from the Superior Court, Third Judicial District, Trial Court
No. 3AN-12-8143 CR Anchorage, Michael L. Wolverton, Judge.
B. Martinez, Law Office of Jane B. Martinez, LLC, under
contract with the Office of Public Advocacy, Anchorage, for
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,
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.
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.
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.
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.
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
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.
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
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
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.
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. The police never located or charged Hugo.
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
jury convicted the three defendants of all charges. At the
prosecutor's request, the court also submitted special
verdict forms to the jury. 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.
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.
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.
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.
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.
argument that he should not have received separate
convictions and sentences for first-degree ...