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THE COURT OF APPEALS OF THE STATE OF ALASKA
S.R.D., )
)
Appellant, ) Court of Appeals Nos. A-2853/62
) Trial Court Nos. 3AN-S87-8197/98CR
v. )
)
STATE OF ALASKA, ) O P I N I O N
)
Appellee. ) C O R R E C T E D
______________________________)
)
M.K.D., )
)
Appellant, )
)
v. ) [No. 1161 - November 15, 1991]
)
STATE OF ALASKA, )
)
Appellee. )
______________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Peter A. Michalski, Judge.
Appearances: David E. George, Anchorage, for
Appellant S.R.D. R. Scott Taylor, Assistant
Public Defender, and John B. Salemi, Public
Defender, Anchorage, for Appellant M.K.D.
Cynthia M. Hora, Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and Douglas B. Baily, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats, Judge,
and Andrews, Superior Court Judge.*
[Mannheimer, Judge, not participating.]
BRYNER, Chief Judge.
M.K.D. ["M."] and S.K.D. ["S."] were convicted by a
jury of multiple offenses arising from the physical abuse of
their three children, S.E.D., A.D. and S.D.1 The abuse allegedly
occurred between early 1983 and late 1987. The D.'s appeal,
challenging their convictions on various grounds and contending
that the sentences they received are excessive. We affirm in
part and reverse in part.
I. SUFFICIENCY OF EVIDENCE
M. and S. moved for judgments of acquittal at trial and
now challenge the superior court's denial of their motions. In
reviewing the sufficiency of the evidence at trial, this court
must construe the record in the light most favorable to the state
and determine whether fair-minded jurors could conclude that the
state met its burden of proving guilt beyond a reasonable doubt.
See, e.g., Des Jardins v. State, 551 P.2d 181, 184 (Alaska
1976).
A. M.'s Conviction s
1. Criminal Nonsupport
Counts V, IX, and XIII charged M. with criminal
nonsupport for failing to provide her children with necessary
medical attention. As to two of the counts the evidence
established two separate occasions when M. failed to take one of
her children to a physician after S. had beaten and injured the
child. One occasion involved A.D.; the other, S.E.D. In each
case, a third person eventually intervened, and the child was
examined by a physician. The examinations revealed injuries
resulting from abuse, but the injuries did not require actual
treatment.
On appeal, M. claims that the evidence was insufficient
to establish criminal nonsupport, because neither child was found
to require any medical treatment. The criminal nonsupport
statute, however, requires parents to provide their children with
necessary "medical attention." AS 11.51.120(b). We agree with
the state that "attention" must be construed more broadly than
"treatment." It is conceivable that children may suffer injuries
sufficiently threatening to require a medical examination, even
if that examination ultimately discloses no need for treatment.
In the present case, evidence concerning A.D.'s and
S.E.D.'s injuries and the manner in which those injuries were
inflicted was sufficient, when viewed in the light most favorable
to the state, to permit a reasonable juror to infer that, even
though no treatment was required, medical attention was actually
necessary to rule out the possibility of life-threatening or
potentially disabling conditions. The trial court did not err in
declining to enter a judgment of acquittal as to these two
counts.
As to the remaining count of criminal nonsupport, the
evidence indicated that S.D. was found to be suffering from a
severe case of impetigo upon placement in a foster home. The
condition had apparently existed for several months and responded
rapidly to medical treatment when the foster parents took S.D. to
a physician. M. presented evidence indicating that, before S.D.
was placed in foster care, she had attempted to treat the
impetigo herself, without medical assistance. Based on this
evidence, M. contends that she could not have been convicted of
failing to provide treatment.
Viewing the evidence in the light most favorable to the
state, however, a reasonable juror could have rejected the
defense evidence or found that, despite M.'s efforts to provide
home treatment, professional medical attention was actually
necessary. The state thus presented sufficient evidence to
support the charge, and the trial court did not err in denying
M.'s motion for a judgment of acquittal.
