                                             NOTICE

       The text of this opinion can be corrected before the opinion is published in the
       Pacific Reporter. Readers are encouraged to bring typographical or other formal
       errors to the attention of the Clerk of the Appellate Courts:
                             303 K Street, Anchorage, Alaska 99501
                                       Fax: (907) 264-0878
                                E-mail: corrections @ akcourts.us


               IN THE COURT OF APPEALS OF THE STATE OF ALASKA


TEILA V. TOFELOGO,
                                                       Court of Appeals No. A-12542
                            Appellant,                Trial Court No. 3KO-14-688 CR

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

                            Appellee.                 No. 2575 — December 1, 2017


              Appeal from the Superior Court, Third Judicial District, Kodiak,
              Steve W. Cole, Judge.

              Appearances: Amanda Harber, Assistant Public Defender, and
              Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
              Stephen B. Wallace, District Attorney, Kodiak, and Jahna
              Lindemuth, Attorney General, Juneau, for the Appellee.

              Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock,
              Superior Court Judge. *

              Judge MANNHEIMER.




   *
       Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska
Constitution and Administrative Rule 24(d).
              Teila V. Tofelogo appeals the sentence he received for criminally negligent
homicide. This homicide stemmed from an incident at a treatment group home where
Tofelogo and the victim, Dennis Fathke, were roommates.
              On the day in question, Tofelogo and Fathke were in their room, and
Tofelogo was pretending to be a ninja. He was holding a long-bladed knife, and he was
making martial arts moves. Fathke was lying on a bed behind Tofelogo, but Fathke got
up from the bed just as Tofelogo executed a sudden pivot. The knife blade penetrated
Fathke’s side, inflicting a fatal wound.
              Tofelogo initially tried to staunch the flow of blood, but when Fathke
moaned and fell to the floor, Tofelogo left the room to call 911. By the time police
officers arrived, Fathke had no pulse; he was pronounced dead at the hospital about a
half-hour later.
              Tofelogo was indicted for criminally negligent homicide, AS 11.41.130(a),
and he ultimately pleaded guilty to this charge.
              As part of Tofelogo’s plea agreement, he stipulated that aggravator
AS 12.55.155(c)(18)(A) applied to his case. That is, Tofelogo conceded that, because
Fathke was his roommate, the homicide was committed against “a member of the same
social unit made up of those living together in the same dwelling as the defendant”.
Because Tofelogo conceded this aggravating factor, he faced a sentencing range of 1 to
10 years’ imprisonment. 1
              The superior court sentenced Tofelogo to 6 years with 4 years suspended
(i.e., 2 years to serve). In imposing this sentence, the judge declared that he was giving
“some weight” to aggravator (c)(18)(A) — i.e., to the fact that Tofelogo and Fathke were
roommates.


   1
       Former AS 12.55.125(d)(1) (2014 version) and AS 12.55.155(a)(1).

                                           –2–                                       2575

              In his sentencing remarks, the judge acknowledged that Tofelogo and
Fathke did not have any family connection or emotional relationship — no inter-personal
connection of the sort that typifies crimes of domestic violence. But the judge noted that
aggravator (c)(18)(A) is worded quite broadly — that the aggravator does not require
proof of a familial or emotional relationship between the defendant and the victim, but
rather extends to all cases where the defendant and the victim share the same dwelling.
The judge therefore concluded that it was proper for him to rely on aggravator (c)(18)(A)
when formulating the sentence in Tofelogo’s case:

                      The Court: We all have a ... right to feel safe and
              secure in our own homes without someone who is living
              amongst us hurting us or killing us. And it doesn’t have to
              necessarily be someone that we’re related to, [even though]
              it appears that the focus [of] that aggravator ... really was on
              acts of people [who are] family members or ... people who
              are ... in a boyfriend-girlfriend relationship.

              On appeal, Tofelogo argues that the facts of his case do not fit within the
legislature’s rationale for enacting aggravator (c)(18)(A) — and that, for this reason, the
sentencing judge should not have given this aggravator any weight.
              For the reasons explained in this opinion, we agree that the sentencing
judge should have given no weight to aggravator (c)(18)(A) in Tofelogo’s case. We
therefore direct the superior court to re-sentence Tofelogo.


       The superior court’s rejection of Tofelogo’s proposed mitigator


              Before we reach the question of aggravator (c)(18)(A), we turn briefly to
Tofelogo’s other claim in this appeal — his contention that the superior court erred by
rejecting a proposed mitigating factor.

