Opinion
Court of Appeals No. A-10733 Trial Court No. 3AN-07-10810 CR No. 5924
02-27-2013
DAVID K. ANDERSON, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Jane B. Martinez, Anchorage, for the Appellant. Nancy R. Simel, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
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.
MEMORANDUM OPINION
AND JUDGMENT
Appeal from the Superior Court, Third Judicial District, Anchorage, Philip R. Volland, Judge.
Appearances: Jane B. Martinez, Anchorage, for the Appellant. Nancy R. Simel, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, and Bolger and Allard, Judges.
ALLARD, Judge.
David Anderson was convicted of second-degree murder under an accomplice liability theory for the beating and resulting death of Jamaal Barras. On appeal, he contends that there was legally insufficient evidence that he possessed the requisite culpable mental state to establish accomplice liability under the different theories of second-degree murder that the State pursued. He also challenges his sentence as excessive in light of the purportedly minor role he played in the beating. For the reasons described here, we conclude that there was legally sufficient evidence to support his conviction and that his sentence of 38 years with 8 years suspended was not clearly mistaken. We therefore affirm his conviction and sentence.
Because Anderson contends that the evidence presented at his trial was insufficient to support his conviction for second-degree murder, we present that evidence here in the light most favorable to upholding the jury's verdict. See, e.g., Iyapana v. State, 284 P.3d 841, 848-49 (Alaska App. 2012); Morrell v. State, 216 P.3d 574, 576 (Alaska App. 2009).
On the evening of September 29, 2007, in downtown Anchorage, twenty-four-year-old David Anderson and his friend Ariel Patrick were beaten up and robbed of a bag of marijuana by a group of people, one of whom was the victim in this case, Jamaal Barras. Patrick called Kay Draper, the mother of his child, for help after the beating. Draper and her friend, Christine Johnson, joined the two men.
Everyone in the group was upset and wanted "repercussions." They decided to beat up the people who had beaten Patrick and Anderson and to get back their marijuana. Draper drove the group to Anderson's residence so that Anderson could get a new shirt. When Anderson and Patrick returned, Anderson was wearing a shirt and Patrick was carrying a baseball bat. Draper testified that there was never any intention to use a weapon until Patrick "decided to throw it in there" although she also testified that it was Patrick's intention to "hurt someone bad." Draper testified that Patrick had initially wanted to get his gun from his residence. According to Johnson, however, it was Anderson who had wanted to retrieve a gun. Shortly before the assault took place, Anderson told Patrick that he wanted the bat but Patrick held onto the bat and accused Anderson of being too "pussy" to fight with the bat.
The group drove back downtown looking for the people who had beaten up Patrick and Anderson. When Draper and Johnson approached Barras's group to buy the marijuana, they were led into an alleyway by a local bar, F Street Station. Draper sent Patrick a text message telling him to come. Patrick ran into the alley with the bat. Anderson arrived soon after, carrying a narrow pole (apparently part of a broomstick).
Patrick repeatedly struck Barras in the head with the bat and Anderson repeatedly struck Barras's legs with the broomstick. Surveillance videos maintained by the Hilton Hotel and F Street Station show Barras falling to the ground and the two men continuing to beat Barras as he lay on the ground. Patrick's strikes to Barras's head with the bat caused the injuries that ultimately led to Barras's death. Anderson's strikes to Barras's legs with the broomstick produced no external injuries.
After the security guards from F Street Station ran to get police assistance, Patrick, Draper and Johnson fled. Anderson was tackled by one of the security guards and arrested at the scene. Barras was transported to the hospital by ambulance, where it was believed that he would live, although with severe brain damage. Barras died a day later as a direct result of the brain swelling and bleeding caused by the multiple blunt-force injuries to his head.
Patrick fled to Guatemala but was eventually returned to the United States where he pled no contest to second-degree murder and was sentenced to a term of 40 years with 8 years suspended. Draper and Johnson were both given immunity by the State in exchange for their testimony at Anderson's trial.
