Opinion
Court of Appeals No. A-9938.
January 14, 2009.
Appeal from the Superior Court, Third Judicial District, Dillingham, Joel H. Bolger, Judge, Trial Court No. 3DI-06-00047 CR.
Susan Orlansky, Feldman Orlansky Sanders, Anchorage, for the Appellant.
Andrew Peterson, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
MEMORANDUM OPINION AND JUDGMENT
A jury convicted Edward Byron Lamb of four counts of assault in the third degree, a class C felony, for recklessly placing four different victims in fear of imminent serious physical injury by means of a dangerous instrument, his airplane, on September 4, 2005. The same jury convicted Lamb of four counts of assault in the third degree and one count of assault in the fourth degree, a class A misdemeanor, for incidents that occurred on September 15, 2005. These assaults also involved Lamb's use of his airplane. Superior Court Judge Joel H. Bolger sentenced Lamb to a composite sentence of 7 years with 4 years suspended. In addition, Judge Bolger imposed a fine of $40,000.
AS 11.41.220(a)(1)(A).
Id.
AS 11.41.230(a)(3).
Lamb appeals, arguing that: (1) the State could not prosecute him because the Federal Aviation Administration (FAA) had previously penalized him for this same conduct and therefore his prosecution was barred by state statute; (2) Judge Bolger erred in allowing the September 4th and September 15th incidents to be joined for trial; (3) Judge Bolger improperly limited Lamb's presentation of evidence to demonstrate the bias of adverse witnesses; (4) Judge Bolger erred in denying Lamb's motion for judgment of acquittal on the assault in the fourth degree charge; and (5) Judge Bolger imposed an excessive sentence.
We affirm Lamb's convictions and sentence.Factual background The September 4th assaults
In 2005, the nonresident moose hunting season was from September 5th through September 15th. On September 3rd, two days before the nonresident moose hunting season opened, pilot Douglas A. Brewer, the owner of Alaska West Air in Kenai, flew unguided nonresident hunters David M. Dorrell and William B. Trueblood to the east side of Kemuk Mountain near Dillingham.
On September 4th, Brewer flew nonresident hunters Thomas B. Gannon and Andrew D. Burish to an area near the Nuyakuk River to meet guide Michael R. Mroczynski.
Also on September 4th, big-game guide (and defendant in this case) Lamb was in the Kemuk Mountain area with clients Jacob B. Ervin Jr. and Dr. Hunter Stokes. Lamb owned and flew a red and white Super Cub airplane. Lamb testified that he flew over a camp, later determined to be the camp of Dorrell and Trueblood, thought he saw evidence that they had killed a moose prior to the opening of the season, and called the state troopers. Lamb testified that he went back to his camp and told Ervin that other hunters nearby had killed a moose prior to the opening of the season, but that they might be able to go to one of his other camps to hunt instead. Ervin asked to accompany him to check out the other camp site.
Near Lamb's other camp, Lamb saw Mroczynski and his clients, Gannon and Burish, a few hundred yards from Lamb's established camp. Lamb testified that he was going to try to land to tell Mroczynski not to get so close to Lamb's camp. He circled around and tried to get close enough to land, but at the last minute decided that it was unsafe because the tundra was so wet. Instead, he shoved the throttle forward and, because he was frustrated that he could not land, he "flipped off" the hunters and the guide on the ground.
According to Dorrell, on the afternoon of September 4th, a red and white plane swooped down on him and Trueblood six or eight times, then left, but returned every hour to an hour and a half for a total of eight to twelve times. Concerned for their safety, Dorrell and Trueblood moved their tent into the trees, used their rented satellite phone to call Alaska West Air to request that the office call the state troopers, took photographs of the plane, and attempted to read the plane's identification number with binoculars.
Ervin testified that on September 4th, he was at Lamb's camp with Dr. Stokes and Lamb. He said that Lamb went flying while Ervin and Dr. Stokes stayed at camp. Ervin testified that he saw Lamb's plane go back and forth, going down behind the trees, "kind of like a crop duster would do in a field." Ervin testified that Lamb was "really mad" when he returned because other people were camped in a spot where Lamb had planned to take Ervin and Dr. Stokes hunting.
Ervin testified that he went flying with Lamb while Dr. Stokes stayed back to cook dinner. As they were flying, Lamb showed Ervin the other camp that Lamb had found earlier, the Dorrell/Trueblood camp. When they got about two and one-half to three miles away from their own camp, Ervin and Lamb saw another camp, the Mroczynski/Gannon/Burish camp. According to Ervin, Lamb got very angry at this point and said over the radio to Ervin, "those mother-fuckers . . . they're up here, too; they're all over me; they're getting into all my spots . . . I'm all hemmed in." Ervin testified that when Lamb saw the hunters on the ground, Lamb circled around them and then turned the plane in their direction, "put the nose down, [and] brought the throttle up." Ervin said that the plane was "flying a direct line towards [the hunters] . . . [and] we just kept going faster and faster, and we were headed down at a pretty steep angle." Ervin testified that he "thought we were going to not only hit them, but that we were going to crash into the ground." Ervin testified that two of the hunters had "just laid flat on the ground" and that from where he was sitting in the plane "it looked like the wheels would have hit them in the head if they hadn't fell on the ground. I mean, we couldn't have been more than ten or twelve feet off the ground." Ervin testified that he thought that he was going to be killed.