                                           –3–                                        2575

             In advance of sentencing, Tofelogo’s attorney proposed mitigator
AS 12.55.155(d)(9) — that Tofelogo’s conduct was “among the least serious” within the
definition of criminally negligent homicide. The sentencing judge found that Tofelogo
had failed to prove this mitigator by clear and convincing evidence.
             Although the judge commended Tofelogo for trying to save Fathke, and for
honestly disclosing what had happened when he was interviewed by the police, the judge
concluded (from the circumstances of the occurrence) that Tofelogo’s actions were
“close to really being reckless conduct” — in other words, close to constituting the more
serious offense of manslaughter. 2
             We agree with the sentencing judge that the record fails to clearly establish
that Tofelogo’s conduct was among the least serious within the definition of criminally
negligent homicide. We therefore uphold the sentencing judge’s ruling on this issue.
             We now turn to the question of aggravator (c)(18)(A).


       An examination of aggravator (c)(18)(A) and the broader statutory
       category of “crimes involving domestic violence”


             AS 12.55.155(c) contains the statutory aggravating factors that apply to
presumptive sentencing. Under subsection (c)(18)(A) of this statute, a felony offense is
aggravated for sentencing purposes if the offense is one of the “offenses against the
person” defined in AS 11.41, and if the offense was “committed against a spouse, a
former spouse, or a member of the social unit made up of those living together in the
same dwelling as the defendant”.




   2
       AS 11.41.120(a).

                                          –4–                                        2575

              The crimes covered by aggravator (c)(18)(A) are a subset of the larger
category of “crimes involving domestic violence” — the category of offenses defined by
AS 18.66.990(3) and (5).
              The category of “crimes involving domestic violence” overlaps completely
with the crimes covered by aggravator (c)(18)(A) — because, under AS 18.66.990(3),
the definition of “crime involving domestic violence” includes any offense defined in
AS 11.41 if the crime is committed against a “household member”, and because the term
“household member” includes “current or former spouses” as well as “adults or minors
who live together or who have lived together”. See AS 18.66.990(5)(A) and (B).
              (The statutory category of “crimes involving domestic violence” actually
encompasses a broader range of inter-personal relationships than aggravator (c)(18)(A),
because the definition of “household member” includes not only “current or former
spouses” and “adults or minors who live together or who have lived together”, but also
six other types of inter-personal relationships. 3 )


   3
        The other six types of inter-personal relationships included in AS 18.66.990(5)’s
definition of “household member” are:

       (C) adults or minors who are dating or who have dated;

       (D) adults or minors who are engaged in or who have engaged in a sexual
   relationship;

       (E) adults or minors who are related to each other up to the fourth degree of
   consanguinity, whether of the whole or half blood or by adoption, computed under the
   rules of civil law;

       (F) adults or minors who are related or formerly related by marriage;

       (G) persons who have a child of the relationship; and
                                                                               (continued...)

                                             –5–                                        2575

              Because the kinds of cases covered by aggravator (c)(18)(A) are a subset
of the larger category of “crimes involving domestic violence” defined by AS 18.66.­
990(3) and (5), we conclude that aggravator (c)(18)(A) is based on the same rationale
that prompted the legislature to enact the definition of “crime involving domestic
violence”: the policy of altering various provisions of law to facilitate the prosecution
and punishment of crimes that occur between people who are involved with or related
to each other in specified ways.


       The ways in which the statutory definition of “crimes involving domestic
       violence” exceeds the scope of its underlying rationale


              In a number of prior decisions, this Court has analyzed the definition of
“crime involving domestic violence” codified in AS 18.66.990(3) and (5). We have
repeatedly pointed out that the literal wording of this definition encompasses more
situations than the legislature intended — situations where it does not make any sense
to treat a crime differently based on the relationship between the defendant and the
victim.
              We initially addressed this problem in Carpentino v. State 4 and Bingaman
v. State. 5 As both Carpentino and Bingaman explain, the legislature’s definition of
“domestic violence” is worded so broadly that, if one were to read this definition
literally, it would cover many instances where the specified relationship between the



   3
       (...continued)
       (H) minor children of a person in a relationship that is described in (A) - (G)[.]
   4
       42 P.3d 1137 (Alaska App. 2002) (opinion on rehearing).
   5
       76 P.3d 398 (Alaska App. 2003).

