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Cronce v. State (9/25/2009) ap-2242

Cronce v. State (9/25/2009) ap-2242

     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
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     errors  to  the attention of the Clerk of the Appellate

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) Court of Appeals No. A-9855
Appellant, ) Trial Court No. 3KN-06-898 CR
v. )
) O P I N I O N
Appellee. ) No. 2242 September 25, 2009 )
Appeal    from    the
          Superior  Court,  Third  Judicial  District,
          Kenai, John E. Suddock, Judge.

          Appearances:   Brian  T.  Duffy,   Assistant
          Public  Advocate,  and Joshua  Fink,  Public
          Advocate,   Anchorage,  for  the  Appellant.
          Timothy   W.  Terrell,  Assistant   Attorney
          General, Office of Special Prosecutions  and
          Appeals,  Anchorage, and Talis  J.  Colberg,
          Attorney General, Juneau, for the Appellee.

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

          BOLGER, Judge.
          MANNHEIMER, Judge, concurring.

          Christopher E. Cronce was convicted of assault  in  the
second  degree1  and  assault in the third degree2  based  on  an
incident  when  he attacked a man named Michael  Wims.   Superior
Court  Judge  John  E. Suddock imposed separate  convictions  and
sentences  for  these  two  offenses.   We  conclude  that  these
separate statutory violations must merge because, under the facts
of  this  case,  there  was no difference in  conduct  or  intent
sufficient to warrant multiple punishments.  We therefore  vacate
the separate conviction for third-degree assault.

          Cronce  confronted Michael Wims as Wims walked  out  of
the Casino Bar in Kenai.  The men exchanged words and Cronce head-
butted  Wims in the face.  Wims tried to escape by running across
the  parking lot and climbing a nearby fence, but Cronce  dragged
Wims  back  to the ground and started to beat him and  kick  him.
Cronce  continued to beat Wims as he lay helplessly on the ground
until Kenai Police Officer James Johnson arrived in response to a
911 call.
          Cronce  was  charged  with one count  of  second-degree
assault and one count of third-degree assault.3  At trial, Cronce
testified  that the initial altercation with Wims was mutual  and
that he pursued Wims through the parking lot simply to talk about
what  happened.   As  they  approached the  fence,  the  argument
continued and again escalated into a fight.
          During  closing arguments, the prosecutor explained  to
the jury that the States theory of the case was based on both the
initial assault against Wims in the parking lot and what occurred
after  Cronce chased him down  that is, even if the initial head-
butting  involved mutual combat, Cronce was still guilty  because
he chased Wims down and continued to beat him.
          During  deliberations, the jury  sent  a  note  to  the
judge  asking  if  they  should deliberate  on  the  third-degree
assault  charge after they had reached a decision on the  second-
degree  assault charge.  In the process of discussing  this  note
with  the  attorneys, the judge suggested that there might  be  a
double  jeopardy  issue as to the merger of  these  counts.   The
judge then responded to the jurys question by instructing them to
deliberate on both counts.  The jury eventually reached a verdict
of guilty on both counts.
          At  sentencing,  the  judge  reconsidered  his  earlier
opinion  that Cronces assault convictions should be merged.   The
judge  concluded  that  the third-degree  assault  occurred  when
Cronce chased Wims through the parking lot, and the second-degree
assault occurred when Cronce began to physically beat him.  Based
on  this  reasoning, the judge imposed separate  convictions  and
sentences for the two charges:  3 years imprisonment with 2 years
suspended  for second-degree assault, and 24 months  imprisonment
with  23 months suspended for third-degree assault, to be  served
          Cronce now appeals.

