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Middleton v. State (7/20/2007) ap-2111

Middleton v. State (7/20/2007) ap-2111

                             NOTICE
     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
     are  encouraged to bring typographical or other  formal
     errors  to  the attention of the Clerk of the Appellate
     Courts:

             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878
       E-mail:  corrections@appellate.courts.state.ak.us

         IN THE COURT OF APPEALS OF THE STATE OF ALASKA


DAVID MIDDLETON II, )
) Court of Appeals No. A-9633
Appellant, ) Trial Court No. 3AN-04-402 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) No. 2111 July 20, 2007
)
          Appeal  from the Superior Court,  Third  Judi
          cial  District, Anchorage, Philip R. Volland,
          Judge.

          Appearances:   Sharon Barr, Assistant  Public
          Defender,   and   Quinlan   Steiner,   Public
          Defender,   Anchorage,  for  the   Appellant.
          Kenneth  M.  Rosenstein,  Assistant  Attorney
          General,  Office of Special Prosecutions  and
          Appeals,  Anchorage, and  Talis  J.  Colberg,
          Attorney General, Juneau, for the Appellee.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Stewart, Judges.

          MANNHEIMER, Judge.

          David  Middleton  II  was charged with  kidnapping  and
first-degree  robbery,  based  on allegations  that  he  and  two
accomplices  robbed  a pizza delivery person  at  gunpoint,  then
forced  the  victim  into a car and drove the victim  around  the
block,  attempting  to convince the victim to  deliver  one  more
pizza and then surrender the purchase money to them.
          Middleton defended these charges by asserting that  the
whole  episode  was devised by the pizza delivery  person,  Burim
Limani.   According to Middleton, Limani wanted  to  steal  money
from  his  employer, so he enlisted Middleton and his friends  to
make it look as if the money had been taken during a robbery.
          The  jury rejected this defense and convicted Middleton
of both charges.  Middleton now appeals.
          As  explained in more detail below, Middleton  contends
that  the jury returned an inconsistent verdict on the kidnapping
charge.   Middleton further contends that his robbery  conviction
should  be set aside because the trial judge refused to  instruct
the jury on the lesser offense of third-degree theft.
          For  the reasons given here, we conclude that the jurys
verdicts  regarding the kidnapping charge were not  inconsistent,
and  we also conclude that Middleton was not entitled to have the
jury  instructed on third-degree theft.  We therefore uphold both
of Middletons convictions.

     The jurys decision on the kidnapping charge
     
          According  to the States evidence,  Middleton
approached  Limani  in a parking  lot.   Middleton  was
holding  a  handgun, and he demanded that  Limani  turn
over   his   money.   Then,  after  Limani  surrendered
approximately  $90  in  cash  to  Middleton,  Middleton
pointed the gun at Limani and ordered him to get into a
car,  where  his  two accomplices  were  waiting.   The
robbers  drove  Limani around in the car  for  a  short
while,  and then they returned him to the parking  lot.
At  this  point, Middleton instructed Limani to deliver
another  pizza  and then turn the money over  to  them.
Limani  refused  to  do  this.   Instead,  Limani  told
Middleton  and his accomplices to just take the  pizza.
Apparently, Middleton and his friends were not  in  the
mood  for  pizza; they simply drove away  (without  the
extra money or the pizza).
          At  trial,  the defense attorney argued  that
Middletons act of forcing Limani into the car and  then
driving  him around for a short time was so  incidental
to  the  robbery  that it could not legally  support  a
separate conviction for kidnapping.
          This  Courts  decision in Hurd v.  State,  22
P.3d  12  (Alaska  App.  2001), contains  an  extensive
discussion of the law on this point.  See Hurd, 22 P.3d
at  13-15  &  18-19.  In particular, the Hurd  decision
lists  five  factors  that juries  must  consider  when
deciding  whether an act of restraint committed  during
an  assaultive felony can support a separate conviction
for kidnapping, or whether that act of restraint should
be deemed merely incidental to the accompanying felony.
Id. at 19.
          Middletons   jury  received  an   instruction
Instruction Number 17  based on the five Hurd  factors.
This instruction told the jurors that, before Middleton
could  lawfully be convicted of kidnapping,  the  State
had  to  prove  that Middleton restrained  Limani   and
that,  in  this  context,  the  word  restrained  meant
restrained the victim for a period of time[,] or  moved
the victim a greater distance[,] than was necessary  to
accomplish the target crime [of robbery].
          Instruction 17 then continued by quoting  the
five Hurd factors:
     