                                             –6–                                            2575

defendant and the victim is irrelevant to assessing whether the defendant is atypically
dangerous or whether the defendant’s conduct is atypically blameworthy.
             Carpentino was the first occasion where we pointed out that AS 18.66.990
defines the phrase “domestic violence” in such a sweeping way that it covers situations
wholly distinct from the commonly accepted meaning of “domestic violence”:

                    For example, if an elderly uncle comes to visit his
             favorite nephew and, while lighting his pipe, recklessly
             scorches a table cloth or a chair, the old man has seemingly
             just committed an act of “domestic violence” as defined in
             AS 18.66.990(3). That is, the uncle has committed the listed
             offense of criminally negligent burning under AS 11.46.430
             (negligently damaging the property of another by fire), and
             the victim is related to the perpetrator within the fourth
             degree of consanguinity — thus qualifying them as
             “household members” under AS 18.66.990(5)(E).

                    Similarly, if a group of former college roommates
             decide to hold a twenty-year reunion at one of their homes,
             and if one of the visiting former roommates gets drunk and
             recklessly jams his friend’s CD player while trying to insert
             a CD into it, this roommate has seemingly just committed an
             act of “domestic violence”. The intoxicated roommate has
             committed the listed offense of fourth-degree criminal
             mischief under AS 11.46.486(a)(1) (tampering with the
             property of another with reckless disregard for the risk of
             harm or loss), and all of the former college roommates are
             “household members” under AS 18.66.990(5)(B).

Carpentino, 42 P.3d at 1141.
             The following year, in Bingaman, this Court addressed the definition of
“domestic violence” in the context of Alaska Evidence Rule 404(b)(4) — the evidence
rule that allows the government to introduce evidence of a defendant’s prior acts of

                                         –7–                                      2575

domestic violence when the defendant is being prosecuted for a crime of domestic
violence.
             In Bingaman, we limited the scope of Evidence Rule 404(b) because, in
light of the expansive definition of “domestic violence”, Rule 404(b)(4) purported to
authorize the government to introduce a substantial amount of irrelevant evidence —
“evidence of acts that have little or no relevance to establishing a pattern of physical
abuse.” 6 As we explained:

                     [A] person who causes a traffic accident through
             criminal negligence and, by chance, happens to injure the
             child of a former high school sweetheart has committed a
             “crime involving domestic violence” as defined in AS 18.66.­
             990. ... Evidence Rule 404(b)(4) states that evidence of the
             traffic accident (i.e., evidence of the defendant’s negligent
             driving) ... [is] admissible if the defendant is prosecuted for
             beating their spouse. Yet the defendant’s negligent driving
             ... [has] no discernible relevance to the assault charge.

Bingaman, 76 P.3d at 412.
             In the years since Carpentino and Bingaman, this Court has encountered
the legislature’s over-inclusive definition of “domestic violence” in other contexts.
             In Williams v. State, 151 P.3d 460 (Alaska App. 2006), this Court addressed
a constitutional challenge to a bail statute, AS 12.30.027(b), that prohibited all persons
charged with a crime of domestic violence from returning to the residence of the alleged
victim before trial — regardless of the circumstances of the offense, and with no
opportunity for judicial modification of this restriction. We concluded that this bail
statute was unconstitutional because, “[given] the broad definition of ‘a crime involving



   6
       Bingaman, 76 P.3d at 406.

                                           –8–                                          2575

domestic violence,’ there [was] a substantial risk that the statute [would] burden the
liberty interests of persons who pose no appreciable risk of future violence.” 7
             As we explained in Williams,

                     [It] is easy to imagine situations in which the [bail]
             condition would serve no legitimate governmental purpose.
             For instance, if a mother had an accident while driving with
             her infant daughter and was charged with reckless
             endangerment or assault for that offense, the court would be
             obliged to prohibit the mother from returning to the residence
             she had shared with her daughter. Or, if Williams’s
             nineteen-year-old daughter, who was living at home and
             attending college during this time, had recklessly burned her
             parents’ front porch and been charged with criminally
             negligent burning for that offense, the court would be obliged
             to bar her from returning home for the duration of her
             pre-trial release.
                     . . .
                     As the above examples illustrate, under Alaska’s
             far-reaching definition of domestic violence, probable cause
             to believe a person has committed a domestic violence
             offense cannot ... be equated with probable cause to believe
             that the person poses an ongoing risk to the alleged victim’s
             safety.