          In   Whitton  v.  State,4  the  Alaska  Supreme   Court
established  a  test to determine whether the  violation  of  two
different criminal statutes during a single criminal event should
          be treated as a single punishable offense under the double
jeopardy clause of the Alaska Constitution:
               The trial judge first would compare the
          different  statutes  in  question,  as  they
          apply to the facts of the case, to determine
          whether  there were involved differences  in
          intent or conduct.  He would then judge  any
          such  differences he found in light  of  the
          basic  interests of society to be vindicated
          or   protected,  and  decide  whether  those
          differences  were substantial or significant
          enough to warrant multiple punishments. .  .
               If   such  differences  in  intent   or
          conduct  are  significant or substantial  in
          relation  to the social interests  involved,
          multiple sentences may be imposed,  and  the
          constitutional  prohibition  against  double
          jeopardy will not be violated.5
          To  apply this test, we first analyze whether  the  two
statutory  offenses  as  applied to the  evidence  in  this  case
involved  differences in conduct or intent.  Whether two offenses
qualify  as  a single offense for double jeopardy purposes  under
Whitton  is  an issue of law, which we review anew, independently
of the trial courts decision.6
          We  have  previously approved separate convictions  for
assaults  where there were clear breaks in time and circumstances
between  the offenses.7  But when the record is ambiguous  as  to
whether the defendant has committed one offense or two, then  the
defendant  should receive only a single conviction and sentence.8
Accordingly, in an ambiguous case, we may be required to conclude
that  separate  convictions are forbidden, even after  the  trial
judge concludes that the crimes involve separate conduct.9
          This  is  a case where the record is ambiguous.   There
is   nothing  in  the  indictment  to  suggest  that  there  were
substantial differences in the conduct charged for each  offense.
Likewise, the jury instructions merely simplified the language of
the  indictment without suggesting that the separate counts  were
based on different conduct.
          The  instruction on Count I required the jury  to  find
that  Christopher E. Cronce, with intent to cause physical injury
to  Michael Wims, caused physical injury to Michael Wims, and the
instruction  on  Count  II  required  the  jury  to   find   that
Christopher E. Cronce recklessly placed Michael Wims in  fear  of
imminent serious physical injury.  The jury instructions for both
counts,  however, required the jury to find that Cronce committed
these offenses by means of a dangerous instrument, to-wit: hands,
arms, and/or feet.
          Similarly, the final arguments of counsel did not  draw
any clear distinctions between the conduct the prosecution relied
on  to establish these separate counts.  In other words, both the
prosecutors  argument  and the jury instructions  left  open  the
possibility  that the jury could reach a guilty  verdict  on  the
third-degree  assault  charge based  on  conduct  supporting  the
guilty verdict on the second-degree assault charge.10
          And  at  the sentencing hearing, while opposing Cronces
request  for certain mitigating factors, the prosecutor suggested
that the same evidence supported both offenses:
          Mr.  Wims fled as quickly as he could to get
          away  from [Cronce], and he chased him  down
          and  savagely  beat him.  The  beating  that
          occurred  after the fact, the  punching  and
          kicking,  the facial injuries that Mr.  Wims
          received in the parking lot behind the other
          building  away  from the  bar  parking  lot,
          after  any allegation of a perceived  threat
          or  a  swing  by Mr. Wims, its that  conduct
          that were really talking about.
The  judge then interrupted with a question:  As to both charges?
And  the  prosecutor  confirmed that the same evidence  supported
both charges:
          As  to  both charges, Your Honor.  The  fear
          assault  is  his feelings of  fear  that  he
          experienced,  which  is the  assault  three,
          that  he experienced as this man was beating
          him   kicking him and beating him, his  fear
          of   imminent  serious  physical  injury  or
This  response suggests that the prosecutor believed that Cronces
conduct establishing the fear assault charged in Count II was the
same conduct that established the injury assault charged in Count
          Later  in the hearing, the judge acknowledged that  the
prosecutors opinion would wipe out the offense charged  in  Count
II.   But  the judge declined to merge the sentences on  the  two
convictions based on his alternative interpretation of the  trial
          [Y]ou  can  make  an argument  .  .  .  that
          perhaps  under  our  law  the  two  offenses
          merge, but as I view it, the assault started
          during the chase down the road, and that was
          the  fear-based [assault]  nothing  in  this
          whole  deal  was scarier than  running  down
          that road with two jackals after you knowing
          what  was  going to happen as soon  as  they
          caught  you,  and I think thats  a  distinct
          enough   interest  to  justify   the   court
          imposing a second sentence for the  class  C
          The  judges conclusion on this issue seems questionable
considering the way the jury instructions applied to the evidence
presented at trial.  For the third-degree assault count, the jury
was  instructed to determine whether Cronce used his hands, arms,
and/or feet to frighten Wims.  But Cronce did not begin to strike
Wims  with  his hands, arms, and/or feet as dangerous instruments
until  after  he chased Wims down and pulled him off  the  fence.
There  was little evidence that Cronce intended to use his hands,
arms,  and  feet  as dangerous instruments when  he  chased  Wims
across the parking lot.11
           Taking  this jury instruction into account,  it  seems
more  likely  that  the  jury convicted Cronce  for  third-degree
assault based on fear he induced when he began beating Wims  with
his  hands,  arms,  and feet  exactly the same  theory  that  the
prosecutor  advanced  at  the  sentencing  hearing.   Under  this
theory, the intent and conduct that the prosecution relied on  to
establish the third-degree assault charge is entirely subsumed by
the intent and conduct that established the second-degree assault
charge.12   In any event, the weakness in the judges  alternative
theory  for  the  third-degree assault charge convinces  us  that
these  circumstances were too ambiguous to support  two  separate
          We  next  analyze  the societal interests  involved  to
determine whether the differences between these two crimes  merit
separate  punishment.   The State argues that  the  second-degree
assault statute protects against violent physical injury and that
the third-degree assault statute protects against being placed in
fear of being subject as to serious physical injury.  We conclude
that  these  asserted interests are very similar  and  that  both
involve  the identical goal of protecting the physical safety  of
individual citizens.
          This  conclusion  is  implicit in a  previous  decision
where we considered convictions for an injury assault and a  fear
assault involving the same incident.  In Soundara v. State,13 the
defendant  was convicted of two charges of third-degree  assault:
one  charge for recklessly causing physical injury to the  victim
by  means  of  a  dangerous instrument, and a second  charge  for
recklessly  placing  the  victim  in  fear  of  imminent  serious
physical  injury  by  means  of  a  dangerous  instrument.14   We
concluded that the two convictions should merge because the  jury
was  not instructed to determine whether the two convictions were
based on a single underlying act or two separate acts.15
          In  the present case, we likewise cannot ascertain  any
significant  difference between the intent and  conduct  required
for  Cronces two assault convictions.  And the societal interests
involved  appear  to be nearly identical.  We therefore  conclude
that  only  one conviction may be imposed for these two statutory

