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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| SHANE R. C. HARAPAT, | ) |
| ) Court of Appeals No. A-9091 | |
| Appellant, | ) Trial Court No. 3PA-03-1098 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2137 December 28, 2007 |
| ) | |
Appeal from the Superior Court, Third Judi
cial District, Palmer, Eric Smith, Judge.
Appearances: Paul E. Malin, Assistant Public
Defender, and Quinlan Steiner, Public
Defender, Anchorage, for the Appellant.
Blair M. Christensen, 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.
Sixteen-year-old Shane R. C. Harapat shot and killed
his friend, Kenny Alcantra, while the two were alone in Harapats
bedroom. The State charged Harapat with second-degree murder,
alleging that the shooting occurred while Harapat was engaged in
gunplay that manifested an extreme indifference to the value of
human life. Harapat defended by asserting that the shooting was
an accident, and that he should be convicted only of criminally
negligent homicide. Harapat contended that he had been spinning
the cylinder of the handgun when Alcantra asked to see the
weapon, and that while Harapat was handing the revolver to
Alcantra, his finger slipped and lost its grip on the revolvers
raised hammer causing the hammer to fall and the weapon to
discharge.
The jury acquitted Harapat of second-degree murder, but
they also rejected Harapats argument that the shooting amounted
only to a criminally negligent homicide. Instead, the jury
convicted Harapat of manslaughter.
Harapat raises two claims on appeal. First, Harapat
attacks his conviction by arguing that the State should not have
been allowed to introduce evidence of other instances in which
Harapat played around with guns or jokingly threatened to shoot
someone. (In the alternative, Harapat argues that even if this
evidence was properly admitted, the trial judge committed plain
error by not giving the jury a cautionary instruction concerning
this evidence.) Second, Harapat attacks his sentence, arguing
that Superior Court Judge Eric Smith should have sent his case to
the statewide three-judge sentencing panel because of Harapats
extraordinary potential for rehabilitation.
For the reasons explained here, we conclude that Judge
Smith did not abuse his discretion when he allowed the State to
introduce evidence of Harapats other acts of carelessness or mock
assault with firearms. However, we agree with Harapat that Judge
Smith should have sent his case to the three-judge sentencing
panel.
Judge Smith properly allowed the State to introduce
evidence of Harapats other careless or dangerous
behavior with firearms
As explained above, the State contended that
Harapat shot Alcantra while Harapat was engaging in
dangerous gunplay that manifested extreme indifference
to the value of human life; Harapat, on the other hand,
contended that the shooting was the result of an
unfortunate accident that occurred while Harapat was
attempting to hand the weapon to his friend.
To support its theory of extreme
indifference, the State sought permission to introduce
evidence that Harapat had pointed guns at other people
in the past. The State offered the testimony of two
witnesses for this purpose.
The first witness was Kelli Alcantra, the
sister of the victim. Ms. Alcantra testified (as an
offer of proof) that Harapat once pointed an unloaded
.44 revolver at her and a friend, and that Harapat
asked them if they were scared. The second witness was
Travis Wells, a friend of Harapats. Wells testified
(again, as an offer of proof) that Harapat had swung
guns in his direction while they were horsing around.
Wells also testified that he and Harapat dry-fired the
.44 revolver, that they sometimes failed to follow the
rules of gun safety, and that they spun the cylinder of
the .44 when the weapon was loaded. The State asserted
that this evidence was admissible under Evidence Rule
404(b)(1) because it proved motive, intent, knowledge,
and absence of accident or mistake.
Based on this offer of proof, Judge Smith
allowed the State to introduce this evidence. Judge
Smith concluded that the evidence was relevant to
determining whether Harapat had purposely pointed the
handgun at Alcantra. Relying on the Alaska Supreme
Courts decision in Adkinson v. State,1 Judge Smith
concluded that evidence that Harapat had previously
intentionally pointed guns at people (while playing or
in mock assault) was relevant to show that Harapat
might have been engaging in similar conduct during the
episode being litigated. Judge Smith also found that
the States proposed evidence was relevant in two other
ways: to show that Harapat disregarded the rules of
gun safety, and to show that Harapat was familiar with
the functioning of the weapon that killed Alcantra.
Finally, Judge Smith ruled that the relevance
of the proposed evidence was not outweighed by its
potential for unfair prejudice. The judge noted that
the proposed testimony was simple and straightforward,
and that it would not take up a lot of time. He also
concluded that the evidence was not likely to deflect
the jury from its proper deliberations.
