Opinion
A-13183
06-16-2021
TIMOTHY ROBERT LUSSIER, Appellant, v. STATE OF ALASKA, Appellee.
Margot O. Knuth and Marilyn J. Kamm, Attorneys at Law, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. Mackenzie C. Olson, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, No. 3AN-17-02836 CR Third Judicial District, Anchorage, Michael L. Wolverton, Judge.
Margot O. Knuth and Marilyn J. Kamm, Attorneys at Law, Anchorage, under contract with the Office of Public Advocacy, for the Appellant.
Mackenzie C. Olson, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Harbison and Terrell, Judges.
MEMORANDUM OPINION
TERRELL, JUDGE
Timothy Robert Lussier was convicted of third-degree assault for pulling a loaded semi-automatic pistol from his hoodie and threatening to shoot Sophia Leshan. Lussier raises three claims on appeal. First, he argues that the trial court erred in admitting the recording of Leshan's 911 call under the excited utterance exception to the hearsay rule. Second, he argues that the trial court erred in declining to give a Thome instruction, i.e., an instruction directing the jury to presume that destroyed evidence would have been favorable to him. Last, he claims that the evidence was insufficient to support his conviction. Finding these claims to be without merit, we affirm Lussier's conviction.
AS 11.41.220(a)(1)(A).
See Thome v. Dep 't of Pub. Safety, 774 P.2d 1326, 1331 (Alaska 1989).
Factual background
At trial, Leshan testified that on the evening of April 10, 2017, she was driving down Greenland Drive in Anchorage, toward her nearby home, when she came upon a man and a woman in the middle of the road arguing. She noted their "aggressive body language." Leshan testified that the woman was trying to leave, but the man (later identified as Lussier) continued to re-approach the woman. The couple, who were blocking traffic, moved closer to Leshan, and she could hear them yelling "heinous remarks" at one another.
Lussier and the woman began walking in different directions. Leshan rolled down her car window as she passed the woman and asked her if she was okay because the woman "was sobbing and was really upset." Seeing Leshan's contact with the woman, Lussier, who was about twenty-five feet away from Leshan's vehicle, ran back toward Leshan and threw a rock, striking her vehicle.
Lussier then told Leshan to mind her own business, calling her a "stupid fucking bitch." From a distance that Leshan described as "fairly close," Lussier drew a handgun from the front pocket of his hoodie and said, "[I]f you don't mind your fucking business, I'll shoot you.... I'm not kidding." Lussier was facing Leshan when he said this, and she could see Lussier's gun, though he did not point the gun directly at her. Leshan later testified that Lussier's demeanor was "[a]ggressive" and "[v]ery frightening." Leshan thought she was going to be shot, so she fled to her home, which was a minute or so away.
Because Leshan did not have her cell phone with her during this incident, she could not call 911 until a few minutes later when she retrieved the phone from her house. After retrieving the cell phone, Leshan got into her vehicle and called 911 while driving back to the scene.
The 911 recording was played at trial. In the recording, Leshan described the incident to the 911 dispatcher, referring to it as "scary" and "frightening." The dispatcher asked Leshan if Lussier pointed the gun at her, and Leshan responded, "He did kind of like just swing it, like, you're going to get shot. . ., like, mind your own business." Leshan gave a description of Lussier and then told the dispatcher that she was currently watching him and could see him walking outside a nearby restaurant. The portion of the call played for the jury ended with Leshan telling the dispatcher her location and where a police officer could find her.
Anchorage Police Officer Ryan Piscoya was one of two police officers who responded to the scene. He met Leshan there, took a brief statement from her, and gave her his business card. Officer Piscoya later testified that Leshan's "voice was kind of unsteady, kind of shaky, like she was shooken up."
Another officer also responded to the scene and eventually made contact with Lussier. This officer patted Lussier down for weapons and found that he had a loaded semi-automatic pistol in the center pocket of his hoodie.
Lussier was arrested and taken to a bail hearing that occurred around 10:00 p.m. Leshan was present telephonically. At the hearing, a police officer told the judge about Lussier's version of the events, which was that the gun had simply fallen out of his pocket and that Leshan had been laughing at him.
