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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| KOMSON I. SPENCER, | ) |
| ) Court of Appeals No. A-9024 | |
| Appellant, | ) Trial Court No. 4FA-04-873 CR |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2108 June 29, 2007 |
| ) | |
Appeal from the
Superior Court, Fourth Judicial District,
Fairbanks, Charles R. Pengilly, Judge.
Appearances: David D. Reineke, Assistant
Public Defender, and Quinlan Steiner, Public
Defender, Anchorage, for the Appellant.
Terisia K. Chleborad, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and David W. M rquez,
Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
STEWART, Judge.
MANNHEIMER, Judge, concurring.
Komson I. Spencer and a cohort, David Williams,
restrained and assaulted Nathaniel Ahsoak over a period of
several hours. For this conduct, Spencer was convicted of
kidnapping and first-degree assault1 and was sentenced to a
composite term of 10 years imprisonment. Spencer now appeals
these convictions. For the reasons explained here, we conclude
that Spencers claims of error have no merit, and we therefore
affirm the judgment of the superior court.
Background facts and proceedings
On the morning of March 13, 2004, Ahsoak
went to visit Spencer and Williams at their trailer in
North Pole. They were acquaintances, and they
regularly socialized.
The three men started drinking beer, and
after four or five hours they went to a barbecue where
they continued drinking. At about 8:00 p.m., they
returned to Spencers and Williamss trailer, and they
continued to drink. Spencers girlfriend, Sasha Dennis,
was with them. Their friend Keifer Hering was also
there, asleep on a couch.
At about 9:30 p.m., Ahsoak called a friend,
Nicole James, to give him a ride home. Before James
arrived, Ahsoak accidentally pushed Dennis and she fell
down. Williams hit Ahsoak for pushing Dennis.
When James arrived, Spencer met her at the
door. Spencer opened the door just three inches, and
he told James that she could not come in to the trailer
and that Ahsoak was not leaving. Through the opening,
James saw Ahsoak try to walk to the door, but Spencer
would not let him out.
James returned to her car. When she looked
back toward the trailer, through a window, she saw
Williams hit Ahsoak in the stomach, causing Ahsoak to
fl[y] back. She watched for a few more minutes and
then left.
Back inside the trailer, Spencer shaved
Ahsoaks head while Williams held him down. Ahsoak at
first testified that he did not consent to having his
head shaved but later testified that he agreed to have
his head shaved as punishment for pushing Dennis. Once
Ahsoaks head was shaved, Spencer glued a pornographic
picture to Ahsoaks head with super glue.
An hour or two later, Ahsoak and Williams
fought. Ahsoak tried to leave, but Williams would not
let him. Spencer decided that Ahsoak was winning the
fight with Williams that Williams was getting [his]
ass beat too bad so Spencer and Williams decided to
tie Ahsoak up.
Spencer kicked Ahsoaks legs out from under
him while Williams pulled Ahsoak to the floor. Ahsoak
tried to get up, but Spencer and Williams pushed him
back down. They then bound his wrists and legs with
tape.
Over the next several hours, while Ahsoak
lay bound, Spencer and Williams assaulted him. Spencer
and Williams repeatedly hit Ahsoaks face and ribs with
their closed fists. Ahsoak testified that Williams was
doing most of the punching, while Spencer was sitting
there and enjoying it, but Ahsoak also testified that
Spencer punched him a couple times. As Ahsoak
described it, one would hit me and go sit down and have
a beer, and the other one would get up and hit me.
Ahsoak testified that Williams also kicked him, but he
was unsure whether Spencer ever kicked him. In
addition, during these hours of assault, Williams
twisted Ahsoaks ankle until it broke and jabbed Ahsoak
with the handle of an axe.
Ahsoak managed to free himself from the
tape, but Spencer and Williams hog tied Ahsoak, using
plastic zip ties on his wrists to bind his hands behind
his back and connect them to his ankles, which were
bound with tape. Ahsoak could not see who was
attacking him after he was hogtied, but he testified
that Spencer and Williams talked to him every time they
hit him. Ahsoak stated that he knew when Spencer had
hit him because Spencer would announce that he was
going to hit Ahsoak, and then Ahsoak was punched.
