Opinion
Court of Appeals No. A-11214 No. 6106
10-22-2014
AARON ENOCH MOSES, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: David D. Reineke, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Lisa C. Kelley, 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. 2NO-11-592 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Second Judicial District, Nome, Ben Esch, Judge. Appearances: David D. Reineke, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Lisa C. Kelley, 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 HANLEY.
Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution and Administrative Rule 24(d).
A jury convicted Aaron Enoch Moses of manufacturing alcohol in a "local option" community. On appeal, Moses does not dispute that he possessed alcohol, but he argues that the State presented insufficient evidence to the jury that he manufactured it. After reviewing the record, we conclude that the evidence was sufficient to support Moses' conviction for illegally manufacturing alcohol.
AS 04.11.010(a); AS 04.16.200(b), (h).
Moses also asserts that the superior court erroneously rejected his proposed mitigating factor that his offense was among the least serious conduct defined by the offense. Based on the statutory sentencing scheme for this offense, Moses' claim of error is moot.
Lastly, Moses claims that the superior court imposed an excessive sentence. Because the court imposed a sentence of less than 2 years of imprisonment, this Court lacks jurisdiction to hear this claim. We therefore refer Moses' excessive sentence claim to the Alaska Supreme Court for discretionary review.
Facts and proceedings
When we consider a "defendant['s] claim[ ] that the evidence is insufficient to support a criminal conviction, we must view the evidence (and all reasonable inferences to be drawn from that evidence) in the light most favorable to upholding the verdict." The facts of Moses' case are therefore presented in that light.
Richards v. State, 249 P.3d 303, 304-05 (Alaska App. 2011).
At about 6:00 a.m. on September 16, 2011, Elim Village Police Officer LaVerne Ashenfelter received a call reporting that Moses had told another Elim resident that he was going to go home, "finish up" his homebrew, and commit suicide. Ashenfelter contacted Rochelle Davison, a counselor in the village, and the two went to Moses' house to conduct a welfare check. When they entered the house, Moses was intoxicated and sitting at a table. A cup was on the table in front of Moses, and he told Ashenfelter and Davison that the cup contained homebrew.
Moses told Ashenfelter and Davison that he made the homebrew. When Ashenfelter asked Moses if he made the homebrew using potatoes, he explained that he made it with rice.
After Ashenfelter arrested Moses for illegally making alcohol, she found a five-gallon bucket in Moses' house. The bucket was about half full of homebrew, and it appeared that the liquid was still brewing. When Ashenfelter dumped the liquid out of the bucket, she and Davison saw a large quantity of rice in the bottom of the bucket. Later, Moses asked Ashenfelter to return the bucket to his mother.
Ashenfelter collected samples of the liquid from the cup and the bucket. Tests on the samples revealed that they contained ethyl alcohol at concentrations of 8.4% and 8.7%, respectively.
Elim is a "local option" community where the sale, possession for sale, and manufacturing of alcohol is prohibited. The State charged Moses with illegally manufacturing alcohol, a class C felony.
AS 04.11.491.
AS 04.11.010(a); AS 04.16.200(b).
Moses' defense at trial was that he possessed the homebrew but did not manufacture it. He argued that he obtained the homebrew from someone else in Elim and that his initial admission to manufacturing the homebrew was unreliable because he was intoxicated at the time. The jury rejected this defense and found Moses guilty. Superior Court Judge Ben Esch sentenced Moses, a first felony offender, to 24 months of imprisonment with 16 months suspended.
The State presented sufficient evidence to prove that Moses manufactured the homebrew
Moses asserts on appeal that the State failed to present sufficient evidence at trial to prove that he manufactured the homebrew. When a verdict is challenged as lacking a sufficient basis in the evidence, the question is whether the evidence and the inferences to be drawn from it, viewed in the light most favorable to upholding the verdict, are sufficient to support a conclusion by a fair-minded juror that the State met its burden of proof.
Dorman v. State, 622 P.2d 448, 453 (Alaska 1981); Eide v. State, 168 P.3d 499, 500-01 (Alaska App. 2007).
Moses argues that the State's case at trial was based on unreliable evidence and that a reasonable juror should have harbored a reasonable doubt about his guilt. But when we assess the sufficiency of 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 upholding the verdict, the totality of the evidence is sufficient for a fair-minded juror to conclude that Moses manufactured the homebrew. The evidence was therefore sufficient to support the jury's verdict.
Morrell v. State, 216 P.3d 574, 576 (Alaska App. 2009).
Moses' claim that the superior court erred when it rejected his proposed mitigating factor is moot
At his sentencing, Moses asked the superior court to find the statutory mitigating factor that his conduct was among the least serious within the definition of the offense in AS 04.11.010(a) because the alcohol was used for personal consumption and not pecuniary gain. The court concluded that Moses' conduct constituted a "run-of-the-mill ... manufacturing case" and that Moses had not established this mitigating factor.
On appeal, Moses asserts that the court erred when it rejected the "least serious" mitigating factor.
When a defendant is convicted of a crime that is covered by Alaska's presumptive sentencing statutes, it is presumed that the defendant will be sentenced within the applicable range of imprisonment provided in AS 12.55.125. However, if the defendant proves a mitigating factor, AS 12.55.155(a) authorizes the sentencing court to impose a sentence below the presumptive range.
Moses was convicted of a class C felony, and he had no prior felony convictions. Therefore, the presumptive sentencing range applicable to Moses' offense was 0 to 2 years of imprisonment. Moses' conviction for illegally manufacturing alcohol included a mandatory minimum sentence of 120 days of imprisonment. A sentencing court does not have the authority to depart from a mandatory minimum sentence even if a mitigating factor is proved.
AS 12.55.125(e)(1).
AS 04.11.010(a); AS 04.16.200(b)(h).
Clark v. State, 8 P.3d 1149, 1150-51 (Alaska App. 2000).
Thus, the court was authorized to sentence Moses to as little as 120 days in jail, with or without a mitigating factor. Moses was free to rely on the facts that supported the least serious mitigator to argue that the court should impose the lowest possible sentence. But the presence or absence of a mitigating factor had no impact on the court's sentencing authority in this case. Therefore, Moses' claim that the court erroneously rejected his proposed mitigating factor is moot.
See Allen v. State, 56 P.3d 683, 684 (Alaska App. 2002) (explaining that while aggravating and mitigating factors are only directly applicable to increase or decrease a presumptive sentence, they may be employed by analogy as useful guides in non-presumptive cases); Krack v. State, 973 P.2d 100, 104 (Alaska App. 1999) (accord).
Cf. Cleveland v. State, 143 P.3d 977, 988 (Alaska App. 2006) (explaining that once a sentencing court finds an aggravating factor the court is authorized to sentence a defendant above the presumptive sentencing term, at which point the presence or absence of other aggravators does not affect the court's sentencing authority).
We refer Moses' excessive sentence claim to the supreme court
On appeal, Moses asserts that the superior court's sentence of 24 months of imprisonment with 16 months suspended is excessive. Moses acknowledges that this Court lacks jurisdiction to hear this claim because his sentence does not exceed 2 years of imprisonment. We therefore refer Moses' excessive sentence claim to the Alaska Supreme Court for discretionary review.
See AS 22.07.020(b); AS 12.55.120(a).
See Alaska R. App. P. 215(k).
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Conclusion
The judgment of the superior court is AFFIRMED. We REFER Moses' excessive sentence claim to the supreme court.