Williams, 151 P.3d at 467-68.
             Similarly, in Cooper v. District Court, 133 P.3d 692 (Alaska App. 2006),
we rejected the argument that whenever a defendant is convicted of a “crime involving
domestic violence”, the sentencing judge should order the defendant to attend “batterer’s
intervention treatment”. We noted that even though the phrase “domestic violence” is
normally understood to mean an assault committed by one domestic partner against

   7
       Williams, 151 P.3d at 467.

                                          –9–                                       2575

another, this phrase is defined in AS 18.66.990 “in a wide-ranging way, quite divorced
from its everyday meaning”. 8 We then concluded:

                     Because the definition of “crime involving domestic
             violence” is so expansive — because it encompasses many
             situations that have nothing to do with an assault by one
             domestic partner against another — there will be many cases
             in which, even though the defendant’s crime may qualify as
             a “crime involving domestic violence”, it makes no sense to
             require the defendant to undergo batterer’s intervention
             treatment.

Cooper, 133 P.3d at 707.


       Application of these principles to aggravator (c)(18)(A)


             With these prior decisions in mind, we return to Tofelogo’s case.
             As we explained toward the beginning of this opinion, Tofelogo stipulated
that the facts of his case fell within the literal wording of aggravator (c)(18)(A). His
crime (criminally negligent homicide) is one of the “offenses against the person” defined
in AS 11.41, and the victim of his offense was “a member of the same social unit made
up of those living together in the same dwelling as [Tofelogo]”.
             In Pickard v. State, 965 P.2d 755, 761 (Alaska App. 1998), this Court
described the social policy underlying this aggravator:

                    Both the Alaska Legislature and this court have
             recognized that domestic violence ... represents a serious
             danger to its victims and a significant harm to society at
             large.


   8
       Cooper, 133 P.3d at 707.

                                          – 10 –                                    2575

                     Under AS 12.55.155(c)(18)(A), a felony assault is
              aggravated if it was committed against the defendant’s
              spouse, the defendant’s former spouse, or any other member
              of the defendant’s household. By enacting this aggravating
              factor, the legislature has declared that felony assaults against
              spouses and former spouses are to be considered atypically
              serious (all else being equal).

              Thus, the underlying rationale of aggravator (c)(18)(A) is to authorize
courts to impose more severe sentences on defendants whose relationship to their victim
makes the crime more blameworthy. But as was true of the statutes and court rules in
Carpentino, Bingaman, Williams, and Cooper, the wording of aggravator (c)(18)(A)
exceeds this underlying rationale.
              By its terms, aggravator (c)(18)(A) applies whenever a defendant commits
one of the crimes defined in AS 11.41 and the victim of the crime is “a spouse” or “a
former spouse” of the defendant, or the victim is “a member of the social unit made up
of those living together in the same dwelling as the defendant”. Interpreted literally, this
aggravator would apply to a defendant who was convicted of felony assault for causing
a traffic accident that resulted in injuries to other people and, by chance, one of the
people injured in this accident was the defendant’s former spouse, or was another
resident of the defendant’s dormitory or barracks. 9
              In such cases, the rationale behind aggravator (c)(18)(A) does not apply —
because the identity of the victim and the victim’s relationship to the defendant have
essentially no bearing on the blameworthiness of the defendant’s conduct or the
defendant’s degree of dangerousness.



   9
       See AS 11.41.220(a)(1)(B).

                                           – 11 –                                      2575

                As this Court noted in Bates v. State, 258 P.3d 851, 862 (Alaska App.
2011), the “hallmark” of domestic violence is conduct whose purpose is “to coerce,
control, punish, intimidate, or exact revenge within the context of an intimate
relationship.” 10 Thus, the category of crimes “involving domestic violence” defined in
AS 18.66.990(3) and (5), as well as the category of crimes covered by aggravator
(c)(18)(A), are all implicitly premised on the assumptions that the defendant’s conduct
was directed at the victim, and that the specified relationship between the defendant and
the victim provided a motivation for the crime, or that this relationship made the victim
more vulnerable, or that this relationship was otherwise a significant contributing factor
in the crime.
                Those assumptions do not apply to Tofelogo’s case. Accordingly, even
though Tofelogo’s case falls within the literal wording of aggravator (c)(18)(A), the
rationale of this aggravator does not apply to the facts of Tofelogo’s case, and the
sentencing judge should not have given the aggravator any weight. Tofelogo must be
re-sentenced.


        Conclusion


                We affirm the superior court’s rejection of Tofelogo’s proposed mitigator,
but we hold that the superior court committed error by giving any weight to aggravator
(c)(18)(A). We therefore direct the superior court to re-sentence Tofelogo.
                Given the fact that Tofelogo must be re-sentenced, we need not reach his
argument that the sentencing judge gave unjustified weight to Tofelogo’s prior criminal
history. Tofelogo’s attorney can address this matter at the re-sentencing.



   10
        Quoting People v. Disher, 224 P.3d 254, 258 (Colo. 2010).

                                           – 12 –                                    2575

