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Rogers v. State (5/21/2010) ap-2263

Rogers v. State (5/21/2010) ap-2263

                             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:

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                      Fax:  (907) 264-0878
       E-mail:  corrections@appellate.courts.state.ak.us


         IN THE COURT OF APPEALS OF THE STATE OF ALASKA


SHAWN W. ROGERS,                   
                                   
                    Appellant,       Court of Appeals No. A-9991
                                    Trial Court No. 3KN-04-1762 Cr
               v.                  
                                   
STATE OF ALASKA,                         O  P  I  N  I  O  N
                                   
                    Appellee.      
End of Caption                         No. 2263    May 21, 2010
                                   
          Appeal  from the Superior Court,  Third  Judi
          cial District, Kenai, Larry D. Card, Judge.

          Appearances:   Arthur S. Robinson,  Soldotna,
          for   the  Appellant.   Timothy  W.  Terrell,
          Assistant Attorney General, Office of Special
          Prosecutions  and  Appeals,  Anchorage,   and
          Daniel S. Sullivan, Attorney General, Juneau,
          for the Appellee.

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

          MANNHEIMER, Judge.

          Shawn   W.   Rogers   appeals   his   conviction    for
manslaughter.1  He argues that there is a fatal variance  between
the  theory  of causation that the State presented to  the  grand
jury  and  the theory of causation that the trial jury apparently
adopted (as suggested by the jurys questions to the court, and by
the   jurys   verdict  on  a  proposed  aggravating  
factor). The States theory of this case (both at grand jury and at trial) was that Rogers committed first-degree murder by pulling a handgun in a bar and shooting another man with the intent to kill him. The trial jury found Rogers guilty of manslaughter apparently under the theory that, after Rogers pulled the handgun, several bystanders (including the victim) struggled with Rogers for control of the gun, and that during this struggle Rogers lost control of the gun, but the gun somehow went off, fatally wounding the victim.
For the reasons explained in this opinion, we conclude that even if the jury adopted the view of the case described in the preceding paragraph, this is not a fatal variance from the States theory of an intentional shooting, and thus the jurys verdict is a valid resolution of the case.
Rogers also argues that the State improperly failed to apprise the grand jury of an exculpatory statement that Rogers made to a state trooper several hours after his arrest. For the reasons explained in this opinion, we conclude that Rogerss statement is not exculpatory (for purposes of grand jury practice).
Underlying facts, Part  1:   the
     parties competing versions of the shooting
     
               Shawn  Rogers  was indicted, and  brought  to
     trial,  on a charge of first-degree murder.   The  case
     arose  from  an  altercation that  took  place  at  Fat
     Alberts Tavern in Beluga on the evening of July  26-27,
     2004.   Rogers and another man, Brian Black, were among
     the patrons of the tavern that night.
          When  Rogers  arrived at the tavern,  he  was
carrying  a loaded handgun that he had taken  with  him
earlier  that  day  on a fishing trip.   He  gave  this
weapon  to  the bartender, but he retrieved the  weapon
shortly  after last call was announced.   Exactly  what
happened next was the central dispute at Rogerss trial.
          The    States   theory   was   that    Rogers
intentionally shot Black.  The State presented evidence
that,   around  closing  time,  Rogers  said  something
provocative  to  Black.  None of the  States  witnesses
could  tell exactly what Rogers said, because the music
in  the  tavern  was turned up so loud.   But  whatever
Rogers  said, it caught Blacks attention.  Black  asked
Rogers,  Are you talking to me?  Rogers indicated  that
he  was  talking  to Black, and then  he  repeated  his
comment.
          At   that  point  (according  to  the  States
witnesses), Rogers stood up, drew his handgun from  the
holster,  and  pointed the gun at  Black.   Black  said
something   like,  Are  you  pulling  a  gun   on   me,
motherfucker?, and then he stood up and  headed  toward
Rogers   apparently intending to disarm  him.   Two  of
Blacks  co-workers  Chuck Thome and Ron  Thebeau   also
converged on Rogers.
          Rogers got off two shots in quick succession.
One  of  these  caused a near-contact wound  in  Blacks
side,  just  below his left armpit.  The bullet  passed
through  Blacks lungs and aorta, then lodged  near  his
spine.  Black died soon after receiving this wound.
          Rogerss  gun  jammed after the  second  shot.
With  Rogers  unable  to get off another  round,  Thome
managed  to  knock  the weapon from  Rogerss  hand  and
subdue him.
          The  defense offered a competing  version  of
events.   The  defense  asserted that  Rogers  did  not
threaten  anyone  with his gun, and  that  he  was  the
victim  of  an  attack by Black and  his  two  friends.
According  to  the  defense,  Rogerss  gun   went   off
accidentally during the struggle, and Black was shot.
          Rogers  took  the  stand  at  his  trial  and
testified that he was wearing a handgun when he entered
the  bar, so he removed the weapon from its holster and
handed  it  to  the bartender for safekeeping.   Later,
when the bar was closing, he retrieved his handgun from
the  bartender.  He tried to return the weapon  to  its
holster, but he was unable to do so because the holster
was  tangled  with his other clothing.  At that  point,
without  warning,  Black  and  his  friends  approached
Rogers and attacked him.  According to Rogers, the  gun
went  off  once in his hand from the physical  contact.
Rogers  testified that the gun was pointed  toward  the
floor when this first shot was fired.  Then Rogers lost
control of the weapon.  A few moments later, Rogers was
thrown  to  the floor and knocked unconscious.   Rogers
asserted that he was unaware of how the second shot was
fired.

Underlying facts, Part 2:  the issue of causation,  and
how this issue was litigated at Rogerss trial

          After the presentation of evidence at Rogerss
trial  was concluded, the trial judge and the attorneys
discussed the proposed jury instructions.  The  parties
agreed  that  the jury should be instructed  on  first-
degree  murder  (the crime charged in the  indictment),
and  on the lesser offenses of second-degree murder and
manslaughter.   After discussing the  various  culpable
mental  states that applied to these different  degrees
of  criminal  homicide,  the judge  and  the  attorneys
turned to the issue of proximate cause.
          The     prosecutor     submitted     proposed
instructions  on  proximate  cause  because,   as   the
prosecutor  explained to the trial judge,  the  defense
had  introduced evidence suggesting that Black was shot
accidentally during a struggle over the gun:
     
     Prosecutor:  [T]he defense is  attacking
the  States  case  [by] indicating  that  the
death of Mr. Black could have been caused  by
accident  through the struggle  that  ensued.
...   The  jury  could find that  Mr.  Rogers
pulled the gun [and] pointed it at Mr. Black,
but  did  not shoot ... ; rather, during  the
struggle  that  ensued, ... [either]  through
the  victim himself pulling the gun away from
the  defendant,  or  from  a  third  [person]
intervening in the struggle and disarming the
defendant, thats [how] the death of Mr. Black
... was caused.

     [Under that scenario,] what the case law
tells  us  ...  is  [that] the  defendant  is
responsible for ... actions that ...  he  has
set in motion, as long as his actions were  a
substantial factor in causing the death.