          In  making  [this] decision[,]  you  may
     consider the following factors:
     
          1) how long the victim was restrained;
     
          2)  if the victim was moved, how far and
     where the victim was taken;
     
     3)   whether,  under  the   facts,   the
restraint exceeded what was necessary for the
commission of the defendants target crime;

     4)  whether  the restraint significantly
increased  the  risk of harm  to  the  victim
beyond  the  risk  of harm  inherent  in  the
target crime itself; and

     5)   whether  the  restraint  had   some
independent purpose, for example, whether the
restraint  made it significantly  easier  for
the  defendant to commit the target crime  or
made   it   significantly  easier   for   the
defendant to escape detection.

(Quoting Hurd, 22 P.3d at 19.)
          During the jurys deliberations, the
jurors asked a series of questions indicating
that  they  were  having difficulty  deciding
whether   Middletons  restraint   of   Limani
qualified   as   a   separate   offense    of
kidnapping.  Then, toward midday on the third
day  of deliberations, the jurors sent a note
to the court which read:

     We agree that the condition of restraint
was  met.   [However, we] can not agree  that
[the]  restraint was intended  to  facilitate
[Middletons] flight.  [Is it sufficient that]
the victim was restrained before or after the
robbery[?]

          Superior  Court  Judge  Philip   R.
Volland  answered this question by  directing
the  jurors to Instructions 17 and  18.   (We
have    already   quoted   Instruction    17.
Instruction 18 contained the basic definition
of restrain.)  Judge Volland then continued:

     If  you  agree  that  the  condition  of
restraint  was  met  as  defined   in   these
instructions,  then  the restraint  [required
for kidnapping] can occur before or after the
[accompanying]  felony so long  as  you  find
that [this] restraint was with the intent  to
facilitate the commission of the felony.

          About an hour and a half later, the
jurors  announced  that they  had  reached  a
verdict.   (The  jury  had,  in  fact,  found
Middleton  guilty  of  both  kidnapping   and
robbery.)
          After  the  jurors  announced  that
they  had reached a decision, but before  the
jurys   verdicts  were  announced  in  court,
Middletons  attorney asked Judge  Volland  to
submit  a special interrogatory to the jurors
in the event that they found Middleton guilty
of  kidnapping.   Specifically,  the  defense
attorney  wanted the jurors to specify  which
of  Middletons acts (apart from  the  robbery
itself)    constituted   the    offense    of
kidnapping.
          In    response,   the    prosecutor
suggested  an  alternative:  an interrogatory
that would not ask the jurors to divulge  the
details  of  their decision, but which  would
simply  ask the jurors, Did [you] unanimously
find  that  the restraint [in this case]  was
more than merely incidental to the commission
of the robbery?
          After   discussing  this  issue   a
little  more with the parties, Judge  Volland
agreed  to  give  the  prosecutors  suggested
interrogatory to the jurors in the event that
the   jurors   found  Middleton   guilty   of
kidnapping.
          As  already  explained, the  jurors
did  find Middleton guilty of kidnapping  and
Judge  Volland  therefore  required  them  to
return to their deliberations and answer  the
special interrogatory.
          The   problem  with  this   special
interrogatory   as  Judge  Volland  and   the
parties  were soon to discover   is  that  it
asked   the   jurors   to   declare   whether
Middletons restraint of Limani was more  than
merely  incidental to the commission  of  the
robbery,  but  there was no jury  instruction
that   informed   the  jurors   what   merely
incidental meant.
          Lawyers  and  judges familiar  with
the   Hurd  decision  would  understand  this
concept  of  an  incidental restraint.   They
would understand that Middletons restraint of
Limani  would  be  incidental  to  Middletons
commission of the robbery if, under the  five
Hurd factors, the restraint of Limani was not
sufficiently  distinct from  the  robbery  to
support a separate conviction for kidnapping.
          But  no  one explained this to  the
jury.   In particular, no one told the jurors
that  the word incidental had a special legal
meaning in this context.  Instead, the jurors
were  left  to answer Judge Vollands  special
interrogatory using the everyday  meaning  of
incidental.  This everyday meaning, according
to  Websters New World College Dictionary, is
happening  as a result of[,] or in connection
with[,]  something  more important.1   It  is
therefore  hardly surprising that,  when  the
jurors  announced their answer to the special
interrogatory, they declared that  Middletons
restraint of Limani was merely incidental  to
the robbery.
          After  asking the jurors to  return
to  the  jury  room for a few minutes,  Judge
Volland  told the parties that he  considered
the    jurors    answer   to   the    special
interrogatory to be inconsistent  with  their
verdict on the kidnapping charge.  The  judge
then  asked  the parties to offer suggestions
on what to do.
          Middletons  attorney  asked   Judge
Volland  to  dismiss  the  jury,  vacate  the
kidnapping conviction, and enter a  judgement
of acquittal on that count of the indictment.
However,  the prosecutor belatedly recognized
and  pointed out the problem.  She  told  the
court,

