Debra Lynn Spencer v. State of Alaska

NOTICE
Memorandum decisions of this Court do not create legal precedent. See Alaska
Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of
Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this
memorandum decision may not be cited as binding authority for any proposition
of law, although it may be cited for whatever persuasive value it may have. See
McCoy v. State, 80 P.3d 757, 764 (Alaska App. 2002).
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
DEBRA LYNN SPENCER,
Appellant,
v.
STATE OF ALASKA,
Appellee.
Court of Appeals No. A-14367
Trial Court No. 3HO-19-00031 CR
MEMORANDUM OPINION
No. 7215 — September 2, 2026
Appeal from the Superior Court, Third Judicial District,
Homer, Lance Joanis, Judge.
Appearances: Tristan Bordon, Assistant Public Defender, and
Terrence Haas, Public Defender, Anchorage, for the Appellant.
Seneca Theno Freitag, Assistant Attorney General, Office of
Criminal Appeals, Anchorage, and Stephen J. Cox, Acting
Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Beach,
Judges.
Judge BEACH.
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

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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
1 AS 11.46.400 and AS 11.46.475(a)(3), respectively.

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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.
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,
2 We note there is no evidence in the record to support these accusations.

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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
3 AS 11.46.400 and AS 11.46.475(a)(3), respectively.

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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.
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.
4 Alaska R. Evid. 803(1)-(2).

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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.
This appeal followed.
5 AS 11.46.400 and AS 11.46.475(a)(3), respectively.

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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
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
6 Alaska R. Evid. 801(c), 802.
7 Alaska R. Evid. 803(2).
8 Alaska R. Evid. 803(1)-(2) cmt. para. 3.
9 Id.
10 Id. at para. 5.
11 State v. Agoney, 608 P.2d 762, 764 (Alaska 1980) (quoting Beech Aircraft Corp. v.
Harvey, 558 P.2d 879, 884 (Alaska 1976)).
12 Dezarn v. State, 832 P.2d 589, 591 (Alaska App. 1992) (recognizing that “[t]he
declarant’s spontaneity, a product of the emotions being experienced by the declarant, is

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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
the key factor in determining the admissibility of the statement” and that “the amount of
elapsed time is not the sole factor to be considered” when determining spontaneity).
13 See Sanders v. State, 364 P.3d 412, 419 (Alaska 2015) (explaining that we review a
trial court’s factual findings for clear error and will only reverse when we are left “with a
definite and firm conviction that a mistake has been made” (quoting Lee v. Konrad,
337 P.3d 510, 517 (Alaska 2014))).

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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
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
14 After the jury returned its guilty verdicts, Spencer moved for a new trial raising
various issues, including that Kraskoff’s recall testimony about Kojin’s statements was
inadmissible hearsay and inconsistent with Kraskoff’s initial testimony (and therefore
false). The superior court denied Spencer’s motion, finding that the recall testimony was
consistent with Kraskoff’s earlier testimony and that the court had admitted the statements
based on the context in which they were made and not their content. On appeal, Spencer
renews her claim that Kraskoff’s recall testimony regarding Kojin’s statements was
inadmissible hearsay and argues that, because the testimony contained a more explicit
statement that Kojin had personally witnessed Spencer start the fire, it was prejudicial. But
for the reasons already explained, we reject Spencer’s challenge to the admissibility of this
evidence.
15 Spencer also briefly argues that the admission of Kojin’s statements to Kraskoff
violated her due process rights because Spencer was unable to cross-examine Kojin about
various statements she made in the years since the fire and could not cross-examine
Kraskoff about her biases and the accuracy of her memory “without alerting the jury to
other potential bad acts.” As the State notes, Spencer provides little further detail or legal
analysis for this claim. And Spencer did not raise or receive a ruling on this claim in the
superior court. Thus, even assuming this argument is not waived for inadequate briefing,
we reject it. See Moreno v. State, 341 P.3d 1134, 1139 (Alaska 2015); cf. Luch v. State,
413 P.3d 1224, 1234-35 (Alaska App. 2018) (determining that a victim’s out-of-court
statements were admissible under the excited utterances hearsay exception and were not
testimonial hearsay and thus not barred by the right to confrontation (citing Michigan v.
Bryant, 562 U.S. 344, 374-78 (2011))).

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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.
The court directed Carrington to “sort of have all the statements in a pot
. . . so they [were] not distinguishable as to any specific witness.”

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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:
16 Crawford v. Washington, 541 U.S. 36, 59 (2004); Smith v. Arizona, 602 U.S. 779,
792-93 (2024).
17 Davis v. Washington, 547 U.S. 813, 822 (2006).

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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.
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
18 Gomez v. State, 516 P.3d 879, 884 (Alaska App. 2022) (quoting Davis, 547 U.S.
at 822).
19 Smith, 602 U.S. at 792-93.
20 Id. at 795.

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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
21 Whitton v. State, 479 P.2d 302, 312 (Alaska 1970).
22 Id.

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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
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”
23 Id. at 312; see also Rofkar v. State, 273 P.3d 1140, 1143 (Alaska 2012) (applying
the Whitton test).
24 Rofkar, 273 P.3d at 1143 (quoting Whitton, 479 P.2d at 312).
25 AS 11.46.400(a).
26 AS 11.46.475(a)(3).
27 AS 11.46.495(8).

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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
28 Id.
29 See Commentary to Alaska’s Revised Criminal Code, 1978 Senate Journal
Supplement No. 47 (June 12), at 49 (“The likelihood of serious physical injury resulting
from the use of a ‘widely dangerous means’ to intentionally cause damage to property
justifies classification of this conduct as more serious than other forms of property
damage.”).

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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
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.
30 Hathaway v. State, 925 P.2d 1343, 1344-45 (Alaska App. 1996) (quoting
Machado v. State, 797 P.2d 677, 687 (Alaska App. 1990)). In its brief, the State cites to
Mossberg v. State, in which we stated that the “the primary interest addressed by the
prohibition against arson — and particularly by the statute proscribing first-degree arson —
is the safety of persons rather than the protection of property.” 733 P.2d 273, 275 (Alaska
App. 1987). But the defendant in Mossberg was convicted prior to the adoption of the
Alaska Revised Criminal Code in 1980, and the Mossberg court was therefore evaluating
the pre-code arson statute, and thus does not govern over our more recent characterizations
of the post-code arson statute in Hathaway and Machado.
31 Hathaway, 925 P.2d at 1345.
32 Because the two counts that merge are both class A felonies, on remand, the State
may elect the count upon which it wishes the modified judgment to be entered. See
Yearty v. State, 805 P.2d 987, 996 n.5 (Alaska App. 1991).

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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.
33 See Christensen v. State, 844 P.2d 557, 559 (Alaska App. 1993); Galindo v. State,
481 P.3d 686, 690 (Alaska App. 2021).
34 See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (requiring an appellate court
to independently assess any concession of error by the State in a criminal case).
35 Galindo, 481 P.3d at 690 (citation omitted); see also AS 12.55.100(c) (providing
that a program of inpatient treatment must be authorized — and may not exceed a
maximum term of inpatient treatment specified — in the judgment).

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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.