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Barber v State (12/16/2016) ap-2528

Barber v State (12/16/2016) ap-2528


            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 @



                                                                                        Court of Appeals No. A-11401  

                                               Appellant,                               Trial Court No. 1SI-10-446 CR  


                                                                                                    O  P  I  N  I  O  N 


                                               Appellee.                               No. 2528 - December 16, 2016  


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

                       David V. George, Judge.  

                       Appearances: Douglas Miller, Law Office of Douglas S. Miller,  


                       Anchorage, and James E. Barber, in propria persona, Wasilla,  


                       for  the  Appellant.                Timothy  W.  Terrell,  Assistant  Attorney  


                       General, Office of Criminal Appeals, Anchorage, and Craig W.  


                       Richards, Attorney General, Juneau, for the Appellee.  


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


                        Superior Court Judge. *  


                       Judge MANNHEIMER.  

                       In December 2010, James E. Barber was living in Sitka at the home of a                                                         

friend.    On the evening of December 20th, three men wearing ski masks entered the                                                                

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

Constitution and Administrative Rule 24(d).  

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

home,  beat  Barber  with  a  baseball  bat,  and  shot  his  friend's  adult  son,  Matthew  


Hornaman, in the arm.  


                    Thethreeassailants -ChrisBettencourt,his son JeffBettencourt, and their  


friend Lance Smith - then left the home, got into the Bettencourts' truck, and began to  


drive away. Barber went to his bedroom, grabbed a .44 revolver, and ran after them. As  


the Bettencourts were backing up and turning around (to maneuver down the long  


driveway), Barber fired five shots at them. Several bullets struck the Bettencourts' truck,  


but the Bettencourts and Smith were uninjured, and they made their escape - although  


they were arrested at their residence several hours later.  


                    Barber had a prior felony conviction, so it was illegal for him to possess a  


revolver, or even to live in a residence where he knew a concealable firearm was kept.  


See AS 11.61.200(a)(1) and (a)(10).  To try to forestall any trouble, Barber dropped the  


revolver into a neighbor's hot tub.  He later visited Matthew Hornaman in the hospital  


(where Hornaman was recovering from surgery), and he asked Hornaman not to tell the  


police that Barber had fired shots at the Bettencourts and Smith.  


                    (Despite Barber's request, Hornaman informed the police that Barber had  


shot at the Bettencourts and Smith.)  


                    Based on these events, the Bettencourts and Smith were prosecuted for  


assault.   Barber was also prosecuted separately for several offenses:   second-degree  


weapons misconduct (for discharging a firearm at or in the direction of the nearby  


dwellings),third-degreeweapons misconduct(for residing in adwelling withknowledge  


that a concealable firearm was kept there), witness tampering (for asking Hornaman not  


to  tell  the  authorities  anything  about  Barber's  use  of  the  revolver),  and  evidence  


                                                              - 2 -                                                          2528

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


tampering (for hiding the revolver in the hot tub).                                                                                                                                                                                                                                                   Barber was ultimately convicted of                                                                                                                                                              

 all four of these crimes.                                                                                                                  

                                                                             Barber now appeals, raising several claims.  For the reasons explained in                                                                                                                                                                                                                                                                                                                                                 

this opinion, we reverse Barber's conviction for witness tampering, and we also direct                                                                                                                                                                                                                                                                                                                                                                                           

the superior                                                             court to                                             reconsider  various  aspects of Barber's sentence.                                                                                                                                                                                                                                                        In   all other   

respects, however, we affirm the judgement of the superior court.                                                                                                                                                                                                                                                                                                                           

                                      Barber's claim that the police illegally seized his mobile phone                                                                                                                                                                                                                                                                          

                                                                             While the police were investigating the events we have just described, a                                                                                                                                                                                                                                                                                                                                                      

policedetectiveinterviewed                                                                                                                                       JeffBettencourt's                                                                                       girlfriend, TehsaGrutter. Grutter                                                                                                                                                            showed  

the detective a text message she had received from Barber, in which Barber bragged                                                                                                                                                                                                                                                                                                                                    

 about having shot at the Bettencourts.                                                                                                                                                                                       

                                                                             Later, this same police detective encountered Barber at the courthouse,                                                                                                                                                                                                                                                                                          

where   both   men   had   been   subpoenaed   to   testify   before   the   grand   jury   that   was  

 considering the charges against the Bettencourts and Smith. When the detective finished                                                                                                                                                                                                                                                                                                                                                                             

testifying, he came out and saw Barber waiting to testify. The detective decided to arrest                                                                                                                                                                                                                                                                                                                                                                                         

Barber because he suspected that Barber had his mobile phone in his possession, and that                                                                                                                                                                                                                                                                                                                                                                                                      

Barber's phone might still contain the incriminatory text message that Grutter had shown                                                                                                                                                                                                                                                                                                                                                                                     

him.   Barber was arrested without incident, and his phone was seized incident to that                                                                                                                                                                                                                                                                                                                                                                                                      

 arrest.   The police later obtained a search warrant for the phone.                                                                                                                                                                                                                                                                                                                 

                                                                             After Barber was indicted, he asked the superior court to suppress all of the                                                                                                                                                                                                                                                                                                                                        

 evidence derived from the seizure and ensuing search of his mobile phone. The superior                                                                                                                                                                                                                                                                                                                                                                            

                    1                  AS 11.61.195(a)(3)(B), AS 11.61.200(a)(10), AS 11.56.540(a)(1), and AS 11.56.- 

 610(a)(1), respectively.  

                                                                                                                                                                                                                                             -  3 -                                                                                                                                                                                                                                        2528

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

court initially granted this suppression motion, ruling that the State had failed to establish  


that there was probable cause for Barber's arrest.  


                    The State then sought reconsideration of the court's ruling.   The State  


argued that Barber's motion had not challenged the existence of probable cause, but  


instead whether the seizure of the phone met the other requirements for a search incident  


to arrest.  The State also asserted that, if given the proper opportunity, the State could  


establish that the record was "replete with probable cause" to believe that Barber had  


committed crimes for which he could be arrested.  


