Opinion
Court of Appeals No. A-9114.
February 7, 2007.
Appeal from the Superior Court, Third Judicial District, Dillingham, Fred Torrisi, Judge, Trial Court No. 3DI-04-286 CR.
P. Susan Mitchell, Angstman Law Office, Dillingham, for the Appellant. Terisia K. Chleborad, 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
A jury convicted Nick Nicoli of third-degree assault for placing his wife, Carol, in fear of imminent serious physical injury with a rifle. At trial, Carol testified that she had not been in fear of imminent physical injury during the incident. Nicoli argues that there was insufficient evidence to convict. However, viewing the evidence at trial and reasonable inferences from the evidence in the light most favorable to the State, sufficient evidence supports the jury's verdict. Accordingly, we affirm the judgment of the superior court.
AS 11.41.220(a)(1)(A).
Factual and procedural background
At the time of this case, Nick Nicoli lived with his family in Ekwok. On the evening of July 6, 2005, Nicoli joined his children, Collin and Annie, for a picnic on a sandbar at the river. Also at the picnic were Nicoli's neighbors, Nicholi and Dianna Ishnook, and the Ishnooks' children. Nicoli and Nicholi Ishnook are first cousins, while Nicoli's wife Carol and Dianna Ishnook are sisters.
Nicoli had been drinking at home before joining the picnic and was intoxicated when he arrived. At the picnic, Nicholi Ishnook provided Nicoli with more to drink. When Carol Nicoli arrived, she saw her husband put his hand on her sister Dianna and tell Dianna that she was beautiful. This angered Carol, who argued with Dianna. Carol left the picnic with Collin and Annie, and later that night, before going to bed, she locked the doors.
Nicoli continued drinking with the Ishnooks, both at the picnic and, later, at the Ishnooks' house. Nicoli was "staggering" when he went home around 3:00 a.m. He forced the outer door of his house open, breaking the latch and door jamb. He threatened to break down the inner door, unless Carol opened it.
Carol let him in, and Nicoli accused Carol of infidelity. Their argument woke up Collin and Annie. Carol told Collin to call Nicholi Ishnook, who was the village public safety officer in Ekwok. Nicoli said that if Ishnook came to the house, he would shoot Ishnook in the head. Nicoli picked up his 30.06 rifle. He talked of shooting himself, and pulled the trigger, but the rifle was not loaded. Nicoli gave the gun to Carol and Collin.
Carol wanted to leave but Nicoli restrained her on the couch by putting his legs around her. He told Carol to tell him the truth about her fidelity before he counted to 10, as he rubbed his fist against his hand. He laughed when he finished counting. Carol pushed his legs off of her and quickly walked outside.
As Carol was leaving, Nicoli told her that if she left he would shoot holes in the ceiling. When she got outside, she heard gunshots inside the house. Nicoli had fired two shots from a .243 caliber rifle; Collin later took this gun and hid it under the porch. Carol ran toward the Ishnooks' house, but when she heard Nicoli's voice outside the house, she dropped to the ground so Nicoli would not see her and started crawling away. After a while she stood up and ran the rest of the way to the Ishnooks' house.
Nicholi Ishnook's younger brother, Theodore, was there, and saw Carol run inside the house. He testified that Carol appeared scared and out of breath. She tried to ask Nicholi Ishnook for help, but he had passed out, and she could not wake him. She then took Ishnook's patrol vehicle and drove to her friend Rhonda's house.
Carol called the state troopers in Dillingham. Carol told the troopers that Nicoli had been drinking and had been arguing with her, and he tried to make her stay in the house with him. She said she heard two gunshots after she ran outside the house, and she was afraid that he was going to shoot her in the back and kill her. This interview was not recorded, but a trooper testified to Carol's statement.
The troopers could not get to Ekwok that night because of weather conditions and darkness. However, a trooper was able to call the Nicoli home and speak with Nicoli at approximately 4:45 a.m. The trooper testified that Nicoli was at times cooperative and at times belligerent. Nicoli told the trooper that if the troopers came for him, he would "go out like Jesse James."
The next afternoon, a trooper went to Ekwok and spoke with Carol, Collin, and Nicholi Ishnook. Carol told the trooper that she had been scared enough that her mouth had become dry. The trooper found two bullet holes in the ceiling of Collin's bedroom, as well as a .22 caliber rifle, a shotgun, a .338 caliber rifle, and the .243 caliber rifle in the house.
The grand jury indicted Nicoli on two counts of third-degree assault — one count each for placing Carol and Collin in fear of imminent serious physical injury with a rifle. The State also charged Nicoli with one count of fourth-degree misconduct involving weapons.
AS 11.61.210(a)(1).
