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Andrew v. State (7/30/2010) ap-2274

Andrew v. State (7/30/2010) ap-2274

                             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


ZENA M. ANDREW,                    
                                   
                    Appellant,       Court of Appeals No. A-9997
                                    Trial Court No. 3KN-05-1530 Cr
               v.                  
                                   
STATE OF ALASKA,                         O  P  I  N  I  O  N
                                   
                    Appellee.      
End of Caption                        No. 2274    July 30, 2010
                                   
          Appeal  from the Superior Court,  Third  Judi
          cial  District, Kenai, Charles  T.  Huguelet,
          Judge.

          Appearances:   Tracey  Wollenberg,  Assistant
          Public  Defender, and Quinlan Steiner, Public
          Defender,  Anchorage, for the Appellant.   W.
          H. Hawley, 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.

          Zena  M. Andrew appeals her conviction for first-degree
burglary   (burglary  of   a
residence), an accompanying conviction for second-degree
theft  (for  the  property stolen during that burglary),
and  a  separate conviction for second-degree theft for receiving
or  concealing  many  items of stolen property  that  were  taken
during earlier burglaries and thefts.  
          The  evidence showed that Andrews boyfriend,  Brian  L.
Haws,  also  played a role in these crimes.  In particular,  with
respect  to the residential burglary and the accompanying  theft,
the  evidence  showed  that Haws was  the  one  who  entered  the
residence  and removed the property, while Andrew waited  outside
in Hawss car.  
          Andrew   argues   in  this  appeal   that   there   was
insufficient  evidence to convict her of  the  burglary  and  the
thefts.   Andrew concedes that the evidence showed that  she  was
present when Haws committed these crimes, and that she might have
been  aware  that  Haws was committing these crimes,  but  Andrew
contends   that   there  was  no  evidence  that   she   actively
participated  in  these crimes, or that she  purposely  aided  or
abetted Haws in planning or committing these crimes (the test for
vicarious   liability   codified   in   AS   11.16.110).

          Andrew  acknowledges that the evidence  may  have  been
sufficient  to  prove that she assisted Haws in transporting  and
retaining  the  property that was stolen during  the  residential
burglary.  But Andrew argues that she performed these acts  after
the burglary and the theft were committed.  She points out that a
person who provides aid to a felon after the felony is over  does
not,  by  reason  of  this aid, become guilty of  the  underlying
felony.   Rather, the person is guilty of the separate  crime  of
hindering    prosecution   as   defined    in    AS    11.56.770.

          For  these  reasons, Andrew contends that the  evidence
was  insufficient  to support her convictions  for  burglary  and
theft.  
          Alternatively, Andrew argues that even if the  evidence
was  sufficient to convict her of burglary and theft based on her
legal  accountability for Hawss conduct, the evidence  was  still
insufficient  to  convict her of these crimes based  on  her  own
personal  conduct  and that, for this reason, the jurys  verdicts
must be overturned. 
          Andrews  argument on this point hinges on the fact  the
jury  was  not asked to declare whether they found Andrew  guilty
based  on  her  own conduct, or (instead) based  on  her
accountability  for Hawss conduct under the rules  set  forth  in
AS 11.16.110(2).  Rather, each of the jurys verdicts was
a general verdict that did not specify the theory under which the
jury  found  Andrew guilty.  Andrew contends that  these  general
verdicts  are invalid because (1) the evidence  was  not
sufficient  to  establish her guilt based  on  her  own  personal
conduct  and,  (2)  given  the  general  nature  of  the
verdicts,  it  is  impossible to tell  whether  the  jurors  were
unanimous in finding her guilty based on her complicity in  Hawss
conduct    (a    theory   arguably   supported   by    sufficient
evidence),  or  whether some of the  jurors  erroneously
found her guilty based on her own personal conduct (a theory that
was    not    supported    by   sufficient    evidence).

          For  the reasons explained in this opinion, we conclude
that  this  proposed dichotomy is mistaken.  The  State  was  not
required to prove that Andrew could be found guilty based on  her
personal conduct alone, nor was the State required to prove  that
Andrew  could  be  found guilty based solely on  the  conduct  of
others for which was she was accountable.  Rather, the State  was
required  to  prove that the combination of (1)  Andrews
personal actions and (2) the actions of others for which
she  could  be held accountable under AS 11.16.110 was sufficient
to  establish Andrews guilt of the burglary and the  two  thefts.
We  further conclude that the evidence presented at Andrews trial
satisfied this test. 
          Andrew  separately  argues that  the  State  failed  to
present  sufficient evidence that the property taken  during  the
residential burglary was worth $500 or more  the threshold amount
for  second-degree theft.  We agree with Andrew that the evidence
fails to establish that the property was worth at least $500, and
we  therefore direct the superior court to amend the judgement on
this  count  of  the indictment to reflect a conviction  for  the
lesser  included  offense of third-degree theft (i.e.,  theft  of
property valued at $50 or more).
          Finally,   Andrew  attacks  her  sentence  on   various
grounds.   For the reasons explained here, we uphold the superior
courts sentencing decision. 

     Underlying facts
     
               Because  Andrews  major  contention  in  this
     appeal  is that the evidence is insufficient to support
     the jurys verdicts, we present the evidence here in the
     light most favorable to upholding the verdicts.1
               In  early  September 2005,  Haws  and  Andrew
     drove  from  Anchorage  to the Kenai  Peninsula.   Haws
     contacted  an  old friend, Chris Parker, who  lived  in
     Sterling.   Haws  asked Parker if he and  Andrew  could
     stay at Parkers house, and Parker agreed.
               Parker was living with his girlfriend,  Misty
     Roberts.  A few hours after Haws and Andrew arrived  at
     the  house, everyone decided to go out for food.   They
     all  got  into Parkers car  a black Jeep Cherokee   and
     they  were about to pull out of the driveway  when,  as
     luck  would  have  it,  two state troopers  arrived  to
     arrest Parker for a minor offense.
               While  the  troopers were taking Parker  into
     custody,  Haws  opened the rear door of  the  Jeep  and
     demanded  to  know why Parker was being  arrested.   As
     Haws  was  opening the car door, one  of  the  troopers
     observed Haws hand a metal pipe (the kind used to smoke
     drugs) to Andrew.  (The troopers did not follow  up  on
     Hawss drug pipe.)
               Parker  was bailed out of jail by  a  friend,
     but  in  the meantime, Haws and Andrew went driving  in
     Hawss car  a white Mercury Cougar.
          Later  that  day,  the  Mercury  Cougar   was
discovered  parked near a residence  owned  by  Charles
Jackson.
          Jackson  was  not  currently  occupying   the
house;  he  was trying to rent it or sell it.   Jackson
had  telephoned a friend of his, Richard Miller, to ask
him  to retrieve some paperwork from the house.  On the
day  in question, Miller and his son Benjamin drove out
to Jacksons house to perform this errand.
          Jacksons house had a long driveway:   it  ran
between  50 and 100 feet from the road before  reaching
the  parking pad next to the garage.  When  Miller  and
his  son first approached Jacksons residence and viewed
it from the road, everything appeared normal.  However,
as  they  drove  up the driveway, Miller  and  his  son
observed  a car  Hawss Mercury Cougar  parked alongside
a  fence,  off the driveway and away from  the  parking
area.
          According  to Millers testimony,  the  Cougar
was  not visible unless one went up the driveway almost
all the way to the garage.
          (Hawss  friend  Chris Parker  also  testified
that,  when  he arrived at the Jackson residence  later
that  day  (as we will explain), he thought that  Hawss
car was parked in a weird place:  pulled off aside of a
dog  run  rather than in the parking area next  to  the
          garage.  Parker remembered asking Haws why, if Haws had
come  to  inspect the house with an eye toward  renting
it, he had placed his car so far away.)
          Richard Miller could see exhaust coming  from
the  Cougar;  in  other  words, the  car  was  running.
However,  neither Miller nor his son could  see  anyone
sitting in the car; it appeared to be unoccupied.
          But  as soon as Miller parked his own vehicle
in  the  driveway, a man (Haws) just seemed  to  appear
almost out of nowhere.  When Miller asked Haws what  he
was  doing  at  the  house, Haws replied  that  he  was
looking for a place to rent.  Haws told Miller that  he
had driven up Jacksons driveway, thinking that it was a
road  that  cut through the property; then,  when  Haws
discovered that it was a driveway, and that it ended at
the house, he had tried to turn his car around, but  it
became stuck in the mud.
          At  some point while Miller and his son  were
talking to Haws, Andrew  who had been in the Cougar all
along   sat up in the passenger seat, so that  she  was
now visible to the Millers.  Benjamin Miller saw Andrew
putting  some  things in a bag.  Much later,  when  the
troopers searched Hawss car, they found that the  glove
box was empty of any identifying documents.
          Miller and his son attempted to tow Hawss car
from where it was stuck; they used a chain, and then  a
cable,  but  their  efforts were  unsuccessful.   Then,
thinking  that  there might be a tow  rope  inside  the
house,  Miller and his son went into the house  to  see
what they could find.
          What  they  found was evidence of a break-in:
they saw that a screen had been pulled from one of  the
windows, and that the window was open; Miller also  saw
that,  inside the house, stuff [was] strewn everywhere,
and several drawers and cupboards had been pulled open.
          Meanwhile, Haws followed the Millers into the
house  and was st[i]ck[ing] to [them] like glue, trying
to  distract  them.  While inside the house,  Haws  was
also  talking  on his mobile phone (using  a  headset),
asking Chris Parker and Misty Roberts to come help  him
get  his  car  free, or at least to come  get  him  and
Andrew.   Parker  and Roberts set out in  Parkers  Jeep
Cherokee.   As they drove, Haws continued  to  talk  to
them on his mobile phone, so that he could lead them to
where he was.
          (As we explained before, Hawss car was parked
in  a  place  where it was not visible from  the  road.
Because of this, Haws had to verbally direct Parker  to
the Jackson residence driveway.)
          When  Miller and his son saw Parkers  vehicle
coming up the driveway, they began to be concerned  for
their own safety, so they coaxed Haws out of the house,
and then they went back inside and locked the doors  so
that no one else could enter.
          When  Parker and Roberts arrived,  Haws  told
them  that he had already called a tow truck, and  that
he  only  needed  them to help transfer the  belongings
from  his  Cougar into Parkers Jeep, and then give  him
and  Andrew  a  ride  back  to  Parkers  house.   These
belongings  consisted of a large number  of  small-  to
medium-size  bags, as well as a wooden  box.   Roberts,
Haws,  and Andrew, and perhaps Parker, participated  in
transferring these bags and the box from the Cougar  to
the  back  compartment of Parkers Jeep.  When they  got
back to Parkers house, everyone helped carry these bags
and  the  box  from the Jeep into the house,  and  then
upstairs  to  the room where Haws and Andrew  would  be
staying.
          The   clothing  that  Haws  and  Andrew  were
wearing  had become soaked, and they asked  Parker  and
Roberts if they could borrow some dry clothes.  Roberts
thought  it  was  strange that, with all  the  bags  of
belongings that Haws and Andrew had brought with  them,
they did not have any spare clothing.
          Things settled down, and the four people were
about to order some pizza when the troopers knocked  on
the  door.   Parker and Roberts went out  to  meet  the
officers,  but Haws and Andrew made themselves  scarce;
they went upstairs.
          Standing  outside  the  house,  the  troopers
informed Parker that there had been a robbery (i.e.,  a
burglary  and  theft)  at the house  where  Parker  and
Roberts  had  picked up Haws and Andrew earlier.   When
Parker  disclaimed any knowledge of these  crimes,  the
troopers  asked  if there was anyone  else  in  Parkers
house.   Parker  said that there was, and  he  led  the
troopers into his house  only to discover that Haws and
Andrew  were  nowhere in sight.  Parker  then  led  the
troopers   upstairs  to  see  where  [Haws]   and   his
girlfriend had [gone].
          Haws  and  Andrew had locked themselves  into
their  bedroom   although they left all the  belongings
that  had  come from the Cougar piled in the middle  of
the floor outside the bedroom.
          Both  Parker  and Trooper Sgt.  Barry  Wilson
asked  Haws and Andrew to come out of the bedroom,  but
they  refused.  Instead, they started pushing furniture
in  front  of  the bedroom door, to impede  anyone  who
might  attempt to enter.  They also used  clothing  and
other small items as stuffing to close off a vent  hole
that  was  near  the floor.  Through the  door,  Wilson
could  hear Haws coaching Andrew on what to say to  the
troopers.
          At  some  point during this standoff,  Andrew
told  Haws  that  she wanted out, but  Haws  apparently
would not let her leave the bedroom.
          After  about an hour and a half, the troopers
forced  their way into the room.  On the floor next  to
Andrew, the troopers found a womans stolen credit card.
As Haws and Andrew were being arrested, Haws instructed
Andrew not to say anything to the troopers.
          The  bags and the wooden box that were  piled
outside  of the bedroom contained stolen property  from
the   Jackson   residence  and   from   several   prior
burglaries.
          One  of these bags contained womens underwear
and  feminine hair, skin, and hygiene products, as well
as   photographs  of  Haws  and  Andrew.   These  items
apparently belonged to Andrew.  This same bag contained
jewelry that had been stolen in a prior burglary.
          This  bag  also contained stationery  from  a
Marriott  Residence  Inn.  This  hotel  stationery  was
significant  because, as explained above, the  troopers
found  a  womans credit card next to Andrew  when  they
entered  the  bedroom to make the  arrest.   This  same
credit  card had been used (fraudulently)  to  pay  for
room   charges   at  the  Anchorage  Midtown   Marriott
Residence Inn from September 2nd through September  5th
in  other words, just four days before Haws and  Andrew
were arrested.
          Finally, this same bag contained notations of
a  drivers  license number, a credit  card  number  and
accompanying expiration date, and an address   none  of
them  Andrews.  This type of information could be  used
to make fraudulent purchases.

