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Tofelogo v. State (12/1/2017) ap-2575

Tofelogo v. State (12/1/2017) ap-2575

                                                                                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@ akcourts.us  



                              IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                      



TEILA  V.  TOFELOGO,  

                                                                                                        Court of Appeals No. A-12542  

                                                                                                                                                  

                                                      Appellant,                                      Trial Court No. 3KO-14-688 CR  

                                                                                                                                                               



                                         v.  

                                                                                                                     O  P  I  N  I  O  N  

                                                                                                                                                   

STATE OF ALASKA,  

                       



                                                      Appellee.                                        No. 2575 - December  1, 2017  

                                                                                                                                                           



                           Appeal from the Superior Court, Third Judicial District, Kodiak,  

                                                                                                                                        

                           Steve W. Cole, Judge.  

                                                          



                           Appearances:  Amanda Harber, Assistant Public Defender, and  

                                                                                                                                               

                           Quinlan Steiner, Public Defender, Anchorage, for the Appellant.  

                                                                                                                                                       

                           Stephen  B.  Wallace,  District  Attorney,   Kodiak,  and  Jahna  

                                                                                                                                          

                           Lindemuth, Attorney General, Juneau, for the Appellee.  

                                                                                                                                        



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

                                                                                                                                     

                           Superior Court Judge.*  

                                                                         



                           Judge MANNHEIMER.  

                                        



       *      Sitting    by   assignment   made   pursuant   to   Article   IV,   Section   16   of   the   Alaska  



Constitution and Administrative Rule 24(d).                              


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

                                                           Teila V. Tofelogo appeals the sentence he received for criminally negligent                                                                                                                                                                                                                



homicide.   This homicide stemmed from an incident at a treatment group home where                                                                                                                                                                                                                                                                                                            



Tofelogo and the victim, Dennis Fathke, were roommates.                                                                                                                                                                                                             



                                                           On the day in question,                                                                                      Tofelogo and Fathke                                                                                  were in their room,                                                                           and  



Tofelogo was pretending to be a ninja.                                                                                                                                    He was holding a long-bladed knife, and he was                                                                                                                                                  



making martial arts moves.                                                                                             Fathke was lying on a bed behind Tofelogo, but Fathke got                                                                                                                                                                                              



up from the bed just as Tofelogo executed a sudden pivot.                                                                                                                                                                                                         The knife blade penetrated                                                 



Fathke's side, inflicting a fatal wound.                                                                                                                                  



                                                           Tofelogo initially tried to staunch the flow of blood,                                                                                                                                                                                         but   when Fathke   



moaned and fell to the floor, Tofelogo left the room to call 911.                                                                                                                                                                                                                                  By the time police                                         



officers arrived, Fathke had no pulse; he was pronounced dead at the hospital about a                                                                                                                                                                                                                                                                                                 



half-hour later.                                                    



                                                           Tofelogo was indicted for criminally negligent homicide, AS 11.41.130(a),                                                                                                                                                                                            



and he ultimately pleaded guilty to this charge.                                                                                                                                                              



                                                           As   part   of   Tofelogo's   plea   agreement,   he   stipulated   that   aggravator  



AS 12.55.155(c)(18)(A) applied to his case.                                                                                                                                                       That is, Tofelogo conceded that, because                                                                                                              



Fathke was his roommate, the homicide was committed against "a member of the same                                                                                                                                                                                                                                                                                    



 social unit made up of those living together in the same dwelling as the defendant".                                                                                                                                                                                                                                                                                                         



Because Tofelogo conceded this aggravating factor, he faced a sentencing range of 1 to                                                                                                                                                                                                                                                                                        

 10 years' imprisonment.                                                                                     1  

                                                                                                                   



                                                           The superior court sentenced Tofelogo to 6 years with 4 years suspended  

                                                                                                                                                                                                                                                                                                                                              



(i.e., 2 years to serve).  In imposing this sentence, the judge declared that he was giving  

                                                                                                                                                                                                                                                                                                                                                                 



"some weight" to aggravator (c)(18)(A) - i.e., to the fact that Tofelogo and Fathke were  

                                                                                                                                                                                                                                                                                                                                                                       



roommates.  

