KENNETH J. LEWIS, Appellant,
STATE OF ALASKA, Appellee.
Appeal from the Superior Court, Third Judicial District, Court of Appeals No. A-10957 Trial Court No. 3AN-10-5283 CR Anchorage, Michael Spaan, Judge.
Renee McFarland, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Ann B. Black, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Coats, Senior Judge.[*]
Coats, Senior Judge.
Kenneth J. Lewis was convicted of second-degree escape for leaving a halfway house in Anchorage. At trial, Lewis contended that he was not guilty of escape because he believed he had been given permission to leave the halfway house. To rebut this defense, the court permitted the State to admit evidence of Lewis's prior conviction for escape. The court concluded that evidence of the prior conviction was admissible to undercut Lewis's defense that he mistakenly believed he had permission to leave the halfway house. Lewis argues that the trial court erred in making this ruling. We affirm the trial court's decision.
Lewis also argues that, at sentencing, the trial court erred in rejecting his proposed mitigating factor, that his offense was among the least serious conduct included in the definition of the offense. We agree that Lewis established this mitigating factor. We therefore remand the case for resentencing.
Factual and procedural background
The Department of Corrections placed Kenneth Lewis at the Glenwood Center, which is a halfway house in Anchorage. On May 14, 2010, Lewis returned to the Glenwood Center after an approved release. Upon his return, a breath test revealed that he had consumed alcohol, in violation of his conditions for staying at the Glenwood Center. Lewis was told that as a consequence of this violation he was going to be remanded back to the Department of Corrections.
Lewis then left the Glenwood Center. He called the police the next day, and was arrested and charged with second-degree escape.
At Lewis's trial, various staff members at the Glenwood Center testified that they did not have the legal authority to physically stop an inmate from leaving the facility without permission. Several staff members said the policy of the halfway house was to talk to an inmate who was considering leaving the facility to discourage them from leaving and incurring the additional criminal charges that would result. Staff members testified that they had these conversations with Lewis. They also testified that Lewis left the facility without permission.
Lewis conceded that he had these conversations with staff members. But he testified that he also had a conversation with Max Todhunter, the supervisor of the Glenwood Center. He said he asked Todhunter if he could go outside, get some fresh air, and smoke a cigarette, and Todhunter said it was completely up to him. According to Lewis, Todhunter told him not to leave the property and to ring the buzzer on the door when he wanted to come back in. Lewis said he went outside, smoked some cigarettes, and tried to return after about twenty minutes, but that the staff would not let him back in. He said he waited outside the halfway house for about an hour and a half, but no police showed up. Lewis said he found someone with a cell phone and used it to call the police. He was told that a police officer would show up to talk to him, but no officer arrived. So Lewis walked to his brother's house. He eventually called the police from there and was taken into custody. Lewis testified that he had not tried to escape and that the whole incident was a big misunderstanding.
Lewis had also been convicted of escape in 2005 for leaving a halfway house. The State asked the court to admit evidence of that prior conviction on the theory that it was admissible to undermine Lewis's contention that he did not intend to escape in this case. The trial court concluded that the prior escape conviction was admissible for this purpose.
Lewis addressed this 2005 conviction in his testimony. He said he had been sent to a halfway house, that he told the staff he did not want to be there, and that he walked out the front door as soon as they brought him there. ...