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Young v. State (8/1/2014) ap-2422

Young v. State (8/1/2014) ap-2422

                                                 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  



ARRON N. YOUNG,  

                                                            Court of Appeals Nos. A-11006/15  

                                 Appellant,                 Trial Court Nos. 4FA-08-3022 CR  

                                                                     & 4FA-08-2834 CR  

                         v.  

                                                                       O  P  I  N  I  O  N 

STATE OF ALASKA,  



                                 Appellee.                      No. 2422  - August 1, 2014  



                   ppeal  from   the  Superior  Court,  Fourth  Judicial  District,  

                 A                                                     

                 Fairbanks, Michael MacDonald, Judge.  



                 Appearances:    Renee  McFarland,  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  

                 Michael C. Geraghty, Attorney General, Juneau, for the Appel- 

                 lee.  



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

                 Senior Judge.*  

                                    



                 COATS, Senior Judge.  



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



Constitution and Administrative Rule 23(a).  


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

                    Arron N. Young was convicted of three counts of attempted murder in the  

                                                                                              



first  degree  and  five  counts  of  misconduct  involving  weapons  in  the  first  degree  in  

                                 



connection with a shooting spree that occurred on a busy road in Fairbanks in 2008.  

                                                                                                



Young  appeals  his  convictions  and  sentence.    We  affirm  Young's  convictions  for  

                                                                                          



attempted murder in the first degree.  But we conclude that Young's five counts of  



misconduct involving weapons in the first  degree  should merge into a single count.  

                                                                             



Because the merger of these counts affects Young's sentence, we remand this case to the  

                                                                             



superior court for resentencing.  



          Factual and procedural background  



                    During the summer of 2008, there were several crimes in Fairbanks that the  

                                                                      



Fairbanks police attributed to an ongoing dispute between members of the Bloods and  

                                                                          



Crips gangs.  On the afternoon of August 15, 2008, a shooting occurred on College Road  

                                                                                           



in Fairbanks.  During this incident, the occupants of a silver SUV shot at a green sedan  

                                                                                                            



in which Joseph Fainuu, Eddy Delarosa, and Jared Jermaine Askew were riding.  The  



three men in the sedan were either self-identified members or associates of the Bloods  

         



gang.  Arron Young, a member of the Crips gang, was later identified as the driver of the  

                                                                                                                        



silver SUV and one of the shooters.  



                    Numerous  shots  were  fired  as  the  two  vehicles  traveled  down  College  



Road.  The bullets shattered the back window of the green sedan, and there were several  



bullet holes in the back of the car.  Besides the men in the green sedan, several other  



people were endangered by the shots.  David Throop testified that a bullet shattered his  

                                          



windshield as he was driving down College Road and that his hands were cut.  Sarah  



O'Callaghan was walking with her bike when a bullet traveled past her head, and she  



                                                            - 2 -                                                        2422
  


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

dove into a ditch.   David Waters, Jamie Waters, and Kaylynn Waters were in a car that     



                                                      1  

was struck by one of the bullets.   



                      Later that night, police apprehended Young.  Young had a loaded gun in  



the front waistband of his pants.  In Young's pocket, the police found a key to a vehicle  

                                                                                                         



matching the description of the silver SUV that was involved in the shooting.  During the  

                       



trial, a forensic firearm and tool mark examiner testified that some of the bullets and  

                                                                                                                      



cartridge casings recovered from the crime scene were fired from the gun the police  

                                                                                                        



found on Young.   



                      A grand jury indicted Young on three counts of attempted murder in the  

first  degree2  (one  count  for  each  of  the  men  in  the  green  sedan)  and  six  counts  of  



                                                                                  3 

                                                                                                                

misconduct involving weapons in the first degree  (one for each of the five bystanders 



                                                                                   

who were endangered, as well as a general count of misconduct involving weapons in  



the first degree that covered the entire incident).  



                      Three  witnesses  identified  Young  as  the  driver  of  the  SUV:    Jason  



Gazewood, John Anzalone Jr., and Arles Arauz.  



                      In his defense at trial, Young contended that he was not involved in the  



shooting and that he had been with his sister, Angie Young, when the shooting occurred.  

