Opinion
Court of Appeals No. A-9895.
July 9, 2008.
Appeal from the District Court, Third Judicial District, Anchorage, J. Patrick Hanley, Judge, Trial Court No. 3AN-06-7767 CR.
James V. Gould, Gorton, Logue, and Graper, Anchorage, for the Appellant. Amy K. Doogan, Assistant Municipal Prosecutor, and James N. Reeves, Municipal Attorney, Anchorage, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
After a bench trial in the district court, Steven E. Lake was convicted of domestic violence assault, family violence, and resisting or interfering with a peace officer. Lake appeals, arguing the trial court erred in admitting a recording of a police interview of a young witness. Lake also challenges the sufficiency of the evidence supporting his convictions for domestic violence assault and family violence. And he argues that the order the police gave him was not a "lawful" order and that he could not be convicted of resisting or interfering with a police officer for violating that order. For the reasons expressed below, we affirm Lake's convictions.
Anchorage Municipal Code (AMC) 8.10.010(B)(1).
AMC 8.10.050.
AMC 8.30.010(A)(6).
Facts and proceedings
The Anchorage Police Department responded to reports of a disturbance at an apartment building in Mountain View. The first call was an anonymous report of a child crying and a woman screaming that there was a killer and she was being hurt. Lake then called to report that Joyce Field had locked him out of their apartment and that children were in the apartment with Field. The police were also alerted to a possible suicide attempt.
When officers arrived at the apartment building, several adult males were outside, and the officers could hear a female yelling from one of the apartments. Lake, one of the men outside the building, identified himself to the officers. The apartment building, a four-plex with a common entry, has a small entry area and stairs that lead to the two upstairs apartments. According to the officers, it was clear when they arrived on the scene that Lake had been drinking. They testified that Lake was upset and wanted back into his apartment. When the officers climbed the stairs to the upstairs apartment to investigate the reports, Lake went with them. The officers ordered Lake to go downstairs at least three to four times.
Despite multiple instructions to go to the bottom of the stairs, Lake followed the officers up the stairs toward the apartment. When the officers warned Lake that he would be arrested if he did not go downstairs, Lake told the officers "go ahead and arrest me." One officer handcuffed Lake and took him downstairs while the other officers investigated the reports.
Officers contacted Field and the three children in the apartment. While one officer interviewed Field, Anchorage Police Officer Eric Smith interviewed ten-year-old Zachary Field. During Smith's interview of Zachary, Field objected to the interview of the child and yelled at the child to "shut up."
The Municipality ultimately charged Lake with domestic violence assault, family violence, and resisting or interfering with a peace officer for assaulting Field while the children were present and for refusing to go downstairs when the police ordered him to do so. Lake waived his right to a jury trial.
At a bench trial before District Court Judge J. Patrick Hanley, Field objected to the fact that the police had interviewed her ten-year-old son outside her presence and over her objection. Zachary testified that he did not remember anything that happened on the night in question. Over Lake's objection, the court allowed the Municipality to impeach Zachary's trial testimony with the recording of his interview with the police. In that interview, Zachary described Lake's assault on his mother.
The court found Lake guilty of all three charges, and Lake appeals.
Admission of Zachary's taped statement
Lake argues the police interview of Zachary was obtained in violation of Zachary's and Field's constitutional rights. He argues the police violated Field's rights by continuing to interview Zachary after Field objected to the interview. And he claims the police violated Zachary's right to be free from unreasonable searches and seizures by recording the interview without a warrant and without Zachary's or his parent's consent.
In district court, Lake explicitly waived his claim that the police violated Field's constitutional rights by interviewing Zachary after Field objected to the interview. Lake brought this issue to the attention of the trial court on the morning trial was scheduled to start. Judge Hanley invited Lake to file a motion on the issue and continued the trial for almost a month. When the court reconvened, Lake's attorney announced he had discussed the issue with his colleagues and had "decided not to file any motions in this case on behalf of the defendant." Mid-trial, when Lake tried to raise the issue again, Judge Hanley found Lake had waived the issue by failing to brief it when given the opportunity to do so. Lake thus did not obtain a ruling from the trial court on the issue, and he does not challenge on appeal the court's finding that he waived the issue. Because Lake did not preserve this issue for appeal, we will not address it further.
See Mahan v. State, 51 P.3d 962, 966 (Alaska App. 2002) ("We have consistently held that a defendant who chooses to proceed without demanding a ruling from the trial court waives the potential claim of error."); Marino v. State, 934 P.2d 1321, 1327 (Alaska App. 1997) (defendant proceeded to trial without demanding a ruling on his discovery request and, therefore, did not preserve the issue for appeal); Erickson v. State, 824 P.2d 725, 733 (Alaska App. 1991) (because defendant failed to press the trial judge for a ruling on his motion to suppress his statements to the police, he did not properly preserve the issue); Jonas v. State, 773 P.2d 960, 963 (Alaska App. 1989) (defendant proceeded to trial without demanding a ruling on his motion for psychiatric evaluations of the complaining witnesses and, therefore, forfeited this motion).
