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Miller v. State (11/22/2013) ap-2402

Miller v. State (11/22/2013) ap-2402

                                                    NOTICE
  

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                                  303 K Street, Anchorage, Alaska  99501
  

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                IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



DESSIE FORD MILLER IV,  

                                                                   Court of Appeals No. A-10891  

                                   Appellant,                     Trial Court No. 1KE-10-568 CR  



                           v.  

                                                                           O  P  I  N  I  O  N 

STATE OF ALASKA,  



                                   Appellee.                      No. 2402  -  November 22, 2013  



                                           

                  Appeal   from      the   Superior   Court,   First   Judicial   District,  

                  Ketchikan, Trevor N. Stephens, Judge.  



                                                        

                  Appearances:  Callie Patton  Kim, 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  

                  Michael C. Geraghty, Attorney General, Juneau, for the Appel- 

                  lee.  



                  Before:  Mannheimer, Chief Judge, Allard, Judge, and Smith,  

                                              * 

                  Superior Court Judge  .  



                  Judge MANNHEIMER.  



         *   Sitting  by  assignment  made  pursuant  to  Article  IV,  Section  16   of  the  Alaska  



Constitution and Administrative Rule 24(d).  


----------------------- Page 2-----------------------

                    Dessie Ford Miller IV was charged with one count of second-degree assault  



and one count of fourth-degree assault for attacking Ida Stricker, a woman who was  



visiting his boat.   The second-degree assault charge was based on the allegation that  

                            



Miller strangled Stricker with his hands, and the fourth-degree assault charge was based  

                                                                                                        



on the allegation that Miller inflicted injuries to Stricker - scrape marks on her back -  



when he pushed her against the wall to strangle her.  



                    According to Stricker, she lost consciousness while Miller was strangling  

                                                                                                            



her.  When she regained awareness, she was lying on the floor, and Miller was standing  

                                                      



over  her  with  his  foot  on  her  chest.    Miller  removed  his  foot,  and  Stricker  got  up,  



gathered her belongings, and left Miller's boat.  



                    At trial, the jury acquitted Miller of second-degree assault (the strangulation  



allegation), but the jury convicted Miller of fourth-degree assault (the allegation that he  

                                                                                                  



inflicted scrape marks on Stricker's back).  



                    In this appeal, Miller contends that the jury's verdicts are inconsistent.  He  

                                                                                                    



also contends that the superior court committed error by classifying his fourth-degree  

                                                                                                       



assault conviction as a "crime of domestic violence".  Finally, Miller contends that the  



superior  court  should  not  have  ordered  him  to  pay  restitution  for  medical  expenses  



arising from emergency room treatment that the victim received several days after the  



assault.   



                    For the reasons explained in this opinion, we conclude that Miller forfeited  

                                                                                  



his right to attack the verdicts as being inconsistent, because he did not raise this issue  

                                                                                                



in  the superior court before the jury  was discharged.   We further conclude  that  the  

                                                                                                      



superior court violated Alaska Criminal Rule 32(e) by classifying Miller's offense as a  

                                                                                  



"crime of domestic violence" without making an express ruling on this issue - and we  

                                                                                                    



direct  the  superior  court  to  reconsider  this  matter.    Finally,  we  conclude  that  the  

                                        



                                                            - 2 -                                                        2402
  


----------------------- Page 3-----------------------

restitution order was appropriate, given the superior court's express finding that Miller's  

                                                                                          



assault caused the medical condition for which the victim was treated.  



          Miller's argument that the jury's decision to convict him of fourth-degree  

                                               

          assault is logically inconsistent with the jury's decision to acquit him of  

          second-degree assault  



                    In  his  brief  to  this  Court,  Miller  argues  that  there  was  "insufficient  



evidence" to support his conviction for fourth-degree assault (the allegation that Miller  

                                                        



inflicted the scrape marks on Stricker's back).  



                    However, the gist of Miller's argument is  not  a claim that the evidence  

                                                                                                                



presented  at  his  trial  was  legally  insufficient  to  support  his  conviction.    Indeed,  the  



evidence  clearly  was  sufficient  -  because  the  victim,  Stricker,  testified  that  she  

                                                                                                                       



sustained  the  injuries  to  her  back  when  Miller  pushed  her  against  the  wall.    This  



testimony, if believed, was sufficient to warrant the fourth-degree assault conviction.  



