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IN THE COURT OF APPEALS OF THE STATE OF ALASKA 

JAMES E. BARBER, 

Appellant, 

v. 

STATE OF ALASKA, 

Appellee. 

Court of Appeals No. A-11401 

Trial Court No. 1SI-10-446 CR 

O P I N I O N

 No. 2528 — December 16, 2016 

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

David V. George, Judge. 

Appearances: Douglas Miller, Law Office of Douglas S. Miller, 

Anchorage, and James E. Barber, in propria persona, Wasilla, 

for the Appellant. Timothy W. Terrell, Assistant Attorney 

General, Office of Criminal Appeals, Anchorage, and Craig W. 

Richards, Attorney General, Juneau, for the Appellee. 

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

Superior Court Judge. * 

Judge MANNHEIMER. 

In December 2010, James E. Barber was living in Sitka at the home of a 

friend. On the evening of December 20th, three men wearing ski masks entered the 

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

Constitution and Administrative Rule 24(d). 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

home, beat Barber with a baseball bat, and shot his friend’s adult son, Matthew 

Hornaman, in the arm. 

Thethreeassailants —ChrisBettencourt,his son JeffBettencourt, and their 

friend Lance Smith — then left the home, got into the Bettencourts’ truck, and began to 

drive away. Barber went to his bedroom, grabbed a .44 revolver, and ran after them. As 

the Bettencourts were backing up and turning around (to maneuver down the long 

driveway), Barber fired five shots at them. Several bullets struck the Bettencourts’ truck, 

but the Bettencourts and Smith were uninjured, and they made their escape — although 

they were arrested at their residence several hours later. 

Barber had a prior felony conviction, so it was illegal for him to possess a 

revolver, or even to live in a residence where he knew a concealable firearm was kept. 

See AS 11.61.200(a)(1) and (a)(10). To try to forestall any trouble, Barber dropped the 

revolver into a neighbor’s hot tub. He later visited Matthew Hornaman in the hospital 

(where Hornaman was recovering from surgery), and he asked Hornaman not to tell the 

police that Barber had fired shots at the Bettencourts and Smith. 

(Despite Barber’s request, Hornaman informed the police that Barber had 

shot at the Bettencourts and Smith.) 

Based on these events, the Bettencourts and Smith were prosecuted for 

assault. Barber was also prosecuted separately for several offenses: second-degree 

weapons misconduct (for discharging a firearm at or in the direction of the nearby 

dwellings),third-degreeweapons misconduct(for residing in adwelling withknowledge 

that a concealable firearm was kept there), witness tampering (for asking Hornaman not 

to tell the authorities anything about Barber’s use of the revolver), and evidence 

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tampering (for hiding the revolver in the hot tub). 1 Barber was ultimately convicted of 

all four of these crimes. 

Barber now appeals, raising several claims. For the reasons explained in 

this opinion, we reverse Barber’s conviction for witness tampering, and we also direct 

the superior court to reconsider various aspects of Barber’s sentence. In all other 

respects, however, we affirm the judgement of the superior court. 

Barber’s claim that the police illegally seized his mobile phone 

While the police were investigating the events we have just described, a 

policedetectiveinterviewed JeffBettencourt’s girlfriend, TehsaGrutter. Grutter showed 

the detective a text message she had received from Barber, in which Barber bragged 

about having shot at the Bettencourts. 

Later, this same police detective encountered Barber at the courthouse, 

where both men had been subpoenaed to testify before the grand jury that was 

considering the charges against the Bettencourts and Smith. When the detective finished 

testifying, he came out and saw Barber waiting to testify. The detective decided to arrest 

Barber because he suspected that Barber had his mobile phone in his possession, and that 

Barber’s phone might still contain the incriminatory text message that Grutter had shown 

him. Barber was arrested without incident, and his phone was seized incident to that 

arrest. The police later obtained a search warrant for the phone. 

After Barber was indicted, he asked the superior court to suppress all of the 

evidence derived from the seizure and ensuing search of his mobile phone. The superior 

AS 11.61.195(a)(3)(B), AS 11.61.200(a)(10), AS 11.56.540(a)(1), and AS 11.56.­

610(a)(1), respectively. 

– 3 – 2528
 

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court initially granted this suppression motion, ruling that the State had failed to establish 

that there was probable cause for Barber’s arrest. 

The State then sought reconsideration of the court’s ruling. The State 

argued that Barber’s motion had not challenged the existence of probable cause, but 

instead whether the seizure of the phone met the other requirements for a search incident 

to arrest. The State also asserted that, if given the proper opportunity, the State could 

establish that the record was “replete with probable cause” to believe that Barber had 

committed crimes for which he could be arrested. 

The superior court agreed that, given the way Barber’s suppression motion 

had been framed and litigated, the State had not been on notice that it was required to 

affirmatively prove that there had been probable cause for Barber’s arrest. The court 

therefore granted the State’s motion for reconsideration and held a supplemental 

evidentiary hearing to address the issue of probable cause. 

