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Smith v. State (7/27/2018) ap-2608

Smith v. State (7/27/2018) ap-2608


               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-12390  

                                                         Appellant,                                      Trial Court No. 3AN-12-8143 CR  


                                                                                                                             O P I N I O N  


                                                         Appellee.                                              No. 2608 - July 27, 2018  

                            Appeal   from  the  Superior  Court,  Third  Judicial  District,  


                            Anchorage, Michael L. Wolverton, Judge.  

                            Appearances:                      Jane  B.  Martinez,  Law  Office  of  Jane  B.  


                             Martinez,  LLC,  under  contract  with  the  Office  of  Public  


                            Advocacy, Anchorage, for the Appellant.  June Stein, Assistant  


                            Attorney General, Office of Criminal Appeals, Anchorage, and  


                             Craig W. Richards, Attorney General, Juneau, for the Appellee.  


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



                             Judge WOLLENBERG.  

                            A jury found James Earl Smith guilty of first-degree robbery, first-degree                                                           

burglary, second-degree assault, and second-degree theft in connection with a home                                                                                           

invasion. At Smith's sentencing, the trial court merged the theft, but not the assault, into                                                                                     

the robbery conviction.                             

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

                     On appeal, Smith argues that Alaska's double jeopardy clause requires the  


merger of the robbery and the assault into a single conviction. Smith also argues that the  


judgment fails to properly reflect the merger of the robbery and the theft into a single  


conviction.  We agree with Smith on both points and remand for the trial court to merge  


the robbery, assault, and theft verdicts into a single conviction and modify the judgment  


to reflect the entry of two convictions - first-degree robbery and first-degree burglary.  


                     Additionally, Smith argues that the trial court erred by declining to find a  


mitigating  factor  under  AS  12.55.155(d)(4)  -  that  Smith  was  a  youthful  person  


substantially influenced to commit the crime by a more mature person.  We uphold the  


trial court's decision denying this mitigator.  


           Underlying facts  


                     In the summer of 2012, Benjamin Gall and Amanda Swafford were renting  


a room in their apartment to Richard Erdmann and his girlfriend.  Erdmann was paying  


rent to Gall at least partially in the form of heroin.  


                     After a physical altercation between Gall and Erdmann, Gall and Erdmann  


shook hands, but Gall told Erdmann to move out.  A few hours later, Erdmann returned  


with three grams of heroin for Gall to sell while he was commercial fishing in Whittier.  


Gall accepted the heroin and went to Whittier as planned, but he returned to Anchorage  


two days early without having sold the heroin.  


                     That evening, a group of men broke into Gall and Swafford's apartment  


while they were sleeping. The group included Erdmann, James Smith, Taylor Smith, and  


a fourth man allegedly named "Hugo."  Gall knew all of the men except for Hugo.  


                     Gall encountered Hugo at the top of the stairs; Gall lunged at Hugo and the  


two tumbled down the stairs and flipped over the banister.   Once Gall landed at the  


bottom of the stairs, all four men began kicking Gall in the face and head.  Hugo then  


                                                               - 2 -                                                          2608

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

held Gall down while the other three men took items from the apartment and put them                                                                                                                                                                                                       

in a vehicle outside.                                                   At one point when Gall tried to get up, Hugo hit him in the face                                                                                                                                                     

with a hammer.                                          

                                              Anchorage police responded to the apartment after receiving two 911 calls.                                                                                                                                                                                       

The responding officer arrived just as the robbers' vehicle was exiting the parking area.                                                                                                                                                                                                                      

After a short pursuit, the vehicle stopped, and three men fled the vehicle.                                                                                                                                                                                       The officer   

recognized Erdmann and Taylor Smith and later identified James Smith. The police also                                                                                                                                                                                                         

determined that James Smith was the registered owner and driver of the vehicle, which                                                                                                                                                                                                 

contained Gall's and Swafford's belongings.                                                                                                                  

                                              Gall sustained multiple fractures to his face, nasal, and sinus area from the                                                                                                                                                                      

beating. Gall testified that he now has metal plates and screws in his face and that he has                                                                                                                                                                                                     

lost significant vision in his right eye.                                                                           


                                              A grand jury indicted James Smith and his co-defendants - Erdmann and  


Taylor Smith - for first-degree robbery, first-degree burglary, second-degree assault,  


and second-degree theft.1  


                                                                                            The police never located or charged Hugo.  