                                                                                                                 



Young argued that the gun that was in his possession was given to him by another gang  

                                                            



member who asked him to dispose of the weapon.  At the conclusion of the trial, the jury  



convicted Young of all charges.   



      1    David and Jamie Waters testified that they heard multiple shots but that only one                                     



bullet hit the car.  



      2    AS 11.41.100(a)(1)(A); AS 11.31.100.  



      3    AS 11.61.190.  



                                                                    -  3 -                                                                 2422  


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

                    The superior court sentenced Young to a composite term of 42 years to  



serve.   



          Why we conclude the superior court did not err in admitting evidence of Jason  

          Gazewood's identification of Young  



                   Young  argues  that  the  superior  court  erred  in  denying  his  motion  to  

                                                                                                          



suppress Jason Gazewood's identification of him as a person involved in the College  



Road shooting.  He contends that Gazewood's identification was tainted because it was  

                                                                                                



the result of an unfairly suggestive photo lineup.  



                   At an evidentiary hearing on Young's motion to suppress the identification,  



Gazewood testified that he was sitting in his car on College Road when he saw the green  



sedan pass him.  He then saw a second vehicle approaching, in which he saw a man he  

                                                                                                            



believed was the shooter.  He described the man as black or Samoan, with pulled-back  



hair.  He made a statement to this effect to the police.  



                    Three   days   later,   Fairbanks   police   detective   Peyton   Merideth,   the  



investigating officer in the case, went to Gazewood's office and showed him a photo  

                     



lineup.  



                    Gazewood had extensive prior experience as a prosecutor and is now a  

                                                                                           



defense attorney.  He had seen hundreds of photo lineups.  Consequently, Detective  

                                         



Merideth  did  not  give  Gazewood  any  instructions  about  how  to  view  the  lineup.  

                                                                                                 



Although Gazewood was not told that the suspect's photo was in the lineup, he assumed  

                                            



that it was.  



                    The lineup consisted of six photographs. Gazewood testified that, while he  

                                                                                



was looking at the photo lineup, he eliminated some of the photos immediately.  He then  

        



deliberated  between  the  photo  of  Young  and  two  other  photos  of  men  with  similar  



features.  He narrowed his search down to two photographs.  One of them was the photo  

                                                                                                                  



                                                            - 4 -                                                       2422
  


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

of Young.   Gazewood moved his finger back and forth between the photos.  While he   



had his finger on Young's photo, Detective Merideth said, "Go with your instincts."  



Gazewood assumed that, because he had his finger on Young's photo when Merideth  

                                                                                                     



spoke, Merideth wanted him to pick that photo.  (Gazewood indicated that he was not  

                                               



watching Merideth at the time and did not know what Merideth was doing.  And the  

                                                                                       



superior court found that Merideth's comment was "unwitting.")  Gazewood testified  



that he was very frustrated because he thought he was going to probably pick Young  



anyway.  He thought that Merideth's comment had interfered with his deliberations.   



                     The  superior  court  concluded  that  the  photo  lineup  procedure  was  not  

                                                                             



unnecessarily suggestive.  The court found that there was nothing in the photo array to  

                                                                                                        



make Young's photo stand out from the other photographs.  The court pointed out that  



another eyewitness, John Anzalone Jr., had picked out a different photograph in the  



lineup  that resembled  Young.   The  court also  found  that Gazewood  had  decided  to  

                                                                                                               



identify Young in the photo lineup before Merideth made the comment, "Go with your  



instincts."  



                     We conclude that the record in this case establishes that the identification  

                                                                                                      

procedure was unfairly suggestive.  In  Tegoseak v. State,4 we discussed psychological  



                                        

research   that   provided   insight   into   how   identification   procedures   can   become  



                 5  

suggestive.                                     

                     In particular, we pointed to research by Professor Gary L. Wells of Iowa  



State University.  Based upon his research, Professor Wells suggested that lineups should  



                                                           

be conducted by an officer who does not know who the suspect in the lineup is, so that  



                                                                                                                                     6  

                                                                                                           

the officer does not inadvertently, perhaps unconsciously, influence the identification. 



     4    221 P.3d 345 (Alaska App. 2009).  



     5    Id. at 351-53.  



     6    Id. at 352.  



                                                               - 5 -                                                              2422  


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

In addition, Professor Wells recommended that the witness be told that the photo lineup                       



might not contain a photograph of the person the police suspect - otherwise, the witness   



                                                                                      7  

is likely to assume the suspect is in the lineup.   



