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Ned, Jr. v. State (08/19/2005) ap-2003

Ned, Jr. v. State (08/19/2005) ap-2003

     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


FREDERICK L. NED JR., )
) Court of Appeals No. A-8721
Appellant, ) Trial Court No. 4FA-03-382 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 2003 August 19, 2005]
)
          Appeal  from the Superior Court, Fourth  Judi
          cial   District,  Fairbanks,  Mark  I.  Wood,
          Judge.

          Appearances:   Marcia E.  Holland,  Assistant
          Public  Defender, Fairbanks, and  Barbara  K.
          Brink,  Public Defender, Anchorage,  for  the
          Appellant.    John  A.  Scukanec,   Assistant
          Attorney    General,   Office   of    Special
          Prosecutions  and  Appeals,  Anchorage,   and
          Gregg  D.  Renkes, Attorney General,  Juneau,
          for the Appellee.

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

          MANNHEIMER, Judge.

          Frederick L. Ned Jr. was convicted of manslaughter  and
sentenced  to  10  years imprisonment with 3 years  suspended  (7
years  to  serve).  In this appeal, Ned claims  that  the  police
obtained  a  statement from him in violation of his rights  under
Miranda v. Arizona.1  He also claims that his sentence is illegal
in  two respects.  First, Ned argues that he was denied his Sixth
          Amendment right to jury trial, as construed in Blakely v.
Washington,2  on some of the questions of fact that the State was
required  to  prove  in  order to support the  judges  sentencing
decision.  Second, Ned argues that the sentencing judge  exceeded
the  scope of permissible restitution when the judge required Ned
to  reimburse the cost of air fare for several people  to  attend
the victims funeral; these people were related to the victim, but
not closely enough to qualify as victims of the offense under  AS
12.55.185(17)(C).
          For  the  reasons explained here, we conclude that  Ned
was  not in custody when he gave his statement to the police, and
therefore  there was no Miranda violation.  With regard  to  Neds
sentence,   we  conclude  that,  consistent  with  Blakely,   the
sentencing judge could impose the applicable presumptive term  of
7  years  to  serve.   However, as we  explain  here,  the  judge
violated state law  specifically, AS 12.55.155(e)  when he relied
on  aggravating factor AS 12.55.155(c)(4) to add an additional  3
years  of  suspended  jail time to Neds sentence.   We  therefore
vacate those 3 suspended years.  Finally, we agree with Ned  that
he  should not have been ordered to reimburse the cost of the air
fare for the people to attend the funeral.

     Underlying  facts pertaining to the Miranda issue,  and
     our resolution of this issue
     