Mroczynski testified that on the afternoon and evening of September 4th, he and his clients, Burish and Gannon, discussed how to operate the gear, ate dinner, and then scouted the area near their camp. As they were walking across an open meadow, a red and white Super Cub on tundra tires flew over their heads and "dive bombed" them, coming so low that it "wasn't quite as high as the ceiling [of the courtroom where Mroczynski testified]." Mroczynski, Burish, and Gannon "all hit the ground" and "hustled [their] butts into the timber because that way [the pilot] couldn't dive down on [them] unless he came through the trees[.]" After the pilot made a pass around the open field, Mroczynski testified that "[t]he pilot opened the window, stuck his finger out, basically flipped [them] the bird, circled around [them] again, circled around [them] again, then he came back down, opened his window, [and] flipped [them] the bird again." The pilot was close enough to Mroczynski that Mroczynski could tell that the pilot had shorter dark hair and a mustache, and he believed that the pilot was saying "fuck you" as he flew by. In addition, Mroczynski testified that another person was in the back of the airplane.
The jury convicted Lamb of four counts of assault in the third degree for victims Ervin, Mroczynski, Burish, and Gannon. The September 15th assaults
In addition to dropping off hunters before moose season, pilot Brewer also made twelve to fifteen flights on September 15th and 16th to pick up various hunters and guides at the end of the nonresident moose season. According to Brewer, he picked up Mroczynski from near Mrocyznski's camp and was about to take off when a red and white Super Cub flew over Brewer so low that he had to abort his takeoff for safety reasons. Brewer estimated that the Super Cub was thirty to fifty feet above him. When Brewer taxied back around to attempt another takeoff, the Super Cub cut in front of him again at a steep bank and a low altitude. Brewer contacted the pilot on his radio. The pilot identified himself as Lamb and seemed to be angry. Once Brewer was finally able to take off, Lamb followed him about one wing length away and kept instructing Brewer over the radio to land. Brewer testified that Lamb wanted a confrontation — he kept telling Brewer to land so that Brewer could "take it like a man." Brewer continued to fly to the staging lake and landed. Lamb circled back and left.
Brewer dropped off Mroczynski at the staging lake, and then took off again to pick up more gear left at the camp. As soon as Brewer took off from the camp, Lamb was again "right on [him]." Brewer testified that he made a less safe landing at the staging lake because he "didn't know if [Lamb] was going to run into [him] or what." Brewer then picked up one of Mrocyznski's assistant guides, Todd J. Walter, and started to fly home toward Kenai. When they got over the Nuyakuk River, Lamb again came right up behind Brewer's plane, began using vulgar language, and asked where Brewer was headed. Brewer testified that he was concerned for his safety because Lamb was "just way too close, especially [when the other pilot is] yelling and screaming at you on the radio, you don't know what he's going to do, you know, . . . he's wanting a confrontation."
Mroczynski testified that he was in the field until the morning of September 16th, when Brewer came to get him in a Super Cub. Mroczynski testified that he loaded his gear into Brewer's plane and got in. When they were set to take off, Brewer hit the power and "all of a sudden a plane appeared in front of [them]." Mroczynski recognized the plane as "the same red and white Super Cub that had dive bombed [him, Gannon, and Burish] on [September] 4th." Mrocyznski testified that Lamb got on the radio, identified himself, and "started getting pretty vulgar and abusive on the radio." Once they were able to take off, Lamb flew "right off [their] tail," 100 to 150 feet behind them. Mroczynski testified that he noticed by Brewer's wavering voice that Brewer "was definitely nervous, scared." Mrocyznski also said, "I was pretty nervous myself."
Walter testified that, while he was waiting to be picked up, he noticed the red and white Super Cub circling the staging lake several times after it followed Brewer there. Walter testified that he knew very little about flying but that it seemed that Brewer was coming in "pretty fast" and that the Super Cub followed Brewer's plane by a "couple hundred yards, probably." After Brewer landed at the staging lake, Walter and Brewer refueled the plane and loaded Walter's gear. Walter gave no indication during his testimony that he perceived any threat or danger while they loaded and refueled Brewer's plane. Walter testified that after he got in the plane and Brewer took off, "the red and white Cub showed up immediately . . . and then [the two pilots] started talking over the radio." Walter testified that in the radio communications that he heard, the people "were laughing" and talking about "flying to Kenai." Walter testified that he overheard Lamb say on the radio that he had been buzzed by Brewer (not the other way around). Walter affirmed that he remembered that a third pilot was involved in the conversation, and someone said over the air, "it sounds like there's going to be a party in Kenai."