After midnight, two of Spencers friends
arrived. Ahsoak asked them for help, but Spencer told
his friends to leave Ahsoak alone.
Eventually everyone in the trailer fell
asleep. Around 9:30 or 10:00 the next morning, Keifer
Hering (the friend who had been asleep on the couch)
cut the zip ties off Ahsoak. The men all had a couple
of beers, and then Spencer gave Ahsoak a ride home.
Ahsoak called the police and went to the
hospital. The emergency room staff treated him for
injuries to his face, chest, and ankle. He had a
broken ankle, a punctured lung, and broken ribs.
Spencer and Williams were tried for
kidnapping and first-degree assault (under the theory
that they recklessly caused serious physical injury to
Ahsoak by means of a dangerous instrument).2 The jury
convicted both men of kidnapping and first-degree
assault. Spencer received the mandatory minimum
sentence of 5 years for the kidnapping, and a
concurrent sentence of 10 years to serve for the
assault i.e., a composite 10 years to serve.
Discussion
Spencers motion to strike Ahsoaks initial testimony
After Ahsoak took the stand at Spencers
trial, and during a recess when the jury was absent,
the prosecutor told Superior Court Judge Charles R.
Pengilly that he had noticed a hint of alcohol on
Ahsoaks breath. Judge Pengilly brought Ahsoak back to
the stand and asked him if he had been drinking.
Ahsoak admitted that he had consumed about four beers
before he came to court, to relieve the stress he felt
about testifying. Judge Pengilly asked Ahsoak if the
alcohol was affecting his ability to testify, and
Ahsoak said that it was.
At this point, Spencers attorney moved to
strike all of the testimony that Ahsoak had given thus
far, on the ground that it was incompetent testimony.
Judge Pengilly responded that he believed Ahsoak was
competent: [M]y impression of it is that hes been
perfectly coherent and cogent. I mean, hes not
visibly intoxicated, otherwise, obviously, I would have
said something earlier.
Notwithstanding Judge Pengillys response,
Spencers attorney renewed his contention that Ahsoak
was incompetent to be a witness, and he again asked
Judge Pengilly to strike the testimony that Ahsoak had
given so far. Judge Pengilly denied this request.
However, the judge delayed the remainder of Ahsoaks
testimony until the next morning, when he expected that
Ahsoak would be sober. Judge Pengilly informed
Spencers attorney that, when Ahsoak returned to
complete his testimony, the defense attorney would be
allowed to cross-examine Ahsoak about his earlier
intoxication. Judge Pengilly then told the jury that
the trial was being recessed because of Ahsoaks
intoxication.
When Ahsoak resumed his testimony the next
day, Spencers attorney cross-examined him about his
intoxication. Ahsoak admitted that he had been
drinking before he came to court the previous morning,
because he had been nervous about testifying. Ahsoak
also testified that he has a difficult time telling the
truth half the time when he is intoxicated, because I
dont even remember what Im saying half the time when Im
intoxicated. And Ahsoak admitted that he had been
intoxicated when he testified the day before.
Now, on appeal, Spencer renews his argument
that because of Ahsoaks intoxication, he was not a
competent witness during his first day of testimony.
Spencer relies on Alaska Evidence Rule 601. This rule
provides:
A person is competent to be a
witness unless the court finds
that (1) the proposed witness is
incapable of communicating
concerning the matter so as to be
understood by the court and jury
either directly or through
interpretation by one who can
understand the proposed witness,
or (2) the proposed witness is
incapable of understanding the
duty of a witness to tell the
truth.
Spencer urges us to hold that an intoxicated
witness is per se incompetent. However, in Blume v.
State,3 this court rejected a categorical attack on the
competency of all young children to testify.4 The
court ruled that under Evidence Rule 601, a trial court
is vested with broad discretion on the issue of
competency, and its decision to allow a witness to
testify is subject to reversal only for abuse of
discretion.5 We directed trial courts to evaluate the
competency of each prospective witness on a
case-by-case basis, relying on the totality of the
circumstances.6
There is nothing in the record to indicate
that Ahsoaks initial testimony was incoherent. In
fact, Judge Pengilly found just the opposite, and the
record supports this finding. Nor is there any
indication that Ahsoak was incapable of understanding
his duty to tell the truth.