                    The superior court agreed that, given the way Barber's suppression motion  


had been framed and litigated, the State had not been on notice that it was required to  


affirmatively prove that there had been probable cause for Barber's arrest.  The court  


therefore  granted  the  State's  motion  for  reconsideration  and  held  a  supplemental  


evidentiary hearing to address the issue of probable cause.  


                    Based on the evidence adduced at the supplemental hearing, the superior  


court concluded that the detective had probable cause to arrest Barber for second- and  

third-degree weapons misconduct, and that the detective acted properly when he seized  


the phone and then applied for a search warrant.  The court therefore reversed its earlier  


ruling and denied Barber's suppression motion.  


                    On appeal, Barber argues that the superior court abused its discretion when  


it agreed to reconsider its initial ruling.  


                    As we have explained, the superior court granted reconsideration because  


it concluded that the prosecutor did not have fair notice that the State would have to  


litigate the existence of probable cause for Barber's arrest. Barber offers various reasons  


for questioning the superior court's conclusion that the State lacked fair notice, but these  


reasons  hinge  on  interpreting  the  surrounding  facts  in  the  light  most  favorable  to  


Barber's attack on the court's ruling.  


                                                               - 4 -                                                          2528

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

                             The question is whether the superior court was clearly erroneous when the                                                                             

court concluded that the prosecutor had been misled regarding the issues to be litigated                                                                                

at the initial evidentiary hearing.                                      When we review a lower court's finding under the                                                         

"clearly erroneous" standard, we must view the evidence in the light most favorable to                                                                                               



the lower court's finding.                                Viewing the record in that light, we conclude that Barber has  


failed to show that the superior court was clearly erroneous when the court concluded  


that, at the initial evidentiary hearing, the prosecutor lacked fair notice that the State  


would be expected to affirmatively establish that there was probable cause for Barber's  




                            Barber  also  argues  that  even  if  the  superior  court  was  justified  in  


concluding that the State lacked fair notice, this was not a proper ground for granting  




                            Barber notes that Criminal Rule 42(k)(1) - the rule that lists the potential  


grounds  for  seeking  reconsideration  - does  not  expressly  list  "lack  of  fair  notice  


regarding the issues to be litigated" among the grounds for asking a court to reconsider  


an earlier ruling. Because Rule 42(k)(1) does not expressly include "lack of fair notice"  


as a reason for seeking reconsideration, Barber argues that the superior court abused its  


discretion when it granted reconsideration on this ground.  


                            We reject Barber's contention that CriminalRule42(k)(1) defines the outer  


boundaries of a court's authority to reconsider an earlier ruling.  Here, the court found  


that the State had been misled regarding the issues to be litigated in connection with  


Barber's suppression motion.  (Indeed, the court conceded that its own remarks during  


the initial evidentiary hearing might have misled the prosecutor.)  

       2      Pister v. Alaska Dept. of Revenue, 354 P.3d 357, 362 (Alaska 2015); Forster v. State,  

236 P.3d 1157,1161-62 (Alaska App. 2010).  

                                                                                       -  5 -                                                                                  2528

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

                    Criminal Rule 42(k)(1) may not list this situation as a ground for seeking  


reconsideration, but Criminal Rule 53 authorizes a court to relax or dispense with a rule  


in situations "where it [is] manifest ... that a strict adherence to [the rule] will work  


injustice".  Given the circumstances here, the superior court had the authority to grant  

the State's motion for reconsideration and to hold a supplemental hearing on the question  


of whether there was probable cause for Barber's arrest.  


                    Barber   also   challenges   the   superior   court's   ultimate   decision   on  


reconsideration - i.e., the court's revised conclusion that Barber's arrest was lawful.  


Barber contends that even though the detective had probable cause to arrest him for  


felony weapons misconduct, it was nevertheless improper for the detective to make the  


arrest at that time, because the detective's main reason for conducting the arrest at that  


time was to obtain possession of Barber's mobile phone.  


                    But as this Court explained in Nease v. State, 105 P.3d 1145, 1148-50  


(Alaska App. 2005), "the fact that a police officer may have an ulterior motive for  


enforcing the law is irrelevant for Fourth Amendment purposes ... unless the defendant  


proves that this ulterior motive prompted the officer to depart from reasonable police  


practices."   Under Nease, even when the defendant shows that the officer had some  


ulterior  motive,  a  traffic  stop  or  an  arrest  is  not  "pretextual"  absent  proof  that  the  


officer's decision to make the stop or the arrest "represented a departure from reasonable  


police practice," given the circumstances in the case.  Id. at 1149.  


                    Barber does not argue that his arrest qualified as "pretextual" under the  


Nease formulation.  Rather, he argues that Nease was poorly reasoned, that it created a  


"test with no teeth", and that it should be overruled.  We disagree, and we decline to  


overrule Nease.  


                    Finally, Barber argues that even if Nease continues to be thegoverning law,  


we must remand Barber's case to the superior court because the judge "never purported  


                                                              -  6 -                                                         2528

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

to apply the Nease test [to the facts of Barber's case] or make any findings [under] the  


[Nease] test".  


                     It is true that the superior court never expressly mentioned Nease when it  


ruled on Barber's claimof apretextual arrest. Nevertheless, the superior court's decision  


appears to be based on reasoning that is analogous to the Nease test:  



                               The Court:   I don't find [that] this was a pretextual  


                     [arrest]. I mean, [the] classic pretext is where somebody gets  


                    pulled over ... for a [broken] tail light just so the police can  


                     search  the  car  for  drugs.                 This  arrest  was  made,  and  


                     [Barber's] iPhone was seized, ... on the reasonable belief that  


                     there was information [on the phone] relating to the [very]  


                     charge  for  which  [Barber]  was  arrested,  ...  the  weapons  



                     And in any event, we conclude that the superior court's failure to expressly  


analyze Barber's case under Nease can be attributed to the fact that Barber never raised  


a Nease issue in the superior court. The burden is generally on the government to justify  


warrantless arrests, searches, and seizures.   But when a defendant argues that an arrest  


was  pretextual  under  Nease,  the  Nease  decision  clearly  places  the  burden  on  the  


defendant to prove that the challenged police conduct was not reasonable or ordinary  


under the circumstances.  Id. at 1148.  


