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Saunders v. State (1/19/2018) ap-2585

Saunders v. State (1/19/2018) ap-2585

                                                                               NOTICE
  

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                             IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                      



JUSTIN  EARL  SAUNDERS,  

                                                                                                                                                 

                                                                                                       Court of Appeals No. A-11918  

                                                                                                                                                               

                                                      Appellant,                                    Trial Court No. 3PA-13-1322 CR  



                                        v.  

                                                                                                                    O  P  I  N  I  O  N  

                                                                                                                                                 

STATE  OF  ALASKA,  



                                                      Appellee.                                        No. 2585 - January 19, 2018  

                                                                                                                                                        



                           Appeal from the Superior Court, Third Judicial District, Palmer,  

                                                                                                                                      

                           Kari Kristiansen, Judge.  

                                                             



                           Appearances:                 John N.  Page  III (opening brief),  and Douglas  

                                                                                                                                    

                           Moody (reply brief), Assistant Public Defenders, and Quinlan  

                                                                                                                                     

                           Steiner, Public Defender, Anchorage, for the Appellant.  Eric A.  

                                                                                                                                                

                           Ringsmuth,  Assistant  Attorney  General,  Office  of  Criminal  

                                                                                                                                  

                           Appeals, Anchorage, and Craig W. Richards, Attorney General,  

                                                                                                                                    

                           Juneau, for the Appellee.  

                                                                            



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

                                                                                                                                   

                           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-----------------------

                                                                                                                          

                    Justin  Earl  Saunders   was  charged  with  third-degree  assault   under  



                                                                                                                         

AS 11.41.220(a)(2) for making repeated threats that he would inflict death or serious  



                                                                                                                     

bodily injury on his mother,  Valerie Saunders,  and his uncle,  Ron Combs (Valerie's  



                                                                                                                             

brother).  Saunders made some of these threats to his mother in person, while he was  



                                                                                                                                

pounding on the walls and windows of her house.  Saunders made the other threats in  



                                                                                                  

voice messages that he left on his mother's telephone answering machine.  



                                                                                                                                 

                    On appeal, Saunders challenges the instruction that the trial judge gave to  



                                                                                                                           

the jury on the question of whether Saunders's threatening statements against his uncle,  



                                                                                                                                     

Ron Combs, should be considered "repeated" threats or, instead, one continuing threat.  



                                                                                                                               

This issue arose because Saunders's threatening statements against his uncle were  all  



                                                                                                                                

contained in a single message that Saunders left on his mother's answering machine.  In  



                                                                                                                                

this message,  Saunders stated several times in quick succession,  over the  course of  



                                                                                            

approximately 45 seconds, that he would take Combs's life.  



                                                                                                                               

                    For the reasons explained in this opinion, we agree with Saunders that the  



                                                                                                                               

court's instruction to the jury incorrectly stated the law pertaining to this issue, but we  



                                                                                                    

conclude that this error was harmless beyond a reasonable doubt.  



                                                                                                                                 

                    Saunders also argues that there was a fatal variance between the theory of  



                                                                                                                               

third-degree assault that the State presented to the grand jury and the evidence that the  



                                                                                                                             

State presented at Saunders's trial.  Saunders interprets the indictment as charging only  



                                                                                                                            

threats against his mother, Valerie, and he argues that the evidence at trial varied from  



                                                                                                                          

the indictment because, at trial, the State also presented evidence of Saunders's threats  



                                         

to his uncle, Ron Combs.  



                                                                                                                                  

                    Saunders's argument is based on a misreading of the  indictment and a  



                                                                                                                                

misunderstanding of the elements of third-degree assault under AS 11.41.220(a)(2).  



                                                                                            

                    We accordingly uphold Saunders's conviction.  



