Opinion
Court of Appeals No. A-12762 No. 6944
05-19-2021
JOSHUA S. ST. CLAIR, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Marilyn J. Kamm, Attorney at Law, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. Hazel C. Blum, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, 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, although it may be cited for whatever persuasive value it may have. See McCoy v . State , 80 P.3d 757, 764 (Alaska App. 2002). Trial Court No. 3PA-14-03666 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Palmer, Vanessa H. White, Judge. Appearances: Marilyn J. Kamm, Attorney at Law, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. Hazel C. Blum, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee. Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges. Judge HARBISON.
A jury convicted Joshua S. St. Clair of assaulting two Sportsman's Warehouse employees as they attempted to stop St. Clair from stealing knives from the store. For his conduct against Ronald Hagele, a loss-prevention officer, the jury found St. Clair guilty of first-degree assault, second-degree assault, and third-degree assault. The trial court later merged these counts into a single conviction. For his conduct against Barry Hamilton, a store manager, the jury found St. Clair guilty of fourth-degree assault. The jury also convicted St. Clair of fourth-degree theft. St. Clair received a composite sentence of 10 years and 6 months to serve for these offenses. The trial judge did not suspend any jail time and did not place St. Clair on probation.
AS 11.41.200(a)(1), AS 11.41.210(a)(2), and AS 11.41.220(a)(1)(A), respectively.
AS 11.41.230(a)(1).
AS 11.46.150(a).
On appeal, St. Clair raises three challenges to the convictions involving Hagele. First, St. Clair challenges the sufficiency of the evidence supporting his first-degree assault conviction.
St. Clair challenges the sufficiency of the evidence to support all three assault verdicts involving Hagele. But because the trial court merged these counts into a single conviction for first-degree assault, and because we find the evidence sufficient to support that conviction, we need not address St. Clair's challenges to the other two verdicts.
Second, St. Clair raises two challenges to his indictment. Only one of these claims was raised in the trial court: whether the State presented sufficient evidence to support the indictment for first-degree assault. The second claim is raised for the first time on appeal: that Hagele made material misrepresentations to the grand jury.
Third, St. Clair argues that the jury's verdicts involving Hagele reflect a fatal variance from the indictment.
We reject these claims of error and affirm St. Clair's convictions.
St. Clair also challenges his sentence as excessive. We similarly reject this challenge and affirm St. Clair's sentence.
St. Clair's challenge to the sufficiency of the evidence supporting his first-degree assault conviction
To prove the charge of first-degree assault, the State was required to establish: (1) that St. Clair recklessly caused "serious physical injury" to Hagele; and (2) that he did so by means of a "dangerous instrument" — in this case, his fists. On appeal, St. Clair argues that there was insufficient evidence presented to the jury to support his conviction for this offense.
AS 11.41.200(a)(1).
When a defendant challenges the sufficiency of the evidence to support a conviction, this Court views the evidence and all inferences to be drawn therefrom in the light most favorable to upholding the verdict. We then ask whether a reasonable juror could have concluded that the State had proved its case beyond a reasonable doubt.
Dorman v. State, 622 P.2d 448, 453 (Alaska 1981).
Johnson v. State, 188 P.3d 700, 702 (Alaska App. 2008).
The following facts were established at trial. On August 23, 2014, Hagele was working as a loss-prevention officer at Sportsman's Warehouse, when he saw St. Clair conceal a set of knives in his waistband. St. Clair and a woman who was helping him then left the store without paying for the knives. As St. Clair exited the store, Hagele held out his security badge and told St. Clair that he wanted to speak with him about the unpaid-for merchandise.
Hearing this, St. Clair punched Hagele. Hagele then grabbed St. Clair and attempted to handcuff him. St. Clair responded by hitting Hagele repeatedly on the side of his face, causing Hagele to loosen his grasp. St. Clair then struck Hagele with several more blows to the jaw, and the two men fell to the ground.
