Opinion
Court of Appeals No. A-11465 No. 6243
10-07-2015
WILBERT PAUL BOWLIN, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Susan Orlansky, Reeves Amodio, LLC, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, 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. 3KN-11-2021 CR MEMORANDUM OPINION Appeal from the Superior Court, Third Judicial District, Kenai, Jane F. Kauvar, Judge. Appearances: Susan Orlansky, Reeves Amodio, LLC, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge. Judge ALLARD.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Following a jury trial, Wilbert Paul Bowlin was convicted of second-degree assault for intentionally causing physical injury to his wife by means of a dangerous instrument — his hands. On appeal, Bowlin argues that the evidence presented at trial was insufficient to support his conviction. Specifically, Bowlin contends that the State failed to prove beyond a reasonable doubt that he used his hands as a "dangerous instrument" — that is, that he used his hands in a manner that actually created a substantial risk of death or serious physical injury to his wife. For the reasons explained here, we conclude that the State's evidence was sufficient to support the jury's verdict.
See Konrad v. State, 763 P.2d 1369, 1375 (Alaska App. 1988).
Relying on our decision in Konrad v. State, Bowlin also argues that the superior court committed plain error by failing to specifically instruct the jury that it could only convict him of second-degree assault if it found that he used his hands in a manner that actually created a substantial risk of death or serious physical injury. We agree with Bowlin that a Konrad instruction would have been appropriate in this case. But we also conclude that, given the manner in which this case was litigated and argued to the jury, the absence of this instruction did not prejudice Bowlin. Accordingly, we affirm Bowlin's conviction.
Id.
Id.
Underlying facts
On November 26, 2011, an intoxicated Bowlin became embroiled in an argument with his wife, Laura Lynn Bowlin ("Lori"). Earlier that day, Bowlin had accidentally killed a puppy with his plow truck and as the argument escalated he told his wife, "I've already put one thing in a box today ... and you're going in a box tonight."
During the fight, Bowlin pushed his wife against the refrigerator and she fell to the floor. Lori Bowlin testified that Bowlin then straddled her, grabbed her chin with one hand and the back of her head with the other, and "twisted real hard to the left ... probably as far as it could go." She further testified that when Bowlin did this, there was a loud popping sound or "cracking in [her] neck" and her neck "hurt really bad." She said she saw a vision of a "rabbit in a snare" and she felt that she had to fight for her life — "to get out of there so that he will not kill me."
At trial, Bowlin took the stand and disputed his wife's version of events. He claimed that she attacked him and that the only physical contact he had with her was in self-defense. Bowlin testified that he never twisted or otherwise laid hands on her neck. He surmised that his wife must have hurt her neck when she fell on a stack of shingles after he used a defensive maneuver to throw her to the ground. Bowlin also testified that he had significant martial arts training and that he could have killed his wife by snapping her neck if he had wanted to.
The jury convicted Bowlin of second-degree assault and two counts of third-degree assault. At sentencing, the court merged the counts into one conviction of second-degree assault.
Bowlin's argument that the State presented insufficient evidence that he used his hands as a "dangerous instrument"
As defined in AS 11.41.210(a)(1), the crime of second-degree assault requires proof that the defendant (1) intended to cause physical injury, (2) actually caused physical injury, and (3) did so "by means of a dangerous instrument." A dangerous instrument is defined under the statute as "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."
Under our caselaw, a person's hands may qualify as a "dangerous instrument" under this definition, but only if the State presents "particularized evidence" from which reasonable jurors could conclude beyond a reasonable doubt that the manner in which the person's hands were actually used in that case created a substantial risk of death or serious physical injury."
Konrad, 763 P.2d at 1374.
Bowlin argues that the State failed to present this "particularized evidence" in his case and the State's evidence only established that, in an abstract or hypothetical case, it would be possible to cause serious injury or death by twisting someone's neck in the manner that Lori Bowlin alleged.
We disagree. At trial, Lori Bowlin testified that an angry and intoxicated Bowlin straddled her while she was on the floor, grabbed her chin with one hand and the back of her head with another, and forcefully twisted her neck. She further testified that, when Bowlin did this, she heard a loud cracking or popping sound, her neck hurt "really bad," and she was afraid Bowlin would kill her. After the assault, she had difficulty moving her neck, which was "inflamed and swollen."
An emergency room nurse testified that she ordered an X-ray of Lori Bowlin's neck because she was concerned, based on Lori's physical symptoms and her report of what happened, that she might have suffered a fracture. The nurse testified that, in the worst case scenario, a fracture from this type of assault could lead to paralysis.
More generally, a state trooper testified that law enforcement officers are trained that manipulations to the neck and throat are "[a]t the top of th[e] use of force scale ... because the likelihood of killing somebody is very great."
In addition, as mentioned earlier, Bowlin himself said he was trained in martial arts and, if he had actually used his hands in the manner his wife claimed, he could have killed her.
When we review a claim of insufficiency on appeal, we view the evidence — and all reasonable inferences to be drawn from the evidence — in the light most favorable to upholding the jury's verdict. Viewing the evidence in that light, the question is whether a fair-minded juror could reasonably conclude that the State met its burden to prove the defendant's guilt beyond a reasonable doubt. In this analysis, we do not re-weigh the evidence or judge the credibility of the witnesses — those are matters for the trier of fact.
