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Celesty Noel Farmer v State of Alaska (8/30/2019) ap-2654

Celesty Noel Farmer v State of Alaska (8/30/2019) ap-2654

                                                                         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  



CELESTY NOEL FARMER,  

                                                                                              Court of Appeals No. A-12097
  

                                                  Appellant,                           Trial Court Nos. 1CR-13-00184 CR &
  

                                                                                                         1CR-13-00186 CR
  

                                     v.  

                                                                                                              O P I N I O N  

STATE OF ALASKA,  



                                                  Appellee.                                    No. 2654 - August 30, 2019  



                         Appeal from the Superior Court, First Judicial District, Craig,  

                                                  

                         David V. George, Judge.  



                         Appearances:  David A. Graham, Graham Law Firm, Sitka, for  

                                                                                                     

                         the Appellant. Donald Soderstrom, Assistant Attorney General,  

                                                                                                                           

                         Office of Criminal Appeals, Anchorage, and James E. Cantor,  

                                           

                         Acting Attorney General, Juneau, for the Appellee.  



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

                                                                             

                         Judges.  



                         Judge WOLLENBERG.  



                         Celesty Noel Farmer was                        charged in three cases basedon                           separateincidents   



occurring in 2013.                   These three cases were joined for trial.                        



                         In one of the cases, the State charged Farmer with third-degree criminal                                                  



mischief for causing damage in an amount of $500 or more to the fishing boat of her ex-                                                                      


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

                                                             1  

husband, Donald Yates.                                          This charge was based on Farmer's act of cutting the ropes to                                                                                         



Yates's boat while it was tied up at the dock in Klawock on Prince of Wales Island.                                                                                                                                           



Farmer conceded that she set the boat adrift, but she argued that her conduct was justified                                                                                                            



on the ground of necessity.                                           The trial court refused to instruct the jury on the defense of                                                                                  



necessity.   



                                  The jury acquitted Farmer of third-degree criminal mischief but convicted                                                                                        



her of the lesser included charge of fourth-degree criminal mischief for causing damage                                                                                                                 



                                                                                                         2  

to the boat in an amount of $50 or more.                                                                                                                                                              

                                                                                                              The jury also acquitted Farmer of criminal  



                                                                                  

trespass in connection with this incident.  



                                                                                                                                                                                                                      

                                  In the second and third cases, the State charged Farmer with two counts of  



                                                                                                                                                                                                               

driving while her license was revoked (DWLR) - one for an incident in February 2013  



                                                                                                                                                                                                    

and another for an incident in July 2013.  The jury acquitted Farmer of the February  



                                                                                                                                                                                                           

2013 charge, but the jury convicted Farmer of the July 2013 charge and a related charge  



                                                                                                                                                                                     3  

                                                                                                                                                                                         

                                                                                                                                                                   

of violating her conditions of release from the February DWLR charge. 



                                                                                                                                                                                                             

                                  On appeal, Farmer raises several challenges to her convictions.   First,  



                                                                                                                                                                                                                      

Farmer argues that the trial court erred in declining to instruct the jury on the defense of  



                                                                                                                                                                                                                   

necessity in relation to the criminal mischief charge.  Second, Farmer argues that the  



                                                                                                                                                                                                                     

court should have dismissed the July DWLR and the related violating conditions of  



                                                                                                                                                                                                                   

release charge because of prosecutorial misconduct.  Finally, Farmer contends that the  



                                                                                                                                                                                                                              

prosecutor misrepresented the evidence to the jury during his rebuttal closing argument.  



                                                                                                               

We reject these claims and affirm Farmer's convictions.  



         1       Former AS 11.46.482(a)(1) (2013).  



         2       Former AS 11.46.484(a)(1) (2013).  



         3       Former  AS  28.15.291(a)(1)  (2013)  and  former  AS  11.56.757(a),  (b)(2)   (2013),  



respectively.  



                                                                                                        - 2 -                                                                                                   2654
  


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

                          Farmer also challenges the restitution judgment issued in connection with                                                            



her criminal mischief conviction.                                  At sentencing, the trial court ordered Farmer, as a                                               



                                                                                                                                                                     4  

condition of her probation, to pay restitution of $9,797 for setting the boat adrift.                                                                                    



                                                                                                                                                           

Farmer argues that the court lacked the legal authority to impose any restitution in excess  



                                                                                                                                                                         

of $499.99 - the upper end of the damages range for fourth-degree criminal mischief.  



                                                                                                                                                       

We conclude that the judge had the authority to order restitution for the actual damages  



                                                                           

or losses caused by Farmer's criminal conduct.  



                                       

             Background facts  



                                                                                                                                                       

                          Farmer  and  Yates  had  a  long-term  relationship  and  had  two  children  



                                                                                                                                                                         

together.             They  were  married  in  2009,  after  having  been  together  for  nine  years.  



                                                                                                                                                                         

However, in 2011, Farmer filed for divorce, and by fall 2012, the divorce was final.  



                                                                                                                                                        

                          Yates was a commercial fisherman who owned a forty-two-foot wooden  



                                                                                         

troller that Yates often lived aboard.  As part of the divorce settlement, Yates retained  



                                                                             

the title to, and possession of, the boat.  



                                                                                                                                                      

                          According  to  Farmer's  testimony,  Yates  was  physically  and  verbally  



                                                                                                                                                               

abusive to her for years.  Farmer testified that in January 2013, the year following their  



                                                                                                                                                               

divorce, Yates assaulted her, and she reported the incident to the police. Yates fled onto  



                                                                                                                                                         

his boat, and he eluded the police for the next ten days. Yates eventually turned himself  



                                                                                                                                                       

in, pleaded guilty to fourth-degree assault, and was released from custody  in  early  



                                

February 2013.  



                          Farmer testified that, after Yates's release, Yates moved next door to her  



                                                                                                                                                  

despite the existence of a no-contact order, and he began contacting her and threatening  



                                                                                                                                                                   

her with harm if she turned him in again.  A few days later, Yates asked Farmer if he  



      4      AS 12.55.100(a)(2)(B).  



                                                                               -  3 -                                                                         2654
  


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

could take his son fishing after school.  Farmer told him he could not, which led to an  

                                                                                                                       



argument.  

                 



                    Farmer testified that, later that day, Yates sent her a text message saying  

                                                                                                                          



that he was taking his son.  Farmer asserted that she only had five minutes to get to the  

                                                                                                                                



bus stop where her son would be dropped off from school, but she did not have a driver's  

                                                                                                                        



license.  She said that she tried reaching a friend and calling a taxi, to no avail.  She  

                                                                                                                              



testified that she felt she had no other option than to drive in order to prevent Yates from  

                                                                                                                             



taking her son.   (This conduct was the basis for the first DWLR charge.   The jury  

                                                                                                                             



credited Farmer's necessity defense and acquitted her of this charge.)  

                                                                                                           



                    A few months later, on the night of April 16, 2013, Farmer went onto  

                                                                                                                             



Yates's boat to retrieve a laptop that Yates had borrowed from Farmer's mother. Farmer  

                                                                                                                          



testified at trial that Yates gave her permission to board the boat to get the laptop.  Yates  

                                                                                                                            



denied giving Farmer permission to board the boat, but he conceded that he had never  

                                                        



prohibited Farmer from going aboard the boat.  