The jury convicted Lamb of three counts of assault in the third degree for the assaults on Brewer, one count of assault in the third degree for the assault on Mrocyznski, and one count of assault in the fourth degree for the assault on Walter.
Why we conclude that AS 12.20.010 did not bar the State's prosecution of Lamb
The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution does not prohibit the federal government from individually prosecuting criminal acts that have already been prosecuted by a separate sovereign. The Alaska Legislature, however, passed AS 12.20.010 "to insulate defendants from dual prosecution by separate sovereigns." Alaska Statute 12.20.010 provides:
Abbate v. United States, 359 U.S. 187, 79 S. Ct. 666, 3 L. Ed. 2d 729 (1959); see also Booth v. State, 903 P.2d 1079, 1085 (Alaska App. 1995) (citing Bartkus v. Illinois, 359 U.S. 121, 79 S. Ct. 676, 3 L. Ed. 2d 684 (1959)).
Booth, 903 P.2d at 1086.
When an act charged as a crime is within the jurisdiction of the United States, another state, or a territory, as well as of this state, a conviction or acquittal in the former is a bar to the prosecution for it in this state.
This self-imposed limitation on prosecutions is "designed to complement the double jeopardy clause by protecting criminal defendants against successive prosecutions by different governments."
Id. at 1085.
On May 23, 2006, the FAA revoked Lamb's private pilot certificate. The FAA "determined that safety in air commerce or air transportation and the public interest" required this revocation because, on September 4, 2005, Lamb operated an aircraft within one hundred feet of individuals on the ground, that the individuals on the ground had to seek cover in the trees and considered firing weapons at Lamb, and that Lamb flew below one hundred feet to "display[] an extended middle finger and shout[] obscenities at persons on the surface." In addition, the FAA considered that on September 15, 2005, Lamb blocked the attempted takeoff of a float plane and created a collision hazard. Overall, the FAA determined that operation of an aircraft in this manner "was reckless and/or careless and endangered the life and/or property of another." As a result, the FAA determined that Lamb lacked "the qualifications necessary to hold a Private Pilot Certificate . . . or any other airman pilot certificate." In an earlier order (which was later amended), the regional counsel for the FAA informed Lamb that "[i]n accordance with the Administrator's policy stated in FAA Order 2150.3A, paragraph 206.c, revocation of your certificate is a necessary remedial measure to ensure you do not present a continued threat to potential passengers and others who may be endangered by your operation of aircraft."
Emphasis added.
On appeal, Lamb argues that, because the FAA revoked his private pilot certificate based on exactly the same conduct that the State relied on to bring criminal charges, AS 12.20.010 barred the subsequent state prosecution. Judge Bolger determined that the FAA's revocation of Lamb's pilot certificate should not be considered a "conviction" for purposes of AS 12.20.010 because the FAA was furthering a regulatory goal of protecting the public from an unfit pilot, not pursuing a criminal punishment.
Alaska Statute 12.20.010 only applies to "a conviction or acquittal," in other words, a conviction or acquittal in a criminal matter. We conclude that the FAA's proceeding did not subject Lamb to a "conviction or acquittal" as required by AS 12.20.010. Under Alaska law, a criminal prosecution can "include the trial of offenses that `may result in the loss of a valuable license, such as a driver's license.'" However, when an agency revokes a license such as a driver's license, "its action can be either a criminal sanction or an administrative measure, depending on whether the revocation is based on the commission of an offense or on conduct that demonstrates unfitness to drive." A license revocation is not a criminal prosecution "where lawful criteria other than criminality are a proper concern in protecting public welfare and safety" and "the basis of revocation or suspension . . . is not that one has committed a criminal offense, but that the individual is not fit to be licensed, apart from considerations of only guilt or innocence of crime."
State v. Niedermeyer, 14 P.3d 264, 269 (Alaska 2000) (quoting Baker v. Fairbanks, 471 P.2d 386, 402 (Alaska 1970)).
Id. (emphasis added).
Baker, 471 P.2d at 402 n. 28.
In State v. Zerkel, we considered whether license revocations based on driving while intoxicated or breath test refusal offenses constituted criminal punishment or remedial measures. In holding that these suspensions are remedial (or regulatory) despite being based on criminal conduct, we determined that
900 P.2d 744 (Alaska App. 1995).
administrative revocation or suspension of that license can legitimately serve to deter conduct and still remain "remedial" for double jeopardy purposes so long as the revocation or suspension is based on conduct that bears a direct relation to the government's regulatory goals or to the proper administration and enforcement of the regulatory scheme.
Id. at 757.
The Alaska Supreme Court has agreed with Zerkel's direct-relationship test.
Niedermeyer, 14 P.3d at 270.