The wording of the indictment in this case, the common-
law  distinctions  between principals and  accessories,
and  the abrogation of these distinctions under  Alaska
law

          Andrews  indictment charged  her  with  three
felonies:   the burglary of the Jackson residence,  the
accompanying   theft,  and  the  separate   theft   (by
receiving or concealing) of the property taken  in  the
earlier  burglaries  and  thefts.   According  to   the
wording  of  the  indictment, Andrew was  charged  with
committing  these  crimes  as  [a]  principal  or  [an]
accessory.
          As   we  are  about  to  explain,  the  terms
principal and accessory had precise meanings at  common
law, and different rules applied to the prosecution and
punishment  of  principals and  accessories.   But  the
distinction between principals and accessories  (to  be
more  precise,  the distinction between principals  and
accessories before the fact) was abrogated in Alaska by
statute more than one hundred years ago.
          In  accordance with the abrogation  of  these
common-law  distinctions,  Alaska  law  prior  to  1980
required  that all persons concerned in the  commission
of  a  felony  be  prosecuted, tried, and  punished  as
principals.2  And today, under Alaskas current criminal
code,  the terms principal and accessory are  not  even
used (much less defined).
          In  the current appeal, Andrew and the  State
          agree that the archaic wording of Andrews indictment
was  intended  to  mean that Andrew  was  charged  with
committing  the burglary and thefts either through  her
own personal conduct, or through the conduct of another
person   (i.e.,  Haws)  for  which  she   was   legally
accountable, or through a combination of both.
          This   is   the  general  rule  for  criminal
liability  codified  in  AS  11.16.100.   This  statute
declares  that a person can be convicted of a crime  if
the offense was committed by [their] own conduct[,]  or
by  the  conduct of another for which [that] person  is
legally  accountable  under [the rules  set  forth  in]
AS 11.16.110, or by [a combination of] both.
          Nevertheless,  many of Andrews  arguments  in
this appeal hinge on the charging language found in the
indictment   and  on the concomitant theory  that  this
language charges two distinct theories of culpability.

     (a) The common-law distinctions between principals
  and accessories

          In   order   to  analyze  Andrews   arguments
concerning the sufficiency of the evidence to establish
her  guilt of the burglary and the thefts in this case,
we must first examine the common-law doctrines defining
the  various  types of participants in a criminal  act,
and   then  examine  the  statutes  that  modified  the
application of these doctrines in Alaska.
          At  common law, there were four categories of
participants  in a felony offense:  principals  in  the
first   degree,   principals  in  the  second   degree,
accessories before the fact, and accessories after  the
fact.
          Principals  in  the  first  degree  were  the
people  who directly committed the offense.  Rollin  M.
Perkins  &  Ronald N. Boyce, Criminal Law (3rd  edition
1982), pp. 722, 736.
          Principals  in the second degree were  people
who  were present at the scene of the crime and  either
aided  or  encouraged the commission of the offense  or
were immediately available to aid the commission of the
offense.   Id.,  pp. 722, 738.  Because the  underlying
test  for  principals in the second degree was  whether
the person was immediately available to aid or abet the
commission  of  the offense, the common  law  deemed  a
person to be constructively present at the scene of the
crime  (and,  thus, a principal in the  second  degree)
even  if they were some distance away, so long as  they
were  available  to  assist in the  commission  of  the
offense  for example, a getaway driver who waited  down
the  street,  or  even a person who  was  posted  on  a
distant building or mountaintop, armed with a rifle  to
protect  the  direct perpetrators, or equipped  with  a
signaling  device to alert the perpetrators if  someone
was coming.  Id., p. 741.
          (We  note  that, under the States  theory  of
Andrews  case, Andrews involvement in the burglary  and
theft  at the Jackson residence would have made  her  a
principal  in  the  second  degree  as  that  term  was
understood  at  common  law.  The  State  alleged  that
Andrew was present at the scene of the crime, and  that
she  accompanied  Haws  for the purpose  of  aiding  or
abetting  him  in  his commission of the  burglary  and
theft.  If this allegation was proved, then even if the
burglary and theft were committed solely through  Hawss
personal conduct, Andrew would still be classified as a
principal  in  the second degree with regard  to  those
crimes.)
          Accessories before the fact were  the  people
who  solicited, aided, or encouraged the commission  of
the felony, but who were not present (either physically
or constructively) at the scene of the crime.  Id., pp.
744-45.
          Accessories  after the fact were  the  people
who,  acting  with  knowledge that another  person  had
committed  a  felony, rendered aid to the other  person
with  the  intent of hindering that persons  detection,
arrest, conviction, or punishment.  Id., pp. 748-751.
          At  common law, the first three categories of
participants   that  is, principals  in  the  first  or
second  degree, and accessories before the fact   could
all  be directly prosecuted and convicted of the felony
offense.  However, the distinctions between these three
types of participants were important because the common
law  prescribed different rules for the prosecution and
punishment  of  felony  offenders  depending   on   the
offenders status as a principal in the first degree,  a
principal in the second degree, or an accessory  before
the fact.  Id., pp. 751-58.
          Accessories  after  the fact  were  not  held
accountable  for  the underlying felony;  rather,  they
were  guilty of a separate offense (viz., participating
as  an accessory after the fact to a felony), and  this
offense carried a lesser degree of guilt.  Id., p. 728.

     (b)  The abrogation of the common-law distinctions
  between  principals  in the first degree,  principals
  in  the  second  degree, and accessories  before  the
  fact

          In the nineteenth century, many jurisdictions
enacted statutes to abrogate the common-law rules  that
distinguished   principals   in   the   first   degree,
principals in the second degree, and accessories before
the  fact.  An example of this legislation is found  in
the federal statutes governing the Territory of Alaska.
          Beginning  with  the  Carter  Code  of  1900,
Alaska  law contained a provision declaring [t]hat  all
persons  concerned in the commission of  a  crime,  ...
whether  they directly commit the act constituting  the
crime  or  aid and abet in its commission,  though  not
present,  are  principals, and [are] to  be  tried  and
punished  as  such.  Thomas H. Carter, Laws  of  Alaska
(1900), Part I (the Penal Code),  186.
          A  corresponding provision was found in  Part
II of the Carter Code (the Code of Criminal Procedure),
 58:
     
     [T]he  distinction between an  accessory
before  the fact and a principal, and between
principals in the first and second degree  in
cases  of  felony,  is  abrogated,  and   all
persons  concerned  in the  commission  of  a
felony, whether they directly commit the  act
constituting the crime, or aid and  abet  ...
its  commission, though not present, must  be
indicted,    tried,    and    punished     as
principals[.]

          For   a   Ninth  Circuit   decision
construing  Carter Code, Part  I,   186,  see
Rosencranz v. United States, 155 F.  38  (9th
Cir.  1907).   For  a  case  construing   the
predecessor  Oregon statute (Hills  Annotated
Laws  of Oregon,  2011 (1864)), see State  v.
Moran,  14  P.  419  (Or.  1887).   In   both
Rosencranz  and  Moran, the  wording  of  the
indictment   charged   the   defendant   with
personally  committing the acts  constituting
the  crime  (see Rosencranz, 155  F.  at  38;
Moran,  14  P.  at 420), but the  governments
evidence  at trial showed that the  defendant
aided or abetted someone elses commission  of
the crime.  (See Rosencranz, 155 F. at 41-42;
Moran, 14 P. at 426.)  Both the Ninth Circuit
and  the  Oregon Supreme Court declared  that
this  difference  was  immaterial,  and  they
rejected  the  defendants challenges  to  the
supposed variance.  See Rosencranz, 155 F. at
42-43; Moran, 14 P. at 426-27.
          The  abrogation  of the  common-law
distinctions between principals in the  first
degree, principals in the second degree,  and
accessories before the fact remained  a  part
of  Alaska law until statehood.  See   65-3-2
and  66-9-23  of  the  Alaska  Compiled  Laws
Annotated  of 1949.  And upon statehood,  the
Alaska   legislature   again   codified   the
abrogation  of  the  common-law  rules:   see
former AS 12.15.010.3
          The  Alaska Supreme Court construed
these post-statehood statutes in the same way
that the Ninth Circuit had construed the pre-
statehood statutes in Rosencranz.   In  other
words,  even  when  an indictment  charged  a
          defendant with personally committing a crime,
at  the defendants trial the government could
properly introduce and rely on evidence  that
the   defendant  aided  or  abetted   another
persons commission of the crime.  Our supreme
court  held  that  this was  not  a  material
variance  from  the  indictment   because  AS
12.15.010  abrogated the  common-law  distinc
tions between principals in the first degree,
principals   in   the  second   degree,   and
accessories before the fact, and because  the
statute  further  declared that  all  persons
concerned  in  the  commission  of  a  crime,
whether   they   directly  commit   the   act
constituting   the  crime  or,   though   not
present,  aid  and  abet in  its  commission,
[were  to] be prosecuted, tried, and punished
as principals.  See Morris v. State, 630 P.2d
13,  15-16 (Alaska 1981); Scharver v.  State,
561  P.2d  300, 302 (Alaska 1977);  Baker  v.
State,  905  P.2d  479, 485-86  (Alaska  App.
1995);  Miller  v. State, 866 P.2d  130,  137
(Alaska App. 1994).
          Moreover, for purposes of assessing
the   verdict   in  a  criminal   case,   the
distinction   between   holding   a    person
accountable  for a crime based on  their  own
conduct  and  holding that person accountable
based  on another persons conduct was  deemed
immaterial.  See State v. McDonald, 872  P.2d
627, 655 (Alaska App. 1994), and Totemoff  v.
State, 866 P.2d 125, 129 (Alaska App. 1993),4
where this Court held that a trial jury  does
not  need to unanimously agree as to  whether
the  defendant personally performed the  acts
constituting the crime or, instead, solicited
or  aided or abetted someone elses commission
of the crime.
          With  regard to the fourth category
of  participants in a felony at  common  law,
accessories after the fact, Alaska  statutory
law   carried   forward  the  doctrine   that
accessories   after   the   fact   were   not
accountable  for the underlying  felony,  but
were   rather  guilty  of  a  separate,  less
blameworthy  offense.  Part I,   187  of  the
Carter Code declared [t]hat all persons  who,
after  the commission of any felony,  conceal
or  aid the offender, with knowledge that  he
has  committed a felony and with intent  that
he  may  avoid or escape from arrest,  trial,
conviction, or punishment, are accessories.
          (As can be seen from the wording of
Part  I,  187, the Carter Code used the  term
accessory as a shorthand for accessory  after
          the fact  because, under the sibling
provisions of the Carter Code (Part I,   186,
and  Part II,  58), all people who would have
been  categorized as accessories  before  the
fact   at   common   law  were   now   deemed
principals.)
          This  approach to accessories after
the  fact remained a part of Alaska law until
statehood.   See  65-3-3 and  65-3-5  of  the
1949  Alaska  Compiled Laws  Annotated.   And
upon  statehood,  the Alaska legislature  re-
codified   this  provision   as   former   AS
12.15.020:

