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IN THE COURT OF APPEALS OF THE STATE OF ALASKA 

CELESTY NOEL FARMER, 

Appellant, 

v. 

STATE OF ALASKA, 

Appellee. 

Court of Appeals No. A-12097
 

Trial Court Nos. 1CR-13-00184 CR &
 

1CR-13-00186 CR
 

O P I N I O N 

No. 2654 — August 30, 2019 

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

David V. George, Judge. 

Appearances: David A. Graham, Graham Law Firm, Sitka, for 

the Appellant. Donald Soderstrom, Assistant Attorney General, 

Office of Criminal Appeals, Anchorage, and James E. Cantor, 

Acting Attorney General, Juneau, for the Appellee. 

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

Judges. 

Judge WOLLENBERG. 

Celesty Noel Farmer was charged in three cases basedon separateincidents 

occurring in 2013. These three cases were joined for trial. 

In one of the cases, the State charged Farmer with third-degree criminal 

mischief for causing damage in an amount of $500 or more to the fishing boat of her ex­
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

husband, Donald Yates.1 This charge was based on Farmer’s act of cutting the ropes to 

Yates’s boat while it was tied up at the dock in Klawock on Prince of Wales Island. 

Farmer conceded that she set the boat adrift, but she argued that her conduct was justified 

on the ground of necessity. The trial court refused to instruct the jury on the defense of 

necessity. 

The jury acquitted Farmer of third-degree criminal mischief but convicted 

her of the lesser included charge of fourth-degree criminal mischief for causing damage 

to the boat in an amount of $50 or more.2 The jury also acquitted Farmer of criminal 

trespass in connection with this incident. 

In the second and third cases, the State charged Farmer with two counts of 

driving while her license was revoked (DWLR) — one for an incident in February 2013 

and another for an incident in July 2013. The jury acquitted Farmer of the February 

2013 charge, but the jury convicted Farmer of the July 2013 charge and a related charge 

of violating her conditions of release from the February DWLR charge.3 

On appeal, Farmer raises several challenges to her convictions. First, 

Farmer argues that the trial court erred in declining to instruct the jury on the defense of 

necessity in relation to the criminal mischief charge. Second, Farmer argues that the 

court should have dismissed the July DWLR and the related violating conditions of 

release charge because of prosecutorial misconduct. Finally, Farmer contends that the 

prosecutor misrepresented the evidence to the jury during his rebuttal closing argument. 

We reject these claims and affirm Farmer’s convictions. 

1 Former AS 11.46.482(a)(1) (2013). 

2 Former AS 11.46.484(a)(1) (2013). 

3 Former AS 28.15.291(a)(1) (2013) and former AS 11.56.757(a), (b)(2) (2013), 

respectively. 

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Farmer also challenges the restitution judgment issued in connection with 

her criminal mischief conviction. At sentencing, the trial court ordered Farmer, as a 

condition of her probation, to pay restitution of $9,797 for setting the boat adrift.4 

Farmer argues that the court lacked the legal authority to impose any restitution in excess 

of $499.99 — the upper end of the damages range for fourth-degree criminal mischief. 

We conclude that the judge had the authority to order restitution for the actual damages 

or losses caused by Farmer’s criminal conduct. 

Background facts 

Farmer and Yates had a long-term relationship and had two children 

together. They were married in 2009, after having been together for nine years. 

However, in 2011, Farmer filed for divorce, and by fall 2012, the divorce was final. 

Yates was a commercial fisherman who owned a forty-two-foot wooden 

troller that Yates often lived aboard. As part of the divorce settlement, Yates retained 

the title to, and possession of, the boat. 

According to Farmer’s testimony, Yates was physically and verbally 

abusive to her for years. Farmer testified that in January 2013, the year following their 

divorce, Yates assaulted her, and she reported the incident to the police. Yates fled onto 

his boat, and he eluded the police for the next ten days. Yates eventually turned himself 

in, pleaded guilty to fourth-degree assault, and was released from custody in early 

February 2013. 

Farmer testified that, after Yates’s release, Yates moved next door to her 

despite the existence of a no-contact order, and he began contacting her and threatening 

her with harm if she turned him in again. A few days later, Yates asked Farmer if he 

AS 12.55.100(a)(2)(B). 

– 3 – 2654
 

4 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

could take his son fishing after school. Farmer told him he could not, which led to an 

argument. 

Farmer testified that, later that day, Yates sent her a text message saying 

that he was taking his son. Farmer asserted that she only had five minutes to get to the 

bus stop where her son would be dropped off from school, but she did not have a driver’s 

license. She said that she tried reaching a friend and calling a taxi, to no avail. She 

testified that she felt she had no other option than to drive in order to prevent Yates from 

taking her son. (This conduct was the basis for the first DWLR charge. The jury 

credited Farmer’s necessity defense and acquitted her of this charge.) 

A few months later, on the night of April 16, 2013, Farmer went onto 

Yates’s boat to retrieve a laptop that Yates had borrowed from Farmer’s mother. Farmer 

testified at trial that Yates gave her permission to board the boat to get the laptop. Yates 

denied giving Farmer permission to board the boat, but he conceded that he had never 

prohibited Farmer from going aboard the boat. 