                                              The three co-defendants were tried together. At trial, the prosecutor argued  


that the defendants initially intended to commit a burglary, but when they found Gall and  


 Swafford at home, the incident escalated into a robbery.  The prosecutor argued that the  


defendants assaulted Gall in order to facilitate the taking of Gall's property to satisfy a  


drug debt.  

            1          See  AS  11.41.500(a)(3)  (first-degree  robbery);  AS  11.46.300(a)(1)   (first-degree  

burglary); AS 11.41.210(a)(1) (second-degree assault); AS 11.46.130(a)(1) (second-degree  

theft); and AS 11.16.110(2) (accomplice liability).  

                                                                                                                                              -  3 -                                                                                                                                         2608

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

                           The jury convicted the three defendants of all charges. At the prosecutor's                                                


request,   the court also                        submitted   special verdict forms to                                     the jury.                             

                                                                                                                                                 In  the special  


verdicts, the jury found that in the course of committing first-degree robbery, none of the  


 co-defendants used a dangerous instrument or caused serious physical injury to Gall. In  


 other words, the verdicts indicated that the jury found that Smith and his co-defendants  


were complicit in the robbery, but that it was Hugo who personally used a dangerous  


 instrument and caused serious physical injury to Gall.  


                           Prior to sentencing, Smith proposed mitigating factor AS 12.55.125(d)(4)  


- that Smith was a youthful person who had been substantially influenced to commit  


the robbery by a more mature person (Erdmann). Smith also argued that the robbery and  


 assault verdicts should merge into a single conviction.  


                           The prosecutor agreed that the robbery and theft verdicts should merge, but  


he opposed Smith's request to merge the robbery and assault verdicts.  The prosecutor,  


however, supported the imposition of completely concurrent sentences for the robbery  


 and the assault.  

       2      The prosecutor sought the special verdicts because Smith was a first felony offender,   

 and the prosecutor wished to seek an enhancement of Smith's sentence for robbery (a class                                                                      

A felony) if the jury found him guilty of that offense.                                                    See AS 11.41.500(b) (first-degree   

robbery is a class A felony).                            To establish the enhancement, the State needed to prove to a  

jury that Smith                personally  used a dangerous instrument or caused serious physical injury   

 during the commission of the robbery (rather than through the conduct of another).                                                                                   See  

 former AS 12.55.125(c)(2)(A) (pre-2016 version) (if the defendant is a first felony offender                                                                 

 and possessed a firearm, used a dangerous instrument, or caused serious physical injury or  

 death during the commission of a class A felony, the sentencing range is elevated from 5 to                                                                           

 8 years to 7 to 11 years);                         see also West v. State, 223 P.3d 634, 638 (Alaska App. 2010)  

 (entitling defendant to a jury trial on this issue);                                       Dailey v. State, 675 P.2d 657, 661 (Alaska  

App. 1984) (applying class A sentencing enhancement statute   only to a defendant who   

personally satisfied enhancement criteria).  

                                                                                  - 4 -                                                                              2608

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

                                                  At sentencing, the court rejected Smith's proposed mitigating factor.                                                                                                                                                                                          The  

court merged the robbery and theft verdicts into a single conviction.                                                                                                                                                                                          The court did not                                     

expressly rule on Smith's request to merge the robbery and the assault, but the court                                                                                                                                                                                                                        

implicitly denied Smith's request when it announced its intent to impose the prosecutor's                                                                                                                                                                                           

recommended sentence and then imposed sentence on the three remaining convictions.                                                                                                                                                                                                                                                   

                                                  The court imposed a sentence of 8 years with 3 years suspended on the                                                                                                                                                                                              

robbery conviction, with the sentences on the assault and burglary convictions running                                                                                                                                                                                                              

concurrently to each other and to the robbery sentence.                                                                                                                                                                 Smith therefore received a                                                                          

composite sentence of 5 years to serve.                                                                                                            

                                                  This appeal followed.                        

                         Smith's argument that he should not have received separate convictions                                                                                                                                                              

                         and sentences for first-degree robbery and second-degree assault                                                                                                                                                          

                                                  Smith   contends   that,   under   the   double   jeopardy   clause   of   the   Alaska  

Constitution (article I, section 9), he could not lawfully receive separate convictions for                                                                                                                                                                                                                           



first-degree robbery and second-degree assault.                                                                                                                                                The failure to merge verdicts that  


constitute the "same offense" for double jeopardy purposes constitutes fundamental  




                                                  In  Whitton v. State, the Alaska Supreme Court established  the test for  


determining  whether  two  crimes  constitute  a  single  offense  for  double  jeopardy  

             3           Article I, section 9 of the Alaska Constitution provides that "[n]o person shall be put     

in jeopardy twice for                                                           the   same offense."    Multiple punishments for "the same offense"  

violate this constitutional provision.  Whitton v. State, 479 P.2d 302, 310 (Alaska 1970).  

