Summary
recognizing that assault and first-degree failure to stop — eluding the police while driving recklessly — serve separate societal interests
Summary of this case from Baines v. StateOpinion
A-13348 A-13367
03-30-2022
DAVID JOHN GRAF JR., Appellant/Cross-Appellee, v. STATE OF ALASKA, Appellee/Cross-Appellant.
Elizabeth D. Friedman, Law Office of Elizabeth D. Friedman, Redding, California, under contract with the Office of Public Advocacy, Anchorage, for the Appellant/Cross-Appellee. Michal Stryszak, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Clyde Ed Sniff en Jr., Acting Attorney General, Juneau, for the Appellee/Cross-Appellant.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court Trial Court No. 3AN-17-06908 CR, Third Judicial District, Anchorage, Michael D. Corey, Judge.
Elizabeth D. Friedman, Law Office of Elizabeth D. Friedman, Redding, California, under contract with the Office of Public Advocacy, Anchorage, for the Appellant/Cross-Appellee.
Michal Stryszak, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Clyde "Ed" Sniff en Jr., Acting Attorney General, Juneau, for the Appellee/Cross-Appellant.
Before: Wollenberg, Harbison, and Terrell, Judges.
MEMORANDUM OPINION
HARBISON, JUDGE.
A jury found David John Graf Jr. guilty of third-degree misconduct involving weapons (for possessing a handgun after having been convicted of a felony) and fourth-degree assault (for placing his ex-girlfriend, Elana Cranston, in fear of 1 imminent physical injury) based on events that occurred on August 3 0, 2017. The same jury found Graf guilty of reckless driving, first-degree failure to stop at the direction of a peace officer (for knowingly failing to stop as soon as practical when signaled to do so by a peace officer, while committing the crime of reckless driving), and third-degree assault (for recklessly placing another woman, Lisa Felber, in fear of serious physical injury by means of a dangerous instrument) based on events that occurred the following day. The trial court merged the jury's verdicts for reckless driving, failure to stop, and third-degree assault into a single conviction for third-degree assault.
AS 11.61.200(a)(1) and AS 11.41.230(a)(3), respectively.
AS28.35.400, AS28.35.182(a)(1), and AS 11.41.220(a)(1)(A), respectively. The jury also convicted Graf of unlawful contact in violation of AS 11.56.750(a)(1)(A), but Graf does not challenge that conviction and it is not directly relevant to the issues on appeal.
On appeal, Graf raises two challenges to his conviction for third-degree misconduct involving weapons. First, Graf argues that there was insufficient evidence to support this conviction. Second, Graf argues that this conviction was inconsistent with the jury's decision to acquit him of third-degree assault and second-degree misconduct involving weapons. For the reasons discussed in this opinion, we reject these claims.
The State cross-appeals, arguing that the superior court erred by merging the jury's verdicts for first-degree failure to stop and third-degree assault into a single conviction for third-degree assault. We agree. Accordingly, we remand this case for entry of a separate conviction for first-degree failure to stop, in addition to resentencing. 2 On remand, the superior court may not increase Grafs overall sentence, as it is not necessary to do so in order to correct the illegality.
The State acknowledges that the count of reckless driving properly merged with the crime of first-degree failure to stop.
See Joseph v. State, 712 P.2d 904, 906 (Alaska App. 1986) (holding that a court may increase an illegal sentence on remand only to the extent necessary to correct the illegality).
Background facts and proceedings
On August 30, 2017, David John Graf Jr. and Elana Cranston parked Cranston's minivan outside an office building near Cranston's children's school and had a heated argument. After the argument, Cranston went into the school, accompanied by her two children, and told the school secretary that Graf had just threatened to shoot her. The secretary called 911, and Cranston then described the incident to both the 911 operator and to a police officer who responded to the call.
The charges against Graf arose out of this interaction. During the trial, the jury heard four separate accounts provided by Cranston: (1) her statements to the 911 operator, (2) her statements to the responding police officer, (3) her grand jury testimony, and (4) her trial testimony. Grafs defense relied heavily on the inconsistencies in these different accounts.
