Made available by Touch N' Go Systems, Inc. and
Law Offices of James B. Gottstein.
406 G Street, Suite 210, Anchorage, AK 99501
(907) 274-7686 fax 333-5869

You can of the Alaska Court of Appeals opinions.

Touch N' Go®, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website to see how.


Mooney v. State (01/07/2005) ap-1965

Mooney v. State (01/07/2005) ap-1965

                             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 MOONEY,                 )
                              )              Court of Appeals No.
A-8383
                                             Appellant,         )
Trial Court No. 1KE-01-1123 CR
                              )
                  v.          )                         O P I N I
O N
                              )
STATE OF ALASKA,              )
                              )
                                             Appellee.          )
[No. 1965 - January 7, 2005]
                              )


          Appeal  from the Superior Court,  First  Judi
          cial   District,   Ketchikan,   Michael    A.
          Thompson, Judge.

          Appearances: Loren K. Stanton, Ketchikan, for
          Appellant.   Kenneth  J.  Diemer,   Assistant
          Attorney    General,   Office   of    Special
          Prosecutions  and  Appeals,  Anchorage,   and
          Gregg  D.  Renkes, Attorney General,  Juneau,
          for Appellee.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Stewart, Judges.

          COATS,  Chief Judge.


          Frank  Mooney  appeals his conviction and sentence  for

sexual assault in the first degree.  In his main point on appeal,

Mooney argues that Superior Court Judge Michael A. Thompson erred

in denying as untimely Mooneys challenge under Batson v. Kentucky

to  the  prosecutors use of peremptory challenges which  excluded

Alaska  Natives  from  the  jury.  We hold  that  Mooneys  Batson

challenge was untimely because Mooney made the motion after Judge

Thompson  had sworn the jury and dismissed the jury  venire.   We

also reject Mooneys other challenges to his conviction and uphold

his sentence.



          Procedural and factual background

          During  the early morning hours of September 11,  2001,

Ketchikan  Police Officer Joseph White responded to  a  911  call

reporting that a man was chasing a half-nude woman down the road.

Officer White arrived at the scene and saw a man pinning a  woman

to  the  ground.  The man, later identified as Frank Mooney,  was

lying across the woman diagonally with his arm across her throat.

Mooney was wearing only pants, and the woman, later identified as

S.M.,  was  naked  except  for a fleece  jacket.   Officer  White

ordered Mooney to get off of S.M.  Then, with the help of Officer

Josh  Dossett, he restrained Mooney.  He described S.M.  as  very

upset.

          Officer  Andrea Jacobson interviewed S.M. in  a  patrol

car.    S.M. told Officer Jacobson that she had initially  agreed

to  perform  oral sex on Mooney.   However, at some point  Mooney

had  gotten rough with her.   S.M. said she told Mooney that  she

wanted to stop performing oral sex and leave his house.   At this

point  Mooney  hit her in the back of the head  twice  with  both

fists.  Mooney also told S.M. that she could not leave unless she

finished performing oral sex on him, and that if she did  not  he

would  fuck  her  in  the ass and that she would  not  leave  his

residence  alive.   S.M. said she continued to do as Mooney  said

while  he continued to threaten her.   At one point she said  she

had to go to the bathroom.   When Mooney let her go, S.M. ran for

the  door  and  fled  down the street, wearing  only  the  fleece

jacket.

          Mooney told Officers White and Dossett that he was only

chasing  S.M. because she had assaulted him and stolen $600  from

him.   Mooney stated that he and S.M. went to his apartment where

they  both undressed and S.M. voluntarily performed oral  sex  on

him.    Mooney denied that he had threatened S.M. or  forced  her

to  do  anything.   However, Mooney did agree that  S.M.  stopped

performing oral sex on him before he was finished.  She then  got

up  and entered the bathroom.  Mooney claimed that when S.M. left

to  go  to  the bathroom she was acting a little weird.    Mooney

then  noticed  that he could not see his wallet.  When  he  asked

S.M. where it was, she just bolted out the door.   Mooney said he

followed S.M., caught her arm, and pulled her down to the  ground

and restrained her.  Then the police arrived.

          The  State  indicted  Mooney on  one  count  of  sexual

assault  in  the  first degree.  Following a trial  conducted  by

Judge  Thompson,  the  jury  convicted  Mooney.   Judge  Thompson

sentenced  Mooney,  a  third  felony  offender  for  purposes  of

presumptive  sentencing,  to 30 years imprisonment with  5  years

suspended.  This appeal follows.



