Opinion
Court of Appeals No. A-10640 Trial Court No. 1KE-09-812 CR No. 5799
02-01-2012
JACK L. OLSEN, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Michael Schwaiger, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Nicholas A. Polasky, Assistant District Attorney, Stephen R. West, District Attorney, Ketchikan, and John J. Burns, 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.
MEMORANDUM OPINION AND JUDGMENT
Appeal from the District Court, First Judicial District, Ketchikan, Kevin G. Miller, Judge.
Appearances: Michael Schwaiger, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Nicholas A. Polasky, Assistant District Attorney, Stephen R. West, District Attorney, Ketchikan, and John J. Burns, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
BOLGER, Judge.
Jack L. Olsen and Natasha Peele had been living together for about eight years. They had two children together, including a five-year-old daughter named Alyssa. One evening, Peele came home from college classes at about 6:00 p.m. and found that Olsen had started drinking. Peele and the children ate dinner, then she helped them do their homework, put the children to bed, and stayed up for several hours working on her homework. During this time Olsen continued to drink, mostly on the front and back porches and in the kitchen. He drank until he was very intoxicated.
Peele went to bed at about 12:30 a.m. She asked Olsen to turn down the music he was playing in the kitchen because she was trying to sleep. Then when Olsen did not turn the music down, Peele did. In response, Olsen smashed the top of the radio.
Olson came into the bedroom ten to fifteen minutes later. Peele was lying on the bed with Alyssa sleeping on her arm. Olsen got on top of Peele, bracing his arms around her with his face less than an arms-length away. He told her to forgive him or he would have to hurt "them." Peele told him to go lie down or leave or else she would call the police. At one point she screamed at him to get out, and he replied, "What are you going to do about it?" He also called her a "fucking bitch." He stayed braced over her for a few minutes and then moved back a little and raised his fist as if to hit her. When he moved back, she "was able to move [her] leg up" and kick him off of the bed. She called the police.
Peele obtained a restraining order against Olsen the next day, but soon thereafter had it dissolved. At the time of trial, Peele and Olsen were living together, and Peele's testimony minimized the extent of the assaultive behavior she reported in her statements to the police and the statements in her restraining order application.
The State presented the foregoing evidence at trial. At the close of the State's case, Olsen made a motion for a judgment of acquittal, which the trial judge denied. Olsen did not testify or present any witnesses.
The jury convicted Olsen of assault in the fourth degree and harassment, and Olsen now appeals his harassment conviction.
Olsen was convicted under the subsection of the harassment statute that states, "A person commits the crime of harassment in the second degree if, with intent to harass or annoy another person, that person ... subjects another person to offensive physical contact." Olsen challenges the sufficiency of the evidence that he had physical contact with Peele.
AS 11.61.120(a)(5).
When we review a claim of insufficient evidence, we assess the evidence presented at trial, as well as all reasonable inferences, in the light most favorable to the verdict. We will uphold the conviction if reasonable jurors could conclude the defendant's guilt was established beyond a reasonable doubt.
Simpson v. State, 877 P.2d 1319, 1320 (Alaska App. 1994).
Id.
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The evidence presented at trial showed that Olsen sat on the bed where Peele was lying, and then he got "over top of" her, bracing his arms around her with his face less than an arm's length away, trapping her on the bed. He called her names and challenged her when she told him to get out. Then he moved back a little and raised his fist as if to hit her. In her application for a protective order, Peele wrote that when Olsen "raised up, I was able to move my leg up" and kick him off of the bed.
Reasonable jurors could conclude from this evidence that Olsen made physical contact with Peele when he got "over top of" her. Peele's statement that she was able to move her leg up when Olsen raised his fist implied that, until that point, Olson was pinning her down.
Based on this evidence, a reasonable juror could conclude Olsen had physical contact with Peele. We therefore AFFIRM the district court's judgment.