A close look at the FAA's regulatory goals and the purpose of Lamb's pilot certificate revocation establish that this case is an example of remedial (or regulatory) measures, rather than criminal punishment. The FAA's order noted that the Administrator was acting to revoke Lamb's license under the authority of 49 U.S.C. § 46105(c). Subsection (c) refers to the authority of the Administrator to issue orders in an emergency: "When the Administrator is of the opinion that an emergency exists related to safety in air commerce and requires immediate action, the Administrator . . . may . . . issue orders immediately to meet the emergency. . . ." This language in the United States Code indicates that the Administrator's statutorily authorized goal is to promote and protect air safety. In the order itself, the FAA determined that Lamb operated his airplane in a manner that was "reckless and/or careless and endangered the life and/or property of another." The FAA also found that Lamb violated four Federal Aviation Regulations regarding safety. The FAA determined that Lamb "lack[ed] the qualifications necessary to hold a Private Pilot Certificate" and that "safety in air commerce or air transportation and the public interest require[d] the revocation" of Lamb's private pilot certificate. The FAA's first version of its order instructed Lamb that the revocation of his pilot certificate was "a necessary remedial measure." It is clear that the FAA's decision to revoke Lamb's pilot certificate was "based on conduct that bears a direct relation to the government's regulatory goals or to the proper administration and enforcement of the regulatory scheme."
Zerkel, 900 P.2d at 757.
Lamb also argues that because the FAA had the ability to impose a fine in addition to revoking his pilot certificate, the FAA's action must be characterized as "criminal" in nature. The FAA did not actually impose a monetary penalty against Lamb, but he notes that he faced the possibility of a fine up to $1100 per violation. Under 49 U.S.C. § 46301(a)(1), a "person is liable to the United States Government for a civil penalty of not more than $25,000 (or $1100 if the person is an individual or small business concern) for violating" certain statutes. (emphasis added). The language of the federal code explicitly states that the fine is civil, not criminal, in nature.
As Judge Bolger noted, the "mere threat of a monetary penalty during a regulatory proceeding does not place a defendant under criminal jeopardy." Judge Bolger cited several cases for this proposition, including United States Supreme Court case Hudson v. United States. In Hudson, the Supreme Court considered a case in which the government imposed monetary penalties and occupational debarment on the petitioners for violating federal banking laws "and later criminally indicted them for essentially the same conduct." The Court held that the double jeopardy clause did not bar Hudson's subsequent prosecution because the administrative proceedings were civil in nature, not criminal. The Court noted that Congress intended the penalties to be civil and expressly provided for that in the statute. Furthermore, the Court noted that civil monetary penalties have not "historically been viewed as [criminal] punishment." Here, as in Hudson, Congress specifically stated that the FAA fines are "civil."
522 U.S. 93, 118 S. Ct. 488, 139 L. Ed. 2d 450 (1997).
Id. at 95, 118 S. Ct. at 491.
Id. at 95-96, 118 S. Ct. at 491.
Id. at 103, 118 S. Ct. at 495.
Id. at 104, 118 S. Ct. at 495.
In State v. O'Neill Investigations, Inc., the Alaska Supreme Court found that where a statute provided for a civil penalty "of not more than $5000 per violation . . . [t]he legislature's characterization of the penalty as civil [was], under the circumstances, entitled to great weight." The court held that the statute was not a penal statute as it was applied to the defendant. In Lamb's case, as in O'Neill, the action taken by the FAA was designated as "remedial" and the potential fines were less than $5000 per violation and were described as "civil penalties."
609 P.2d 520 (Alaska 1980).
Id. at 527.
Id.
Under these facts, it is clear that the FAA's license revocation proceeding against Lamb was remedial, not punitive, under Alaska law. As a result, AS 12.20.010 did not bar the State from prosecuting Lamb on state charges for the same underlying conduct.
Why we conclude that Judge Bolger did not err in refusing to sever the trials for the offenses that occurred on September 4, 2005, from the offenses that occurred on September 15, 2005 Alaska Rule of Criminal Procedure 8(a)(1) provides:
Joinder of Offenses. Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies, misdemeanors or both,
(1) are of the same or similar character and it can be determined before trial that it is likely that evidence of one charged offense would be admissible to prove another charged offense[.]
Judge Bolger found that the assaults which took place on September 4, 2005, and September 15, 2005, all had a similar character within the meaning of Criminal Rule 8(a)(1). Lamb does not contest this finding. But Lamb disputes Judge Bolger's finding that, if there were separate trials, the evidence of the September 4th and September 15th incidents would be cross-admissible for several purposes listed in Alaska Rule of Evidence 404(b)(1).
Judge Bolger indicated that the evidence would be cross-admissible to show: (1) motive — that Lamb had the common motive for his assaults of preventing others from hunting near his camps, and that Lamb assaulted Brewer and Mroczynski on September 15th in retaliation for transporting the hunters that Lamb assaulted on September 4th; (2) intent — that on both dates Lamb intended to frighten the victims away from his hunting camps; (3) knowledge — that in both cases Lamb knew that his conduct was dangerously reckless and would frighten both sets of victims; (4) identity — that Lamb was the same pilot who committed these particular assaults on both days by flying dangerously close to his victims; and (5) absence of mistake or accident — that Lamb's low flying on each occasion was not merely a careless accident, but an intentional act.
