Opinion
Court of Appeals No. A-9381.
January 3, 2007.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Mark I. Wood, Judge, Trial Court No. 4FA-S04-3645 CR.
Marcia E. Holland, Assistant Public Defender, Fairbanks, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. MÁrquez, Attorney General, Juneau, for the Appellee.
Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
MEMORANDUM OPINION AND JUDGMENT
Bluesky Martinez appeals his conviction for assault in the third degree, a class C felony. The State charged Martinez with assault in the third degree on the theory that he had caused physical injury to his girlfriend, Cindy Gilbert, by means of a "dangerous instrument." The State presented evidence that Martinez kicked Gilbert in the head with his shoe in such a manner that the tennis shoe became a "dangerous instrument." Under Alaska law, a "dangerous instrument" includes "anything that, under the circumstances in which it is used, . . . is capable of causing death or serious physical injury." "Serious physical injury" is "physical injury caused by an act performed under circumstances that create a substantial risk of death." Martinez argues that the State presented insufficient evidence at trial for a jury to conclude that, when he kicked Gilbert, he used his shoe in such a way that it became a "dangerous instrument." We agree with Martinez and reverse his conviction.
AS 11.41.220.
AS 11.81.900(b)(15)(A).
AS 11.81.900(b)(56)(A).
Factual and procedural background
On October 11, 2004, Martinez got into an argument with his girlfriend, Cindy Gilbert, inside the Midnight Sun store in Arctic Village where Gilbert worked. Gilbert was upset that Martinez had been drinking. Martinez, in turn, was apparently upset that Gilbert would not return some compact discs to him. The argument soon escalated into physical violence. Martinez shoved Gilbert, causing Gilbert to trip over a box and fall to the floor. Martinez, wearing a Nike walking shoe, then kicked Gilbert on the hip. While Gilbert was still lying on the floor, Martinez kicked Gilbert again, this time on the top of her head. After Martinez kicked Gilbert in the head, she stood back up. The argument between Martinez and Gilbert continued, and Martinez hit Gilbert on the upper lip with his hand, causing her to begin bleeding. At this point, Ruby Thomas, Daniel Tritt, and Shayleen Fields — who had been summoned to help by witnesses to the incident — entered the store, and the fight between Martinez and Gilbert ended.
A grand jury subsequently indicted Martinez on one count of third-degree assault with a dangerous instrument, along with other charges not relevant to this case. Following the indictment, Martinez was tried before a jury.
AS 11.41.220(a)(1)(B).
At trial, Gilbert was the only witness to testify about Martinez's kicks. According to Gilbert, Martinez pushed her and she "tripped over a box or something" and fell. While she was on the ground, Martinez kicked her with his shoe on her hip and on the tip of her head. She described the shoes that Martinez wore as "regular old Nike walking shoe[s]." She described the kick as "a regular old kick. Not too hard." Gilbert testified that, after she was kicked, she stood up and they continued arguing. She told Martinez that he should calm down. She stated that after the kick she was not bleeding anywhere. The argument continued and Martinez punched her on her upper lip. Gilbert then grabbed something frozen to put on her upper lip. She stated she was bleeding a little from her nose.
After the State rested its case and at the conclusion of the trial, Martinez moved for a judgment of acquittal. Martinez argued that the State had not shown Martinez had used his shoe as a dangerous instrument. Superior Court Judge Mark I. Wood denied the motion. Judge Wood acknowledged that the decision was close.
The jury found Martinez guilty. Judge Wood sentenced Martinez to 2 years with 1 year suspended. Martinez appeals, arguing that Judge Wood erred in denying his motion for judgment of acquittal. We agree with Martinez that the State presented insufficient evidence to prove that he committed assault in the third degree.
Discussion
In determining whether the State presented sufficient evidence at trial to support a conviction, this Court "must view the evidence and the inferences arising therefrom in the light most favorable to the state to determine whether reasonable jurors could conclude that the defendant's guilt was established beyond a reasonable doubt."
Konrad v. State, 763 P.2d 1369, 1376 (Alaska App. 1988).
The State charged Martinez with assault in the third degree on the theory that he had caused physical injury to Gilbert by means of a dangerous instrument. The State charged that Martinez had used his shoe as a dangerous instrument when he kicked Martinez in the head while she was on the ground. Under Alaska law, a dangerous instrument includes "anything that, under the circumstances in which it is used, . . . is capable of causing death or serious physical injury." The State relied on the part of the definition of "serious physical injury" that encompasses "physical injury caused by an act performed under circumstances that create a substantial risk of death."
AS 11.81.900(b)(15)(A).
AS 11.81.900(b)(56)(A).
