Opinion
Court of Appeals No. A-10004.
March 2, 2011.
Appeal from the Superior Court, Third Judicial District, Anchorage, Eric A. Aarseth, Judge, Trial Court No. 3AN-05-4223 Cr.
Paul Malin, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
W. H. Hawley, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION
Kao Ching Saelee appeals his convictions and sentence for first-degree assault, first-degree burglary, and six counts of third-degree assault. Saelee committed these crimes out of jealous rage, over a period of three days, because he suspected that his common-law wife had been unfaithful.
In this appeal, Saelee contends that a piece of evidence against him — a pistol — was obtained as a result of an unlawful search of a vehicle.
Saelee further contends that the jury's verdict on the first-degree assault charge is flawed because there was insufficient evidence to support one of the theories of "serious physical injury" submitted to the jury. The jury was instructed that the element of serious physical injury might be proved by showing that the victim's injury resulted in protracted disfigurement or, alternatively, that the victim's injury was inflicted under circumstances that created a substantial possibility of death. Saelee argues that the evidence at his trial was insufficient to support a finding that the victim's injury constituted a disfigurement.
In addition, Saelee contends that his composite sentence of 10½ years' imprisonment is excessive. Finally, Saelee contends (for the first time on appeal) that the Alaska statute governing consecutive sentencing, AS 12.55.127, was unlawfully enacted.
The underlying session law that enacted the consecutive sentencing law — SLA 2004, chapter 125 — was entitled "An Act relating to nonindigenous fish and consecutive sentencing". One part of this session law enacted AS 12.55.127, which prescribes when the sentences for separate crimes must be wholly or partially consecutive. The other part of this session law enacted a new provision in Title 16 (the laws relating to fish and game) that made it a crime to introduce live non-indigenous fish (or the live fertilized eggs of such fish) into a body of fresh public water in Alaska. Saelee argues that this session law violated the Alaska Constitution's requirement that all legislation "be confined to one subject". (Article II, Section 13)
See AS 16.35.210.
For the reasons explained here, we conclude that Saelee has no standing to challenge the seizure of the pistol, and we further conclude that the pistol was not seized in violation of the Fourth Amendment — because the pistol was recovered as a result of a private search, not a police search.
We agree with Saelee that the evidence presented at his trial was not sufficient to support a finding of "serious physical injury" under the theory that the victim's injury constituted "disfigurement", but we conclude that this flaw does not constitute plain error — because the record shows that it is very unlikely that the jurors relied on this theory when they found Saelee guilty of first-degree assault.
With regard to Saelee's 10½-year composite sentence, we find that the sentence is not clearly mistaken, given the totality of Saelee's conduct and given the fact that the presumptive range for his single most serious offense (first-degree assault) was 7 to 10 years' imprisonment.
Finally, while there may be doubt as to whether SLA 2004, chapter 125 violated the single-subject rule, Saelee has failed to show plain error — because it is clear from the record that the consecutive sentencing requirements codified in AS 12.55.127 had no effect on Saelee's composite sentence.
Underlying facts of Saelee's offenses
At the time of the offenses in this case (May 2005), Saelee had been in a romantic relationship with Lama Phothong for over eight years. On Thursday, May 12, 2005, Saelee accused Phothong of cheating on him. He cursed at Phothong, and he pointed a gun at her head.
Saelee eventually put down the gun and began to pack his belongings, intending to leave their apartment. However, when Saelee tried to put the couple's two children in his car (to take the children with him), Phothong objected and attempted to remove the children from the car. At this point, Saelee chased her with a sharp object. Phothong became frightened and ran two blocks to a nearby gas station.
Vantiene Phothong was Lama Phothong's sister. Vantiene lived with a man named Ian Palma, and they had two children: 10-year-old Jay and 7-year-old Melanie.
On Friday afternoon, May 13th (that is, on the day following the above-described argument between Saelee and Lama Phothong), Ian Palma was out driving when Saelee pulled up beside him. Saelee got out of his car and asked Palma about Phothong. Palma told Saelee that he did not know where Phothong was. At this point, Saelee pointed a gun at Palma and started yelling; he again demanded to know where Phothong was, and he accused Palma of lying to him. Shortly afterwards, Saelee fled the scene.