                     For all of these reasons, we uphold the superior court's denial of Barber's  


suppression motion.  


                                                               -  7 -                                                         2528

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

          Barber's attacks on his conviction for discharging a firearm "at or in the  


          direction of" a dwelling  


                    Barber was convicted of violating AS 11.61.195(a)(3)(B), which makes it  


a crime to "knowingly ... discharge[] a firearm at or in the direction of ... a dwelling."  


This conviction was based on the shots that Barber fired at the Bettencourts' truck as it  


headed out of the driveway and away from the Hornaman residence.  


                    On appeal, Barber argues that both the grand jury evidence and the trial  


evidence were insufficient to support this charge.  More specifically, Barber argues that  


this evidence was legally insufficient to establish that he was firing "at or in the direction  


of" any dwelling because (1) Barber was aiming at the truck, rather than purposely trying  


to direct his fire into a residence, and (2) the residences in the area were not adjoining  

townhouses, but were instead separate buildings, with enough space in between them  


to allow a bullet to pass through.  


                    The  evidence  presented  to  the  grand  jury  (viewed  in  the  light  most  


favorable to the grand jury's decision) showed that Barber fired a number of shots at the  


Bettencourts' truck as it headed down the long Hornaman driveway to the street.  The  


police found three bullet holes in the truck:  one in the hood, one in the front fender on  


the passenger side, and one near the rearview mirror on the passenger side.  The lead  


investigator, Detective Sexton, testified that there were "numerous houses" in the area,  


and that there was a dwelling in Barber's line of fire in "virtually every direction".  


                    This last assertion - that there was a dwelling in Barber's line of fire in  


"virtually every direction" his gun may have been pointed - was sufficient to support  


the indictment. Indeed, in a recent unpublished decision, Glen v. State, 2015 WL 643383  


(Alaska App. 2015), this Court held that a charge of second-degree weapons misconduct  


                                                               -  8 -                                                         2528

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

was adequately supported by testimony that there were residential buildings "[in] any  


direction you look".  Id. at *2-3.  


                     At Barber's trial, the evidence presented on this point was more detailed.  


The jurors were given an aerial photograph of the neighborhood , and they were actually  


taken to the scene to view the area and walk around.  


                     In addition, there was testimony at trial concerning the path taken by the  


Bettencourts' truck.  One of the neighbors testified that, before the Bettencourts made  


their escape, the truck was parked "nose-in" toward the Hornaman residence.  And the  


jury heard Barber's recorded interview with Detective Sexton, in which Barber stated  


that the Bettencourts' truck backed up toward the apartment building and then headed  

out the driveway and onto the street.  


                     All of this evidence, viewed in the light most favorable to the jury's verdict,  


was sufficient to support the conclusion that Barber fired his revolver "at or in the  


direction of" a dwelling.  


                     In addition to his sufficiency of the evidence claims, Barber makes a related  


argument that the jury was misinstructed regarding the culpable mental state required for  


this offense.  


                     The  pertinent  statute,  AS  11.61.195(a)(3)(B),  defines  the  offense  as  


"knowingly ... discharg[ing] a firearm at or in the direction of ... a dwelling".  The jury  


received an instruction that tracked the wording of this statute.  The jury was told that,  


to prove this offense, the State had to establish that Barber "knowingly discharged a  


firearm", and that he "discharged the firearm at or in the direction of a dwelling."  


                     Neither party objected to this instruction.  But on appeal, the parties point  


out that neither the statute nor the jury instruction specifies the culpable mental state that  


applies to the element of "at or in the direction of" a dwelling.  


                                                               -  9 -                                                         2528

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

                                                    The   State   contends   that   "at   or   in   the   direction   of   a   dwelling"   is   a  

 "circumstance" pertaining to the defendant's act of discharging the firearm - and that,                                                                                                                                                                                                                                

 under the ruleof statutory construction found in AS                                                                                                                                            11.81.610(b)(2), the culpable mental                                                                            

 state that applies to this element is "recklessly".                                                                                                                                    Barber, on the other hand, argues that                                                                                             

 the statute could be interpreted as requiring proof that the defendant acted "knowingly"                                                                                                                                                                                               

 with respect to the fact that the firearm was being discharged at or in the direction of a                                                                                                                                                                                                                                          


                                                   We need not resolve this issue in Barber's case - because, as the State                                                                                                                                                                                            

 points out, and as Barber appears to concede, the prosecutor argued Barber's case to the                                                                                                                                                                                                                                    

jury based on the assumption that it was the State's burden to prove that Barber                                                                                                                                                                                                                     knew  that  

 he was discharging his gun "at or in the direction of" one or more dwellings:                                                                                                                                                                                                                         


                                                                            Prosecutor :   [Y]ou have to find that Mr.                                                                                                               Barber acted   

                                                   knowingly.   ...  [Here,] Mr. Barber was acting intentionally.                                                                                                                                                                        

                                                    He meant to be shooting, he knew [that] he was shooting, and                                                                                                                                                         

                                                   he   knew   there   were   houses   around   there.     ...     [H]e   was  

                                                    shooting at those dwellings, in their direction, and he knew                                                                                                                                                 

                                                    exactly what he was doing.                                                                               

                                                    This Court has held that the arguments of counsel can clarify an unclear or                                                                                                                                                                                                  


 ambiguous jury instruction.                                                                                                                                                                                                                                                                                 

                                                                                                                       Here, even though the jury instruction did not specify  


 whether "knowingly" or "recklessly" applied to the element of "at or in the direction of"  


 a dwelling, the prosecutor argued that the jury should convict Barber of this offense  


 because Barber acted knowingly with respect to this element.  


