Opinion
Court of Appeals No. A-11150 No. 6205
07-08-2015
CONSTANTINE Q. AKELKOK, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Christine Schleuss, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Mary A. Gilson, Assistant Attorney General, Office of Special Prosecutions and Appeals, and Michael C. Geraghty, 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. Trial Court No. 3DI-10-398 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Dillingham, John Wolfe, Judge. Appearances: Christine Schleuss, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Mary A. Gilson, Assistant Attorney General, Office of Special Prosecutions and Appeals, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge. Judge HANLEY.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Constantine Q. Akelkok was convicted of five counts of third-degree assault and one count of reckless driving for driving his truck into a four-wheeler that was occupied by five people. Akelkok argues on appeal that the evidence presented at trial was insufficient to support any of the third-degree assault convictions.
Akelkok also argues that the prosecutor improperly commented on his pre-arrest silence, and that she engaged in misconduct by misstating the evidence and bullying witnesses. Finally, Akelkok claims that the sentencing court erred in rejecting his proposed mitigator, AS 12.55.155(d)(9) (conduct among the least serious included within the definition of the offense).
For the reasons explained in this decision, we reverse one of the third-degree assault counts due to an insufficiency of evidence, and affirm the other four counts. We conclude that Akelkok's other claims are without merit.
Facts and proceedings
Because Akelkok contends that the evidence was insufficient to support his convictions, we summarize the evidence in the light most favorable to upholding the verdict.
See Helmer v. State, 608 P.2d 38, 39 (Alaska 1980).
On August 13, 2010, four minors and one twenty-year-old were riding on a four-wheeler in Ekwok. Earlene Nelson drove the vehicle, while one passenger sat on the seat in front of Nelson, one passenger was seated behind Nelson, and the other two passengers sat on the rear racks on the left and right side of the four-wheeler. Nelson drove the four-wheeler down a trail that took them past Akelkok's home. The group saw a vehicle heading toward them and discovered that it was Akelkok driving his truck.
Nelson pulled the four-wheeler over onto the right side of the road and stopped. Akelkok stopped next to their vehicle and asked them what they were doing on the trail. Because there was not enough room for both vehicles to pass, Nelson began to reverse the four-wheeler in order to turn it around. When the four-wheeler was perpendicular to the truck, Akelkok drove his truck forward and collided with the left side of the four-wheeler.
When the truck approached them, several of the people on the four-wheeler moved their legs to avoid injury. The impact pushed the four-wheeler sideways, damaged its plastic engine guard, and bent the four-wheeler's fender to an extent that it could not be driven. The truck's bumper also got stuck to the four-wheeler during the collision.
Nelson and her passengers were not injured. After they straightened the four-wheeler's fender and lifted the four-wheeler off of the truck's bumper, Nelson and her passengers drove away. One of the youths promptly told her mother about what had just happened. The parent contacted Village Safety Patrol Officer Gusty Tunguing III to report the incident.
After an investigation, the State charged Akelkok with five counts of third-degree assault (for recklessly placing the five people in fear of imminent serious physical injury by means of a dangerous instrument), one count of driving under the influence, and one count of reckless driving. Following a jury trial, Akelkok was acquitted of driving under the influence and convicted of all other counts.
AS 11.41.220(a)(1)(A).
AS 28.35.030(a).
AS 28.35.400.
The State presented sufficient evidence for four out of the five counts of third-degree assault
On appeal, Akelkok argues that there was insufficient evidence to support the convictions for third-degree assault. He claims that the State did not present sufficient evidence for a fair-minded juror to conclude that Akelkok's vehicle, as it was used, constituted a dangerous instrument, or that the victims were in fear of imminent serious physical injury.
Under AS 11.41.220(a)(1)(A), a person commits third-degree assault if he recklessly places another person in fear of imminent serious physical injury by means of a dangerous instrument. "Serious physical injury" is defined by statute as "physical injury caused by an act performed under circumstances that create a substantial risk of death" or "physical injury that causes serious and protracted disfigurement, protracted impairment of health, protracted loss of impairment of the function of a body member or organ, or that unlawfully terminates a pregnancy." The prosecution proceeded on the theory that Akelkok placed the victims in fear of the latter type of "serious physical injury" — namely, broken bones.
AS 11.81.900(b)(57).
The term "dangerous instrument" also has a statutory definition: "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." To prove third-degree assault, the State must prove that the defendant used the instrument in a manner that "created an actual and substantial risk of serious physical injury."
