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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Bowers v. State (6/2/00) sp-5280

Bowers v. State (6/2/00) sp-5280

     Notice:  This opinion is subject to correction before publication in
the Pacific Reporter.  Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.



             THE SUPREME COURT OF THE STATE OF ALASKA
                                 


TIMOTHY BOWERS,               )    Supreme Court No. S-8825
                              )    
          Petitioner,         )    Court of Appeals No. A-6556   
                              )    Superior Court No.       
     v.                       )    4FA-S96-2456 CR     
                              )
STATE OF ALASKA,              )    O P I N I O N            
                              )
          Respondent.         )    [No. 5280 - June 2, 2000]          
______________________________)



          Petition for Hearing from the Court of Appeals
of the State of Alaska, on appeal from the Superior Court of the
State of Alaska, Fourth Judicial District, Fairbanks, 
                     Mary E. Greene, Judge. 


          Appearances: Marcia E. Holland, Assistant
Public Defender, Fairbanks, and Barbara K. Brink, Public Defender,
Anchorage, for Petitioner.  John A. Scukanec, Assistant Attorney
General, Office of Special Prosecutions and Appeals, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau, for Respondent.  


          Before: Matthews, Chief Justice, Eastaugh,
          Fabe, Bryner, and Carpeneti, Justices.  


          EASTAUGH, Justice.


