Opinion
No. 5914
02-06-2013
TIMOTHY E. MUND, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: John N. Page III, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Mary Gilson, 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 precedent for any proposition of law.
Court of Appeals No. A-10800
Trial Court No. 3AN-08-9600 CR
MEMORANDUM OPINION
AND JUDGMENT
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael L. Wolverton, Judge.
Appearances: John N. Page III, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Mary Gilson, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
BOLGER, Judge.
Timothy Mund drove over a pedestrian while he was trying to escape from police officers who were trying to arrest him. On appeal from his resulting convictions, Mund argues that there was insufficient evidence to support his first-degree assault conviction because he did not use a dangerous instrument or cause serious physical injury. He argues that the trial court erred by failing to instruct the jury that "serious physical injury" requires an actual risk of death. And he argues that the trial court erred in rejecting his proposed mitigating factor — that he acted under some degree of duress.
We conclude that there was sufficient evidence to support Mund's conviction, and that there was no plain error in the disputed jury instruction. We also conclude that the sentencing judge properly rejected the proposed mitigating factor.
Background
Four members of a Federal Fugitive Task Force went to a residence near Spenard Road in Anchorage, to serve an arrest warrant on Mund. The officers were not dressed in full uniforms, but they all wore their badges on lanyards around their necks. While the officers were at the front door, Mund drove into the driveway in a Ford F-150 truck.
One officer approached Mund while he was still in the truck. Mund looked down at the officer's badge, and then put the truck into reverse. Mund backed over a wooden post and hit a Ford Bronco that was parked on the street. Then Mund began to drive forward, almost running into two of the officers. One officer shouted, "Stop or I'll shoot!"
After Mund's truck veered away from the officers, it drove off the road through some small trees and bushes. Mund's truck then struck Cheri Hill, who had been waiting at a bus stop on Spenard. The truck knocked Hill from the sidewalk into the street, and her head hit the pavement with an audible smack. The truck drove over Hill's ankles with both a front wheel and a rear wheel.
None of Hill's bones were broken, but her ankles were badly injured. Hill had to wear a special walking shoe on one foot; she could not afford to buy a special shoe for her other foot. She was on crutches for almost two months. Although she could walk, her injuries were painful, and it was difficult for her to get around.
After trial, the jury found Mund guilty of numerous charges including first-degree assault (for recklessly causing serious physical injury to Hill by means of a dangerous instrument), failure to stop at the direction of a peace officer, and reckless driving. Mund now appeals.
AS 11.41.200(a)(1).
AS 28.35.182(a)(1) & (3).
AS 28.35.400.
Discussion
There was sufficient evidence that Mund caused "serious physical injury" to Hill.
A person commits first-degree assault if "that person recklessly causes serious physical injury to another by means of a dangerous instrument." Mund argues that there was insufficient evidence to show that he caused Hill to suffer "serious physical injury." When we review the sufficiency of the evidence to support the jury's verdict on this charge, we view the evidence in the light most favorable to the verdict and ask whether a reasonable juror could have concluded that the defendant was guilty beyond a reasonable doubt.
AS 11.41.200(a)(1).
Iyapana v. State, 284 P.3d 841, 848-49 (Alaska App. 2012); Morrell v. State, 216 P.3d 574, 576 (Alaska App. 2009).
"Serious physical injury" is defined as "(A) physical injury caused by an act performed under circumstances that create a substantial risk of death; or (B) physical injury that causes serious and protracted disfigurement, protracted impairment of health, protracted loss or impairment of the function of a body member or organ, or that unlawfully terminates a pregnancy."
AS 11.81.900(b)(56).
Applying this definition, there was substantial evidence that Mund's misconduct created a substantial risk that Hill could be killed. This part of the definition of serious physical injury is "injury-specific and not victim-specific; the ordinary and probable consequences of the particular type of injury inflicted are the essential criteria by which serious physical injury must be determined." Mund knocked Hill to the ground, caused her head to hit the pavement, then drove over her ankles with both axles. Hill's boyfriend, who witnessed the accident, thought that Mund might have killed her. The jury could have concluded that it was only fortuitous that Hill was not killed by this collision.
