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Kone v. State

COURT OF APPEALS OF THE STATE OF ALASKA
Oct 31, 2018
Court of Appeals No. A-12254 (Alaska Ct. App. Oct. 31, 2018)

Opinion

Court of Appeals No. A-12254 No. 6725

10-31-2018

TIDIANE KONE, Appellant, v. STATE OF ALASKA, Appellee.

Appearances: Andrew Ott, Johnson Kamai & Trueb, LLC, Kodiak, under contract with the Office of Public Advocacy, Anchorage, for the Appellant. Terisia K. Chleborad, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, 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-12-8971 CR

MEMORANDUM OPINION

Appeal from the Superior Court, Third Judicial District, Anchorage, Kevin M. Saxby, Judge. Appearances: Andrew Ott, Johnson Kamai & Trueb, LLC, Kodiak, under contract with the Office of Public Advocacy, Anchorage, for the Appellant. Terisia K. Chleborad, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, and Allard and Wollenberg, Judges. Judge WOLLENBERG.

In August 2012, Lovie Houston and Adrian Beaver took property from Tidiane Kone. Kone later sought out Beaver and Houston and tried to reclaim his property. During this confrontation, Kone fatally stabbed Beaver and wounded Houston. Kone was convicted of first-degree murder for Beaver's death and second-degree and fourth-degree assaults against Houston.

Kone was separately charged with, and the jury found him guilty of, second-degree murder, but the trial court merged this count with Kone's first-degree murder conviction.

Kone now appeals.

Kone's claim that the evidence was insufficient to support his first-degree murder conviction

Kone first argues that the evidence presented at his trial was insufficient to support his conviction for first-degree murder. When we review the sufficiency of the evidence to support a criminal conviction, we view the evidence, and all reasonable inferences from that evidence, in the light most favorable to the jury's verdict. We therefore present the evidence in Kone's case in that light.

See Iyapana v. State, 284 P.3d 841, 848-49 (Alaska App. 2012).

On August 25, 2012, Tidiane Kone was riding his bicycle through Anchorage's Fairview neighborhood. At the time, Kone was wearing an ankle monitor with a Global Positioning System (GPS) that recorded his location every five minutes. At trial, the parties stipulated to the accuracy of the data provided by the GPS.

Kone approached a stranger, Lovie Houston, and asked if Houston could get some methamphetamine for his (Kone's) girlfriend. Houston called his friend, Adrian Beaver, and set up a meeting.

When Houston and Kone met up with Beaver, Beaver recognized Kone and became angry. He demanded to know the whereabouts of money that Kone had previously taken from him. When Kone showed Beaver his watch, Beaver took the watch. Kone then removed $600 in cash and his cell phone from his pocket, and Beaver took those as well. Kone reached for a bike lock and used it to strike Beaver in the head. After a brief struggle, Kone left the scene.

Kone returned to his residence at the Econo Lodge, a few blocks away. GPS data from his ankle monitor showed that, approximately seventy minutes later, Kone left the Econo Lodge and began traveling around the general area where he had last encountered Beaver and Houston.

Houston and Beaver saw Kone riding toward them. When Houston asked Beaver what they should do, Beaver replied, "We'll just have to whip his ass."

Kone threw his bike down and demanded the return of his belongings. When Beaver refused, Kone pulled a knife from his pocket and started swinging it at Beaver. Beaver initially leaned out of the way but then turned and ran.

Kone began chasing Beaver, repeatedly cutting at the air as he ran. Kone eventually caught up with Beaver and stabbed him with the knife. Beaver collapsed to the ground, and Kone then began searching through Beaver's pockets.

Houston ran up and told Kone to get off of Beaver. Kone then attacked Houston with the same knife — which now had a broken blade — and cut Houston's neck. Houston fought back, and Kone eventually ran toward his bike and rode away.

A resident who lived on that street saw Kone chase Beaver into the fence outside of her apartment building. She observed that the men started fighting and "swinging" at each other until one of them collapsed.

The police arrived shortly thereafter, eventually locating and arresting Kone. Beaver died from his injuries.

To establish Kone's guilt of first-degree murder, the State had to prove that Kone intentionally caused Beaver's death. Because Kone raised the defense of self- defense, the State also had to prove that Kone was not acting in self-defense when he killed Beaver.

AS 11.41.100(a)(1).

See AS 11.81.330 & AS 11.81.335; Morrell v. State, 216 P.3d 574, 577-78 (Alaska App. 2009).

On appeal, Kone does not challenge the jury's finding that he caused Beaver's death. Rather, he argues that the evidence was legally insufficient to disprove that he acted in self-defense and legally insufficient to establish that he intended to kill Beaver.

