ROSS v. STATE, A-8713 (Alaska App. 3-8-2006)

GERARD V. ROSS, Appellant, v. STATE OF ALASKA, Appellee.

Court of Appeals No. A-8713.Court of Appeals of Alaska.
March 8, 2006.

Appeal from the Superior Court, Third Judicial District, Anchorage, Dan A. Hensley, Judge. Trial Court No. 3AN-02-10947 Cr.

David D. Reineke, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for the Appellant.

Timothy W. Terrell, 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
MANNHEIMER, Judge.

Gerard V. Ross appeals his conviction for third-degree assault under AS 11.41.220(a)(1)(A) — placing another person in fear of imminent serious physical injury by means of a dangerous instrument.

At his trial, Ross argued (unsuccessfully) that he acted in self-defense. Now, in this appeal, Ross contends that the evidence presented at his trial was legally insufficient to rebut his claim of self-defense. Alternatively, Ross argues that the evidence presented at his trial was legally insufficient to prove one of the elements of third-degree assault: that he used a dangerous instrument during the assault.

For the reasons explained here, we conclude that the evidence presented at Ross’s trial was sufficient to establish beyond a reasonable doubt that Ross did not act in self-defense, and that Ross used a dangerous instrument. Accordingly, we affirm Ross’s conviction.

Underlying facts

Ross was accused of assaulting a female friend of his, Denise Hansen, during an argument. Because Ross challenges the sufficiency of the evidence to support his conviction, we present that evidence here in the light most favorable to supporting the jury’s verdict.[fn1]

According to Hansen, Ross began the physical altercation by “thumping” her on the forehead with his hand, then punching her in the face. Hansen responded by swinging a heavy set of keys at Ross’s midsection. At this point, Ross used his arm to put Hansen in a choking headlock, and he dragged her to the floor.

Ross maintained this chokehold for at least ten minutes. While Ross was holding Hansen down, he told her “that it would be worth [it] for him not to let [her] go — that it would be worth [it] to pay the consequences [for] kill[ing her].”

According to Hansen, Ross’s chokehold restricted her airway to such a degree that she could not breathe, and she blacked out for a time. She also testified that, during her struggle with Ross, she was “thinking that [she was] never going to see [her] kids or grandkids ever again”.

Hansen’s next-door neighbor heard her “screaming for her life”, so he called the police. Three officers arrived at the apartment and listened at the door before entering. All three officers testified that, while they were standing there, they heard a woman say, “I can’t breathe.” At that point, the officers began pounding on the door. When a third occupant of the apartment opened the door, the officers entered and found the apartment in disarray. Hansen was slowly pushing herself up from the floor, and there was blood on her face.

Ross’s argument that the evidence was insufficient to rebut his claim of self-defense

As noted above, Ross argued at trial that he acted in self-defense. He claimed that Hansen was the aggressor, and that he held Hansen on the floor only to restrain her and prevent her from inflicting injury on him. Moreover, Ross denied that he ever choked Hansen.

Ross concedes that Hansen’s testimony, as well as other evidence presented by the State, was inconsistent with his claim of self-defense. But Ross points out that, under Alaska law, once a defendant presents some evidence of self-defense, it is the government’s burden to disprove the claim of self-defense beyond a reasonable doubt.[fn2] Ross argues that, when the evidence supporting the State’s case is weighed against the testimony supporting Ross’s claim of self-defense, no reasonable juror could conclude beyond a reasonable doubt that Ross had not acted in self-defense.

We disagree. The credibility of witnesses is particularly a matter for the jury. Certainly, there were reasons to distrust Hansen’s account of what happened, but there were also reasons to distrust the account of the episode offered by Ross and the other defense witness. Ultimately, it was the jury’s responsibility to decide whether there was a reasonable possibility that Ross’s actions were justified by self-defense.

The evidence presented at Ross’s trial was sufficient to reasonably support the conclusion that Ross did not act in self-defense because he was the first aggressor. Alternatively, the evidence was sufficient to support a reasonable conclusion that, even if Ross initially acted in self-defense, he later exceeded the scope of lawful self-defense by using force beyond what was reasonably necessary to protect himself.

For these reasons, we reject Ross’s argument that the evidence presented at his trial was legally insufficient to rebut his claim of self-defense.

Ross’s argument that the evidence was insufficient to establish that his arm constituted a “dangerous instrument” under the facts of this case

As noted earlier, Ross argues that even if he assaulted Hansen, the State failed to prove that he did so by means of a dangerous instrument.

Under Alaska law, the term “dangerous instrument” is not limited to guns, knives, and other objects commonly perceived as weapons. Rather, under AS 11.81.9-00(b)(15), “dangerous instrument” includes “anything that, under the circumstances in which it is used, attempted to be used, or threatened to be used, is capable of causing death or serious physical injury”. This Court has held that a defendant’s hands or feet can qualify as a “dangerous instrument” if these body parts are used in a manner capable of inflicting death or serious physical injury.[fn3]

In Ross’s case, the State presented evidence that Ross used his arm to choke Hansen so that she could not breathe and actually lost consciousness for a time. Used in this manner, Ross’s arm was capable of inflicting death or serious physical injury on Hansen. Accordingly, the State’s evidence was sufficient to establish this element of third-degree assault.

Conclusion

The judgement of the superior court is AFFIRMED.

[fn1] See, e.g., Shafer v. State, 456 P.2d 466, 469 (Alaska 1969); Ritter v. State, 97 P.3d 73, 75 (Alaska App. 2004);Tipikin v. Anchorage, 65 P.3d 899, 901 (Alaska App. 2003).

[fn2] See Brown v. State, 698 P.2d 671, 674 (Alaska App. 1985), interpreting what is now AS 11.81.900(b)(19).

[fn3] See Willett v. State, 836 P.2d 955, 959 (Alaska App. 1992); Konrad v. State, 763 P.2d 1369, 1375-76 (Alaska App. 1988).

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