I.   INTRODUCTION
          Near the shores of Deadman Lake, fifty miles west of
Fairbanks, two intoxicated neighbors sharing a rustic hot tub had
an argument that became violent.  William Peacock testified that
Timothy Bowers pointed a .44 magnum revolver at him and pulled the
trigger.  When the revolver "clicked" but did not fire, Bowers
fetched a .22 caliber rifle, chambered a round, and fired into the
air.  Bowers was indicted for assault by means of "a firearm."  The
jury, as permitted by a supplemental instruction given after it
began deliberating, convicted Bowers of assault for using the
rifle.  We reject Bowers's argument that the state constructively
(and impermissibly) amended the indictment to charge use of the
rifle.  But because the state, to prove an assault, relied only on
the revolver, and not the rifle, it was error to give the jury the
supplemental instruction.  We therefore reverse and remand.
II.  FACTS AND PROCEEDINGS
          In August 1996 Timothy Bowers was building a cabin for
his parents on Deadman Lake.  William Peacock and his wife, Marie,
lived in a cabin about 300 yards away. 
          Bowers and William Peacock spent the afternoon of August
7 hauling supplies and drinking whiskey and beer.  At Bowers's
invitation, the Peacocks joined Bowers that evening in his hot tub.
After an hour or two, Marie Peacock returned home while Bowers and
William Peacock remained in the hot tub.  The principals' versions
of subsequent events diverge dramatically.
          Peacock testified that Bowers suddenly got out of the hot
tub, entered his nearby cabin, returned with a .44 magnum revolver,
and pointed it at him.  Bowers pulled the trigger, but the revolver
did not fire, possibly because it was not loaded.  Peacock
testified that he saw Bowers reenter the cabin and, through the
doorway, watched Bowers pick up a .22 caliber rifle and chamber a
round; at that point Peacock went over the side of the hot tub and
ran for his three-wheeler.  During Peacock's flight, he heard
several shots fired from the rifle. 
          Bowers's attorney argued at trial that Peacock's story
was simply "a drunken lie."  Instead, Bowers testified that as he
and Peacock were discussing their dogs, Peacock got steadily
angrier, threatened to shoot Bowers's dog, and eventually punched
Bowers, giving him a bloody nose.  Bowers responded by "flipping"
Peacock out of the hot tub.  Peacock then climbed onto the deck,
swearing at Bowers and threatening to kill him.  Bowers
photographed Peacock, shoved him off the deck, and told him to go
home.  
          The grand jury indicted Bowers for third-degree assault.
[Fn. 1] The indictment charged Bowers with recklessly placing
Peacock in fear of imminent serious physical injury "by means of a
dangerous instrument, a firearm."  The indictment did not
specifically mention either the revolver or the rifle.  The
prosecutor also charged Bowers by information with fourth-degree
misconduct involving weapons for possessing the revolver while he
was intoxicated. [Fn. 2]  The information specifically referred to
the revolver.
          During its deliberations, and following the close of
evidence and the final arguments, the jury sent a note asking
whether the assault charge was based exclusively on the .44
revolver or included the .22 rifle.  The trial court, over Bowers's
objection, instructed the jury that it could find Bowers guilty of
assault based on Bowers's use of either weapon.  To insure
unanimity, the trial court instructed the jurors that before they
could return a guilty verdict "all of you must agree that the
assault occurred by means of a .44 cal. handgun or all of you must
agree that the assault occurred by means of a .22 rifle."  The jury
then found Bowers guilty of assaulting Peacock and specified on the
verdict form that the rifle was the "weapon in question."  The jury
acquitted Bowers of the charge of weapons misconduct for possessing
the revolver while intoxicated, possibly because it decided the
revolver was never loaded. 
          The court of appeals affirmed Bowers's conviction. [Fn.
3]  It held that the indictment was general enough to cover an
assault charge based on either weapon and that Bowers suffered no
prejudice because his defense was a complete denial of assaultive
conduct.  We granted Bowers's petition for hearing and ordered full
briefing. 
III. DISCUSSION
          Bowers was convicted of assaulting Peacock with the
rifle.  Bowers argues that the state never pursued this theory of
assault before the grand jury or the trial jury.  He first contends
that allowing the trial jury to consider his use of the rifle
effectively allowed the state to amend the indictment.
Alternatively, he asserts that he did not have notice of the charge
on which he was convicted.  Either way, he contends that he had no
