Opinion
Court of Appeals No. A-9779.
November 26, 2008.
Appeal from the Superior Court, Third Judicial District, Homer, Charles T. Huguelet, Judge. Trial Court No. 3HO-05-389 CR.
Paul E. Malin, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
W. H. Hawley, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
A jury convicted Douglas A. Foret of third-and fourth-degree assault after he attacked Lauren Carlton by striking her, choking her with his hands, and kicking her in the face. Foret argues that the evidence at his trial was insufficient to support his conviction for third-degree assault.
Foret was charged with third-degree assault under two alternative theories: that he used his hands to choke Carlton, and that he used his foot to kick her. As we explain in more detail below, the evidence was sufficient to support a finding that Foret used his hands as a dangerous instrument when he choked Carlton, but the evidence was insufficient to support a finding that Foret used his foot as a dangerous instrument when he kicked Carlton. Because the State relied on both theories to argue that Foret had committed third-degree assault, and because the jury was not asked to specify which theory it relied on when it found Foret guilty of this crime, we must reverse Foret's third-degree assault conviction.
Because we are reversing the third-degree assault conviction, we need not consider Foret's other claim on appeal — that the superior court should have merged his convictions for third-and fourth-degree assault at sentencing.
Background facts and proceedings
On October 7, 2005, Carlton was in Anchorage for an outpatient procedure. At the time, Foret lived with Carlton in Homer. Although Carlton planned to stay overnight in Anchorage as her doctor had advised, when she called home she discovered that her son had not gone to school that day and that Foret had not gone to work. Carlton thought Foret sounded inebriated.
Carlton took the next available flight to Homer because she was worried about her son. Although Carlton and Foret had previously agreed that Foret would not drink at home, Carlton found Foret asleep on the loveseat holding a beer in his hand. Carlton removed the beer from Foret's hand and told him to leave. As Carlton walked toward her son's room to check on him, Foret grabbed her.
Foret grabbed Carlton by the shoulders, shook her, and forced her down on the couch. Foret then pressed down on Carlton's chest and shoved his thumbs into her windpipe. Carlton could not speak or breathe. She struggled to loosen Foret's grip, and she eventually succeeded. Foret then kicked Carlton in the face once, causing her nose to bleed.
Foret slammed the front door on Carlton's leg as she fled the house. Foret then followed Carlton outside and kicked her in the back, causing her to fall down the stairs onto the gravel walkway. Carlton called 911 on her cell phone as she ran to her landlord's cabin.
The State took Foret to trial on charges of second-degree assault, third-degree assault, and fourth-degree assault. The jury acquitted Foret of second-degree assault, but found him guilty of third-and fourth-degree assault.
AS 11.41.210(a)(1).
AS 11.41.220(a)(1)(A).
AS 11.41.230(a)(1).
Discussion
Foret argues that the State presented insufficient evidence to support his conviction for third-degree assault.
The jury was instructed that to convict Foret of third-degree assault the State had to prove that he recklessly placed Carlton in fear of imminent serious physical injury "by means of a dangerous instrument, to wit: hands and/or feet." Foret argues that there was insufficient evidence to support a finding that he used either his hands or his feet as a dangerous instrument.
The definition of "dangerous instrument" is codified in AS 11.81.900 (b)(15). Under subsection (A) of this definition, the term "dangerous instrument" includes "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 subsection (B) of this definition, "dangerous instrument" means "hands or other objects when used to impede normal breathing or circulation of blood by applying pressure on the throat or neck obstructing the nose or mouth."
The State's evidence, if believed, was sufficient to establish that Foret used his hands as a dangerous instrument under subsection (B) of AS 11.81.900(b)(15) — that is, there was sufficient evidence to establish that Foret used his hands "to impede [Carlton's] normal breathing . . . by applying pressure on [her] throat or neck." There is a problem, however, with the State's alternative theory that Foret used his foot as a dangerous instrument under subsection (A) of AS 11.81.900(b)(15). To convict Foret under that theory, the jury had to find that he used his foot in a manner "capable of causing death or serious physical injury" when he kicked Carlton once in the face.