Lake also argues the police violated Zachary's rights when Officer Smith recorded his interview of Zachary without a Glass warrant and without consent by Zachary or Field. In City and Borough of Juneau v. Quinto, our supreme court ruled that the privacy and search and seizure clauses of the Alaska Constitution do not require that a uniformed police officer obtain a Glass warrant to record a conversation with a suspect. In any event, Lake has no standing to assert a violation of Zachary's constitutional rights or Field's rights as Zachary's parent. To assert an infringement of a third party's Fourth Amendment rights, a defendant must show the police knowingly and intentionally violated the third party's rights or engaged in "gross or shocking" misconduct. Lake did not argue below, nor does he assert on appeal, that the police engaged in gross or shocking misconduct or deliberately violated Zachary's or Field's rights.
See State v. Glass, 583 P.2d 872 (Alaska 1978) (holding that under the Alaska Constitution, police must obtain judicial authorization before surreptitiously recording a seemingly private conversation).
684 P.2d 127 (Alaska 1984).
Id. at 129.
See Waring v. State, 670 P.2d 357 (Alaska 1983).
Id. at 363.
Sufficiency of the evidence of the domestic violence assault and family violence convictions
Lake argues the evidence was insufficient to convict him of assault and family violence because the evidence did not show Lake struck Field. He argues the court erroneously believed Zachary's and Field's out-of-court statements and discounted their trial testimony. He argues that the court's findings that these offenses occurred are clearly erroneous.
In reviewing the sufficiency of the evidence following a bench trial, this court does not apply the clearly erroneous standard of review. The applicable standard of review is the "substantial evidence test." This court must view the evidence in the light most favorable to the judge's verdict. The question is whether the finding of guilt is supported by substantial evidence; that is, such relevant evidence to support the conclusion by a reasonable mind that there was no reasonable doubt as to Lake's guilt. "We do not re-weigh the evidence or choose between competing inferences; we only determine whether evidence exists to support the judge's conclusion."
Y.J. v. State, 130 P.3d 954, 957 (Alaska App. 2006).
Helmer v. State, 608 P.2d 38, 39 (Alaska 1980).
Id.
Y.J., 130 P.3d at 957.
Substantial evidence supports the conclusion that Lake was guilty of domestic violence assault and family violence. Lake and Field lived in an apartment together with three children: ten-year-old Zachary, an eight-year-old, and an infant. At the time of the incident, all five of them were in the apartment. Anchorage Police Officer Scott Huston testified that when he arrived at the apartment, Field had a torn shirt and red marks on her neck, chest, and cheek area. Field told the police that Lake had caused her injuries by trying to drag her out of the apartment and by throwing her to the ground. Photographs admitted at trial documented scratches on Field's neck, chest, and left cheek and rips on both sides of her shirt. Field admitted at trial that Lake had ripped her shirt and scratched her. During the investigation, Zachary told Officer Smith Lake and Field were fighting, that Lake threw Field around, slapped her, pulled her hair, and threw her onto a chair because she spilled all his beer.
AMC 8.10.010(B)(1) "An intentional or reckless use of force or violence upon the person of another").
AMC 8.10.050(B) ("a person commits the crime of family violence when the person commits the crime of assault as defined in AMC 8.10.010 with knowledge or reckless disregard of the presence of a child or children in the home.").
Viewed in the light most favorable to upholding the guilty verdicts, the evidence supports the conclusion that Lake intentionally or recklessly used force or violence on Field's person while children were present in the home. Sufficiency of the evidence of the resisting/interfering with a peace officer conviction
AMC 8.10.010(B)(1); AMC 8.10.050.
Lake argues that the trial court erred in failing to make an express finding that the police issued a "lawful" order that he could be convicted of violating. Lake further argues, that even if the court implicitly found the officers gave Lake a lawful order, that finding was erroneous.
Judge Hanley found Lake guilty of resisting or interfering with a peace officer. To find Lake guilty of this crime, Judge Hanley had to find that Lake intentionally, recklessly, or knowingly disobeyed the lawful orders of any public officer. Implicit in the court's finding that Lake committed this crime are the conclusions that the officers issued a lawful order and that Lake disobeyed that order.
AMC 8.30.010(A)(6).
Although Lake argues the police did not give him a "lawful" order, neither Lake nor the Municipality has provided an analysis of the ordinance's "legal order" requirement. As noted above, the ordinance prohibits a person from intentionally, recklessly, or knowingly disobeying the lawful orders of any public officer.
Id.
The police in this case were responding to a report of a domestic disturbance and a report of a possibly suicidal woman in an apartment with children. The officers were trying to assess the situation and protect the safety of the individuals involved. Lake's behavior in following the officers up to the apartment risked escalating the situation, especially considering the police were responding to a report of a domestic dispute and a suicidal person in an apartment with children, a potentially hazardous situation. L a k e was identified as a participant in the disturbance, and the officers needed to interview the victim of the assault without Lake's interference. The officers testified they could not proceed to the apartment with Lake accompanying them. Furthermore, the police warned Lake that he would be arrested if he did not comply with their requests.
See Gallmeyer v. State, 640 P.2d 837, 845 n. 13 (Alaska App. 1982) ("We believe that situations such as the present one, where officers are called upon to intervene in episodes of domestic violence, are often particularly hazardous." (quoting Wayne v. United States, 318 F.2d 205, 212 (D.C. Cir. 1963))).
Lake's conduct was more than a mere annoyance or harassment: Lake's refusal to follow the orders substantially interfered with the officers' ability to respond to the emergency calls. Under the facts of this case, the orders Lake was convicted of disobeying were lawful. We therefore affirm Lake's conviction for resisting or interfering with a peace officer.
Conclusion
The judgment of the district court is AFFIRMED.