Morrell v. State, 216 P.3d 574, 576 (Alaska App. 2009); Daniels v. State, 767 P.2d 1163, 1167 (Alaska App. 1989).
Daniels, 767 P.2d at 1167.
Ratliff v. State, 798 P.2d 1288, 1291 (Alaska App. 1990).
Here, viewing the State's evidence in the light most favorable to upholding the verdict, we conclude that a fair-minded juror could find that the State had proven beyond a reasonable doubt that (1) Bowlin used his hands in the manner that his wife described; and (2) that, by doing so, he created an actual and substantial risk of serious physical injury to his wife.
Accordingly, we reject Bowlin's claim that there was insufficient evidence to support his conviction.
Bowlin's argument that the court inadequately instructed the jury on the definition of "dangerous instrument"
At Bowlin's trial, the superior court instructed the jury on the statutory definition of "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.Neither the prosecutor nor the defense attorney asked for a more specific definition of "dangerous instrument."
AS 11.81.900(b)(15)(A).
Bowlin now argues that this instruction was inadequate. He contends that the superior court should have specifically instructed the jury, pursuant to our decision in Konrad v. State, that it could find that Bowlin's hands qualified as a "dangerous instrument" only if Bowlin "used [his hands] in a manner that actually created a substantial risk of death or serious physical injury." Because Bowlin did not ask the superior court to give the jury a Konrad instruction, he must show plain error.
Konrad v. State, 763 P.2d 1369, 1375 (Alaska App. 1988); see also State v. Waskey, 834 P.2d 1251, 1252 (Alaska App. 1992).
Adams v. State, 261 P.3d 758, 773 (Alaska 2011) (courts will find plain error only when (1) there was error that was not the result of an intelligent waiver or tactical decision not to object; (2) the error was obvious; (3) the error affected substantial rights; and (4) the error was prejudicial).
In Konrad, the question before the Court was whether the grand jury was misinstructed on the meaning of "dangerous instrument." We concluded that it was and held that when a defendant is alleged to have committed an assault with a "dangerous instrument" that is not a "deadly weapon," a special instruction is required to ensure that the grand jury does not indict the defendant based only on the hypothetical possibility that the instrument could have caused serious injury or death. We explained that this more specific instruction "should alert the grand jury to the need for it to find, based on the evidence in the case before it, that the defendant used [the] instrument in a manner that actually created a substantial risk of death or serious physical injury."
Konrad, 763 P.2d at 1372, 1374-75.
Id. at 1374-75.
Id. at 1375.
The State argues that our decision in Konrad should be limited to grand jury proceedings. We disagree. Because the reasoning of Konrad applies equally to the petit jury context, trial courts should provide a Konrad instruction when the circumstances require it, even in the absence of a defense request.
We nevertheless conclude that Bowlin was not prejudiced by the court's failure to provide a Konrad instruction in this case. To show prejudice from erroneous or incomplete jury instructions, a defendant must show a "high likelihood that the jury followed an erroneous theory[,] resulting in a miscarriage of justice." Here, given the manner in which this case was litigated and argued to the jury, we conclude that the jury would have understood that it was being asked to decide whether Bowlin had used his hands in a manner that actually created a substantial risk of death or serious physical injury to his wife.
Iyapana v. State, 284 P.3d 841, 847-48 (Alaska App. 2012) (quoting In re Estate of McCoy, 844 P.2d 1131, 1134 (Alaska 1993)).
As recounted above, Lori Bowlin testified that Bowlin straddled her while she was on the floor and used both of his hands to forcefully twist her head, causing her neck to crack or pop and causing her considerable pain. She testified that after the assault she had difficulty moving her neck, which was inflamed and swollen. In contrast, Bowlin denied even touching his wife's neck.
In closing argument, the prosecutor contended that Lori Bowlin's description of events was credible and accurate, and the prosecutor focused the jury's attention on the specific manner in which the assault took place: "[L]ook at the circumstances. He's drunk, he's enraged, he's trained to hurt people ... . This isn't ... just — this isn't a punch. This isn't, you know, a kick. This isn't a slap. It's grabbing someone's head and violently twisting it to the point where they have a moment of silence; [they] can see a rabbit in a snare."
The defense attorney agreed with the prosecutor that the "real question here is did Paul [Bowlin] assault her that way that night, did he try to snap her neck?" He argued that Lori Bowlin had reason to lie and her testimony should not be believed. The attorney also argued that the case was overcharged — "let's not pre[tend] here for a minute that my client is Arnold Schwarzenegger and he's a Navy Seal in a movie and he's running around snapping people's necks." The attorney later repeated that the question for the jury to decide was "[d]id Paul try to snap her neck that night? No, he didn't."
Given this record, we conclude that, even in the absence of a Konrad instruction, the jury would have understood that to convict Bowlin of using his hands as a dangerous instrument, the jury would need to find that the State had proved beyond a reasonable doubt that Bowlin used his hands in a manner that actually created a substantial risk of serious physical injury or death — that is, he used his hands to try to snap his wife's neck.
See, e.g., Buckwalter v. State, 23 P.3d 81, 87 (Alaska App. 2001) (defects or omissions in jury instructions can sometimes be cured by the parties' arguments at trial). --------
We therefore conclude that the failure to give a Konrad instruction in this case was not plain error.
Conclusion
We AFFIRM the judgment of the superior court.