          On  the  afternoon  of August  28,  2002,  in
Allakaket,  Frederick Ned and Brett Stevens decided  to
go for a drive in Neds fathers pickup truck.  The truck
was  in  a state of disrepair:  it had no drivers  side
door,  the trucks front tires were of different  sizes,
the  trucks  front  brakes  and  emergency  brake  were
inoperable, and its rear brakes were badly worn.   Both
Ned  and  Stevens had been drinking heavily  the  night
before  and earlier that morning.  Ned was driving  the
truck, and Stevens was riding in the passenger seat.
          Ned  went to the Allakaket airport and  drove
onto  the  runway.   The  airport  runway  ends  in  an
embankment  with a 20-foot drop to the  marshes  below.
Ned  launched the truck off the end of the runway.  The
truck traveled about 15 to 20 feet through the air  and
landed upside-down.  Ned was uninjured, but Stevens was
killed.
          The Alaska State Troopers were contacted, and
two troopers  Sergeant Scott R. Grasle and Trooper Karl
R.  Main  arrived in Allakaket approximately four hours
after  the accident.  Upon their arrival, the  troopers
briefly  visited  the site of the accident.   Witnesses
informed  them that Ned had been driving, and  that  he
appeared intoxicated.  Then, a few minutes before  8:00
in  the  evening, the troopers went to  Neds  house  to
speak to him.
          Eliza  Ned,  Fredericks mother, answered  the
door.   When the troopers informed Mrs. Ned  that  they
wanted  to  speak to her son, Frederick, she told  them
that  he  was  asleep,  and she directed  them  to  the
          bedroom where Ned was sleeping.
          Trooper Main stood by the bedroom door  while
Sergeant  Grasle went to Neds bed and woke  him  up  by
calling  his name.  When Ned awoke, the troopers  asked
if  they could talk to him.  Ned told the troopers that
he  needed to put on some clothes, so Grasle  left  the
room  and  the  two  troopers waited  in  the  hallway,
talking to Mrs. Ned, while Ned dressed.
          While  the  troopers  were  standing  in  the
hallway, Ned said something to them, apparently  asking
what  the  troopers  wanted to talk about,  and  Grasle
responded,  Yeah,  about the  ...  car  accident.   Ned
asked,  Where?, and Grasle replied, At the end  of  the
runway.
          When  Ned  emerged from the  bedroom,  Grasle
again  asked  Ned, Can we talk to you?,  and  then  the
troopers  accompanied Ned down the hall to  the  living
room, where they sat down.  At this point, the troopers
began  questioning  Ned  about  the  accident  at   the
airport.   Ned  contends that he was in custody  during
this  interview in his living room, and that  therefore
the  troopers  were obliged to warn him of  his  rights
under Miranda.
          Superior  Court  Judge  Mark  I.  Wood,   who
conducted  the  evidentiary hearing into  this  matter,
found  that  although the troopers assured Neds  mother
that  they  had  not come to arrest him,  the  troopers
never explicitly said this to Ned until toward the  end
of  the interview, and the troopers never told Ned that
he   was   under  no  obligation  to  speak  to   them.
Nevertheless,  Judge  Wood concluded  that,  under  the
circumstances,  a  reasonable person in  Neds  position
would  have  believed  that he  was  free  to  end  the
conversation.
          Judge Wood pointed out that the troopers  did
not roust Ned from his bed; rather, they woke him up by
calling  his  name, and then they asked if  they  could
speak  to  him.  When Ned indicated a desire to  dress,
the  troopers left the bedroom and conversed  with  his
mother  in  the hallway while Ned dressed.   The  judge
further found that, when Ned and the troopers walked to
the living room, the troopers took seats at the far end
of  the  room, while Ned seated himself on  the  couch,
close  to  the  door.  In other words,  as  Judge  Wood
explained, there was no trooper standing between  [Ned]
and the door.
          Judge  Wood further noted that the  interview
took  place  in mid-evening in the summer, when  people
were  normally up and about, and that Neds mother  came
in and out of the room during the troopers conversation
with  her  son.  In fact, as Judge Wood found,  Trooper
Main was the one who primarily conducted the interview;
Sergeant Grasle asked a few questions, but he too (like
Neds  mother) was in and out [of the room],  ...  [not]
hovering around.
          Judge  Wood also found that the tone  of  the
interview was polite, and that the questions  that  the
troopers  addressed  to Ned were  non-accusatory.   The
judge  concluded that [t]he pace of the interview,  the
nature  of  the  questions,  [and]  the  tone  of   the
interview all indicated that the troopers were just ...
trying  to get through a very difficult time in a  very
polite and considerate tone.  Judge Wood found that the
circumstances  of  the interview carried  none  of  the
indication[s]  and concerns that the ... Miranda  court
had  about ... heavy-handed interrogation and coercion.
Instead, the interview was conducted in a most  casual,
relaxed  atmosphere, and the troopers were  patient  in
listening to his answers.  According to Judge Wood, the
non-custodial  tenor of the interview was  corroborated
by  the fact that, even though Ned admitted that he had
been  quite  intoxicated when he drove the car  (during
the  interview, some five hours after the incident, Ned
described himself as still being 7 on a scale of  1  to
10), the troopers did not arrest Ned at the end of  the
interview; instead, they left his house.
          We  have  reviewed  the  audio  tape  of  the
troopers  visit to Neds house, as well as the testimony
presented at the evidentiary hearing, and we find  that
this  record  supports Judge Woods characterization  of
what  occurred.  Based on these facts,  we  agree  with
Judge  Wood  that  Ned was not in custody  for  Miranda
purposes during the interview at his house.

