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Sitigata v. State (7/20/2012) ap-2363

Sitigata v. State (7/20/2012) ap-2363

                                             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 



TALAILEVA SALIE SITIGATA, 

                                                          Court of Appeals No. A-10764 

                               Appellant,                Trial Court No. 3AN-08-4274 Cr 



                       v. 

                                                                  O  P  I N  I  O  N 

STATE OF ALASKA, 



                               Appellee.                    No. 2363     -   July 20, 2012 



               Appeal     from   the  Superior    Court,  Third   Judicial   District, 

               Anchorage, Eric A. Aarseth and Peter G. Ashman, Judges. 



               Appearances:      David D. Reineke, Assistant Public Defender, 

               and    Quinlan   Steiner,  Public   Defender,   Anchorage,     for  the 

               Appellant.     Eric   A.   Ringsmuth,   Assistant   Attorney   General, 

               Office of Special Prosecutions and Appeals, Anchorage, and 

               John J. Burns, Attorney General, Juneau, for the Appellee. 



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

               Judges. 



               MANNHEIMER, Judge. 



               In early 2008, Talaileva Sitigata and another man, Carl Fuavai, jointly 



assaulted Kraig Bays by repeatedly punching and kicking him. As a result of this attack, 



Bays suffered broken teeth and a broken jaw. Sitagata ultimately pleaded guilty to third- 


----------------------- Page 2-----------------------

degreeassaultunder AS11.41.220(a)(4) -negligentinflictionofseriousphysicalinjury 



on Bays by means of a dangerous instrument. 



              The question presented in this appeal is whether the superior court could, 



as part of its sentencing decision, order Sitigata to pay restitution for the expenses 



attributable to Bays's broken teeth and jaw. 



               Sitigata asserts that he did not personally cause these injuries - that his co- 



defendant, Fuavai, was the one who inflicted these injuries during the attack. And based 



on this factual premise, Sitigata argues that, as a legal matter, he can not be ordered to 



pay restitution for these injuries - because the charging document to which he pleaded 



guilty did not specify that he was being charged as Fuavai's accomplice. 



               Sitigata's argument is mistaken as a matter of law. First, when two or more 



people jointly engage in an assault, all of the participants are criminally accountable for 



any resulting injury or death.  Riley v. State, 60 P.3d 204, 211-12 (Alaska App. 2002). 



Second, it is irrelevant whether the charging document expressly stated that Sitigata was 



being held accountable for the assault as someone else's "accomplice". Alaska law does 



not recognize any distinction, either for purposes of pleading or for purposes of proof, 



between defendants who are guilty of a crime based on their own personal conduct and 



defendants who are guilty of a crime based on the conduct of others for which they are 



accountable under AS 11.16.110(2) - or defendants who are guilty based on some 



combination of the two.      Andrew v. State , 237 P.3d 1027, 1039-1041 (Alaska App. 



2010). 



              Accordingly, it was proper for the superior court to order Sitigata to pay the 



challenged restitution. 



                                            - 2 -                                        2363
 


----------------------- Page 3-----------------------

        Underlying facts 



                As weexplained above, SitigataandFuavaijointly attacked Bays, and Bays 



suffered broken teeth and a broken jaw as a result of the attack. 



                Based on his participation in this crime, Sitigata was initially indicted for 



second-degree   assault   under   AS   11.41.210(a)(2)   - i.e.,   recklessly   causing   serious 



physical injury to another.        This charge was ultimately resolved by a plea agreement. 



Under the terms of this agreement, Sitigata pleaded guilty to a superseding information 



charging him with the lesser crime of third-degree assault under AS 11.41.220(a)(4) - 



i.e.,   negligently   causing   serious   physical   injury   to   Bays   by   means   of   a   dangerous 



instrument. 



                The original indictment expressly declared that Sitigata was guilty of the 



assault   either   "as   principle   [sic]   or   accomplice".   However, the   information   which 



replaced the indictment did not contain this language. 