                                                    Because "knowingly" is a higher culpable mental state than "recklessly",  


 any error in the prosecutor's argument ran in Barber's favor. We therefore conclude that  

              3            O'Brannon v. State, 812 P.2d 222, 229 (Alaska App. 1991).  

                                                                                                                                                          -  10 -                                                                                                                                                        2528

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

 the challenged jury instruction did not constitute plain error under the facts of Barber's  




           The trial judge's refusal to instruct the jury on a person's right to use force  


           to detain a fleeing felon  


                     Under AS 11.81.390, a person is authorized to use deadly force "when and  


 to the extent the ... person reasonably believes" that the use of this deadly force is  


 necessary to accomplish the arrest of another person who has committed an assaultive  

 felony (i.e., a felony "involv[ing] the use of force against a person").  


                     At Barber's trial, his attorney asked the trial judge to instruct the jury that  


 Barber had a defense to the second-degree weapons misconduct charge (i.e., discharging  


 a firearm at or in the direction of a dwelling) if Barber fired the shots in an effort to arrest  


 the Bettencourts and Smith.  The trial judge had doubts whether this "arrest of a felon"  


 defense applied to the crime of shooting at or in the direction of a dwelling.  But the  


judge concluded that, in any case, there was no evidence to support a finding that Barber  


 fired the shots in an effort to make an arrest.  


                     On  appeal, Barber renews his argument that he was entitled to a jury  


 instruction on his right to use deadly force to arrest the Bettencourts and Smith - people  


 who had just committed assaultive felonies.  


                     (Barber's brief also speaks repeatedly of the right to use force to terminate  


 an "escape".  But AS 11.81.390 only authorizes the use of force to terminate an escape  


from custody . It is clear that the Bettencourts and Smith were not escaping from custody.  


 Thus, if Barber had any right to use force under AS 11.81.390, it was the right to use  


 force to effect an arrest.)  


                                                               -  11 -                                                         2528

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

                     We  first  note  that  even  if  Barber  had  been  attempting  to  arrest  the  


Bettencourts and Smith, it is far from clear whether this would be a defense to shooting  


at or in the direction of a dwelling.  Even when a person has a privilege to use force  


against another, that use of force must be exercised reasonably, and this requirement of  


reasonableness includes a duty of care toward bystanders.  


                     This point of law is discussed in R. Perkins & R. Boyce, Criminal Law  


(3rd edition 1982):  



                                [If]  B  [were]  making  a  murderous  assault  upon A  


                     under such circumstances that A was privileged to kill B in  


                     the  lawful  defense  of  [his]  life[,]  [and  if],  under  those  


                     circumstances, A should shoot at B in the proper and prudent  


                     exercise of his privilege of self-defense, and should happen  


                     unexpectedly ... to cause the death of C, [then] A should be  


                     free from criminal guilt.  


                               .  .  .  


                                [But this] hypothetical situation ... supposes not only  


                     [that A had] the privilege to direct deadly force against B in  


                     the  defense  of  A's  life,  but  also  the  proper  and  prudent  


                     exercise of this privilege. If ... [A] exercised this privilege so  


                     imprudently  and  improperly  as  to  constitute  a  criminally  


                     negligent disregard of the life of the innocent bystander, C,  


                     [then] the killing of C would be manslaughter.  


Perkins & Boyce, p. 922-23.  


                     In  other  words,  even  though  a  person  is  under  attack  and  is  properly  


defending himself, he continues to owe a duty of care to bystanders.  A person has no  


"transferred" privilege to attack and injure innocent third parties.  Obviously, when a  


judge or jury assesses the reasonableness of the person's actions, the judge or jury must  


take into account the fact that the person was justifiably defending himself from attack.  


But if, even given this extenuating circumstance, a defendant's actions are still reckless  


                                                               -  12 -                                                         2528

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

or criminally negligent, then the defendant can be held criminally responsible for the                                                                  


death or injury of a bystander.                            


                        There is good reason to think that this same principle - the duty of care  


to innocent bystanders - would apply to the situation where (1) a violent felony has  


occurred in a residential neighborhood, (2) a private citizen is weighing the option of  


shooting a firearm to make an arrest, and (3) there are dwellings located in the line of  




                        But we need not define that duty of care in Barber's case, because we agree  


with the trial judge that, given the facts of Barber's case, there was insufficient evidence  


to support a jury instruction on the right to use deadly force to arrest a person who has  


committed a violent felony. We addressed analogous facts in our memorandum opinion  


in Barton v. State, unpublished, 1999 WL 189360, *3-4 (Alaska App. 1999).  


                        As we noted in Barton, AS 11.81.390 authorizes only a reasonable use of  


deadly force.  The person making the arrest may not use force that exceeds the degree  


"necessary to make the arrest".  


                        As we further explained in Barton, this requirement that the deadly force  


be"necessary"implicitly includes arequirementthatreasonablelesseralternatives either  


have been exhausted or are not reasonably available.  



                                    Obviously, the facts of each case are different.  And  


                        although the person making an arrest must act reasonably, the  


                        reasonableness of this person's actions must be assessed in  


                        light of the fact that they must often respond swiftly to a  


                        volatile situation.  Nevertheless, the legal principle is clear:  


                        a person making an arrest - even an arrest for a violent  

      4      Ward    v.  State,  997  P.2d  528,  533  (Alaska  App.  2000)  (Judge  Mannheimer,  


                                                                         -  13 -                                                                     2528

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

                     felony  -  normally  can  not  begin  the  arrest  process  by  


                     shooting the suspect.  


Barton, 1999 WL 189360 at *4.  


