MEMORANDUM OPINION
Star page 1*1 Debra Lynn Spencer was convicted, following a jury trial, of first-degree arson and first-degree criminal mischief after she set fire to her neighbor's house in Nikolaevsk, Alaska.1 The superior court sentenced Spencer to 6 years of incarceration with 2 years suspended for each conviction; the active terms of incarceration were to be served concurrently, but the suspended time was to run consecutively.
Spencer now appeals her convictions and sentence, raising four separate claims. First, Spencer argues that the superior court erred in allowing a witness to testify to another witness's out-of-court statements. Spencer also argues that the superior court erred in denying her motion for a new trial as to this issue. Second, Spencer argues that the superior court erred in allowing the fire investigator to testify about an out-of-court witness statement. Third, Spencer argues that the superior court erred in declining to merge her convictions. And finally, Spencer argues that the superior court erred in imposing a probation condition requiring residential treatment without designating a maximum term.
For the reasons explained in this decision, we conclude that this case should be remanded for the superior court to merge Spencer's convictions for first-degree arson and first-degree criminal mischief and to strike the provision requiring residential treatment from Special Probation Condition 2. In all other aspects, we affirm the judgment of the superior court.
Background facts
In July 2017, Brad Kirby's house burned down, killing one of his dogs. Spencer was Kirby's next-door neighbor, and the two had a strained relationship. Spencer had repeatedly threatened to burn down Kirby's house, including the day before the fire and again as Kirby left his property on the day of the blaze. Spencer was often observed yelling at Kirby, accusing him of being a pedophile and detaining trafficked children in his house.2
At trial, Kirby testified that, on the day of the fire, he and his adult stepson were working in the garage when he saw Spencer yelling in their direction from her yard. Kirby said he tried to ignore her. Sometime later that day, Kirby and his stepson left the house and drove to Anchor Point to go to the store. At the time, Kirby's wife was at work and his granddaughter, who also lived at the house, was at the schoolyard. Kirby testified that as he and his stepson left the house, Spencer was screaming at their truck when they drove by. Kirby added that Spencer was screaming “the usual stuff” (e.g., “cleanse it with fire” and “burn it down”).
While driving home from Anchor Point, Kirby received a call from his daughter-in-law, who told him that his house was on fire. When Kirby and his stepson returned to the house, Kirby's stepson attempted to save the family's dogs that were inside, and, after punching and breaking a window, he was able to save all but one of them. Kirby later testified that he could not get within fifty feet of the house without feeling the heat from the fire and that he was unable to breathe from the smoke. Neighbors attempted to put out the fire using buckets and hoses until the fire department arrived, but by then the house was nearly engulfed in flames.
Star page 2*2 The day following the fire, Alaska Deputy Fire Marshal Kyle Carrington conducted an investigation of the fire. As part of his investigation, Carrington interviewed Spencer, Kirby, and several witnesses who had been at the scene. Carrington ultimately determined that the fire originated on the exterior of Kirby's house and that the cause was incendiary — i.e., that the fire was started deliberately.
Spencer quickly became a suspect in law enforcement's arson investigation. Kirby immediately suspected that Spencer was to blame for the fire. One witness, Maria Kraskoff, testified that she was told by Kirby's neighbor, Agafia Kojin, that Spencer was on Kirby's property at the time of the fire. Another witness, Zena Bodunov, testified that she saw Spencer running away from Kirby's house with a small gas can. When officers arrived to the scene of the fire, Spencer was yelling and carrying a laptop. Police subsequently seized her phone and laptop and discovered that the devices contained a video of Kirby's house recorded the day before the fire and a two-hour video of the house recorded during the fire. Police also seized the clothing that Spencer was wearing the day of the fire; later testing of her head scarf and skirt revealed the presence of gasoline on both items of clothing.
Spencer was indicted on one count of first-degree arson and one count of first-degree criminal mischief.3 Spencer's case proceeded to a jury trial.