          We  VACATE the separate judgment of conviction on Count
II.   The  superior  court must enter one merged  conviction  for
second-degree assault.16  On remand, the court may reconsider the
sentence for this merged conviction as long as the sentence  does
not  exceed the composite sentence imposed for both counts at the
original sentencing hearing.17
MANNHEIMER, Judge, concurring.

          I  agree  with  my  colleagues that  Cronce  could  not
properly  be  convicted of both second- and third-degree  assault
under  the  facts  of this case.  I write separately  because  my
analysis  of  the  case is a little different from  the  analysis
presented in the lead opinion.
          In  answering  the  question of  whether  Cronce  could
properly  receive separate convictions for second-degree  assault
and  third-degree  assault, my colleagues apply a  constitutional
analysis:  they conclude that separate convictions are barred  by
the  double  jeopardy  clause  of  the  Alaska  Constitution   as
construed by our supreme court in Whitton v. State, 479 P.2d  302
(Alaska  1970).  I do not believe that a constitutional  analysis
is required.  Rather, the question is one of substantive criminal
law  an issue of statutory interpretation and legislative intent.
          The  double jeopardy doctrine announced in Whitton  the
doctrine that our constitution authorizes the judiciary  to  make
policy  decisions about how many separate convictions are allowed
in  a given situation  has been undercut by more recent decisions
of  the United States Supreme Court and the Alaska Supreme Court.
As  the  United  States  Supreme Court declared  in  Missouri  v.
Hunter, when the question is whether a defendant may lawfully  be
subjected to multiple punishments for a single criminal act or  a
single  course  of criminal conduct, the Double  Jeopardy  Clause
does  no  more than prevent the sentencing court from prescribing
more punishment than the legislature intended.1
          The  Alaska  Supreme Court acknowledged this  principle
of  federal double jeopardy law in Todd v. State, 917  P.2d  674,
677-78  (Alaska  1996), a case that raised the issue  of  whether
separate punishments can lawfully be imposed for both the offense
of felony murder and the underlying felony.
          It  is  true that, after our supreme court acknowledged
the  rule announced in Missouri v. Hunter, the supreme court then
separately  analyzed the double jeopardy issue under the  Whitton
rule  (see  Todd,  917 P.2d at 681-83)  thus  implying  that  the
Whitton  analysis  requires Alaska courts to  consider  something
other  than legislative intent when resolving an issue of  double
punishment.  But a careful reading of the supreme courts  opinion
in particular, the section in which the court analyzed the double
jeopardy issue under Whitton  reveals that the court resolved the
issue  in exactly the same way that federal courts would  resolve
it  under Missouri v. Hunter.  That is, the supreme court  looked
to the Alaska Legislatures intent.
          The  supreme  court couched its decision  as  a  ruling
that,  when  a  defendant  is charged  with  felony  murder,  the
defendants underlying felony is not a lesser included offense  of
the  murder charge.  Todd, 917 P.2d at 682.  However,  the  court
openly  acknowledged  that, under Alaskas test  for  greater  and
lesser  included offenses, these two offenses do indeed stand  in
the  relationship of greater offense and lesser included offense.
Id.   The supreme court then declared that, notwithstanding  this
fact,  felony  murder [is] a distinct area of  the  criminal  law
[that  is]  not  governed by [the] traditional  lesser-included[-
]offense analysis.  Id.
          How  did the court explain this conclusion?  The  court
declared that [the] lesser-included offense analysis [applies to]
offenses  with overlapping elements ... [where] it is  not  clear
whether the legislature intended [that] the defendant be punished
under both statut[es] ... .  Id.  And, in the case of the felony-
murder  statute, the intent of the legislature to allow  multiple
punishments is clear.  Id.
          In  other words, the Whitton analysis that the  supreme