                     In Barber's case, there was no evidence that Barber commanded his fleeing  


assailants to stop, or fired a warning shot, or took any other non-life-threatening action  


to stop the Bettencourts and Smith from leaving the scene.  Barber simply ran out of the  


house, aimed his gun at the fleeing men, and fired several shots at (and into) their  


vehicle.  Barber never expressly claimed that his purpose in shooting was to effect an  


arrest.  But even if Barber had claimed this, his action was unreasonable as a matter of  




                     In his brief to this Court, Barber suggests that he may have had other  


evidence to offer in support of this defense, if only the trial judge had allowed it.  But  


Barber's trial attorney did not try to introduce any other evidence on this point, nor did  


he make an offer of proof describing what additional evidence he might have presented.  


                     Accordingly, we uphold the trial judge's decision not to instruct the jury  


on the right to use deadly force to arrest a person who has committed a violent felony.  


Given the evidence presented at Barber's trial, he was not entitled to such an instruction.  


          Barber's attacks on his conviction for third-degree weapons misconduct  


                     Barber   was   convicted   of   third-degree   weapons   misconduct   under  


AS 11.61.200(a)(10), which makes it illegal for a felon  



                               [to]  reside[]  in  a  dwelling  knowing  that  there  is  a  


                     [concealable] firearm in the dwelling ... , unless the [felon]  


                     has written authorization to live in a dwelling in which there  


                     is  a  concealable  weapon  ...  from  a  court  of  competent  


                                                              -  14 -                                                         2528

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

                    jurisdiction or from the head of the law enforcement agency  


                     of the community in which the dwelling is located[.]  


                     Barber first argues that his jury was misinstructed concerning the final  


clause of this statute - the clause that creates an exception from criminal liability if the  


felon has written permission from a court or from the head of the local law enforcement  


agency. Barber argues that this clause defines an additional element of the crime - and  


that when the State charges a defendant under subsection (a)(10), the State is always  


required to affirmatively prove (beyond a reasonable doubt) that the defendant did not  


have the kind of written authorization described in the statute.  


                     We reject this interpretation of AS 11.61.200(a)(10).  As we explained in  


Trout v. State, 866 P.2d 1323, 1324 (Alaska App. 1994), the general rule is that when a  


statute defines an exception to the normal scope of criminal liability, a defendant must  


offer (or point to) evidence that their case falls within the exception.  The State is not  


required to anticipate the exception and negate it in cases where the evidence does not  


raise the issue. Ibid.  If a defendant wishes to invoke the exception, then at the very least  


the defendant must (1) affirmatively raise the exception and (2) point to some evidence  


from which a reasonable jury could decide that issue in their favor.  Id. at 1325.  


                     For these reasons, we conclude that the trial judge in Barber's case was not  


required to instruct the jury on the exception for felons who have written permission to  


live in a residence where there is a concealable firearm.  


                     Barber also argues that the evidence presented at his trial was insufficient  


to support a finding that he was "residing" in the Hornaman residence at the time of this  




                     The  events  in  this  case  took  place  on  December  20,  2010.                                Matthew  


Hornaman  testified  that  Barber  had  been  living  with  them  since  early  December.  


Hornaman also testified that Barber was staying in his [i.e., Hornaman's] brother's  


                                                              -  15 -                                                         2528

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

bedroom, that visitors came to see Barber at the Hornaman residence, and that Barber  


would invite those visitors into the bedroom.  


                    Detective Sexton testified that Barber told him that he would have been  


"homeless" if he hadn't been living with the Hornamans. The jury also heard testimony  


from Detective Sexton that Barber had asked Sexton not to "seize my bong out of the  


bedroom" because "[bongs are] legal to possess in the home."  


                    The State also points to additional circumstantial evidence that Barber was  


residing in the Hornaman home: the fact that the Bettencourts knew that they could find  


Barber at the Hornaman residence, and the fact that, when the Bettencourts knocked at  


the front door, Barber answered the door the way a resident would.  


                    Viewing this evidence in the light most favorable to the jury's verdict, it  


was sufficient to support a conclusion by reasonable jurors that Barber was residing in  


the Hornaman home.  


           Why we reverse Barber's conviction for witness tampering  


                    Barber was convicted of witness tampering under AS 11.56.540(a)(1),  


which declares that it is unlawful to knowingly induce or attempt to induce a witness to  


"testify falsely, offer misleading testimony, or unlawfully withhold testimony in an  


official proceeding".  


                    The State based this charge on evidence that Barber spoke to Matthew  


Hornaman at the hospital (before Hornaman was interviewed by the police), and that he  


asked Hornaman not to tell the police that Barber fired shots at their attackers.  


                    Asking someone to withhold pertinent information from the police is not  

witness tampering.   Rather, the statute requires proof that the defendant induced or  


attempted to induce a witness (including a potential witness) to give false testimony or  


                                                             -  16 -                                                        2528

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

to  unlawfully  withhold  testimony  at  an  "official  proceeding".                                  The  term  "official  


proceeding" is defined as any proceeding where testimony is taken under oath;  see  


AS 11.81.900(b)(42).  


                     The State argues that Barber's request to Hornaman could potentially  be  


interpreted as a request for Hornaman to unlawfully withhold testimony at some future  


judicial proceeding (either a grand jury hearing or a trial).   We are skeptical of this  


theory.  It is one thing to ask a person to withhold information when they speak to the  


police, because people generally have no duty to speak to the police; it is another to ask  


a person to lie or withhold information when they have been placed under oath at an  


official proceeding.  Given the facts of Barber's case, it appears speculative at best for  


the State to suggest that Barber's conversation with Hornaman amounted to a request for  


Hornaman  to  lie  or  unlawfully  withhold  information  under  oath  if  he  was  ever  


summoned to an official proceeding.  


                     But in any event, that is not the way Barber's case was argued to the jury.  