          Rogerss    attorney   raised    two
objections  to  the proposed instructions  on
proximate cause.  First, the defense attorney
disputed  the prosecutors assertion that,  if
Black   was  killed  accidentally  during   a
struggle  over  control of  the  gun,  Rogers
would  be  criminally  responsible  for   the
homicide.    Second,  the  defense   attorney
argued that the State was changing its  basic
theory  of  the  case.  The defense  attorney
pointed  out  that,  from  the  time  of  the
initial felony complaint and indictment,  the
State  had  maintained that Black died  as  a
result of Rogers purposely shooting him.  The
defense  attorney  argued that  it  would  be
improper  for  the State to  now  rely  on  a
theory  that  Black died as a  result  of  an
accidental  discharge of  the  gun  during  a
struggle.
          In     reply,     the    prosecutor
acknowledged  that the States theory  of  the
case  was  that Rogers purposely  shot  Black
with  the  intent  to  kill  him.   But   the
prosecutor pointed out that the jurors  might
conclude  that the State had failed to  prove
its  theory  of the case beyond a  reasonable
doubt.   The prosecutor argued that,  if  the
jury  was  in  doubt as to  whether  the  gun
accidentally  discharged during the  struggle
between  Rogers  and  Black  and  Blacks  co-
workers,  the jurors would need to understand
the law of proximate cause in order to render
a proper verdict.
          After hearing these arguments,  the
trial  judge  concluded  that  it  would   be
improper to instruct the jury on the  law  of
proximate   cause.   The  judge  gave   three
reasons for his decision.
          First,  the  judge  ruled  that  it
would  be improper to hold Rogers accountable
for the homicide simply because he unlawfully
carried a firearm into a bar.
          It  should be noted that  this  was
not  the  prosecutors argument.   Rather,  as
shown  by  the  excerpt  quoted  above,   the
prosecutor argued that Rogers could  be  held
accountable for the homicide if Rogers pulled
the  gun  and pointed it at Black, and  then,
when  Black  and his co-workers attempted  to
disarm Rogers, the gun went off accidentally.
          Second, the trial judge ruled  that
any   jury  instruction  on  proximate  cause
(i.e.,  any instruction on the legal doctrine
that  Rogers could be held liable for  Blacks
death  if  Rogerss actions were a substantial
factor   in   causing  Blacks  death)   would
effectively lower the States burden of proof.
The judge declared:

     The  Court:  When we start talking about
proximate causation, were using a term  thats
shared with civil law, [with] tort law, where
the standard of proof is preponderance of the
evidence.   The [standard of proof]  in  this
case [is] beyond a reasonable doubt.  And  Im
not  saying that the State is suggesting that
I should intentionally or knowingly lower the
standard of proof, but when we get into ideas
involving  proximate causation, ...  then  we
get  into  an area [where] we are dangerously
close  to lowering the standard of proof  for
the government [in a criminal case].

          As  we  explain in the next section
of this opinion, the trial judges analysis of
this  issue is mistaken.  Instructing a  jury
on  the applicable law of causation does  not
alter  the  burden of proof  that  governs  a
criminal case.
          Finally,  the  judge declared  that
the  substantial factor rule of causation did
not  apply to a charge of first-degree murder
although   the  judge  conceded   that   this
doctrine  of  causation might  apply  to  the
lesser  included  offenses  of  second-degree
murder or manslaughter.  As we explain in the
next  section  of  this opinion,  the  judges
analysis  of  this issue was  also  mistaken.
The  same  law  of causation applies  to  all
degrees of criminal homicide  indeed, to  all
criminal   charges  that  require  proof   of
causation.
          The  next morning, just before  the
attorneys delivered their summations  to  the
jury, the prosecutor asked the trial judge to
reconsider his decision regarding whether  to
instruct   the   jury   on   causation.    In
conjunction    with    his    request     for
reconsideration, the prosecutor presented the
court  with  re-drafted instructions  on  the
doctrine of proximate cause.
          According to the prosecutor,  these
re-drafted instructions clarified two issues:
first,  that  the State was  not  obliged  to
prove  that  Rogerss actions  were  the  sole
cause  of Blacks death; and second,  that  if
the  jurors  believed that Rogers pulled  the
gun  and threatened Black, and that Black was
shot during the ensuing struggle, then Rogers
could  be  held  criminally responsible  even
though  he  did  not have his finger  on  the
trigger  when  the  gun  went  off.   As  the
prosecutor explained:

     Prosecutor:   [Rogerss act of]  pointing
the  gun would be unlawful conduct.  And  the
jury  needs  to  understand  [that]  a  third
person[s] or a victim[s] [act of] intervening
[after] the defendants pulling of the gun ...
does  not  ...  absolve  [the  defendant]  of
criminal liability.

          In  response, the defense  attorney
renewed  his  argument  that  the  State  was
improperly trying to alter its theory of  the
case  in  the  middle  of  the  stream.   The
defense  attorney noted that, all along,  the
State  had contended that Rogers deliberately
shot   Black.   The  defense  attorney   then
asserted  that, because the State  had  never
given   notice   that  it  might   argue   an
alternative version of events, [it] would  be
highly  prejudicial,  highly  unfair,   [and]
probably  a violation of due process  if  the
State  was allowed to argue that Rogers could
be   found   guilty  even  if  he   did   not
deliberately shoot Black.
          After  considering these arguments,
the   trial   judge  again   concluded   that
instructing  the  jury  on  the  doctrine  of
proximate  cause would effectively lower  the
States  burden  of proof.  In  addition,  the
judge  concluded  that the facts  of  Rogerss
case  did  not  raise any issue of  causation
and, thus, any instruction on proximate cause
would  only tend to confuse the jurors.   For
these  two reasons, the judge again  declined
to  instruct the jury on causation   although
the  judge stated that he might revisit  this
issue if ... the jury has a question.
          The  parties  then delivered  their
summations to the jury.
          The  prosecutor argued that  Rogers
deliberately  shot  Black,  and  that  Rogers
acted with the intention of killing Black.
          The  defense attorney, on the other
hand,  suggested that Rogers  was  innocently
trying  to get his gun back into its holster,
and  that  Black and his friends  with  their
judgement   impaired  [by]  booze   and   pot
mistakenly    thought   that    Rogers    was
threatening  them  with  the  gun,  so   they
attacked  him,  and  in  the  struggle   that
ensued,   the  gun  accidentally  discharged,
causing Blacks death.
          The     defense    attorney    then
explicitly invoked the doctrine of causation.
He told the jury that, not only had the State
failed to prove first-degree murder, but  the
State had also failed to prove either of  the
potential   lesser  offenses   (second-degree
murder  and manslaughter) because  they  have
failed  to  prove  beyond a reasonable  doubt
that Shawn [Rogers] caused the death of Brian
Black.
          In    his   reply   argument,   the
prosecutor responded to the defense attorneys
assertion  that Rogers had not caused  Blacks
death.   The prosecutor  argued that even  if
the  jurors  did not believe that Rogers  was
guilty of deliberately shooting Black, Rogers
could  nevertheless  be  found  guilty  of  a
lesser degree of homicide because Rogerss act
of  threatening Black with a handgun was  the
event that set the homicide in motion:

     Prosecutor:  [P]ulling out the gun [and]
pointing it at another person across the bar,
intoxicated people, the person across the bar
intoxicated,  other people  in  the  bar  are
intoxicated,    whats   foreseeable    there?
Someone   is   going  to  rush  you.    Thats
certainly a likely possibility, a foreseeable
possibility.  Someones going to rush you  and
attempt  to disarm you.  Thats what  happened
in  this  case[,  and  it  was]  certainly  a
foreseeable result of the defendants conduct.
     .  .  .

     [The defense attorney is] trying to tell
you [that] if Mr. Rogers didnt mean to [shoot
Black]  and  didnt mean to pull the  trigger,
and  [then,] in ... the struggle for the gun,
it  goes  off, hes not responsible; he  hasnt
committed  the  offense.  Thats  not  correct
because he set in motion the chain of  events
that  were foreseeable:  that another  person
would try and intervene.

     Here,  ...  as  a  result  of  [Rogerss]
conduct  in pointing the gun across the  bar,
... he set in motion the chain of events that
were  reasonably foreseeable  when Mr.  Black
approached him ... [and] tried to disarm him,
or  someone  else  tried to disarm  him,  and
thats when Mr. Black was shot.  Mr. Rogers is
still responsible for the death, because  its
his conduct that set in motion that chain  of
events.    Its  his  conduct   that   was   a
substantial factor in setting in motion those
events.