Immediately after the hearing, Leshan called Officer Piscoya and left him a voicemail message. Leshan later testified that, in her message, she told him that Lussier's statement about the offense was incorrect, that there was nothing funny about the event, and that a gun did not simply fall out of Lussier's pocket. The next day, April 11, Leshan sent an e-mail to a paralegal in the Anchorage District Attorney's office reiterating that she was surprised by Lussier's version of events and wished to give her perspective. In describing the events that formed the basis of the charge, Leshan stated:
He then quickly pulls out his handgun from his front sweatshirt pocket and says if I "don't mind my own business you will be shot." Though he did not point the gun at me, he revealed the gun in a threatening and quick manner that had me extremely fearful for my life and safety.
Several days after Leshan left her voicemail message, Officer Piscoya listened to it and then deleted it. He then tried to call Leshan back, and when he did not reach her, he left a voicemail for her.
On April 19, Leshan sent another e-mail to a paralegal in the Anchorage District Attorney's office, again stating her view of what had happened. The bulk of her description of the offense and her reasons for sending the e-mail were identical to her April 11 e-mail. With regard to Lussier's actions in taking out his gun, Leshan stated:
He then quickly pulls out his handgun from his front sweatshirt pocket and says if "you don't mind your own business you'll be shot." Though he did not point the gun at me, he brandished the gun in a threatening and quick manner that had me extremely fearful for my life and safety.
Trial court proceedings
Lussier was indicted on one count of third-degree fear assault for "recklessly plac[ing] anotherpersoninfear of imminent serious physical injury by means of a dangerous instrument." Before trial, he filed two motions relevant to this appeal.
AS 11.41.220(a)(1)(A).
First, Lussier moved to preclude the State from introducing the recording of Leshan's 911 call at trial. Lussier argued that the recording of the 911 call was inadmissible hearsay which did not fall within any exceptions to the hearsay rule. Correctly anticipating that the State would seek its admission under the "present sense impression" and "excited utterance" exceptions set out in Alaska Evidence Rule 803(1) and (2), Lussier conceded that some of Leshan's statements - those in which she described the actions of Lussier and his girlfriend as they happened, while she was speaking on the phone - were admissible as present sense impressions. But Lussier claimed that the remainder of Leshan's statements on the recording, about events that happened before Leshan retrieved her phone, were inadmissible.
Second, Lussier moved for a Thorne instruction with respect to Leshan's voicemail that Officer Piscoya deleted, asking the court to instruct the jury that the contents of the voicemail would have been favorable to him. Lussier did not articulate a specific theory as to what would have been on the voicemail but simply argued that he was entitled to a Thorne instruction because Officer Piscoya deliberately deleted the voicemail. Lussier stated that he would "reserve any arguments regarding prejudice."
The trial court addressed the admissibility of the 911 recording at a pretrial hearing. The court concluded that Leshan's statements describing what she was seeing while talking to the dispatcher fit the present sense impression exception to the hearsay rule. The court also concluded that the remainder of Leshan's statements were admissible under the excited utterance exception because she was under the effects of the startling event she had witnessed when she made her statements to the 911 dispatcher.
The trial court considered the Thorne motion on the morning of the first day of trial. Lussier's attorney argued that because Leshan had made multiple different statements over the course of nine months and could not remember other relevant details following the incident, there was no reasonable way to deduce the contents of the deleted voicemail message. Lussier's attorney argued that "when you have multiple statements by a complaining witness, there's nuance in each statement that may or may not be significant to the defense," and that Lussier was prejudiced by the deleted voicemail, which Lussier could not confront through cross-examination.
The trial court found that Officer Piscoya did not act in bad faith in deleting the voicemail and that Lussier had not shown prejudice. The court found that there was no basis to believe that Leshan's voicemail would have supported Lussier's version of the incident, particularly because the reason for Leshan's call was to dispute Lussier's version of events described at the bail hearing. Accordingly, the court declined to give a Thorne instruction.