                                                       



               1              Former AS 12.55.125(d)(1) (2014 version) and AS 12.55.155(a)(1).                                                                                                                                                                                                                               



                                                                                                                                                                                     - 2 -                                                                                                                                                                                 2575
  


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

                                                                                                                               

                     In  his  sentencing remarks,  the  judge  acknowledged  that  Tofelogo  and  



                                                                                                                 

Fathke did not have any family connection or emotional relationship - no inter-personal  



                                                                                                                                

connection of the sort that typifies crimes of domestic violence.  But the judge noted that  



                                                                                                                           

aggravator (c)(18)(A) is worded quite broadly - that the aggravator does not require  



                                                                                                                                 

proof of a familial or emotional relationship between the defendant and the victim, but  



                                                                                                                                       

rather extends to all cases where the defendant and the victim share the same dwelling.  



                                                                                                                      

The judge therefore concluded that it was proper for him to rely on aggravator (c)(18)(A)  



                                                                                

when formulating the sentence in Tofelogo's case:  



                       

                                                                                                           

                               The Court:           We all have a ...  right to feel safe and  

                                                                                                         

                     secure  in  our  own  homes  without  someone  who  is  living  

                                                                                                              

                     amongst us hurting us or killing us.   And it doesn't have to  

                                                                                                      

                     necessarily be someone that we're related to, [even though]  

                                                                                                             

                     it appears that the focus [of] that aggravator ... really was on  

                                                                                                          

                     acts of people [who are] family members or ... people who  

                                                                                        

                     are ... in a boyfriend-girlfriend relationship.  



                                                                                                                                 

                     On appeal, Tofelogo argues that the facts of his case do not fit within the  



                                                                                                                                 

legislature's rationale for enacting aggravator (c)(18)(A) - and that, for this reason, the  



                                                                                                         

sentencing judge should not have given this aggravator any weight.  



                                                                                                                     

                     For the reasons explained in this opinion,  we agree that the sentencing  



                                                                                                                                

judge should have given no weight to aggravator (c)(18)(A) in Tofelogo's  case.   We  



                                                                            

therefore direct the superior court to re-sentence Tofelogo.  



                                                                                                               

           The superior court's rejection of Tofelogo's proposed mitigator  



                                                                                                                                   

                     Before we reach the question of aggravator (c)(18)(A), we turn briefly to  



                                                                                                                                  

Tofelogo's other claim in this appeal - his contention that the superior court erred by  



                                                            

rejecting a proposed mitigating factor.  



                                                               - 3 -                                                          2575
  


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

                                     In    advance    of    sentencing,    Tofelogo's    attorney    proposed    mitigator  



AS 12.55.155(d)(9) -that                                                  Tofelogo's conduct was "among                                                           the least serious" within the                                     



definition of criminally negligent homicide.                                                                            The sentencing judge found that Tofelogo                                                   



had failed to prove this mitigator by clear and convincing evidence.                                                                                                                     



                                     Although the judge commended Tofelogo for trying to save Fathke, and for                                                                                                                        



honestly disclosing what had happened when he was interviewed by the police, the judge                                                                                                                                       



concluded (from the circumstances of the occurrence) that Tofelogo's actions were                                                                                                                                             



"close to really being reckless conduct" - in other words, close to constituting the more                                                                                                                                     



                                                                                         2  

serious offense of manslaughter.                                                             



                                     We agree with the sentencing judge that the record fails to clearly establish  

                                                                                                                                                                                                                     



that Tofelogo's conduct was among the least serious within the definition of criminally  

                                                                                                                                                                                                                 



negligent homicide.  We therefore uphold the sentencing judge's ruling on this issue.  

                                                                                                                                                                                                                                      



                                     We now turn to the question of aggravator (c)(18)(A).  