Based on the evidence adduced at the supplemental hearing, the superior 

court concluded that the detective had probable cause to arrest Barber for second- and 

third-degree weapons misconduct, and that the detective acted properly when he seized 

the phone and then applied for a search warrant. The court therefore reversed its earlier 

ruling and denied Barber’s suppression motion. 

On appeal, Barber argues that the superior court abused its discretion when 

it agreed to reconsider its initial ruling. 

As we have explained, the superior court granted reconsideration because 

it concluded that the prosecutor did not have fair notice that the State would have to 

litigate the existence of probable cause for Barber’s arrest. Barber offers various reasons 

for questioning the superior court’s conclusion that the State lacked fair notice, but these 

reasons hinge on interpreting the surrounding facts in the light most favorable to 

Barber’s attack on the court’s ruling. 

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The question is whether the superior court was clearly erroneous when the 

court concluded that the prosecutor had been misled regarding the issues to be litigated 

at the initial evidentiary hearing. When we review a lower court’s finding under the 

“clearly erroneous” standard, we must view the evidence in the light most favorable to 

the lower court’s finding. 2 Viewing the record in that light, we conclude that Barber has 

failed to show that the superior court was clearly erroneous when the court concluded 

that, at the initial evidentiary hearing, the prosecutor lacked fair notice that the State 

would be expected to affirmatively establish that there was probable cause for Barber’s 

arrest. 

Barber also argues that even if the superior court was justified in 

concluding that the State lacked fair notice, this was not a proper ground for granting 

reconsideration. 

Barber notes that Criminal Rule 42(k)(1) — the rule that lists the potential 

grounds for seeking reconsideration — does not expressly list “lack of fair notice 

regarding the issues to be litigated” among the grounds for asking a court to reconsider 

an earlier ruling. Because Rule 42(k)(1) does not expressly include “lack of fair notice” 

as a reason for seeking reconsideration, Barber argues that the superior court abused its 

discretion when it granted reconsideration on this ground. 

We reject Barber’s contention that CriminalRule42(k)(1) defines the outer 

boundaries of a court’s authority to reconsider an earlier ruling. Here, the court found 

that the State had been misled regarding the issues to be litigated in connection with 

Barber’s suppression motion. (Indeed, the court conceded that its own remarks during 

the initial evidentiary hearing might have misled the prosecutor.) 

Pister v. Alaska Dept. of Revenue, 354 P.3d 357, 362 (Alaska 2015); Forster v. State, 

236 P.3d 1157,1161-62 (Alaska App. 2010). 

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Criminal Rule 42(k)(1) may not list this situation as a ground for seeking 

reconsideration, but Criminal Rule 53 authorizes a court to relax or dispense with a rule 

in situations “where it [is] manifest ... that a strict adherence to [the rule] will work 

injustice”. Given the circumstances here, the superior court had the authority to grant 

the State’s motion for reconsideration and to hold a supplemental hearing on the question 

of whether there was probable cause for Barber’s arrest. 

Barber also challenges the superior court’s ultimate decision on 

reconsideration — i.e., the court’s revised conclusion that Barber’s arrest was lawful. 

Barber contends that even though the detective had probable cause to arrest him for 

felony weapons misconduct, it was nevertheless improper for the detective to make the 

arrest at that time, because the detective’s main reason for conducting the arrest at that 

time was to obtain possession of Barber’s mobile phone. 

But as this Court explained in Nease v. State, 105 P.3d 1145, 1148-50 

(Alaska App. 2005), “the fact that a police officer may have an ulterior motive for 

enforcing the law is irrelevant for Fourth Amendment purposes ... unless the defendant 

proves that this ulterior motive prompted the officer to depart from reasonable police 

practices.” Under Nease, even when the defendant shows that the officer had some 

ulterior motive, a traffic stop or an arrest is not “pretextual” absent proof that the 

officer’s decision to make the stop or the arrest “represented a departure from reasonable 

police practice,” given the circumstances in the case. Id. at 1149. 

Barber does not argue that his arrest qualified as “pretextual” under the 

Nease formulation. Rather, he argues that Nease was poorly reasoned, that it created a 

“test with no teeth”, and that it should be overruled. We disagree, and we decline to 

overrule Nease. 

Finally, Barber argues that even if Nease continues to be thegoverning law, 

we must remand Barber’s case to the superior court because the judge “never purported 

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to apply the Nease test [to the facts of Barber’s case] or make any findings [under] the 

[Nease] test”. 

It is true that the superior court never expressly mentioned Nease when it 

ruled on Barber’s claimof apretextual arrest. Nevertheless, the superior court’s decision 

appears to be based on reasoning that is analogous to the Nease test: 

The Court: I don’t find [that] this was a pretextual 

[arrest]. I mean, [the] classic pretext is where somebody gets 

pulled over ... for a [broken] tail light just so the police can 

search the car for drugs. This arrest was made, and 

[Barber’s] iPhone was seized, ... on the reasonable belief that 

there was information [on the phone] relating to the [very] 

charge for which [Barber] was arrested, ... the weapons 

charges. 