court applied in Todd hinged on legislative intent  the same test
that federal courts employ under Missouri v. Hunter.
          Based  on  Hunter and Todd, I believe that the  primary
question   to  be  asked  in  the  present  case  is  this:    In
circumstances  where  a  defendant  approaches  a  victim  in   a
threatening manner, the victim perceives the threat, and then the
defendant  carries  out the threat by attacking  the  victim  and
inflicting  injury, did the Alaska Legislature intend  to  permit
the  State to convict the defendant of separate counts of assault
one  conviction  for  the  threatening conduct  that  immediately
preceded the physical assault, and the other conviction  for  the
physical assault itself?
          Allowing  two convictions in this situation  is  not  a
traditional  approach.   Normally,  if  the  physical  attack  is
actually   launched   (i.e.,  if  the  defendant   moves   beyond
threatening conduct), the immediately preceding threat is seen as
merely a preliminary step in the attack, and separate convictions
are not imposed.
          For  example,  in Tuckfield v. State,  621  P.2d  1350,
1352 (Alaska 1981), the supreme court held that a defendant could
not  be  separately convicted of both an assault with  intent  to
commit rape and the completed rape arising from the same assault.
Although  the  supreme  court  portrayed  its  decision   as   an
application of the double jeopardy rule announced in Whitton, the
decision in Tuckfield appears to be a straightforward application
of  the  rule now codified in AS 11.31.140(c)  the rule that  [a]
person  may not be convicted on the basis of the same  course  of
conduct of both [an attempt and] the crime that is the object  of
the attempt.
          This  Court reached the same result in Tookak v. State,
648  P.2d 1018, 1023 (Alaska App. 1982), where we concluded  that
the  defendant could not be convicted of both assault with intent
to  commit rape and the completed rape when the assault  and  the
completed  rape  were merely separate stages  of  one  continuous
assault culminating in the rape of the victim.
          The  State  argues  that allowing  two  convictions  in
Cronces case (and other analogous cases) makes sense because  the
two  convictions would reflect a vindication of separate societal
values:   first,  that  a person should be free  from  fear;  and
second, that a person should not be injured.
          It  is  true that one might draw a distinction  between
the  two  stages  of the assault in this case:  the  first  stage
being  the instilling of fear during the chase, the second  stage
being the successful capture of the victim and the completion  of
the  attack.  Conceivably, the legislature might wish  to  divide
these  two stages of the continuous assaultive act into  separate
offenses, as the State now proposes.  It is also conceivable that
any  such legislation would raise constitutional issues.  But for
now,  the question is one of legislative intent:  whether,  under
our  current assault statutes, the Alaska Legislature has already
authorized  separate  convictions  for  the  two  stages   of   a
continuous act of assault like the one in this case.
          As   I  noted  earlier,  allowing  two  convictions  in
situations like this is not a normal or typical resolution of the
matter.   The  State  is  essentially  arguing  that  anyone  who
physically  attacks  another person will  commit  two  separately
punishable  assaults  if  the victim  perceives  (no  matter  how
fleetingly) that the attack is coming.  There is nothing  in  the
legislative commentary to Alaskas assault statutes (AS  11.41.200
230)  suggesting that the legislature intended to adopt this non-
traditional approach.
          Accordingly,  I conclude that, in situations  like  the
one  presented  here, defendants can not be separately  convicted
and  punished  for  (1)  instilling  fear  in  their  victims  by
threatening  to attack them, and then (2) completing the  attack.
I  reach  this conclusion as a matter of statutory interpretation
and substantive criminal law, rather than under a double jeopardy