Trial proceedings
At trial, several of Kirby's neighbors and other witnesses testified about Spencer and the fire. Bodunov testified that she lived two houses down from Kirby and that Spencer and Kirby were always “screaming at each other and yelling.” She described Spencer's behavior in the weeks leading up to the fire as “horrifying” and “scary.” Bodunov stated that Spencer “would always be yelling, saying that ... she was always going to catch ... the village on fire and just blaming everybody ... for things that they didn't even do, like child abusing and stuff.” Budonov testified that, when she saw Spencer running away from Kirby's house on the day of the fire, Spencer had a “very small” gas container.
After Bodunov's testimony, the State attempted to call Kojin, who lived directly across the street from Kirby's house at the time of the fire. Due to Kojin's age and medical condition at the time of trial, she was unable to remember what happened on the day of the fire or to testify about it. After unsuccessfully attempting to swear in Kojin, the court instructed the jury that Kojin had been found not competent to testify and was unavailable as a witness.
Kraskoff, Kojin's caretaker and next-door neighbor, was the next to testify. Prior to Kraskoff being called to the stand, the State made an application to the court to admit a statement that Kojin made to Kraskoff immediately after they noticed the fire. Specifically, the State asked the court to permit Kraskoff to testify that, while watching Kirby's house burn, Kojin made statements indicating that Spencer had started the fire. Spencer objected, arguing that the statements were hearsay. The State argued that the statements were admissible as a present sense impression and an excited utterance.4 The court held a hearing outside the presence of the jury where Kraskoff testified about the circumstances surrounding Kojin's statements. Based on the hearing testimony, the court found that Kojin's statements constituted both a present sense impression and an excited utterance, given that Kojin “was panicking” and was under the stress or excitement of “a startling event,” specifically the fire raging next door, and admitted the statements.
Star page 3*3 Kraskoff then testified before the jury that she was outside when the fire started. She stated that, immediately after the fire began, she went inside Kojin's house and that Kojin was panicking and said to her, “oh, my God, she did it.” Later, the State recalled Kraskoff. The State asked Kraskoff if Kojin specifically told her that Spencer started the fire, to which Kraskoff replied affirmatively. Kraskoff also testified that Kojin said she saw Spencer at Kirby's house.
Mark Kalugin testified that he was staying with family down the road from Kirby's house during the summer of 2017. Kalugin said he met Spencer for the first time on the eve of the fire when he intervened to deescalate a verbal argument between Spencer and a group of people that included Kirby.
Deputy Fire Marshal Carrington testified that he ultimately determined that the fire originated on the exterior of Kirby's house and that the cause was incendiary. He explained that he arrived at his conclusion by investigating the scene, ruling out competent heat sources in the area where the fire originated, and collecting witness statements. With respect to the witness statements, Carrington said witnesses reported that the fire “quickly flashed” and made “almost like a whoosh or a swooshing sound,” and that Spencer ran onto the property where the fire occurred and then “quickly ran away.” At that point, Spencer objected, without specification, and the court overruled the objection, allowing Carrington to finish his statement. Carrington testified that a witness reported “hearing Ms. Spencer threaten to burn the house down prior to the fire.” Spencer asked for a curative instruction, which the superior court gave, explaining that witness statements are reasonably relied upon by experts in forming their opinions, but that the jury should not use those statements as proof of the matter asserted.
Spencer called her own expert, private fire investigator Ernest Misewicz. Misewicz testified that he believed that the fuel source for the fire was likely cardboard, but he opined that a number of other competent heat sources in the area could not be ruled out because of what were, in his opinion, defects in Carrington's investigation. Misewicz gave little weight to the various witness statements, reasoning that they were somewhat contradictory and not necessarily credible.
Spencer was ultimately convicted of one count of first-degree arson and one count of first-degree criminal mischief.5 She was sentenced to 6 years of incarceration with 2 years suspended for each conviction; the active terms of incarceration were to be served concurrently, but the suspended time was to run consecutively.