On appeal, Lamb argues that Judge Bolger erred by speculating what might be admissible under Evidence Rule 404(b)(1) without considering the actual theories of the prosecution and defense. Lamb asserts that Johnson v. State and other Alaska cases require such a finding. Lamb asserts that he did not present a defense based on lack of motive, opportunity, intent, preparation, plan, knowledge, identity, or mistake. Instead, he argues that his defense was that the witnesses were biased against him and were exaggerating his actions. Therefore, Lamb argues, the fact that he committed generally similar acts on another day was not admissible for any legitimate purpose under Evidence Rule 404(b)(1).
730 P.2d 175 (Alaska App. 1986).
Evidence Rule 404(b)(1) prohibits the admission of "other crimes, wrongs, or acts . . . if the sole purpose for offering the evidence is to prove the character of a person in order to show that the person acted in conformity therewith." This rule "codifies the common-law doctrine forbidding the admission of `propensity' evidence." Propensity evidence means "evidence of a person's other bad acts whose sole relevance is to prove the person's character, so that the person's character can then be used as circumstantial evidence that the person acted true to character during the episode being litigated." Evidence Rule 404(b)(1) does allow the admission of prior bad acts for "other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." In other words, "evidence of a person's prior misconduct is inadmissible unless it is probative of some disputed fact other than the person's general propensity to engage in similar misconduct." For example, under Evidence Rule 404(b)(1), "[e]vidence of a defendant's prior crimes is admissible to explain the relationship between two people."
Bingaman v. State, 76 P.3d 398, 403 (Alaska App. 2003).
Id. (citations omitted).
Jordan v. State, 895 P.2d 994, 999 (Alaska App. 1995).
Russell v. State, 934 P.2d 1335, 1341 (citing Braham v. State, 571 P.2d 631, 641 (Alaska 1977)).
The incidents here were cross-admissible to explain the relationship between Lamb and the assault victims, which was in dispute. In addition, as explained above, Judge Bolger found other reasons why the incidents were probative of disputed facts, and therefore cross-admissible. For example, Judge Bolger noted that the State would be able to cross-admit the evidence to show that Lamb had the common motive in each assault of preventing others from hunting near his camps. Judge Bolger also noted that the incidents were cross-admissible to show that, on both dates, Lamb intended to frighten the victims away from his hunting camps. Lamb claimed that he flew low over the Dorrell/Trueblood camp on September 4th to look for the moose he thought Dorrell and Trueblood had shot before the nonresident hunting season had started. Lamb also claimed that he flew low over Mroczynski, Gannon, and Burrish looking for a place to land rather than attempting to scare them. As to the incident on September 15, Lamb claimed that he was flying around the area where Brewer was attempting to take off because he was surprised that Brewer's float plane could take off from such a small lake and he "wanted to see how [Brewer] was going to get out of there." Thus, Lamb's motives and intent in each incident were in dispute, and the other incidents were probative of Lamb's disputed motives and intent.
In Maynard v. State, this court upheld the superior court's denial of a motion to sever because the evidence of each charge was necessary and relevant to explain the other charges. This court noted that joinder was proper under Criminal Rule 8(a) because "all charges grew out of a related series of events, and the trial court could well have anticipated that much of the evidence offered in support of one count would be relevant to the others." This court determined that Maynard's assault on the female victim in that case explained the officers' presence at his home, his state of mind in swinging a machete at one of the officers, and his subsequent attempt to escape. This court concluded that, "under these circumstances, evidence of each incident would be admitted at the trial of each of the others even if the incidents were tried separately." Similarly, under the circumstances of Lamb's case, Judge Bolger could properly determine that evidence of each incident would be admitted at the trial of the other if the incidents were tried separately.
652 P.2d 489 (Alaska App. 1982).
Id. at 491.
Id.
Id.
Id. (citing Catlett v. State, 585 P.2d 553, 556 (Alaska 1978); Nell v. State, 642 P.2d 1361, 1363-65 (Alaska App. 1982)).
It is clear that Judge Bolger carefully considered why and how the evidence would be cross-admissible under Evidence Rule 404(b)(1). Judge Bolger did not abuse his discretion in determining that the evidence would have been cross-admissible. Therefore, Judge Bolger did not err in concluding that the offenses were properly joined for trial.
A finding that joinder was proper under Criminal Rule 8(a)(1) does not end the inquiry. Even if joinder was proper, Lamb still may have been entitled to severance under Criminal Rule 14 if joinder of the charges unfairly prejudiced him.
