GRANT v. STATE, A-8856 (Alaska App. 5-17-2006)

WAYNE K. GRANT, Appellant v. STATE OF ALASKA, Appellee.

Court of Appeals No. A-8856.Court of Appeals of Alaska.
May 17, 2006.

Appeal from the District Court, First Judicial District, Hoonah, Larry R. Weeks, Judge. Trial Court No. 1HN-04-06 CR.

Daniel C. Wayne, Juneau, for the Appellant.

Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.

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

MEMORANDUM OPINION AND JUDGMENT
COATS, Chief Judge.

After a jury trial, Wayne K. Grant was convicted of fourth-degree assault, interfering with a report of domestic violence, and furnishing alcoholic beverages to a minor.[fn1]
He now claims, with respect to the charges of assault and interfering with a report of domestic violence, that the district court erred when it refused to instruct the jury on the lesser-included offenses of disorderly conduct and harassment. He also argues that his composite sentence is excessive. For the reasons set out below, we affirm the district court’s decision.

Facts and proceedings

On January 9, 2004, Grant and eighteen-year-old Heather Brown were at Grant’s parents’ residence drinking rum and having sex. Grant’s parents were not home. At some point, while Grant and Brown were having sex, Brown’s ex-boyfriend telephoned. Brown answered the phone and went outside the residence to speak with him. After the call ended, she went back inside. Brown testified that Grant was upset because she did not want to resume having sex. Grant told her that if she did not want to “finish . . . sexual intercourse[,]” then she had to get out of the house. He also told her that she did not need to leave “fully dressed.” At that time, she was clad only in her underwear.

Brown testified that because it was cold out, and snowing, she wanted to retrieve her clothes before she left. But Grant would not let her. He kept pushing her and telling her to get out. He pushed her against chairs, and she fell down several times. Grant kicked her a number of times while she was on the floor. The kicking bruised her shin, arm, and side.

She tried to telephone the police, but Grant took the phone — a cordless model — and threw it. Finally, wearing only her underclothes, Brown left the residence and walked to Grant’s residence, which was not far away. There, she found a pair of her pants and took one of Grant’s shirts. She put the clothes on and then called the police. She hung up when she saw Hoonah Police Officer John Waldron driving to Grant’s residence. Waldron was apparently responding to a call from Grant that a minor who had been consuming alcohol had showed up at his residence.

When Grant testified, he said that Brown became angry at him after the phone call with her ex-boyfriend because Grant was not interested in why she was upset with the ex-boyfriend. When she yelled at him, Grant told her that “I don’t need this, please leave.” But he let her stay when she quieted down. Grant said the ex-boyfriend called a second time, and, after the second call ended, Brown again started yelling at Grant. Consequently, Grant again told her to leave. He testified that he “did not in any way hit her or kick her or push her.” He agreed that she tried to make a phone call, but he said, “no, just leave.” Brown handed him the phone. According to Grant, Brown then left.

Grant testified that he later recorded a videotape of the tracks Brown left in the snow when she left Grant’s parents’ residence and walked to his residence. Grant said that this videotape indicated that Brown had fallen down. Later, during closing argument, his attorney argued to the jury that Brown’s injuries were the result of a fall in the snow.

At the close of evidence, Grant asked the district court to instruct the jury that disorderly conduct and harassment were lesser-included offenses of fourth-degree assault. Grant’s attorney contended that these instructions were supported by the evidence that “there was an argument . . . [and] that [Grant] did not hit or strike Ms. Brown.” He argued that the jury could believe Grant’s testimony that there had been an argument and that he had not assaulted Brown; thus, he argued, “[the jury] could choose to believe that what happened did not rise to the level of assault in the fourth degree, [but] that it was other harassment or disorderly conduct.”

