Opinion
Court of Appeals No. A-10212.
February 3, 2010.
Appeal from the Superior Court, Third Judicial District, Kenai, Anna M. Moran, Judge. Trial Court No. 3KN-07-918 Cr.
Renee McFarland, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Tamara E. de Lucia, 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
Christopher F. Myers appeals his conviction for third-degree assault and the sentence that he received for that crime. Myers asserts that his conviction is flawed because the jury instructions improperly allowed the jury to convict him even though the jurors did not unanimously agree on a single theory of Myers's guilt. Myers asserts that his sentence is flawed because the sentencing judge should have ruled in his favor on a proposed mitigating factor, AS 12.55.155(d)(9) (conduct among the least serious within the definition of the offense). For the reasons explained in this opinion, we reject both of Myers's claims of error, and we therefore affirm his conviction and sentence.
Underlying facts
In May 2007, Myers was living in Kenai with his girlfriend, Teresa Patrick. When Myers came home from work on May 23rd, he discovered a Homer newspaper among Patrick's things. Based on this discovery, Myers accused Patrick of having an affair.
According to the State's evidence (that is, according to Patrick's account), Myers began yelling at her and then he pushed her onto a couch and climbed on top of her. Myers pinned Patrick down and then he proceeded to asphyxiate her, pressing one forearm against her neck and holding his other hand over her nose and mouth. At one point, Myers choked Patrick with his hand. Patrick further testified that Myers pulled out a clump of her hair and slammed her head against the arm of the couch.
When the state troopers arrived, they observed scratches on the back of one of Patrick's hands, marks around her mouth and lips, a scratch below her left ear, and redness on her throat. The next day, Patrick visited the local emergency room. The doctor who examined her testified that her injuries were consistent with strangulation. The nurse who examined her testified that part of Patrick's hair appeared to have been pulled, and that there were contusions on her lips that could have resulted from being punched. The nurse also testified that there were scratches on Patrick's hands, contusions on her right wrist and shoulder, and deep-tissue bruises that were only visible under an ultraviolet light.
Based on this incident, the State obtained a three-count indictment against Myers. In this indictment, Myers was charged with one count of second-degree assault under AS 11.41.210(a)(1) ( intentionally causing physical injury to Patrick by using his hands as a dangerous instrument), one count of third-degree assault under AS 11.41.220(a)(1)(B) ( recklessly causing physical injury to Patrick by using his hands as a dangerous instrument), and one count of third-degree assault under AS 11.41.220(a)(1)(A) (recklessly placing Patrick in fear of imminent serious physical injury).
The facts relating to Myers's claim that he was wrongfully denied jury unanimity on the third-degree assault charge
The main issue raised in Myers's appeal arises from the distinction between the two third-degree assault charges described in the preceding paragraph. One of the third-degree assault charges was based on the theory that Myers injured Patrick by means of a dangerous instrument; the other third-degree assault charge was not based on the infliction of injury, but rather on the theory that Myers caused Patrick to fear that she was about to suffer serious physical injury.
At trial, Myers's attorney argued that it was improper to allow both of these charges to go to the jury; the defense attorney contended that the prosecutor should be forced to elect one of them. The defense attorney's argument was incorrect; but rather than opposing the defense attorney's request, the prosecutor instead proposed that the defense attorney's objection could be met if the two third-degree assault charges were treated as lesser included offenses of the second-degree assault charge — with the stipulation that if the jury rejected the greater charge of second-degree assault and moved on to the charge of third-degree assault, the jurors would not have to unanimously agree on which theory of third-degree assault was proved.
See, for instance, Gray v. State, 463 P.2d 897, 910 (Alaska 1970): "We agree with the state's contention that . . . [a] single act of killing could be both premeditated and committed in the perpetration of [a felony, and thus] the prosecution should be able to proceed on both theories of first[-]degree murder. In cases where there is sufficient evidence to justify the submission of both theories to the jury, the prosecution should not be forced to elect between the theories but may have both theories submitted to the jury.").
Myers's attorney made no objection to the prosecutor's proposal. Accordingly, at the end of the trial, the jurors were instructed that if they found Myers not guilty of second-degree assault and then moved on to consideration of the lesser charge of third-degree assault, "[t]he charge of Assault in the Third Degree [could] be proven in either of two ways", and "[t]he jurors [did not] need [to] agree on which of the two theories . . . the state has [proved]".
The jury acquitted Myers of second-degree assault but convicted him of third-degree assault.
Now, on appeal, Myers contends that it was plain error to allow the jury to convict him of third-degree assault without requiring the jury to reach unanimous agreement as to which theory the State had proved (infliction of injury by means of a dangerous instrument versus causing Patrick to fear imminent serious physical injury).
