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PETERSEN v. STATE12/20/1996
ncreased punishments and to new offenses that include, as an element of the crime, proof that the defendant was previously convicted of an offense:
If the defendant commits crime A at a time when there is no habitual criminal statute, then such a statute is passed imposing increased punishment for a second offense, and then the defendant commits crime B, it is not within the ex post facto prohibition to apply the habitual criminal statute to crime B. No additional punishment is prescribed for crime A, but only for the new crime B, which was committed after the statute was passed. Similarly, it is permissible to define a crime as limited to certain conduct engaged in by persons who have theretofore been convicted of some other offense and to apply the statute to one whose earlier offense and conviction predated the enactment of this statute.
Wayne R. LaFave and Austin W. Scott, Jr., Substantive Criminal Law (1986), § 2.4, Vol. 1, p. 139 (emphasis added).
Petersen's case is slightly different: his offense became first-degree stalking, not strictly because of his prior criminal conviction, but because he was on probation from that prior conviction and because one of his conditions of probation forbade him from having contact with R.H.. Compare AS 12.55.155(c)(20) (for purposes of presumptive sentencing, an offense is aggravated if "the defendant . . . was on parole or probation for another felony"). Nevertheless, the same rule applies: the legislature can validly enhance the degree of a defendant's crime based on the defendant's pre-existing conditions of probation or based on a restraining order previously entered against the defendant. We therefore reject Petersen's contention that there was any illegality in convicting him of first-degree stalking because he violated a condition of probation imposed before the stalking law took effect. This did not constitute a retroactive application of the stalking law.
Petersen argues that the trial judge should have instructed the jury on certain lesser offenses. A defendant is entitled to a jury instruction on a lesser included offense when (1) the defendant necessarily committed the lesser offense if he or she committed the charged offense in the manner alleged by the State; (2) the defendant actually disputes the element or elements distinguishing the charged offense from the lesser, and (3) the evidence would support a reasonable conclusion that the defendant is guilty of only the lesser offense and not the charged offense. State v. Minano, 710 P.2d 1013, 1016 (Alaska 1985); Elisovsky v. State, 592 P.2d 1221, 1225 (Alaska 1979); Blackhurst v. State, 721 P.2d 645, 648 (Alaska App. 1986).
Petersen contends that his jury should have been instructed on the lesser offense of second-degree stalking. As explained above, the State alleged that Petersen was guilty of first-degree stalking under AS 11.41.260(a)(2) because his acts of stalking were also violations of the condition of probation that prohibited him from having contact with R.H.. Petersen suggests that the jury might have concluded that his contacts with R.H. in various public places were "chance encounters". He argues that if he encountered R.H. by chance, then these encounters
did not constitute violations of the no-contact order.
However, if Petersen's encounters with R.H. were inadvertent, if they were only chance meetings in public places, then Petersen would not be guilty of either first- or second-degree stalking. The stalking statutes require proof that the defendant "knowingly" engaged in nonconsensual contact with the victim. If the jury viewed the case as Petersen suggests, then they should have acquitted him, not convicted
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