And in any event, we conclude that the superior court’s failure to expressly 

analyze Barber’s case under Nease can be attributed to the fact that Barber never raised 

a Nease issue in the superior court. The burden is generally on the government to justify 

warrantless arrests, searches, and seizures. But when a defendant argues that an arrest 

was pretextual under Nease, the Nease decision clearly places the burden on the 

defendant to prove that the challenged police conduct was not reasonable or ordinary 

under the circumstances. Id. at 1148. 

For all of these reasons, we uphold the superior court’s denial of Barber’s 

suppression motion. 

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Barber’s attacks on his conviction for discharging a firearm “at or in the 

direction of” a dwelling 

Barber was convicted of violating AS 11.61.195(a)(3)(B), which makes it 

a crime to “knowingly ... discharge[] a firearm at or in the direction of ... a dwelling.” 

This conviction was based on the shots that Barber fired at the Bettencourts’ truck as it 

headed out of the driveway and away from the Hornaman residence. 

On appeal, Barber argues that both the grand jury evidence and the trial 

evidence were insufficient to support this charge. More specifically, Barber argues that 

this evidence was legally insufficient to establish that he was firing “at or in the direction 

of” any dwelling because (1) Barber was aiming at the truck, rather than purposely trying 

to direct his fire into a residence, and (2) the residences in the area were not adjoining 

townhouses, but were instead separate buildings, with enough space in between them 

to allow a bullet to pass through. 

The evidence presented to the grand jury (viewed in the light most 

favorable to the grand jury’s decision) showed that Barber fired a number of shots at the 

Bettencourts’ truck as it headed down the long Hornaman driveway to the street. The 

police found three bullet holes in the truck: one in the hood, one in the front fender on 

the passenger side, and one near the rearview mirror on the passenger side. The lead 

investigator, Detective Sexton, testified that there were “numerous houses” in the area, 

and that there was a dwelling in Barber’s line of fire in “virtually every direction”. 

This last assertion — that there was a dwelling in Barber’s line of fire in 

“virtually every direction” his gun may have been pointed — was sufficient to support 

the indictment. Indeed, in a recent unpublished decision, Glen v. State, 2015 WL 643383 

(Alaska App. 2015), this Court held that a charge of second-degree weapons misconduct 

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was adequately supported by testimony that there were residential buildings “[in] any 

direction you look”. Id. at *2-3. 

At Barber’s trial, the evidence presented on this point was more detailed. 

The jurors were given an aerial photograph of the neighborhood , and they were actually 

taken to the scene to view the area and walk around. 

In addition, there was testimony at trial concerning the path taken by the 

Bettencourts’ truck. One of the neighbors testified that, before the Bettencourts made 

their escape, the truck was parked “nose-in” toward the Hornaman residence. And the 

jury heard Barber’s recorded interview with Detective Sexton, in which Barber stated 

that the Bettencourts’ truck backed up toward the apartment building and then headed 

out the driveway and onto the street. 

All of this evidence, viewed in the light most favorable to the jury’s verdict, 

was sufficient to support the conclusion that Barber fired his revolver “at or in the 

direction of” a dwelling. 

In addition to his sufficiency of the evidence claims, Barber makes a related 

argument that the jury was misinstructed regarding the culpable mental state required for 

this offense. 

The pertinent statute, AS 11.61.195(a)(3)(B), defines the offense as 

“knowingly ... discharg[ing] a firearm at or in the direction of ... a dwelling”. The jury 

received an instruction that tracked the wording of this statute. The jury was told that, 

to prove this offense, the State had to establish that Barber “knowingly discharged a 

firearm”, and that he “discharged the firearm at or in the direction of a dwelling.” 

Neither party objected to this instruction. But on appeal, the parties point 

out that neither the statute nor the jury instruction specifies the culpable mental state that 

applies to the element of “at or in the direction of” a dwelling. 

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The State contends that “at or in the direction of a dwelling” is a 

“circumstance” pertaining to the defendant’s act of discharging the firearm — and that, 

under the ruleof statutory construction found in AS 11.81.610(b)(2), the culpable mental 

state that applies to this element is “recklessly”. Barber, on the other hand, argues that 

the statute could be interpreted as requiring proof that the defendant acted “knowingly” 

with respect to the fact that the firearm was being discharged at or in the direction of a 

dwelling. 

We need not resolve this issue in Barber’s case — because, as the State 

points out, and as Barber appears to concede, the prosecutor argued Barber’s case to the 

jury based on the assumption that it was the State’s burden to prove that Barber knew that 

he was discharging his gun “at or in the direction of” one or more dwellings: 

Prosecutor: [Y]ou have to find that Mr. Barber acted 

knowingly. ... [Here,] Mr. Barber was acting intentionally. 

He meant to be shooting, he knew [that] he was shooting, and 

he knew there were houses around there. ... [H]e was 

shooting at those dwellings, in their direction, and he knew 

exactly what he was doing. 

This Court has held that the arguments of counsel can clarify an unclear or 

ambiguous jury instruction. 3 Here, even though the jury instruction did not specify 

whether “knowingly” or “recklessly” applied to the element of “at or in the direction of” 

a dwelling, the prosecutor argued that the jury should convict Barber of this offense 

because Barber acted knowingly with respect to this element. 