AS 11.81.900(b)(15).
Konrad v State, 763 P.2d 1369, 1375-76 (Alaska App. 1988).
In reviewing a sufficiency of the evidence claim, we must view "the evidence presented at trial and the reasonable inferences from the evidence in the light most favorable to the State." We will uphold the conviction if "any reasonable juror could have concluded that the defendant was guilty beyond a reasonable doubt."
Roussel v. State, 115 P.3d 581, 586 (Alaska App. 2005).
Morrell v. State, 216 P.3d 574, 576 (Alaska App. 2009) (citation omitted).
Akelkok was charged with one count of third-degree assault for each of the five riders on the four-wheeler. The evidence shows that Akelkok drove his truck into a four-wheeler with enough force to knock the four-wheeler sideways and that the collision damaged the four-wheeler's fender and engine guard. Because of the design of a four-wheeler, many of the passengers's limbs were fully exposed to the truck's impact, and therefore the possibility of injury was much greater. Four of the victims testified that they feared they would be injured in the collision. Several of them also had to move their legs to avoid being directly hit by Akelkok's truck.
Akelkok's case is controlled by State v. Waskey. In that case, the defendant was indicted for third-degree assault for driving under the influence and hitting a cyclist, who was then dragged 140 feet by the vehicle. The superior court dismissed the indictment because the grand jury was not specifically instructed on the definition of "dangerous instrument," which the court held was required whenever one uses an instrument that is not a deadly weapon.
834 P.2d 1251 (Alaska App. 1992).
Id. at 1251.
Id. at 1252.
We reversed the superior court and concluded that a "dangerous instrument" instruction should only be given in exceptional cases in which there is a significant factual question as to "whether the defendant's mode of assault created a substantial risk of serious physical injury or death." We acknowledged that there might be "exceptional cases" in which an automobile may be traveling so slowly that one might not expect a serious physical injury to result from a collision with a pedestrian or bicyclist. But we maintained that, in the majority of cases, an automobile is presumed to be a dangerous instrument, as its solidity and mass makes it "easily capable of inflicting death or serious physical injury in such circumstances."
Id. at 1253-54.
Id. at 1253.
Id.
Akelkok argues that his is one of the "exceptional cases" described in Waskey, and that the specific manner in which he used his vehicle did not create a substantial risk of serious physical injury. But viewing the evidence in the light most favorable to upholding the verdict, we conclude there was sufficient evidence for a reasonable juror to conclude that Akelkok's truck, as it was used, posed an actual and substantial risk of serious injury to the people on the four-wheeler, and therefore constituted a "dangerous instrument" under the third-degree assault statute. Additionally, reasonable jurors could conclude that four out of the five victims were in fear of imminent serious physical injury.
The State, however, did not present sufficient evidence to support one of the third-degree assault counts. Joshua Nelson, who was riding on the right side of the four-wheeler (the side that was not directly hit by the truck), did not state that he feared being injured, despite the prosecutor's persistent questioning:
Prosecutor: [W]hen the truck bumped [you], what'd you do?Joshua Nelson never stated that he feared being injured by the crash; his fear was directed toward the others possibly being injured. Therefore, we conclude that the State did not provide sufficient evidence that Joshua Nelson was placed in fear of imminent serious physical injury.
Nelson: I got off the four-wheeler after it got bumped and I ... checked everybody.
Prosecutor: Okay, you checked everybody why?
Nelson: Like my cousin, Mitchell, [I] check[ed] if he was okay.
Prosecutor: Okay. Were you concerned?
Nelson: (No audible response)
Prosecutor: What were you concerned about?
Nelson: [Mitchell] was sitting on the side where the four-wheeler got bumped.
Prosecutor: Okay. Did you ever have any concern that you could be hurt? I'm not talking about afterwards. I'm talking about when the truck hit the four-wheeler.
Nelson: No.
Prosecutor: You were never afraid?
Nelson: (No audible response)
Prosecutor: Now, ... I'm not talking about being afraid, shaking, that kind of thing ... . When the truck bumped the four-wheeler, did you have any concern about being hurt?
Nelson: When the truck bumped us, yeah, I got a little scared.
Prosecutor: So you did get scared ... . What were you concerned about? What were you scared that might happen?
Nelson: I was afraid that my cousins would get hurt.
Prosecutor: Okay.
For these reasons, we vacate this one conviction of third-degree assault and remand to the superior court to amend the judgment. We affirm the convictions on the remaining counts.