                                                                                                                             

                         In the present case, Detective Merideth did not follow these recommended  



                                                                      

procedures. Because Gazewood was experienced in photo lineup procedures, Detective  



Merideth did not give him any instructions.  Gazewood testified that he assumed the  



                                                                                 

suspect  was  in  the  photo  lineup,  even   though  Merideth  did  not  tell  him  this.  



                                                                                                  

Furthermore, Detective Merideth knew that Young was the suspect in the case and he  



knew which photograph was the photograph of Young.  Although the superior court  



found that Gazewood had already decided to select Young before Merideth told him,  



"Go with your instincts," the record does not support that finding.  Gazewood testified  

                                                                                                                             



that, although he was leaning toward picking the photograph  of Young, he had not  

                                                                                                                             



finished his deliberative process.  He testified that when Merideth said, "Go with your  

                                                                                               



instincts," he thought Young's photograph was the one Merideth wanted him to pick and  

                                                                                                      



he   "didn't   deliberate   anymore."      We   conclude   that   the   lineup   procedure   was  



unnecessarily suggestive.  



                         The  fact  that  we  have  concluded  that  the  photo  lineup  procedure  was  



unnecessarily  suggestive  does  not  mean  that  Gazewood's  in-court  identification  of  

                                                                   



Young was inadmissible.  A suggestive identification may still be admissible if under the  

                                                                                                                   

totality  of  the  circumstances  it  is  nonetheless  reliable.8  

                                                                                                             The  test  used  to  determine  



whether an in-court identification is reliable is set forth in the United States Supreme  



      7     Id.  



      8     Howe v. State , 611 P.2d 16, 18 (Alaska 1980).  



                                                                            - 6 -                                                                            2422  


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

                                                            9  

Court decision in Manson v. Brathwaite .   The Brathwaite Court identified five factors   



to be considered:  



                    * the witness's opportunity to view the perpetrator during the crime,  



                    * the witness's degree of attention,  



                    * the accuracy of any prior description given by the witness,  



                    * the witness's level of certainty when making the identification, and  

                    * the length of time between the crime and the witness's identification.10  



                    In Tegoseak, we extensively examined and criticized the Brathwaite test in  

                                        

light of more current psychological research on eyewitness identification.11  

                                                                                                                  Young's  



argument on appeal is based on the criticisms we noted in that case.  But we did not  

                                                                                                

adopt a different test in Tegoseak,12  

                                                                                                              

                                                     and the superior court considered our criticisms of  



the Brathwaite test in the present case.   



                    The superior court concluded that, even if the procedures used in the lineup  

                                                                                                       



were  unnecessarily  suggestive,  the  totality  of  the  circumstances  did  not  require  

                                                                         



suppression.  The court found that Gazewood "had a sufficient opportunity to view the  

                                                                                              



perpetrator during the criminal episode and had a sufficient degree of attention to the  

                                                                         



events."  The court found that Gazewood was alerted to the incident when he saw the  



first car speed by.  Gazewood then saw the other car come from behind and "took special  



note of the vehicle and its occupants."  Gazewood had "three to eight seconds to witness  

                                                                                                     



the events" and he had "a good view of the events and saw the events unfolding up  

                                                              



close."  The court found that Gazewood had a good enough view of the perpetrator to  

                                                                    



     9    432 U.S. 98 (1977).   



     10   Tegoseak, 221 P.3d at 354 (citing Manson , 432 U.S. at 114).   



     11   Id. at 353-61.  



     12   Id.   



                                                            - 7 -                                                          2422  


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

generate a reasonably detailed description of him as a Black or Samoan man who had his         



hair pulled back.   



                      The   court   found   that   Gazewood's   identification   of   Young   in   the  



photographic lineup three days after the incident was "sufficiently close to the time of  



the events ... to be reliable," and that Gazewood "was operating with a sufficient degree  

                                                                                          



of certainty" when he made the identification.  The court also found that Gazewood  



realized  the  effect  Detective  Merideth's  comment  might  have  had  on  him  and  that  



Gazewood could "calibrate with precision how Merideth's comment may or may not  



have affected his identification."  