     Accessories after the Fact.  All persons
who,  after  the  commission of  any  felony,
conceal  or  aid the offender with  knowledge
that  he  has  committed a  felony  and  with
intent  that  he  may avoid  or  escape  from
arrest, trial, conviction, or punishment  are
accessories.    ...    Such    persons    are
separately  punishable  for  their   distinct
offense [under] AS 11.10.050[.][5]

          Under   Alaskas  current   criminal
code,  the crime of being an accessory  to  a
felony  as  defined  in former  AS  12.15.020
i.e.,  what the common law would have  called
an   accessory  after  the   fact    is   now
encompassed   by  the  crime   of   hindering
prosecution    in    the    first     degree,
AS 11.56.770.

(c)  The  enactment  of Alaskas  current  criminal
code,   and   the  Alaska  Legislatures   complete
elimination of these common-law categories

     In  the  late  1970s, the Alaska  Legislature
undertook  to  completely revise Alaskas  criminal
law.   This revision was enacted as SLA 1978,  ch.
166,  and  the  new criminal code took  effect  on
January 1, 1980.6
     Under our current criminal code, two statutes
AS  11.16.100 and AS 11.16.110  contain the  basic
rules   for   determining  one  persons  vicarious
liability  for  the  conduct  of  another.   These
statutes  are  derived from two  Oregon  statutes,
ORS   161.150  and  161.155.7   And  these  Oregon
statutes, in turn, were based on Section  2.06  of
the Model Penal Code.8  Accordingly, to assess the
meaning and proper application of AS 11.16.100 and
AS  11.16.110,  we turn first to the  Model  Penal
Code.
          In  Section 2.06 of the Model Penal Code (the
final  version,  issued  in 1962),9  the  American  Law
          Institute advocated a new approach to the question of
identifying  and  classifying  the  participants  in  a
crime.
          Rather   than   relying  on  the   common-law
categories   of   principals  in  the   first   degree,
principals in the second degree, and accessories before
the fact, Model Penal Code  2.06(1) simply declared,  A
person  is  guilty of an offense if it is committed  by
his  own conduct[,] or by the conduct of another person
for  which  he is legally accountable [under the  rules
set forth in the other subsections of  2.06], or both.
          Under the Model Penal Code approach, all  the
participants   in   a  criminal  venture   are   deemed
accomplices  to  the  offense.   As  explained  in  the
Comment  to  2.06, the term accomplice was intended  to
be  understood  as  the broadest  and  least  technical
[term]  available to denote criminal liability.  Unlike
accessory[,]  it has no special meanings  under  either
common law or modern legislation.10
          (We  note  that the Alaska Statutes  use  the
term  accomplice  in  this same broad  sense.   See  AS
12.45.020   (requiring  that  the   testimony   of   an
accomplice  be  corroborated)  and  AS  12.55.155(d)(2)
(allowing mitigation of a presumptive sentence  if  the
defendant, although an accomplice, played only a  minor
role).   These are the only two places where  the  term
accomplice  appears in Title 12 of  the  statutes,  and
this term is not found at all in Title 11.)
          Under  the  Model  Penal Code  approach,  the
guilt  of  any particular defendant is to be judged  by
assessing  the  defendants  mens  rea  (that  is,   the
defendants  culpable mental state) and the  combination
of  (1)  the defendants own conduct and (2) the conduct
of   any  other  person  for  which  the  defendant  is
accountable.11
          With  regard to aiders or abettors who  would
have been classified either as principals in the second
degree  or  as  accessories before the fact  under  the
common  law (depending on whether they were present  at
the   scene  of  the  crime),  the  Model  Penal   Code
substituted a new definition of vicarious liability  in
2.06(3)(a):
     
          A  person  is an accomplice  of  another
     person in the commission of an offense  if[,]
     with the purpose of promoting or facilitating
     the commission of the offense, he
     
               (i) solicits [the] other person  to
          commit [the offense], or
     
               (ii) aids or agrees or attempts  to
          aid  [the]  other person in planning  or
          committing [the offense.]
     
               Under  this provision of the  Model
     Penal   Code,   a  defendant  can   be   held
     accountable for criminal conduct performed by
     another person if the government proves  that
     the  defendant  performed  one  of  the  acts
     specified  in   2.06(3)(a)  i.e.,  soliciting
     another  person  to engage  in  the  criminal
     conduct, or agreeing to aid someone  else  in
     planning  or committing the criminal conduct,
     or  actually  aiding  or  attempting  to  aid
     someone  else  in planning or committing  the
     criminal   conduct   and  if  the  government
     proves that the defendant performed that  act
     with the accompanying purpose of promoting or
     facilitating the commission of the offense.
          The Comment to  2.06 explains that,
even though  2.06 defines these various modes
or  theories of complicity in a crime,  these
modes  or  theories were codified [only]  for
the purpose of [elucidating] their content.12
The  drafters of the Model Penal Code did not
intend  for  [these] distinctions  [to]  have
procedural  significance.   Rather,  [as   is
true]  in the states that have abolished  the
common  law  distinctions between  principals
and  accessories, it would suffice under [the
Model   Penal   Code]  to   [merely]   charge
commission  of  the  substantive  crime   ...
[without] declar[ing] that the offender is  a
principal   [or  an  accessory   before   the
fact].13
          The Oregon Legislature adopted this
approach  to  criminal  liability   when   it
revised  the Oregon criminal law in 1971  and
enacted  Oregon Statutes 161.150 and 161.155.
These two statutes were taken almost verbatim
from the Model Penal Code.14
          The  first  of these statutes,  ORS
161.150,  states:  A person is  guilty  of  a
crime  if it is committed by the persons  own
conduct[,]  or by the conduct of another  for
which  the  person is criminally  liable,  or
both.   The  second  of these  statutes,  ORS
161.155,   declares  that   [a]   person   is
criminally liable for the conduct of  another
person constituting a crime if[,] [w]ith  the
intent   to   promote   or   facilitate   the
commission  of  the crime[,] the  person  ...
[s]olicits or commands [the] other person  to
commit  the crime; or ... [a]ids or abets  or
agrees or attempts to aid or abet [the] other
person in planning or committing the crime[.]
          Alaskas   counterparts   to   these
Oregon   statutes   are  AS   11.16.100   and
AS 11.16.110.
          AS  11.16.100 contains the  general
rule for criminal liability  the rule derived
from   2.06 of the Model Penal Code and  from
Oregon Statute 161.150.  Under our statute, a
defendant can be convicted of a crime if  the
crime was committed by [their] own conduct[,]
or  by  the conduct of another for which  the
[defendant] is legally accountable under [the
rules  set  forth  in] AS  11.16.110,  or  by
[a combination of] both.
          AS 11.16.110 contains the rules for
determining  when  a defendant  can  be  held
accountable  for  the  conduct   of   another
person.    Again,  our  statute  adopts   the
general approach advocated in the Model Penal
Code   and   Oregon  Statute  161.155.    The
pertinent portion of the statute reads:

     Legal  accountability  based  upon   the
conduct  of  another.  A  person  is  legally
accountable  for  the  conduct   of   another
constituting an offense if[,] ... with intent
to  promote  or facilitate the commission  of
the  offense,  the  person ...  solicits  the
other to commit the offense[,] or ... aids or
abets the other in planning or committing the
offense[.]

          These  statutes do not rely on  (or
even  mention)  the  common-law  concepts  of
principal  and  accessory  before  the  fact.
Indeed,  as  we  have already explained,  the
terms  principal and accessory do not  appear
anywhere in the revised Alaska criminal code.
          Rather, as stated in the Commentary
to  Tentative  Draft 11.16.100, our  criminal
code  embodies  the  principle  that,  [w]hen
criminal  liability exists, it is  immaterial
whether   the  elements  of  the  crime   are
satisfied by the defendants own behavior,  or
by  the behavior of another person for  which
he   is  accountable,  or  by  both.   Alaska
Criminal Code Revision, Tentative Draft, Part
2 (February 1977), p. 30.
          The  drafters  of our revised  code
acknowledged  that  Alaskas  former  criminal
code  did not contain any counterpart  to  AS
11.16.110   i.e.,  a statute  specifying  the
elements  that the government is required  to
prove  in order to establish that one  person
is  legally  accountable for the  conduct  of
another.   Tentative Draft, Part 2,   p.  30.
However,   the   drafters  stated   that   AS
11.16.110   was   intended  to  substantially
recapitulate Alaskas common law of accomplice
liability  as that law had been developed  by
the  Alaska  Supreme Court in various  cases.
Ibid.15  In particular, the drafters declared
that  the  culpable mental state required  by
AS   11.16.110(2)   intent  to   promote   or
facilitate the commission of the offense  was
essentially a restatement of the pre-existing
rule  set forth in Tarneff v. State, 512 P.2d
923,  928 (Alaska 1973), and Thomas v. State,
391 P.2d 18, 25 (Alaska 1964).16
          Now  that  we  have summarized  and
explained Alaskas law of complicity  that is,
the  law  under which one person can be  held
vicariously  responsible for another  persons
conduct   we  turn to Andrews contentions  in
this appeal.