2. Fourth-Degree Assault
In Counts VII and VIII, M. was charged with assault in
the fourth degree for banging A.D.'s and S.D.'s heads together.2
At trial, the state neglected to present testimony concerning
these charges before resting its case-in-chief. M. immediately
moved for a judgment of acquittal. The state realized its
oversight and asked to reopen its case. The trial court granted
the state's request.
On appeal, M. does not dispute the sufficiency of the
evidence presented after the state reopened its case-in-chief.
She nonetheless argues that the trial court was bound to rule on
her motion for a judgment of acquittal as soon as it was made.
According to M., the trial court had no discretion to allow the
state to reopen its case before addressing the motion. M. asks
this court to assess the sufficiency of the evidence based on the
record as it existed when she first made her motion. In support
of her argument, M. relies on a number of federal cases generally
holding that motions for judgments of acquittal must be ruled on
at the close of the prosecution's case-in-chief and may not be
deferred to the end of trial. See, e.g., United States v.
Reifstek, 841 F.2d 701, 703 (6th Cir. 1988).
Alaska, however, has rejected the approach taken in the
federal cases. This court and the supreme court have
consistently taken the view that, even when motions for judgments
of acquittal are made at the close of the state's case-in-chief,
the sufficiency of the evidence at trial may be based on the
totality of the evidence, including evidence presented by the
defense after the state has rested its case. See Martin v.
Fairbanks, 456 P.2d 462 (Alaska 1969), overruled on other
grounds, Whitton v. State, 479 P.2d 312 (Alaska 1970); Deal v.
State, 657 P.2d 404 (Alaska App. 1983).
Even if Alaska's approach did not differ from the
federal approach, the federal cases relied on by M. merely
preclude the trial court from waiting until the defense presents
its case before ruling on a motion for a judgment of acquittal.
Those cases do not purport to restrict the trial court's
authority to allow the prosecution to reopen its case-in-chief
before the defense presents its case. The trial court has broad
discretion to allow the prosecution to reopen. See, e.g., Miller
v. State, 462 P.2d 421, 428 (Alaska 1969). M. has shown no
abuse of that discretion here.
B. S.'s Convictions
1. First-Degree Assault
Count II charged S. with assault in the first degree
for recklessly causing serious physical injury to S.E.D. by means
of a dangerous instrument. AS 11.41.200(a)(1). Prosecution on
this count was based on the theory that S. had struck S.E.D. on
the mouth with a book or with his hand on repeated occasions over
a span of approximately two years. Individual blows resulted in
cuts to the underside of the child's lip; eventually, scar tissue
accumulated, causing S.E.D.'s lip to be permanently disfigured.
The state's theory was that the disfigurement amounted to a
serious physical injury. The state reasoned that, because S. had
actually inflicted serious physical injury on S.E.D., whatever he
had used to inflict the injury (whether a book or his hand)
qualified as a dangerous instrument. See AS 11.81.900(b)(11)
(defining dangerous instrument to include "anything which, under
the circumstances in which it is used . . . is capable of causing
death or serious physical injury[.]").
The state's evidence established that the disfigurement
to S.E.D.'s lip could not have resulted from a single incident of
assault. The state presented testimony indicating that the
deformation to S.E.D.'s lip resulted from multiple discrete
incidents (a minimum of twenty to thirty), each separated by
enough time to allow at least partial healing to occur.
The state's evidence, however, specifically established
only one incident involving a blow by S. to S.E.D.'s mouth. Even
the evidence relating to this incident was presented only in the
form of a prior inconsistent statement. At trial, S.E.D. could
not recall any occasion when S. struck her in the mouth. To
impeach S.E.D.'s testimony, the state called the assistant
district attorney who had handled S.'s case before the grand
jury. He testified that S.E.D. had told the grand jury that S.
once struck her in the mouth with a book, chipping or breaking
one of her front teeth. No details of the incident were related.
