Opinion
A-8751, Court of Appeals No. 5084.
June 21, 2006.
Appeal from the Superior Court, Third Judicial District, Seward, Harold M. Brown, Judge. Trial Court No. 3SW-03-078 Cr.
Sharon Barr, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for the Appellant.
John A. Scukanec, 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
Matthew Aaron Dancer appeals his convictions for kidnapping, two counts of third-degree assault, and several counts of reckless endangerment. As explained in more detail below, these convictions arose from an incident on March 22, 2003, during which Dancer assaulted his girlfriend, Cassandra Williams, over the course of half an hour. Dancer's sister, Toni Snead, and one of Dancer's close friends, Wayne Bennett, were present during this incident. Also present were Ms. Snead's six children.
Dancer was convicted of kidnapping, for restraining Cassandra Williams during the half-hour assault. Dancer was also convicted of third-degree assault upon the two other adults present, Snead and Bennett, for threatening them with a firearm (to prevent them from intervening to assist Williams). In addition, Dancer was convicted of recklessly endangering both Snead and Bennett, as well as Snead's six children.
In this appeal, Dancer asserts that the evidence presented at his trial was insufficient to support the convictions described in the preceding paragraph. (Dancer was also convicted of seven other crimes, but he does not appeal these other convictions.) In addition, Dancer contends that he received an excessive composite sentence for his offenses.
For the reasons explained here, we conclude that the evidence supports all of Dancer's convictions and that his composite sentence is not excessive.
Underlying facts
Because Dancer challenges the sufficiency of the evidence to support his convictions, the facts are portrayed here in the light most favorable to supporting the jury's verdicts.
Hentzner v. State, 613 P.2d 821, 823 (Alaska 1980); Siggelkow v. State, 648 P.2d 611, 613 (Alaska App. 1982).
Dancer and his girlfriend, Williams, lived in a trailer in Seward. Dancer's sister, Snead, and her six young children were also living in this trailer.
In February and March 2003, Dancer's and Williams's relationship began to deteriorate. Things turned violent on March 22nd.
On that day, Dancer, Williams, and Snead, along with Dancer's friend, Bennett, spent the better part of the day drinking beer in the trailer. Snead's six children were also present in the trailer.
At some point during the evening, Williams and Bennett were talking outside the trailer. During their conversation, Williams told Bennett that she had romantic feelings for him and that she wanted to go home with him that night. Dancer was inside the trailer at the time, but he overheard this conversation, and he became very angry.
Dancer went outside, grabbed Williams by her hair, and pulled her back into the trailer. Dancer flung her around, pushed her into a chair, and gouged at her eyes. When Bennett and Snead tried to get Dancer to stop, Dancer only became angrier. He pulled Williams into the bathroom by her hair, closed the bathroom door, and then began hitting Williams with his fists and kicking her with his steel-toed boots.
After a time, Dancer and Williams returned to the living room. By now, at least two of Snead's children had come into the living room. The others were still in the bedroom.
Dancer again took Williams by her hair, and he grabbed his AK-47 assault rifle. Bennett and Snead were still trying to get Dancer to calm down, but Dancer pointed the gun at them. Snead grabbed Dancer's arm and told him to stop. In response, Dancer warned her, "Don't touch me, or I'll haze you." According to Snead's testimony, Dancer used the word "haze" as a synonym for "shoot".
Still holding the AK-47, Dancer dragged Williams outside by her hair. Williams attempted (unsuccessfully) to resist by grabbing onto the door and the doorframe. Dancer pulled Williams into the woods, to a spot 30 to 40 yards from the trailer.
In the woods, Dancer threatened to kill Willliams. He made her lie down on her back in the snow, then he straddled her body and pointed his rifle at her head. Dancer proceeded to question Williams about her relationship with Bennett; when he was not satisfied with her answers, he punched her in the face.
Dancer eventually ceased this attack, and Williams got up and ran back to the trailer. Williams convinced Snead to drive her away in Bennett's truck, but the truck became stuck in the snow. Dancer approached the truck and, with the rifle still in his hand, ordered Williams to get out of the truck. Williams initially refused to get out of the truck, and Snead later told the police that she was afraid that Dancer was going to shoot both of them.
Williams eventually got out of the truck. Dancer grabbed her arm and pushed her as she walked back toward the trailer. At this point, Bennett and Snead rounded up Snead's six children and drove away in the truck.
This whole incident lasted approximately half an hour.
The sufficiency of the evidence to support Dancer's conviction for kidnapping
Dancer was convicted of kidnapping under AS 11.41.300(a)(1)(C). That is, the jury found that Dancer restrained Williams with the intent to inflict physical injury upon her or to put her in fear of serious physical injury.