The record shows that Judge Bolger carefully considered the types of prejudice that Lamb might suffer in a joint trial. To help guard against unfair prejudice, Judge Bolger instructed the jury, in accordance with the pattern jury instruction, to decide each count separately. It appears that the jury followed this instruction since it did not convict Lamb on several of the charges. Judge Bolger also noted that Lamb would not be unfairly prejudiced by joining the charges for trial since all of the evidence would have been cross-admissible. In Maynard, we determined that when evidence of each incident would be admitted at the trial for the other incidents, "the public interest in avoiding duplicative trials could be found to outweigh any possible prejudice from a combined trial." We conclude that Judge Bolger did not err in finding that Lamb would not be unfairly prejudiced by joinder of the September 4th charges with the September 15th charges. We therefore conclude that Judge Bolger did not abuse his discretion when he denied Lamb's motion to sever the charges for trial.
Id. (citing Catlett, 585 P.2d at 556; Nell, 642 P.2d at 1363-65).
Why we conclude that Judge Bolger did not err in excluding evidence that Brewer cut down trees on public land without a permit
Prior to trial, the State moved for a protective order. Among other things, the State wanted to preclude Lamb from suggesting that Brewer had acted illegally in cutting down trees at one of the camps. The State represented that Brewer had cut down a number of trees, apparently so they would not interfere with his airplane on takeoff or landing. The State represented that when Lamb complained to an Alaska state trooper that the trees had been cut, the trooper contacted the Department of Natural Resources, which informed him that Brewer needed a permit to cut the trees down. According to the State, Brewer then contacted the Department of Natural Resources, which gave him a permit after the fact. The State represented that Brewer was not fined and there were no repercussions.
Judge Bolger ruled that Lamb could testify that he was trying to contact Brewer because Brewer had placed a camp within a half mile of his camp or because Brewer had cut down a number of trees around a small pond. But he ruled that Lamb could not introduce evidence or testify that Brewer's acts were illegal or a violation of ethical standards unless Lamb could establish that legal duties or laws had been violated. If Lamb could show that legal standards had been violated, Judge Bolger indicated he would reconsider his order. He ruled that Lamb could question any of the state troopers about whether Lamb had been selectively prosecuted, and about whether violations committed by other witnesses had been ignored.
On appeal, Lamb argues that Judge Bolger erred in restricting his ability to show Brewer's bad acts. He argues that it was necessary for him to show these bad acts to demonstrate that the witness's testimony was biased because he was attempting to deflect attention and possible prosecution away from his own misdeeds by exaggerating his claims against Lamb. Lamb also argues that this evidence was necessary to show his motive in investigating Brewer's wrongdoing — that it would explain why Lamb was flying near Brewer: to investigate the cutting of the trees.
We conclude that Judge Bolger did not err in restricting Lamb's ability to present evidence that Brewer had cut down trees. Judge Bolger simply ruled that Lamb could not introduce this evidence unless he established that legal standards were violated. The State's offer of proof, which Lamb did not dispute beyond suggesting it might constitute criminal mischief, indicates that Brewer's cutting down trees was a minor violation that was remedied when Brewer obtained a permit after the fact. Judge Bolger could properly determine in the absence of more of a showing by Lamb that evidence that Brewer had cut down trees or had committed other apparently minor violations was not admissible. In other words, he could determine, under Evidence Rule 403, that the probative value of this evidence was outweighed by the danger of unfair prejudice.
See, e.g., Johnson v. State, 889 P.2d 1076, 1081 (Alaska App. 1995) (explaining that Rule 403 gives trial courts broad discretion to exclude relevant evidence and that proper application of the rule does not violate a defendant's right to confrontation).
Lamb further argues that he was unable to establish Brewer's violations and the selective enforcement of the law during his cross-examination of Trooper Alan Jones. Outside the presence of the jury, Lamb informed Judge Bolger that he wanted to cross-examine Trooper Jones about the way Jones investigated the case. Lamb wanted to establish that the trooper ignored the fact that the witnesses against Lamb had a motive to lie to cover up their own illegal conduct. Although Judge Bolger ruled that Lamb could not cross-examine Trooper Jones on this matter during the State's case because it was outside the scope of the testimony the State presented, Judge Bolger ruled that Lamb might be able to present this evidence as part of his case-in-chief. In response, Lamb indicated that he reserved the right to call the trooper during his own case. On cross-examination during the State's case, Lamb was allowed to elicit from Trooper Jones only that he investigated a tree-cutting incident involving about thirty spruce trees and that the trees were owned by the State of Alaska. Later, when Lamb called Trooper Jones as a witness, he did not ask Trooper Jones about the tree-cutting incident or the other possible violations. Under these circumstances, Lamb did not preserve this issue for appeal. Judge Bolger did not err in denying Lamb's motion for judgment of acquittal on count eleven
Count eleven charged Lamb with assault in the fourth degree for recklessly placing Walter in fear of imminent physical injury. Walter was a passenger in the plane piloted by Brewer on the way from the staging lake to Kenai. Lamb contends that the State did not present sufficient evidence that Walter actually perceived any risk of harm stemming from Lamb's behavior when Lamb flew near Brewer and Walter on their way back to Kenai. Specifically, Lamb argues that the State did not offer any evidence through the testimony of Walter — and insufficient evidence through the testimony of others — to show that Walter subjectively perceived a risk of harm from Lamb's actions.
