Opinion
Court of Appeals No. A-11273 No. 6108
10-29-2014
LEWIS D. LOMACK, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Sharon Barr, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Donald Soderstrom, 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. 4BE-11-277 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Fourth Judicial District, Bethel, Leonard Devaney III, Judge. Appearances: Sharon Barr, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Donald Soderstrom, 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 ALLARD.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Following an altercation with his girlfriend in which he used his hands to impede her breathing, Lewis D. Lomack was convicted of third-degree assault for recklessly causing physical injury to his girlfriend by means of a dangerous instrument. Lomack was also convicted of two counts of fourth-degree assault for hitting and biting his girlfriend during the same incident.
AS 11.41.220(a)(1)(B).
AS 11.41.230(a)(1).
On appeal, Lomack argues that the evidence at trial was legally insufficient to support his conviction for third-degree assault. For the reasons explained here, we conclude that the evidence was legally sufficient to support that conviction.
Lomack also argues that one of his fourth-degree assault convictions, for using his hands to hit his girlfriend, should merge with the third-degree assault conviction. The State concedes that these convictions should merge and we find this concession well founded. We therefore direct the superior court to merge these convictions and resentence Lomack in light of this merger.
Underlying facts
Because Lomack contends that the evidence was insufficient to support his conviction for third-degree assault, we summarize the evidence in the light most favorable to upholding that verdict.
See Joseph v. State, 293 P.3d 488, 490 (Alaska App. 2012); Iyapana v. State, 284 P.3d 841, 848-49 (Alaska App. 2012); Morrell v. State, 216 P.3d 574, 576 (Alaska App. 2009).
On March 16, 2011, Alaska State Trooper Mike Ingram received a report that Lomack assaulted his girlfriend Jennifer Queenie. Ingram spoke with Queenie, who was intoxicated but coherent. At trial, Ingram testified that Queenie told him Lomack hit her in the eye, on the back of the head, and on the arms, and bit her on the arm. Queenie had bruising on her arm consistent with being bitten. Queenie also told Ingram that Lomack "choked her out" with his hands and that she could not breathe.
At trial Queenie recanted her prior statements to the trooper. But she also acknowledged that she and Lomack were still together, that she loved Lomack, and that she did not want to get him in trouble.
The jury convicted Lomack of third-degree assault for choking Queenie and of two counts of fourth-degree assault for hitting and biting her.
This appeal followed.
The evidence at trial was legally sufficient to support Lomack's conviction for third-degree assault
A person commits the crime of third-degree assault under AS 11.41.220(a)(1)(B) if that person recklessly causes physical injury to another person by means of a dangerous instrument. Under AS 11.81.900(b)(15)(B), a person's hands qualify as a dangerous instrument if they are used to impede a victim's normal breathing or blood circulation by applying pressure to the throat.
On appeal, Lomack argues that the evidence at trial was insufficient to prove beyond a reasonable doubt that he used his hands to impede Queenie's normal breathing or blood circulation. He points out that the only evidence to support this claim was Queenie's statement to the trooper, which he contends was not credible given her state of intoxication and the lack of bruising on her neck.
When we review a claim of insufficiency, we do not weigh the evidence or determine the credibility of witnesses; those "are matters for the jury to consider in reaching a verdict, not for the reviewing court to decide in ruling on the legal sufficiency of the evidence." Instead, our review is limited to viewing the evidence (and all reasonable inferences to be drawn from that evidence) in the light most favorable to upholding the jury's verdict and determining whether a fair-minded juror could find that the State proved its case beyond a reasonable doubt.
Ratliff v. State, 798 P.2d 1288, 1291 (Alaska App. 1990) (citing Anthony v. State, 521 P.2d 486 (Alaska 1974)).
Dailey v. State, 65 P.3d 891, 898 (Alaska App. 2003); see Iyapana, 284 P.3d at 848-49; Morrell, 216 P.3d at 576.
Here, the jury heard Queenie's recorded statement to the trooper describing how Lomack used his hands to impede her breathing. They also heard the trooper's testimony regarding Queenie's demeanor and coherence when she made this statement.
Under Alaska law, the jury was entitled to consider this evidence both for its impeachment value and for its truth. We conclude, given the nature and specificity of Queenie's statements to Trooper Ingram, that a fair-minded juror could reasonably conclude that Queenie was telling the truth when she said Lomack choked her and that her later recantation at trial was not credible. Accordingly, we find that the evidence at trial was legally sufficient to support Lomack's third-degree assault conviction.
See, e.g., Beavers v. State, 492 P.2d 88, 94 (Alaska 1971); State v. Batts, 195 P.3d 144, 158 (Alaska App. 2008); Alaska Evid. R. 801(d)(1)(A) cmt. para. 1.
Lomack's fourth-degree assault conviction for hitting his girlfriend merges with his third-degree assault conviction for using his hands to impede her breathing because the two assaults did not implicate different societal values and were part of a single continuous episode
Lomack argues that the trial court erred in failing to merge his conviction for third-degree assault with his conviction for fourth-degree assault for using his hands to hit Queenie. The State concedes that these convictions should merge for sentencing because the two assaults were closely related and part of a continuous course of events.
We conclude that the State's concession is well founded. We therefore direct the superior court to merge these two convictions and to resentence Lomack in light of that merger.
Hunter v. State, 182 P.3d 1146, 1149 (Alaska App. 2008) (citing Whitton v. State, 479 P.2d 302, 312-13 (Alaska 1970)); see Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (an appellate court is required to independently determine if the State's concession of error in a criminal case is well founded).
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Conclusion
We AFFIRM Lomack's third-degree assault conviction. We REMAND the case and direct the superior court to merge Lomack's conviction of third-degree assault with his conviction of fourth-degree assault for hitting Queenie. The court shall resentence Lomack in light of that merger. We do not retain jurisdiction.