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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
LANOLAN ANDERSON,
Court of Appeals No. A-12294
Appellant, Trial Court No. 3AN-09-05898 CR
v.
O P I N I O N
STATE OF ALASKA,
Appellee. No. 2646 - June 7, 2019
Appeal from the Superior Court, Third Judicial District,
Anchorage, Jack W. Smith, Judge.
Appearances: Krista Maciolek, Law Office of Krista Maciolek,
Inc., Palmer, under contract with the Office of Public Advocacy,
Anchorage, for the Appellant. Michal Stryszak, Assistant
Attorney General, Office of Criminal Appeals, Anchorage, and
Jahna Lindemuth, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, and Allard and Wollenberg,
Judges.
Judge WOLLENBERG.
Lanolan Anderson was convicted of three counts of first-degree assault.
The superior court sentenced him to a composite term of 20 years to serve.
On appeal, Anderson raises several claims. First, Anderson argues that the
court erred in failing to suppress his clothing, which the police seized without a warrant.
----------------------- Page 2-----------------------
Second, Anderson argues that the court erred in instructing the jury regarding a witness's
unavailability. Third, Anderson argues that the court erred in rejecting two of his
proposed mitigating factors and by giving insufficient weight to a third mitigating factor.
Finally, Anderson argues that the court improperly found that Anderson had two prior
felony convictions, rather than one, when determining the applicable presumptive
sentencing range.
For thereasonsexplained inthis decision,wereject Anderson'sclaims, and
we affirm Anderson's convictions and his sentence.
Underlying facts and proceedings
In May 2009, shortly before midnight, Anderson kicked in the front door
of a residence in Anchorage, and he and two accomplices (all three armed with
handguns) entered the residence. Once inside, Anderson's accomplices shot two of the
occupants and pistol-whipped a third. Anderson was also shot during this incident.
All three occupants of the residence required medical treatment for their
wounds, and two of them were taken to Providence Medical Center. Because Anderson
was wounded, he contacted a friend, and this friend also took him to the emergency room
at Providence.
In response to the report of the shooting, Anchorage Police Officer Jean
Mills went to Providence, where she expected to meet and interview the victims of the
alleged home invasion. Mills arrived at the hospital just as Anderson got out of his
friend's vehicle, and Mills could see that Anderson was bleeding from a wound to his
abdomen. From this, Mills assumed that Anderson was one of the victims.
Mills accompanied Anderson into the emergency room and stayed there as
the hospital staff treated him. Mills took photographs of Anderson as the medical staff
worked on him, and she observed a gunshot wound to Anderson's left side when the staff
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cut off his clothing. Anderson at first confirmed that he had been at the residence where
the home invasion occurred, but he later changed his story, telling Mills that he was in
a grocery store parking lot when he was shot.
Another officer then informed Mills that Anderson was a possible suspect
in the home invasion. After some further questioning, Mills seized all of the clothing
that the medical staff had removed from Anderson, including his shoes.
The police subsequently compared aphotograph of thesoles of Anderson's
shoes to photographs of shoe impressions left on the kicked-in front door of the
residence, and they appeared to match. At trial, a witness from the crime laboratory
testified to the match between Anderson's shoes and the shoe impressions on the front
door of the residence. Crime lab representatives also testified that there was a blood stain
on one of the shoes and that one of the victims could not be excluded as a source of the
DNA found in the stain.
Anderson and his two accomplices were charged with numerous felonies,
1
including three counts of first-degree assault (one for each alleged victim).
Prior to trial,
Anderson filed a motion to suppress, arguing that the police unconstitutionally seized his
clothing from the hospital emergency room. Anderson asked the court to suppress his
clothing, as well as photographs of the clothing and the forensic analysis comparing the
soles of his shoes to shoeprints recovered from the crime scene.
The parties agreed to forgo an evidentiary hearing and to have the court
decide the motion based on Officer Mills's police report. Based on the police report, the
superior court found that the seizure of Anderson's clothing was justified by the plain
view exception to the warrant requirement.
1 AS 11.41.200(a)(1).
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Anderson and his co-defendants were tried together. At trial, Anderson
argued that the alleged victims had actually assaulted him.
The jury found Anderson guilty of the three first-degree assaults, but the
jury was unable to reach verdicts on the remaining counts, including counts of first-
degree robbery and conspiracy to commit first-degree robbery. Ultimately, the State
dismissed the remaining counts against Anderson, and his case proceeded to sentencing
on the three assault convictions. (The jury could not reach verdicts as to Anderson's co-
defendants, and their cases were later resolved without a trial.)