On appeal, in response to S.'s claim of insufficient
evidence, the state insists that the jury could reasonably have
found S. guilty of repeated assaults on S.E.D. even though only
one episode was specifically proven. The state submits that
jurors might have rejected S.E.D.'s out-of-court statement that
S. had struck her on only a single occasion. This contention,
however, seems problematic, for rejection of S.E.D.'s statement
that S. had struck her once would not in itself support a
conclusion that he struck her repeatedly; rejection of S.E.D.'s
claim would have left the trial record devoid of affirmative
evidence linking S. to the repeated series of blows to S.E.D.'s
mouth.
The state goes on to cite Garner v. State, 711 P.2d
1191, 1193 (Alaska App. 1986), for the proposition that the jury
could properly have relied on evidence of S.'s other abusive acts
toward his children in determining whether he was responsible for
repeatedly striking S.E.D.'s mouth. Again, the state's
contention is problematic. Garner does permit a jury in a
parental child abuse case to consider evidence of a defendant's
prior abusive conduct toward the defendant's children. However,
here, the state's evidence at trial strongly indicated that the
children had suffered repeated physical abuse at the hands of
both their parents. Under the circumstances, the evidence of
prior abuse afforded little basis for jurors to make a rational
decision as to whether S.E.D.'s injuries resulted from repeated
blows struck by M., S., or both.
Ultimately, however, we need not decide whether these
problems would in themselves require a judgment of acquittal. We
find a more fundamental problem here. In charging S. with
repeated assaults resulting in serious physical injury inflicted
by means of a dangerous instrument, the state necessarily
presupposes that numerous discrete nonaggravated assaults may
properly be grouped together into a single charge of aggravated
assault. The state presents no authority to support such a
theory, and all authority we have found points to a contrary
conclusion.
Assault is not typically regarded as a continuing
offense. See, e.g., Covington v. State, 703 P.2d 436, 440-41
(Alaska App. 1983) (citing State v. Petrich, 683 P.2d 173, 176-77
(Wash. 1984)). While multiple blows struck in the course of a
single, continuous criminal episode may be charged as one
assault, separate assaults occur -- and must be charged
separately -- when blows are struck at clearly separate times and
in clearly separate incidents, that is, when one blow is
separated from another by a change in purpose, a "fresh impulse,"
or a different provocation. See Gray v. United States, 544 A.2d
1255 (D.C. App. 1988). Compare, e.g., Owens v. United States,
497 A.2d 1086 (D.C. App. 1985), and Johnson v. United States, 398
A.2d 354 (D.C. 1979), with Glymph v. United States, 490 A.2d 1157
(D.C. App. 1985), and Shivers v. United States, 537 A.2d 258
(D.C. 1987).
Here, the repeated assaults charged in Count II were
interspersed over a period of approximately two years and clearly
constitute separate criminal episodes.3 Moreover, this is not an
instance in which a single charge encompasses several discrete
acts, each of which could independently support a finding of
guilt.4 Rather, Count II appears to encompass a series of fourth-
degree assaults, none of which could be deemed aggravated in
itself. The charge of assault in the first degree depends
entirely on the cumulation of the separate, non-aggravated
incidents -- both in terms of the seriousness of the injuries
inflicted on S.E.D. and in terms of D.'s use of a dangerous
instrument.
In the absence of an express statutory provision, we
are aware of no authority allowing cumulative harm resulting from
separate assaults to be aggregated for purposes of enhancing the
class of crime for which a defendant may be convicted.5
Similarly, although the extent of injury inflicted by an object
used in a single episode of assaultive conduct may be considered
in deter-mining whether that object amounted to a dangerous
instrument under AS 11.81.900(b)(11),6 we are aware of no
authority allowing injuries inflicted over the course of several
separate assaults to be cumulated for purposes of establishing
that those injuries resulted from the use of a dangerous
instrument.
While the evidence presented at trial in connection
with Count II was certainly sufficient to support S.'s conviction
for assault in the fourth degree, we conclude that it was
insufficient to support his conviction for assault in the first
degree. Even when viewed in the light most favorable to the
state, the evidence failed to provide a basis for concluding that
S. inflicted the alleged serious physical injury on S.E.D. by
means of a dangerous instrument on any single occasion. S.'s
conviction for first-degree assault must thus be vacated.
