449 P.3d 1116
Alaska Ct. App.2019Background
- Farmer was tried on three joined 2013 incidents: cutting her ex‑husband Yates’s boat loose (criminal mischief/trespass) and two DWLR incidents (Feb and July). Jury convicted Farmer of fourth‑degree criminal mischief (damage ≥ $50) and acquitted on greater mischief and trespass; acquitted on Feb DWLR but convicted on July DWLR and related conditions‑of‑release charge.
- Farmer testified she cut the mooring lines because she feared Yates (history of abuse) and thought he might use the boat to stalk or harm her; boat grounded and required salvage; community response incurred costs.
- Trial court refused Farmer’s requested jury instruction on the necessity defense for the mischief charge; Farmer had sought to show imminent danger and lack of alternatives.
- Prosecutor in opening identified a witness (Cathia Demmert) who would testify that she switched seats with Farmer; Demmert was later excused from subpoena and did not testify; defense argued prejudice and sought dismissal (not granted). Defense did not request a mistrial.
- At sentencing the court held a restitution hearing and ordered Farmer to pay $9,797 (keel/labor, haul‑out, oil booms, lost fishing income). Farmer argued restitution could not exceed $499.99 (the statutory cap for fourth‑degree mischief) and raised double jeopardy and statutory objections.
Issues
| Issue | Farmer's Argument | State's Argument | Held |
|---|---|---|---|
| Whether Farmer was entitled to a jury instruction on necessity for criminal mischief | Evidence showed fear of Yates, no police protection, and no alternatives—necessity justified cutting lines | Farmer lacked evidence of imminent harm, had lawful alternatives, and foreseeably risked substantial property harm | Trial court did not err: no sufficient evidence on imminence, alternatives, or proportionality to require instruction |
| Whether July 2013 DWLR and related charge should be dismissed because prosecutor told jury of Demmert testimony then excused her subpoena | Prosecutor’s conduct in promising witness then excusing her was misconduct that tainted jury and warranted dismissal | No preservation of a misconduct claim; remedy available was curative instruction or mistrial; defense waived mistrial and used self‑help argument to jury | Not preserved; no abuse of discretion in denying dismissal; denial affirmed |
| Whether prosecutor’s closing misstated phone records (impeachment) and whether plain error occurred | Misrepresentation of records undermined Farmer’s necessity defense and was plain error | Argument was contested interpretation of records; jury instructed to decide evidence; no objection; no prejudice shown | No plain error: jury instruction and defense argument mitigated any misstatement and acquittal on related charge shows lack of prejudice |
| Whether restitution may exceed statutory monetary cap for convicted degree (i.e., > $499.99) and implicate double jeopardy | Restitution was punishment for higher‑value offense acquitted by jury; statute and double jeopardy bar exceeding $499.99 | Restitution statutes allow payment for actual damages/loss caused by the crime by preponderance; different burdens and purposes than criminal classification; courts may find higher damages at sentencing | Court may order restitution for actual losses exceeding the statutory value range of the convicted degree; neither statute nor double jeopardy barred $9,797 award |
Key Cases Cited
- State v. Garrison, 171 P.3d 91 (Alaska 2007) (elements and standards for necessity defense instruction)
- McGee v. State, 162 P.3d 1251 (Alaska 2007) (necessity burden allocation and "some evidence" standard)
- Seibold v. State, 959 P.2d 780 (Alaska App. 1998) (necessity alternatives analysis)
- Fee v. State, 656 P.2d 1202 (Alaska App. 1982) (restitution may exceed statutory damage cap of convicted degree)
- Harris v. State, 678 P.2d 397 (Alaska App. 1984) (trial court not bound by jury verdict when determining restitution; preponderance standard)
- Hagberg v. State, 606 P.2d 385 (Alaska 1980) (discusses interpretation of restitution vis‑à‑vis verdict; distinguished)
- Brakes v. State, 796 P.2d 1368 (Alaska App. 1990) (sentencing may rely on conduct acquitted at trial due to different burdens of proof)