Judge MANNHEIMER.

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. Trial Court No. 4BE-13-765 CR

MEMORANDUM OPINION

Appeal from the District Court, Fourth Judicial District, Bethel, Nathaniel Peters, Judge. Appearances: William T. Montgomery, Assistant Public Advocate, Bethel, and Richard Allen and Chad Holt, Public Advocates, Anchorage, for the Appellant. Bailey J. Woolfstead, Assistant District Attorney, Bethel, and Craig W. Richards and Jahna Lindemuth, Attorneys General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. Judge MANNHEIMER.

Yako M. Andrew contends that his conviction for fourth-degree assault should be overturned on the ground that he was denied his right to a speedy trial under Alaska Criminal Rule 45. Andrew argues in the alternative that he was denied due process at his trial. More specifically, Andrew argues that the trial judge committed error by allowing the State to introduce evidence of an extraneous assault, and by allowing the jury to convict Andrew of this uncharged assault. Andrew also argues that the evidence presented at his trial was legally insufficient to establish the "physical injury" element of fourth-degree assault.

For the reasons explained in this opinion, we conclude that Andrew's claims have no merit, and we therefore affirm Andrew's conviction.

The argument that Andrew was denied his right to a speedy trial under Alaska Criminal Rule 45

Andrew was charged with fourth-degree assault for assaulting his girlfriend, Lynet Roberds, in Goodnews Bay (a village outside of Bethel) on August 26, 2013. Andrew was served with the criminal complaint at his arraignment in the Bethel district court on August 27, 2013. Thus, the following day — August 28, 2013 — was Day 1 for purposes of the speedy trial calculation under Criminal Rule 45.

On February 4, 2014 — i.e., 161 calendar days later — Andrew's attorney filed a motion to dismiss the assault charge, arguing that the time for bringing Andrew to trial under Criminal Rule 45 had expired.

Under Criminal Rule 45(b), a defendant must be brought to trial within 120 countable days. The parties agree that there were no further countable days in Andrew's case after Andrew's attorney filed the motion to dismiss on February 4, 2014.

Thus, the question presented in this appeal is whether there are 41 or more excludable days among the 161 calendar days that elapsed between the date of Andrew's arraignment and the date on which his attorney filed the motion to dismiss.

For the reasons we are about to explain, we conclude that there are at least 41 excludable days in Andrew's case. He was therefore brought to trial within the time limits of Criminal Rule 45.

At Andrew's arraignment, the Bethel district court scheduled a "trial call" hearing in Andrew's case for October 1, 2013. Andrew failed to appear for this hearing, and the court issued a warrant for his arrest. This stopped the running of the Rule 45 clock. At that point, there were 35 countable days under Rule 45.

Andrew's attorney asked the court to calendar Andrew's case for the next scheduled trial call — November 5, 2013 — but the court declined to schedule another hearing until Andrew was located. Thus, Andrew remained at large, and there was no future court date scheduled in his case.

On October 22, 2013 (i.e., three weeks after Andrew failed to appear for the trial call in his Bethel case), Andrew was arrested in Anchorage in a separate case involving charges of second-degree robbery and fourth-degree theft. But the Anchorage authorities remained ignorant of Andrew's pending Bethel case — because, when the Bethel court issued its warrant for Andrew, the court listed his name incorrectly. Because of the incorrect name, when a clerk working for the Alaska State Troopers tried to enter the bench warrant into APSIN (the Alaska Public Safety Information Network), the defendant's name and the APSIN identification number did not match, so the clerk was unable to enter the warrant.

Thus, Andrew remained jailed on the Anchorage charges, but the Bethel court remained unaware that he had been apprehended.

During this time, the only activity that occurred in Andrew's Bethel case was a change in his court-appointed representation. The Public Defender Agency had been appointed to represent Andrew at his arraignment, and an assistant public defender appeared for Andrew at the trial call on October 1st, but the Agency later discovered that it had a conflict — so on December 4, 2013, the Agency moved to withdraw from Andrew's case. The Bethel district court granted the Agency's motion on December 23rd, and an attorney from the Office of Public Advocacy entered his appearance on behalf of Andrew on January 8, 2014.

The Public Defender Agency's motion to withdraw tolled the running of Rule 45 for a total of 35 days (from December 4, 2013 until January 8, 2014). See Stobaugh v. State, 614 P.2d 767, 769-70 (Alaska 1980), where the supreme court held that the time necessary to resolve a defense attorney's motion to withdraw and to secure new representation is excluded from the defendant's speedy trial calculation under Criminal Rule 45(d)(1).

At some point in late 2013 or early 2014, the State Troopers notified the Bethel court of the discrepancy in its bench warrant. On January 21, 2014, the Bethel court recalled its October warrant and issued a corrected warrant. That same day, corrections officers at the Goose Creek Correctional Center (outside of Wasilla) served that warrant on Andrew.

Two days later, on January 23, 2014, the Palmer district court arraigned Andrew on the Bethel warrant, and the court scheduled a calendar call in Andrew's Bethel case for February 4, 2014.

