Christopher Brandon Baines v. State of Alaska ( 2023 )

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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
CHRISTOPHER BRANDON BAINES,
Court of Appeals No. A-13596
Appellant, Trial Court No. 3AN-18-02764 CR
v.
OPINION
STATE OF ALASKA,
Appellee. No. 2753 — July 28, 2023
Appeal from the Superior Court, Third Judicial District,
Anchorage, Michael L. Wolverton, Judge.
Appearances: David T. McGee, Attorney at Law, under
contract with the Public Defender Agency, and Samantha
Cherot, Public Defender, Anchorage, for the Appellant. Eric A.
Ringsmuth, Assistant Attorney General, Office of Criminal
Appeals, Anchorage, and Treg R. Taylor, Attorney General,
Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Terrell,
Judges.
Judge WOLLENBERG.
Christopher Brandon Baines was convicted, following a jury trial, of
multiple crimes in connection with a series of car break-ins, including two counts of
first-degree robbery, several counts of third-degree assault, one count of failure to stop
at the direction of a peace officer, and one count of being a felon in possession of a
concealable firearm. Baines was sentenced to a composite term of 14 years and
4 months to serve. Baines now appeals his convictions and sentence, raising three
claims.
First, Baines argues that the State presented insufficient evidence to
support one of his convictions for first-degree robbery. Having reviewed the record, we
conclude that the evidence, when viewed in the light most favorable to the jury’s
verdict, was sufficient to support this conviction.
Second, Baines argues that the superior court erred in admitting evidence
of two pretrial eyewitness identifications. In particular, Baines contends that, in
assessing the reliability of the identifications, the superior court improperly relied on
independent, corroborative evidence of his guilt. We agree with Baines that independent
evidence of a defendant’s guilt is not a proper consideration in evaluating the
admissibility of an eyewitness identification. However, we ultimately conclude that any
error in admitting the challenged identifications is harmless beyond a reasonable doubt
in this case.
Finally, Baines contends that the superior court should have run a greater
portion of his individual sentences concurrently with one another. For the reasons
explained in this decision, we reject Baines’s sentencing claims.
We therefore affirm the judgment of the superior court.
Underlying facts and proceedings
In March 2018, Todd Pulis was at his home in Anchorage, when he looked
out the window and saw a man he did not recognize inside his vehicle, which was
parked in front of his house. Pulis grabbed a gun and went outside to confront the man.
By the time Pulis got outside, the man was no longer in Pulis’s vehicle and had returned
to his own vehicle — a gray truck. Pulis slowly approached the man, eventually
standing about two feet away from the truck. The man was rummaging through various
papers as Pulis watched.
–2– 2753
Pulis initially yelled at the man, but the man did not react. Pulis again
yelled, which caused the man in the truck to look up and point a gun at Pulis through
the driver’s window. Pulis retreated to the backside of the man’s truck, took out his own
gun, and shot three times into the man’s backside right tire. The man then drove away.
Once the man had left, Pulis realized that everything in his vehicle’s center
console had been stolen. This included Pulis’s car manual and registration, banking
records, auto repair receipts, and various documents related to Pulis’s healthcare.
The same day, Antonio Fullwood received a text from a neighbor telling
him that it looked like someone was breaking into his car. Fullwood went outside, and
saw someone in the driver’s seat of his vehicle. Fullwood yelled at the man, but the man
did not react. Fullwood tried opening his car door to remove the man, but the man
pointed a gun at Fullwood. Fullwood backed away and yelled to his wife to call the
police.
Fullwood saw the man leave Fullwood’s car, walk to a nearby carport, and
get into a gray truck. The police soon arrived and blocked the truck at the carport. But
the man used his truck to push through the police blockade. The police — then on foot
— had to move out of the way so that they would not be hit by the truck.
Shortly after the man escaped the officers, the police received a dispatch
that someone matching the suspect’s description had just been seen at a nearby shopping
center. At trial, an employee from one of the stores in the shopping center testified that
he saw a “fast moving truck with a blown out right tire” pull into the store’s alleyway.