When Superior Court Judge Larry R. Weeks (sitting in the district court) asked Grant’s attorney to clarify how the jury, if it believed Grant, could find him guilty of harassment or disorderly conduct, Grant’s attorney said that “[the jury] can choose to believe that there’s elements of truth in [the testimony of] both witnesses, which would mean that it doesn’t rise to the level of assault in the fourth degree, but . . . is either harassment or disorderly conduct.” He added that there was evidence that Brown’s injuries were the result of a fall in the snow, hence, “the jury could find that what happened . . . amount[ed] to annoyance or taunting or that it was some mutual combat.”

Judge Weeks denied Grant’s request. He said that he did not think disorderly conduct or harassment were lesser-included offenses of the fourth-degree assault charge. Later, the jury returned guilty verdicts on all three charged offenses.

At sentencing, the State pointed out that Grant had a prior felony conviction for sexual abuse of a minor. He had also been previously charged with furnishing alcoholic beverages to a minor, although that charge had been reduced and he was convicted of contributing to the delinquency of a minor. Had that charge not been reduced, the instant offense of furnishing alcohol to a minor would have been a felony. The State also pointed out that Grant, when he addressed the court, showed no remorse and took no responsibility for what had happened.

Judge Weeks applied the Chaney criteria[fn2] in sentencing Grant. Based on Grant’s prior criminal history and his refusal to take responsibility for his actions in this case, Judge Weeks found that Grant, who was thirty-three years old, had little rehabilitative potential. Noting that Grant had provided alcohol to and had sex with a girl still in high school, Judge Weeks found that jail time was necessary to deter Grant and others from future offenses and to reaffirm societal norms. He found that Grant’s assault and interference offenses were serious and that his conviction for furnishing alcohol to a minor was a repeat offense.

Based on these findings, Judge Weeks imposed 1 year with 6 months suspended for the assault conviction, 90 days with 60 days suspended for the interfering with a crime of domestic violence conviction, and 90 days with 60 days suspended for the furnishing alcohol to a minor conviction. All of the sentences were imposed consecutive to one another, giving Grant 8 months to serve.

Judge Weeks did not err when he declined to instruct the jury that disorderly conduct was a lesser-included offense of the charged fourth-degree “physical injury” assault

Grant contends that Judge Weeks erred when he did not instruct the jury that it could consider disorderly conduct or harassment as a lesser-included offense of fourth-degree assault. Alaska uses the cognate approach to determine if a defendant is entitled to have the jury instructed on a lesser-included offense.[fn3] When using the cognate approach, “the court must examine the elements of the offense, the respective theories of the case, and the evidence presented at trial. The court must then determine whether, in the context of the case, it would be possible for the jury to find that the accused had committed the greater offense but not the lesser.”[fn4]

In Petersen v. State,[fn5] we explained that under the cognate approach:

[a] defendant is entitled to a jury instruction on a lesser included offense when (1) the defendant necessarily committed the lesser offense if he or she committed the charged offense in the manner alleged by the State; (2) the defendant actually disputes the element or elements distinguishing the charged offense from the lesser offense[;] and (3) the evidence would support a reasonable conclusion that the defendant is guilty of only the lesser offense and not the charged offense.[fn6]

Under the relevant portions of AS 11.41.230, a person commits fourth-degree assault if “that person recklessly causes physical injury to another person[, or] . . . by words or other conduct[,] that person recklessly places another person in fear of imminent physical injury.”[fn7] The State presented both theories of fourth-degree assault to the jury. That is, the State argued that the evidence showed that Grant had either recklessly caused physical injury or recklessly, by word or conduct, placed Brown in fear of imminent physical injury. The State based both theories on Brown’s testimony that when she tried to get her clothes, Grant pushed her and, after she fell, kicked her, causing her physical injury. Grant, in his testimony, denied that any physical altercation occurred. Grant said that Brown yelled at him on two different occasions when he told her that he did not care about her concerns with her ex-boyfriend. Grant said he did not yell back at Brown but asked her to “please leave.” The second time he told her to leave, she did. He denied injuring Brown and suggested that her injuries were the result of a fall after she left the residence.