The State's theory of the case was based on the statements Cranston made to the 911 operator and to the responding police officer. The jury first heard a recording of Cranston's conversation with the 911 operator. The 911 call was originally placed by the school secretary, but after a short time, the 911 dispatcher asked to talk to Cranston.
The school secretary told the dispatcher that Cranston had come into the office and reported that her ex-boyfriend was out in the parking lot, threatening to shoot her. On the recording, the secretary can be heard asking Cranston whether she saw a weapon, and Cranston replied that she had. The dispatcher then asked what kind of gun 3 Graf had, and Cranston replied, "If s probably a nine millimeter." The dispatcher asked, "What do you mean probably? Did you see it?" and Cranston replied, "Yeah. It's a little black handgun." Cranston explained that Graf had a gun but did not point it at her, and the dispatcher again asked whether Cranston had seen the gun. Cranston replied that she had, that Graf had it in his waistband, and that he had shown the gun to her.
The jury also heard a recording of statements about the incident that Cranston made to the responding police officer. In these statements, Cranston claimed that Graf had "grabb[ed]" a gun and, while doing so, he told her that he had "half a mind to drop [her] in front of all these kids."
In contrast, the jury also heard that, when Cranston testified before the grand jury, she claimed that she did not remember seeing Graf with a gun that day, that she did not remember telling the officer that she saw Graf with a gun, and that she could not remember whether Graf threatened to shoot anyone. Instead, Cranston testified that Graf threatened to "kick [her] ass."
Lastly, the jury heard Cranston's trial testimony. On direct examination, Cranston again testified that Graf told her that he would kick her ass. She also testified that Graf told her that he was planning to put her in a room with another person, ask them questions about their former relationship, and then put a bullet in their heads if their stories did not match. After having her memory refreshed, Cranston testified that Graf accompanied her to the school parking lot and told her that he had "half a mind to drop [her] in front of all these kids." Cranston told the jury that she did not see a gun, but she thought Graf had a gun because he usually carried one. Cranston testified that, during their argument, Graf gestured toward his waistband (where she thought the gun would be).
On cross-examination, Cranston testified that she was not sure where the argument took place and that Graf might have made his threatening remarks in the 4 parking lot, on the trail that led to the school, or in the minivan. Cranston also acknowledged that the State had granted her immunity from prosecution for the crimes of perjury and making a false report to a police officer, as long as she testified honestly during the trial.
The jury found Graf guilty of third-degree weapons misconduct (for possessing a handgun after being convicted of a felony), but not guilty of second-degree weapons misconduct (for possessing a handgun on school grounds after being convicted of a felony). The jury also found him not guilty of third-degree assault (for recklessly placing Cranston in fear of imminent serious physical injury by means of a gun), but guilty of a lesser included charge of fourth-degree assault (for recklessly placing Cranston in fear of imminent physical injury).
After the jury returned its verdicts but before the jury was discharged, Graf moved for a judgment of acquittal on the third-degree weapons misconduct charge (the charge alleging that he possessed a handgun after being convicted of felony). Graf argued that there was insufficient evidence to support this conviction. He also asserted that the guilty verdict for this offense was inconsistent with the jury's verdicts finding him not guilty of second-degree weapons misconduct and third-degree assault. The trial court denied this motion, concluding that the evidence was sufficient and that the verdicts were not logically inconsistent.
As we have explained, the jury also considered a second set of charges that were joined for trial with the charges involving Cranston. The additional charges were based on an incident that occurred on August 31, 2017 - the day after Graf threatened Cranston.
As support for the second set of charges, the State presented evidence that, after Graf threatened Cranston, he drove away in her minivan, taking her cell phone and keys with him. Cranston then went to stay at the home of her friend, Lisa Felber. The 5 next day, Cranston and Felber contacted Graf and asked him to bring the minivan and Cranston's other property to Felber's apartment.
Felber testified that, when Graf arrived at Felber's apartment, he began honking the horn and demanding that Cranston come down to see him. Felber and Cranston contacted 911, and then Felber went out to distract Graf until the police could respond. According to Felber, she talked to Graf for several minutes, sitting in the back seat with her feet hanging out the open sliding door. But when they could see and hear the police cars arriving at their location, Graf drove away "really fast" with Felber still sitting inside by the open door.
