Opinion
Court of Appeals No. A-11602 No. 6317
04-27-2016
JESS F. SCHILBER, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Margi A. Mock, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Nancy R. Simel, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, 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 authority for any proposition of law. Trial Court No. 3KN-11-1547 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Kenai, Anna M. Moran, Judge. Appearances: Margi A. Mock, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Nancy R. Simel, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. Judge ALLARD.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Jess F. Schilber was convicted of coercion and several counts of assault after he hit his girlfriend, threatened her with a knife, and told her he would kill her and her family if she told anyone what happened. On appeal, Schilber argues that the superior court erred in denying his motion for judgment of acquittal on the coercion count. For the reasons explained below, we agree, and reverse the decision of the superior court.
Because Schilber argues that the superior court erred in denying his motion for judgment of acquittal, we relate the facts in the light most favorable to the State's case. Gray v. State, 463 P.2d 897, 905 (Alaska 1970).
Schilber and his girlfriend, T.Z., lived in Sterling in a cabin. On September 2, 2011, the couple was preparing to watch a movie when Schilber communicated to T.Z. that he was interested in having sex. T.Z. rebuffed Schilber's advances because she was still full from dinner. When Schilber reacted angrily to this rejection, T.Z. kissed him and rubbed his penis to "satisfy" him. Schilber responded by kissing and fondling T.Z. and licking her vagina. But when Schilber digitally penetrated T.Z., she pushed him away and told him "you know I don't like that." In response, Schilber straddled T.Z., twisted her head with his forearm until she thought her neck might break, and digitally penetrated her again, this time more forcefully. In the process, Schilber slammed T.Z.'s head against the back of the bed, leaving a bump on her head. Schilber also accused T.Z. of being a "whore" and a "slut," and told her he hated her.
T.Z. struggled to break free, hitting Schilber and yelling at him to stop. To silence her, Schilber stuffed a shirt in T.Z.'s mouth. Schilber also picked up a large kitchen knife, but he put the knife down after T.Z. said "don't do it, please put it down." Schilber eventually let T.Z. go, and she got dressed and sat in a chair. Following the assault, Schilber told T.Z. he would kill her and her family if she told anyone what happened. Schilber also called Alaska Airlines to make arrangements for T.Z. to fly back to her home in California.
Later, the phone rang, but T.Z. did not answer it. T.Z. testified that she believed it was her friend Debra Miller, who was the only person likely to call that late at night. T.Z. testified that she did not answer the phone or leave the cabin because she was tired and sore, and because she was afraid of Schilber.
The landlord heard the altercation from his nearby cabin, and after ten or fifteen minutes he called Debra Miller, who had introduced him to Schilber and T.Z. In response, Miller went to Schilber and T.Z.'s cabin and knocked on the door. T.Z. answered the door and immediately told Miller that Schilber had hit her. Miller drove T.Z. to the state trooper post, where T.Z. reported the assault.
Schilber was prosecuted for first-degree sexual assault, coercion, third-degree assault (for threatening T.Z. with the knife), and two counts of fourth-degree assault. At trial, after the State presented its evidence, Schilber moved for a judgment of acquittal on the coercion charge. The superior court took that motion under advisement and, after the jury returned its verdicts, denied the motion.
AS 11.41.410(a)(1), AS 11.41.530(a)(1), AS 11.41.220(a)(1)(A), AS 11.41.230(a)(3), respectively.
The jury acquitted Schilber of sexual assault but convicted him of the other charges. Schilber now appeals the coercion conviction.
Why we agree with Schilber that the superior court erred by denying his motion for judgment of acquittal on the coercion charge
Under AS 11.41.530(a)(1), a person commits the crime of coercion, a class C felony, if
the person compels another to engage in conduct from which there is a legal right to abstain or abstain from conduct in which there is a legal right to engage, by means of instilling in the person who is compelled a fear that, if the demand is not complied with, the person who makes the demand or another may ... inflict physical injury on anyone ... .
To convict a person of coercion under this statute, it is not enough for the State to show that the victim took a certain action, or refrained from taking a certain action, out of fear of the defendant. Instead, the State must prove that (1) the defendant specifically demanded that the victim do something or abstain from doing something; (2) the defendant threatened to physically injure the victim or someone else if the demand was not complied with; and (3) the defendant's threat had its intended consequence — that is, the victim performed or abstained from the specific action demanded. In this context, the demand may be explicit or implicit, but it "must be sufficiently specific such that it communicates the act desired from the victim."
See McGraw v. Cox, 285 P.3d 276, 280 (Alaska 2012); Powell v. State, 12 P.3d 1187, 1190 (Alaska App. 2000).
McGraw, 285 P.3d at 280.
Here, there is no dispute that the jury had sufficient evidence to find that Schilber threatened to kill T.Z. and her family if she told anyone that he had assaulted her. But Schilber argues that the State presented no evidence that this threat had its intended consequence — because, he argues, T.Z. ultimately did report the assaults, and to the extent she delayed doing so, that delay was not attributable to Schilber's threat. Schilber argues that because of these deficiencies in the State's evidence at trial, the superior court should have granted his motion for judgment of acquittal on the coercion charge.