                As part of its sentencing proposal, the State asked the superior court to 



order Sitigata to pay restitution for the expenses attributable to Bays's injuries. Sitigata's 



attorney conceded that Sitigata might be responsible for some restitution, but the defense 



attorney argued that it would be improper for the court to order Sitigata to make full 



restitution for Bays's injuries. 



                The defense attorney noted that "the vast majority of the [medical] bills ... 



appear to be for oral surgery" for the injuries to Bays's teeth and jaw.                   The defense 



attorney argued that even though Sitigata had pleaded guilty to committing third-degree 



assault on Bays, Sitigata did not personally inflict the injuries to Bays's teeth and jaw. 



And the defense attorney told the court that "there's ... nothing [in the] documents that 



[Sitigata] pled to ... to suggest that he's going to be responsible for every single thing that 



                                                  - 3 -                                             2363
 


----------------------- Page 4-----------------------

happened [to Bays] that day."             This was apparently a reference to the fact that the 



 superseding information did not contain an express reference to accomplice liability. 



                 After listening to the defense attorney's argument, Superior Court Judge 



Eric A. Aarseth perceived - and told the parties - that the underlying issue was 



whether the restitution for Bays's injuries had to be apportioned based on the individual 



actions of Sitigata and his co-defendant Fuavai (as the defense attorney was arguing), or 



whether both men could be held jointly liable for all of Bays's injuries, and that it did not 



matter   whether   particular   injuries   could   be   attributed   to   the   actions   of   a   particular 



defendant (as the State was arguing). The defense attorney agreed that this was the issue 



to be decided. 



                 At this point, Judge Aarseth told the parties that his understanding of the 



law was that "[when] you've got co-defendants [who have jointly committed a crime], 



 ... [this fact] negates any notion of ... identifying or separating [out] a specific allocation 



of responsibility [for each individual co-defendant]."               Instead, Judge Aarseth told the 



parties, the law holds each defendant jointly responsible for all of the victim's injuries 



- and if Sitigata ended up paying a disproportionate share of the restitution, "[his] 



recourse [was to] initiat[e] a separate civil action against [his] co-defendant". 



                 However,   Judge   Aarseth   concluded   that   Sitigata   should   be   given   the 



opportunity to present legal authority in support of his contention that the restitution 



 should be individually apportioned, based on the separate conduct of each co-defendant. 



For this reason, Judge Aarseth halted the restitution hearing and directed the parties to 



brief this issue. 



                 When   the   restitution   hearing   reconvened   several   months   later,   Judge 



Aarseth was apparently unavailable, and thematter was assignedto Superior CourtJudge 



pro tempore Peter G. Ashman. 



                                                   - 4 -                                              2363
 


----------------------- Page 5-----------------------

                 At this renewed hearing, Sitigata's attorney argued that it was improper to 



hold Sitigata responsible for the injuries inflicted by his co-defendant Fuavai because the 



charging document - i.e., the superseding information charging third-degree assault, to 



which Sitigata pleaded guilty pursuant to the plea agreement - did not contain language 



expressly charging Sitigata under a complicity theory. 



                 Judge Ashman ultimately rejected this argument, and he ordered Sitigata 



to pay restitution for all of Bays's injuries. 



         Why we uphold the superior court's decision 



                 In   his   brief   to   this   Court,   Sitigata   notes   that   the   restitution   statute, 



AS 12.55.045(a), authorizes   a   sentencing   court to impose restitution for   the losses 



attributable to the defendant's "offense".            Sitigata contends that the injuries to Bays's 



teeth and jaw are not attributable to his offense, and thus the superior court exceeded its 



authority when it ordered him to pay restitution for these injuries. 



                 First, Sitigata argues that he pleaded guilty to a "generic" charge of third- 



degree assault, in that the charging document did not specify that the victim suffered any 



particular kind of harm or injury.   While it is true that the superseding information did 



not specify that Bays suffered a broken jaw or broken teeth, the superseding information 



did expressly charge Sitigata with inflicting serious physical injury on Bays. And under 



the facts of this case, the only serious physical injury that Bays suffered was the injury 



to his teeth and jaw. 



