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Morrell v. State (9/25/2009) ap-2241

Morrell v. State (9/25/2009) ap-2241

                             NOTICE
     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
     are  encouraged to bring typographical or other  formal
     errors  to  the attention of the Clerk of the Appellate
     Courts.

             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878
       E-mail:  corrections@appellate.courts.state.ak.us

         IN THE COURT OF APPEALS OF THE STATE OF ALASKA


JACK E. MORRELL, )
) Court of Appeals No. A-9847
Appellant, ) Trial Court No. 3AN-04-1978 CR
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. )
) No. 2241 September 25, 2009
Appeal    from    the
          Superior  Court,  Third  Judicial  District,
          Anchorage, Eric A. Aarseth, Judge.

          Appearances:   Renee  McFarland,   Assistant
          Public Defender, and Quinlan Steiner, Public
          Defender,   Anchorage,  for  the  Appellant.
          Nancy  R. Simel, Assistant Attorney General,
          Office  of Special Prosecutions and Appeals,
          Anchorage,  and  Talis J. Colberg,  Attorney
          General, Juneau, for the Appellee.

          Before:   Coats, Chief Judge, and Mannheimer
          and Bolger, Judges.

          BOLGER, Judge.

          Jack  E.  Morrell killed Eric Kalenka by  stabbing  him
several  times in the leg outside of a Taco Bell restaurant.   We
conclude  that there was sufficient evidence to support  Morrells
resulting conviction for second-degree murder.  We also  conclude
that  the  trial judge did not abuse his discretion by  admitting
evidence that Morrell had smoked marijuana and had four ounces of
marijuana  in  his  vehicle.  We further conclude  that  Morrells
sentence of 60 years imprisonment with 10 years suspended was not
clearly mistaken.

     Background
          Erik  Kalenka and his girlfriend, Christine Giles, went
to  the  drive-through at the Taco Bell on Fifth Avenue  after  a
night  of  playing video games.  Jack Morrell and   his  cousins,
Paul  and  William  Wassili, also went to  the  Taco  Bell  after
spending four to five hours drinking at Chilkoot Charlies.
          While  Kalenka  and Giles were waiting  in  the  drive-
through  line, Morrells Chevy Suburban struck the rear bumper  of
Kalenkas rented Subaru.  Kalenka got out of the Subaru to  assess
the damage and asked Morrell to move the Suburban so that Kalenka
could  see the back of his car.  Morrell refused to move,  saying
something  to  the  effect  of Why are you  white  people  always
fucking  with us Natives?  Kalenka responded by pulling  out  his
phone and dialing 911.
          The  encounter then escalated:  Morrell grabbed Kalenka
by  the collar and shoved him against the Subaru.  Kalenka stated
that   he  did  not  want  to  fight   he  just  wanted  Morrells
information  because  the  Subarau  was  a  rental.   The   fight
continued as Morrell produced a folding knife from his pocket and
punctured the Subarus rear tire. Paul and William Wassili  exited
the Suburban, and Claude Doucet, the driver of the car behind the
Suburban, also got out of his vehicle.
          The  fight  continued  to  escalate,  and  Morrell  and
Kalenka  began  to  roll  around on  the  ground.   Then  Kalenka
screamed that he had been stabbed, and Doucet and William Wassili
pulled Morrell off Kalenka.  Kalenka, who was bleeding and having
trouble walking, got back into the Subaru and asked Giles to  get
an  ambulance.   While Giles was speaking with the 911  operator,
Kalenka became unresponsive and then died.
          Medical  Examiner Frank Fallico conducted the  autopsy.
Fallico  testified that Kalenka died from multiple  stab  wounds:
Kalenka  suffered seven stab wounds to the left leg and one  stab
wound to the upper portion of his right leg, near the groin area.
Fallico testified that one of the wounds, a stab wound above  the
knee  on  the  left side of Kalenkas left leg, had  been  rapidly
fatal because it nicked the popliteal artery, an extension of the
femoral  artery.  Fallico also testified that Kalenka had  wounds
to his hands and face.
          Morrell  was  indicted  for second-degree  murder1  and
first-degree  robbery  (for allegedly taking  Kalenkas  wallet).2
Morrell  claimed  self-defense at trial,  arguing  that  although
Morrell  started  the fight, Kalenka escalated the  fight,  using
deadly  force  by  putting  Morrell  in  a  headlock,  making  it
difficult for him to breathe.
            The  State presented evidence of marijuana metabolite
in  a  blood sample taken from Morrell on the morning  after  his
arrest,  and  evidence  that  there  were  over  four  ounces  of
marijuana  found in his car.  At trial, Morrell argued  that  the
          marijuana evidence should not be admitted, but the trial court
denied his motion and admitted the evidence.
          The  jury  acquitted Morrell on the robbery charge  but
rejected  his  self-defense claim and convicted  him  of  second-
degree  murder.   Finding that Morrells crime was  an  atypically
serious  second-degree  murder,  Superior  Court  Judge  Eric  A.
Aarseth sentenced Morrell to 60 years imprisonment with 10  years
suspended.
     