Neds claims based on Blakely v. Washington:  underlying
facts

          Ned   was  a  first  felony  offender.    His
offense, manslaughter, is a class A felony.3  Under  AS
12.55.125(c),  a  first  felony offender  convicted  of
manslaughter  faces  a  presumptive  term  of  5  years
imprisonment  unless  their offense  falls  within  the
circumstances  enumerated in AS  12.55.125(c)(2)(B)  or
(2)(C),  in which case the applicable presumptive  term
is 7 years.
          In  Neds  case, the State asserted that  Neds
offense  fell  within  subsection  125(c)(2)(C).   This
subsection  applies when the conduct resulting  in  the
[defendants]  conviction  [for  manslaughter]  involved
driving  while  under  the influence  of  an  alcoholic
beverage.  Neds attorney filed a responsive pleading in
which  the defense attorney acknowledged that the State
was  correct  that Ned was subject to sentencing  under
subsection  (2)(C).   And, because the  parties  agreed
that  Ned  was  subject to the 7-year presumptive  term
specified  in  subsection (2)(C), Judge Wood  sentenced
Ned on this basis.
          Neds attorney also conceded the applicability
of   one  aggravating  factor  under  AS  12.55.155(c):
(c)(4)   that  Ned employed a dangerous  instrument  (a
          motor vehicle) in committing the offense.  Based on
aggravator  (c)(4), Judge Wood increased Neds  sentence
by  adding  3 suspended years to the 7-year presumptive
term.   Thus, Neds final sentence was 10 years  with  3
years suspended.
          Now,   on  appeal,  Ned  (represented  by   a
different   attorney)  contends  that  this   procedure
violated  his  Sixth Amendment right to jury  trial  as
construed in Blakely v. Washington, 542 U.S.  296,  124
S.Ct. 2531, 159 L.Ed.2d 403 (2004).  Ned actually makes
two  Blakely  arguments, both of them  contained  in  a
single conclusory sentence.
          First, Ned asserts that even though his trial
attorney expressly conceded the fact that triggered the
7-year  presumptive  term  (i.e.,  that  Ned  committed
manslaughter while he was driving under the  influence)
and  also  conceded  the  applicability  of  aggravator
(c)(4) (i.e., that Neds offense involved the use  of  a
dangerous  instrument), the sentencing  judge  was  not
authorized   to   rely   on   the   defense   attorneys
concessions.   Ned argues that, because  the  right  to
jury  trial  was  at  stake, the sentencing  judge  was
required  to  address Ned personally  and  obtain  Neds
personal  and  knowing waiver of jury trial   regarding
both of these facts.
          Second,  Ned  asserts that  even  if  he  had
personally  waived  the right to  jury  trial  and  had
personally conceded (a) that he was driving  under  the
influence and (b) that his offense involved the use  of
a  dangerous  instrument,  this  would  not  have  been
enough.  Ned argues that, because Blakely holds that he
had a right to ask for a jury trial on these issues, he
must  also  be  accorded  the right  to  a  grand  jury
indictment  on these issues.  Ned points out  that  his
grand  jury  was never asked to consider these  issues.
Because of this, Ned contends that the sentencing judge
had  no authority to impose the higher presumptive term
or to enhance Neds presumptive term based on aggravator
(c)(4).

Neds  claims  are waived because they are  inadequately
briefed

          As we noted above, both of Neds arguments are
contained  in  a  single  conclusory  (albeit  lengthy)
sentence.4   This  Court and the Alaska  Supreme  Court
have  repeatedly held that arguments presented in  this
sort of conclusory manner are inadequately briefed, and
are therefore waived.5
Even  if Neds claims had not been waived, there was  no
plain   error  when  Judge  Wood  applied  the   7-year
presumptive term, based on a finding that Ned committed
the homicide while driving under the influence

