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             IN THE COURT OF APPEALS OF THE STATE OF ALASKA


JAMES E. BARBER,
                                                      Court of Appeals No. A-11401
                            Appellant,                Trial Court No. 1SI-10-446 CR

                     v.
                                                             O P I N I O N
STATE OF ALASKA,

                            Appellee.                 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.
              The three assailants — Chris Bettencourt, his son Jeff Bettencourt, 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-degree weapons misconduct (for residing in a dwelling with knowledge
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




                                           –2–                                        2528

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
police detective interviewed Jeff Bettencourt’s girlfriend, Tehsa Grutter. 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



   1
       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

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.

                                              –4–                                        2528

              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 Criminal Rule 42(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.)



   2
      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).

                                           –5–                                        2528

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

                                          –6–                                        2528

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 claim of a pretextual 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.




                                           –7–                                        2528

       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




                                            –8–                                          2528

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.



                                             –9–                                          2528

             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 rule of 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



   3
       O’Brannon v. State, 812 P.2d 222, 229 (Alaska App. 1991).

                                          – 10 –                                     2528

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.)




                                            – 11 –                                         2528

             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

                                          – 12 –                                     2528

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 a requirement that reasonable lesser alternatives 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



    4
      Ward v. State, 997 P.2d 528, 533 (Alaska App. 2000) (Judge Mannheimer,
concurring).

                                           – 13 –                                      2528

              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


                                          – 14 –                                      2528

              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

                                          – 15 –                                       2528

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

                                         – 16 –                                     2528

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.
             The record shows that the jury likely convicted Barber of witness tampering
because he asked Hornaman to withhold information from the police. That was error,
and we therefore reverse Barber’s conviction for witness tampering.




                                          – 17 –                                      2528

      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 pre­
sentence 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 charac­
terization 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 pre­
sentence 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


             Barber was sentenced for four crimes: second-degree weapons 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.
              The sentencing judge rejected mitigator (d)(9) because the judge concluded
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 from the 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.




   5
       See Roark v. State, 758 P.2d 644, 647 (Alaska App. 1988).

                                           – 21 –                                       2528

       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
nevertheless upheld these conditions under the theory that they were justified 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 exceeds the probation 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



   6
      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

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.
              We note, however, that there are potential vagueness problems in the phrase
“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.
              We agree with Barber that the challenged condition is potentially 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 govern­
             ment 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