AS 11.41.230(a)(3) (Under this subsection a person commits assault in the fourth degree if "by words or other conduct that person recklessly places another person in fear of imminent physical injury.").
In reviewing the record to determine whether substantial evidence supports a conviction for assault in the fourth degree, we "consider only those facts in the record most favorable to the prosecution and such reasonable inferences as a jury may have drawn from them." The State introduced sufficient evidence through the testimony of others who witnessed the incident to support a finding that Lamb assaulted Walter. While Walter's testimony as to the incident was sparse, Brewer's was clear regarding the proximity of Lamb's plane and his own subjective reaction: "It's just way too close, especially if a guy's yelling and screaming at you on the radio, you don't know what he's going to do, you know . . . he's wanting a confrontation. Who's to say he wouldn't try and bump you or run into you." Most importantly, Brewer was clear about the concerns of Walter during this exchange on cross-examination:
Dorman v. State, 622 P.2d 448, 453 (Alaska 1981) (quoting Martin v. Fairbanks, 456 P.2d 462, 464 (Alaska 1969)).
Q: And my understanding is that you became . . . scared about what was going on because this plane was above you, right?
A: At one point, yeah.
Q: Below you?
A: Correct.
Q: On both sides?
A: Just one side.
Q: One side. And would Mr. Walters [sic] have been observing all of this, too?
A: Yes.
Q: And you expressed your concerns to him?
A: Definitely.
Q: And he had similar concerns?
A: Definitely.
Lastly, Donny D. Curtis, a moose hunter from Michigan, testified as to the radio conversation between Brewer and Lamb, which Curtis and Walter overheard. Curtis testified that "[m]ore than once [Brewer] told [Lamb] `your plane's way too close, you need to back away'" and that "[Brewer] just kept trying to tell [Lamb] to . . . get his plane back. [Brewer] said . . . `you're being dangerous.'" This radio conversation, taken together with Brewer's testimony, clearly establishes the content of Brewer's concern, which Brewer testified was shared by Walter. Viewing this evidence in the light most favorable to the State, we conclude that "a fair-minded juror exercising reasonable judgment could conclude that the State had met its burden of proving guilt beyond a reasonable doubt."
See Dailey v. State, 65 P.3d 891, 898 (Alaska App. 2003).
Lamb nevertheless claims that Judge Bolger "erred in relying on Brewer's testimony" as evidence that Walter perceived a risk of harm. But the testimony supporting Walter's perception of the risk need not come from Walter alone, so long as it is sufficient to support a finding of guilt beyond a reasonable doubt by a reasonable juror.
Why we conclude that Judge Bolger did not impose an excessive sentence
Judge Bolger sentenced Lamb on eight counts of assault in the third degree and one count of assault in the fourth degree. Assault in the third degree is a class C felony, which carries a maximum sentence of 5 years. Because Lamb is a first felony offender, he was subject to a presumptive sentencing range of 0 to 2 years under AS 12.55.125(e)(1). Assault in the fourth degree is a class A misdemeanor with a maximum sentence of 1 year of imprisonment.
AS 11.41.220(d).
AS 12.55.125(e).
References are to the version as amended, effective March 23, 2005 and in force in September of 2005 when the offenses were committed.
AS 11.41.230 (a)(3); AS 12.55.135(a).
Judge Bolger imposed a sentence of 10 months with 6 months suspended on each of Lamb's convictions for assault in the third degree. He imposed a sentence of 4 months on the conviction for assault in the fourth degree. Judge Bolger imposed all of the sentences to run consecutively, which resulted in a composite sentence of 7 years with 4 years suspended, or 3 years to serve. Judge Bolger also imposed a fine of $40,000 and placed Lamb on probation for a period of 5 years.
Lamb argues that the composite sentence Judge Bolger imposed is excessive. In Farmer v. State, a case decided under the pre-March 2005 sentencing code, we stated that when a defendant is convicted of several crimes, the court is not to exceed the presumptive term for the most serious crime unless the court gives a "good reason" for exceeding that benchmark. In sentencing Lamb, Judge Bolger considered Farmer and found that, in Lamb's case, there was good cause to impose a sentence which exceeded the presumptive range for a first felony offender convicted of a single count of assault in the third degree. Judge Bolger found that Lamb "repeatedly used his airplane to try to frighten other guides and hunters away from his camps." He found that Lamb had intentionally used his airplane to make the victims "afraid he was going to hit them." Judge Bolger noted that Lamb had done this even though he had a client in the back seat of his airplane and concluded that Lamb's actions could have easily caused a fatal accident. We also note that Lamb committed these assaults on two separate occasions on different groups of hunters.
746 P.2d 1300 (Alaska App. 1987).
Id. at 1301.