The employee testified that a man exited the truck and told the employee that he had
“just ditched them,” and that “they were trying to get him and then he got away,” which
the employee assumed referred to the police.
Soon after, the police arrived at the shopping center and located a person
matching the suspect’s description. Officers pursued the suspect on foot, which led to a
chase through one of the stores. The officers followed the suspect through the back exit
of the store, where they ultimately apprehended him.
–3– 2753
The police identified the apprehended suspect as Christopher Baines.
Inside the abandoned gray truck in the shopping center parking lot was paperwork
belonging to Pulis and paperwork belonging to Baines. The police discovered that this
gray truck had been reported stolen.
In total, five different people — including Pulis and Fullwood — reported
that someone had broken into their cars that day in the same general area.
After Baines was arrested, the police took both Pulis and Fullwood to the
shopping center to see if they could identify whether Baines was the person who broke
into their vehicles.1 Pulis and Fullwood each engaged in a separate showup in which
they positively identified Baines as the person who had broken into their vehicles and
pointed a gun at them earlier that day.
The State charged Baines with over twenty counts. Prior to trial, Baines’s
attorney moved to exclude Pulis’s and Fullwood’s identifications of Baines. The
attorney argued that the identifications were unreliable, namely because they were each
conducted as a “showup” — i.e., an identification procedure in which a single suspect
is presented to a witness for identification. The attorney further argued that other
variables undermined the identifications’ reliability, such as the witnesses’ high stress
levels during their initial interaction with the suspect, the witnesses’ relatively short
viewing duration, the fact that they were confronted with a gun when they initially saw
the suspect, and the fact that the two witnesses were different races than Baines.
After holding an evidentiary hearing, the superior court denied the motion
to suppress the identifications. The court found that, although certain variables did
undermine the identifications’ reliability, there was nonetheless “overwhelming
evidence” independent from Pulis’s and Fullwood’s identifications that Baines was the
1
At the evidentiary hearing on Baines’s motion to suppress, Pulis testified that the
showup occurred about forty-five minutes after the break-in at his residence. Fullwood
testified that the showup occurred about an hour after the break-in at his residence.
–4– 2753
suspect. The court therefore concluded that Baines was “not substantially likely” to
have been misidentified.
Following trial, a jury found Baines guilty of nineteen counts: (1) two
counts of first-degree robbery (against Pulis and Fullwood); (2) six counts of third-
degree assault (two of these counts, involving Pulis and Fullwood, merged with the
first-degree robbery counts); (3) first-degree vehicle theft; (4) failure to stop at the
direction of a peace officer; (5) two counts of fourth-degree criminal mischief; (6) first-
degree criminal trespass; (7) three counts of second-degree criminal trespass;
(8) reckless driving; (9) third-degree theft; and (10) fourth-degree theft.2 After a brief
bench trial, the court also found Baines guilty of third-degree misconduct involving
weapons (felon in possession of a concealable firearm).3
The superior court sentenced Baines to a composite active sentence of 14
years and 4 months, with an additional 15 years suspended, and a 5-year term of
probation.
This appeal followed.
2
AS 11.41.500(a)(1), AS 11.41.220(a)(1)(A), AS 11.46.360(a)(1),
AS 28.35.182(a)(1), AS 11.46.484(a)(1), AS 11.46.320(a)(1), AS 11.46.330(a)(2),
AS 28.35.400, AS 11.46.140(a)(1), and AS 11.46.150, respectively. The jury acquitted
Baines of one count of third-degree assault, one count of second-degree theft, one count of
second-degree criminal trespass, and one count of fourth-degree criminal mischief.
We note that the judgment in the record improperly reflects that the jury found
Baines guilty of this count of fourth-degree criminal mischief. Baines may move to correct
the judgment in the superior court, if it remains in error. See Alaska R. Crim. P. 36
(“Clerical mistakes in judgments, orders, or other parts of the record, and errors in the
record arising from oversight or omission, may be corrected by the court at any time and
after such notice, if any, as the court orders.”).
3
AS 11.61.200(a)(1).