Because “knowingly” is a higher culpable mental state than “recklessly”, 

any error in the prosecutor’s argument ran in Barber’s favor. We therefore conclude that 

O’Brannon v. State, 812 P.2d 222, 229 (Alaska App. 1991). 

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the challenged jury instruction did not constitute plain error under the facts of Barber’s 

case. 

The trial judge’s refusal to instruct the jury on a person’s right to use force 

to detain a fleeing felon 

Under AS 11.81.390, a person is authorized to use deadly force “when and 

to the extent the ... person reasonably believes” that the use of this deadly force is 

necessary to accomplish the arrest of another person who has committed an assaultive 

felony (i.e., a felony “involv[ing] the use of force against a person”). 

At Barber’s trial, his attorney asked the trial judge to instruct the jury that 

Barber had a defense to the second-degree weapons misconduct charge (i.e., discharging 

a firearm at or in the direction of a dwelling) if Barber fired the shots in an effort to arrest 

the Bettencourts and Smith. The trial judge had doubts whether this “arrest of a felon” 

defense applied to the crime of shooting at or in the direction of a dwelling. But the 

judge concluded that, in any case, there was no evidence to support a finding that Barber 

fired the shots in an effort to make an arrest. 

On appeal, Barber renews his argument that he was entitled to a jury 

instruction on his right to use deadly force to arrest the Bettencourts and Smith — people 

who had just committed assaultive felonies. 

(Barber’s brief also speaks repeatedly of the right to use force to terminate 

an “escape”. But AS 11.81.390 only authorizes the use of force to terminate an escape 

from custody. It is clear that the Bettencourts and Smith were not escaping from custody. 

Thus, if Barber had any right to use force under AS 11.81.390, it was the right to use 

force to effect an arrest.) 

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We first note that even if Barber had been attempting to arrest the 

Bettencourts and Smith, it is far from clear whether this would be a defense to shooting 

at or in the direction of a dwelling. Even when a person has a privilege to use force 

against another, that use of force must be exercised reasonably, and this requirement of 

reasonableness includes a duty of care toward bystanders. 

This point of law is discussed in R. Perkins & R. Boyce, Criminal Law 

(3rd edition 1982): 

[If] B [were] making a murderous assault upon A 

under such circumstances that A was privileged to kill B in 

the lawful defense of [his] life[,] [and if], under those 

circumstances, A should shoot at B in the proper and prudent 

exercise of his privilege of self-defense, and should happen 

unexpectedly ... to cause the death of C, [then] A should be 

free from criminal guilt. 

. . . 

[But this] hypothetical situation ... supposes not only 

[that A had] the privilege to direct deadly force against B in 

the defense of A’s life, but also the proper and prudent 

exercise of this privilege. If ... [A] exercised this privilege so 

imprudently and improperly as to constitute a criminally 

negligent disregard of the life of the innocent bystander, C, 

[then] the killing of C would be manslaughter. 

Perkins & Boyce, p. 922-23. 

In other words, even though a person is under attack and is properly 

defending himself, he continues to owe a duty of care to bystanders. A person has no 

“transferred” privilege to attack and injure innocent third parties. Obviously, when a 

judge or jury assesses the reasonableness of the person’s actions, the judge or jury must 

take into account the fact that the person was justifiably defending himself from attack. 

But if, even given this extenuating circumstance, a defendant’s actions are still reckless 

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or criminally negligent, then the defendant can be held criminally responsible for the 

death or injury of a bystander. 4 

There is good reason to think that this same principle — the duty of care 

to innocent bystanders — would apply to the situation where (1) a violent felony has 

occurred in a residential neighborhood, (2) a private citizen is weighing the option of 

shooting a firearm to make an arrest, and (3) there are dwellings located in the line of 

fire. 

But we need not define that duty of care in Barber’s case, because we agree 

with the trial judge that, given the facts of Barber’s case, there was insufficient evidence 

to support a jury instruction on the right to use deadly force to arrest a person who has 

committed a violent felony. We addressed analogous facts in our memorandum opinion 

in Brown v. State, unpublished, 1999 WL 189360, *3-4 (Alaska App. 1999). 

As we noted in Brown, AS 11.81.390 authorizes only a reasonable use of 

deadly force. The person making the arrest may not use force that exceeds the degree 

“necessary to make the arrest”. 

As we further explained in Brown, this requirement that the deadly force 

be“necessary”implicitly includes arequirementthatreasonablelesseralternatives either 

have been exhausted or are not reasonably available. 

Obviously, the facts of each case are different. And 

although the person making an arrest must act reasonably, the 

reasonableness of this person’s actions must be assessed in 

light of the fact that they must often respond swiftly to a 

volatile situation. Nevertheless, the legal principle is clear: 

a person making an arrest — even an arrest for a violent 

Ward v. State, 997 P.2d 528, 533 (Alaska App. 2000) (Judge Mannheimer, 

concurring). 

– 13 – 2528
 

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felony — normally can not begin the arrest process by 

shooting the suspect. 

Brown, 1999 WL 189360 at *4. 