When a trial court considers a motion for judgment of acquittal, it must view the evidence in the light most favorable to the State. If the trial court determines, viewing the record in this light, that fair-minded jurors in the exercise of reasonable judgment could conclude that the defendant's guilt was established beyond a reasonable doubt, the court must submit the charge to the jury. We apply this same test on appeal and review the question de novo.
Gray, 463 P.2d at 905; S.R.D. v. State, 820 P.2d 1088, 1091, 1095 (Alaska App. 1991).
See Des Jardins v. State, 551 P.2d 181, 184 (Alaska 1976).
The undisputed evidence at Schilber's trial showed that T.Z.'s friend Debra Miller came to the cabin shortly after the assault, and that T.Z. immediately told Miller that Schilber had hit her. Thus, Schilber's threat to kill T.Z. and her family if she told anyone what happened did not prevent T.Z. from reporting the assault. Nevertheless, the State contends that there was sufficient evidence for the jury to find that T.Z. refrained from reporting the assault for a short period of time because of Schilber's threat. Specifically, the State points to evidence that, before Miller came to the door, T.Z. did not leave the cabin or answer the phone — conduct she had a legal right to engage in — at least in part because she was afraid of Schilber.
A New York appellate court, applying a similarly worded coercion statute, found sufficient evidence to convict a defendant of coercion for threatening to rape or kill his girlfriend if she reported his assault even though the girlfriend eventually reported the assault. The appellate court found sufficient evidence to support the jury's verdict based on the victim's direct testimony that she initially refrained from contacting the police because she was afraid of the defendant and feared that he would carry out his threats to rape or kill her if she told anyone what he had done.
Under New York law, "A person is guilty of coercion ... when he or she compels or induces a person to engage in conduct which the latter has a legal right to abstain from engaging in, or to abstain from engaging in conduct in which he or she has a legal right to engage ... by means of instilling in him or her a fear that, if the demand is not complied with, the actor or another will: ... [c]ause physical injury to a person[.]" N.Y. Penal § 135.60 (McKinney 2008) (defining second-degree coercion); see N.Y. Penal § 135.65 (McKinney 2008) (defining first-degree coercion).
People v. Williamson, 21 A.D.3d 575 (N.Y. App. Div. 2005).
Id. at 576. --------
Here, by contrast, T.Z. did not testify that she stayed in the cabin and refrained from answering the phone because she was afraid Schilber would make good on his threat to kill her and her family. Rather, T.Z. testified that she stayed in the cabin and did not answer the phone because she was tired, sore, upset, had nowhere to go, and did not know if Schilber was "going to jump up and do something else." As we explained, to prove that Schilber was guilty of coercion, it was not enough for the State to show that T.Z. was afraid of Schilber because he had assaulted her that night or because he had a history of assaulting her. The State had to show that T.Z. abstained from reporting the assault because of Schilber's specific threat to kill her and her family if she did. Because the State offered no evidence from which a fair-minded juror could make that finding, we conclude that the superior court erred in denying Schilber's motion for judgment of acquittal on the coercion charge.
We further note that, from our review of the record, it appears that the jury may have convicted Schilber on an erroneous theory. In closing argument, the prosecutor suggested to the jury that it could convict Schilber of coercion if it found that T.Z. decided not to leave the cabin or answer the phone "based on what he'd done, the knife, everything that had happened." As we just explained, this was not a correct statement of the law; to convict Schilber of coercion, the jury had to find that T.Z. refrained from reporting the assault specifically because of Schilber's threat to kill her and her family if she did.
Although the superior court offered two alternative grounds for denying Schilber's motion for judgment of acquittal, we find them unpersuasive. First, the superior court theorized that there was sufficient evidence for the jury to find that Schilber implicitly threatened to injure T.Z. if she left the cabin. But the only evidence on this issue was T.Z.'s testimony that she stayed in the cabin in part because she was afraid of Schilber; there was no evidence that Schilber threatened T.Z., explicitly or implicitly, with physical injury if she did leave. Indeed, there was evidence Schilber wanted her to leave: T.Z. testified that after the assault Schilber called Alaska Airlines to arrange a ticket for her to fly back to California.
Second, the court theorized that there was sufficient evidence for the jury to convict Schilber of coercion because he stuffed a shirt in T.Z.'s mouth to silence her. According to the court, "the victim had a right to cry for help which she abstained from [doing] when the Defendant told her to be quiet and stuffed a shirt in her mouth." The State concedes that this is not a valid ground for affirming the superior court's decision, and we agree. Demanding that a person be silent and then stuffing a shirt in the person's mouth is not obtaining silence by means of a threat. Instead, it is obtaining silence by means of force — which is a criminal offense, but not the offense of coercion.
Conclusion
We REVERSE Schilber's coercion conviction and REMAND this case to the superior court for further proceedings consistent with this decision.