                                                                                                                                                                                          



                  An  examination  of  aggravator  (c)(18)(A)  and  the  broader  statutory  

                                                                                                                                                                                                

                  category of "crimes involving domestic violence"  

                                                                                                                                                               



                                     AS 12.55.155(c) contains the statutory aggravating factors that apply to  

                                                                                                                                                                                                                                      



presumptive sentencing.  Under subsection (c)(18)(A) of this statute, a felony offense is  

                                                                                                                                                                                                                                        



aggravated for sentencing purposes if the offense is  one  of  the "offenses against the  

                                                                                                                                                                                                                                   



person" defined in AS 11.41,  and  if  the offense was "committed against a spouse, a  

                                                                                                                                                                                                                                        



former spouse, or a member of the social unit made up of those living together in the  

                                                                                                                                                                                                                                   



same dwelling as the defendant".  

                                                                                             



         2        AS 11.41.120(a).                               



                                                                                                                - 4 -                                                                                                            2575
  


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

                                                                               The   crimes covered by aggravator (c)(18)(A) are a subset of the larger                                                                                                                                                                                                                                                                                                                                 



 category of "crimes involving domestic violence" - the category of offenses defined by                                                                                                                                                                                                                                                                                                                                                                                                                    



AS 18.66.990(3) and (5).                                                                                                                               



                                                                               The category of "crimes involving domestic violence" overlaps completely                                                                                                                                                                                                                                                                                                     



with the crimes covered by aggravator (c)(18)(A) - because, under AS 18.66.990(3),                                                                                                                                                                                                                                                                                                                                                       



the definition of "crime involving domestic violence" includes any offense defined in                                                                                                                                                                                                                                                                                                                                                                                                                          



AS 11.41 if the crime is committed against a "household member", and because the term                                                                                                                                                                                                                                                                                                                                                                                                          



 "household member" includes "current or former spouses" as well as "adults or minors                                                                                                                                                                                                                                                                                                                                                                                             



who live together or who have lived together".                                                                                                                                                                                                                                    See  AS 18.66.990(5)(A) and (B).                                                                                                                                                                           



                                                                               (The statutory category of "crimes involving domestic violence" actually                                                                                                                                                                                                                                                                                                                      



 encompasses a broader range of inter-personal relationships than aggravator (c)(18)(A),                                                                                                                                                                                                                                                                                                                                                                  



because   the definition of "household member" includes not only "current or former                                                                                                                                                                                                                                                                                                                                                                                              



 spouses" and "adults or minors who live together or who have lived together", but also                                                                                                                                                                                                                                                                                                                                                                                                            

                                                                                                                                                                                                                                                                            3)  

 six other types of inter-personal relationships.                                                                                                                                                                                                                                         



                    3                   The other six types of inter-personal relationships included                                                                                                                                                                                                                                                                                           in AS 18.66.990(5)'s                  



definition of "household member" are:                                                                                                                                                                                    



                                        (C)  adults or minors who are dating or who have dated;                                                                                                                                                                                                                   



                                        (D)   adults   or   minors   who   are   engaged   in   or   who   have   engaged   in   a sexual   

                    relationship;   



                                        (E)   adults or minors who are related to                                                                                                                                                                                           each other up to the fourth degree of                                                                                                                                                                         

                    consanguinity, whether of the whole or half blood or by adoption, computed under the                                                                                                                                                                                                                                                                                                                                                                                

                    rules of civil law;                                                                               



                                        (F)  adults or minors who are related or formerly related by marriage;                                                                                                                                                                                                                                                                                                                        



                                        (G)  persons who have a child of the relationship; and                                                                                                                                                                                                                                              

                                                                                                                                                                                                                                                                                                                                                                                                                                                   (continued...)  



