Opinion
Court of Appeals No. A-9071.
May 2, 2007.
Appeal from the Superior Court, Third Judicial District, Anchorage, Philip R. Volland, Judge, Trial Court No. 3AN-03-10162 CR.
Appearances: David D. Reineke, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Nancy R. Simel, 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 Cheng Saetern of one count of kidnapping, one count of third-degree assault, and one count of fourth-degree assault. These charges arose out of an incident in Anchorage where Saetern pulled his girlfriend out of a car and assaulted her, assaulted a bystander who attempted to intervene, and then coerced his girlfriend to get into his car and leave with him by threatening to harm their child.
Saetern argues that there was insufficient evidence to support his convictions for third-degree assault of the bystander and for kidnapping. But we conclude that fair-minded jurors exercising reasonable judgment could conclude that the State had proven those two charges beyond a reasonable doubt. Therefore, we affirm Saetern's convictions.
See Dorman v. State, 622 P.2d 448, 453 (Alaska 1981); Deal v. State, 657 P.2d 404, 405 (Alaska App. 1983).
Background facts and proceedings
By late September 2003, Saetern and Marlena Ehredt no longer lived together but had an 11-month-old daughter, Arianna. Saetern called Ehredt on September 21 and asked her to meet with him to talk about their relationship. Ehredt reluctantly agreed and obtained a ride to Saetern's house for herself and Arianna. Saetern was waiting outside his house with the car running when they arrived; he appeared to be angry. Ehredt got into Saetern's car with her daughter.
As they talked, Ehredt thought that Saetern seemed "mad at everybody." Saetern complained that "everybody was using him and [Ehredt's] friends were out to get him."
Saetern stopped at a local store and purchased a beer, then continued driving, eventually turning onto Reka Street. Saetern stopped the car in the middle of the road near an apartment building, grabbed something from inside the car, and walked towards a parked car in which two men, Frank Baldwin and a man named Eddie, were seated. Saetern's car was blocking traffic, so Ehredt got in the driver's seat and pulled over.
Saetern paced back and forth, yelling at the men in the car. Saetern was arguing about some money that Eddie owed Saetern. Eddie told Saetern "you better bring more than a knife." Saetern, who had a knife, responded, "I've got a gun in my car."
Ehredt feared that a fight would break out involving Saetern and the men in the car. She saw two people she recognized, Kao Saechao and James Reinold, standing nearby. Ehredt took her daughter and her belongings out of Saetern's car and asked Saechao and Reinold if she could get in their car. They let her in. She told Kathleen Petersen, Reinold's girlfriend who was sitting in the car, that Saetern was mad and "acting crazy" and asked if she could get a ride from them or call for her friends to pick her up.
Saetern walked back to his car, then over to the car in which Ehredt and Arianna were sitting. Saetern ordered Ehredt to get out of the car. Ehredt refused and told Saetern she did not want to go with him. Saetern persisted and told Ehredt to "get the fuck out of the car."
Saetern grabbed Ehredt's arm and tried to pull her out of the car. Saechao asked Saetern to calm down because he looked angry and told Saetern that he would take Ehredt home. Ehredt had Arianna on her lap and managed to break free and push herself farther into the car.
Ehredt started crying and asked Saetern to leave her alone. Petersen yelled at Saetern to stop and to leave Ehredt alone. Saetern pulled on Ehredt's belt loop, ripping her pants, and possibly also on her hair. Ehredt told Saetern that he was hurting her. Ehredt concluded that she would not be able to break free, so she put her daughter on the seat and stopped struggling.
Saetern yanked Ehredt out of the car and threw her to the ground. He kicked her repeatedly while she was on the ground.
Saechao touched Saetern and told him to stop. Reinold warned Saechao that Saetern had a knife. Saechao saw the knife in Saetern's hand. Saetern told Saechao to back up. Saechao backed away from Saetern "because [Saetern] had a knife" and because Saechao "didn't want to get hurt." He thought he "could have got hurt, like slashed or something." Saetern announced that he was going to "slash" the baby and kill Ehredt, although Ehredt testified that she did not hear this remark.