            4           Johnson v. State , 328 P.3d 77, 83 (Alaska 2014).  

                                                                                                                                                        -  5 -                                                                                                                                                   2608

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


purposes.   Under   Whitton, a court must compare the different statutory provisions as                                                                      

applied to the facts of the case and evaluate any differences in intent or conduct in light                                                              


of the societal interests to be vindicated.                                                                                                                

                                                                                  If the differences in intent or conduct are  


"insignificant or insubstantial" in relation to the societal interests, the court may only  



                                                                           The supreme court recently reaffirmed that the  

enter a single conviction and sentence. 


 Whitton test "requires a comparison of the different statutes 'as they apply to the facts  



of the case[.]'" 


                         The basic elements of the crime of robbery in Alaska are set out in the  


second-degree robbery statute, AS 11.41.510. Under that statute, and as relevant to this  


case, a person commits second-degree robbery if: (1) the person takes or attempts to take  


property from the immediate presence or control of another and, in the course of that  


taking or attempted taking, (2) the person uses force or threatens the immediate use of  


force upon any person, (3) with the intent to prevent or overcome resistance to the taking  


of the property or the retention of the property after taking.  


                         Under AS 11.81.900(b)(27), "force" is defined broadly as "any bodily  


impact, restraint, or confinement or the threat of imminent bodily impact, restraint, or  



      5      Whitton, 479 P.2d at 312.

      6     Id.

      7     Id. at 312, 314; see also Rofkar v. State, 273 P.3d 1140, 1143 (Alaska 2012).

      8     Rofkar, 273 P.3d at 1143 (quoting Whitton, 479 P.2d at 312) (emphasis in Rofkar).

                                                                            -  6 -                                                                       2608

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

                        Second-degree robbery is elevated to first-degree robbery if, in relevant                                           

part, any participant in the robbery causes or attempts to cause serious physical injury                                                        


to a person.                                                                                                                                              

                        The State charged Smith with first-degree robbery under this provision.  


                        The   State   also   charged   Smith   with   second-degree   assault   under  


AS 11.41.210(a)(1) - i.e., under the theory that Smith, as principal or accomplice, and  


with  intent to  cause physical injury,  caused  physical  injury  to  Gall by  means of a  


dangerous instrument.  


                        We have previously held that when identical threats of harm underlie both  


a first-degree (armed) robbery charge under AS 11.41.500(a)(1) and a third-degree  


assault charge for placing a single victim in fear of imminent serious physical injury, and  


the jury returns guilty verdicts on both counts, Alaska's double jeopardy clause requires  



                                                                                       We recognized that although robbery  

the verdicts to merge into a single conviction. 


requires an additional intent - intent to prevent or overcome resistence to the taking or  


retention of property - the differences between the crimes were not substantial enough  


to justify multiple convictions when the threat of immediate harm that was a component  


of the robbery was the same threat that placed a person in fear of imminent serious  



physical injury for purposes of the assault. 

      9     AS 11.41.500(a)(3).  See Alaska Criminal Code Revision, Tentative Draft, Part II, at  

83 (1977) (describing factors that aggravate second-degree robbery to first-degree robbery).   

      10    Moore v. State , 218 P.3d 303, 306 (Alaska App. 2009) (citing Sudbury v. State, 2007  

WL 293129, at *4-5 (Alaska App. Jan. 31, 2007) (unpublished); Tremont v. State, 1994 WL  


 16196222, at *3 (Alaska App. Mar. 30, 1994) (unpublished); Holmes v. State, 1984 WL  


908540, at *3-4 (Alaska App. June 20, 1984) (unpublished)).  