Spencer cites two cases to support his
argument that Ahsoaks testimony should have been
stricken: Hartford v. Palmer, 16 Johns. 143 (N.Y. Sup.
Ct. 1819) and United States v. Hyson, 721 F.2d 856 (1st
Cir. 1983). But neither of these cases requires a
categorical exclusion of witnesses who have been
drinking. Instead, both cases recognize that a
witnesss competence presents a question for the trial
courts discretion, leaving the weight to be accorded to
the testimony up to the jury. This approach is in
accord with the approach in other jurisdictions.7
There is no categorical rule barring the
testimony of a witness who has been drinking, and we
reject Spencers suggestion that we should adopt such a
rule. Instead, trial judges should handle these
situations as the circumstances require.
Here, Judge Pengilly recessed Ahsoaks
testimony and directed Ahsoak to return to court sober
the next day. The judge informed the jury about the
problem and allowed Spencers attorney to cross-examine
Ahsoak regarding his previous intoxication, so that the
defense attorney could suggest to the jury how Ahsoaks
intoxication might affect the credibility of his
earlier testimony. We find that Judge Pengilly
properly exercised his discretion in this matter.
Sufficiency of the evidence to support Spencers
convictions
Spencer also contends that the evidence presented at
his trial is legally insufficient to support his convictions.
Because Spencer did not move for a judgment of acquittal in the
superior court, he must show plain error.8 The question is
whether fair-minded jurors, exercising reasonable judgment, could
conclude that the State had proven the charges beyond a
reasonable doubt.9 In making this assessment, we view the
evidence (and the reasonable inferences from that evidence) in
the light most favorable to the jurys verdicts.10
Turning to the charge of first-degree assault, the
question is whether the evidence supports the conclusion that
Spencer, either personally or through the actions of his
accomplice, Williams, recklessly caused serious physical injury
to Ahsoak by means of a dangerous instrument.11
Viewing the evidence in the light most favorable to
the jurys verdict, Ahsoak suffered serious physical injury12 as a
result of the beating administered by Spencer and Williams.
Ahsoak was treated at the hospital for a broken ankle, broken
ribs, and a punctured lung.
As to the question of whether Spencer was criminally
responsible for that beating, the evidence showed that Spencer
actively assisted in restraining Ahsoak and that Spencer
participated in the beating, by hitting Ahsoak several times with
his closed fist both before and after Ahsoak was tied up.
Spencer notes that, even viewing the
evidence in the light most favorable to the State,
Spencers co-defendant Williams was the one who
inflicted most of the punches on Ahsoak, and Williams
was the one who used the axe handle to strike Ahsoak.
Based on this, Spencer argues that Williams was the one
primarily responsible for Ahsoaks injuries.
But the State relied on a theory of
accomplice liability. Under AS 11.16.110(2), a
defendant becomes legally accountable for the conduct
of another person if the defendant solicits,
encourages, or aids the other persons criminal conduct
with intent to promote or facilitate the commission of
the offense. If the State proved that Spencer was
Williamss accomplice in the beating (thus rendering
Spencer legally accountable for Williamss actions),
then it did not matter whether Spencer personally
inflicted Ahsoaks injuries.
Viewing the evidence in the light most
favorable to the verdict, the jury could reasonably
conclude that Spencer not only actively participated in
the assault, but he also intentionally helped and
encouraged Williams to participate in the assault, and
that he acted with at least reckless disregard as to
whether this assault would inflict serious physical
injury on Ahsoak. The evidence is therefore legally
sufficient to support Spencers conviction for first-
degree assault.