Because the jury's verdict convicting S. of first-degree assault
necessarily encompasses all the elements necessary to a finding
of guilt on the lesser-included offense of assault in the fourth
degree, the trial court may, on remand, enter a judgment against
S. for the lesser offense.
2. Second-Degree Assault
Counts III and IV charged S. with separate incidents of
assault in the second degree for intentionally causing physical
injury to S.D. and A.D. by means of a dangerous instrument. AS
11.41.210(a)(1). As to each case, the evidence showed that S.
beat his victim with a belt. Each child suffered extensive
bruising as a result of the beating; neither suffered serious
physical injury, and neither actually required medical treatment.
S. argues that, under the circumstances, the evidence
was insufficient to establish the use of a dangerous instrument.
As we have observed, AS 11.81.900(b)(11) defines "dangerous
instrument" to include "anything which, under the circumstances
in which it is used . . . is capable of causing death or serious
physical injury[.]" For purposes of this definition, an
instrument's capacity for causing death or serious physical
injury is not measured in the abstract; rather, the evidence must
establish that the instrument was used in a manner that "actually
created a substantial risk of death or serious physical injury."
Konrad v. State, 763 P.2d 1369, 1372 (Alaska App. 1988).
S.'s case presents a close question. S.'s use of a
belt on S.D. and A.D. did not result in serious physical injury
to either child, and the state presented no expert testimony to
establish that his conduct actually created a substantial risk of
death or serious physical injury. We nevertheless believe that
the evidence as a whole, when viewed in the light most favorable
to the state, could support the conclusion by a reasonable juror
that S.'s use of a belt posed a sufficient threat of serious
physical injury to amount to the use of a dangerous instrument.
S. was charged with assaulting his children not with
his bare hands, but with a foreign object -- a belt. The
instrument is one with which jurors may reasonably be expected to
be familiar. Detailed evidence was presented concerning the
nature, extent, and duration of the injuries that S. inflicted on
his victims with the belt. The jury was also able to observe the
relative size of S. and his victims. Thus, from the evidence
before it, the jury was capable of making its own determination
as to the manner in which S. used the belt against his children
and as to the degree of risk that the belt posed under the
circumstances.
S. does not complain that the trial court failed to
properly instruct the jury on the definition of a "dangerous
instrument" or on the need to find an actual risk of death or
serious physical injury before determining that an object
qualifies as a dangerous instrument. Under the circumstances, we
are satisfied that a reasonable juror, viewing the evidence at
trial in the light most favorable to the state, could conclude
beyond a reasonable doubt that S. assaulted S.D. and A.D. by
means of a dangerous instrument.
3. Interference with Official Proceedings
Count VI charged S. with interference with official
proceedings by threatening A.D. with intent to influence the
child's testimony. AS 11.56.510(a)(1). The incident occurred
when the police went to the D. home to investigate a report of
abuse. Upon contacting A.D., the police observed injuries that
appeared recently inflicted; they decided to remove A.D. from the
home.
As the police left with the child, S. pointed his
finger angrily at A.D. and yelled, "Remember the rule," in a
menacing tone. Testimony at trial indicated that "the rule" was
a term used in the D. household to remind the children that they
were not obligated to speak to authorities without one of their
parents present.
On appeal, S. insists that his reference to "the rule"
was in substance no more than a reminder to A.D. of A.D.'s right
to remain silent. S. reasons that, accordingly, he cannot
properly be deemed to have "threatened" A.D.
This argument, however, views the evidence in the light
most favorable to S., not the state. In determining whether S.
uttered a threat to A.D., the jury was not bound by the literal
meanings of the words he spoke. Rather, it could consider the
totality of the evidence, including testimony concerning the tone
and manner in which S. spoke the words and S.'s own admission
that he "enforced" the rule with his children.
