Opinion
Court of Appeals No. A-10933 No. 6206
07-15-2015
JERRY S. GATES, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Sharon Barr, Assistant Public Defender, and Quinlan Steiner, Public Defender, 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. 3AN-06-9230 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Jack W. Smith, Judge. Appearances: Sharon Barr, Assistant Public Defender, and Quinlan Steiner, Public Defender, 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 MANNHEIMER, writing for the Court and concurring separately.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
One day in August 2006, Jerry S. Gates was visited by his neighbor, Christopher Short. Short tried to sell a bag of marijuana to Gates, but Gates declined to purchase the marijuana. A physical altercation ensued. During this altercation, Gates drew a .45 caliber revolver that was hidden in his couch and fired several shots — one of which wounded Short in the arm. When Short fled the residence, Gates put down the revolver, picked up an SKS assault rifle, and then followed Short outside. When Gates saw Short hiding in a raspberry patch near Gates's deck, Gates fired the assault rifle at him. Short then left the berry patch and ran toward his own house. According to Short, Gates fired at least one more shot at him.
Within minutes, the Anchorage police received several 911 calls concerning this incident. When the police arrived and entered Gates's residence, they found a bag containing slightly less than four ounces of marijuana sitting on a television. (This was not the marijuana that Short had been trying to sell.)
Based on these events, Gates was charged with attempted murder, first-degree assault, fourth-degree controlled substance misconduct (possession of one ounce or more of marijuana with intent to distribute), and two counts of second-degree weapons misconduct — one count for possessing a firearm in furtherance of a felony drug offense, and one count for shooting a firearm at or near a dwelling or other building with reckless disregard for the risk of injury.
AS 11.41.100(a).
AS 11.41.200(a).
AS 11.71.040(a)(2).
AS 11.61.195(a)(1).
AS 11.61.195(a)(3)(A), (B).
Following a jury trial, Gates was convicted of the attempted murder charge, the fourth-degree controlled substance misconduct charge, and the weapons misconduct charge alleging possession of a firearm in furtherance of a drug felony. With respect to the first-degree assault charge, the jury found Gates guilty of the lesser offense of third-degree assault. And with respect to the other weapons misconduct charge (shooting at a dwelling or other building), the jury found Gates guilty of the lesser offense of fourth-degree weapons misconduct.
AS 11.41.220(a).
AS 11.61.210(a).
In this appeal, Gates argues that the evidence presented at his trial was not legally sufficient to support his conviction for possessing one ounce or more of marijuana with intent to distribute. Gates further argues that the evidence was not legally sufficient to support his conviction for possessing a firearm during the commission of a felony drug offense.
Gates also argues that the evidence was insufficient in one other way: that the evidence was not sufficient to prove that his use of force against Short was done in furtherance of a felony, or while Gates was participating in a felony drug transaction. This factual issue arose because Gates claimed that he acted in self-defense when he fired the two weapons at Short.
At trial, Gates admitted firing the two weapons at Short, but he asserted that he did so only because Short attacked him. In response to Gates's claim of self-defense, the prosecutor argued that it was Gates who had been the initial aggressor — but the prosecutor also argued, in the alternative, that even if Short had been the initial aggressor, Gates could not claim self-defense. As the basis of this alternative argument, the prosecutor relied on AS 11.81.330(a)(4), which declares that the defense of self-defense is not available to someone who uses a deadly weapon while acting in furtherance of a felony, or while participating in a felony drug transaction.
Gates's jury was instructed on the definition of self-defense, and the jury was also instructed on the special limitations on self-defense codified in AS 11.81.-330(a)(4). By their verdicts, the jurors obviously rejected Gates's claim of self-defense. But the jury's verdicts do not reveal why they rejected this defense: whether they found that Gates was the initial aggressor, or (alternatively) that Short was the initial aggressor but that Gates acted unreasonably in using deadly force, or (alternatively) that Gates's actions would have been justified by self-defense except that he either was acting in furtherance of a felony or was a participant in a felony drug transaction.
In this appeal, Gates argues that the State's evidence was insufficient to prove that, at the time he used force against Short, he possessed marijuana with intent to distribute. Gates therefore argues that he is entitled to a retrial on the charges of attempted murder and third-degree assault—because (1) we do not know why the jury rejected his claim of self-defense, and (2) it is possible that the jurors rejected his self-defense claim in reliance on the State's argument that, because he was guilty of this felony drug offense, he was legally barred from claiming self-defense.