Felber testified that she asked Graf to stop, but he refused, telling her that if she wanted to get out, she would have to jump. Graf led the police on a chase through a nearby residential neighborhood for several minutes, driving over grassy areas and down two roads. Felber testified that, as Graf was driving, she thought she would die. Graf eventually left the road, driving over the sidewalk and into a marshy area where the minivan became stuck. Graf abandoned the vehicle and attempted to escape on foot, but he was quickly captured by a police K-9 unit.
Felber testified that she was in the car the entire time that Graf was eluding the police and that she passed out when Graf drove into the swamp. She also testified that, during the chase, her leg became bruised and her body hurt for days afterward. Following the incident, Felber was briefly admitted to the hospital for minor injuries.
For this conduct, the jury found Graf guilty of third-degree assault (for recklessly placing Felber in fear of serious physical injury by means of a dangerous instrument - i.e., the minivan), first-degree failure to stop at the direction of a peace officer, and reckless driving. 6
At sentencing, over the State's objection, the trial court merged the failure to stop and reckless driving with the third-degree assault, and sentenced Graf to 5 years with 3 years suspended (2 years to serve) for this merged conviction.
Why we reject Graf's challenges to his conviction for third-degree misconduct involving weapons
On appeal, Graf raises two challenges to his conviction for third-degree misconduct involving weapons - i.e., that he possessed a concealable firearm after having been convicted of a felony.
First, Graf argues that there was insufficient evidence to support his conviction. To convict Graf of third-degree weapons misconduct under AS 11.61.200(a)(1), the State was required to prove that: (1) Graf knowingly possessed a firearm capable of being concealed on his person; (2) Graf had been previously convicted of a felony; and (3) Graf was aware of, or recklessly disregarded, the fact that he was a convicted felon. The parties stipulated to the second element, and Graf did not dispute the third. Instead, Graf renews his argument that there was insufficient evidence of the first element: that he possessed a handgun on August 30, 2017.
See Afcan v. State, 711 P.2d 1198, 1199 (Alaska App. 1986).
When assessing the sufficiency of the evidence to support a conviction, this Court views the evidence in the light most favorable to the verdict. We then ask whether a reasonable juror could find that the State had proved the defendant's guilt 7 beyond a reasonable doubt. We do not assess witness credibility or weigh evidence, instead leaving that responsibility to the fact-finder.
Lawrence v. State, 269 P.3d 672, 675 (Alaska App. 2012).
Id.
Morrell v. State, 216 P.3d 574, 576 (Alaska App. 2009).
Graf argues that the evidence was insufficient because Cranston testified at trial that she never saw a gun and instead "inferred" its presence from Grafs threats to shoot her and his gesture towards his waistband. But Graf overlooks the other evidence presented at trial. In particular, Cranston told both a 911 operator and the responding police officer that she saw Graf with a handgun on the day of the incident. During her conversation with the 911 operator, Cranston described the gun as a "little black handgun" and said that it was "probably a nine millimeter." Viewing this evidence in the light most favorable to the jury's verdict, we conclude that there was sufficient evidence to establish that Graf possessed a handgun that day.
Graf next argues that this conviction is inconsistent with the jury's acquittals for third-degree assault (recklessly placing Cranston in fear of imminent serious physical injury by means of a dangerous instrument) and second-degree misconduct involving weapons (possessing a concealable firearm while on school grounds after having been convicted of a felony). Graf contends that these acquittals, when considered in combination with his conviction for the lesser included offense of fourth-degree assault, are inconsistent with a finding that he possessed a handgun on August 30, 2017.
Under Alaska law, verdicts are inconsistent when there is an "obvious and unmistakable inconsistency." But if the verdicts can be logically reconciled with the 8 evidence, then they are not inconsistent. Accordingly, "unless verdicts are 'irreconcilably in conflict,' meaning 'necessarily or strictly inconsistent,' they must be upheld."
Roberts v. State, 680 P.2d 503, 506 (Alaska App. 1984).
Born v. State, 633 P.2d 1021, 1024-25 (Alaska App. 1981).
Brown v. Anchorage, 915 P.2d 654, 660 (Alaska App. 1996) (citing Davenport v. State, 543 P.2d 1204, 1207 (Alaska 1975); DeSacia v. State, 469 P.2d 369, 378 (Alaska 1970)).