At Anderson's sentencing, the superior court rejected Anderson's two
proposed mitigators - that he played a minor role in the offenses, and that his conduct
2
was the result of serious provocation from the victims.
But the superior court did find
that one of the assaults qualified as among the least serious conduct within the definition
3
of the offense.
Anderson conceded one aggravating factor - that he had a history of
4
aggravated assaultive behavior.
Finally, over Anderson's objection, the superior court found that Anderson
had two prior felony convictions for purposes of determining the applicable presumptive
sentencing range. Because the court found that Anderson was a third felony offender,
he was subject to a presumptive sentencing range of 15 to 20 years for each first-degree
5
assault conviction. The court sentenced Anderson to a term of 15 years on each count.
The court imposed some of this time consecutively, giving Anderson a composite
sentence of 20 years, with no time suspended.
2 AS 12.55.155(d)(2) and AS 12.55.155(d)(6), respectively.
3 AS 12.55.155(d)(9).
4 AS 12.55.155(c)(8).
5 Former AS 12.55.125(c)(4) (pre-2016 version).
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Anderson now appeals.
Why we affirm the superior court's denial of Anderson's suppression
motion
Prior to trial, Anderson moved to suppress his clothing, arguing that the
State had no justification for seizing the clothing without a warrant. The parties agreed
that the superior court could decide this motion based solely on Officer Mills's police
report and the parties' briefing - that is, without holding an evidentiary hearing.
Based on the police report, the court concluded that the seizure of the
evidence was lawful because the evidence was in plain view. More specifically, the
court found that (1) Officer Mills was in a place where she was lawfully entitled to be;
(2) the discovery of Anderson's clothing was inadvertent, since Anderson arrived at the
hospital while Mills was waiting for the victims of the home invasion; and (3) the
6
evidentiary relevance of the clothing was immediately apparent.
Before we analyze the superior court's ruling, we must discuss the two
meanings of the phrase "plain view."
In his leading treatise on search and seizure law, Professor Wayne R.
LaFave points out that the phrase "plain view" is actually used in two distinct Fourth
7
Amendment contexts.
6 See Ahvakana v. State , 283 P.3d 1284, 1288 (Alaska App. 2012) (citing Reeves v.
State, 599 P.2d 727, 738 (Alaska 1979)) (noting the three requirements of the plain view
doctrine under Alaska law).
7 1 Wayne R. LaFave, Search and Seizure § 2.2(a), at 597-604 (5th ed. 2012).
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The first context, known as the "plain view doctrine," originated in Justice
8
Stewart's plurality opinion in Coolidge v. New Hampshire.
This doctrine "refers
exclusively to the legal justification . . . for the seizure of evidence which has not been
particularly described in a warrant and which is inadvertently spotted in the course of a
constitutional search already in progress or in the course of an otherwise justifiable
9
intrusion into a constitutionally protected area."
But courts also use the phrase "plain view" in a second context: to describe
the situation "in which there has been no Fourth Amendment search at all," and where
"an observation is made by a police officer without a prior physical intrusion into a
10
constitutionally protected area." In this second context, where the observation of the
evidence is not the result of a Fourth Amendment intrusion, "the observation is lawful
without the necessity of establishing either pre-existing probable cause or the existence
11
of a search warrant or one of the traditional exceptions to the warrant requirement."
As Professor LaFave emphasizes, this second meaning of "plain view"
"involves no intrusion covered by the Fourth Amendment [and] need not meet the three
8 Coolidge v. New Hampshire, 403 U.S. 443, 465-71 (1971).
9 Scales v. State, 284 A.2d 45, 47 n.1 (Md. App. 1971); see also State v. Spietz , 531
P.2d 521, 524 n.11 (Alaska 1975) (recognizing that "the formal 'Plain View' Doctrine, as
announced in Coolidge, is exclusively a post-intrusion phenomenon") (quoting Brown v.
State, 292 A.2d 762, 774 (Md. App. 1972)).
10 LaFave, Search and Seizure § 2.2(a), at 599.
11 Id. at 600; see also Spietz, 531 P.2d at 524 n.11 (noting that the "Plain View" Doctrine
"does not contemplate the non-intrusion visual observation, such as where evidence is in
'open view' and therefore seizable in a 'constitutionally non-protected area'") (quoting
Brown, 292 A.2d at 774).