          Even   if   Neds   arguments  regarding   the
          applicability of the 7-year presumptive term had not
been  waived on account of his inadequate briefing,  we
would still find no reversible error.
          In  the  superior court, Ned raised no  claim
concerning  his right to jury trial or his right  to  a
grand  jury  decision as to whether he  killed  Stevens
while  he  was driving under the influence,  or  as  to
whether   the  State  could  prove  aggravator  (c)(4).
Therefore, if Ned is to prevail in this appeal, he must
show plain error.
          We  turn  first  to Neds claim  that  he  was
entitled to a jury trial on the fact that triggered the
higher  presumptive  term under  AS  12.55.125(c)(2)(C)
the  fact that he committed the homicide while  he  was
driving a motor vehicle under the influence.
          Under  Alaska  law (even before  the  Blakely
decision),  if Ned had contested this fact,  the  State
would  have  been obliged to prove this fact  beyond  a
reasonable  doubt.6  This is the same burden  of  proof
that Blakely requires.  Thus, if Alaska sentencing  law
departed  from Blakely, it did so only in  one  respect
that the finder of fact was the sentencing judge rather
than a jury.
          The  United  States Supreme Court  has  ruled
that constitutional errors involving a defendants Sixth
Amendment right to jury trial are not automatic grounds
for  reversal of a criminal conviction.  Rather, courts
must apply a harmless error analysis when assessing the
effect of Sixth Amendment errors.
          For  instance, the case of Johnson v.  United
States,  520 U.S. 461, 117 S.Ct. 1544, 137 L.Ed.2d  718
(1997),  involved  a  defendant who  was  convicted  of
perjury  under the federal statute.  At the  defendants
trial,  the  judge removed the materiality  element  of
perjury  from the jurys consideration and decided  this
element  himself.   The Supreme Court  held  that  even
though   the   judges  action  clearly   violated   the
defendants  right  to  a  jury trial  under  the  Sixth
Amendment,  the  defendant was still obliged  to  prove
plain  error   i.e.,  to prove that  the  judges  error
substantially prejudiced her.7  The Supreme Court  then
held  that,  because the materiality of the  defendants
particular   false   statement  was   undisputed,   the
defendant  had failed to show prejudice, and  thus  the
Court ruled that her perjury conviction should stand.8
          In United States v. Cotton, 535 U.S. 625, 122
S.Ct.  1781, 152 L.Ed.2d 860 (2002), the Supreme  Court
applied  a similar analysis to an Apprendi error.   The
defendants  in Cotton were indicted for, and ultimately
convicted of, conspiring to distribute (and to  possess
with  intent  to  distribute) a  detectable  amount  of
cocaine.  Federal law prescribed a penalty of up to  20
years  imprisonment  for  possession  of  a  detectable
amount  of cocaine with intent to distribute.  However,
at  sentencing,  the  federal  judge  found  (based  on
          testimony presented at the trial) that the defendants
had  actually  possessed more  than  two  kilograms  of
cocaine base.  On the basis of this finding, the  judge
sentenced the defendants to 30 years imprisonment under
a  separate statute that provided much higher penalties
(up to life in prison) for drug offenses involving more
than 50 grams of cocaine base.9
          The  defendants did not object  to  the  fact
that  the  judge increased their sentences based  on  a
fact  that  was not found by the jury.  However,  while
the  defendants case was on appeal, the  Supreme  Court
decided  Apprendi  v. New Jersey.10  In  Apprendi,  the
Court held that any fact that increases the penalty for
the  crime beyond the prescribed statutory maximum must
be  submitted to a jury, and proved beyond a reasonable
doubt.11
          Based  on  Apprendi, the  government  in  the
Cotton  appeal conceded that the sentencing  judge  had
violated the defendants Sixth Amendment right  to  jury
trial.   However,  the Supreme Court applied  the  same
harmless error analysis that it had applied in  Johnson
v.  United  States and, using that analysis,  concluded
that the Apprendi error did not require reversal of the
defendants sentences.
          The  Court noted that [t]he evidence that the
[defendants] conspiracy involved at least 50  grams  of
cocaine   base   was   overwhelming   and   essentially
uncontroverted.12  Thus, the Court reasoned,  any  fact
finder   who  concluded  that  the  conspiracy  existed
[s]urely  ... would have also found that the conspiracy
involved  at  least  50 grams of cocaine  base.13   The
Court  therefore concluded that it was not plain  error
for the judge to impose the enhanced sentence.  Rather,
the  Court  declared,  it would  be  a  threat  to  the
fairness, integrity, and public reputation of  judicial
proceedings if, because of a procedural error that  the
defendants did not object to, the defendants were to be
