Opinion
A-13586
03-23-2022
WILLIAM NICOLAI, Appellant, v. STATE OF ALASKA, Appellee.
Monique Eniero, Attorney at Law, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the District Court, Fourth Judicial District, Trial Court No. 4BE-17-00553 CR Bethel, Raymond Funk, Judge.
Monique Eniero, Attorney at Law, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Eric A. Ringsmuth, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Harbison and Terrell, Judges.
SUMMARY DISPOSITION
William Nicolai's probation was revoked after he consumed alcohol and assaulted his wife. On appeal, Nicolai argues that the district court erred when it found that he had committed a fourth-degree assault under AS 11.41.230(a)(1) because, according to Nicolai, the evidence failed to show that he caused his wife "physical pain." We reject this contention.
See AS 11.41.230(a)(1) (defining fourth-degree assault as "recklessly caus[ing] physical injury to another person"); AS 11.81.9OO(b)(48) (defining "physical injury" as a "physical pain or an impairment of physical condition").
Under the clearly erroneous standard of review, we will overturn a trial court's factual findings only if we are left "with a definite and firm conviction . . . that a mistake has been made." "It is the function of the trial court, not [the appellate court], to judge witnesses' credibility and to weigh conflicting evidence."
Booth v. State, 251 P.3d 369, 373 (Alaska App. 2011) (internal quotation marks and citations omitted).
Knutson v. Knutson, 973 P.2d 596, 599-600 (Alaska 1999).
In this case, an officer who responded to the scene testified that Nicolai's wife told him immediately after the attack that she "was hurt" and that she had experienced "pain" when Nicolai pulled her hair. It is true, as Nicolai points out, that his wife later denied that she experienced any pain. However, the district court was entitled to weigh this conflicting evidence and credit the statements Nicolai's wife made at the time of the attack rather than her later assertions that she did not experience any pain. We therefore do not have a definite and firm conviction that a mistake has been made in this case.
As the State correctly acknowledges, we have previously declared in dictum that "[w]e review a trial court's factual findings regarding a probation revocation for clear error." Powell v. State, 12 P.3d 1187, 1189 (Alaska App. 2000). But we have also suggested in the unpublished memorandum decision, Tanner v. State, that "the true standard of review [at the adjudication phase of a probation revocation hearing] may be the more deferential 'substantial evidence' standard that applies to appellate review of verdicts in judge-tried cases." Tanner v. State, 2016 WL 5335672, at *l (Alaska App. Sept. 21, 2016) (unpublished). Like in Tanner, we need not resolve that conflict here because the evidence is sufficient to support the district court's decision, even under the less deferential "clearly erroneous" standard of review. See id. at *2.
The judgment of the district court is AFFIRMED.