                                                              - 2 -                                                          2585
  


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

                               

          Background facts  



                                                                                                                               

                    Saunders's mother Valerie allowed Saunders, her adult son, to live in her  



                                                                                                                              

home on condition that he not consume alcohol or drugs.  When Saunders broke this rule  



                                                                                                                               

and behaved abusively toward Valerie, she told him that he could no longer live in her  



                                                                                                                               

house, and she bought him a tent and  a  sleeping bag so that he could reside for the  



                                                                                                                       

summer in her backyard.  One night in May, Saunders, aggrieved by his recent eviction,  



                                                                                                                               

pounded  on  the  walls  and  windows  of  the  house  -  and,  according to  Valerie,  he  



                                                     

threatened her with serious harm.  



                                                                                                                            

                    The following day, Valerie obtained a domestic violence restraining order  



                                                                                                                                

precluding Saunders from contacting her.  That evening, Saunders left five messages on  



                                                                                                                   

Valerie's telephone answering machine.   Two of these messages contained threatening  



                    

statements.  



                                                                                                                                  

                    In the first of the threatening messages - a message that lasted about 1  



                                                                                                                             

minute and 20 seconds in its entirety - Saunders threatened the life of his uncle, Ron  



                                                                                                                               

Combs.  Here is the pertinent portion of this message - a portion that lasted only 45  



seconds:  



                      

                                                                                                               

                              If I get served with fucking paperwork that says that I  

                                                                                                      

                    can't be allowed on my mom's property, I will take Ron's  

                                                                                                           

                    life.  I swear that before my children and my holy God.  I will  

                                                                                               

                    take  your  life.           If  I  get  served  with  fucking  paperwork  

                                                                                                         

                    because I'm not even allowed in the greenhouse, I will take  

                                                                                                          

                    his life, so - [if] I get served some paperwork like that, I'm  

                                                                                                            

                    going to take Ron's life and your little boyfriend's going to  

                                                                                           

                    be gone, so I'll kill him.  I swear that to God.  



                                                              - 3 -                                                          2585
  


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

                                                                                                                      

About  two  hours  later,  Saunders  left  a  second  threatening  message  on  Valerie's  



                                                                                                                                  

answering machine.  In this message, Saunders said, "You be lucky I don't show up at  



                                                                               

your house and show you who the boss is, bitch."  



                                                                                                                                

                    Based on the threats that Saunders uttered to Valerie as he pounded on the  



                                                                                                                       

walls and windows of Valerie's home, plus the two threatening messages that Saunders  



                                                                                                                  

left  on  Valerie's  answering machine,  the  State  charged  Saunders  with  third-degree  



                                                                                                                                 

assault under AS 11.41.220(a)(2) - for "mak[ing] repeated threats to cause death or  



                                                                                                                                

serious physical injury to another person" while acting with the intent of placing his  



                                                                                                                          

mother  Valerie  "in  fear  of  death  or  serious  physical  injury  to  [her]  or  [a]  family  



                  

member".  



                                                                                                                            

                    At trial, Saunders's attorney  proposed an instruction to guide the jury's  



                                                                                                                              

determination of whether Saunders's threatening statements regarding his uncle (the  



                                                                                                                                

threats  contained  in  the  first  of  the  two  threatening recorded  messages)  should  be  



                                                                                       

counted as one continuous threat or as repeated threats.  



                                                                                                                              

                     Saunders's proposed instruction would have told the jurors that, before they  



                                                                                                                    

found that Saunders's statements during the first threatening phone message constituted  



                                                                                                                                 

"repeated" threats,  the jurors were required to find that  there was a "clear break in  



                                                                                                                             

context between [the] initial and [the] subsequent threats" in the message, and that there  



                                                                                                                                      

was a "passage of sufficient time between threats to permit reflection [by Saunders]."  



                                                                                                                               

                    The trial judge rejected this proposed instruction.  Instead, the judge told  



                                                                                                                       

the jurors that a "break in context" and a sufficient "passage of time" to permit Saunders  



                                                                                                                        

to reflect on what he was saying were merely "factors" that the  jury should consider  



                                                                                                                     

when deciding whether Saunders uttered a single threat or repeated threats.  



                                                                                                                        

                     Saunders also objected to a jury instruction that allowed the jury to consider  



                                                                                                                               

both the threats of harm that he made to his mother Valerie and the threats of harm that  



                                                               - 4 -                                                          2585
  


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

                                                                                                                                 

he made to his uncle.                Saunders argued that the  indictment only alleged threats to  



                                                                            

Valerie.  The trial judge overruled this objection.  