     That  language [about merely incidental]
is   specialized  language  that  applies  to
kidnapping.  But [Instruction] 17 doesnt have
that language.  ...  Its my fault [because  I
was  the one who proposed the wording of  the
special  interrogatory].  But ...  I  imagine
that thats the source of their confusion  ...
.

          Judge   Volland  ultimately  agreed
with  this analysis.  That is, he agreed that
the  use  of the phrase merely incidental  in
the   special   interrogatory  was   probably
confusing  to  the  jurors,  and  he  further
agreed that the real question was whether the
jurors  unanimously concluded that Middletons
restraint  of Limani qualified as a restraint
under  the test described in Instruction  17.
          (This was the instruction that listed the
five  Hurd  factors, and  that  required  the
jurors to decide whether Middleton restrained
Limani for a period of time[,] or moved [him]
a  greater distance[,] than was necessary  to
accomplish the target crime [of robbery].)
          Accordingly, Judge Volland directed
the  jurors to answer the following question:
Did [you] unanimously find that the restraint
in   the   kidnapping  was  as   defined   in
Instruction No. 17?  The jurors answered yes.
Based  on this answer, Judge Volland accepted
the  jurys  guilty verdict on the  kidnapping
charge.
          On  appeal,  Middleton argues  that
the    jurors    answer   to   the    special
interrogatory  is  simply  inconsistent  with
their guilty verdict on the kidnapping charge
because  if  the jurors found that Middletons
restraint of Limani was merely incidental  to
the   robbery,  then  the  jurors  could  not
lawfully   find  Middleton  guilty   of   the
separate offense of kidnapping.
          But  when  verdicts are  challenged
for  inconsistency,  the  verdicts  must   be
evaluated  in light of the instructions  that
the   jury   received.2   As  Judge   Volland
recognized,   the   purported   inconsistency
between  the  jurors answer  to  the  special
interrogatory   and  their  verdict   finding
Middleton  guilty of kidnapping  arises  only
because  no one ever explained to the  jurors
that,   in   this  specialized  context,   an
incidental restraint is a restraint that does
not satisfy the test set forth in Instruction
17.   In other words, incidental is shorthand
for a legal conclusion; it is the legal label
that  we  apply to a restraint that will  not
support  a separate conviction for kidnapping
under the five-factor Hurd test.
          Once  Judge Volland recognized this
problem, he asked the jurors directly whether
they   unanimously  found   that   Middletons
restraint  of Limani qualified as a restraint
that would support a separate conviction  for
kidnapping   under  the  test  contained   in
Instruction  17.   When the  jurors  answered
yes,  this resolved the seeming inconsistency
between  the  jurors earlier  answer  to  the
special   interrogatory  and  their   verdict
finding Middleton guilty of kidnapping.
          Accordingly,   we   uphold    Judge
Vollands   decision  to  accept  the   jurors
kidnapping verdict.