                      In reviewing the trial court's findings in light of the Brathwaite factors, we  

                                                                       



conclude that the superior court did not err in finding that Gazewood's identification of  

                                                                                                                      



Young was sufficiently reliable to allow Gazewood to make an in-court identification.  

                                                                     



Although, as we indicated in Tegoseak, we recognize the dangers inherent in eyewitness  

identification,13  

                                                                                     

                           we also recognize that eyewitness testimony is often critical and is the  

kind of testimony that juries have traditionally been able to evaluate. 14  

                                                                                                                         Among other  



things, the eyewitness is subject to cross-examination.  In this case, Gazewood testified  

                                                                                            



about the suggestiveness of the pretrial lineup procedure used in his identification of  

                                                                                                                     



Young.  It appears that, because of Gazewood's extensive prior experience with lineup  

                                                                                                                              



procedure and his criticism of the procedure used in this case, his testimony was effective  

                                                                                            



in establishing the problems with the photo lineup and the influence this procedure had  



on  his  identification.    In  addition,  we  note  that  Young  could  have  called  an  expert  



      13   Id.  at 355, 359.  



      14   See Perry v. New Hampshire, __ U.S. __, 132 S. Ct. 716, 728 (2012).  



                                                                    - 8 -                                                                   2422  


----------------------- Page 9-----------------------

witness to testify about the weaknesses of eyewitness identification in general and about                 

the danger presented by the suggestive lineup in this case.15  



                                                                          

              The superior court did not err in giving the pattern jury instruction on evaluating  

             the testimony of a witness  



                          Young contends that the superior court erred in giving the pattern jury  



instruction on evaluating the testimony of a witness.  He argues that the court should  

                                                                                                                                   



have  given  more  specific  instructions  informing  the  jury  of  the  unreliability  of  



eyewitness testimony.  The court declined to give Young's proposed instructions, finding  



that  they  set  out  a  defense  argument.    The  court  concluded  that  the  pattern  jury  

                                                                                                          



instruction contained the appropriate factors for the jury to consider in evaluating witness  



testimony, such as the witness's memory and ability to observe events.  



                          Young acknowledges that this court has previously affirmed convictions  



where the trial court gave the pattern instruction instead of a more focused instruction  

                                                                                                   

on eyewitness identification.16                                                                                                    

                                                             We adhere to those prior decisions and conclude that the  



trial court did not abuse its discretion in giving the pattern instruction in this case.  



       15    In his pretrial motion to suppress Gazewood's identification, Young presented an                                                       



expert witness on eyewitness identification.  But he was unable to present this witness at trial                                                                 

because he did not give pretrial notice of the witness.  Young has not argued that the trial   

court  erred  in  refusing  to  allow  the  expert  witness   to   testify  because  of  this  discovery  

violation.  



       16  

                                                                                                                                      

             See McGee v. State, 614 P.2d 800, 804 (Alaska 1980); see also Dayton v. State , 598  

P.2d  67,  68  (Alaska  1979); Larson  v.  State ,  656  P.2d  571,  575-76  (Alaska  App.  1982);  

 Williams v. State, 652 P.2d 478, 480 (Alaska App. 1982).  



                                                                                 -  9 -                                                                            2422
  


----------------------- Page 10-----------------------

          The superior court did not err in allowing witness John Anzalone Jr. to make an  

                                                                                                            

          in-court identification of Young  



                    John Anzalone Jr. witnessed the shooting.  Anzalone initially was not able  

                                                                    



to identify Young as a shooter.  Before the grand jury, he also failed to identify Young  

                                                                                  



from a photo lineup and, in fact, picked someone other than Young.  But during the trial,  



Anzalone contacted the State, indicating that he had identified Young as a shooter after  



seeing his photograph on the news.   



                    Young argued in superior court that Anzalone should not be allowed to  

                                                                                                                



make an in-court identification of Young because Young would be the only black male  

                                                                                                    



sitting at the defense table.  Young also argued that the fact that Anzalone saw Young's  



photo on television before the identification was likely to have affected his identification.  