Saetern went to Saechao and Reinold's car, grabbed Arianna by her arm, and threw her into the car seat in Saetern's car. Ehredt was scared about what might happen to her and her daughter. Saetern told Ehredt to "get the fuck in the car." Ehredt did not want to get in the car with him; she testified that she would not have done so if he did not have Arianna in the car with him. She was concerned about the well-being and safety of her daughter. Saechao called 911 after Saetern, Ehredt, and Arianna drove away.
Saetern drove to a friend's house to pick up a friend to see a movie. Ehredt asked to get out of the car, but Saetern hit her and told her to shut up. Saetern told Ehredt "if you want to get the fuck out of the car then I'll kick your ass right now but I'll take the baby." When they stopped at the friend's house, Saetern went inside, and Ehredt got in the back seat and started to unbuckle her daughter to leave. Saetern saw what she was doing, and said "don't do anything stupid, buckle her back up . . . don't fucking try anything." Ehredt buckled Arianna's seat belt part way, so that she would be safe but so it would be easier to get her out of the car seat later.
Ultimately, Saetern stopped at a gas station to fill up. Saetern told Ehredt to go inside and pay. Once inside, Ehredt asked someone to call the police. A woman in the store called 911. Ehredt stood in line and stalled, so she would not have to get back in the car with Saetern. Saetern got out of the car with Arianna and entered the store.
The police arrived and began asking questions of people outside the store. Officer Richard Dykstra observed Saetern, who was holding Arianna, and Ehredt walking out of the store. He testified that Ehredt looked "terrified." Ehredt signaled to the officers that she was the person who needed assistance. Officer Dykstra interviewed Ehredt about what happened. Another officer, Officer Jade Baker, spoke with Saetern, who denied having fought with Ehredt. Later, the officers found a half-full bottle of beer, a knife, and a box cutter in Saetern's car.
The grand jury charged Saetern with one count of kidnapping, one count of third-degree assault on Ehredt, and one count of third-degree assault on Saechao. Later, three misdemeanor charges were added to the indictment: one count of fourth-degree assault on Arianna, one count of fourth-degree assault on Ehredt, and one count of driving while license cancelled, suspended, or revoked. The third-degree assault on Ehredt and the driving with suspended license charges were subsequently dismissed, leaving four charges for trial.
AS 11.41.300(a)(1)(C) and AS 11.41.220(a)(1)(A), respectively.
AS 11.41.230(a)(1) and AS 28.15.291(a)(1), respectively.
At the conclusion of the State's case, Saetern moved for a judgment of acquittal on all counts, with the exception of the fourth-degree assault on Ehredt. Saetern argued that the State had not proven Ehredt was restrained because she had not heard Saetern threaten to hurt Arianna. He argued that she was not restrained by fear because any fear she had was not reasonable. With respect to the charge of third-degree assault on Saechao, Saetern argued that his actions were not sufficient to place Saechao in "fear." Superior Court Judge Philip R. Volland denied the motion.
The jury found Saetern guilty of kidnapping, fourth-degree assault on Ehredt, and third-degree assault on Saechao, but acquitted him of fourth-degree assault on Arianna. Saetern appeals. Discussion
Saetern argues that there was insufficient evidence to support his convictions for kidnapping and third-degree assault on Saechao. He does not contest his conviction for assaulting Ehredt. When we review the sufficiency of the evidence supporting a conviction, we view the evidence in the record and all reasonable inferences from the evidence in the light most favorable to the State and determine whether reasonable jurors could conclude that the accused's guilt was established beyond a reasonable doubt.
See Dorman, 622 P.2d at 453.
See Simpson v. State, 877 P.2d 1319, 1320 (Alaska App. 1994).
Saetern argues that there was insufficient evidence to support a finding that Saechao was in fear of imminent serious physical injury as a result of Saetern's conduct. A defendant commits third-degree assault if he "recklessly . . . places another person in fear of imminent serious physical injury by means of a dangerous instrument." In Hughes v. State, this court ruled that the term "fear" has a particular meaning: "[T]he word `fear' 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."
AS 11.41.220(a)(1)(A).
56 P.3d 1088 (Alaska App. 2002).
Id. at 1090.