Spencer also argues that the State did not
prove that he acted with the culpable mental state
required to convict him as an accomplice. Relying on
this Courts holding in Echols v. State,13 Spencer
contends that the State was obliged to prove that he
specifically intend[ed] that [Ahsoak] suffer serious
physical injury. But in Riley v. State,14 we expressly
overruled our decision in Echols.15 Riley holds that,
when the charged crime requires proof of a particular
result (here, the infliction of serious physical
injury), the accomplice need not act intentionally with
respect to this result.16 Rather, the State must prove
that the accomplice acted with the culpable mental
state specified by the applicable criminal statute17
here, the culpable mental state of recklessly specified
in subsection (a)(1) of the first-degree assault
statute.
And, as we stated earlier, the evidence was
sufficient to support a finding that Spencer acted with
at least reckless disregard for the possibility that
Ahsoak would suffer serious physical injury as a result
of the beating administered by Spencer and his
accomplice, Williams.
Turning to the charge of kidnapping, the
question is whether the evidence supports the
conclusion that Spencer, either personally or through
the actions of his accomplice, Williams, restrained
Ahsoak with the intent to inflict physical injury on
him.18
Spencer does not dispute that he helped to
restrain Ahsoak, but he argues that there is no
evidence that, when he helped to restrain Ahsoak, he
acted with the intention that Ahsoak be injured. This
argument hinges on viewing the evidence in the light
most favorable to Spencer. But as we explained above,
we must view the evidence in the light most favorable
to the verdict. Viewing the evidence in this light,
there is ample evidence to support a finding that
Spencer intended that Ahsoak suffer physical injury,
either through Spencers personal actions or through the
actions of his accomplice, Williams.
The jury instruction on accomplice liability
When Judge Pengilly instructed the jury on
accomplice liability, he used an instruction similar to
the definitions of accomplice liability provided by the
Alaska Supreme Court in Evans v. State19 and Gordon v.
State.20 The jury instruction stated that a person who
knowingly and with criminal intent assists or
participates in a criminal act can be held accountable
as an accomplice. The instruction further provided:
A person who in some manner, knowingly
and with criminal intent, assists or
participates in a criminal act is an
accomplice. An accomplice is legally
responsible for the criminal act.
A person need not
commit every element of
the offense in order to
be guilty as an
accomplice. However, it
is necessary that the
person be in some way
associated with the
venture, that the person
participate in it as
something that he or she
wishes to bring about,
and that the person seek
by his or her actions to
make it succeed. Prior
knowledge that a crime
is about to be committed
and concealment of that
knowledge alone do not
make one criminally
liable as an accomplice.
Furthermore, once a
crime has been
committed, concealment
of ones knowledge of the
crime does not make one
an accomplice. Finally,
mere presence at the
scene of the crime is
not in itself enough to
make one an accomplice.
Spencers attorney did not object
to this instruction at the time. However, on
appeal, Spencer argues that this instruction
constituted plain error.
In particular, Spencer argues that
the instruction is flawed because it did not
require the jury to find that Spencer
specifically intended that [the] precise
crimes [of kidnapping and first-degree
assault] be accomplished. The answer to this
contention is that the law does not require
this proof.
Rather, as we explained in Riley,
the States complicity theory required proof
(1) that Spencer encouraged or assisted
Williamss restraint of, and assault on,
Ahsoak; (2) that Spencer provided this
encouragement or assistance to Williams with
the intent to promote or facilitate the
restraint and the assault; and (3) that when
Spencer provided this encouragement or
assistance, he also acted with the culpable
mental states specified in the kidnapping and
first-degree assault statutes namely, intent
to inflict physical injury on Ahsoak and
reckless disregard of the possibility that
Ahsoak would suffer serious physical injury.
The challenged jury instruction on
complicity informed the jurors that the State
was obliged to prove that Spencer
participated in the restraint and the assault
as something that he ... wishe[d] to bring
about, and that Spencer [sought] by his []
actions to make it succeed. This was an
adequate restatement of elements (1) and (2)
listed in the preceding paragraph.
The challenged jury instruction
did not mention element (3) the requirement
that the State prove that Spencer also acted
with the culpable mental states specified in
the underlying kidnapping and first-degree
assault statutes (intent to inflict physical
injury and recklessness regarding the
possibility of serious physical injury). But
other jury instructions, specifically the
instructions that described the elements of
kidnapping and first-degree assault, informed
the jurors of this aspect of the States
required proof.