notice that he was to defend against a charge relating to the
rifle.  The state responds that Bowers was on notice from the grand
jury record that the assault charge included his conduct with the
rifle; it contends that Bowers is simply arguing that the jury is
bound by the theory emphasized by the state at trial.
     A.   Standard of Review
          A claim that the indictment was amended is a question of
law subject to de novo review. [Fn. 4]  "Alaska Rule of Criminal
Procedure 7(e) permits the amendment of indictments so long as the
amendment does not charge an additional or different offense, and
the defendant is not prejudiced." [Fn. 5]  A conviction for an
offense different from the one charged is a fatal variance and
requires reversal. [Fn. 6]  Bowers's argument that the state's
conduct at trial gave him no notice that it was claiming that
Bowers assaulted Peacock with the rifle is a question of law that
we review de novo. [Fn. 7]
     B.   Was the Indictment Constructively Amended?
          Indictments furnish accuseds with descriptions of the
charges against them so they can prepare a defense and claim double
jeopardy if they are again charged with the same offense. [Fn. 8] 
An indictment's language, read in conjunction with the grand jury
record, determines the charge for which the defendant is indicted.
[Fn. 9] 
          Bowers argues that the indictment charged assault with "a
firearm" and therefore only covered his alleged conduct with the
revolver.  He also contends that the fourth-degree misconduct
charge, which referred specifically to the revolver, "led [him] to
believe" that conduct involving the revolver was the basis for both
charges.  Therefore, he claims, allowing the jury to consider his
conduct with the rifle as an alternative basis for conviction in
effect allowed the state to amend the indictment.  The state
asserts that the indictment was broad enough to cover both acts and
thus was never effectively amended. 
          In essence, Bowers argues that the indictment's language
did not give him notice of the full charge against him.  In Lupro
v. State [Fn. 10] we made it clear that "[i]t is not necessary that
such [notice] be contained in the indictment if it was provided in
some other form." [Fn. 11]  We also recognized in Lupro that
indictments should be construed liberally. [Fn. 12] 
          Bowers acknowledges that the grand jury transcript shows
that the grand jury heard evidence about his use of the rifle, [Fn.
13] but he argues that this evidence was only presented to
corroborate his state of mind when he pointed the revolver at
Peacock. [Fn. 14]  We disagree.  The transcript reveals that the
grand jury heard evidence permitting a conclusion that Bowers
engaged in assaultive conduct with both weapons.  Peacock's grand
jury testimony discussed Bowers's use of both weapons.  Peacock's
wife testified before the grand jury that she heard shots from a
.22 caliber rifle.  Asked about a Polaroid photograph of the rifle,
Peacock responded that it was the firearm Bowers "pulled the bolt
back on and was evidently shooting at me with."  Finally, a grand
juror asked the prosecutor if firing at a person would be first-
degree assault.  The prosecutor answered that shooting to scare
someone would be third-degree assault.  Given the grand jury
evidence that Bowers had fired the rifle, but not the revolver,
during the hot-tub incident, the grand juror's question and the
prosecutor's answer contextually could have referred only to the
rifle.  Thus, the grand jury transcript actually revealed to Bowers
that use of the rifle was a potential basis for the third-degree
assault charge, and was not necessarily merely corroborating
evidence of an assault with the revolver. 
          This is not a case like Bell v. State, [Fn. 15] where the
grand jury was specifically instructed to take certain evidence
into account for limited purposes.  In Bell, the complainant
testified before the grand jury that the defendant severely beat
her on two occasions several days apart. [Fn. 16]  The grand jury
was specifically instructed to take evidence of the first incident
into account only to the extent that it showed motive and state of
mind for the second incident. [Fn. 17]  The resulting indictment
only charged a single assault, yet the trial court permitted the
jury to use both incidents as alternative bases for conviction
despite the limiting instruction given to the grand jury. [Fn. 18] 
Because of this, the court of appeals reversed. [Fn. 19]  In
Bowers's case, the grand jury received no such limiting instruction
regarding the evidentiary purpose of Bowers's use of the rifle.
          We therefore conclude that the court did not permit the
state to constructively amend the indictment. 
     C.   Did the State at Trial Disavow Reliance on the Rifle as
          a Basis for Conviction?