Later that night, Palma and his son Jay were playing video games in their apartment when Saelee arrived and began to pound on the door. When Palma opened the door, Saelee began yelling and asked where Phothong was. Then Saelee pulled out a pistol, pointed it at Palma, and then asked Palma's son, Jay, whether he knew where Phothong was. When Jay answered that he did not know where Phothong was, Saelee told him, "I'm not afraid to put a bullet in [your father's] head." Saelee then demanded to know if Palma thought he was joking. To emphasize his point, Saelee manipulated the pistol as if he were chambering a round. Saelee eventually left the apartment after Palma and Jay convinced him that they did not know where Phothong was.
The next day (Saturday, May 14th), Saelee again drove to the apartment where Ian Palma and Vantiene Phothong lived. Saelee knocked on the door, but when neither Vantiene nor Palma responded, Saelee went outside, climbed onto their deck, and then entered the apartment through an unlocked sliding door.
Once inside, Saelee backed Palma up against a wall. With one hand, he pointed a gun at Palma, while with the other hand he pressed the blade of a knife against Palma's neck. Saelee yelled at Palma, asking where Phothong was, and threatening to kill him. Saelee then swung his knife at Palma's neck, upper body, and legs. In this process, Saelee sliced Palma on the neck.
Saelee observed Vantiene Phothong peering out from one of the bedrooms. Saelee approached Vantiene, held the gun to her head, and demanded to know where her sister Lama was. Although Vantiene declared that she did not know where her sister was, Saelee continued to hold the gun to Vantiene's head and repeatedly demanded to know where Phothong was. However, once Saelee learned that Vantiene had already called the police, he left the apartment. Saelee was arrested later that day.
For these actions, Saelee w as convicted of eight felonies: one count of first-degree burglary for breaking into Ian Palma's and Vantiene Phothong's apartment; one count of first-degree assault for his combined gun and knife attack on Palma during that burglary; and six counts of third-degree assault for his earlier threat against Ian Palma and his various threats against Lama Phothong, Vantiene Phothong, and the children.
In addition, Saelee was convicted of fourth-degree assault for again assaulting Phothong while he was on bail release, awaiting trial on these felony charges.
Saelee's motion to suppress the pistol found in the Chevrolet Blazer
Following Saelee's arrest, the police searched Saelee's residence and they also seized a Chevrolet Blazer which witnesses identified as Saelee's car. The police did not search this vehicle; instead, they held it for several months.
During this time, the police learned that the vehicle was registered to someone other than Saelee — a man named Bert Khotesouvan. Neither Khotesouvan nor Saelee nor anyone else on their behalf contacted the police to try to regain custody of the Blazer. In August 2005, the police turned the Blazer over to Rusty's Towing Service for disposal. Ultimately, in December 2005 (that is, about seven months after the police first took possession of the Blazer), the police decided to sell the vehicle at auction, and they directed Rusty's Towing Service to accomplish the sale.
One clause of the Towing Service's contract with the Anchorage Police Department required the Towing Service to immediately notify the police whenever drugs, firearms, weapons, currency, jewelry, or other valuable property was found in a vehicle.
During the hour of public viewing just before the auction, a prospective buyer approached the owner of Rusty's Towing (Russell Deckard) and stated that he was interested in buying the Blazer, but there was a problem. The prospective buyer was a convicted felon who, under Alaska law, was prohibited from possessing concealable firearms — and, while he was inspecting the Blazer, the prospective buyer had discovered a pistol hidden under the seat. The buyer asked Deckard to remove the pistol from the car.
The prospective buyer then showed Deckard where the pistol was located. This weapon, a .45 caliber black and silver handgun, was hidden in a drawer under the passenger seat, wedged in the springs. Deckard removed the gun from the car, secured it in his office, and then called the police. The police came and retrieved the weapon — which turned out to match the descriptions of the gun that Saelee employed when he threatened Lama Phothong and Ian Palma.