granted  a  reduction of their sentences to the  levels
prescribed for much less serious drug offenses.14
          Like  the  defendants in Johnson and  Cotton,
Ned also asserts that his sentencing judge violated his
right to jury trial under the Sixth Amendment.  We must
therefore engage in a harmless error analysis.
          Under  Alaska sentencing law at the  time  of
Neds   offense  and  sentencing,  he  faced  a   5-year
presumptive  term  for manslaughter  unless  the  State
proved  that  Neds  homicidal conduct involved  driving
under  the influence, in which case Ned faced a  7-year
presumptive term.  We assume, for purposes of argument,
that  Blakely applies to this situation, and  that  Ned
was therefore entitled to a jury trial on this issue of
fact.   However, under Johnson and Cotton, Ned  is  not
entitled to reversal of his sentence unless he can show
that  he  was prejudiced by this error.  At a  minimum,
Ned  must  show that there is a reasonable  possibility
          that the decision on the specified issue of fact would
have been different if Blakely had been complied with.
          As  we noted above, even at the time of  Neds
sentencing (i.e., before the Blakely decision),  Alaska
law required the State to prove any fact that triggered
a  higher  presumptive term beyond a reasonable  doubt.
We can therefore infer, from the defense attorneys pre-
sentencing  concession of this issue, that the  defense
attorney  concluded  that the  evidence  in  Neds  case
established  beyond  a reasonable doubt  that  Ned  had
killed Stevens while driving under the influence.
          The  record shows that, even at the start  of
Neds  trial, his defense attorney had already concluded
that it was pointless to dispute the fact that Ned  was
driving  under  the  influence  at  the  time  of   the
homicide.  Neither in her opening statement nor in  her
summation  did Neds attorney dispute (1) that  Ned  was
driving  the  truck when Brett Stevens was killed,  and
(2)  that  Ned was intoxicated at the time.   Moreover,
the  evidence  presented at Neds trial  provides  ample
support for both of these conclusions.  With regard  to
Neds  level of intoxication, here is a summary  of  the
evidence:
          Neds uncle, Vincent Simon, testified that  he
saw  Ned driving the truck shortly before the accident,
and   that  when  he  saw  Ned  immediately  after  the
accident,  Ned appeared intoxicated.  Eliza  Ned  (Neds
mother)  testified that when Ned came  home  after  the
accident, she could tell he had been drinking, and that
he was drunk.  Trooper Karl Main testified that, during
his  interview with Ned (some four to five hours  after
the homicide), he asked Ned how drunk he was on a scale
of 1 to 10.  Ned replied that he was currently a 7, and
that he had been a 13 the night before.
          Finally,  the State presented testimony  from
an expert who had analyzed a blood sample that Ned gave
to  the  troopers at the conclusion of  his  interview.
This expert testified that Neds blood alcohol level  at
the  time  of his interview with the troopers was  .232
percent   that  is, nearly four times the concentration
of  alcohol that would support a conviction for driving
under the influence (.08 percent).
          Based  on  this record, we conclude that  the
evidence     was    overwhelming    and     essentially
uncontroverted  that Neds blood alcohol  level  was  at
least  .08  percent at the time of  the  accident   and
that, therefore, Ned was driving under the influence as
that offense is defined in AS 28.35.030(a)(2).  Ned has
failed to show that there is any reasonable possibility
that  the  decision on this question  would  have  been
different if the issue had been tried to a jury.
          Thus,    even    assuming   that    it    was
constitutional error under Blakely for  Judge  Wood  to
decide  this  issue (rather than having a  jury  decide
it), Ned has failed to show plain error because he  has
failed  to  show a reasonable possibility that  he  was
prejudiced by the error.
          For similar reasons, we conclude that Ned has
failed  to  show plain error with respect to his  claim
that he was entitled to a grand jury indictment on this
factual issue.
          The  federal Fifth Amendment right  to  grand
jury indictment does not apply to the states; it is not
a component of the due process of law guaranteed by the
Fourteenth Amendment.15  And Ned cites no authority  to
support  his assertion that the Blakely right  to  jury
trial  (a right founded on the Sixth Amendment  to  the
United  States  Constitution) triggers a  corresponding
right   to  grand  jury  indictment  under  the  Alaska
Constitution.  Finally, given the facts of  Neds  case,
there  is no reasonable possibility that a grand  jury,
presented  with these facts, would have found  in  Neds
favor on the issue of whether he was driving under  the
influence when he killed Stevens.

