Opinion
Court of Appeals No. A-10627.
August 31, 2011.
Appeal from the Superior Court, Third Judicial District, Anchorage, Philip R. Volland, Judge, Trial Court No. 3AN-08-10520 CR.
Nancy Driscoll Stroup, Palmer, for the Appellant. Terisia Chleborad, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
In a trial conducted by Superior Court Judge Philip R. Volland, a jury convicted Clarence E. Woods of robbery in the second degree and theft in the fourth degree. He was tried with his co-defendant, Artemio Vega. Woods makes four arguments on appeal.
First, he argues that there was insufficient evidence to support the guilty verdicts. We conclude that the State presented sufficient evidence for a reasonable juror to conclude, beyond a reasonable doubt, that Woods committed second-degree robbery and fourth-degree theft.
Second, Woods argues that Judge Volland erred when he reserved ruling on the motion for a judgment of acquittal that Vega made at the close of the State's case. Woods asserts that, had Judge Volland denied Vega's motion, Vega would have testified, and Vega's testimony would have supported Woods's case. Alternatively, Woods asserts that, had the judge granted Vega's motion, Woods would have called Vega as a witness, and Vega's testimony would have supported Woods's case. Woods did not preserve this argument at trial, and we conclude that he has not shown plain error.
Third, Woods argues that the State committed a discovery violation when it did not disclose that it provided one of its witnesses with a hotel room the night prior to her testimony. He argues that the failure to disclose this information deprived him of his right to fully cross-examine the witness about potential bias. Judge Volland ruled that Criminal Rule 16 did not specifically require this type of discovery. He found that the witness in question was thoroughly cross-examined, and that Woods was not prejudiced. We uphold Judge Volland's ruling.
Finally, Woods appeals his sentence of ten years to serve. We have no jurisdiction to hear this sentence appeal and refer the matter to the supreme court. Factual and procedural background
Woods was charged with robbery in the second degree, assault in the fourth degree, and theft in the fourth degree for stealing Larry Nesteby's backpack. Nesteby testified at trial. On the day his backpack was taken, Nesteby was sitting on a concrete wall near the Red Apple Market in Mountain View, drinking from a fifth of whiskey and waiting for the bus. Woods, who Nesteby knew as an acquaintance from the neighborhood, sat down next to Nesteby. Woods asked Nesteby for a drink, but Nesteby declined. Nesteby had his backpack resting between his feet. As he was talking with Woods, he noticed another man, one he didn't know, coming toward them from across the street. He also noticed his friend, Agnes Griffy, sitting on a bench nearby. As he was looking at Griffy, someone hit him in the eye. He was hit again and was knocked off the concrete slab he was sitting on. Woods was sitting next to Nesteby during this time, and Nesteby testified: "I've said from the beginning that the power behind that punch couldn't have come from a sitting position, but I don't know. I wasn't looking that way." Nesteby heard someone say, "Get his money." He lost his grip on his backpack, and it was taken. He "got [his] head cleared a little bit and got to [his] feet, and looked at Aggy, and she's kind of in shock." Then he saw two people leaving with his backpack.
AS 11.41.510(a)(1).
AS 11.41.230(a)(1).
AS 11.46.150.
Agnes Griffy testified that, when Nesteby's backpack was stolen, she was sitting on a bench watching people come and go. She observed an argument between Nesteby and others. They were "yelling and screaming," and she "saw a couple people run off with [Nesteby's] backpack." She identified the defendants at trial. She had also identified Vega, Woods's co-defendant, in a photo line-up the day after the incident. After the two left the scene, Griffy went over to Nesteby and saw that he was injured and had a bloody nose.
The next day, the police found several items identified as Nesteby's belongings from his backpack in Woods's car and in his residence.
A jury found Vega and Woods guilty of robbery in the second degree, and Woods guilty of theft in the fourth degree. The jury acquitted Woods of the assault charge. Judge Volland sentenced Woods to ten years in prison, with no time suspended.