Proceedings
Anderson was initially charged with first- and second-degree assault. After Barras died, the charges were changed to first- and second-degree murder as both principal and accomplice. At trial, the State acknowledged that Patrick was the principal actor but argued that Anderson was guilty under an accomplice liability theory. Anderson's defense was that he never intended to inflict serious physical injury or death on anyone, that he intended only to engage in a street fight, and that engaging in a street fight did not reflect a manifest indifference to the value of human life. The jury acquitted Anderson of first-degree murder but convicted him of second-degree murder.
At sentencing, the parties argued statutory aggravating and mitigating factors by analogy. With regards to the aggravating factors, Superior Court Judge Philip R. Volland placed significant weight on the fact that Anderson had a history of repeated instances of assaultive behavior (including a prior felony assault), and that he had just been released on probation. With regards to the mitigating factors, Judge Volland rejected Anderson's argument that the victim had provoked the offense to a significant degree, finding that there had been a significant cooling off period between the time that Anderson and Patrick were beaten up and the attack on Barras. Judge Volland also rejected Anderson's argument that he had played only a minor role in the offense, finding that the video showed that Anderson had played an active role in the beating and that he was "swinging as hard" as Patrick.
See Krack v. State, 973 P.2d 100, 104 (Alaska App. 1999) (consideration of statutory aggravating and mitigating factors can provide a useful guide for determining an appropriate sentence for an unclassified felony but standards of presumptive sentencing do not apply).
AS 12.55.155(c)(8), (c)(20).
AS 12.55.155(d)(7).
AS 12.55.155(d)(2).
Judge Volland concluded, however, that this case qualified as among the "least serious." He explained that there was "a credible argument" that "this is really more like a manslaughter or criminally negligent homicide than it is a second-degree murder." Although he noted that the conduct "certainly reflected an assault with an intention to cause serious physical injury to Mr. Barras," Judge Volland indicated that he did not believe "it started that way" and did not think that Anderson and Patrick left Anderson's house intending to cause serious physical injury.
After balancing Anderson's aggravated criminal history against the facts that mitigated his offense, Judge Volland imposed a sentence of 38 years with 8 years suspended, 30 years to serve, a sentence within the Page benchmark.
See Page v. State, 657 P.2d 850, 855 (Alaska App. 1983) (recommending sentence range of 20-30 years for the "typical" first-time felony offender committing the statutorily "typical" second-degree murder offense).
Discussion
Why we conclude that the evidence was legally sufficient
Anderson contends that there was insufficient evidence presented at trial to establish his guilt of second-degree murder. Specifically, he contends that there was insufficient evidence of the culpable mental state required to prove accomplice liability under each of the second-degree murder theories that the State pursued in his case.
We review a claim of insufficiency of the evidence by viewing the evidence, and all reasonable inferences drawn from that evidence, in the light most favorable to upholding the jury's verdict. "Viewing the evidence from this perspective, this court must decide whether a fair-minded juror exercising reasonable judgment could conclude that the State had met its burden of proving guilt beyond a reasonable doubt."
Dailey v. State, 65 P.3d 891, 898 (Alaska App. 2003).
Id.
Anderson was charged with second-degree murder under both AS 11.41.110(a)(1) and AS 11.41.110(a)(2). Alaska Statute 11.41.110(a)(1) provides that a person commits the crime of murder in the second degree if "with intent to cause serious physical injury to another person or knowing that the conduct is substantially certain to cause death or serious physical injury to another person, the person causes the death of any person." Alaska Statute 11.41.110(a)(2) provides that a person commits the crime of murder in the second degree if "the person knowingly engages in conduct that results in the death of another person under circumstances manifesting an extreme indifference to the value of human life."
"Serious physical injury" is defined as "(A) physical injury caused by an act performed under circumstances that create a substantial risk of death; or (B) physical injury that causes serious and protracted disfigurement, protracted impairment of health, protracted loss or impairment of the function of a body member or organ, or that unlawfully terminates a pregnancy." AS 11.81.900(b)(56).
At trial, the State acknowledged that Patrick was the principal actor but argued that Anderson was guilty under an accomplice theory. Under AS 11.16.110 (2)(B), a person is legally accountable for the conduct of another constituting an offense if, "with intent to promote or facilitate the commission of the offense," the person "aids or abets the other in planning or committing the offense." Accomplice liability requires that the defendant act with the intent to promote or facilitate the crime, not merely with the knowledge that another person intends to commit the crime. An intent to promote or facilitate an offense with an unintended result (such as second-degree murder) requires the accomplice to act with the intent to promote or facilitate the conduct that constitutes the actus reus of the offense and to act with the culpable mental state that applies to that result as specified in the underlying statute.