Saetern argues that Saechao did not actually fear imminent injury. However, a reasonable jury could conclude that, under the test in Hughes, Saechao perceived a threat of imminent injury as a result of Saetern's actions. Saechao was aware that Saetern was angry. He had just observed an argument between Saetern and two men, during which a gun and a knife were mentioned. He saw Saetern violently assault Ehredt. Finally, he was aware that Saetern had a knife in his hand. When Saetern told Saechao to back up, Saechao backed away "because [Saetern] had a knife," because he "didn't want to get hurt," and because he thought he "could have got hurt, like slashed or something." Thus, the jury was well within its authority to conclude Saechao apprehended a threat of injury as a result of Saetern's actions.
Saetern also argues that he could not have assaulted Saechao because he "never directed any conduct at him." But this court has held that a person need not actually point a weapon directly at another to have assaulted him. And the evidence showed that Saechao touched Saetern and told him to stop, Saetern turned and spoke directly to Saechao, telling him to back up, and Saechao backed off while being warned by Reinold that Saetern had a knife.
See Perotti v. State, 818 P.2d 700, 702 (Alaska App. 1991) (holding that actual possession and control over a gun is not necessary for a person to be placed in fear of injury by that gun).
We conclude that sufficient evidence was admitted for fair-minded jurors to conclude that Saetern placed Saechao in fear of imminent serious physical injury by means of a dangerous instrument.
Next, Saetern argues that there was insufficient evidence to support his conviction for kidnapping. To sustain a conviction for kidnapping, the State must prove that the defendant "restrain[ed] another with intent to . . . inflict physical injury upon . . . the restrained person or place[d] the restrained person or a third person in apprehension that any person [would] be subjected to serious physical injury." Saetern argues that there was insufficient evidence to support a finding that he restrained Ehredt.
AS 11.41.300(a)(1)(C).
"Restraint" for purposes of the kidnapping statute has a specialized meaning. According to AS 11.41.370(3), to restrain a person means to "restrict a person's movements unlawfully and without consent, so as to interfere substantially with the person's liberty by moving the person from one place to another or by confining the person either in the place where the restriction commences or in a place to which the person has been moved." And a restraint is considered to be "`without consent' if it is accomplished . . . by force, threat, or deception."
AS 11.41.370(3).
In Hurd v. State, this court held that "when a defendant restrains a victim to facilitate the commission of another offense, this restraint will not constitute a kidnapping if it is merely `incidental' to the commission of the other offense." Five factors guide the analysis of whether a restraint is incidental to another offense:
22 P.3d 12 (Alaska App. 2001).
Id. at 14.
(1) how long the victim was restrained;
(2) if the victim was moved, how far the victim was moved and where the victim was taken;
(3) whether, under the facts, the restraint exceeded what was necessary for commission of the defendant's target crime;
(4) whether the restraint significantly increased the risk of harm to the victim beyond the risk of harm inherent in the target crime itself; and
(5) whether the restraint had some independent purpose — i.e., whether the restraint made it significantly easier for the defendant to commit the target crime or made it significantly easier for the defendant to escape detection.
Id. at 19 (line breaks added).
The jury was properly instructed on these factors.
Saetern argues he did not restrain Ehredt when he grabbed her arm and yanked her out of the car because this conduct was not sufficiently separate from his assault to constitute a separate conviction for kidnapping. It may be that any restraint Saetern perpetrated on Ehredt by pulling her out of the car was not sufficiently separate from the fourth-degree assault on her to support the kidnapping count. But the State did not rely on this conduct alone to argue that Saetern had restrained Ehredt.
The prosecutor argued that the essence of the charge was not that Saetern restrained Ehredt when he pulled her out of the Saechao/Reinold car and assaulted her; rather, Saetern's assault on Ehredt coupled with Saetern's threat of further harm to Ehredt's child coerced Ehredt to get into his car. The prosecutor argued that the restraint began at that point.
Along with the restraint, the State had to show that Saetern intended to inflict injury on Ehredt or intended to place Ehredt in fear that she or another person would be subjected to serious physical injury. The prosecutor opposed the motion for judgment of acquittal on this basis and argued this to the jury in final argument. The jury could conclude that Saetern intended either or both alternatives in the subsection of kidnapping that was charged.