There was sufficient evidence to convict Woods of robbery and theft
At the close of the State's case, Woods and Vega both moved for a judgment of acquittal. Judge Volland reserved ruling on Vega's motion because he wanted to listen to Nesteby's testimony again to determine whether there was evidence that Vega was an accomplice in the event. As to Woods's motion, Judge Volland found that the evidence was strong:
[Woods is] clearly identified as being there. He's recognized by the victim. He's seen leaving with the backpack. There are items from the backpack found in his car and the residence where he's living. He was clearly one of the people who either said or heard "let's get his money." He was one of the people who was either there or engaged in the assault on the victim in this case. . . . [V]iewed in the light most favorable to the State, I think reasonable jurors could conclude that Mr. Woods was certainly involved in a robbery and the theft. . . . [A]s to Mr. Woods, I'm going to deny the motion for judgment of acquittal.
We must uphold a jury's guilty verdict unless the defendant can show that no fair-minded juror could conclude that the defendant is guilty beyond a reasonable doubt. Upon review, the evidence must be viewed in the light most favorable to upholding the verdict.
Dailey v. State, 65 P.3d 891, 898 (Alaska App. 2003) (citing Dorman v. State, 622 P.2d 448, 453 (Alaska 1981)).
Dailey, 65 P.3d at 898.
A person commits robbery in the second degree if, in the course of taking or attempting to take property from the immediate presence and control of another, the person uses or threatens the immediate use of force upon any person with intent to
(1) prevent or overcome resistance to the taking of the property or the retention of the property after taking; or
(2) compel any person to deliver the property or engage in other conduct which might aid in the taking of the property.
AS 11.41.510(a).
In this case, the State argued accomplice liability. The jury was instructed to find the defendant guilty of second-degree robbery on an accomplice liability theory if the State proved:
First, that the defendant acted with intent to promote or facilitate the commission of the offense; Second, that the defendant aided and abetted another person or persons in planning or committing the offense; Third, that the defendant acted with the mental state specified under the charged theory of the offense; and Fourth, that all elements of robbery in the second degree were committed by some person or persons.
Woods argues that the State did not prove that Woods used force, which is a critical element of the crime of robbery. He points out that Woods was acquitted of assault. He argues that because the jury concluded that Woods did not throw the punch, the jury must have concluded that Woods was an accomplice. Woods maintains that the State "offered no evidence that Woods aided or abetted the second man in robbing Nesteby."
Woods was clearly identified as being at the scene when Nesteby was hit. And Nesteby heard someone say, "Get his money," which demonstrated an intent to steal as well as communication about the robbery. Woods and Vega left together with Nesteby's backpack. When Nesteby approached Woods about getting his bag back, Woods did not return it. The police found items from Nesteby's backpack in Woods's car and in Woods's residence. This is enough evidence for the jury to conclude that Woods committed robbery in the second degree. And the jury's acquittal of Woods on the assault charge did not preclude the jury from finding him guilty of the robbery.
A person commits theft in the fourth degree if, "with intent to deprive another of property or to appropriate property of another to oneself or a third person, the person obtains the property of another" and "the value of the property . . . is less than $50." As described above, the evidence presented at trial was sufficient for the jury to conclude that Woods committed theft in the fourth degree by obtaining and keeping the contents of Nesteby's backpack.
AS 11.46.100(1); AS 11.46.150.
Judge Volland did not commit plain error when he did not rule on co-defendant Vega's motion for a judgment of acquittal at the close of the State's case
When Vega moved for a judgment of acquittal at the close of the State's case-in-chief, Judge Volland took the motion under advisement, indicating that he wanted to review some of the testimony that had been presented before make a ruling. In response to a question from Vega's attorney, Judge Volland indicated that he would let the case go to the jury and would rule after the verdict.
After trial, Vega filed a motion for a new trial which Woods joined. The co-defendants argued that Criminal Rule 29 barred Judge Volland from reserving judgment on Vega's motion for a judgment of acquittal. Vega asserted that, had Judge Volland denied Vega's motion, Vega would have testified on his own behalf. Woods argued that, had Judge Volland granted the motion, Woods would have called Vega as a witness and that Vega's testimony would have supported Woods's case. Judge Volland denied Vega's and Woods's joint motion for a new trial in a written order. Judge Volland reasoned that Criminal Rule 29 "does not preclude the court from taking the motion [for a judgment of acquittal] under advisement when the motion is made after the State's case in chief is presented." He also found that Vega and Woods waived the claim that the court misapplied Rule 29:
When the court announced that it wished to take the matter under advisement and submit the case to the jury, neither Woods nor Vega objected. Vega did not inform the court that his decision on whether or not to present defense witnesses was contingent on the court's ruling. Likewise, Woods failed to tell the court that his defense strategy was contingent on the outcome of Vega's motion. Had either defendant so informed the court, the court could have easily recessed the trial for sufficient time to listen to the testimony of Nesteby and Griffy and made its ruling.
