Opinion
A-13755
04-05-2023
KENNETH WILLIAM HOOVER, Appellant, v. STATE OF ALASKA, Appellee.
Michael Barber, Barber Legal Services, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Ann B. Black, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Fourth Judicial District Trial Court No. 4FA-18-02670 CR, Fairbanks, Paul R. Lyle, Judge.
Michael Barber, Barber Legal Services, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Ann B. Black, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Harbison and Terrell, Judges.
MEMORANDUM OPINION
HARBISON JUDGE
Kenneth William Hoover was convicted, following a jury trial, of one count of first-degree robbery for threatening Nicole Farnham with a knife in order to take a $20 bill from her. Hoover appeals, contending that the jury should have been instructed regarding factual unanimity and that evidence of his prior panhandling should not have been admitted at trial.
AS 11.41.500(a)(1). Hoover was also convicted of third-degree assault, under AS 11.41.220(a)(1)(A), but this count merged with the first-degree robbery conviction.
Because Hoover did not raise these issues in the trial court, he must now show plain error - i.e., an error that (1) was not the result of intelligent waiver or a tactical decision not to object; (2) was obvious; (3) affected substantial rights; and (4) was prejudicial. For the reasons explained in this opinion, we reject Hoover's claims of plain error.
Adams v. State, 261 P.3d 758, 773 (Alaska 2011).
Why we conclude that the court's failure to provide a factual unanimity instruction was not plain error
Hoover's first claim is that the court should have given the jury a factual unanimity instruction because (according to Hoover) the facts presented at trial allowed the jurors to choose between two distinct acts of robbery. To prove that Hoover committed the offense of first-degree robbery in this case, the State was required to prove the following: (1) Hoover used or threatened the immediate use of force upon Farnham; (2) he did so in the course of taking or attempting to take property from her immediate presence and control; (3) he intended to (a) prevent or overcome her resistance to the taking of the property or (b) compel her to deliver the property; and (4) in the course of doing this, he was armed with a deadly weapon.
AS 11.41.500(a).
Hoover notes that "a conviction may properly be entered only if the jury unanimously finds that all essential elements of the offense charged were proved beyond a reasonable doubt." He contends that the court's failure to give an unanimity instruction allowed the jury to convict him without agreeing on the particular episode that formed the basis for its verdict.
Covington v. State, 703 P.2d 436, 440 (Alaska App. 1985), on reh'g, 711 P.2d 1183 (Alaska App. 1985) (citing State v. James, 698 P.2d 1161 (Alaska 1985)).
In this case, Farnham testified that a man, later identified as Hoover, approached her in a parking lot and asked her for gas money. Farnham stated that, when she refused this request, Hoover pointed a knife at her and this caused her to open her wallet, revealing a $20 bill inside. The man then took the bill and walked away. However, during cross-examination, Farnham admitted that when she talked to the police about the incident, she told them that the man took her wallet, looked through it, took the $20 bill, and then threw the wallet back at her.
On appeal, Hoover contends that the jurors could have determined that he committed the offense of robbery in one of two ways: by briefly taking possession of Farnham's wallet or, alternatively, by taking the $20 bill. He further contends that the court erred when it failed to sua sponte instruct the jury that it had to be unanimous in determining which of these events the State had proven beyond a reasonable doubt.
This Court has explained that "[w]hen the State presents evidence that a defendant committed multiple different acts that could each support a criminal conviction, the [trial] court is required to instruct the jury that they must be factually unanimous as to which act the defendant committed." However, "[i]t is not necessary that a jury . . . concur in a single view of the transaction disclosed by the evidence." Thus, if there is only one incident that could form the basis for the criminal charge, a factual unanimity instruction is not necessary.
Ramsey v. State, 355 P.3d 601, 602 (Alaska App. 2015); Jackson v. State, 342 P.3d 1254, 1257 (Alaska App. 2014); James, 698 P.2d at 1166.
James, 698 P.2d at 1164 (citing People v. Sullivan, 65 N.E. 989, 989-90 (N.Y. 1903)); Norris v. State, 857 P.2d 349, 353 (Alaska App. 1993).