                    Miller's real argument (as clarified by the text of his brief) is that the jury's  

                                                                               



decision to convict him of fourth-degree assault is logically inconsistent with its decision  

                                                                         



to acquit him of second-degree assault.  



                    According to Miller, his alleged act of strangling Stricker was part and  

                                           



parcel of the same event that allegedly caused the injuries to Stricker's back.  In support  

               



of  this  characterization  of  the  evidence,  Miller  quotes  a  portion  of  the  prosecutor's  

                                                                                                      



argument to the jury:  



                      

                              Prosecutor :  [The charge of] assault II [refers] to the  

                    [act  of]  strangulation  against  the  wall.                     The  [charge  of]  

                                                                                      

                    assault  IV  [refers]  to  the  wounds  to  [Stricker's]  back  that  

                    occurred while she was being pushed up against the wall.  It's  

                                                                                             

                    obvious it came from a single course of conduct.  ...  Both of  

                                                                                                     



                                                              - 3 -                                                         2402
  


----------------------- Page 4-----------------------

                   [these offenses] happened at the same time, essentially, or  

                   within moments of each other.   



                                                           

Thus, Miller contends, the jury could not logically acquit him of strangling Stricker but  



at the same time convict him of inflicting the scrape marks on her back.  



                   Miller did not raise the issue of inconsistent verdicts in the superior court.  



Because of this, we conclude that he forfeited this issue.   



                   The Alaska Supreme Court has declared that logically inconsistent verdicts  

                                                 

can  be  attacked  on  appeal  as  "plain  error". 1  

                                                                    But  under  Alaska  law,  a  litigant  who  



advances a claim of plain error must show that they had no tactical reason for failing to  

                                                                          

make a contemporaneous objection to the asserted error. 2  

                                                                                   



                                                                                                 

                   This Court has previously noted - in Edwards v. State , 158 P.3d 847, 857  



(Alaska App. 2007), and in Hansen v. State , 845 P.2d 449, 454-55 (Alaska App. 1993)  



- that a defense attorney who believes that the jury's verdicts may be inconsistent has  



a powerful tactical reason to withhold any objection until the trial judge accepts the  



verdicts and discharges the jury.  If the attorney alerts the trial judge to the problem, the  



trial  judge  would  normally  advise  the  jurors  that  their  verdicts  are  inconsistent  and  



can  not  be  accepted,  and  the  judge  would  then  direct  the  jurors  to  return  to  their  



deliberations  -  leaving  open  the  possibility  that  the  jurors  would  resolve  the  



inconsistency in the State's favor.  Or, in a case like Miller's, a timely objection might  

                              



prompt the trial judge to ask the jury to clarify the basis of its decision by means of a  

                                                                                                           



special verdict.  



          1   DeSacia v. State , 469 P.2d 369, 373 (Alaska 1970).  



         2    Jackson  v.   American  Equity  Insurance  Co. ,  90  P.3d  136,  144  (Alaska  2004);  



Henry v. State , 861 P.2d 582, 589 (Alaska App. 1993); Massey v. State , 771 P.2d 448, 453  

(Alaska App. 1989); Potts v. State , 712 P.2d 385, 394 n. 11 (Alaska App. 1985).  



                                                         - 4 -                                                     2402
  


----------------------- Page 5-----------------------

                         Instead, by withholding an objection until the jury is discharged and the                           



matter is beyond remedy, a defense attorney gains a new trial on any charges of which                                    



the  defendant  was   convicted,  while  at  the  same  time  precluding  a  new  trial  on  any  



charges of which the defendant was acquitted (because of Alaska's guarantee against  

double jeopardy). 3  

                                       



                         Under these circumstances, a claim of plain error must fail.  We accordingly  



reject Miller's claim that the jury's verdicts are inconsistent.  



