Opinion
Court of Appeals No. A-11179 No. 6107
10-29-2014
ALBERT B. ESCHOLT, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Dan S. Bair, Assistant Public Advocate, Appeals and Statewide Defense Section, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Elizabeth T. Burke, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, 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. 3PA-10-203 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Palmer, Vanessa H. White, Judge. Appearances: Dan S. Bair, Assistant Public Advocate, Appeals and Statewide Defense Section, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Elizabeth T. Burke, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, 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).
Albert B. Escholt was convicted of attempted first-degree murder for firing his gun into a car where his girlfriend was sitting. Escholt appeals his conviction, arguing that the superior court committed plain error when it failed to take corrective action after the prosecutor's closing argument improperly referred to hearsay evidence that the superior court had instructed the jury to disregard. For the reasons explained in this decision, we find no merit to this claim of plain error. We therefore affirm Escholt's conviction.
Escholt also argues that the superior court erred in failing to properly redact its corrections to the presentence report as required by Alaska Criminal Rule 32.1(f)(5). We agree that these corrections should have been made and that a corrected version of the presentence report should have been issued.
Factual and procedural background
On the evening of January 24, 2010, Escholt and his girlfriend Jeanine Lane were drinking heavily and got into a heated altercation. At some point during the altercation, Escholt told Lane that he hated her and Lane briefly left the house. When she returned, Escholt told her he did not care if she lived or died, they wrestled, and Lane ended up pinned on her stomach on the front porch of the house.
When Escholt let go of her, Lane ran to her Suburban, got into the driver's seat, and locked the doors. Escholt appeared to calm down, so Lane turned the motor off but remained in the locked Suburban, making calls to family on her cell phone.
Lane was looking down at her cell phone when she heard a gunshot and felt glass hit her face. She looked up to find Escholt scraping out the remaining glass in the passenger's side window of the Suburban with the barrel of a gun, which he then pointed at her. He told her to call her parents and tell them she loved them because she would never see them, or her children, again, as she "wasn't leaving that property alive." She cried and asked him not to kill her. Escholt turned, and as he walked off, Lane started the Suburban and drove away.
The police investigation revealed that the bullet had entered the Suburban through the passenger's side window and exited through the roof above the steering wheel. The bullet fragmented either on impact with the passenger's side window or with the Suburban's roof, and bullet fragments were found embedded in the rubber moulding around the top of the driver's side door. As a result of the incident, Lane had abrasions and cuts on the right side of her face, an abrasion to the white of her right eye, and a small metal fragment embedded in her temple.
Following a jury trial, Escholt was convicted of attempted first-degree murder and third-degree assault. At sentencing, the superior court merged the convictions and sentenced Escholt to 30 years with 12 years suspended, 18 years to serve. The superior court also issued oral findings modifying parts of the presentence report, although none of these changes was actually made to the presentence report.
This appeal followed.
Escholt's claim that the prosecutor committed plain error during closing argument
At trial, Lane testified that the doctors "found a small piece of metal fragment" in her temple following the incident. She also testified that the doctor told her that the metal fragment was "from probably the bullet."
Escholt's attorney objected to Lane's hearsay testimony about what the doctor had told her; the superior court sustained the hearsay objection, striking the "probably the bullet" part of Lane's testimony and instructing the jury to disregard this part of the statement.
During closing argument and again at rebuttal, the prosecutor referred to the injuries Lane sustained to show how close the bullet came to hitting her:
When she heard the bang, the glass shards hit her in the face. You've heard testimony that a piece of bullet fragment or piece of metal also hit her in the face and she cried to him "please don't kill me, please don't kill me."Escholt did not object to these statements or request any curative instructions at trial.
And again, you know, it was a bare miss. The bullet fragments in that — from that bullet actually hit her in the face.
And that bullet did go by her face. There is a piece of fragment from that bullet that hi[t]s her in the face, there's glass from that bullet coming in that hit her and it ended up right above where she was.
On appeal, Escholt argues that the prosecutor's statements about the bullet fragments hitting Lane were improper because they were based on evidence that had been struck as hearsay by the superior court. While we agree that the prosecutor's assertion that "[y]ou've heard testimony" appears to be an improper reference to the testimony that the superior court had instructed the jury to disregard, we disagree that the remainder of the argument — that the bullet fragments hit Lane — was necessarily improper, let alone sufficiently improper to rise to the level of plain error.
A prosecutor is entitled to argue facts that are "within the range of reasonable inference which could be drawn from the evidence." Here, the evidence properly before the jury was that the bullet had fragmented within the Suburban, embedding pieces of metal in the rubber moulding of the Suburban door, and that a tiny "dot" of metal was found in Lane's temple a few days after the incident. Given these circumstances, it was within the acceptable range of reasonable inference for the prosecutor to assert that the piece of metal found in Lane's temple came either from a bullet fragment or from some other metal debris created by the fragmenting bullet.
See Sam v. State, 842 P.2d 596, 600 (Alaska App. 1992) (quoting Dorman v. State, 622 P.2d 448, 461 (Alaska 1981)).
As noted above, Escholt's attorney failed to object to this line of argument in the trial court proceedings, and it is unclear how Escholt was prejudiced by the argument that the dot of metal in Lane's temple was a bullet fragment or debris caused by the bullet. As the prosecutor emphasized in the rest of her closing argument, the primary evidence of intent in this case was Escholt's own threats. The fact that the gunshot was a "bare miss" with the bullet close enough to cause injuries (whether directly or indirectly) was simply further proof that Escholt's threats should be taken at face value and that he intended to kill Lane when he shot into the car.
Given Escholt's failure to establish that the prosecutor's argument was obvious error or clearly prejudicial, we decline to find plain error on appeal.
Escholt's presentence report
Under Criminal Rule 32.1(f)(5), if a trial court "'concludes either that an assertion of fact is not based on sufficiently verified information, or (if based on verified information) that it has not been proved,' then the court must delete the assertion from the report." After the court has made the necessary deletions and modifications, the court's corrected copy shall be labeled the "approved version" of the presentence report and a copy of the approved version must be delivered to the Department of Corrections within seven days after sentencing.
Davison v. State, 307 P.3d 1, 3 (Alaska App. 2013) (quoting Cragg v. State, 957 P.2d 1365, 1367 (Alaska App. 1998)) (citing Alaska R. Crim. P. 32.1(f)(5)).
Alaska R. Crim. P. 32.1(f)(5).
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At the sentencing hearing, Escholt's attorney objected to several factual details contained in the presentence report that differed from the police officers' testimony at trial and proposed a number of modifications to the report. The superior court accepted some of these proposed modifications. However, the current presentence report does not reflect these modifications, and it does not appear that any of the changes were made to the report or that the official approved version of the report was ever distributed. The State concedes that the failure to follow the requirements of Rule 32.1(f)(5) was error.
Conclusion
We AFFIRM the judgment of the superior court. However, we direct the superior court to prepare and distribute a corrected presentence report in accordance with the requirements of Alaska Criminal Rule 32.1(f)(5). We do not retain jurisdiction.