Farmer stopped by the boat when she knew Yates was at a friend’s house. 

As Farmer was getting off the boat with the laptop, she used a knife to cut the boat loose 

from the dock. Farmer testified at trial that she had “made a huge mistake” and “wasn’t 

thinking at [the] time” when she cut the ropes. She testified that Yates had made 

comments in the past about using the boat to hurt people who cared about her. Farmer 

testified that she thought Yates would be returning to the boat shortly that evening and 

that cutting the ropes “would have been a point, you know? Just leave me alone, you 

know?” 

However, Yates did not return to the boat that evening, and it floated away 

from the dock and grounded on a nearby island. Yates and many members of the 

community worked for two days to pull the boat off the beach during a high tide. 

– 4 – 2654
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Based on the April incident involving Yates’s boat, the State charged 

Farmer with third-degree criminal mischief and first-degree criminal trespass. The jury 

acquitted Farmer of both charges but found her guilty of the lesser included offense of 

fourth-degree criminal mischief. 

The two other charges for which Farmer was convicted — the July 2013 

DWLR and violating conditions of release charges — were based on a separate incident. 

Yates was not involved in this incident. (We discuss the facts and procedural history of 

these charges later in this opinion.) 

At sentencing, the court ordered Farmer to pay $9,797 in restitution in 

connection with the criminal mischief conviction. 

Farmer’s claim that the trial court erred in refusing to give a necessity 

instruction as to the criminal mischief charge 

Prior to trial, Farmer gave notice of her intent to assert a defense of 

necessity in relation to the criminal mischief charge. The trial court declined to instruct 

the jury on this defense. Farmer appeals the trial court’s ruling. 

A defendant is entitled to a jury instruction on the defense of necessity if 

the defendant presents “some evidence” that: (1) the charged offense was committed to 

prevent a significant evil; (2) there was no adequate alternative to the charged offense; 

and (3) the foreseeable harm from the unlawful conduct was not disproportionate to the 

harm avoided by breaking the law.5 “Some evidence” is “evidence that, viewed in the 

State v. Garrison, 171 P.3d 91, 94-95 (Alaska 2007); McGee v. State, 162 P.3d 1251, 

1261 (Alaska 2007); Seibold v. State, 959 P.2d 780, 782 (Alaska App. 1998). While the 

necessity defense is normally an affirmative defense to be proved by the defendant, Alaska’s 

criminal mischief statute is written in such a way that, when a defendant presents some 

evidence to sufficiently raise the defense in a criminal mischief case, the State bears the 

(continued...) 

– 5 – 2654
 

5 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

light most favorable to the defendant, would allow a reasonable juror to find in the 

defendant’s favor on each element of the defense.”6 

In the trial court, Farmer argued that the statements she made to the police 

after she set the boat adrift supported her request for a necessity instruction. Specifically, 

she pointed to statements that she was scared for her physical safety based on Yates’s 

threats and his past actions. She contended that she believed, based on prior experience, 

that the police could not protect her. She asserted that she cut the mooring lines to 

prevent Yates from following through on his threat to use the boat to stalk her or to hurt 

her or others, and to prevent him from using the boat to again avoid apprehension by the 

police. She argued that she reasonably perceived that any potential property damage to 

the boat by setting it adrift was not disproportionate to the bodily harm she sought to 

prevent. 

The trial court declined to instruct the jury on the defense of necessity in 

relation to the criminal mischief charge, finding that Farmer had failed to present “some 

evidence” on the second and third elements of the defense. The court acknowledged that 

Farmer had presented evidence that she was truly scared of Yates. But the court found 

no evidence suggesting that Farmer faced imminent harm, or that she needed to cut the 

boat loose that night to avert imminent harm. The court noted that cutting the boat loose 

would not have made Yates any less dangerous to Farmer. The court also found that 

Farmer had a number of legal alternatives to cutting the boat loose, including going to 

5 (...continued) 

ultimate burden of proving beyond a reasonable doubt that the defendant had no reasonable 

ground for believing his actions were necessary. McGee, 162 P.3d at 1260-61. 

6 McGee, 162 P.3d at 1261. 

– 6 – 2654
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

the police or obtaining a domestic violence restraining order.7 Finally, the court 

concluded that any future threat of harm to Farmer was outweighed by the risk that 

cutting the boat loose in the middle of the night could cause harm to the boat, as well as 

to other boats and boaters.8 

After independently reviewing the record in this case, we agree with the 

trial court that Farmer did not present evidence sufficient to entitle her to a necessity 

instruction on the criminal mischief charge.9 

Farmer’s claim that the trial court should have dismissed the July 2013 

charges 

Farmer argues that the trial court should have dismissed the July 2013 

DWLR charge (and the related violating conditions of release charge) after the 

prosecutor told the jurors during his opening statement that they would hear from a 

particular witness, but the prosecutor later excused the witness from her subpoena. 