The prosecutor did not improperly refer to Akelkok's pre-arrest silence
Akelkok contends that the prosecutor improperly commented on his pre-arrest silence. Because the prosecutor never directly mentioned Akelkok's decision to remain silent, we conclude that this claim is without merit.
During the course of his investigation, Officer Tunguing attempted to interview Akelkok. Akelkok ultimately refused to speak with him, but during their brief conversation, Tunguing noticed that Akelkok's speech was slurred.
Before trial, Akelkok filed a motion in limine to prohibit the prosecutor from mentioning or alluding to his pre-arrest silence. The prosecutor agreed that she would not discuss Akelkok's decision not to speak to Tunguing, but she wanted to introduce evidence that Akelkok's speech was slurred that evening because this evidence was relevant to the DUI charge. The court ruled that the prosecutor was prohibited from mentioning Akelkok's decision to remain silent but that evidence of Akelkok's slurred speech was admissible.
During her opening argument, the prosecutor mentioned Tunguing's encounter with Akelkok. She stated that Tunguing "tried to interview [Akelkok]" and that Tunguing noticed that Akelkok's speech was slurred. Later, during her direct examination of Tunguing, the prosecutor asked him how Akelkok's voice sounded, but explicitly directed him not to discuss the content of their conversation. The prosecutor then elicited from Tunguing that the next day he was unable to locate Akelkok at Akelkok's residence or at the residence of Akelkok's father.
Akelkok argues that the prosecutor improperly commented on his pre-arrest silence. Although neither the prosecutor nor Tunguing directly referenced Akelkok's refusal to speak to Tunguing, Akelkok contends that the line of questioning "made clear to the jury that Akelkok was present at his home when Tunguing went there, but [Akelkok] refused to be interviewed."
But the prosecutor in Akelkok's case did not directly mention Akelkok's pre-arrest silence, and we conclude that any indirect references to his silence were not error because the comments would not necessarily be understood as comments on Akelkok's post-arrest silence.
See Hamilton v. State, 771 P.2d 1358, 1361 (Alaska App. 1989).
The prosecutor did not engage in misconduct
Akelkok argues that the prosecutor engaged in misconduct by overstating the evidence and bullying witnesses. Neither of these claims has merit.
Akelkok first contends that the prosecutor engaged in misconduct by overstating the evidence. He argues that the prosecutor made "false claims" regarding the severity of the impact of the collision and the passengers' fears of serious injury. Akelkok points to the prosecutor's statements to the jury during opening and closing arguments — specifically, her statements that Akelkok "rammed" the four-wheeler, that the minors were afraid Akelkok was going to "run over them," and that Akelkok hit the four-wheeler "so hard that it [went] sideways."
Our analysis is informed by Standard 3-5.8 of the ABA Standards of Criminal Justice, which provides that in closing argument to the jury, "[t]he prosecutor may argue all reasonable inferences from evidence in the record." The prosecutor should not, however, "intentionally misstate the evidence or mislead the jury as to the inferences it may draw."
See Patterson v. State, 747 P.2d 535, 538 n.4 (Alaska App. 1987) (quoting 1 ABA Standards for Criminal Justice § 3-5.8 (2d ed. 1982)); Hem v. State, 1996 WL 341294, at *5 (Alaska App. Apr. 10, 1996) (unpublished) (same).
In this case, the prosecutor's statements do not amount to misstatements of the evidence. Although the prosecutor used more dramatic language to describe the collision than that used by the witnesses, these descriptions were not so exaggerated as to amount to misrepresentations of the evidence.
Akelkok next contends that the prosecutor's treatment of two of the State's witnesses was so confrontational that it constituted misconduct.
During the direct examination of a witness by the prosecutor, the court, sua sponte, interrupted the prosecutor and commented that her questioning was "combative." The prosecutor responded that she was zealously questioning a reluctant witness but agreed to change the style of her questioning. After a short recess, the prosecutor completed her examination of the witness. Akelkok did not object to the prosecutor's tone or approach in questioning the witness, either before or after the judge's remarks.
When another witness testified, he did not answer the prosecutor's questions several times. When the prosecutor asked the court for assistance, the judge told the prosecutor that the witness might need time to formulate his answers. The prosecutor acknowledged the judge's suggestion and completed her questioning without objection by Akelkok.
Having reviewed the record, we conclude that the prosecutor's examinations of the two witnesses did not constitute misconduct.
