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IN THE COURT OF APPEALS OF THE STATE OF ALASKA 

LANOLAN ANDERSON, 

Appellant, 

v. 

STATE OF ALASKA, 

Appellee. 

Court of Appeals No. A-12294 

Trial Court No. 3AN-09-05898 CR 

O P I N I O N 

No. 2646 — June 7, 2019 

Appeal from the Superior Court, Third Judicial District, 

Anchorage, Jack W. Smith, Judge. 

Appearances: Krista Maciolek, Law Office of Krista Maciolek, 

Inc., Palmer, under contract with the Office of Public Advocacy, 

Anchorage, for the Appellant. Michal Stryszak, Assistant 

Attorney General, Office of Criminal Appeals, Anchorage, and 

Jahna Lindemuth, Attorney General, Juneau, for the Appellee. 

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

Judges. 

Judge WOLLENBERG. 

Lanolan Anderson was convicted of three counts of first-degree assault. 

The superior court sentenced him to a composite term of 20 years to serve. 

On appeal, Anderson raises several claims. First, Anderson argues that the 

court erred in failing to suppress his clothing, which the police seized without a warrant. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Second, Anderson argues that the court erred in instructing the jury regarding a witness’s 

unavailability. Third, Anderson argues that the court erred in rejecting two of his 

proposed mitigating factors and by giving insufficient weight to a third mitigating factor. 

Finally, Anderson argues that the court improperly found that Anderson had two prior 

felony convictions, rather than one, when determining the applicable presumptive 

sentencing range. 

For thereasonsexplained inthis decision,wereject Anderson’sclaims, and 

we affirm Anderson’s convictions and his sentence. 

Underlying facts and proceedings 

In May 2009, shortly before midnight, Anderson kicked in the front door 

of a residence in Anchorage, and he and two accomplices (all three armed with 

handguns) entered the residence. Once inside, Anderson’s accomplices shot two of the 

occupants and pistol-whipped a third. Anderson was also shot during this incident. 

All three occupants of the residence required medical treatment for their 

wounds, and two of them were taken to Providence Medical Center. Because Anderson 

was wounded, he contacted a friend, and this friend also took him to the emergency room 

at Providence. 

In response to the report of the shooting, Anchorage Police Officer Jean 

Mills went to Providence, where she expected to meet and interview the victims of the 

alleged home invasion. Mills arrived at the hospital just as Anderson got out of his 

friend’s vehicle, and Mills could see that Anderson was bleeding from a wound to his 

abdomen. From this, Mills assumed that Anderson was one of the victims. 

Mills accompanied Anderson into the emergency room and stayed there as 

the hospital staff treated him. Mills took photographs of Anderson as the medical staff 

worked on him, and she observed a gunshot wound to Anderson’s left side when the staff 

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cut off his clothing. Anderson at first confirmed that he had been at the residence where 

the home invasion occurred, but he later changed his story, telling Mills that he was in 

a grocery store parking lot when he was shot. 

Another officer then informed Mills that Anderson was a possible suspect 

in the home invasion. After some further questioning, Mills seized all of the clothing 

that the medical staff had removed from Anderson, including his shoes. 

The police subsequently compared aphotograph of thesoles of Anderson’s 

shoes to photographs of shoe impressions left on the kicked-in front door of the 

residence, and they appeared to match. At trial, a witness from the crime laboratory 

testified to the match between Anderson’s shoes and the shoe impressions on the front 

door of the residence. Crime lab representatives also testified that there was a blood stain 

on one of the shoes and that one of the victims could not be excluded as a source of the 

DNA found in the stain. 

Anderson and his two accomplices were charged with numerous felonies, 

including three counts of first-degree assault (one for each alleged victim).1 Prior to trial, 

Anderson filed a motion to suppress, arguing that the police unconstitutionally seized his 

clothing from the hospital emergency room. Anderson asked the court to suppress his 

clothing, as well as photographs of the clothing and the forensic analysis comparing the 

soles of his shoes to shoeprints recovered from the crime scene. 