     Sufficiency of the Evidence
          Morrell   argues   that   insufficient   evidence   was
presented to the jury to support his conviction for second-degree
murder.   When  we  review the sufficiency of  the  evidence,  we
uphold  a  verdict if any reasonable juror could  have  concluded
that the defendant was guilty beyond a reasonable doubt.3  We  do
not  weigh the evidence or witness credibility;4 we consider only
those facts in the record most favorable to the verdict and  such
reasonable inferences as a jury may have drawn from those facts.5
          Morrell  was  charged with second-degree  murder  under
three theories:  (1) the serious-physical-injury theory  that  he
intended to cause serious physical injury to Kalenka or knew that
his  conduct  was  substantially certain  to  result  in  serious
physical injury or death, and his conduct caused Kalenkas  death;
(2)  the  extreme-indifference theory  that he engaged in conduct
manifesting  an  extreme indifference to human life,  and  caused
Kalenkas death; and (3) the felony-murder theory  that he  caused
Kalenkas death during the commission of first-degree robbery.6
          The  jury  was  not asked to specify  which  theory  it
relied upon when it reached a verdict on the murder charge.7  But
the parties agree that the jury did not rely on the felony-murder
theory, because the jury acquitted Morrell of the robbery charge.
Thus, the jurors must have convicted Morrell under one or both of
the other two theories.
          In  this  appeal, Morrell does not contest  that  there
was sufficient evidence to support a conviction under the extreme-
indifference theory.  But Morrell contends that the State  failed
to  provide sufficient evidence to support conviction  under  the
serious-physical-injury theory.

          Sufficiency  of  the  evidence  to  support  conviction
under the serious-       physical-injury theory
          Our  review of the record convinces us that  there  was
sufficient  evidence  to support either  prong  of  the  serious-
physical-injury theory:  that Morrell intended to  cause  serious
physical   injury,  or  that  Morrell  knew   his   conduct   was
substantially  certain to result in serious  physical  injury  or
death.
          Regarding  the  first prong of this theory,  there  was
sufficient  evidence  to  show that  Morrell  intended  to  cause
serious  physical injury.8  The witnesses at the  scene  and  the
autopsy   evidence  established  that  Morrell  stabbed   Kalenka
repeatedly with a folding knife, an instrument defined by statute
          as a deadly weapon.9  The medical examiner testified that Kalenka
had  eight penetrating stab wounds on his legs.  Of these wounds,
one  was  lethal  or  rapidly lethal and  the  other  seven  were
referred to as lethal only in the absence of modern medical care.
The medical examiner also testified that Kalenka had knife wounds
on  his  hands suggesting that he attempted to ward off  Morrells
attack.   The  jury  could  have inferred  that  because  Morrell
stabbed  Kalenka  eight  times while  Kalenka  tried  to  protect
himself,  Morrell had the conscious objective of causing  serious
injury to Kalenka.
          Additionally,  Giles,  Kalenkas  girlfriend,  testified
that prior to the fight, Morrell threatened both her and Kalenka.
Claude Doucet, an unrelated bystander, testified that Morrell was
uttering   racist   remarks  and  expletives.   Morrell   himself
testified  that he was intoxicated at the time of  the  encounter
and  that  he was angry at Kalenka for calling 911.  Accordingly,
the  jury  could  have  concluded  that  Morrell  was  drunk  and
agitated,  that Morrell intentionally stabbed Kalenka,  and  that
Morrell  wanted  to hurt Kalenka.  Viewing the  evidence  in  the
light  most favorable upholding the jurys verdict, there is ample
evidence that Morrell intended to seriously injure Kalenka.
          Regarding  the second prong of this theory,  there  was
likewise  sufficient  evidence to  show  that  Morrell  knew  his
conduct  was  substantially certain to  cause  death  or  serious
physical  injury.  In Huitt v. State, we clarified that a  person
could  act knowing that his conduct was substantially certain  to
cause  death  under  this statute without  having  an  intent  to
kill.10   There was ample evidence presented at trial from  which
reasonable  jurors  could have concluded that Morrell  knew  that
stabbing Kalenka would result in serious physical injury.
          Morrell  stabbed  Kalenka repeatedly with  a  knife,  a
weapon  that  is  capable of causing death  or  serious  physical
injury.   Dr.  Fallico,  the  medical examiner,  testified  that,
notwithstanding the wound to Kalenkas popliteal  artery,  any  of
the wounds could have been fatal, particularly if left untreated.
Dr.  Fallico  also  testified that stabbing causes  bleeding  and
infection,  and  that bleeding and infection can cause  long-term
impairment  of health or death.   In the light most favorable  to
upholding  the jurys verdict, there was sufficient evidence  that
Morrell   knew  of  the  substantial  probability  that  stabbing
Kalenkas legs would cause long-term impairment.