We conclude that the jury's verdicts are not logically inconsistent. At trial, the jury heard Cranston's different descriptions of Grafs conduct on August 30 - namely, her statements immediately after the incident (in which she said that Graf had a gun) and her grand jury and trial testimony (when she was more equivocal as to whether Graf had a gun). At trial, Cranston acknowledged that her argument with Graf could have occurred on the trail leading to the school or even in the minivan, rather than in the school parking lot.
The jury reasonably could have credited some, but not all, of Cranston's statements about the incident. For example, the jury could reasonably have determined that Cranston saw Graf carrying a gun (resulting in the guilty verdict for third-degree weapons misconduct), but that he did not enter the school grounds (resulting in the acquittal for second-degree weapons misconduct). Similarly, the jury could reasonably have believed that Graf placed Cranston in fear of imminent injury when he told her he would "kick [her] ass," but that Graf neither told Cranston that he would "drop" her nor gestured toward the gun (resulting in the acquittal for third-degree assault but guilty verdict for the lesser included offense of fourth-degree assault).
We accordingly reject Grafs claims that the verdicts are inconsistent. 9
Why we conclude that the trial court erred by merging Graf's convictions for third-degree assault and first-degree failure to stop at the direction of a peace officer
The prohibition on double jeopardy protects against multiple punishments for the same offense. In this case, the trial court determined that merger was necessary to avoid subjecting Graf to multiple punishments for the same offense. On appeal, the State does not challenge the court's decision to merge the reckless driving count with the failure to stop count. However, the State does argue that these counts should not have also merged with the third-degree assault count.
Johnson v. State, 328 P.3d 77, 86 (Alaska 2014).
Although the State argued against merger in its sentencing memorandum, Graf asserts that the State did not preserve this issue for appeal. Graf claims that the State did not provide a sufficient legal argument to allow the trial court to intelligently rule upon its objection. While we agree that the State could have presented a more robust argument on the merger issue during the trial court proceedings, we conclude that the issue is preserved for appeal. Moreover, a trial court's ruling on how many convictions are supported by the given facts is a legal decision, not an exercise of sentencing discretion; when a sentencing judge wrongly merges two convictions, the State is entitled to an order directing the trial court to reinstate the merged conviction and to sentence the defendant for the separate offense. See By ford v. State, 352 P.3d 898, 904 (Alaska App. 2015).
In Whitton v. State, the Alaska Supreme Court established the test for determining whether two crimes constitute the "same offense" for purposes of double punishment. Under that test, a court must compare the different statutory provisions as applied to the facts of the case and evaluate any differences in intent or conduct in light of the societal interests to be vindicated. If the differences in intent or conduct are 10 "insignificant or insubstantial" in relation to the societal interests, the court may only enter a single conviction and sentence.
Whitton v. State, 479 P.2d 302, 312 (Alaska 1970).
Id.
Id. at 312, 314; see also Rofkar v. State, 273 P.3d 1140, 1143 (Alaska 2012).
As we have explained, the jury found Graf guilty of third-degree assault under AS 11.41.220(a)(1)(A) - for recklessly placing Felber in fear of serious physical injury by means of a dangerous instrument (i.e., the minivan). The jury also found Graf guilty of first-degree failure to stop at the direction of a peace officer under AS 28.35.182(a)(1) - for knowingly failing to stop the minivan as soon as practical when signaled to do so by a peace officer and, during this offense, committing the crime of reckless driving (i.e., driving in a manner that created a substantial and unjustifiable risk of harm to persons or property).
The assault statutes protect against acts of violence that are directed against individual victims. In contrast, first-degree failure to stop under AS 28.35.182(a)(1) - eluding the police while driving recklessly - protects against risks to the safety of the public at large. Indeed, the legislature has expressed its view that eluding the police is "inherently dangerous for pedestrians, other drivers and innocent bystanders." The legislature has also recognized that the hazards created by reckless driving - a crime 11 that does not require that any person be actually injured or placed in fear of injury - are distinct from the individual interests protected by the assault statute. Thus, the act of failing to stop at the direction of a peace officer while driving recklessly is generally distinct enough from third-degree assault to constitute a separate crime for double jeopardy purposes.