          Mooneys Batson objection was untimely

          In  Batson v. Kentucky, the United States Supreme Court

held  that  a prosecutor could not exercise peremptory challenges

based  upon racial bias.1   In the years since it decided Batson,

the court has repeatedly expanded its scope.2

          In  Batson,  the Supreme Court held that  in  order  to

raise  an objection to a peremptory challenge, the challenge  had

to  be  exercised in a timely manner.  But the Supreme Court  has

not specified when a party must make a challenge in order for  it

to be timely.3  Instead [the Supreme Court] recognized that local

practices would indicate the proper deadlines ... and left it  to

the  trial  courts,  with their wide variety  of  jury  selection

practices, to implement Batson in the first instance.4   But  the

Supreme Court stated that a state court may adopt a general  rule

that  a  Batson claim is untimely if it is raised for  the  first

time on appeal, or after the jury is sworn ....5

          Alaska  has not adopted any rule defining when a  party

          must raise a Batson challenge.  But courts in other jurisdictions

have decided this issue.  Many courts have held that, in order to

preserve  a  Batson  challenge, a party must make  the  challenge

before the jury is sworn.6   Other jurisdictions have held that a

party  must raise a Batson challenge not only before the jury  is

sworn,  but  also before the court dismisses the  remaining  jury

venire.7

          Thus,  the  overwhelming majority of courts  that  have

considered  this  issue would find that Mooneys Batson  challenge

came  too  late, because Judge Thompson had already released  the

remaining members of the jury venire and had sworn the jury.   We

conclude  that  we should adopt the same policy  as  these  other

courts.

          One  primary  reason for requiring a party  to  make  a

timely  objection  is  to  allow the court  and  the  parties  to

litigate  the  issue  while it is fresh in  their  minds.   If  a

defendant  waits  until the middle of trial  to  raise  a  Batson

objection to the prosecutors

peremptory  challenges,  the prosecutor may  have  forgotten  the

precise  reasons for challenging particular jurors.  Furthermore,

the  trial judge (who must assess the prosecutors explanation for

the  challenges)  may no longer remember the prospective  jurors,

their  answers  to the various questions during  voir  dire,  and

their behavior and mannerisms during the selection process.

          Another primary reason for requiring a party to make  a

timely  objection  is to make sure that the  trial  court  has  a

reasonable  opportunity  to  fashion  a  remedy  if  the   partys

objection  is  well-founded.  In a jury trial, jeopardy  attaches

when  the jury is sworn.8  Thus, if a defendant waits until after

the  jury is sworn to raise a Batson challenge to the prosecutors

exercise  of peremptory challenges, and if there are insufficient

alternate  jurors  to  match the number  of  disputed  peremptory

challenges,  the  only available remedy will  be  a  mistrial   a

procedure  that  can cause considerable delay  and  expense,  and

which  is  burdensome to the parties, the victims and  witnesses,

          and the court.

          Moreover,  even in cases where the jury  has  not  been

sworn,  if  the  trial judge has already released  the  remaining

members  of  the jury venire, a successful Batson challenge  will

require  the  court  to  summon  additional  prospective  jurors.

Again, this procedure can cause considerable delay, especially in

locations or circumstances where an additional jury venire is not

readily available.9

          For  these reasons, we align ourselves with the  courts

that  require  defendants to raise Batson challenges  before  the

remaining members of the jury venire are released and the jury is

sworn.  And we accordingly hold that Mooneys Batson challenge was

untimely.   (Given the facts of Mooneys case, we need not  decide

whether a Batson challenge will be deemed untimely if it is  made

after  the remaining members of the jury venire are released  but

before the jury is sworn.)