Why we conclude that Kraskoff's testimony about Kojin's statements was properly admitted as an excited utterance
Out-of-court statements offered to prove the truth of the matter asserted are inadmissible hearsay unless an exception applies.6 One of these exceptions is for an excited utterance, or a “statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.”7 The commentary to Alaska Evidence Rule 803 explains that the rationale for this exception is “that circumstances may produce a condition of excitement which temporarily stills the capacity of reflection and produces utterances free of conscious fabrication.”8 According to the commentary, “[s]pontaneity is the key factor.”9 While there is no hard-and-fast rule for how long this excitement can prevail after the startling event, the commentary suggests that “the character of the transaction or event will largely determine the significance of the time factor.”10
Star page 4*4 Thus, the test for determining whether a statement qualifies as an excited utterance is whether “the declaration [was] spontaneous, excited, or impulsive, or [whether it was] the product of reflection and deliberation.”11 Consistent with the rule commentary, while the time since the exciting event is a relevant factor in answering this question, it is not necessarily the decisive factor.12
Spencer argues that the court erred in admitting Kojin's statements to Kraskoff because the statements suggest “conscious reflection” rather than an excited utterance. But Spencer's characterization of Kojin's statements is inconsistent with the court's findings. The superior court explicitly found that Kojin was nervous and “panicking” while making her statement to Kraskoff. This finding is supported by Kraskoff's testimony that Kojin “was looking out the window and ... panicking” and that she appeared “worried” and “scared.” The court further found that the fire — not just the start of it, but the ongoing spread of it — was “certainly startling,” noting that it seemed the fire could possibly spread and that Kojin was “under the stress and excitement” of seeing her neighbor's house fully engulfed in flames.
Kraskoff testified that the fire caught “really fast” and that she saw Kojin immediately after the fire started. She described a scene where people were panicking and at least one other neighbor was running around outside with a hose trying to extinguish the flames.
We have reviewed the record and conclude that the court's findings of fact are not clearly erroneous.13
Spencer also challenges the court's admission of Kraskoff's recall testimony regarding Kojin's statements that Spencer started the fire and that she saw Spencer at Kirby's house. Spencer again argues that there was insufficient information about the context in which the statements were made to qualify them as excited utterances. We reject this argument for the same reasons discussed above.14
Star page 5*5 Because we affirm the admission of Kojin's statements as excited utterances, we need not address the superior court's alternative grounds for admissibility.15
Why we conclude that any error in the admission of Carrington's testimony about Kojin's testimonial statement was harmless beyond a reasonable doubt
On appeal, Spencer argues that the superior court erred by allowing Deputy Fire Marshal Carrington to testify about a statement Kojin made to him (during his investigation on the day following the fire) that she had seen Spencer running to Kirby's house right before the fire started and running away immediately after. Spencer asserts that the admission of the statement violated her confrontation rights and that the error was not harmless beyond a reasonable doubt.
At trial, Carrington was qualified as an expert in fire investigation. Carrington explained that guidelines for determining the origin and cause of a fire are promulgated in the National Fire Protection Association 921, which “essentially dictates how a fire investigation should be conducted.” He stated that the “main goal in a fire investigation is to find two things: the area of origin and the heat source that started that fire.” Carrington testified that fire investigators regularly rely on eyewitness accounts to inform their fire origin and cause determinations because eyewitnesses see things that an investigator does not. Carrington further explained that eyewitness accounts are especially helpful when a building has been destroyed:
The fire starts at the origin and so any of the evidence as far as the first fuel ignited, the competent heat sources, oftentimes, not all, but oftentimes those are heavily consumed so that the information and observations [that eyewitnesses] have might be the only context of putting that scene together.
Prior to Carrington's testimony about the witness statements that he relied on in forming his opinion, Spencer requested a break. Outside the presence of the jury, Spencer told the court that she was concerned about Carrington testifying about Kojin's statement to him regarding the fire because Kojin had been found not competent to testify and was unavailable. Carrington explained to the court that Kojin reported to him that she saw Spencer run across the driveway onto Kirby's property, saw flames, and then saw Spencer running away from Kirby's property.
Star page 6*6 The court directed Carrington to “sort of have all the statements in a pot ... so they [were] not distinguishable as to any specific witness.”