     1 AS 11.41.210(a)(1)(3).

     2 AS 11.41.220(a)(1)(A).

     3 Count I of the indictment charged:

       Randall  S. Cronce and Christopher E. Cronce  with
       intent  to cause physical injury to Michael  Wims,
       caused physical injury to Michael Wims by means of
       a   dangerous  instrument,  to-wit:  hands,  arms,
       and/or   feet;  and/or  Randall  S.   Cronce   and
       Christopher  E.  Cronce recklessly  cause  serious
       physical injury to Michael Wims; and/or Randall S.
       Cronce and Christopher E. Cronce recklessly caused
       serious   physical  injury  to  Michael  Wims   by
       repeated   assaults,   even   if   each    assault
       individually   did  not  cause  serious   physical
Count  II  of the indictment charged that Randall S.  Cronce  and
Christopher E. Cronce recklessly placed Michael Wims in  fear  of
imminent   serious  physical  injury  by  means  of  a  dangerous
instrument, to-wit:  hands, arms and/or feet.

     4 479 P.2d 302 (Alaska 1970).

     5 Id. at 312.

     6 Erickson v. State, 950 P.2d 580, 585 (Alaska App. 1997).

     7  See,  e.g., Williams v. State, 928 P.2d 600, 604  (Alaska
App. 1996).

     8  Atkinson  v.  State, 869 P.2d 486,  495-96  (Alaska  App.
1994);  Horton  v.  State, 758 P.2d 628, 632 (Alaska  App.  1988)
(noting  that  the State has the burden of proving  each  offense
beyond a reasonable doubt); see also Mill v. State, 585 P.2d 546,
552 n.4 (Alaska 1978) (In marginal cases doubt should be resolved
against turning a single transaction into multiple offenses).

     9  See  Moore v. State, 123 P.3d 1081, 1092-93 (Alaska  App.

     10    See State v. McDonald, 872 P.2d 627, 660 (Alaska  App.

11    Cf.  Konrad  v.  State,  763  P.2d  1369,  1374-76  (Alaska
App. 1988) (noting that the defendants use of his hands to strike
the  victim on the head and ribs was not sufficient to support  a
finding that he employed his hands as a dangerous instrument).

     12    See  Whitton, 479 P.2d at 314 (Since the more  serious
offense already proscribes and punishes the activity of the  less
serious offense, the differences between the two offenses must be
deemed  insubstantial or insignificant in relation to the  social
interests involved).

     13   107 P.3d 290 (Alaska App. 2005).

     14   Id at 299.

     15   Id.

     16    See  Hurd  v.  State, 107 P.3d 314, 322  (Alaska  App.

     17    See Allain v. State, 810 P.2d 1019, 1021 (Alaska  App.

     1  459 U.S. 359, 365-66; 103 S.Ct. 673, 678; 74 L.Ed.2d  535

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