                 Sitigata next argues that, even though he and his co-defendant Fuavai 



jointly participated in the attack on Bays, there is "no credible evidence" that Sitigata (as 



opposed to Fuavai) was the one who broke Bays's teeth and jaw.   Sitigata notes that the 



charging   document (i.e., the superseding information) does not expressly state that 



                                                   - 5 -                                              2363
 


----------------------- Page 6-----------------------

Sitigata was prosecuted under the theory that he acted as Fuavai's accomplice - and 



Sitigata contends that, unless he was convicted as Fuavai's accomplice, he can not be 



held responsible for the injuries inflicted by Fuavai. 



                This argument is contrary to Alaska law.             In Riley v. State, 60 P.3d 204, 



211-12 (Alaska App. 2002), this Court stated that when two or more people jointly 



engage in an assault, all of the participants are criminally accountable for any resulting 



injury or death. 



                (We add, for clarification, that even though each participant is accountable 



for the results of the assault, whenever a participant's guilt, or the degree of their guilt, 



hinges on proof of a particular culpable mental state, each participant's culpable mental 



state is evaluated separately.  Riley, 60 P.3d at 213-14, 220-21.) 



                This   rule   of   joint   accountability   holds   true   even   though   the   charging 



document does not include an express reference to accomplice liability - that is, a 



reference to the rules codified in AS 11.16.110(2) for holding one person criminally 



accountable for the acts of others. 



                As we explained in Andrew v. State , 237 P.3d 1027 (Alaska App. 2010), 



the common-law distinctions between principals in the first degree, principals in the 



second degree, and accessories before the fact have been abrogated under Alaska law. 



Andrew, 237 P.3d at 1032-33.              Instead, Alaska law follows the Model Penal Code 



approach,   using   the   term   "accomplice"   to   refer   to  all  persons   who   can   be   held 



accountable for the commission of a crime under AS 11.16.100 - whether by virtue of 



their own conduct, or by virtue of the conduct of others for which they are responsible 



under AS 11.16.110(2), or through a combination of both.  Andrew, 237 P.3d at 1029- 



 1030, 1036. 



                Alaska   law   does   not   recognize   any   distinction,   either   for   purposes   of 



pleading or for purposes of proof, between defendants who are guilty of a crime based 



                                                  - 6 -                                             2363
 


----------------------- Page 7-----------------------

on their own personal conduct and defendants who are guilty of a crime based on the 



conduct of others for which they are accountable under AS 11.16.110(2). Andrew, 237 



P.3d at 1039-1041.   As we explained in Andrew, "it is immaterial whether the elements 



of the crime are satisfied by the defendant's own behavior, or by the behavior of another 



person for which he is accountable, or by both." Andrew, 237 P.3d at 1037, quoting the 



Alaska Criminal Code Revision, Tentative Draft, Part 2 (February 1977), p. 30. 



                It is likewise immaterial whether the charging document expressly refers 



to the defendant as an "accomplice", or whether the charging document otherwise refers 



to   the   defendant's   liability   for   the   conduct   of   others   under   the   rules   codified   in 



AS 11.16.110(2).        Even when the charging document makes no mention of vicarious 



liability, the State can properly introduce and rely on evidence that the offense was 



committed in whole or in part through the conduct of others for which the defendant is 

accountable under AS 11.16.110(2).  Andrew, 237 P.3d at 1034-35. 1 



                Accordingly, the injuries to Bays's teeth and jaw are the result of Sitigata's 



offense, regardless of whether Sitigata personally delivered the punches or kicks that 



caused these injuries. The superior court could properly order Sitigata to pay restitution 



for these injuries. 



        Conclusion 



                The judgement of the superior court is AFFIRMED. 



    1   Citing 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). 



                                                 - 7 -                                              2363 

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