In Barber’s case, there was no evidence that Barber commanded his fleeing 

assailants to stop, or fired a warning shot, or took any other non-life-threatening action 

to stop the Bettencourts and Smith from leaving the scene. Barber simply ran out of the 

house, aimed his gun at the fleeing men, and fired several shots at (and into) their 

vehicle. Barber never expressly claimed that his purpose in shooting was to effect an 

arrest. But even if Barber had claimed this, his action was unreasonable as a matter of 

law. 

In his brief to this Court, Barber suggests that he may have had other 

evidence to offer in support of this defense, if only the trial judge had allowed it. But 

Barber’s trial attorney did not try to introduce any other evidence on this point, nor did 

he make an offer of proof describing what additional evidence he might have presented. 

Accordingly, we uphold the trial judge’s decision not to instruct the jury 

on the right to use deadly force to arrest a person who has committed a violent felony. 

Given the evidence presented at Barber’s trial, he was not entitled to such an instruction. 

Barber’s attacks on his conviction for third-degree weapons misconduct 

Barber was convicted of third-degree weapons misconduct under 

AS 11.61.200(a)(10), which makes it illegal for a felon 

[to] reside[] in a dwelling knowing that there is a 

[concealable] firearm in the dwelling ... , unless the [felon] 

has written authorization to live in a dwelling in which there 

is a concealable weapon ... from a court of competent 

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jurisdiction or from the head of the law enforcement agency 

of the community in which the dwelling is located[.] 

Barber first argues that his jury was misinstructed concerning the final 

clause of this statute — the clause that creates an exception from criminal liability if the 

felon has written permission from a court or from the head of the local law enforcement 

agency. Barber argues that this clause defines an additional element of the crime — and 

that when the State charges a defendant under subsection (a)(10), the State is always 

required to affirmatively prove (beyond a reasonable doubt) that the defendant did not 

have the kind of written authorization described in the statute. 

We reject this interpretation of AS 11.61.200(a)(10). As we explained in 

Trout v. State, 866 P.2d 1323, 1324 (Alaska App. 1994), the general rule is that when a 

statute defines an exception to the normal scope of criminal liability, a defendant must 

offer (or point to) evidence that their case falls within the exception. The State is not 

required to anticipate the exception and negate it in cases where the evidence does not 

raise the issue. Ibid. If a defendant wishes to invoke the exception, then at the very least 

the defendant must (1) affirmatively raise the exception and (2) point to some evidence 

from which a reasonable jury could decide that issue in their favor. Id. at 1325. 

For these reasons, we conclude that the trial judge in Barber’s case was not 

required to instruct the jury on the exception for felons who have written permission to 

live in a residence where there is a concealable firearm. 

Barber also argues that the evidence presented at his trial was insufficient 

to support a finding that he was “residing” in the Hornaman residence at the time of this 

incident. 

The events in this case took place on December 20, 2010. Matthew 

Hornaman testified that Barber had been living with them since early December. 

Hornaman also testified that Barber was staying in his [i.e., Hornaman’s] brother’s 

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bedroom, that visitors came to see Barber at the Hornaman residence, and that Barber 

would invite those visitors into the bedroom. 

Detective Sexton testified that Barber told him that he would have been 

“homeless” if he hadn’t been living with the Hornamans. The jury also heard testimony 

from Detective Sexton that Barber had asked Sexton not to “seize my bong out of the 

bedroom” because “[bongs are] legal to possess in the home.” 

The State also points to additional circumstantial evidence that Barber was 

residing in the Hornaman home: the fact that the Bettencourts knew that they could find 

Barber at the Hornaman residence, and the fact that, when the Bettencourts knocked at 

the front door, Barber answered the door the way a resident would. 

Viewing this evidence in the light most favorable to the jury’s verdict, it 

was sufficient to support a conclusion by reasonable jurors that Barber was residing in 

the Hornaman home. 

Why we reverse Barber’s conviction for witness tampering 

Barber was convicted of witness tampering under AS 11.56.540(a)(1), 

which declares that it is unlawful to knowingly induce or attempt to induce a witness to 

“testify falsely, offer misleading testimony, or unlawfully withhold testimony in an 

official proceeding”. 

The State based this charge on evidence that Barber spoke to Matthew 

Hornaman at the hospital (before Hornaman was interviewed by the police), and that he 

asked Hornaman not to tell the police that Barber fired shots at their attackers. 

Asking someone to withhold pertinent information from the police is not 

witness tampering. Rather, the statute requires proof that the defendant induced or 

attempted to induce a witness (including a potential witness) to give false testimony or 

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to unlawfully withhold testimony at an “official proceeding”. The term “official 

proceeding” is defined as any proceeding where testimony is taken under oath; see 

AS 11.81.900(b)(42). 

The State argues that Barber’s request to Hornaman could potentially be 

interpreted as a request for Hornaman to unlawfully withhold testimony at some future 

judicial proceeding (either a grand jury hearing or a trial). We are skeptical of this 

theory. It is one thing to ask a person to withhold information when they speak to the 

police, because people generally have no duty to speak to the police; it is another to ask 

a person to lie or withhold information when they have been placed under oath at an 

official proceeding. Given the facts of Barber’s case, it appears speculative at best for 

the State to suggest that Barber’s conversation with Hornaman amounted to a request for 

Hornaman to lie or unlawfully withhold information under oath if he was ever 

summoned to an official proceeding. 