Following his indictment, Saelee asked the superior court to suppress this pistol; Saelee argued that the pistol was found during an unlawful search of the car conducted by the towing service acting as an agent of the police. Superior Court Judge Eric Aarseth denied the suppression motion on two grounds. First, Judge Aarseth ruled that Saelee had no cognizable privacy interest in the contents of the vehicle, and thus he had no standing to challenge the search. Second, Judge Aarseth ruled in the alternative that even if Saelee had standing to challenge the search, Saelee had no right to suppression of the evidence because the underlying search was conducted by a private person (the prospective buyer) rather than by the police or the towing service, and because the Fourth Amendment (and the exclusionary rule) apply only to government-instigated searches. We agree with Judge Aarseth on both counts.
Saelee had no cognizable privacy interest that would allow him to challenge a search of the Blazer. Saelee was not the owner of the vehicle and, although he was apparently allowed to use the vehicle on a regular basis at the time of these offenses, he abandoned whatever expectation of privacy he might otherwise have had when he allowed the Blazer to sit in police custody for more than half a year without seeking its return or otherwise claiming any interest in the vehicle.
We acknowledge that Alaska appellate decisions have not addressed the question of standing in this precise context. However, the Alaska Supreme Court has held that a defendant has no right to contest the search of a vehicle unless the defendant "[can] show either ownership, possession, or rights to possession of the property." Christian v. State, 513 P.2d 664, 668 (Alaska 1973). In Christian, the supreme court held that the defendant had no right to challenge a consent to search given by the previous owner of the vehicle when the legal transfer of the vehicle's ownership was still incomplete and the defendant had not obtained actual or constructive possession of the vehicle. We reach a similar conclusion in Saelee's case. Even though Saelee apparently had actual possession and use of the Blazer at the time of the offenses in this case, Saelee failed to demonstrate that he had any protected privacy interest in the truck at the time of the search. See United States v. Melucci, 888 F.2d 200, 202 (1st Cir. 1989) (holding that the defendant lacked standing to contest the search of a rented storage unit when, at the time of the search, the landlord had re-taken possession of the unit and had terminated the lease because the defendant failed to pay rent); United States v. Poulsen, 41 F.3d 1330, 1336-37 (9th Cir. 1994) (analogous holding) (overruled on other grounds); United States v. Rahme, 813 F.2d 31, 34-35 (2d Cir. 1987) (holding that when a hotel guest's period of occupancy has expired or has been lawfully terminated, the guest does not have a legitimate expectation of privacy in the hotel room, nor a legitimate expectation of privacy in articles left behind, of which the hotel had lawfully taken possession); People v. Higgins, unpublished, No. B144511, 2002 WL 337423, at *8-9 (Cal. Ct. App. Mar. 4, 2002) (holding that the defendant had no legitimate expectation of privacy in a vehicle after it was taken to an impound lot and subjected to an inventory search, when the defendant made no attempt to retrieve the vehicle).
Moreover, even if Saelee had had a cognizable expectation of privacy in the Blazer, he would not be entitled to suppression of the pistol found in the vehicle because the search that uncovered the pistol was performed by a private person (the prospective buyer of the vehicle) without instigation by the police.
The police did not ask the prospective buyer to search the Blazer, nor did the police even know that the search was occurring. Thus, even if Saelee had standing to challenge the search, Saelee would not be entitled to suppression of the pistol — because the Fourth Amendment only constrains governmental action, and thus a search conducted by a private person does not violate the Fourth Amendment. See Paul v. State, 57 P.3d 698, 703 (Alaska App. 2002); Burdeau v. McDowell, 256 U.S. 465, 475; 41 S. Ct. 574, 576 (1921).
Saelee points out that even though the prospective buyer may have initially discovered the pistol, the buyer then summoned the owner of Rusty's Towing Service, pointed out the location of the pistol to him, and surrendered the pistol to him. Saelee argues that this series of actions meant that the government was substantially involved in the seizure of the pistol, because the towing service was contractually obligated to turn over any weapons discovered in the vehicle to the Anchorage police.
