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NOTICE
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opinion is published in the Pacific Reporter. Readers
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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
| DAVID MIDDLETON II, | ) |
| ) Court of Appeals No. A-9633 | |
| Appellant, | ) Trial Court No. 3AN-04-402 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2111 July 20, 2007 |
| ) | |
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Philip R. Volland,
Judge.
Appearances: Sharon Barr, Assistant Public
Defender, and Quinlan Steiner, Public
Defender, Anchorage, for the Appellant.
Kenneth M. Rosenstein, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and Talis J. Colberg,
Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
David Middleton II was charged with kidnapping and
first-degree robbery, based on allegations that he and two
accomplices robbed a pizza delivery person at gunpoint, then
forced the victim into a car and drove the victim around the
block, attempting to convince the victim to deliver one more
pizza and then surrender the purchase money to them.
Middleton defended these charges by asserting that the
whole episode was devised by the pizza delivery person, Burim
Limani. According to Middleton, Limani wanted to steal money
from his employer, so he enlisted Middleton and his friends to
make it look as if the money had been taken during a robbery.
The jury rejected this defense and convicted Middleton
of both charges. Middleton now appeals.
As explained in more detail below, Middleton contends
that the jury returned an inconsistent verdict on the kidnapping
charge. Middleton further contends that his robbery conviction
should be set aside because the trial judge refused to instruct
the jury on the lesser offense of third-degree theft.
For the reasons given here, we conclude that the jurys
verdicts regarding the kidnapping charge were not inconsistent,
and we also conclude that Middleton was not entitled to have the
jury instructed on third-degree theft. We therefore uphold both
of Middletons convictions.
The jurys decision on the kidnapping charge
According to the States evidence, Middleton
approached Limani in a parking lot. Middleton was
holding a handgun, and he demanded that Limani turn
over his money. Then, after Limani surrendered
approximately $90 in cash to Middleton, Middleton
pointed the gun at Limani and ordered him to get into a
car, where his two accomplices were waiting. The
robbers drove Limani around in the car for a short
while, and then they returned him to the parking lot.
At this point, Middleton instructed Limani to deliver
another pizza and then turn the money over to them.
Limani refused to do this. Instead, Limani told
Middleton and his accomplices to just take the pizza.
Apparently, Middleton and his friends were not in the
mood for pizza; they simply drove away (without the
extra money or the pizza).
At trial, the defense attorney argued that
Middletons act of forcing Limani into the car and then
driving him around for a short time was so incidental
to the robbery that it could not legally support a
separate conviction for kidnapping.
This Courts decision in Hurd v. State, 22
P.3d 12 (Alaska App. 2001), contains an extensive
discussion of the law on this point. See Hurd, 22 P.3d
at 13-15 & 18-19. In particular, the Hurd decision
lists five factors that juries must consider when
deciding whether an act of restraint committed during
an assaultive felony can support a separate conviction
for kidnapping, or whether that act of restraint should
be deemed merely incidental to the accompanying felony.
Id. at 19.
Middletons jury received an instruction
Instruction Number 17 based on the five Hurd factors.
This instruction told the jurors that, before Middleton
could lawfully be convicted of kidnapping, the State
had to prove that Middleton restrained Limani and
that, in this context, the word restrained meant
restrained the victim for a period of time[,] or moved
the victim a greater distance[,] than was necessary to
accomplish the target crime [of robbery].
Instruction 17 then continued by quoting the
five Hurd factors:
In making [this] decision[,] you may
consider the following factors:
1) how long the victim was restrained;
2) if the victim was moved, how far and
where the victim was taken;
3) whether, under the facts, the
restraint exceeded what was necessary for the
commission of the defendants target crime;
4) whether the restraint significantly
increased the risk of harm to the victim
beyond the risk of harm inherent in the
target crime itself; and
5) whether the restraint had some
independent purpose, for example, whether the
restraint made it significantly easier for
the defendant to commit the target crime or
made it significantly easier for the
defendant to escape detection.
(Quoting Hurd, 22 P.3d at 19.)
During the jurys deliberations, the
jurors asked a series of questions indicating
that they were having difficulty deciding
whether Middletons restraint of Limani
qualified as a separate offense of
kidnapping. Then, toward midday on the third
day of deliberations, the jurors sent a note
to the court which read:
We agree that the condition of restraint
was met. [However, we] can not agree that
[the] restraint was intended to facilitate
[Middletons] flight. [Is it sufficient that]
the victim was restrained before or after the
robbery[?]
Superior Court Judge Philip R.
Volland answered this question by directing
the jurors to Instructions 17 and 18. (We
have already quoted Instruction 17.