Despite the fact that Ned waived his Blakely attack  on
aggravator  (c)(4) by inadequately briefing the  issue,
there is an obvious independent ground under Alaska law
for vacating the sentence enhancement that Ned received
on account of this aggravator

          As   we   explained  above,   Neds   attorney
conceded,  and  Judge Wood found,  that  aggravator  AS
12.55.155(c)(4)  applied  to  Neds  case  because   Ned
employed a dangerous instrument  i.e., a motor  vehicle
when he committed the manslaughter.
          As  we  also  explained above,  Neds  Blakely
attack on aggravator (c)(4) is inadequately briefed and
is  therefore  waived.  However, the Blakely  issue  is
ultimately  moot.  The superior courts  enhancement  of
Neds  sentence based on aggravator (c)(4) was  improper
for an altogether separate reason.
          Aggravator (c)(4) declares that an offense is
aggravated  if  the  defendant  employed  a   dangerous
instrument  in committing the offense.  In  Neds  case,
the  dangerous instrument was a motor vehicle,  and  it
was obvious that this aggravator applied.16
          But  AS 12.55.155(e) declares that there  are
two  circumstances  in  which  a  sentencing  judge  is
prohibited  from  relying on an applicable  aggravating
factor  to enhance a defendants presumptive term.   The
first circumstance is when the aggravating factor is  a
necessary  element  of the ... offense  for  which  the
defendant  is being sentenced.  The second circumstance
is when the presence of the aggravating factor requires
the    imposition   of   a   presumptive   term   under
AS 12.55.125(c)(2).
          Neds  case  is  an  example  of  this  second
circumstance.   Ned  was  sentenced  to  one   of   the
presumptive  terms  specified  in  AS  12.55.125(c)(2).
          In particular, Ned was subject to a 7-year presumptive
term  under  subsection (c)(2)(C) because he  committed
manslaughter while he was driving a motor vehicle under
the influence.  Because Neds use of a motor vehicle was
a  necessary element of the States proof that  Ned  was
subject to this 7-year presumptive term, Judge Wood was
prohibited from relying on aggravator (c)(4) to enhance
Neds sentence based on this same fact.
          For  this  reason,  Neds  Blakely  attack  on
aggravator (c)(4) would be moot even if it had not been
waived.   As  a  matter of state law,  AS  12.55.155(e)
forbade  the  use of aggravator (c)(4) to enhance  Neds
sentence.
          Aggravator  (c)(4) was the  sole  aggravating
factor  that  Judge  Wood found to  be  proved.   Thus,
without  aggravator (c)(4), Judge Wood had no authority
to   impose   a  sentence  that  exceeded  the   7-year
presumptive term.17  We accordingly vacate the 3  years
of suspended imprisonment that Judge Wood added to Neds
sentence based on this aggravator.

