Opinion
Court of Appeals No. A-12345 No. 6716
10-10-2018
TREVOR MOORE-BARRAS, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Michael Horowitz, Law Office of Michael Horowitz, Kingsley, Michigan, under contract with the Office of Public Advocacy, Anchorage, for the Appellant. Patricia L. Haines, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, 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-12-12518 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael L. Wolverton, Judge. Appearances: Michael Horowitz, Law Office of Michael Horowitz, Kingsley, Michigan, under contract with the Office of Public Advocacy, Anchorage, for the Appellant. Patricia L. Haines, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, and Allard and Wollenberg, Judges. Judge ALLARD.
Trevor Moore-Barras was convicted, following a jury trial, of first-degree robbery, two counts of second-degree assault, fourth-degree assault, third-degree theft, fourth-degree theft, and disorderly conduct. On appeal, Moore-Barras raises multiple claims of error. For the reasons explained here, we find no merit to these claims. Accordingly, we affirm Moore-Barras's convictions.
AS 11.41.500(a)(3); AS 11.41.210(a)(1); AS 11.41.210(a)(2); AS 11.41.230(a)(1); AS 11.46.140(a)(1); AS 11.46.150(a)(1); and AS 11.61.110(a)(5).
Background facts and prior proceedings
On the afternoon of November 29, 2012, Trevor Moore-Barras stole two bottles of alcohol from the Brown Jug liquor store in downtown Anchorage. Two Brown Jug employees, store manager Eric Whisman and clerk Marlen Moore, ran out of the store and saw Moore-Barras run down the street with two other unidentified individuals. This incident was reported to the police.
Approximately ninety minutes later, Moore-Barras returned to the Brown Jug with his twin brother Torrence Moore-Barras and two friends, Malotumau Tuinei and Izacc Tuinei-Souhala. Moore-Barras initially entered the store alone and went to the same area of the store where he had earlier stolen the bottles of alcohol. When the clerk asked him to remove his hood in accordance with Brown Jug policy, Moore-Barras responded angrily. The clerk then asked the manager (who was outside smoking a cigarette) to come inside. When the manager came inside, Moore-Barras's brother and friends followed him and stood in the arctic entryway.
Moore-Barras took a bottle of Patron tequila off the shelf and announced, "I'm taking this Patron." The clerk informed Moore-Barras that they would not be able to sell to him because of his behavior, and he asked Moore-Barras to return the bottle. Moore-Barras grabbed a second bottle and told the clerk, "You're going to have to do what you got to do." When the clerk reached forward to take the bottles, Moore-Barras hit the clerk in the face with one of the bottles. When the manager intervened, Moore-Barras hit the manager as well. The manager was nevertheless able to get on top of Moore-Barras in an effort to restrain him.
By this time, Moore-Barras's friends had entered the store, and they joined Moore-Barras in assaulting the clerk and manager. One friend threw bottles at the manager as the manager struggled with Moore-Barras. The other friend began removing more bottles of alcohol from the store.
At some point during his struggle with the manager, Moore-Barras called out that he could not breathe. His brother, Torrence, then pushed the manager off Moore-Barras. Once freed, Moore-Barras resumed his assaults on the clerk and the manager, slamming the manager into a shelf. Moore-Barras then took two bottles of alcohol and left the store. On his way out the door, he paused to yell, "That's what you get for fucking with the Barras brothers, bitch."
Both the manager and the clerk sustained serious physical injuries from the attacks. The manager suffered a broken orbital rim, fractured sinuses, and a broken finger. Doctors had to install a titanium plate in his face to hold his eye in place. The clerk suffered a fractured zygomatic arch — an injury that can cause permanent disfigurement — in addition to a potentially broken nose, and damage to the muscles of the back of his head and neck. These injuries left him with ongoing headaches and vision problems.
After exiting the store, Moore-Barras saw Amanda Frederick, a former Brown Jug employee who had been visiting with the manager before the robbery. Frederick was on her phone talking to the police. Moore-Barras ordered Frederick to get off the phone. When she refused, he hit her in the face.
A local distributor, Edward Michinski, had been on his way into the Brown Jug store to deliver a case of energy drinks when he encountered Moore-Barras leaving the store. Moore-Barras also struck Michinski before running away.
Moore-Barras, his brother, and his two friends were arrested a short time later. They were with a young woman named Sandra Blix. Three of the stolen bottles of alcohol were found in Blix's purse.
