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Lewis v. State (11/8/2013) ap-2401

Lewis v. State (11/8/2013) ap-2401

                                                    NOTICE
  

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         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  



KENNETH J. LEWIS,  

                                                                   Court of Appeals No. A-10957  

                                   Appellant,                    Trial Court No. 3AN-10-5283 CR  



                           v.  

                                                                           O  P  I  N  I  O  N 

STATE OF ALASKA,  



                                   Appellee.                      No. 2401  -  November 8, 2013  



                  Appeal   from    the   Superior   Court,   Third   Judicial   District,  

                  Anchorage, Michael Spaan, Judge.  



                  Appearances:    Renee  McFarland,  Assistant  Public  Defender,  

                  and  Quinlan  Steiner,  Public  Defender,  Anchorage,  for  the  

                                                                                       

                  Appellant.  Ann B. Black, Assistant Attorney General, Office of  

                  Special Prosecutions and Appeals, Anchorage, and Michael C.   

                  Geraghty, Attorney General, Juneau, for the Appellee.  



                                                                                     

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

                                   *  

                  Senior Judge.   



                  Senior Judge Coats.  



     *   Sitting  by  assignment  made  pursuant  to  article  IV,  section  11  of  the  Alaska  



Constitution and Administrative Rule 23(a).  


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

                                                                                                             1 

                    Kenneth J. Lewis was convicted of second-degree escape  for leaving a  



halfway house in Anchorage.  At trial, Lewis contended that he was not guilty of escape  

                                                                                                       



because he believed he had been given permission to leave the halfway house.  To rebut  

                                                                                                                        



this defense, the court permitted the State to admit evidence of Lewis's prior conviction  

                                                                                               



for escape.  The court concluded that evidence of the prior conviction was admissible to  

                                                                       



undercut Lewis's defense that he mistakenly believed he had permission to leave the  



halfway house.  Lewis argues that the trial court erred in making this ruling.  We affirm  

                                                                                                                    



the trial court's decision.  



                    Lewis also argues that, at sentencing, the trial court erred in rejecting his  



proposed mitigating factor, that his offense was among the least serious conduct included  

                                                                                               



in the definition of the offense.  We agree that Lewis established this mitigating factor.  

                                                  



We therefore remand the case for resentencing.  



          Factual and procedural background  



                    The Department of Corrections placed Kenneth Lewis at the Glenwood  

                                                                                  



Center, which is a halfway house in Anchorage.  On May 14, 2010, Lewis returned to  

                                                                                          



the Glenwood Center after an approved release.  Upon his return, a breath test revealed  

                                                                           



that he had consumed alcohol, in violation of his conditions for staying at the Glenwood  

                                                                                                               



Center.  Lewis  was  told  that as a consequence of this violation he was going to be  

                                        



remanded back to the Department of Corrections.  



                    Lewis then left the Glenwood Center.  He called the police the next day,  

                                                                    



and was arrested and charged with second-degree escape.  



                    At Lewis's trial, various staff members at the Glenwood Center testified  

                                       



that they did not have the legal authority to physically stop an inmate from leaving the  

                                                                                                           



     1    AS 11.56.310(a)(1)(B).  



                                                              - 2 -                                                            2401  


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

facility without permission.  Several staff members said the policy of the halfway house  

                                                                                       



was to talk to an inmate who was considering leaving the facility to discourage them  

            



from  leaving  and  incurring  the  additional  criminal  charges  that  would  result.    Staff  



members testified that they had these conversations with Lewis.  They also testified that  

                                                          



Lewis left the facility without permission.   



                     Lewis conceded that he had these conversations with staff members.  But  



he testified that he also had a conversation with Max Todhunter, the supervisor of the  

                                                                                    



Glenwood Center.  He said he asked Todhunter if he could go outside, get some fresh air,  

                                                                                                                



and smoke a cigarette, and Todhunter said it was completely up to him.  According to  

                                     



Lewis, Todhunter told him not to leave the property and to ring the buzzer on the door  

                                                                                                                     



when he wanted to come back in.  Lewis said he went outside, smoked some cigarettes,  

                                                                                                 



and tried to return after about twenty minutes, but that the staff would not let him back  

                                                                                                                   



in.  He said he waited outside the halfway house for about an hour and a half, but no  

                                                                    



police showed up.  Lewis said he found someone with a cell phone and used it to call the  

                                                                                            



police.  He was told that a police officer would show up to talk to him, but no officer  

                                 



arrived.  So Lewis walked to his brother's house.  He eventually called the police from  

                              



there and was taken into custody.  Lewis testified that he had not tried to escape and that  

                                                                                   



the whole incident was a big misunderstanding.  