On appeal, Grant argues that the jury could have convicted him of the lesser-included offenses of disorderly conduct or harassment based on this evidence because “[a] jury could have easily found that causing someone to leave without their clothes, by verbally abusing them and implying or threatening the use of physical force[,] added up to disorderly conduct and/or harassment.”

Under the provision of the disorderly conduct statute contained in Grant’s proposed jury instruction, a person commits disorderly conduct if “in a public or private place, the person . . . engages in fighting other than in self-defense.”[fn8]
Fighting is not defined in the statute or elsewhere in the criminal code. Generally, “[u]nless words have acquired a peculiar meaning, by virtue of statutory definition or judicial construction, they are to be construed in accordance with their common usage.”[fn9] We usually look to a dictionary to determine common usage.[fn10] The common usage of fighting is “to take part in a physical struggle.”[fn11] Causing someone to go outside and fall in the snow by verbally abusing or threatening them is not “engag[ing] in fighting” under this definition.

Grant’s requested instruction on the lesser-included offense of harassment stated that the jury could convict him of that offense if it found that he “intended to harass or annoy another person” and that he “insulted, taunted, or challenged another person in a manner likely to provoke an immediate response.” At trial, there were no facts or theories offered to support this lesser-included instruction. That is, there was no evidence or argument that Grant intended to harass or annoy Brown, or to insult or taunt her in a way likely to provoke an immediate response.

We conclude that Judge Weeks did not abuse his discretion in rejecting Grant’s proposed instructions.[fn12] As we explained in Petersen, a defendant is entitled to a jury instruction on a lesser-included offense when, by committing the charged offense in the manner alleged by the State, the defendant necessarily committed the lesser-included offense.[fn13]
Given the evidence and argument in this case, the jury could have convicted Grant of fourth-degree assault yet still acquitted him of disorderly conduct and harassment.

Grant did not request lesser-included instructions for the interference with a report of domestic violence charge

On appeal, Grant claims that he was entitled to have the jury instructed that it could consider disorderly conduct and harassment as lesser-included offenses of the interfering with a report of domestic violence charge. But he has not preserved this claim for appellate review because he did not request that Judge Weeks instruct the jury on any lesser-included offense for the interfering charge. Based on our decision in Heaps v.State,[fn14] we conclude that no plain error occurred.[fn15]
Grant’s sentence was not clearly mistaken

Grant argues that his composite sentence was excessive because Judge Weeks did not give enough weight to Grant’s “good rehabilitation potential.” He also argues that his sentences should have been imposed concurrently, not consecutively.

As already mentioned, Judge Weeks sentenced Grant to serve 1 year with 6 months suspended for the assault conviction, 90 days with 60 days suspended for the interference conviction, and 90 days with 60 days suspended for the furnishing alcohol to a minor conviction. The sentences were imposed consecutively, giving Grant a composite sentence of 18 months with 10 months suspended.

Grant claims that Judge Weeks erred because he did not give enough weight to his potential for rehabilitation. Grant argues that Judge Weeks should have considered more favorably the information showing that he was a productive member of society and that he worked hard, holding two jobs and sometimes working ninety hours a week. Judge Weeks also heard that Grant had worked since he was fourteen years old, that he was a captain in the fishing industry at age seventeen, that he had taught computer programming and computer maintenance, and that he was considering going to college.

But Judge Weeks’s comments show that he rejected Grant’s argument that these factors indicated a strong potential for rehabilitation. Based on the evidence from the trial, and Grant’s statement at sentencing, Judge Weeks found that “[it] doesn’t sound to me like rehabilitation’s very high on your list; rather, denial of any responsibility is your tack right now. That doesn’t augur well for your ability to deal with society in the future.” In addition, Judge Weeks recognized that Grant had two prior convictions. One of these was for felony sexual abuse of a minor, and the other — for which Grant was on probation when he committed the current offenses — was based on his furnishing alcohol to a minor.