Accordingly, we conclude that it
was not plain error for Judge Pengilly to
give the challenged complicity instruction.
Conclusion
The judgment of the superior court is
AFFIRMED.
MANNHEIMER, Judge, concurring.
I write separately to address two legal
issues: the question of whether an intoxicated witness
is competent to testify, and the question of how juries
should be instructed concerning the law of complicity.
The competency of an intoxicated witness under Alaska
Evidence Rule 601
As explained in the majority opinion, Ahsoak
was intoxicated when he first took the stand at
Spencers trial. Ahsoak nevertheless gave a significant
amount of testimony before the prosecutor noticed that
Ahsoaks breath smelled of alcoholic beverages. When
the prosecutor brought this issue to Judge Pengillys
attention, and when Judge Pengilly then questioned
Ahsoak about this matter, Ahsoak admitted that he had
drunk several beers, that he was feeling the influence
of the alcohol, and that it was affecting his
testimony.
Spencer argues that, under these facts,
Ahsoak was not competent to be a witness, and that
Judge Pengilly should have struck all of Ahsoaks
testimony up to that point.
Spencer relies most heavily on Ahsoaks
statements that, half the time, he has difficulty
telling the truth when he is intoxicated, and that [he
doesnt] even remember what [he is] saying half the time
when [he is] intoxicated. Spencer argues that Ahsoak
could not be a competent witness if, because of
intoxication, he was saying things with only half a
regard to whether they were true.
This may, indeed, have been a valid reason
to distrust Ahsoaks testimony, but it does not appear
to be a ground for declaring that Ahsoak lacked the
competency to testify.
Although the rules of evidence place many
restrictions on the statements and the physical
evidence that can be presented in court, the evidence
rules place very few restrictions on the people who can
appear as witnesses. The law has, at one time or
another, prohibited whole classes of people (e.g.,
felons, non-Christians and various Christian heretics,
and all criminal defendants) from taking the witness
stand; but under modern law, very few people are
disqualified from testifying.1
In particular, under Alaska Evidence Rule
601, any person who is capable of understanding the
duty to tell the truth and capable of giving coherent
testimony is competent to be a witness. Evidence Rule
601 reads:
A person is competent to be a witness
unless the court finds that (1) the proposed
witness is incapable of communicating
concerning the matter so as to be understood
by the court and jury either directly or
through interpretation by one who can
understand the proposed witness, or (2) the
proposed witness is incapable of
understanding the duty of a witness to tell
the truth.
Certainly, there are witnesses who
have difficulty confining their testimony to
the truth because of self-interest, or bias
for or against a party, or intoxication, or
mental condition or disability, or otherwise.
But this is not a ground for declaring the
witness incompetent to testify under Evidence
Rule 601. Rather, as Rule 601 states, a
witnesss competency hinges on whether the
witness can sufficiently communicate the
substance of their testimony so as to be
understood by the court and [the] jury, and
whether the witness is capable of
understanding the duty ... to tell the truth.
If a witness is so impaired by
intoxicants or mental illness that their
testimony is incoherent, then Evidence Rule
601 might serve as authority for declaring
the witness incompetent to testify. See
United States v. Hyson, 721 F.2d 856 (1st
Cir. 1983), where the First Circuit held that
Federal Evidence Rule 601 justified the
exclusion of testimony on competency grounds
when the witness was incoherent due to drug
use.
But Ahsoaks testimony was not
incoherent. In fact, Judge Pengilly found
just the opposite. When the matter of
Ahsoaks drinking was brought to the judges
attention, Judge Pengilly declared, My
impression ... is that [Ahsoaks testimony
has] been perfectly coherent and cogent. ...
Hes not visibly intoxicated; otherwise,
obviously, I would have said something
earlier.
Under these facts, Evidence Rule
601 does not appear to be a proper ground for
excluding or striking Ahsoaks testimony. As
the Sixth Circuit observed in United States
v. Ram¡rez, 871 F.2d 582, 584 (6th Cir. 1989)
(construing Federal Evidence Rule 601), a
courts power to exclude testimony out of
concern that the witness is impaired must be
found outside of Evidence Rule 601.