Whether liability based on ones own personal conduct
and    liability    based   on   ones    vicarious
responsibility   for   another   persons   conduct
constitute    distinct   theories   of    criminal
responsibility for purposes of pleading and  proof
under Alaska law

     As  we  have already explained, Andrews  main
arguments in this appeal involve challenges to the
sufficiency   of  the  evidence  to  support   her
convictions.   With respect to each of  the  three
counts  in  the indictment, Andrews arguments  are
structured in the following way:
          Andrew  first  asserts that the  evidence  is
insufficient to establish her guilt based  on  her  own
personal conduct, and she then separately asserts  that
the  evidence  is insufficient to establish  her  guilt
based  on  her  vicarious  liability  for  Brian  Hawss
conduct.   Finally, Andrew asserts (in the alternative)
that  even  if the evidence is sufficient to  establish
her  guilt  based on her vicarious liability for  Hawss
conduct,  but  not  sufficient to establish  her  guilt
based  on  her own personal conduct, the jurys verdicts
are  flawed because the jury returned general  verdicts
i.e.,  the  jurors  did  not specify  which  theory  of
culpability they found to be proved  and, thus,  it  is
impossible  to  tell whether the jury convicted  Andrew
based  on  a theory that was supported by the  evidence
(i.e., vicarious liability) or on a theory that was not
supported by the evidence (i.e., personal liability).
          In other words, Andrews approach to this case
rests on the underlying premise that, under Alaska law,
there  is  a  distinction between proof of  culpability
based  on  ones  own  personal  conduct  and  proof  of
culpability based on ones vicarious responsibility  for
someone elses conduct under the rules set forth  in  AS
11.16.110.
          This   approach  is  inconsistent  with   the
          legislatures longstanding efforts to eliminate the
common-law distinctions between principals in the first
degree,   principals   in  the   second   degree,   and
accessories before the fact.
          As  explained earlier in this opinion,  these
latter  two  categories  of participants  in  a  felony
i.e.,  principals in the second degree and  accessories
before  the fact  were both held accountable under  the
theory  that they were vicariously liable for the  acts
committed  by  principals in the  first  degree.   (The
difference  was  that principals in the  second  degree
were   present  at  the  scene  of  the  crime,   while
accessories before the fact were not.)
          But  as  we  have also explained, Alaska  law
draws   no  distinction  between,  on  the  one   hand,
principals in the first degree (i.e., those persons who
commit  a crime by their own personal conduct) and,  on
the  other  hand, principals in the second  degree  and
accessories  before the fact (i.e., those  persons  who
are  being  held vicariously liable for the conduct  of
principals in the first degree).  This distinction  has
not existed in Alaska law for over a century.
          As  far  back  as the Carter  Code  of  1900,
Alaska  law declared that all persons concerned in  the
commission  of  a felony were to be prosecuted,  tried,
and   punished  as  principals.17   And  under  Alaskas
current   criminal  code,  the  terms   principal   and
accessory  are  not  even used.   Instead,  we  have  a
statute   AS  11.16.100   which  declares  simply  that
people  are responsible for a crime if it was committed
by  [their] own conduct[,] or by the conduct of another
for   which   [they  are]  legally  accountable   under
AS 11.16.110, or by [a combination of] both.
          This   last  clause  of  AS  11.16.100    the
language  that  speaks of holding a person  accountable
for  a  crime  based  on  a combination  of  their  own
personal conduct and their vicarious liability for  the
conduct  of  one or more other people  is  inconsistent
with  the  approach  taken by  Andrew  in  the  current
appeal.   Under  this statute, the  government  is  not
required  to prove that the crime was committed  either
wholly  through  the defendants own conduct  or  wholly
through  the conduct of others for which the  defendant
is  vicariously  liable.  Rather,  a  persons  criminal
liability is evaluated based on a combination of  these
two.   Accordingly, the government is not  required  to
show  that the evidence supporting one or the other  of
these  theories  of  culpability would  be  sufficient,
standing alone, to survive a motion for a judgement  of
acquittal.
          This conclusion is most easily illustrated in
cases where a crime is jointly committed by several co-
defendants,  each  of  whom  contributes   toward   the
commission  of the crime, but none of whom individually
commits  all the acts needed to constitute  the  crime.
          For instance, in Baker v. State, 905 P.2d 479 (Alaska
App.  1995), three men decided to rob a pizza  delivery
person.   All  three men lay in wait  for  the  victim;
then,  when  the delivery person arrived,  one  of  the
defendants  began  to  beat the victim,  while  another
defendant  grabbed the pizzas.18  One of the issues  in
Baker  was  a  dispute as to which defendant  had  done
what.19  But even if the precise role of each defendant
had  been  clearly revealed by the evidence,  it  still
would   have   been  true  that,  of  the  two   active
perpetrators,  neither of them could  be  convicted  of
robbery based solely on their own personal conduct,  or
based  solely on the conduct of the other.   The  jurys
verdict  necessarily  had to rest  on  the  combination
clause of AS 11.16.100.
          A  related  doctrine is that the jurors  need
not  be  unanimous  as  to  the  precise  role  that  a
particular  defendant played in the commission  of  the
crime,   as  long  as  the  jurors  are  unanimous   in
concluding  that  the  combination  of  the  defendants
personal  conduct  and the conduct  of  the  defendants
accomplices (i.e., conduct for which the defendant  can
be  held vicariously responsible under AS 11.16.110) is
sufficient to constitute the crime.
          In  State  v. McDonald, 872 P.2d 627  (Alaska
App.  1994),  the defendant was charged with  being  an
accomplice  to  a  murder.  The jurors were  instructed
that, in order to justify McDonalds conviction of  this
crime,  the  State  was  required  to  prove  that   he
[personally]  caused the death of  [the  victim],  [or]
solicited another person to cause her death,  or  aided
or  abetted another in planning or committing the  acts
causing  the death of [the victim].  Id.  at  655.   On
appeal,  McDonald contended that this jury  instruction
potentially  deprived  him of jury  unanimity,  because
some  of the jurors might have concluded that he  aided
or  abetted  another persons commission of the  murder,
while  other jurors might have concluded that  McDonald
personally committed the murder.  Ibid.
          This  Court rejected McDonalds argument.   We
held that a jury is not required to be unanimous as  to
whether  the  defendant personally committed  the  acts
constituting the crime or, instead, performed an act of
solicitation,  aiding, or abetting which  rendered  the
defendant accountable for another persons acts.   Ibid.
Accord:   Totemoff v. State, 866 P.2d 125, 129  (Alaska
App. 1993).
          Andrew  argues  that  this  Court  applied  a
contrary  rule  in an unpublished decision:   Stone  v.
State,  Alaska App. Memorandum Opinion No. 1383  (April
22, 1987), 1987 WL 1359302.  The defendant in Stone was
working  as  a  caregiver at Harborview, a  residential
facility for developmentally disabled persons.  Id.  at
*1.  A student intern at Harborview reported that Stone
and   a   co-worker  named  Collins  had,  in  separate
          incidents, thrown a basketball at one of the residents
and  that,  in  one of these incidents, the  basketball
struck the victim in the head.  Ibid.  According to the
interns  testimony, these two incidents occurred  about
thirty minutes apart, and the intern was no longer sure
whether the victim was struck during the first incident
in  which  Stone  threw the basketball  or  during  the
second  incident in which Collins threw the basketball.
Ibid.
          Stone  was  charged with the  misdemeanor  of
harassment under two alternative theories.  The  States
first theory was that the victim was struck in the head
during the incident in which Stone personally threw the
basketball.  The States alternative theory was that the
victim was struck in the head during the later incident
in   which   Stones  co-worker,  Collins,   threw   the
basketball   but that Stone was vicariously responsible
for  his  co-workers misconduct because Stones  earlier
act of throwing the basketball at the victim served  as
an  incitement or encouragement for Collins to  do  the
same thing thirty minutes later.  Id. at *2.
          On  appeal,  this  Court concluded  that  the
evidence  was  sufficient to convict  Stone  under  the
theory  that  he personally struck the  victim  with  a
basketball.  Ibid.  However, this Court concluded  that
there  was  insufficient  evidence  to  support  Stones
conviction  under  the  theory of vicarious  liability:
even  though the evidence suggested that Stones earlier
act of throwing the basketball had, in fact, encouraged
Collins   to  do  the  same  thing  later,  there   was
essentially no evidence that Stone intended his act  to
serve  as an encouragement to Collins.  Ibid.  In other
words,  using  the terminology of AS 11.16.110(2),  the
evidence  was  not sufficient to establish  that  Stone
acted  with  intent  to promote or facilitate  Collinss
later act of harassment.
          This  Court then ruled that Stones conviction
had to be reversed:
     
          Both  theories [of culpability] went  to
     the   jury.   We  have  determined  that  one
     theory,  but not the other, was supported  by
     [sufficient]  evidence.  [Because  the]  jury
     returned   a   general   verdict[,]   it   is
     impossible  ...  to  determine  which  theory
     resulted in Stones conviction.  Thus, we must
     reverse his conviction and remand [this case]
     for a new trial.
     
     Stone, 1987 WL 1359302 at *3.
               Andrew  relies  upon  this  passage
     from  Stone  as authority for the proposition
     that  when a defendant is potentially  guilty
     of  an offense based on their own conduct or,
     alternatively,   based  on  their   vicarious
     responsibility for other peoples conduct, and
     when  the jury returns a general verdict that
     does  not  specify the precise basis  of  the
     defendants  culpability, the States  evidence
     must   be   sufficient   to   establish   the
     defendants   guilt   under   both   theories,
     independently.
               Application of this rule led  to  a
     correct  resolution of Stones case.  However,
     despite  the  implication of the above-quoted
     language from our Stone decision, this is not
     the   general  rule  that  applies  to  cases
     involving claims of accomplice liability.
          The underlying problem in Stone was
not  that the State argued in the alternative
that  Stone could be convicted based  on  his
own   personal  conduct  or  based   on   his
vicarious    responsibility   for    Collinss
conduct.  Rather, the underlying problem  was
that  the  States  case  was  based  on   two
separate  incidents, only one of which  could
constitute the crime of harassment  (because,
under  the  evidence presented at trial,  the
victim  was struck by the basketball in  only
one of these incidents).
          True, these incidents occurred only
thirty minutes apart.  But, legally speaking,
Stones case presented the same problem as  if
Collinss  later act of throwing a  basketball
at  the victim had occurred the next day,  or
the next week.
          Under  Alaska law, jurors need  not
be  unanimous as to whether the defendant  is
responsible  for  a crime by  virtue  of  the
defendants own conduct or by virtue of  other
peoples  conduct for which the  defendant  is
accountable under AS 11.16.110.  See McDonald
and  Totemoff, discussed above.  But  when  a
defendant  is  charged with  a  single  crime
based  on two or more legally separate  acts,
Alaska  law  requires  that  the  jurors   be
unanimous regarding which act forms the basis
of  the defendants conviction.  As we said in
Totemoff:

[W]hen  two  or  more  discrete  acts,   each
potentially   amounting  to  a   crime,   are
encompassed in a single charge, the jury must
be  unanimous in deciding the act upon  which
it determines [the defendants] guilt.

