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Eaklor v. State (3/9/2007) ap-2089

Eaklor v. State (3/9/2007) ap-2089

     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

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) Court of Appeals No. A-9574
Appellant, ) Trial Court No. 1KE-05-999 Cr
v. )
) O P I N I O N
Appellee. ) No. 2089 March 9, 2007
          Appeal  from the District Court,  First  Judi
          cial  District, Ketchikan, Kevin  G.  Miller,

          Appearances:   Dallas S. Hargrave,  Assistant
          Public   Defender,  Ketchikan,  and   Quinlan
          Steiner, Public Defender, Anchorage, for  the
          Appellant.    Carolyn   Perkins,    Assistant
          District  Attorney,  and  Stephen  R.   West,
          District  Attorney, Ketchikan, and  David  W.
          M rquez,  Attorney General, Juneau,  for  the

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

          MANNHEIMER, Judge.

          Kirk  D. Eaklor and another man, James Cannon, got into
an  argument  over money.  During this argument,  Eaklor  grabbed
Cannon  in  a headlock and then punched him in the face,  leaving
Cannon  with a red, swollen eye and a bleeding scratch below  the
eye.   Based on this incident, Eaklor was charged with, and later
convicted  of,  fourth-degree assault under  AS  11.41.230(a)(1):
recklessly causing physical injury to another person.
          The   term   physical   injury   is   defined   in   AS
11.81.900(b)(46)  as physical pain or an impairment  of  physical
condition.   In this appeal, Eaklor asserts two claims  of  error
relating to this definition.
          First,  Eaklor contends that the evidence presented  at
his  trial was insufficient to establish that his act of striking
Cannon  in  the  face  caused physical pain to  Cannon.   Second,
Eaklor contends that the trial judge, District Court Judge  Kevin
G.  Miller, improperly prevented Eaklors attorney from arguing to
the  jury  that the States evidence was insufficient to establish
that  Cannon  suffered any impairment of his physical  condition.
Eaklor  additionally  argues that Judge  Miller  compounded  this
error  by  affirmatively instructing the jury  that  the  defense
attorneys argument on this point was wrong.
          Eaklors   first  contention  turns  on  James   Cannons
testimony about his encounter with Eaklor.  Cannon testified that
Eaklor  punched  him  in  the face.  The  prosecutor  then  asked
Cannon, Did it hurt when [Eaklor] hit you?  Cannon replied, No, I
think it was just more or less upsetting [to] me, because ...  of
the  whole  situation.  The prosecutor then asked  the  follow-up
question,  But it caused you some sort of pain?  Cannon answered,
          On  appeal, Eaklor argues that when Cannon agreed  that
the  punch caused him some sort of pain, Cannon was referring  to
an  emotional  pain  rather than the physical pain  required  for
conviction  of  fourth-degree assault.  But when  we  assess  the
sufficiency of the evidence to support a criminal conviction,  we
are  obliged to view the evidence in the light most favorable  to
upholding  the verdict.1  Here, reasonable jurors could interpret
Cannons testimony to mean that he suffered physical pain from the
punch  (as  well  as  being upset by the situation).   Thus,  the
evidence was sufficient to establish this element of the offense.
          We  now turn to Eaklors second contention, his argument
concerning the element of impairment of physical condition.  This
issue  arose  at Eaklors trial when, following the conclusion  of
the  States  case-in-chief, Eaklors attorney asked the  court  to
grant him a judgement of acquittal rather than allowing the  case
to  go  to the jury.  In arguing for the directed acquittal,  the
defense  attorney  contended that a swollen eye  and  a  bleeding
scratch  did  not  constitute an impairment of  Cannons  physical
condition.   The  prosecutor took the contrary  position:   i.e.,
that  Cannons injuries qualified as an impairment.  Neither party
cited any legal authority to support their position.
          Judge Miller ruled that the swelling of Cannons eye and
the bleeding scratch to Cannons face constituted an impairment of
Cannons  physical  condition,  and  the  judge  therefore  denied
Eaklors motion for a directed acquittal.
          Eaklors  attorney  then  presented  the  defense  case.
After   the   defense   rested,  the   parties   discussed   jury
instructions.  Neither party offered an instruction defining  the
phrase  impairment of physical condition.  The  jury  was  simply
instructed according to the language of the fourth-degree assault
statute.   That  is,  the jurors were told  that  the  State  was
obliged  to  prove that Eaklor caused physical injury to  Cannon,
          and that physical injury means physical pain or impairment of
physical condition.
          During the defense attorneys closing argument, he  told
the  jurors that an impairment of physical condition  has  to  be
something  more than just damage to someones face.   The  defense
attorney asserted that the State was obliged to prove that Cannon
suffered  the kind of injury that [made] something less  operable
on Cannons body.
          Predictably, the prosecutor objected to this  argument.
In front of the jury (because neither party asked Judge Miller to
excuse the jury during this discussion), the defense attorney and
the  prosecutor  reiterated  their respective  positions  on  the
meaning  of impairment of physical condition  the same  arguments
they  had  presented when Eaklor made his earlier  motion  for  a
judgement  of  acquittal.  At the end of this  discussion,  Judge
Miller  instructed  the  jury that a  scratch  or  anything  that
pierces the skin is [an] impairment of physical condition.
