Summary
holding that fourth-degree weapons misconduct was not a lesser included offense of third-degree weapons misconduct
Summary of this case from Simpson v. StateOpinion
Court of Appeals No. A-8704.
January 5, 2005.
Appeal from the Superior Court, Third Judicial District, Palmer, Suzanne Lombardi, Judge. Trial Court No. 3PA-01-2328 CR.
Paul Malin, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for Appellant.
John A. Scukanec, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Joseph E. Ladick was convicted of misconduct involving weapons in the third degree (felon in possession of a concealable firearm), a class C felony. Ladick argues that Superior Court Judge pro tem Suzanne Lombardi erred in refusing to instruct the jury on his proposed lesser-included offense — misconduct involving weapons in the fourth degree (possession of a firearm while intoxicated), a class A misdemeanor. We affirm Ladick's conviction because possession of a firearm while intoxicated was not a lesser-included offense of a felon in possession of a concealable firearm.
AS 11.61.200.
AS 11.61.210(1).
Factual background
Albert Rice invited Joseph Ladick to live with him. Ladick apparently owned several firearms, including two handguns. Susan Sexton, a friend of Rice, testified that Ladick showed her the two handguns. Sexton testified that, sometime after Ladick showed her the handguns, she drove him to a pawn shop and helped him pawn one of the handguns, a .454 caliber revolver.
At a later date, Rice called the troopers and reported an incident that had occurred while he and Ladick had been drinking. According to Rice, Ladick pointed a rifle at him and then later returned with a handgun, firing a shot into the floor in front of the couch where Rice was sitting. Ladick then fired another shot into the wall. The troopers learned that Ladick was a convicted felon. The troopers found a .357 handgun on the bed in Ladick's room.
The troopers arrested Ladick. The State indicted Ladick on two counts of misconduct involving weapons in the third degree (felon in possession of a concealable firearm). The State charged Ladick in Count I with possession of the .357 on the date that he allegedly assaulted Rice. The State charged Ladick in Count II with possession of the.454 revolver around the date he allegedly pawned the revolver. (The indictment charged Ladick with possessing the revolver on February 10, 2001). The pawn shop ticket, Exhibit 39, shows that Sexton pawned the revolver on January 26, 2001. The State also charged Ladick with assault in the third degree, a class C felony, for the alleged assault on Rice. A jury convicted Ladick of possession of the .454 revolver, but acquitted him of possession of the .357 handgun and the assault on Rice.
Possession of a firearm while intoxicated is not a lesser-included offense of felon in possession of a concealable firearm
An offense is a lesser-included offense under the cognitive approach if, in the context of the evidence presented at trial, it would be impossible for the defendant to have committed the charged offense without also having committed the lesser offense. In order for an offense to be a proper lesser-included offense, a finding of guilt on the greater offense must be inconsistent with acquittal on the lesser offense, and there must be an actual dispute concerning an element that distinguishes the greater offense from the lesser. Applying this test, it is clear that Ladick's proposed lesser-included offense, possession of a firearm while intoxicated, does not meet the standard.
Elisovsky v. State, 592 P.2d 1221, 1225-26 (Alaska 1979).
Blackhurst v. State, 721 P.2d 645, 648 (Alaska App. 1986).
In the first place, there was no evidence that Ladick was intoxicated when he pawned the .454 revolver. But Ladick contends that the State only charged him with possession of the .454 revolver "on or about" a certain date. He therefore argues that he could have been intoxicated when he possessed the .454 and that possibly the jury found that he possessed the .454 on the date that he allegedly assaulted Rice. But even if we assume that there was evidence that Ladick was intoxicated when he possessed the .454, Ladick's possession of a firearm while intoxicated was not a lesser-included offense of a felon in possession of a concealable firearm. A fundamental requirement to be a lesser-included offense is that it must be impossible for the defendant to have committed the greater offense without also having committed the lesser offense. But the jury could easily have concluded that Ladick was a felon in possession of a concealable firearm without finding that he was intoxicated. Conversely, the jury could have found that Ladick did not possess a concealable firearm but nevertheless possessed another firearm (the rifle) while intoxicated. The offenses are simply separate offenses. The statute criminalizing possession by a felon of a concealable firearm represents a judgment by the legislature that a person who has previously been convicted of a felony should not possess a concealable firearm. The statute criminalizing possession of a firearm while intoxicated represents the legislature's judgment that a person who is impaired should not possess any firearm. These are separate statutes protecting separate societal interests. If Ladick had been charged with both offenses, he could properly have been convicted of both. One was not included in the other. We conclude that Judge Lombardi did not err in refusing to give an instruction allowing the jury to consider the offense of possession of a firearm while intoxicated as a lesser-included offense.
The conviction is AFFIRMED.