But in any event, that is not the way Barber’s case was argued to the jury. 

At Barber’s trial, the prosecutor characterized the State’s evidence as proving (1) that 

Barber asked Hornaman to withhold information from the police, and (2) that Barber 

knew that the police were conducting an investigation that would likely result in future 

official proceedings. 

The State’s evidence, if believed, was legally sufficient to establish both of 

these propositions. But that is not the same thing as proving that Barber asked 

Hornaman to lie or unlawfully withhold information at a future official proceeding. 

Therecordshowsthatthejury likelyconvictedBarber ofwitness tampering 

because he asked Hornaman to withhold information from the police. That was error, 

and we therefore reverse Barber’s conviction for witness tampering. 

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Barber’s objections to the contents of the pre-sentence report 

Barber objects to three portions of the pre-sentence report prepared by the 

Department of Corrections. 

First, Barber alleges that the pre-sentence report mischaracterizes what 

Barber said to Hornaman when Barber asked him not to tell the authorities anything 

about Barber’s firing a weapon at the Bettencourts and Smith. According to the presentence report, “[i]n the days following the shooting, Barber asked Matthew Hornaman 

... to not say anything about [Barber’s] firing the shots[,] and admitted that the gun he 

used was a revolver[,] so there would be no shell casings.” (Emphasis added.) During 

the sentencing hearing, Barber claimed that he never said the italicized portion of the 

sentence we have just quoted. 

We have reviewed the record, and we conclude that Hornaman’s testimony 

supports the pre-sentence report’s assertions. Here is what Hornaman said at trial: 

Prosecutor: [W]hat, if anything, did [Mr. Barber] say 

to you in regards to the — those five gun shots? 

Hornaman: Not to mention them. There was no 

evidence. Shells wouldn’t be found, because it was a 

revolver. 

Barber argues that it is unclear whether Hornaman was saying that Barber 

mentioned all of these things during their conversation, or whether (instead) Hornaman 

was making his own side comment that a revolver would not eject shells. But this was 

an issue of fact for the sentencing judge to resolve. 

The judge could reasonably conclude that the pre-sentence report’s 

characterization of Barber’s conversation with Hornaman was based on fair inferences 

– 18 – 2528
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

from Hornaman’s trial testimony. We therefore uphold the superior court’s decision not 

to alter this portion of the pre-sentence report. 

We reach a different conclusion, however, with respect to two other 

contested portions of the pre-sentence report. 

The pre-sentence report contains an assertion that the Bettencourts’ assault 

on Barber, and Barber’s ensuing armed response, were related to uncharged drug 

offenses — that these events were attributable to a “heroin for firearm deal gone bad 

between Mr. Barber and Jeff Bettencourt”. When Barber actively disputed this characterization of events, the sentencing judge responded that it was the pre-sentence 

investigator’s job to express his opinions about the case, and that he (the judge) would 

give the pre-sentence investigator’s opinion the weight it deserved. 

This was error. Because Barber affirmatively disputed the pre-sentence 

investigator’s assertion about a drug deal, Alaska Criminal Rule 32.1(f)(5) required the 

sentencing judge to do one of two things: either (1) resolve the question of whether the 

pre-sentence report’s description was accurate, or (2) strike the pre-sentence 

investigator’s assertion as unnecessary to the court’s sentencing decision. 

Because the sentencing judge failed to comply with Criminal Rule 32.1(f), 

we vacate the superior court’s decision on this issue, and we direct the superior court to 

reconsider Barber’s objection to this portion of the pre-sentence report. 

We reach the same conclusion with respect to Barber’s objection to the presentence report’s description of the facts underlying Barber’s 2010 drug conviction. 

Again, we vacate the superior court’s decision on this issue, and we direct the superior 

court to reconsider Barber’s objection to this portion of the pre-sentence report under the 

rules prescribed in Criminal Rule 32.1(f). 

– 19 – 2528
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Barber’s sentencing arguments 

Barberwassentencedforfourcrimes: second-degreeweapons misconduct, 

third-degree weapons misconduct, witness tampering, and evidence tampering. He 

received a composite sentence of 11 years with 4 years suspended (7 years to serve). 

On appeal, Barber claims that this composite sentence is excessive. But a 

significant portion of Barber’s time to serve — 2 years — is attributable to the sentence 

he received for witness tampering, and we are reversing that conviction. Barber will 

have to be re-sentenced, so we decline to reach the question of whether his current 

composite sentence is excessive. However, several of Barber’s other sentencing claims 

are pertinent to his re-sentencing. 

During the sentencing proceedings, the defense attorney argued that 

Barber’s crime of second-degree weapons misconduct (i.e., his discharging a firearm at 

or in the direction of a dwelling) was mitigated under AS 12.55.155(d)(7). This 

mitigator applies when “the victim provoked the crime to a significant degree”. 