Cronce v. State, 216 P.3d 568, 571 (Alaska App. 2009); see also Cooper v. State, 595 P.2d 648, 649 (Alaska 1979) (holding that a single assaultive act can constitute a separately punishable assault for each victim).
Calder v. State, 619 P.2d 1026, 1028 (Alaska 1980) ("Reckless driving involves risks to the safety of the public at large, while assault with a dangerous weapon" - in Calder, a car - involves the "placing of another in fear for [their] safety.").
Minutes of House Finance Comm., House Bill 405, statement by James Hornaday, Staff to Representative Pete Kott (Apr. 30, 1998); Minutes of House Judiciary Comm., House Bill 405, statement by James Hornaday, Staff to Representative Pete Kott (March 4, 1998).
AS 28.35.400; Comeau v. State, 758 P.2d 108, 116 (Alaska App. 1988).
As originally enacted in 1998, the crime of first-degree failure to stop prohibited the act of eluding an officer if "during the commission of that offense, the person violate[d] a traffic law or commit[ted] another crime." SLA 1998, ch. 136, § 1. The statute was amended to its current form in 2002. SLA 2002, ch. 93, § 1. See, e.g., Minutes of House Judiciary Comm., House Bill 405, statement by Representative Brian Porter (distinguishing between reckless driving, which creates a "hazardous situation," and assault, which requires an individual victim); see also id., testimony of Assistant Attorney General Anne Carpeneti (stating that the bill, which first enacted the crime of first-degree failure to stop at the direction of a peace officer, "addresses something else besides assault. It addresses conduct... where a person is asked to pull over by a police officer and knowingly refuses to do so and drives on and violates more laws not necessarily assaulting anybody, but creates the danger that might result in a crash.").
This remains true under the facts of Grafs case. Grafs conviction for third-degree assault rested on the fact that he endangered Felber specifically by driving while Felber was sitting in the back with the door open, in fear of death or serious physical injury. By contrast, Grafs failure to stop conviction rested on evidence that Graf endangered officers, the public at large, and property when he ignored the officers' directions to stop while driving recklessly down several residential streets, across a grassy area, over a sidewalk, and into a swamp.
In other words, Grafs conviction for failure to stop was not based on the risk that Felber might suffer injury; rather, it was based on the fact that Grafs actions created a risk of harm to all people and property in the area. We therefore conclude that the trial court incorrectly merged the assault conviction and the failure to stop conviction. 12
Because double jeopardy protections do not prohibit the imposition of separate convictions, and separate sentences, for the crimes in this case, we must remand this case to the trial court for entry of a separate conviction for first-degree failure to stop and to sentence Graf for this separate offense.
See Byford v. State, 352 P.3d 898, 904 (Alaska App. 2015) (when a sentencing judge wrongly merges two convictions the State is entitled to an order directing the trial court to reinstate the merged conviction and to sentence the defendant for this separate offense).
However, we have previously explained that, "if an order increasing an unlawful sentence can ever be justified, it will only be when the increase is actually necessary to correct the illegality - that is, when there is no lawful way for the court to carry out its original sentencing intent."
Joseph v. State, 712 P.2d 904, 906 (Alaska App. 1986).
Here, it is possible for the court to correct the improper merger without increasing Grafs sentence. The applicable sentencing range for each of these offenses is 2 to 5 years, and no provision of law requires that the terms of imprisonment be served consecutively.
.See former AS 12.55.125(e)(3) (pre-July 2019 version). Both third-degree assault under AS 11.41.220(a)(1)(A) and first-degree failure to stop under AS 28.35.182(a)(1) are class C felonies, and Graf has three prior felony convictions.
See AS 12.55.127(c).
We accordingly direct the trial court to correct the illegality in Grafs sentence without increasing his composite sentence.
Conclusion
We REMAND this case to the superior court. On remand, the superior court must enter separate convictions for first-degree failure to stop and third-degree 13 assault in connection with the August 31, 2017 events. (The reckless driving count shall remain merged with Grafs conviction for first-degree failure to stop.) The superior court shall resentence Graf, but the composite sentence imposed may not exceed the original sentence imposed by the court. In all other respects, we AFFIRM the judgment of the superior court. 14