In particular, Kone points to Beaver's robbery of Kone, Beaver's stated intent to "whip" Kone when Kone returned to the scene, and Kone's assertion that it was Beaver (not Kone) who brought the knife to the fight as evidence demonstrating that Kone was not the initial aggressor, and that instead, Kone's conduct was purely defensive.

But Kone's arguments rest heavily on his own testimony and a view of the evidence that favors his version of events. When we review the sufficiency of the evidence, we do not reweigh the evidence or judge the credibility of witnesses.

Morrell, 216 P.3d at 576.

Even if the jury believed that Beaver brought the knife to the encounter and that Kone had disarmed Beaver, the evidence showed that Kone chased Beaver and attacked him as he fled. The medical examiner testified that Beaver was stabbed or cut at least fifteen times — at least seven times in the chest and abdominal regions and at least once in his back. Viewed in the light most favorable to the jury's verdict, this evidence was sufficient to convince fair-minded jurors beyond a reasonable doubt that Kone went looking for Beaver, that he attacked Beaver even after Beaver retreated, and that he acted with the intent to kill.

We therefore conclude that the evidence at Kone's trial was legally sufficient to support Kone's first-degree murder conviction.

Kone separately argues that there was insufficient evidence to support the jury's verdict for second-degree murder. But because the trial court merged the second-degree murder count with Kone's first-degree murder conviction, and because we conclude that there was sufficient evidence to support Kone's first-degree murder conviction, we reject Kone's argument that the State presented insufficient evidence to convict him of second-degree murder.

Kone's claim that the superior court abused its discretion in declining to give a defense of property instruction

At trial, the superior court instructed the jury on the right to use force in self-defense. Prior to deliberations, Kone's attorney asked the judge to instruct the jury on the use of non-deadly force in defense of property. He proposed the following instruction:

See AS 11.81.330 & AS 11.81.335.

A defendant may also use nondeadly force upon another person when and to the extent the defendant reasonably believes it is necessary to terminate what the defendant reasonably believes to be the commission or attempted commission by the other person of an unlawful taking or damaging of property or services. However, once the property has been taken, a defendant may not use force to recover it.
Kone's attorney argued that when Kone re-encountered Beaver, and Beaver refused to return Kone's property, Beaver committed a new crime (i.e., a new "taking") that entitled Kone to use non-deadly force to recover his property. Kone's attorney maintained that a jury instruction was necessary so that the jury would know that it was permissible for Kone to use force to reclaim his property at that time.

The superior court declined to give the proposed instruction. The court rejected Kone's argument that a new crime of theft occurs each time the rightful property owner demands his property back and is rebuffed. Relying on our decision in Woodward v. State, the court noted that the crime of theft is not a continuing offense, but rather is complete when a person appropriates the property of another.

See Woodward v. State, 855 P.2d 423, 428 n.14 (Alaska App. 1993).

Kone now challenges the trial court's refusal to give his requested instruction.

On appeal, Kone abandons the argument that Beaver's refusal to return his property constituted a new crime. Instead, Kone argues that he was still in "hot pursuit" when, seventy minutes later, he re-encountered and confronted Beaver and Houston.

Under AS 11.81.350(a), the statute upon which Kone's proposed instruction was based, "[a] person may use nondeadly force upon another when and to the extent the person reasonably believes it is necessary to terminate what the person reasonably believes to be the commission or attempted commission by the other of an unlawful taking or damaging of property or services." In Woodward, we said that this statute "applies only to offenses that are about to be committed or are actually being committed." We noted that this interpretation was in keeping with the "traditional view" that a theft victim is allowed to use force to recapture property only if the victim acted "immediately after the dispossession [of property] or upon hot pursuit."

Id.

Id. (citing 1 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 5.9(d), at 672 (1986)).

Kone did not raise a "hot pursuit" argument in the trial court. In fact, his attorney's argument in the trial court — that a new "taking" occurred when Beaver refused to return Kone's property during the second encounter — contradicts Kone's current claim that he was still in hot pursuit of Beaver from the original taking. Kone must therefore show plain error.

The trial court did not commit obvious error in failing to give Kone's proposed instruction based on a theory of hot pursuit. The record shows that Kone left Beaver and Houston after they robbed him, that he stayed at the Econo Lodge for over an hour, and that he then returned to search for Beaver. Thus, by the time Kone again confronted Beaver, there had been a substantial break in time. Kone was not entitled to return to the scene of the robbery and attempt to recover his property through the use of force an hour after the taking was complete.