                                                                       



                    The  superior  court  rejected  Young's  arguments,  stating  that  it  was  not  



impermissible for a witness who failed to identify a defendant in a lineup to make an in- 



court identification later.  The court reasoned that Young could cross-examine Anzalone  



and bring out the factors that might cast doubt on Anzalone's identification, including  

                                             



Anzalone's failure to identify Young in the photo lineup.  And the court pointed out that,  

                                                                



in a criminal trial, the defendant is almost always the only person at the defense table  

                                                                            



aside from his attorney.  We find that the court did not abuse its discretion by permitting  

                                                                                             



Anzalone to make an in-court identification.  



          The superior court did not err in denying Young's motion for a mistrial  



                    As we have previously explained, Young's defense was alibi.  He claimed  

                                                                       



that he was at his sister's house at the time of the shooting.  Because Young's defense  



was alibi, the witnesses at the scene who could identify Young as a shooter were critical  

                                                             



to the State's case.   



                                                           -  10 -                                                       2422
  


----------------------- Page 11-----------------------

                    Arles Arauz was one of those witnesses.  At the time of the shooting, Arauz  



was riding in a car that was near the green sedan that was the target of the shooting.  



Arauz and the other two occupants of that car were following the green sedan because  

                                                                 



they planned to share a hotel room with the occupants of the sedan.  



                    At Young's trial, on direct examination, Arauz testified that he was familiar  

                                                                                



with Arron Young because he knew him from school.  Arauz conceded that, when he  

                                                                                    



was  questioned  shortly  after  the  shooting  incident  by  Detective  Merideth,  he  told  

                                                    



Merideth he did not know who had done the shooting. But when Arauz testified at grand  

                                                                                       



jury, he was shown a photo lineup containing Young's photo and identified Young as  

                     



the shooter.   



                    When Young's attorney cross-examined Arauz, the defense attorney asked  

                                                                                           



Arauz to acknowledge that, right after the shooting, Arauz told Detective Merideth he  

               



did not see who had done the shooting.  Arauz responded to the defense attorney's  



questions by asserting that he had  actually seen (and identified) Young as one of the  

                                                                                                                  



shooters but he had told Detective Merideth the opposite because he "didn't want to be  

                                                     



a snitch."  



                    Young's attorney then sought to establish that Arauz had only identified  



Young  when  he  testified  before  the  grand  jury,  after  he  learned  that  Young  was  a  

                           



suspect.  The defense attorney also sought to establish that Arauz had a motive to accuse  



Young because of an earlier grudge.   



                    In response to this line of questioning, Arauz testified that, actually, on the  



day of the shooting, a different detective had shown him a photo lineup that contained  

                                



a picture of Young and he had identified Young.  This information came as a surprise to  

                                                                                                                



both the defense attorney and to the prosecutor.  



                    This other detective, David Elzey, later provided a report containing an  

                                                                                                            



explanation of why there was no record of Arauz's identification of Young on the day  

                                                                                                                  



                                                            -  11 -                                                       2422
  


----------------------- Page 12-----------------------

of the shooting.  According to Elzey's report, Arauz had agreed to talk to Elzey only on  



condition that their conversation would be "off the record."  Arauz told Elzey that he had  



not told the truth when he spoke with the other officer (Merideth) - that he had withheld  

                                                                                                  



his knowledge that Young was one of the shooters because he did not want to be a  



"snitch." Arauz told Elzey that he had indeed seen Young driving the SUV and shooting  

                                                    



at his friends in the green sedan.  He said that he was sure it was Young because he had  

                                                                                                             



gone to school with Young.  



                    Detective  Elzey  did  not  record  this  interview  with  Arauz,  nor  did  he  

                                                                       



summarize Arauz's statements in his initial police report, because he had promised Arauz  



confidentiality.  But according to Elzey's report, Elzey "strongly suggested" that Arauz  

                                



tell the truth when he testified at grand jury.  After Arauz testified at grand jury and  

                                                     



identified Young, Elzey concluded that everything had worked out satisfactorily, and he  



decided that it was unnecessary to disclose Arauz's earlier identification of Young.  



                    After Elzey's report was produced, Young's attorney moved for a mistrial.  

                                                           



The defense attorney argued that the State's failure to disclose this information earlier  

                     



violated Young's right to discovery under Alaska Criminal Rule 16 and his right to due  

                                                                                                   



process.  The defense attorney further argued that his presentation of the defense case  

                                                                                                                 



had  been  prejudiced  by  the State's failure to  reveal Arauz's initial identification  of  

                                                                                                           



Young on the day of the shooting.   