Considering the entire record in the light most
favorable to the state, a reasonable juror could readily have
concluded that S.'s words were spoken as a threat intended to
deter A.D. from cooperating with the authorities. The trial
court did not err in denying S.'s motion for a judgment of
acquittal.
4. Assault in the Fourth Degree
S. was charged in Count XV with fourth-degree assault
for recklessly placing A.D. in fear of imminent physical injury.
AS 11.41.230(a)(3). The charge arose from an incident in which
neighbors heard A.D.'s voice begging S., "Daddy, please don't hit
me anymore." A.D.'s pleas were interrupted by loud thumps, which
sounded like a body hitting the floor. A.D. was nine years old
at the time.
S. argues that it would be speculative to conclude from
this evidence that he actually struck A.D. or that his conduct
was not justified as reasonable and appropriate discipline. See
AS 11.81.430(a)(1) (allowing parents to use "reasonable and
appropriate nondeadly force" on their children when "reasonably
necessary and appropriate to promote the welfare of the child").
To convict S. of fourth-degree assault, however, the state was
not required to prove that he actually struck A.D., only that he
recklessly placed the child in fear of imminent physical injury.
Furthermore, in considering whether S.'s conduct was justified as
appropriate parental discipline, the jury was entitled to rely on
the totality of the circumstances. Viewing the record in the
light most favorable to the state, we conclude that a reasonable
juror could find that the state met its burden of establishing
S.'s guilt beyond a reasonable doubt. The trial court did not
err in denying a judgment of acquittal.
S. also challenges the sufficiency of the evidence to
support his conviction on Count I, which alleged a fourth-degree
assault against S.E.D. occurring on or about January 25, 1983.
S. argues that the evidence did not establish that he was the one
who inflicted S.E.D.'s injuries. Viewing the evidence in the
light most favorable to the state, however, the jury could
reasonably have inferred that S. was responsible for the injuries
to S.E.D. See Garner v. State, 711 P.2d 1191, 1193 (Alaska App.
1986) (evidence of past acts of abuse by the defendant against a
child could properly be considered to establish defendant's guilt
as assailant in the offense charged). We find no error in the
denial of a judgment of acquittal on this count.
II. ADEQUACY OF INSTRUCTIONS ON CRIMINAL NONSUPPORT
M. complains that the trial court inadequately
instructed the jury on the elements of criminal nonsupport.
Specifically, M. claims that the trial court failed to advise the
jury of the need to find that she acted recklessly with regard to
her children's need for medical attention. Because M. did not
object to the instructions at trial, we must determine whether
her claim involves plain error. Alaska R. Crim. P. 47(b). A
plain error is an obvious one that results in substantial
prejudice. See, e.g., Potts v. State, 712 P.2d 385, 390 (Alaska
App. 1985); Carman v. State, 658 P.2d 131, 137 (Alaska App.
1983). Here, we find that plain error occurred.
In Taylor v. State, 710 P.2d 1019, 1022 (Alaska App.
1985), we construed Alaska's criminal nonsupport statute, AS
11.51.120, to require proof of knowing conduct -- that is, a
knowing failure to provide support -- coupled with recklessness
as to the need for support. In the context of the present case,
the state was thus required to prove not only that M. knowingly
failed to provide medical attention for her children, but also
that she recklessly disregarded the fact that such attention was
actually necessary.
The jury instructions specified only that M. was
required to have acted knowingly in failing to provide medical
attention. The instructions did not specify the need to find
recklessness with regard to the fact that the children actually
required medical attention.
In previous cases, we have found plain error when
instructions incorrectly informed a jury of the essential
elements of an offense. See, e.g., Reischman v. State, 746 P.2d
912, 915-16 (Alaska App. 1987). On the other hand, we have
declined to find reversible error when the trial record as a
whole established that incomplete jury instructions had no
significant influence on the jury's decision. See, e.g., Bowell
v. State, 728 P.2d 1220, 1224 (Alaska App. 1986); Reynolds v.