      11    Holmes, 1984 WL 908540, at *4 (citing Brookins v. State, 600 P.2d 12, 16 (Alaska  


 1979)); see also Nell v. State, 642 P.2d 1361, 1366 (Alaska App. 1982) (noting that "it is  


clear  that  the  legislature,  in  passing  [the  second-degree]  robbery  statute,  intended  to  


emphasize the fact that robbery is a crime against the person and deemphasize the theft  



                                                                         -  7 -                                                                   2608

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

                                  We see no reason to reach a different outcome when both charges are based                                                                                                      

on the same physical injury, and the State relies on the victim's injury to elevate second-                                                                                                                

degree robbery to first-degreerobbery                                                            under AS11.41.500(a)(3). We                                                    therefore hold that  

when the State relies on the infliction of serious physical injury to elevate second-degree                                                                                               

robbery to first-degree robbery under subsection (a)(3), Alaska's double jeopardy clause                                                                                                                       

does not permit a separate conviction for assault based on the same injury.                                                                                                                     12  


                                   Our conclusion is supportedbyOregoncaselawconstruing nearly identical  


statutes.  In 1978, when the Alaska Legislature revised Alaska's criminal code, it based  


Alaska's  revised  robbery  and  second-degree  assault  statutes  on  the  corresponding  



statutes in Oregon.                                      That same year, the Oregon Court of Appeals issued a decision  


merging a second-degree assault conviction into an accompanying first-degree robbery  


conviction.  The court explained, "[W]hen the state relies upon precisely the same act to  


establish  the  use-physical-force  element  of  robbery  and  the  cause-physical-injury  


element of assault, the assimilation of one crime into the other is so substantial as to  



warrant assuming a legislative intent to merge." 

         11      (...continued)  

aspects of the offense").  

         12       Cf. Marker v. State, 692 P.2d 977, 982-83 (Alaska App. 1984) (recognizing distinction                                                               

between "force" and physical injury but holding that the trial court erred in declining a lesser-  

included offense instruction for fourth-degree assault where evidence supporting second- 

degree robbery unequivocally established physical injury).  

         13      Alaska Criminal Code Revision, Tentative Draft, Part I, at 97 (1977); Alaska Criminal  

Code Revision, Tentative Draft, Part II, at 110 (1977).  

         14      State v. Steele, 577 P.2d 524, 528 (Or. App. 1978).  

                                                                                                         -  8 -                                                                                                     2608

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

                           We acknowledge that even when first-degree robbery and assault occur as                                                                       

part of the same criminal episode, they may be based on separate and distinct acts of                                                                                    

 force.   In that case, separate convictions will be warranted.                                                       15  


                           Under the facts of this case, however, the robbery and the assault must  


merge into a single conviction.   The prosecutor did not argue that Smith (or another  


participant) committed two separate and distinct acts of violence, one sufficient to satisfy  


the second-degree assault charge and the other sufficient to support the conviction for  


 first-degree robbery under AS 11.41.500(a)(3).  Rather, the prosecutor argued that the  


jury should convict the defendants of both charges for conduct occurring over the entire  



                           And for  purposes of elevating  the robbery  to first-degree  robbery  (by  


 causing or attempting to cause serious physical injury), the prosecutor did not single out  


 any specific act that caused Gall's injuries.  Rather, the prosecutor argued generally that  


the  jury  could  infer  from the  extensive  injuries  to  Gall's  head  that  the  defendants  


 intended to cause him serious physical injury.  


                           In short, the prosecutor did not argue that there were separate and distinct  


 acts of physical force, one supporting the assault charge and the other supporting the  


 first-degree robbery charge.  


                           On appeal, the State argues that the special verdict forms demonstrate that  


the jury found the assault to be distinct from the robbery.  In particular, the State argues  


that since the jury found that Smith did not use a dangerous instrument in the course of  


the robbery, and the assault charge required use of a dangerous instrument, the two  


 crimes were separate and should not merge.  

       15     See  Rollin M. Perkins & Ronald N. Boyce,                                              Criminal Law, at 350 (3rd ed. 1982)                   

 (footnotes omitted).  

                                                                                  -  9 -                                                                            2608

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

                     But the State overlooks the fact that Smith was charged as an accomplice  


to both the robbery and the assault.  The special verdict form omitted any reference to  


accomplice liability, and instead asked the jurors to decide whether Smith personally  


caused  serious  physical  injury  or  used  a  dangerous  instrument  in  the  course  of  


committing the robbery. Thus, the special verdict forms left open the possibility that the  


jury found Smith guilty based on his accomplice's conduct.  


                     Our review of the record persuades us that this is precisely what the jury  


found.  As a technical matter, the special verdicts show that the jury reached one of two  


conclusions  regarding  the  robbery  -  either  (1)  Smith  and  his  co-defendants  were  


accomplices to Hugo's act of causing (or attempting to cause) serious physical injury,  


or (2) Smith and his co-defendants attempted to personally cause serious physical injury  


during the robbery.  