Williams v. State, 440 P.3d 391, 397 (Alaska App. 2019); Byford v. State, 352 P.3d 898, 902 (Alaska App. 2015); James, 698 P.2d at 1166.
In the present case, the State presented evidence of a single, continuous criminal act: Hoover's use of the knife to compel Farnham to give him money.Furthermore, the State did not argue that Hoover committed one robbery when he took Farnham's wallet and a second robbery when he removed the $20 bill. For these reasons, the court's failure to instruct the jury on factual unanimity was not an error, let alone an obvious one.
See Nicklie v. State, 402 P.3d 424, 427 (Alaska App. 2017) (holding that a factual unanimity instruction was not needed where there was evidence that the defendant strangled the victim by both placing his hands "around" her throat and also by applying pressure to the "sides" of her throat because "[r]egardless of the precise details of the strangulation, Nicklie's strangulation of [the victim] was a single criminal act for purposes of the requirement of jury unanimity").
See Ramsey, 355 P.3d at 602 (holding that the jury was required to unanimously agree on which individual thefts the defendant committed when the State presented evidence that the defendant stole a variety of items on different days).
Why we conclude that the admission of testimony regarding Hoover's history of panhandling was not plain error
Hoover next argues that evidence of his prior panhandling was erroneously admitted in violation of Alaska Evidence Rules 403 and 404(b).
Alaska Evidence Rule 403 provides that evidence may be precluded if its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or undue delay. Alaska Evidence Rule 404(b)(1) permits evidence of the defendant's prior conduct to prove, inter alia, identity, but not to prove that the person acted in conformity with a character trait on a particular occasion.
One of the State's witnesses at trial was Lori Widener, the manager of a store abutting the parking lot where the robbery occurred. Before opening statements, Hoover's attorney raised a limited objection to a portion of Widener's anticipated testimony. The attorney explained that he had reviewed footage of a conversation between Widener and the investigating officer during which Widener told the officer that at some time prior to the incident at issue in this case, she had seen Hoover panhandling in the parking lot and that he had been "a little lippy" when she asked him to leave the area. The attorney had no objection to Widener testifying that Hoover was in the parking lot asking for gas money, but did object to her stating that Hoover once "got a little lippy."
During the discussion that ensued, the court asked the attorney if he was raising an objection under Evidence Rule 404(b), and the attorney responded that he was not. The court reserved ruling on the objection until it could hear more of the evidence.
When Widener was called to testify at trial, Hoover's attorney conferred with Widener and then told the court that the issue had been resolved. Widener proceeded to testify that her store had an ongoing problem with people asking customers for money in the parking lot. She testified that, when this happened, she usually would go outside and tell them to go away. She also testified that she was contacted by the police around the time Farnham was robbed. According to Widener, the police asked her if she had ever had contact with panhandlers in the parking lot, and they showed her a photograph. Widener told the police that the man in the photo was someone who had been in the parking lot asking for gas money. She testified that she had asked this man to leave a few times before, but she had "never had anybody get confrontational." The man in the photo was later identified as Hoover.
Hoover's primary theory of defense was that no robbery occurred because Farnham voluntarily gave the money to him. In closing arguments, the defense attorney relied on Widener's testimony to support this theory. The attorney argued that the area of the parking lot where Farnham encountered Hoover was Hoover's "spot" because he often went there to panhandle. The attorney noted that Hoover had been frequently asked to leave his "spot," and he asserted that "it doesn't make sense that Mr. Hoover would commit an armed robbery and just go back there like nothing happened."
The record thus shows that the defense attorney actively considered objecting to Widener's testimony but then chose not to do so. And after this, the attorney used the testimony to support Hoover's theory of defense. This record clearly demonstrates that the defense attorney made "a tactical decision not to object or intelligently waived an opportunity to object." We accordingly reject Hoover's claim of plain error.
Moreno v. State, 341 P.3d 1134, 1146 (Alaska 2015).
Conclusion
The judgment of the superior court is AFFIRMED.