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----------------------- Page 7-----------------------
12
requirements set out in the Coolidge plurality opinion." For this reason, courts
sometimes describe this second context as "open view" rather than "plain view," to avoid
any ambiguity. 13
When Anderson litigated his suppression motion in the trial court, the State
relied on the Coolidge plain view doctrine to justify the seizure of Anderson's clothing.
But Anderson argued that the Coolidge plain view doctrine did not apply to his case.
Anderson took the position that Officer Mills was lawfully in his hospital
room, and thus the seizure of Anderson's clothing was not the result of a police intrusion
into a constitutionally protected space. Rather, Anderson contended, the only Fourth
Amendment violation that the police committed was the seizure of his clothing.
In other words, Anderson essentially argued that his case fell within the
second category of cases described by Professor LaFave - situations where the police,
acting without a warrant, seize evidence that is in open view.
12 LaFave, Search and Seizure § 2.2(a), at 601; see also McGee v. State, 614 P.2d 800,
806 n.12 (Alaska 1980) ("[I]n non-search situations . . . , the requirement that discovery [of
the evidence seized] be inadvertent is inapplicable. The inadvertent discovery requirement
assures that police will not intentionally expand the permissible scope of an otherwise lawful
search. Where there is no search, there is, a fortiori, no danger that the police will exceed
their permissible limits.").
13 See LaFave, Search and Seizure § 2.2(a), at 599 (noting that this type of plain view
is perhaps "deserving of a different label so as to avoid confusion of it with that discussed
in Coolidge"); State v. Kaaheena, 575 P.2d 462, 466 (Haw. 1978) (distinguishing "[t]he
'open view' doctrine" from the "visually similar, but legally distinct, 'plain view' doctrine");
Scales, 284 A.2d at 47 n.1 (stating that "[n]eedless confusion is frequently engendered by the
employment in many opinions of the same phrase - 'in plain view' - to describe two
visually similar but legally distinct situations[,]" and that it would be preferable to use "some
alternative phraseology such as 'clearly visible,' 'readily observable,' 'open to public gaze,'
etc.").
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"Open view" seizures are not necessarily lawful. While there may have
been no unconstitutional search, the State must still establish that the seizure of the
evidence was justified. It is true that the seizure of an article that is in open view does
not involve any invasion of privacy, but the seizure does invade the owner's possessory
14
interest in the item. As Professor LaFave explains, "the seizure itself constitutes an
15
interference with 'effects' protected by the Fourth Amendment." Thus, in the absence
of a search warrant, "some recognized ground for [a] warrantless seizure . . . must be
present."16
Here, as part of the superior court's ruling on Anderson's suppression
motion, the court found that when Officer Mills seized Anderson's clothing, the
evidentiary relevance of this clothing was "immediately apparent." In this context, the
phrase "immediately apparent" refers to situations where there is probable cause to
17
believe that the object is evidence of criminal activity. Thus, when Anderson and the
14 Horton v. California, 496 U.S. 128, 133-34 (1990).
15 LaFave, Search and Seizure § 2.2(a), at 604.
16 Id. ; see also Soldal v. Cook County , 506 U.S. 56, 66 (1992) (holding that, "the absence
of a privacy interest notwithstanding, '[a] seizure of the article . . . would obviously invade
the owner's possessory interest'" and implicate the Fourth Amendment) (quoting Horton,
496 U.S. at 134); Sheffield v. United States, 111 A.3d 611, 619 (D.C. 2015) ("[T]he Fourth
Amendment protects against unreasonable seizures of property in which the individual has
a possessory interest, even if a privacy or liberty interest is not at issue."); Jones v. State , 648
So.2d 669, 675 (Fla. 1994) ("[E]ven if we were to find that Jones' privacy interests were in
no way compromised, there clearly was a meaningful interference with his constitutionally
protected possessory rights when his effects were seized without a warrant.").
17 United States v. Hamie, 165 F.3d 80, 83 (1st Cir. 1999); see also Arizona v. Hicks,
480 U.S. 321, 326 (1987) (holding that the police must have probable cause to believe an
item is evidence of a crime or contraband when seizing the item pursuant to the "plain view"
doctrine); United States v. Davis, 690 F.3d 226, 237 (4th Cir. 2012) (collecting cases stating
(continued...)