The four men were indicted on multiple felony charges, including first-degree robbery, first-degree assault, second-degree assault, first-degree burglary, second-degree burglary, and third-degree criminal mischief. At their joint trial, the jury heard from the various victims and bystanders who witnessed the events. The jury also saw video surveillance footage of the events, taken from different angles within the store.
The jury ultimately convicted Moore-Barras of first-degree robbery, two counts of second-degree assault for the attack on the clerk (these convictions merged at sentencing), one count of second-degree assault and one count of fourth-degree assault for the attack on the manager (these convictions merged at sentencing), fourth-degree assault for the attack on the distributor, disorderly conduct for the attack on the former employee who was calling the police, third-degree theft for the alcohol that was stolen during the robbery, and one count of fourth-degree theft for the shoplifting that Moore-Barras committed ninety minutes before the robbery. The jury convicted Moore-Barras's brother, Torrence, of third-degree theft and fourth-degree assault. Moore-Barras's friend, Malotumau Tuinei, was convicted of third-degree theft, second-degree assault, and fourth-degree assault. His other friend, Izacc Tuinei-Souhala, was convicted of third-degree theft and two counts of fourth-degree assault.
Moore-Barras's claim that the trial court committed plain error when it failed to instruct the jury on the need for factual unanimity
Moore-Barras raises two factual unanimity arguments on appeal. Moore-Barras argues first that the trial judge should have sua sponte instructed the jury on the need for factual unanimity with regard to the first-degree robbery charge. We find no merit to this claim. As the State correctly points out, the robbery was prosecuted as one continuous course of conduct for which no factual unanimity instruction was needed.
See Taylor v. State, 400 P.3d 130, 135 (Alaska App. 2017) (stating that no factual unanimity instruction is required where acts were prosecuted as a continuing course of felony eluding).
We additionally note that, at trial, Moore-Barras conceded most of the elements of the robbery charge — that is, he conceded that he had taken the two bottles of alcohol and that he had inflicted serious physical injuries on the clerk and manager. He challenged only whether he had used force with the intent of preventing or overcoming resistance to the theft and whether he was too intoxicated to have formed this intent.
Moore-Barras also separately argues that the trial judge should have sua sponte instructed the jury on the need for factual unanimity with regard to some of the assault charges. We also find no merit to this claim. As the State points out, the assaults were prosecuted as a single course of conduct against each victim. In accordance with this theory of prosecution, the assault convictions for each victim were later merged at sentencing. No factual unanimity instruction for these charges was therefore required.
Moore-Barras's claim that there was a fatal variance between the first indictment and the trial
On appeal, Moore-Barras argues that there was a fatal variance between the evidence presented to the first grand jury and the evidence presented at trial, because the first grand jury was never told about Moore-Barras taking the two bottles of alcohol as he fled the store after the assaults. (Instead, the first grand jury was only told about the alcohol bottles that Moore-Barras refused to give back to the clerk and then used to attack the clerk and the manager.)
But as the State correctly points out, any claim of a variance based on the first indictment is moot because there was a second, superseding indictment in this case. At the second grand jury hearing, the grand jury heard testimony that Moore-Barras took two bottles as he fled the scene. The second grand jury also watched the entire video surveillance footage which showed Moore-Barras taking these bottles.
Accordingly, we find no merit to this claim of error.
Moore-Barras's claim that the evidence was not legally sufficient to support his conviction on Count V
Moore-Barras was charged with two counts of second-degree assault against the clerk (Marlen Moore). The first count (Count V) charged Moore-Barras with intentionally causing physical injury to Marlen Moore with a dangerous instrument. The second count (Count VII) charged Moore-Barras with recklessly causing serious physical injury to Marlen Moore. The jury convicted Moore-Barras of both counts, and the two convictions were merged at sentencing.
AS 11.41.210(a)(1); AS 11.16.110(2)(b).
AS 11.41.210(a)(2).
On appeal, Moore-Barras argues that there was insufficient evidence to support the jury's guilty verdict on Count V. But because Count V merged with Count VII, Moore-Barras's insufficiency claim with regard to Count V is moot. However, as the State acknowledges in its brief, the judgment is not as clear as it should be with regard to the merged counts. Accordingly, we agree with the State that the judgment should be amended to clarify that Counts V and VII merged into a single conviction, as did Counts IV and VI.
