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MacDonald v. State2/2/2000
-degree escape as defined in AS 11.56.330(a)(1).
For purposes of MacDonald's case, the difference between second-degree and fourth-degree escape lies in the reason for the defendant's arrest. A person who escapes from arrest for a felony commits the greater crime; a person who escapes from arrest for a misdemeanor commits the lesser. MacDonald argues that, under the facts of his case, fourth-degree escape was "included" within the charged offense of second-degree escape. MacDonald's argument rests on two assertions, one factual and the other legal.
MacDonald's factual assertion is that, even though he was serving a felony sentence, the Parole Board issued its arrest warrant (at least in part) because he had committed the new offense of unlawful evasion - failing to return to official detention when his temporary leave expired. Unlawful evasion is a misdemeanor, regardless of whether the prisoner's underlying crime is a felony or a misdemeanor.
MacDonald's legal assertion is that, in order for the State to prove him guilty of second-degree escape, the State had to show that MacDonald was aware that he was being arrested for a felony. According to MacDonald, if he subjectively thought that he was being arrested for the misdemeanor of unlawful evasion, then his escape from arrest constituted only fourth-degree escape.
MacDonald's construction of the second-degree escape statute is dubious. We have repeatedly held that when the legislature separates an offense into degrees depending on the presence or absence of an aggravating circumstance, no culpable mental state need be proved with respect to the aggravating circumstance so long as the government proves that the defendant engaged in the criminal conduct that is basic to both degrees of the offense.
For example, the offense of hindering prosecution (furnishing aid to a person who has committed a crime, with intent to hinder the course of justice) is divided into two degrees, depending on whether the person receiving the aid has committed a felony or a misdemeanor. In Noblit v. State, this court held that no culpable mental state need be proved regarding whether the person receiving the aid has committed a felony as opposed to a misdemeanor. Similarly, the offense of criminal mischief (maliciously destroying someone else's property) is a felony if the value of the destroyed property equals or exceeds $500. In Ortberg v. State, we held that no culpable mental state need be proved with respect to the value of the property. And most recently, in Hoople v. State, we held that no culpable mental state need be proved with respect to the prior convictions that make a defendant's act of driving while intoxicated a felony instead of a misdemeanor.
The escape statutes demonstrate a similar organization. Both the second-degree and the fourth-degree escape statutes prohibit the same basic conduct: unlawfully removing oneself from official detention. These two degrees of the offense are distinguished by the nature of the defendant's underlying crime. A person who escapes from official detention for a felony commits second-degree (felony) escape, while a person who escapes from official detention for a misdemeanor commits fourth-degree (misdemeanor) escape. Our decisions in Noblit, Ortberg, and Hoople indicate that MacDonald's subjective perception or surmise concerning the reason for his arrest was irrelevant. We therefore believe that MacDonald's argument is premised on a flawed interpretation of the escape statute.
But more important, MacDonald's present contention - that the jury should have been instructed on fourth-degree escape - varies substantially from the arguments he made at trial.
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