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State litigated whether the evidentiary relevance of Anderson's clothing was
"immediately apparent," they effectively litigated whether the police had probable cause
to believe that Anderson's clothing was evidence of a crime. And when the superior
court found that the relevance of Anderson's clothing was "immediately apparent" to
Officer Mills, the court in essence found that Mills had probable cause to believe that the
clothing was evidence of the home invasion and shootings.
Based on the record before us, we uphold the superior court's finding of
probable cause. Indeed, the record shows that Mills had probable cause to believe that
Anderson's clothing constituted evidence of a crime even before she and Anderson
entered the hospital.
Mills first saw Anderson's clothing while she was waiting for the victims
of the shooting to arrive at the hospital. As Anderson exited his friend's vehicle, Mills
saw that Anderson was wounded in the abdomen and that he was bleeding through his
clothing. At that time, Mills mistakenly believed that Anderson was a victimof the home
invasion. But regardless of whether Anderson was a victim or a suspect, the evidentiary
relevance of his blood-stained clothing was immediately apparent.
(Mills understandably did not seize Anderson's clothing until after he was
being treated in the hospital. And by then, Mills believed that Anderson was a suspect.)
Because the police had probable cause to believe that Anderson's clothing
was evidence of criminal activity, the open view seizure of Anderson's clothing was
lawful. As the United States Supreme Court has said, it is "well settled" that the seizure
17 (...continued)
that "an item need not itself be contraband before it has an 'incriminating nature,' but
instead, an item need only be evidence of a crime"); McGee , 614 P.2d at 806 ("The Fourth
Amendment . . . requires that before seizing an item in plain view, the police must have
probable cause to believe that the item seized is a fruit, instrumentality or evidence of a
crime.").
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----------------------- Page 10-----------------------
of property in open view "involves no invasion of privacy and is presumptively
18
reasonable [if] there is probable cause to associate the property with criminal activity."
In other words, probable cause to believe that an object is evidence of a crime is a
recognized ground for a warrantless seizure, as long as seizing the object does not
19
require any additional Fourth Amendment intrusion.
Other courts have upheld the warrantless seizure of a suspect's clothing
20
under similar circumstances.
18 Payton v. New York, 445 U.S. 573, 586-87 (1980); see also Texas v. Brown, 460 U.S.
730, 748 (1983) (Stevens, J., concurring) ("[I]f an officer has probable cause to believe that
a publicly situated item is associated with criminal activity, the interest in possession is
outweighed by the risk that such an item might disappear or be put to its intended use before
a warrant could be obtained. The officer may therefore seize it without a warrant."); Brown
v. State, 292 A.2d 762, 774 (Md. App. 1972) (noting that the seizure of evidence when there
has been no prior intrusion into a constitutionally-protected zone is permissible without
further justification), cited in State v. Spietz, 531 P.2d 521, 524 n.11 (Alaska 1975) & id. at
525-26 (Erwin, J., concurring).
19 See State v. Ricks, 816 P.2d 125, 125 (Alaska 1991) (distinguishing between the
justified warrantless seizure of a jacket when police had probable cause to believe it
contained contraband and the subsequent search of the jacket, for which the police needed
a warrant); cf. Moore v. State, 372 P.3d 922, 926 (Alaska App. 2016) (noting that "[w]hen
the police have probable cause to believe that an article of luggage contains evidence of a
crime, and when there are no exigent circumstances authorizing an immediate warrantless
search, the police are authorized to seize the luggage (but not search it) and to carry the
luggage away for safe-keeping while they apply for a search warrant").
20 Compare Davis, 690 F.3d at 233-38 (upholding the warrantless seizure of clothing
from the hospital when it was undisputed that the officer was lawfully present in the hospital
room and had lawful access to the clothing, and it was apparent that the patient had been shot
in the leg and that his clothing was beneath his bed); Chavis v. Wainwright, 488 F.2d 1077,
1078 (5th Cir. 1973) (upholding the seizure of clothing from the foot of the stretcher at the
hospital); Sheffield, 111 A.3d at 618-21 (upholding the seizure of clothing from the
defendant's hospital room); People v. Miller, 311 N.E.2d 179, 180 (Ill. App. 1974)
(continued...)
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On appeal, Anderson argues a different Fourth Amendment theory for the
suppression of his clothing. He now contends that it was unlawful for the police to enter
his hospital room. Thus, Anderson argues, his case falls within the first category of plain
view cases described by Professor LaFave - cases where the Coolidge plain view
doctrine applies because the discovery of the evidence was preceded by a Fourth
Amendment search.