The July DWLR charge against Farmer was based on Farmer’s allegedly 

driving with her friend, Cathia Demmert. Alaska State Trooper John Ryan testified that 

he observed Farmer driving past him in the opposite direction while they were in a 

construction zone. Ryan noticed Farmer because she was waving her hand outside the 

driver’s side window and honking her horn in a friendly manner to get the attention of 

7 See Seibold, 959 P.2d at 783; Gerlach v. State, 699 P.2d 358, 363 (Alaska App. 1985). 

8 See Garrison, 171 P.3d at 97 (holding that the third prong of the necessity defense 

requires consideration of the reasonablyforeseeable harm that could result from the unlawful 

conduct, not just the actual harm that did or did not result). 

9 Id. at 95 (“If the evidence, when viewed in the light most favorable to the defendant, 

fails to support one or more elements of a proposed defense, the defendant is not entitled to 

a jury instruction on that defense.” (citing Ha v. State, 892 P.2d 184, 190 (Alaska App. 

1995))). 

– 7 – 2654
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

the flagger. Ryan was aware that Farmer’s license was revoked, and he turned his 

vehicle around to follow her. 

Ryan stopped the vehicle about a mile down the road. By that time, he 

found Demmert in the driver’s seat, and Farmer in the passenger seat. But Ryan noticed 

that the driver’s seat was positioned so far forward that the steering wheel was pressing 

against Demmert, thus suggesting that Demmert would have found it difficult, if not 

impossible, to drive the vehicle. 

Farmer denied that she had been driving the vehicle. She told Ryan that she 

had been leaning over Demmert in the driver’s seat to wave, and that Demmert had been 

leaning into the back seat to buckle in a child. 

Ryan reported that Demmert admitted to switching places with Farmer 

before Ryan reached the car.10 

Prior totrial,Farmer’sattorney expressedconcernthattheprosecutor might 

refer to Demmert’s assertion but not call Demmert to testify, thus potentially violating 

Farmer’s right to confrontation.11 The prosecutor told the court that Demmert had been 

subpoenaed and that he expected her to testify. He said that if she did not appear, he 

would ask for a warrant for her arrest. 

In his opening statement later that day, the prosecutor told the jury that 

Demmert would testify that she switched places with Farmer before the traffic stop.12 

10 The parties disputed whether Demmert actually made this admission. Outside the 

presence of the jury, the judge found that the tape recording of the incident gave rise to a 

“reasonable inference” that Demmert made the admission. 

11 U.S. Const. amend. VI; Alaska Const. art. I, § 11; see also Crawford v. Washington, 

541 U.S. 36 (2004). 

12 The prosecutor actually mistakenly switched Demmert’s and Farmer’s names, but his 

intent was clear, and neither party suggests the jury would have misunderstood what the 

(continued...) 

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But then, on the next day of trial (which was two days later), the prosecutor announced 

that Demmert was in Anchorage getting treatment — which the prosecutor himself had 

approved earlier in the month — and would not be in court to testify. The prosecutor 

told the court that he did not realize until the previous morning that Demmert was in 

Anchorage, and he explained that the State had decided not to pay the expense of flying 

her in from Anchorage, so she had been excused from her subpoena. 

Farmer’s attorney reminded the court that he had raised this issue before 

trial to avoid precisely this situation. He maintained that the jury had been “tainted” by 

the prosecutor’s opening statement referring to Demmert’s anticipated testimony, and he 

argued that the unavailability of Demmert for cross-examination violated his client’s 

right to confrontation. (He also suggested that Demmert would not testify as the State 

had anticipated. In response to this latter argument, the trial court noted that Farmer 

herself could subpoena Demmert, if she wished.) 

Farmer’s attorney argued that, even though the prosecutor’s opening 

statement was not evidence, it was impossible to “unring the bell.” However, Farmer’s 

attorney refused to request a mistrial. 

Instead, Farmer’s attorney argued that dismissal of the July 2013 DWLR 

charge was the only appropriate remedy. The court ruled that there was no legal 

authority to dismiss the case; the court also concluded that there was no manifest 

necessity to order a mistrial. The court found that a “self-help remedy” is “usually more 

than sufficient” in this type of situation — that is, Farmer’s attorney could ask the jury 

to infer that the State did not present Demmert to testify because her testimony would 

actually have favored Farmer. (Farmer’s attorney did exactly that in his closing 

argument.) 

12 (...continued) 

prosecutor meant. 

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On appeal, Farmer does not challenge the court’s denial of a mistrial. 

Instead, she argues that the court abused its discretion by denying her motion to dismiss. 

But rather than renew her claim that the prosecutor’s statements violated her right to 

confrontation, Farmer now argues that the prosecutor’s actions — in informing the jury 

of Demmert’s alleged statement and then excusing her from her subpoena — constituted 

misconduct entitling her to a dismissal. 