Totemoff, 866 P.2d at 129.
          See  State v. James, 698 P.2d  1161
(Alaska   1985),  where  the  supreme   court
addressed  situations in which the jury  need
not   be  unanimous  concerning  the  precise
theory  of the defendants guilt.  The supreme
court explained that the law permits this non-
unanimity only in situations where  only  one
criminal  act  [is]  alleged  and  only   one
incident [is] involved.  Id. at 1165-66.  See
also  Nunn  v.  State, 845 P.2d  435,  443-44
(Alaska  App. 1993); Covington v. State,  703
P.2d  436,  440-41  (Alaska  App.  1985),  as
modified  in  711 P.2d 1183, 1184-85  (Alaska
App. 1985).
          Thus, the real problem in Stone was
that  the  jurors were instructed  that  they
could  convict Stone of harassment  based  on
either  of two separate acts, but the  States
evidence  was legally insufficient  to  prove
that  Stone was guilty of the second of these
acts.
          In Stones particular case, the flaw
in the States case with respect to the second
incident was that there was no evidence  that
Stone,  when he committed the earlier act  of
throwing  a  basketball at  the  victim,  had
performed   this  act  with  the  intent   of
inciting  or  encouraging  a  later,  similar
assault  by his co-worker, Collins.  But  the
outcome of Stones appeal would have been  the
same  if the States evidence relating to this
second incident had been legally insufficient
for any other reason.
          To   explain  this  point  slightly
differently:  With respect to either  one  of
the two incidents of basketball-throwing, the
State  would have been allowed to  argue  for
Stones  conviction based on  (1)  Stones  own
personal  conduct,  or  (2)  the  conduct  of
Collins,  if Stone was accountable  for  that
conduct  under  AS 11.16.110,  or  (3)  both.
Moreover,  with respect to each of these  two
incidents (considered separately), the jurors
did  not  need to be unanimous as to  whether
Stones  responsibility for that incident  was
based   on   his  own  conduct,  or  Collinss
conduct,  or  both.   But  the  jurors   were
required to reach unanimous agreement  as  to
whether   Stone   was  being   convicted   of
harassment based on the first incident or the
second.
          As  it happened, the sole theory to
support  Stones  conviction  for  the   first
incident was based on evidence of Stones  own
personal  conduct, while the sole  theory  to
support  Stones  conviction  for  the  second
incident    was   based   on   the   (legally
insufficient) evidence that he should be held
vicariously accountable for Collinss  conduct
under  AS  11.16.110(2).   Because  of   this
happenstance,   this  Court   described   our
decision  in  Stones case as resting  on  the
insufficiency of the evidence  to  support  a
finding   of   vicarious   liability    under
AS 11.16.110(2):

Both theories [that is, culpability based  on
Stones own conduct, and culpability based  on
Stones  responsibility for Collinss  conduct]
went  to  the jury.  We have determined  that
[this  latter] theory ... was [not] supported
by [sufficient] evidence.  [Because the] jury
returned   a   general   verdict[,]   it   is
impossible  ...  to  determine  which  theory
resulted in Stones conviction.

Stone, 1987 WL 1359302 at *3.
          This  is  all true, as  far  as  it
goes.   But,  for purposes of describing  the
legal  reason why this Court reversed  Stones
conviction, it is misleading.
          The real problem in Stones case was
that both acts were submitted to the jury  as
separate  potential bases for  finding  Stone
guilty   of   harassment,   and   there   was
insufficient  evidence to support  a  finding
that Stone was criminally responsible for the
second  act.  Because Alaska law  requires  a
jury  to be unanimous regarding the act  that
forms  the basis for a defendants conviction,
and because it was impossible to tell whether
Stones  jury had convicted him based  on  the
first  act or the second act, this Court  was
obliged to reverse Stones conviction.
          In  other  words, our  decision  in
Stone  should  not be read as  endorsing  the
proposition   advanced   by    Andrew     the
proposition   that,  when  a   defendant   is
potentially  guilty  of  a  criminal  offense
based  on  the  defendants  own  conduct  or,
alternatively,   based  on   the   defendants
vicarious  responsibility for  other  peoples
conduct, and when the jury returns a  general
verdict  that  does not specify  the  precise
basis  of  the  defendants  culpability,  the
States   evidence  must  be   sufficient   to
independently establish the defendants  guilt
under both theories of responsibility.
          In  fact,  Alaska  law  follows   a
contrary  rule.   Under  AS  11.16.100,   the
question  is whether the defendants guilt  is
established   by  the  combination   of   the
defendants  personal conduct and the  conduct
of  other  people for which the defendant  is
vicariously accountable under AS 11.16.110.

Why  we  conclude that the evidence was  sufficient  to
establish  Andrews criminal liability for receiving  or
concealing   the   property  stolen  in   the   earlier
burglaries and thefts

          Andrew   was   convicted  of   receiving   or
concealing many items of property that had been  stolen
during burglaries and thefts that occurred in the  days
prior   to  the  burglary  and  theft  at  the  Jackson
residence.   This  stolen property was  recovered  from
Chris Parkers house; it was contained in bags that  had
been  transferred  with Andrews assistance  from  Hawss
Mercury to Parkers Jeep (at the Jackson residence), and
then  from Parkers Jeep into Parkers house.   Haws  and
Andrew  left these bags sitting outside the bedroom  in
which  they  barricaded themselves  when  the  troopers
arrived  at  Parkers house to investigate the  burglary
and theft at the Jackson residence.
          The crime of theft by receiving is defined in
AS  11.46.190(a) as buy[ing], receiv[ing], retain[ing],
conceal[ing],  or dispos[ing] of stolen  property  with
reckless  disregard  that  the  property  was   stolen.
Subsection  (b) of this statute declares, in  pertinent
part,  that  receiv[ing] includes acquiring  possession
[or] control.
          The   evidence  presented  at  Andrews  trial
reasonably supported the conclusion that, in  the  days
prior  to the burglary at the Jackson residence, Andrew
had  been  accompanying  Haws  while  Haws  accumulated
stolen  credit  cards and goods  and that  Andrew  knew
what  Haws was doing, and was personally profiting from
Hawss criminal activities.
          As  we  noted  in the section of our  opinion
describing  the  evidence, one of the  bags  ultimately
recovered from Chris Parkers house apparently  belonged
to,  or  was being used by, Andrew:  this bag contained
womens  underwear and feminine hair, skin, and  hygiene
products,  as well as photographs of Haws  and  Andrew.
The  bag also contained jewelry that was stolen  in  an
earlier burglary.
          Moreover,  this same bag contained stationery
from the Marriott Residence Inn  where, just a few days
earlier,  someone  had rented a  room  using  a  womans
stolen  credit  card.   The troopers  found  this  same
stolen  credit  card  lying next  to  Andrew  when  the
troopers entered the bedroom at Chris Parkers house and
arrested her.  And it was reasonable for the jurors  to
infer  that Andrew, rather than Haws, was the  one  who
presented this credit card to the staff of the Marriott
in payment for the room  because the name on the credit
card was a womans.
          Thus,  the evidence reasonably supported  the
conclusions  that  Andrew knew that  the  property  was
stolen,  that she had appropriated or received some  of
this  stolen  property for her own use,  and  that  she
helped   transfer  this  stolen  property  from   Hawss
immobilized  Mercury (at the Jackson  residence)  to  a
storage  place  of  apparent safety  at  Chris  Parkers
house.
          In  addition,  as  we  explain  in  the  next
section  of this opinion, the circumstances of  Andrews
relationship with Haws, coupled with the fact that  she
accompanied  Haws  while  he  accumulated  the   stolen
property  and  that  she shared the  benefits  of  that
stolen  property,  were  sufficient  to  constitute  an
incitement or encouragement of Hawss criminal  conduct,
thus  rendering  Andrew  vicariously  liable  for  that
conduct as an abettor.
          For  these  reasons,  we  conclude  that  the
evidence  was sufficient to support Andrews  conviction
of theft by receiving.

Why  we  conclude that the evidence was  sufficient  to
establish  Andrews criminal liability for the  burglary
of   Jacksons  house  and  the  accompanying  theft  of
Jacksons property