Even though the defense attorney had actively
opposed   the  prosecutors  request   for   a
substantial factor causation instruction, the
defense  attorney made no immediate objection
to the prosecutors argument.
          A few minutes later, however, after
the    prosecutor   finished   his   rebuttal
summation,  the  trial  judge  held  a  bench
conference.   During  this  conference,   the
defense    attorney   objected    that    the
prosecutors  remarks  (quoted  above)  openly
invited  the  jury  to  apply  a  substantial
factor test when deciding whether Rogers  was
guilty of a criminal homicide.
          The   trial  judge  overruled  this
objection.   The judge declared that  he  had
already  correctly instructed the  jurors  on
all  the issues necessary for their decision,
and   the   judge   noted   that   the   jury
instructions included the admonition that the
jurors  were  to  ignore the remarks  of  the
attorneys  if the attorneys were mistaken  in
their view of either the law or the evidence.
          Shortly  after  this  ruling,   the
alternate   jurors  were  excused   and   the
remaining twelve jurors were allowed to begin
their deliberations.
          On   the  following  business  day,
shortly  before one oclock in the  afternoon,
the  trial  judge  convened  the  parties  to
consider  a note that the court had  received
from the jury earlier that morning.  In their
note, the jurors asked the court to give them
further   instruction   on   the   issue   of
causation.   The  note  (with  its   original
emphases and internal quotation marks) read:

     In    regards   to   [the   charge   of]
manslaughter, if the jury agrees  that  Shawn
W. Rogers recklessly contributed to the death
of   Brian  Black,  is  that  the   same   as
recklessly  caused the death of Brian  Black?
If  [Rogerss] recklessness contributed to the
death,  is  that equal to caused  the  death?
[Or] does it need to be all his fault?

          When  the  trial  judge  asked  the
attorneys  to  give their views  on  how  the
jurys   question  should  be  answered,   the
prosecutor   renewed  his   request   for   a
substantial    factor    instruction.     The
prosecutor noted that, although the  law  did
not  require  the State to prove that  Blacks
death was entirely Rogerss fault, it would be
wrong  for the jury to convict Rogers  simply
because  his  actions  contributed  in   some
slight way to Blacks death.  Instead, the law
required  the  State  to prove  that  Rogerss
conduct  was a substantial factor in  causing
Blacks  death.   Accordingly, the  prosecutor
asked the trial judge to instruct the jury on
this doctrine of causation.
          The    defense   attorney    argued
(incorrectly, as we shall explain)  that  the
State was required to prove that Blacks death
was  entirely  Rogerss fault  and,  thus,  it
would   be   error  to  instruct   the   jury
concerning the substantial factor test.
          After hearing these arguments,  the
judge  decided to instruct the  jury  on  the
substantial  factor test for causation.   The
judge   acknowledged  that  he  had   earlier
refused  to  instruct the jury on this  legal
doctrine,  but he stated that he had  changed
his  mind, now that the jury was specifically
asking about this issue.
          The   judge  also  noted  that  the
defense  attorneys position on the  issue  of
causation  was  wrong:   the  State  was  not
required  to  prove  that  the  homicide  was
entirely Rogerss fault, but rather only  that
Rogerss  conduct was a substantial factor  in
bringing it about.
          The   trial  judge  then  gave  the
following instruction to the jury:

     A   criminal  defendant  can   be   held
responsible  only  for injuries  that  result
from  or are caused by his conduct.  But  the
defendants  conduct  need  not  be  the  sole
factor in producing the injury.  Rather,  the
test is whether the defendants conduct was  a
substantial  factor  in  bringing  about  the
injury.  Since a defendants conduct need  not
be  the sole cause of the injury, a defendant
will  be  held accountable for an  injury  or
death  resulting from his conduct even though
it  may be shown that the negligence of  some
other   person   also   contributed   in    a
substantial degree to causing the  injury  or
death.  Contributory negligence of the victim
does  not  constitute a defense  to  criminal
charges.

          (The  trial  judge  then  added   a
supplemental  instruction  which   told   the
jurors   incorrectly   that  the  substantial
factor  test for causation does not apply  to
criminal  offenses that require [proof  that]
the  defendant  act[ed] intentionally[,  such
as]  Murder  in the First Degree ...  or  ...
Murder  in  the  Second  Degree  [under   the
theory]  that the defendant [acted with]  the
intent to cause serious physical injury.)
          The  following  morning,  the  jury
returned  its verdicts in Rogerss case.   The
jurors   acquitted  Rogers  of   first-degree
murder  and  second-degree murder,  but  they
found him guilty of manslaughter.
          Because  manslaughter is a class  A
felony  to  which the presumptive  sentencing
law applies, the court then asked the jury to
deliberate  on two aggravating  factors  that
had  been  proposed by the State:  aggravator
(c)(4)   that  Rogers  employed  a  dangerous
instrument in furtherance of the offense; and
aggravator   (c)(6)   that  Rogerss   conduct
created a risk of imminent physical injury to
three  or  more persons.  See AS 12.55.155(c)
and (f)(2).
          During  its deliberations on  these
two   aggravators,  the  jury  posed  several
questions  to  the  court.   One   of   these
questions   asked  for  a  clarification   of
aggravator  (c)(4).   The  jury   asked,   In
regards  to  [aggravator (c)(4)],  does  [in]
furtherance  of  the offense  [require  proof
that] he pulled the trigger for the shot that
killed  Brian  Black[?]   (Emphasis  in   the
original)
          After listening to the arguments of
the  parties  on this issue, the trial  judge
concluded  that the statutory  definition  of
the   aggravator,  AS  12.55.155(c)(4),   was
unclear  on  this point, and that there  were
two   reasonable   interpretations   of   the
aggravator    so   the  judge   adopted   the
interpretation  more  favorable  to   Rogers.
That  is,  the  judge ruled that,  under  the
circumstances  of  Rogerss  case,  aggravator
(c)(4)  required proof that Rogers personally
pulled  the  trigger to produce  the  gunshot
that  killed Black.  The judge also  reminded
the  jurors that their decision on this point
had to be unanimous.
          After  receiving this  supplemental
instruction,  the jury resumed  its  delibera
tions  and,  ultimately, the jury found  that
the  State  had  failed to  prove  aggravator
(c)(4).
The law of causation in criminal cases

     As the prosecutor correctly argued at Rogerss
trial, and as the trial judge ultimately told  the
jury,   a   defendant  can  be   held   criminally
responsible  for  an  injury  or  death   if   the
defendants  conduct  was a substantial  factor  in
causing  that injury or death.  The law  does  not
require the government to prove that the defendant
was  solely responsible for the injury  or  death.
See  Johnson  v.  State,  224  P.3d  105,  109-111
(Alaska  2010); State v. Malone, 819 P.2d  34,  36
(Alaska App. 1991).
     One  type  of  joint  causation  that  courts
frequently  encounter  is the  situation  where  a
defendant launches an attack on another person and
(in  response) the intended victim, or the victims
relatives  or  friends, or other  bystanders  take
defensive  measures  to  impede  or  prevent   the
attack.   At common law, and under todays  law  as
well,  any  response of a human being to  harm  or
threat of harm is [viewed by the criminal law  as]
a  consequence of whatever produced [the] harm  or
threat.   Rollin  M. Perkins &  Ronald  N.  Boyce,
Criminal Law (3rd ed. 1982), p. 794.
     Thus,  for  instance, if  a  person  grabs  a
firearm  which has suddenly been pointed  at  him,
acting in the effort to save himself from apparent
death  or  great bodily injury, and if  the  force
thus  exerted  by  [the  victim]  causes  a  fatal
discharge not intended by the pointer, the act  of
pointing the weapon has [nevertheless] caused  the
death.   Id.  at  795.  This is  because,  [i]f  a
loaded  weapon  is  pointed at  another  at  close
range[,]  it may be foreseeable that he  may  grab
for  it and perhaps cause a discharge in this way.
Id. at 796.
          This same rule of causation applies when  the
victims defensive action is to try to escape.  On  this
point,  see  the  example given  in  Wayne  R.  LaFave,
Substantive  Criminal Law (2nd ed.  2003),   6.4(f)(4),
Vol.  1,  p. 483:  Suppose that A approaches B  with  a
deadly  weapon and a murderous intent to kill, so  that
B,  in order to escape, voluntarily jumps out a window,
or  ...  into  a ravine, or plunges into a river,  with
fatal consequences to B.  [In such instances,] A is ...
guilty of murdering B.
          These examples from Perkins & Boyce and  from
LaFave illustrate another crucial aspect of the law  of
causation:  contrary to the trial judges ruling in this
case,   the   doctrine  of  causation   including   the
substantial   factor   test  for  assessing   causation
applies   to  all  offenses  that  require   proof   of
causation, regardless of the culpable mental state that
must  be  proved to establish the offense.  Immediately
after  describing  the  example  that  we  quoted   two
paragraphs  above, the authors of Perkins &  Boyce  add
the following explanation:
     
     The  [one  who pointed the firearm] will  not
     necessarily be criminally responsible for the
     death because his menacing act may have  been
     justified   or   excused;   but   there   has
     [nonetheless] been [a] homicide which the law
     imputes to him [as a matter of causation].
     
