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Nicklie v. State (8/18/2017) ap-2563

Nicklie v. State (8/18/2017) ap-2563


               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 Courts:  

                                                        303 K Street, Anchorage, Alaska  99501

                                                                           Fax:  (907) 264-0878

                                                              E-mail:  corrections @

                           IN THE COURT OF APPEALS OF THE STATE OF ALASKA  


                                                                                                                Court of Appeals No. A-12179  

                                                           Appellant,                                         Trial Court No. 3AN-13-461 CR  


                                                                                                                              O  P  I  N  I  O  N  


                                                           Appellee.                                             No. 2563 - August 18, 2017  


                              Appeal   from  the  Superior  Court,   Third  Judicial  District,  

                              Anchorage, Michael Spaan, Judge.  

                              Appearances:   Jane   B.   Martinez,   Law   Office   of   Jane   B.  


                              Martinez,                LLC,            and         Richard               Allen,           Public             Advocate,  

                              Anchorage, for the Appellant.   Elizabeth T. Burke, Assistant  


                              Attorney General, Office of Criminal Appeals, Anchorage, and  


                              Jahna Lindemuth, Attorney General, Juneau, for the Appellee.  


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



                              Judge ALLARD.  

                              A jury found Robert Dee Nicklie guilty of third-degree and fourth-degree                                                            

assault based on evidence that he beat up and strangled his girlfriend.                                                                                       At sentencing,   

both the prosecutor and the defense attorney agreed that the jury's verdicts on these two                                                                                               

counts should merge into a single conviction for third-degree assault (the more serious                                                                                         

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

 crime). The judge agreed with the parties, and he imposed only one sentence on Nicklie                                                                                                                 

- a sentence for third-degree assault.                                        

                                  However, the judgment form that was prepared following the sentencing   

hearing declares that Nicklie was "convicted" of both counts of assault and that the two                                                                                                                         

 counts were merged only "for sentencing purposes."                                                       

                                  On appeal, Nicklie argues that his separate conviction for fourth-degree                                                                              

 assault must be vacated, and the State concedes that this should occur.                                                                                          


                                  We conclude that the State's concession is well-taken.                                                                                       As we explained  


in Garhart v. State:  



                                  [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 the double jeopardy  


         1       See Marks v. State                          , 496 P.2d 66, 67-68 (Alaska 1972) (requiring an appellate court to  

independently assess any concession of error by the State in a criminal case);                                                                                                         see also Allain  

v. State, 810 P.2d 1019, 1021 (Alaska App. 1991) (finding State's concession that merger of  

two counts should result in a single conviction to be well-taken).  

         2       Garhart v. State, 147 P.3d 746, 753-54 (Alaska App. 2006) (citing Gilbert v. State,  

 598  P.2d  87,  91  (Alaska  1979);  Robinson  v.  State,  487  P.2d  681,  682  (Alaska  1971);  

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

                                                                                                       - 2 -                                                                                                 2563

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                      Thus,   Alaska   law   does   not   recognize   the   existence   of   a   merger  "for  

sentencing   purposes   only."     Because   of   the   prohibition   against   double   jeopardy  

announced in            Whitton, when a defendant is found guilty of counts that must merge, the                                       

merger results in a            single  conviction of record (and thus a single sentence).                               3  


                      (This is distinctfromsituationswhereseparateconvictionsarelawful under  


 Whitton, but the sentencing judge believes that concurrent sentences will satisfy the  


Chaney sentencing criteria.  In those instances, a judge must enter a separate sentence  


for each conviction, but those sentences can be concurrent to the extent permitted by  


AS 12.55.127.)  


                     We recognize, however, that the current Alaska Court System form for the  


entry of criminal judgments makes it difficult for sentencing judges to issue a judgment  


that complies with  Whitton.  Instead of beginning with the words "The defendant has  


been found guilty of" various counts of the indictment, the Court System's judgment  


form begins with the words "The defendant has been convicted of " the various counts.  


(Emphasis added.)  In other words, the form does not distinguish between the jury's  


guilty verdicts and the ultimate convictions of record that are later entered by the trial  


court based on those verdicts.  This becomes a problem for cases where the verdicts are  


subsequently merged under Whitton and multiple guilty verdicts should be entered as a  


single conviction of record.  Often, as occurred here, the judge will try to address this  


problem by indicating that the counts have merged but will then erroneously state that  


the counts are merged "for sentencing purposes only," leaving the convictions of record  


for the merged counts intact.  

      3    See Newsome v. State, 782 P.2d 689, 692 (Alaska App.   1989);   see also State v.  

McDonald , 872 P.2d 627, 660 n.14 (Alaska App. 1994); Allain , 810 P.2d at 1021.  

                                                                  - 3 -                                                            2563

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

                     Because the current form makes it difficult for judges to comply with the  


double jeopardy requirements of  Whitton, we encourage the Alaska Court System to  


modify this form.  And, until that occurs, we urge sentencing judges not to use this form  


in cases where two or more counts must merge under Whitton.  


