Opinion
Court of Appeals No. A-11305 No. 6089
08-27-2014
JASON F. MACK, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Andrew Ott, Johnson & Combs, P.C., Kodiak, for the Appellant. Terisia Chleborad, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, 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. 3AN-10-1075 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael L. Wolverton, Judge. Appearances: Andrew Ott, Johnson & Combs, P.C., Kodiak, for the Appellant. Terisia Chleborad, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge. Judge HANLEY.
Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution and Administrative Rule 24(d).
Jason F. Mack was convicted of several crimes in connection with a robbery and shooting in South Anchorage. In this appeal, Mack challenges his indictment, his conviction, and his sentence. He argues that the superior court should have dismissed his indictment because the prosecutor did not follow the proper procedures at grand jury; that the trial jury had insufficient evidence to convict him of first-degree robbery; that the sentencing court erred in rejecting the proposed mitigating factor that he played a minor role in the commission of the robbery; and that his composite sentence is excessive. For the reasons explained below, we affirm the decisions of the trial court.
Facts and proceedings
Donovan Soares and Sandor Olah were sitting in Soares' truck late one night outside a Taco Bell restaurant. Joshua Ziegler walked up to Soares' truck and accused him of stealing stereo speakers from his vehicle. After Soares denied stealing the speakers, Ziegler reached into Soares' truck, pulled the key out of the ignition, and punched Soares in the eye. Ziegler then searched Soares' truck but found no speakers.
During this confrontation, Ziegler asked his girlfriend to call her brother, Jason Mack. Before long, Mack arrived in another vehicle. Ziegler told Mack that Soares had stolen his speakers and that he had punched him. Mack proceeded to the passenger side of Soares' truck, asked where the speakers were, and struck Olah.
While Ziegler and Mack were standing by the truck discussing the situation, Soares drove away. Ziegler and Mack pursued Soares in separate vehicles. During this chase, several shots were fired from Ziegler's vehicle, two of which hit Soares' truck.
The police later located Ziegler at his residence, where Mack was also staying. Inside the residence, the police found approximately 186 grams of marijuana, firearms, and $3000 in cash.
Ziegler and Mack were tried before the same jury. Mack was convicted of first-degree robbery, conspiracy to commit first-degree robbery, fourth-degree misconduct involving a controlled substance, and two counts of second-degree misconduct involving weapons (for possessing firearms during the commission of a drug offense). The trial court later vacated the conspiracy conviction. Ziegler was convicted of these same offenses and of other felonies.
AS 11.41.500(a)(1).
AS 11.41.500(a)(1); AS 11.31.120.
AS 11.71.040(a)(2).
AS 11.61.195(a)(1).
Before trial, Mack filed a motion to dismiss the indictment, arguing that the grand jury proceedings were flawed because the prosecutor presented evidence without first informing the grand jurors of the proposed charges. Superior Court Judge Michael L. Wolverton denied the motion, concluding that any arguable irregularity in the grand jury proceedings had not prejudiced Mack.
At trial, after the State presented its case, Mack moved for a judgment of acquittal on the first-degree robbery count, arguing that the State had failed to prove an essential element of the offense: that the property was within the victims' "immediate presence and control." Judge Wolverton denied the motion, finding that there was sufficient evidence for the robbery charge to go to the jury.
Mack was not prejudiced by the alleged irregularity in the grand jury proceedings
Normally when the State seeks an indictment against a criminal defendant, it informs the grand jury of the proposed charges before presenting evidence. But in this case, over the initial objection of one grand juror, the prosecutor elected to present the evidence first and then read the proposed charges. The prosecutor acknowledged that this approach was unusual, but he assured the grand jurors that the witnesses would be available for questioning after the jurors were informed of the proposed charges.
The grand jury ultimately returned true bills on all nine counts proposed by the State. The grand jury also added new criminal charges that the State had not proposed, but only one of those additional charges pertained to Mack: a charge that Mack conspired to commit first-degree assault. The prosecutor elected not to prosecute Mack on this additional charge.