Dancer does not dispute the jury's finding that he acted with the intent to physically injure Williams or to place her in fear of serious physical injury. However, Dancer contends that the evidence at his trial was insufficient to prove that he "restrained" Williams as that term is defined in AS 11.41.370(3). Under this statute,
"restrain" means to restrict a person's movements unlawfully and without consent, so as to interfere substantially with the person's liberty[,] by moving the person from one place to another or by confining the person either in the place where the restriction commences or in a place to which the person has been moved[.]
This definition of "restrain" is quite broad. As we recognized in Alam v. State and in Hurd v. State, the language of this definition is so broad that one could reasonably argue "that almost any assaultive crime includes at least a momentary `kidnapping'[.]" Thus, in Alam, we held that movements or confinements that are merely incidental to the commission of a crime will not constitute the separate offense of kidnapping.
776 P.2d 345 (Alaska App. 1989) ( Alam I), appeal after remand, 793 P.2d 1081 (Alaska App. 1990) ( Alam II).
22 P.3d 12 (Alaska App. 2001).
Hurd, 22 P.3d at 13.
Alam I, 776 P.2d at 348-49, relying on the legislative commentary to the kidnapping statute found in 1978 Senate Journal, Supp. No. 47 (June 12), pp. 18-19.
In Hurd, 22 P.3d 17-19, we engaged in an extended discussion of how to distinguish a movement or confinement that is merely "incidental" to the defendant's target crime from a movement or confinement that is "significant" — i.e., a movement or confinement that will support a separate conviction for kidnapping. We identified five factors that a jury should consider when assessing whether the defendant's movement or confinement of the victim was sufficiently significant to support a separate conviction for kidnapping:
(1) how long the victim was restrained; (2) if the victim was moved, how far the victim was moved and where the victim was taken; (3) whether, under the facts, the restraint exceeded what was necessary for commission of the defendant's target crime; (4) whether the restraint significantly increased the risk of harm to the victim beyond the risk of harm inherent in the target crime itself; and (5) whether the restraint had some independent purpose — i.e., whether the restraint made it significantly easier for the defendant to commit the target crime or made it significantly easier for the defendant to escape detection.
Hurd, 22 P.3d 19.
The jury in Dancer's case was instructed in accordance with Hurd, and they concluded that Dancer's movement and confinement of Williams was significant enough to support a separate conviction for kidnapping. The question on appeal is whether the evidence at Dancer's trial, viewed in the light most favorable to upholding the jury's decision, was sufficient to support the kidnapping verdict.
As detailed above, Dancer forcibly moved and forcibly confined Williams repeatedly during the half-hour assaultive episode. By moving Williams from place to place — especially, by taking her into the bathroom and later taking her into the woods — Dancer made it significantly easier for him to continue assaulting Williams without interference by Snead and Bennett. Moreover, Dancer ordered Williams from the truck at gunpoint and forced her back to the trailer when she tried to flee the premises.
Assessing this evidence in light of the Hurd factors, and viewing the evidence in the light most favorable to the jury's verdict, we conclude that reasonable jurors could find that Dancer committed the separate offense of kidnapping.
The sufficiency of the evidence to support Dancer's convictions for third-degree assault on Snead and Bennett
Dancer was convicted of third-degree assault upon both Snead and Bennett for recklessly placing them in fear of imminent serious physical injury by means of a dangerous instrument (in this case, the AK-47 assault rifle).
AS 11.41.220(a)(1)(A).
Dancer contends that the evidence at his trial was insufficient to support these two convictions. He notes that both Snead and Bennett testified that they did not perceive a threat that Dancer would harm them.
Again, however, we are obliged to view the evidence in the light most favorable to upholding the jury's verdicts. We have described that evidence already. In particular, evidence was presented that Dancer threatened both Snead and Bennett by pointing his AK-47 at them when they were trying to get Dancer to calm down and stop assaulting Williams. When Snead grabbed Dancer's arm and told him to stop, Dancer warned her, "Don't touch me, or I'll haze you." In other words, Dancer threatened to shoot her.
Later, when Snead tried to help Williams escape in the truck, Dancer came up to them, with the rifle still in his hand, and ordered Williams to get out of the truck. Snead told the police that, when Williams initially refused to get out of the truck, she was afraid that Dancer was going to shoot both of them.
Snead's and Bennett's apprehension of the danger is further demonstrated by the fact that, after Dancer ordered Williams out of the truck and forced her back into the house, Snead and Bennett rounded up Snead's six children and drove away.