          Judge  Thompson  did  not  err  in  admitting
          evidence  of  Mooneys  prior  conviction  for
          sexual assault

          Mooney argues that Judge Thompson erred in allowing the

State  to  introduce evidence of his prior conviction for  sexual

assault.   Mooney had a prior conviction in 1981 for first-degree

rape  in  the State of Washington.  The State contended that  the

evidence  of this prior conviction was admissible under  Evidence

Rule  404(b)(3).   Evidence Rule 404(b)(3) provides  that,  in  a

prosecution  for sexual assault (or attempted sexual assault)  in

any degree, evidence of prior sexual assaults or attempted sexual

assaults  by the defendant is admissible if the defendant  relies

on  the  defense of consent.  This rule provides an exception  to

Evidence  Rule 404(b)(1)s ban on evidence offered  for  the  sole

purpose of showing the defendants propensity to commit crimes.10

          Mooney  defended on the ground that S.M.  consented  to

the sexual activity.  Judge Thompson therefore considered whether

Mooneys  prior  conviction  was admissible  under  Evidence  Rule

404(b)(3).  The facts of Mr. Mooneys prior conviction  were  read

          into the record and are as follows:11  A woman voluntarily got

into  Mooneys  van  in  downtown Seattle.  Mooney  assaulted  and

threatened  her, pointed a gun at her and forced her  to  perform

oral sex on him.  Mooney attempted to tie the victim up with  her

pantyhose, but she tried to escape.  He then grabbed her  by  the

hair  and  hit  her in the face with the gun.   The  victim  then

escaped  from  the van and Mooney shot at her as  she  ran  away.

Mooney attempted to flee and ran his van into a wall.

          Judge Thompson found that Mooneys prior conviction  was

remarkably   similar  to  the  present  case.    Judge   Thompson

considered  the  age  of  Mooneys  prior  conviction.   He   also

considered Mooneys age when he committed the prior offense.   But

he  concluded that because Mooney had been in his twenties at the

time  of the prior offense, he was not a youthful offender.    He

concluded  that  the  prior conviction was sufficiently  similar,

even  when  he considered the passage of time, to be relevant  to

Mooneys propensity to commit sexual assaults.

          Mooney   argues   that  Judge  Thompson    abused   his

discretion  in  admitting this evidence.  He first contends  that

Evidence  Rule 404(b)(3) violates due process by authorizing  the

admissibility  of evidence of a defendants propensity  to  commit

sexual  assaults.   But  we  have previously  rejected  this  due

process  claim.12   We  held  that the  admission  of  propensity

evidence  did  not per se violate due process.13   We  emphasized

that, even though propensity evidence might be relevant under the

evidence  rules,  the  trial judge still  had  a  duty  to  apply

Evidence  Rule 403 to weigh the probative force of  the  evidence

against  its  potential  for unfair prejudice.   A  trial  judges

stringent   application  of  Evidence  Rule  403   protects   the

defendants due process rights.14

          Mooney  argues that Judge Thompson did not perform  the

required balancing under Evidence Rule 403.  But the record shows

otherwise.   Judge Thompson weighed the probative  value  of  the

evidence  against the danger of unfair prejudice.  He  ultimately

concluded  that  the  evidence of Mooneys  prior  sexual  assault

          conviction was admissible because the facts in the case were

similar  to  the  facts  of the current charges  against  Mooney.

Although  he  considered the age of the conviction, he  concluded

that  the  evidence was probative because Mooney was an adult  at

the  time  he  committed  the offense.  We  conclude  that  Judge

Thompsons findings are supported by the record and conclude  that

he did not abuse his discretion in admitting Mooneys prior sexual

assault conviction.



          Judge  Thompson  did not err  in  prohibiting
          Mooney  from introducing evidence of specific
          prior bad acts by S.M.

          Mooney argues that Judge Thompson erred in refusing  to

allow  him to elicit testimony from Gwen Hellickson that she  had

seen S.M. steal tip money from tables in the bar where Hellickson

worked as a bartender.   This issue is governed by Evidence  Rule

608.   Evidence  Rule 608 provides that  [t]he credibility  of  a

witness may be attacked ... by evidence in the form of opinion or

reputation.15   The  evidence  so  admitted  is  subject  to  two

limitations:  (1) it may refer only to character for truthfulness

or untruthfulness, and (2) evidence of specific instances of such

conduct   is  inadmissible.16   Earlier  in  the  trial,   Mooney

introduced,  through the testimony of David Rosendin,  that  S.M.

had a reputation for stealing things.  This evidence was properly

admissible  under Evidence Rule 608.  But when Mooney  sought  to

have  his next witness, Hellickson, testify to specific instances

where  S.M.  stole tip money, Judge Thompson properly ruled  that

this  testimony  was inadmissible because it violated  Rule  608s

prohibition against introducing evidence of specific instances of

bad  conduct.   We  accordingly  affirm  Judge  Thompsons  ruling

excluding this portion of Hellicksons testimony.