                                                                                                                                                                                                                                                  - 5 -                                                                                                                                                                                                                                             2575
  


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

                                                      Because the kinds of cases covered by aggravator (c)(18)(A) are a subset                                                                                                                                                                                                  



of the larger category of "crimes involving domestic violence" defined by AS 18.66.-                                                                                                                                                                                                                                            



990(3) and (5), we conclude that aggravator (c)(18)(A) is based on the same rationale                                                                                                                                                                                                                                      



that   prompted   the   legislature   to   enact   the   definition   of   "crime   involving   domestic  



violence":   the policy of altering various provisions of law to facilitate the prosecution                                                                                                                                                                                                                   



and punishment of crimes that occur between people who are involved with or related                                                                                                                                                                                                                                               



to each other in specified ways.                                                                                                  



                            The ways in which the statutory definition of "crimes involving domestic                                                                                                                                                                                          

                           violence" exceeds the scope of its underlying rationale                                                                                                                                     



                                                      In a number of prior decisions, this Court                                                                                                                                    has analyzed the definition of                                                                                   



"crime involving domestic                                                                                       violence" codified in AS 18.66.990(3) and (5).                                                                                                                                                        We have   



repeatedly   pointed   out   that   the   literal   wording of                                                                                                                                                   this   definition   encompasses   more  



situations than the legislature intended - situations where it does not make any sense                                                                                                                                                                                                                                                  



to treat a crime differently based on the relationship between the defendant and the                                                                                                                                                                                                                                                             



victim.   

                                                                                                                                                                                                                                                                                              4  and Bingaman  

                                                      We initially addressed this problem in                                                                                                                Carpentino v. State                                                                                     



                                    5  

v.  State.                                     As both  Carpentino and Bingaman  explain,  the legislature's definition of  

                                                                                                                                                                                                                                                                                                                                                    



"domestic  violence"  is  worded  so  broadly  that,  if  one  were  to  read  this  definition  

                                                                                                                                                                                                                                                                                                                     



literally, it would cover many instances where the specified relationship between the  

                                                                                                                                                                                                                                                                                                                                                



              3            (...continued)  



                           (H)  minor  children  of  a  person  in  a  relationship  that  is  described  in  (A)  - (G)[.]  



              4            42 P               .3d   1137 (  Alaska  App.  2002)  (opinion  on  rehearing).   



              5  

                                                                                                                                                           

                           76 P.3d 398 (Alaska App. 2003).  



                                                                                                                                                                       - 6 -                                                                                                                                                                  2575
  


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

                                                                                                                      

defendant and the victim is irrelevant to assessing whether the defendant is atypically  



                                                                                                                 

dangerous or whether the defendant's conduct is atypically blameworthy.  



                                                                                                                      

                     Carpentino was the first occasion where we pointed out that AS 18.66.990  



                                                                                                                      

defines the phrase "domestic violence" in such a sweeping way that it covers situations  



                                                                                                        

wholly distinct from the commonly accepted meaning of "domestic violence":  



                      

                                                                                                            

                               For  example,  if  an  elderly  uncle  comes  to  visit  his  

                                                                                                 

                    favorite  nephew  and,  while  lighting  his  pipe,  recklessly  

                                                                                                 

                     scorches a table cloth or a chair, the old man has seemingly  

                                                                                                             

                    just committed an act of "domestic violence" as defined in  

                                                                                                         

                    AS 18.66.990(3).   That is, the uncle has committed the listed  

                                                                                                 

                    offense of criminally negligent burning under AS 11.46.430  

                                                                                                           

                    (negligently damaging the property  of another by fire), and  

                                                                                                      

                    the  victim  is  related  to  the  perpetrator  within  the  fourth  

                                                                                                           

                    degree   of   consanguinity   -   thus   qualifying   them   as  

                                                                        

                    "household members" under AS 18.66.990(5)(E).  



                                                                                               

                               Similarly,  if  a  group  of  former  college  roommates  

                                                                                                     

                    decide to hold a twenty-year reunion at one of their homes,  

                                                                                                           

                    and if one of the visiting former roommates gets drunk and  

                                                                                                        

                    recklessly jams his friend's CD player while trying to insert  

                                                                                                             

                    a CD into it, this roommate has seemingly just committed an  

                                                                                                           

                    act of "domestic violence".                   The intoxicated roommate has  

                                                                                                   

                    committed  the  listed  offense  of   fourth-degree  criminal  

                                                                                                           

                    mischief  under  AS  11.46.486(a)(1)  (tampering  with  the  

                                                                                                             

                    property of another with reckless disregard  for the risk of  

                                                                                                            

                    harm or loss), and all of the former college roommates are  

                                                                        

                    "household members" under AS 18.66.990(5)(B).  