–5– 2753
Why we conclude that there was sufficient evidence to support Baines’s
first-degree robbery conviction involving Pulis
Baines first argues that the State presented insufficient evidence to sustain
his first-degree robbery conviction for his conduct relating to Pulis.
To establish Baines’s guilt of first-degree robbery in this case, the State
was required to prove that: (1) Baines committed second-degree robbery, and (2) in the
course of committing that robbery or in immediate flight thereafter, Baines was armed
with a deadly weapon, or represented by words or other conduct that he was so armed.4
Baines does not contest that the State proved this second element — i.e.,
that Baines was armed with a deadly weapon (i.e., a firearm). Rather, Baines argues
that the State failed to prove that Baines committed second-degree robbery. An
individual commits second-degree robbery when, “in the course of taking or attempting
to take property” from someone, that person “uses or threatens the immediate use of
force” with the intent to “prevent or overcome resistance to the taking of the property
or the retention of the property after taking.”5
In this case, the State charged Baines with first-degree robbery under the
theory that Baines brandished his gun with the intent to overcome resistance by Pulis
so that Baines could retain the paperwork he had taken from Pulis’s car. On appeal,
Baines argues that the only property he took from Pulis’s car was “worthless”
paperwork, and accordingly, the State failed to prove that Baines used his gun to remain
in possession of these valueless documents — i.e., to prevent or overcome resistance to
the taking of the property. Rather, Baines argues that the evidence showed that he
brandished his gun only to escape after Pulis confronted him.
When a defendant challenges the sufficiency of the evidence to support a
conviction, this Court must view the evidence, and all reasonable inferences drawn from
4
AS 11.41.500(a)(1).
5
AS 11.41.510(a)(1).
–6– 2753
that evidence, in the light most favorable to the jury’s verdict.6 We then ask “whether a
fair-minded juror exercising reasonable judgment could conclude that the State had met
its burden of proving guilt beyond a reasonable doubt.”7
As an initial matter, we note that whether there was sufficient evidence to
establish that Baines acted with the purpose of “prevent[ing] or overcom[ing] resistance
to the . . . retention of the property,” as required by the second-degree robbery statute,
is a “question of fact for the jury.”8 Here, Baines presented this same argument to the
jury — that the papers were valueless and he did not point his gun at Pulis in order to
retain them — and the jury obviously rejected it. Viewing the evidence in the light most
favorable to the jury’s verdict, we conclude that a reasonable juror could do so.
First, a juror could reasonably infer that the documents were not actually
“worthless,” as Baines contends. Pulis testified that Baines took banking records, his
car registration, and files related to Pulis’s healthcare — documents that often contain
sensitive and potentially valuable information.
Second, there is little evidence to suggest that Baines had enough time to
determine whether any of the stolen documents were valueless. Pulis testified that when
he first saw Baines in Pulis’s car, Pulis ran outside “very fast.” Once there, Pulis saw
that Baines had returned to his own car, and he watched Baines “rummaging” through
the stolen documents. Considering the relatively short time period between when Pulis
realized that Baines had broken into his car and when Pulis confronted Baines, a
reasonable juror could infer that Baines did not have enough time to look through the
documents and discover whether there was anything of value. The fact that the property
6
Dailey v. State, 65 P.3d 891, 898 (Alaska App. 2003).
7
Id.8
See Gibson v. State, 346 P.3d 977, 981 (Alaska App. 2015).
–7– 2753
may have ultimately turned out to be worthless does not settle the question of Baines’s
intent at that time.
Third, Pulis’s testimony about Baines’s reaction upon being confronted
undercuts Baines’s argument that he brandished his gun only to escape. Pulis testified
that when he first approached Baines, Pulis yelled something at Baines. According to
Pulis, Baines “didn’t even look up” until Pulis yelled a second time. At that point,
Baines brandished his gun — but he did not flee. Pulis retreated to the backside of
Baines’s truck, at which point Pulis took out his own gun and shot three times into
Baines’s back right tire. Only then did Baines drive away. The fact that Baines did not
flee immediately after being confronted by Pulis supports the jury’s conclusion that
Baines did not brandish his gun solely to escape from Pulis.