                                                                                                                                  

             The superior court's designation of Miller's assault on Stricker as a crime  

            of domestic violence  



                                                                                                                

                         When the State filed the charges against Miller, it alleged that both offenses  



                               

were "crimes of domestic violence" as defined in AS 18.66.990(3) and (5).  Miller never  



                                                                                                                       

challenged this allegation. Indeed, at the sentencing hearing, the parties and the superior  



                                                           

court openly discussed the fact that, because Miller's offense was a crime of domestic  



violence and because Miller had a prior conviction for assault, he faced a minimum  

sentence of 30 days' imprisonment under AS 12.55.135(g). 4 

                                                                                                               The defense attorney never  



voiced any objection to this characterization of the situation.  When the superior court  



            3     DeSacia v. State , 469 P.2d 369, 378-79 (Alaska 1970).  



            4     AS 12.55.135(g) reads:  "A defendant convicted of assault in the fourth degree that  



is  a  crime  involving  domestic  violence  shall  be  sentenced  to  a  minimum  term  of  

imprisonment of  

                   (1) 30 days if the defendant has been previously convicted of a crime against a  

            person or a crime involving domestic violence; [and]  

                   (2)  60 days if the defendant has been previously convicted two or more times of                                     

            a crime against a person or a crime involving domestic violence, or a combination of  

                                                             

            those crimes."  



                                                                           - 5 -                                                                       2402
  


----------------------- Page 6-----------------------

issued its written judgement, the court labeled the fourth-degree assault conviction a  

                            



crime of "domestic violence".  



                    Now, on appeal, Miller argues that the superior court committed error by  

                                               



designating his fourth-degree assault conviction a "crime of domestic violence", and by  

                                                                                                                         



sentencing          him      under        the     mandatory           minimum           sentencing          provisions         of  



AS 12.55.135(g).   



                    The  State  argues  that,  because  Miller  failed  to  object  to  the  "domestic  

                                                                                                             



violence" designation of his offense during the sentencing proceedings, he should not be  

                                                                                                                



allowed to attack that designation now.  The State further argues that even if it was error  

                                                                                       



for  the  superior  court  to  sentence  Miller  under  the  mandatory  minimum  sentencing  



provisions of AS 12.55.135(g), that error was harmless - because even Miller's attorney  



conceded, based on Miller's criminal history, that Miller's sentence should substantially  

                                            



exceed the 30-day minimum specified in the statute.  



                    Miller's  failure  to  object  to  the  "domestic  violence"  designation  in  the  

                                                            



superior court does not mean that he has forfeited any objection on appeal, but it does  

                               



mean that he must show plain error.  



                    Here, the superior court committed an obvious error.  Alaska Criminal Rule  

                                                                              



32(e) declares that when the government asserts that a defendant's offense is a crime of  

                                                               



domestic  violence,  the  sentencing  court  is  required  to  make  "[a]  factual  and  legal  



determination supporting this [characterization of the offense] ... on the record."  In  



Miller's case, the superior court did not make any such ruling on the record; there are no  

                                                                     



findings of fact or rulings of law regarding the State's assertion that Miller's offense  

               



constituted a crime of domestic violence.   



                    Given the adverse consequences of the "domestic violence" designation for  



Miller,  there  appears  to  be  no  tactical  reason  why  his  attorney  would  withhold  an  

                                       



                                                             - 6 -                                                         2402
  


----------------------- Page 7-----------------------

objection.        The  only  remaining  question  is  whether  the  superior  court's  failure  to  

                                                                  



expressly rule on this issue was manifestly prejudicial to the fairness of the proceedings.  



                    The State essentially concedes that the current record does not affirmatively  



establish that Miller's assault on Stricker constituted a crime of domestic violence as  



defined in AS 18.66.990(3) and (5).  True, the State presented evidence that, just before  

                                                                                                                   



the assault, Miller engaged in an act of consensual sexual penetration with Stricker.  But  

                                                                                       



this one sexual encounter would not make their relationship  a  "sexual relationship"  

                                                                                                



within the meaning of AS 18.66.990(5)(D).  See Bates v. State , 258 P.3d 851, 859-863  

                                                                          



(Alaska App. 2011), and Leu v. State , 251 P.3d 363, 369 (Alaska App. 2011).  And there  

                                                                               



is no evidence that Miller's relationship with Stricker fell within any other provision of  

    



AS 18.66.990(5).   