The parties agreed to forgo an evidentiary hearing and to have the court 

decide the motion based on Officer Mills’s police report. Based on the police report, the 

superior court found that the seizure of Anderson’s clothing was justified by the plain 

view exception to the warrant requirement. 

AS 11.41.200(a)(1). 

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1 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Anderson and his co-defendants were tried together. At trial, Anderson 

argued that the alleged victims had actually assaulted him. 

The jury found Anderson guilty of the three first-degree assaults, but the 

jury was unable to reach verdicts on the remaining counts, including counts of firstdegree robbery and conspiracy to commit first-degree robbery. Ultimately, the State 

dismissed the remaining counts against Anderson, and his case proceeded to sentencing 

on the three assault convictions. (The jury could not reach verdicts as to Anderson’s codefendants, and their cases were later resolved without a trial.) 

At Anderson’s sentencing, the superior court rejected Anderson’s two 

proposed mitigators — that he played a minor role in the offenses, and that his conduct 

was the result of serious provocation from the victims.2 But the superior court did find 

that one of the assaults qualified as among the least serious conduct within the definition 

of the offense.3

 Anderson conceded one aggravating factor — that he had a history of 

aggravated assaultive behavior.4 

Finally, over Anderson’s objection, the superior court found that Anderson 

had two prior felony convictions for purposes of determining the applicable presumptive 

sentencing range. Because the court found that Anderson was a third felony offender, 

he was subject to a presumptive sentencing range of 15 to 20 years for each first-degree 

assault conviction.5 The court sentenced Anderson to a term of 15 years on each count. 

The court imposed some of this time consecutively, giving Anderson a composite 

sentence of 20 years, with no time suspended. 

2 AS 12.55.155(d)(2) and AS 12.55.155(d)(6), respectively. 

3 AS 12.55.155(d)(9). 

4 AS 12.55.155(c)(8). 

5 Former AS 12.55.125(c)(4) (pre-2016 version). 

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Anderson now appeals. 

Why we affirm the superior court’s denial of Anderson’s suppression 

motion 

Prior to trial, Anderson moved to suppress his clothing, arguing that the 

State had no justification for seizing the clothing without a warrant. The parties agreed 

that the superior court could decide this motion based solely on Officer Mills’s police 

report and the parties’ briefing — that is, without holding an evidentiary hearing. 

Based on the police report, the court concluded that the seizure of the 

evidence was lawful because the evidence was in plain view. More specifically, the 

court found that (1) Officer Mills was in a place where she was lawfully entitled to be; 

(2) the discovery of Anderson’s clothing was inadvertent, since Anderson arrived at the 

hospital while Mills was waiting for the victims of the home invasion; and (3) the 

evidentiary relevance of the clothing was immediately apparent.6 

Before we analyze the superior court’s ruling, we must discuss the two 

meanings of the phrase “plain view.” 

In his leading treatise on search and seizure law, Professor Wayne R. 

LaFave points out that the phrase “plain view” is actually used in two distinct Fourth 

Amendment contexts.7 

6 See Ahvakana v. State, 283 P.3d 1284, 1288 (Alaska App. 2012) (citing Reeves v. 

State, 599 P.2d 727, 738 (Alaska 1979)) (noting the three requirements of the plain view 

doctrine under Alaska law). 

7 1 Wayne R. LaFave, Search and Seizure § 2.2(a), at 597-604 (5th ed. 2012). 

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The first context, known as the “plain view doctrine,” originated in Justice 

Stewart’s plurality opinion in Coolidge v. New Hampshire.