Farmer acknowledges that the trial judge made no findings about the 

prosecutor’s good or bad faith, but she argues that “the facts of this case speak clearly 

for themselves.” While one might have concerns about the prosecutor’s unilateral 

decision to release Demmert fromher subpoena given the parties’ discussion of this issue 

before trial and the prosecutor’s remarks in his opening statement, Farmer’s attorney 

never asked the court to rule on a claim of prosecutorial misconduct, nor did he request 

factual findings that would allow this Court to evaluate such a claim. Under these 

circumstances, we conclude that this claim is not preserved for appeal.13 

Moreover, on this record, we cannot say that the trial court abused its 

discretion in denying an outright dismissal of the DWLR charge. As a general matter, 

the proper remedy in this situation would either be a curative instruction or a mistrial.14 

But instead of asking for a mistrial, Farmer’s attorney availed himself of the “self-help” 

13 See, e.g., Randall v. State, 583 P.2d 196, 200-01 (Alaska 1978). 

14 See Muller v. State, 478 P.2d 822, 827 (Alaska 1971); see also Worley v. State, 2013 

WL 1933108, at *3-4 (Alaska App. May 8, 2013) (unpublished) (upholding judge’s decision 

to deny a mistrial where the prosecutor stated in opening that a witness would testify, but the 

witness later became unavailable, and noting that while convictions have been reversed on 

that ground, such cases are the exception to the normal presumption that jurors will obey the 

cautionary and limiting instructions of the trial judge (citing Lau v. State, 175 P.3d 659, 663 

(Alaska App. 2008); Dailey v. State, 65 P.3d 891, 897 (Alaska App. 2003))). 

– 10 – 2654
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

remedy suggested by the judge. The attorney told the jury, “I don’t think Ms. Demmert 

was ever going to come in here and tell you anything like that.”15 

For these reasons, we affirm the trial court’s denial of Farmer’s motion to 

dismiss. 

Farmer’s claim that plain error occurred when the prosecutor 

misrepresented the documentary evidence during closing argument 

Farmer raises a second prosecutorial misconduct claim related to the 

prosecutor’s use of phone records to impeach Farmer’s credibility. Before discussing 

this claim, some additional background is necessary. 

As we mentioned earlier, Yates pleaded guilty to fourth-degree assault 

against Farmer in January 2013 and spent a short time in jail. Upon his release in 

February 2013, Yates was under an order not to contact Farmer. Farmer testified that, 

later that day, she received a text from Yates from his new phone. Farmer did not know 

it was Yates at first because he was texting from a new number. She responded and 

learned that the text messages were coming from Yates. The phone records admitted at 

trial corroborated Farmer’s testimony as to how these events transpired. 

However, during the prosecutor’s cross-examination of Farmer, and in the 

prosecutor’s closing argument, the prosecutor took the position that Farmer, not Yates, 

had initiated the contact and sent the first message, and that the phone records did not 

show a text message from Yates prior to any message sent by Farmer. Farmer’s attorney 

did not object to this argument. 

15 As part of her prejudice argument, Farmer argues that the prosecutor capitalized on 

his own alleged misconduct in a portion of his closing argument. We disagree with Farmer’s 

characterization of this argument and its purported correlation with the prosecutor’s 

statement in opening. Moreover, Farmer did not renew her motion to dismiss at that time. 

– 11 – 2654
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

On appeal, Farmer argues that the prosecutor’s comments constituted plain 

error.16 

AlthoughFarmer contends thattheprosecutor’scommentsconstitutedplain 

error, Farmer does not explain why the trial court had an obvious obligation to intervene 

under these circumstances. The attorneys’ respective examinations of Farmer 

demonstrated that the parties disputed the meaning of the phone records. The trial court 

could not have recognized the error without being asked to directly inspect the records 

themselves. 

Even if Farmer had objected, there is no reason to believe she would have 

been entitled to a mistrial. The judge instructed the jury that it was their job to 

“determine what the evidence was, and what conclusions should be drawn from that 

evidence,” that the arguments of counsel are not evidence, and that the jury should 

disregard any argument that departed from the evidence. We presume that the jury 

followed this instruction.17 Farmer also discussed the prosecutor’s error in her own 

closing argument. 

Finally, even assuming that the prosecutor’s argument was an error that 

would have been obvious to any competent judge, Farmer was not prejudiced by this 

error. The jury acquitted Farmer of the DWLR charge that was based on Farmer’s act 

of driving to pick up her son that occurred just days after the text messages at issue in 

this claim. In order for the jury to have acquitted Farmer, they would have had to believe 

16 See Adams v. State, 261 P.3d 758, 764 (Alaska 2011) (to show plain error of nonconstitutional magnitude, a defendant must show that (1) the failure to object was not the 

result of intelligent waiver or a tactical reason not to object, (2) the error was obvious, (3) the 

error affected substantial rights, and (4) the error was prejudicial). 

17 See Coffin v. State, 425 P.3d 172, 175 (Alaska App. 2018) (“As a general matter, 

jurors are presumed to follow the instructions that they are given[.]” (citing Whiteaker v. 

State, 808 P.2d 270, 277 (Alaska App. 1991))). 

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Farmer’s necessity defense: that she was scared that Yates was going to take their son 

and had no choice but to drive. The jury apparently found Farmer’s fear credible, 

notwithstanding any potential misunderstanding about the phone records. The fact that 

thejury convicted Farmer onthefourth-degreecriminalmischiefcharge, based on events 

that happened two months after the February text messages, does not persuade us that 

she was prejudiced by the prosecutor’s argument. 

We therefore find no plain error arising from this claim. 