This case is Nicoli's fifth criminal conviction for assaulting Carol. Before trial, Nicoli continued to talk with Carol despite a court order that prohibited him from making contact with Carol or Collin. Nicoli told Carol to go to his attorney's office and ask to get the charges dropped. At the office, Carol executed an affidavit in which she claimed she "was never in fear of imminent serious physical injury by means of a dangerous instrument, i.e., .243 rifle."
At trial, Carol repeated that she had not been afraid for her safety that night. She also denied having told the trooper that she was scared that Nicoli would shoot and kill her. She explained that the reason she ran from Nicoli was because she was mad about the house being shot up and she wanted to stop it, but not because she was afraid. She said that "before, I know, Nick when he assaulted me in the past, it was an assault. This time he didn't do anything to me. Only was — only thing he did was hold me back." She testified that she crawled because if "he saw me, he would go over there and get me, and I would have to stay up and have to listen to him. And I wanted to get some rest because I had to go to work the next day." She testified that she called the state troopers because she thought Nicholi Ishnook was not doing his job as a public safety officer and she did not want her house messed up.
The state offered a recording of the trooper's in-person interview with Carol the afternoon after the incident. In the interview, Carol states that she was so scared that her mouth became dry.
Nicoli moved for a judgment of acquittal on both third-degree assault charges. Judge Fred Torrisi denied the motion regarding the count of assault against Carol and took the motion regarding the other count under advisement (ultimately making no ruling). Nicoli did not put on any evidence in his defense.
The jury found Nicoli guilty of the third-degree assault on Carol. The jury found him not guilty of third-degree assault on Collin, but found him guilty of the lesser included offense of disorderly conduct. Nicoli was also found guilty of fourth-degree misconduct involving weapons.
AS 11.61.110(a)(6).
Sufficient evidence supports Nicoli's conviction of third-degree assault
Nicoli argues that, because his wife Carol testified that she was not in fear of imminent serious physical injury, there was not sufficient evidence to convict him of third-degree assault. But Nicoli views the evidence in the light most favorable to his argument. When we review the denial of a motion for judgment of acquittal, we view all the evidence presented at trial and the reasonable inferences from the evidence in the light most favorable to the State. Viewing the evidence in this manner, we must determine whether a fair-minded juror exercising reasonable judgment could conclude that the State met its burden of proving guilt beyond a reasonable doubt.
Dorman v. State, 622 P.2d 448, 453 (Alaska 1981).
See Id.; Deal v. State, 657 P.2d 404, 405 (Alaska App. 1983).
Nicoli does not present any arguments regarding whether his conduct was reckless, or whether he used a dangerous instrument. Instead, Nicoli contends there is insufficient evidence of Carol's "fear." In Hughes v. State, we explained that "fear," as it relates to third-degree assault,
56 P.3d 1088 (Alaska App. 2002).
does not refer to fright, dread, intimidation, panic, or terror. Rather, a person is "placed in fear" of imminent injury if the person reasonably perceives or understands a threat of imminent injury. The victim's subjective reaction to this perception is irrelevant. It does not matter whether the victim of the assault calmly confronts the danger or quivers in terror. The question is whether the victim perceives the threat.
Id. at 1090.
A victim need not actually be afraid of sustaining an injury; instead, the fear element of third-degree assault requires that the victim perceive or understand a threat of imminent serious injury.
Even though Carol Nicoli testified that she was not afraid and that she did not perceive a threat of injury, the jury was presented with contrary evidence that it could properly rely on. Carol testified that she was "worried that he had a gun," and that she was afraid when she heard the gunshots. She also conceded that she was concerned for her safety when Nicoli held her on the couch and made a fist.
The jury was also presented with evidence of Nicoli's prior assaults against Carol and the trooper's testimony that Carol had said on the night of the incident that she was afraid Nicoli would shoot her in the back and kill her. The State also offered a recording of the interview with Carol that took place the next day, in which Carol is heard saying that she was so scared that her mouth became dry. Theodore Ishnook also testified that Carol appeared scared and out of breath when she ran into the Ishnooks' house.
Reviewing the evidence in the record in the light most favorable to the jury's verdict, there is sufficient evidence to support the jury's verdict.
Nicoli also argues that the evidence that Carol was afraid when Nicoli rubbed his hands together and laughed would not support the conviction for third-degree assault because the State did not present sufficient evidence that Nicoli's hands were a "dangerous instrument" as defined by AS 11.41.220(a)(1)(A). But the jury instructions required the jury to find that the dangerous instrument Nicoli used was a rifle. Nicoli was not charged with using his hands as a dangerous instrument, so this argument has no merit.
Conclusion
The judgment of the superior court is AFFIRMED.