During the struggle on the ground, St. Clair got on top of Hagele, and repeatedly punched him in the face and head. At one point, Hagele saw St. Clair's hand move toward his waistband, where the knives were secured. During the fight, the knives fell out of St. Clair's waistband, and St. Clair's accomplice picked them up.
After striking Hagele approximately fifteen times, St. Clair ran with his accomplice to a nearby car and drove away.
Why we conclude that the State presented sufficient evidence to establish that St. Clair assaulted Hagele using a dangerous instrument
St. Clair first contends that the State failed to present sufficient evidence to establish that his fists were "dangerous instruments." Under Alaska law, a "dangerous instrument" includes "anything that, under the circumstances in which it is used, attempted to be used, or threatened to be used, is capable of causing death or serious physical injury." But before a hand may be deemed a "dangerous instrument," the State must present particularized evidence from which reasonable jurors could conclude beyond a reasonable doubt that the manner in which the hand was used posed an actual and substantial risk of causing death or serious physical injury, rather than a risk that was merely hypothetical or abstract. In this case, the jury was instructed consistent with this requirement.
AS 11.81.900(b)(15)(A).
Konrad v. State, 763 P.2d 1369, 1374 (Alaska App. 1988).
Hagele testified that St. Clair's assault of him involved "constant hits" to the left side of his face. According to Hagele, St. Clair used his hands to inflict repeated blows to his head and face, including uppercuts to his jaw. Additionally, the evidence showed that Hagele suffered serious injuries as a result of the assault.
Although evidence that Hagele's injuries were serious does not, on its own, establish that St. Clair's fists were dangerous instruments, the jury also heard evidence about the number of blows and the specific manner in which St. Clair repeatedly struck Hagele. Hagele testified that St. Clair hit him approximately fifteen times and that many of the blows occurred when St. Clair was positioned above Hagele. In other words, St. Clair struck Hagele at a time when the blows would inflict the most damage and when Hagele was on the ground and unable to move away.
Viewed as a whole and in the light most favorable to the verdict, this evidence was sufficient to support the conclusion that the manner in which St. Clair used his fists posed an actual and substantial risk of causing serious physical injury to Hagele.
Why we conclude that the State presented sufficient evidence of serious physical injury
St. Clair also argues that the evidence was insufficient to establish that his assault on Hagele caused "serious physical injury" as defined by Alaska law. Under Alaska law, the definition of "serious physical injury" includes "physical injury that causes serious and protracted disfigurement [or] protracted impairment of health."
AS 11.81.900(b)(59)(B).
In his brief, St. Clair notes that no medical expert testified at the trial and that the only evidence about Hagele's injuries came from Hagele's own testimony. St. Clair argues that Hagele's testimony about his injuries was insufficient to establish beyond a reasonable doubt that these injuries actually occurred and also was insufficient to establish that the injuries were caused by the assault.
We disagree. Although the State did not call a medical expert as a witness, Hagele testified extensively about the scope of his injuries as well as his prognosis. According to Hagele, St. Clair's assault caused him to suffer nerve damage. Hagele testified that, because of this nerve damage, his face had an asymmetrical droop that was still present at the time of trial (over one year after the assault took place). The assault also caused him to lose sensation in the left side of his face and changed the appearance of his smile. In fact, Hagele reported that his family, including his spouse, had noticed that when he smiled, the sides of his mouth were uneven.
According to Hagele, doctors told him that the damage to his face would likely be permanent. Additionally, approximately one year after the incident and just a few months before the trial, Hagele was evaluated for worker's compensation purposes and was told that he "was at eighty percent recovery." In other words, he continued to suffer a twenty percent disability.
Viewed in the light most favorable to the verdict, this evidence is sufficient to support the conclusion that Hagele suffered both "serious and protracted disfigurement" and "protracted impairment of health."
See Bethel v. Peters, 97 P.3d 822, 829 (Alaska 2004) (declaring that "disfigurement" refers to an injury which impairs or injures the beauty, symmetry, or appearance of a person or which renders a person's appearance unsightly, misshapen, or imperfect and also that disfigurement is "severe" if it mars the person's physical appearance and causes a degree of unattractiveness sufficient to bring negative attention or embarrassment).