At Barber's trial, the prosecutor characterized the State's evidence as proving (1) that  


Barber asked Hornaman to withhold information from the police, and (2) that Barber  


knew that the police were conducting an investigation that would likely result in future  


official proceedings.  


                     The State's evidence, if believed, was legally sufficient to establish both of  


these  propositions.             But  that  is  not  the  same  thing  as  proving  that  Barber  asked  


Hornaman to lie or unlawfully withhold information at a future official proceeding.  


                     Therecordshowsthatthejury likelyconvictedBarber ofwitness tampering  


because he asked Hornaman to withhold information from the police.  That was error,  


and we therefore reverse Barber's conviction for witness tampering.  


                                                             -  17 -                                                         2528

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

          Barber's objections to the contents of the pre-sentence report  


                    Barber objects to three portions of the pre-sentence report prepared by the  


Department of Corrections.  


                    First, Barber alleges that the pre-sentence report mischaracterizes what  


Barber said to Hornaman when Barber asked him not to tell the authorities anything  


about Barber's firing a weapon at the Bettencourts and Smith.  According to the pre- 


sentence report, "[i]n the days following the shooting, Barber asked Matthew Hornaman  


... to not say anything about [Barber's] firing the shots[,] and admitted that the gun he  


used was a revolver[,] so there would be no shell casings."  (Emphasis added.)  During  


the sentencing hearing, Barber claimed that he never said the italicized portion of the  


sentence we have just quoted.  


                    We have reviewed the record, and we conclude that Hornaman's testimony  


supports the pre-sentence report's assertions.  Here is what Hornaman said at trial:  



                              Prosecutor : [W]hat, if anything, did [Mr. Barber] say  


                    to you in regards to the - those five gun shots?  


                              Hornaman :            Not  to  mention  them.               There  was  no  


                    evidence.          Shells  wouldn't  be  found,  because  it  was  a  




                    Barber argues that it is unclear whether Hornaman was saying that Barber  


mentioned all of these things during their conversation, or whether (instead) Hornaman  


was making his own side comment that a revolver would not eject shells.  But this was  


an issue of fact for the sentencing judge to resolve.  


                    The  judge  could  reasonably  conclude  that  the  pre-sentence  report's  


characterization of Barber's conversation with Hornaman was based on fair inferences  


                                                              -  18 -                                                         2528

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

from Hornaman's trial testimony. We therefore uphold the superior court's decision not  


to alter this portion of the pre-sentence report.  


                     We  reach  a  different  conclusion,  however,  with  respect  to  two  other  


contested portions of the pre-sentence report.  


                     The pre-sentence report contains an assertion that the Bettencourts' assault  


on  Barber,  and  Barber's  ensuing  armed  response,  were  related  to  uncharged  drug  


offenses - that these events were attributable to a "heroin for firearm deal gone bad  


between Mr. Barber and Jeff Bettencourt".  When Barber actively disputed this charac- 


terization  of  events,  the  sentencing  judge  responded  that  it  was  the  pre-sentence  


investigator's job to express his opinions about the case, and that he (the judge) would  


give the pre-sentence investigator's opinion the weight it deserved.  


                     This was error.  Because Barber affirmatively disputed the pre-sentence  


investigator's assertion about a drug deal, Alaska Criminal Rule 32.1(f)(5) required the  


sentencing judge to do one of two things:  either (1) resolve the question of whether the  


pre-sentence   report's   description   was   accurate,   or   (2)   strike   the   pre-sentence  


investigator's assertion as unnecessary to the court's sentencing decision.  


                     Because the sentencing judge failed to comply with Criminal Rule 32.1(f),  


we vacate the superior court's decision on this issue, and we direct the superior court to  


reconsider Barber's objection to this portion of the pre-sentence report.  


                     We reach the same conclusion with respect to Barber's objection to the pre- 


sentence report's description of the facts underlying Barber's 2010 drug conviction.  


Again, we vacate the superior court's decision on this issue, and we direct the superior  


court to reconsider Barber's objection to this portion of the pre-sentence report under the  


rules prescribed in Criminal Rule 32.1(f).  


                                                              -  19 -                                                         2528

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

          Barber's sentencing arguments  


                    Barberwassentencedforfourcrimes: second-degreeweapons misconduct,  


third-degree weapons misconduct, witness tampering, and evidence tampering.   He  


received a composite sentence of 11 years with 4 years suspended (7 years to serve).  


                    On appeal, Barber claims that this composite sentence is excessive.  But a  


significant portion of Barber's time to serve - 2 years - is attributable to the sentence  


he received for witness tampering, and we are reversing that conviction.  Barber will  


have to be re-sentenced, so we decline to reach the question of whether his current  


composite sentence is excessive.  However, several of Barber's other sentencing claims  


are pertinent to his re-sentencing.  


                    During  the  sentencing  proceedings,  the  defense  attorney  argued  that  


Barber's crime of second-degree weapons misconduct (i.e., his discharging a firearm at  


or  in  the  direction  of  a  dwelling)  was  mitigated  under  AS  12.55.155(d)(7).                                        This  


mitigator applies when "the victim provoked the crime to a significant degree".  


                    Barber's sentencing judge rejected this mitigator under the theory that the  


people who provoked Barber's armed response - the Bettencourts and Smith - were  


not "victims" of the crime of discharging a firearm at or in the direction of a dwelling.  