     Perkins & Boyce, p. 795.
               In other words, when a defendant is
     charged    with   criminal   homicide,    the
     government  must invariably  prove  that  the
     defendants  conduct was a substantial  factor
     in  causing  the  victims  death.   But  even
     though   causation   may   be   proved,   the
     defendants  guilt or innocence (or  level  of
     guilt)  will hinge on the defendants culpable
     mental    state   and/or   the    surrounding
     circumstances.
          Returning to the example  cited  in
Perkins & Boyce, if the defendant pointed the
firearm  at  the victim with  the  intent  of
killing  him  (or of killing  someone  else),
then  even  if  the  firearm  discharged   by
accident  during the struggle for control  of
the  weapon, the defendant could properly  be
found guilty of first-degree murder.  On  the
other hand, if the defendant only intended to
frighten  the victim, or was merely  reckless
in handling the gun, then the defendant might
properly  be  found guilty  of  manslaughter.
Or,  as  the  passage from  Perkins  &  Boyce
points  out, if the defendant was  completely
blameless  in  pointing  the  gun,  then  the
defendant  would be guilty of no crime,  even
though   the   defendants   conduct   was   a
substantial factor in causing the homicide.
          In   other  words,  as  this  Court
stated in Malone, the general rule [is]  that
a   defendant  who  acts  with  the  required
culpable mental state will be held criminally
responsible  for  injuries [or  deaths]  that
result   from   other   peoples   normal   or
foreseeable  reactions to his  conduct.   819
P.2d at 36 (emphasis added).
          In  Riley  v.  State, 60  P.3d  204
(Alaska App. 2002), this Court recognized  an
analogous  doctrine  that  applies   when   a
criminal prosecution is based on a theory  of
complicity.    The  doctrine  of   complicity
supplies  the rules for determining when  one
person can be held criminally accountable for
the  conduct  of  another person.   But  each
accomplices  culpable mental  state  must  be
adjudged separately:

Take,  for instance, the situation where  two
defendants  are  jointly  accountable  for  a
criminal  homicide  one because he personally
struck the fatal blow or inflicted the  fatal
wound,  and  the  other  under  a  theory  of
complicity because he encouraged or  assisted
the  homicidal act.  If one of the defendants
acted  in cold blood (i.e., with malice afore
thought) while the other acted in the heat of
passion, the one who acted with malice  would
be  guilty of murder and the one who acted in
the  heat of passion would be guilty only  of
manslaughter.   This was true  regardless  of
which defendant was the perpetrator and which
the  accomplice.  See Perkins  &  Boyce,  pp.
753,  757; [Wayne R. LaFave & Austin W. Scott
Jr.,  Criminal Law (1986)],  6.7(c), Vol.  2,
pp. 144-45.

Riley, 60 P.3d at 207.
          In conclusion, the law of causation
i.e., the rules that define when a defendants
conduct  will  be  deemed to  have  caused  a
particular   result  for  purposes   of   the
criminal  law   applies to all offenses  that
require proof of causation, from first-degree
murder  down  to the most minor  misdemeanor.
But,  standing alone, the fact that  the  law
views the defendants conduct as having caused
the  result  specified in a criminal  statute
does  not  mean  that the  defendant  can  be
convicted of violating that criminal statute.
The  government must prove that the defendant
acted   with  the  culpable  mental  state(s)
required  by the statute, and the  government
must  prove  the existence of any surrounding
circumstances specified by the statute.
          Before   turning  to  the  specific
issues  raised in Rogerss appeal, we need  to
address one further point relating to the law
of  causation.  Contrary to the trial  judges
ruling   in   this  case,  the  doctrine   of
causation   has  nothing  to  do   with   the
governments burden of proof.  The  government
always  bears  the  burden  of  proving   the
elements   of  a  criminal  case   beyond   a
reasonable  doubt.   The rules  of  causation
help  to  explain  what the  government  must
prove.

An introduction to Rogerss two arguments that it was
fundamentally unfair to allow the jury to return a
verdict  of manslaughter based on the theory  that
Rogers  merely pointed his handgun at  Black,  and
that  the  gun accidentally discharged when  Black
and his co-workers struggled with Rogers

          In  Rogerss brief to this Court, he does  not
take  issue  with  any  of  the  propositions  of   law
discussed  in  the preceding section of  this  opinion.
Rogers  does  not  dispute that a person  can  be  held
criminally accountable for a homicide if their  conduct
was  a  substantial  factor in causing  that  homicide.
More  specifically, Rogers does not dispute that, as  a
general  proposition,  a person  can  be  convicted  of
manslaughter  (or  of  some other  degree  of  criminal
homicide)  if  they point a firearm at  another  person
and,  in  response,  the other person  takes  defensive
measures which cause the gun to discharge accidentally.
          Instead,   Rogers   argues   that   it    was
fundamentally unfair, under the facts of his case,  for
the jury to convict him of manslaughter (or convict him
of any other degree of criminal homicide) if the jurors
concluded that Rogers did not deliberately shoot Black,
but  merely pointed the gun at Black, and that the  gun
discharged by accident during the ensuing struggle.
          Rogerss first argument is based on the  right
to  grand  jury  indictment guaranteed  by  Article  I,
Section  8 of the Alaska Constitution.  Rogers contends
that  his  right to grand jury indictment was  violated
because  (1) the State asked the grand jury  to  indict
Rogers  for  murder  based on the  theory  that  Rogers
deliberately  shot Black, but later, at the  conclusion
of  the  jury  trial,  (2)  the  prosecutor  argued  an
alternative theory of events in response to the defense
evidence  suggesting that Rogerss  handgun  might  have
discharged  accidentally during the  struggle.   Rogers
argues  that,  if the trial jury found  him  guilty  of
manslaughter   based  on  the  theory  that   the   gun
discharged accidentally during the struggle, this would
be a fatal variance from the grand jurys indictment.
          Rogerss  second  argument is  an  alternative
argument,  based  on  the fact  that  the  trial  judge
initially refused to instruct the trial jurors  on  the
substantial factor test for causation.  Rogers contends
that,  even  if  his  grand jury variance  argument  is
wrong, his trial was nevertheless unfair because,  when
Rogerss defense attorney delivered his summation to the
jury  at  the  end  of the trial, the defense  attorney
detrimentally relied on the trial judges ruling   i.e.,
detrimentally relied on the fact that the jurors  would
not be instructed on the applicable law of causation.
          It  is important to note that Rogers does not
actually  assert that the trial judges  initial  ruling
was correct.  Rather, Rogers argues that he is entitled
to  a  new  trial because, even if the judge was  wrong
when  he  declined  to  instruct  the  jurors  on   the
pertinent  law  of causation, Rogerss  defense  counsel
relied  on that ruling.  Here is the pertinent  portion
of Rogerss opening brief to this Court:
     
     [When]  making  his closing argument,  Rogers
     counsel  could reasonably rely on [the  trial
     judges  ruling] that the jury  would  not  be
     allowed  to  consider the substantial  factor
     causation  test [when it] determin[ed]  [the]
     defendants guilt[.]  ...  Rogers was entitled
     to  make  his jury argument on the assumption
     that  [a] substantial factor test instruction
     would not be submitted to the jury.
     
