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FOXGLOVE v. STATE1/3/1997
On the morning of January 1, 1993, Roy K. Foxglove, Jr., was driving his snow machine at high speed through and around the village of Selawik. He was intoxicated from a night of New Year's celebration. Foxglove struck a twelve-year-old boy, seriously injuring the boy's ankle. Foxglove stopped and told the boy to go home, then drove on. Several people (including Foxglove's brother) warned Foxglove that he was too intoxicated to drive. He ignored them. One-half hour later, Foxglove intentionally drove his snow machine at a speed of 70 miles per hour through a crowd of people gathered around a bonfire. He killed one person (a child) and seriously injured four other people (three children and one adult).
For his actions, Foxglove was convicted of one count of manslaughter and five counts of first-degree assault. AS 11.41.120(a)(1); AS 11.41.200(a)(1). He received a composite sentence of 25 years' imprisonment with 6 years suspended (19 years to serve). Foxglove appeals this sentence, contending it is excessive. We affirm the sentence.
Foxglove's offenses — manslaughter and first-degree assault — are class A felonies with maximum sentences of 20 years' imprisonment. AS 11.41.120(b); AS 11.41.200(b); AS 12.55.125(c). Foxglove was a first felony offender; he therefore faced a presumptive term of 5 years' imprisonment for each of his crimes. AS 12.55.125(c)(1)-(2); Pruett v. State, 742 P.2d 257, 262-63 (Alaska App. 1987) (holding that a 5-year presumptive term applies to first felony offenders convicted of first-degree assault under AS 11.41.200(a)(1)).
Superior Court Judge Michael I. Jeffery found that Foxglove's first crime (striking the twelve-year-old boy) was a typical first-degree assault. The judge therefore sentenced Foxglove to the 5-year presumptive term. However, with respect to Foxglove's five later crimes (the death and injuries he inflicted at the bonfire), Judge Jeffery found that the State had proved three aggravating factors under AS 12.55.155(c): (c)(6) — that Foxglove had created a risk of harm to three or more people; (c)(21) — that Foxglove had a history of similar conduct; and (c)(10) — that Foxglove's conduct was among the worst included within the definition of manslaughter and first-degree assault. Foxglove does not contest any of these aggravators.
Foxglove had two prior convictions for driving while intoxicated. In July 1990, Foxglove was arrested in Seward; he had been weaving down the road in a Ford van, driving at night with his lights off. His blood alcohol level was .22 percent. Foxglove pleaded no contest and was sentenced to 45 days with 42 days suspended. One of his conditions of probation was that he submit to screening for
alcohol treatment. Foxglove refused to do this.
In April 1991, Foxglove was again arrested for DWI after he crashed his snow machine. He pleaded no contest and was sentenced to 65 days with 45 days suspended. He was also ordered to pay restitution to a woman whose sled he had run into, and he was again ordered to report to alcohol screening. Foxglove never reported to jail to serve his sentence; the court had to issue a bench warrant for his arrest. He further refused to pay the restitution, and he never reported to the alcohol screening program.
With respect to Foxglove's history of similar assaults, Judge Jeffery found that Foxglove had used his snow machine to commit an assault on several villagers in the winter of 1991. The villagers were crossing the ice on the Selawik River, walking home from a bingo game. Foxglove chased after them at high speed, drove in circles around the group, and then "dusted" them — that is, he intentionally made high-speed passes at the villagers, s
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