Because the judge rejected mitigator (d)(7) on this basis, the judge made no finding  


regarding the nature of the Bettencourts' provocation or the proportionality of Barber's  




                    On  appeal,  the  State  concedes  that  the  Bettencourts  and  Smith  were  


"victims" of the offense for purposes of mitigator (d)(7).  Nevertheless, the State argues  


that we should uphold the sentencing judge's ruling.  The State contends that the record  


undisputedly  shows  that  Barber's  response  to  the  Bettencourts'  provocation  was  


disproportionate - and that Barber therefore can not claim the benefit of mitigator  


                                                              - 20 -                                                          2528

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


  (d)(7).     The State also contends that, to the extent Barber's claim of provocation is                                                                                                                                                                                                                                                                                                                                                                                                                                                            

  debatable, Barber failed to prove his claim by clear and convincing evidence.                                                                                                                                                                                                                                                                                                                                                                                                                              

                                                                                      We reject the State's contention that the record allows us to affirm the                                                                                                                                                                                                                                                                                                                                                                              

  sentencing judge's decision on these other grounds.                                                                                                                                                                                                                                                                                As we have explained, because the                                                                                                                                                                        

judge wrongly believed that Barber was precluded from relying on mitigator (d)(7) as  

  a matter of law, the judge made no findings regarding the nature of the provocation, the                                                                                                                                                                                                                                                                                                                                                                                                                                                    

 nature of Barber's response, and whether Barber had met his burden of proof.                                                                                                                                                                                                                                                                                                                                                                                                                                                        We  

 therefore vacate the sentencing court's ruling on mitigator (d)(7), and we direct the court                                                                                                                                                                                                                                                                                                                                                                                                                                      

 to reconsider this mitigator in connection with Barber's re-sentencing.                                                                                                                                                                                                                                                                                          

                                                                                      In the superior court, Barber's attorney also argued that Barber's offense   

  of evidence tampering was mitigated under AS 12.55.155(d)(9), which applies when a                                                                                                                                                                                                                                                                                                                                                                                                                                                                      

  defendant's conduct is among the least serious within the definition of the offense.                                                                                                                                                                                                                                                                                                                                                                                                                                               The  

  defense attorney pointed out that, even though Barber hid the handgun in his neighbor's                                                                                                                                                                                                                                                                                                                                                                                                     

 hot tub, the gun was found the same evening, and the State was able to use the gun as                                                                                                                                                                                                                                                                                                                                                                                                                                                             

  evidence at grand jury and at trial.                                                                                                                                                                                       

                                                                                      Thesentencingjudgerejected                                                                                                                                                               mitigator (d)(9) becausethejudgeconcluded                                                                                                                                                                          

 that Barber's act of evidence tampering (                                                                                                                                                                                                              i.e., his act of hiding the revolver in the hot tub)                                                                                                                                                                                                                             

 had to be viewed in conjunction with Barber's further act of asking Hornaman to conceal                                                                                                                                                                                                                                                                                                                                                                                                                          

 the shooting fromthe                                                                                                                police. The                                                                judge declared that, viewed together, these two aspects  

  of Barber's conduct "represent[ed] an ongoing [effort] by Mr. Barber to try [to] avoid                                                                                                                                                                                                                                                                                                                                                                                                                                     

 responsibility for [his] acts and to [impair] the integrity of the investigation."                                                                                                                                                                                                                                                                                                                                                                                                               We agree   

 that, given these facts, Barber failed to prove that his conduct was among the least                                                                                                                                                                                                                                                                                                                                                                                                                                              

  serious encompassed by the evidence tampering statute.                                                                                                                                                                                                                                                                                                             

                       5                   See Roark v. State                                                                                             , 758 P.2d 644, 647 (Alaska App. 1988).  

                                                                                                                                                                                                                                                                - 21 -                                                                                                                                                                                                                                                                  2528

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

          Barber's conditions of probation  


                    Barber objects to several of his probation conditions.  


                    Two of Barber's conditions are related to his possession and consumption  


of  alcoholic  beverages.                Condition  9  prohibits  Barber  from  consuming  alcoholic  


beverages.   Special Condition 7 goes considerably farther:   it prohibits Barber from  


possessing, handling, or purchasing alcoholic beverages, and it further requires him to  


submit to searches of his person, his personal property, his residence, and his vehicle(s)  


for the presence of alcoholic beverages. And Special Condition 8 prohibits Barber from  


entering any establishment where "alcohol is the main item for sale".  


                    Barber objected to these conditions, pointing out that he had no history of  


alcohol abuse, and that his offenses were not related to alcohol.  The sentencing judge  


neverthelessupheldtheseconditionsunder thetheory that theywerejustified by Barber's  


history of drug abuse.  The judge stated that "[it was] not at all uncommon that people  


who have substance abuse issues with one particular type of substance will [switch] over  


to another one when they can no longer engage in the [first one]."  The judge also stated  


that he was "convinced that ... eliminating all [intoxicating] substances [would] most  


effectively promote [Barber's] rehabilitation."  


                    We  conclude  that  the  sentencing  court's  analysis  is  not  sufficient  to  


establish  that  these  three  probation  conditions  are  sufficiently  related  to  Barber's  


rehabilitation, or to the prevention of future criminal acts, to pass muster under the test  


announced in Roman v. State, 570 P.2d 1235, 1240 (Alaska 1977).  


                    We will assume that the sentencing judge was correct when he asserted that  


people who use illicit drugs will sometimes switch to using alcoholic beverages if they  


are deprived of illicit drugs.  Nevertheless, it is not illegal to get intoxicated through the  


use of alcoholic beverages.  And the record contains little evidence that Barber engages  


                                                              - 22 -                                                          2528

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

in criminal activity                                                      because of                              intoxication.   Barber's past criminal convictions were                                                                                                                               

simply   for   the   illicit   possession   of   controlled   substances.     If   Barber   had   not   used  

controlled substances and had, instead, used alcohol as a lawful means of achieving                                                                                                                                                                                                   

intoxication, he would not have been prosecuted for a crime.                                                                                                                                                                    

                                                 Thus,   there   is   little   in   the   record   to   support   the   sentencing   judge's  

conclusion that "eliminating all [intoxicating] substances" from Barber's life would                                                                                                                                                                                                              

"most effectively promote his rehabilitation". Accordingly, we direct the superior court                                                                                                                                                                                                                

to strike Condition 9 and Special Conditions 7 and 8.                                                                                                                                                

                                                 We also direct the superior court to amend Special Condition 6 so that it no                                                                                                                                                                                 

longer speaks of products relating to alcohol.                                                                                                                        

                                                 In a separate argument, Barber challenges Condition 12, which directs him                                                                                                                                                                                   

to "[a]bide by any special instructions given by ... probation officers of the Department                                                                                                                                                                                      

of Corrections intended to implement this [judgement] and the terms of the defendant's                                                                                                                                                                                          

probation."  Barber argues that this condition is improper because it potentially grants   

an   impermissibly   broad   authority   to   his   probation   officer(s).    But   this   Court   has  

previously affirmed the validity of this probation condition.                                                                                                                                                                  6  


                                                                                                                                                                                                                                       And Barber retains the  


right to challenge any special instruction he may receive in the future from his probation  


officer if he believes that the special instruction exceedstheprobation officer's authority,  


or that it is otherwise unreasonable.  