Mack argues, as he did in the superior court, that the State's failure to inform the grand jurors of the proposed charges before presenting evidence deprived the jurors of a "structural road map," leaving the jurors "confused as to the applicable law and facts." He argues that this confusion prejudiced him and that the superior court should have dismissed the indictment.
In Alaska, the grand jury serves two roles: it functions as an accusatory and investigatory body "tasked with determining whether criminal proceedings against the accused should be instituted"; at the same time, it plays a protective role, "operat[ing] to control abuses by the government and protect[ing] the interests of the accused."
Cameron v. State, 171 P.3d 1154, 1156 (Alaska 2007).
Id.
Prosecutors have a duty not to interfere with the grand jury in its performance of these duties. But not every irregularity in a grand jury proceeding entitles the defendant to dismissal of the indictment; the defendant must show that the irregularity influenced the grand jury's decision to indict.
See Coleman, 553 P.2d at 47.
See Soper v. State, 731 P.2d 587, 591-92 (Alaska App. 1987); see also Chief v. State, 718 P.2d 475, 477 (Alaska App. 1986); Hohman v. State, 669 P.2d 1316, 1319 (Alaska App. 1983).
In this case, Mack has not shown that the prosecutor's decision to present evidence before explaining the proposed charges interfered with the grand jurors' ability to question the witnesses, evaluate their testimony, or otherwise independently screen the charges sought by the State. Nor has Mack argued, or shown, that the prosecutor's legal advice to the grand jury was flawed, that the prosecutor inaccurately explained the proposed charges, or that he misled the grand jury in some other way. Moreover, after the prosecutor informed the grand jury of the proposed charges, the grand jury asked the prosecutor to recall the lead detective for additional questioning. The record thus demonstrates that the grand jurors understood that they had the right to recall witnesses and that the jurors were not too confused or intimidated to exercise that right.
Mack argues that the grand jury's confusion was apparent because, in his view, the jurors "ran amok" by adding charges to those proposed by the State. But the grand jury acted squarely within its authority in indicting the defendants on additional charges. Mack has failed to assert that any charge for which the grand jury returned a true bill was not supported by the evidence. And as we already noted, Mack was not prosecuted for any charge beyond those originally sought by the State.
Alaska R. Crim. P. 6(q) ("The grand jury shall find an indictment when all the evidence taken together, if unexplained or uncontradicted, would warrant a conviction of the defendant.").
We agree that explaining the proposed charges to the grand jury before presenting evidence will, in the normal case, avoid confusion and present less risk of the prosecutor interfering with the grand jury in the exercise of its independent duties. But on the record before us, we cannot find that the procedure employed by the State confused the grand jury or influenced its decision to indict Mack. We therefore conclude that the superior court did not err in refusing to dismiss the indictment.
Mack's robbery conviction was supported by sufficient evidence
One element the State must prove to convict a defendant of first-degree robbery is that the defendant took or attempted to take property "from the immediate presence and control of another."
AS 11.41.500(a)(1) (defining first-degree robbery as the commission of second-degree robbery while armed or representing that one is armed with a deadly weapon); AS 11.41.510(a) (defining second-degree robbery to include the element of "taking or attempting to take property from the immediate presence and control of another").
Mack argues that, by the time he became an accomplice to Ziegler's activities, Ziegler had already searched Soares' truck and discovered that the speakers were not there. From this, Mack argues that the jury had insufficient evidence to convict him of robbery because the speakers were not within the victims' "immediate presence and control."
Mack asserts that he was convicted of robbery under an accomplice theory. But because the jury returned a general verdict, it is impossible to know if the jury convicted Mack as a principal or as an accomplice. Because we conclude that the jury had sufficient evidence to convict Mack as a principal, we do not address the sufficiency of the evidence to convict him as an accomplice.
In assessing a claim of insufficient evidence, we view the evidence and the reasonable inferences from that evidence in the light most favorable to the jury's verdict. Viewing the evidence in this light, the question is whether a fair-minded juror could find that the defendant's guilt was established beyond a reasonable doubt.
Silvera v. State, 244 P.3d 1138, 1142 (Alaska App. 2010).