                                                                                                                         

                    The jury convicted Saunders of third-degree assault, and he now appeals.  



                                                                                                                     

           Why we conclude that the judge's instruction on "repeated" threats was  

                                                      

          harmless error in this case  



                                                                                                                            

                    As we have explained,  a defendant commits third-degree assault under  



                                                                                                                                 

AS 11.41.220(a)(2) if, acting with the intent to place another person in fear of death or  



                                                                                                                                

serious physical injury,  either to that person or to that person's family member,  the  



                                                                                                                         

defendant makes repeated threats to cause death or serious physical injury to another  



person.  



                                                                                                                                

                    In Konrad v. State, 763 P.2d 1369, 1379-1380 (Alaska App. 1988), we  



                                                                                                                                

interpreted the phrase "repeated threat" to mean "a threat made more than once". But we  



                                                                                                               

recognized that applying this definition literally might create difficulties in circumstances  



                                                                                                                                      

where a single conversation or communication arguably contained more than one threat.  



                                                                                                                            

We then explained that,  when multiple threatening statements are uttered in a single  



                                                                                                                            

conversation or communication, the jury must treat the defendant's statements as a single  



                                                                                                            

threat unless the State shows that the statements were discrete threats:  



                      

                                                                                                            

                               When a threat is uttered several times in virtually the  

                                                                                                

                     same   breath,   elaborated   upon   without   any   significant  

                                                                                                           

                    interruption,  or repeated at the request of the listener,  the  

                                                                                                             

                     statutory requirement of repetition will not, in our view, be  

                                                                                                           

                    met.   Rather, in order to justify the finding that a threat has  

                                                                                                        

                    been repeated or that more than one  threat has been made  

                                                                                                               

                    during a  single conversation, the evidence must establish a  

                                                                                                      

                    clear break in context between initial and subsequent threats  

                                                                                                       

                    and the passage of sufficient time between threats to permit  

                                                                                                           

                    reflection.        The  ultimate  question  should  be  whether  the  



                                                               - 5 -                                                          2585
  


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

                                  repetition of the                          threat amounted to a separate act by the                                                          

                                  accused   or   whether   it   is   part   of   a   single   continuous   act.   

                                  Resolution of this question lends itself to                                                              no   inflexible rule   

                                  and   should   ordinarily   be   left   to   the   jury,   whose   decision  

                                  should be on the totality of the evidence in the case at issue.                                                                        



Konrad, 763 P.2d at 1380.                                             



                                  (In  Konrad, the defendant's threats against his wife were uttered over the                                                                                                    



course of fifteen minutes, and the individual threats were interspersed with discussions                                                                                                    



of other matters.                          On that record, we concluded that the jury could reasonably find that                                                                                               

                                                                                                                      1)  

this conversation contained "repeated" threats.                                                                            



                                  Relying on what this Court said in Konrad, Saunders's attorney asked the  

                                                                                                                                                                                                                 



trial judge to instruct the jury that Saunders's threats against his uncle - the threats that  

                                                                                                                                                                                                               



 Saunders uttered during the first threatening phone message - could not be considered  

                                                                                                                                                                                              



"repeated" threats unless the jury affirmatively found a clear break in context between  

                                                                                                                                                                                                    



the various threats and the passage of sufficient time to allow Saunders to reflect on what  

                                                                                                                                                                                                            



he  was saying.                             Instead,  the trial judge instructed the jurors that these were merely  

                                                                                                                                                                                                      



"factors" for them to consider when they decided whether Saunders made one continuing  

                                                                                                                                                                                               



                                                                                                            2  

threat against his uncle or repeated threats.  