Criminal Rule 29 provides that the trial court:
shall enter a judgment of acquittal . . . after the evidence on either side is closed if the evidence is insufficient to sustain a conviction. . . . If a defendant's motion for judgment of acquittal at the close of the state's case is not granted, the defendant may offer evidence without having reserved the right.
The rule further provides that "[i]f a motion for judgment of acquittal is made at the close of all the evidence, the court may reserve decision on the motion, submit the case to the jury and decide the motion" at a later time.
Woods asserts that Rule 29 required Judge Volland to rule on Vega's motion for a judgment of acquittal at the time it was made. But, "even when motions for judgment of acquittal are made at the close of the State's case-in-chief, the sufficiency of the evidence at trial may be based on the totality of the evidence, including evidence presented by the defense after the State has rested its case." And in practice, trial courts appear to take mid-trial motions for judgment of acquittal under advisement and allow the trial to proceed without making a ruling.
S.R.D. v. State, 820 P.2d 1088, 1091 (Alaska App. 1991) (citations omitted).
See Selman v . State, 406 P.2d 181, 188 (Alaska 1965), overruled on other grounds in Whitton v. State, 479 P.2d 302, 312 (Alaska 1970); Hinson v. State, 199 P.3d 1166, 1169 (Alaska App. 2008) (affirming a denial of a motion for a judgment of acquittal that the trial court had initially taken under advisement, allowing the trial to proceed).
On appeal, Woods reasserts his claim that Judge Volland's failure to rule on Vega's motion for a judgment of acquittal "severely limited [his] ability to present witnesses on his own behalf." But, as Judge Volland pointed out, neither Woods nor Vega objected or claimed that they would be prejudiced when he told them he was going to take the matter under advisement and submit the case to the jury. He stated that if either counsel had objected, he could easily have recessed the trial, reviewed the evidence, and made a ruling. We do not find plain error.
Judge Volland did not err in denying Woods's new trial motion
In his motion for a new trial, Vega argued that the State had committed a discovery violation by failing to reveal that it provided one of its witnesses, Griffy, with a hotel room the night prior to testifying. He argued that this deprived him of the opportunity to effectively cross-examine Griffy about resulting bias and show the jury how this may have influenced her testimony. Woods joined in this motion.
In denying the motion for a new trial, Judge Volland pointed out that Criminal Rule 16(b) did not appear to require the State to disclose this information. He also found that Woods and Vega had not been "deprived of [their] right to meaningfully cross-examine Griffy by the lack of this information." He noted that Griffy had been "aggressively cross-examined" on a variety of issues, including her friendship with the victim and her history of drinking.
Judge Volland's decision to deny the new trial motion is supported by the record and was not an abuse of discretion. We have no jurisdiction to decide Woods's sentence appeal
Second-degree robbery is a class B felony, and fourth-degree theft is a class B misdemeanor. Woods's convictions merge for sentencing purposes.
AS 11.46.150(b); AS 11.41.510(b).
See Allain v. State, 810 P.2d 1019, 1021 (Alaska App. 1991) (requiring merger when separate convictions arise out of a single continuous episode).
Woods was a third felony offender and faced a presumptive sentencing range of six to ten years. Judge Volland sentenced Woods to ten years of imprisonment.
AS 12.55.125(d)(4).
Alaska Statute 12.55.120(e) provides that a defendant cannot appeal a sentence that is within the presumptive sentencing range. Consequently, we have no jurisdiction to decide the sentence appeal.
Conclusion
We AFFIRM Woods's convictions. We transfer Woods's sentence appeal to the supreme court under AS 12.55.120(e).