Opinion
A-13391
02-16-2022
MARK A. WEINBERGER JR., Appellant, v. STATE OF ALASKA, Appellee.
Wallace Tetlow, Tetlow Christie, LLC, Anchorage, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Elizabeth T. Burke, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Third Judicial District, Kenai, Lance Joanis, Judge. Trial Court No. 3KN-18-00341 CR
Wallace Tetlow, Tetlow Christie, LLC, Anchorage, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Elizabeth T. Burke, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Harbison and Terrell, Judges.
SUMMARY DISPOSITION
A jury convicted Mark A. Weinberger Jr. of second- and fourth-degree assault for two separate incidents - one where Weinberger struck his wife with a small wooden bat and another where Weinberger hit her head against a wall. At sentencing, the superior court found that the State had proven two aggravating factors - that the offense was committed against a spouse or someone who lived with him and also that the offense was committed against a person with whom he had a dating or sexual relationship. Weinberger was sentenced to 4 years with 2 years suspended (2 years to serve) for the second-degree assault, and 360 days with 270 days suspended (90 days to serve) for the fourth-degree assault. The parties are in agreement that the two sentences run concurrently except for the minimum consecutive term required for the additional assault offense under AS 12.55.127(c)(2)(F). Weinberger's composite term to serve is therefore 2 years plus 1 day.
AS 11.41.210(a)(1) and AS 11.41.230(a)(1), respectively.
AS 12.55.I55(c)(I8)(A) and AS 12.55.I55(c)(I8)(D).
See AS 12.5 5.127(c)(2)(F) (requiring "some additional term of imprisonment for each additional crime" when a defendant is convicted of multiple offenses under AS 11.41); Osborne v. State, 182 P.3d 1155, 1158 (Alaska App. 2008) (noting that the statutory requirement of additional time under AS 12.55.127(c)(2)(F) is satisfied by a single day). See also Paige v. State, 115 P.3d 1244, 1246-48 (Alaska App. 2005) (holding that where the sentencing court does not specify whether sentences are to be served concurrently or consecutively, the sentences are deemed to have been imposed concurrently). Here, the sentencing court did not specify whether the sentences were to be run consecutively or concurrently, and the parties are in agreement that the sentences are to be run concurrently except for the one day required under AS 12.55.127(c)(2)(F). To the extent the judgment is not clear on this issue, it should be modified to make it clear that the sentences run concurrently except for one day.
On appeal, Weinberger first contends that his wife's testimony about emotional abuse - that Weinberger got angry and upset if she communicated with her family or friends, that he frequently searched her phone, and that he would not allow her family to attend their wedding - was inadmissible "profile evidence." According to Weinberger, the superior court erred by permitting the testimony and also by permitting the State to use this evidence in its closing argument.
Because Weinberger did not object to the admission of this evidence at trial, this Court reviews this claim for plain error.
Adams v. State, 261 P.3d 758, 773 (Alaska 2011).
We conclude that the superior court did not plainly err in allowing the State to admit this evidence or to use it in closing arguments. The term "profile evidence" has a specific meaning that Weinberger misconstrues. Profile evidence is testimony, usually from an expert witness, identifying character traits shared by people who typically commit certain offenses. Weinberger's wife's testimony regarding incidents of abuse referred to Weinberger's actual conduct and did not identify general character traits of one who commits domestic assault. Similarly, the State did not assert in its closing argument that Weinberger had the character traits of a batterer; instead, it permissibly argued that Weinberger's conduct was consistent with domestic violence. We accordingly conclude that there was nothing improper about this testimony or about the State's use of this testimony in its closing argument.
See Shepard v. State, 847 P.2d 75, 80 (Alaska App. 1993).
Next, Weinberger argues that his sentence violates Farmer v. State. In Farmer, we held that in imposing a composite sentence for multiple offenses, the presumptive term for the defendant's most serious offense is a benchmark "not to be exceeded without good reason." The legislature has since amended the presumptive sentencing laws to set out presumptive ranges in place of presumptive terms, and we have not yet addressed to what extent Farmer's requirements continue to apply. But even assuming that they still do apply, we find no violation here given that the statutory aggravating factors and the consecutive sentencing provision in AS 12.55.127(c)(2)(F) clearly constitute good reason for exceeding the presumptive term.
Farmer v. State, 746 P.2d 1300 (Alaska App. 1987).
Id. at 1301.
See, e.g., Johnson v. State, 2016 WL 3220953, at *4 (Alaska App. June 8, 2016) (unpublished); McKechnie v. State, 2008 WL 399152, at *2 (Alaska App. Feb. 13, 2008) (unpublished).
Lastly, Weinberger argues that his sentence is excessive. This Court reviews an excessive sentence claim under the "clearly mistaken" standard of review.The clearly mistaken standard implies a permissible range of reasonable sentences that a reviewing court, after an independent review of the record, will not modify. After independently reviewing this record, we do not find the sentence imposed here clearly mistaken.
Weinberger also argues that the trial court improperly aggravated his sentence because he exercised his right to trial and his right to silence. But there is nothing to support this claim and Weinberger's argument rests on his reading the trial court's sentencing remarks out of context.
McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).
State v. Korkow, 314 P.3d 560, 562 (Alaska 2013).
Accordingly, the judgment of the superior court is AFFIRMED.