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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
TALAILEVA SALIE SITIGATA,
Court of Appeals No. A-10764
Appellant, Trial Court No. 3AN-08-4274 Cr
v.
O P I N I O N
STATE OF ALASKA,
Appellee. No. 2363 - July 20, 2012
Appeal from the Superior Court, Third Judicial District,
Anchorage, Eric A. Aarseth and Peter G. Ashman, Judges.
Appearances: David D. Reineke, Assistant Public Defender,
and Quinlan Steiner, Public Defender, Anchorage, for the
Appellant. Eric A. Ringsmuth, Assistant Attorney General,
Office of Special Prosecutions and Appeals, Anchorage, and
John J. Burns, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger,
Judges.
MANNHEIMER, Judge.
In early 2008, Talaileva Sitigata and another man, Carl Fuavai, jointly
assaulted Kraig Bays by repeatedly punching and kicking him. As a result of this attack,
Bays suffered broken teeth and a broken jaw. Sitagata ultimately pleaded guilty to third-
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degreeassaultunder AS11.41.220(a)(4) -negligentinflictionofseriousphysicalinjury
on Bays by means of a dangerous instrument.
The question presented in this appeal is whether the superior court could,
as part of its sentencing decision, order Sitigata to pay restitution for the expenses
attributable to Bays's broken teeth and jaw.
Sitigata asserts that he did not personally cause these injuries - that his co-
defendant, Fuavai, was the one who inflicted these injuries during the attack. And based
on this factual premise, Sitigata argues that, as a legal matter, he can not be ordered to
pay restitution for these injuries - because the charging document to which he pleaded
guilty did not specify that he was being charged as Fuavai's accomplice.
Sitigata's argument is mistaken as a matter of law. First, when two or more
people jointly engage in an assault, all of the participants are criminally accountable for
any resulting injury or death. Riley v. State, 60 P.3d 204, 211-12 (Alaska App. 2002).
Second, it is irrelevant whether the charging document expressly stated that Sitigata was
being held accountable for the assault as someone else's "accomplice". Alaska law does
not recognize any distinction, either for purposes of pleading or for purposes of proof,
between defendants who are guilty of a crime based on their own personal conduct and
defendants who are guilty of a crime based on the conduct of others for which they are
accountable under AS 11.16.110(2) - or defendants who are guilty based on some
combination of the two. Andrew v. State , 237 P.3d 1027, 1039-1041 (Alaska App.
2010).
Accordingly, it was proper for the superior court to order Sitigata to pay the
challenged restitution.
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Underlying facts
As weexplained above, SitigataandFuavaijointly attacked Bays, and Bays
suffered broken teeth and a broken jaw as a result of the attack.
Based on his participation in this crime, Sitigata was initially indicted for
second-degree assault under AS 11.41.210(a)(2) - i.e., recklessly causing serious
physical injury to another. This charge was ultimately resolved by a plea agreement.
Under the terms of this agreement, Sitigata pleaded guilty to a superseding information
charging him with the lesser crime of third-degree assault under AS 11.41.220(a)(4) -
i.e., negligently causing serious physical injury to Bays by means of a dangerous
instrument.
The original indictment expressly declared that Sitigata was guilty of the
assault either "as principle [sic] or accomplice". However, the information which
replaced the indictment did not contain this language.
As part of its sentencing proposal, the State asked the superior court to
order Sitigata to pay restitution for the expenses attributable to Bays's injuries. Sitigata's
attorney conceded that Sitigata might be responsible for some restitution, but the defense
attorney argued that it would be improper for the court to order Sitigata to make full
restitution for Bays's injuries.
The defense attorney noted that "the vast majority of the [medical] bills ...
appear to be for oral surgery" for the injuries to Bays's teeth and jaw. The defense
attorney argued that even though Sitigata had pleaded guilty to committing third-degree
assault on Bays, Sitigata did not personally inflict the injuries to Bays's teeth and jaw.
And the defense attorney told the court that "there's ... nothing [in the] documents that
[Sitigata] pled to ... to suggest that he's going to be responsible for every single thing that
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happened [to Bays] that day." This was apparently a reference to the fact that the
superseding information did not contain an express reference to accomplice liability.
After listening to the defense attorney's argument, Superior Court Judge
Eric A. Aarseth perceived - and told the parties - that the underlying issue was
whether the restitution for Bays's injuries had to be apportioned based on the individual
actions of Sitigata and his co-defendant Fuavai (as the defense attorney was arguing), or
whether both men could be held jointly liable for all of Bays's injuries, and that it did not
matter whether particular injuries could be attributed to the actions of a particular
defendant (as the State was arguing). The defense attorney agreed that this was the issue
to be decided.
At this point, Judge Aarseth told the parties that his understanding of the
law was that "[when] you've got co-defendants [who have jointly committed a crime],
... [this fact] negates any notion of ... identifying or separating [out] a specific allocation
of responsibility [for each individual co-defendant]." Instead, Judge Aarseth told the
parties, the law holds each defendant jointly responsible for all of the victim's injuries
- and if Sitigata ended up paying a disproportionate share of the restitution, "[his]
recourse [was to] initiat[e] a separate civil action against [his] co-defendant".
