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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
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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
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[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).
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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."
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----------------------- 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
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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
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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
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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
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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
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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).
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