                     Lewis had also been convicted of escape in 2005 for leaving a halfway  

                                                                                                    



house.  The State asked the court to admit evidence of that prior conviction on the theory  

                                                                                         



that it was admissible to undermine Lewis's contention that he did not intend to escape  



in this case.  The trial court concluded that the prior escape conviction was admissible  



for this purpose.  



                     Lewis addressed this 2005 conviction in his testimony. He said he had been  

                                                                                                         



sent to a halfway house, that he told the staff he did not want to be there, and that he  



                                                               -  3 -                                                         2401
  


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

walked out the front door as soon as they brought him there.  He testified that he then  



entered a plea of guilty to escape.   



                    The prosecutor called Max Todhunter, the supervisor of the halfway house,  

                                                                                                        



as a rebuttal witness.  According to Todhunter, he told Lewis that if he walked out the  

                                  



door, he would face additional time in prison for leaving.  Todhunter said that other staff  



members had long conversations with Lewis about this, and that Lewis walked out the  

                                                                                      



door anyway.  Todhunter testified that he never told Lewis that he could go outside and  

                                                                



smoke a cigarette and then come back in.  Todhunter testified, "I don't think there's  

                                                             



anything I said that would have given him ... a reason to believe the staff would let him  

                                                                                                  



back in ... or that he could have permission to ... be outside."  Todhunter said that it was  

                                                                  



his practice to tell inmates that it was ultimately their choice whether or not to walk out  

                                                                                                                   



the door.  He testified that this was the only thing that he said that Lewis could have  



misconstrued.  Todhunter also pointed out that Lewis was intoxicated at the time.  



                    At the conclusion of the evidence, the jury convicted Lewis of escape in the  

                                                                        



second degree.  



          Discussion  



                    The superior court did not abuse its discretion in admitting Lewis's  

                                                                                           

                    prior escape conviction  



                    Lewis contends that the superior court abused its discretion by allowing his  

                                                                                                                 



prior conviction for escape to be admitted into evidence.  The resolution of this claim is  

                                                                                                              



governed by Alaska Evidence Rule 404(b)(1), which provides:  



                    Evidence  of  other  crimes  ...  is  not  admissible  if  the  sole  

                                                                  

                    purpose for offering the evidence is to prove the character of  

                                                                                        

                    a person in order to show that the person acted in conformity  

                    therewith.    It  is,  however,  admissible  for  other  purposes,  

                                                                                       

                    including, but not limited to, proof of ... intent ... or absence  

                                                                          

                    of mistake or accident.  



                                                              - 4 -                                                         2401
  


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

                    Under this rule, evidence that a defendant has engaged in other bad acts is  

                                                                     



not  admissible  to  show  the  defendant's  propensity  to  engage  in  such  acts.    To  be  



admissible, the evidence must be relevant for a case-specific reason, for instance to show  

                                                                     



that  the  act  was  not  the  result  of  a  mistake  or  accident.                       In  addition,  under  Alaska  

                                                                                                               



Evidence Rule 403, the court must determine that the probative value of the evidence is  

                        



not outweighed by the danger that the evidence will result in unfair prejudice.  



                    In the present case, Lewis contended that he had not tried to leave the  



Glenwood Center, and that the entire incident was the result of a misunderstanding.  He  

                                                                             



claimed he thought he had been given  permission to leave the Glenwood Center to  

                                                              



smoke cigarettes.  There was some evidence to support this claim.  No one attempted to  

                                                                                           



keep  Lewis  from  leaving  the  facility.    In  addition,  the  supervisor  of  the  Glenwood  



Center,   Max   Todhunter,   conceded   that   there   was   some   possibility   that   Lewis  



misunderstood him when he told Lewis it was ultimately his choice whether to leave.  



                    Lewis's prior conviction for escape was admissible to rebut Lewis's claim  

                                                                 



that he thought he had permission to leave.  Lewis testified that in 2005 he told staff at  

                                                                                                  



the halfway house that he did not want to be there and walked out the front door as soon  



as they brought him to the facility.  He said he then entered a guilty plea to escape.  This  

                                



2005 conviction tends to show that Lewis was aware that no one was going to try to stop  

                                                                                                        



him when he left the halfway house, that it truly was up to him whether he stayed or left,  

                                                                         



and that, if he chose to leave, he would face criminal charges.  Therefore, Lewis's prior  

                  



conviction for escape had case-specific relevance to rebut his claim that the charges in  

                                                                                 



this case stemmed from a misunderstanding.  We conclude that the superior court did not  



err in allowing the introduction of Lewis's prior escape conviction.  



