Opinion
Court of Appeals No. A-11933 No. 6217
07-29-2015
WILLIAM HUNT MAKIHELE, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee.
Appearances: Ella Anagick, Law Office of Ella Anagick, Anchorage, for the Appellant. Sarah E. Stanley, Assistant Municipal Prosecutor, and Dennis A. Wheeler, Municipal Attorney, Anchorage, 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-13-8218 CR MEMORANDUM OPINION Appeal from the District Court, Third Judicial District, Anchorage, Leslie Dickson, Judge. Appearances: Ella Anagick, Law Office of Ella Anagick, Anchorage, for the Appellant. Sarah E. Stanley, Assistant Municipal Prosecutor, and Dennis A. Wheeler, Municipal Attorney, Anchorage, for the Appellee. Before: Mannheimer, Chief Judge, and Allard and Kossler, Judges. Judge KOSSLER, writing for the Court.
Chief Judge MANNHEIMER, concurring.
A jury convicted William Hunt Makihele of one count of malicious destruction of property and two counts of misdemeanor assault for ripping the stereo out of Toni Murphy's truck and hitting her twice. Makihele appeals, claiming that insufficient evidence supports his conviction for malicious destruction of property. Makihele also claims that District Court Judge Leslie Dickson erroneously instructed the jury that it did not need to deliberate on the term "household/family member" included in the description of the charged assaults.
Former Anchorage Municipal Code (AMC) 08.20.010.A (2013).
Former AMC 08.10.010.B.1 (2013).
When reviewing a claim of insufficient evidence, we view the evidence in the light most favorable to the verdict. We therefore recount the evidence in that light. On July 27, 2013, at approximately 4:00 a.m., the police were called to Cordova Street near the Kodiak Bar in Anchorage. There, they found one woman, Toni Murphy, and two men, Dennis Jordan and Travis Newell. Murphy reported that she and Makihele had arrived at the bar earlier that night with Makihele driving her truck. Makihele hit a man with whom she was dancing in the bar, and then he hit Murphy on the head as she left the bar. Outside of the bar, Makihele hit Murphy a second time, knocking her to the ground, when she asked him for her truck keys. Murphy said that Makihele had ripped the stereo out of her truck when she went back inside the bar to retrieve her cell phone.
Eide v. State, 168 P.3d 499, 500-01 (Alaska App. 2007).
The police saw stereo equipment on the sidewalk outside of the truck, and Murphy had a fresh bleeding injury to her forehead. Newell reported having seen a man standing over a woman who was lying on her back. Jordan testified at trial that he saw a man push a woman to the ground and the same man rip the CD player out of a truck and throw it to the ground.
Makihele argues that Jordan and Newell were unreliable witnesses who gave inaccurate descriptions of Makihele. But when we review the sufficiency of the evidence to support a conviction, we do not weigh the evidence or judge anew the credibility of the witnesses. When viewed in the light most favorable to the jury's verdicts, the totality of the evidence was sufficient for a fair-minded juror to conclude that Makihele hit Murphy twice and then destroyed her truck's stereo.
Morrell v. State, 216 P.3d 574, 576 (Alaska App. 2009).
See Eide, 168 P.3d at 500.
Makihele also challenges one aspect of the trial court's instructions to the jury.
The complaint charged Makihele with twice assaulting Toni Murphy, whom the complaint described as "a household/family member." At the start of the trial, the municipal prosecutor asked the trial judge to omit the term "household/family member" when the judge read the complaint to the jury panel. Makihele's attorney objected to any changes to the wording of the complaint, so the judge included that term in her reading of the complaint.
But when the judge instructed the jury at the end of trial, the jury instruction describing the elements of assault did not include a reference to "household/family member." During their deliberations, the jury requested clarification as to why this term had been included in the assault charges but omitted in the elements instruction. In response, the trial judge told the jurors that the reference to "household/family member" had been included in the assault charges solely for court-related purposes, and that this was not an issue that the jury needed to consider.