Finally, under Alaska law, when intent is an element of an offense, that
intent “need not be the person’s only objective[.]”9 Thus, the jury was not required to
find that Baines’s exclusive purpose when brandishing his gun was to overcome Pulis’s
resistance.
For these reasons, we conclude that the State presented sufficient evidence
to support Baines’s first-degree robbery conviction related to Pulis.
Why the admission of Pulis’s and Fullwood’s identifications of Baines
does not constitute reversible error
Baines next challenges the out-of-court showup police conducted in which
Pulis and Fullwood identified Baines as the person who broke into their cars. Baines
contends that the identifications were unreliable under the test that the Alaska Supreme
Court adopted in Young v. State.10
9
AS 11.81.900(a)(1).
10
Young v. State, 374 P.3d 395, 427-28 (Alaska 2016).
–8– 2753
In Young, the supreme court adopted a new test for evaluating the
admissibility of out-of-court eyewitness identifications under the due process clause of
the Alaska Constitution. The supreme court directed trial courts assessing the
admissibility of an eyewitness identification to evaluate the circumstances surrounding
an identification procedure — in particular, a series of variables called “system
variables” and “estimator variables.”11 System variables are those factors that are within
the control of the officers administering the identification procedure.12 System variables
include, for example, whether the pre-identification instructions were suggestive,
whether the identification was blindly administered, and whether the identification was
a “showup.”13 Estimator variables are those factors that are outside law enforcement’s
control.14 Estimator variables include considerations such as whether the witness was
stressed, how long the witness viewed the suspect, and how long after an incident the
identification occurred.15
If the defendant shows “some evidence” of suggestiveness based on a
relevant system variable, the defendant is entitled to a hearing at which the State must
present evidence that the identification is nonetheless reliable.16 The trial court’s
analysis of reliability must consider “all relevant system and estimator variables under
the totality of the circumstances.”17 Ultimately, the defendant has the burden of proving
11
Id. at 417-26.
12
Id. at 417.
13
Id. at 417-21.
14
Id. at 417.
15
Id. at 422-25.
16
Id. at 427; Brigman v. State, 513 P.3d 1072, 1080 (Alaska App. 2022).
17
Young, 374 P.3d at 427.
–9– 2753
a “very substantial likelihood of irreparable misidentification” in order to suppress the
pretrial identification (and any subsequent in-court identification by the witness).18
In Baines’s case, after holding a hearing, the superior court denied
Baines’s motion. The court found several estimator variables existed at the time of
Pulis’s and Fullwood’s initial encounter with Baines that tended to undermine their
subsequent identifications: Pulis and Fullwood were stressed when initially viewing
Baines, they were confronted with a gun, the length of time they had to view Baines
was relatively brief, and they were each a different race or ethnicity than Baines. The
superior court also considered that the identification procedure was a showup (i.e.,
Baines was the only suspect presented to the witnesses), which is considered an
“inherently suggestive procedure.”19
Nevertheless, the superior court found that Baines had failed to
demonstrate that “there was a very substantial likelihood that either Pulis or Fullwood
misidentified him.” The court noted that, during the encounters at their homes, both
Pulis and Fullwood viewed the suspect from a short distance, and both positively
identified Baines around an hour after they first saw him. The court concluded that the
18
Id.
19
Brigman, 513 P.3d at 1083. As the supreme court explained in Young, Alaska courts
have “long restricted the use of showups” for multiple reasons. Young, 374 P.3d at 421.
First, “in contrast to lineups and photo arrays, which allow a witness with a faulty memory
to pick someone other than the suspect, every positive identification in a showup implicates
the suspect.” Second, showups provide “little protection against witnesses who are inclined
to guess[.]” And third, “[r]esearch shows that an innocent suspect who resembles the actual
perpetrator is more likely to be incorrectly identified in a showup than in a lineup.” Id.
(citations omitted); see also id. at 420 n.143.