We have previously held that if an assailant's attack actually causes death or serious physical injury, the State has established a prima facie case that the defendant used a dangerous instrument. But, when the defendant does not cause serious physical injury, the State must present case-specific evidence to establish that "the risk of such injury was both actual and substantial, even though it did not in fact occur." In a case where the defendant kicks the victim, "the inquiry . . . must center on the manner in which the kick was administered and the victim's vulnerability to the kick." This inquiry is based on a "case-specific analysis" of the "totality of the circumstances" surrounding the defendant's actions. Thus, this court may only consider the manner in which the object was actually used, based on "particularized evidence" introduced at trial, rather than the way the object could be used in a "hypothetical or abstract" way to cause death or serious physical harm.
Hutchings v. State, 53 P.3d 1132, 1137 (Alaska App. 2002) (citing Konrad, 763 P.2d at 1374).
Konrad, 763 P.2d at 1375-76. See also Hutchings, 53 P.3d at 1137-38 (applying this test to determine if defendant's shod foot was a dangerous instrument).
Willett v. State, 836 P.2d 955, 959 (Alaska App. 1992).
Id.
See K onrad, 763 P.2d at 1374.
Therefore, in order to convict Martinez, the State had to present evidence to show that Martinez used his shoe in a manner that created an "actual and substantial" risk of death or serious physical injury to Gilbert. Hutchings v. State illustrates that not every kick with a shod foot generates the kind of proof that the State must present to establish the use of a dangerous instrument. Hutchings was charged with assault in the third degree for assaulting a police officer.
Hutchings, 53 P.3d at 1137.
Id. at 1137-38.
Id. at 1137.
According to the State's evidence, Officers Shayne LaCroix and Gisele Webster were attempting to control Hutchings's brother Jason in the parking lot. As the officers confronted Jason, Hutchings approached LaCroix from behind, with his fist drawn back as if to strike the officer. LaCroix turned and blocked the attack, then began to wrestle with Hutchings. The two men fell to the ground. Hutchings lay on the ground, with LaCroix in a half-crouch over him. Suddenly, Hutchings straightened one of his legs and kicked LaCroix in the back of the head, either once or twice.
Hutchings was wearing heavy boots, and the blow was delivered forcefully enough that a fellow officer heard the impact. The victim of the assault, Officer LaCroix, felt a sharp pain in his head and "saw stars." Other officers described LaCroix as "staggering around," dazed and unsteady on his feet. The blow left LaCroix feeling nauseous, and afterwards he had a headache and a large lump on the back of his head.
When LaCroix went to the hospital to be examined, the em ergency room doctor concluded that LaCroix had probably suffered a mild concussion but had not suffered brain injury. He therefore released LaCroix from medical care. The doctor verified that a person could die from a blow to the head if it was administered forcefully enough, but he did not assert that LaCroix had been in danger of death or serious physical injury from Hutchings's kick.
Id.
We concluded that the State had not shown that "Hutchings used his foot in a manner that created a substantial risk of serious physical injury."
Id.
Here, Hutchings was lying on the ground and his victim, LaCroix, was on his feet crouched over him. Hutchings was wearing heavy boots, and he was able to land one or possibly two blows in rapid succession from his prone position. But these blows did not cause serious harm to LaCroix, and LaCroix was able to end the assault by straightening up and walking away (since Hutchings remained lying on the ground). There is little to indicate that LaCroix was in any greater physical danger than if Hutchings had punched him in the head when he was not looking.
Id. at 1138.
We found that, under the facts of Hutchings's case, "the State's evidence was insufficient to support a finding that Hutchings's shod foot constituted a `dangerous instrument.'"
Id.
The facts of Martinez's case present a much weaker case for the State than the facts in Hutchings. It is true, as the State points out, that Gilbert was on the ground and Martinez was standing when Martinez kicked her. In contrast, Hutchings was on the ground and was not in as good a position to administer a forceful kick as was Martinez. But, in comparing the two cases, the other facts appear to favor Martinez. Hutchings was wearing heavy boots; Martinez was wearing a Nike walking shoe. After Hutchings kicked Officer LaCroix, Officer LaCroix was dizzy, nauseated, and was diagnosed with a mild concussion. After Martinez kicked Gilbert, Gilbert immediately stood up and continued arguing. Gilbert never described any symptoms similar to the ones described by Officer LaCroix and observed by his fellow officers. And, unlike Officer LaCroix, Gilbert was never diagnosed with a concussion or other injury resulting from the kick.
We conclude that, under the circumstances of Martinez's case, the State's evidence was insufficient to support a finding that Martinez's shod foot constituted a "dangerous instrument." We accordingly reverse Martinez's conviction for assault in the third degree.
The conviction is REVERSED.