But these facts are analogous to the situation that this Court discussed in O'Connor v. Anchorage, 907 P.2d 1377, 1380 (Alaska App. 1995). In O'Connor, we quoted the following passage from Professor LaFave's treatise on the law of search and seizure: "If . . . [the] police have been called to the scene and are . . . present while a private person retrieves evidence of a crime which he had [earlier] uncovered before contacting the police, and the private person's authority to make the [previous] search is not obviously nonexistent, courts do not [require] the police to prevent the search." 907 P.2d at 1380, quoting Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment (2nd ed. 1987), § 1.8(b), Vol. 1, pp. 181-82. See also Paul, 57 P.3d at 702-03.
Here, the pistol was found in the Blazer by a private citizen who was inspecting the vehicle for potential purchase at an auction. He was not acting for the police, with the police, or even at their behest, and his motive for conducting the search was completely independent of the police interest in the pistol. Moreover, it is irrelevant that the contract between Rusty's Towing and the Anchorage Police Department required the towing service to turn the pistol over to the police, because neither Rusty's Towing nor the Anchorage Police Department authorized the search or knew that it was going to occur.
For these two reasons — Saelee's lack of standing, and the fact that the search was conducted by a private person — we conclude that Judge Aarseth properly denied Saelee's suppression motion. Whether Saelee's conviction for first-degree assault should be reversed because there was insufficient evidence that the victim's injury constituted a protracted disfigurement
Saelee was charged with first-degree assault against Ian Palma under AS 11.41.200(a)(1). To prove this offense, the State needed to show that Saelee recklessly caused "serious physical injury" to Palma by means of a dangerous instrument (here, a knife).
The meaning of "serious physical injury" is codified in AS 11.81.-900(b)(56). Under this statute, the term "serious physical injury" has two distinct meanings that conceivably apply to the facts of Saelee's case: first, any physical injury "caused by an act performed under circumstances that create a substantial risk of death"; and second, any physical injury "that causes serious and protracted disfigurement".
Saelee's jury was instructed on both of these definitions, but the jurors were not asked to declare which prong(s) of the definition the State had proved. Instead, the jurors returned a general verdict declaring that they found Saelee guilty of first-degree assault.
On appeal, Saelee argues that the State presented insufficient evidence of serious and protracted disfigurement to warrant a jury verdict in the State's favor on that second prong of the definition of "serious physical injury". Saelee concedes that the State presented sufficient evidence to support a guilty verdict on the first prong of the definition (physical injury inflicted under circumstances that created a substantial risk of death), but Saelee argues that there is no way to tell whether the jury found him guilty of first-degree assault under that prong of the definition or, instead, under the other prong of the definition — the "disfigurement" theory that was not supported by the evidence. Saelee therefore asks us to reverse his first-degree assault conviction. See Vigue v. State, 987 P.2d 204 (Alaska App. 1999).
Saelee's underlying claim — that the evidence was insufficient to prove a serious and protracted disfigurement — is raised for the first time on appeal. Saelee's trial attorney did not object to the jury's receiving instructions on both prongs of the definition of "serious physical injury", nor did the defense attorney ask the trial judge to grant Saelee a partial judgement of acquittal on the "disfigurement" prong of the definition. For this reason, Saelee must show that the insufficiency of the evidence to establish the "disfigurement" prong constitutes plain error.
To establish plain error, not only must Saelee establish that error occurred, but Saelee must show that his trial attorney had no apparent tactical reason to refrain from bringing this issue to the trial judge's attention, and Saelee must also show that the error was so prejudicial to the fairness of the proceedings that failure to correct the error would perpetuate manifest injustice. Vann v. State, 229 P.3d 197, 212-13 (Alaska App. 2010).
(a) The underlying facts of Saelee's infliction of injury on Palma
As described earlier in this opinion, after Saelee's initial fight with his common-law wife, Lama Phothong, Saelee drove to the apartment shared by Lama's sister, Vantiene Phothong, and her boyfriend, Ian Palma. Saelee managed to get through the outer security door of the apartment, and then he climbed onto the deck and entered the apartment through an unlocked sliding door.