          We next consider whether the state at trial affirmatively
disavowed any reliance on the rifle as a basis for conviction on
the assault charge.  The state can disavow reliance on a theory of
guilt, even if the indictment encompasses that charge. [Fn. 20] 
The question is whether the prosecution's conduct at trial created
a reasonable expectation that it was not claiming that Bowers's use
of the rifle, although technically within the scope of the
indictment, was a basis for conviction on the assault charge. [Fn.
21]
          Two court of appeals decisions addressed similar
circumstances.  The state urges us to follow Cheely v. State, [Fn.
22]  while Bowers urges us to follow Rollins v. State. [Fn. 23] 
          In Cheely, the defendant was indicted for stealing a
pickup truck from a dealer lot. [Fn. 24]  Cheely defended on the
ground that while the state had shown that he came into possession
of the truck knowing it was stolen, he did not physically take the
truck from the lot himself. [Fn. 25]  Cheely was convicted of
second-degree theft. [Fn. 26]  On appeal, he argued that it was
error to convict him on a theft-by-receiving theory when the state
had relied on a theft-by-asportation theory at trial. [Fn. 27]  The
court of appeals rejected this argument, noting that under Alaska's
theft statute, a person charged with theft is automatically on
notice that he or she may be convicted under different theories.
[Fn. 28] 
          In Rollins, the defendant was charged with third-degree
assault for recklessly placing a police officer in fear of imminent
serious physical injury by means of a dangerous instrument. [Fn.
29]  While the parties were formulating jury instructions, Rollins
withdrew a request for an instruction on the lesser-included
offense of fourth-degree assault and the state did not object. [Fn.
30]  The final jury instructions did not include any instructions
on the lesser-included offense. [Fn. 31]  But during deliberations,
in response to a question from the jury, the trial judge instructed
the jury on the lesser-included offense and the jury convicted
Rollins of the lesser offense. [Fn. 32]  Rollins argued on appeal
that he detrimentally relied on the trial court's willingness to
omit the lesser-included offense from the jury instructions. [Fn.
33]  The court of appeals agreed and rejected the state's argument
that Rollins should have anticipated that the jury would be
instructed on the lesser-included offense even after the court's
original instructions excluded reference to the charge. [Fn. 34]
          Both Rollins and Cheely claimed that the state presented
one theory at trial but that they were convicted on a different
theory.  And the original indictments in both cases covered both
theories.  In Rollins, as a result of the defendant's justifiable
reliance on the state's affirmative actions at trial, the defendant
believed the state was no longer pursuing a conviction based on a
particular theory.  The state took no such affirmative action in
Cheely, where the crime of theft automatically encompassed numerous
theories of guilt and the prosecutor at trial simply emphasized one
theory of theft over another.  
          Rollins provides the better analogy to Bowers's case. 
Here the state's actions created the same justifiable reliance as
the state's actions in Rollins.  The prosecutor here asserted in
his opening statement to the jury at the beginning of trial that
"we're here today because back on August 7th that man, Mr. Bowers,
pointed a gun at Mr. Peacock and pulled the trigger.  Fortunately,
the gun didn't go off."  That statement referred exclusively to the
revolver.  The prosecutor added that "the state will be asking you
to return a verdict of guilty against Mr. Bowers for . . . placing
Mr. Peacock in fear of imminent serious physical injury by pointing
that gun at him and pulling the trigger, [and] also misconduct
involving weapons in the fourth degree for possessing a firearm
while he was intoxicated."  (Emphasis added.)  The prosecutor thus
communicated his intention to rely on Bowers's use of one weapon --
the revolver -- as the basis for conviction on the assault charge.
[Fn. 35] 
          Events at trial reinforced this apparent intention.  The
prosecutor asked Peacock about his state of mind when Bowers
pointed the revolver at him in the hot tub.  Peacock responded that
he was "terrified."  Peacock then testified that he saw Bowers
chamber a round in the rifle.  But the prosecutor did not ask about
Peacock's state of mind when the rifle was chambered or when it was
fired.  Although Peacock's testimony suggested that he was still in
fear, the prosecutor never asked Peacock whether he was put in fear
by Bowers's conduct with the rifle.  The failure to pose specific
state-of-mind questions to expressly satisfy this necessary element
of any assault charge based on conduct with the rifle is
significant given the text of the indictment and the state's
opening argument.   
          The state's closing arguments to the jury reaffirmed the
state's intention to rely exclusively on the revolver to prove an
assault.  The prosecutor began his closing argument by asserting
that "[t]here's no doubt that on August 7 of this year Timothy
Bowers pointed a .44 magnum revolver at Mr. Peacock and pulled the
trigger."  The prosecutor concluded his opening argument with the
statement that "[Peacock] was in the hot tub when Mr. Bowers
pointed that gun at him and recklessly faced [sic] him in fear of
imminent serious physical injury."  These references are to the