The challenged restitution order

          Many  of Brett Stevenss out-of-town relatives
flew  to  the  village  of  Evansville  to  attend  his
funeral.  As part of Neds sentence, Judge Wood  ordered
Ned to pay restitution for the money spent on these air
fares.
          Ned  points out that many of these  relatives
were  not  so  closely related to Stevens  as  to  fall
within   the   definition  of   victim   contained   in
AS   12.55.185(17)(C).   This  statute,  which  defines
victim  for purposes of homicide cases, states  that  a
victim  is  a  person living in a spousal  relationship
with  the  deceased before the deceased died,  [or]  an
adult  child, parent, brother, sister, grandparent,  or
grandchild  of the deceased, [or] any other  interested
person  [who  has been] designated by a  person  having
[legal] authority to [make the designation].
          Ned  was  ordered  to pay the  air  fares  of
various  family members who attended Stevenss  funeral;
some  of these family members fall within the statutory
definition of victim, and some do not.  On appeal,  Ned
concedes  that Judge Wood could properly order  him  to
pay  restitution  for the travel expenses  incurred  by
family  members  who  qualify  as  victims  under   the
statute.  But Ned argues that it was improper to  order
him to pay the travel expenses of other, more distantly
related  relatives, or the travel expenses of  friends.
Ned   contends   that  these  expenses   were   not   a
sufficiently direct consequence of a homicide.
          The  State  responds  to  Neds  argument   by
pointing  out that, under AS 12.55.045(a),  restitution
is   not  strictly  limited  to  victims.   Rather,   a
sentencing  court is authorized to order the  defendant
          to pay restitution to the victim or other person
injured by the offense.  And the State points out  that
the  air  fares in dispute here were real, quantifiable
expenses which, but for Neds crime, would not have been
incurred.
          As  the  parties acknowledge, there  are  few
decisions  from other states on this point,  and  those
decisions   are   split.   Some  courts   have   upheld
restitution  for travel expenses incurred by  relatives
of  the  deceased,  especially  when  that  travel  was
necessary  not only to attend the funeral but  also  to
put  the deceaseds affairs in order.18  However,  other
courts  have  concluded  that the  travel  expenses  of
relatives   are  too  indirect  a  consequence   of   a
homicide.19
          It   is  true  that,  but  for  Neds  act  of
homicide,  there  would have been no  need  to  hold  a
funeral,  and  thus no need to expend money  on  travel
expenses to attend that funeral.  Judge Wood relied  on
this fact when he imposed the contested restitution.
          But  even  in  a civil lawsuit  for  wrongful
death,   the   test  for  determining  the   defendants
liability for damages is not a but for test, but rather
a proximate cause test.  AS 09.55.580(b) declares:  The
damages  recoverable [in an action for wrongful  death]
shall  be  limited to those which are the  natural  and
proximate consequence of the negligent or wrongful  act
or  omission of another.  In other words, some expenses
are  simply  too  indirectly related  to  the  wrongful
homicide to qualify for reimbursement.
          By  analogy,  we conclude that the  test  for
awarding  restitution in a criminal case is not  a  but
for  test.   If  this were the test   if  a  defendants
liability  for  restitution extended  to  any  and  all
expenses   that  could  be  traced  causally   to   the
defendants  wrongful act  then the scope of restitution
in  a  criminal case would exceed the scope of  damages
that  could  lawfully be awarded in  a  wrongful  death
lawsuit based on the same conduct.  It is true that, in
past decisions, we have recognized that the purpose  of
the  restitution statutes is [to] make full restitution
available  to  all persons who have been injured  as  a
result  of  criminal behavior, to the  greatest  extent
possible.20   Nevertheless, we do not  think  that  the
legislature intended for restitution in criminal  cases
to  exceed  the  restitution that could be  awarded  in
related civil cases.
          Ned  does  not  contest that the  restitution
statute   allows  a  sentencing  judge  to  order   the
defendant  to  repay  the reasonable  expenses  of  the
funeral itself.  And, as we noted previously, there are
court decisions which uphold awards of restitution  for
the   travel   expenses   of  relatives   or   personal
representatives  who  must  settle  or  attend  to  the
affairs of the deceased.  But we have found no cases in
          which restitution has been awarded for all of the money
spent  to bring the deceaseds friends and relatives  to
the funeral.
          We acknowledge that these travel expenses are
real    and    verifiable.    And   in   some    cases,
unquestionably,  these expenses are a hardship  to  the
people  who  pay  them.  But we have significant  doubt
whether  the  travel  costs of all family  members  and
friends  are  a  sufficiently  direct  result  of   the
defendants crime to qualify for restitution.  In  other
words,   we   have   significant  doubt   whether   the
legislature intended for the defendants liability to be
this  broad.   And,  because  we  are  dealing  with  a
question  of  criminal liability, we must  resolve  our
doubt in favor of the defendant.21
          As  explained above, Ned does not contest his
liability  for  the travel expenses of those  relatives
who  qualify as victims under AS 12.55.185(17)(C).  For
this reason, we need not decide whether this portion of
Neds  restitution order was lawful.  However, we vacate
the   portion  of  the  order  directing  Ned  to   pay
restitution for the expense of bringing other relatives
and friends to the funeral.