Under Alaska Evidence Rule 404(b)(1),
evidence of a defendants other bad acts can be admitted
if the evidence is relevant to prove something other
than the defendants character and the consequent
likelihood that the defendant acted true to character
during the episode being litigated.2 Evidence Rule
404(b)(1) lists various potential grounds of relevance
that fall outside the rules ban on character evidence.
Among these are the defendants intent, or the absence
of accident or mistake. Both of these grounds of
relevance were pertinent in Harapats case.
Harapat contended that he was no more than
criminally negligent in the shooting death of his
friend. That is, Harapat disputed the States assertion
that he was aware of, and consciously disregarded, the
risk that his conduct would result in someones death.
(Under the definition of criminal negligence
codified in AS 11.81.900(a)(4), the State must prove
that a reasonable person in the defendants position
would have been aware of the risk, but the State need
not prove that the defendant was personally aware of
the risk. This is the major distinction between
criminal negligence and the next more blameworthy
culpable mental state, recklessness as defined in AS
11.81.900(a)(3). Recklessness requires proof that the
defendant was subjectively aware of the risk and
consciously disregarded it, or that the defendant would
have been aware of the risk but for intoxication.)
Thus, Harapats awareness of the risk to human
life created by his conduct, and his alleged conscious
disregard of that risk, were primary issues at trial.
The States proposed evidence was relevant to these two
issues.
Moreover, another of the central issues at
trial was whether Harapat consciously aimed the
revolver at his friend or whether, instead, the barrel
of the gun was inadvertently pointing toward Alcantra
when the weapon discharged. As was the case in
Adkinson, Harapats past behavior of pointing firearms
at other people was relevant to the jurys resolution of
this issue.
In sum, the States evidence of Harapats past
recklessness with firearms had specific relevance to
the issues being litigated at Harapats trial, apart
from any inference this evidence might raise about
Harapats character. Accordingly, the evidence was not
barred by Evidence Rule 404(b)(1).3
Moreover, Judge Smith could properly conclude
that Harapats prior acts were not so egregious or
shocking as to tempt the jurors to decide Harapats case
on improper grounds e.g., to convict Harapat in order
to punish him for his past acts, or to convict him
simply because the jurors believed that he was a bad
person who was not entitled to the protection of the
law.
Based on this record, we conclude that Judge
Smith did not abuse his discretion when he allowed the
State to introduce this evidence of Harapats past acts.
When Judge Smith issued this ruling, Harapats
attorney did not ask the judge to specially instruct
the jury concerning this evidence for example, by
cautioning the jury against any improper use of this
evidence. On appeal, however, Harapat claims that even
if Judge Smith could properly allow the State to
present this evidence of Harapats past recklessness
with firearms, it was plain error for Judge Smith to
fail to give a cautionary instruction concerning this
evidence.
Harapat bases his argument on this Courts
decision in Bingaman v. State, 76 P.3d 398 (Alaska App.
2003). In Bingaman, this Court held that when a trial
judge allows the State to introduce evidence of a
defendants bad acts under Evidence Rule 404(b)(2),
(b)(3), or (b)(4), the defendant is entitled to a
cautionary instruction an instruction informing the
jury of the limited purposes of this evidence, and
expressly cautioning the jurors that they are not to
convict the defendant based solely on these prior acts.
Id. at 416-17. Harapat argues, based on Bingaman, that
it was plain error for Judge Smith not to give a
similar cautionary instruction to the jurors in
Harapats case.
We reject Harapats argument for two reasons.
First, although the Bingaman decision states
that such a cautionary instruction is mandatory when
the State relies on evidence of other bad acts under
Evidence Rules 404(b)(2), (b)(3), or (b)(4), we later
clarified in Douglas v. State that this instruction is
mandatory only if the defendant requests it, or when
the amount and nature of other-crimes evidence
introduced against the defendant demonstrates that the
failure to give this instruction would amount to plain
error. Douglas, 151 P.3d 495, 503 (Alaska App. 2006).
In other words, Bingaman did not alter the rule that,
in the absence of a defense request for a cautionary
instruction, a trial judges failure to give a
cautionary instruction will require reversal of a
conviction only if the failure amounts to plain error
(as that term was understood before Bingaman).
Second, our requirement of a cautionary
instruction in Bingaman was based on the fact that
Evidence Rules 404(b)(2), (b)(3), and (b)(4) expressly
authorize the admission of other-crimes evidence to
prove the defendants character (and the consequent
likelihood that the defendant acted true to character
during the episode being litigated). In other words,
these three evidence rules are exceptions to the
general rule codified in Rule 404(b)(1) the rule that
evidence of a persons other bad acts is not admissible
if it is being offered solely to prove the persons
character.