                                                                            



                    Farmer stopped by the boat when she knew Yates was at a friend's house.  

                                                                                                                                     



As Farmer was getting off the boat with the laptop, she used a knife to cut the boat loose  

                                                                                                                            



from the dock.  Farmer testified at trial that she had "made a huge mistake" and "wasn't  

                                                                                                                        



thinking at [the] time" when she cut the ropes.   She testified that Yates had made  

                                                                                                                           



comments in the past about using the boat to hurt people who cared about her.  Farmer  

                                                                                                                         



testified that she thought Yates would be returning to the boat shortly that evening and  

                                                                                                                               



that cutting the ropes "would have been a point, you know?  Just leave me alone, you  

                                                                                                                              



know?"  

              



                    However, Yates did not return to the boat that evening, and it floated away  

                                                                                                                            



from the dock and grounded on a nearby island.   Yates and many members of the  

                                                                                                                               



community worked for two days to pull the boat off the beach during a high tide.  

                                                                                                                             



                                                              - 4 -                                                          2654
  


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

                                                     Based on the April incident involving                                                                                                                           Yates's boat, the State charged                                                                  



Farmer with third-degree criminal mischief and first-degree criminal trespass.                                                                                                                                                                                                                                      The jury   



acquitted Farmer of both charges but found her guilty of the lesser included offense of                                                                                                                                                                                                                                                        



fourth-degree criminal mischief.                                                                                                   



                                                     The two other charges for which Farmer was convicted - the July 2013  



DWLR and violating conditions of release charges - were based on a separate incident.                                                                                                                                                                                                                                                                       



Yates was not involved in this incident.                                                                                                                     (We discuss the facts and procedural history of                                                                                                                                   



these charges later in this opinion.)                                                                                                        



                                                     At sentencing, the court ordered Farmer to pay $9,797 in restitution in                                                                                                                                                                                                                   



connection with the criminal mischief conviction.                                                                                                                                                         



                          Farmer's claim that the trial court erred in refusing to give a necessity                                                                                                                                                                                     

                           instruction as to the criminal mischief charge                                                                                                           



                                                     Prior   to   trial,   Farmer  gave   notice   of   her   intent   to   assert   a   defense   of  



necessity in relation to the criminal mischief charge.                                                                                                                                                          The trial court declined to instruct                                                                      



the jury on this defense.                                                                         Farmer appeals the trial court's ruling.                                                                                                                      



                                                     A defendant is entitled to a jury instruction on the defense of necessity if                                                                                                                                                              



the defendant presents "some evidence" that:                                                                                                                                       (1) the charged offense was committed to                                                                                                                     



prevent a significant evil; (2) there was no adequate alternative to the charged offense;                                                                                                                                                                                                                              



and (3) the foreseeable harm from the unlawful conduct was not disproportionate to the                                                                                                                                                                                                                                                      



                                                                                                                                           5 

harm avoided by breaking the law.                                                                                                                                                                                                                                                                                                          

                                                                                                                                                 "Some evidence" is "evidence that, viewed in the  



              5            State v. Garrison, 171 P.3d 91, 94-95 (Alaska 2007); McGee v. State , 162 P.3d 1251,  



 1261 (Alaska 2007); Seibold v. State, 959 P.2d 780, 782 (Alaska App. 1998).  While the  

                                                                                                                                                                                                                                                                                                                  

necessity defense is normally an affirmative defense to be proved by the defendant, Alaska's  

                                                                                                                                                                                                                                                                

criminal mischief statute is written in such a way that, when a defendant presents some  

                                                                                                                                                                                                                                                       

evidence to sufficiently raise the defense in a criminal mischief case, the State bears the  

                                                                                                                                                                                                                                                         

                                                                                                                                                                                                                                                                                                      (continued...)  



                                                                                                                                                                   -  5 -                                                                                                                                                              2654
  


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

light most favorable to the defendant, would allow a reasonable juror to find in the                                                              



                                                                                         6  

defendant's favor on each element of the defense."                                          



                                                                                                                                             

                       In the trial court, Farmer argued that the statements she made to the police  



                                                                                                                                   

after she set the boat adrift supported her request for a necessity instruction. Specifically,  



                                                                                                                                          

she pointed to statements that she was scared for her physical safety based on Yates's  



                                                                                                                                    

threats and his past actions. She contended that she believed, based on prior experience,  



                                                                                                                                                    

that the police could not protect her.   She asserted that she cut the mooring lines to  



                                                                                                                                                 

prevent Yates from following through on his threat to use the boat to stalk her or to hurt  



                                                                                                                                                   

her or others, and to prevent him from using the boat to again avoid apprehension by the  



                                                                                                                                                    

police.  She argued that she reasonably perceived that any potential property damage to  



                                                                                                                                                    

the boat by setting it adrift was not disproportionate to the bodily harm she sought to  



                

prevent.  



                                                                                                                              

                       The trial court declined to instruct the jury on the defense of necessity in  



                                                                                                                                             

relation to the criminal mischief charge, finding that Farmer had failed to present "some  



                                                                                                                                                  

evidence" on the second and third elements of the defense. The court acknowledged that  



                                                                                                                                             

Farmer had presented evidence that she was truly scared of Yates.  But the court found  



                                                                                                                                                  

no evidence suggesting that Farmer faced imminent harm, or that she needed to cut the  



                                                                                                                                               

boat loose that night to avert imminent harm. The court noted that cutting the boat loose  



                                                                                                                                                 

would not have made Yates any less dangerous to Farmer.  The court also found that  



                                                                                                                        

Farmer had a number of legal alternatives to cutting the boat loose, including going to  



      5     (...continued)  



ultimate burden of proving beyond a reasonable doubt that the defendant had no reasonable  

                                 

ground for believing his actions were necessary.  McGee , 162 P.3d at 1260-61.  



      6    McGee , 162 P.3d at 1261.  



                                                                       -  6 -                                                                  2654
  


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

                                                                                                                                  7  

the   police   or   obtaining   a   domestic   violence   restraining   order.     Finally,   the   court  



concluded that any future threat of harm to Farmer was outweighed by the risk that                                                                                   



cutting the boat loose in the middle of the night could cause harm to the boat, as well as                                                                               



                                                     8  

to other boats and boaters.                             



                           After independently reviewing the record in this case, we agree with the  

                                                                                                                                                                       



trial court that Farmer did not present evidence sufficient to entitle her to a necessity  

                                                                                                                                                          

instruction on the criminal mischief charge.9  

                                                                                           



                                                                                                                                                      

             Farmer's claim that the trial court should have dismissed the July 2013  

             charges  



                                                                                                                                                                   

                           Farmer argues that the trial court should have dismissed the July 2013  



                                                                                                                                                                      

DWLR  charge  (and  the  related  violating  conditions  of  release  charge)  after  the  



                                                                                                                                                                           

prosecutor told the jurors during his opening statement that they would hear from a  



                                                                                                                                                                       

particular witness, but the prosecutor later excused the witness from her subpoena.  