          Under  AS  11.16.100, Andrew could  be  found
guilty of the burglary of the Jackson residence and the
accompanying  theft  of property  from  that  residence
based  on  (1) her own conduct, or based on  (2)  Brian
Hawss   conduct  if,  under  the  rules  for  vicarious
liability set forth in AS 11.16.110(2), Andrew could be
held  accountable for that conduct, or based on  (3)  a
combination of her own conduct and Hawss conduct.
          Given  the  evidence  in  this  case,  it  is
obvious that Andrews personal conduct, standing  alone,
was not sufficient to constitute a burglary of Jacksons
house.   Even  viewing the evidence in the  light  most
favorable  to  the jurys verdict on this count  of  the
indictment,  there was no evidence that Andrew  entered
Jacksons  residence.   Thus, if the  States  proof  was
sufficient to convict Andrew of this burglary, it  must
be under the theory that Andrew was legally accountable
for Hawss entry into the house.
          To  hold Andrew accountable for Hawss conduct
in burglarizing the Jackson residence, the State had to
prove either that Andrew solicited Haws to commit  this
offense,   or   that  she  aided  or   abetted   (i.e.,
encouraged) Haws in planning or committing the offense,
and  that  she  did so with the intent  to  promote  or
facilitate  the  commission of  the  offense.   See  AS
11.16.110(2).
          Andrew argues that the State failed to  prove
that  she  knew  about  Hawss plan  to  burglarize  the
residence,  much less that she intended to  promote  or
facilitate the burglary.  She contends that  the  State
did  not  present any direct evidence that  she  either
asked or counseled Haws to commit these crimes, or that
she  provided  aid  or  encouragement  to  him  in  the
planning or commission of these crimes.
          But,  viewing the evidence in the light  most
favorable  to upholding the verdict, there is  a  great
deal   of   circumstantial  evidence   supporting   the
inferences  that (1) Andrew knew that Haws intended  to
burglarize  the  residence and that (2) Andrew  abetted
the  burglary  by accompanying Haws so that  she  could
provide  any  help he might need in breaking  into  the
residence and making off with the stolen goods.
          As  we  have already discussed, the  evidence
presented  at  Andrews trial reasonably  supported  the
conclusions  (1)  that, prior to the  burglary  at  the
Jackson  residence, Andrew had been  accompanying  Haws
for  several days while Haws accumulated stolen  credit
cards  and  goods, (2) that Andrew knew what  Haws  was
doing,  and  (3)  that Andrew was personally  profiting
from   Hawss   criminal  activities.    We   note,   in
particular,  the  fact that one of the  bags  recovered
from Chris Parkers residence apparently belonged to (or
was  being used by) Andrew, and that this bag contained
jewelry stolen in a previous burglary.  We further note
that  a womans stolen credit card was found near Andrew
when  she was arrested, and the circumstances supported
the  inference that Andrew had used this stolen  credit
card to pay room charges at the Marriott Residence Inn.
          This evidence tended to show that Andrew knew
what  Haws planned to do when they drove to the Jackson
residence, and that she approved of Hawss plan and  was
willing  to  help  or encourage Haws in  this  criminal
endeavor.
          The  testimony of Richard Miller and his  son
provided  further circumstantial evidence  that  Andrew
knew  what Haws planned to do at the Jackson residence.
When  Miller and his son drove up the driveway  to  the
residence,  they saw Hawss white Mercury Cougar  parked
off  the driveway.  The engine was running (exhaust was
visible),  but  neither Miller nor his  son  could  see
anyone sitting in the car; the vehicle appeared  to  be
unoccupied.   In  fact, Andrew was in the  car.   After
Haws  emerged from the residence and began  talking  to
Miller  and  his  son, Andrew sat up in  the  passenger
seat,  so  that  she was now visible  to  the  Millers.
Given  this  testimony,  the  jurors  could  reasonably
conclude  that Andrew ducked down when she  saw  Miller
and his son coming up the driveway  and that Andrew did
this because she was there to help Haws burglarize  the
residence.
          Andrew  argues that, even if she  accompanied
Haws  to  the  residence knowing that  he  intended  to
commit  a  burglary, there was no proof that  she  ever
performed  any  act  to assist Haws in  committing  the
burglary.   Andrew acknowledges that  she  helped  Haws
transfer  the  stolen goods from the  disabled  Mercury
Cougar  into Chris Parkers Jeep, and then later  helped
transfer  the  goods from the Jeep into Parkers  house.
But Andrew argues that these acts were insufficient (as
a  matter  of law) to establish her complicity  in  the
burglary.
          Andrews  argument on this point is  that,  by
the  time  she  helped Haws transport the stolen  goods
away from the Jackson residence, both the burglary  and
the accompanying theft had already been completed:   in
other  words,  Haws had already entered  the  residence
with  the  intent to commit a crime inside  (burglary),
and   he  had  already  taken  possession  of  Jacksons
property  with  the intent to permanently  deprive  the
owner  (theft).   Andrew asserts  that,  because  these
crimes had already been completed by the time she  gave
any   assistance  to  Haws,  she  could  not  be   held
accountable  as an accomplice to the burglary  and  the
theft  that her crime, if any, was the separate offense
of hindering prosecution.
          (Under  Alaskas  former criminal  code,  this
would  have been the crime of being an accessory   that
is,  an  accessory after the fact  to  a  felony.   See
former AS 11.10.050.)
          There are two answers to Andrews argument.
          First, Andrew takes too narrow a view of what
conduct  on  her  part  could  support  a  finding   of
complicity  (i.e., a finding that she  was  vicariously
liable for Hawss conduct).
          Under  Alaska  law,  Andrew  could  be   held
accountable for Hawss burglary of the Jackson residence
even  if  Andrew  never  physically  assisted  Haws  in
breaking into the house.  AS 11.16.110(2) states that a
defendant  can be held accountable for another  persons
conduct  if,  with the intent to promote or  facilitate
the  criminal  conduct, the defendant either  aids  the
other  persons commission of the offense or abets (that
is,  encourages)  the other persons commission  of  the
offense.
          The  term  abet is not defined in  Title  11.
The  drafters  of  AS  11.16.110  indicated,  in  their
Commentary,  that  they  intended  this  term   to   be
understood  in its common-law sense, as exemplified  by
prior  Alaska  Supreme Court cases on  this  subject.20
    See,   for   instance,  Hallback  v.   State,   361
P.2d   336  (Alaska  1961),  where  our  supreme  court
declared  that the words aid and abet, as used  in  the
then-current statute, ACLA 1949,  65-3-2, refer[red] to
conduct calculated to incite, encourage[,] or assist in
the perpetration of a crime.  Id. at 337.  See also  AS
01.10.010:   So  much of the common  law  [as  is]  not
inconsistent  with the Constitution  of  the  State  of
Alaska or the Constitution of the United States or with
any  law  passed  by the legislature of  the  State  of
Alaska is the rule of decision in this state.
          At   common   law,   the  act   of   abetting
encompasses  conduct such as counseling or  encouraging
the  other  persons criminal act by words  or  gestures
or,  indeed (in the words of Perkins and Boyce), by any
conduct  which unmistakably [communicates] a design  to
encourage,  incite, or approve of the  crime.21   Thus,
abetting  can take the form of promising a  benefit  if
the  other person will commit the crime, or threatening
to  inflict harm or exact a penalty if the other person
declines to commit the crime.22
          But, as noted in Perkins and Boyce, much less
will meet the legal requirement [of abetting]  as,  for
example,  where  [the  defendant,  as]  a  bystander[,]
merely  embolden[s]  the  perpetrator  to  [commit  the
crime],23 or where the defendant merely stand[s] by for
the  purpose  of  giving  aid  to  the  perpetrator  if
necessary,  provided  the  latter  is  aware  of   [the
defendants] purpose.24
          (This  same point is also discussed in  Wayne
R.  LaFave,  Substantive Criminal Law (2nd  ed.  2003),
13.2(a), Vol. 2, pp. 338-39.)
          The   evidence   reasonably   supported   the
conclusion  that  Andrew abetted  that  is,  encouraged
Hawss  commission  of the burglary  and  theft  at  the
Jackson residence.  It is true that the State presented
no evidence that Andrew expressly urged or incited Haws
to   commit  these  crimes.   But  although  accomplice
liability  requires proof of something more  than  mere
presence   at   the  scene  of  the  crime,   or   mere
acquiescence  in  the  crime, it does  not  necessarily
require  proof  of  an  overt  act  of  incitement   or
encouragement.    Rather,  an   accomplices   acts   of
encouragement can take subtler forms.
          This point of law was discussed by the Kansas
Supreme Court in State v. Ly, 85 P.3d 1200 (Kan. 2004),
and  by the Maine Supreme Court in State v. Doody,  434
A.2d  523  (Me. 1981), and State v. Gervais,  394  A.2d
1183 (Me. 1978).
          In  Ly, the Kansas court explained that, even
though [t]he mere presence of the defendant at the time
and place of the crime is insufficient for establishing
the  defendants  guilt [of] that crime,  there  may  be
facts  and  circumstances  surrounding  the  defendants
presence  and  the defendants conduct  [at  the  scene]
which   support   a  reasonable  inference   that   the
defendants presence did in fact encourage someone  else
to commit the crime  and that, if the defendant had the
intent to promote or facilitate the crime, guilt may be
inferred. Id. at 1207.
          Thus,  [even if] the defendants conduct  does
not [openly] demonstrate a design to encourage, incite,
aid,  abet, or assist in the crime, the factfinder  may
[nevertheless]  consider  the  defendants  failure   to
oppose  the  commission of the crime, along with  other
circumstances, and conclude that the defendant assented
          to, approved of, or encouraged the commission of the
crime   thereby  establishing the defendants  vicarious
liability for the crime as an abettor.  Ibid.
          For  example, in State v. Doody, 434 A.2d  at
530, the Maine Supreme Court found that a wife could be
convicted  as  the abettor of her husbands  crime   the
murder  of  the wifes mother  when the evidence  showed
that  the wife told her husband that she would not give
him  any  problem  if  he proceeded  with  the  planned
killing.   In  light of the wifes relationship  to  the
perpetrator and to the intended victim, the Maine court
concluded  that  the  wifes  conduct  (in  making  this
statement  to  her husband) was more than mere  passive
acquiescence.  Ibid.
          Similarly, in State v. Gervais, the defendant
was  a  passenger in an automobile during and  after  a
residential burglary committed by his friend,  who  was
driving  the  car.   394  A.2d  at  1184-85.   Although
Gervais   was  free  to  separate  himself   from   the
perpetrator of the burglary, he continued to ride  with
him  after the crime.  Id. at 1185-86. The Maine  court
concluded  that even though Gervais may  not  have  ...
engage[d] in any overt act of assistance, his  presence
as a friend could be taken as a circumstance suggesting
encouragement of his accomplices crime.  Ibid.
          In  the  present case, the evidence suggested
that Haws viewed Andrew as a trustworthy companion  who
would  aid  him in his unlawful activities, or  who  at
least   would  assist  him  in  hiding  these   illegal
activities.   This inference is supported by  the  fact
that  Haws  handed  his drug pipe to Andrew  before  he
opened the door of Chris Parkers Jeep to challenge  the
troopers arrest of Parker.  It is also supported by the
evidence  that  Andrew  was  aware  of  Hawss   ongoing
criminal   activities,  and  that  she  was  personally
profiting   from   those   criminal   activities     as
illustrated by the stolen jewelry found in her bag, and
by the reasonable inference that Andrew was the one who
used the womans stolen credit card at the Marriott.
          It  was therefore reasonable for the jury  to
infer  that  Andrew  accompanied Haws  to  the  Jackson
residence   with   the  intention   of   promoting   or
facilitating  the  commission of another  burglary  and
theft,  and  for the purpose of standing by to  provide
Haws  with aid if he needed it  and that Haws was aware
of  Andrews intention (thus drawing encouragement  from
her  presence).  This conduct would be abetting  within
the  meaning of AS 11.16.110(2), and thus Andrew  would
be  legally  accountable for the  ensuing  burglary  of
Jacksons  residence and the resulting theft of Jacksons
property.
          There  is  also  another  answer  to  Andrews
contention  that  the  evidence  was  insufficient   to
establish  her  complicity in the burglary  and  theft.
Even  if  Andrew had been unaware, when  she  and  Haws
arrived at the Jackson residence, that Haws intended to
commit burglary and theft, the fact remains that Andrew
watched   Haws   remove  property  from   the   Jackson
residence,  and  she later actively  assisted  Haws  in
transferring this stolen property from Hawss car (which
was  immobilized) to Chris Parkers Jeep,  so  that  the
stolen   property  could  be  carried  away  from   the
residence.
          The  testimony of Richard Miller and his  son
also  supports the conclusion that Andrew made  efforts
to clean out Hawss Mercury Cougar by removing documents
and  other  personal items from the  glove  compartment
after Miller and his son discovered Haws and Andrew  at
the Jackson residence.
          As  we explained earlier, Miller and his  son
testified  that  when they came up the driveway  toward
the  Jackson residence, they saw Hawss Cougar, and they
could  see exhaust coming from the car, but they  could
not  see anyone sitting in the car; it appeared  to  be
unoccupied.  Then, after Haws appeared and the  Millers
began  to  talk  to him, Andrew  who had  been  in  the
Cougar all along  sat up in the passenger seat, so that
she  was  now visible to the Millers.  Benjamin  Miller
testified that he saw Andrew putting some things  in  a
bag.  Later, when the troopers searched Hawss car, they
found that the glove box was empty.
          Andrew  contends that even if  she  performed
these acts of assistance (transferring the stolen goods
from   the  Cougar,  and/or  cleaning  out  identifying
documents  and  property from the Cougar),  these  acts
could  not,  as  a legal matter, constitute  aiding  or
abetting of the burglary and theft because those crimes
had already been completed by the time Andrew began  to
assist Haws.  This contention is not correct.
          It  is true that, for purposes of determining
whether  Haws  committed  a completed  burglary  and  a
completed  theft  (as opposed to an attempted  burglary
and  an  attempted  theft), the  burglary  of  Jacksons
residence  was complete when Haws entered the residence
with  the  intent to steal, and the theft  of  Jacksons
property   was   complete  when  Haws   took   physical
possession  of the property with the intent to  deprive
the owner or to appropriate the property to himself  or
any  third person.25  But there is a different test for
determining  when a crime is completed if the  question
is whether a person should be held accountable for that
crime as an aider or an abettor.
          This  distinction, and the reason for  having
two  different tests, is illustrated by crimes such  as
robbery,  rape,  or the looting of a store.   The  main
perpetrator may have committed all the acts required to
constitute  the  completed crime of robbery,  rape,  or
looting   (as   opposed  to  an   attempt),   but   the
perpetration  of the crime may yet be continuing   and,
thus,  a  bystander  who  takes  action  to  assist  or
          encourage the perpetrator in the continuation of the
offense becomes an accomplice to the offense.
          At  common  law, it was important to  resolve
the question of when a crime was completed for purposes
of  assessing accomplice liability because, oftentimes,
the resolution of this issue would determine whether  a
defendant who provided aid or encouragement to the main
perpetrator of the crime would be deemed a principal in
the  second degree or, instead, an accessory after  the
fact (with lesser penalties).
          As   explained  in  Perkins  and   Boyce,   a
defendant  could be held accountable as a principal  in
the  second  degree for a felony committed  by  another
person in the defendants presence, even when there  was
no  pre-arrangement or prior understanding between  the
two, if the defendant (upon observing the other persons
criminal  conduct) took action to assist  or  encourage
the other person.26  But this would be true only if, in
the  eyes of the law, the felony was still in progress.
If  the  felony  was over, then the defendants  act  of
assistance would only make the defendant liable  as  an
accessory after the fact.
          Take, for instance, the common-law crimes  of
larceny and robbery, both of which required proof  that
the stolen property was asported  that is, carried away
from  its  rightful possessor.27  At  common  law,  the
slightest  start  of  the  carrying-away  movement  was
sufficient to satisfy the requirement of asportation.28
Thus,  the  crimes  of  larceny  or  robbery  might  be
completed  in an instant.  Perkins and Boyce gives  the
following  example:   [A] rogue who  snatched  a  girls
earring was held to have committed larceny although the
ring had been moved only a few inches [before] it [was]
caught  in  her hair and was jerked from  [the  thiefs]
fingers.29
          What, then, of a defendant who sees a larceny
or  robbery  occurring and, without pre-arrangement  or
prior  understanding, decides to aid the thief  or  the
robber  by tripping his pursuers or otherwise  impeding
their  progress, or by showing the culprit a safe place
to  hide  until the immediate pursuit is  over,  or  by
helping  him to successfully make off with  the  stolen
goods?
          In cases where a defendant provided this type
of assistance to the culprit, the offense was certainly
completed   for  purposes  of  charging,  trying,   and
punishing the culprit  by the time the defendant  aided
the culprit.  But should the defendant nevertheless  be
held  accountable as an accomplice to  the  larceny  or
robbery (technically, a principal in the second degree)
because of the assistance the defendant rendered to the
culprit?
          At  common  law,  the answer  was  yes:   the
defendants  assistance to the fleeing thief  or  robber
made  the defendant accountable as a principal  to  the
          crime.  The offenses of larceny and robbery were deemed
to  continue   for  purposes  of  assessing  accomplice
liability  until the thief or robber reached a place of
temporary  safety, see People v. Lawrence, 6 P.3d  228,
241-42  (Cal. 2000), or until the thief or  robber  was
able [to place the stolen property] somewhere so as not
to  be  found  upon him, where it [would]  be  securely
hidden,  and  where he [could] afterwards  get  it  and
appropriate  it to himself.  United States  v.  Barlow,
470 F.2d 1245, 1253 (D.C. Cir. 1972).
          The   Alaska   Supreme  Court  applied   this
doctrine in Mahle v. State, 371 P.2d 21 (Alaska  1962).
In  that case, a man named Ahern was present when Mahle
and two other men finalized their plans to burglarize a
local  department store.  Ahern refused to  participate
in  the  burglary, but he was still at the  house  when
Mahle  and  his  two  confederates  returned  with   an
unopened  safe  that they had stolen  from  the  store.
Ahern  assisted  the men in prying open  the  safe  and
disposing  of  its contents.  Id. at 25.   The  supreme
court  held  that Aherns actions made him an accomplice
to  the  theft  of  the safe and its contents   because
Ahern assisted in the final asportation and disposition
of [the stolen] property.  Ibid.
          The  California  Supreme Court  applied  this
doctrine to a robbery prosecution in People v.  Cooper,
811  P.2d 742 (Cal. 1991).  The defendant in Cooper was
convicted of robbery based on his role as the driver of
the  get-away car.  Id. at 745.  Cooper contended  that
he  was  improperly convicted as an accomplice  to  the
robbery, and that he should only have been convicted as
an  accessory after the fact, because he was unaware of
his  companions intention to commit the  robbery  until
after  the  robbery was over  specifically,  after  his
companions  ran back to his car with the stolen  wallet
(at  which point, they jumped into Coopers car, and  he
hurriedly drove off).  Ibid.
          The  California court acknowledged that,  for
purposes of assessing whether the culprits were  guilty
of  a  completed robbery as opposed to an attempt,  the
common-law  requirement  of asportation  was  satisfied
when there was any slight movement of the property away
from  the  possession of the victim.   Id.  at  747-48.
However,  the California court ruled that, for purposes
of  assessing  accomplice liability, the commission  of
the  crime of robbery is not confined to a fixed  place
or  a  limited  period  of time;  rather,  the  robbery
continues  so  long  as the stolen  property  is  being
carried  away to a place of temporary safety.   Id.  at
751.
          See  also  United States v. Willis, 559  F.2d
443,  444  (5th  Cir.  1977), and Stevenson  v.  United
States,  522 A.2d 1280, 1282-83 (D.C. App. 1987)  (both
also    holding   that   a   defendant   who,   without
foreknowledge  of  a  robbery,  voluntarily  drove  the
robber  away from the scene of the crime was punishable
as  a  principal  rather than an  accessory  after  the
fact).
          In  People  v.  Montoya, 874 P.2d  903  (Cal.
1994),  the  California  Supreme  Court  applied   this
doctrine  to  the  crime of burglary.   The  California
court  acknowledged  that  the  crime  of  burglary  is
complete  as  soon as the culprit enters  the  building
with  intent  to  commit  a  crime  (even  though  this
intended  crime might never be accomplished).   Id.  at
911.   Nevertheless,  the  California  court  concluded
that, for purposes of assessing accomplice liability, a
burglary continues as long as the culprit is inside the
structure.  Thus, in cases where the defendant  had  no
foreknowledge of the burglary, but decided to  aid  the
burglar  after the initial entry was accomplished,  the
defendant could be held accountable as an accomplice to
the burglary (and not just an accessory after the fact)
if  the  aid  or  encouragement was  given  during  the
original  burglars presence in the structure.   Id.  at
911-14.
          The  California  court  then  turned  to  the
related question of accomplice liability in cases where
the  original  burglar enters and leaves  the  building
several times during the course of a single episode  of
burglary.   The court concluded that, for  purposes  of
assessing  accomplice liability, the burglary continues
[until]  the  perpetrators  final  departure  from  the
structure.  Id. at 914.
     