                                     

Carpentino, 42 P.3d at 1141.  



                                                                                                                                 

                    The following year, in Bingaman, this Court addressed the definition of  



                                                                                                                       

"domestic violence" in the context of Alaska Evidence Rule 404(b)(4) - the evidence  



                                                                                                                                 

rule that allows  the  government to introduce evidence of a defendant's prior acts of  



                                                               - 7 -                                                          2575
  


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

domestic violence when the defendant is being prosecuted                                                                 for a crime of domestic         



violence.    



                          In  Bingaman, we limited the scope of Evidence Rule 404(b) because, in                                                                      



light of the expansive definition of "domestic violence",                                                        Rule 404(b)(4) purported to                         



authorize   the government to introduce a substantial amount of irrelevant evidence -                                                                               



"evidence of acts that                       have   little or no relevance to establishing a pattern of physical                                          

                6   As we explained:  

abuse."                           



                            

                                        [A]  person  who  causes  a  traffic  accident  through  

                                                                                                                                

                          criminal negligence and,  by chance,  happens to injure the  

                                                                                                                                         

                          child of a former high school sweetheart has committed a  

                                                                                                                                             

                          "crime involving domestic violence" as defined in AS 18.66.- 

                                                                                                                                  

                          990.  ...  Evidence Rule 404(b)(4) states that evidence of the  

                                                                                                                                          

                          traffic accident (i.e., evidence of the defendant's negligent  

                                                                                                                             

                          driving) ... [is] admissible if the defendant is prosecuted for  

                                                                                                                                          

                          beating their spouse.   Yet the defendant's negligent driving  

                                                                                                                                 

                           ... [has] no discernible relevance to the assault charge.  

                                                                                                                      



Bingaman, 76 P.3d at 412.  

                                             



                          In the years since Carpentino and Bingaman, this Court has encountered  

                                                                                                                                                  



the legislature's over-inclusive definition of "domestic violence" in other contexts.  

                                                                                                                                                                  



                          In Williams v. State, 151 P.3d 460 (Alaska App. 2006), this Court addressed  

                                                                                                                                                       



a constitutional challenge to a bail statute, AS 12.30.027(b), that prohibited all persons  

                                                                                                                                                           



charged with a crime of domestic violence from returning to the residence of the alleged  

                                                                                                                                                            



victim  before  trial -  regardless  of  the  circumstances  of  the  offense,  and  with  no  

                                                                                                                                                                   



opportunity for judicial modification of this restriction.                                                        We concluded that this bail  

                                                                                                                                                                  



statute was unconstitutional because, "[given] the broad definition of 'a crime involving  

                                                                                                                                                        



       6     Bingaman , 76 P.3d at 406.                          



                                                                                 - 8 -                                                                           2575
  


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

domestic violence,' there [was] a substantial risk that the statute [would] burden the                                                            

liberty interests of persons who pose no appreciable risk of future violence."                                                        7  



                       As we explained in  Williams,  

                                                                            



                         

                                   [It] is easy to imagine situations in which  the [bail]  

                                                                                                                        

                        condition would serve no legitimate governmental purpose.  

                                                                                                                                  

                       For instance, if a mother had an accident while driving with  

                                                                                                                         

                       her       infant       daughter           and       was        charged          with       reckless  

                                                                                                                

                        endangerment or assault for that offense, the court would be  

                                                                                                                             

                        obliged to prohibit the mother from returning to the residence  

                                                                                                                 

                        she  had  shared  with  her  daughter.                                 Or,   if   Williams's  

                                                                                                             

                       nineteen-year-old  daughter,  who  was  living  at  home  and  

                                                                                                                          

                        attending college during this time, had recklessly burned her  

                                                                                                                           

                       parents'  front  porch  and  been  charged  with  criminally  

                                                                                                              

                       negligent burning for that offense, the court would be obliged  

                                                                                                                     

                       to  bar  her  from  returning  home  for  the  duration  of  her  

                                                                                                                          

                       pre-trial release.  