Shortly before the Bethel district court convened the February 4th calendar call, Andrew's attorney filed the motion to dismiss Andrew's case for a purported violation of Criminal Rule 45.

As we explained earlier, when the defense attorney filed this motion on February 4th, a total of 161 calendar days had elapsed since Andrew's initial arraignment (where he was served with the criminal complaint in this case). The question is whether 41 or more of these days are excluded from the speedy trial calculation under the provisions of Criminal Rule 45(d).

Andrew concedes that the district court could properly exclude the 21 days from October 1, 2013 (when Andrew failed to appear for his trial call) until October 22, 2013 (when Andrew was arrested in Anchorage on the separate charges).

Moreover, Andrew all but concedes that an additional 14 days — the time from Andrew's arrest in Anchorage on October 22, 2013 until the Bethel district court's next scheduled trial call on November 5, 2013 — are excludable due to Andrew's failure to appear at the October 1st trial call.

Andrew does not expressly concede that these 14 additional days are excludable, but Andrew's argument on appeal is premised on the notion that, when he failed to appear for the trial call on October 1st, the court should have re-scheduled his case for the next available trial call, which was November 5th. Thus, Andrew is effectively arguing that the entire 35 days from October 1st through November 5th are properly attributable to his failure to appear on October 1st. Accordingly, these days should be excluded from the Rule 45 calculation.

In addition, even if (as Andrew argues) the State should be faulted for the delay beyond November 5, 2013 (i.e., the delay caused by the typographical error in the Bethel court's initial bench warrant for Andrew's arrest), the fact remains that both the district court and the State acted diligently in securing Andrew's presence and pursuing the Bethel assault charge from January 21, 2014 (when the re-issued Bethel bench warrant was served on Andrew at the Goose Creek Correctional Center) until February 4, 2014 (the date of the next Bethel calendar call, and the date on which Andrew's attorney filed the motion to dismiss). Thus, these 14 days are excluded from the Rule 45 calculation.

Finally, as we have already noted, another 35 days are excludable from the speedy trial calculation because of the Public Defender Agency's motion to withdraw. See State v. Clouatre, 516 P.2d 1189, 1191 (Alaska 1973), and State v. Angaiak, 847 P.2d 1068, 1073 (Alaska App. 1993) — both holding that any event listed in subsections (1) through (6) of Criminal Rule 45(d) tolls the running of the speedy trial clock, regardless of whether that event actually delayed the defendant's trial.

In sum, we conclude that 84 days are excludable from the total of 161 calendar days that elapsed between Andrew's initial arraignment and his motion to dismiss. Thus, Andrew was brought to trial within the time limits of Criminal Rule 45, and the district court properly denied Andrew's motion to dismiss the case.

The argument that Andrew may have been convicted of an extraneous uncharged assault

Andrew claims that the district court violated his right to due process of law by allowing the prosecutor to introduce evidence of an extraneous assault, by allowing the jury to convict Andrew of this extraneous assault, and by denying Andrew's attorney's request for a jury unanimity instruction — i.e., an instruction that would have required the jurors to unanimously agree as to which of the two assaults the State had proved.

All of these arguments are based on Andrew's underlying assertion that he committed two separate assaults against his girlfriend, Lynet Roberds, on August 26, 2013, and that the State only charged him with one of these assaults. Here are the pertinent facts:

Andrew and Roberds lived together in Goodnews Bay. On August 26, 2013, Andrew took Roberds into the bathroom, grabbed her by the neck, choked her, and then pushed her head down into their top-loading washing machine. Andrew turned the machine's water on, and he held Roberds's face under the running water so that water flowed into her nose. In the process, Andrew bruised Roberds's throat.

Roberds managed to break Andrew's hold, and she ran outside, but Andrew followed her and caught her. He grabbed Roberds and threw her to the ground. The evidence suggested that Andrew may have injured Roberds's knee when he did this.

Based on this incident, the State charged Andrew with fourth-degree assault under AS 11.41.230(a)(1) for recklessly causing physical injury to another person. Although the complaint itself did not further specify Andrew's crime, the supporting affidavit (written by the village police safety officer who responded to the assault) mentioned only the second portion of the incident — quoting Roberds as saying that "she was trying to get away from [Andrew] when he grabbed her and pushed her down[,] causing her to fall and hurt [her] knee."

The village public safety officer was aware of Roberds's allegation that Andrew choked her and pushed her head into the washing machine — and the officer included this information in the original affidavit that he prepared. But for reasons that are not fully explained in the record, the state troopers directed the village public safety officer to remove that information from the affidavit.

Despite the abridgement of the village public safety officer's affidavit, Andrew's defense attorney was aware of the full scope of the assault. In the prosecutor's opening statement, she made it clear that the State would be relying on Andrew's conduct inside the house as part of its case. And at almost every break during Andrew's trial, Andrew's attorney raised the argument that, in his view, Andrew had committed two separate assaults against Roberds.