     
Rogerss  argument that his conviction for  manslaughter
constitutes  a  fatal  variance  from  the  grand  jury
indictment

          As   we  have  already  explained,  the  jury
acquitted  Rogers  of  murder  but  convicted  him   of
manslaughter.   And later, when the jurors  deliberated
on  the States proposed aggravating factors, the jurors
rejected  aggravator  (c)(4)  after  the  trial   judge
instructed them that (c)(4) required proof that  Rogers
personally  fired the shot that killed  Black.   Rogers
relies on these verdicts to argue that the jurors  must
have  convicted him of manslaughter based on a view  of
the  evidence that the prosecutor discussed during  his
rebuttal summation:  the theory that Rogers pointed his
gun  at Black but did not fire the weapon, and that the
weapon discharged accidentally during the struggle that
ensued between Rogers and Black and his co-workers.
          Rogers contends that, if the jury did in fact
convict  him  of manslaughter under this  theory,  then
there  is  a  fatal variance between  the  trial  jurys
verdict  and the offense for which Rogers was  indicted
by the grand jury.
          Obviously,  the offense for which Rogers  was
indicted  (first-degree murder) is different  from  the
offense   for   which   he  was  convicted   at   trial
(manslaughter).  But under Alaska Criminal Rule  31(c),
and  under this Courts decision in Blackhurst v. State,
721  P.2d  645, 649-650 (Alaska App. 1986), a  criminal
defendant  is on notice, as a matter of law,  that  the
State is entitled to ask the trier of fact to find  the
defendant   guilty  of  a  lesser  offense  necessarily
included within the charged offense.
          Under   Alaska  law,  the  cognate  test   is
employed  to  evaluate  whether  a  lesser  offense  is
included  within  the  charged offense.   Elisovsky  v.
State,  592 P.2d 1221, 1226 (Alaska 1979).   Under  the
cognate  test, the question of whether a lesser offense
is  included within the charged offense is not answered
merely  by looking at the elements of the two offenses.
Rather, the cognate test looks to the particular  facts
of  the  case.   Ibid.   As the  Alaska  Supreme  Court
explained  in  State  v. Minano, 710  P.2d  1013,  1016
(Alaska   1985),   Whether  [a]   lesser   offense   is
necessarily included [in the charged offense] is to  be
viewed from the perspective of the facts charged in the
indictment, in light of the evidence actually presented
[at the trial].
          In  Rogerss  case,  the evidence  that  would
justify  a verdict of manslaughter is a combination  of
the  evidence that the State presented and the evidence
that  Rogers  presented.   The  State,  for  its  part,
presented evidence that Rogers drew his weapon, pointed
it  at  Black,  and then  as Black and  his  co-workers
converged  on Rogers, attempting to disarm him   Rogers
deliberately  shot Black.  Rogers, on the  other  hand,
presented evidence that he had the gun in his hand, but
was  not threatening anyone with it, when Black and his
co-workers  physically attacked him  and  that,  during
this struggle, the gun discharged accidentally.
          From the jurys verdicts, it appears that  the
jury  may  have  accepted the  States  version  of  the
initial  portion  of  the incident  (i.e.,  the  States
allegation  that Rogers drew his weapon and pointed  it
at Black), but the jury accepted Rogerss version of the
latter portion of the incident (i.e., Rogerss assertion
that  he never deliberately shot the gun, and that  the
gun  accidentally  went off during  his  struggle  with
Black  and  his co-workers).  Under this  view  of  the
facts,  the  jury could reasonably reach a  verdict  of
manslaughter;  that is, the jury could reasonably  find
(1)  that  Rogers  caused Blacks death,  and  (2)  that
Rogers acted recklessly with respect to the possibility
that his conduct might result in human death.
          In  other words, this resolution of the  case
a  verdict  of manslaughter  flowed directly  from  the
evidence   presented  at  Rogerss  trial.    It   would
therefore  appear (as a matter of law) that Rogers  was
on notice, going into the trial, that if the jury heard
his  testimony and only believed portions  of  it,  the
jury  might return a manslaughter verdict based on  the
view of the evidence that we have just described.
          Rogers  argues  against this result,  relying
primarily  on  the  Alaska Supreme Courts  decision  in
Michael v. State, 805 P.2d 371 (Alaska 1991).
          The  defendant  in Michael was  indicted  for
first-degree assault for having caused serious physical
injury  to  his  infant daughter, either personally  or
acting as the accomplice of his wife.  Id. at 372.  The
trial  judge (sitting as the trier of fact) found  that
Michaels  wife was the one who injured the  child;  the
judge  concluded  that the State had  failed  to  prove
either that Michael personally inflicted injury on  the
child  or  that Michael acted as his wifes  accomplice.
Ibid.   Nevertheless,  the trial  judge  found  Michael
guilty  of the lesser offense of second-degree  assault
under  the theory that (1) Michael knew that  his  wife
was assaulting the child; (2) because he was the childs
father,  Michael was under a legal duty to protect  his
child  from  his  wife; and (3) Michael  breached  this
duty.  Ibid.
          The supreme court concluded that there was  a
fatal  variance between the crime for which  the  grand
jury  indicted Michael and the crime for which  he  was
convicted;  in  the  words of the  court,  Michael  was
convicted for a crime never charged by the grand  jury.
Id. at 374.
          On    its   face,   this   statement    seems
paradoxical:  the grand jury indicted Michael for first-
degree  assault,  and he was convicted  of  the  lesser
offense of second-degree assault.  But what the supreme
court  meant was that the theory of criminal  liability
that  the  grand jury relied on to indict  Michael  for
first-degree  assault was significantly different  from
the theory of liability that the trial court relied  on
to convict Michael of second-degree assault.
          Normally, bystanders are not responsible  (as
a  legal  matter) for criminal acts that they  witness,
even  if  these bystanders might easily have intervened
and  prevented  the crime or saved  the  victim  at  no
danger  to themselves.  See Rollin M. Perkins &  Ronald
N.  Boyce,  Criminal Law (3rd ed. 1982), p.  742.   The
exception  to this rule is if the bystander  owes  some
special  duty  of  protection to the  intended  victim.
Ibid.
          At   common  law,  parents  owed  a  duty  of
protection to their children.  Perkins & Boyce at  662.
And,   in   Michael,   the  supreme  court   apparently
acknowledged  that this duty continues to  exist  under
Alaska law  because the supreme court declared that the
States  evidence  in Michael would have  justified  the
grand jury in indicting Michael for assault under  this
theory:
     
          Had  the grand jury chosen to do so,  it
     certainly could have indicted Steven  Michael
     for  second  degree assault, for  failing  to
     protect his child.  Michaels failure to carry
     out  his  parental duty was  clear  from  the
     evidence.
     