James v. State, 671 P.2d 885, 889 (Alaska App. 1983), rev'd on other grounds, 698 P.2d 1161 (Alaska 1985).
There was also substantial evidence that Hill suffered "protracted loss or impairment of the function of a body member." Hill was on crutches for almost two months. She used a walking shoe and wanted another, but she could not afford one. She was in great pain and had difficulty getting around. The jury could have reasonably concluded that Hill's use of her legs was impaired for a protracted period, even though this impairment was not permanent.
We conclude that there was sufficient evidence to support the jury's verdict on this issue.
The jury instruction on "serious physical injury" was not plain error.
Mund argues that the jury instruction on the definition of "serious physical injury" was incorrect because it did not tell the jury that this term requires the prosecution to prove that the victim suffered an actual risk of death rather than a risk that was merely hypothetical or abstract. Mund did not object to this jury instruction at trial, so now he must show plain error.
See Iyapana, 284 P.3d at 847-48.
The jury instruction accurately tracked the statutory definition quoted above. But Mund argues that the jury should have been instructed that the State must prove that the risk of death created by his conduct was an actual risk as opposed to a risk that was hypothetical or abstract.
See Brown v. State, Mem. Op. & J. No. 5392, 2008 WL 4531666, at *4 (Alaska App. Oct. 8, 2008) (Mannheimer, J., concurring) (citing Hutchings v. State, 53 P.3d 1132, 1137-38 (Alaska App. 2002); Willett v. State, 836 P.2d 955, 959-60 (Alaska App. 1992); Konrad v. State, 763 P.2d 1369, 1373 (Alaska App. 1988) (all holding that the prosecution must prove that an item poses an actual and substantial risk of death in order to be classified as a dangerous instrument)).
Assuming that Mund is correct, this omission in the jury instructions was adequately cured during closing arguments. In his initial closing argument, the prosecutor stated that Mund's conduct — running over the victim with a full size pickup truck — "actually pose[d] a risk of death or serious physical injury."
See Cook v. State, 36 P.3d 710, 718 (Alaska App. 2001) ("[P]otential mistakes (or even acknowledged mistakes) in jury instructions can be cured by the arguments of the parties.").
In response, Mund's attorney argued that the State had failed to prove that the victim had faced any actual risk of injury:
And again the serious physical injury, that's a kind of clumsy phrase. What does it really mean? It has a specific legal definition. We can break it down. First, to cause serious physical injury, the first prong of it is that there was—that it was used—that the truck was used and created some kind of act or circumstances that created an actual substantial risk of death. ... It can't be hypothetical. It's actual and substantial.This argument clarified that to be a "serious physical injury" the risk of death must have been both actual and substantial.
In the prosecutor's rebuttal argument, he repeated this idea, arguing that the evidence was sufficient to show that Hill was subjected to a substantial risk of death:
If you get run over by a truck, ... that actually is a substantial risk of death logically. ... [The fact that Hill's injuries were not more serious] does not in any way minimize the substantial risk or actual risk of death that was caused by being run over by a Ford F-150 truck.Based on these arguments, we conclude that the jury adequately understood that the definition of serious physical injury required the prosecution to prove an actual risk of death. We find no plain error.
There was sufficient evidence that Mund's truck was a "dangerous instrument."
As noted above, the first-degree assault charge required the prosecution to prove that Mund had caused Hill's injuries "by means of a dangerous instrument." Mund argues that there was insufficient evidence to show that he used his truck as a "dangerous instrument." "Dangerous instrument" is defined in part as "anything that, under the circumstances in which it is used, attempted to be used, or threatened to be used, is capable of causing death or serious physical injury."
AS 11.81.900(b)(15)(A).