Facts underlying Farmer’s restitution claim 

As we mentioned earlier, Farmer was charged with third-degree criminal 

mischief for cutting the ropes to Yates’s boat while it was tied up at the dock. Farmer 

admitted that she committed the conduct charged, but she disputed whether her conduct 

had caused $500 or more in damage. The jury accepted her position and found her guilty 

of the lesser included offense of fourth-degree criminal mischief (i.e., damage of at least 

$50). 

Following trial, the State filed a request for $61,620 in restitution. This 

amount was in large part based on an estimate provided by a shipwright for the cost of 

repairing Yates’s boat. It also included reimbursement for the cost of the oil booms that 

the City of Craig deployed to prevent oil contamination from the April 2013 grounding, 

fees to haul out Yates’s boat for an estimate of damages and repairs, and lost fishing 

income stemming from Yates’s inability to fish in the immediate aftermath of the April 

2013 grounding. 

Farmer’s attorney moved to limit restitution. Farmer’s attorney argued that 

the trial court lacked the legal authority to award more than $499.99 in damages because 

the jury had found Farmer not guilty of third-degree criminal mischief (damage in an 

– 13 – 2654
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

amount of $500 or more) and had convicted her only of fourth-degree criminal mischief 

(damage in an amount of at least $50). 

The trial court rejected this argument, ruling as a matter of law that it was 

not barred from awarding restitution of $500 or more. The court noted that “a finding 

of not guilty is not an affirmative factual finding. It’s a finding that the State failed to 

prove something; it failed to prove something beyond a reasonable doubt.” The court 

reasoned that the jury had found only that the evidence was insufficient to establish 

beyond a reasonable doubt that Farmer caused damage of $500 or more. The court noted 

that, in determining restitution, a court applies the lower “preponderance of the 

evidence” standard.18 

The trial court then held a restitution hearing and received testimony from 

Yates, Farmer, the shipwright who provided the estimate, and a former crew member of 

Yates’s. After this hearing, the trial court ordered Farmer to pay, as a condition of her 

probation, restitution of $9,797. This amount was broken down into four categories of 

expenses: 

Keel shoe and cooler tubes $1,800 (labor costs only) 

Haul-out and fuel to haul-outs $1,577 

Oil booms $420 

Lost fishing income $6,000 

The court did not award restitution for the bulk of the State’s request for 

repairs to Yates’s boat because the court found that the boat was in poor condition prior 

to the April 2013 grounding. (Yates had previously run his boat aground while under 

power, and there was evidence that the boat had been in need of significant maintenance 

for many years.) 

18 See AS 12.55.025(i); Noffsinger v. State, 850 P.2d 647, 650 (Alaska App. 1993). 

– 14 – 2654
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The court concluded, however, that the damage to the keel shoe and keel 

cooler tubes was caused by the2013 grounding, noting that“[t]herewas ample testimony 

the keel directly contacted the beach when the boat grounded.” This finding was 

consistent with the shipwright’s testimony that the damage to the keel likely occurred 

“within a year or maybe two” due to a grounding not under power. (The grounding 

caused by Farmer occurred in April 2013, and the restitution hearing was held in August 

2014.) Based on the shipwright’s estimate, the court awarded $1,800 in labor costs 

attributable to the repair of the keel shoe and keel cooler tubes, but the court did not 

order costs for materials since the estimate had not itemized the materials’ cost. 

Farmer’s claim that the trial court was legally barred from awarding 

restitution of more than $499.99 

On appeal, Farmer does not challenge the trial court’s findings that Farmer 

was responsible for causing the damages and losses for which the trial court awarded 

restitution. Rather, Farmer argues that no matter what the real damages are, the trial 

court lacked the legal authority to impose restitution greater than $499.99 — the 

maximum amount of damages specified in the fourth-degree criminal mischief statute. 

In particular, Farmer argues that restitution above this amount is precluded by both 

AS 12.55.100(a)(2)(B) and the double jeopardy clause. 

We first address Farmer’s statutory argument. Under AS 12.55.­

100(a)(2)(B), a court may order a defendant, as a condition of probation, to pay 

restitution “for actual damages or loss caused by the crime for which conviction was 

had.”19 Farmer argues that since she was convicted of fourth-degree criminal mischief, 

the “crime for which conviction was had” capped restitution at $499.99. 

19 AS 12.55.100(a)(2)(B). 

– 15 – 2654
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

Farmer’s statutory argument is contrary to our decision in Fee v. State.