Michael,  805 P.2d at 374.  But  the  supreme
court  reversed  Michaels conviction  because
the  grand  jury made no such charge  in  the
indictment.  Ibid.
          In  other words, Michaels status as
the  childs parent, and his concomitant  duty
to   protect   the  child  from   his   wifes
assaultive behavior, was an essential element
of   Michaels  conviction  for  second-degree
assault.   Michaels  status  as  the  victims
parent  set  him apart from other bystanders;
it  allowed  the  State to  charge  him  with
assault  based on his inaction.  Absent  this
factor,   Michael   would   not   have   been
criminally responsible for failing to prevent
his wifes abuse of the child.
          The supreme court reversed Michaels
conviction  because, even  though  the  State
presented  evidence to the  grand  jury  that
easily  would  have supported a finding  that
Michael was the victims parent (indeed,  this
fact was undisputed), the State neglected  to
ask the grand jury to make this finding.   As
the  supreme  court noted in  the  concluding
footnote of its opinion, The result  in  this
case illustrates the continuing importance of
careful pleading under Alaskas criminal  law.
Michael, 805 P.2d at 374 n. 13.
          This Court reached a similar result
in  Hansen  v.  State, 845 P.2d  449,  452-54
(Alaska App. 1993).
          The   defendant   in   Hansen   was
indicted  for  first-degree  murder,   first-
degree robbery, and first-degree arson.   Id.
at  451.   The States theory of the case  was
that Hansen (and his co-defendants) committed
the murder and the robbery, and then set fire
to  the victims house in an effort to conceal
these crimes.  Id. at 452.
          When Hansens case was submitted  to
the  jury, the trial judge granted the States
request  for  a jury instruction  on  second-
degree  murder under a felony murder  theory.
Id.  at  451.   We held that this  was  error
because a charge of felony murder requires an
element  that was not included in  the  other
charges  for which Hansen was indicted.   Id.
at 452-54.
          Specifically, even though the grand
jury  found  all of the required elements  of
first-degree  murder,  first-degree  robbery,
and  first-degree arson, the crime of  felony
murder   requires  proof  of  an   additional
element  not  included in any of these  three
crimes   the  requirement  that  the  victims
death  be  caused  in the  course  of  or  in
furtherance  of [one of the listed  predicate
felonies]  or in immediate flight  from  that
crime.   AS 11.41.110(a)(3).  As we noted  in
Hansen,  [t]he grand jury was never asked  to
decide  whether  the State could  prove  that
[the  victim] met his death during the course
of  or  in furtherance of the robbery or  the
arson.  845 P.2d at 452.
          As   the   supreme  court  did   in
Michael,  we acknowledged in Hansen that  the
States grand jury evidence might easily  have
supported  an  indictment for  felony  murder
i.e.,  the  evidence would have  supported  a
finding that the victim was killed during the
course of, or in furtherance of, the robbery.
Id.  at  453.  We added, however,  that  even
though  the extra element required for felony
murder  (the causal link between the  robbery
and  the homicide) might be apparent from the
evidence,   the   grand   jury   must   still
explicitly  consider this additional  element
and  make a finding with regard to  it.   Cf.
Michael v. State, 805 P.2d 371 (Alaska 1991).
Hansen, 845 P.2d at 453.
          Thus,  in both Michael and  Hansen,
the  problem was that the grand jury did  not
make  a  finding with respect to all  of  the
necessary  elements of the crimes  for  which
the defendants were convicted.
          Rogers,   however,   asks   us   to
interpret Michael in a significantly  broader
fashion.  According to Rogers, Michael stands
for the proposition that a trial jury has  no
authority to convict defendants of the crimes
for  which the grand jury indicted  them  (or
for  a necessarily included lesser crime)  if
the  trial  jurys  view of the  evidence   in
particular,   its  view  of  the   defendants
actions  differs significantly from the  view
of the evidence adopted by the grand jury.
          With  regard to the specific  facts
of  his  case,  Rogers  argues  that  Michael
prohibited  his trial jury from  finding  him
guilty of first-degree murder (the crime  for
which  he  was  indicted), or guilty  of  any
lesser  degree of criminal homicide,  if  the
trial  jury  disagreed with the  grand  jurys
assessment  that  Rogers  deliberately   shot
Black.
          As  we  explained earlier  in  this
opinion,  if  Rogers pointed his  handgun  at
Black,  and if Black and his co-workers  then
attempted  to  disarm Rogers, and  Black  was
killed  when the gun accidentally  discharged
during  this struggle, Rogers might  properly
be found to have caused Blacks death.  If the
jury  concluded that Rogers, when  he  pulled
his  gun,  intended to kill Black (or  anyone
else),  then Rogers might properly  be  found
guilty of first-degree murder.  Similarly, if
the  jury  concluded that Rogers deliberately
pointed  his gun at Black, without an  intent
to  kill but with reckless disregard for  the
risk of death, then Rogers might properly  be
found guilty of manslaughter.
          As   we   also  explained  earlier,
Rogers does not dispute these propositions as
general  statements of law.   But  he  argues
that,  under  the supreme courts decision  in
Michael,  his trial jury was prohibited  from
returning  verdicts like these   because  the
grand   jury  that  indicted  him   did   not
expressly  anticipate  the  possibility  that
Rogers  did not deliberately fire his gun  at
Black,  and that Black died instead  from  an
accidental  discharge  of  the  weapon   that
occurred while Black and his co-workers  were
struggling with Rogers.
          We  do  not  interpret Michael  and
Hansen  to  stand for the rule that  a  trial
jury  has no authority to convict a defendant
of  a felony if the jurys verdict is premised
on a view of the evidence  more specifically,
a  view  of the defendants conduct   that  is
different from the grand jurys.
          First,  as  a practical  matter,  a
trial  jury  generally hears  a  much  fuller
presentation  of the evidence  than  a  grand
jury.  In particular, a trial jury will  hear
the   cross-examination  of  the  governments
witnesses, and will often hear the defendants
witnesses.  The trial jurors will  then  have
to  sort  out, from the competing  testimony,
the  version of events that they  believe  is
proved.   If,  as  was  apparently  true   in
Rogerss case, the trial jurors conclude  that
the  States theory of the defendants  conduct
is  only partially accurate, then  under  the
rule  that Rogers proposes  the jurors  would
not  be  able to return a verdict on a lesser
offense, but would instead have to acquit the
defendant.
          We  doubt  that  the supreme  court
intended  Michael  to require  such  results.
Alaska  has  long recognized that  the  proof
ultimately  adduced at a criminal  trial  may
differ  in significant ways from the evidence
presented  to  the grand jury, and  that  the
trial jury may legitimately reach a different
view  of  events from the one represented  in
the grand jury indictment.
          For  example, in Miller  v.  State,
866   P.2d   130  (Alaska  App.  1994),   the
defendant  was  originally  indicted  on  the
theory  that he was guilty of robbery  as  an
accomplice, because he was the getaway driver
in  the  robbery.   But at trial,  a  witness
testified that Miller was one of the two  men
who  entered  the residence  and  robbed  the
occupants,  and that a third man  named  Bill
had driven the getaway car.  Id. at 135-36.
          On  appeal, Miller argued that  the
jurors should have been instructed that  they
could convict him only if they believed  that
he was an accomplice (as the State originally
alleged), and not if they found that  he  was
one  of  the principal robbers.  We  rejected
Millers argument:

     [T]he    legal    distinction    between
principals  and  accomplices  has  long  been
abrogated in Alaska.  See AS 11.16.110.   See
also  Morris  v.  State, 630 P.2d  13,  15-16
(Alaska  1981);  Machado v. State,  797  P.2d
677,  685-86  (Alaska  App.  1990).   It   is
well-settled  that a defendant charged  as  a
principal  may be convicted as an accomplice;
the converse is also true.

Miller,   866  P.2d  at  137  (footnote   and
citations omitted).
          The  supreme  courts  decision   in
Elisovsky  v.  State, 592 P.2d  1221  (Alaska
1979)  (the  case in which the supreme  court
adopted   the  cognate  approach  to   lesser
included  offenses)  illustrates  this   same
principle.
          The   defendant  in  Elisovsky  was
indicted (under Alaskas former criminal code)
for  the  offense of assault with a dangerous
weapon.   The  State alleged  that  Elisovsky
pointed  his  rifle  at  two  Cordova  police
officers  who  attempted to  intervene  in  a
dispute between Elisovsky and his wife.   Id.
at  1223.  But at Elisovskys trial, the  jury
heard three different versions of this event:

     As  the  police  arrived, Elisovsky  was
taking his rifle and gear out of the rear  of
the   couples  station  wagon.   Both  police
officers  testified that [Elisovsky]  pointed
the  rifle  at  them[,] and that  [his  wife]
Jackie  pushed the muzzle of the gun  to  the
ground.   Elisovsky  testified  that  he  was
taking  the rifle and other gear out  of  the
car for the purpose of spending the night  on
a  friends  boat and was merely  planning  to
stand  the  rifle  beside  the  car.   Jackie
testified that she ... grabbed the barrel  of
the rifle to push it down, but [she] believed
that  Elisovsky was only brandishing the  gun
and had not pointed it at anyone.

Elisovksy, 592 P.2d at 1223.
          The question presented in Elisovsky
was  whether  the  trial  judge  should  have
honored  the  defendants request to  instruct
the  jury  on the lesser offense of  careless
use of firearms.  The supreme court concluded
that the jury should have been instructed  on
this lesser offense:

     In the present case, there is a conflict
in the testimony as to whether Elisovsky ever
intentionally  pointed  the  weapon  at   any
person.   The  officers  testified  that   he
pointed   the   rifle   directly   at   them.
Elisovsky  testified ... that he intended  to
point the gun at no one but merely wanted  to
stand  it up alongside the car.  [His  wifes]
version  was that the muzzle of the  gun  was
raised  slightly  and  that  she  pushed  the
muzzle  to the ground.  From this conflicting
evidence[,] the jury could have believed that
the  rifle was intentionally pointed  at  the
[officers, but] without malice.