Under this definition, evidence that an item has been used in a manner that actually resulted in serious physical injury ordinarily is prima facie evidence that the item was used as a dangerous instrument. So our foregoing conclusion that Hill actually suffered serious physical injury also supports the conclusion that Mund's truck was a dangerous instrument.
Willett, 836 P.2d at 959; Konrad, 763 P.2d at 1374.
Moreover, we have previously concluded that a motor vehicle is generally a dangerous instrument when it is involved in a substantial collision with a pedestrian:
Because of an automobile's solidity and mass, an automobile is normally easily capable of inflicting death or serious physical injury in such circumstances. While it is possible to imagine collisions between an automobile and a pedestrian or a cyclist that one might not expect to result in serious physical injury (for instance, when the driver's failure to set the parking brake leads to a collision at 2 miles per hour), these are clearly exceptional cases.This general rule applies to the circumstances of the collision in this case. A reasonable juror could have concluded that Mund's pickup truck constituted a dangerous instrument when it was involved in a substantial collision.
State v. Waskey, 834 P.2d 1251, 1253 (Alaska App. 1992).
Mund's offenses were not committed under some degree of duress.
At the sentencing hearing, Mund argued that the court should apply a mitigating factor because he committed the offense under some degree of duress, coercion, threat, or compulsion insufficient to constitute a complete defense, but that significantly affected his conduct. Mund argued that he was only trying to "escape the threat created by the unknown armed men in the driveway." Judge Wolverton found that this mitigating factor had not been proven. He stated, "I don't believe that there was undue duress that caused these events to occur. The officers, regardless of how one views them doing their job, had the lawful authority to execute the warrant that was outstanding."
AS 12.55.155(d)(3).
Mund challenges Judge Wolverton's conclusion on appeal. We review the superior court's factual findings regarding the nature of a defendant's conduct for clear error, but independently determine the legal question of whether, given those findings, the defendant has established the mitigating factor.
Michael v. State, 115 P.3d 517, 519 (Alaska 2005); Moore v. State, 218 P.3d 303, 305 (Alaska App. 2009).
To establish this mitigating factor, a defendant must present facts that would come close to establishing a necessity defense. The mitigating factor "is not so broad so as 'to encompass behavior that is merely impulsive or the result of situational stress.'" Evidence that a defendant "in good faith subjectively believed facts which if true would have established one of the defenses justifying his conduct ... may warrant mitigation of a presumptive sentence. The closer the defendant's belief regarding the facts justifying his conduct comes to approximating the belief a reasonable person similarly situated would have had, the more significant the mitigating factor becomes."
See Bynum v. State, 708 P.2d 1293, 1294 (Alaska App. 1985) (citing Bell v. State, 658 P.2d 787, 791 (Alaska App. 1983)).
Id. (quoting Lee v. State, 673 P.2d 892, 896-97 (Alaska App. 1983)).
Bell, 658 P.2d at 791.
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In this case, Mund never argued that the circumstances approached the level justifying a defense of duress. He did not offer any evidence that his conduct was not the result of impulsiveness or situational stress, or that a similarly situated reasonable person would have believed his conduct was justified. He merely argues that he could have believed that unknown armed men were threatening him.
Mund's argument depends on viewing the record in his favor. But we must view the evidence in the light most favorable to Judge Wolverton's findings. The judge could rely on the evidence that the officers did not draw their weapons until after Mund put his truck in reverse, that the officers yelled, "Stop! Police!", and that one officer had "U.S. Marshals" stenciled on his vest. Based in part on this evidence, the trial jury had convicted Mund of failure to stop at the direction of a police officer.
We conclude that Judge Wolverton's findings were adequately supported by the evidence, and we agree with his conclusion that Mund failed to prove this mitigating factor.
Conclusion
Mund also argues that his composite sentence of 20 years' imprisonment was excessive. We have ordered further briefing because we have concerns about whether we have jurisdiction to review this issue. We will issue a separate opinion on Mund's excessive sentence claim. In all other respects, we AFFIRM the superior court's judgment and sentence.