With that direction from the court, the State resumed its direct examination of Carrington and asked him what eyewitness information he relied on generally in forming his opinion about the cause of the fire. Carrington responded:
It was reported that the fire was to the left of the freezer; that it was about three to four foot in height, and it hadn't spread very much at that time. There were comments made that the fire quickly flashed. I believe someone made a comment that it was almost like a whoosh or a swooshing sound when they heard — a sound they heard right before seeing the building on fire. Someone reported seeing Ms. Spencer run across the road into the property where the fire occurred and then quickly ran away right before the fire was observed.
Spencer objected and the court overruled the objection. The court then asked Carrington if he had finished responding to the State's question, and Carrington remarked, “I forgot that witnesses reported hearing Ms. Spencer threaten to burn the house down prior to the fire.” The superior court then instructed the jury that witness statements are reasonably relied on by experts in informing their opinions, but that the jury should not use those statements as proof of the truth of the matter.
Both the Sixth Amendment to the United States Constitution and Article I, Section 11 of the Alaska Constitution guarantee a criminal defendant the right “to be confronted with the witnesses against him.” In order to implicate the Confrontation Clause, an out-of-court statement by an unavailable witness must be (1) testimonial and (2) offered for the truth of the matter asserted.16
A statement is “testimonial” if it was made for the primary purpose of an investigation.17 As this Court has explained, the determinative factor in this analysis is the purpose of the witness's statement:
If the statement is made under circumstances objectively indicating that the primary purpose of the questioning is to enable the police to meet an ongoing emergency, the statement is non-testimonial. If, however, the primary purpose of the hearsay statement is ‘to establish or prove past events potentially relevant to later criminal prosecution,’ the statement is testimonial.[18]
Here, the statement that Kojin made to Carrington occurred on the day after the fire, as part of an official investigation into the nature and cause of the fire. At that time, there was no longer an ongoing emergency. Thus, Kojin's statement to Carrington was clearly “testimonial.”
The next question is whether Kojin's testimonial statement was offered for the truth of the matter asserted.19 As the United States Supreme Court recognized in Smith v. Arizona, “If an expert for the prosecution conveys an out-of-court statement in support of his opinion, and the statement supports that opinion only if true, then the statement has been offered for the truth of what it asserts.”20 On appeal, Spencer argues that Kojin's statement to Carrington only supported Carrington's opinion if the jury accepted the statement as true.
Star page 7*7 We conclude that we need not reach the issue of whether Kojin's statement to Carrington was offered for the truth of the matter asserted, because any error in the superior court's admission of the statement through Carrington was harmless beyond a reasonable doubt.
The admission of Kojin's testimonial statement through Carrington's testimony — that she observed Spencer at Kirby's house at the time of the fire — was harmless because a nearly identical statement from Kojin was validly admitted through Kraskoff's testimony as an excited utterance. The jury also heard significant other testimony implicating Spencer, including testimony that her clothing from the day of the fire contained traces of gasoline; multiple people heard Spencer repeatedly threaten to burn down Kirby's house; and Bodunov saw Spencer running from Kirby's house with a “very small” gas container.
For these reasons, we conclude that any error in the admission of Carrington's testimony about Kojin's testimonial statement was harmless beyond a reasonable doubt.
Why we conclude that Spencer's convictions for first-degree arson and first-degree criminal mischief merge
Prior to sentencing, Spencer moved to merge the verdicts for first-degree arson and first-degree criminal mischief into a single conviction. Spencer argued that the two statutes under which she was convicted both address property damage, require damage caused by “widely dangerous means,” and support the same societal interest. The State opposed Spencer's merger motion, arguing that the criminal mischief and arson statutes relate to distinct societal interests, so merger of the convictions was inappropriate. The superior court declined to merge the convictions. We conclude that this was error under the facts of Spencer's case.