According to the defense attorney, the first assault occurred inside the house, when Andrew choked Roberds and then held her head in the washing machine. The defense attorney contended that a second, separate assault occurred outside the house — when Roberds broke Andrew's hold and ran outside, and Andrew chased her, caught her, and threw her to the ground.

Based on this view of matters, the defense attorney repeatedly argued that the trial judge should prohibit the prosecutor from relying on evidence of any assaultive conduct that Andrew committed inside the house. The defense attorney also argued that the jury should be required to reach a unanimous decision as to which of these two assaults the State had proved.

The trial judge deferred ruling on these issues until he had heard all the evidence. Ultimately, based on the trial evidence, the judge ruled that there had not been two separate assaults, but rather only one continuing assault — an assault that was interrupted "for a matter of moments" when Roberds managed to get away from Andrew and run outside.

On appeal, Andrew renews his contention that he committed two separate assaults on Roberds — the first assault taking place inside the house, followed by a separate, second assault outside the house. Based on this view of matters, Andrew argues that the State should not have been allowed to seek a conviction based on Andrew's conduct inside the house — or that, at least, the jury should have been required to reach unanimity as to which assault the State had proved.

But under Alaska law, Andrew's conduct in this case constituted only one assault.

This Court has said that "multiple blows struck in the course of a single, continuous criminal episode" comprise a single assault unless "[the] blows are struck at clearly separate times and in clearly separate incidents, [as] when one blow is separated from another by a change in purpose, a 'fresh impulse,' or a different provocation." S.R.D. v. State, 820 P.2d 1088, 1092-93 (Alaska App. 1991).

Our decision in S.R.D. reflects the approach to the law of assault that the supreme court adopted in Mill v. State, 585 P.2d 546, 551-52 (Alaska 1978).

In Mill, the defendant pointed a rifle at the victim through a cabin window and ordered him outside; then, when the victim emerged from the cabin, the defendant shot him in the leg; then the defendant stood over the prostrate victim, threatening him with the rifle, until the victim wrote him a check. During the State's summation at the end of Mill's trial, the prosecutor argued that any of those three incidents could support a separate assault conviction. But our supreme court disagreed:

We view these events as a series of acts, in a short and continuous sequence, which amount to a unitary criminal episode. We believe that it was error for the court to permit the state to argue that there were three separate assault[s] with a dangerous weapon.

We applied the same principle of law in Miller v. State, 312 P.3d 1112, 1118 (Alaska App. 2013), a case in which the defendant challenged whether he could be ordered to pay restitution for an injury resulting from an assault. We pointed out in Miller that, "under Alaska law, even when a single assaultive act comprises two or more separate components, the assaultive act will normally be treated as one offense." We thus held that, because the defendant committed a single, continuous assault on the victim, the defendant could be ordered to pay restitution for injuries that the victim suffered during the entire assault, even though the prosecution had focused on only one stage of the assault at Miller's trial.

Given the facts of Andrew's case, the supreme court's decision in Mill and this Court's decision in S.R.D. provide the governing rule of law: Andrew committed a single continuing assault on Roberds, with some of the assault occurring inside the house and some of the assault occurring outside.

As Andrew points out, the affidavit supporting the criminal complaint referred solely to Andrew's conduct outside the house. But the function of this affidavit was to establish probable cause for the issuance of process (i.e., a summons or a warrant) based on the complaint. See Alaska Criminal Rule 4(a)(1). This affidavit did not limit the State's ability to introduce other evidence of the same assault at Andrew's trial in the district court.

Conceivably, the limited content of the affidavit might have created a notice problem, if the State's pre-trial discovery had not otherwise notified Andrew's attorney of the other evidence supporting the assault charge. But the record clearly shows that Andrew's attorney was aware of the full scope of the State's evidence, and aware that the State intended to rely on this evidence at trial.

For these reasons, we reject Andrew's claims of error on this issue.

The argument that the evidence at trial was insufficient to establish that Lynet Roberds suffered physical injury as a result of Andrew's conduct

Andrew's final claim on appeal is that the evidence presented at his trial was legally insufficient to establish one of the elements of fourth-degree assault under AS 11.41.230(a)(1) — specifically, the element that Lynet Roberds suffered "physical injury" as a result of Andrew's conduct.

For these purposes, the phrase "physical injury" means "physical pain or an impairment of physical condition". See AS 11.81.900(b)(47).

In his brief to this Court, Andrew points to various reasons why the jury might have concluded that the State had failed to establish the element of "physical injury". But when we assess whether evidence is legally sufficient to support a criminal conviction, we must view the evidence (and all reasonable inferences to be drawn from it) in the light most favorable to the jury's decision, and we must then ask whether the evidence (viewed in this light) was sufficient to convince fair-minded jurors that the government has proved its allegations beyond a reasonable doubt.

Applying this standard to the evidence presented at Andrew's trial, we conclude that the evidence was sufficient to support the jury's finding that Andrew's conduct caused physical injury to Lynet Roberds.

Conclusion

The judgement of the district court is AFFIRMED.