Judge Bolger noted that Lamb had called Trooper Justin Rodgers's house and told Rodgers's wife that the trooper needed to intervene before someone got killed. He also observed that Lamb had threatened Brewer, even though he knew other people would be listening in on the radio and would hear the threats. Judge Bolger concluded that Lamb did not think that he was doing anything wrong and that he would probably do the same thing again unless he faced a substantial penalty for his actions. Therefore Judge Bolger concluded that it was necessary for him to impose a substantial sentence in order to deter Lamb's behavior and to protect the public. Judge Bolger's findings are supported by the record and support the sentence that he imposed.
Judge Bolger also imposed probation conditions which prohibited Lamb from owning or operating an airplane. Lamb argues that these probation conditions were improper. Under Alaska law, probation conditions must be reasonably related to the offender's rehabilitation and the protection of the public, and they "must not be unduly restrictive of liberty." Lamb contends that Judge Bolger should have imposed less restrictive conditions. He argues that there was "no legitimate basis for preventing Lamb from owning an airplane during his probation" or from flying in a non-commercial capacity. But Judge Bolger found that Lamb's conduct was extremely dangerous and likely to be repeated. He concluded that Lamb should not be permitted to "fly a plane again, at least not while he's on probation." Judge Bolger stated that this might be the most important part of his sentence. We believe that Judge Bolger's findings support the probation conditions. Essentially, Judge Bolger was attempting to make sure that Lamb would not have the opportunity to fly, at least during the probationary period. Judge Bolger concluded that these probation conditions were necessary to achieve that end. We conclude that his findings justify the probation conditions.
Roman v. State, 570 P.2d 1235, 1240-41 (Alaska 1977).
Lamb argues that the $40,000 fine that Judge Bolger imposed is excessive. Under AS 12.55.035(b)(4), the sentencing judge may impose a fine of up to $50,000 on a defendant convicted of a class C felony (which includes assault in the third degree). In Lamb's case, Judge Bolger imposed a fine of $5,000 for each of counts one through eight, for a total unsuspended fine of $40,000 to be paid within five years. In addition, Judge Bolger declared that "the fine shall be paid in full when the defendant sells the super cub currently in State custody." Lamb contends that Judge Bolger erred in failing to consider Lamb's ability to pay the fine. But AS 12.55.035(b)(4), which applies to fines for class C felonies, requires no such investigation. We rejected an argument identical to Lamb's in Dodge v. Anchorage, where Dodge argued that the imposition of a $5000 fine under the Anchorage Municipal Code without an inquiry into his ability to pay was illegal. Dodge argued that we should apply former AS 12.55.035(a) (1990), which required a trial court to examine the defendant's ability to pay when imposing a fine. This court noted, however, that the amendment to AS 11.55.035(a) in 1992 removed this language and, in doing so, removed any requirement to look into a defendant's ability to pay when imposing a fine.
877 P.2d 270 (Alaska App. 1994).
Id. at 272.
Id.
Id.
Although the statute does not require a sentencing judge to inquire into a defendant's ability to pay before imposing a fine, it also does not forbid it. And, in fact, it appears that Judge Bolger did consider Lamb's ability to pay. He ordered that Lamb's fine would be paid in full when he sold his airplane. He also stated that if the State forfeited the plane or something else happened where Lamb was prevented from selling the plane, he would probably reconsider the fine. Lamb argues that the fine was "a device to force Lamb to surrender his airplane." But Judge Bolger appears to have been considering Lamb's ability to pay the fine; the airplane appears to be Lamb's major asset. And under Lamb's probation conditions, Lamb was required to dispose of that asset. If Lamb sold the airplane as required by the court's order, he would be able to satisfy the fine. As we have previously stated, Judge Bolger concluded that it was necessary to impose a substantial sentence to deter Lamb and to protect the public. We conclude that Judge Bolger's findings support his imposition of the $40,000 fine.
The judgment of the superior court is AFFIRMED.
I disagree with my colleagues on one point: Lamb should have been allowed to cross-examine Brewer about Brewer's act of cutting down trees on state land without a permit — because, at least potentially, Brewer's violation of the law gave him reason to be biased in favor of the State when he described Lamb's conduct.
Judge Bolger refused to allow this proposed cross-examination until Lamb demonstrated that Brewer's conduct had violated a "legal standard". But all parties to the proceedings apparently agreed that it is unlawful to cut down trees on public land without a permit.
That being said, I conclude that this error was harmless under the test set forth in Love v. State, 457 P.2d 622, 629-631 (Alaska 1969). In other words, I conclude that this error did not appreciably affect the jury's verdict.
Although the proposed cross-examination would have raised a relevant issue (Brewer's potential bias in favor of the government), this cross-examination would have had little probative force under the facts of this case. As the majority opinion points out, Brewer's violation of state land law had already been resolved by the time of Lamb's trial, and it was resolved without adverse consequences to Brewer. (Brewer applied for, and was granted, the necessary permit after the fact.)
In addition, Lamb's attorney cross-examined Brewer about whether Brewer was Lamb's business competitor — thus alerting the jury that Brewer potentially had a much more direct reason to be biased against Lamb.
For these reasons, I conclude that Lamb was not seriously prejudiced by the erroneous ruling.