8 This doctrine “refers 

exclusively to the legal justification . . . for the seizure of evidence which has not been 

particularly described in a warrant and which is inadvertently spotted in the course of a 

constitutional search already in progress or in the course of an otherwise justifiable 

intrusion into a constitutionally protected area.”9 

But courts also use the phrase “plain view” in a second context: to describe 

the situation “in which there has been no Fourth Amendment search at all,” and where 

“an observation is made by a police officer without a prior physical intrusion into a 

constitutionally protected area.”10 In this second context, where the observation of the 

evidence is not the result of a Fourth Amendment intrusion, “the observation is lawful 

without the necessity of establishing either pre-existing probable cause or the existence 

of a search warrant or one of the traditional exceptions to the warrant requirement.”11 

As Professor LaFave emphasizes, this second meaning of “plain view” 

“involves no intrusion covered by the Fourth Amendment [and] need not meet the three 

8 Coolidge v. New Hampshire, 403 U.S. 443, 465-71 (1971). 

9 Scales v. State, 284 A.2d 45, 47 n.1 (Md. App. 1971); see also State v. Spietz, 531 

P.2d 521, 524 n.11 (Alaska 1975) (recognizing that “the formal ‘Plain View’ Doctrine, as 

announced in Coolidge, is exclusively a post-intrusion phenomenon”) (quoting Brown v. 

State, 292 A.2d 762, 774 (Md. App. 1972)). 

10 LaFave, Search and Seizure § 2.2(a), at 599. 

11 Id. at 600; see also Spietz, 531 P.2d at 524 n.11 (noting that the “Plain View” Doctrine 

“does not contemplate the non-intrusion visual observation, such as where evidence is in 

‘open view’ and therefore seizable in a ‘constitutionally non-protected area’”) (quoting 

Brown, 292 A.2d at 774). 

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requirements set out in the Coolidge plurality opinion.”12 For this reason, courts 

sometimes describe this second context as “open view” rather than “plain view,” to avoid 

any ambiguity.13 

When Anderson litigated his suppression motion in the trial court, the State 

relied on the Coolidge plain view doctrine to justify the seizure of Anderson’s clothing. 

But Anderson argued that the Coolidge plain view doctrine did not apply to his case. 

Anderson took the position that Officer Mills was lawfully in his hospital 

room, and thus the seizure of Anderson’s clothing was not the result of a police intrusion 

into a constitutionally protected space. Rather, Anderson contended, the only Fourth 

Amendment violation that the police committed was the seizure of his clothing. 

In other words, Anderson essentially argued that his case fell within the 

second category of cases described by Professor LaFave — situations where the police, 

acting without a warrant, seize evidence that is in open view. 

12 LaFave, Search and Seizure § 2.2(a), at 601; see also McGee v. State, 614 P.2d 800, 

806 n.12 (Alaska 1980) (“[I]n non-search situations . . . , the requirement that discovery [of 

the evidence seized] be inadvertent is inapplicable. The inadvertent discovery requirement 

assures that police will not intentionally expand the permissible scope of an otherwise lawful 

search. Where there is no search, there is, a fortiori, no danger that the police will exceed 

their permissible limits.”). 

13 See LaFave, Search and Seizure § 2.2(a), at 599 (noting that this type of plain view 

is perhaps “deserving of a different label so as to avoid confusion of it with that discussed 

in Coolidge”); State v. Kaaheena, 575 P.2d 462, 466 (Haw. 1978) (distinguishing “[t]he 

‘open view’ doctrine” from the “visually similar, but legally distinct, ‘plain view’ doctrine”); 

Scales, 284 A.2d at 47 n.1 (stating that “[n]eedless confusion is frequently engendered by the 

employment in many opinions of the same phrase — ‘in plain view’ — to describe two 

visually similar but legally distinct situations[,]” and that it would be preferable to use “some 

alternative phraseology such as ‘clearly visible,’ ‘readily observable,’ ‘open to public gaze,’ 

etc.”). 