Because Rule 404(b)(1) bars evidence of other
bad acts when that evidence is being offered to prove
character, evidence admitted under Rule 404(b)(1) does
not pose the same danger of prejudice to the fairness
of the proceedings as evidence admitted under Rules
404(b)(2), (b)(3), or (b)(4) rules that explicitly
authorize the admission of character evidence. In
Harapats case, the challenged evidence was admitted
under Rule 404(b)(1). Thus, Harapats reliance on
Bingaman is misplaced.
For these reasons, we uphold Judge Smiths
decision to allow the State to introduce evidence of
Harapats other acts of carelessly or dangerously
handling firearms around other people, and we conclude
that it was not plain error for the judge to fail to
give the jurors a special cautionary instruction
concerning this evidence.
Judge Smith should have referred Harapats sentencing to
the statewide three-judge panel
As explained above, the jury convicted
Harapat of manslaughter. Manslaughter is a class A
felony.4 As a first felony offender convicted of
manslaughter, Harapat faced a presumptive term of 5
years imprisonment under Alaskas pre-March 2005
presumptive sentencing law.5
At the sentencing hearing, Harapats attorney
argued that his clients youth, his lack of a prior
criminal record, his high GED scores, and his voluntary
counseling and abstention from guns and marijuana all
supported a finding that Harapat had an extraordinary
potential for rehabilitation. And, based on this non-
statutory mitigating factor, the defense attorney
argued that Judge Smith should not sentence Harapat,
but should instead refer Harapats case to the statewide
three-judge sentencing panel.
See AS 12.55.165(a) (requiring a sentencing
judge to forward a case to the three-judge panel if
manifest injustice would result from failure to
consider relevant aggravating or mitigating factors not
specifically included in AS 12.55.155), and Smith v.
State, 711 P.2d 561 (Alaska App. 1985) (recognizing the
non-statutory mitigator of extraordinary potential for
rehabilitation).
Judge Smith agreed that Harapat had proved
this non-statutory mitigator. Nevertheless, Judge
Smith concluded that he was not required to send
Harapats case to the three-judge sentencing panel.
Judge Smith gave two reasons for this conclusion.
First, Judge Smith declared that, even though
Harapat had proved the non-statutory mitigator of
extraordinary potential for rehabilitation, he was not
required to send Harapats case to the three-judge panel
unless it was manifestly unjust to impose the
presumptive term. Judge Smith then concluded that it
was not manifestly unjust to impose the 5-year
presumptive term in Harapats case because, despite
Harapats rehabilitative potential, the judge concluded
that the sentencing goals of general deterrence and
reaffirmation of societal norms justified a 5-year
sentence.
Second, Judge Smith indicated that he
believed it was important to conclude Harapats
sentencing proceedings that day, rather than delaying
the process by sending Harapats case to the three-judge
panel, because a speedy resolution would provide
closure to the people involved in the case (the
defendant and his family, as well as the victims family
and friends).
Having reviewed Judge Smiths explanation of
his decision, we conclude that it was error for him not
to send Harapats case to the three-judge sentencing
panel.
First, Judge Smith misinterpreted the test
for sending Harapats case to the three-judge panel.
Under AS 12.55.165, there are two discrete situations
that require a sentencing judge to refer a case to the
three-judge panel. The first situation is when the
judge finds that manifest injustice would result from
failure to consider a relevant aggravating factor not
listed in AS 12.55.155(c) or a relevant mitigating
factor not listed in AS 12.55.155(d). The second
situation is when the judge finds that, even after
adjusting the presumptive term to the extent allowed by
AS 12.55.155(a) for the aggravating and mitigating
factors listed in AS 12.55.155(c) and (d), the
presumptive sentencing law still calls for a sentence
that would be manifestly unjust.
In Kirby v. State, 748 P.2d 757 (Alaska App.
1987), we explained the two different analyses that a
sentencing judge must follow, depending on which clause
of AS 12.55.165 might require referral to the three-
judge panel.
When a defendant seeks referral to the three-
judge panel on the theory that any sentence within the
range allowed to a single sentencing judge under the
presumptive sentencing law would still be manifestly
too severe, the sentencing judge must undertake an
analysis of the lower end of the sentencing range
allowed by the presumptive sentencing law either the
presumptive term itself (if no statutory mitigators are
proved), or the utmost adjustment that is possible
under AS 12.55.155(a) based on statutory mitigators.