State, 664 P.2d 621, 627-28 (Alaska App. 1983). The state argues
that M.'s case falls into the latter category. According to the
state, in the absence of a specific instruction to the contrary,
the jury in all likelihood believed that it was required to find
that M. acted knowingly not only in failing to provide medical
attention to her children but also in recognizing that her
children actually required such attention.
The record does not bear out the state's assertion. As
to each of the criminal nonsupport charges, M. effectively
acknowledged that she had knowingly failed to take her child to a
physician. The principal issue was the extent to which her
decision to forego medical attention was justified. The evidence
on the issue was far from overwhelming.
As to two counts, it was undisputed that M.'s children
did not actually require any medical treatment. The primary
issue was whether, despite the lack of any need for treatment,
the children required a medical examination to rule out the need
for treatment. On that score, the only expert testimony
presented by the state indicated, as to one of the two children,
that a medical examination was "appropriate." As to the third
criminal nonsupport charge, evidence was presented to establish
that medical treatment for A.D.'s impetigo was actually
necessary. However, M. presented evidence in response indicating
that she had attempted to provide appropriate treatment on her
own, without a physician. The crucial issue was thus whether and
to what extent M. recognized her child's need for treatment by a
physician.
During both the opening and closing portions of its
final argument to the jury on the criminal nonsupport charges,
the prosecution emphasized that it was undisputed that M. had
failed to take her children to a physician. With regard to M.'s
awareness of her children's need for treatment by a physician,
the prosecution repeatedly asked the jury to consider whether a
"reasonable parent" or "reasonable person" would have sought
medical attention for her children under similar circumstances.
Given the state's emphasis on the reasonable parent standard and
the trial court's failure to instruct that M. was required to
have recklessly disregarded her children's need for medical
attention, there appears to us to be a substantial likelihood
that M.'s convictions for criminal nonsupport were in essence
based on a finding of civil negligence -- in other words, on the
jury's conclusion that M. did not adhere to the standard of a
reasonable parent in failing to recognize her children's need for
medical attention. Had the trial court properly instructed on
recklessness, the jury could not have found M. guilty for simply
failing to act as a reasonable parent would have under the same
circumstances; instead, it could have found guilt only upon
concluding that M. had actually been aware of and consciously
disregarded a substantial and unjustifiable risk that her
children required the attention of a physician.
We conclude that the failure to give an appropriate
instruction on the applicable mental state amounted to plain
error and requires M.'s convictions for criminal nonsupport to be
vacated.
S. was also convicted of one count of criminal
nonsupport, based on the allegation that he failed to secure
medical treatment for A.D.'s impetigo. On appeal, S. has joined
in M.'s challenge to the adequacy of the instructions on the
offense. At trial, S.'s theory of defense was that he reasonably
relied on M.'s efforts to treat A.D.'s impetigo herself. Under
the circumstances, we find no basis for distinguishing S.'s
situation from M.'s and conclude that reversal of S.'s criminal
nonsupport conviction is also required.
III. OTHER ISSUES
M. and S. raise a number of other claims that we find
to be without merit. They first contend that their charges
should have been dismissed for preindictment delay. M. and S.
argue that, given the length of the delay in their case, they
should be excused from proving prejudice. Alternatively, they
contend that they suffered prejudice because their witnesses'
memories and effectiveness faded. These arguments are foreclosed
by our recent decision in State v. Mouser, 806 P.2d 330 (Alaska
App. 1991), which is controlling here.
M. and S. next contend that their indictment should
have been dismissed because inadmissible evidence was presented
to the grand jury. The only conceivable prejudice stemming from
any flaws in the grand jury hearing, however, relates to S.'s
felony charges, since the state was entitled to proceed on all
misdemeanor charges against M. and S. without any indictment at
all. We have separately determined that the evidence at trial
was insufficient to support S.'s conviction for assault in the
first degree. We thus consider the present issue only as it
relates to the remaining three felony counts against S.
As to those counts, our review of the record satisfies
us that, even when all arguably improper evidence is excised,
ample evidence remained to support the indictment. We further
find no basis for concluding that the arguably improper evidence
appreciably affected the grand jury's decision. See Panther v.
