Opinion
A-13807 0314
03-22-2023
DONALD ALLEN SPARKS, Appellant, v. STATE OF ALASKA, Appellee.
Michael Barber, Barber Legal Services, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. RuthAnne Beach, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Third Judicial District, Anchorage Trial Court No. 3AN-19-07045 CR, Erin B. Marston, Judge.
Michael Barber, Barber Legal Services, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
RuthAnne Beach, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee
Before: Wollenberg and Harbison, Judges, and Bolger, Senior Supreme Court Justice. [*]
SUMMARY DISPOSITION
Donald Allen Sparks was convicted, based on his no contest pleas, of first-degree assault and second-degree theft for taking a cell phone and speaker belonging to Douglas Gamage, and then striking Gamage on the head with a baseball bat when Gamage told Sparks to return the items.
AS 11.41.200(a)(1) and AS 11.46.130(a)(1), respectively.
Because Sparks had been previously convicted of a felony, the applicable presumptive range for the assault was 10 to 14 years, and the presumptive range for the theft was 2 to 4 years. The sentencing court found one aggravating factor - that Sparks was on probation for another felony charge or conviction - and as a result, the court was authorized to sentence Sparks to a maximum of 20 years for the assault and a maximum of 5 years for the theft. The court ultimately imposed a composite sentence of 13 years with 3 years suspended (10 years to serve).
AS 12.55.125(c)(3) and (e)(2), respectively.
AS 12.55.155(c)(20).
AS 12.55.125(c) and (e), respectively.
On appeal, Sparks argues that the sentencing court erred when it failed to find three mitigating factors applicable to the assault: (1) that he committed the offense under some degree of duress, coercion, threat, or compulsion insufficient to constitute a complete defense, but that significantly affected his conduct; (2) that he acted with serious provocation from the victim; and (3) that his conduct was among the least serious conduct included in the definition of the offense.
AS 12.55.155(d)(3), (d)(6), and (d)(9), respectively.
We have reviewed the record, and we see no error in the court's rejection of the proposed mitigators. The first and second proposed mitigators, duress or threat and serious provocation, were based on the fact that Gamage asked Sparks to return his property and said that he would take it by force if Sparks did not return it. But the sentencing judge found that Gamage's statement was a predictable reaction to Sparks's theft of Gamage's belongings, while Sparks's reaction - hitting Gamage on the head with a metal baseball bat - was "inappropriate" and "extreme." The court also reviewed a video recording of the incident and found that Gamage had not taken any action to provoke Sparks's response. These findings are well supported by the record. We therefore agree with the superior court that Gamage's lawful demand for the return of his property did not constitute "serious provocation," nor was it of a "sufficiently extraordinary nature" that it approached being a defense to Sparks's crime.
AS 12.55.155(i) (relying on AS 11.41.115(f) for the meaning of "serious provocation").
Bynum v. State, 708 P.2d 1293, 1294 (Alaska App. 1985) (recognizing that in order to establish the (d)(3) mitigator, the compulsion must be of "a sufficiently extraordinary nature that it approaches being a defense to the crime"). We note that Gamage himself would potentially have been justified in using nondeadly force in light of Sparks's theft of his belongings. See AS 11.81.350(a) ("A person may use nondeadly force upon another when and to the extent the person reasonably believes it is necessary to terminate what the person reasonably believes to be the commission or attempted commission by the other of an unlawful taking or damaging of property or services.").
The third proposed mitigator, least serious conduct, was based on the fact that Sparks only struck Gamage a single time and that Gamage's injury was, according to Sparks, among the least serious contemplated within the definition of first-degree assault. But Sparks struck Gamage on the head with a metal baseball bat. When medics responded to the scene, they discovered that Gamage was spitting up blood, could not see out of his left eye, was disoriented, and had difficulty standing. Hospital staff later reported that Gamage suffered a brain hemorrhage and skull fracture as a result of the assault, and Gamage's medical bills totaled almost $100,000. Under these circumstances, we uphold the court's determination that Sparks's assault of Gamage was not among the least serious conduct included within the definition of the offense.
The judgment of the superior court is AFFIRMED.
[*]Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).