          On   appeal,   Eaklor   contends  that   Judge   Miller
overstepped  his  authority when he  told  the  jurors  that  the
defense   attorneys  interpretation  of  impairment  of  physical
condition was wrong, and that any injury that pierces the skin is
an impairment of the victims physical condition.
          Eaklor  bases his position on the fact that the  Alaska
Statutes  contain no further definition of the phrase  impairment
of   physical  condition.   Eaklor  contends  that,  because  the
statutes  do not further define impairment of physical condition,
attorneys  are  at  liberty to argue any interpretation  of  this
phrase that favors their clients  and trial judges are prohibited
from interfering with this advocacy.
          Thus,  for example, in his opening brief to this Court,
Eaklor  repeats  the argument he made to Judge  Miller:   that  a
criminal defendant should be able to argue what an impairment  of
physical  condition is [because this phrase] is not  defined  [in
the  statutes].  Eaklor further argues that it was  improper  for
Judge  Miller  to  give  the jury any instruction  regarding  the
meaning  of  this  phrase.  Eaklor contends that  when  [another]
statute or [existing] case law doesnt provide a definition for  a
term  [in a statute], then [this term] is not defined as a matter
of  law.   Thus, according to Eaklor, any instruction that  Judge
Miller  might  give  to  the  jury  concerning  the  meaning   of
impairment  of physical condition would be (in Eaklors  attorneys
words) an erroneous statement of law  because the judge would  be
defin[ing] a material term that Alaska law does not define.
          Eaklors  arguments misapprehend the distinction between
issues  of  law  and  issues of fact, the division  of  authority
between  trial judges and juries, and a judges duty to  interpret
the  law  when  this  is  necessary to  resolve  the  case  being
          The  question  presented here is whether  the  injuries
that  Eaklor  inflicted on Cannon constituted  an  impairment  of
[Cannons]   physical  condition  within   the   meaning   of   AS
11.81.900(b)(46).   Before  Judge  Miller  sustained  the  States
objection, Eaklors attorney was arguing to the jurors that,  even
if  they believed that Eaklor had inflicted a bleeding scratch on
Cannons  face,  this injury did not constitute an  impairment  of
Cannons physical condition.
          The meaning of a statute  in this case, the meaning  of
the  statutory  phrase  impairment of physical  condition   is  a
question  of  law.2   Under our system of  justice,  judges  (not
juries) decide what a statute means.
          [I]n  a jury trial, issues of law are decided
          by  the judge, not the jury.  It is the jurys
          role to decide the facts of the case, but  it
          is  the  judges role to instruct the jury  on
          the   legal   significance  of   the   facts.
          Therefore,  when lawyers disagree  concerning
          the  law  that  governs a  case,  they  offer
          arguments  to  the trial judge,  not  to  the
          Cornwall v. State, 915 P.2d 640, 647  (Alaska
          App. 1996).
          Because  of this fundamental  tenet
of  our  system of justice, Eaklors  attorney
was  not entitled to ask the jurors to  adopt
his  own  particular  interpretation  of  the
statutory   phrase  impairment  of   physical
condition.   If  this  phrase  needed  to  be
clarified  in order to resolve Eaklors  case,
it  was  Judge  Millers job to  construe  the
statutory  language  and it was  the  defense
attorneys obligation to present his arguments
to Judge Miller, not to the jury.
          In this case, the defense attorneys
departure from proper procedure is even  more
striking  because, as explained above,  Judge
Miller   had   already  adopted  a   contrary
interpretation of the statute (when the judge
denied  Eaklors  motion for  a  judgement  of
acquittal).  Under these circumstances, Judge
Miller  was  authorized to stop  the  defense
attorney  from arguing to the jury  that  the
statutory language meant something different.
          Moreover,  because it now  appeared
(from  the  defense attorneys argument)  that
the jurys decision in Eaklors case might well
hinge  on this question of law, Judge  Miller
was  not  only  authorized  but  obliged   to
instruct  the  jury  concerning  the   proper
interpretation of the statutory language.  As
our  supreme court noted in McKee  v.  State,
when  the  statutory  language  defining   an
element   of   a  crime  is  susceptible   of
differing interpretations, only one of  which
is  a  proper statement of the law, and  when
the defendants guilt or innocence may turn on
the  jurys understanding of this element,  an
instruction [on the meaning of this  element]
must  be  given.  488 P.2d 1039, 1043 (Alaska
          In  short,  Eaklors  objections  to
Judge Millers actions have no merit.
          One  caveat:  We express no opinion
as  to whether Judge Miller was correct  when
he   interpreted  the  phrase  impairment  of
physical  condition  to include  any  scratch
that  pierces  the skin.  Our examination  of
the  case law from other jurisdictions  shows
that  courts have reached differing  opinions
as to whether statutory language of this sort
encompasses  all  minor injuries  or  instead
requires proof of a more significant injury.3
          We  do not resolve this issue,  and
need  not explore it further, because  Eaklor
makes  no attempt to show that Judge  Millers
interpretation of the statutory language  was
wrong.   Eaklors sole argument is that  Judge
Miller exceeded his lawful authority when the
judge  adopted  any  interpretation  of   the
phrase impairment of physical condition.   As
we  have  explained,  this  argument  has  no
          The judgement of the district court