          Sufficiency  of  the  evidence  that  Morrell  was  not
acting in self-defense
          Morrell   also   argues   that  the   State   presented
insufficient  evidence to rebut his claim of self-defense.   Once
the  defendant produces some evidence of self-defense, the  State
has the burden of disproving the existence of that defense beyond
a reasonable doubt.11
          However, a person may not use force in self-defense  if
he  is the initial aggressor.12  In particular, a person who arms
himself and provokes a confrontation forfeits the right to  claim
self-defense.13  Morrell admits that he was the initial aggressor
in  this encounter.  But he argues that Kalenka used deadly force
against  him  by putting him in a headlock, which  gave  him  the
          right to use deadly force against Kalenka.14  Morrell bases his
argument  almost  solely  on  his  own  testimony,  ignoring  the
evidence that favors upholding the jurys verdict.
          There  was ample evidence from which reasonable  jurors
could  have  concluded that Kalenka was not  threatening  Morrell
with  deadly  force  at  the time Morrell  stabbed  him.   Doucet
testified  that  Morrell was winning the fight  at  the  time  he
stabbed  Kalenka.   Doucet also testified that  he  had  to  pull
Morrell  off Kalenka once Kalenka announced he had been  stabbed.
Similarly, William Wassili told the police that once Kalenka  had
been stabbed, he had to shove Morrell off Kalenka.
          Accordingly,  the jury could have reasonably  concluded
that  Morrell was winning the fight and that Kalenka did not pose
a  deadly threat.  Looking at all the evidence in the light  most
favorable to the jurys verdict, there was sufficient evidence for
a  reasonable juror to conclude that Morrell did not act in self-
defense.

