Opinion
Court of Appeals No. A-10087.
July 16, 2008.
Appeal from the Superior Court, Third Judicial District, Palmer, Eric Smith, Judge, Trial Court No. 3PA-07-267 CR.
Verne E. Rupright, Rupright Associates, LLC, Wasilla, for Appellant. Rachel K. Gernat, Assistant District Attorney, Roman J. Kalytiak, District Attorney, Palmer, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
John M. Elder was convicted in a jury trial of assault in the third degree, a class C felony. This conviction was merged with a conviction for reckless endangerment. Elder was also convicted of two counts of assault in the fourth degree, a class A misdemeanor. In addition, Elder faced revocation of his probation on a prior felony conviction for assault in the second degree, a class B felony.
AS 11.41.220(a)(1)(B), (d).
AS 11.41.230(a), (b).
AS 11.41.210(a), (b).
Superior Court Judge Eric Smith presided over Elder's trial and conducted the sentencing. Judge Smith sentenced Elder to a composite sentence of 7 years and 9 months to serve. Elder appeals his sentence. We affirm.
On February 5, 2007, at approximately 1:00 a.m., the Alaska State Troopers were summoned to Elder's residence by a report of a domestic assault. When the troopers arrived, Elder's sister told the troopers that Elder was in a downstairs bathroom with his girlfriend and had threatened to kill himself if the troopers were called. When the troopers went down to the basement, they heard crying coming from the bathroom. Elder eventually came out of the bathroom, and the troopers placed him in handcuffs. Elder admitted having consumed four or five beers and showed signs of intoxication.
Elder's girlfriend, Grace Wood, stated that the incident began because she thought Elder was trying to have sex with her younger sister, M.W. When Wood confronted Elder, he yelled at her, threw her on the bed, and put both of his hands around her throat. He applied pressure on her neck while she gasped for air. Wood stated that while Elder was holding her down, he hit her on the left side of her face. The troopers noticed that her left cheek was red and swollen and that she had difficulty speaking and moving her jaw.
M.W. told the troopers that Elder had been on top of her sister, strangling her around the neck. M.W. said she thought Elder was going to kill her sister. When she tried to pull Elder off of Wood, Elder grabbed M.W. by the hair and pulled her out of the way. M.W. stated that her head still hurt. When she and Wood had gone downstairs to call 911, Elder grabbed the telephone, threw it, and had threatened to bash their heads in.
Elder's sister stated that she saw Elder attacking Wood in the bedroom and tried to get between them. She and Elder pushed each other back and forth while she attempted to allow Wood to escape. She said that Elder picked up a knife in the kitchen and told them he would kill himself if the police arrived. He then took Wood downstairs and locked her in the bathroom with him.
Assault in the third degree is a class C felony. Elder was a second felony offender. He therefore faced a presumptive sentencing range of 2 to 4 years of imprisonment. Elder does not contest that two aggravating factors applied to this sentence: that the assault was committed against "a member of the social unit made up of those living together in the same dwelling as the defendant" and that Elder was on probation for another felony charge at the time of his present offense. But Elder argues that Judge Smith erred in rejecting his proposed mitigating factors: that he "acted with serious provocation from the victim"; that "the victim provoked the crime to a significant degree"; and that his conduct was among "the least serious conduct included in the definition of the offense."
AS 12.55.125(e)(2).
AS 12.55.155(c)(18)(A).
AS 12.55.155(c)(20).
AS 12.55.155(d)(6).
AS 12.55.155(d)(7).
AS 12.55.155(d)(8).
We conclude that Judge Smith did not err in rejecting Elder's proposed mitigating factors. Elder had the burden to establish the mitigating factors by clear and convincing evidence. In rejecting the mitigating factors that rested on Elder's assertion that he had been provoked by the victim, Judge Smith found that the alleged provocation — being awakened and accused of "very inappropriate behavior" — was "certainly not serious provocation" and that Elder's reaction was "vastly disproportionate to the nature of the accusations." In rejecting Elder's contention that his offense was "least serious," Judge Smith found that, although it had not been proven beyond a reasonable doubt that Elder had caused serious physical injury, his conduct constituted "very dangerous behavior." He found that it was just a matter of luck that Wood was not hurt badly. We conclude that Judge Smith's factual findings are supported by the record and support his conclusion to reject the proposed mitigating factors.
AS 12.55.155(f)(1).
Lastly, Elder argues that his composite sentence is excessive. But the record shows that Elder was on felony probation at the time he committed his present offense. The record indicates that, in spite of being given many opportunities, he has consistently failed on probation and appears to be unable or unwilling to constructively address his problems with alcohol abuse. Judge Smith could properly emphasize these factors as well as the seriousness of Elder's present offenses. We conclude that the sentence is not clearly mistaken.
McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).
The judgment of the superior court is AFFIRMED.