     The individual who happens on the scene after
     the  initial  entry,  becomes  aware  of  the
     perpetrators     unlawful    purpose,     and
     intentionally  assists during ...  subsequent
     entries,  aids and encourages the  commission
     of   the   offense  as  surely  as  if   that
     individuals  knowledge  [of  the  crime]  had
     preceded the perpetrators initial entry.
     
     Montoya, 874 P.2d at 914.30
          See   also   State   v.   Cummings,
unpublished, 1992 WL 82783 (Ohio App.  1992).
In  Cummings, the defendants husband and some
other  men burglarized a plumbing store,  but
they discovered that they needed an acetylene
torch to break into the safe.  The defendants
husband  left  the  store  to  telephone  the
defendant and ask her to bring a torch.   Id.
at  *7.   The defendant brought the torch  to
her  husband, as requested, and the  burglary
continued.   Ibid.  On appeal, the  defendant
contended that this evidence was insufficient
to  establish her complicity in the burglary,
but  the  Ohio  court held that the  burglary
continued  until the burglars left the  store
          for the final time  and, thus, the defendants
act of assisting and encouraging the burglars
made her liable as an accomplice.  Id. at *8.
          Turning  to  the  evidence  in  the
present  case, and viewing that  evidence  in
the  light  most favorable to  the  verdicts,
Andrews  act  of cleaning out the identifying
items  from  Hawss Cougar took  place  before
Hawss  final entry into, and departure  from,
the   Jackson  residence.   Benjamin   Miller
testified that he saw Andrew sitting  in  the
car, stuffing things into a bag, while he and
his  father were talking to Haws outside  the
residence  and then the Millers and Haws went
back  into the residence.  Thus, the burglary
was  not yet over when Andrew engaged in  her
act of assistance.
          And,  with respect to the theft  of
Jacksons property, that theft continued until
the  stolen property was transported to Chris
Parkers  house  a place of temporary  safety.
The theft was not yet over when Andrew helped
transfer this property from Hawss Cougar into
Parkers Jeep, and then from Parkers Jeep into
Parkers house.
          For   all  of  these  reasons,  the
evidence was sufficient to establish  Andrews
guilt    of   burglary   and   theft     more
specifically,  to  establish  that  she   was
vicariously accountable for the burglary  and
the theft at the Jackson residence, based  on
her acts of aiding or abetting the commission
of  these crimes (as opposed to her potential
guilt  of  the  separate crime  of  hindering
prosecution  for  rendering assistance  after
these crimes were completed).

Why we conclude that the evidence was not sufficient to
support  a  finding that the property stolen  from
the Jackson residence was worth $500 or more  thus
requiring  a reduction of Andrews conviction  from
second-degree theft to third-degree theft

          Andrew  was convicted of second-degree  theft
for  the  theft of property from the Jackson residence.
Under  Alaska  law,  the threshold property  value  for
second-degree theft is $500.  See AS 11.46.130(a)(1).
          The   property   stolen  from   the   Jackson
residence  consisted of a pair of walrus tusks,  a  bag
for Jacksons barbecue grill, a collection of two-dollar
bills,  a  computer  network router,  a  collection  of
dollar and half-dollar coins, some foreign currency,  a
broken Gucci watch, a golden chain necklace, and a high
school class ring.
          Some of these items had obvious value.  There
were  21  two-dollar bills with a total face  value  of
$42.   The  dollar and half-dollar coins  also  had  an
ascertainable  face  value  (although   no   one   ever
clarified  the exact number of coins that  were  stolen
from  the  house).  In the photograph of  these  coins,
there  appear  to be 40 one-dollar coins and  13  half-
dollar coins  for a face value of $46.50.
          The  value of the remaining stolen  items  is
unclear.   The barbecue bag, the computer  router,  and
the  high  school  ring obviously had some  value,  but
seemingly  far  less  than $500.   As  to  the  foreign
currency,  there  is  no  evidence  identifying   which
countries  this  currency was from, or  what  its  face
value was.  Likewise, the State offered no evidence  of
the  value  of the gold necklace and the broken  watch.
It  would  be pure speculation to conclude  that  their
value approached $500.
          This    leaves   the   two   walrus    tusks.
Conceivably, these tusks were valuable enough  to  push
the total of the stolen goods to $500 or more.  But the
State  offered no evidence of the value of these tusks.
When  Jackson  described the tusks, he said  that  they
were  a  gift from his parents, and that he  had  owned
them  for  a  long time, but neither he nor  any  other
witness offered testimony concerning their value.
          The   State  argues  that  the  jurors   were
entitled  to  use  common  sense  and  their  own  life
experience  in  assessing the value of the  tusks,  and
that  the  jurors  could reasonably conclude  that  the
value of these tusks approached or exceeded $500.
          In  support  of  this contention,  the  State
cites  State  v. Bruff, 597 So.2d 122 (La. App.  1992).
In  Bruff,  the  Louisiana court upheld the  defendants
conviction for the unauthorized use of a vehicle valued
at  over $1,000  even though the government offered  no
direct  evidence  of the vehicles  value.   Bruff,  597
So.2d  at  122-23.  The Louisiana court concluded  that
the  jury  could reasonably find that the  vehicle  was
worth more than $1,000 based on the photographs of  the
car,  the fact that it was only two years old, and  the
fact that it was in running order (as evidenced by  the
fact  that the defendant drove it away from a used  car
lot).  Ibid.
          But  the  facts of Bruff differ significantly
from  the  facts  of this case.  It  is  reasonable  to
assume  that jurors have some experience in  buying  or
selling  motor  vehicles, or that they  otherwise  have
knowledge of the general value-range of motor  vehicles
from  commercial  advertisements and  from  talking  to
relatives  and friends.  Thus, in Bruff, the court  was
willing  to  conclude that lay jurors could  reasonably
find  that  a two-year-old car, in working  order,  was
worth at least $1,000.
          But  it  is  not clear to us that lay  jurors
even  Alaska jurors  are generally conversant with  the
commercial  value of walrus tusks.   We  would  not  be
surprised  to learn that, in the northern  and  western
maritime  regions  of  this  state,  many  people   are
familiar with the value-range of walrus ivory  in  both
its raw and carved forms.  But Andrews trial took place
in  Kenai.  We are not willing to assume that knowledge
of the value of walrus ivory is so widespread among the
population of south-central Alaska that the State could
prosecute  this theft charge without offering  evidence
of the value of the tusks.
          We   therefore  conclude  that  the  evidence
presented   at   Andrews  trial  was  insufficient   to
establish  that  the property stolen from  the  Jackson
residence was worth $500 or more.  However, because the
face  value  of  the  two-dollar bills  and  the  coins
(considered  just  by  themselves)  exceeded  $50,   we
conclude  that  the States evidence was  sufficient  to
establish   third-degree  theft,   which   requires   a
threshold  value  of only $50.  See AS 11.46.140(a)(1).
We  therefore  direct the superior court to  amend  the
judgement on this count of the indictment to reflect  a
conviction for third-degree theft.