     1Shafer v. State, 456 P.2d 466, 469 (Alaska 1969).

2See,  e.g.,  Bailey v. Texas Instruments, Inc.,  111  P.3d  321,
323-24 (Alaska 2005) (The constitutionality of a statute and  the
meaning  of statutory terms [are] questions of law ... .);  Grimm
v.  Wagoner, 77 P.3d 423, 427 (Alaska 2003) (Questions  regarding
the  application,  interpretation,  and  constitutionality  of  a
statute  are questions of law.); Hammock v. State, 52  P.3d  746,
751  (Alaska  App. 2002) (The interpretation of a  statute  is  a
question of law ... .).

3There is considerable out-of-state authority interpreting
impairment  of  physical condition.   In  jurisdictions
that  have  statutes  similar to Alaskas,  courts  have
ruled  that scratches, small cuts, and bruises  qualify
as  impairments  of  physical  condition.   See,  e.g.,
Tucker  v.  State,  725 N.E.2d 894, 897-98  (Ind.  App.
2000)   (red   marks,  bruises,  and  minor   scratches
constitute  impairment of physical condition,  even  if
the  victim  testifies that the injury did  not  hurt);
State  v.  Slaughter, 691 N.W.2d 70,  76  (Minn.  2005)
(scratches  caused  by necklaces being  torn  from  the
victims   neck  qualified  as  impairment  of  physical
condition).    In  jurisdictions  with  statutes   that
arguably  set a slightly higher threshold for  physical
injury (impairment of physical condition or substantial
pain),   courts  have  tended  to  reverse  convictions
involving  this sort of injury.  See, e.g.,  People  v.
Prosser,  516  N.Y.S.2d 559 (N.Y. App.  1987)  (holding
that  linear abrasions on the side of the victims  neck
did  not  qualify  as physical injury when  the  victim
testified that he suffered only slight pain); State  v.
Rice,  616 P.2d 538, 539 (Or. App. 1980) (a slight  cut
from  flying  glass  caused by the  defendants  act  of
breaking  the rear window of a vehicle with  a  pickaxe
did  not  qualify  as physical injury when  the  victim
testified  that  she  felt no pain  and  did  not  even
realize  that  she  had  been  cut  until  later,  when
somebody  told  her).  But there are exceptions.   See,
e.g., Striplin v. City of Dothan, 607 So.2d 1285,  1287
(Ala.  Crim. App. 1992) (the element of physical injury
was  satisfied by evidence that the victim  was  kicked
several  times  in  the groin, even though  the  victim
testified  that he suffered pain for only a second  and
there   were   no  resulting  bruises,  scratches,   or
abrasions).  At least one court has hinged its  finding
of  physical injury on the type of conduct that led  to
the  injury   holding that a bleeding  scratch  on  the
victims arm, sustained during a domestic confrontation,
qualified  as  impairment of physical  condition,  even
though bruises and slight cuts sustained during violent
dancing did not (because dancing is an activity that is
a  customary part of modern day living).  See Cronin v.
West Whiteland Township, 994 F.Supp. 595, 601 (E.D. Pa.
1998)  (distinguishing Commonwealth  v.  Kirkwood,  520
A.2d  451,  454 (Pa. Super. 1987)).  An Oregon  appeals
court  has interpreted impairment of physical condition
to  require evidence of the victims diminished  ability
to  use  their body or one of its organs  a  definition
quite  similar to the one that Eaklor advanced in  this
case.  See State v. Higgins, 998 P.2d 222, 224-25  (Or.
App.  2000)  (reversing a wifes conviction for  fourth-
degree   assault   based  on  her  acts   of   shaking,
scratching,  and slapping her husband and  pushing  him
out of bed, when there was no evidence that the husband
experienced pain, and when his only injuries  were  six
red scrape marks on his neck and arm that did not bleed
and  did  not require medical attention).   The  Oregon
court  noted, however, the existence of other decisions
holding  that  a  swollen  lip  or  swollen  eye  would
constitute an impairment of physical condition  if  the
injury  impaired the ordinary functioning of that  body

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