Saelee was armed with both a pistol and a machete-style knife. He pointed the pistol at Palma with one hand and pressed the blade of the knife against Palma's neck with the other hand. When Palma told Saelee that he didn't know where Lama Phothong was, Saelee asked Palma, "You don't think I'm going to kill you or something?", and then Saelee repeatedly swung his knife at Palma's neck, upper body, and legs.
After Saelee left the apartment (because he found out that Vantiene Phothong had called the police), Palma and Vantiene became aware that Palma had suffered a cut to his neck, on the left side near his collar bone. Vantiene described the cut as "big" and "wide", "with blood just pouring out of it".
The prosecutor introduced several photographs depicting the injury. In particular, State's Exhibit 20 shows Palma's neck wound after emergency room personnel had closed the wound with six stitches. According to the testimony, Palma's stitches were removed after approximately a week and a half. Palma stated that the area of the wound gets "sore when it's cold outside" and that he couldn't scratch it "because if you put too much pressure [on it], it hurts." Palma added that the wound would occasionally bother him: he would feel a "sharp pain", but only "once in a blue moon".
At the time of Saelee's trial, Palma had a visible scar on his neck. The prosecutor wanted Palma to pull up his shirt so the jury could see the scar, but the trial judge concluded that it would be unnecessarily embarrassing for Palma to display himself to the jurors, so the judge had the prosecutor show the jury a photograph of the current condition of the injury. State's Exhibit 54 depicts the scar on Palma's neck at the time of Saelee's trial.
(b) How this issue was litigated at Saelee's trial
When the parties were discussing jury instructions toward the end of the trial, Saelee's defense counsel initially stated that he planned to object to the State's proposed instruction defining "serious physical injury" — i.e., the instruction that incorporated both prongs of the statutory definition. However, the defense attorney later told the judge that he had decided not to object to the instruction.
In her summation to the jury, the prosecutor noted that the jurors had been instructed on both prongs of the definition of "serious physical injury", but the prosecutor asked the jurors to concentrate on the first prong: a physical injury inflicted under circumstances that created a substantial risk of death:
Prosecutor: Count VI[, which charges first-degree assault,] relates to the injury [that Saelee] inflicted on Ian [Palma]. . . . I'd ask you to note [that] there are [two] different theories of [serious] physical injury.
[T]he injury actually sustained by Mr. Palma was a cut to his neck, and it required stitches. I don't know how clear [it is], but you'll have these [photographs] to look at. There was a scar, and if you look carefully you can even see the stitch marks. One theory of serious physical injury is causing serious protracted disfigurement, protracted impairment of health. . . . [You] can [decide] on that particular theory.
However, the theory [that] the State asks [you] to consider carefully . . . is the first part of the definition: "serious physical injury" means physical injury caused by an act performed under circumstances that create a substantial risk of death. There is no question that the cut [on Ian Palma's neck] constitutes physical injury. . . . If physical injury is inflicted with a dangerous instrument and under circumstances that create a substantial risk of death, [then it fits] one of the legal definitions of "serious physical injury".
The prosecutor then recounted the circumstances of Saelee's attack on Palma, and she argued that this attack created a substantial risk of death:
Prosecutor: [F]ortuitously, [even though] his neck was sliced, [only] a few stitches were . . . required to take care of most of the damage. However, . . . [Saelee was] swinging a knife: [he was] enraged, crazed, screaming, yelling, swinging a knife at a man crouched against a wall. [Those are] circumstances that create a risk of death. That is an extremely dangerous situation, and that . . . is the part [of the definition of "serious physical injury"] that is most clearly established beyond a reasonable doubt by the evidence in this case. When Kao Saelee was swinging that knife at Mr. Palma, he caused physical injuries, and he did so by an act performed under circumstances that created a substantial risk of death. And that's the basis of the [first-degree] assault . . . charge in this case.
When Saelee's defense counsel addressed the first-degree assault count in his summation to the jury, he argued that the State was trying to inflate a third-degree assault into a first-degree assault — and that the evidence failed to support the State's allegation:
Defense Counsel: The only difference [between first-and third-degree assault lies] in the definition of what is required. One requires physical injury; one requires serious physical injury. I would submit [that] it is a quantum leap in proof[.] . . . The truth is, [the State's evidence] simply doesn't meet the definition of serious physical injury beyond a reasonable doubt. There's a lack of evidence.
