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THE COURT OF APPEALS OF THE STATE OF ALASKA
LESLIE L. SIMPSON, JR., )
) Court of Appeals No. A-4507
Appellant, ) Trial Court No. 3AN-S91-
4606CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
) [No. 1364 - August 5, 1994]
Appellee. )
________________________________)
Appeal from the Superior Court, Third
Judicial District, Anchorage, Milton M.
Souter, Judge.
Appearances: Sidney K. Billingslea,
Assistant Public Defender, and John B.
Salemi, Public Defender, Anchorage, for
Appellant. Eric A. Johnson, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Charles E. Cole, Attorney General, Juneau,
for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
A jury convicted Leslie L. Simpson of first-degree
murder for beating his wife, J.S., to death. Superior Court
Judge Milton M. Souter sentenced Simpson to eighty-five years in
prison. Simpson appeals, contending that the evidence was
insufficient to support his conviction and that his sentence is
excessive.
Over a period of several hours during the evening of
June 30, 1991, Simpson -- 6' 2" tall and weighing at least 260
pounds -- savagely beat and kicked 4' 10", 160-pound J.S.,
repeatedly shouting threats such as, "I'm going to kill you, you
stupid bitch." Neighbors who heard the assault gathered in the
area of Simpson's driveway. They heard J.S. beg Simpson for
mercy. During a pause in his assault, Simpson exited his home
and angrily told a neighbor about "[J.S.] spending his $135 and
he's not going to put up with it anymore, he's going to kill her
and he can't ... put up with it any longer." Neighbors
eventually reported the incident. Police officers who responded
to the call forced their way into Simpson's home after Simpson
refused them admission. They found J.S. in the bedroom,
unconscious, moaning, and severely bruised.
J.S. was transported to a hospital. Upon admission,
she was found to have "innumerable [bruises]. Too many to
count." The bruises covered her face, head, chest, abdomen, both
lower legs, and both arms. The injuries J.S. suffered included
multiple blunt force injuries, which "required a relatively large
degree of force [such as] a kick, a blow with the knee or a fist
swung as hard as possible." J.S.'s neck was fractured, she
appeared to have fractured facial bones, her eyelids were swollen
shut, and she had blood in her nose, mouth, and ears.
J.S.'s pancreas had been torn in half by a blow
sufficiently forceful "to get through the abdominal wall and all
the muscles and all the organs." J.S. also suffered a pulmonary
contusion and had many fractured ribs, some broken in two places.
According to the treating physician, the bruises to J.S.'s ribs
and lungs "required a significant amount of force, enough force
to inflict the bruise, break the blood vessels in your skin,
break the ribs and then also still have enough force to cause a
bruise inside of your chest." In addition, J.S. had a partial
tear in her large intestine, and a bruised bowel.
Without medical intervention, J.S. would have died of
her injuries "fairly quickly." After spending two weeks
hospitalized under intensive care, J.S. died of respiratory
distress syndrome, a condition brought on by her injuries.
Simpson was charged with her murder.
At trial, Simpson acknowledged having argued with J.S.
and admitted that he had slapped and kicked her several times,
but denied any intent to kill her. He claimed that he was
unaware of the severity of her injuries. He further testified
that both he and J.S. had been drinking throughout the day and,
together, had consumed almost three cases of beer; according to
Simpson, he had drunk most of the beer himself and, in addition,
had drunk a pint of whiskey. Simpson's theory of defense was
that he never intended to kill J.S. and that, due to his
consumption of alcohol, he lacked capacity to form intent.
On appeal, Simpson challenges the sufficiency of the
evidence to establish that he formed or was capable of forming
specific intent to kill J.S. To establish whether sufficient
evidence was presented to support a conviction, we view the
evidence in the light most favorable to the state and inquire
whether reasonable jurors could conclude that the accused's guilt
was established beyond a reasonable doubt. Odom v. State, 798
P.2d 353, 354-55 (Alaska App. 1990). Evidence of intent is
seldom established through direct evidence; the state may prove
this element through circumstantial evidence. Gray v. State, 463
P.2d 897, 905 (Alaska 1970).
Here, the state presented both direct and
circumstantial evidence of specific intent. Simpson's repeated,
unambiguous and unqualified declarations of his intent to kill
J.S. provided direct and compelling evidence on the issue. The
nature and extent of J.S.'s injuries, coupled with the totality
of the circumstances surrounding their infliction, provided an
abundant source from which the jury could infer that Simpson
intended to do precisely what he did. See generally 2 Wayne R.