          Judge Thompson did not err in failing to give
          an  instruction requiring the  jury  to  find
          that Mooney had engaged in a voluntary act

          Mooney  argues  that  it  was  plain  error  for  Judge

Thompson to fail to instruct the jury on the requirement that  it

          had to find that he engaged in a voluntary act in order to

convict him.  But this court will find plain error only where the

error  creates  a  high  likelihood that  the  jury  followed  an

erroneous   theory  resulting  in  a  miscarriage  of  justice.17

As stated in AS 11.81.600(a), a person can not be held criminally

liable  unless that person has performed a voluntary act (or  has

failed  to  perform  an  act  that  the  person  was  capable  of

performing).   The  term voluntary act is defined  in  AS  11.81.

900(b)(62) as follows: a bodily movement performed consciously as

a  result  of  effort  and determination.    In  other  words,  a

voluntary act is a willed movement in the broadest sense of  that

term.18

          Ordinarily, no special instruction is needed concerning

the  requirement  of a voluntary act because this  issue  is  not

disputed.  The recognized exceptions to a voluntary act  are  (1)

reflexive or convulsive movements, (2) movements during sleep  or

unconsciousness,  and  perhaps (3) movements  during  hypnosis.19

Very few criminal cases are defended on such bases.

          Nevertheless,  Mooney  contends  that  Judge  Thompsons

failure  to  give  his  jury an instruction  on  the  concept  of

voluntary act was plain error.  That is, Mooney argues that  even

though  his trial attorney failed to request such an instruction,

any  competent  judge  would  have seen  the  need  for  such  an

instruction  and  would have acted, sua sponte, to  instruct  the

jury on this issue.

          Mooney  argues  that  the facts of  his  case  raise  a

distinct possibility that he  committed no voluntary act.  Mooney

asserts  that, when S.M. ceased fellating him before  he  reached

orgasm,  he  responded with the instinctive, visceral,  knee-jerk

reaction of striking her in the head.

          But  there was no evidence to indicate that Mooneys act

of  striking  S.M.  was  not a willed movement.   Even  accepting

Mooneys  explanation for the assault, his act  of  striking  S.M.

would not qualify as involuntary for legal purposes.

          People  sometimes  speak figuratively  of  a  knee-jerk

          reaction when they mean to describe a response made without

reflection or deliberation.  But for legal purposes,  an  act  is

voluntary  unless  it  is  a  true reflexive  reaction   i.e.,  a

muscular   contraction   that   occurs   spontaneously,   without

intervention  of the conscious brain, when the body is  subjected

to stimulus.20

          Mooney may have been incapable of resisting the impulse

to  strike  S.M.,  but there is no indication  that  his  act  of

striking  her  was  not a willed movement  for  purposes  of  the

criminal  law.  Thus, the fact that Judge Thompson did  not,  sua

sponte, instruct the jury on the definition of voluntary act  was

not plain error.



          Judge Thompson did not commit plain error  in
          failing  to instruct the jury on the  lesser-
          included offense of assault

          Mooney contends that Judge Thompson erred in failing to

give  the  jury a lesser-included instruction on the  offense  of

assault.   But  Mooney concedes that he did not request  such  an

instruction, and he therefore must show plain error.

          Although  simple assault was a possible lesser-included

offense  in this case, Judge Thompson did not commit plain  error

in  declining to give the instruction sua sponte.   In  Heaps  v.

State  this  court adopted the majority rule that a  trial  judge

need not instruct a jury on a lesser-included offense unless  one

or  both  of the parties request it.21  This is true [e]ven  when

[as   here]  the  evidence  clearly  supports  a  lesser-included

offense.22   Adhering to our decision in Heaps, we conclude  that

Judge  Thompson did not commit plain error in failing to instruct

the jury on the lesser-included offense of assault.