Instruction 18 contained the basic definition
of restrain.) Judge Volland then continued:
If you agree that the condition of
restraint was met as defined in these
instructions, then the restraint [required
for kidnapping] can occur before or after the
[accompanying] felony so long as you find
that [this] restraint was with the intent to
facilitate the commission of the felony.
About an hour and a half later, the
jurors announced that they had reached a
verdict. (The jury had, in fact, found
Middleton guilty of both kidnapping and
robbery.)
After the jurors announced that
they had reached a decision, but before the
jurys verdicts were announced in court,
Middletons attorney asked Judge Volland to
submit a special interrogatory to the jurors
in the event that they found Middleton guilty
of kidnapping. Specifically, the defense
attorney wanted the jurors to specify which
of Middletons acts (apart from the robbery
itself) constituted the offense of
kidnapping.
In response, the prosecutor
suggested an alternative: an interrogatory
that would not ask the jurors to divulge the
details of their decision, but which would
simply ask the jurors, Did [you] unanimously
find that the restraint [in this case] was
more than merely incidental to the commission
of the robbery?
After discussing this issue a
little more with the parties, Judge Volland
agreed to give the prosecutors suggested
interrogatory to the jurors in the event that
the jurors found Middleton guilty of
kidnapping.
As already explained, the jurors
did find Middleton guilty of kidnapping and
Judge Volland therefore required them to
return to their deliberations and answer the
special interrogatory.
The problem with this special
interrogatory as Judge Volland and the
parties were soon to discover is that it
asked the jurors to declare whether
Middletons restraint of Limani was more than
merely incidental to the commission of the
robbery, but there was no jury instruction
that informed the jurors what merely
incidental meant.
Lawyers and judges familiar with
the Hurd decision would understand this
concept of an incidental restraint. They
would understand that Middletons restraint of
Limani would be incidental to Middletons
commission of the robbery if, under the five
Hurd factors, the restraint of Limani was not
sufficiently distinct from the robbery to
support a separate conviction for kidnapping.
But no one explained this to the
jury. In particular, no one told the jurors
that the word incidental had a special legal
meaning in this context. Instead, the jurors
were left to answer Judge Vollands special
interrogatory using the everyday meaning of
incidental. This everyday meaning, according
to Websters New World College Dictionary, is
happening as a result of[,] or in connection
with[,] something more important.1 It is
therefore hardly surprising that, when the
jurors announced their answer to the special
interrogatory, they declared that Middletons
restraint of Limani was merely incidental to
the robbery.
After asking the jurors to return
to the jury room for a few minutes, Judge
Volland told the parties that he considered
the jurors answer to the special
interrogatory to be inconsistent with their
verdict on the kidnapping charge. The judge
then asked the parties to offer suggestions
on what to do.
Middletons attorney asked Judge
Volland to dismiss the jury, vacate the
kidnapping conviction, and enter a judgement
of acquittal on that count of the indictment.
However, the prosecutor belatedly recognized
and pointed out the problem. She told the
court,
That language [about merely incidental]
is specialized language that applies to
kidnapping. But [Instruction] 17 doesnt have
that language. ... Its my fault [because I
was the one who proposed the wording of the
special interrogatory]. But ... I imagine
that thats the source of their confusion ...
.
Judge Volland ultimately agreed
with this analysis. That is, he agreed that
the use of the phrase merely incidental in
the special interrogatory was probably
confusing to the jurors, and he further
agreed that the real question was whether the
jurors unanimously concluded that Middletons
restraint of Limani qualified as a restraint
under the test described in Instruction 17.
(This was the instruction that listed the
five Hurd factors, and that required the
jurors to decide whether Middleton restrained
Limani for a period of time[,] or moved [him]
a greater distance[,] than was necessary to
accomplish the target crime [of robbery].)
Accordingly, Judge Volland directed
the jurors to answer the following question:
Did [you] unanimously find that the restraint
in the kidnapping was as defined in
Instruction No. 17? The jurors answered yes.
Based on this answer, Judge Volland accepted
the jurys guilty verdict on the kidnapping
charge.
On appeal, Middleton argues that
the jurors answer to the special
interrogatory is simply inconsistent with
their guilty verdict on the kidnapping charge
because if the jurors found that Middletons
restraint of Limani was merely incidental to
the robbery, then the jurors could not
lawfully find Middleton guilty of the
separate offense of kidnapping.