Id.
To the extent that Mack is claiming that the State was required to prove that the speakers were within the victims' immediate presence and control to convict him of first-degree robbery, his claim has no merit. In Alaska, a defendant can be convicted of robbery even if it turns out that, unbeknownst to the defendant, the victim had an "empty pocket" — that is, did not possess the property being sought. As we explained in Beatty v. State, the Alaska Legislature intended the robbery statutes to criminalize unsuccessful attempts to take property to the same extent as successful takings.
Beatty v. State, 52 P.3d 752, 756 (Alaska App. 2002); see also Model Penal Code § 222.1 cmt. at 99-100 (1980).
Beatty, 52 P.3d. at 755.
However, a defendant is not guilty of robbery unless the State proves that the defendant was attempting to take property from the victim's immediate presence and control. Thus, if a defendant uses unlawful force against a victim after learning that property is not within the victim's immediate presence and control, the defendant might be guilty of assault, but not robbery — because the force was not used in an attempt to take property from the victim's immediate presence and control.
Id. at 756; AS 11.41.500; AS 11.41.510.
Similarly, if a defendant knows that property is not within the victim's immediate presence and control and threatens to injure the victim unless the victim produces the property, the defendant might be guilty of extortion, but not robbery.
AS 11.41.520(a)(1) ("A person commits the crime of extortion if the person obtains the property of another by threatening or suggesting that either that person or another may ... inflict physical injury on anyone, except under circumstances constituting robbery[.]").
To the extent that Mack is arguing there was insufficient evidence that he thought the speakers were in the immediate presence and control of the victims, this claim is also without merit. For Mack to prevail on this claim, he would have to show that no reasonable juror could have found, based on the trial evidence, that Mack thought the speakers could be in the truck when he confronted and struck Olah.
At Mack's trial, Soares testified that Ziegler approached him in the Taco Bell parking lot, accused him of stealing his car speakers, and punched him in the eye when he denied stealing them. Ziegler then looked inside Soares' truck and discovered that the speakers were not there. But Mack was not present when Ziegler searched the truck; nor was there evidence that Ziegler ever communicated to Mack that the speakers were not in the truck.
During the initial confrontation between Ziegler and Soares, Ziegler's girlfriend called Mack. Mack soon arrived on the scene, and Ziegler told Mack that Soares had stolen his speakers and that he had punched Soares. Mack then proceeded to the passenger side of the vehicle, asked where the speakers were, and struck Olah.
We acknowledge that jurors could draw different inferences about Mack's knowledge and intent from this evidence. But when we review a claim that evidence is insufficient to support a conviction, we must view the evidence and the reasonable inferences from that evidence in the light most favorable to the jury's verdict. We conclude that, when the evidence is viewed in this light, a fair-minded juror could find that Mack's conduct was aimed at taking the speakers from the victims' immediate presence and control, and that Mack therefore had the culpable mental state required to convict him of robbery. For these reasons, we reject Mack's claim of insufficient evidence.
Silvera, 244 P.3d at 1142.
The superior court did not err in rejecting Mack's proposed mitigator
Mack argues that the sentencing court erred by rejecting his proposed statutory mitigating factor, AS 12.55.155(d)(2) — that "the defendant, although an accomplice, played a minor role in the commission of the offense."
The question whether the defendant established a statutory mitigating factor is a mixed question of fact and law. The sentencing judge's factual findings regarding the nature of the defendant's conduct are reviewed for clear error, but this Court determines de novo whether the mitigating factor applies to the defendant's conduct.
Michael v. State, 115 P.3d 517, 519 (Alaska 2005).
Id.
In arguing that he established the "minor role" mitigator, Mack points to evidence that he did not actually strike Olah during the confrontation over the speakers, but rather "tapped" him by accident. He also notes that the State failed to prove that he possessed a gun during the robbery.