In Konrad v. State, Willett v. State, Davidson v. State, and Hutchings v. State, this court addressed the issue of when, or under what circumstances, a defendant's hands or feet will qualify as a "dangerous instrument" under the assault statutes.
763 P.2d 1369 (Alaska App. 1988).
862 P.2d 955 (Alaska App. 1992).
975 P.2d 67 (Alaska App. 1999).
53 P.3d 1132 (Alaska App. 2002).
In Konrad, we held that the defendant's use of his hands to strike his estranged wife on the head and ribs was not sufficient to support a finding that he employed his hands as a dangerous instrument. We pointed out that, even though Konrad's wife sustained physical injury as a result of these blows, there was no case-specific evidence to establish that she faced an actual and substantial risk of serious physical injury, or that Konrad used his hands in an "inordinately violent" manner "calculated to inflict serious physical injury." We noted that, "Were we to find [that the] evidence in this case [was legally sufficient] to support a conclusion that Konrad's hands were [employed as] dangerous instruments, a similar conclusion would be justified in virtually every case involving blows struck with fists that inflicted some physical injury."
Konrad, 763 P.2d at 1372.
Id. at 1375.
Id. at 1376.
Similarly, in Hutchings we concluded that the defendant's use of his boot-shod foot to kick a police officer once or twice in the back of the head was not sufficient to support a finding that Hutchings used his foot as a dangerous instrument. The victim in Hutchings momentarily "saw stars"; he was briefly dazed and he staggered around, but he was able to end the assault "by straightening up and walking away." There was no evidence the officer was in danger of death or serious physical injury from the kicks.
Hutchings, 53 P.3d at 1138.
Id. at 1137-38.
Id. at 1137.
In contrast, we held in Davidson that there was sufficient evidence that the defendant had used his foot as a dangerous instrument. In that case, the State presented evidence that Davidson kicked his victim eight times in the head while the victim was lying helpless on the ground; the victim was unconscious and another individual summoned an ambulance. As a result of these kicks, the victim suffered a concussion and a broken nose and, at the time of trial, had facial scarring and continued to suffer headaches.
Davidson, 975 P.2d at 70.
Id. at 69.
Id.
Turning to the facts of the present case, Foret administered a single kick to Carlton's face. Carlton had just had laser surgery on her eyes, and she suffered from Stickler syndrome, spinal stenosis, and fibromyalgia. But the State offered no evidence that these conditions made Carlton substantially more susceptible to serious physical injury from Foret's kick.
Carlton testified that she suffered sinus problems as a result of Foret's assault — recurring bleeding that necessitated referral to an ear, nose, and throat specialist. But the State offered no medical testimony that this sinus problem resulted from Foret's kick as opposed to other aspects of Foret's attack on Carlton. Nor did the State present medical evidence that this sinus problem qualified as a "protracted impairment of [Carlton's] health" or a "protracted loss or impairment of the function of a body member or organ" — the two pertinent clauses of the definition of "serious physical injury" codified in AS 11.81.900(b)(56)(B).
Under these circumstances, we conclude that the State presented insufficient evidence that Foret used his foot (as opposed to his hands) as a dangerous instrument. For this reason, to the extent that the jury's third-degree assault verdict was based on the theory that Foret used his foot as a dangerous instrument, that verdict was improper.
As explained above, the State presented the jury with alternative theories of why Foret should be found guilty of third-degree assault: Foret's use of his hands, and Foret's use of his foot. We have now concluded that there was insufficient evidence for the jury to find that Foret committed third-degree assault when he kicked Carlton. Because the jury was not asked to specify which theory (or theories) it relied on when it found Foret guilty of this crime, we must reverse Foret's conviction for third-degree assault.
Because we reverse Foret's third-degree assault conviction, we need not consider his argument that the superior court should have merged his convictions for third-and fourth-degree assault at sentencing.
Conclusion
Foret's conviction for third-degree assault is REVERSED.