But when verdicts are challenged
for inconsistency, the verdicts must be
evaluated in light of the instructions that
the jury received.2 As Judge Volland
recognized, the purported inconsistency
between the jurors answer to the special
interrogatory and their verdict finding
Middleton guilty of kidnapping arises only
because no one ever explained to the jurors
that, in this specialized context, an
incidental restraint is a restraint that does
not satisfy the test set forth in Instruction
17. In other words, incidental is shorthand
for a legal conclusion; it is the legal label
that we apply to a restraint that will not
support a separate conviction for kidnapping
under the five-factor Hurd test.
Once Judge Volland recognized this
problem, he asked the jurors directly whether
they unanimously found that Middletons
restraint of Limani qualified as a restraint
that would support a separate conviction for
kidnapping under the test contained in
Instruction 17. When the jurors answered
yes, this resolved the seeming inconsistency
between the jurors earlier answer to the
special interrogatory and their verdict
finding Middleton guilty of kidnapping.
Accordingly, we uphold Judge
Vollands decision to accept the jurors
kidnapping verdict.
Judge Vollands refusal to instruct the jury on the
lesser offense of third-degree theft
As explained above, Middletons defense at
trial was that there was no robbery and there was
no kidnapping. Rather, the whole episode was an
elaborate scheme, concocted by Limani, to steal
money from his employer (the pizza parlor) by
making it appear that the money was taken during a
robbery.
Toward the end of the trial, Middletons
attorney asked Judge Volland to instruct the
jurors on the offense of third-degree theft (i.e.,
theft of less than $500). The defense attorney
argued that, under the facts of Middletons case,
theft was a lesser included offense of robbery
because, if the jurors accepted the defendants
version of the facts, then Middleton should be
acquitted of kidnapping and robbery, but he should
be convicted of theft (as Limanis accomplice).
Judge Volland concluded that third-degree
theft was not a proper lesser included offense of
the robbery charge, and we agree (although not for
the same reasons that Judge Volland gave).
Under the facts presented here, theft was not
a lesser offense included within Middletons robbery of
Limani. Rather, theft was an additional offense that
could have been brought against Middleton.
To prove robbery, the State had to prove that
Middleton took or attempted to take money from Limanis
immediate presence and control, and that Middleton used
force or the threat of force to prevent or overcome
resistance to the taking, or to prevent or overcome
resistance to Middletons retention of the money after
the taking, or to compel Limani to deliver the money or
to engage in any other conduct that would aid in the
taking of the money. See AS 11.41.510(a).
To establish theft, the State would have to
prove two elements that are not included in a charge of
robbery: the value of the property, and the robbers
intent to permanently deprive. Moreover, under
Middletons version of the facts, the victim of this
theft would not be Limani (who, according to the State,
was the victim of the robbery). Rather, Middleton
asserted that the victim of the theft was someone
completely different: Limanis employer, the owner of
the pizza parlor.
We have held that a lesser offense is not
included within a charged offense if the proposed
lesser offense actually constitutes a separate crime
for which the defendant might have been separately
convicted.3 Here, Middleton could have been charged
with both the robbery of Limani and the theft of money
from the pizza parlor because the robbery consisted of
the assault upon Limani for the purpose of taking money
from his immediate presence and control, but the money
that Limani was carrying belonged to the pizza parlor.
See, for instance, Ward v. State, 120 P.3d
204, 206-08 (Alaska App. 2005), Paige v. State, 115
P.3d 1244, 1246 (Alaska App. 2005), McGrew v. State,
872 P.2d 625 (Alaska App. 1994), and George v. State,
836 P.2d 960, 961 (Alaska App. 1992), where we upheld a
defendants separate convictions for robbery and theft.
For this reason, the lesser offense of third-
degree theft was not a lesser included offense within
the charge of robbery.
In addition, any error in failing to instruct
the jury on third-degree theft was harmless under the
facts of Middletons case. Middleton proposed that the
jury be instructed on third-degree theft so that there
would be a verdict available to them in case they
believed Middletons assertion that he and Limani were
in cahoots that there was no robbery and there was no
kidnapping, but rather an elaborately concocted plan to
steal money from the pizza parlor.
But it is clear that the jury rejected
Middletons proposed version of the facts because the
jurors found Middleton guilty of kidnapping. This
being so, any arguable error in failing to offer the
jurors third-degree theft as an alternative to robbery
is harmless.
Conclusion
The judgement of the superior court is
AFFIRMED.
_______________________________
1Websters New World College Dictionary (Fourth Edition,
2004), p. 721.
2See Brown v. Anchorage, 915 P.2d 654, 660 (Alaska App.
1996); Hansen v. State, 845 P.2d 449, 456-57 (Alaska
App. 1993).
3See Dolchok v. State, 763 P.2d 977, 980-81 (Alaska App.
1988); Hartley v. State, 653 P.2d 1052, 1054-55 (Alaska App.
1982).
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