                                                                                                                                                           

                           The July DWLR charge against Farmer was based on Farmer's allegedly  



                                                                                                                                                                      

driving with her friend, Cathia Demmert.  Alaska State Trooper John Ryan testified that  



                                                                                                                                                                           

he observed Farmer driving past him in the opposite direction while they were in a  



                                                                                                                                                                       

construction zone.  Ryan noticed Farmer because she was waving her hand outside the  



                                                                                                                                                                         

driver's side window and honking her horn in a friendly manner to get the attention of  



       7     See Seibold, 959 P.2d at 783; Gerlach v. State, 699 P.2d 358, 363 (Alaska App. 1985).  



       8     See Garrison, 171 P.3d at 97 (holding that the third prong of the necessity defense                                                               



requires consideration of the reasonablyforeseeable harm that could result from the unlawful                                                          

conduct, not just the actual harm that did or did not result).   



       9  

                                       

             Id. at 95 ("If the evidence, when viewed in the light most favorable to the defendant,  

                                                                             

fails to support one or more elements of a proposed defense, the defendant is not entitled to  

                                                                                                 

a jury instruction on that defense."   (citing Ha v. State, 892 P.2d 184, 190 (Alaska App.  

 1995))).  



                                                                                  -  7 -                                                                            2654
  


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

the flagger.                              Ryan was aware that Farmer's license was revoked, and he turned his                                                                                                                                                             



vehicle around to follow her.                                                                  



                                           Ryan stopped the vehicle about a mile down the road.                                                                                                                              By that time, he                               



found Demmert in the driver's seat, and Farmer in the passenger seat. But Ryan noticed                                                                                                                                                                       



that the driver's seat was positioned so far forward that the steering wheel was pressing                                                                                                                                                                



against Demmert, thus suggesting that Demmert would have found it difficult, if not                                                                                                                                                                                      



impossible, to drive the vehicle.                                                                       



                                           Farmer denied that she had been driving the vehicle. She told Ryan that she                                                                                                                                                    



had been leaning over Demmert in the driver's seat to wave, and that Demmert had been                                                                                                                                                                                



leaning into the back seat to buckle in a child.                                                                                                     



                                           Ryan reported that Demmert admitted to switching places with Farmer                                                                                                                                              



                                                                                            10  

before Ryan reached the car.                                                                       



                                                                                                                                                                                                                                                                  

                                           Prior totrial,Farmer'sattorney expressedconcernthattheprosecutor might  



                                                                                                                                                                                                                                                       

refer to Demmert's assertion but not call Demmert to testify, thus potentially violating  



                                                                                                     11  

                                                                                                                                                                                                                                                                     

Farmer's right to confrontation.                                                                             The prosecutor told the court that Demmert had been  



                                                                                                                                                                                                                                                                            

subpoenaed and that he expected her to testify.  He said that if she did not appear, he  



                                                                                                                           

would ask for a warrant for her arrest.  



                                                                                                                                                                                                                                                                       

                                           In his opening statement later that day, the prosecutor told the jury that  



                                                                                                                                                                                                                                                                                12  

                                                                                                                                                                                                                                                                                       

Demmert would testify that she switched places with Farmer before the traffic stop. 



           10         The parties disputed whether Demmert actually made this admission.                                                                                                                                                        Outside the  



presence of the jury, the judge found that the tape recording of the incident gave rise to a                                                                                                                                                                             

"reasonable inference" that Demmert made the admission.  



           11        U.S. Const. amend. VI; Alaska Const. art. I,  11; see also Crawford v. Washington,  



541 U.S. 36 (2004).  



           12  

                                                                                                                                 

                      The prosecutor actually mistakenly switched Demmert's and Farmer's names, but his  

                                                                                                                                                                   

intent was clear, and neither party suggests the jury would have misunderstood what the  

                                                                                                                                                                                                                                            (continued...)  



                                                                                                                                   -  8 -                                                                                                                             2654
  


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

But then, on the next day of trial (which was two days later), the prosecutor announced                                                                                                                                                                                                                                                                                                                                                                       



that Demmert was in Anchorage getting treatment - which the prosecutor himself had                                                                                                                                                                                                                                                                                                                                                                                                                        



 approved earlier in the month - and would not be in court to testify.                                                                                                                                                                                                                                                                                                                                                          The prosecutor  



told the court that he did not realize until the previous morning that Demmert was in                                                                                                                                                                                                                                                                                                                                                                                                                             



Anchorage, and he explained that the State had decided not to pay the expense of flying                                                                                                                                                                                                                                                                                                                                                                                                     



her in from Anchorage, so she had been excused from her subpoena.                                                                                                                                                                                                                                                                                                                                                         



                                                                               Farmer's attorney reminded the court that he had raised this issue before                                                                                                                                                                                                                                                                                                                                 



trial to avoid precisely this situation.                                                                                                                                                                                He maintained that the jury had been "tainted" by                                                                                                                                                                                                                                       



the prosecutor's opening statement referring to Demmert's anticipated testimony, and he                                                                                                                                                                                                                                                                                                                                                                                                                           



 argued that the unavailability of Demmert for cross-examination violated his client's                                                                                                                                                                                                                                                                                                                                                                                            



right to confrontation.                                                                                                              (He also suggested that Demmert would not testify as the State                                                                                                                                                                                                                                                                        



had anticipated.                                                                                 In response to this latter argument, the trial court noted that Farmer                                                                                                                                                                                                                                                                                                            



herself could subpoena Demmert, if she wished.)                                                                                                                                                                                                                                                      



                                                                               Farmer's   attorney   argued   that,   even  though   the   prosecutor's   opening  



 statement was not evidence, it was impossible to "unring the bell."                                                                                                                                                                                                                                                                                                                                     However, Farmer's   



 attorney refused to request a mistrial.                                                                                                                                                                                       



                                                                               Instead, Farmer's attorney argued that dismissal of the July 2013 DWLR                                                                                                                                                                                                                                                                                                                              



 charge   was  the   only   appropriate   remedy.     The   court   ruled   that   there   was   no   legal  



 authority   to   dismiss   the   case;   the   court   also   concluded   that   there   was   no   manifest  



necessity to order a mistrial. The court found that a "self-help remedy" is "usually more                                                                                                                                                                                                                                                                                                                                                                                                        



than sufficient" in this type of situation - that is, Farmer's attorney could ask the jury                                                                                                                                                                                                                                                                                                                                                                                                             



to infer that the State did not present Demmert to testify because her testimony would                                                                                                                                                                                                                                                                                                                                                                                                   



 actually   have   favored   Farmer.     (Farmer's   attorney   did   exactly   that   in   his   closing  



 argument.)   



                     12                 (...continued)  



prosecutor meant.  