                                                 Barber next challenges Special Condition 1, which prohibits him from  


knowingly associating with "anyone who is in ... immediate possession of firearms", and  


from knowingly being present "anywhere a firearm is present".  Barber argues that this  


condition  is  overly  vague  and  potentially  overbroad.                                                                                                                                                         We  agree.                                    As  written,  the  

            6           See, e.g., Phillips v. State, 211 P.3d 1148, 1153 (Alaska App. 2009); Dayton v. State,  

 120 P.3d 1073, 1084 (Alaska App. 2005).  

                                                                                                                                                   - 23 -                                                                                                                                                  2528

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

condition appears to prohibit Barber from visiting a police station, talking to police  


officers, or "associating" with any other citizen who exercises their right to openly carry  


a firearm.  The condition also appears to prohibit Barber from entering the premises of  


sporting goods stores or even grocery/general merchandise stores that sell firearms.  


                    Upon  remand,  the  superior  court  is  directed  to  reformulate  Special  


Condition 1 to cure these problems.  


                    Barber also challenges Special Condition 3, which (1) prohibits him from  


using or possessing controlled substances without a prescription; (2) prohibits him from  


having "any paraphernalia normally associated with the illicit use of drugs; and (3)  


requires him to submit to searches for "illicit drugs or drug paraphernalia".  


                    Given Barber's criminal history, it was reasonable for the sentencing court  


to prohibit Barber from possessing controlled substances without a prescription, and to  


require Barber to submit to searches for prescriptionless controlled substances.  


                    Wenote, however,thattherearepotential vaguenessproblemsinthephrase  


"paraphernalia normally associated  with  the illicit use of drugs".                                      See this  Court's  


decision in Myers v. Anchorage, 132 P.3d 1176 (Alaska App. 2006). The superior court  


may wish to re-examine this aspect of Special Condition 3.  


                    Barber next challenges Special Condition 4, which prohibits him from  


knowingly associating with any person who illegally uses controlled substances, and  


from knowingly entering or remaining in any place where controlled substances are  


illegally used, manufactured, grown, or sold.  Barber argues that the word "place" is too  


vague, because it potentially prohibits him from remaining in a public place, such as a  


park or a sports stadium, if he observes any person using controlled substances.  


                    Weagreewith Barber that thechallenged conditionispotentially overbroad  


if  it  applies  to  such  situations,  and  we  direct  the  superior  court  to  amend  Special  


Condition 4 with a narrowing definition of "place".  


                                                              - 24 -                                                          2528

----------------------- Page 25-----------------------

                    Finally, Barber challenges Special Condition 9, which requires him to  


submit to searches of his personal computer and to searches of any other electronic  


devices he owns that are capable of communication (e.g., a mobile phone or a tablet)  


"to determine if [Barber is] knowingly associating with individuals who [he knows]  


use or sell illegal controlled substances".  


                     This  provision  is,  in  essence,  a  general  warrant  authorizing  Barber's  


probation officer to search through the entire contents of Barber's digital files - his  


word processing documents, his emails, his text messages, his downloads, the log of  


his  phone  calls,  his  Internet  browsing  history,  his  calendar,  his  contact  lists,  his  


photographs, etc.  


                    As the United States Supreme Court recently noted in Riley v. California,  


573 U.S. __, 134 S.Ct. 2473 (2014),  



                     [A] cell phone search [will] typically expose to the govern- 


                    ment far more [information] than the most exhaustive search  


                     of a [person's] house:  A phone not only contains in digital  


                     form many sensitive records previously found in the home;  


                     it also contains a broad array of private information never  


                     found in a home in any form [except in] the phone [itself].  



Riley, 573 U.S. at __, 134 S.Ct. at 2491.  


                     Given the immense intrusion on Barber's privacy that is authorized by  


Special Condition 9 - an intrusion far greater than any search of his house for drugs or  


weapons - the sentencing court was required to specially scrutinize this probation  


condition to ensure that it was narrowly tailored to the goals of probation recognized in  


Roman, and that the condition did not unnecessarily infringe on Barber's constitutional  


rights of privacy, liberty, and freedom of association.  See Dawson v. State, 894 P.2d  


672, 680 (Alaska App. 1995).  


                                                              - 25 -                                                          2528

----------------------- Page 26-----------------------

                    The record shows that the sentencing judge did not engage in this analysis.  


We therefore vacate Special Condition 9. The sentencing court is authorized to re-assess  


whether Special Condition 9, or some narrower form of it, might be justified under the  


facts of Barber's case.  



                    We reverse Barber's conviction for witness tampering, but we affirm his  


other convictions.  


                    As explained in this opinion, we direct the superior court to address and  


resolve two  of Barber's challenges to  the pre-sentence report under  Criminal Rule  




                    We direct the superior court to reconsider Barber's proposed mitigator  


(d)(7) with regard to Barber's conviction for second-degree weapons misconduct.  


                     Finally, we direct the superior court to either delete, amend, or reconsider  


the conditions of probation that we discussed in the preceding section of this opinion.  


                                                             - 26 -                                                         2528

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