Judge Vollands refusal to instruct the jury on the
lesser offense of third-degree theft

     As  explained  above, Middletons  defense  at
trial was that there was no robbery and there  was
no  kidnapping.  Rather, the whole episode was  an
elaborate  scheme, concocted by Limani,  to  steal
money  from  his  employer (the pizza  parlor)  by
making it appear that the money was taken during a
robbery.
     Toward  the  end  of  the  trial,  Middletons
attorney  asked  Judge  Volland  to  instruct  the
jurors on the offense of third-degree theft (i.e.,
theft  of  less than $500).  The defense  attorney
argued  that, under the facts of Middletons  case,
theft  was  a lesser included offense  of  robbery
because,  if  the jurors accepted  the  defendants
version  of  the facts, then Middleton  should  be
acquitted of kidnapping and robbery, but he should
be convicted of theft (as Limanis accomplice).
     Judge  Volland  concluded  that  third-degree
theft was not a proper lesser included offense  of
the robbery charge, and we agree (although not for
the same reasons that Judge Volland gave).
          Under the facts presented here, theft was not
a  lesser offense included within Middletons robbery of
Limani.   Rather, theft was an additional offense  that
could have been brought against Middleton.
          To prove robbery, the State had to prove that
Middleton took or attempted to take money from  Limanis
immediate presence and control, and that Middleton used
force  or  the threat of force to prevent  or  overcome
resistance  to  the taking, or to prevent  or  overcome
resistance  to Middletons retention of the money  after
the taking, or to compel Limani to deliver the money or
to  engage in any other conduct that would aid  in  the
taking of the money.  See AS 11.41.510(a).
          To  establish theft, the State would have  to
prove two elements that are not included in a charge of
robbery:   the value of the property, and  the  robbers
intent   to   permanently  deprive.   Moreover,   under
Middletons  version of the facts, the  victim  of  this
theft would not be Limani (who, according to the State,
was  the  victim  of  the robbery).  Rather,  Middleton
asserted  that  the  victim of the  theft  was  someone
completely different:  Limanis employer, the  owner  of
the pizza parlor.
          We  have  held that a lesser offense  is  not
included  within  a  charged offense  if  the  proposed
lesser  offense  actually constitutes a separate  crime
for  which  the  defendant might have  been  separately
convicted.3   Here, Middleton could have  been  charged
with  both the robbery of Limani and the theft of money
from the pizza parlor  because the robbery consisted of
the assault upon Limani for the purpose of taking money
          from his immediate presence and control, but the money
that Limani was carrying belonged to the pizza parlor.
          See,  for  instance, Ward v. State, 120  P.3d
204,  206-08  (Alaska App. 2005), Paige v.  State,  115
P.3d  1244, 1246 (Alaska App. 2005), McGrew  v.  State,
872  P.2d 625 (Alaska App. 1994), and George v.  State,
836 P.2d 960, 961 (Alaska App. 1992), where we upheld a
defendants separate convictions for robbery and theft.
          For this reason, the lesser offense of third-
degree  theft was not a lesser included offense  within
the charge of robbery.
          In addition, any error in failing to instruct
the  jury on third-degree theft was harmless under  the
facts of Middletons case.  Middleton proposed that  the
jury  be instructed on third-degree theft so that there
would  be  a  verdict available to them  in  case  they
believed  Middletons assertion that he and Limani  were
in  cahoots  that there was no robbery and there was no
kidnapping, but rather an elaborately concocted plan to
steal money from the pizza parlor.
          But  it  is  clear  that  the  jury  rejected
Middletons  proposed version of the facts  because  the
jurors  found  Middleton guilty  of  kidnapping.   This
being  so,  any arguable error in failing to offer  the
jurors  third-degree theft as an alternative to robbery
is harmless.

Conclusion

          The  judgement  of  the  superior  court   is
AFFIRMED.

_______________________________
1Websters New World College Dictionary (Fourth Edition,
2004), p. 721.

2See Brown v. Anchorage, 915 P.2d 654, 660 (Alaska App.
1996);  Hansen  v. State, 845 P.2d 449, 456-57  (Alaska
App. 1993).

3See  Dolchok  v. State, 763 P.2d 977, 980-81  (Alaska  App.
1988); Hartley v. State, 653 P.2d 1052, 1054-55 (Alaska App.
1982).

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