Finally, Gates asserts that even if the evidence was sufficient to support his convictions for controlled substance misconduct and weapons misconduct, and sufficient to support the jury's rejection of his claim of self-defense, this Court must still order a merger of Gates's convictions for attempted murder and third-degree assault.
For the reasons explained in this opinion, we conclude that the evidence presented at Gates's trial was sufficient to support Gates's convictions for controlled substance misconduct and weapons misconduct. And because we conclude that the evidence was sufficient to support these convictions, we reject Gates's argument concerning his claim of self-defense. However, we conclude that Gates's convictions for attempted murder and third-degree assault must merge.
Underlying facts
When a defendant challenges the sufficiency of the evidence to support the jury's verdict, an appellate court must view the evidence (and all reasonable inferences to be drawn from it) in the light most favorable to upholding the verdict. We therefore present the evidence at Gates's trial in that light.
See, e.g., Joseph v. State, 293 P.3d 488, 491 (Alaska App. 2012).
Christopher Short had known Gates for many years, and they lived in adjoining trailers. Gates was a marijuana dealer (on a retail level), and Short had purchased small quantities of marijuana from Gates numerous times in the past. Gates would often "front" the marijuana to Short (that is, he would let Short buy the marijuana on credit). As a result, Short was deeply in debt to Gates for these marijuana sales — to the tune of approximately $7500.
Short was, himself, a marijuana grower, and he had sold his harvested marijuana to Gates in the past.
On the day of the shooting, Short went to Gates's residence because he was also in debt to his own brother, and he wanted to sell some marijuana to Gates to get some money to pay this debt. Short had only recently "chopped" (harvested) this marijuana, and the marijuana was still "wet" (i.e., it had not dried long enough to be smokable), so Short offered the marijuana to Gates at a discounted price — a quarter-pound for $800.
Gates had purchased "wet" marijuana from Short before, so Short expected Gates to buy his wet marijuana this time. But instead, Gates became enraged. He yelled at Short for trying to sell him wet marijuana, and he declared emphatically that he was not going to buy it. Gates also yelled at Short for owing him so much money.
According to Short's testimony, the two men stood up and yelled at each other face-to-face, and then they both sat down. Things were quiet for 30 seconds or a minute. Then Gates calmly got up, walked behind Short, and started to aim a .45 revolver at the back of Short's head.
Short reached for the gun, and he and Gates wrestled one another to the floor, with Short trying to dislodge the gun from Gates's grasp. Short lost his grip on the weapon, and Gates started shooting (while the men were still wrestling). One bullet struck Short's arm; the other shots missed.
Short ran from Gates's trailer — but, as he was running, he remembered that Gates also had an assault rifle. Short looked back, and he could see the barrel of this rifle emerging from Gates's door, so he dived into a raspberry patch on Gates's property. (The raspberry bushes were about six feet high.)
Gates came to the edge of his porch, overlookingthe raspberry patch. Short could not see Gates from inside the berry patch, but he could hear him. Short told Gates, "Calm down, Jerry. Calm down." But Gates told Short, "You'd better pay me my money, motherfucker." Then Gates shot the assault rifle in Short's direction. The bullets landed close enough to Short that they kicked dirt into his face. Then Gates went back inside — and Short ran out of Gates's yard and back to his house.
The shootingwas audible throughout the neighborhood, and several people called 911. During the ensuing investigation, the police entered Gates's trailer and found a bag containing about four ounces of dried marijuana sitting on top of a television. The police also found the revolver and the assault rifle.
The sufficiency of the evidence to support Gates's convictions for (1) possessing one ounce or more of marijuana for purposes of distribution, and (2) possessing a firearm during the commission of a felony drug offense
The evidence we have just described—the testimony that Gates was a drug dealer, that Short owed Gates thousands of dollars for past drugpurchases, that Short had sold harvested marijuana to Gates in the past, and the fact that the police found a four-ounce bag of dried marijuana in Gates's residence — was sufficient, if believed, to convince fair-minded jurors that (1) the bag of dried marijuana belonged to Gates, and (2) that Gates intended to sell or otherwise distribute the marijuana in this bag. The evidence was therefore legally sufficient to support Gates's conviction for fourth-degree controlled substance misconduct.
