TORRENCE v. STATE, A-9990 (Alaska App. 10-28-2009)
Court of Appeals No. A-9990.Court of Appeals of Alaska.
October 28, 2009.
Appeal from the Superior Court, Third Judicial District, Anchorage, Eric A. Aarseth, Judge, Trial Court No. 3AN-05-6190 CR.
David Reineke, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Ann B. Black, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Richard A. Svobodny, Acting Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
COATS, Chief Judge.
Patrick H. Torrence was convicted of third-degree assault for putting a co-worker, Justin Giles, in a choke hold until Giles blacked out. Torrence argues that the State presented insufficient evidence to prove one of the elements of third-degree assault: that his arms met the definition of a “dangerous instrument.”Page 2
Having reviewed the record, we conclude that a fair-minded juror could find that Torrence used his arms as a “dangerous instrument” because he choked Giles forcefully enough to put him at actual and substantial risk of serious injury. We therefore reject Torrence’s claim, and affirm his conviction.
Facts and proceedings
Torrence and Giles worked as security guards at the Barrett Inn in Anchorage. On July 7, 2005, the two men had an argument that escalated into a physical confrontation.
Giles testified that Torrence started the assault by trying to punch him. Giles avoided the punch and tried to run away, but as he turned he tripped and fell. Torrence then jumped on top of Giles and put his right arm around his throat. With his left arm, he hit Giles on the back of his head and neck a dozen times. Giles struggled to get away, but Torrence used both arms to tighten the choke hold around Giles’s neck until he could not “utter a sound” and his eyes felt like they would pop out. His peripheral vision faded and he blacked out. Giles testified that he was not sure how long he was unconscious but when he came to he saw several pairs of feet. His head was throbbing and the pain worsened over the next few hours. He also had “surprisingly bad” pain along the sides of his throat and difficulty swallowing that persisted for days.
This testimony was corroborated in part by the front desk supervisor, Leticia Nuesca. She testified that she saw Torrence go after Giles as he ran for the door, and then choke Giles for twenty to thirty seconds while he was face down on the floor. She said she begged Torrence to stop choking Giles and eventually he did. She said Giles got up after the assault and that she did not see him lose consciousness.Page 3
Torrence gave a different account of the incident: he testified that Giles threatened him with a pen, that they wrestled, and that after the two of them went down to the floor he put Giles in a choke hold to subdue him. He said he had Giles in a choke hold only “momentarily” and that Giles stayed on the ground “[n]ot even a second” after he released him. Torrence testified that he would not keep someone in a choke hold for more than five seconds because of concern that the person might be seriously injured.
At the close of the State’s case Torrence moved for a judgment of acquittal, arguing that there was insufficient evidence that his arms qualified as a “dangerous instrument” to convict him of third-degree assault. Superior Court Judge Eric A. Aarseth denied the motion, reasoning that choking a person has the potential to cause serious physical injury or death and that a reasonable juror could conclude that if Nuesca had not intervened, “the choking would have continued until Mr. Giles had died or there were other serious injuries.” On reconsideration, the superior court reaffirmed this ruling.
The case then went to the jury, which rejected Torrence’s claim of self-defense and convicted him of third-degree assault.
Why there was sufficient evidence to support Torrence’s conviction
On appeal, Torrence renews his claim that the State presented insufficient evidence that his arms met the definition of a “dangerous instrument.”
In assessing a claim of insufficient evidence, we view the evidence and the reasonable inferences from that evidence in the light most favorable to upholding the jury’s verdict.[fn1] The question is whether a fair-minded juror exercising reasonablePage 4
judgment could conclude that the State met its burden of proving guilt beyond a reasonable doubt.[fn2]
Torrence was convicted of third-degree assault for recklessly causing physical injury to Giles “by means of a dangerous instrument.”[fn3] At the time of the offense, “dangerous instrument” was defined as “any deadly weapon or 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.”[fn4]
In Konrad v. State[fn5] we established the following test for determining when a hand is a “dangerous instrument”:
[B]efore a hand may be deemed a “dangerous instrument,” the state must present particularized evidence from which reasonable jurors could conclude beyond a reasonable doubt that the manner in which the hand was used in the case at issue posed an actual and substantial risk of causing death or serious physical injury, rather than a risk that was merely hypothetical and abstract.[fn6]
Viewing the evidence in the light most favorable to the jury’s verdict, Torrence choked Giles until he was not able to “utter a sound” and his eyes felt like they would pop out. The blood flow through his jugular veins was restricted long enoughPage 5
to cause blood capillaries to burst, leaving visible bruising in and around his left eye and eyelid, and possibly bruising in his brain tissue. His peripheral vision faded and he blacked out. After he came to, his head was throbbing and the pain in his head worsened over the next few hours. He also had pain along the sides of his throat and difficulty swallowing that lasted for days.
Tara Henry, the State’s medical expert, testified that a number of potentially serious injuries can result from strangulation: fracturing of the larynx, hyoid bone, or vertebrae; muscle tears; permanent nerve injury; damage to the thyroid gland that can result in a life-threatening overload of thyroid hormone; paralysis from slippage of disks and vertebrae; pulmonary edema or embolus; pneumonia; cardiac arrhythmia, and various forms of neurological damage, including stroke and brain death. Henry did not testify that the manner in which Giles was strangled posed any of these specific risks of death or serious injury. But a reasonable juror could infer that some of the injuries Henry discussed — for instance, fracturing or slippage of disks or vertebrae, which can lead to long-term pain or paralysis — could result from even brief strangulation if enough force were applied. A reasonable juror could also infer that Torrence used enough force in this case to put Giles at risk of serious injury; indeed, Torrence testified that the type of choke hold he used could result in serious injury after only five seconds. There was also evidence from which a reasonable juror could infer that if Nuesca had not intervened, Torrence would have continued to choke Giles, putting him at even greater risk of serious injury or death.
Torrence argues that Giles was not particularly susceptible to injury because he was a former marine. But there was undisputed testimony that Giles was a “skinny guy,” while Torrence weighed 223 pounds and was “huge, very muscular.” Moreover, Giles had tripped and fallen down and was lying face down on the floor whenPage 6
he was choked. He struggled to free himself from Torrence’s grip but he could not, and his struggle left fingernail marks on Torrence’s hands.
Based on this record, we conclude that the State presented enough evidence that Torrence’s arms met the definition of a “dangerous instrument” for a reasonable jury to convict him of third-degree assault.
Conclusion
We AFFIRM Torrence’s conviction.
[fn1] Dailey v. State, 65 P.3d 891, 898 (Alaska App. 2003). [fn2] Id. at 898. [fn3] See AS 11.41.220(a)(1)(B). [fn4] Former AS 11.81.900(15). Effective August 15, 2005 (five weeks after Torrence committed his offense), the legislature broadened the definition of “dangerous instrument” to include “hands or other objects when used to impede normal breathing or circulation of blood by applying pressure on the throat or neck or obstructing the nose or mouth.” Ch. 20, § 1, SLA 2005. [fn5] 763 P.2d 1369 (Alaska App. 1988). [fn6] Id. at 1374 (emphasis added).