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“Open view” seizures are not necessarily lawful. While there may have 

been no unconstitutional search, the State must still establish that the seizure of the 

evidence was justified. It is true that the seizure of an article that is in open view does 

not involve any invasion of privacy, but the seizure does invade the owner’s possessory 

interest in the item.14 As Professor LaFave explains, “the seizure itself constitutes an 

interference with ‘effects’ protected by the Fourth Amendment.”15 Thus, in the absence 

of a search warrant, “some recognized ground for [a] warrantless seizure . . . must be 

present.”16 

Here, as part of the superior court’s ruling on Anderson’s suppression 

motion, the court found that when Officer Mills seized Anderson’s clothing, the 

evidentiary relevance of this clothing was “immediately apparent.” In this context, the 

phrase “immediately apparent” refers to situations where there is probable cause to 

believe that the object is evidence of criminal activity.17 Thus, when Anderson and the 

14 Horton v. California, 496 U.S. 128, 133-34 (1990). 

15 LaFave, Search and Seizure § 2.2(a), at 604. 

16 Id.; see also Soldal v. Cook County, 506 U.S. 56, 66 (1992) (holding that, “the absence 

of a privacy interest notwithstanding, ‘[a] seizure of the article . . . would obviously invade 

the owner’s possessory interest’” and implicate the Fourth Amendment) (quoting Horton, 

496 U.S. at 134); Sheffield v. United States, 111 A.3d 611, 619 (D.C. 2015) (“[T]he Fourth 

Amendment protects against unreasonable seizures of property in which the individual has 

a possessory interest, even if a privacy or liberty interest is not at issue.”); Jones v. State, 648 

So.2d 669, 675 (Fla. 1994) (“[E]ven if we were to find that Jones’ privacy interests were in 

no way compromised, there clearly was a meaningful interference with his constitutionally 

protected possessory rights when his effects were seized without a warrant.”). 

17 United States v. Hamie, 165 F.3d 80, 83 (1st Cir. 1999); see also Arizona v. Hicks, 

480 U.S. 321, 326 (1987) (holding that the police must have probable cause to believe an 

item is evidence of a crime or contraband when seizing the item pursuant to the “plain view” 

doctrine); United States v. Davis, 690 F.3d 226, 237 (4th Cir. 2012) (collecting cases stating 

(continued...) 

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State litigated whether the evidentiary relevance of Anderson’s clothing was 

“immediately apparent,” they effectively litigated whether the police had probable cause 

to believe that Anderson’s clothing was evidence of a crime. And when the superior 

court found that the relevance of Anderson’s clothing was “immediately apparent” to 

Officer Mills, the court in essence found that Mills had probable cause to believe that the 

clothing was evidence of the home invasion and shootings. 

Based on the record before us, we uphold the superior court’s finding of 

probable cause. Indeed, the record shows that Mills had probable cause to believe that 

Anderson’s clothing constituted evidence of a crime even before she and Anderson 

entered the hospital. 

Mills first saw Anderson’s clothing while she was waiting for the victims 

of the shooting to arrive at the hospital. As Anderson exited his friend’s vehicle, Mills 

saw that Anderson was wounded in the abdomen and that he was bleeding through his 

clothing. At that time, Mills mistakenly believed that Anderson was a victimof the home 

invasion. But regardless of whether Anderson was a victim or a suspect, the evidentiary 

relevance of his blood-stained clothing was immediately apparent. 

(Mills understandably did not seize Anderson’s clothing until after he was 

being treated in the hospital. And by then, Mills believed that Anderson was a suspect.) 

Because the police had probable cause to believe that Anderson’s clothing 

was evidence of criminal activity, the open view seizure of Anderson’s clothing was 

lawful. As the United States Supreme Court has said, it is “well settled” that the seizure 

17 (...continued) 

that “an item need not itself be contraband before it has an ‘incriminating nature,’ but 

instead, an item need only be evidence of a crime”); McGee, 614 P.2d at 806 (“The Fourth 

Amendment . . . requires that before seizing an item in plain view, the police must have 

probable cause to believe that the item seized is a fruit, instrumentality or evidence of a 

crime.”). 

