Opinion
Court of Appeals No. A-9103.
November 22, 2006.
Appeal from the Superior Court, Third Judicial District, Dillingham, Fred Torrisi, Judge, Trial Court No. 3D1-04-298 CR.
David Reineke, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Andrea Russell, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Norman Seton was convicted of furnishing alcohol to a person under the age of 21 in a local option area, a class C felony. He now appeals, arguing that there was insufficient evidence for the jury to convict him of the crime, that there was insufficient evidence that the crime was a class C felony, and that the judge gave an insufficient jury instruction on the elements of the offense. We affirm Seton's conviction.
AS 04.16.051(a), (d)(3).
Facts and proceedings
Superior Court Judge Fred Torrisi presided over a jury trial. The State provided an affidavit from the Alcoholic Beverage Control Board stating that the City of Togiak had held local option elections in 1982 and 1986, voting to ban the sale, importation, and possession of alcoholic beverages in Togiak.
Noreen Bartman, a resident of Togiak, testified that on the morning of July 11, 2004, she had seen Seton on a four-wheeler with J.F. Bartman later saw Seton giving alcohol to a group of people, including minors. After the group consumed one "fifth" of alcohol, Seton produced another "fifth" of Ron Rico alcohol and "probably" gave a shot to J.F.J.F. was "kinda" drinking alcohol. Seton was not the only adult in the group, and some others were drinking other alcohol. Bartman saw the bottle of "R R" in Seton's jacket. She saw Seton drinking out of the bottle and heard him ask the group if anyone wanted a shot. Whenever any other person took a shot, Seton would take the bottle back and then give it to another person.
George Arkanakyak, a resident of Togiak, testified that he saw Seton with two "fifths" of alcohol and that Seton handed out shots of alcohol to J.F. Arkanakyak first saw Seton with the bottle of alcohol, and Seton asked Arkanakyak if he wanted a shot.
J.F. testified that he lived in Togiak and was fifteen years old. He received approximately 10 shots of alcohol that day from Seton and was "pretty drunk" as a result. J.F. testified that he had been with Seton on a four-wheeler earlier, when Seton went inside another resident's house and stole the bottles of alcohol. J.F. testified that if Seton had not brought alcohol, the "party" would not have happened.
William Ferris, a police officer for the city of Togiak, testified that he had been the police officer in Togiak for a little over three years and that Togiak had been a dry community during his entire tenure.
At the close of evidence, Seton's counsel moved for a judgment of acquittal. Judge Torrisi denied the motion. The court provided instructions to the jury. Jury Instruction Number 8 listed the elements of the charge as follows:
First, that the event in question occurred at Togiak, and on or about the 11th of July, 2004;
Second, that Norman Seton did knowingly furnish or deliver an alcoholic beverage;
Third, to a person who is under the age of 21; to wit: J.F.;
Fourth, with reckless disregard that the person is under the age of 21;
Fifth, that Togiak is an established village which had adopted a local option prohibiting the possession of alcoholic beverages.
Seton's counsel did not object to the jury instruction.
The jury convicted Seton of providing alcohol to J.F. The jury acquitted him of several unrelated charges.
Seton now appeals. He argues that the State presented insufficient evidence that he provided alcohol to J.F. He argues that the State did not present any evidence on the question of whether Togiak voted to make his offense a class A misdemeanor rather than a class C felony. He also argues that the jury instructions should have required the jury to find that Togiak had not voted to make his offense a class A misdemeanor rather than a class C felony.
Why we conclude that there was sufficient evidence to show that Seton provided alcohol to J.F.
In reviewing a claim that evidence is insufficient to support a conviction, this court will view the evidence presented in the light most favorable to upholding the verdict. Evidence is sufficient if a fair-minded juror, exercising reasonable judgment, could conclude that the State had proven the defendant's guilt beyond a reasonable doubt. The State's case was supported by the testimony of Noreen Bartman, George Arkanakyak, and J.F. All of the witnesses testified that Seton had provided alcohol to J.F.J.F. testified that he was fifteen years old, and this testimony was undisputed. The testimony of these witnesses was clearly sufficient to support the jury's verdict.
Dailey v. State, 65 P.3d 891, 898 (Alaska App. 2003).
Id.
The State did not have to prove the absence of a vote in Togiak to make furnishing alcohol to a person under age 21 a class A misdemeanor
If the crime of delivering an alcoholic beverage to a person under the age of 21, AS 04.16.051(a), takes place in a municipality or an established village that has enacted a local restriction on alcoholic beverages under AS 04.11.491, there are two potential penalties. Normally, this offense is a class C felony. But subsection (g)(3) of AS 04.11.491 authorizes municipalities and established villages to reduce this offense to a class A misdemeanor in certain limited circumstances. However, as we will demonstrate, Togiak was ineligible to reduce the punishment for this offense.
Under AS 04.11.491(g)(3), if a municipality or village has banned or restricted the sale and/or importation of alcoholic beverages but has not forbidden all possession of alcoholic beverages, the municipality or village may (by popular vote) "opt to not apply . . . class C felony [penalties] to violations of AS 04.16.051" in situations where the offense is a class C felony solely by virtue of the municipality's or village's enactment of a local alcoholic beverage option. In other words, the municipality or village may vote to reduce the penalty for the offense of delivering alcoholic beverages to a minor — so that the offense carries the same penalty that it would if the offense were committed in a non-local option area.
Seton argues that even if the jury believed that he delivered alcohol to J.F., he should only have been found guilty of a class A misdemeanor because the State failed to present any evidence on the question of whether Togiak might have voted to reduce the penalty for delivering alcoholic beverages to a minor.
But Togiak could not have held such a vote. The authority granted by subsection (g)(3) — the authority to reduce the penalty for delivering alcoholic beverages to a minor — is limited to municipalities and villages that have not totally banned the possession of alcoholic beverages. If a municipality or village has banned all possession of alcoholic beverages — i.e., if the municipality or village has voted for the option specified in AS 04.11.491(a)(5) (applicable to municipalities) or AS 04.11.491(b)(4) (applicable to established villages) — then the municipality or village has no authority to reduce the penalty for the offense of delivering alcoholic beverages to minors.
The State presented evidence that Togiak had voted to ban the possession of alcoholic beverages as well as the sale and importation of these beverages. Thus, if the jury was convinced that Seton delivered alcohol to J.F., there was no question that Seton's crime was a class C felony.
Judge Torrisi did not err in giving the jury instruction on the element of the offense
Seton contends that Judge Torrisi erred in failing to instruct the jury that, in order to convict Seton of a class C felony, it had to find that Togiak had not opted out of applying the class C felony penalties to violations of the statute. Seton never objected to Judge Torrisi's jury instruction. He must therefore establish plain error. Our foregoing analysis makes it clear that Seton did not establish plain error because Togiak could not have voted to alter the penalty.
Bidwell v. State, 656 P.2d 592, 594 (Alaska App. 1983).
Conclusion
We conclude that the State presented sufficient evidence for the jury to find that Seton furnished alcohol to J.F., who was under 21 years old. And we reject Seton's other claims of error.
Seton's conviction is AFFIRMED.