Andrews  challenges to the superior  courts  sentencing
decision

          At sentencing, Andrew proposed two mitigating
factors  under AS 12.55.155(d):  (d)(2)   that  Andrew,
although  an  accomplice to the crimes, played  only  a
minor  role;  and  (d)(3)  that Andrew participated  in
these  crimes  under some degree of  duress,  coercion,
threat,  or  compulsion.  The superior  court  rejected
these  mitigators,  and  Andrew challenges  the  courts
decisions.
          With regard to mitigator (d)(2), the evidence
certainly  suggests  that Brian Haws  was  the  primary
actor  in  these  crimes,  and  that  Andrew  played  a
secondary   role.   But  a  secondary   role   is   not
necessarily  equivalent to a minor role.  The  evidence
showed  that  Andrew accompanied Haws for  an  extended
period of time during which Haws committed burglary and
theft   and  accumulated  a  large  amount  of   stolen
property.   Andrew helped Haws transport this property,
she personally enjoyed the benefits of at least some of
this  property (i.e., the stolen jewelry found  in  her
bag),  and she apparently was the one who used a stolen
credit  card (in a womans name) to pay for the room  at
the  Marriott.  Given this evidence, the superior court
could   properly  find  that  Andrew  failed  to  prove
mitigator (d)(2).
          With  regard  to  mitigator  (d)(3),  as  the
superior  court acknowledged, there was  some  evidence
suggesting that Andrews relationship with Haws  was  no
longer  tranquil  by  the time they  arrived  at  Chris
Parkers house, and that Andrew wanted to leave Haws and
return  to Anchorage.  But the fact remains that Andrew
had  accompanied Haws for several days during his crime
spree, and that she had shared in the benefits of  that
spree.   Further,  there was no  evidence  that  Andrew
resisted  or  even  passively  opposed  Hawss  plan  to
burglarize  the  Jackson residence.   As  the  superior
court  remarked, although there was some evidence  that
[Andrew]  didnt  want  to be around  Mr.  Haws  anymore
shortly  after  the Jackson burglary,  there  was  [no]
evidence  that  [Andrews involvement] in [these  crimes
was  the result of] any type of threat, coercion,  [or]
compulsion[.]
          When  we  review the superior courts decision
on  this  mitigator, we must view the evidence  in  the
light  most favorable to upholding the superior  courts
conclusion.   Viewing the evidence in that  light,  the
superior  court  could  properly conclude  that  Andrew
failed to prove mitigator (d)(3).
          Finally,  Andrew argues that  her  sentencing
judge, Superior Court Judge Charles T. Huguelet, failed
to adequately consider the sentencing criteria codified
in   AS  12.55.005,  and  that  the  judge  abused  his
sentencing  discretion when he failed  to  suspend  the
imposition of Andrews sentences for her three crimes.
          At  the  sentencing hearing, Andrews attorney
asked  Judge  Huguelet  to  grant  Andrew  a  suspended
imposition  of  sentence.  The defense attorney  argued
that  Andrew  was  relatively young (twenty-nine  years
old), and the attorney noted that Andrew was the mother
of several children, and that she had no prior criminal
history.
          (Andrew  was convicted of driving  under  the
influence  and  leaving the scene of an accident  while
she  was on bail release in this case, but she  had  no
criminal  history prior to her commission of the  three
offenses in this case.)
          Judge   Huguelet  declined  to  suspend   the
imposition of Andrews three sentences.  Here is how  he
explained his decision:
     
          The  Court:   I  thought long  and  hard
     about  a  suspended  imposition  of  sentence
     [although,] even with a suspended  imposition
     of  sentence, the legislature requires a year
     in jail ... because we have a conviction of a
     [class]  B felony.  [But] looking at her  age
     and  stage [of life]  I mean, she was in  her
     late  twenties, [and] a mother.  She cant  be
     held completely blameless for what [she]  did
     here.    She  was  with  Mr.  Haws  when   he
     [committed  these crimes].  It may  well  not
     have  been her idea to commit the burglaries,
     but  she was there, she participated  in  it,
     she  was  caught with [the stolen  property],
     and  she  hasnt  accepted responsibility  for
     what  shes done.  So I dont think a suspended
     imposition of sentence is appropriate in  her
     case,  although she is certainly  sympathetic
     in many respects.
     
               Judge   Huguelets  statement   that
     Andrew  had  to  serve at  least  1  year  in
     prison,  even if she received three suspended
     impositions  of sentence, was a reference  to
     the  provisions of AS 12.55.125(d)(1).  Under
     this  statute, because the offense of  first-
     degree  burglary is a class B  felony,31  and
     because Judge Huguelet found that Andrew  had
     failed   to  prove  either  of  her  proposed
     mitigators,  the  judge  could  suspend   the
     imposition of Andrews sentence for this crime
     only if the judge required Andrew to serve at
     least  1  year  in prison as a  condition  of
     Andrews probation.
               Judge   Huguelets  statement   that
     Andrew  ha[d]nt  accepted responsibility  for
     what shes done was apparently a reference  to
     the pre-sentence report.  In that report, the
     pre-sentence  investigator stated  that  when
     Andrew  was  asked  why  she  committed   the
     offenses, she replied, I didnt do it.
          It is true, as Andrew points out in
her  brief to this Court, that Judge Huguelet
did  not individually identify or discuss the
statutory   sentencing   criteria   when   he
articulated his reasons for refusing to grant
Andrew suspended impositions of sentence  for
her three crimes.  But the judges explanation
is clearly based on those criteria.
          Judge  Huguelet  pointed  out  that
Andrew,  at  twenty-nine years  of  age,  and
being  the mother of several children,  could
no  longer  be  considered  young  or  naive.
Moreover, Andrews crimes were not the  result
of  a  spur-of-the-moment decision.   Rather,
Andrew accompanied Haws while he committed  a
series  of  burglaries and  thefts  over  the
course  of  several  days.   She  aided   and
abetted  him, and she shared in the proceeds.
And,   as   Judge   Huguelet  noted,   Andrew
apparently    still   refused    to    accept
responsibility for these acts;  instead,  she
affirmatively  denied  that  she   had   done
anything wrong.
          These facts constitute a sufficient
reason  for Judge Huguelet to refuse  Andrews
request   for   a  suspended  imposition   of
sentence on all three of her offenses.

Conclusion

     The  judgement  of  the  superior  court   is
AFFIRMED,   with   the  exception   that   Andrews
conviction  on  Count III of the  indictment  (the
theft by receiving count) must be reduced to third-
degree  theft, and Andrew must be re-sentenced  on
this count.
     We  remand Andrews case to the superior court
for   this   purpose,  but  we   do   not   retain
jurisdiction over this case.

_______________________________
  1  See,  e.g.,  Shorty v. State, 214 P.3d 374,  383-84  (Alaska
App.  2009);  Newsom v. State, 199 P.3d 1181, 1188  (Alaska  App.
2009).

2 Former AS 12.15.010.

3Former AS 12.15.010 used essentially the same wording as the
Carter Code provision:

Abrogation  of Distinctions Between Accessories  and
Principals.   The distinction between  an  accessory
before   the  fact  and  a  principal,  and  between
principals  in  the  first  and  second  degree   is
abrogated;   and  all  persons  concerned   in   the
commission of a crime, whether they directly  commit
the  act  constituting  the  crime  or,  though  not
present,  aid and abet in its commission,  shall  be
prosecuted, tried, and punished as principals.
4Reversed on other grounds, 905 P.2d 954 (Alaska 1995).

5Former AS 11.10.050 provided:  Except ... where [otherwise]
prescribed  by  law, an accessory to a  felony  ...  is
punishable by imprisonment in the penitentiary for  not
less  than  one year nor more than five  years,  or  by
imprisonment  in a jail for not less than three  months
nor  more than one year, or by a fine of not less  than
$100 nor more than $500.

6See SLA 1978, ch. 166,  25.

7See Alaska Criminal Code Revision, Tentative Draft, Part 2
(February 1977), p. 108.

8See State v. Burney, 82 P.3d 164, 168 (Or. App. 2003).

9   See  American  Law  Institute,  Model  Penal  Code   and
Commentaries (Official Draft, 1962).

10American  Law Institute, Model Penal Code and Commentaries
(Official Draft, 1962, and Revised Comments, 1985), Part  I,
General Provisions ( 1.01 to 2.13), p. 306.

11See Model Penal Code  2.06(2)-(3).  This aspect of the Model
Penal  Code  is more fully explained in Riley v.  State,  60
P.3d 204, 220-21 (Alaska App. 2002).

12  American Law Institute, Model Penal Code and Commentaries
(Official  Draft,  1962, and Revised  Comments,  1985),
Part I, General Provisions ( 1.01 to 2.13), p. 299.

13  Ibid.

14  See Oregon Laws 1971, ch. 743,  12-13.  See also State v.
Burney, 82 P.3d 164, 167-68 (Or. App. 2003).

15  The drafters cited Evans v. State, 550 P.2d 830 (Alaska
1976);  Daniels  v. State, 527 P.2d 459 (Alaska  1974);
and  Anthony  v.  State, 521 P.2d  486  (Alaska  1974).
Tentative Draft, Part 2, p. 30.

16  Tentative Draft, Part 2, p. 31.

17Carter Code, Part II,  58.

18Baker, 905 P.2d at 480-81.

19Id. at 485-87.

20Alaska Criminal Code Revision, Tentative Draft, Part 2, pp.
31-32,  citing  Beavers v. State, 492 P.2d  88,  97  (Alaska
1971);  Taylor v. State, 391 P.2d 950 (Alaska 1964); Daniels
v.  State,  383 P.2d 323, 324 (Alaska 1963);  and  Mahle  v.
State, 371 P.2d 21, 25 (Alaska 1962).

21Rollin  M.  Perkins & Ronald N. Boyce, Criminal  Law  (3rd
edition  1982),  p.  739 (internal quotations  and  citation
omitted).

22Ibid.

23Ibid.

24Id. at 740.

25See  AS 11.46.310(a) (the definition of burglary)  and  AS
11.46.100 (the definition of theft).

26Rollin  M.  Perkins & Ronald N. Boyce, Criminal  Law  (3rd
edition 1982), p. 742.

27Id., pp. 292 (definition of larceny) and 343 (definition of
robbery).

28Id., p. 323.

29Ibid.

30Quoting People v. Escobar, 9 Cal.Rptr.2d 770, 774 (Cal. App.
1992).

31See AS 11.46.300(b).

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