The supreme court also noted, however, that showups “can be reliable when they
are conducted immediately after a crime, when the witness’s memory is freshest,” with
“research show[ing] that the likelihood of a misidentification increases significantly with
showups as little as two hours after the event.” Id. at 421.
– 10 – 2753
estimator variables that existed did not outweigh the “overwhelming evidence” that
Baines was not misidentified, given the independent evidence of his guilt.
On appeal, Baines argues that the superior court erred in relying on
extrinsic evidence of Baines’s guilt in assessing the reliability of the pretrial
identifications.20 We agree.
Prior to Young, Alaska employed the federal test under Manson v.
Brathwaite for assessing the admissibility of pretrial eyewitness identifications.21 The
federal courts continue to employ this test, which directs trial courts to consider several
factors in assessing the reliability (and thus, admissibility) of an unnecessarily
suggestive pretrial identification.22 None of these factors contemplate the consideration
of independent evidence of guilt, and Manson itself stated that corroborating evidence
of the defendant’s guilt “play[ed] no part in our analysis.”23 Most federal courts to have
20
Baines also argues in passing that the showup in this case was unnecessary because
the police already had probable cause to arrest him based on incidents that occurred at the
shopping center itself. He notes that Alaska courts have “long restricted the use of showups
as an identification procedure to where it is necessary under the circumstances.” See Young,
374 P.3d at 421. But regardless of whether there was independent probable cause to arrest
Baines, there existed an immediate need for police to identify the person who had just
broken into several cars and pointed a gun at multiple people. See Anderson v. State, 123
P.3d 1110, 1117 (Alaska App. 2005) (upholding trial court’s finding that “the need for
quick police [work] outweigh[ed] the inherent suggest[iveness] of … the one-person
lineup” where a violent crime had been committed thirty minutes prior to the showup).
21
Manson v. Brathwaite, 432 U.S. 98 (1977); see also Anderson, 123 P.3d at 1116.
22
These factors “include the opportunity of the witness to view the criminal at the time
of the crime, the witness’ degree of attention, the accuracy of his prior description of the
criminal, the level of certainty demonstrated at the confrontation, and the time between the
crime and the confrontation” and have some overlap with the variables endorsed by the
supreme court in Young. Manson, 432 U.S. at 114; Young, 374 P.3d at 417-25.
23
Manson, 432 U.S. at 116; see id. at 118 (Stevens, J., concurring) (noting that it is
“sometimes difficult to put other evidence of guilt entirely to one side [but the majority]
opinion for the Court carefully avoids this pitfall and correctly relies only on appropriate
indicia of the reliability of the identification itself”).
– 11 – 2753
considered the issue have concluded that unrelated corroborative evidence should not
be considered in the context of a reliability assessment.24 Several state courts have
reached the same conclusion.25 And while some courts have suggested that it might be
24
See, e.g., Raheem v. Kelly, 257 F.3d 122, 140-41 (2d Cir. 2001) (concluding that,
even if there was “irrefutable evidence of the defendant’s guilt,” Manson must be read to
mandate that courts “confine their consideration of unrelated corroboration of guilt to their
assessment of whether the error in admitting identification testimony resulting from
unnecessarily suggestive procedures was harmless”); United States v. Emanuele, 51 F.3d
1123, 1128 (3d Cir. 1995) (“[O]nly factors relating to the reliability of the identification
will be relevant to a due process analysis. Independent evidence of culpability will not cure
a tainted identification procedure[.]”); United States v. Greene, 704 F.3d 298, 310 (4th Cir.
2013) (“Extrinsic evidence may play a role in plain-error analysis (or, analogously,
harmless error analysis), but it cannot be considered in assessing the reliability of [a
witness’s] identification testimony.”); United States v. Rogers, 126 F.3d 655, 659 (5th Cir.