AS 11.14.300(a)(1)(C).
Saetern argues that Ehredt was not restrained by any threat of violence to Arianna because she did not hear him verbally threaten Arianna. But Ehredt could perceive a threat from Saetern without hearing that specific death threat. Ehredt testified that she was afraid for her baby's health and well-being. Ehredt had just been violently assaulted by Saetern. Ehredt saw Saetern roughly grab Arianna from one car and "throw" her into the car seat. Saetern had just been involved in a violent argument, was still angry, and was in possession of a knife. Saetern told Ehredt that he would leave without her and take the baby. Ehredt testified that she would not have gone with Saetern had her baby not been in the car. Once she was in Saetern's car, she repeatedly asked to be let out, but Saetern continued to threaten her, strike her, and tell her she would have to leave the baby behind if she got out. The jury could reasonably conclude that all these circumstances led Ehredt to perceive that her baby's safety would be in danger if she did not go with Saetern.
From all this evidence, the jury could reasonably conclude that Saetern restrained Ehredt with the intent to inflict further injury on Ehredt. The jury could also reasonably conclude that Saetern restrained Ehredt with the intent to place Ehredt in fear that Saetern would inflict serious physical injury on Arianna. Even though Ehredt did not hear Saetern's verbal threat to injure the child, the other evidence was sufficient for the jury to determine Saetern's intent. Sufficient evidence was admitted to support Saetern's conviction for kidnapping.
Conclusion
The judgment of the superior court is AFFIRMED.
I write separately to address Saetern's claim that there was insufficient evidence to support his conviction for kidnapping.
Assuming that the jury found the State's evidence believable, the most obvious way to charge kidnapping in this case would be to charge Saetern with kidnapping the infant Arianna under AS 11.41.300(a)(1)(B) — the provision of the statute that prohibits the act of restraining a person with the intent to "use the restrained person as a shield or hostage". The evidence showed that Saetern used Arianna as a hostage in order to coerce her mother, Marlena Ehredt, to do what Saetern commanded — i.e., to accompany Saetern when he left the scene, thus subjecting herself to further assaults.
But the State did not charge Saetern with kidnapping Arianna under subsection (a)(1)(B) of the statute. Rather, the State charged Saetern with kidnapping Ehredt herself under subsection (a)(1)(C) — the provision that prohibits the act of restraining another person with the intent to "inflict physical injury upon or sexually assault the restrained person[, or to] place the restrained person . . . in apprehension that any person will be subjected to serious physical injury or sexual assault".
The State's theory was that Saetern committed the actus reus of this crime — i.e., the act of restraining Ehredt — by first taking possession of Arianna, and then using Ehredt's fear that Saetern would harm Arianna as a means of coercing Ehredt to accompany him in his car.
The evidence showed that, during this confrontation, Saetern announced in the presence of bystanders that he intended to "slash" Arianna and kill Ehredt. At trial, Ehredt testified that she did not hear Saetern make this statement. But even assuming this to be true, the remaining evidence (Saetern's assaultive actions and his other threatening statements) would warrant the jury in concluding that Ehredt reasonably feared that Saetern would harm her child — and that Ehredt was therefore coerced by Saetern's possession of the child and his threats to drive away with the child if Ehredt did not get into his car.
Because the evidence is sufficient to support a finding that Saetern subjected Ehredt to a restraint, the remaining question is whether Saetern acted with the culpable mental state specified in subsection (a)(1)(C) when he engaged in this restraint. In the context of this case, the question is whether Saetern acted with the intent either (1) to inflict further physical injury on Ehredt or (2) to place Ehredt in fear that she or her child would be subjected to serious physical injury.
Again, given the evidence of Saetern's assaultive actions and statements, and given the fact that Saetern was threatening to leave the scene with Arianna in his possession, a reasonable jury could conclude that Saetern acted with at least one, if not both, of these intents.
For these reasons, I agree with my colleagues that the evidence was sufficient to support Saetern's conviction for kidnapping.