                    The  attorney  pointed  out  that  this  new  information  had  weakened  his  

                                                                                                              



cross-examination of Arauz, because that cross-examination had been premised on the  

                                                                 



assumption that Arauz had not identified Young as one of the shooters until after Young  

                                    



was publicly named as a suspect.  The defense attorney also asserted that, had he been  

                                                                         



aware of the information about Arauz's earlier identification, he and Young might not  



have chosen to present an alibi defense, but might instead have argued that the shooting  

                                                



was justified.  



                                                             -  12 -                                                         2422
  


----------------------- Page 13-----------------------

                       Under Criminal Rule 16(b)(1)(A)(i), the State is required to disclose to the          



defense "written or recorded statements and summaries of statements" made by "persons       



known by the government to have knowledge of relevant facts."  The superior court  



concluded that the State was not required under this rule  to  disclose Arauz's initial  

                                                                                                               



identification of Young to the defense because the police had prepared no "written or  



recorded statement" of the identification.  



                       We  have  previously  held  that  Criminal  Rule  16(b)(1)(A)(i)  does  not  

                                                                                                  



invariably require the prosecution to disclose unrecorded oral statements of witnesses  



made during pretrial preparation shortly before trial, at least where there has been no bad  

                                                                                                         

faith on the part of the prosecutor.17  

                                                                  But in this case, as the superior court found, the  



State provided Young with police reports affirmatively stating that Arauz had not been  



able to identify Young on the day of the shootings - even though Detective Elzey knew  



at the time the reports were generated that this was not true.  In other words, the State  

                                                                            



presented Young with reports that affirmatively misstated information that was critical  

                                                              



to his defense, and Young relied on those reports, to his detriment, in litigating his case.  

                                                                                                                                          



This conduct violated both the text and spirit of Criminal Rule 16, which is designed to  

                                                                                                              



prevent precisely this type of unfair surprise.  



                       We nevertheless conclude that, under the facts of this case, the superior  

                                                                                                                                   



court's remedies for this violation were sufficient and that a mistrial was not warranted.  

                                                                                                       



The superior court found that the State's failure to disclose Arauz's initial identification  

                                  



unfairly  surprised  Young.  To  remedy  that  unfairness,  the  court  granted  Young  a  



continuance of trial and precluded the State from offering the testimony of Detective  

                                            



Elzey and another witness to corroborate Arauz's testimony.   



      17    Sivertsen v. State, 963 P.2d 1069, 1071-72 (Alaska App. 1998), disapproved on other  



grounds , 981 P.2d 564 (Alaska 1999).  

                                                                       -  13 -                                                                      2422  


----------------------- Page 14-----------------------

                    Although the State bears the burden of disproving that the defendant was   



prejudiced by a mid-trial discovery violation, the defendant must first set forth some   

plausible  way  in  which  his  defense  was   prejudiced. 18  

                                                                                       As  we  explained,  the  major  



                                             

prejudice Young alleged was that had he been aware that Arauz identified him on the day  



           

of  the  shootings,  he  might  have  abandoned  his  defense  of  alibi  and  argued  that  his  



conduct was justified.  



                    The superior court was skeptical of Young's claim that, but for the State's  



discovery violation, he would have presented a justification defense because that defense  

                                                                                        



was completely inconsistent with Young's defense of alibi.  A justification defense was  

                                                                                         



also completely inconsistent with the State's evidence, which showed that Young had  



been driving a silver SUV and firing shots at a car that was trying to get away.  



                    When the superior court questioned the viability of a justification defense  

                                                                                                 



under the facts of Young's case, Young did not make an offer of proof or ask to present  

                            



information  to  the  court  in  camera  to  establish  that  he  had  evidence  to  support  the  



defense.  Young's failure to make this offer of proof cannot be attributed to inadequate  

                                        



time to prepare argument and evidence on the issue because the court recessed the trial  

                                                                



for four days to give Young time to conduct relevant investigation and to assess the  



potential prejudice of the State's discovery violation to his case.   