However, Judge Aarseth concluded that Sitigata should be given the
opportunity to present legal authority in support of his contention that the restitution
should be individually apportioned, based on the separate conduct of each co-defendant.
For this reason, Judge Aarseth halted the restitution hearing and directed the parties to
brief this issue.
When the restitution hearing reconvened several months later, Judge
Aarseth was apparently unavailable, and thematter was assignedto Superior CourtJudge
pro tempore Peter G. Ashman.
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At this renewed hearing, Sitigata's attorney argued that it was improper to
hold Sitigata responsible for the injuries inflicted by his co-defendant Fuavai because the
charging document - i.e., the superseding information charging third-degree assault, to
which Sitigata pleaded guilty pursuant to the plea agreement - did not contain language
expressly charging Sitigata under a complicity theory.
Judge Ashman ultimately rejected this argument, and he ordered Sitigata
to pay restitution for all of Bays's injuries.
Why we uphold the superior court's decision
In his brief to this Court, Sitigata notes that the restitution statute,
AS 12.55.045(a), authorizes a sentencing court to impose restitution for the losses
attributable to the defendant's "offense". Sitigata contends that the injuries to Bays's
teeth and jaw are not attributable to his offense, and thus the superior court exceeded its
authority when it ordered him to pay restitution for these injuries.
First, Sitigata argues that he pleaded guilty to a "generic" charge of third-
degree assault, in that the charging document did not specify that the victim suffered any
particular kind of harm or injury. While it is true that the superseding information did
not specify that Bays suffered a broken jaw or broken teeth, the superseding information
did expressly charge Sitigata with inflicting serious physical injury on Bays. And under
the facts of this case, the only serious physical injury that Bays suffered was the injury
to his teeth and jaw.
Sitigata next argues that, even though he and his co-defendant Fuavai
jointly participated in the attack on Bays, there is "no credible evidence" that Sitigata (as
opposed to Fuavai) was the one who broke Bays's teeth and jaw. Sitigata notes that the
charging document (i.e., the superseding information) does not expressly state that
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Sitigata was prosecuted under the theory that he acted as Fuavai's accomplice - and
Sitigata contends that, unless he was convicted as Fuavai's accomplice, he can not be
held responsible for the injuries inflicted by Fuavai.
This argument is contrary to Alaska law. In Riley v. State, 60 P.3d 204,
211-12 (Alaska App. 2002), this Court stated that when two or more people jointly
engage in an assault, all of the participants are criminally accountable for any resulting
injury or death.
(We add, for clarification, that even though each participant is accountable
for the results of the assault, whenever a participant's guilt, or the degree of their guilt,
hinges on proof of a particular culpable mental state, each participant's culpable mental
state is evaluated separately. Riley, 60 P.3d at 213-14, 220-21.)
This rule of joint accountability holds true even though the charging
document does not include an express reference to accomplice liability - that is, a
reference to the rules codified in AS 11.16.110(2) for holding one person criminally
accountable for the acts of others.
As we explained in Andrew v. State , 237 P.3d 1027 (Alaska App. 2010),
the common-law distinctions between principals in the first degree, principals in the
second degree, and accessories before the fact have been abrogated under Alaska law.
Andrew, 237 P.3d at 1032-33. Instead, Alaska law follows the Model Penal Code
approach, using the term "accomplice" to refer to all persons who can be held
accountable for the commission of a crime under AS 11.16.100 - whether by virtue of
their own conduct, or by virtue of the conduct of others for which they are responsible
under AS 11.16.110(2), or through a combination of both. Andrew, 237 P.3d at 1029-
1030, 1036.
Alaska law does not recognize any distinction, either for purposes of
pleading or for purposes of proof, between defendants who are guilty of a crime based
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on their own personal conduct and defendants who are guilty of a crime based on the
conduct of others for which they are accountable under AS 11.16.110(2). Andrew, 237
P.3d at 1039-1041. As we explained in Andrew, "it is immaterial whether the elements
of the crime are satisfied by the defendant's own behavior, or by the behavior of another
person for which he is accountable, or by both." Andrew, 237 P.3d at 1037, quoting the
Alaska Criminal Code Revision, Tentative Draft, Part 2 (February 1977), p. 30.
It is likewise immaterial whether the charging document expressly refers
to the defendant as an "accomplice", or whether the charging document otherwise refers
to the defendant's liability for the conduct of others under the rules codified in
AS 11.16.110(2). Even when the charging document makes no mention of vicarious
liability, the State can properly introduce and rely on evidence that the offense was
committed in whole or in part through the conduct of others for which the defendant is
accountable under AS 11.16.110(2). Andrew, 237 P.3d at 1034-35. 1
Accordingly, the injuries to Bays's teeth and jaw are the result of Sitigata's
offense, regardless of whether Sitigata personally delivered the punches or kicks that
caused these injuries. The superior court could properly order Sitigata to pay restitution
for these injuries.
Conclusion
The judgement of the superior court is AFFIRMED.
1 Citing Morris v. State , 630 P.2d 13, 15-16 (Alaska 1981); Scharver v. State, 561 P.2d
300, 302 (Alaska 1977); Baker v. State, 905 P.2d 479, 485-86 (Alaska App. 1995); Miller
v. State, 866 P.2d 130, 137 (Alaska App. 1994).
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