Opinion
A-13267
09-22-2021
SHAWN M. NAGL, Appellant, v. STATE OF ALASKA, Appellee.
Sharon Barr, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Hazel C. Blum, Assistant Attorney General, Office of Criminal Appeals, and Clyde Ed Sniffen Jr., Acting Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court Trial Court No. 3PA-16-01709 CR, Third Judicial District, Palmer, Kari Kristiansen, Judge.
Sharon Barr, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Hazel C. Blum, Assistant Attorney General, Office of Criminal Appeals, and Clyde "Ed" Sniffen Jr., Acting Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Terrell, Judges.
SUMMARY DISPOSITION
Shawn M. Nagl was convicted of first-degree assault, second-degree burglary, second-degree theft, first-degree criminal trespass, and attempted second-degree vehicle theft after Nagl stole a number of items from Jack Hoback's home and then, when Hoback confronted him, ran over Hoback with a truck. On appeal, Nagl challenges the sufficiency of the evidence to support his first-degree assault conviction. He also raises two additional claims related to his sentence.
AS 11.41.200(a)(1); AS 11.46.310; AS 11.46.130(a)(2); AS 11.46.320(a)(1); and AS 11.46.365(a)(1) & AS 11.31.100, respectively.
When we review a claim of insufficient evidence, we are required to view the evidence (and all reasonable inferences to be drawn from that evidence) in the light most favorable to upholding the verdict.
See Iyapana v. State, 284 P.3d 841, 848-49 (Alaska App. 2012).
At trial, Hoback testified that he reached into Nagl's truck and tried to grab Nagl's keys to prevent him from leaving. Then, according to Hoback, Nagl pushed him to the ground and drove over him with the truck. Nagl, by contrast, presented testimony from an accident reconstruction expert who claimed that the accident could not have occurred exactly as Hoback claimed. Specifically, the expert asserted that Hoback's injuries were inconsistent with his testimony that Nagl had pushed him down before running over him.
Relying on the expert's assertion that Nagl could not have pushed Hoback to the ground as Hoback claimed, Nagl argues on appeal that the evidence failed to establish that he acted recklessly when he drove over Hoback because it failed to establish that he was aware that Hoback was on the ground. Nagl also argues that the evidence failed to establish that he caused Hoback's injuries because Hoback's own conduct of trying to stop Nagl from driving away was an unforeseeable superseding cause of Hoback's injuries.
We have reviewed the record, however, and we conclude that a reasonable juror could have credited Hoback's testimony over the testimony of the accident reconstruction expert. And given Hoback's testimony that Nagl pushed him to the ground and then ran over him with a truck, we conclude that the evidence was sufficient to establish both that Nagl acted recklessly and that Nagl caused Hoback's injuries.
Turning to Nagl's challenges to his sentence, Nagl argues that the court erred in rejecting his proposed mitigating factor - that, under AS 12.55.155(d)(9), his conduct was among the least serious included in the definition of the offense - because his culpable mental state bordered on negligence. But the trial court rejected this mitigator based not on Nagl's mental state, but rather on the extensiveness of Hoback's injuries. The term "conduct" for purposes of the least serious mitigator permits the court to look at the harm caused by the offense, including a victim's injuries. We have reviewed the record and find no error in the trial court's rejection of the mitigator.
See Joseph v. State, 315 P.3d 678, 684 (Alaska App. 2013); Geisinger v. State, 2010 WL 5186081, at *2 (Alaska App. Dec. 22, 2010) (unpublished).
Nagl's last claim is that his composite sentence is excessive. As a third felony offender, Nagl was subject to a presumptive range of 13 to 20 years for first-degree assault. The court sentenced Nagl to 15 years to serve for that offense and to a composite sentence of 20 years to serve. Given Nagl's fifteen prior convictions (including multiple felonies), the court's conclusion that Nagl was a "worst offender" as to the theft and burglary offenses, the seriousness of Hoback's injuries, and the fact that Nagl assaulted Hoback after multiple trips to his home to steal property from him, we cannot say that the 20-year term is "clearly mistaken."
Former AS 12.55.125(c)(4) (2016).
McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974); Brown v. State, 12 P.3d 201, 210 (Alaska App. 2000).
Finally, we note that there appears to be a clerical error in the judgment. The judgment states that Nagl was convicted of attempted first-degree vehicle theft, but it appears from the indictment and the jury's verdict form that he was convicted of attempted second-degree vehicle theft.
We therefore REMAND this case for the limited purpose of correcting the judgment. In all other respects, we AFFIRM the judgment of the superior court.