                    Given this record, we conclude that the superior court could properly reject  

                                                                                                    



Young's claim that he would have presented a justification defense if he had known  



about Arauz's earlier identification of Young.   Moreover, the remedies the court granted  

                                                         



for the State's late disclosure of Arauz's initial identification were adequate to cure other  



     18   Bostic v. State , 805 P.2d 344, 348-49 (Alaska 1992); Jurco v. State , 825 P.2d 909,   



916-17 (Alaska App. 1992).  

                                                            -  14 -                                                          2422  


----------------------- Page 15-----------------------

potential prejudice to the litigation of Young's case.                      We accordingly conclude that the  

superior court did not abuse its discretion by denying Young's motion for a mistrial.19  



                                                             

          Young's claim of cumulative error  



                   Young argues that, even if we do not find that the trial court committed  



reversible error with regard to any of his prior claims, we should reverse his convictions  

                                                                                  



based upon cumulative error.  "Cumulative error requires reversal when the impact of  



errors at trial was so prejudicial that the defendant was deprived of a fair trial, even if  

each individual error  was harmless."20  

                                                          Since we do not find that the superior court  



committed any error, we have no basis to reverse under the doctrine of cumulative error.  



          Young's six convictions for weapons misconduct must merge  



                   As we explained earlier, Young was convicted of six counts of weapons  



misconduct in the first degree under AS 11.61.190(a)(2) - i.e., shooting a firearm from  

                                                    



an  operating  motor  vehicle  under  circumstances  where  there  was  a  substantial  and  



unjustifiable risk of injury to persons or damage to property.  These six counts included  

                              



one count for each of the five bystanders endangered by the shooting, plus one general  

                                                                                  



count that covered the shooting as a whole.   



                   At sentencing, the superior court merged the general count that covered the  

                                                                                                      



shooting as a whole, but the court entered separate convictions on the remaining five  



counts (the counts that were based on the danger to the five bystanders).  



                   Young  argues  that  all  of  these  convictions  must  merge  into  a  single  

                               



conviction - that the act of discharging a firearm from a motor vehicle constitutes a  

                                                                                               



single offense under AS 11.61.190(a)(2), even if that conduct creates a risk of injury to  

                                                                                                    



     19  See Phillips v. State, 70 P.3d 1128, 1138 (Alaska App. 2003).  



     20  Drumbarger v. State , 716 P.2d 6, 16 (Alaska App. 1986).   



                                                         -  15 -                                                       2422  


----------------------- Page 16-----------------------

more than one person.                           To resolve Young's argument, we must determine the gravamen   



of the offense - i.e., the essential conduct that the statute criminalizes.   



                            Alaska  Statute  11.61.190(a)  prohibits  "discharging  a  firearm  from  a  



propelled  vehicle  while  the  vehicle  is  being  operated  and  under  circumstances  



manifesting a substantial and unjustifiable risk of physical injury to a person or damage  

                                                                                                                                                 



to property."  The legislative history of this statute shows that it was directed at drive-by  

                                                                                                                                

shootings.21  

                           



                                                                    

                            Our criminal code already has provisions - the assault statutes found in  



AS  11.41.200-.230  -  that  prohibit  the  reckless  creation  of  danger  to  particular  



individuals.  Under Alaska law, when a person  commits a single act that recklessly  

                                                                                                        



endangers multiple people, this act will support multiple convictions for assault - one  

for each person endangered.22  

                                                                



                                                                                                  

                            In contrast, the drive-by shooting statute was aimed at a particular reckless  



                                                                                                                                                                        

activity that, in and of itself, creates a generalized public danger.   According  to the  



                                                

legislature's sectional analysis of the proposed law, the legislature viewed a drive-by  



                                                                                                                                

shooting  as  "inherently  dangerous  conduct,"  regardless  of  whether  any  person  was  



                                                                                                                              23  

actually injured, or was even placed in fear, by the shooting.                                                                     



                                                                                                                                                                   

                            In other words, the legislature did not view the drive-by shooting law as an  



alternative or aggravated form of assault.  The crime is the act of shooting itself, even  



       21     See fiscal note analysis of H.B. 396 (Jan. 13, 1992); sectional analysis of C.S.H.B.   



396; Dep't of Law memorandum on H.B. 396, addressed to Rep. Dave Donley, Chairman  

of the H. Judiciary Comm. (Jan. 14, 1992) (all included in the 1992 H. Judiciary Comm. file                                

on H.B. 396).  