                                                                                                                                                                                                                                                   -  9 -                                                                                                                                                                                                                                              2654
  


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

                                           On appeal, Farmer does not challenge the court's                                                                                                                          denial of a mistrial.                                                



Instead, she argues that the court abused its discretion by denying her motion to dismiss.                                                                                                                                                                                                



But rather than renew her claim that the prosecutor's statements violated her right to                                                                                                                                                                                          



confrontation, Farmer now argues that the prosecutor's actions - in informing the jury                                                                                                                                                                                    



of Demmert's alleged statement and then excusing her from her subpoena - constituted                                                                                                                                                                



misconduct entitling her to a dismissal.                                                                                        



                                           Farmer   acknowledges   that   the   trial   judge   made   no   findings   about   the  



prosecutor's good or bad faith, but she argues that "the facts of this case speak clearly   



for themselves."                                          While one might have concerns about the prosecutor's unilateral                                                                                                                              



decision to release Demmert fromher subpoena given the parties' discussion of this issue                                                                                                                                                                                



before trial and the prosecutor's remarks in his opening statement, Farmer's attorney                                                                                                                                                                       



never asked the court to rule on a claim of prosecutorial misconduct, nor did he request                                                                                                                                                                        



factual findings that would allow this Court to evaluate such a claim.                                                                                                                                                                      Under these   

circumstances, we conclude that this claim is not preserved for appeal.                                                                                                                                                             13  



                                                                                                                                                                                                                                                                               

                                           Moreover, on this record, we cannot say that the trial court abused its  



                                                                                                                                                                                                                                                                

discretion in denying an outright dismissal of the DWLR charge.  As a general matter,  



                                                                                                                                                                                                                                                                                      14  

                                                                                                                                                                                                                                                                                          

the proper remedy in this situation would either be a curative instruction or a mistrial. 



                                                                                                                                                                                                                                                    

But instead of asking for a mistrial, Farmer's attorney availed himself of the "self-help"  



           13         See, e.g., Randall v. State, 583 P.2d 196, 200-01 (Alaska 1978).  



           14         See Muller v. State, 478 P.2d 822, 827 (Alaska 1971); see also Worley v. State, 2013  



WL 1933108, at *3-4 (Alaska App. May 8, 2013) (unpublished) (upholding judge's decision  

                                                                                                                            

to deny a mistrial where the prosecutor stated in opening that a witness would testify, but the  

                                                                                                                                                                                               

witness later became unavailable, and noting that while convictions have been reversed on  

that ground, such cases are the exception to the normal presumption that jurors will obey the  

                                                                                                                                                                                                                                                                              

cautionary and limiting instructions of the trial judge (citing Lau v. State , 175 P.3d 659, 663  

                                                                                                                                                                                                                                

(Alaska App. 2008); Dailey v. State , 65 P.3d 891, 897 (Alaska App. 2003))).  



                                                                                                                                  -  10 -                                                                                                                                2654
  


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

remedy suggested by the judge.                                The attorney told the jury, "I don't think Ms. Demmert                                 



                                                                                                                           15  

was ever going to come in here and tell you anything like that."                                                                



                                                                                                                                                                    

                          For these reasons, we affirm the trial court's denial of Farmer's motion to  



dismiss.  



             Farmer's   claim   that   plain   error   occurred   when   the   prosecutor  

                                                                                                                                   

             misrepresented the documentary evidence during closing argument  

                                                                                                                             



                          Farmer  raises  a  second  prosecutorial  misconduct  claim  related  to  the  

                                                                                                                                                                 



prosecutor's use of phone records to impeach Farmer's credibility.  Before discussing  

                                                                                                                                                   



this claim, some additional background is necessary.  

                                                                                  



                          As we mentioned earlier, Yates pleaded guilty to fourth-degree assault  

                                                                                                                                                          



against Farmer in January 2013 and spent a short time in jail.   Upon his release in  

                                                                                                                                                                   



February 2013, Yates was under an order not to contact Farmer.  Farmer testified that,  

                                                                                                                                                               



later that day, she received a text from Yates from his new phone.  Farmer did not know  

                                                                                                                                                             



it was Yates at first because he was texting from a new number.  She responded and  

                                                                                                                                                                



learned that the text messages were coming from Yates.  The phone records admitted at  

                                                                                                                                                                    



trial corroborated Farmer's testimony as to how these events transpired.  

                                                                                                                                             



                          However, during the prosecutor's cross-examination of Farmer, and in the  

                                                                                                                                                                  



prosecutor's closing argument, the prosecutor took the position that Farmer, not Yates,  

                                                                                                                                                           



had initiated the contact and sent the first message, and that the phone records did not  

                                                                                                                                                                 



show a text message from Yates prior to any message sent by Farmer. Farmer's attorney  

                                                                                                                                                        



did not object to this argument.  

                                                               



       15    As part of her prejudice argument, Farmer argues that the prosecutor capitalized on   



his own alleged misconduct in a portion of his closing argument. We disagree with Farmer's                             

characterization  of   this  argument  and  its  purported  correlation  with  the  prosecutor's  

statement in opening.  Moreover, Farmer did not renew her motion to dismiss at that time.  



                                                                              -  11 -                                                                         2654
  


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

                           On appeal, Farmer argues that the prosecutor's comments constituted plain                                                                  



            16  

 error.          



                                                                                                                                                                      

                           AlthoughFarmer contends thattheprosecutor'scommentsconstitutedplain  



                                                                                                                                                             

 error, Farmer does not explain why the trial court had an obvious obligation to intervene  



                                                                                                                                                               

under  these  circumstances.                                     The  attorneys'  respective  examinations  of  Farmer  



                                                                                                                                                                     

 demonstrated that the parties disputed the meaning of the phone records.  The trial court  



                                                                                                                                                                

 could not have recognized the error without being asked to directly inspect the records  



themselves.  



                                                                                                                                                                      

                           Even if Farmer had objected, there is no reason to believe she would have  



                                                                                                                                                                          

been  entitled  to  a  mistrial.                             The  judge  instructed  the  jury  that  it  was  their  job  to  



                                                                                                                                                                       

 "determine what the evidence was, and what conclusions should be drawn from that  



                                                                                                                                                                 

 evidence," that the arguments of counsel are not evidence, and that the jury should  



                                                                                                                                                                       

 disregard any argument that departed from the evidence.   We presume that the jury  



                                                    17  

                                                                                                                                                        

                                                          Farmer also discussed the prosecutor's error in her own  

 followed this instruction. 



                                       

 closing argument.  



                                                                                                                                                            

                           Finally, even assuming that the prosecutor's argument was an error that  



                                                                                                                                                                        

would have been obvious to any competent judge, Farmer was not prejudiced by this  



                                                                                                                         

 error.  The jury acquitted Farmer of the DWLR charge that was based on Farmer's act  



                                                                                                                                                           

 of driving to pick up her son that occurred just days after the text messages at issue in  



                                                                                                                                                                 

this claim. In order for the jury to have acquitted Farmer, they would have had to believe  



       16     See Adams v. State, 261 P.3d 758, 764 (Alaska 2011) (to show plain error of non-                                                                        



 constitutional magnitude, a defendant must show that (1) the failure to object was not the                       

result of intelligent waiver or a tactical reason not to object, (2) the error was obvious, (3) the   

 error affected substantial rights, and (4) the error was prejudicial).  



       17     See Coffin v. State, 425 P.3d 172, 175 (Alaska App. 2018) ("As a general matter,  



                                                                                                              

jurors are presumed to follow the instructions that they are given[.]" (citing  Whiteaker v.  

State, 808 P.2d 270, 277 (Alaska App. 1991))).  



                                                                                  -  12 -                                                                             2654
  


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

Farmer's necessity defense:  that she was scared that Yates was going to take their son  

                                                                                                                                



and had no choice but to drive.   The jury apparently found Farmer's fear credible,  

                                                                                                                       



notwithstanding any potential misunderstanding about the phone records.  The fact that  

                                                                                                                                



thejury convicted Farmer onthefourth-degreecriminalmischiefcharge, based on events  

                                                                                                                            



that happened two months after the February text messages, does not persuade us that  

                                                                                                                               



she was prejudiced by the prosecutor's argument.  