20 

Fee pleaded no contest to one count of criminal mischief for damaging the property of 

another in an amount of $50 or more but less than $500.21 The sentencing judge ordered 

Fee to pay restitution in an amount exceeding $500.22 Like Farmer, Fee argued that 

AS 12.55.100(a) precluded the court from ordering restitution that exceeded the 

maximum amount of damages specified in the applicable criminal mischief statute since 

(according to Fee) such an amount exceeded the “actual damages or loss caused by the 

crime for which conviction was had.”23 

We rejected Fee’s argument. We held that under AS 12.55.100(a) (and 

additionally, under AS 12.55.045, the statute permitting the imposition of restitution as 

a direct component of a defendant’s sentence), the sentencing judge could require Fee 

to pay restitution for the “actual damage suffered by the victim as a result of Fee’s 

crime,” even if this amount exceeded the maximum damages specified in the applicable 

criminal mischief statute.24 We further concluded that “[i]n determining whether as a 

matter of fact, the defendant committed the higher crime, the doctrine of collateral 

estoppel has no part to play.”25 We stated that “[w]here the defendant is charged with 

20 Fee v. State, 656 P.2d 1202 (Alaska App. 1982).
 

21 Id. at 1203-04.
 

22 Id. at 1203.
 

23 Id. at 1204.
 

24 Id. at 1205-06.
 

25 Id. at 1205 (citing Huckaby v. State, 632 P.2d 975, 976 n.2 (Alaska App. 1981)).
 

– 16 – 2654
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

the lesser offense but the evidence establishes that he committed the greater offense, a 

restitutionary award based on the actual loss to the victim is appropriate.”26 

Farmer argues that Fee is distinguishable from her case because a jury 

actually acquitted her of the greater offense. But we have not limited this rationale to 

plea situations. For instance, in Harris v. State, we explained that while restitution is 

limited to “the specific crime for which the defendant was convicted,” a judge is “free 

to determine the actual loss resulting from that crime, independent of the jury verdict, so 

long as the trial court’s award was based upon substantial evidence.”27 

Farmer’s argument conflates the requirement that restitution be based on 

the defendant’s criminal conduct — i.e., the requirement that restitution be awarded only 

for damages caused by the defendant — with the amount of damages that defined the 

degree of her offense.28 The conduct for which Farmer was convicted was intentionally 

damaging Yates’s property; the amount of damages that could be proved beyond a 

reasonable doubt merely determined the classification of her crime.29 

Additionally, while the crime of criminal mischief is defined by the value 

of damage to property, both statutes governing restitution — AS 12.55.100(a)(2)(B) and 

AS 12.55.045 — define a broader class of harm. Under these statutes, a sentencing court 

26 Id. 

27 Harris v. State, 678 P.2d 397, 408 (Alaska App. 1984), rev’d on other grounds, 

Stephan v. State, 711 P.2d 1156 (Alaska 1985); see also Salvato v. State, 814 P.2d 741, 744 

(Alaska App. 1991) (noting the authority holding that “the trial court is not bound by jury 

verdicts in determining restitution awards”). 

28 See Campbell v. State, 5 S.W.3d 693, 699 (Tex. Crim. App. 1999) (en banc) (holding 

that limiting restitution to the property-value range reflected in a verdict “confuses the 

property-value range of a particular grade of theft with the requirement that restitution have 

a factual basis in the record”). 

29 Compare former AS 11.46.482(d) (2013) with former AS 11.46.484(b) (2013). 

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may order restitution for “actual damages or loss” — i.e., those losses directly and 

indirectly caused by a defendant’s conduct.30 Thus, while a restitution award will likely 

include the property damage found by a jury in a criminal mischief case, it is not limited 

to that amount of damage. 

Moreover, the criminal statutes and the restitution statutes serve different 

purposes.31 The purpose of the criminal statutes — and a criminal trial — is to determine 

an individual’s culpability. The legislature has made clear, however, that a primary aim 

of restitution is to compensate victims for the losses caused by a defendant’s criminal 

act.32 Precluding full restitution for the actual damages caused by the defendant’s 

criminal conduct would thwart this aim. 

In support of her statutory argument, Farmer relies almost exclusively on 

the Alaska Supreme Court’s decision in Hagberg v. State.

33 We disagree with Farmer 

that Hagberg involved “precisely the same” issue as this case. In Hagberg, the 

30 See Welsh v. State, 314 P.3d 566, 567-68 (Alaska App. 2013) (construing restitution 

statutes to authorize courts to impose restitution for actual damages or loss); see also 

AS 12.55.045(d) (permitting restitution for loss of income); Riley v. State, 60 P.3d 204, 223 

(Alaska App. 2002) (upholding restitution, in an assault case, for airfare for victim to return 

home to parents’ residence to recover); Reece v. State, 881 P.2d 1135, 1138 (Alaska App. 

1994) (upholding restitution, in sexual abuse of a minor case, for victim’s future costs of 

counseling). 

31 See Campbell, 5 S.W.3d at 698 (discussing the distinction between criminal 

responsibility for conduct and the judge’s later restitution award). 

32 See AS 12.55.045(a)(1) (requiring courts determining restitution to take into account 

the “public policy that favors requiring criminals to compensate for damages and injury, 

including loss of income, to their victims”); Ortiz v. State, 173 P.3d 430, 432-33 (Alaska 

App. 2007) (holding that restitution both compensates a victim for harm done by a 

defendant’s criminal act and also has penal implications). 