. . .
I don't believe that it's even a close call with respect to the [second] definition of "serious physical injury", which is serious and protracted [disfigurement or] impairment of health, or protracted loss or impairment of a body member or organ. . . . [Palma's injury] certainly doesn't rise to [a] level that meets [that] definition. . . . [W]hat the State has attempted to do here is to get the highest charge they can by using technical terms[, and by] defining those in a manner which is very, very helpful to their case, but . . . I [submit] to you . . . that this is a case where [Saelee] caused [only] physical injury. . . . [T]he State's evidence simply doesn't meet the definition [of "serious physical injury"].
In rebuttal, the prosecutor conceded that the evidence supporting the second prong of the definition was thin, and she asked the jurors to concentrate on the first prong of the definition:
Prosecutor: "Serious physical injury" means physical injury caused by an act performed under circumstances that create substantial risk of death, or physical injury that causes serious and protracted disfigurement [or] protracted impairment of health. . . . [What you have] to decide is whether the defendant's conduct fits within this definition. [The evidence] might [only] tangentially fit the [second part] of the definition here. I didn't really argue that [prong of the definition] because [the evidence] clearly fits . . . [the part of the definition that speaks of] physical injury caused by an act performed under circumstances that create a substantial risk of death.
At the close of their deliberations, the jury returned a general verdict finding Saelee guilty of first-degree assault. That is, the jury's verdict did not specify the theory of "serious physical injury" that the jurors believed had been proved.
(c) Our analysis of this issue
We have examined the testimony describing Palma's injury, as well as the photographic depiction of that injury at the time of Saelee's trial. We tend to agree with Saelee that this evidence is insufficient to support a conclusion that Palma's injury constituted a serious and protracted disfigurement.
The Alaska Supreme Court has defined "disfigurement" in a tort law context as an injury that "impairs or injures the beauty, symmetry, or appearance of a person . . . [or that] renders [a person's appearance] unsightly, misshapen, or imperfect." Bethel v. Peters, 97 P.3d 822, 829 (Alaska 2004). Under this rule, the evidence is sufficient to prove disfigurement "[i]f a reasonable person would see the injury as detracting from the plaintiff's appearance". Ibid.
Quoting Black's Law Dictionary (5th ed. 1979), p. 420.
In Akaran v. State, unpublished, 2005 WL 1026992 (Alaska App. May 4, 2005), the defendant bit the victim around her nose and eye, leaving a scar that ran from the victim's eyebrow and eye to the bridge of her nose. This scar — which a medical expert testified would be permanent — was a different color from the rest of the victim's face, and it was readily visible in photographs. We held that this evidence was sufficient to establish a "serious and protracted disfigurement". Id. at *2-5.
Palma's injury is considerably less visible. His scar (as depicted in State's Exhibit 54) is a thin white line on the side of his neck. Even in the photographic exhibit, it is difficult to see this scar if one is not looking closely. If we were to declare this evidence sufficient to establish a "serious and protracted disfigurement", we would essentially be saying that any visible scar constitutes a "serious physical injury" for purposes of the assault statutes. We do not believe that the legislature intended this term to be interpreted so broadly. We therefore agree with Saelee that the State's evidence fails to support a verdict of "serious physical injury" under the disfigurement prong of the statutory definition.
However, as we explained earlier, it is not enough for Saelee to show that the evidence was insufficient to justify a jury instruction on the "disfigurement" prong of the definition of "serious physical injury". Because Saelee is pursuing a claim of plain error, he must also show that his trial attorney had no tactical reason to refrain from bringing this problem to the trial judge's attention, and he must also show that this error prejudiced the fairness of the proceedings to such an extent that failure to correct the error would perpetuate manifest injustice.
Vann v. State, 229 P.3d 197, 212-13 (Alaska App. 2010).