In opposing the "minor role" mitigator, the prosecutor offered a different version of the facts. He argued that Mack was summoned to the scene to help Ziegler retrieve his stolen speakers and that Mack struck Olah in furtherance of that goal. Mack then joined in a vehicle chase, during which shots were fired at Soares' truck. The trial judge found that the prosecutor's characterization of Mack's role in the robbery was more persuasive, and Mack has not shown that the judge's finding was clearly erroneous.
As we have previously stated with respect to the "minor role" mitigating factor, "a secondary role is not necessarily equivalent to a 'minor' role." We conclude, based on the court's findings, that Mack did not establish that he played a minor role in the robbery. Thus, the sentencing court did not err in rejecting his proposed mitigating factor.
Andrew v. State, 237 P.3d 1027, 1050 (Alaska App. 2010).
Mack's sentence is not clearly mistaken
Mack was sentenced to 8 years with 3 years suspended (5 years to serve) for his first-degree robbery conviction. As Mack concedes, 5 years to serve was the minimum sentence that the court could impose in the absence of a mitigating factor.
See AS 12.55.125(c)(1).
Mack was sentenced to 1 year to serve for each of his two weapons misconduct offenses — again, the minimum sentence for that offense in the absence of a mitigator. He was also sentenced to 1 year to serve for his fourth-degree misconduct involving a controlled substance conviction — a sentence in the middle of the presumptive range of 0 to 2 years. All of these 1-year sentences were imposed concurrently with each other and consecutively to the robbery sentence. Mack thus received a composite 6-year term of imprisonment.
For the weapons misconduct convictions, Mack faced a presumptive range of 1 to 3 years as a first felony offender. See AS 12.55.125(d)(1).
See AS 12.55.125(e)(1).
Mack challenges his sentence as excessive on several grounds. The State argues that, pursuant to AS 12.55.120(e), this Court lacks jurisdiction to hear Mack's excessive sentence claim. As explained in our recent decision in Mund v. State, we do have jurisdiction to decide the appeal of Mack's sentence.
325 P.3d 535(Alaska App. 2014).
Mack argues his composite sentence is excessive given the limited role he played in the robbery. As explained above, the sentencing court did not find that Mack's role was minor, and that finding is supported by the record. Therefore, we reject Mack's excessive sentence claim.
Mack also suggests that the sentencing court was clearly mistaken in not making his 1-year sentences for the drug and weapons misconduct convictions concurrent with his robbery sentence.
When a defendant is sentenced for multiple crimes, a sentencing court generally has discretion to make the individual sentences consecutive or concurrent. Mack's convictions for the drug and weapons misconduct offenses were based on the subsequent discovery by the police of drugs and weapons in the residence Mack shared with Ziegler. The sentencing court could reasonably conclude that this conduct was sufficiently distinct from the robbery outside the Taco Bell that a consecutive term of imprisonment was warranted. Even including the consecutive term, Mack's composite sentence falls in the bottom half of the presumptive range for his most serious offense.
See AS 12.55.127(b).
See AS 12.55.125(d)(1); see also Farmer v. State, 746 P.2d 1300, 1301 (Alaska App.1987) (recognizing that the presumptive term for an offender's most serious offense is a benchmark that should not be exceeded without "good reason").
In the context of this excessive sentence claim, Mack argues that the judge relied on an improper factor in sentencing him. Mack notes that, during the court's discussion of community condemnation of gun-related crimes, the judge referred to his experience with jury selection in an unrelated homicide case. The judge observed that the jury pool in that case had been so "fed up" with shootings in South Anchorage that three separate panels were required to seat an impartial jury.
We do not believe the judge's remarks were improper or that Mack was prejudiced by them. Under AS 12.55.005, the judge was required to consider the sentencing goals of community condemnation and reaffirmation of societal norms in crafting an appropriate sentence. The judge's remarks merely provided context for the judge's conclusion that the community strongly condemned the type of conduct that occurred in this case. When a judge assesses the degree of community condemnation for a particular offense, the judge will necessarily be influenced by his or her personal experiences on the bench. We conclude that the superior court did not rely on an improper factor in sentencing Mack, and that Mack's sentence is not clearly mistaken.
See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).
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Conclusion
The decisions of the superior court are AFFIRMED.