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of property in open view “involves no invasion of privacy and is presumptively 

reasonable [if] there is probable cause to associate the property with criminal activity.”18 

In other words, probable cause to believe that an object is evidence of a crime is a 

recognized ground for a warrantless seizure, as long as seizing the object does not 

require any additional Fourth Amendment intrusion.19 

Other courts have upheld the warrantless seizure of a suspect’s clothing 

under similar circumstances.20 

18 Payton v. New York, 445 U.S. 573, 586-87 (1980); see also Texas v. Brown, 460 U.S. 

730, 748 (1983) (Stevens, J., concurring) (“[I]f an officer has probable cause to believe that 

a publicly situated item is associated with criminal activity, the interest in possession is 

outweighed by the risk that such an item might disappear or be put to its intended use before 

a warrant could be obtained. The officer may therefore seize it without a warrant.”); Brown 

v. State, 292 A.2d 762, 774 (Md. App. 1972) (noting that the seizure of evidence when there 

has been no prior intrusion into a constitutionally-protected zone is permissible without 

further justification), cited in State v. Spietz, 531 P.2d 521, 524 n.11 (Alaska 1975) & id. at 

525-26 (Erwin, J., concurring). 

19 See State v. Ricks, 816 P.2d 125, 125 (Alaska 1991) (distinguishing between the 

justified warrantless seizure of a jacket when police had probable cause to believe it 

contained contraband and the subsequent search of the jacket, for which the police needed 

a warrant); cf. Moore v. State, 372 P.3d 922, 926 (Alaska App. 2016) (noting that “[w]hen 

the police have probable cause to believe that an article of luggage contains evidence of a 

crime, and when there are no exigent circumstances authorizing an immediate warrantless 

search, the police are authorized to seize the luggage (but not search it) and to carry the 

luggage away for safe-keeping while they apply for a search warrant”). 

20 Compare Davis, 690 F.3d at 233-38 (upholding the warrantless seizure of clothing 

from the hospital when it was undisputed that the officer was lawfully present in the hospital 

room and had lawful access to the clothing, and it was apparent that the patient had been shot 

in the leg and that his clothing was beneath his bed); Chavis v. Wainwright, 488 F.2d 1077, 

1078 (5th Cir. 1973) (upholding the seizure of clothing from the foot of the stretcher at the 

hospital); Sheffield, 111 A.3d at 618-21 (upholding the seizure of clothing from the 

defendant’s hospital room); People v. Miller, 311 N.E.2d 179, 180 (Ill. App. 1974) 

(continued...) 

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On appeal, Anderson argues a different Fourth Amendment theory for the 

suppression of his clothing. He now contends that it was unlawful for the police to enter 

his hospital room. Thus, Anderson argues, his case falls within the first category of plain 

view cases described by Professor LaFave — cases where the Coolidge plain view 

doctrine applies because the discovery of the evidence was preceded by a Fourth 

Amendment search. 

But as we have explained, when Anderson’s suppression motion was 

litigated in the trial court, Anderson did not argue that the hospital room was a 

constitutionally protected space, nor did he argue that the police entered that space 

20 (...continued) 

(upholding the seizure of burned clothing remnants that the officer saw being removed at the 

hospital from the defendant, who was suspected of arson); Floyd v. State, 330 A.2d 677, 679 

(Md. App. 1975) (holding that the police could validly seize, as evidence of a crime, bloody 

clothing cut from the defendant’s body prior to his treatment for gunshot wounds), with 

People v. Jordan, 468 N.W.2d 294, 299-300 (Mich. App. 1991) (holding that the seizure of 

a defendant’s clothing from the hospital where he was undergoing surgerywas impermissible 

because the clothing was “neither obviously incriminating or contraband”); People v. 

Sanders, 47 N.E.3d 770, 777-78 (N.Y. 2016) (holding that the seizure of the defendant’s 

clothing from the hospital was not supported by probable cause; the defendant, who had been 

shot, was dressed in different clothing by the time the officer arrived, and there was no 

evidence that the officer knew that the defendant’s wounds were located in an area of the 

body that would be covered by clothing). 

See also 3 Wayne R. LaFave, Search and Seizure § 5.5(c), at 321 (5th ed. 2012) 

(noting that “a plain view seizure of personal effects of evidentiary value may also occur, for 

example, when those effects are viewed on or near the defendant’s person rather than within 

premises or a vehicle in which he has a privacy interest, as where clothing of an injured 

person at a hospital is seized because it constitutes evidence of a crime committed on or by 

that person”). 