With regard to the weapons charge, the State had to prove, not only that Gates was engaged in a felony drug offense and that he possessed a firearm, but also that there was a nexus between the firearm and the drug offense. See Murray v. State, 54 P.3d 821, 824 (Alaska App. 2002).
Viewing the evidence in the light most favorable to the jury's verdict, this required nexus was established. According to the testimony at Gates's trial, (1) Gates kept commercial quantities of marijuana in his residence, (2) marijuana buyers regularly visited his residence, and (3) Gates kept a loaded .45 revolver concealed under a cushion of the couch in his living room. Based on this evidence, the jury could reasonably conclude that Gates possessed the four ounces of dried marijuana with intent to sell it or otherwise distribute it (which is a felony drug offense), and that Gates kept the revolver hidden in the couch so that this weapon would be handy in the event that trouble arose during a marijuana transaction (a connection sufficient to satisfy the "nexus" requirement that we described in Murray).
Whether Gates was entitled to rely on a claim of self-defense
Gates's remaining attack on the sufficiency of the evidence involves the question of whether he was entitled to rely on the defense of self-defense.
The legislature has declared in AS 11.81.330(a)(4) that the defense of self-defense is not available to someone who uses a deadly weapon (A) while acting in furtherance of a felony, or (B) while participating in a felony drug transaction.
Gates concedes that this statute would operate to bar him from relying on a claim of self-defense if the State proved that he was guilty of the felony drug offense and the weapons offense addressed in the preceding section of this opinion. But Gates argues that the evidence at his trial was not legally sufficient to support these two convictions — thus raising the possibility that the jurors declined to reach the merits of Gates's self-defense claim because they mistakenly concluded that Gates was guilty of the drug and weapons offenses.
However, as we explained in the preceding section of this opinion, the evidence was sufficient to support these two convictions. Accordingly, Gates's argument about self-defense is without merit.
Gates's claim that his convictions for attempted murder and third-degree assault must merge
Gates argues that, under the double jeopardy clause of the Alaska constitution, his convictions for attempted murder and third-degree assault must merge.
The attempted murder conviction was based on the State's allegation that, when Gates fired his revolver and then his assault rifle at Short, Gates was trying to kill him. The third-degree assault conviction was based on the evidence that one of the shots from Gates's revolver struck Short in the arm, thereby causing permanent nerve and muscle damage to Short's hand and arm.
In Starkweather v. State, 244 P.3d 522, 532 (Alaska App. 2010), we held that a defendant should not receive separate convictions for attempted murder and assault when the assault conviction was based on the injury inflicted on the victim during the murder attempt.
(More particularly, we concluded, based on the pertinent legislative history of AS 12.55.125(b), that when the Alaska legislature enacted a penalty range of 5 to 99 years for attempted murder, the legislature did not intend for defendants to receive a separate assault conviction for injuries inflicted on the victim during a murder attempt. Rather, the legislature intended for the amount or degree of injury inflicted on the victim to be an important factor in determining the severity of the defendant's sentence within the 5- to 99-year range. Id. at 532.)
In its brief to this Court, the State argues that Gates's attack on Short actually comprised two separate assaultive acts: (1) the initial series of shots that Gates fired at Short using his revolver, while Short was in Gates's trailer, and then (2) the additional shots that Gates fired at Short using his assault rifle, when Short fled from Gates's trailer, hid in the raspberry patch, and then ran back to his own home.
The State notes that Gates's assault conviction was based on the fact that Short was wounded in the arm by one of the revolver shots. The State then argues that the attempted murder charge was not based on the initial series of shots from the revolver, but rather was based solely on the additional shots that Gates fired at Short using his assault rifle.
Thus, according to the State, Gates's attempted murder conviction and his assault conviction do not merge, because they are based on two separate criminal acts.
The State's characterization of the events in this case is dubious. Neither Short nor Gates described the shooting as two separate incidents. Rather, both men described the shooting as a continuing event. And the Alaska Supreme Court's decision in Mill v. State, 585 P.2d 546 (Alaska 1978), suggests that this type of continuing event constitutes a single act of assault.