                                                                                                                



         1       Id., 763 P.2d at 1380-81.                                    



         2       Here is the challenged jury instruction that the judge gave in Saunders's case:  

                                                                                                                                                                                           



                 A defendant may not be convicted of assault in the third degree as charged in  

                                                                                                                                                                                                   

                 this case unless he made "repeated threats."  In order to determine whether the  

                                                                                                                                                                                                  

                 defendant made repeated threats the jury must consider the following factors:  

                                                                                                                                                                                      



                         (1)  Whether  there  was  a  clear  break  in  context  between  initial  and  

                                                                                                                                                                                               

                 subsequent threats; and  

                                                                



                                                                                                                                                                                         (continued...)  



                                                                                                       - 6 -                                                                                                  2585
  


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

                                                   In retrospect, we see that our discussion of this issue in                                                                                                                                                    Konrad  might have   



been   worded more clearly - and we see how the trial judge in this case might have                                                                                                                                                                                                                                    



interpreted  Konrad   as merely identifying the factors that a jury should consider when                                                                                                                                                                                                                             



deciding whether a defendant uttered discrete threats.                                                                                                                                                        



                                                   But we agree with Saunders that                                                                                             Konrad  sets forth the                                                            elements  of what it                                                 



means for a person to utter "repeated" threats during a single conversation,                                                                                                                                                                                                                                not just   



factors to be considered by the trier of fact.                                                                                                                          We therefore clarify this matter now.                                                                                        



                                                   As  Konrad  says, the ultimate question is whether the defendant's repeated                                                                                                                                                                            



threatening statements amounted to separate acts, or whether those repeated statements                                                                                                                                                                                                                                                       



were simply part of a single continuous threat.                                                                                                                                 To answer that question, the fact-finder                                                                          



must decide whether the evidence establishes                                                                                                                                       "a clear break in context" between the                                                                                                     



different   threatening   statements   and   "the   passage   of   sufficient   time"   between   the  



threatening statements "to permit reflection".                                                                                                                                



                                                   There is no set rule for what constitutes "a clear break in context" and "the                                                                                                                                                                                           



passage of sufficient time to permit reflection".                                                                                                                                   This must be left to the fact-finder, and                                                                                                



the fact-finder's decision should be based on the totality of the evidence.                                                                                                                                                                     



                                                   Now that we have clarified these matters, we turn to the jury instruction in                                                                                                                                                                                                     



 Saunders's case - the instruction dealing with the first threatening phone message that                                                                                                                                                                                                                                    



             2            (...continued)  



                                                                                                                                                                                                                                                                                                         

                                       (2)  Whether  there  was  a passage  of  sufficient  time  between threats  to  

                                                    

                          permit reflection.  



                                                                                                                                                                                                                                                                               

                          The ultimate question should be whether the repetition of the threat amounted  

                                                                                                                                                                                                                                                                          

                          to a separate act by the defendant or whether it was part of a single continuous  

                                                                                                                                                                                                                                                                                                          

                          act.  The jury is entitled to consider all the evidence introduced in this case to  

                                                                                                                                                                                                                                                                                  

                          determine basedupon the totality of the circumstances whether Justin Saunders  

                                                                                                                   

                          made "repeated threats."  



                                                                                                                                                              - 7 -                                                                                                                                                         2585
  


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

                                                                                                                                

Saunders left on his mother's answering machine, during which Saunders threatened his  



                   

uncle's life.  



                                                                                                                     

                    The jury instruction was wrong insofar as it told the jurors that separation  



                                                                                                                      

in  time  and  context  were  merely  factors  bearing  on  their  decision  as  to  whether  



                                                                                                                            

Saunders's various threatening statements constituted "repeated threats".  And this error  



                                                                                                                          

was potentially exacerbated when the prosecutor argued  to  the jury that the phone  



                                                            

message contained "repeated" threats.  



                                                                                                                              

                    Nevertheless, given the facts of this case, we conclude that this error was  



                                                                                                                                

harmless  beyond  a  reasonable  doubt.                         As  we  have  explained,  the  total  length  of  



                                                                                                                          

Saunders's threateningphone message was 1 minute, 20 seconds, and Saunders's threats  



                                                                                                                           

against his uncle in that  message  were all made during a single-topic rant that lasted  



                                                                                                                                    

about 45 seconds.  Given this record, and given the instruction that the jurors received,  



                                                                                                                         

we conclude that there is no reasonable possibility that the jurors would have viewed  



                                                                                                      

Saunders's statements in the phone message as "repeated" threats.  