                    It was the State's burden to prove its allegation that Miller's offense was  

                                                                                             



a crime of domestic violence as defined in AS 18.66.990(3) and (5).  It was the superior  

                                                                                          



court's obligation to make an express ruling on the State's allegation.  The superior court  

                                                                                                        



failed to make the required ruling, and the superior court's omission can not be viewed  



as harmless, because the record of the proceedings does not clearly establish the truth of  

                                                                                          



the State's assertion that Miller's offense was a crime of domestic violence.   



                    For these reasons, we conclude that Miller has shown plain error.  We  



therefore  vacate  the  superior  court's  designation  of  Miller's  offense  as  a  crime  of  



domestic violence, and we direct the superior court to reconsider this issue.  



          The restitution order  



                    As  we  explained  in  the  introductory  section  of  this  opinion,  Stricker  



testified that she lost consciousness while Miller was strangling her.  When she regained  

                                                                                



awareness, she was lying on the floor, and Miller was standing over her with his foot on  

                                                                                                            



                                                             - 7 -                                                         2402
  


----------------------- Page 8-----------------------

her chest.  Stricker testified that Miller caused injury to her chest when he stepped on  



her.  



                    The State asked the superior court to order Miller to pay restitution of  



nearly $1000 to the State (more specifically, to the Division of Health Care Services),  



to  cover  the  expenses  arising  from  medical  treatment  that  Stricker  received  at  the  



emergency room nine days after the assault.  According to Stricker's testimony, and as  

                                                                                    



found by the superior court, Stricker went to the emergency room  because she was  

                                                                                                       



experiencing chest pain and problems breathing.  



                    Miller opposed the State's proposed restitution order, arguing that the State  

                                                           



had not proved that Stricker's medical difficulties arose from Miller's assault.  Following  

                                                                         



a  hearing,  the  superior  court  concluded  that  Stricker's  chest  pain  "was  proximately  



caused by Mr. Miller's conduct ... during the incident which resulted in the charges in  

                 



this case".  



                    Specifically,  the  superior  court  concluded  -  based  on  Stricker's  trial  

                                                                                                          



testimony, and also based on the testimony of a police officer who observed bruising on  

                                                                                           



Stricker's  upper  chest  immediately  following  the  assault  -  that  Miller  stepped  on  

                                   



Stricker's chest while she was lying on the floor of the boat, and that Stricker's later  

                                               



chest pain was due to Miller's action.   



                    On  appeal,  Miller  argues  that  the  superior  court's  restitution  order  is  



improper  because  it  exceeded  the  court's  authority  under  AS  12.55.045,  the  statute  



governing restitution. More particularly, Miller argues that even if he caused the injuries  

                                                             



to Stricker's chest, those injuries were not part of the "offense" that he was convicted of.  



                    Miller argues that, even though the State viewed Miller's assault on Stricker  



as one continuous criminal act, the State nevertheless chose to file separate counts based  

                                                                                        



on separate aspects of this assault:  one count of second-degree assault for Miller's  



                                                            - 8 -                                                       2402
  


----------------------- Page 9-----------------------

alleged strangulation of Stricker, and one count of fourth-degree assault for injuring  

                                  



Stricker's back when he forced her against the wall.  



                    Miller notes that the State never charged him with a separate count for  



standing on Stricker's chest.  Based on the absence of such a count, Miller asserts that  

                                             



his assault conviction is limited to the injuries inflicted to Stricker's back.  Thus, Miller  

                                                                       



argues, even if he inflicted injuries to Stricker's chest during the same assaultive act, it  

                                                                                                             



was error for the superior court to order him to pay restitution for those injuries.  



                    We disagree with Miller's analysis. Under Alaska law, even when a single  

                                                                                                                          



assaultive  act  comprises  two  or  more  separate  components,  the  assaultive  act  will  



normally be treated as one offense.  For instance, in Mill v. State , 585 P.2d 546 (Alaska  

                                                              



1978), the defendant assaulted the victim by (1) pointing a rifle at the victim through a  

                                                      



cabin window and ordering him to come outside, then (2) shooting the victim in the leg,  



and then (3) standing over the victim and threatening him with the rifle until the victim  

                                                                                                              



wrote the defendant a check.  The supreme court held that this conduct amounted to only  

                                                                  



one armed assault.  Id. at 551-52.   