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unlawfully. Under our supreme court’s decision in Moreau v. State, Anderson cannot 

use his appeal to raise new theories for suppression of the evidence.21 

For these reasons, we affirm the superior court’s denial of Anderson’s 

suppression motion. 

Anderson’s claim regarding Jury Instruction No. 9B 

At trial, outside the presence of the jury, one of the alleged victims invoked 

his Fifth Amendment right against self-incrimination. The State declined to grant this 

witness immunity, and thesuperior court ruled that thewitness was unavailable to testify. 

Over Anderson’s objection, the court later instructed the jury that this witness was 

unavailable to testify and that the jury should not speculate on the reason for his 

unavailability, or speculate as to what he would have said had he testified. 

On appeal, Anderson argues that the court’s instruction was improper. But 

Anderson does not meaningfully explain how this instruction was erroneous, nor does 

he explain how the error, if any, prejudiced him. 

Alaska Evidence Rule 512(a) declares that a claim of privilege is not a 

“proper subject of comment by judge or counsel,” and that no inference may be drawn 

fromtheexercise of an evidentiary privilege. In addition, Evidence Rule512(c)provides 

that “[u]pon request, any party against whom the jury might draw an adverse inference 

from a claim of privilege is entitled to an instruction that no inference may be drawn 

therefrom.” Thus, it appears that, to the extent the jury might have drawn an adverse 

21 Moreau v. State, 588 P.2d 275, 280 (Alaska 1978). 

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inference from the witness’s claim of privilege, the State was entitled to this instruction, 

even over Anderson’s objection.22 

In an unpublished opinion, Hesch v. State, we noted that there is a split 

among jurisdictions as to whether a neutralizing instruction is required when a witness 

invokes a privilege outside the presence of the jury and, as a result, the jurors are 

unaware that the privilege has been asserted.23 In Hesch, we declined to resolve whether 

Alaska Evidence Rule 512(c) entitles a party to the instruction even when the privilege 

is invoked outside the presence of the jury because, given the split in authority, the 

judge’s failure to give such an instruction did not constitute plain error.24 

In this case, we likewise conclude that we need not decide the proper 

interpretation of Rule 512, for two reasons. 

First, in his briefing, Anderson does not address — or even mention — 

Evidence Rule 512, even though this rule was discussed when the parties addressed this 

issue in the trial court. We therefore conclude that Anderson has inadequately briefed 

this claim of error.25 

Second, Anderson has not identified any actual prejudice that he suffered 

from this instruction, beyond the inability to argue the type of adverse inference 

precluded by Rule 512. We also note that the court separately instructed the jury 

22 See Commentary to Alaska Evid. R. 512(c) (“Whether an instruction shall be given 

is left to the sound judgment of counsel for the party against whom the adverse inference may 

be drawn. The instruction is a matter of right, if requested.”). 

23 See Hesch v. State, 2010 WL 1838597, *3 (Alaska App. May 5, 2010) (unpublished). 

24 Id. at *4. 

25 See Berezyuk v. State, 282 P.3d 386, 399 (Alaska App. 2012) (holding that when an 

opening brief “merely mentions a claim, with no substantive argument of the issue, and with 

no citation to pertinent legal authority, the claim will be deemed waived”). 

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(without objection) that it could only consider testimony and exhibits that were actually 

admitted as evidence. 

Accordingly, we reject Anderson’s challenge to Instruction No. 9B. 

The proposed mitigators that the superior court rejected 

At sentencing, Anderson asked the superior court to find either that he 

played a minor role in the assaults or, in the alternative, that he committed the three 

assaults because of serious provocation from the victims.26 The superior court rejected 

both of these proposed statutory mitigators. 

On appeal, Anderson points out that the jury was unable to reach verdicts 

on the charges of first-degree robbery and conspiracy to commit first-degree robbery. 