But as we have explained, when Anderson's suppression motion was
litigated in the trial court, Anderson did not argue that the hospital room was a
constitutionally protected space, nor did he argue that the police entered that space
20 (...continued)
(upholding the seizure of burned clothing remnants that the officer saw being removed at the
hospital from the defendant, who was suspected of arson); Floyd v. State, 330 A.2d 677, 679
(Md. App. 1975) (holding that the police could validly seize, as evidence of a crime, bloody
clothing cut from the defendant's body prior to his treatment for gunshot wounds), with
People v. Jordan, 468 N.W.2d 294, 299-300 (Mich. App. 1991) (holding that the seizure of
a defendant's clothing from the hospital where he was undergoing surgerywas impermissible
because the clothing was "neither obviously incriminating or contraband"); People v.
Sanders, 47 N.E.3d 770, 777-78 (N.Y. 2016) (holding that the seizure of the defendant's
clothing from the hospital was not supported by probable cause; the defendant, who had been
shot, was dressed in different clothing by the time the officer arrived, and there was no
evidence that the officer knew that the defendant's wounds were located in an area of the
body that would be covered by clothing).
See also 3 Wayne R. LaFave, Search and Seizure § 5.5(c), at 321 (5th ed. 2012)
(noting that "a plain view seizure of personal effects of evidentiary value may also occur, for
example, when those effects are viewed on or near the defendant's person rather than within
premises or a vehicle in which he has a privacy interest, as where clothing of an injured
person at a hospital is seized because it constitutes evidence of a crime committed on or by
that person").
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----------------------- Page 12-----------------------
unlawfully. Under our supreme court's decision in Moreau v. State, Anderson cannot
21
use his appeal to raise new theories for suppression of the evidence.
For these reasons, we affirm the superior court's denial of Anderson's
suppression motion.
Anderson's claim regarding Jury Instruction No. 9B
At trial, outside the presence of the jury, one of the alleged victims invoked
his Fifth Amendment right against self-incrimination. The State declined to grant this
witness immunity, and thesuperior court ruled that thewitness was unavailable to testify.
Over Anderson's objection, the court later instructed the jury that this witness was
unavailable to testify and that the jury should not speculate on the reason for his
unavailability, or speculate as to what he would have said had he testified.
On appeal, Anderson argues that the court's instruction was improper. But
Anderson does not meaningfully explain how this instruction was erroneous, nor does
he explain how the error, if any, prejudiced him.
Alaska Evidence Rule 512(a) declares that a claim of privilege is not a
"proper subject of comment by judge or counsel," and that no inference may be drawn
fromtheexercise of an evidentiary privilege. In addition, Evidence Rule512(c)provides
that "[u]pon request, any party against whom the jury might draw an adverse inference
from a claim of privilege is entitled to an instruction that no inference may be drawn
therefrom." Thus, it appears that, to the extent the jury might have drawn an adverse
21 Moreau v. State , 588 P.2d 275, 280 (Alaska 1978).
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----------------------- Page 13-----------------------
inference from the witness's claim of privilege, the State was entitled to this instruction,
22
even over Anderson's objection.
In an unpublished opinion, Hesch v. State, we noted that there is a split
among jurisdictions as to whether a neutralizing instruction is required when a witness
invokes a privilege outside the presence of the jury and, as a result, the jurors are
23
unaware that the privilege has been asserted. In Hesch, we declined to resolve whether
Alaska Evidence Rule 512(c) entitles a party to the instruction even when the privilege
is invoked outside the presence of the jury because, given the split in authority, the
24
judge's failure to give such an instruction did not constitute plain error.
In this case, we likewise conclude that we need not decide the proper
interpretation of Rule 512, for two reasons.
First, in his briefing, Anderson does not address - or even mention -
Evidence Rule 512, even though this rule was discussed when the parties addressed this
issue in the trial court. We therefore conclude that Anderson has inadequately briefed
25
this claim of error.
Second, Anderson has not identified any actual prejudice that he suffered
from this instruction, beyond the inability to argue the type of adverse inference
precluded by Rule 512. We also note that the court separately instructed the jury
22 See Commentary to Alaska Evid. R. 512(c) ("Whether an instruction shall be given
is left to the sound judgment of counsel for the party against whom the adverse inference may
be drawn. The instruction is a matter of right, if requested.").
