civil committees who escape. Alaska Statute 47.30.790
provides procedures for using a peace officer or other
responsible party to return a civilly committed individual to
their treatment facility when they are absent without
authorization; this statute does not provide for criminal
sanctions. The criminal code, on the other hand, provides no
analogous procedure for returning individuals whose commitments
are a result of an insanity acquittal, nor does it refer to the
civil procedure to handle such situations.
For all the above reasons, we accordingly conclude that
the State could properly charge and the jury could properly
convict Alto for escape in the second degree.
Whether Judge Card properly instructed the
jury on the escape charge
Alto argues that Judge Card did not properly instruct
the jury on escape. Altos arguments are colored by his original
contention, which we have rejected, that he could not be properly
convicted of escape because he had been found not guilty by
reason of insanity. Judge Card rejected Altos premise, and we
have upheld this ruling. But the record shows that Judge Card
was also aware that, in spite of the fact that Alto could be
properly convicted of escape, ultimately the jury had the
responsibility to determine whether Alto had committed the
elements of the offense.
After considerable discussion, the parties entered into
a stipulation that the court read to the jury:
The parties have stipulated that the offense
charged in case 3AN-S73-433 CR [the 1973
homicide] was a felony offense. The offense
carried a possible term of imprisonment in
excess of one year. You may accept this . .
. fact as true and as having been proven.
For a felony means in reference to or in
connection with a felony offense. A felony
means a crime for which a sentence of
imprisonment for a term of more than one year
is authorized. The outcome of the case which
resulted in Frank Altos official detention at
API is not relevant to your decision in this
case.
Although Alto attempts to attack this stipulation on
appeal, Alto entered into the stipulation on his own accord at
trial. He therefore has waived any basis to object to the
stipulation.42 The stipulation appears to be reasonable and
designed to avoid prejudicing the jury by acquainting the jury
with the facts underlying the 1973 homicide. Judge Card
gave the jury the following instruction on the elements of escape
in the second degree:
First, that the event in question occurred at
or near Anchorage, Alaska, and on or about
November 5, 1998;
Second, that FRANK AUGIE ALTO knowingly
removed himself from official detention;
Third, that he was in official detention for
a felony;
Fourth, that he recklessly disregarded
whether he was without lawful authority to
remove himself.
This instruction properly sets out the elements of the offense of
escape.
In a related argument, Alto argues that the instruction
is flawed because it did not require the State to prove that he
recklessly disregarded whether he was in official detention for a
felony. Alto essentially argues that the State had to prove that
Alto was aware of the degree of the offense that he committed.
We have previously rejected similar contentions.
In Hoople v. State,43 the defendant argued that, for
the State to convict her of felony driving while intoxicated, the
State had to prove that she had some awareness of her previous
convictions for driving while intoxicated.44 We rejected this
contention. We held that when the defendants basic underlying
conduct is criminal, no culpable mental state need to be proved
with respect to an aggravating circumstance that raises the
degree of the crime.45
In Ortberg v. State,46 the defendant was convicted of
criminal mischief in the second degree for causing properly
damage in an amount of $500 or more.47 Ortberg argued that the
court erred in failing to instruct the jury that he knew or had
reason to believe that the damage he caused would ultimately
exceed $500.48 This court held that, in order to convict
Ortberg, the jury had to find that he intentionally damaged the
property of another without reason to believe that his act was
authorized.49 But we concluded that the statute did not require
the State to prove that Ortberg knew of and had reason to know
that the damage that he caused would exceed $500.50
Altos situation is similar. The primary difference
between second-degree and fourth-degree escape is the
classification of the underlying offense that led to the official
detention a felony for second-degree escape and a misdemeanor
for fourth-degree escape.51 This classification helps mete out
the appropriate punishment upon a violation of the escape
statutes. The Stores court pointed out the purpose of this
classification under the former escape statutes, explaining that:
[T]he apparent purpose of the classification
is simply to establish the appropriate degree
of escape to be charged and the period of
incarceration to be imposed.
. . . .
Clearly, the term for a felony is a
qualifying term which gauges the appropriate
degree of the offense to be charged and the
appropriate punishment.[52]
As in Ortberg and Hoople, whether Alto was reckless regarding the
degree of the offense that led to his official detention is
irrelevant. The classification simply provides a framework
within which a court can provide an appropriate degree of
punishment.