     The Marijuana Evidence
          Before  trial, Morrell sought to exclude  the  evidence
of  the  marijuana  found in his vehicle  and  of  the  marijuana
metabolites  found  in  his bloodstream, citing  Alaska  Evidence
Rules 402 and 403.  The judge denied Morrells motion, ruling that
the marijuana evidence was probative of Morrells motive, and that
the  evidence would not confuse the jury or prompt them to decide
Morrells case based on emotion.  We review this decision to admit
evidence  for  an  abuse of discretion,15 that  is,  whether  the
judges decision was clearly untenable or unreasonable.16
          We  conclude  that  the  trial judge  could  reasonably
decide  that  the evidence that Morrell possessed  marijuana  was
relevant to the issues in dispute.  Morrell admitted that he knew
that  four  ounces  of marijuana could subject  him  to  criminal
charges.   The  evidence thus suggested that  Morrell  was  angry
about  Kalenkas decision to call 911 because he was  afraid  that
the  police would discover that he had marijuana in his  vehicle.
This  motive  in  turn suggested that Morrell  intended  to  hurt
Kalenka and that he was not merely acting in self-defense.
          In  addition,  the evidence that Morrell had  marijuana
metabolites  in his system suggested that Morrell may  have  been
under  the  influence of marijuana when he attacked Kalenka.   If
Morrell was under the influence, the jury could infer that he was
acting  unreasonably  when  he  stabbed  Kalenka,  and  that  his
decision  was  not  based  on a reasonable  belief  that  he  was
required to use deadly force to defend himself.  Morrell contends
that  the  State  was  not  able  to  prove  the  extent  of  his
intoxication,  but that fact goes to the weight, rather  than  to
the admissibility, of this evidence.
          When  the  judge  considered the potential  prejudicial
effect  of this evidence, he concluded that the magnitude of  the
charged  offenses  second-degree murder and first-degree  robbery
made  it unlikely that a jury would be affected by the relatively
minor  stigma  attached  to the possession  of  marijuana.   This
reasoning  was  not  clearly untenable.  In a similar  case,  the
Arizona  Supreme Court found it unlikely that a jury in a  murder
case would be unfairly swayed by evidence that the defendant  had
          purchased  marijuana [g]iven the gravity of the crime for which
defendant  was on trial.17  We likewise conclude that the  judges
evidentiary  ruling  in  this  case  was  not  an  abuse  of  his
discretion.

     Sentence Appeal
          The   trial  judge  sentenced  Morrell  to   60   years
imprisonment with 10 years suspended for the second-degree murder
conviction.  Morrell argues that this sentence is excessive.
          In  Page v. State, this court established a range of 20
to  30 years to serve for a typical second-degree murder.18   The
legal  effect  of  the Page benchmark range  is  that  sentencing
judges  who  wish to impose more than 30 years to serve  for  the
crime  of  second-degree murder must explain why  they  view  the
defendant  as  having a worse background than that of  a  typical
first  felony offender, or why they view the defendants crime  as
worse  than a typical second-degree murder.19  A sentencing judge
may exceed the 20- to 30-year range for any sound reason.20
          In  the  instant case, the judge explained that Morrell
had  guarded  prospects for rehabilitation and that his  criminal
record  indicated a significant downward spiral.   As  the  judge
noted,  the  presentence report indicated that  Morrell  had  two
strings of convictions.  The first, beginning in 1992, included a
felony conviction for second-degree burglary and a conviction for
third-degree forgery.
          The  second  string,  beginning in 2002,  included  the
violation  of a domestic violence protective order, two  separate
convictions  for  failure to appear,  misdemeanor  driving  while
intoxicated,   and  driving  with  a  suspended   license.    The
presentence report also noted the eerie similarities between  the
facts  of  the  present  offense  and  a  traffic  incident  that
escalated into a public disturbance in 2003.  The judge  observed
that  Morrell was being simultaneously sentenced for  an  alcohol
importation  conviction,  and he  found  that,  at  the  time  of
Kalenkas  murder, Morrell was in possession of marijuana  clearly
intended for distribution.  Because of Morrells conduct from 2001
leading  up to the murder, the judge found that Morrell  posed  a
danger to the public.
          Morrell  argues  that his crime was a  typical  second-
degree  murder in comparison to other cases.  He relies on  cases
in  which  we  have affirmed sentences that were not excessive.21
However,  these cases only examined whether sentences within  the
Page  benchmark were excessive, not whether the sentencing judges
adequately  determined that the crimes were typical  or  atypical
second-degree  murders.   Therefore, these  cases  only  indicate
which  second-degree murder sentences are not excessive,  and  do
not  stand  for  the  proposition that  greater  sentences  would
necessarily  have been impermissible.22             Morrell  also
tries to distinguish his crime from one second-degree murder case
where we affirmed a 65-year sentence.  In Gustafson v. State, the
defendant was convicted of second-degree murder for shooting  the
passenger  of  another car after he became incensed  by  a  minor
slight by another driver.23  Morrell argues that his case is  not
as  serious  as   Gustafsons crime.  But Morrells  case  is  very
similar to one aspect of the Gustafson decision:  Morrell used  a
          deadly weapon in an unprovoked attack in response to a minor and
common  social disagreement.  And as we recognized in  Gustafson,
an  unpredictable or inexplicable crime like this one supports  a
greater  focus on the need to reaffirm the communitys values  and
sense   of   safety.24                  In  summary,  the   judge
adequately  explained his departure from the Page benchmark,  and
the resulting sentence is not clearly mistaken.