                                                     

                                   .   .   .  

                                          



                                   As  the  above  examples  illustrate,  under  Alaska's  

                                                                                                                 

                        far-reaching definition of domestic violence, probable cause  

                                                                                                                       

                       to  believe  a  person  has  committed  a  domestic  violence  

                                                                                                                 

                        offense cannot ... be equated with probable cause to believe  

                                                                                                                     

                       that the person poses an ongoing risk to the alleged victim's  

                                                                                                                   

                        safety.  

                                     



 Williams, 151 P.3d at 467-68.  

                                                       



                        Similarly, in Cooper v. District Court, 133 P.3d 692 (Alaska App. 2006),  

                                                                                                                                             



we rejected the argument that whenever a defendant is convicted of a "crime involving  

                                                                                                                                        



domestic violence", the sentencing judge should order the defendant to attend "batterer's  

                                                                                                                                      



intervention treatment".  We noted that even though the phrase "domestic violence" is  

                                                                                                                                                     



normally understood to mean  an assault committed by one domestic partner against  

                                                                                                                                            



      7     Williams, 151 P.3d at 467.                    



                                                                        - 9 -                                                                   2575
  


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

another, this phrase is defined in AS 18.66.990 "in a wide-ranging way, quite divorced                                                 



                                                  8  

from its everyday meaning".                                           

                                                     We then concluded:  



                         

                                                                                                                

                                   Because the definition of "crime involving domestic  

                                                                                                                     

                       violence" is so expansive - because it encompasses many  

                                                                                                                         

                       situations that have nothing to do  with  an assault by one  

                                                                                                                      

                       domestic partner against another - there will be many cases  

                                                                                                                            

                       in which, even though the defendant's crime may qualify as  

                                                                                                                            

                       a "crime involving domestic violence", it makes no sense to  

                                                                                                          

                       require  the  defendant   to  undergo  batterer's  intervention  

                                           

                       treatment.  



                                     

Cooper, 133 P.3d at 707.  



                                                                                             

           Application of these principles to aggravator (c)(18)(A)  



                                                                                                                                          

                       With these prior decisions in mind, we return to Tofelogo's case.  



                                                                                                                                      

                       As we explained toward the beginning of this opinion, Tofelogo stipulated  



                                                                                                                                                

that the facts of his case fell within the literal wording of aggravator (c)(18)(A).   His  



                                                                                                                                         

crime (criminally negligent homicide) is one of the "offenses against the person" defined  



                                                                                                                                             

in AS 11.41, and the victim of his offense was "a member of the same social unit made  



                                                                                                               

up of those living together in the same dwelling as [Tofelogo]".  



                                                                                                                                           

                       In Pickard v. State, 965 P.2d 755, 761 (Alaska App. 1998), this  Court  



                                                                         

described the social policy underlying this aggravator:  



                         

                                                                                                                      

                                   Both  the   Alaska  Legislature  and  this  court  have  

                                                                                                                   

                       recognized  that  domestic  violence  ...  represents  a  serious  

                                                                                                                           

                       danger  to  its  victims  and  a  significant  harm  to  society  at  

                       large.  



      8     Cooper, 133 P.3d at 707.                    



                                                                      -  10 -                                                                 2575
  


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

                                                                                   Under   AS   12.55.155(c)(18)(A),   a   felony   assault   is  

                                                        aggravated   if   it   was   committed   against   the   defendant's  

                                                        spouse, the defendant's former spouse, or any other member                                                                                                                                                           

                                                        of the defendant's household.                                                                                                  By enacting this aggravating                                            

                                                        factor, the legislature has declared that felony assaults against                                                                                                                                                         

                                                        spouses and former spouses are to be considered atypically                                                                                                                                                    

                                                        serious (all else being equal).                                                                                        