     Evidence  was  thus presented  that  the
defendant  committed only the lesser  offense
of careless use of a firearm.

Elisovsky, 592 P.2d at 1226.
          Although the issue was not squarely
raised  in  Elisovsky, it is clear  that  the
decision in Elisovsky implicitly rests on the
notion that a trial jury is entitled to  base
its  verdict  on  a  view of  the  defendants
conduct that differs from the view adopted by
the grand jury.
          Indeed,  as  this  Court  noted  in
Ragsdale  v. State, 23 P.3d 653, 659  (Alaska
App.   2001),  even  the  trial  jury  itself
ordinarily does not have to agree on a single
interpretation of the facts of  a  particular
criminal episode.
          For  example, in Hilbish v.  State,
891   P.2d   841  (Alaska  App.  1995),   the
defendant was prosecuted for the first-degree
murder  of  her  long-time  boyfriend.    The
evidence was sufficient to prove either  that
Hilbish personally shot her boyfriend or that
she  intentionally aid[ed] another person  in
[the]  planning or commission of the  murder.
Id. at 853.  This Court held that Hilbish was
properly  convicted of this offense  even  if
the  jurors were not unanimous in their  view
of the facts:

     Hilbish  objects that the  jury  [should
not   have  been]  instructed  on  accomplice
liability  [because,] in Hilbishs  view,  the
evidence  was  insufficient to establish  her
guilt as an accomplice, even if it might have
been  sufficient to prove [her]  guilt  as  a
principal.  This argument lacks merit.  Under
the   evidence,  fair-minded   jurors   could
reasonably  have  found beyond  a  reasonable
doubt  that  if Hilbish was not a  principal,
then  she must have been an accomplice   that
is,   that  [the  victim  was]  intentionally
killed by Hilbish or by someone acting at her
behest  and  with her active and  intentional
assistance.   The  distinction   between   an
accomplice  and  a principal  has  long  been
abrogated, see Miller v. State, 866 P.2d 130,
137   (Alaska  App.  1994),  and  when   [the
evidence]    suffices   to   establish    the
defendants  guilt  under either  theory,  the
jury   need  not  be  unanimous  in  deciding
whether the defendant acted as a principal or
as  an accomplice.  [State v.] McDonald,  872
P.2d [627,] 655 [(Alaska App. 1994)].

Hilbish, 891 P.2d at 853 n. 5.
          We  reached the same conclusion  in
Norris  v.  State, 857 P.2d 349 (Alaska  App.
1993),  a  case whose facts are more  closely
analogous  to  the  facts  of  Rogerss  case.
Norris  involved  a prosecution  for  second-
degree  murder.  We held that the jurors  did
not  need to unanimously agree on whether the
victim    died    because    the    defendant
deliberately  fired his rifle at  the  victim
(as  the  government  alleged)  or,  instead,
whether  Norris merely pointed the  rifle  at
the  victim,  and  the  victim  responded  by
grabbing  the  pointed rifle, causing  it  to
discharge by accident.  Id. at 354.
          For   these   reasons,  we   reject
Rogerss   interpretation  of  Michael.    The
supreme  courts decision in Michael does  not
stand  for  the  rule that a  trial  jury  is
forbidden to deviate from the view of  events
adopted  by the grand jury.  Rather,  Michael
stands   for   the  rule  that,   in   felony
prosecutions,  the  defendant  can   not   be
convicted of an offense unless the State  has
obtained  a  grand  jury  finding  on   every
essential element of that offense.
          (For    clarification,    it     is
sufficient   if  the  grand  jurys   findings
include the essential elements of the offense
for which the defendant is convicted  as, for
instance, where the grand jury finds that the
defendant acted intentionally with respect to
a  result specified in the statute,  and  the
trial  jury  finds that the  defendant  acted
recklessly with respect to this result.   See
AS  11.81.610(c).  See also Cheely v.  State,
850  P.2d  653,  661-63  (Alaska  App.  1993)
(holding  that  all  six of  the  methods  of
committing theft defined in AS 11.46.100  are
encompassed by a theft indictment).)
          In  Rogerss  case, the  grand  jury
indicted   Rogers  for  first-degree   murder
because  the  grand jurors found that  Rogers
caused  the  death of Brian Black,  and  that
Rogers  acted intentionally with  respect  to
causing a human death.  The trial jury agreed
that Rogers caused Blacks death (although the
trial  jury adopted a different view  of  the
underlying  facts),  but  the  trial   jurors
rejected  the  States assertion  that  Rogers
intended to cause death; instead, they  found
that Rogers acted recklessly with respect  to
the risk of death.
          Given  these facts, the trial jurys
verdict of manslaughter did not constitute  a
fatal   variance   from   the   grand    jury
indictment.

Rogerss   argument   that  his  defense   attorney
detrimentally  relied on the trial judges  initial
refusal to instruct the jury on the applicable law
of causation