See Nicklie v. State, 402 P.3d 424, 426 (Alaska App. 2017) (recognizing that "when a defendant is found guilty of counts that must merge, the merger results in a single conviction of record").
Moore-Barras's claim that the trial court erred in denying his Batson challenges
In Batson v. Kentucky, the United States Supreme Court established a three-step process for addressing a peremptory challenge of a juror that appears to be race-based. First, the defendant must demonstrate that "the totality of the relevant facts gives rise to an inference of discriminatory purpose." Once this showing has been made, the burden then shifts to the prosecutor to explain his or her reason for exercising a peremptory challenge against that potential juror. A prosecutor's offer of a race-neutral explanation satisfies this second step. However, in the important third step of the Batson analysis, the trial court must independently evaluate the credibility of the prosecutor's proffered explanation, to determine whether it is genuine or pretextual.
Batson v. Kentucky, 476 U.S. 79, 96-98 (2005).
Id. at 94; see also Miller-El v. Dretke, 545 U.S. 231, 240 (2005) (holding that a defendant can rely on "all relevant circumstances" in making out a prima facie case of purposeful discrimination, including evidence outside "the four corners of a given case").
Batson, 476 U.S. at 97.
Id. at 98.
Snyder v. Louisiana, 552 U.S. 472, 477 (2008).
In the present case, the prosecutor used two of his peremptory challenges to challenge an African-American juror and an Alaska Native juror. The defense attorney raised Batson challenges to each of these peremptory challenges.
With regard to the African-American juror, the prosecutor gave two reasons for his peremptory challenge. First, the prosecutor asserted that he struck this juror because he was concerned about the juror's availability. Second, the prosecutor expressed concern that the juror might not be fair to the State due to his brother's previous felony conviction. With regard to the Alaska Native juror, the prosecutor stated that his reason for striking this juror was her reluctance to commit to her obligations as a juror. The prosecutor noted that the juror said that she was very nervous and intimidated by how many people were in the courtroom. She also stated that she might not be able to deliberate on each defendant separately because she was not good at "law thingies."
The trial court then independently evaluated the credibility of these proffered reasons, and found that they were genuine and not pretextual. The trial court noted, however, that the prosecutor appeared to be confused about the African-American juror's lack of availability. During voir dire, the juror had initially indicated that he planned to move to California for college around May 16. (The trial was expected to last until May 23.) However, upon further questioning (and some pressure from the judge), the juror said that he could be available through the end of trial. The trial court concluded that the prosecutor was therefore mistaken about the juror's actual availability but that this confusion was genuine and the proffered reasons were not pretextual. The trial court similarly found that the prosecutor's reason for striking the Alaska Native juror was genuine, and the court noted that the prosecutor had not peremptorily challenged any of the other Alaska Natives in the jury pool.
On appeal, Moore-Barras argues that the trial court erred when it found the prosecutor's proffered race-neutral explanations credible and not pretextual. But as we have explained previously, "if the attorney offers a race-neutral explanation for the challenge, and if the attorney is acting in good faith ... then the peremptory challenge will survive a Batson objection even if the attorney's reason for the challenge is not ... persuasive or even plausible." Because a trial court's determination of whether a prosecutor acted with discriminatory intent is a factual inquiry that depends in large part on the trial court's determinations of credibility, our review is limited to assessing whether the court's determination was clearly erroneous. Although we agree with Moore-Barras that the trial court could have provided a more thorough Batson analysis, we do not find the court's findings clearly erroneous.
Gottschalk v. State, 36 P.3d 49, 53-54 (Alaska App. 2001) (quoting Purkett v. Elem, 514 U.S. 765, 768 (1995) (per curiam)).
Id. at 55; see also Rock v. State, 2001 WL 219878, *3 (Alaska App. Mar. 7, 2001) (unpublished). --------
Alleged errors in the jury instructions
On appeal, Moore-Barras challenges isolated parts of various jury instructions. Moore-Barras concedes that he made no objections to any of these instructions in the trial court. He also concedes that none of these alleged errors constitute plain error. This concession can be found on page 42 of Moore-Barras's opening brief: "These instructions were not objected to and obviously do not amount to plain error." Given this concession, we do not address these claims.
Conclusion
We REMAND this case to the superior court for correction of the judgment to clarify that the jury verdicts on counts IV and VI were merged into a single conviction and the jury verdicts on counts V and VII were likewise merged into a single conviction. The judgment of the superior court is otherwise AFFIRMED.