Here, it is conceivable that the defense attorney chose to allow the jury to be instructed on the disfigurement prong precisely because the State's evidence on this prong was so weak. The weakness of the State's evidence on this point allowed the defense attorney to argue that the State had overcharged Saelee — that Saelee's attack on Palma was really a third-degree assault, and that the State was grasping at straws in an attempt to inflate the seriousness of this offense.
Earlier, we quoted the relevant portion of the defense attorney's final argument — the portion where the defense attorney told the jurors that the evidence "[was not] even . . . close . . . with respect to the [disfigurement prong of the] definition of `serious physical injury'", and where the defense attorney argued that "what the State has attempted to do here is to get the highest charge they can by [defining] technical terms . . . in [the] manner [most] helpful to their case". In other words, the defense attorney used the obvious weakness of the State's evidence of disfigurement as a way of casting doubt on the probative force of the State's evidence with regard to the other prong of the definition of "serious physical injury".
Moreover, based on our examination of the record, we are convinced that is unlikely that the jurors relied on a theory of "serious and protracted disfigurement" when they found Saelee guilty of first-degree assault. We have already quoted the relevant portion of the prosecutor's summation to the jury on this point. Although the prosecutor never expressly conceded that the evidence failed to prove serious and protracted disfigurement, the prosecutor repeatedly asked the jury to focus their attention on the other prong of the definition of "serious physical injury" — the prong that called for proof of the infliction of any physical injury under circumstances that created a substantial risk of death.
We note in particular that, after the defense attorney pointed out the weakness of the State's case with respect to disfigurement, the prosecutor conceded (in rebuttal) that the evidence "might [only] tangentially fit the [`disfigurement' prong] of the definition" — but that the State was "[not] really argu[ing]" that prong of the definition, "because [the evidence] clearly fits . . . [the other part of the definition that speaks of] physical injury caused by an act performed under circumstances that create a substantial risk of death."
In other words, by the end of Saelee's trial, both parties were telling the jury that Palma's injury did not qualify as a "serious and protracted disfigurement", and the prosecutor was asking the jury to convict Saelee of first-degree assault on the theory that Palma suffered physical injury under circumstances where Saelee's conduct created a substantial risk of death.
When a defendant claims that a jury instruction constituted plain error, the defendant must show that there is a "high likelihood" that the flawed instruction led the jury to decide the case on an erroneous theory. Saelee has failed to show this.
Khan v. State, 204 P.3d 1036, 1040-41 (Alaska App. 2009), citing Aviation Associates, Ltd. v. TEMSCO Helicopters, Inc., 881 P.2d 1127, 1131 n. 7 (Alaska 1994).
For these reasons, even though we agree with Saelee that the evidence fails to support a finding of "serious and protracted disfigurement", this flaw does not amount to plain error, given the way Saelee's case was litigated. We therefore uphold Saelee's conviction for first-degree assault. Saelee's sentence appeal
For his various crimes committed during the three days in May 2005, Saelee was convicted of eight felonies: one count of first-degree assault (a class A felony), one count of first-degree burglary (a class B felony), and six counts of third-degree assault (a class C felony). In addition, Saelee was convicted of fourth-degree assault (a class A misdemeanor) for again attacking Lama Phothong while he was on bail release from his felony charges.
AS 11.41.200(b).
AS 11.46.300(b).
AS 11.41.220(e).
AS 11.41.230(b).
Saelee was a first felony offender, although he had been adjudicated a delinquent juvenile for committing a burglary — conduct that would have been a felony had he been an adult. Because Saelee was a first felony offender, he faced a presumptive range of seven to eleven years' imprisonment for the first-degree assault (because he carried a firearm during the assault), a presumptive range of one to three years' imprisonment for the first-degree burglary, and a presumptive range of zero to two years' imprisonment for each of the six third-degree assaults.
AS 12.55.125(c)(2)(A), AS 12.55.125(d)(1), and AS 12.55.125(e)(1), respectively.
