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

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


              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@  

                              IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                      


                                                                                                        Court of Appeals No. A-12542  


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



                                                                                                                     O  P  I  N  I  O  N  




                                                      Appellee.                                        No. 2575 - December  1, 2017  


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


                           Steve W. Cole, Judge.  


                           Appearances:  Amanda Harber, Assistant Public Defender, and  


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


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


                           Lindemuth, Attorney General, Juneau, for the Appellee.  


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


                           Superior Court Judge.*  


                           Judge MANNHEIMER.  


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

Constitution and Administrative Rule 24(d).                              

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

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

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

Tofelogo and the victim, Dennis Fathke, were roommates.                                                                                                                                                                                                             

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

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

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

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

Fathke's side, inflicting a fatal wound.                                                                                                                                  

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

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

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

half-hour later.                                                    

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

and he ultimately pleaded guilty to this charge.                                                                                                                                                              

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

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

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

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

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

 10 years' imprisonment.                                                                                     1  


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


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


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




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

                                                                                                                                                                                     - 2 -                                                                                                                                                                                 2575

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


                     In  his  sentencing remarks,  the  judge  acknowledged  that  Tofelogo  and  


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


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


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


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


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


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


when formulating the sentence in Tofelogo's case:  



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


                     secure  in  our  own  homes  without  someone  who  is  living  


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


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


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


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


                     are ... in a boyfriend-girlfriend relationship.  


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


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


sentencing judge should not have given this aggravator any weight.  


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


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


therefore direct the superior court to re-sentence Tofelogo.  


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


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


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


rejecting a proposed mitigating factor.  

                                                               - 3 -                                                          2575

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

                                     In    advance    of    sentencing,    Tofelogo's    attorney    proposed    mitigator  

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

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

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

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

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

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

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


serious offense of manslaughter.                                                             

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


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


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


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


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


                  category of "crimes involving domestic violence"  


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


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


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


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


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


same dwelling as the defendant".  


         2        AS 11.41.120(a).                               

                                                                                                                - 4 -                                                                                                            2575

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

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

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

AS 18.66.990(3) and (5).                                                                                                                               

                                                                               The category of "crimes involving domestic violence" overlaps completely                                                                                                                                                                                                                                                                                                     

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

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

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

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

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

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

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

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

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


 six other types of inter-personal relationships.                                                                                                                                                                                                                                         

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

definition of "household member" are:                                                                                                                                                                                    

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

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


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

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

                    rules of civil law;                                                                               

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

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


                                                                                                                                                                                                                                                  - 5 -                                                                                                                                                                                                                                             2575

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

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

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

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

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

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

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

to each other in specified ways.                                                                                                  

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

                           violence" exceeds the scope of its underlying rationale                                                                                                                                     

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

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

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

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

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


                                                                                                                                                                                                                                                                                              4  and Bingaman  

                                                      We initially addressed this problem in                                                                                                                Carpentino v. State                                                                                     


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


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


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


              3            (...continued)  

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

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



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

                                                                                                                                                                       - 6 -                                                                                                                                                                  2575

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


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


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


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


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


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



                               For  example,  if  an  elderly  uncle  comes  to  visit  his  


                    favorite  nephew  and,  while  lighting  his  pipe,  recklessly  


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


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


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


                    offense of criminally negligent burning under AS 11.46.430  


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


                    the  victim  is  related  to  the  perpetrator  within  the  fourth  


                    degree   of   consanguinity   -   thus   qualifying   them   as  


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


                               Similarly,  if  a  group  of  former  college  roommates  


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


                    and if one of the visiting former roommates gets drunk and  


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


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


                    act of "domestic violence".                   The intoxicated roommate has  


                    committed  the  listed  offense  of   fourth-degree  criminal  


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


                    property of another with reckless disregard  for the risk of  


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


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


Carpentino, 42 P.3d at 1141.  


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


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


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

                                                               - 7 -                                                          2575

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

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


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

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

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

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

                6   As we explained:  



                                        [A]  person  who  causes  a  traffic  accident  through  


                          criminal negligence and,  by chance,  happens to injure the  


                          child of a former high school sweetheart has committed a  


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


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


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


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


                          beating their spouse.   Yet the defendant's negligent driving  


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


Bingaman, 76 P.3d at 412.  


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


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


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


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


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


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


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


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


       6     Bingaman , 76 P.3d at 406.                          

                                                                                 - 8 -                                                                           2575

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

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

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

                       As we explained in  Williams,  



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


                        condition would serve no legitimate governmental purpose.  


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


                       her       infant       daughter           and       was        charged          with       reckless  


                        endangerment or assault for that offense, the court would be  


                        obliged to prohibit the mother from returning to the residence  


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


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


                        attending college during this time, had recklessly burned her  


                       parents'  front  porch  and  been  charged  with  criminally  


                       negligent burning for that offense, the court would be obliged  


                       to  bar  her  from  returning  home  for  the  duration  of  her  


                       pre-trial release.  


                                   .   .   .  


                                   As  the  above  examples  illustrate,  under  Alaska's  


                        far-reaching definition of domestic violence, probable cause  


                       to  believe  a  person  has  committed  a  domestic  violence  


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


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




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


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


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


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


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


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


      7     Williams, 151 P.3d at 467.                    

                                                                        - 9 -                                                                   2575

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

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


from its everyday meaning".                                           

                                                     We then concluded:  



                                   Because the definition of "crime involving domestic  


                       violence" is so expansive - because it encompasses many  


                       situations that have nothing to do  with  an assault by one  


                       domestic partner against another - there will be many cases  


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


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


                       require  the  defendant   to  undergo  batterer's  intervention  




Cooper, 133 P.3d at 707.  


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


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


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


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


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


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


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


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


described the social policy underlying this aggravator:  



                                   Both  the   Alaska  Legislature  and  this  court  have  


                       recognized  that  domestic  violence  ...  represents  a  serious  


                       danger  to  its  victims  and  a  significant  harm  to  society  at  


      8     Cooper, 133 P.3d at 707.                    

                                                                      -  10 -                                                                 2575

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

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

                                                        aggravated   if   it   was   committed   against   the   defendant's  

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

                                                        of the defendant's household.                                                                                                  By enacting this aggravating                                            

                                                        factor, the legislature has declared that felony assaults against                                                                                                                                                         

                                                        spouses and former spouses are to be considered atypically                                                                                                                                                    

                                                        serious (all else being equal).                                                                                        

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

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

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

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

exceeds this underlying rationale.                                                                                                        

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

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

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

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

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

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

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


resident of the defendant's dormitory or barracks.                                                                                                                                                                  

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


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


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


defendant's degree of dangerousness.  


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

                                                                                                                                                                        -  11 -                                                                                                                                                                      2575

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

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

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

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



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


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


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


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


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


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


in the crime.  


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


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


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


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





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


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


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


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


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


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

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

                                                                      -  12 -                                                                2575

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