                                                              



                    We therefore find no plain error arising from this claim.  

                                                                                                             



          Facts underlying Farmer's restitution claim  

                                                                      



                    As we mentioned earlier, Farmer was charged with third-degree criminal  

                                                                                                                        



mischief for cutting the ropes to Yates's boat while it was tied up at the dock.  Farmer  

                                                                                                 



admitted that she committed the conduct charged, but she disputed whether her conduct  

                                                                                                                         



had caused $500 or more in damage. The jury accepted her position and found her guilty  

                                                                                                                            



of the lesser included offense of fourth-degree criminal mischief (i.e., damage of at least  

                                                                                                                              



$50).  

           



                    Following trial, the State filed a request for $61,620 in restitution.  This  

                                                                                                                              



amount was in large part based on an estimate provided by a shipwright for the cost of  

                                                                                                                                  



repairing Yates's boat.  It also included reimbursement for the cost of the oil booms that  

                                                                                                                                



the City of Craig deployed to prevent oil contamination from the April 2013 grounding,  

                                                                                                                     



fees to haul out Yates's boat for an estimate of damages and repairs, and lost fishing  

                                                                                                                          



income stemming from Yates's inability to fish in the immediate aftermath of the April  

                                                                                                                             



2013 grounding.  

                             



                    Farmer's attorney moved to limit restitution. Farmer's attorney argued that  

                                                                                                                                



the trial court lacked the legal authority to award more than $499.99 in damages because  

                                                                                                                         



the jury had found Farmer not guilty of third-degree criminal mischief (damage in an  

                                                                                                                                 



                                                              -  13 -                                                         2654
  


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

amount of $500 or more) and had convicted her only of fourth-degree criminal mischief                                                                                                                              



(damage in an amount of at least $50).                                                                    



                                    The trial court rejected this argument, ruling as a matter of law that it was                                                                                                              



not barred from awarding restitution of $500 or more.  The court noted that "a finding                                                                                                             



of not guilty is not an affirmative factual finding.  It's a finding that the State failed to                   



prove something; it failed to prove something beyond a reasonable doubt."                                                                                                                                    The court   



reasoned that the jury had found only that the evidence was insufficient to establish                                                                                                                             



beyond a reasonable doubt that Farmer caused damage of $500 or more. The court noted                                                                                                                                       



that,   in   determining   restitution,   a   court  applies   the   lower   "preponderance   of   the  



                                                      18  

evidence" standard.                                        



                                                                                                                                                                                                                             

                                    The trial court then held a restitution hearing and received testimony from  



                                                                                                                                                                                                                                     

Yates, Farmer, the shipwright who provided the estimate, and a former crew member of  



                                                                                                                                                                                                                                 

Yates's.  After this hearing, the trial court ordered Farmer to pay, as a condition of her  



                                                                                                                                                                                                                                    

probation, restitution of $9,797.  This amount was broken down into four categories of  



expenses:  



                                                                                                                                                                                    

                                    Keel shoe and cooler tubes                                                                $1,800 (labor costs only)  

                                                                                             

                                    Haul-out and fuel to haul-outs                                                            $1,577  

                                               

                                    Oil booms                                                                                 $420  

                                                                                                                                                   

                                    Lost fishing income                                                                       $6,000  



                                                                                                                                                                                                                                  

                                    The court did not award restitution for the bulk of the State's request for  



                                                                                                                                                                                                                             

repairs to Yates's boat because the court found that the boat was in poor condition prior  



                                                                                                                                                                                                                          

to the April 2013 grounding.  (Yates had previously run his boat aground while under  



                                                                                                                                                                                                        

power, and there was evidence that the boat had been in need of significant maintenance  



                                               

for many years.)  



         18       See AS 12.55.025(i); Noffsinger v. State, 850 P.2d 647, 650 (Alaska App. 1993).  



                                                                                                             -  14 -                                                                                                          2654
  


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

                                                               The court concluded, however, that the damage to the keel shoe and keel                                                                                                                                                                                                               



cooler tubes was caused by the2013                                                                                                                                    grounding, noting                                                                    that"[t]herewas ample testimony                                                                              



the   keel   directly   contacted   the   beach   when  the   boat   grounded."     This   finding   was  



consistent with the shipwright's testimony that the damage to the keel likely occurred                                                                                                                                                                                                                                                                                     



"within a year or maybe two" due to a grounding not under power.                                                                                                                                                                                                                                                                       (The grounding   



caused by Farmer occurred in April 2013, and the restitution hearing was held in August                                                                                                                                                                                                                                                                                             



2014.)    Based on the shipwright's estimate, the court awarded $1,800 in labor costs                                                                                                                                                                                                                                                                                                        



attributable to the repair of the keel shoe and keel cooler tubes, but the court did not                                                                                                                                                                                                                                                                                                             



order costs for materials since the estimate had not itemized the materials' cost.                                                                                                                                                                                                                                                                                                     



                               Farmer's claim that the trial court was legally barred from awarding                                                                                                                                                                                                                                    

                               restitution of more than $499.99                                                                                  



                                                               On appeal, Farmer does not challenge the trial court's findings that Farmer                                                                                                                                                                                                                                          



was responsible for causing the damages and losses for which the trial court awarded                                                                                                                                                                                                                                                                                         



restitution.   Rather, Farmer argues that no matter what the real damages are, the trial                                                                                                                                                                                                                                                                                                          



court   lacked   the   legal   authority   to   impose   restitution   greater   than   $499.99   -   the  



maximum amount of damages specified in the fourth-degree criminal mischief statute.                                                                                                                                                                                                                                                                                                                                     



In particular, Farmer argues that restitution above this amount is precluded by both                                                                                                                                                                                                                                                                                                           



AS 12.55.100(a)(2)(B) and the double jeopardy clause.                                                                                                                                                                              



                                                               We   first   address   Farmer's   statutory   argument.     Under   AS   12.55.- 



 100(a)(2)(B),   a   court   may   order   a   defendant,   as   a   condition   of   probation,   to   pay  



restitution "for actual damages or loss caused by the crime for which conviction was                                                                                                                                                                                                                                                                                                              



                          19  

had."                                                                                                                                                                                                                                                                                                                                                                     

                                      Farmer argues that since she was convicted of fourth-degree criminal mischief,  



                                                                                                                                                                                                                                                                                                                                                     

the "crime for which conviction was had" capped restitution at $499.99.  



                19             AS 12.55.100(a)(2)(B).  



                                                                                                                                                                                              -  15 -                                                                                                                                                                                             2654
  


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

                                                                                                                                       20  

                     Farmer's statutory argument is contrary to our decision in                                    Fee v. State       .    



                                                                                                                                       

Fee pleaded no contest to one count of criminal mischief for damaging the property of  



                                                                                       21  

                                                                                                                              

another in an amount of $50 or more but less than $500.                                    The sentencing judge ordered  



                                                                                     22  

                                                                                                                                    

                                                                                          Like Farmer, Fee argued that  

Fee to pay restitution in an amount exceeding $500. 