The question to be answered is whether this lowest
allowed sentence would still be clearly mistaken under
the sentencing criteria first announced by the supreme
court in State v. Chaney6 and now codified in AS
12.55.005. Kirby, 748 P.2d at 762-63.
In contrast, when a defendant seeks referral
to the three-judge panel on the theory that it would be
manifestly unjust to fail to consider a non-statutory
mitigating factor (i.e., a mitigating factor not listed
in AS 12.55.155(d)), the sentencing judge must perform
a different analysis. Here, the question is whether,
because of the presence of this non-statutory
mitigator, it would be manifestly unjust to fail to
make some adjustment (albeit small) to the sentence
allowed by the presumptive sentencing law. As this
Court explained in Kirby,
once the [sentencing] court finds the [non-
statutory] mitigating factor of unusual
prospects for rehabilitation ... , [t]he
court should [assess this mitigating factor]
in light of the totality of the circumstances
and in light of the Chaney sentencing
criteria to determine whether the presumptive
term should be adjusted. The court should
deny referral to the three-judge panel only
when it concludes that no adjustment to the
presumptive term is appropriate in light of
the factor.
Kirby, 748 P.2d at 765 (emphasis added).
In Bossie v. State, 835 P.2d 1257
(Alaska App. 1992), this Court reiterated the
test that applies to these latter situations:
the question is whether, when ... the non-
statutory mitigator [is] evaluated together
with the other circumstances of the case in
light of the Chaney sentencing criteria, [the
presence of the non-statutory mitigator]
plainly call[s] for some adjustment (no
matter how small) to the sentence that would
normally be allowed under the presumptive
sentencing law. Id. at 1259.
In Harapats case, Judge Smith found
that Harapat had proved the non-statutory
mitigator of extraordinary potential for
rehabilitation, but the judge then declined
to send Harapats case to the three-judge
panel because he concluded that the
applicable 5-year presumptive term was not
manifestly unjust. This was the wrong test.
The potential injustice of the lowest
allowable sentence is the determining factor
when a defendant seeks referral to the three-
judge panel under the other clause of the
statute i.e., when the defendant argues
that, even after adjusting the presumptive
term to the extent allowed by AS 12.55.155(a)
for the aggravating and mitigating factors
listed in AS 12.55.155(c) and (d), the
presumptive sentencing law still calls for a
sentence that would be manifestly unjust.
As explained in Kirby and Bossie,
the question that Judge Smith should have
asked was whether, because of the non-
statutory mitigator, it would be manifestly
unjust to fail to make some adjustment to the
otherwise allowable sentence. In Harapats
case, because no statutory mitigators were
proved, the otherwise allowable sentence was
the unadjusted presumptive term of 5 years
imprisonment i.e., 5 years in prison without
eligibility for discretionary parole.7
As noted above, when Judge Smith
ruled that it would not be manifestly unjust
to impose this 5-year presumptive term, he
indicated that part of the basis for his
conclusion was the need to bring closure to
the sentencing proceedings. But while it is
desirable to bring closure to criminal
proceedings, this goal must not be employed
to defeat a defendants rights at sentencing.
In particular, the perceived desirability of
bringing speedy closure to sentencing
proceedings is not relevant to a sentencing
judges decision under AS 12.55.165.
We held in Kirby that, when AS
12.55.165 requires a sentencing judge to
assess the potential manifest injustice of
imposing the term of imprisonment normally
authorized by the presumptive sentencing
rules, or of failing to consider a non-
statutory mitigating factor, the statute is
referring to an evaluation of the facts of
the case under the Chaney sentencing criteria
(the sentencing criteria now codified in AS
12.55.005).8 The desirability of bringing
closure to a criminal proceeding is not among
the factors listed in this statute.
Nor should it be. While all would
agree that criminal matters should be handled
as expeditiously as reasonably possible
(while honoring the procedural rights of the
parties), the basic question posed under AS
12.55.165 is whether, given the particular
facts of the defendants case, the normal
rules of presumptive sentencing i.e., the
limitations on the term of imprisonment that
a single sentencing judge can impose, and the
limitation on the aggravating and mitigating
factors that a single sentencing judge can
consider will lead to an unjust sentence.
If a sentencing judge concludes that the
normal rules of presumptive sentencing will
lead to an unjust sentence, then AS 12.55.165
requires the sentencing judge to refer the
defendants case to the three-judge sentencing
panel. Of course, this will delay the
ultimate disposition of the case. But the
goal indeed, the requirement of imposing a
fair sentence is far more important than the
desirability of bringing the case to a speedy
close.
The remaining question is whether
this Court should remand Harapats case to the
superior court with directions to reconsider
Harapats request for a referral to the three-
judge sentencing panel, or whether this Court
should directly order that referral now.