Conclusion

          Neds  conviction is AFFIRMED.   Moreover,  we
uphold  the  superior  courts  decision  that  Ned  was
subject  to  a 7-year presumptive term of imprisonment.
However,   we   VACATE   the  3  years   of   suspended
imprisonment  that  the superior court  added  to  this
presumptive  term.  In addition, we VACATE the  portion
of  the  judgement that directs Ned to pay  restitution
for  the  travel expenses of relatives and  friends  of
Brett  Stevens who do not qualify as victims under  the
definition contained in AS 12.55.185(17)(C).

_______________________________
     1384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

2542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

3AS 11.41.120(b).

4Here[,]  Mr.  Ned was sentenced to an enhanced  presumptive
[term]  without  being provided with his state  and  federal
right to have a jury determine by a unanimous verdict proved
beyond  a reasonable doubt that the factor used to establish
the  enhanced presumptive [term] of seven years [sic:   this
clause  ends  without a predicate], and  without  his  state
grand  jury  right  to  have the  grand  jury  consider  all
elements  of  any  felony offense,  and  without  the  court
obtaining  a  personal waiver from Mr. Ned  that  he  waived
these   constitutional  entitlements.   (Appellants  Opening
Brief, page 13.)

5Katmailand,  Inc. v. Lake and Peninsula Borough,  904  P.2d
397,  402  n. 7 (Alaska 1995); Petersen v. Mutual Life  Ins.
Co.  of  New York, 803 P.2d 406, 410 (Alaska 1990); Wren  v.
State,  577  P.2d 235, 237 n. 2 (Alaska 1978);  Kristich  v.
State,  550  P.2d  796,  804  (Alaska  1976);  Sheridan   v.
Anchorage,   100  P.3d  898,  900-01  (Alaska  App.   2004);
Guerre-Chaley  v.  State, 88 P.3d 539, 544-45  (Alaska  App.
2004);  Copeland v. State, 70 P.3d 1118, 1126  (Alaska  App.
2003).

6See  Tuttle v. State, 65 P.3d 884, 891 (Alaska App.  2002);
Huf v. State, 675 P.2d 268, 273-74 (Alaska App. 1984).

7Johnson, 520 U.S. at 466-67, 117 S.Ct. at 1548-49.

8Id., 520 U.S. at 468-470, 117 S.Ct. at 1549-1150.

9Cotton, 535 U.S. at 628, 122 S.Ct. at 1783-84.

10530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

11Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-63.

12Cotton,  535  U.S.  at  633, 122 S.Ct.  at  1786  (quoting
Johnson, 520 U.S. at 470, 117 S.Ct. at 1544).

13Id., 535 U.S. at 633, 122 S.Ct. at 1786.

14Id., 535 U.S. at 634, 122 S.Ct. at 1787.

15See  Hurtado v. California, 110 U.S. 516, 4 S.Ct. 111,  28
L.Ed. 232 (1884).

16See,  e.g., Pusich v. State, 907 P.2d 29, 34 (Alaska  App.
1995).

17AS 12.55.125(c).

18See,  e.g.,  State  v. Baltzell, 857  P.2d  1291,  1292-93
(Ariz. App. 1992).

19See,  e.g., Simpson v. State, 712 So.2d 1, 1-2 (Fla.  App.
1997).

20Lonis  v.  State,  998 P.2d 441, 447 n.  18  (Alaska  App.
2000).

21See  Brookins  v.  State, 600 P.2d 12, 17  (Alaska  1979);
Wells  v.  State,  102  P.3d 972, 976  (Alaska  App.  2004);
Whitesides  v. State, 88 P.3d 147, 151 (Alaska  App.  2004);
State  v. ABC Towing, 954 P.2d 575, 579 (Alaska App.  1998);
Magnuson  v. State, 843 P.2d 1251, 1253 (Alaska App.  1992);
State  v. Andrews, 707 P.2d 900, 907-08 (Alaska App.  1985);
State v. Rastopsoff, 659 P.2d 630, 640 (Alaska App. 1983).