                                                                                                                                    

AS  12.55.100(a)  precluded  the  court  from  ordering  restitution  that  exceeded  the  



                                                                                                                                  

maximum amount of damages specified in the applicable criminal mischief statute since  



                                                                                                                                     

(according to Fee) such an amount exceeded the "actual damages or loss caused by the  



                                                            23  

                                                    

crime for which conviction was had." 



                                                                                                                                   

                     We rejected Fee's argument.  We held that under AS 12.55.100(a) (and  



                                                                                                                                       

additionally, under AS 12.55.045, the statute permitting the imposition of restitution as  



                                                                                                              

a direct component of a defendant's sentence), the sentencing judge could require Fee  



                                                                                                                                 

to pay restitution for the "actual damage suffered by the victim as a result of Fee's  



                                                                                                                          

crime," even if this amount exceeded the maximum damages specified in the applicable  



                                        24  

                                                                                                                                        

                                             We further concluded that "[i]n determining whether as a  

criminal mischief statute. 



                                                                                                                           

matter of fact, the defendant committed the higher crime, the doctrine of collateral  

estoppel has no part to play."25  We stated that "[w]here the defendant is charged with  



     20   Fee v. State, 656 P.2d 1202 (Alaska App. 1982).
  



     21   Id. at 1203-04.
  



     22   Id. at 1203.
  



     23   Id. at 1204.
  



     24   Id. at 1205-06.
  



     25   Id. at 1205 (citing Huckaby v. State, 632 P.2d 975, 976 n.2 (Alaska App. 1981)).
  



                                                                -  16 -                                                           2654
  


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

the lesser offense but the evidence establishes that he committed the greater offense, a     

restitutionary award based on the actual loss to the victim is appropriate."                                                   26  



                                                                                                                                              

                       Farmer argues that Fee  is distinguishable from her case because a jury  



                                                                                                                                                  

actually acquitted her of the greater offense.  But we have not limited this rationale to  



                                                                                                                                                   

plea situations.  For instance, in Harris v. State, we explained that while restitution is  



                                                                                                                                         

limited to "the specific crime for which the defendant was convicted," a judge is "free  



                                                                                                                                                  

to determine the actual loss resulting from that crime, independent of the jury verdict, so  



                                                                                                                       27  

                                                                                                     

long as the trial court's award was based upon substantial evidence." 



                       Farmer's argument conflates the requirement that restitution be based on  



                                                                                                                                              

the defendant's criminal conduct - i.e., the requirement that restitution be awarded only  



                                                                                                                                                

for damages caused by the defendant - with the amount of damages that defined the  



                                     28  

                                                                                                                                

                                          The conduct for which Farmer was convicted was intentionally  

degree of her offense. 



                                                                                                                                                   

damaging Yates's property; the amount of damages that could be proved beyond a  



                                                                                                                    29  

                                                                                                                         

                                                                                                          

reasonable doubt merely determined the classification of her crime. 



                                                                                                                                             

                       Additionally, while the crime of criminal mischief is defined by the value  



                                                                                                                                                

of damage to property, both statutes governing restitution - AS 12.55.100(a)(2)(B) and  



                                                                                                                                             

AS 12.55.045 - define a broader class of harm. Under these statutes, a sentencing court  



      26   Id.  



      27   Harris v. State, 678 P.2d 397, 408 (Alaska App. 1984),                                           rev'd   on   other grounds,  



Stephan v. State          , 711 P.2d 1156 (Alaska 1985); see also Salvato v. State, 814 P.2d 741, 744  

(Alaska App. 1991) (noting the authority holding that "the trial court is not bound by jury                                                    

verdicts in determining restitution awards").  



      28    See Campbell v. State, 5 S.W.3d 693, 699 (Tex. Crim. App. 1999) (en banc) (holding  



that  limiting  restitution  to  the  property-value  range  reflected  in  a  verdict  "confuses  the  

                                                                                                         

property-value range of a particular grade of theft with the requirement that restitution have  

                                                                          

a factual basis in the record").  



      29    Compare former AS 11.46.482(d) (2013) with former AS 11.46.484(b) (2013).  



                                                                      -  17 -                                                                2654
  


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

may order restitution for "actual damages or loss" -                                         i.e., those losses directly and            



                                                                      30  

indirectly caused by a defendant's conduct.                                                                                           

                                                                           Thus, while a restitution award will likely  



                                                                                                                                    

include the property damage found by a jury in a criminal mischief case, it is not limited  



                              

to that amount of damage.  



                                                                                                                                 

                      Moreover, the criminal statutes and the restitution statutes serve different  



                31  

purposes.                                                                                                                      

                    The purpose of the criminal statutes - and a criminal trial - is to determine  



                                                                                                                                         

an individual's culpability. The legislature has made clear, however, that a primary aim  



                                                                                                                                 

of restitution is to compensate victims for the losses caused by a defendant's criminal  



      32  

act.                                                                                                                       

            Precluding  full restitution  for  the actual damages caused  by  the defendant's  



                                                            

criminal conduct would thwart this aim.  



                                                                                                                                           

                      In support of her statutory argument, Farmer relies almost exclusively on  



                                                                                                33  

                                                                                                    We disagree with Farmer  

the Alaska Supreme Court's decision in Hagberg v. State. 



                                                                                                                                         

that  Hagberg  involved  "precisely  the  same"  issue  as  this  case.                                           In  Hagberg,  the  



      30   See Welsh v. State, 314 P.3d 566, 567-68 (Alaska App. 2013) (construing restitution  



                                                                                                                                 

statutes  to  authorize  courts  to  impose  restitution  for  actual  damages  or  loss);  see  also  

                                                                                                                     

AS 12.55.045(d) (permitting restitution for loss of income); Riley v. State, 60 P.3d 204, 223  

                                                                                                                                  

(Alaska App. 2002) (upholding restitution, in an assault case, for airfare for victim to return  

home to parents' residence to recover); Reece v. State, 881 P.2d 1135, 1138 (Alaska App.  

                                                                              

1994) (upholding restitution, in sexual abuse of a minor case, for victim's future costs of  

counseling).  



      31  

                                                       

           See  Campbell,  5  S.W.3d  at  698  (discussing  the  distinction  between  criminal  

responsibility for conduct and the judge's later restitution award).  



      32   See AS 12.55.045(a)(1) (requiring courts determining restitution to take into account  



the "public policy that favors requiring criminals to compensate for damages and injury,  

                                                                                     

including loss of income, to their victims"); Ortiz v. State, 173 P.3d 430, 432-33 (Alaska  

                             

App.  2007)  (holding  that  restitution  both  compensates  a  victim  for  harm  done  by  a  

                                                                                                                                            

defendant's criminal act and also has penal implications).  



      33   Hagberg v. State, 606 P.2d 385 (Alaska 1980).  



                                                                  -  18 -                                                              2654
  


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

defendant was acquitted of grand larceny but convicted of petty larceny - a fact pattern                                             



                                         34  

similar to Farmer's case.                                                                                                               

                                             But the trial court awarded restitution within the value range  



                                                                                                                                    

for petty larceny, and therefore, the supreme court had no occasion to consider whether  



                                                                                                                                     

an award of restitution that exceeded the upper end of the value range for petty larceny  



                                             35  

                                                                                                                                

                                                 Rather, the question on appeal was whether the restitution  

was statutorily permissible. 



