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Firey v. State7/14/2002
, the panel properly could have concluded that Firey's offense was not significantly mitigated.
Firey also argues that Judge Card erred in rejecting two of his proposed mitigating factors at sentencing: that the victim provoked the crime to a significant degree and that the defendant's conduct was among the least serious included within the definition of the offense.
Firey's argument is based upon his contention that Dr. Aarons was substantially at fault for causing the collision that led to the injury of Dr. Aarons's hand. Judge Card rejected Firey's interpretation of the evidence. As a proponent of the mitigating factors, Firey had the burden to establish the existence of the mitigating factors by clear and convincing evidence. In addition, we are to uphold Judge Card's factual findings unless they are clearly erroneous. Judge Card's findings are supported by the record and are not clearly erroneous. We conclude that he did not err in rejecting Firey's proposed mitigating factors.
Conclusion
We have reviewed Firey's claims of error and conclude that they do not have merit. We accordingly AFFIRM his convictions.
MANNHEIMER, Judge, concurring.
I agree with my colleagues that Firey's convictions and sentence should be affirmed. I write separately to clarify my analysis of two of the issues presented in this appeal.
The jury instructions on causation and the required union of conduct and culpable mental state
The majority opinion concludes that the jury instructions adequately informed the jury of the required "nexus between Firey's recklessness and Dr. Aarons's injury". I reach basically the same conclusion. But in the interest of legal precision and clarity, I believe that this conclusion needs to be expressed a little differently.
"Recklessly" is one of the culpable mental states defined in Alaska's criminal code. AS 11.81.900(a)(3) declares that a person acts "recklessly" with respect to a particular result (i.e., a result defined as an element of a crime) if the person consciously disregards a substantial and unjustifiable risk that this result will occur - or, alternatively, if the person is intoxicated and would have been aware of this risk but for their intoxication.
In this court's decisions, we often use the noun "recklessness" as a synonym for this culpable mental state. For instance, in Afgan v. State, we noted that "recklessness the applicable culpable mental state with respect to the [offense of being a felon in possession of a concealable firearm]". In Velez v. State, we described the first-degree sexual assault statute as requiring "proof of [the defendant's] recklessness with respect to the victim's lack of consent". And in Andrew v. State, we referred to AS 11.81.900(a)(3) as containing " definition of recklessness that is generally applicable throughout the Alaska Revised Criminal Code".
But recklessness - in this sense of a culpable mental state -is not, standing alone, a sufficient basis for imposing criminal liability. Criminal liability requires a conjunction of a culpable mental state (at common law, the mens rea) and a punishable act or omission (at common law, the actus reus).
For instance, a person walking down the street may see an unattended toddler fall into a swimming pool. If the person does nothing to save the child and continues walking down the street, the person manifests "recklessness" under AS 11.81.900(a)(3) - i.e., conscious disregard of a substantial and unjustifiable risk that the toddler will die. But even if the toddler drowns, the passerby is guilty of no crime unless their recklessness was conjoined
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