Estes v. State, 249 P.3d 313, 319 n.5 (Alaska App. 2011) (citing Riley v. State, 60 P.3d 204, 210 (Alaska App. 2002).
Riley, 60 P.3d at 221.
In other words, to convict Anderson under an accomplice liability theory of second-degree murder in this case, the State needed to present proof beyond a reasonable doubt that (1) Anderson encouraged or assisted Patrick's assault on Barras; (2) that Anderson provided this encouragement or assistance to Patrick with the intent to promote or facilitate the assault; and (3) that Anderson acted with the culpable mental state set out in the second-degree murder statute: i.e., that Anderson acted with the intent that the assault would cause serious physical injury or that Anderson acted knowing that the assault was substantially certain to cause death or serious physical injury or that Anderson acted with manifest indifference to the value of human life. In addition, because the jury convicted Anderson under a general verdict, without specifying the theory or theories under which it found Anderson guilty of second-degree murder, the evidence must be legally sufficient to convict Anderson under each of the theories the State pursued in order to uphold his current conviction.
See Spencer v. State, 164 P.3d 649, 655 (Alaska App. 2007); Grossman v. State, 120 P.3d 1085, 1087-88 (Alaska App. 2005).
See, e.g., Vigue v. State, 987 P.2d 204, 210 (Alaska App. 1999) (when the jury returns a general verdict and the court cannot determine which of the State's theories the jury relied on, the verdict must be reversed if any theory is invalid); State v. Gardner, 889 N.E.2d 996, 1005 (Ohio 2008) ("In reviewing an alternative means case, the court must determine whether a rational trier of fact could have found each means of committing the crime proved beyond a reasonable doubt.").
Our review of the record convinces us that there was sufficient evidence to support Anderson's conviction for second-degree murder under each of the theories that the State argued. The jury heard evidence that Patrick armed himself with a bat with the intent "to hurt someone bad" and heard and saw evidence of how Anderson's own actions in hitting Barras's legs with the stick directly supported and further facilitated Patrick's attack on Barras. The jury also heard testimony that before the fight began, Anderson wanted the bat and when Patrick would not give it to him he subsequently armed himself with a different weapon (the broomstick). Finally, the jury heard testimony that Anderson had wanted to arm himself with a gun.
From this evidence, a fair-minded juror could reasonably infer that Anderson acted with the intent to promote or facilitate the assault on Barras and that Anderson acted intending the assault to cause serious physical injury to Barras and/or knowing that the assault was substantially certain to cause serious physical injury. Likewise, a fair-minded juror could reasonably infer that Anderson's actions in aiding and abetting Patrick's assault on Barras were conducted under circumstances that constituted a manifest indifference to human life.
In their briefing, the parties disagreed on whether AS 11.41.110(a)(1) represents one theory or two. That is, they disagreed on whether a retrial would be necessary if there was insufficient evidence that Anderson acted with the actual intent to cause serious physical injury but there was sufficient evidence that Anderson acted knowing that there was a substantial certainty that death or serious physical injury would result. Because we conclude that there was legally sufficient evidence presented to support a conviction under either prong of AS 11.41.110(a)(1), we do not reach this question in this case.
See Jeffries v. State, 169 P.3d 913, 916 (Alaska 2007).
On appeal, Anderson argues that there was no evidence that he intended to use the gun or bat offensively and it was possible that he wanted the bat simply for self-defense or to prevent Patrick from using it. But these arguments rely on viewing the evidence in the light most favorable to Anderson rather than in the light most favorable to upholding the verdict, which is the standard we use when reviewing legal claims of insufficiency.
Dailey, 65 P.3d at 898.