In Whitton v. State, the Alaska Supreme Court established the test for determining whether two crimes constitute a single offense for double jeopardy purposes.21 Under this test, a court must compare the different statutory provisions as applied to the facts of the case and evaluate any differences in intent or conduct in light of the societal interests to be vindicated.22 If the differences in intent or conduct are “insignificant or insubstantial” in relation to the societal interests, the court may only enter a single conviction and sentence.23 The Whitton test “requires a comparison of the different statutes ‘as they apply to the facts of the case.’ ”24
Spencer was convicted of first-degree arson and first-degree criminal mischief. A person commits the crime of first-degree arson if “the person intentionally damages any property by starting a fire or causing an explosion and by that act recklessly places another person in danger of serious physical injury.”25 A person commits the crime of first-degree criminal mischief if, “with intent to damage property of another by the use of widely dangerous means, the person damages property of another in an amount exceeding $100,000 by use of widely dangerous means.”26 “Widely dangerous means” is defined by statute as “any difficult-to-confine substance, force, or other means capable of causing widespread damage, including fire, explosion, avalanche, poison, radioactive material, bacteria, collapse of a building, or flood.”27
Star page 8*8 At sentencing, the superior court focused its merger analysis on the difference between language in the arson statute that referred to damaging “any property” and language in the criminal mischief statute that referred to damaging the “property of another.” But under the circumstances of Spencer's case, this was a distinction without a difference.
The evidence and argument at trial was that Spencer committed one criminal act: burning down Kirby's house. Thus, the “widely dangerous means” employed by Spencer, for purposes of the criminal mischief statute, was fire, and the property damaged was a house.
The State argues that, by protecting “any property” (including one's own), the first-degree arson statute serves to protect both individuals and neighborhoods from the risks associated with burning, while the criminal mischief statute (which refers to the property of another) protects only an individual owner's property rights. But Spencer was convicted of first-degree criminal mischief, which requires the use of “means capable of causing widespread damage” — damage which could necessarily do harm to both individuals and a community.28
The State also notes that first-degree arson requires that the defendant place another person at risk of serious physical injury and argues that this statute therefore uniquely implicates the safety of persons and not just the protection of property. But under the facts of this case, Spencer burned a house in a residential neighborhood; the prosecutor argued in closing that, in doing so, Spencer risked injuring not only one of the residents who ran up to the house to try to save his dogs, but also each of the people in the neighborhood who were incredibly close to the fire and the potential collapse of the house. This is the same interest sought to be protected through the prohibition in the first-degree criminal mischief statute on the use of “widely dangerous means” to damage property.29
As we observed in Hathaway v. State, “[a]rson appears to be at its roots a property crime,” which “prohibits the intentional damage of property.”30 We further stated that it appeared that “the legislature intended the crime of arson to criminalize intentionally damaging property ... by starting a fire or causing an explosion.”31 Here, Spencer set a house ablaze in a neighborhood and burned it down while multiple community members responded. Under the circumstances of Spencer's case, we conclude that the first-degree arson and first-degree criminal mischief verdicts must merge into a single conviction.32
Star page 9*9 Because the superior court imposed consecutive terms of suspended time on these counts, our ruling on Spencer's double jeopardy claim potentially affects the suspended portion of Spencer's sentence. For this reason, our ruling requires us to remand this case to the superior court for resentencing in conformity with this decision.
We agree with the parties that it was plain error to impose a probation condition requiring residential treatment without designating a maximum term
On appeal, Spencer argues that the superior court erred by failing to include a maximum term of residential treatment in Special Probation Condition 2, which requires her to “complete all mental health programs, counseling and treatment recommended by the evaluator, including residential placement.”
The State concedes that the omission of a maximum term of residential treatment is plainly erroneous and that there is no basis in the record for modifying the judgment to include a maximum term.33
We find the State's concession to be well-founded.34 The written judgment in this case includes a residential treatment requirement but does not specify a maximum term. In Galindo v. State, we made clear that “failure to set an upper limit for the residential treatment provision is contrary to both statute and case law, and thus plainly erroneous.”35
For these reasons, we remand Spencer's case and instruct the superior court to strike the phrase, “including residential placement,” from Special Probation Condition 2.
Conclusion
We REMAND this case to the superior court with directions to merge Spencer's convictions for first-degree arson and first-degree criminal mischief, to resentence Spencer in conformity with this decision, and to strike the portion of Special Probation Condition 2 regarding residential placement. In all other aspects, we AFFIRM the judgment of the superior court.