The weight and priority given to each of the Chaney factors is the prerogative of the sentencing court, based on the circumstances of the defendant’s case.[fn16] Grant has not shown that Judge Weeks was clearly mistaken when he disagreed with Grant’s view of his potential for rehabilitation.

Nor has Grant shown that Judge Weeks erred when he imposed the sentences consecutively. Grant, relying on former AS12.55.025(g),[fn17] argues that the sentences should have been concurrent. To support his argument, Grant points out that former AS 12.55.025(g) allowed Judge Weeks to impose the sentences concurrently if, among other things, Grant’s crimes violated similar societal interests, were part of a single, continuous criminal episode, and there was no substantial change in the objective of the criminal episode.[fn18]

But as the State argues, Judge Weeks could reasonably conclude that there were three distinct episodes involved. First, Grant secured a bottle of rum and furnished alcohol to a minor. Later, he assaulted his victim when she would not resume having sex with him after she spoke with her ex-boyfriend. Finally, he prevented her from calling for help to stop the assault. In addition, each crime has a different societal interest: protecting minors from the risks associated with consuming alcohol, protecting people from physical assaults, and assuring that people can report domestic violence. Judge Weeks did not err when he imposed consecutive sentences.

We conclude that the composite sentence is not clearly mistaken.[fn19]
Conclusion

The decisions of the district court are AFFIRMED.

[fn1] AS 11.41.230(a)(1), (3); AS 11.56.745; and AS 04.16.051(a), respectively.

[fn2] See State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970).

[fn3] See Elisovsky v. State, 592 P.2d 1221, 1226 (Alaska 1979); see also State v. Minano, 710 P.2d 1013, 1016 (Alaska 1985).

[fn4] Blackhurst v. State, 721 P.2d 645, 648 (Alaska App. 1986).

[fn5] 930 P.2d 414 (Alaska App. 1996).

[fn6] Id. at 433 (citing Minano, 710 P.2d at 1016;Elisovsky, 592 P.2d at 1225; Blackhurst, 721 P.2d at 648).

[fn7] AS 11.41.230(a)(1), (3).

[fn8] AS 11.61.110(a)(5).

[fn9] Division of Elections v. Johnstone, 669 P.2d 537, 539
(Alaska 1983) (quoting State v. Debenham Electric Supply Co.,612 P.2d 1001, 1002 (Alaska 1980)). See also AS 01.10.040(a) (words used in statutes are to be construed according to their common and approved usage).

[fn10] See Walker v. State, 742 P.2d 790, 791 (Alaska App. 1987).

[fn11] Webster’s New World College Dictionary 504 (3d ed. 1997); see also Walsh v. State, 758 P.2d 124, 127 n. 6 (Alaska App. 1988) (citing Oxford American Dictionary 240 (1980) (“fight” means to struggle against a person in physical combat)).

[fn12] See, e.g., Johnson v. State, 665 P.2d 566, 569 (Alaska App. 1983) (quoting United States v. Busic, 592 F.2d 13, 25 (2d Cir. 1978) (“The decision whether there is enough evidence to justify a lesser offense charge rests within the sound discretion of the trial judge.”)).

[fn13] Petersen, 930 P.2d at 433.

[fn14] 30 P.3d 109 (Alaska App. 2001).

[fn15] Id. at 116 (defendant failed to show plain error because, based on existing Alaska case law, “reasonable judges could differ regarding a trial judge’s duty to instruct the jury on lesser included offenses in the absence of a request from either party”).

[fn16] Smith v. State, 691 P.2d 293, 295 (Alaska App. 1984).

[fn17] This section was repealed, effective July 1, 2004. See
Ch. 125, § 8, SLA 2004. Grant committed his offenses on January 9, 2004.

[fn18] See former AS 12.55.025(g)(1), (2), and (3).

[fn19] See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (an appellate court must uphold a sentencing decision unless the sentence is clearly mistaken).