Barber’s sentencing judge rejected this mitigator under the theory that the 

people who provoked Barber’s armed response — the Bettencourts and Smith — were 

not “victims” of the crime of discharging a firearm at or in the direction of a dwelling. 

Because the judge rejected mitigator (d)(7) on this basis, the judge made no finding 

regarding the nature of the Bettencourts’ provocation or the proportionality of Barber’s 

response. 

On appeal, the State concedes that the Bettencourts and Smith were 

“victims” of the offense for purposes of mitigator (d)(7). Nevertheless, the State argues 

that we should uphold the sentencing judge’s ruling. The State contends that the record 

undisputedly shows that Barber’s response to the Bettencourts’ provocation was 

disproportionate — and that Barber therefore can not claim the benefit of mitigator 

– 20 – 2528
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(d)(7). 5 The State also contends that, to the extent Barber’s claim of provocation is 

debatable, Barber failed to prove his claim by clear and convincing evidence. 

We reject the State’s contention that the record allows us to affirm the 

sentencing judge’s decision on these other grounds. As we have explained, because the 

judge wrongly believed that Barber was precluded from relying on mitigator (d)(7) as 

a matter of law, the judge made no findings regarding the nature of the provocation, the 

nature of Barber’s response, and whether Barber had met his burden of proof. We 

therefore vacate the sentencing court’s ruling on mitigator (d)(7), and we direct the court 

to reconsider this mitigator in connection with Barber’s re-sentencing. 

In the superior court, Barber’s attorney also argued that Barber’s offense 

of evidence tampering was mitigated under AS 12.55.155(d)(9), which applies when a 

defendant’s conduct is among the least serious within the definition of the offense. The 

defense attorney pointed out that, even though Barber hid the handgun in his neighbor’s 

hot tub, the gun was found the same evening, and the State was able to use the gun as 

evidence at grand jury and at trial. 

Thesentencingjudgerejected mitigator (d)(9) becausethejudgeconcluded 

that Barber’s act of evidence tampering (i.e., his act of hiding the revolver in the hot tub) 

had to be viewed in conjunction with Barber’s further act of asking Hornaman to conceal 

the shooting fromthe police. The judge declared that, viewed together, these two aspects 

of Barber’s conduct “represent[ed] an ongoing [effort] by Mr. Barber to try [to] avoid 

responsibility for [his] acts and to [impair] the integrity of the investigation.” We agree 

that, given these facts, Barber failed to prove that his conduct was among the least 

serious encompassed by the evidence tampering statute. 

See Roark v. State, 758 P.2d 644, 647 (Alaska App. 1988). 

– 21 – 2528
 

5 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Barber’s conditions of probation 

Barber objects to several of his probation conditions. 

Two of Barber’s conditions are related to his possession and consumption 

of alcoholic beverages. Condition 9 prohibits Barber from consuming alcoholic 

beverages. Special Condition 7 goes considerably farther: it prohibits Barber from 

possessing, handling, or purchasing alcoholic beverages, and it further requires him to 

submit to searches of his person, his personal property, his residence, and his vehicle(s) 

for the presence of alcoholic beverages. And Special Condition 8 prohibits Barber from 

entering any establishment where “alcohol is the main item for sale”. 

Barber objected to these conditions, pointing out that he had no history of 

alcohol abuse, and that his offenses were not related to alcohol. The sentencing judge 

neverthelessupheldtheseconditionsunder thetheory that theywerejustified by Barber’s 

history of drug abuse. The judge stated that “[it was] not at all uncommon that people 

who have substance abuse issues with one particular type of substance will [switch] over 

to another one when they can no longer engage in the [first one].” The judge also stated 

that he was “convinced that ... eliminating all [intoxicating] substances [would] most 

effectively promote [Barber’s] rehabilitation.” 

We conclude that the sentencing court’s analysis is not sufficient to 

establish that these three probation conditions are sufficiently related to Barber’s 

rehabilitation, or to the prevention of future criminal acts, to pass muster under the test 

announced in Roman v. State, 570 P.2d 1235, 1240 (Alaska 1977). 

We will assume that the sentencing judge was correct when he asserted that 

people who use illicit drugs will sometimes switch to using alcoholic beverages if they 

are deprived of illicit drugs. Nevertheless, it is not illegal to get intoxicated through the 

use of alcoholic beverages. And the record contains little evidence that Barber engages 

– 22 – 2528
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

in criminal activity because of intoxication. Barber’s past criminal convictions were 

simply for the illicit possession of controlled substances. If Barber had not used 

controlled substances and had, instead, used alcohol as a lawful means of achieving 

intoxication, he would not have been prosecuted for a crime. 

Thus, there is little in the record to support the sentencing judge’s 

conclusion that “eliminating all [intoxicating] substances” from Barber’s life would 

“most effectively promote his rehabilitation”. Accordingly, we direct the superior court 

to strike Condition 9 and Special Conditions 7 and 8. 

We also direct the superior court to amend Special Condition 6 so that it no 

longer speaks of products relating to alcohol. 