Walker v. State, 742 P.2d 790, 791 (Alaska App. 1987) (defining "protracted" as "to draw out or lengthen in time or space" and finding a six-week physical impairment "protracted").
We acknowledge that much of Hagele's testimony was based on what Hagele's doctors told him and was therefore hearsay. We are also troubled by the State's failure to present medical evidence to the jury. But because St. Clair's attorney did not object to this testimony on these grounds, Hagele's testimony constituted admissible and fully competent evidence.
Christian v. State, 276 P.3d 479, 489 (Alaska App. 2012); Byrd v. State, 626 P.2d 1057, 1058 (Alaska 1980) (hearsay, when not objected to at trial, is considered to be admissible evidence).
We cannot conclude that the absence of expert testimony would prevent a reasonable juror from concluding beyond a reasonable doubt that Hagele suffered serious physical injury from St. Clair's attack. Although a medical expert might have more precisely described the relationship between the assault and Hagele's injuries, the jury, using everyday experience, could reasonably find a causal relationship without expert assistance.
See Choi v. Anvil, 32 P.3d 1, 3-4 (Alaska 2001) (finding that lay testimony was sufficient for a fact finder, using everyday experience, to conclude there was a causal relationship between a car accident and "subjective injuries").
We accordingly conclude that the evidence presented was sufficient to support the finding that St. Clair inflicted serious physical injury on Hagele such that there was sufficient evidence to support St. Clair's conviction for first-degree assault.
St. Clair's challenges to the indictment
St. Clair next raises two challenges to the indictment.
First, St. Clair argues that the evidence presented to the grand jury was insufficient to establish that his hands were a "dangerous instrument." But the evidence presented to the grand jury as to St. Clair's use of his fists was substantially similar to the evidence presented to the petit jury, and where the evidence was different, it was stronger before the grand jury. Since we have rejected St. Clair's substantially similar argument regarding the sufficiency of the evidence presented to the petit jury, we reach the same conclusion here.
Second, St. Clair argues for the first time on appeal that Hagele made material misrepresentations to the grand jury. St. Clair claims that during Hagele's grand jury testimony, he misrepresented St. Clair's height and weight, the type and extent of his (Hagele's) injuries, and whether St. Clair had a knife in his hand or merely moved his hand toward the knives. St. Clair contends that, as a result of these alleged misrepresentations, the indictment was flawed and the three counts of assault against Hagele must be dismissed.
St. Clair acknowledges that this Court generally will not review a claim of error relating to the indictment for the first time on appeal. But he argues that the violation in this case was "singularly egregious" and that his claim therefore falls within the exception to this general procedural bar.
Iyapana v. State, 284 P.3d 841, 846 (Alaska App. 2012).
See id. (noting that policy considerations may require review of grand jury error where the alleged error or violation is "singularly egregious").
We disagree. While there were certainly inconsistencies between the testimony Hagele gave at trial and the testimony he gave to the grand jury, it is not clear why St. Clair would be entitled to dismissal of these counts in the indictment on this record. In the absence of an evidentiary hearing, it has not been established that Hagele made "intentional" or "negligent" misrepresentations to the grand jury, as St. Clair alleges. Moreover, when a witness has made prior inconsistent statements at the grand jury, the typical remedy is impeaching that witness at trial by confronting the witness with the prior testimony.
For these reasons, St. Clair has not shown the kind of manifest injustice that would warrant appellate review of this purported error in the first instance, and we reject this claim of error.
St. Clair's fatal variance claim
St. Clair next argues that fatal variances between the evidence presented to the grand jury and the evidence presented at trial require reversal of his convictions for assaulting Hagele. St. Clair notes that Hagele testified before the grand jury that St. Clair had a knife in his hand, but he did not testify to this at trial. Additionally, Hagele testified before the grand jury that he suffered three herniated discs, but he did not offer any testimony about those injuries at trial.