Lussier moved for a judgment of acquittal after the state rested, and the trial court denied the motion.
The jury convicted Lussier of third-degree assault, and this appeal followed.
The recording of the 911 call was admissible as an excited utterance
Alaska Evidence Rule 803(2) defines an "excited utterance" as "[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." A statement constitutes an excited utterance if it was "made while the declarant was under 'a condition of excitement which temporarily still[ed] the capacity [for] reflection and produce[d] utterances free of conscious fabrication.'"
Dezarn v. State, 832 P.2d 589, 591 (Alaska App. 1992) (alterations in original) (quoting Alaska Evid. R. 803(1), (2) cmt. para. 3).
On appeal, Lussier renews his argument that the statements Leshan made in the 911 call about what occurred before she retrieved her cell phone cannot be viewed as excited utterances. Lussier contends that Leshan's statements to the 911 dispatcher were the product of reflection and deliberation based on the lapse of several minutes from when the incident occurred and when Leshan called 911, and Leshan's conscious decision to return to the scene in her vehicle.
But near-perfect contemporaneousness between the startling event and the statements is not required for a statement to be admitted as an excited utterance."[W]hen an out-of-court statement is offered as an excited utterance, the key factual question is not the interval between the event and the statement, but rather 'the duration of the [speaker's] state of excitement.'" This in turn is largely influenced by the character of the transaction or startling event.
See, e.g., Torres v. State, 519 P.2d 788, 792-93 (Alaska 1974); Blair v. State, 42 P.3d 1152, 1154-55 (Alaska App. 2002); Lipscomb v. State, 700P.2d 1298, 1305-07 (Alaska App. 1985).
Davis v. State, 133 P.3d 719, 728 (Alaska App. 2006) (second alteration in original) (quoting Alaska Evid. R. 803(1), (2) cmt. para. 5).
Dezarn, 832 P.2d at 591 ; see also Luch v. State, 413 P.3d 1224, 1233-34 (Alaska App. 2018) (recognizing that statements made in response to questions from a 911 dispatcher can qualify as an excited utterance if the speaker was still under the effects of the startling events at the time they responded to the questions).
Here, the trial court found that Leshan was under the effects of the startling event she had just witnessed when she made her statements to the 911 dispatcher. The court noted that Leshan repeatedly made statements during the call about how the event was "scary" and "really quite frightening." The court also reviewed the 911 call and noted that Leshan was emotional and "broke down" at points in the call. Given this record, the trial court's finding that Leshan was under the effects of the startling event when she made the challenged statements was not clearly erroneous. We accordingly affirm the trial court's ruling admitting the recording of Leshan's statements under the excited utterance exception to the hearsay rule.
See Arredondo v. State, 411 P.3d 640, 643 (Alaska App. 2018).
The trial court did not err by denying Lussier's request for a Thorne instruction
Lussier also contends that the trial court erred when it denied his request for a Thorne instruction based on Officer Piscoya's deletion of Leshan's voicemail.
There are four factors to consider in evaluating a request for a Thorne instruction:
(1) the State's good or bad faith in failing to preserve the evidence; (2) the degree of culpability on the part of the State; (3) the importance of the evidence that was lost, in light of the other evidence in the case; and (4) the degree of prejudice suffered by the accused.
Williams v. State, 418 P.3d 870, 880 (Alaska App. 2018).
In this case, the trial court focused on the first and last of these factors when it denied Lussier's motion, finding that the State acted in good faith and that Lussier did not suffer any prejudice because of the State's actions. We have reviewed the record and conclude that it supports these findings.
"Bad faith" refers to action taken for the express purpose of avoiding production of that evidence. Here, the trial court found that Officer Piscoya had not acted in bad faith and had simply followed his standard practice of deleting voicemails after responding to the calls, although the court also chastised the officer for deleting Leshan's voicemail.
State v. Ward, 17 P.3d 87, 90 (Alaska App. 2001).