Finally, there was good reason for the jurors to distrust Snead's and Bennett's protestations that they did not believe that Dancer would harm them. Snead is Dancer's sister, and Bennett is among his best friends. (Bennett testified that Dancer was like a "brother" to him.)
For these reasons, we conclude that the evidence supports Dancer's convictions for third-degree assault upon Snead and Bennett.
The sufficiency of the evidence to support Dancer's convictions for reckless endangerment of Snead and Bennett
Dancer was also convicted of recklessly endangering Snead and Bennett — that is, recklessly engaging in conduct that created a substantial risk of serious physical injury to Snead and Bennett. These two charges were likewise based on the fact that Dancer threatened Snead and Bennett with the assault rifle.
AS 11.41.250(a).
On appeal, Dancer argues that the evidence was insufficient to support these two charges because there was no direct evidence that Dancer's AK-47 was loaded — and thus, no direct evidence that Dancer's conduct actually created a substantial risk that Snead and Bennett would suffer serious physical injury.
It is true that no one testified that they checked the rifle after this incident and found it to be loaded. In fact, when the police arrived at the trailer to investigate this incident, they were unable to find any firearms. The police did, however, find a loaded magazine for an AK-47. Moreover, Williams testified that Dancer always kept this assault rifle loaded. And, as already noted, when Snead grabbed Dancer's arm in an attempt to get him to calm down and stop assaulting Williams, Dancer threatened to shoot her with the rifle. Dancer's threat provides further support for the conclusion that the weapon was loaded.
For these reasons, we conclude that the evidence was sufficient to support Dancer's convictions for recklessly endangering Snead and Bennett.
The sufficiency of the evidence to support Dancer's convictions for reckless endangerment of Snead's six children
Dancer was also convicted of recklessly endangering Snead's six children. These charges were partially based on the fact that some of the children were present in the living room while Dancer was assaulting Williams and holding Snead and Bennett at bay with the AK-47. In addition, with respect to all six children, the prosecutor argued that the children were placed in danger when Snead and Bennett led them out of the trailer to Bennett's truck — because the children had to go past Dancer, who was still intoxicated, still armed with the rifle, and still continuing his restraint of Williams.
On appeal, Dancer argues that it is impossible to tell, from the testimony, how many of the children (and who among them) were present when Dancer was assaulting Williams, Snead, and Bennett in the living room. This is true. However, as just described, the State's alternate theory was that all six children were later placed in danger because they had to go past Dancer in order to leave the trailer. The evidence is sufficient to support the jury's verdicts under this theory, and Dancer's brief to this Court does not attack this theory of prosecution.
Accordingly, we conclude that the evidence is sufficient to support the six convictions for recklessly endangering Snead's children.
Whether Dancer's composite sentence is excessive
In addition to the convictions that we have already discussed, Dancer was convicted of another count of third-degree assault (upon Williams), another count of reckless endangerment (involving Williams), and five counts of fourth-degree assault upon Williams (four counts based on the episode described in this opinion, and a fifth based on an episode that occurred four days later).
Thus, when Dancer appeared for sentencing in front of Superior Court Judge Harold M. Brown, Dancer stood convicted of one count of kidnapping (an unclassified felony), three counts of third-degree assault (a class C felony), five counts of fourth-degree assault (a class A misdemeanor), and nine counts of reckless endangerment (a class A misdemeanor).
AS 11.41.300(c).
AS 11.41.220(d).
AS 11.41.230(b).
AS 11.41.250(b).
The penalty for kidnapping is 5 to 99 years' imprisonment. The penalty for third-degree assault is 0 to 5 years. The penalty for fourth-degree assault and reckless endangerment is 0 to 1 year.
AS 12.55.125(b).
AS 12.55.125(e).
AS 12.55.135(a).
For the kidnapping, Judge Brown sentenced Dancer to 15 years' imprisonment with 7 years suspended (8 years to serve). For the third-degree assault upon Williams, Judge Brown sentenced Dancer to 4 years' imprisonment with 2 years suspended (2 years to serve), consecutive to the kidnapping sentence. For the third-degree assaults upon Snead and Bennett, Judge Brown sentenced Dancer to 1 year's imprisonment. These two sentences were concurrent with each other, but consecutive to Dancer's sentences for the kidnapping and the third-degree assault upon Williams.
Thus, for these four felony convictions, Dancer received a composite sentence of 11 years to serve.
In addition, Dancer received a combined 1½ years to serve for his five fourth-degree assault convictions (consecutive to his other sentences), and a combined 1½ year to serve for his nine reckless endangerment convictions (again, consecutive to his other sentences).