We conclude that the trial court did not commit plain error when it failed to give Kone's requested instruction under a "hot pursuit" theory that Kone's attorney never articulated.

Kone's excessive sentence claim

Lastly, Kone challenges his composite sentence as excessive. Kone faced a sentencing range of 20 to 99 years for his first-degree murder conviction. As a second felony offender, he faced a presumptive range of 4 to 7 years for his second-degree assault conviction. And he faced up to 1 year for his fourth-degree assault conviction. (At sentencing, the prosecutor argued that the two counts of assault against Houston involved distinctly different acts and did not merge; Kone did not contest this claim.)

Former AS 12.55.125(a) (pre-2016 version).

Former AS 12.55.125(d)(3) (pre-2016 version).

Former AS 12.55.135(a) (pre-2016 version).

The court weighed the Chaney criteria in light of the facts of the case and Kone's criminal history. At the time of sentencing, Kone was thirty-three years old. He had nine prior convictions, including four assault convictions.

See State v. Chaney, 477 P.2d 441, 444 (Alaska 1970).

The superior court acknowledged that initially, Kone and Beaver appeared to have had "a mutual desire to engage in violence." The court also found that it was very likely that both Kone and Beaver came to the confrontation armed, but that it was probably Kone who brought the knife that was recovered from the scene. Ultimately, however, the court did not find the question of the knife's ownership to be of great significance to the sentencing decision.

Rather, the court weighed heavily the fact that, at a point in time when Kone clearly had control of the knife, he pursued Beaver even after Beaver had retreated, and he persisted in attacking him. The court characterized Kone's actions as "an impassioned, rage-driven hunting down of someone who'd beaten and humiliated him earlier in the day."

The court found that the rage Kone exhibited in this case was emblematic of Kone's larger problem with anger and rage. The court noted that one of Kone's earliest criminal convictions stemmed from his act of striking a stranger on the street, and that his conduct had since escalated to crimes of domestic violence. As a result, the court concluded that Kone's rehabilitative potential was "extremely low" and that "more people are likely to be attacked unless [Kone is] confined." Accordingly, the court's primary concern was protecting the public. The court also noted that Kone committed this offense while on ankle monitoring, indicating that there was little that could deter Kone once he got angry.

The court found that the assaults on Houston were particularly serious because Houston was intervening to try to save someone else's life.

The court sentenced Kone to 60 years to serve on the first-degree murder conviction, 7 years to serve on the second-degree assault conviction, and 1 year to serve on the fourth-degree assault conviction, all running consecutively — a composite sentence of 68 years to serve.

Kone challenges his composite sentence as excessive.

In particular, Kone challenges the superior court's view that the homicide was the product of Kone's rage and aggression rather than an honest but unreasonable belief in the need to use self-defense. But having observed the witnesses at trial, the superior court rejected Kone's mitigated version of events, and we cannot find that the superior court clearly erred in failing to give Kone's version more weight.

In assessing a composite sentence for two or more criminal convictions, we must decide "whether the combined sentence is clearly mistaken, given the whole of the defendant's conduct and history." The "clearly mistaken" standard is "founded on two concepts: first, that reasonable judges, confronted with identical facts, can and will differ on what constitutes an appropriate sentence; [and] second, that society is willing to accept these sentencing discrepancies, so long as a judge's sentencing decision falls within a permissible range of reasonable sentences."

Brown v. State, 12 P.3d 201, 210 (Alaska App. 2000).

Erickson v. State, 950 P.2d 580, 586 (Alaska App. 1997) (internal quotations omitted). --------

Here, the superior court engaged in an extensive analysis of the facts of the case and the Chaney criteria. Although Kone takes issue with two of the court's factual findings, ultimately the most critical factor for the superior court was the fact that Kone chased Beaver even after Beaver had retreated from the altercation. After reviewing the totality of the superior court's findings and the sentencing record as a whole, we cannot conclude that the combined sentence imposed by the court is clearly mistaken.

Conclusion

The superior court's judgment is AFFIRMED.


Summaries of

Kone v. State

COURT OF APPEALS OF THE STATE OF ALASKA
Oct 31, 2018
Court of Appeals No. A-12254 (Alaska Ct. App. Oct. 31, 2018)
Case details for

Kone v. State

Case Details

Full title:TIDIANE KONE, Appellant, v. STATE OF ALASKA, Appellee.

Court:COURT OF APPEALS OF THE STATE OF ALASKA

Date published: Oct 31, 2018

Citations

Court of Appeals No. A-12254 (Alaska Ct. App. Oct. 31, 2018)