The trial court also found that, because there was no reason to believe that Leshan's voicemail would have supported Lussier's version of the incident, Lussier did not suffer any prejudice. The court noted that the point of Leshan's call was to dispute the version of events described at the bail hearing - i.e., to contradict Lussier's claim that the gun simply fell out of his pocket. Given the similarity of Leshan's descriptions of the events at the scene and her two subsequent e-mails to the District Attorney's office, and given her testimony that the voicemail was similar to the e-mails, the trial court's finding that the voicemail was unlikely to have contained statements that could be used to impeach Leshan is well-supported by the record.
For these reasons, Lussier has failed to show that the trial court abused its discretion in denying his request for a Thome instruction.
The evidence was sufficient to support Lussier's assault conviction
To prove the charge of third-degree fear assault, the State was required to establish (1) that Lussier placed Leshan in fear of imminent serious physical injury and (2) that he did so by means of a dangerous instrument - i.e., the gun. The State was required to show that Lussier acted recklessly with regard to the possibility that his conduct would place a reasonable person in fear of serious physical injury, i.e., that he was aware of and disregarded "a substantial and unjustifiable risk that [his] conduct [would] cause [Leshan] to fear imminent injury."
AS 11.41.220(a)(1)(A).
State v. Watts, 421 P.3d 124, 127 (Alaska App. 2018).
On appeal Lussier contends that the evidence was insufficient to support his conviction for this offense because the manner in which he used the gun did not place Leshan in reasonable fear of imminent harm, as required by the statute. That is, because under Lussier's characterization of events, he simply showed Leshan the gun and told her he would use it if she did not leave, he argues that the conduct was, at most, a future, non-imminent, and conditional threat.
When a defendant challenges the sufficiency of the evidence at trial, this Court views the evidence and all inferences to be drawn therefrom in the light most favorable to upholding the verdict. We then ask whether a reasonable juror could have concluded that the State had proved its case beyond a reasonable doubt.
Johnson v. State, 188 P.3d 700, 702 (Alaska App. 2008).
Id.
Lussier misperceives the nature of the offense and improperly views the evidence in the light most favorable to himself. The Alaska Supreme Court has explained that "some physical gesture of force reflecting an immediate ability to inflict injury is required to constitute an assault," while also recognizing that this can be accomplished without pointing a firearm directly at the victim, as when the defendant is "threatening another person with the weapon in amenacingmanner." Accordingly, this Court has upheld third-degree fear assault convictions where defendants were waving a gun around, discharging a gun, or attempting to discharge a gun, not directly at another person, but in a manner that would cause a reasonable person to believe that they were at risk of imminent serious physical injury, and where the record supported the conclusion that the defendant was aware of and disregarded a substantial and unjustifiable risk that his conduct would cause the other person to fear such injury.
Coleman v. State, 621 P.2d 869, 876-77 (Alaska 1980).
See Dehart v. State, 781 P.2d 989, 990 (Alaska App. 1989) (affirming fear assault conviction when defendant drew a pistol, cocked it, pointed it away from the troopers questioning him, and fired it into the nearby woods); Gatter v. State, 2020 WL 2896346, at *l-4 (Alaska App. June 3, 2020) (unpublished) (affirming fear assault conviction when intoxicated defendant was "'waving' the gun around," refused to leave, and instead told the victim that "no one was coming into his house"); Shapiro v. State, 1988 WL 1511363, at * 1 -2 (Alaska App. Jan. 27, 1988) (unpublished) (affirming fear assault conviction when the defendant pumped and leveled a shotgun at the victims and stated, "Do you think I am kidding around?").
In this case, Leshan testified that Lussier quickly but deliberately withdrew a loaded semi-automatic pistol from his hoodie while standing close to her, that he threatened to shoot her, and that he did so when he was in an excited and aggressive state of mind following his altercation with his girlfriend. The evidence also showed that Lussier had just demonstrated his willingness to use force against Leshan by throwing a rock that hit her vehicle.
We accordingly conclude that there was sufficient evidence to support Lussier's conviction for third-degree assault and that the trial court did not err in denying Lussier's motion for a judgment of acquittal.
Conclusion
Lussier's conviction for third-degree assault is AFFIRMED.