                                                        Thus,   the   underlying rationale                                                                                                of   aggravator   (c)(18)(A)   is   to   authorize  



courts to impose more severe sentences on defendants whose relationship to their victim                                                                                                                                                                                                                                                     



makes the crime more blameworthy.                                                                                                                         But as was true of the statutes and court rules in                                                                                                                                                 



 Carpentino,  Bingaman,   Williams, and                                                                                                                            Cooper, the wording of aggravator (c)(18)(A)                                                                                                           



exceeds this underlying rationale.                                                                                                        



                                                       By its terms, aggravator (c)(18)(A) applies whenever a defendant commits                                                                                                                                                                                                   



one of the crimes defined in AS 11.41 and the victim of the crime is "a spouse" or "a                                                                                                                                                                                                                                                                      



former spouse" of the defendant, or the victim is "a member of the social unit made up                                                                                                                                                                                                                                                                    



of those living together in the same dwelling as the defendant".                                                                                                                                                                                                  Interpreted literally, this                                                         



aggravator would apply to a defendant who was convicted of felony assault for causing                                                                                                                                                                                                                                                 



a traffic accident that resulted in injuries to other                                                                                                                                                          people   and, by chance, one of the                                                                                                     



people   injured   in   this   accident   was   the   defendant's   former   spouse,   or   was   another  



                                                                                                                                                                                                                9  

resident of the defendant's dormitory or barracks.                                                                                                                                                                  



                                                        In such cases, the rationale behind aggravator (c)(18)(A) does not apply -  

                                                                                                                                                                                                                                                                                                                                                           



because the identity of  the victim and the victim's relationship to the defendant have  

                                                                                                                                                                                                                                                                                                                                                



essentially  no  bearing  on  the  blameworthiness  of  the  defendant's  conduct  or  the  

                                                                                                                                                                                                                                                                                                                                                      



defendant's degree of dangerousness.  

                                                                                                                                                              



              9             See  AS 11.41.220(a)(1)(B).                                                                                    



                                                                                                                                                                        -  11 -                                                                                                                                                                      2575
  


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

                       As   this   Court noted in                Bates v. State          , 258 P.3d 851, 862 (Alaska App.                   



2011),   the "hallmark" of domestic violence is conduct whose purpose is "to coerce,                                                   



control,   punish,   intimidate,   or   exact    revenge   within   the   context   of   an   intimate  



                        10  

relationship."                                                                                                                                    

                             Thus, the category of crimes "involving domestic violence" defined in  



                                                                                                                                   

AS 18.66.990(3) and (5),  as  well as the category of crimes covered by aggravator  



                                                                                                                                       

(c)(18)(A), are all implicitly premised on the assumptions that the defendant's conduct  



                                                                                                                                               

was directed at the victim, and that the specified relationship between the defendant and  



                                                                                                                                           

the victim provided a motivation for the crime, or that this relationship made the victim  



                                                                                                                                           

more vulnerable, or that this relationship was otherwise a significant contributing factor  



                       

in the crime.  



                                                                                                                                             

                       Those assumptions do not apply to Tofelogo's case.   Accordingly, even  



                                                                                                                                                

though Tofelogo's case falls within the literal wording of aggravator (c)(18)(A),  the  



                                                                                                                                               

rationale of this  aggravator does not apply to the facts of Tofelogo's case,  and the  



                                                                                                                                                 

sentencing judge should not have given the aggravator any weight.   Tofelogo must be  



                         

re-sentenced.  



            Conclusion  



                                                                                                                                     

                       We affirm the superior court's rejection of Tofelogo's proposed mitigator,  



                                                                                                                                   

but we hold that the superior court committed error by giving any weight to aggravator  



                                                                                                                                   

(c)(18)(A).  We therefore direct the superior court to re-sentence Tofelogo.  



                                                                                                                                                

                       Given the fact that Tofelogo must be re-sentenced, we need not reach his  



                                                                                                                                        

argument that the sentencing judge gave unjustified weight to Tofelogo's prior criminal  



                                                                                                                               

history.  Tofelogo's attorney can address this matter at the re-sentencing.  



      10    Quoting  People v. Disher                 , 224 P.3d 254, 258 (Colo. 2010).                        



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