33 Hagberg v. State, 606 P.2d 385 (Alaska 1980). 

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defendant was acquitted of grand larceny but convicted of petty larceny — a fact pattern 

similar to Farmer’s case.34 But the trial court awarded restitution within the value range 

for petty larceny, and therefore, the supreme court had no occasion to consider whether 

an award of restitution that exceeded the upper end of the value range for petty larceny 

was statutorily permissible.35 Rather, the question on appeal was whether the restitution 

award was based on a reasonable interpretation of the jury’s verdict, since there were 

multiple ways to interpret the jury’s verdict under the facts of that case.36 

As we noted earlier, Farmer does not contest the factual basis for the jury’s 

verdict. That is, Farmer does not contest that her actions caused damage to the keel shoe 

and cooler tubes of Yates’s boat, or that her actions resulted in the other losses attributed 

to her in the restitution judgment. 

We therefore hold that the trial court was not statutorily barred from 

awarding more than $499.99 in restitution. 

We next address Farmer’s constitutional challenge. Farmer argues that 

restitution is a form of punishment, and thus, restitution in excess of the damages found 

by the jury punishes Farmer for a crime for which she was acquitted and violates her 

double jeopardy rights. We have certainly recognized the punitive aspects of restitution, 

concluding that restitution is a “hybrid remedy” that both “further[s] the aim of 

compensating the victim” and has “penal characteristics.”37 

Butas thetrial court recognized, Farmer’s juryfound only that theStatehad 

failed to establish beyond a reasonable doubt that Farmer had caused damages of $500 

34 Id. at 386. 

35 Id. 

36 Id. at 386-87. 

37 Ortiz, 173 P.3d at 433. 

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or more. The jury made no finding as to what level of damages the State could prove by 

a preponderance of the evidence. And as we discussed earlier, the jury was never asked 

to consider what additional losses, aside from direct damages to Yates’s property, 

Farmer’s conduct may have caused. 

In several analogous contexts, we have held thatthedoublejeopardy clause 

does not bar a court from relying on conduct for which the defendant has been acquitted. 

For example, we permit sentencing judges to rely on conduct for which a defendant was 

acquitted in enhancing a defendant’s term of imprisonment — if the judge concludes, 

based on substantial evidence, that the defendant actually committed the crime for which 

he was acquitted: 

The reason why double jeopardy and due process are not 

implicated when a person who has been acquitted of certain 

conduct is sentenced on the basis that the conduct occurred, 

rests on the differing burdens of proof. In order to convict a 

defendant of an offense, the state must prove guilt beyond a 

reasonable doubt. In contrast, a trial court imposing 

sentence, may rely on any information that is verified in the 

record.[38] 

Given the higher standard of proof at a criminal trial, Alaska courts have 

also consistently held that the prohibition on double jeopardy does not preclude a civil 

suit for damages based on the same conduct for which a defendant was acquitted or for 

which restitution was not ordered in the criminal case.39 And the double jeopardy clause 

38 Brakes v. State, 796 P.2d 1368, 1372 (Alaska App. 1990); see also Huckaby v. State, 

632 P.2d 975, 976 n.2 (Alaska App. 1981) (noting that a jury’s decision (or lack of decision) 

does not collaterally estop the trial judge in making factual findings at sentencing that are 

inconsistent with the jury’s findings: “The difference in burden of proof makes collateral 

estoppel unavailable.”). 

39 See Wyatt v. Wyatt, 65 P.3d 825, 831 & n.21 (Alaska 2003); Reyes v. State, 978 P.2d 

(continued...) 

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does not preclude a court from finding, by a preponderance of the evidence, that a 

defendant has violated probation based on conduct for which the defendant was 

previously acquitted.40 

Farmer likens her case to Howell v. State, but that case is inapposite.41 In 

Howell, the defendant was charged with felony driving under the influence. Before the 

second portion of a bifurcated trial, the trial court granted a partial judgment of acquittal, 

ruling that the State’s proposed evidence was insufficient to establish the “prior 

convictions” element.42 The State challenged the court’s decision on appeal, and this 

Court held that whatever the merits of the State’s position, the double jeopardy clause 

barred the State from re-litigating Howell’s guilt of felony driving under the influence, 

given the judgment of acquittal.43 

Howell is distinguishable from Farmer’s case. In Howell, the State was 

asking for an opportunity to re-litigate the felony classification of Howell’s conduct — 

a felony of which Howell had already been acquitted. Here, there is no dispute that 

Farmer remains convicted of a misdemeanor. Rather, the State sought restitution for the 

entirety of damages or losses stemming from Farmer’s conduct. 

We note that other courts considering this issue have upheld restitution 

awards that exceeded the value limits for the defendant’s crime — even when the 

39 (...continued) 

635, 641 (Alaska App. 1999). 

40 See, e.g., Portalla v. State, 2006 WL 3691697, at *1 (Alaska App. Dec. 13, 2006) 

(unpublished) (citing Andrew v. State, 835 P.2d 1251, 1254 (Alaska App. 1992); A.S. v. 

State, 761 P.2d 122, 124 (Alaska App. 1988)). 