23 See Hesch v. State, 2010 WL 1838597, *3 (Alaska App. May 5, 2010) (unpublished).
24 Id. at *4.
25 See Berezyuk v. State, 282 P.3d 386, 399 (Alaska App. 2012) (holding that when an
opening brief "merely mentions a claim, with no substantive argument of the issue, and with
no citation to pertinent legal authority, the claim will be deemed waived").
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----------------------- Page 14-----------------------
(without objection) that it could only consider testimony and exhibits that were actually
admitted as evidence.
Accordingly, we reject Anderson's challenge to Instruction No. 9B.
The proposed mitigators that the superior court rejected
At sentencing, Anderson asked the superior court to find either that he
played a minor role in the assaults or, in the alternative, that he committed the three
26
assaults because of serious provocation from the victims.
The superior court rejected
both of these proposed statutory mitigators.
On appeal, Anderson points out that the jury was unable to reach verdicts
on the charges of first-degree robbery and conspiracy to commit first-degree robbery.
And he notes that his trial attorney argued in closing that there was no robbery or
conspiracy, but in fact the "purported robbery victims assaulted [Anderson]." Fromthis,
Anderson cursorily claims that the superior court could have found either mitigator and
that the court erred in failing to do so.
ButAnderson fails to addressthesuperiorcourt's findings, let aloneexplain
why these findings are erroneous. The superior court found that "[Anderson's] role
wasn't minor because, but for the planning, but for the recruiting, but for the kicking in
the door, but for three people with weapons being present in this residence, none of the
assaults would have occurred." The superior court then emphasized that Anderson "was
involved in the planning. He kicked in the door. He was clearly present[;] the victim's
26 AS 12.55.155(d)(2) and AS 12.55.155(d)(6), respectively.
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----------------------- Page 15-----------------------
blood was on his sweatshirt. So, but for his conduct, there wouldn't have been any
27
assaults."
The superior court therefore rejected the proposed "minor role" mitigator.
Regarding the "serious provocation" mitigator, the court found that the
victims' efforts to defend themselves when their home was invaded by three armed
individuals did not constitute "provocation" mitigating Anderson's conduct.
Anderson has not shown that the superior court's factual findings are
28
clearly erroneous. Based on these facts, we conclude that Anderson failed to prove his
29
proposed mitigators by clear and convincing evidence.
The proposed mitigator that the superior court found
Anderson proposed an additional mitigating factor as to one of his assault
convictions. The superior found this mitigator - concluding that the pistol-whipping
of one of the victims was among the least serious conduct included within the definition
30
of first-degree assault.
27 This sweatshirt was not seized from the hospital but rather from the residence of the
woman who drove Anderson to the hospital.
28 See Michael v. State, 115 P.3d 517, 519 (Alaska 2005) (holding that the existence or
non-existence of a mitigating factor is a mixed question of fact and law; any factual findings
regarding the nature of the defendant's conduct are reviewed for clear error and whether
those facts establish the mitigator is a legal question reviewed de novo).
29 See AS 12.55.155(f)(1) (mitigating factors must be established by clear and
convincing evidence).
30 AS 12.55.155(d)(9).
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----------------------- Page 16-----------------------
On appeal, Anderson argues conclusorily that the superior court "declined
to give [this mitigator] adequate weight" and that Anderson should be resentenced. We
31
conclude that Anderson's briefing is inadequate to preserve this claim of error.
The superior court did not err when it found that Anderson had two prior
felony convictions
The maximum sentence for first-degree assault, a class A felony, is 20
32
years.
At the time Anderson committed his offenses, the presumptive sentencing range
for a second felony offender was 10 to 14 years, and the presumptive sentencing range
33
for a third felony offender was 15 to 20 years. Anderson argues on appeal that the
superior court erred when it found he had two prior felony convictions and was therefore
a third felony offender.
The calculation of the number of a defendant's prior felony convictions for
purposes of presumptive sentencing is governed by AS 12.55.145. Under subsection
(a)(1)(C) of that statute, two or more felony convictions "arising out of a single,
continuous criminal episode" constitute a single conviction if "there was no substantial
change in the nature of the criminal objective" during that episode, and if the defendant
received concurrent sentences for the crimes.
At the time Anderson committed the offenses in this case, he had been
previously convicted (in a single case) of two felonies in the state of Washington:
31 See Petersen v. Mutual Life Ins. Co. of New York, 803 P.2d 406, 410 (Alaska 1990)
("Where a point is not given more than a cursory statement in the argument portion of a brief,
the point will not be considered on appeal.").
