Opinion
Court of Appeals No. A-11780 No. 6283
02-10-2016
SIMEON WASILI, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Elizabeth D. Friedman, Assistant Public Advocate, Appeals and Statewide Defense Section, and Richard Allen, Public Advocate, Anchorage, for the Appellant. June Stein, 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. 4BE-12-731 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Fourth Judicial District, Bethel, Dwayne W. McConnell, Judge. Appearances: Elizabeth D. Friedman, Assistant Public Advocate, Appeals and Statewide Defense Section, and Richard Allen, Public Advocate, Anchorage, for the Appellant. June Stein, 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).
On a Wednesday afternoon in January 2012 in the village of Chefornak, after a dispute with his girlfriend and brother, an upset and intoxicated Simeon Wasili left his home armed with a bolt-action Remington Model 7 rifle and began firing the rifle at various locations throughout the village. Residents barricaded themselves in village buildings, fearing for their safety and afraid that Wasili would shoot anyone in his path. Wasili continued to traverse the village with his rifle, at one point entering the tribal council building and "dry-firing" at his cousin. When Alaska State Troopers arrived, a lengthy standoff ensued until Wasili finally surrendered to the troopers and was taken into custody.
Following a jury trial, Wasili was convicted of nine counts of third-degree assault (for recklessly placing nine people in fear of imminent serious physical injury by means of a dangerous weapon), one count of second-degree misconduct involving weapons (for firing in the direction of a building with reckless disregard for the risk of physical injury to a person), one count of fourth-degree assault (for physically assaulting his girlfriend), and one count of third-degree theft (for stealing 100 rounds of ammunition from the village store).
AS 11.41.220(a)(1)(A), AS 11.61.195(a)(3)(A), AS 11.41.230(a)(1), and AS 11.-46.140(a)(1), respectively.
On appeal, Wasili challenges five of his third-degree assault convictions, asserting that there was insufficient evidence to support those five convictions. Wasili also contends that the evidence was insufficient to support his second-degree weapons misconduct conviction.
For the reasons explained here, we conclude that, viewing the evidence in the light most favorable to the verdict, the evidence was sufficient to uphold Wasili's convictions.
Why we conclude that there was sufficient evidence to support Wasili's contested third-degree assault convictions
When this Court assesses sufficiency of evidence claims on appeal, we review the evidence, and all reasonable inferences reasonably drawn therefrom, in the light most favorable to upholding the jury's verdict. Viewing the evidence in this light, we will uphold the verdict if a fair-minded juror could have reasonably concluded that the State proved its case beyond a reasonable doubt. We do not assess witness credibility or re-weigh the evidence — those are matters for the jury to decide.
Johnson v. State, 188 P.3d 700, 702 (Alaska App. 2008).
Morrell v. State, 216 P.3d 574, 576 (Alaska App. 2009).
In this appeal, Wasili contests the sufficiency of the evidence supporting five of his nine convictions for third-degree assault. Specifically, he contests the five convictions related to five tribal council employees who barricaded themselves behind office doors in Chefornak's Traditional Council building. Wasili argues that the State failed to prove that these five individuals were placed in fear of imminent serious physical injury as a result of his conduct.
To prove third-degree assault under AS 11.41.220(a)(1)(A) (felony fear assault) the State was required to show that Wasili recklessly placed his victims in fear of imminent serious physical injury by means of a dangerous instrument. "Fear," as used in Alaska's third-degree assault statute, "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," regardless of any subjective reaction to that perception. Thus, the question before us is "whether the State presented evidence from which the jury could reasonably conclude that, because of [Wasili's] conduct, [the tribal council employees] reasonably perceived a danger that [they] would suffer imminent serious physical injury."
Hughes v. State, 56 P.3d 1088, 1090 (Alaska App. 2002).
Id. (internal quotation marks omitted).
Id. at 1093.
At trial, the jury heard various witnesses testify that an intoxicated and unpredictable Wasili was firing his weapon from multiple locations throughout the small village of Chefornak. As the witnesses recounted, Wasilli shot his gun multiple times outside his home and then proceeded to walk toward the center of the village. The residents witnessed Wasili encounter his father near the tribal council building and fire shots into the air and ground. As residents began hearing gun shots and seeing Wasili with a gun, the streets emptied and people took shelter in the village buildings and their homes. At some point, Wasili walked to the village store where he stole boxes of ammunition and the store clerk fled. After Wasili left the store, he pointed his gun at one resident and said, "Come over here before I shoot you," and then fired his gun over the man's head.