Why we find that the potential lack of jury unanimity is not plain error
Myers did not object to the jury instructions that he now challenges on appeal. Specifically, Myers did not object to the fact that the jury instructions expressly authorized the jury to find him guilty of third-degree assault even though the jurors were not in unanimous agreement as to which of the two theories of assault the State had proved. Because of this, if Myers is to prevail in this appeal, he must prove that it was plain error for the trial judge to instruct the jurors in this manner.
See, e.g., Covington v. State, 711 P.2d 1183, 1184 (Alaska App . 1985).
Under Alaska law, when a defendant is charged with a crime under more than one theory, the jurors need not unanimously agree on the theory that serves as the basis for the defendant's conviction, but the jurors must "unanimously agree that the defendant committed the [same] wrongful deed". State v. James, 698 P.2d 1161, 1165 (Alaska 1985). In cases like James, where "only one criminal act [is] alleged and only one incident [is] involved", the jurors must agree that the defendant committed the act, but they need not agree on which clause of the statute this act violated. Id. at 1165-66.
Thus, in Ragsdale v. State, 23 P.3d 653 (Alaska App. 2001), this Court upheld the defendant's conviction for second-degree sexual assault even though the State presented alternative theories to the jury and the jury instructions did not require the jurors to reach unanimity on either theory:
Ragsdale was indicted for second-degree sexual assault under alternative theories: that he engaged in sexual penetration with a person who he knew was "incapacitated" (paragraph (3)(B) of the statute), and that he engaged in sexual penetration with a person who he knew was "unaware that a sexual act [was] being committed" (paragraph (3)(C) of the statute).
. . .
Nevertheless, . . . the jurors did not need to reach unanimous agreement concerning which theory of prosecution was proved. A jury ordinarily does not have to agree on a single interpretation of the facts of a particular criminal episode. When a statute defines two or more circumstances in which the defendant's conduct constitutes a crime, the defendant may lawfully be convicted if each juror concludes that at least one of these circumstances has been proved.
Ragsdale, 23 P.3d at 658-59 (footnotes omitted).
This same principle has been applied in Ward v. State, 758 P.2d 87, 92 (Alaska 1988) (jurors need not be unanimous as to whether the defendant drove a motor vehicle while under the influence of intoxicants or drove a motor vehicle while his blood alcohol level was .10 percent or greater); and Totemoff v. State, 866 P.2d 125, 129 (Alaska App. 1993) (jurors need not be unanimous as to whether the defendant acted as a principal or an accomplice in the illegal taking of deer).
Given this Alaska case law, the best that can be said of Myers's argument in this appeal is that his position is debatable. And because his position is no more than debatable, he has failed to show plain error. See, for example, Cooper v. State, 153 P.3d 371, 373 (Alaska App. 2007), and Simon v. State, 121 P.3d 815, 820 (Alaska App. 2005), both holding that if a claim of error is no more than debatable — if reasonable judges could differ on what the law requires — then a claim of plain error fails.
For these reasons, we uphold Myers's conviction for third-degree assault.
Myers's claim that his offense was among the least serious within the definition of third-degree assault
Myers's remaining claim is that his sentencing judge committed error when she ruled that Myers had failed to prove mitigating factor (d)(9) — that his conduct in committing the offense was among the least serious within the definition of third-degree assault.
When the sentencing judge rejected the proposed mitigator, she noted that Myers's offense was an act of domestic violence, that Patrick suffered significant injury, and that Myers used his hands as dangerous instruments. (As defined in AS 11.81.900(b)(15), a person's hands are "dangerous instruments" if they are "used to impede normal breathing . . . by applying pressure on [someone's] throat or neck[,] or obstructing [a person's] nose or mouth".)
It is true, as Myers points out, that the crime of third-degree assault encompasses much more serious acts of violence. However, the question is not whether Myers's offense was among the most serious third-degree assaults; rather, the question is whether his offense was among the least serious.
As we noted in Juneby v. State, 641 P.2d 823 (Alaska App. 1982), sentencing courts are to find aggravators and mitigators only when the defendant's conduct departs significantly from the mainstream conduct covered by the offense: "It is manifest that the legislature did not intend aggravating and mitigating circumstances to be lightly found." Id. at 832-33.
Here, we agree with the sentencing judge that Myers's conduct could properly be categorized as within the typical range of violence that characterizes the offense of third-degree assault. Thus, the sentencing judge properly rejected the proposed mitigator.
Conclusion
The judgement of the superior court is AFFIRMED.