Under the municipal assault ordinance that Makihele was charged with violating, the victim's status as a household or family member was not an element of the crime. Thus, the trial judge correctly instructed the jury that this factor was irrelevant to their assault verdicts.
See former AMC 08.10.010.B.1: "A person commits an assault if ... [t]hat person recklessly causes physical injury to another person."
Makihele argues that this result is inconsistent with this Court's decisions in Bates v. State and Miller v. State. But both of those decisions involved findings that a court must make concerning the relationship between the defendant and the victim. Bates dealt with the admissibility of evidence under Alaska Evidence Rule 404(b)(4), while Miller dealt with a sentencing judge's duty under Alaska Criminal Rule 32(e) to determine whether an offense involved domestic violence.
Bates v. State, 258 P.3d 851 (Alaska App. 2011).
Miller v. State, 312 P.3d 1112 (Alaska App. 2013).
Bates, 258 P.3d at 859-63; Miller, 312 P.3d at 1115-16.
We AFFIRM the judgment of the district court. Judge MANNHEIMER, concurring.
I write separately to point out a problem that is not directly raised in this case, but is lurking in the background.
As the lead opinion points out, the Anchorage municipal assault ordinance (the ordinance that Makihele was convicted of violating) applies equally to all acts of assault. See AMC § 8.10.010. This ordinance does not create a separate category of offense, or provide a different penalty, for assaults committed upon spouses, domestic partners, or other household or family members.
Nevertheless, it is apparently the Municipality's practice to include a reference to "household member" or "family member" in its assault complaints whenever the prosecutor believes that the victim falls within these categories. (These categories are defined in § 8.05.015.A.3-4 of the Anchorage Municipal Code.)
If the defendant is convicted, the prosecutor's designation will require the sentencing judge to decide whether the offense is a "crime involving domestic violence" — a duty placed on the sentencing judge by Alaska Criminal Rule 32(e):
Judgment for Crimes Involving Domestic Violence. In a case in which the defendant is convicted of an offense listed in AS 18.66.990(3) and the prosecution claims at sentencing that the offense is a crime involving domestic violence, the written judgment must set forth whether the offense is a crime involving domestic violence as defined in AS 18.66.990(3) and (5). A factual and legal determination supporting this finding must be made on the record.
This is, in fact, what happened in Makihele's case: the district court's two judgements specify that each of Makihele's assaults was a "DV Offense per AS 18.66.990(3) & (5)".
Thus, it was the court, and not the jury, who decided that Makihele's assaults were crimes of domestic violence.
Because domestic violence is not an element of the municipal offense, and because the district court's sentencing authority was not altered by this classification, the procedures that were followed in Makihele's case do not raise an immediate problem under Blakely v. Washington. But these procedures may conceivably cause problems in the future.
542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
Alaska's bail statutes contain provisions that restrict the bail release of persons who have been convicted of crimes involving domestic violence. See AS 12.30.-011(d)(2)(D) and AS 12.30.027(b). And Alaska's sentencing statutes impose mandatory minimum terms of imprisonment on certain offenders who have previously been convicted of crimes involving domestic violence. See AS 12.55.135(g).
These statutory provisions raise due process concerns and Sixth Amendment concerns when they are applied to defendants like Makihele — defendants whose offenses were classified as "crimes of domestic violence" based on findings made by a judge rather than a jury.
For example, in State v. Peel, 843 P.2d 1249, 1250-51 (Alaska App. 1992), this Court held that it is unlawful to subject a DUI defendant to the mandatory minimum term of imprisonment specified for repeat offenders if the defendant's prior conviction is from a state that does not afford defendants the right to jury trial in DUI prosecutions.
Analogous concerns would be raised if defendants in Makihele's position were later subjected to increased penalties or other legal disabilities triggered by a sentencing judge's finding that their offense was a "crime involving domestic violence".