The sentencing judge did not err in rejecting Akelkok's proposed mitigator
At sentencing, Akelkok argued that his conduct was among the "least serious" because the offense was unplanned, was done at a low speed, and was of a very brief duration. He also submitted that there was no alcohol involved during the incident, and that his conduct was more similar to a regular vehicle accident than a criminal offense.
The sentencing court rejected Akelkok's proposed mitigator, and explained its reasoning as follows:
As far as the least serious mitigator that is proposed by [Akelkok], if it weren't for just a couple of factors here, this could be viewed as something like a prank. And by a couple of factors I mean the fact that there was impact with a ... four-wheeler. You know, if it was a sixteen-year-old kid fooling around like this, and with no criminal history, and no alcohol on board, and there hadn't actually been an impact, then it may be more of a least serious type situation.The court concluded that because of these circumstances, it would not apply Akelkok's proposed mitigator.
But I do believe based on the evidence presented at trial that you were very intoxicated at the time of this incident and probably if you hadn't been intoxicated you would not have done what you did. I also believe you when you say you did not intend to hit the four-wheeler.
. . . .
Maybe you intended to stop before you did. And I suspect you did try to stop, but because of the amount of alcohol you had on board, you didn't stop when you probably intended to.
On appeal, Akelkok first claims that the sentencing court erred by finding that he was intoxicated at the time of the offense. He argues that the court's finding conflicted with the fact that the jury acquitted Akelkok of the DUI charge.
When sentencing Akelkok, the superior court was not bound by the jury's acquittal. The court was entitled to consider the evidence presented at the trial, to rely on its own view of that evidence, and to determine whether the State proved, by a preponderance of the evidence, that Akelkok was intoxicated at the time of the assault.
See DeGross v. State, 816 P.2d 212, 217 (Alaska App. 1991); AS 12.55.025(i).
Several witnesses at trial testified that Akelkok was intoxicated at the time of the incident. One of the minors testified that she saw a big bottle of R&R whiskey in Akelkok's truck, that the truck smelled of alcohol, and that Akelkok was "acting different." Another minor testified that Akelkok smelled of alcohol and was staggering. Officer Tunguing testified that Akelkok's speech was slurred on the night of the incident.
When we review a sentencing judge's factual findings, we overturn them only when we conclude that they are clearly erroneous. We have reviewed the record and conclude that the superior court's finding that Akelkok was intoxicated when he assaulted the victims is not clearly erroneous.
Michael v. State, 115 P.3d 517, 519 (Alaska 2005); Harmon v. State, 11 P.3d 393, 395 (Alaska App. 2000).
We next turn to Akelkok's broader challenge to the sentencing court's rejection of his proposed "least serious" mitigating factor for the third-degree assault convictions. When we review a sentencing judge's ruling on the "least serious" mitigator, we defer to the sentencing judge's findings of fact, but then independently determine whether, given those facts, the defendant's conduct was among the least serious included within the definition of the crime.
Michael, 115 P.3d at 519.
When Akelkok encountered the four-wheeler in his path, he stopped his truck and swore at the driver, Earlene Nelson. Nelson maneuvered the four-wheeler in an effort to drive away. Rather than waiting for Nelson to get out of his way, Akelkok drove forward, striking the four-wheeler. The sentencing court found that Akelkok did not intend to strike the four-wheeler but that he drove forward because he was intoxicated.
Akelkok's truck hit the four-wheeler with enough force to push it sideways on the road and to bend the four-wheeler's fender so that it could not be driven until the fender was straightened. The truck and four-wheeler became stuck together until Nelson and her passengers lifted the four-wheeler off the bumper of the truck.
Five people were on the four-wheeler. Several of them had their legs on the side of the four-wheeler toward the back, and the sentencing court found that they escaped serious injury only because they quickly moved their legs. The victims testified they were afraid of being injured by the truck and two of them were emotionally distraught after the incident.
Akelkok bore the burden of proving the mitigator of least serious conduct by clear and convincing evidence. We have reviewed the record and conclude that Akelkok's conduct of placing the victims in fear of imminent serious physical injury with his truck falls within the mainstream conduct covered by third-degree assault. Thus, the sentencing court properly rejected Akelkok's proposed mitigator.
AS 12.55.155(f)(1). --------
Conclusion
We REVERSE one count of third-degree assault (Count three). We REMAND the case for the superior court to amend the judgment to reflect an acquittal of Count three and direct the court to re-sentence Akelkok accordingly. We otherwise AFFIRM the judgment of the superior court.