See United States v. Van Meerbeke,
548 F.2d 415 (2nd Cir. 1976), a case in which
the principle government witness ingested
some of the heroin that had been offered into
evidence. The Second Circuit held that the
trial judge committed no error when he
allowed the jury to decide whether the
witnesss testimony was credible, after giving
the defense attorney the opportunity to bring
out the fact that the witness had ingested
drugs while on the stand.
See also United States v. Harris,
542 F.2d 1283 (7th Cir. 1976), a case in
which a government witness admitted using
heroin two days before his testimony and
taking Demerol and Phenergon on the day
before his testimony. On several occasions
during his testimony, the witness was
observed to be bouncing and nodding. A
defense expert testified that a person who
had taken the same drugs that the witness had
taken would experience a clouding of their
consciousness and would have difficulty in
accurately framing their thoughts.
Nevertheless, the Seventh Circuit held that
it was up to the jury to decide how the
witnesss drug usage and impaired condition
affected the credibility of the witnesss
testimony.
This is not to say that a trial
judge lacks the power to take precautionary
or corrective measures when the judge learns
that a witness is currently impaired by
intoxicants. However, in all but the most
extreme cases, the witness remains competent
to testify under Evidence Rule 601.
The jury instruction on accomplice liability
This appeal presents one more instance of a
problem that arises from time to time when the
prosecutions case rests on the theory of
accomplice liability.
The State argued that Spencer should be held
accountable, as an accomplice, for conduct that
was performed by his co-defendant Williams. Jury
Instruction 20 told the jurors that an accomplice
is [a] person who[,] in some manner, knowingly and
with criminal intent, assists or participates in a
criminal act. The instruction went on to say:
A person need not commit every element
of the offense in order to be guilty as an
accomplice. However, it is necessary that
the person be in some way associated with the
venture, that the person participate in it as
something that he or she wishes to bring
about, and that the person seek by his or her
actions to make it succeed.
At trial, Spencer did not object to the wording of this
instruction. But now, on appeal, he contends that the
trial judge committed plain error by giving this
instruction.
Spencers precise argument is that this instruction led
the jury astray because it did not say that the State was
required to prove that Spencer acted with specific ... intent to
bring about the illegal end. This contention is easily disposed
of for the instruction did tell the jury that this was a
required element of the States proof. The instruction said that,
to establish a defendants complicity in a criminal venture, it is
necessary that the [defendant] participate in [the venture] as
something that he or she wishes to bring about [and have it]
succeed.
To the extent Spencer is arguing that the government
must prove that an accomplice acted intentionally with respect to
any unlawful result that constitutes an element of the crime,
even when the principal could be convicted on proof of a lesser
culpable mental state (e.g., knowledge or recklessness), Spencer
is wrong. See Riley v. State, 60 P.3d 204, 221 (Alaska App.
2002).
Nevertheless, Spencers case does illustrate a
recurring problem.
The jury instruction that was given in Spencers case
derives from Judge Learned Hands formulation of the federal
common-law definition of complicity in United States v. Peoni,
100 F.2d 401, 402 (2nd Cir. 1938). More than thirty years ago,
the Alaska Supreme Court adopted Judge Hands formulation as an
accurate statement of Alaskas common-law definition of
complicity: see Evans v. State, 550 P.2d 830, 841 (Alaska 1976),
quoting Gordon v. State, 533 P.2d 25, 29 (Alaska 1975), which in
turn was quoting Peoni.
Since then, trial judges and attorneys have frequently
turned to this language when it was necessary to instruct a jury
on the law of complicity.2 And, as Spencers case illustrates,
the Peoni formulation continues to appear in jury instructions to
the present day.
The problem is that Alaska no longer relies on a
common-law definition of complicity. Instead, we have a statute,
AS 11.16.110(2), that specifies the elements that must be proved
to establish accomplice liability.
(AS 11.16.110 actually specifies three different ways
in which a person can be held criminally accountable for conduct
performed by another person. We are concerned here only with
subsection (2) of the statute the portion that defines
accomplice liability.)