And he notes that his trial attorney argued in closing that there was no robbery or 

conspiracy, but in fact the “purported robbery victims assaulted [Anderson].” Fromthis, 

Anderson cursorily claims that the superior court could have found either mitigator and 

that the court erred in failing to do so. 

ButAnderson fails to addressthesuperiorcourt’s findings, let aloneexplain 

why these findings are erroneous. The superior court found that “[Anderson’s] role 

wasn’t minor because, but for the planning, but for the recruiting, but for the kicking in 

the door, but for three people with weapons being present in this residence, none of the 

assaults would have occurred.” The superior court then emphasized that Anderson “was 

involved in the planning. He kicked in the door. He was clearly present[;] the victim’s 

26 AS 12.55.155(d)(2) and AS 12.55.155(d)(6), respectively. 

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blood was on his sweatshirt. So, but for his conduct, there wouldn’t have been any 

assaults.”27 The superior court therefore rejected the proposed “minor role” mitigator. 

Regarding the “serious provocation” mitigator, the court found that the 

victims’ efforts to defend themselves when their home was invaded by three armed 

individuals did not constitute “provocation” mitigating Anderson’s conduct. 

Anderson has not shown that the superior court’s factual findings are 

clearly erroneous.28 Based on these facts, we conclude that Anderson failed to prove his 

proposed mitigators by clear and convincing evidence.29 

The proposed mitigator that the superior court found 

Anderson proposed an additional mitigating factor as to one of his assault 

convictions. The superior found this mitigator — concluding that the pistol-whipping 

of one of the victims was among the least serious conduct included within the definition 

of first-degree assault.30 

27 This sweatshirt was not seized from the hospital but rather from the residence of the 

woman who drove Anderson to the hospital. 

28 See Michael v. State, 115 P.3d 517, 519 (Alaska 2005) (holding that the existence or 

non-existence of a mitigating factor is a mixed question of fact and law; any factual findings 

regarding the nature of the defendant’s conduct are reviewed for clear error and whether 

those facts establish the mitigator is a legal question reviewed de novo). 

29 See AS 12.55.155(f)(1) (mitigating factors must be established by clear and 

convincing evidence). 

30 AS 12.55.155(d)(9). 

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On appeal, Anderson argues conclusorily that the superior court “declined 

to give [this mitigator] adequate weight” and that Anderson should be resentenced. We 

conclude that Anderson’s briefing is inadequate to preserve this claim of error.31 

The superior court did not err when it found that Anderson had two prior 

felony convictions 

The maximum sentence for first-degree assault, a class A felony, is 20 

years.32 At the time Anderson committed his offenses, the presumptive sentencing range 

for a second felony offender was 10 to 14 years, and the presumptive sentencing range 

for a third felony offender was 15 to 20 years.33 Anderson argues on appeal that the 

superior court erred when it found he had two prior felony convictions and was therefore 

a third felony offender. 

The calculation of the number of a defendant’s prior felony convictions for 

purposes of presumptive sentencing is governed by AS 12.55.145. Under subsection 

(a)(1)(C) of that statute, two or more felony convictions “arising out of a single, 

continuous criminal episode” constitute a single conviction if “there was no substantial 

change in the nature of the criminal objective” during that episode, and if the defendant 

received concurrent sentences for the crimes. 

At the time Anderson committed the offenses in this case, he had been 

previously convicted (in a single case) of two felonies in the state of Washington: 

31 See Petersen v. Mutual Life Ins. Co. of New York, 803 P.2d 406, 410 (Alaska 1990) 

(“Where a point is not given more than a cursory statement in the argument portion of a brief, 

the point will not be considered on appeal.”). 

32 AS 12.55.125(c). First-degree assault is a class A felony. AS 11.41.200(b). 

33 Former AS 12.55.125(c)(3) (2009) and former AS 12.55.125(c)(4) (2009), 

respectively. 

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manslaughter and second-degree assault, involving two separate victims. In the superior 

court, Anderson argued that these twoprior convictions constituteda“singleconviction” 

for purposes of AS 12.55.145(a)(1)(C). 