                                                                                                                   

          There was no fatal variance between the indictment and the proof at trial  



                                                                                                                               

                    Saunders also asks us to reverse his conviction on the ground  that the  



                                                                                                                               

State's evidence at trial fatally varied from the theory of the grand jury indictment.  



                                                                                                                                 

                    The indictment in this case  alleged that Saunders, acting "with intent to  



                                                                                                                            

place Valerie Saunders in fear of death or serious physical injury to [herself] or [her]  



                                                                                                                          

family member, made repeated threats to cause death or serious physicalinjury to Valerie  



Saunders."  



                                                                                                                       

                    Saunders's variance argument hinges on this last phrase, "made repeated  



                                                                                                                          

threats to cause death or serious physical injury to Valerie Saunders".  Saunders argues  



                                                              - 8 -                                                          2585
  


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

                                                                                                                           

that, by using this language, the State limited its case to the threats that Saunders made  



                                                                                                                                     

to harm his mother, Valerie, and not Saunders's threats to harm his uncle, Ron Combs.  



                                                                                                                             

                    The language at issue is ambiguous.  As Saunders suggests, one could read  



                                                                                                                                

the concluding words, "to Valerie Saunders", as modifying the phrase "cause death or  



                                                                                                                     

serious physical injury".   Interpreted this way, the indictment would charge Saunders  



                                                                             

with making repeated threats to harm his mother.  



                                                                                                                    

                    But the language at issue could also be read another way.  The concluding  



                                                                                                                       

words, "to Valerie Saunders",  could be read as modifying the phrase "made repeated  



                                                                                                                            

threats".         Interpreted   this   way,              the     indictment   would   charge   Saunders   with  



                                                                                                                         

communicating repeated  threats to his mother that he would cause death or serious  



                                                                                                                   

physical injury either to herself or to a family member (i.e., to her brother, Saunders's  



                                

uncle Ron Combs).  



                                                                                                                          

                    This second reading is more faithful to the wording of the charging statute  



                                                                           

and to the State's presentation to the grand jury.  



                                                                                                                                 

                    The charging statute, AS 11.41.220(a)(2), makes it a crime for a person to  



                                                                                                                               

make "repeated threats to cause death or serious physicalinjury" to another person, if the  



                                                                                                                          

person making these repeated threats is acting with the intent of placing another person  



                                                                                                               

in fear that they or a family member will suffer death or serious physical injury.  



                                                                                                                    

                    At the grand jury, Ron Combs testified about the threatening statements  



                                                                                                                           

directed  toward  him.                But   Combs  explained  that  Saunders  communicated  these  



                                                                                                                              

statements, not to Combs personally, but rather to Valerie.  The evidence showed that  



                                                                                                                      

Saunders made these threatening statements during a message that he left on Valerie's  



                                                                                                                              

answering machine.  At grand jury, Saunders's statements were described as part of "the  



                                                         

messages that he left for his mom."  



                                                              - 9 -                                                          2585
  


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

                                                              And as can be seen from the portion of that phone message that we quoted                                                                                                                                                                                                                                             



earlier in this opinion,                                                                                  Saunders was clearly addressing his remarks to Valerie.                                                                                                                                                                                                                               He  



warned her that he would kill her brother.                                                                                                                                                           



                                                               Thus, the State's case at grand jury was that Saunders committed third-                                                                                                                                                                                                                                                   



degree assault by repeatedly                                                                                                     communicating to his mother                                                                                                              that he would harm her and/or                                                                              



her brother (                                          i.e., her "family member").                                                                                                            



                                                              We accordingly conclude that there was no variance between the State's                                                                                                                                                                                                                                              



case at grand jury and the evidence presented at Saunders's trial.                                                                                                                                                                                                                                              



                                Conclusion  



                                                               The judgement of the superior court is AFFIRMED.  

                                                                                                                                                                                                                                                    



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