Alto attempts to distinguish Hoople and Ortberg by
arguing that, unlike those defendants, his actions in removing
himself from official detention were not inherently criminal. We
do not find this distinction persuasive. In order to convict
Alto, the State had to prove that (1) Alto knowingly removed
himself from official detention and (2) he recklessly disregarded
whether he was without lawful authority to remove himself. This
is how the court instructed the jury. The State did not have to
prove that Alto was aware that he was in official detention for a
felony, a difficult legal issue that we have just resolved. We
conclude that Judge Card did not err in the instructions that he
gave the jury.
Whether Judge Card abused his discretion in
making several evidentiary rulings
Alto raises several arguments about various evidentiary
rulings that Judge Card made during the trial. There are two key
problems with Altos argument. First, he has completely failed to
develop any theory, under legal precedent or otherwise, that
would justify his claims. He cites no authority, statutes, or
cases that support his claims. Instead, he includes a laundry
list of items that he claims would have exonerated him at trial
by showing that he was not aware he was under official detention
for a felony. He does not show why these evidentiary items
themselves are admissible or why the trial courts reasoning was
faulty. In fact, he does not discuss the trial courts rulings at
all, other than to state they were wrong. His discussion is
limited to a sentence or phrase describing the evidence he wanted
admitted, followed by his conclusion that the trial court erred.
Other than these conclusory statements of error, he provides no
reason why this court should find that the trial court abused its
discretion in excluding the evidence at trial. [W]here a point
is given only a cursory statement in the argument portion of a
brief, the point will not be considered on appeal.53
To the extent that Alto has not waived these arguments,
the arguments appear to have no merit. Altos arguments are based
on his assumption, which we have previously rejected, that he
could not be convicted of escape where he was in official
detention for an offense for which he had been found not guilty
by reason of insanity or that he was not aware of the fact that
he was in official detention for a felony. We have previously
rejected Altos arguments that were based on these assumptions.
We accordingly conclude, not only did Alto waive these arguments
by failing to properly brief them, but to the extent that we can
ascertain the nature of Altos arguments, they have no merit.
Whether Altos sentence is excessive
Escape in the second degree is a class B felony.54 The
maximum penalty for a class B felony is 10 years of imprisonment;
the presumptive term for a second-felony offender is 4 years of
imprisonment and the presumptive term for a third-felony offender
is 6 years of imprisonment.55 As we have previously stated,
Judge Card sentenced Alto to 6 years of imprisonment.
In sentencing Alto, Judge Card found the aggravating
factor that Altos prior criminal history included conduct
involving aggravated or repeated instances of assaultive
behavior.56 Alto points out that Judge Card relied on the 1973
homicide to find this aggravating factor. Alto again argues
that, because he was found not guilty by reason of insanity, he
was never convicted of a criminal offense. He argues that
therefore Judge Card erred in relying on the homicide in finding
the aggravating factor. We disagree.
As we have formerly pointed out, in order to find Alto
not guilty by reason of insanity, the court initially had to
find, beyond a reasonable doubt, that Alto committed the murder
with which he was charged.57 Furthermore, a finding that a
defendant has a prior criminal history of aggravated assaultive
conduct does not require proof that the defendant was prosecuted
or convicted.58 We conclude that Judge Card did not err in
considering Altos prior murder in determining whether the
aggravating factor applied to Altos conduct. We also conclude
that Judge Card did not err in finding the aggravating factor
that Alto had a criminal history of repeated instances of similar
criminal conduct.59 He based this finding on Altos admission
that he had several prior escapes from the Alaska Psychiatric
Institute. Alto does not apparently contest this aggravating
factor.
In sentencing Alto, Judge Card pointed out that in some
ways Altos escape offense was not extremely serious because Alto
did not use any weapons or assault anyone. Although Alto fled to
New York and was gone for a substantial period of time (two
weeks), there was no evidence that he committed any other crimes
during this time. But Judge Card found the case exceptionally
aggravated because of the extraordinary circumstances of Altos
prior homicide. He also pointed out that the record showed that
Alto had apparently not changed his anti-social behavior or shown
that he could be successfully treated. He pointed out that when
a person with Altos background escapes, people in society are
placed in great fear. He stated that he imposed his sentence in
part to express that community condemnation.