For the offense of first-degree assault, Judge Aarseth sentenced Saelee to seven years to serve — a sentence at the bottom of the presumptive range. For the burglary, Judge Aarseth imposed a consecutive one year's imprisonment. For the various third-degree assaults, Judge Aarseth imposed an additional composite total of two and a half years' imprisonment (actually, two and a half years and two days). Thus, Saelee's composite sentence for all of these crimes is 10½ years to serve.
On appeal, Saelee argues that this composite sentence is excessive because his crimes all stemmed from the same underlying emotional problem — his "immature response to the breakup of [his] relationship" with Lama Phothong. Saelee contends that with proper treatment, he could overcome his inappropriate "anger and jealousy", and he argues that Judge Aarseth should have imposed a lesser sentence that emphasized Saelee's rehabilitation and treatment.
A sentencing judge has substantial discretion when evaluating the priority of the various sentencing goals codified in AS 12.55.005, and in assessing the weight particular sentencing goals should receive under the facts of a particular case. We note that, in his sentencing remarks, Judge Aarseth recognized the importance of Saelee's rehabilitation, but he concluded that Saelee represented a significant danger to the public and his crimes called for a significant sentence of imprisonment — meaning that his rehabilitation would have to take place in prison, or during his ensuing period of probation.
See Asitonia v. State, 508 P.2d 1023, 1026 (Alaska 1973).
The record supports this conclusion. Saelee's offenses did not arise from a momentary and isolated loss of control. Rather, over a period of three days, Saelee terrorized his common-law wife, her sister, and her sister's boyfriend, along with their children. Even after he was arrested and charged with these offenses, he could not restrain himself: he assaulted his common-law wife again while he was released on bail.
Moreover, despite these aggravating circumstances, and despite the statutory aggravating factor that Saelee had a delinquency adjudication for felony conduct, Saelee's composite sentence of 10½ years to serve is still within the presumptive range that Saelee might have received for one offense alone — his conviction for first-degree assault.
AS 12.55.155(c)(19).
We conclude that Saelee's composite sentence is not clearly mistaken; that is, it is within the range of reasonable sentences that a judge might impose, based on the totality of Saelee's conduct and his background. Saelee's claim that the statute governing consecutive sentencing, AS 12.55.127, was enacted illegally
See, e.g., State v. Wentz, 805 P.2d 962, 965 (Alaska 1991); McClain v. State, 519 P.2d 811, 813 (Alaska 1974).
Saelee claims that AS 12.55.127, the statute that requires certain sentences to be imposed either wholly or partially consecutively, was enacted unlawfully because the underlying session law — SLA 2004, chapter 125 — violated the Alaska Constitution's requirement that all session laws must be confined to a single subject.
SLA 2004, chapter 125 was entitled "An Act relating to nonindigenous fish and consecutive sentencing". We briefly described the legislative history of this session law in Smith v. State, 187 P.3d 511, 516-17 (Alaska App. 2008). In Smith, we expressly stated that we took no position on whether this session law violated the "single subject" provision of our state constitution. We again find it unnecessary to resolve this issue.
Saelee did not challenge the constitutionality of AS 12.55.127 in the superior court; rather, he raises this claim for the first time on appeal, as a claim of plain error. Because Saelee is claiming plain error, he must show that failure to correct this error would perpetuate manifest injustice. But in Saelee's case, it is clear that Judge Aarseth's sentencing decision was not significantly affected by the requirements of AS 12.55.127.
Judge Aarseth imposed all of Saelee's sentences consecutively, even the sentences that were not governed by the requirements of AS 12.55.127. Moreover, as we have already pointed out, Saelee's composite sentence of 10½ years to serve is within the applicable presumptive range for Saelee's single most serious offense, first-degree assault. Thus, even if the restrictions of AS 12.55.127 had not applied to Saelee's case, Judge Aarseth could have imposed the same composite sentence by sentencing Saelee to 10½ years for first-degree assault and then making all of the other sentences concurrent.
In other words, there appears to be no reason to believe that Saelee's sentence would have been any different even if AS 12.55.127 did not apply — that is, even if SLA 2004, chapter 125 were struck down as violative of the single subject rule. Accordingly, Saelee has failed to show plain error.
Conclusion
The judgement of the superior court is AFFIRMED.