revolver only, and not the rifle. 
          The state began its rebuttal argument to the jury by
stating that "[Peacock] knows the difference between a click of a
camera and a click of a .44 that's being pulled.  He was in the hot
tub when the gun was pulled but I don't see a picture of him in the
hot tub."  The state later argued that Peacock had testified that
"I was in the hot tub when he pointed the gun at me and pulled the
trigger."  The state closed by arguing that "[t]here isn't any
doubt . . . [t]hat on August 7th Timothy Bowers stood eight feet
from Mr. Peacock and went bang, except it didn't go bang, it went
click, fortunately, and then he went and grabbed a .22, a .22 he
told the troopers was full and when they found it the next morning
was empty.  At the same time he had that .44 in his hand he was
drunk . . . ."
          The prosecutor did refer in argument to Bowers's conduct
with the rifle, and to discharging the rifle.  But those comments
appear to have been made only to corroborate the testimony of the
prosecution witnesses and to attack Bowers's credibility and
account of events.  We think those comments cannot be fairly read
as an argument that Bowers assaulted Peacock with the rifle.
          We therefore agree with Bowers that the state's conduct
justifiably caused him to believe that he was only on trial for
committing an assault with the revolver.  The state was not simply
silent about a second possible theory of the offense.  Its opening
statement, its evidence, and its arguments affirmatively created a
reasonable expectation that the assault charge was based on use of
the revolver, not the rifle.  We hold that these acts effectively
disavowed reliance on the rifle to prove the assault charge.  We
have no reason to think that the state intended to misdirect
Bowers, but its conduct had that effect.  
          The state argues that its failure at trial to address use
of the rifle did not prejudice Bowers's defense.  Had the
supplemental instruction not been given, we would agree.  But 
after the close of evidence, after all arguments, and after
deliberations had begun, the jury was instructed that it could rely
on conduct with the rifle to find an assault.  The timing of the
instruction created a strong likelihood of prejudice.  
          To show that the error requires reversal, Bowers must
establish both how the timing of the instruction created a
potential for prejudice and specifically how the instruction
prejudiced his defense. [Fn. 36]  Bowers argues that giving the
instruction during deliberations prejudiced his defense because he
had no opportunity to defend against the state's alternate theory. 
Bowers further asserts that if he had been given notice of charges
relating to the rifle, he would have changed the focus of his
testimony and revised his arguments to the jury to present and
emphasize favorable evidence regarding that weapon.  There was
evidence that the rifle and some spent shell casings were about
forty feet from Bowers's cabin, rather than on or near the porch
where the hot tub was located; there was also evidence that Peacock
had initially told state troopers he had never seen Bowers with a
rifle.  This evidence supported Bowers's version of events and, if
emphasized, could have seriously undermined Peacock's credibility
with the jury. 
          But the state's trial conduct might have led Bowers
reasonably to believe that this evidence was relatively
unimportant.  And Bowers made a reasonable tactical choice not to
attempt to rebut a guilt theory that the state was not trying to
prove.  We assume that there were logical reasons not to challenge
the rifle evidence more forcefully, given its seemingly secondary
role in the case and given defense counsel's logical disinclination
to draw attention to the rifle as a possible basis for an assault
conviction.  Bowers therefore lost a valuable opportunity to
present a defense against any argument that he assaulted Peacock
with the rifle.  We accordingly conclude that the state's disavowal
prejudiced Bowers's ability to defend himself with respect to the
rifle.
          As an alternative basis for affirming Bowers's
conviction, the state argues that Bowers engaged in a single course
of assaultive conduct using both the revolver and the rifle.  In
other words, Bowers engaged in two discrete acts comprising a
single assault.  This might have been a plausible theory. [Fn. 37] 
But the trial court's supplemental instruction precluded the jury
from considering any such theory.  The instruction permitted the
jury to find an assault for use of either weapon, but did not
permit it to find an assault for using both weapons.  Further, the
state did not try the case as if there had been a single assault. 
Rather, it distinguished between use of the revolver and use of the
rifle.  And as we noted above, the prosecutor appeared to use
evidence about conduct with the rifle only to bolster the claim
that Bowers assaulted Peacock with the revolver.  The state
therefore disavowed any possibility of treating Bowers's conduct as
a unitary assault.
IV.  CONCLUSION
          We conclude that it was error to submit the supplemental
instruction allowing the jury to find that Bowers assaulted Peacock
with the rifle after the close of evidence and after the jury had
begun deliberating.  We also conclude that this error was
prejudicial.  Accordingly, we REVERSE Bowers's judgment and
conviction and the decision of the court of appeals and REMAND for
further proceedings.