                    Nicklie raises one other contention on appeal. He argues that the trial judge  


committed plain error by failing to sua sponte instruct the jury on the need for factual  


unanimity. To understand Nicklie's claim, and our rejection of it, we must supply some  


background on how this case was litigated.  


                     The State charged Nicklie with second-degree assault and fourth-degree  


assault based on allegations that he strangled and beat up his girlfriend, Bernita Ballot.  


At trial, the State introduced evidence that Nicklie hit Ballot and tore out a chunk of her  


hair. The State also introduced evidence that Nicklie choked Ballot, resulting in bruises  


to Ballot's neck and petechia behind her eyelids and ears.  


                     Duringclosingargument,theprosecutor explained that Nickliewascharged  


with second-degree assault based on the strangulation and that Nicklie was charged with  


fourth-degree  assault  based  on  the  hair-pulling  incident.                                 The  prosecutor  further  


explained that, to find Nicklie guilty of second-degree assault, the jury needed to find  


beyond a reasonable doubt that Nicklie "intentionally caused physical injury [to Ballot]  


by  means  of  a  dangerous  instrument"  -  i.e.,  using  his  hands  to  impede  Ballot's  


breathing and circulation. The prosecutor also explained that this second-degree assault  


charge included the lesser offense of third-degree assault - an offense that would apply  


if the State proved only that Nicklie "recklessly caused physical injury [to Ballot] by  


means of a dangerous instrument" - again, by using his hands to impede Ballot's  


breathing and circulation.  


                                                               - 4 -                                                         2563

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

                                                                                  Following   deliberations,   the   jury   acquitted   Nicklie   of   second-degree  

 assault, but convicted himofthelesser-includedoffenseofthird-degreeassault. The                                                                                                                                                                                                                                                                                                                                                                                                                                          jury  

 also convicted Nicklie of fourth-degree assault.                                                                                                                                                                                                    

                                                                                   On appeal, Nicklie argues that his conviction for third-degree assault is                                                                                                                                                                                                                                                                                                                                                                           

 flawed because the trial judge failed to instruct the jury on the need for factual unanimity.                                                                                                                                                                                                                                                                                                                                                                                                                                                           

Nicklie contends that some members of the jury may have convicted Nicklie of third-                                                                                                                                                                                                                                                                                                                                                                                                                            

 degree assault based on the strangulation, while other members of the jury may have                                                                                                                                                                                                                                                                                                                                                                                                                                

 convicted Nicklie of third-degree assault based on the hair-pulling.                                                                                                                                                                                                                                                                         

                                                                                  We find no merit to this contention, given that the prosecutor expressly told                                                                                                                                                                                                                                                                                                                                                                                          

the jury that the strangulation and the hair-pulling were charged in separate counts, and                                                                                                                                                                                                                                                                                                                                                                                                                                   

 also given the fact that the jury was specifically instructed that the phrase "dangerous                                                                                                                                                                                                                                                                                                                                                                                  

 instrument" meant hands or other objects used to impede a person's breathing.                                                                                                                                                                                                                                                                                                                                                                                                                         

                                                                                  Nicklie also argues that a factual unanimity instruction wasneeded because                                                                                                                                                                                                                                                                                                                                       

Ballot testified that Nicklie applied pressure to "different parts" of her throat.                                                                                                                                                                                                                                                                                                                                                                                                               Nicklie  

 contends that his conviction for third-degree assault is flawed because some members                                                                                                                                                                                                                                                                                                                                                                                                    

 of the jury may have believed that the strangulation occurred when Nicklie placed his                                                                                                                                                                                                                                                                                                                                                                                                                                          

hands   "around"   Ballot's   throat,   while   other   jurors   may   have   concluded   that   the  

 strangulation occurred when Nicklie used his hands to apply pressure to the "sides" of                                                                                                                                                                                                                                                                                                                                                                                                                                              

Ballot's throat.                                                                                

                                                                                  Evenassumingthat this might betrue, thejury's verdict                                                                                                                                                                                                                                                                                       wouldnevertheless   

be proper.                                                      Regardless of the precise details of the strangulation, Nicklie's strangulation                                                                                                                                                                                                                                                                                                                   

 of Ballot was a single criminal act for purposes of the requirement of jury unanimity.                                                                                                                                                                                                                                                                                                                                                                                        

 (Conversely, it would have been improper for Nicklie to be convicted of two separate                                                                                                                                                                                                                                                                                                                                                                                                          

 acts of strangulation under these facts.                                                                                                                                                                                                   4           


                     4                   See S.R.D. v. State, 820 P.2d 1088, 1092-93 (Alaska App. 1991).  

                                                                                                                                                                                                                                                            -  5 -                                                                                                                                                                                                                                                  2563

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

                    We therefore find no error in the trial judge's failure to sua sponte instruct  


the jury that they needed to reach factual unanimity regarding Nicklie's precise mode of  


strangling Ballot.  



                    We REMAND this case for correction of the judgment to clarify that the  


jury verdicts on third-degree assault and fourth-degree assault merged into a single  


conviction for third-degree assault.   The judgment of the superior court is otherwise  



                                                            -  6 -                                                     2563

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