Having considered the entire record, we
conclude that we should order the referral
ourselves, because it would be clearly
mistaken to fail to refer Harapats case to
the three-judge panel.
We reach this conclusion for
several reasons. First, Judge Smith found
the non-statutory mitigating factor of
extraordinary potential for rehabilitation,
and that finding is not challenged here.
Second, no statutory mitigators were proved
so, unless some adjustment is made on account
of the non-statutory mitigator, Harapat must
receive the 5-year presumptive term specified
by former AS 12.55.125(c)(1). And third, as
this Court explained in Lloyd v. State, 672
P.2d 152 (Alaska App. 1983), when the issue
is close, sentencing judges should send a
defendants case to the three-judge sentencing
panel:
As the only state-wide body specifically
charged with the responsibility of
determining the existence of manifest
injustice, the three-judge sentencing panel
is in a unique position to establish a
uniform approach to identifying cases in
which manifest injustice would result from
imposition of a presumptive term. The
ability of the three-judge panel to function
successfully, however, will depend upon an
appropriate level of referral to the panel by
individual sentencing judges. ... [T]he
panel will obviously be powerless to apply
its policies to a case potentially involving
manifest injustice if a referral is not
ordered by the original sentencing judge. We
recognize that the referral to the
three-judge panel should occur only in
exceptional cases. However, where the issue
of manifest injustice appears to be a close
one, we would urge sentencing judges to
resolve any doubt in favor of a referral
pursuant to AS 12.55.165.
Lloyd, 672 P.2d at 155.
For these reasons, we direct the
superior court to refer Harapats case to the
three-judge sentencing panel.
In ordering this referral, we
express no opinion as to whether the three-
judge panel should adjust the 5-year
presumptive term. As we noted in Kirby, 748
P.2d at 767, and in Winther v. State, 749
P.2d 1356, 1360 (Alaska App. 1988), the three-
judge panel is authorized to independently re-
evaluate the facts of Harapats case. In
particular, the panel is not bound by Judge
Smiths conclusions concerning Harapats
prospects for rehabilitation, and, even if
the three-judge panel agrees that this non-
statutory mitigator is proved, it can reach
its own assessment of whether manifest
injustice would result from failure to adjust
Harapats sentence on account of that factor.9
We merely hold that, given Judge
Smiths finding of the non-statutory
mitigator, and considering that mitigator in
light of the other circumstances, it would be
clearly mistaken not to refer Harapats case
to the three-judge panel.
Conclusion
We AFFIRM Harapats manslaughter conviction.
However, the superior courts decision not to refer
Harapats case to the statewide three-judge
sentencing panel is REVERSED. The superior court
is directed to refer Harapats case to the three-
judge panel.
_______________________________
1 611 P.2d 528, 531-32 (Alaska 1980).
2 Bingaman v. State, 76 P.3d 398, 403 (Alaska App. 2003);
Beaudoin v. State, 57 P.3d 703, 707-08 (Alaska App. 2002);
Smithart v. State, 946 P.2d 1264, 1270-71 (Alaska App.
1997), reversed on other grounds, 988 P.2d 583 (Alaska
1999).
3 See Laidlaw Transit, Inc. v. Crouse, 53 P.3d 1093, 1103
(Alaska 2002); Clark v. State, 953 P.2d 159, 163 (Alaska
App. 1998); Hoffman v. State, 950 P.2d 141, 147 (Alaska App.
1997); Smithart v. State, 946 P.2d 1264, 1272 (Alaska App.
1997) all standing for the proposition that evidence of a
persons other bad acts is admissible under Evidence Rule
404(b)(1) if this evidence has case-specific relevance apart
from its tendency to prove something about the persons
character.
4 AS 11.41.120(b).
5 Former AS 12.55.125(c)(1) (pre-March 2005 version).
6 477 P.2d 441, 443-44 (Alaska 1970).
7See former AS 33.16.090 100 (pre-March 2005 versions). In
particular, see former AS 33.16.090(b) (c), which
provided that a prisoner who was sentenced under the
presumptive sentencing law was not eligible for
discretionary parole during the legislatively fixed
presumptive term, but was (generally speaking) eligible
for parole during any judge-imposed sentence
enhancement based on aggravating factors.
8Kirby, 748 P.2d at 762, 765.
9See Kirby, 748 P.2d at 767: The three-judge panel is, of
course, free to reevaluate [the record] in determining
whether Kirby has the unusual prospects for
rehabilitation required for application of the [non-
statutory] mitigating factor. The three-judge panel is
not bound by [the sentencing judges] findings[,] nor is
it bound [to accept the] testimony [favoring the
defendant].
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