     Conclusion
          The  State  presented adequate evidence for  reasonable
jurors  to  conclude  beyond  a  reasonable  doubt  that  Morrell
committed  second-degree  murder and  that  the  State  disproved
Morrells  claim of self-defense.  Morrell has not shown that  the
trial  court  abused its discretion by allowing the  evidence  of
marijuana possession and use.  And Morrell has not shown that his
sentence is excessive.
          We  therefore  AFFIRM the superior courts judgment  and
sentence.25
_______________________________
     1 AS 11.41.110(a)(1), (a)(2), and/or (a)(3).

     2 AS 11.41.500(a)(1).

3 Sheldon v. State, 796 P.2d 831, 839 (Alaska App. 1990).

     4 Ratliff v. State, 798 P.2d 1288, 1291 (Alaska App. 1990).

     5 Dorman v. State, 622 P.2d 448, 453 (Alaska 1981).

     6  AS 11.41.110(a)(1) (with intent to cause serious physical
injury  to  another  person  or  knowing  that  the  conduct   is
substantially  certain to cause death or serious physical  injury
to another person, the person causes the death of any person); AS
11.41.110(a)(2)  (the person knowingly engages  in  conduct  that
results  in  the  death  of  another person  under  circumstances
manifesting an extreme indifference to the value of human  life);
and AS 11.41.110(a)(3) (felony murder).

     7 See State v. James, 698 P.2d 1161, 1163-67 (Alaska 1985).

     8  Serious  physical injury is defined  by  statute  as  (A)
physical  injury  caused by an act performed under  circumstances
that  create a substantial risk of death; or (B) physical  injury
that  causes  serious  and  protracted disfigurement,  protracted
impairment  of  health,  protracted loss  or  impairment  of  the
function of a body member or organ, or that unlawfully terminates
a pregnancy.  AS 11.81.900(b)(56).

9   AS  11.81.900(b)(17)  provides:   deadly  weapon  means   any
firearm, or anything designed for and capable of causing death or
serious physical injury, including a knife, an axe, a club, metal
knuckles, or an explosive.

     10   678 P.2d 415, 420 (Alaska App. 1984).

     11   Brown v. State, 698 P.2d 671, 674 (Alaska App. 1985).

     12   AS 11.81.330(a)(3).

     13    Bangs v. State, 608 P.2d 1, 5 (Alaska 1980); Toomey v.
State, 581 P.2d 1124, 1126-27 (Alaska 1978).

14    See  Castillo  v. State, 614 P.2d 756,  758  (Alaska  1980)
(note that this case was decided based on the law in effect prior
to the enactment of the Alaska Revised Criminal Code in 1980).

     15    See  Hoffman v. State, 950 P.2d 141, 146 (Alaska  App.
1997).

     16   Lewis v. State, 469 P.2d 689, 695 (Alaska 1970).

17      State   v.  Atwood,  832  P.2d  593,  637  (Ariz.   1992)
overruled  on other grounds by State v. Nordstrom,  25  P.3d  717
(Ariz. 2001).

     18   657 P.2d 850, 855 (Alaska App. 1983).

     19   Carlson v. State, 128 P.3d 197, 203 (Alaska App. 2006).

     20   Id. at 204.

     21    See Arenas v. State, 727 P.2d 313, 313-15 (Alaska App.
1986) (25-year sentence for a shooting during a bar fight);  Hurn
v.  State,  872  P.2d 189, 199-200 (Alaska App.  1994).  (30-year
sentence for a shooting outside a bar); Jimmy v. State, 689  P.2d
504, 505-06 (Alaska App. 1984) (25-year sentence).

     22   Arenas, 727 P.2d at 314; see also Hurn, 872 P.2d at 199-
200.

     23   854 P.2d 751, 754, 765 (Alaska App. 1993).

     24   Id. at 765.

     25    We  address in a separate opinion Morrells claim  that
the  judge  improperly  made  his second-degree  murder  sentence
consecutive  to his sentence for importing liquor  into  a  local
option area in Case No. 3AN-04-8193 CR.

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