AS 11.16.110(2) declares that a defendant is legally
accountable for the conduct of another [person] constituting an
offense if [, acting] with [the] intent to promote or facilitate
the commission of the offense, the [defendant] ... solicits the
other [person] to commit the offense ... or aids or abets the
other [person] in planning or committing the offense[.]
In Riley, we construed this statute to require proof
of both an unlawful act and a culpable mental state. The
unlawful act can take one of three forms: (1) soliciting another
person to engage in the conduct that constitutes the actus reus
of the charged offense, (2) inciting or encouraging (abetting)
the other person to plan or engage in the conduct that
constitutes the actus reus of the charged offense, or (3) aiding
the other person in planning or committing that conduct.3
In addition to proving that the defendant solicited,
encouraged, or aided the other persons conduct, the State must
also prove that the defendant did so with the intent to promote
or facilitate that conduct. See Riley, 60 P.3d at 207, 221.
There is no accomplice liability if a defendant unwittingly
encouraged or aided another person to commit a crime. Nor is
there accomplice liability even when the defendant knew that
their actions would assist another person in committing a crime,
so long as the defendant remained indifferent to the success or
failure of that crime. AS 11.16.110(2) requires the State to
prove that it was the defendants intention to promote or
facilitate the other persons conduct. Riley, 60 P.3d at 210,
221.
If the State proves that the defendant engaged in one
or more of the unlawful acts specified in AS 11.16.110(2)
(soliciting, encouraging, or aiding another persons criminal
conduct), and that the defendant did so with the culpable mental
state specified in AS 11.16.110(2) (the intent to promote or
facilitate the other persons criminal conduct), then the
defendant is accountable for conduct that was performed by
someone else.
But as we also explained in Riley, the States proof of
a defendants complicity under AS 11.16.110(2) means only that the
defendant can be held accountable for the conduct of another
person.4 Although AS 11.16.110(2) specifies the circumstances in
which a defendant can be held vicariously liable for someone
elses actions, the statute does not impose vicarious liability
for someone elses culpable mental state. When the crime charged
against the defendant requires proof, not only of conduct, but
also of one or more culpable mental states, the State must prove
that the defendant personally had the required culpable mental
state(s).
In Riley, we gave the following example of how the
culpable mental states of accomplices must be evaluated
separately, even though all of the accomplices are jointly
responsible for the criminal conduct:
Take, for instance, the situation [at common
law] where two defendants are jointly
accountable for a criminal homicide one
because he personally struck the fatal blow
or inflicted the fatal wound, and the other
under a theory of complicity because he
encouraged or assisted the homicidal act.
If one of the defendants acted in cold blood
(i.e., with malice aforethought) while the
other acted in the heat of passion, the one
who acted with malice would be guilty of
murder and the one who acted in the heat of
passion would be guilty only of
manslaughter. This was true regardless of
which defendant was the perpetrator and
which the accomplice.
Riley, 60 P.3d at 221.
To sum up this discussion: If the
State proves the unlawful act and the
culpable mental state specified in AS
11.16.110(2) i.e., the act of soliciting,
encouraging, or aiding another persons
unlawful act, coupled with an intent to
promote or facilitate that unlawful act then
the defendant can be held accountable for
conduct that was performed by another person.
In such cases, when the jury considers
whether the defendant committed the acts
and/or caused the results that constitute the
elements of the crime charged, the jury can
take into account not only the conduct that
was performed by the defendant personally,
but also the conduct performed by any other
person for which the defendant shares
responsibility as an accomplice.
On the other hand, when the jury
considers whether the defendant had the
culpable mental state(s) required for the
crime charged, the defendants guilt (or the
defendants level of guilt, in cases where the
degree of guilt hinges on the defendants
culpable mental state) depends on the
defendants personal mental state, not the
mental states of the defendants accomplices.
The Peoni formulation of
complicity in large measure restates, and
certainly does not contradict, the definition
of complicity that is codified in
AS 11.16.110(2). Rather, the problem with
the Peoni formulation is that it fails to
cover all of the details of the proof
required by AS 11.16.110(2), and it is vague
on the point that a defendant can be held
accountable for another persons conduct, but
not another persons mental state.
