Opinion
Court of Appeals No. A-10265.
April 21, 2010.
Appeal from the Superior Court, First Judicial District, Ketchikan, Trevor N. Stephens, Judge, Trial Court No. 1KE-07-312 CR.
Michael J. Zelensky, Ketchikan, for the Appellant. Douglas H. Kossler, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Jimmie C. Lynch Jr., was convicted of third-degree assault and first-degree burglary based on an incident where he entered the home of Herb Guthrie and beat him. He appeals, arguing that there was insufficient evidence to support his convictions.
AS 11.41.220.
AS 11.46.300.
On April 7, 2007, Jimmie Lynch met his cousin, Trinity Jackson. Jackson said that his wife was using cocaine. Jackson believed that Herb Guthrie had supplied Jackson's wife with the cocaine. Lynch and Jackson each drank four to six shots of whiskey. They then went to confront Guthrie.
When they arrived, Guthrie was napping. He had recently had two surgeries for a hernia and was recovering from those surgeries with the help of hydrocodone (Vicodin), a "really strong" opiate. Lynch waited in the car while Jackson went to confront Guthrie. Lynch saw them at the front door scuffling and yelling. Then Jackson and Guthrie entered the house. After a short time, Lynch went to investigate. He heard fighting through the open front door, and, after a few minutes, he entered the house.
There was no working lock on the front door, but the door did properly close. Guthrie did not usually allow people to enter his house without knocking and being invited in. Lynch and Jackson had only come over to Guthrie's house once or twice before and each time was for a commercial transaction. Neither of them had express permission to enter on April 7.
When Lynch entered Guthrie's house, he discovered Jackson beating Guthrie, who was on the floor. As Judge Stephens pointed out, the testimony of the three witnesses (Jackson, Lynch, and Guthrie) was substantially divergent. However, all three agreed that Jackson was beating Guthrie for a significant period before Lynch entered. Lynch testified that he entered the house and told Jackson to stop. He testified he did not hit or kick Guthrie. Both Jackson and Guthrie testified that Lynch punched and kicked Guthrie. Guthrie also testified that Lynch was stomping and jumping on him.
The Metlakatla police transported Guthrie to the hospital in Ketchikan. Dr. Karl Ritchey, the emergency room doctor, treated Guthrie. He testified that Guthrie's head and eyes were swollen, and he had difficulty breathing. He had two broken ribs. He had an imprint of a vibra-soled boot on his back. He initially thought Guthrie had been run over by a truck. He described Guthrie's injuries as within the worst ten percent that he had observed. He said that Guthrie was lucky to be alive and that the injuries could have been fatal. He said that if someone was trying to kill someone with his boots, this was the way to do it.
Sergeant Bruce Janes of the Metlakatla Police Department testified that Lynch was wearing vibra-soled boots when he interviewed him. The sergeant did not seize the boots. Lynch's wife testified that, when she returned to Metlakatla on April 7, 2007, the day of the alleged assault, she found Lynch passed out on his fishing boat. Lynch was wearing Xtratuf boots. The treads on the Xtratuf boot did not match the treads on the photograph of the shoe print on Guthrie's back.
Lynch and Jackson were both indicted for first-degree assault and first-degree burglary based on this incident. Lynch was found guilty of first-degree burglary and the lesser included crime of third-degree assault.
Lynch appeals, arguing that neither conviction is supported by sufficient evidence. To establish whether sufficient evidence was presented to support a conviction, we must view the evidence and all reasonable inferences in the light most favorable to the State and inquire whether reasonable jurors could conclude that the accused's guilt was established beyond a reasonable doubt.
Simpson v. State, 877 P.2d 1319, 1320 (Alaska App. 1994); Dorman v. State, 622 P.2d 448, 453 (Alaska 1981).
A person commits the crime of assault in the third degree if that person recklessly causes physical injury to another person by means of a dangerous instrument. "`Dangerous instrument' means any deadly weapon or anything that, under the circumstances in which it is used, attempted to be used, or threatened to be used, is capable of causing death or serious physical injury. . . ."
AS 11.41.220(a)(1)(B).
AS 11.81.900(a)(15)(A).
Lynch argues that "no reasonable jury could find Guthrie credible" as a witness. He points out that Guthrie was under the influence of medication at the time of the beating, that he was disoriented from the beating that Jackson administered, and that he was initially unable to identify Lynch. He argues that Jackson's testimony was not credible and did not establish that Lynch beat Guthrie. He argues that, if the jury believed Guthrie, they would have convicted him of first-or second-degree assault; so the jury must have disbelieved Guthrie's account. But we do not weigh the credibility of witnesses. The jury, however, is entitled to evaluate the testimony of witnesses. And the jury can accept, reject, or believe part of the testimony of any witness. From the testimony presented at trial, a reasonable jury could have concluded that Lynch physically injured Guthrie by means of a dangerous instrument — by kicking and stomping him with his boots.
Brown v. Anchorage, 680 P.2d 100, 104 (Alaska App. 1984).
See Buie v. State, Memorandum Opinion and Judgment No. 3100 (Alaska App. March 29, 1995), 1995 WL 17220362 at *9.
Lynch argues that there was insufficient evidence to convict him of burglary in the first degree. "A person commits the crime of burglary in the first degree if the person [enters a building with intent to commit a crime in the building] and the building is a dwelling."
AS 11.46.300(a)(1); AS 11.46.310(a).
Lynch contends that his entry into Guthrie's residence was not unlawful "due to an express permission by the owner." He also argues that "Guthrie's front door lock was broken (making it arguably open to the public, or not excluding the public). Jackson was inside, and Lynch was not openly or expressly prohibited from Guthrie's home." He also argues that, even if he were found to have assaulted Guthrie, he did not form the intent to assault until after he entered Guthrie's residence. However, there was no evidence that Guthrie gave Lynch permission to enter. And the fact that Guthrie's door did not latch properly did not imply that Lynch had any permission to enter the house. Furthermore, there was certainly adequate evidence for the jury to find that Lynch formed the intent to assault Guthrie before he entered the house. A reasonable jury could conclude that Lynch was guilty beyond a reasonable doubt.
See Charles v. State, Memorandum Opinion and Judgment N o. 4390 (Alaska App., May 9, 2001), 2001 WL 488011 at *2.
The judgment of the superior court is AFFIRMED.