                                                                                                                                         

award was based on a reasonable interpretation of the jury's verdict, since there were  



                                                                                                                       36  

                                                                                                                            

multiple ways to interpret the jury's verdict under the facts of that case. 



                                                                                                                                       

                      As we noted earlier, Farmer does not contest the factual basis for the jury's  



                                                                                                                                          

verdict. That is, Farmer does not contest that her actions caused damage to the keel shoe  



                                                                                                                                 

and cooler tubes of Yates's boat, or that her actions resulted in the other losses attributed  



                                                          

to her in the restitution judgment.  



                                                                                                                                        

                      We  therefore  hold  that  the  trial  court  was  not  statutorily  barred  from  



                                                      

awarding more than $499.99 in restitution.  



                                                                                                                                          

                      We next address Farmer's constitutional challenge.   Farmer argues that  



                                                                                                                                       

restitution is a form of punishment, and thus, restitution in excess of the damages found  



                                                                                                                                           

by the jury punishes Farmer for a crime for which she was acquitted and violates her  



                                                                                                                               

double jeopardy rights. We have certainly recognized the punitive aspects of restitution,  



                                                                                                                                            

concluding  that  restitution  is  a  "hybrid  remedy"  that  both  "further[s]  the  aim  of  



                                                                                                37  

                                                                                                      

compensating the victim" and has "penal characteristics." 



                                                                                                                                           

                      Butas thetrial court recognized, Farmer's juryfound only that theStatehad  



                                                                                                                                        

failed to establish beyond a reasonable doubt that Farmer had caused damages of $500  



      34   Id. at 386.  



      35   Id.  



      36   Id. at 386-87.  



      37   Ortiz, 173 P.3d at 433.  



                                                                   -  19 -                                                               2654
  


----------------------- Page 20-----------------------

or more. The jury made no finding as to what level of damages the State could prove by                                                                                                                                                                                                                             



a preponderance of the evidence.                                                                                         And as we discussed earlier, the jury was never asked                                                                                                                          



to  consider   what   additional   losses,   aside   from direct                                                                                                                                           damages   to   Yates's   property,  



Farmer's conduct may have caused.                                                                                                     



                                                 In several analogous contexts, we                                                                                        have held thatthedoublejeopardy clause                                                                                      



does not bar a court from relying on conduct for which the defendant has been acquitted.                                                                                                                                                                                                                                        



For example, we permit sentencing judges to rely on conduct for which a defendant was                                                                                                                                                                                                                         



acquitted in enhancing a defendant's term of imprisonment - if the judge concludes,                                                                                                                                                                                                  



based on substantial evidence, that the defendant actually committed the crime for which                                                                                                                                                                                                               



he was acquitted:          



                                                 The reason why double jeopardy and due process are not                                                                                                                                                        

                                                 implicated when a person who has been acquitted of certain                                                                                                                                        

                                                 conduct is sentenced on the basis that the conduct occurred,                                                                                                                            

                                                 rests on the differing burdens of proof.                                                                                                       In order to convict a                                                  

                                                 defendant of an offense, the state must prove guilt beyond a                                                                                                                                                          

                                                 reasonable   doubt.     In   contrast,   a   trial   court   imposing  

                                                 sentence, may rely on any information that is verified in the                                                                                                                                                  

                                                 record.[38]  



                                                                                                                                                                                   

                                                 Given the higher standard of proof at a criminal trial, Alaska courts have  



                                                                                                                                                                                                                                                                                                         

also consistently held that the prohibition on double jeopardy does not preclude a civil  



                                                                                                                                                                                                                                                                                                                 

suit for damages based on the same conduct for which a defendant was acquitted or for  



                                                                                                                                                                                                  39  

                                                                                                                                                                                                                                                                                                      

which restitution was not ordered in the criminal case.                                                                                                                                                    And the double jeopardy clause  



            38          Brakes v. State, 796 P.2d 1368, 1372 (Alaska App. 1990); see also Huckaby v. State,  



632 P.2d 975, 976 n.2 (Alaska App. 1981) (noting that a jury's decision (or lack of decision)  

                                                                                                                                                                                                                                                                                             

does not collaterally estop the trial judge in making factual findings at sentencing that are  

                                                                          

inconsistent with the jury's findings:  "The difference in burden of proof makes collateral  

                                                                                                                                                                                                                                                                   

estoppel unavailable.").  



            39          See Wyatt v. Wyatt, 65 P.3d 825, 831 & n.21 (Alaska 2003); Reyes v. State, 978 P.2d  



                                                                                                                                                                                                                                                                              (continued...)  



                                                                                                                                                    - 20 -                                                                                                                                                   2654
  


----------------------- Page 21-----------------------

does not preclude a court from finding, by a preponderance of the evidence, that a                                              



defendant   has   violated   probation   based   on   conduct   for  which  the   defendant   was  



                                 40  

previously acquitted.                  



                                                                                                                                 41  

                                                                                                                                      In  

                                                                                                                 

                     Farmer likens her case to Howell v. State, but that case is inapposite. 



                                                                                                                                     

Howell, the defendant was charged with felony driving under the influence.  Before the  



                                                                                                                            

second portion of a bifurcated trial, the trial court granted a partial judgment of acquittal,  



                                                                                                                                

ruling  that  the  State's  proposed  evidence  was  insufficient  to  establish  the  "prior  



                                   42  

                                                                                                                                    

convictions" element.                   The State challenged the court's decision on appeal, and this  



                                                                                               

Court held that whatever the merits of the State's position, the double jeopardy clause  



                                                                                                                          

barred the State from re-litigating Howell's guilt of felony  driving under the influence,  



                                                   43  

                                     

given the judgment of acquittal. 



                                                                                                                                    

                     Howell  is distinguishable from Farmer's case.  In Howell, the State was  



                                                                                                                                      

asking for an opportunity to re-litigate the felony classification of Howell's conduct -  



                                                                                                                                    

a felony of which Howell had already been acquitted.  Here, there is no dispute that  



                                                                                                                                     

Farmer remains convicted of a misdemeanor. Rather, the State sought restitution for the  



                                                                                                        

entirety of damages or losses stemming from Farmer's conduct.  



                                                                                                                          

                     We note that other courts considering this issue have upheld restitution  



                                                                                                                                     

awards that exceeded  the value limits for  the defendant's crime - even  when  the  



     39    (...continued)  



635, 641 (Alaska App. 1999).  



     40    See, e.g., Portalla v. State            , 2006 WL 3691697, at *1 (Alaska App. Dec. 13, 2006)  



(unpublished) (citing Andrew v. State , 835 P.2d 1251, 1254 (Alaska App. 1992); A.S. v.  

State, 761 P.2d 122, 124 (Alaska App. 1988)).  