Mill involved a defendant and a victim who were at odds in a financial transaction. Mill followed the victim and found him in a cabin. Through a window of the cabin, Mill pointed a rifle at the victim and ordered him to come out. When the victim stepped out of the cabin, Mill shot him in the leg. Then Mill stood over the wounded victim with his rifle and ordered him to write a check to satisfy the debt.
Id. at 547-48.
At trial, the prosecutor argued that Mill's conduct amounted to three separate assaults: the initial pointing of the rifle, when Mill ordered the victim to come out of the cabin; then Mill's act of shooting the victim in the leg when he emerged from the cabin; and then Mill's act of threatening the wounded victim until he wrote the check. But the supreme court rejected this view of the law: "We view these events as a series of acts, in a short and continuous sequence, which amount to a unitary criminal episode." Id. at 552. The court declared that it was error for the prosecutor to argue that Mill's conduct constituted three separate assaults. Ibid.
Id. at 551. --------
Moreover, even if Mill were distinguishable and the State's characterization of the events in Gates's case were plausible, the fact remains that Gates's jury was never asked to decide whether the shooting was one continuing episode or two discrete acts. In such instances, the evidentiary ambiguity must be resolved in the defendant's favor, and separate convictions are not allowed, even though the prosecutor and the sentencing judge may have viewed the evidence as the State now suggests. See Wiglesworth v. State, 249 P.3d 321, 330 (Alaska App. 2011); Soundara v. State, 107 P.3d 290, 299 (Alaska App. 2005).
Conclusion
We direct the superior court to merge Gates's convictions for attempted murder and third-degree assault into a single conviction for attempted murder (and to re-sentence Gates on this merged conviction). With this exception, the judgement of the superior court is AFFIRMED. Judge MANNHEIMER, concurring.
I write separately to point out that the facts of Gates's case present an issue that the parties have not addressed — an issue related to the question of whether Gates could validly raise a claim of self-defense.
As explained in the lead opinion, AS 11.81.330(a)(4) declares that the defense of self-defense is not available to someone who uses a deadly weapon while acting in furtherance of a felony or while participating in a felony drug transaction. The State argues that, under this statute, Gates was disqualified from using a firearm in self-defense because Gates was engaged in a felony drug offense: possession of one ounce or more of marijuana with intent to distribute. And in his briefs to this Court, Gates concedes that this statute would bar him from relying on a claim of self-defense if the State proved that he was guilty of this drug offense (and, thus, also guilty of the separate felony of possessing a firearm in furtherance of a felony drug offense).
But Gates's concession of this point is problematic. The problem arises from the seeming lack of connection between Gates's felony drug offense and his use of force against Short.
Gates's felony drug charge was based on the allegation that there was a bag containing approximately four ounces of dried marijuana lying on Gates's television, and that Gates intended to sell or otherwise distribute this marijuana. But Gates possessed this bag of dried marijuana before Short ever came to his door to try to sell him the "wet" marijuana that Short had just harvested. And this bag of dried marijuana had nothing to do with Short's visit.
In other words, there was no evidence that, when Gates used a deadly weapon against Short, Gates was acting in furtherance of this marijuana-possession felony.
At Gates's trial, during the State's summation to the jury, the prosecutor relied on a different theory as to why the jury should find that Gates was barred from asserting self-defense. The prosecutor argued that Gates was a "participant in a felony drug transaction" because Short came to Gates's house attempting to sell him the wet marijuana.
But both Short and Gates testified that Gates refused to purchase the wet marijuana, and that Short had already ceased his efforts to sell the marijuana to Gates before the physical altercation between the two men commenced.
Short testified that Gates began assaulting him because Gates was angry that Short had tried to sell him "wet" marijuana, and also angry that Short was already so much in debt to him. Gates, for his part, testified that it was Short who became irrationally angry after Gates refused to purchase his marijuana, and that Short "sucker-punched" him when he wasn't looking. But under either version of events, it is unclear how the prosecutor was justified in arguing that Gates's use of the deadly weapons arose out of Gates's "participation" in a felony drug transaction.
I think the facts of Gates's case highlight why the limitation on self-defense codified in AS 11.81.330(a)(4)(B) should not apply unless the State proves (1) that the defendant was a willing participant in a felony drug transaction, and (2) that the defendant's use of the deadly weapon arose from the defendant's willing participation in the drug transaction. But these issues have not been raised, so I merely note them.