     Rogerss  alternative  argument  is  that   he
detrimentally  relied on the fact that  the  trial
judge  initially  refused to  instruct  the  trial
jurors   on  the  substantial  factor   test   for
causation.
          As we explained earlier, the jurors submitted
a  mid-deliberation  question that  asked  for  further
instruction  concerning causation; the jurors  question
prompted  the trial judge to alter his earlier decision
and  instruct  the jurors on causation (in  particular,
the  substantial  factor test for  causation).   Rogers
does  not  argue that the judges causation  instruction
was  legally  incorrect.  Rather, Rogers contends  that
even if that causation instruction correctly stated the
law,  the  judges  decision to  give  the  jurors  that
instruction  was unfair  because, when Rogerss  defense
attorney delivered his summation to the jury at the end
of the trial, the defense attorney detrimentally relied
on  the  trial  judges initial ruling that  the  jurors
would  not  be  instructed on  the  applicable  law  of
causation.
          To  answer Rogerss argument, we must  briefly
recapitulate  the procedural history that  led  to  the
trial  judges ultimate decision to instruct the  jurors
on causation.
          After the presentation of evidence at Rogerss
trial  was  complete, the trial judge and the attorneys
discussed  jury instructions.  During that  discussion,
the  prosecutor twice asked the trial judge to instruct
the  jurors on the law of causation  in particular, the
substantial factor test for causation.
          The prosecutor pointed out that, in light  of
the  conflicting evidence on how the shooting occurred,
the jurors might come to the conclusion that Mr. Rogers
pulled  the gun [and] pointed it at Mr. Black, but  did
not  shoot   and that during the struggle that  ensued,
... [either] through the victim himself pulling the gun
away  from  the  defendant, or from  a  third  [person]
intervening   in   the  struggle  and   disarming   the
defendant, thats [how] the death of Mr. Black  ...  was
caused.  Thus, the prosecutor argued, the jurors needed
to  understand how the law of causation applied to that
set of facts.
          Rogerss   attorney  opposed  the  prosecutors
request, and he succeeded in convincing the trial judge
not  to give a jury instruction on causation.  However,
when  the  trial  judge issued this ruling,  the  judge
expressly  stated  that  he might  revisit  this  issue
if ... the jury has a question.
          The  parties then delivered their  summations
to the jury.
          In  his  opening  summation,  the  prosecutor
argued  that Rogers deliberately shot and killed Black.
In  response,  the  defense attorney  argued  that  the
evidence  demonstrated  a reasonable  possibility  that
Rogers  did  not  deliberately shoot  Black,  but  that
instead  the  gun  went  off  accidentally  during  the
struggle  between  Rogers  and  Black  and  Blacks  co-
workers.
          Then  the  defense attorney made an  argument
that took advantage of the fact that the jurors had not
been  instructed  on the substantial  factor  causation
test:   the  defense attorney told the jury  that,  not
only had the State failed to prove first-degree murder,
but  the State had also failed to prove either  of  the
potential  lesser  offenses (second-degree  murder  and
manslaughter) because they have failed to prove  beyond
a reasonable doubt that Shawn [Rogers] caused the death
of Brian Black.
          In  reply  to  this argument, the  prosecutor
told the jurors that, even if they did not believe that
Rogers  was  guilty  of  deliberately  shooting  Black,
Rogers  could nevertheless be found guilty of a  lesser
degree  of  homicide because Rogerss act of threatening
Black  with  a  handgun  was the  event  that  set  the
homicide in motion.
          The     next    afternoon,    during     jury
deliberations, the court received a note from the jury,
asking  for further instruction on the law of causation
as  it  related  to  the  lesser  included  offense  of
manslaughter.   The jury asked if Rogers could be found
to  have  caused Blacks death if Rogerss  conduct  only
contributed  to  the  death,  or  if  the  law  instead
required  the  State  to prove that  Blacks  death  was
entirely Rogerss fault.
          As  we have already explained, when the trial
judge  initially ruled on (and denied) the  prosecutors
request   for  a  causation  instruction,   the   judge
expressly told the parties that he might reconsider his
ruling  if ... the jury has a question.  Based  on  the
jurys  question, the judge concluded that he now needed
to  give  the jurors a fuller explanation of causation.
So  the  judge  finally instructed the  jurors  on  the
substantial  factor  test, and he  expressly  told  the
jurors that Rogerss conduct did not have to be the sole
cause of Blacks death.
          After     receiving     this     supplemental
instruction, the jury convicted Rogers of manslaughter.
          Rogers now argues that it was unfair for  the
trial judge to alter course and instruct the jurors  on
the  applicable law of causation.  In support  of  this
argument, Rogers relies heavily on this Courts decision
in Rollins v. State, 757 P.2d 601 (Alaska App. 1988).
          In  Rollins,  the defendant was indicted  for
third-degree assault (placing another person in fear of
imminent serious physical injury).  After the close  of
the  evidence, the defense attorney initially requested
a  jury  instruction on the lesser included offense  of
fourth-degree  assault  (placing  another  in  fear  of
imminent,  non-serious physical injury), but  then  the
defense attorney withdrew this request.  The State  did
not  object to submitting the case to the jury with the
jurys  deliberations  limited to third-degree  assault.
Id. at 602.
          During   final  argument,  Rollinss  attorney
focused  on  the  element of serious  physical  injury,
arguing  that  the victim might have reasonably  feared
some  physical  injury  but not  the  serious  physical
injury   necessary  for  conviction   of   third-degree
assault.   The jury, apparently crediting  the  defense
attorneys  argument, sent a note to  the  judge  asking
what  they should do if they found that the victim  had
reasonably feared only non-serious injury.   In  reply,
and  over Rollinss objection, the judge instructed  the
jury  on  fourth-degree assault, and the jury convicted
Rollins of this lesser charge.  Ibid.
          On   appeal,  this  Court  reversed  Rollinss
conviction.   We recognized that, as a matter  of  law,
Rollins was on notice that fourth-degree assault was  a
potential  lesser  included offense.  Nevertheless,  we
held  that, after the State and the trial judge  agreed
to  send  the case to the jury solely on the charge  of
third-degree assault, Rollins was entitled to  rely  on
this posture of the case when formulating his summation
to  the  jury.  More specifically, this Court concluded
that Rollins had justifiably relied to his detriment on
the  restricted  charge when he decided  to  focus  his
argument on the States failure to prove the element  of
fear  of  imminent  serious physical  injury.   Id.  at
602-03.
          Rogers argues that his case presents the same
sort of detrimental reliance.  In Rollins, however, the
States  attorney  acquiesced in the  defense  attorneys
decision to present the case to the jury in an  all  or
nothing  posture   i.e.,  in such  a  way  that  lesser
offenses  would not be at issue.  In Rogerss  case,  on
the other hand, the prosecutor actively (and correctly)
argued  that the jurors needed to be instructed on  the
law  of causation if they were to properly consider the
lesser  included offenses of second-degree  murder  and
manslaughter.
          Rogerss   defense   attorney   opposed    the
prosecutors request and convinced the trial  judge  not
to  instruct  the jurors on causation.   Then,  in  his
summation,  the defense attorney actively  argued  that
the  evidence  failed to establish that  Rogers  caused
Blacks  death  which appears to have been a key  factor
in  prompting  the jury to ask for further  instruction
concerning the law of causation.
          Moreover,  Rogerss  attorney  was  on  notice
(when  he delivered his summation) that the trial judge
was willing to reconsider the issue of whether the jury
should  be  instructed on causation,  should  the  jury
later  inquire about this matter.  Later, the jury  did
indeed  pose a question concerning the law of causation
and,  in accordance with his earlier caveat, the  judge
reconsidered the issue and decided to instruct the jury
on  causation.   In  other words, if  Rogerss  attorney
formulated  his  summation  to  the  jury   under   the
assumption  that the jury would never be instructed  on
the  applicable law of causation, the defense attorneys
assumption  was unreasonable  because it  was  at  odds
with the trial judges ruling.
          For  these reasons, we conclude that  it  was
not  unfair for the trial judge to instruct the  jurors
on the applicable law of causation in response to their
mid-deliberation question.

Rogerss  argument that the State breached its  duty  to
present exculpatory evidence to the grand jury

          Rogers  claims  that the State  breached  its
duty  to present exculpatory evidence to the grand jury
when  the State failed to apprise the grand jury  of  a
short statement  comprising only a few sentences   that
Rogers made to a state trooper about the incident.
          Rogers  made  this  statement  several  hours
after the shooting, when he was in custody.  Rogers was
not   being  interrogated  at  the  time;  rather,   he
volunteered  his statement while he was  waiting  in  a
patrol  car with the state trooper.  According  to  the
troopers handwritten notes, Rogers said:  It went  bad.
I got jumped on.  ...  [Its] not every day someone gets
jumped,  gets [their] gun taken away, and someone  ends
up dead.  It happened tonight.
          Relying on the troopers handwritten notes  of
Rogerss  statement, Rogerss attorney asked the superior
court to dismiss the murder indictment.  In his motion,
the  defense attorney referred to Rogerss statement  as
an  assertion that he did not do anything wrong.   But,
as  can  be  seen  from the state troopers  account  of
Rogerss  statement (quoted in the preceding paragraph),
Rogers did not directly assert that he had done nothing
wrong.    Rather,   this  was  the  defense   attorneys
characterization  of  Rogerss  statement.    And   that
characterization is, at best, debatable.
          As  we have already explained (at length)  in
this  opinion,  Rogers would be criminally  responsible
for causing Blacks death if he drew his gun and pointed
it at Black, prompting Black and his co-workers to take
defensive   measures,  and  then  the  gun   discharged
accidentally  during  the  struggle.   And  if   Rogers
pointed the gun at Black with an intent to kill, Rogers
could  properly be found guilty of first-degree  murder
(the offense for which he was indicted) even though his
finger was not on the trigger when the gun went off.
          Thus, Rogerss statements that [he] got jumped
on  [by  Black and his co-workers], and that [his]  gun
[got]  taken away, and someone end[ed] up dead are  not
exculpatory  at least, not standing by themselves.   If
Rogers  initiated the incident by pointing his  gun  at
Black,  and  if he did so with an intent to kill,  then
the  grand jury could properly indict Rogers for first-
degree murder even if Rogerss statements to the trooper
were true.
          One  could,  of  course, argue  that  Rogerss
statements  suggested that he was innocent  of  murder.
But  this  is  not  sufficient to  establish  that  the
prosecutor  had a duty to present these  statements  to
the grand jury.
          As  the  Alaska  Supreme Court  explained  in
Frink  v.  State, 597 P.2d 154, 166 (Alaska 1979),  the
prosecutors obligation to present exculpatory  evidence
to  the grand jury does not turn the prosecutor into  a
defense  attorney;  the prosecutor  does  not  have  to
develop  evidence for the defendant [or] present  every
lead  possibly  favorable to the defendant.   Thus,  as
this Court stated in Cathey v. State, 60 P.3d 192,  195
(Alaska App. 2002), [a] prosecutors duty to apprise the
grand  jury  of  exculpatory evidence extends  only  to
evidence  that tends, in and of itself, to  negate  the
defendants guilt.
          For  these  reasons, we uphold  the  superior
courts   denial  of  Rogerss  motion  to  dismiss   the
indictment.

Conclusion

          The  judgement  of  the  superior  court   is
AFFIRMED.

_______________________________
     1AS 11.41.120(a)(1).

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