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Smith v. State

Court of Appeals of Alaska

July 27, 2018

JAMES EARL SMITH, Appellant,
v.
STATE OF ALASKA, Appellee.

          Appeal from the Superior Court, Third Judicial District, Trial Court No. 3AN-12-8143 CR Anchorage, Michael L. Wolverton, Judge.

          Jane B. Martinez, Law Office of Jane B. Martinez, LLC, under contract with the Office of Public Advocacy, Anchorage, for the Appellant.

          June Stein, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee.

          Before: Mannheimer, Chief Judge, and Allard and Wollenberg, Judges.

          OPINION

          WOLLENBERG JUDGE

         A jury found James Earl Smith guilty of first-degree robbery, first-degree burglary, second-degree assault, and second-degree theft in connection with a home invasion. At Smith's sentencing, the trial court merged the theft, but not the assault, into the robbery conviction.

         On appeal, Smith argues that Alaska's double jeopardy clause requires the merger of the robbery and the assault into a single conviction. Smith also argues that the judgment fails to properly reflect the merger of the robbery and the theft into a single conviction. We agree with Smith on both points and remand for the trial court to merge the robbery, assault, and theft verdicts into a single conviction and modify the judgment to reflect the entry of two convictions - first-degree robbery and first-degree burglary.

         Additionally, Smith argues that the trial court erred by declining to find a mitigating factor under AS 12.55.155(d)(4) - that Smith was a youthful person substantially influenced to commit the crime by a more mature person. We uphold the trial court's decision denying this mitigator.

         Underlying facts

         In the summer of 2012, Benj amin Gall and Amanda Swafford were renting a room in their apartment to Richard Erdmann and his girlfriend. Erdmann was paying rent to Gall at least partially in the form of heroin.

         After a physical altercation between Gall and Erdmann, Gall and Erdmann shook hands, but Gall told Erdmann to move out. A few hours later, Erdmann returned with three grams of heroin for Gall to sell while he was commercial fishing in Whittier. Gall accepted the heroin and went to Whittier as planned, but he returned to Anchorage two days early without having sold the heroin.

         That evening, a group of men broke into Gall and Swafford's apartment while they were sleeping. The group included Erdmann, James Smith, Taylor Smith, and a fourth man allegedly named "Hugo." Gall knew all of the men except for Hugo.

         Gall encountered Hugo at the top of the stairs; Gall lunged at Hugo and the two tumbled down the stairs and flipped over the banister. Once Gall landed at the bottom of the stairs, all four men began kicking Gall in the face and head. Hugo then held Gall down while the other three men took items from the apartment and put them in a vehicle outside. At one point when Gall tried to get up, Hugo hit him in the face with a hammer.

         Anchorage police responded to the apartment after receiving two 911 calls. The responding officer arrived just as the robbers' vehicle was exiting the parking area. After a short pursuit, the vehicle stopped, and three men fled the vehicle. The officer recognized Erdmann and Taylor Smith and later identified James Smith. The police also determined that James Smith was the registered owner and driver of the vehicle, which contained Gall's and Swafford's belongings.

         Gall sustained multiple fractures to his face, nasal, and sinus area from the beating. Gall testified that he now has metal plates and screws in his face and that he has lost significant vision in his right eye.

         Proceedings

         A grand jury indicted James Smith and his co-defendants - Erdmann and Taylor Smith - for first-degree robbery, first-degree burglary, second-degree assault, and second-degree theft.[1] The police never located or charged Hugo.

         The three co-defendants were tried together. At trial, the prosecutor argued that the defendants initially intended to commit a burglary, but when they found Gall and Swafford at home, the incident escalated into a robbery. The prosecutor argued that the defendants assaulted Gall in order to facilitate the taking of Gall's property to satisfy a drug debt.

         The jury convicted the three defendants of all charges. At the prosecutor's request, the court also submitted special verdict forms to the jury.[2] In the special verdicts, the jury found that in the course of committing first-degree robbery, none of the co-defendants used a dangerous instrument or caused serious physical injury to Gall. In other words, the verdicts indicated that the jury found that Smith and his co-defendants were complicit in the robbery, but that it was Hugo who personally used a dangerous instrument and caused serious physical injury to Gall.

         Prior to sentencing, Smith proposed mitigating factor AS 12.55.125(d)(4) - that Smith was a youthful person who had been substantially influenced to commit the robbery by a more mature person (Erdmann). Smith also argued that the robbery and assault verdicts should merge into a single conviction.

         The prosecutor agreed that the robbery and theft verdicts should merge, but he opposed Smith's request to merge the robbery and assault verdicts. The prosecutor, however, supported the imposition of completely concurrent sentences for the robbery and the assault.

          At sentencing, the court rejected Smith's proposed mitigating factor. The court merged the robbery and theft verdicts into a single conviction. The court did not expressly rule on Smith's request to merge the robbery and the assault, but the court implicitly denied Smith's request when it announced its intent to impose the prosecutor's recommended sentence and then imposed sentence on the three remaining convictions.

         The court imposed a sentence of 8 years with 3 years suspended on the robbery conviction, with the sentences on the assault and burglary convictions running concurrently to each other and to the robbery sentence. Smith therefore received a composite sentence of 5 years to serve.

         This appeal followed.

         Smith's argument that he should not have received separate convictions and sentences for first-degree ...


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