1997) (stating that corroborating evidence of defendant’s guilt “could not be used in our
preceding analysis of whether [a witness’s] identification of [the defendant] was reliable
because admissibility rests on the reliability of the identification judged solely by the
circumstances indicating whether it was likely to be a well-grounded identification, not
whether it seems likely to have been correct in light of other available evidence”); see also
Kollie v. Nardelli, 2021 WL 4148144, at *8 n.9 (D.N.J. Sept. 13, 2021) (unpublished) (“We
do not rely on trial evidence of defendant’s guilt to corroborate [the] identification. Rather,
we rely on trial evidence related directly to the reliability of the identification.” (citations
omitted)); United States v. Silva, 2016 WL 10587962, at *11 (D.N.M. Mar. 4, 2016)
(unpublished) (finding that Raheem provides “the more persuasive” reasoning compared
to the other jurisdictions that permit courts to assess corroborating evidence of guilt in
analyzing the reliability of an identification).
25
See, e.g., Morales v. United States, 248 A.3d 161, 180 (D.C. 2021) (recognizing that
“[w]hether a particular piece of evidence is reliable is distinct from whether it happens to
be accurate” and stating that, while “[c]orroborating evidence might prove the
identification to be correct, . . . it tells us nothing about its reliability”); State v. Jones, 128
A.3d 1096, 1108 (N.J. 2016) (holding that “extrinsic evidence of guilt plays no role in
assessing whether a suggestive eyewitness identification was nonetheless inherently
reliable”); Richards v. People, 53 V.I. 379, 388 n.4 (2010) (noting that independent
evidence of the defendant’s guilt is irrelevant for purposes of evaluating eyewitness
identification reliability); Wise v. Commonwealth, 367 S.E.2d 197, 201 (Va. App. 1988)
(same); Campbell v. State, 589 P.2d 358, 364 (Wyo. 1979) (“[W]e conclude that the
Manson Court separates the reliability of the identification from other evidence of guilt.”).
– 12 – 2753
appropriate to consider independent corroborating evidence, 26 such a view, according
to Professor LaFave, is “inconsistent with Manson.”27
In Young, the Alaska Supreme Court adopted a new test for analyzing the
admissibility of eyewitness identification evidence — adding additional factors (i.e.,
system and estimator variables) that are better informed by modern scientific research
on the fallibility of eyewitness identifications.28 But there is no indication that the Young
court intended to incorporate into the reliability analysis evidence of the defendant’s
guilt external to the identification.
The supreme court directed that a trial court’s analysis of reliability should
consider “all relevant system and estimator variables under the totality of the
circumstances.”29 The “totality of the circumstances” — a phrase also used in Manson
— refers to the facts and circumstances related to the variables themselves, i.e., the
circumstances germane to assessing the reliability of the identifications.30 The supreme
court did not direct trial courts to evaluate whether there was sufficient independent
evidence to corroborate the identification, nor did the court indicate that independent
evidence of a defendant’s guilt was relevant to assessing an identification’s reliability.
Instead, as Professor LaFave notes, that determination properly comes into play only at
26
See, e.g., United States v. Constant, 814 F.3d 570, 577 (1st Cir. 2016); United States
ex rel. Kosik v. Napoli, 814 F.2d 1151, 1156-57 (7th Cir. 1987); St. Clair v.
Commonwealth, 140 S.W.3d 510, 551 (Ky. 2004); Commonwealth v. Hicks, 460 N.E.2d
1053, 1058 (Mass. App. 1984), abrogated on other grounds by Commonwealth v. Johnson,
650 N.E.2d 1257 (Mass. 1995).
27
2 Wayne R. LaFave, Criminal Procedure § 7.4(c), at 1052 (4th ed. 2015).
28
Young v. State, 374 P.3d 395, 417-25 (Alaska 2016).
29
Id. at 427.
30
See id.; Manson v. Brathwaite, 432 U.S. 98, 113 (1977).
– 13 – 2753
the appellate court level in assessing whether the improper admission of an eyewitness
identification was prejudicial or instead amounted to harmless error.31
We therefore conclude that the superior court erred in considering
independent evidence of Baines’s guilt when assessing the admissibility of the
eyewitness identifications.
We note, however, that in ruling on the admissibility of the eyewitness
identifications, the court also found that there were some factors that counterbalanced
the estimator variables. In particular, during the encounters at their homes, both Pulis
and Fullwood viewed the suspect from a short distance, and both positively identified
Baines around an hour after they first saw him.