Anderson asserted that both convictions arose out of a single “melee” and 

that they should therefore be treated as one prior felony conviction for purposes of 

presumptive sentencing. Under AS 12.55.145(d), Anderson had the burden of proving 

this assertion by clear and convincing evidence. 

The only evidence on this issue was a Washington State police officer’s 

affidavit describing the offenses. This affidavit was part of the presentence report in the 

present case. 

This affidavit showed that both of Anderson’s prior felonies occurred close 

in time and were related to each other. During an altercation between Anderson’s friend 

and another man, Anderson shot and killed the other man. Then, when a friend of the 

gunshot victim intervened, Anderson pistol-whipped this person. Anderson pleaded 

guilty to manslaughter for the shooting and to felony assault for the pistol-whipping. He 

received concurrent sentences. 

The superior court found that these two prior felony convictions were 

separate for purposes of presumptive sentencing. The court acknowledged that 

Anderson received concurrent sentences in the Washington case, but the court 

nonetheless found that, although the convictions likely arose from a single, continuous 

course of conduct, there was a substantial change in the nature of Anderson’s criminal 

objective when he pistol-whipped the second man. That is, the superior court found that 

Anderson shot the first victim, but then pistol-whipped the second victim only when that 

person intervened. The superior court found that the legislature did not intend for this 

type of circumstance to be treated as a single conviction with a single criminal objective. 

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On reconsideration, the court made further findings. The court found that 

Anderson’s initial objective was to “assault the decedent,” but that Anderson did not 

appear to contemplate or even consider assaulting the second person until that person 

lunged at him, and Anderson tried to “fend” him off. The court therefore rejected 

Anderson’s characterization of the incident as a continuing “melee,” finding that it 

involved “a new victim, a new purpose, and a new act,” and that Anderson had put forth 

no evidence to contradict these findings. 

The superior court contrasted Anderson’s case with an example given in 

the legislative commentary to AS 12.55.145. In the commentary, the legislature 

explained that “the breaking and entering of a building with the intent to commit theft” 

(burglary) and the resulting “taking of property in the building” (theft) would constitute 

a single prior conviction for presumptive sentencing purposes.34 The legislature noted 

that, under those circumstances, the crimes shared a single criminal objective: to obtain 

property.35 In contrast, the court in this case noted that the original criminal objective of 

Anderson’s prior shooting did not extend to the second assault. 

On appeal, Anderson renews his claim that his prior convictions were part 

of a “street brawl” with a singular criminal objective to engage in assaultive behavior. 

But given the evidence presented at sentencing, the trial court did not clearly err in 

finding that Anderson had failed to prove that he had a singular criminal objective. 

We note that under AS 12.55.127(c)(2), when a defendant is convicted of 

two or more counts of homicide in any degree, or of assault in any degree, the defendant 

must receive some amount of consecutive term of imprisonment for each count. 

34 Commentary to Alaska’s Revised Criminal Code, 1978 Senate Journal Supp. No. 47 

(June 12), at 156-59. 

35 Id. 

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Consequently, if an Alaskan defendant were to be convicted of the same two felonies for 

which Anderson was convicted in the State of Washington, those two felonies could 

never qualify as a single prior felony offense under AS 12.55.145(a)(1)(C). 

We note, too, that the Washington Supreme Court has held that crimes 

involving separate victims do not qualify as the “same criminal conduct” (and thus, do 

not constitute a single conviction) for purposes of calculating a defendant’s applicable 

sentencing range.36 

Accordingly, we affirm the superior court’s ruling that Anderson was a 

third felony offender. 

Conclusion 

The judgment of the superior court is AFFIRMED. 

36 State v. Dunaway, 743 P.2d 1237, 1241 (Wash. 1987) (en banc). The Dunaway rule 

has now been statutorily codified. See RCW 9.94A.589(1)(a); State v. Yusuf, 2018 WL 

1168724, at *7 (Wash. App. Mar. 5, 2018) (unpublished) (Spearman, J., concurring). 

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