                     The second option is implausible under the facts of this case.  First, Gall  


suffered extensive injuries.   None of the co-defendants actively contested that Gall  


suffered serious physical injury, and two of the defense attorneys expressly conceded the  




                     Second, the only evidence the jury heard about Smith's personal assaultive  


conduct was that he used his feet to kick Gall.  The court instructed the jury that feet  


constitute a "dangerous instrument" only "if used in a way or manner . . . capable of  


causing death or serious physical injury."  The jury's finding that Smith and his co- 


defendants did not use a dangerous instrument and thus, that they did not use their feet  


in  a  manner  capable  of  causing  serious  physical  injury,  negates  any  reasonable  


conclusion in the context of this case that Smith personally  attempted to cause serious  


physical injury during the course of the robbery.  


                                                              -  10 -                                                         2608

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

                                                 Accordingly, the jury must have found Smith and his co-defendants guilty                                                                                                                                                                              

of first-degree robbery, not as principals, but as accomplices to Hugo's act of causing                                                                                                                                                                                                         

serious physical injury.                                                                 

                                                 The same is true for the assault verdict.                                                                                                      There was no evidence that Smith                                                                       

used his feet at two separate and distinct times - one for purposes of the robbery and                                                                                                  

one for purposes of the assault.  Because the jury concluded that Smith did not use his                                                                                                                                                                                                                          

feet in a manner capable of causing serious physical injury for purposes of the robbery,                                                                                                                                                                                                     

it can rationally be inferred that the jury reached the same conclusion as to the assault.                                                                                                                                                                                                                                      

In fact, the prosecutor himself acknowledged, prior to sentencing and at the sentencing                                                                                                                                                                                              

hearing itself, that the special verdict implied that the jury concluded that the hammer                                                                                                                                                                                                      

was the dangerous instrument and that Smith was guilty of second-degree assault as                                                                                                                                                                                                                                  

Hugo's accomplice.                                                        16  


                                                 We therefore conclude, contrary to the State's argument in this appeal, that  


the special verdicts in this case further underscore the need for merger because of the  


identity of the conduct underlying the two counts.  To the extent there is any ambiguity  


as to the proper interpretation of the jury's verdicts, that ambiguity must be resolved in  



 Smith's favor. 


                                                 Accordingly, we vacate the separate assault conviction and direct the trial  


court to merge the second-degree assault verdict into the first-degree robbery conviction.  

             16          Indeed, in the briefing of Smith's co-defendant's appeal, a different attorney for the                                                                                                                                                                                      

 State advocates this precise interpretation of the special verdict.                                                                                                                                                              See Taylor Smith v. State,  

Court of Appeals File No. A-12545, Appellee's Brief, at 26-27.  

             17         State v. McDonald, 872 P.2d 627, 660 (Alaska App. 1994) ("[C]onjecture based on  


the relative strength of competing theories of guilt can be no substitute for certainty when the  


double  jeopardy clause  is  implicated.                                                                                                      Any ambiguity must  be  resolved  in  favor  of  the  


                                                                                                                                                    -  11 -                                                                                                                                                  2608

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

                    The trial court should amend the judgment to reflect two convictions -one                                                                                                                                     

                  for first-degree robbery and one for first-degree burglary                                                                                        

                                        In   a   related   argument,   Smith   maintains   that   the   judgment  improperly  

reflects two separate convictions for robbery and theft, when in fact the trial court                                                                                                                                                          

merged these counts at sentencing.                                                                       The judgment states that the theft merged with the                                                                                           

robbery only "for purpose of sentencing."                                                                                      

                                        Smith contests this characterization and argues that the finding of merger                                                                                                                         

precludes not only separate sentencing, but also the entry of a separate conviction, on the                                                                                                                                                            

theft count.  He argues that we should vacate the theft conviction.                                                                                                                                 The State concedes              

error on this point.                  


                                        The State's concession is well-founded.                                                                                                                                                                           

                                                                                                                                                                       As we explained in Nicklie v.  



State, Alaska law does not recognize merger for sentencing purposes only.                                                                                                                                                                 Rather,  


when a jury finds a defendant guilty of two counts that merge, the merger results both  


in a single sentence and in a single conviction, based on the jury's two verdicts.  