Except for the finding that Alto was not guilty by
reason of insanity, his prior criminal conduct would have
qualified him as a third-felony offender facing a presumptive
sentence of 6 years of imprisonment. Altos prior history of
criminal offenses and the fact that he had been found not guilty
by reason of insanity create a rational conclusion that his
escape placed a dangerous person at large in society. Judge Card
could properly weigh that fear and the danger to the public in
concluding that Altos escape was an aggravated offense. We
conclude that the sentence is not clearly mistaken.
Conclusion
Altos conviction and sentence are AFFIRMED.
_______________________________
1 Alto v. State, 565 P.2d 492, 493 (Alaska 1977) (Alto I).
The Alaska Supreme Courts decision contains a discussion of the
facts surrounding this crime.
2 Id.
3 Id. at 502-03. The rape charge was overturned because the
court held that Alto had never actually been charged with the
crime. Id. at 495.
4 AS 11.56.310(a)(1)(B).
5 AS 11.56.310(a)(1)(B) (emphasis added).
6 Conner v. State, 696 P.2d 680, 682 (Alaska App. 1985).
7 816 P.2d 206 (Alaska App. 1991).
8 Id. at 207.
9 Id.
10 Id. at 208.
11 Id.
12 Id.
13 Id.
14 Id.
15 Id.
16 Id. at 210-11.
17 Id. at 211.
18 877 P.2d 1298 (Alaska App. 1994).
19 Id. at 1298.
20 Id. at 1299 (quoting AS 11.56.340(a)).
21 Id.
22 Id.
23 Id. at 1301-02. The current unlawful evasion statute
combines the former first-degree and second-degree unlawful
evasion statutes, creating one statute that no longer has
separate degrees. The former statute created separate first-
degree and second-degree charges for unlawful evasion by
distinguishing between whether the defendant was charged with a
felony or with a misdemeanor when he escaped. AS 11.56.340, as
amended by ch. 51 3, SLA 1995.
24 589 P.2d 402 (Alaska 1979).
25 Alto I, 565 P.2d at 493.
26 Id. at 502-03.
27 Alto II, 589 P.2d at 403.
28 Id.
29 Id. at 404.
30 Id.
31 Id. at 404-05.
32 Id.
33 Id. at 405.
34 See, e.g., Jones v. United States, 463 U.S. 354, 367,
103 S.Ct. 3043, 3051, 77 L.Ed.2d 694 (1983); People v. Giles, 662
P.2d 1073, 1077 (Colo. 1983) (citing People v. Chavez, 629 P.2d
1040, 1053 (Colo. 1981)); People ex rel. Henig v. Commr of Mental
Hygiene, 372 N.E.2d 304, 306 (N.Y. 1977).
35 See Jones, 463 U.S. at 367, 103 S.Ct. at 3051; Giles,
662 P.2d at 1077; Henig, 372 N.E.2d at 306.
36 Alto II, 589 P.2d at 406.
37 Compare AS 12.47.090 and AS 47.30.700 - 47.30.815.
38 AS 12.47.090(d).
39 AS 12.47.090(f).
40 AS 47.30.745(b); 47.30.755(a).
41 AS 47.30.770(c) (Successive 180-day commitments are
permissible on the same ground and under the same procedures as
the original 180-day commitment.).
42 See Ross v. State, 950 P.2d 587, 591 (Alaska App. 1997)
(holding that argument on appeal was not properly preserved where
the defendant had entered into a stipulation at trial and only
later attacked the stipulations wording).
43 985 P.2d 1004 (Alaska App. 1999).
44 Id. at 1005.
45 Id. at 1006.
46 751 P.2d 1368 (Alaska App. 1988).
47 Id. at 1374.
48 Id.
49 Id.
50 Id.
51 Compare AS 11.56.310 and 11.56.330.
52 Stores, 816 P.2d at 212 n.5 (emphasis added).
53 Adamson v. Univ. of Alaska, 819 P.2d 886, 889 n.3
(Alaska 1991); see also Peterson v. Mut. Life Ins. Co. of N.Y.,
803 P.2d 406, 411 n.8 (Alaska 1990) (mentioning that trial court
refused to allow testimony is insufficient without any legal
argument as to why the court erred).
54 AS 11.56.310(b).
55 AS 12.55.125(d).
56 AS 12.55.155(c)(8).
57 Alto II, 589 P.2d at 404.
58 Russell v. State, 934 P.2d 1335, 1347 (Alaska App.
1997); Fagan v. State, 779 P.2d 1258, 1260 (Alaska App. 1989).
59 AS 12.55.155(c)(21).