Citing the Alaska Supreme Court's decision in Michael v. State, St. Clair claims that these discrepancies require reversal because a petit jury may not convict a defendant of a grand jury's indicted crimes if the petit jury receives evidence that differs significantly from the evidence received by the grand jury. While this may be a correct statement of the law, St. Clair's reliance on Michael is misplaced. We have previously explained that "[t]he supreme court's decision in Michael does not stand for the rule that a trial jury is forbidden to deviate from the view of events adopted by the grand jury." Instead, Michael dictates that "in felony prosecutions, the defendant can not be convicted of an offense unless the State has obtained a grand jury finding on every essential element of that offense."
Michael v. State, 805 P.2d 371, 373-74 (Alaska 1991).
Taylor v. State, 400 P.3d 130, 136 (Alaska App. 2017) ("As a general rule, it is improper to convict a defendant based on evidence that is materially different from the evidence that supported the grand jury indictment.").
Rogers v. State, 232 P.3d 1226, 1240 (Alaska App. 2010).
Id.; see also 5 Wayne R. LaFave et al., Criminal Procedure § 19.6(c), at 396 (4th ed. 2015) ("The [United States Supreme] Court accordingly has drawn a distinction between trial court allowance of departure in the proof from the indictment so great as to be regarded as a 'constructive amendment,' which constitutes a reversible error in itself, and a 'mere variance,' which is reversible error only if it is likely to have caused surprise or otherwise been prejudicial to the defense.").
That occurred here. Both the petit jury and the grand jury heard evidence that Hagele confronted St. Clair as he was stealing knives from Sportsman's Warehouse, that St. Clair had knives sheathed on his person, and that St. Clair punched Hagele repeatedly, causing nerve damage and an asymmetrical droop to his face. Although some of the evidence may have differed between the grand jury and trial, and St. Clair's attorney was certainly entitled at trial to point out these discrepancies, St. Clair was ultimately convicted of the same crime for which he was indicted.
Accordingly, the inconsistencies between Hagele's grand jury and trial testimony do not amount to a fatal variance.
See Rogers, 232 P.3d at 1239 (rejecting an argument that the petit jury's view of the evidence created a fatal variance from the grand jury's indictment and noting, "Alaska has long recognized that the proof ultimately adduced at a criminal trial may differ in significant ways from the evidence presented to the grand jury, and that the trial jury may legitimately reach a different view of events from the one represented in the grand jury indictment").
St. Clair's excessive sentence claim
St. Clair's final claim is that the trial court erred by refusing to suspend a portion of his sentence. This claim is meritless.
As we have explained, the jury found St. Clair guilty of first-degree, second-degree, and third-degree assault of Hagele. The jury also convicted St. Clair of two misdemeanors (fourth-degree theft of the knives and fourth-degree assault of a second Sportsman's Warehouse employee). The trial court merged the counts for the assaults on Hagele, and it imposed a sentence of 10 years for the merged conviction. The court also sentenced St. Clair to 365 days for the misdemeanor assault conviction and ordered that 6 months of this sentence would be concurrent with the sentence for the felony assault. The court sentenced St. Clair to 30 days for the theft conviction, and ordered that this sentence would be concurrent with St. Clair's other convictions. The resulting composite sentence was 10 years and 6 months to serve. The court did not suspend any jail time and did not place St. Clair on probation.
On appeal, St. Clair argues that the trial court was clearly mistaken in refusing to suspend a portion of his sentence and impose probation. But because St. Clair had previously been convicted of a felony, the presumptive range for his felony assault conviction was 10 to 14 years. The court found that no mitigating factors applied, and St. Clair does not challenge that finding on appeal. As a result, the trial court could not have imposed less than 10 years for St. Clair's felony conviction. In order for the trial court to suspend a portion of his sentence for the felony and to impose probation, it would have to impose a greater sentence than the one St. Clair received.
See AS 12.55.125(c)(3).
It is true that the trial court could have suspended all or part of the sentence it imposed for the misdemeanor assault. However, under the circumstances of this case, we conclude that the court's decision not to do so was not clearly mistaken.
See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).
Conclusion
We AFFIRM the judgment of the superior court.