Wasili then went back toward the tribal council building and went inside — witnesses heard him shouting and declaring that he could kill anyone. He encountered his cousin in the hallway and demanded, "Did you guys call the fuckin' troopers? Are the cops coming?" He then lifted the gun up to his waist and, with one hand on the gun stock and the other on the trigger, pointed it at his cousin. She exclaimed, "No, Sim," and heard the trigger click, but the gun did not fire. She fled and hid in the boiler room as Wasili attempted to fix his jammed rifle. Wasili then left the building and fired his rifle again outside.
During this encounter in the tribal council building, there were five employees hiding in offices right off the hallway, separated from Wasili by only a wall. (The tribal council building is a small, narrow, single-story building with one hallway and a few office spaces.) Wasili challenges his convictions pertaining to these five employees, asserting that, although they may have been subjectively afraid, they were not placed in objectively reasonable fear of imminent serious physical injury by Wasili's conduct. Wasili points out that there was no testimony that he directly threatened any of these individuals face-to-face or that he specifically tried to gain entry into the two offices where they were hiding.
But, as the State points out, Wasili's arguments rest on viewing the evidence in the light most favorable to Wasili, rather than in the light most favorable to the verdict, as we are required to do on appeal.
Here, the jury heard the evidence recounted above and also heard testimony from all five witnesses that they believed Wasili was going to shoot and kill them — either by shooting through the wall or by breaking into the offices where they were hiding. The jury also heard evidence about the size, layout, and structure of the tribal council building and was able to view exterior and interior photographs of the building to determine how reasonable such a belief was.
The jury specifically heard that four of the victims were hiding together in the gaming manager's office. At some point, the store clerk ran into the council building to warn the group that Wasili was coming and that he had just been at the store with a gun. The four employees hiding in the gaming manager's office testified that they locked the office door and barricaded it shut with a desk. They heard Wasili shouting at his cousin in the hallway and some could make out what he was saying — one of them heard Wasili ask his cousin, "Did you call the fucking troopers?" Another one heard Wasili say he was going to kill someone. The group also heard Wasili's cousin in the hallway trying to calm him down. Several of them heard Wasili's cousin say, "Simeon, no," and one testified she heard a "metal sound," which she thought was a trigger clicking or a shell falling. Then they heard another gunshot. They all believed Wasili was going to shoot and kill them.
The fifth victim, the tribal council president, was alone in his office. He described a similar experience as the other victims, testifying that he heard multiple gunshots and saw an armed Wasili enter the building. He further testified that he heard Wasili say he could "kill anybody" as he entered the building, and he believed that Wasili could kill him.
Thus, viewing this evidence in the light most favorable to upholding the jury's verdict, we conclude that a fair-minded juror could find beyond a reasonable doubt that Wasili recklessly placed these victims in fear of imminent serious physical injury by means of a dangerous instrument, and that the victims' fear of imminent serious physical injury was objectively reasonable. We therefore reject Wasili's claims of insufficiency with regard to these five convictions.
Why we conclude that there was sufficient evidence to support Wasili's conviction for second-degree misconduct involving weapons
Wasili also appeals his conviction for weapons misconduct, asserting that there was insufficient evidence for the State to find that he knowingly discharged his firearm in the direction of a building with reckless disregard for a risk of physical injury to a person.
AS 11.61.195(a)(3)(A).
In support of this charge, the State presented the testimony of Peter Tirchick, who was working as a bingo caller at the city complex during the incident. Tirchick testified that he heard a gunshot and had a good view of Wasili through the open doors of the complex: Wasili was standing about 100 feet away and was attempting to unjam his weapon. Tirchick testified that Wasili then looked up, raised the gun, and pointed it toward the building. When Wasili raised the gun, Tirchick ran into one of the rooms off the entryway immediately before he heard the gun fire. Tirchick testified that he dove out of the way because he was afraid he would be shot.
In addition, the jury heard testimony that Wasili fired his weapon in the direction of Chefornak's generator building. Larry Mark, another victim, testified at trial that Wasili fired a shot over his head; he said he thought the bullet went "right above [him], towards [the] generator building."
On appeal, Wasili ignores Larry Mark's testimony and interprets Tirchick's testimony in the light most favorable to himself — arguing that Tirchick did not actually see which direction Wasili fired the gun because Tirchick was diving out of the way at the moment the gun fired. But, as explained earlier, we must view the evidence, and all reasonable inferences drawn from that evidence, in the light most favorable to upholding the jury's verdict. Viewing the evidence in that light, we conclude that a reasonable juror could find Wasili guilty of misconduct involving weapons.
Morrell, 216 P.3d at 576. --------
For the foregoing reasons, we AFFIRM the judgment of the superior court.