                            FOOTNOTES


Footnote 1:

     AS 11.41.220(a)(1)(A) provides: 

          A person commits the crime of assault in the
third degree if that person
          (1)  recklessly
               (A)  places another person in fear of
imminent serious physical injury by means of a dangerous instrument
. . . .


Footnote 2:

     See AS 11.61.210(a)(1).


Footnote 3:

     See Bowers v. State, Mem. Op. & J. No. 3881 (Alaska App.,
Sept. 9, 1998).


Footnote 4:

     See State v. Patterson, 740 P.2d 944, 946 n.7 (Alaska 1987)
(noting that questions of statutory interpretation are reviewed
under independent judgment standard); cf. Ford v. Municipality of
Anchorage, 813 P.2d 654, 655 (Alaska 1991) (stating that this court
exercises its independent judgment when interpreting civil rules). 


Footnote 5:

     Bell v. State, 716 P.2d 1004, 1005 (Alaska App. 1986).  Alaska
Criminal Rule 7(e) states:    

          Amendment of Indictment or Information.  The
court may permit an indictment or information to be amended at any
time before verdict or finding if no additional or different
offense is charged and the substantial rights of the defendant are
not prejudiced.      


Footnote 6:

     See Simpson v. State, 705 P.2d 1328, 1331 (Alaska App. 1985).


Footnote 7:

     See Turney v. State, 936 P.2d 533, 538 (Alaska 1997); Langdon
v. Champion, 752 P.2d 999, 1001 (Alaska 1988).  Because the
superior court did not make factual findings on this issue, we
review the record independently.


Footnote 8:

     See Kott v. State, 678 P.2d 386, 389 n.4 (Alaska 1984).


Footnote 9:

     See Mustafoski v. State, 867 P.2d 824, 830 (Alaska App. 1994);
Azzarella v. State, 703 P.2d 1182, 1185-86 (Alaska App. 1985).


Footnote 10:

     603 P.2d 468 (Alaska 1979).


Footnote 11:

     Id. at 472 (citations omitted).


Footnote 12:

     See id. at 472-73; see also Hansen v. State, 845 P.2d 449, 453
(Alaska App. 1993) (recognizing "well-established" policy of
construing indictments liberally).  


Footnote 13:

     See Lupro, 603 P.2d at 472 ("[t]he bases for the claims made
by the state were clear from the grand jury testimony").


Footnote 14:

     Bowers incorrectly claims that the trial court agreed that the
state had not been pursuing a charge based on the rifle before the
grand jury.  The court simply acknowledged that the state had
presented to the grand jury evidence regarding the rifle.


Footnote 15:

     716 P.2d 1004 (Alaska App. 1986).


Footnote 16:

     See id. at 1004-05.


Footnote 17:

     See id. at 1005.


Footnote 18:

     See id.


Footnote 19:

     See id. at 1006. 


Footnote 20:

     See Cheely v. State, 850 P.2d 653, 661-62 (Alaska App. 1993);
Rollins v. State, 757 P.2d 601, 602-03 (Alaska App. 1988).


Footnote 21:

     The question is not whether there was a fatal variance between
the indictment and the evidence presented at trial, because we
concluded above that the indictment charged Bowers with assault
based on his conduct with both the revolver and the rifle. 
Therefore, this is not a case like People v. Fata, 586 N.Y.S.2d
780, 784 (N.Y. App. Div. 1992), where the indictment charged
assault for threatening the victim with a knife and the trial court
permitted the jury to convict based on the defendant's use of a
champagne bottle -- a weapon not included in the original charge.


Footnote 22:

     850 P.2d 653 (Alaska App. 1993).


Footnote 23:

     757 P.2d 601 (Alaska App. 1988).


Footnote 24:

     See Cheely, 850 P.2d at 654.


Footnote 25:

     See id. at 657.


Footnote 26:

     See id. at 654.


Footnote 27:

     See id. at 661.


Footnote 28:

     See id. at 660.


Footnote 29:

     See Rollins, 757 P.2d at 602.


Footnote 30:

     See id.


Footnote 31:

     See id.


Footnote 32:

     See id.


Footnote 33:

     See id. at 602-03.


Footnote 34:

     See id.


Footnote 35:

     The weapons misconduct charge referred specifically and
exclusively to the revolver. 


Footnote 36:

     Cf. McGahan v. State, 606 P.2d 396, 397-98 (Alaska 1980)
(addressing required showing for prejudice when indictment is
amended).


Footnote 37:

     Cf. Mill v. State, 585 P.2d 546, 551-52 (Alaska 1978) (finding
single assault where defendant pointed rifle at victim through
cabin window, ordered victim outside, shot victim in leg, and
threatened victim with rifle until victim wrote him check).