In a separate argument, Barber challenges Condition 12, which directs him 

to “[a]bide by any special instructions given by ... probation officers of the Department 

of Corrections intended to implement this [judgement] and the terms of the defendant’s 

probation.” Barber argues that this condition is improper because it potentially grants 

an impermissibly broad authority to his probation officer(s). But this Court has 

previously affirmed the validity of this probation condition. 6 And Barber retains the 

right to challenge any special instruction he may receive in the future from his probation 

officer if he believes that the special instruction exceedstheprobation officer’s authority, 

or that it is otherwise unreasonable. 

Barber next challenges Special Condition 1, which prohibits him from 

knowingly associating with “anyone who is in ... immediate possession of firearms”, and 

from knowingly being present “anywhere a firearm is present”. Barber argues that this 

condition is overly vague and potentially overbroad. We agree. As written, the 

See, e.g., Phillips v. State, 211 P.3d 1148, 1153 (Alaska App. 2009); Dayton v. State, 

120 P.3d 1073, 1084 (Alaska App. 2005). 

– 23 – 2528
 

6 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

condition appears to prohibit Barber from visiting a police station, talking to police 

officers, or “associating” with any other citizen who exercises their right to openly carry 

a firearm. The condition also appears to prohibit Barber from entering the premises of 

sporting goods stores or even grocery/general merchandise stores that sell firearms. 

Upon remand, the superior court is directed to reformulate Special 

Condition 1 to cure these problems. 

Barber also challenges Special Condition 3, which (1) prohibits him from 

using or possessing controlled substances without a prescription; (2) prohibits him from 

having “any paraphernalia normally associated with the illicit use of drugs; and (3) 

requires him to submit to searches for “illicit drugs or drug paraphernalia”. 

Given Barber’s criminal history, it was reasonable for the sentencing court 

to prohibit Barber from possessing controlled substances without a prescription, and to 

require Barber to submit to searches for prescriptionless controlled substances. 

Wenote, however,thattherearepotential vaguenessproblemsinthephrase 

“paraphernalia normally associated with the illicit use of drugs”. See this Court’s 

decision in Myers v. Anchorage, 132 P.3d 1176 (Alaska App. 2006). The superior court 

may wish to re-examine this aspect of Special Condition 3. 

Barber next challenges Special Condition 4, which prohibits him from 

knowingly associating with any person who illegally uses controlled substances, and 

from knowingly entering or remaining in any place where controlled substances are 

illegally used, manufactured, grown, or sold. Barber argues that the word “place” is too 

vague, because it potentially prohibits him from remaining in a public place, such as a 

park or a sports stadium, if he observes any person using controlled substances. 

Weagreewith Barber that thechallenged conditionispotentially overbroad 

if it applies to such situations, and we direct the superior court to amend Special 

Condition 4 with a narrowing definition of “place”. 

– 24 – 2528
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Finally, Barber challenges Special Condition 9, which requires him to 

submit to searches of his personal computer and to searches of any other electronic 

devices he owns that are capable of communication (e.g., a mobile phone or a tablet) 

“to determine if [Barber is] knowingly associating with individuals who [he knows] 

use or sell illegal controlled substances”. 

This provision is, in essence, a general warrant authorizing Barber’s 

probation officer to search through the entire contents of Barber’s digital files — his 

word processing documents, his emails, his text messages, his downloads, the log of 

his phone calls, his Internet browsing history, his calendar, his contact lists, his 

photographs, etc. 

As the United States Supreme Court recently noted in Riley v. California, 

573 U.S. __, 134 S.Ct. 2473 (2014), 

[A] cell phone search [will] typically expose to the government far more [information] than the most exhaustive search 

of a [person’s] house: A phone not only contains in digital 

form many sensitive records previously found in the home; 

it also contains a broad array of private information never 

found in a home in any form [except in] the phone [itself]. 

Riley, 573 U.S. at __, 134 S.Ct. at 2491. 

Given the immense intrusion on Barber’s privacy that is authorized by 

Special Condition 9 — an intrusion far greater than any search of his house for drugs or 

weapons — the sentencing court was required to specially scrutinize this probation 

condition to ensure that it was narrowly tailored to the goals of probation recognized in 

Roman, and that the condition did not unnecessarily infringe on Barber’s constitutional 

rights of privacy, liberty, and freedom of association. See Dawson v. State, 894 P.2d 

672, 680 (Alaska App. 1995). 

– 25 – 2528
 
 

 

 

 

 

 

 

 

 

 

 

 

 

The record shows that the sentencing judge did not engage in this analysis. 

We therefore vacate Special Condition 9. The sentencing court is authorized to re-assess 

whether Special Condition 9, or some narrower form of it, might be justified under the 

facts of Barber’s case. 

Conclusion 

We reverse Barber’s conviction for witness tampering, but we affirm his 

other convictions. 

As explained in this opinion, we direct the superior court to address and 

resolve two of Barber’s challenges to the pre-sentence report under Criminal Rule 

32.1(f). 

We direct the superior court to reconsider Barber’s proposed mitigator 

(d)(7) with regard to Barber’s conviction for second-degree weapons misconduct. 

Finally, we direct the superior court to either delete, amend, or reconsider 

the conditions of probation that we discussed in the preceding section of this opinion. 

– 26 – 2528