Opinion
Court of Appeals No. A-9111.
March 1, 2006.
Appeal from the Superior Court, First Judicial District, Wrangell, Larry C. Zervos, Judge, Trial Court No. 1WR-03-120 Cr.
Michael P. Heiser, Ketchikan, for the Appellant.
Douglas H. Kossler, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION
Christopher Mork appeals the sentence he received for third-degree weapons misconduct under AS 11.61.200(a)(1) — possessing a concealable firearm after having been convicted of a felony. Mork borrowed a .22 caliber pistol and took it with him on a camping trip along the Stikine River. Mork's unlawful possession of this weapon came to light after the pistol fell from his pocket and discharged, wounding him in the leg. Helicopters and emergency medical technicians had to be dispatched from Wrangell to save Mork.
Third-degree weapons misconduct is a class C felony. Mork, as a second felony offender, faced a presumptive term of 2 years' imprisonment for this offense. At sentencing, Mork argued that his offense was mitigated under former AS 12.55.155(d)(9) (now renumbered as 155(d)(8)); that is, Mork argued that his conduct was among the least serious within the definition of the offense. Superior Court Judge Larry C. Zervos rejected this proposed mitigator and sentenced Mork to the 2-year presumptive term. Mork now appeals Judge Zervos's ruling on the proposed mitigator.
AS 11.61.200(i).
See former AS 12.55.125(e)(1).
At the sentencing hearing, Mork argued that his conduct was among the least serious within the definition of the offense because he did not personally own the pistol; rather, he borrowed the pistol for a temporary purpose (to take the weapon on a weekend camping trip along the Stikine River). Mork pointed out that he did not possess the weapon for the purpose of committing a crime. In addition, Mork pointed out that he did not intentionally discharge the weapon; rather, the weapon fired by accident when it fell from his pocket. Mork conceded that someone had been wounded as a result of his conduct — but he pointed out that the wounded person was himself. And, finally, Mork argued that he had not concealed his possession of this weapon; rather, he carried it openly, and the other participants in the camping trip were aware that he was armed.
Judge Zervos acknowledged all of these facts. However, the judge also observed that, even though a felon may possess a concealable firearm for only a short time, this fact does not necessarily mean that the defendant's conduct is among the least serious within the definition of the offense. In Mork's case, Judge Zervos noted that someone (Mork) had been injured, and the judge also noted that Mork was intoxicated at the time the gun went off.
(When Mork was being treated for the bullet wound, his blood alcohol level was tested. The result was .122 percent — well above the .08 percent required to prove driving under the influence.)
See AS 28.35.030(a)(2).
For these reasons, despite the mitigating circumstances argued by Mork, Judge Zervos concluded that Mork had failed to prove, by clear and convincing evidence, that his conduct was among the least serious encompassed by the definition of third-degree weapons misconduct.
See former AS 12.55.155(f) (now renumbered as AS 12.55.155(f)(1)).
Because neither party disputes Judge Zervos's view of the facts, the sole issue to be resolved on appeal is whether Judge Zervos correctly concluded that these facts did not clearly and convincingly prove Mork's proposed mitigating factor of "least serious conduct". On this issue, we are entitled to engage in de novo review; that is, we do not owe any deference to Judge Zervos's view of what constitutes the least serious conduct within the definition of this offense.
Michael v. State, 115 P.3d 517, 519 (Alaska 2005).
As noted above, Mork contends that his offense is mitigated because he did not take possession of the handgun for the purpose of committing a new crime. However, as we explained in Shaw v. State, 677 P.2d 259, 260 (Alaska App. 1984) (opinion on rehearing), a defendant's intention to use the firearm to commit a new crime would be an "aggravated instance" of the offense of being a felon in possession of a concealable firearm. The fact that Mork's conduct was not an aggravated instance of the offense does not prove that his conduct was among the least serious within the definition of the offense.
Also, as noted above, Mork argues that his possession of the pistol was only temporary, in the sense that his possession was intended to be of limited duration (the duration of the camping trip, had that trip not been cut short by Mork's injury). Mork suggests that his temporary possession of the pistol is analogous to the "brief" possessions that the Shaw opinion characterizes as mitigated instances of third-degree weapons misconduct.
But the brief possessions that we referred to in Shaw were the possessions that might occur when a felon found a concealable firearm and kept it briefly for the purpose of turning it over to the police, or when a felon, without illegal purpose, agreed to act briefly as the caretaker of a weapon owned by another. Shaw, 677 P.2d at 260. Although there is no direct evidence in this case of the intended duration of Mork's camping trip, it appears (from the fact that Mork had to be medevacked out by helicopter) that the trip was intended to last two or more days.
Taking a pistol on a camping trip of several days' duration does not qualify as one of the "brief" possessions that Shaw describes as mitigated instances of the offense. And, to the extent that the record remains unclear regarding the intended length of the camping trip, we note that it was Mork's burden to prove the mitigator, not the State's burden to disprove it.
In addition, we note that possession of a firearm while one's physical or mental capacities are impaired by the consumption of alcoholic beverages is a separate offense. See AS 11.61.210(a)(1). Mork's blood alcohol level (when he was being treated for his wound) was .122 percent. We agree with Judge Zervos that Mork's intoxication militated against the proposed "least serious conduct" mitigator.
And finally, as Judge Zervos noted, Mork's offense resulted in physical injury to himself. We acknowledge that, under AS 12.55.155(c)(1), the infliction of physical injury is an aggravating factor in felony sentencings only when the injury is inflicted on a person who was not an accomplice to the criminal activity. However, as the prosecuting attorney pointed out at Mork's sentencing, Mork's injury required the dispatch of helicopters and emergency medical technicians from Wrangell, at a cost of thousands (if not tens of thousands) of dollars. This fact, too, militates against Mork's argument that his conduct was among the least serious within the definition of the offense.
For all of these reasons, we conclude that Judge Zervos properly rejected Mork's proposed mitigating factor. Accordingly, the sentencing decision of the superior court is AFFIRMED.