                                                              -  5 -                                                         2401
  


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

                    Lewis established the mitigating factor that his offense was among   

                    the least serious conduct included in the definition of the offense  



                    As a third felony offender, Lewis faced a presumptive range of 6 to 10  

                                                                                    

years  of  imprisonment.2  

                                          The  sentencing  court  was  therefore  required  to  impose  a  

sentence of at least six years to serve, unless Lewis established  a mitigating factor.3  

                                                                                                      



Lewis  proposed  the  mitigating  factor  that  his  offense  was  among  the  least  serious  

conduct included in the definition of the offense.4  

                                                                              



                    The sentencing judge concluded that Lewis had not established by clear and  



convincing evidence that he had any basis for believing he had permission to leave the  

                                                                                           



facility, that he tried to reenter the facility, that he waited outside, or that he telephoned  

                                                                                                     

the police to turn himself in shortly after leaving the facility.5  

                                                                                             He did find that Lewis had  



                                                                                                     

turned himself in within twenty-four hours of leaving the facility.  The judge concluded  



                                                                                                   

that Lewis's action in turning himself in was "commendable."  But he concluded that  



                                                                                                             

Lewis's escape was not among the least serious conduct included in the definition of the  



offense.  He therefore rejected the proposed mitigating factor and imposed the six-year  



minimum  term.    The  judge  stated  that,  if  he  were  not  restrained  by  presumptive  

                                                                 



sentencing, he would have imposed a sentence of four years.  



                    In reviewing whether a defendant has established a mitigating factor, we  



accept the sentencing court's factual findings unless they are clearly erroneous.  But in  

                                              



     2    AS 12.55.125(d)(4).  



     3    AS 12.55.155(a)(2).  



     4    AS 12.55.155(d)(9).  



     5    AS 12.55.155(f).  



                                                              - 6 -                                                             2401  


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

reviewing whether the defendant's conduct was among the least serious conduct included  

in the definition of the offense, we review the issue de novo, as a question of law.6  



                       Escape in the second degree criminalizes the act of removing oneself from                

official detention for a felony or   extradition without lawful authority.7  

                                                                                                                                The offense  



encompasses a wide range of conduct, criminalizing escapes from different levels of  



custody, including maximum security facilities.  In attempting to escape or while at large  

                                                                                                                                           



an  escapee  may  engage  in  dangerous  or  destructive  conduct  in  attempting  to  evade  



capture.  Furthermore, law enforcement officials can be expected to attempt to prevent  

                                                                       



the escape or to arrest the escapee, placing themselves, the escapee, and possibly the  

                                                                



public in danger. In addition, when the defendant successfully escapes, the offense may  

                                                    



involve substantial absence from custody, a lengthy search by law enforcement, and  



further danger in apprehending the defendant.  



                       When we consider the range of conduct encompassed by the offense of  

                                                                                 



escape in the second degree, we conclude that Lewis's conduct was among the least  



serious included in the definition of the offense.  Lewis walked away from a minimum  

                                                                                                  



security facility.  Given the rules of the facility, of which Lewis was aware, no one was  

                                                                                        



placed in danger when Lewis committed his escape.  Lewis was in escape status for a  

                                                                                               



short  period  of  time  -  twenty-four  hours.  And  Lewis  turned  himself  in  to  the  

                                              

authorities.8  



      6     State v. Parker, 147 P.3d 690, 694 (Alaska 2006) (citing Michael v. State , 115 P.3d  



517, 519 (Alaska 2005)).  



      7     AS 11.56.310(a)(1)(B).   



      8     Compare Bell v. State, 658 P.2d 787, 789-90 (Alaska App. 1983) (upholding the trial  



court's rejection of the least serious offense mitigating factor where the defendant claimed           

he walked away from the Palmer Correctional Center because of a family emergency and was                                                  

returning to the facility when he was apprehended, but attempted to evade capture by running       

                                                                                                                                (continued...)  



                                                                       -  7 -                                                                 2401
  


----------------------- Page 8-----------------------

          Conclusion  



                    Lewis's conviction for escape is AFFIRMED.  The case is REMANDED  

for resentencing.9  



     8    (...continued)  



             

into the woods when he was seen by correctional officials); Musser v. State , Mem. Op. & J.  

                 

No. 2766, 1993 WL 13156783, at *1-2 (Alaska App. August 18, 1993) (upholding the trial  

                                                                              

court's rejection of the least serious mitigating factor where the defendant escaped from the  

Palmer Correctional Facility and fled to Oregon where he was apprehended six months later);  

                                                                            

Davis v. State , Mem. Op. & J. No. 3414, 1996 WL 33686822, at *1, *3 (Alaska App. June  

26, 1996)  (upholding the trial court's rejection of the least serious offense mitigator where  

                                                                                                       

the defendant fled from the police station and had to be apprehended by force, resulting in  

the injury of a police officer).  



     9    Our disposition of this issue makes moot Lewis's contention that the sentencing court  

                                                                                                  

erred in failing to sua sponte refer his case to the three-judge panel.  



                                                              -  8 -                                                            2401  

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