          The sentence which Judge Thompson imposed was
          not clearly mistaken

          Judge  Thompson  found that Mooney was  a  third-felony

offender  for purposes of presumptive sentencing.   As  a  third-

felony  offender convicted of sexual assault in the first degree,

Mooney faced a presumptive term of 25 years of imprisonment.23

          Prior   to   sentencing,  the   State   proposed   four

aggravating  factors in Mooneys case: (1) that  a  person,  other

than  an  accomplice, sustained physical injury as  a  result  of

Mooneys  actions,24  (2)  that  Mooneys  prior  criminal  history

included  conduct involving aggravated or repeated  instances  of

assaultive  behavior,25 (3) that Mooney had three or more  felony

convictions,26  and (4) that Mooney had engaged in  the  same  or

other  conduct  involving the same or another  victim.27    Judge

Thompson  found that all of these aggravating factors existed  in

this case.

          Mooney  proposed  three mitigating factors,  and  Judge

Thompson  found that two applied.  First, he found  that  Mooneys

conduct  was  among  the least serious within the  definition  of

first-degree sexual assault.28   Second, he found that Mooney had

assisted  authorities to detect, apprehend, and  prosecute  other

persons who committed an offense.29   Judge Thompson pointed  out

that Mooney had five prior felony convictions.  He considered the

fact  that the prior felony convictions were old and some of them

were arguably not egregious offenses.  But he also considered the

fact  that  Mooney  had  a history of committing  assaults.  Even

though  Judge Thompson found that Mooneys conduct in his  present

conviction  was among the least serious conduct included  in  the

definition  of the offense, he pointed out that it  was  still  a

serious  offense.   He  concluded  that  he  should  impose   the

presumptive  sentence  which  the legislature  established.    He

therefore  imposed the sentence of thirty years with  five  years

suspended.

          As  a preliminary matter, although Mooney concedes that

it  was  proper  for Judge Thompson to consider  his  prior  rape

conviction  from 1981, he argues that Judge Thompson  should  not

have  considered his earlier felony convictions.  But we rejected

an  argument similar to Mooneys in Gilley v. State.30  In  Gilley

we  interpreted  AS  12.55.145(a)(1)(A) to exclude  a  defendants

prior felony if the defendants current offense was committed  ten

years or more after the defendant was discharged from his or  her

          last felony sentence (including any period of probation or

parole).31  But if a defendant had been restricted because  of  a

prior   felony  conviction  within  the  ten-year   period,   the

sentencing  court  was  to consider all of the  defendants  prior

felony convictions for purposes of presumptive sentencing.32   We

conclude  that Judge Thompson did not err in finding that  Mooney

was   a   third-felony  offender  for  purposes  of   presumptive

sentencing.

          Mooney argues that his sentence was excessive.  We have

earlier set out Judge Thompsons reasons for imposing the sentence

which  he did.  We conclude that Judge Thompsons findings support

the  sentence and conclude that the sentence which he imposed  is

not clearly mistaken.33



          Conclusion


          We  conclude that Mooneys claims of error have no merit

and  that  Judge  Thompson was not clearly mistaken  in  imposing

Mooneys  sentence.   We  accordingly AFFIRM  the  conviction  and

sentence.

          AFFIRMED.



_______________________________
     1  476  U.S.  79, 84, 106 S.Ct. 1712, 1716,  90  L.Ed.2d  69
(1986).

     2  See  Powers  v. Ohio, 499 U.S. 400, 111 S.Ct.  1364,  113
L.Ed.2d 411 (1991) (prohibiting the prosecution from exercising a
racially motivated challenge whether or not the person challenged
was  the  same  race as the defendant); Georgia v. McCullum,  505
U.S.  42,  112  S.Ct.  2348, 120 L.Ed.2d 33  (1992)  (prohibiting
criminal  defendants  from  exercising peremptory  challenges  to
exclude  jurors  based on race); Edmonson v.  Leesville  Concrete
Co.,  500  U.S.  614,  111  S.Ct. 2077, 114  L.Ed.2d  660  (1992)
(extending  Batson to private litigants in a civil case);  J.E.B.
v. Alabama ex rel T.B., 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d
89  (2000)  (extending  Batson to prohibit gender  discrimination
during jury selection).

     3  Ford  v. Georgia, 498 U.S. 411, 423, 111 S.Ct. 850,  857,
112  L.Ed.2d  935 (1991) (citing Batson, 476 U.S. at 99-100,  106
S.Ct. at 1724-25).