                    The  supreme  court  further  declared  in  Mill  that,  as  a  general  matter,  

                                                                                                         



"[i]n marginal cases[,] doubts should be resolved against turning a single transaction into  

                                                             



multiple offenses."  Id. at 552 n. 4.  Thus, in McGee v. State , 162 P.3d 1251 (Alaska  

                                                                                    



2007), the supreme court held that the defendant's act of breaking several windows of  

                                                                                     



the same vehicle constituted only a single offense of malicious destruction of property:  

               



                      

                               McGee ... was convicted for engaging in a brief course  

                                                                                             

                    of conduct involving several discrete but closely connected  

                    acts of [malicious] destruction.  This court has declined to  

                                                                                               

                    parse  conduct  of  this  kind  as  though  it  involved  multiple  

                    crimes, holding instead that "[w]e view [such] events as a  

                    series  of  acts,  in  a  short  and  continuous  sequence,  which  

                    amount to a unitary criminal episode."  Mill v. State , 585 P.2d  



                                                              - 9 -                                                          2402
  


----------------------- Page 10-----------------------

                   546,  552  (Alaska  1978);  cf.  AS  11.46.980(c)  (requiring  

                                          

                   aggregation of property damage for purposes of determining  

                   classification  of  a  property  crime  that  involves  multiple  

                   "criminal acts committed under one course of conduct").  

                     

McGee , 162 P.3d at 1262 n. 54.  



                   This  is  not  to  say  that  it  was  improper  for  the  State  to  charge  Miller  



                                                                                                          

separately for various aspects of his assault on Stricker, especially when one aspect of  



that assault (the strangulation) constituted a higher degree of crime - second-degree  



assault.  But had the jury found Miller guilty of both the second-degree assault charge  



and the fourth-degree assault charge, these verdicts would have supported only a single  

                                                                                     



conviction.   



                   As we explained in Garhart v. State, 147 P.3d 746, 752-53 (Alaska App.  



2006):  



                     

                   [W]hen  the  counts  of  the  defendant's  indictment  charge  

                   separate theories of the same crime, or when the counts of the  

                                                              

                   indictment  charge  separate  crimes  that  will  ultimately  be  

                   treated  as  the  "same  crime"  under  the  rule  announced  in  

                                         

                    Whitton v. State, [479 P.2d 302 (Alaska 1970),] Alaska law  

                   allows the government to seek a jury verdict on each count.  

                                                                    

                   The double jeopardy clause comes into operation later, when  

                                                            

                   the sentencing  court is asked to enter judgement on those  

                                          

                   verdicts.  At that time, the court must merge one or more of  

                   the verdicts so that the defendant receives only the number of  

                   convictions and sentences allowed by [law].  



(Citing Gilbert v. State, 598 P.2d 87, 91 (Alaska 1979); Robinson v. State , 487 P.2d 681,  

                                                                                                          



682 (Alaska 1971); and Atkinson v. State , 869 P.2d 486, 495 (Alaska App. 1994).)  



                   Given the testimony in Miller's case, the superior court could properly  

                                                                            



conclude that Miller committed a single, continuous assault on Stricker - and that  



                                                          - 10 -                                                     2402
  


----------------------- Page 11-----------------------

Miller's offense included both the act of pushing Stricker against the wall and the act of  

                                                             



stepping on her chest as she lay on the floor.  It was therefore proper for the superior  

                                  



court to order Miller to pay restitution for the emergency room treatment that Stricker  



received for her chest injuries.  



          Conclusion  



                    With the exception of the superior court's classification of Miller's offense  

                                                                                                      



as a crime of domestic violence, the judgement of the superior court is AFFIRMED.  

                                                                                                 



With respect to the classification of Miller's offense as a crime of domestic violence, this  

                                                 



portion  of  the  superior  court's  judgement  is  VACATED,  and  the  superior  court  is  

                                                                                                       



directed to redetermine this matter in conformity with Criminal Rule 32(e).  



                                                            - 11 -                                                       2402
  

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