                                       Accordingly, we remand this case for modification of the judgment. Based  


on our ruling that the assault must merge with the robbery, the amended judgment should  


reflect that Smith was convicted, and sentenced, for only two convictions - first-degree  


robbery  (based  on  the  jury's  robbery,  assault,  and  theft  verdicts)  and  first-degree  


          18        See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (requiring an appellate court to  

independently evaluate any concession of error by the State in a criminal case).  

          19       Nicklie v. State, 402 P.3d 424, 425-26 (Alaska App. 2017).  

          20        See id. at 426.  

                                                                                                                       -  12 -                                                                                                                     2608

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

                                      The superior court did not err in rejecting Smith's proposed mitigating                                                                                                                                                                                                                                                                                        


                                                                           Prior   to   sentencing,   Smith   asked   the   court   to   find   mitigating   factor  

AS 12.55.155(d)(4) - that he was a youthful person whose conduct was substantially                                                                                                                                                                                                                                                                                                                                             

influenced by another, more mature person.                                                                                                                                                                                                               Smith, who was nineteen years old at the                                                                                                                                                                                    

time of the commission of the offenses, argued that he was substantially influenced by                                                                                                                                                                                                                                                                                                                                                                                                  

Erdmann because Erdmann, who was more than six years older than Smith, orchestrated                                                                                                                                                                                                                                                                                                                                               

the home invasion in order to collect on Gall's drug debt.                                                                                                                                                                                                                                                                            

                                                                           The trial court rejected the mitigating factor. The judge recognized the age                                                                                                                                                                                                                                                                                                                             

difference between Erdmann and Smith and acknowledged the fact that there was likely                                                                                                                                                                                                                                                                                                                                                                                   

a "leader" among the individuals who broke into Gall's home.                                                                                                                                                                                                                                                                                                                   However, the judge                                                                     

concluded that there was insufficient evidence to support the mitigator. The judge noted                                                                                                                                                                                                                                                                                                                                                                                

in particular Gall's testimony that, when he saw Smith stealing his belongings, he told                                                                                                                                                                                                                                                                                                                                                                                         

 Smith, "You're going to have to answer to God for this one," to which Smith responded                                                                                                                                                                                                                                                                                                                                                      

that Gall "knew the rules" and "knew this was coming."                                                                                                                                                                                                                                                                                       The judge concluded that                                                                                                           

 Smith's comment undercut Smith's assertion that he was "being led by somebody else                                                                                                                                                                                                                                                                                                                                                                                             

 [or] overwhelmed by somebody who's older."                                                                                                                                                                                                                             

                                                                           We have reviewed the judge's findings and the record.                                                                                                                                                                                                                                                                                Even if Smith                                      

qualified as a "youthful defendant" for purposes of mitigator (d)(4), we agree with the                                                                                                                                                                                                                                                                                                                                                                                              

trial court that Smith failed to present sufficient evidence that he was substantially                                                                                                                                                                                                                                                                                                                                       

influenced by or under particular pressure from Erdmann to participate in the robbery.                                                                                                                                                                                                                                                                                                                                                                                                         21  

                   21                 See AS 12.55.155(f) (requiring defendants to prove mitigating factors by clear and   

convincing evidence).  

                                      Smith argues that Gall's testimony lacked credibility, and the trial court therefore   

erred in relying on Gall's testimony about the statement Smith allegedly made regarding the                                                                                                                                                                                                                                                                                                      

"rules."   But the jury obviously credited Gall's testimony generally, and the trial judge,                                                                                                                                                                                                                                       


                                                                                                                                                                                                                                    -  13 -                                                                                                                                                                                                                                     2608

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

                      Accordingly, we uphold the trial court's decision rejecting the mitigator.                               


                      We REMAND this case for merger of the first-degree robbery, second- 


degree  assault,  and  second-degree  theft  verdicts  into  a  single  conviction  and  for  


modification of the judgment to reflect the entry of only two convictions - for first- 


degree robbery and first-degree burglary.  However, because Smith's sentence for the  


assault was completely concurrent to his sentence for the robbery, and our review of the  


record indicates that Smith's sentencing was not otherwise impacted by entry of the  


assault as a separate conviction, re-sentencing is not necessary.  


                      We otherwise AFFIRM the judgment of the superior court.  


      21   (...continued)  

having observed the trial and having seen Gall testify, was entitled to credit some or all of  


his testimony.  See Ebertz v. Ebertz, 113 P.3d 643, 646 (Alaska 2005) (noting that the trial  


court, when making factual findings, "performs the function of judging the credibility of  


witnesses and weighing conflicting evidence").  

                                                                   -  14 -                                                              2608

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