32 AS 12.55.125(c). First-degree assault is a class A felony. AS 11.41.200(b).
33 Former AS 12.55.125(c)(3) (2009) and former AS 12.55.125(c)(4) (2009),
respectively.
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----------------------- Page 17-----------------------
manslaughter and second-degree assault, involving two separate victims. In the superior
court, Anderson argued that these twoprior convictions constituteda"singleconviction"
for purposes of AS 12.55.145(a)(1)(C).
Anderson asserted that both convictions arose out of a single "melee" and
that they should therefore be treated as one prior felony conviction for purposes of
presumptive sentencing. Under AS 12.55.145(d), Anderson had the burden of proving
this assertion by clear and convincing evidence.
The only evidence on this issue was a Washington State police officer's
affidavit describing the offenses. This affidavit was part of the presentence report in the
present case.
This affidavit showed that both of Anderson's prior felonies occurred close
in time and were related to each other. During an altercation between Anderson's friend
and another man, Anderson shot and killed the other man. Then, when a friend of the
gunshot victim intervened, Anderson pistol-whipped this person. Anderson pleaded
guilty to manslaughter for the shooting and to felony assault for the pistol-whipping. He
received concurrent sentences.
The superior court found that these two prior felony convictions were
separate for purposes of presumptive sentencing. The court acknowledged that
Anderson received concurrent sentences in the Washington case, but the court
nonetheless found that, although the convictions likely arose from a single, continuous
course of conduct, there was a substantial change in the nature of Anderson's criminal
objective when he pistol-whipped the second man. That is, the superior court found that
Anderson shot the first victim, but then pistol-whipped the second victim only when that
person intervened. The superior court found that the legislature did not intend for this
type of circumstance to be treated as a single conviction with a single criminal objective.
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----------------------- Page 18-----------------------
On reconsideration, the court made further findings. The court found that
Anderson's initial objective was to "assault the decedent," but that Anderson did not
appear to contemplate or even consider assaulting the second person until that person
lunged at him, and Anderson tried to "fend" him off. The court therefore rejected
Anderson's characterization of the incident as a continuing "melee," finding that it
involved "a new victim, a new purpose, and a new act," and that Anderson had put forth
no evidence to contradict these findings.
The superior court contrasted Anderson's case with an example given in
the legislative commentary to AS 12.55.145. In the commentary, the legislature
explained that "the breaking and entering of a building with the intent to commit theft"
(burglary) and the resulting "taking of property in the building" (theft) would constitute
34
a single prior conviction for presumptive sentencing purposes. The legislature noted
that, under those circumstances, the crimes shared a single criminal objective: to obtain
35
property. In contrast, the court in this case noted that the original criminal objective of
Anderson's prior shooting did not extend to the second assault.
On appeal, Anderson renews his claim that his prior convictions were part
of a "street brawl" with a singular criminal objective to engage in assaultive behavior.
But given the evidence presented at sentencing, the trial court did not clearly err in
finding that Anderson had failed to prove that he had a singular criminal objective.
We note that under AS 12.55.127(c)(2), when a defendant is convicted of
two or more counts of homicide in any degree, or of assault in any degree, the defendant
must receive some amount of consecutive term of imprisonment for each count.
34 Commentary to Alaska's Revised Criminal Code, 1978 Senate Journal Supp. No. 47
(June 12), at 156-59.
35 Id.
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Consequently, if an Alaskan defendant were to be convicted of the same two felonies for
which Anderson was convicted in the State of Washington, those two felonies could
never qualify as a single prior felony offense under AS 12.55.145(a)(1)(C).
We note, too, that the Washington Supreme Court has held that crimes
involving separate victims do not qualify as the "same criminal conduct" (and thus, do
not constitute a single conviction) for purposes of calculating a defendant's applicable
sentencing range. 36
Accordingly, we affirm the superior court's ruling that Anderson was a
third felony offender.
Conclusion
The judgment of the superior court is AFFIRMED.
36 State v. Dunaway, 743 P.2d 1237, 1241 (Wash. 1987) (en banc). The Dunaway rule
has now been statutorily codified. See RCW 9.94A.589(1)(a); State v. Yusuf , 2018 WL
1168724, at *7 (Wash. App. Mar. 5, 2018) (unpublished) (Spearman, J., concurring).
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