In past cases, these problems have
not been fatal to any criminal convictions
either because, under the facts of the case,
the failure to track the statutory language
was inconsequential, or because the lawyers
summations to the jury cured any omissions or
clarified any ambiguities in the Peoni
instruction.
See, for instance, Hansen v.
State, 845 P.2d 449 (Alaska App. 1993), where
the defendant acquiesced in a Peoni
instruction at trial, but then challenged the
instruction on appeal because the instruction
failed to specify the culpable mental state
codified in AS 11.16.110(2), intent to
promote or facilitate. We concluded that the
Peoni instruction, coupled with other jury
instructions dealing with accomplice
liability, adequately conveyed this culpable
mental state, and thus the deviation from the
statutory language was not plain error. Id.
at 459.
Nevertheless, when the issue of
accomplice liability is raised, I encourage
trial judges to inform juries of the
requirements of AS 11.16.110(2). A Peoni
instruction, in and of itself, is not error;
but that instruction should be supplemented
with another instruction that specifies the
elements of our statutory definition of
complicity.
_______________________________
1 AS 11.41.300(a)(1)(C) and AS 11.41.200(a)(1),
respectively.
2 See AS 11.41.200(a)(1).
3 797 P.2d 664 (Alaska App. 1990).
4 Id. at 668.
5 Id.
6 Id.
7 See Diamond v. State, 268 So. 2d 850, 852 (Ala. Crim. App.
1972) (The admission of testimony of an allegedly
intoxicated witness was not error since the weight to be
accorded to the testimony is for the jury to say.); Cannady
v. Lynch, 8 N.W. 164, 164-65 (Minn. 1881) (holding that an
intoxicated witnesss competency is to be determined by the
trial court); State v. Underwood, 28 N.C. 96 (N.C. 1845)
(holding the competency of a drunk witness to be within the
discretion of the trial court); Prudential Ins. Co. of
America v. Hashman, 454 N.E.2d 149, 153 (Ohio Ct. App. 1982)
([W]hether a witness is so intoxicated so as to render him
incompetent to testify is within the sound discretion of the
trial court.); Gould v. Crawford, 2 Pa. 89 (Pa. 1845)
(holding that whether an intoxicated witness is competent is
in the discretion of the court); Myers v. State, 39 S.W.
111, 112 (Tex. Crim. App. 1897) (holding that a witnesss
intoxication when testifying does not render him
incompetent, but goes to his credibility).
8 See Shafer v. State, 456 P.2d 466, 467-68 (Alaska 1969).
9 Dorman v. State, 622 P.2d 448, 453 (Alaska 1981); Pease v. State, 54
P.3d 316, 331 (Alaska App. 2002).
10 Dorman, 622 P.2d at 453.
11 See AS 11.41.200(a)(1).
12 Serious physical injury is defined in AS 11.81.900(b)(56) as
physical injury caused by an act performed under circumstances that
create a substantial risk of death or physical injury that causes
serious and protracted disfigurement, protracted impairment of health,
protracted loss or impairment of the function of a body member or
organ, or that unlawfully terminates a pregnancy.
13 818 P.2d 691, 692-94 (Alaska App. 1991).
14 60 P.3d 204 (Alaska App. 2002).
15 Id. at 221.
16 Id. at 221.
17 Id.
18 See AS 11.41.300(a)(1)(C).
19 550 P.2d 830, 841 (Alaska 1976).
20 533 P.2d 25, 29 (Alaska 1975).
1 See Edward W. Cleary, McCormick on Evidence (2nd ed.
1972), 61-65, pp. 139-144.
2 See, e.g., Hensel v. State, 604 P.2d 222, 238 (Alaska
1979); Carman v. State, 602 P.2d 1255, 1260 (Alaska 1979); Hansen
v. State, 845 P.2d 449, 456 (Alaska App. 1993); Bowell v. State,
728 P.2d 1220, 1224 (Alaska App. 1986); Carman v. State, 658 P.2d
131, 137 (Alaska App. 1983).
3 Riley, 60 P.3d at 221.
4 60 P.3d at 221.
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