41 Howell v. State, 115 P.3d 587 (Alaska App. 2005). 

42 Id. at 589, 592. 

43 Id. at 592. 

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defendant was acquitted of a higher-value crime — based in part on the lower burden of 

proof at sentencing.44 

We similarly conclude that the trial court did not violate Farmer’s double 

jeopardy rightswhen it determined, by a preponderance of the evidence, that her criminal 

conduct resulted in actual damages of more than $500. (Farmer does not argue that she 

was entitled to have a jury — as opposed to the judge — make this determination.45) 

44 See, e.g., Ex Parte Stutts, 897 So.2d 431, 433-34 (Ala. 2004) (upholding restitution 

award exceeding the criminal mischief limit despite the defendant’s acquittal of the higher 

degree of offense, noting the different burdens of proof); State v. Fancher, 818 P.2d 251, 252 

(Ariz. App. 1991) (“Because restitution is neither punishment nor an element of the offense, 

we conclude that a trial court has the authority to order restitution in full for damages caused 

by the criminal offense.”); State v. Johnson, 711 P.2d 1295, 1298 (Haw. 1985) (holding that 

regardless of monetary limits in the convicted crime, “[t]he total amount of the restitution 

ordered by the trial court should be the actual loss or damage incurred by the victim”); State 

v. Terpstra, 546 N.W.2d 280, 283 (Minn. 1996) (holding that “a guilty verdict within specific 

monetary parameters in a criminal case does not control the total amount of restitution that 

can be ordered for that offense” due to the lesser standard of proof and noting that any 

damages not proven beyond a reasonable doubt by the State at trial could be awarded in a 

civil action anyway); Campbell v. State, 5 S.W.3d 693, 698 (Tex. Crim. App. 1999) (en banc) 

(“Conviction by the jury for a certain property-value does not restrict the restitution amount 

that the trial judge might find to be the justified amount.”); State v. Selland, 772 P.2d 534, 

535 (Wash. App. 1989) (restitution is not limited to the damages limit of the crime for which 

the defendant was convicted, but only to the act for which the defendant was convicted). But 

see Peralta v. State, 596 So.2d 1220, 1220 (Fla. Dist. App. 1992) (restitution ordered as to 

direct losses may not exceed the value charged by the offense; however, indirect losses may 

result in higher restitution imposed); People v. Chapin, 597 N.E.2d 1250, 1255 (Ill. App. 

1992) (defendant could only be ordered to make restitution in amount of theft for which he 

was convicted). 

45 See, e.g., Hester v. United States, 139 S.Ct. 509, 509-11 (2019) (Gorsuch, J., 

dissenting from the denial of certiorari), cited in Her v. State, 2019 WL 3318138, at *4 & 

n.18 (Alaska App. July 24, 2019) (unpublished). 

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We therefore reject Farmer’s claim that the trial court was legally barred 

from awarding restitution that exceeded the maximum amount of damages specified in 

the fourth-degree criminal mischief statute. 

A note on defense counsel’s potential conflict of interest 

Although we affirm the judgments in Farmer’s cases, we would be remiss 

if we failed to comment on a potential conflict of interest that we identified in our review 

of the record. 

As we discussed earlier, as part of Farmer’s defense, Farmer’s attorney 

sought to establish Yates’s history of violence against Farmer and in particular, Farmer’s 

fear that Yates might use his boat to hurt her or to evade apprehension by the police. 

During the trial, it became clear that Farmer’s attorney had previously represented Yates 

in a 2011 case in which he was convicted of assaulting Farmer. This prior representation 

potentially created a conflict of interest for defense counsel in representing Farmer.46 

Neither party has briefed this issue, and there has not been an evidentiary 

hearing to further explore the potential conflict47 and whether it adversely impacted 

46 See Alaska R. Prof. Conduct 1.7(a)(2) & Alaska R. Prof. Conduct 1.9(a), (c); see also 

Richard B. v. State, 71 P.3d 811, 818-20 (Alaska 2003) (“Where the previous representation 

and current litigation cover the same or substantially related matters and the current client’s 

interests are materially adverse to those of the former client, the lawyer shall not represent 

the current client unless the former client consents.” (citing Alaska R. Prof. Conduct 1.9(a))). 

47 See Lane v. State, 1994 WL 16196204, at *3 (Alaska App. Mar. 23, 1994) 

(unpublished) (suggesting that in order to demonstrate that an attorney’s past representation 

of a former client is inconsistent with the attorney’s representation of the current client, the 

defendant must show either: (1) that the earlier representation was “substantially and 

particularly related to counsel’s later representation of defendant,” or (2) that “counsel 

actually learned particular confidential information during the prior representation of the 

witness that was relevant to the defendant’s later case” (quoting Smith v. White, 815 F.2d 

(continued...) 

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Farmer’s case.48 (We note that Farmer is privately represented by the same attorney on 

appeal.) If Farmer wishes to pursue this issue, she may file a post-conviction relief 

action within the time limits set out in AS 12.72.020. 

Conclusion 

We AFFIRM the judgments of the superior court. 

47 (...continued) 

1401, 1405-06 (11th Cir. 1987))). 

48 See Newby v. State, 967 P.2d 1008, 1014 (Alaska App. 1998) (holding that to establish 

an ineffective assistance of counsel claim based on a conflict (other than joint 

representation), a defendant must generally show (1) an actual conflict of interest, and (2) 

that this conflicting interest adversely affected the defense attorney’s representation of the 

defendant). 

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