Anderson also argues that Judge Volland's statements at sentencing were inconsistent with the jury's second-degree murder conviction. But Anderson's reliance on these statements is misplaced. Although Judge Volland indicated at sentencing that he personally believed the group left Anderson's residence without any intent to cause serious physical injury, his comments also suggested that such an intent developed afterwards as the situation escalated. Indeed, he noted particularly that Anderson and Patrick's conduct "certainly reflected an assault with an intention to cause serious physical injury to Mr. Barras." Likewise, while Judge Volland stated that a "credible argument" could be made that this case "is really more like a manslaughter or a criminally negligent homicide than it is a second degree murder," he made that statement in the context of finding that this case qualified as among the "least serious" second-degree murders and not as commentary on the validity of the jury's verdict.
Anderson's reliance on Judge Volland's statements at sentencing is misplaced for another reason as well. Legal insufficiency is a question of law to be decided de novo by this court; it is fundamentally different than review of a motion for a new trial that a trial court can grant or deny within its discretion based on its own view of the weight of the evidence. Thus, a trial court's post-verdict perception of the strength or weaknesses of parts of the State's case, while often directly relevant to other types of issues on appeal, is generally of limited value in an insufficiency claim.
See, e.g., New v. State, 714 P.2d 378, 381-82 (Alaska App. 1986) (discussing difference between judgment of acquittal and motion for new trial based on the weight of the evidence); see also Shafer v. State, 456 P.2d 466, 467-68 (Alaska 1969) (conviction on legally insufficient evidence will constitute plain error and failure to move for judgment of acquittal does not waive legal claim).
Why we conclude that Anderson's sentence was not clearly mistaken
Judge Volland sentenced Anderson to 38 years' imprisonment with 8 years suspended (30 years to serve), a sentence within the Page benchmark for a typical first-time felony offender committing a typical second-degree murder. Anderson, a second-time felony offender, contends that this sentence was excessive in light of his youth and the purportedly "minor role" that he played in the assault.
See Page, 657 P.2d at 855.
But Judge Volland directly rejected Anderson's argument that he played a "minor role" in the assault, finding that the video demonstrated that Anderson played an "active" role in facilitating and supporting the beating. Judge Volland's finding is well-supported by the record and well-grounded in our prior caselaw, which recognizes that a "secondary role" is not necessarily a "minor role." We also note that Anderson's separate sentencing argument that Judge Volland erred in rejecting the "minor role" statutory mitigating factor is itself moot given that aggravating and mitigating factors apply only by analogy in sentences for unclassified felonies.
See Andrew v. State, 237 P.3d 1027, 1050 (Alaska App. 2010).
Allen v. State, 56 P.3d 683, 684 (Alaska App. 2002).
The record further demonstrates that Judge Volland carefully considered Anderson's youth and rehabilitation potential when he crafted Anderson's sentence and that Judge Volland concluded that these considerations were largely outweighed by Anderson's aggravated criminal history, including his prior assaults, his recent felony assault, and his probationer status. While Judge Volland found that Anderson's prospects for rehabilitation were "better than [guarded]" because of his youth and the possibility of increased maturity, he indicated that he was "very troubled" by Anderson's difficulty with impulse control and anger and he noted that Anderson's assaultive behavior appeared to be getting worse. Judge Volland also found that Anderson's lack of impulse control and anger played a role in what happened that night: "I feel firmly convinced that [Anderson's anger and impulsiveness] was at play here for Mr. Anderson, that he was going to prove to the women that he was with that night that he wasn't a pussy."
Anderson points out that his sentence is only two years less than Patrick's, who was acknowledged to be the principal actor. But Anderson provides no information about Patrick's criminal history or any of the other background information that would be needed to make a meaningful comparison between the two sentences. While reasonable uniformity is an important goal of our sentencing law, "[c]omparison with other sentences cannot be determinative of a particular sentence appeal." This is because, in every case, "the defendant's sentence must be based upon an individualized consideration of the offender and the [circumstances of the] offense."
Strachan v. State, 615 P.2d 611, 614 (Alaska 1980).
McPherson v. State, 800 P.2d 928, 933 (Alaska App. 1990).
In sentencing Anderson within the Page benchmark for first-time felony offenders, albeit at the high end of that range, Judge Volland balanced the aggravating facts that applied to Anderson as an offender with the more mitigating facts that applied to this specific offense. We conclude based on our independent review of the record that the sentence imposed is not clearly mistaken.
McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (an appellate court is to affirm a sentencing decision unless the decision is clearly mistaken).
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Conclusion
The judgment of the superior court is AFFIRMED.