State, 780 P.2d 386 (Alaska App. 1989). Accordingly, we conclude
that the superior court did not err in denying M. and S.'s motion
to dismiss their indictment.
The D.'s further contend that the superior court erred
in refusing to suppress as involuntary various statements they
made to social workers during preindictment child-in-need-of-aid
proceedings relating to their children. We assume for purposes
of this decision that the purported conduct of Division of Family
and Youth Services (DFYS) personnel would qualify as "coercive
police activity" within the meaning of Colorado v. Connelly, 479
U.S. 157 (1986); see also Macauly v. State, 734 P.2d 1020, 1023
n.2 (Alaska App. 1987). Here, the superior court expressly found
that DFYS workers made no overt threats to remove M. and S.'s
children from their home or to terminate their parental rights if
M. and S. did not confess to their abuse of the children. The
superior court further expressly found that the D'.s were at all
times cognizant of the risk associated with making any
potentially incriminating statements to DFYS workers. These
findings are not clearly erroneous. In fact, it appears from the
record that, throughout the course of their dealings with DFYS
personnel, the D.'s were quite circumspect with regard to the
disclosure of any potentially incriminatory information.
Having independently considered the totality of the
circumstances in light of the superior court's factual findings,
we conclude that statements made by the D.'s to DFYS workers were
not involuntary.7
CONCLUSION
In summary, S.'s conviction for assault in the first
degree must be VACATED. A judgment for the lesser-included
offense of assault in the fourth degree may be substituted
therefor. On remand, a hearing will be necessary for imposition
of a sentence for that offense. S.'s and M.'s convictions for
criminal nonsupport must be vacated. Since we have found that
sufficient evidence was presented on those charges to withstand a
motion for a judgment of acquittal, the state will not be
precluded from seeking a retrial on remand. In all other
respects, the convictions are affirmed.8
AFFIRMED in part and REVERSED in part.
_______________________________
*Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
1. M. was convicted of three counts of assault in the
fourth degree and three counts of criminal nonsupport. She
received a composite term of three and one-half years, with two
years suspended. S. was convicted of one count of assault in the
first degree, two counts of assault in the second degree, three
counts of assault in the fourth degree, one count of interference
with official proceedings, and one count of criminal nonsupport.
He received a composite term of eighteen years.
2. M. does not challenge the sufficiency of the evidence
with respect to her fourth-degree assault conviction on Count
XII.
3. The state neither alleged nor proved a common scheme or
plan uniting the repeated assaults into a single continuing
criminal episode. We express no opinion as to the propriety of
aggregating assaultive acts occurring over a lengthy period of
time when the individual acts are alleged and shown to be part of
an overall criminal scheme or plan which spans the entire
duration and involves a single, discernible criminal purpose.
4. In such cases, the only significant concern relates to
jury unanimity, a problem that can be addressed by an appropriate
jury instruction, and one that becomes inconsequential when the
circumstances of the case provide adequate assurances of
unanimity. See Covington v. State, 747 P.2d 550 (Alaska App.
1987).
5. In contrast, for property crimes, the legislature has
expressly authorized aggregation of individual pieces of property
for purposes of determining the value of property involved in an
offense. See AS 11.46.980. Even so, this authorization appears
to extend only to individual items involved in a single criminal
episode and would not appear to allow aggregation of property
involved in separate property offenses.
6. See Konrad v. State, 763 P.2d 1369 (Alaska App. 1988)
(indicating that serious physical injury resulting from an
episode of assault may be considered prima facie evidence, under
AS 11.81.900(b)(11), that the defendant committed the assault by
means of a dangerous instrument).
7. This case is readily distinguishable from Webb v.
State, 756 P.2d 293 (Alaska 1988), which the D.'s liken to their
own situation. Here, no statement was ever demanded of the D.'s
as a quid pro quo for custody of their children. Furthermore, no
illegal seizures or detentions were involved.
8. Our disposition makes it unnecessary to consider the
parties' sentencing arguments at this time.