     4  Id.  (quoting Batson, 476 U.S. at 99 n.24, 106  S.Ct.  at
1725 n.24).

     5 Id.

6  See,  e.g.,  People v. Richardson, 727 N.E.2d 362,  409  (Ill.
2000);  Laney v. State, 515 S.E.2d 610, 612 (Ga. 1999); State  v.
Robinson, 676 A.2d 384, 386-87 (Conn. 1996); State v. Wilson, 868
P.2d  656, 661 (N.M. App. 1993); U.S. v. Cashwell, 950 F.2d  699,
704  (11th Cir. 1992); Pacee v. State, 816 S.W.2d 856, 859  (Ark.
1991);  U.S.  v.  Dobynes, 905 F.2d 1192, 1196  (8th  Cir.  1990)
(cert.  denied  498  U.S. 877, 111 S.Ct. 206, 112  L.Ed.2d  167);
People  v.  Evans, 530 N.E.2d 1360, 1364 (Ill. 1988); Stanley  v.
State, 542 A.2d 1267, 1276 (Md. 1988); Thomas v. State, 517 So.2d
1285,  1287-88  (Miss.  1987).  But see People  v.  Bolling,  591
N.E.2d  1136,  1139 (N.Y. 1992) (holding that a Batson  challenge
can  be  raised  regardless of whether jury  selection  has  been
completed).

     7  See,  e.g., State v. Ford, 39 P.3d 108, 113 (Mont. 2001);
Sorensen v. State, 6 P.3d 657, 662 (Wyo. 2000); Morning v. Zapata
Protein  (USA), Inc., 128 F.3d 213, 216 (4th Cir. 1997); U.S.  v.
Abou-Kassem, 78 F.3d 161, 167 (5th Cir. 1996); State v. Cummings,
838  S.W.2d 4, 6 (Mo. App. 1992); U.S. v. Biaggi, 909  F.2d  662,
679  (2nd Cir. 1990); State v. Harris, 754 P.2d 1139, 1140 (Ariz.
1988); Govt of Virgin Islands v. Forte, 806 F.2d 73, 76 (3rd Cir.
1986).

     8 See March v. State, 859 P.2d 714, 717 (Alaska App. 1993).

9 See Ford, 39 P.3d at 112.

     10   Wardlow v. State, 2 P.3d 1238, 1246 (Alaska App. 2000).

11     The   prosecutor   was  prevented  from   presenting   the
specific  facts  of the prior conviction to the jury   they  were
only made aware of the fact that a prior conviction existed.

     12    Wardlow, 2 P.3d at 1248; McGill v. State, 18 P.3d  77,
81 (Alaska App. 2001).

     13   McGill, 18 P.3d at 81 (quoting Allen v. State, 945 P.2d
1233, 1238 (Alaska App. 1997)).

     14   Allen, 945 P.2d at 1239.

15   Alaska Rule of Evidence 608(a).

     16   Evidence Rule 608(a) & (b) (emphasis supplied).

17    Holiday  Inns  of America, Inc. v. Peck, 520  P.2d  87,  91
(Alaska 1974).

     18    See Rollin M. Perkins & Ronald N. Boyce, Criminal  Law
(3rd edition 1982), pp. 837-38.

     19    Wayne  R.  LaFave, Substantive Criminal Law  (2nd  ed.
2003),  6.1(c), Vol. 1, pp. 426-27.

     20    See  Websters New World Dictionary of American English
(Third  College Edition, 1988), p. 1128: reflex  adj. ...   2  b)
physiol.   designating or of an involuntary action, [such]  as  a
sneeze,  resulting from a stimulus that is carried by an afferent
nerve  to a nerve center and the response that is reflected along
an efferent nerve to some muscle or gland.

     21    30 P.3d 109, 115 (Alaska App. 2001) (declining to find
plain  error  where  the trial court instructed  on  first-degree
assault, but not on the lesser-included charges of second, third,
and fourth-degree assault).

     22   Id. (quoting LaFave, Criminal Procedure (2nd ed. 1999),
24.8(t), p. 591).

     23   AS 12.55.125(i)(4).

24   AS 12.55.155(c)(1).

     25   AS 12.55.155(c)(8).

     26   AS 12.55.155(c)(15).

     27   AS 12.55.155(c)(18)(B).

     28   AS 12.55.155(d)(9).

     29   AS 12.55.155(d)(12).

     30   955 P.2d 927 (Alaska App. 1998).

     31   Id. at 928.

     32   Id. at 930.

     33   McClain v. State, 519 P.2d 811 (Alaska 1974).