That said, we need not definitively resolve whether the identifications
were admissible under a proper application of the Young test because we conclude that,
after reviewing Baines’s trial, any error in admitting the identifications was harmless
beyond a reasonable doubt given the overwhelming evidence that Baines was the person
who broke into Pulis’s and Fullwood’s cars.
With respect to Pulis, an employee at the shopping center to which the
police responded testified that he saw a truck with a “blown out right tire” pull into the
center’s alleyway. The man who exited the truck told the employee that he had “just
ditched” the police and that the police were looking for him. When the police responded
31
2 Wayne R. LaFave, Criminal Procedure § 7.4(c), at 1052 (4th ed. 2015) (“The
correct view is that unrelated corroboration of guilt is to be considered only in determining
whether admitting into evidence identification testimony resulting from unnecessarily
suggestive procedures constitutes harmless error.”); see also Manson, 432 U.S. at 118 n.*
(Stevens, J., concurring) (noting that independent evidence of the defendant’s guilt was
properly considered only as to “whether [the] error, if any, in admitting identification
testimony was harmless”); Morales v. United States, 248 A.3d 161, 181 (D.C. 2021)
(“Corroborating evidence has a role to play on appeal, to be sure, but its relevance is limited
to whether any error was harmful. It does not inform the suggestivity or reliability calculus
and it is thus as irrelevant to the trial court’s admissibility determination as it is to our
assessment of whether an error occurred.”).
– 14 – 2753
to the shopping center, they discovered a bullet hole in the back right tire of the truck
from which the man had fled — the exact place that Pulis shot earlier. In the truck, an
officer found Pulis’s paperwork, together with paperwork belonging to Baines.
With respect to Fullwood, Fullwood testified that he saw a man exit his
(Fullwood’s) car and walk to the carport adjacent to Fullwood’s house. After the police
arrived, Fullwood saw the man — now in his own truck — ram into the police blockade.
One of the officers who responded testified that this truck was the same vehicle that the
police later located at the shopping center — with a blown back tire and paperwork
from Pulis’s vehicle. The officer also found a bank slip with Pulis’s name on it under
the location where the truck had been parked in the carport. At trial, the officer
identified the suspect in the truck as the same man who was ultimately arrested behind
the shopping center.
Accordingly, even without Pulis’s and Fullwood’s identifications,
substantial and conclusive independent evidence established Baines as the person who
broke into their cars. Thus, any error in declining to suppress the identifications was
harmless beyond a reasonable doubt.32
Why we reject Baines’s sentencing claims
Lastly, Baines argues that the superior court should have run a greater
portion of his individual sentences concurrently.
At the time of sentencing, Baines was thirty-one years old. He had
multiple prior convictions, including three prior assault convictions (one of them a
felony conviction for third-degree assault with a firearm). As a second felony offender,
32
See Young, 374 P.3d at 409 (“The admission of an unreliable eyewitness
identification at trial is harmless ‘if there [is] conclusive independent evidence, apart from
the [unreliable] identification testimony[,] . . . that identified [the defendant] as the
[culprit].’” (quoting McCracken v. State, 521 P.2d 499, 504-05 (Alaska 1974) (alterations
in original))).
– 15 – 2753
Baines faced a presumptive sentencing range of 8 to 12 years for each of his two
convictions for first-degree robbery.33 He faced a presumptive sentencing range of 1 to
4 years for each third-degree assault conviction and the other class C felonies (first-
degree vehicle theft, first-degree failure to stop, and third-degree misconduct involving
weapons).34 Baines’s remaining convictions were misdemeanors.
The court imposed 12 years with 4 years suspended (8 years to serve) on
each robbery conviction, running 4 active years on the second count concurrently (for
a total of 12 years to serve between the two convictions). For each of the class C felonies
— the four third-degree assault convictions, the first-degree vehicle theft conviction,
the first-degree failure to stop conviction, and the third-degree misconduct involving
weapons conviction — the court imposed a sentence of 2 years with 1 year suspended,
running 8 months of each sentence concurrently with the sentence on the first robbery
conviction (for a total of 2 years and 4 months to serve among these convictions). The
court ran the sentences on the remaining nine misdemeanor counts entirely
concurrently.