All told, Dancer received a composite sentence of 13 years to serve (with an additional 9 years suspended). On appeal, Dancer contends that this sentence is excessive.
Dancer first argues that Judge Brown was operating under a mistaken understanding of the sentencing range that applied to Dancer's kidnapping conviction. Dancer asserts that Judge Brown mistakenly believed that kidnapping carried a 7-year mandatory minimum term of imprisonment, rather than the 5-year mandatory minimum term specified in AS 12.55.125(b).
Dancer's argument is based on a misunderstanding of Judge Brown's sentencing remarks. At the sentencing hearing, Dancer's attorney asked Judge Brown to impose a composite sentence of 5 years' imprisonment — that is, a composite sentence for all of Dancer's offenses equal to the mandatory minimum term for the kidnapping alone. Judge Brown responded by explaining why, as a matter of sentencing fairness and uniformity, he believed that he could give Dancer no less than 7 years to serve for the kidnapping.
In order to understand Judge Brown's remarks, it is important to note that the kidnapping statute, AS 11.41.300, actually creates two levels of offense: kidnapping, which is an unclassified felony (with a sentencing range of 5 to 99 years), and mitigated kidnapping, which is a class A felony (with a sentencing range of 0 to 20 years). As defined in AS 11.41.300(d), a kidnapping becomes mitigated if the defendant "voluntarily cause[s] the release of the victim alive in a safe place before arrest, or within 24 hours after arrest, without having caused serious physical injury to the victim and without [committing sexual assault in the first or second degree or sexual abuse of a minor in the first or second degree]".
Dancer was convicted of non-mitigated kidnapping — the unclassified felony. In his sentencing remarks, Judge Brown declared that it would be unjustifiable to give Dancer less than 7 years to serve for this offense, because Dancer would have faced a presumptive term of 7 years' imprisonment if he had been convicted of the lesser offense of mitigated kidnapping:
The Court: [T]he minimum sentence that I can give the defendant is seven years, in my mind, because . . . the kidnapping is an unclassified offense and it carries with it a minimum sentence of five years. If this were a class A felony [ i.e., if Dancer had released his victim unharmed, so that his offense was a mitigated kidnapping under AS 11.41.-300(d)], [because] it . . . involved the use of a firearm, the [applicable sentencing] statute [ i.e., AS 12.55.125(c)(2)(A)] says . . . [that the presumptive] sentence would be 7 years. This is [the presumptive term that would apply] if it was a class A felony — which is a less serious [degree of] crime than the unclassified felony for which [Dancer] was convicted.
(Emphasis added)
In other words, Judge Brown was explaining why he believed that the goals of avoiding unjustified disparity and achieving reasonable uniformity in sentencing — see AS 12.55.005 — would be defeated if he gave Dancer anything less than 7 years to serve for the kidnapping. In the end, Judge Brown sentenced Dancer to serve 8 years for the kidnapping — a sentence that exceeds the mandatory minimum term of imprisonment by only 3 years. We conclude that this was a reasonable exercise of sentencing discretion. See Crabtree v. State, Alaska App. Memorandum Opinion No. 3318 at 12-18 (January 3, 1996), 1996 WL 33686456 at *6-*9 (Mannheimer, J., dissenting).
In addition to the kidnapping, Dancer was sentenced for three other felonies and fourteen misdemeanors. When we review a composite sentence imposed for two or more criminal convictions, we assess whether the defendant's combined sentence is clearly mistaken, given the whole of the defendant's conduct and history.
Brown v. State, 12 P.3d 201, 210 (Alaska App. 2000); Comegys v. State, 747 P.2d 554, 558-59 (Alaska App. 1987).
Here, Dancer committed his most serious crimes upon his girlfriend, Williams. Judge Brown concluded that Dancer had demonstrated sadism in his assaults on Williams and that Dancer was not remorseful for his actions. In addition, Dancer's offenses included felony assaults on two other victims — Snead (his sister) and Bennett (one of his closest friends) — as well as the reckless endangerment of Snead's six children. Moreover, one of Dancer's fourth-degree assault convictions stemmed from an assault that he committed upon Williams four days after the events we have described here.
When we view Dancer's conduct in its entirety, we conclude (1) that Judge Brown was not clearly mistaken in imposing an additional 5 years to serve (total) for Dancer's three other felonies and fourteen misdemeanors, and (2) that Dancer's composite sentence of 13 years to serve is not clearly mistaken. Conclusion
See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (an appellate court is to affirm a sentencing decision unless the decision is clearly mistaken).
The judgement of the superior court is AFFIRMED.