Opinion
Court of Appeals No. A-13310 6909
12-09-2020
ALMANDO ANTHONY ABARCA, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Jane B. Martinez, Law Office of Jane B. Martinez, LLC, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. Ryan T. Bravo, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Clyde "Ed" Sniffen Jr., Acting Attorney General, Juneau, for the Appellee.
NOTICE Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law, although it may be cited for whatever persuasive value it may have. See McCoy v . State , 80 P.3d 757, 764 (Alaska App. 2002). Trial Court No. 3PA-16-02195 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Palmer, Vanessa H. White, Judge. Appearances: Jane B. Martinez, Law Office of Jane B. Martinez, LLC, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. Ryan T. Bravo, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Clyde "Ed" Sniffen Jr., Acting Attorney General, Juneau, for the Appellee. Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges. Judge ALLARD.
Almando Anthony Abarca led police on a high-speed chase after they attempted to pull him over for an equipment violation. Abarca crashed his vehicle and fled on foot toward an abandoned cabin. Two officers and a police dog found Abarca a short distance from the cabin. The police dog moved toward Abarca. Abarca shot and killed the police dog, and then fired multiple shots toward the officers. Although it was dark out, the officers testified that they could tell Abarca was directing his fire at them because of the shape of the muzzle flash from Abarca's gun. Both officers returned fire, injuring Abarca's shoulder.
For this conduct, a jury found Abarca guilty of two counts of attempted first-degree murder, two counts of third-degree assault, one count of first-degree harming a police dog, and one count of felony failure to stop at the direction of a peace officer. At sentencing, the superior court merged the attempted murder and assault counts.
AS 11.41.100(a)(1)(A) & AS 11.31.100(a); AS 11.41.220(a)(1)(A); AS 11.56.705(a); and AS 28.35.182(a)(1) & AS 28.35.400(a), respectively.
Abarca's primary argument on appeal is that the evidence presented at his trial was insufficient to establish that he acted with the intent to kill, a necessary element of the two attempted first-degree murder charges. We disagree.
See AS 11.41.100(a)(1) & AS 11.31.100(a).
When we review a claim of insufficient evidence, we are required to view the evidence (and all reasonable inferences from that evidence) in the light most favorable to upholding the jury's verdict. As a general matter, jurors may infer a defendant's mental state based on the natural and probable consequence of his voluntary actions. Viewed in the light most favorable to the jury's verdict, the evidence established that Abarca shot and killed a police dog, and then fired multiple rounds in the direction of the two officers from a distance of about forty feet. Taken together, this evidence was sufficient for a reasonable juror to conclude beyond a reasonable doubt that Abarca intended to kill the two officers.
Iyapana v. State, 284 P.3d 841, 848-49 (Alaska App. 2012).
Adams v. State, 598 P.2d 503, 509 (Alaska 1979).
See Kangas v. State, 463 P.3d 189, 193 (Alaska App. 2020).
Abarca also argues that the superior court erred when it entered convictions for third-degree assault after merging those offenses with his attempted murder convictions. But as the State points out, the court has already issued an amended judgment making the corrections Abarca now requests on appeal. This issue is therefore moot.
Lastly, Abarca challenges the superior court's imposition of a special condition of probation requiring Abarca to take medications as prescribed "by a licensed medical practitioner who has been approved by a probation officer." Abarca did not object to this condition below, and we therefore review it for plain error.
In his opening brief, Abarca also cites to a different special probation condition that requires Abarca to obtain a mental health evaluation and "comply with the recommendations." But Abarca makes no argument independently challenging this condition. In its appellee brief, the State argues that Abarca has waived any challenge to this probation condition by failing to brief the issue. Abarca does not respond to this argument. (Indeed, Abarca's appellate attorney did not file a reply brief.) We interpret Abarca's reference to the mental health evaluation as limited to his concern that the "comply with the recommendations" requirement might be interpreted to include a requirement that Abarca take any mental health drugs that might be prescribed. We agree with the State that Abarca has waived any other challenge to the mental health evaluation probation condition.
See State v. Ranstead, 421 P.3d 15, 20 (Alaska 2018); see also Adams v. State, 261 P.3d 758, 764 (Alaska 2011).
On appeal, the State concedes that this condition is subject to special scrutiny, and that it was plain error to impose this condition without applying this heightened standard. The State's concession is well-founded. We therefore remand this case for application of special scrutiny to that condition.
See Love v. State, 436 P.3d 1058, 1060-61 (Alaska App. 2018); Kozevnikoff v. State, 433 P.3d 546, 548 (Alaska App. 2018).
See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972).
We note that there are at least four problems with the condition as currently written. First, the court failed to provide an adequate factual basis for the condition. Second, the condition ostensibly requires Abarca to take any medications prescribed by a licensed medical practitioner, regardless of whether that medication is necessary for Abarca's rehabilitation or the safety of the community. Third, the court failed to include a mechanism for the judicial review that we have held is required for these types of medication-related probation conditions. Fourth, the condition seemingly infringes on Abarca's right to privacy and independent medical decision-making by requiring Abarca's medical providers be "approved by a probation officer."
See Dere v. State, 444 P.3d 204, 226 (Alaska App. 2019) (noting that the sentencing judge failed to take any testimony or enter findings to justify the need for forced medication).
See State v. Pulusila, 467 P.3d 211, 217-19 (Alaska 2020); see also Kobuk v. State, 1987 WL 1357149, at *2 (Alaska App. June 3, 1987) (concluding that a probation condition forcing medication, absent evidence in the record that it was reasonably related to rehabilitation and protection of the public, was invalid).
See Kozevnikoff, 433 P.3d 546 at 548; see also Dere, 444 P.3d at 226; Huff v. State, 2019 WL 2451009, at *3-4 (Alaska App. June 12, 2019) (unpublished); Clifton v. State, 2019 WL 11093436, at *1-3 (Alaska App. Feb. 6, 2019) (unpublished); Wilson v. State, 2018 WL 4492289, at *3 (Alaska App. Sept. 19, 2018) (unpublished).
See Glasgow v. State, 355 P.3d 597, 600 (Alaska App. 2015) (recognizing the right to make independent medical choices and the need to narrowly tailor probation conditions related to medical treatment so as not to infringe on this right unnecessarily); see also Huffman v. State, 204 P.3d 339, 346 (Alaska 2009) (holding that "the right to make decisions about medical treatments for oneself . . . is a fundamental liberty and privacy right in Alaska."); Rollins v. Ulmer, 15 P.3d 749, 751-52, 754 (Alaska 2001) (recognizing a "constitutional right to make independent medical choices," grounded in the right to privacy).
Accordingly, we REMAND this case for application of special scrutiny to the probation condition requiring Abarca to take medications prescribed by a physician. In all other respects, the judgment of the superior court is AFFIRMED.