Accordingly, Baines received a composite sentence of 29 years and
4 months with 15 years suspended (14 years and 4 months to serve).
On appeal, Baines argues that the court should have run a greater portion
of the sentences concurrently.35 Baines notes that there was overlap between the proof
required for some of the offenses (for example, he notes that his possession of a gun
was a “component” of both the first-degree robbery convictions and his felon-in-
33
Former AS 12.55.125(c)(3) (2018).
34
Former AS 12.55.125(e)(2) (2018).
35
Specifically, Baines argues that the court should have run a greater portion of the
sentence on his felon-in-possession conviction concurrently with the sentences on the
robbery convictions, a greater portion of the sentences on his two robbery convictions
concurrently, and a greater portion of his sentences on his assault and failure to stop
convictions concurrently.
– 16 – 2753
possession conviction) and that many of his offenses occurred within a short period of
time on the same day.36 But the decision about whether and how much time to run
concurrently is largely within the discretion of the sentencing court.37 Here, the court
did not impose any of the individual sentences fully consecutively, and in fact ran a fair
portion of the time concurrently.38 Indeed, the court ran the sentences on nine of
Baines’s convictions entirely concurrently.
Moreover, when we review a composite sentence imposed for two or more
crimes, we do not address each individual sentence in isolation. Rather, we address
whether the composite sentence as a whole is clearly mistaken, given the entirety of the
defendant’s conduct and history.39 Baines does not directly argue that his overall
composite sentence is excessive.
Nonetheless, having independently reviewed the record, we conclude that
Baines’s composite sentence is not excessive. When we review an excessive sentence
36
See State v. Andrews, 707 P.2d 900, 910 (Alaska App. 1985) (recognizing the
principle of “incremental sentencing” — that a gradual increase in penalties is appropriate
for each additional crime in a series of crimes committed closely in time).
37
Neal v. State, 628 P.2d 19, 20 (Alaska 1981); Wells v. State, 706 P.2d 711, 712
(Alaska App. 1985). We note that the court was required to impose at least one consecutive
day of imprisonment for each additional AS 11.41 crime for which Baines was convicted
— i.e., his second robbery conviction and each of his third-degree assault convictions. See
AS 12.55.127(c)(2)(F).
38
See, e.g., Wortham v. State, 689 P.2d 1133, 1144 (Alaska App. 1984) (affirming
sentence for felon-in-possession that ran consecutively with first-degree assault, even
though a firearm was an integral element to the assault charge); Grantham v. State, 1987
WL 1357147, at *1 (Alaska App. May 27, 1987) (unpublished) (affirming consecutive
sentences for second-degree theft — i.e., theft of a firearm — and for felon-in- possession).
Cf. Graf v. State, 2022 WL 950927, at *5 (Alaska App. Mar. 30, 2022) (unpublished)
(recognizing that assault and first-degree failure to stop — eluding the police while driving
recklessly — serve separate societal interests).
39
See Brown v. State, 12 P.3d 201, 210 (Alaska App. 2000); Comegys v. State, 747
P.2d 554, 558-59 (Alaska App. 1987).
– 17 – 2753
claim, we independently examine the record to determine whether the sentence is
clearly mistaken.40 This “clearly mistaken” standard contemplates that different judges,
confronted with identical facts, will differ on what constitutes an appropriate sentence
and that society is willing to accept these sentencing disparities so long as the
sentencing decision falls within a permissible range of reasonable sentences. 41 We
conclude that this standard has been met here, and we reject Baines’s sentencing claims.
Conclusion
The judgment of the superior court is AFFIRMED.
40
McClain v. State, 519 P.2d 811, 814 (Alaska 1974).
41
Erickson v. State, 950 P.2d 580, 586 (Alaska App. 1997).
– 18 – 2753