     41    Howell v. State, 115 P.3d 587 (Alaska App. 2005).  



     42    Id. at 589, 592.  



     43    Id. at 592.  



                                                                - 21 -                                                            2654
  


----------------------- Page 22-----------------------

defendant was acquitted of a higher-value crime - based in part on the lower burden of                                                          

proof at sentencing.              44  



                                                                                                                                       

                       We similarly conclude that the trial court did not violate Farmer's double  



                                                                                                                                     

jeopardy rightswhen it determined, by a preponderance of the evidence, that her criminal  



                                                                                                                                             

conduct resulted in actual damages of more than $500.  (Farmer does not argue that she  



                                                                                                                                           45 

                                                                                                                                                 

was entitled to have a jury - as opposed to the judge - make this determination.                                                             )  



      44    See, e.g., Ex Parte Stutts, 897 So.2d 431, 433-34 (Ala. 2004) (upholding restitution  



                                                                                                                                   

award exceeding the criminal mischief limit despite the defendant's acquittal of the higher  

                                                                               

degree of offense, noting the different burdens of proof); State v. Fancher, 818 P.2d 251, 252  

                                                                                                                                 

(Ariz. App. 1991) ("Because restitution is neither punishment nor an element of the offense,  

                                                                           

we conclude that a trial court has the authority to order restitution in full for damages caused  

                                            

by the criminal offense."); State v. Johnson, 711 P.2d 1295, 1298 (Haw. 1985) (holding that  

                                                                                                                             

regardless of monetary limits in the convicted crime, "[t]he total amount of the restitution  

                                                                                                                                           

ordered by the trial court should be the actual loss or damage incurred by the victim"); State  

                                                                                                                

v. Terpstra, 546 N.W.2d 280, 283 (Minn. 1996) (holding that "a guilty verdict within specific  

                                           

monetary parameters in a criminal case does not control the total amount of restitution that  

                                                                                                                   

can be ordered for that offense" due to the lesser standard of proof and noting that any  

                                                                                     

damages not proven beyond a reasonable doubt by the State at trial could be awarded in a  

civil action anyway); Campbell v. State, 5 S.W.3d 693, 698 (Tex. Crim. App. 1999) (en banc)  

                                         

("Conviction by the jury for a certain property-value does not restrict the restitution amount  

                                                                                                              

that the trial judge might find to be the justified amount."); State v. Selland, 772 P.2d 534,  

                                                                                                                    

 535 (Wash. App. 1989) (restitution is not limited to the damages limit of the crime for which  

                                                                                                                                              

the defendant was convicted, but only to the act for which the defendant was convicted). But  

see Peralta v. State, 596 So.2d 1220, 1220 (Fla. Dist. App. 1992) (restitution ordered as to  

                                                                                 

direct losses may not exceed the value charged by the offense; however, indirect losses may  

                                                                                             

result in higher restitution imposed); People v. Chapin, 597 N.E.2d 1250, 1255 (Ill. App.  

                                                                                                                               

 1992) (defendant could only be ordered to make restitution in amount of theft for which he  

was convicted).  



      45    See,  e.g.,  Hester  v.  United  States,  139  S.Ct.  509,  509-11  (2019)  (Gorsuch,  J.,  

                                                                        

dissenting from the denial of certiorari), cited in Her v. State, 2019 WL 3318138, at *4 &  

                                                                                                                      

n.18 (Alaska App. July 24, 2019) (unpublished).  



                                                                    - 22 -                                                                 2654
  


----------------------- Page 23-----------------------

                                                      We therefore reject Farmer's claim that the trial court was legally barred                                                                                                                                                                                                



 from awarding restitution that exceeded the maximum amount of damages specified in                                                                                                                                                                                                                                                                



the fourth-degree criminal mischief statute.                                                                                                                                    



                          A note on defense counsel's potential conflict of interest                                                                                                                                                                          



                                                      Although we affirm the judgments in Farmer's cases, we would be remiss                                                                                                                                                                                                     



 if we failed to comment on a potential conflict of interest that we identified in our review                                                                                                                                                                                                                                   



 of the record.                                          



                                                      As we discussed earlier, as part of Farmer's defense, Farmer's attorney                                                                                                                                                                                            



 sought to establish Yates's history of violence against Farmer and in particular, Farmer's                                                                                                                                                                                                                            



 fear that Yates might use his boat to hurt her or to evade apprehension by the police.                                                                                                                                                                                                                                                                        



During the trial, it became clear that Farmer's attorney had previously represented Yates                                                                                                                                                                                                                                           



 in a 2011 case in which he was convicted of assaulting Farmer. This prior representation                                                                                                                                                                                                         

potentially created a conflict of interest for defense counsel in representing Farmer.                                                                                                                                                                                                                                                         46  



                                                                                                                                                                                                                                                                                                             

                                                     Neither party has briefed this issue, and there has not been an evidentiary  



                                                                                                                                                                                                   47  

                                                                                                                                                                   

hearing to further explore the potential conflict                                                                                                                                                                                                                                                                    

                                                                                                                                                                                                             and whether it adversely impacted  



              46           See Alaska R. Prof. Conduct 1.7(a)(2) & Alaska R. Prof. Conduct 1.9(a), (c);                                                                                                                                                                                                                      see also  



Richard B. v. State, 71 P.3d 811, 818-20 (Alaska 2003) ("Where the previous representation  

 and current litigation cover the same or substantially related matters and the current client's   

interests are materially adverse to those of the former client, the lawyer shall not represent                                                                       

the current client unless the former client consents." (citing Alaska R. Prof. Conduct 1.9(a))).  



              47           See  Lane  v.  State,  1994  WL  16196204,  at  *3  (Alaska  App.  Mar.  23,  1994)  

                                                                   

 (unpublished) (suggesting that in order to demonstrate that an attorney's past representation  

                                                                                                                                                                                                                                           

 of a former client is inconsistent with the attorney's representation of the current client, the  

                                                                                                                                                                                                                                                                          

 defendant  must  show  either:                                                                                           (1)  that  the  earlier  representation  was  "substantially  and  

                                                                                                                                                                                                                                                                                                                                            

particularly related  to  counsel's  later  representation  of  defendant,"  or  (2)  that  "counsel  

                                                                                                                                                                                                                                                                           

 actually learned particular confidential information during the prior representation of the  

                                                                                                                                                                                                                                                                                                                                              

witness that was relevant to the defendant's later case" (quoting Smith v. White, 815 F.2d  

                                                                                                                                                                                                                                                                                                                                         

                                                                                                                                                                                                                                                                                                        (continued...)  



                                                                                                                                                                  - 23 -                                                                                                                                                                  2654
  


----------------------- Page 24-----------------------

                                 48  

Farmer's case.                        (We note that Farmer is privately represented by the same attorney on                                                                                   



appeal.)    If Farmer wishes to pursue this issue, she may file a post-conviction relief                                                                                               



action within the time limits set out in AS 12.72.020.                                          



               Conclusion  



                              We AFFIRM the judgments of the superior court.  

                                                                                                                                  



        47     (...continued)  



 1401, 1405-06 (11th Cir. 1987))).  



        48     See Newby v. State, 967 P.2d 1008, 1014 (Alaska App. 1998) (holding that to establish  



an   ineffective   assistance   of   counsel   claim   based   on   a   conflict   (other   than   joint  

                                                                                                       

representation), a defendant must generally show (1) an actual conflict of interest, and (2)  

                                                                                                                                                                  

that this conflicting interest adversely affected the defense attorney's representation of the  

                                                                                                                                                                                             

defendant).  



                                                                                           - 24 -                                                                                        2654
  

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