       22     See  Cooper v. State, 595 P.2d 648, 649 (Alaska 1979);                                                        Hathaway v. State , 925 P.2d  



 1343, 1346 (Alaska App. 1996).  



       23     See sectional analysis of C.S.H.B. 396 (included in the 1992 H. Judiciary Comm. file     



on H.B. 396).  

                                                                                    -  16 -                                                                                      2422  


----------------------- Page 17-----------------------

when there is no victim.  It was therefore improper for the State to charge Young with       



a separate count of weapons misconduct for each person who was endangered by the                                 



shooting.   



                      We acknowledge that, under the facts of this case, the State might properly  

                                                                                      



have charged Young with a separate count of assault for each bystander who was either  

                                            



injured or placed in fear of imminent injury by Young's actions.  As we have explained,  

                                                                                                           



a single assaultive act that endangers multiple people will support multiple convictions  

               



for assault under Alaska law.  But a single act of discharging a gun from a motor vehicle  



remains a single crime under AS 11.61.190(a)(2), regardless of how many people (or  



how many items of property) are endangered by the discharge.  



                      We further acknowledge that, at least potentially, Young's case involved  

                                                                                                          



two or more discrete acts of discharging a gun from a motor vehicle.  Young and his  

             



accomplices chased their victims (the occupants of the green sedan) through the streets  

                                                                                                                  



of Fairbanks for over two miles.  Depending on what happened during that chase, it is  



conceivable that Young and his companions fired at the green sedan, stopped firing, and  

                                                      



then began firing again - with a significant break in time and circumstance between  



each act.  

                      We used this test in Soundara v. State24  

                                                                                        to evaluate whether a defendant's  



                                  

assaultive  conduct  constituted  one  continuing  assault  or  two  separately  punishable  



              25                                        26 

assaults,         and in Williams v. State                  to evaluate whether a defendant's sexually abusive  



      24   107 P.3d 290 (Alaska App. 2005).  



      25   Id. at 299.  



      26   928 P.2d 600 (Alaska App. 1996).  



                                                                   - 17 -                                                                   2422  


----------------------- Page 18-----------------------

                                                                                                    

conduct constituted one continuing act of sexual abuse or two separately punishable  



       27  

acts. 



                     But  in  Young's  case,  the  State  made  no  attempt  to  evaluate  Young's  



                                                

conduct in this fashion when it formulated the weapons misconduct charges, and the trial  



                      

jury was not asked to evaluate Young's conduct in this fashion when it deliberated on  



those charges.  Thus, even if the evidence in Young's case theoretically might have been  



interpreted in a way that would support two or more separate convictions for discharging  

                                                             



a firearm from an operating motor vehicle, the jury's verdicts left this issue unresolved  

                                                                                                      



- and, at this juncture, any ambiguity must be resolved in favor of the accused.  In other  

                                                                                                       

words, only a single conviction for weapons misconduct may be entered against Young.28  



                                                                                               29  

                                                                                                      

                     To the extent that our decision in Leonard v. State                          is inconsistent with this  



analysis, it is disapproved.  



           Young's excessive sentence claim  



                                                                          

                     Young also appeals his sentence, arguing that it is excessive.  Given our  



                                                                                              

decision that Young's convictions for misconduct involving weapons in the first degree  



                                                                                    

must merge, the superior court must resentence him.  We accordingly do not decide at  



                                                                            30  

this time whether Young's sentence is excessive.                                 



     27   Id. at 604.
  



     28    See  Soundara, 107 P.3d at 299;              see also Simmons v. State , 899 P.2d 931, 937 (Alaska
   



App. 1995).  



     29    655 P.2d 766 (Alaska App. 1982).  



     30    See Allain v. State, 810 P.2d 1019, 1023 (Alaska App. 1991).  



                                                              -  18 -                                                            2422  


----------------------- Page 19-----------------------

                         Conclusion  



                                                 The convictions for attempted murder in the first degree are AFFIRMED.     



On remand the superior court shall merge the convictions for misconduct involving  



weapons in the first degree and resentence Young.  We do not retain jurisdiction.   



                                                                                                                                                     -  19 -                                                                                                                                                   2422
  

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