LaFave & Austin W. Scott, Jr., Substantive Criminal Law 7.2(b),
at 195 (1986) ("in appropriate cases, generally involving big men
attacking small, frail men or women or children, and generally
involving the repeated use of hands and feet, an inference of an
intent to kill may properly be drawn").
Nor does the uncontroverted evidence of Simpson's
drinking afford a basis for questioning the sufficiency of the
evidence on the issue of intent. Issues of credibility are for
the jury. Anthony v. State, 521 P.2d 486, 492 (Alaska 1974)
(holding that "[t]he assessment of witness credibility is
exclusively within the province of the jury"); Brown v.
Anchorage, 680 P.2d 100, 104 (Alaska App. 1984) (holding that
"[c]redibility choices and the weighing of evidence are within
the province of the trier of fact"). Here, the jury was free to
discredit or downplay Simpson's self-serving claims concerning
the amounts of alcohol he had consumed. Ample evidence was
presented, including the testimony of neighbors and investigating
officers, to warrant the conclusion that Simpson was in control
of his faculties.1
Viewing the totality of the evidence in the light most
favorable to the state, reasonable jurors could properly have
concluded that Simpson's intent to kill J.S. had been established
beyond a reasonable doubt.
Simpson also contends that his sentence is excessive.
First-degree murder is an unclassified felony punishable by a
maximum term of ninety-nine years and by a minimum of twenty. AS
11.41.100; AS 12.55.125. Judge Souter sentenced Simpson to
eighty-five years, characterizing his crime as "an incredibly
brutal murder." Simpson nevertheless describes his conduct as
verging on the lesser offense of second-degree murder and urges
us to declare that a sentence approximating the twenty- to thirty-
year benchmark range for the lesser offense2 would have been
appropriate.
The validity of Simpson's argument, however, hinges on
his characterization of his conduct as resembling second-degree
murder, a characterization rejected by the jury and the
sentencing court alike. When an assault victim's death results
from the wanton or reckless acts of the assailant, the
assailant's conduct amounts to second-degree murder or
manslaughter. See AS 11.41.110. Such cases are not unusual,
and, since these forms of homicide, by definition, involve force
that was not intended to be deadly, they are typically committed
without the use of deadly weapons; they commonly involve beat
ings. But the mere fact that perpetrators of fatal beatings are
often deemed to have committed second-degree murder or
manslaughter hardly justifies the conclusion that Simpson's
murder of J.S. more closely resembles second-degree murder than
first-degree.
For Simpson's case is hardly typical. Unlike the
typical assailant in a beating death, Simpson acted with specific
intent. He was convicted by the jury and sentenced by Judge
Souter not for reckless or wanton conduct but for the intentional
killing of J.S. The record amply supports the conclusion that he
committed a callous and deliberate homicide. Simpson's choice
of weapon does not make his crime a second-degree murder. If
there is any significance to be found, for sentencing purposes,
in the particular method Simpson selected for murdering J.S. --
his willingness, unmoved by repeated entreaties for mercy, to
kill J.S. by means of a prolonged and unrelenting attack with his
hands and feet -- that significance lies in the remarkable
brutality of Simpson's conduct and in the persistence Simpson
displayed in achieving his criminal objective, factors favoring
aggravated, not mitigated treatment.
Although Simpson is a first felony offender, his
criminal history encompasses at least eight misdemeanor
convictions, including three prior assaults. All three prior
assault convictions were for domestic assaults, the most recent
of which occurred within several months of the murder in this
case and involved J.S. as the victim. On at least two prior
occasions, Simpson's probation for these offenses was revoked as
a result of his failure to participate in court-ordered
rehabilitation programs.
Having independently reviewed the entire sentencing
record, we conclude that the sentence imposed below was not
clearly mistaken. McClain v. State, 519 P.2d 811, 813-14 (Alaska
1974).
The conviction and sentence are AFFIRMED.
_______________________________
1. Moreover, Simpson's argument regarding the effects of
alcohol consumption relies on a misreading of the record.
Simpson presented no evidence on this issue but points to
testimony of an expert presented by the state, who indicated that
the amount of alcohol Simpson claims to have consumed was eight
times the necessary quantity to achieve a .10 alcohol level, the
level at which a person becomes "significantly impaired."
Simpson omits, however, the rest of the expert's sentence, which
states that at .10 a "person is significantly impaired for
operating motor vehicles or other complex machinery." (Emphasis
added). The expert went on to say that intoxicated persons are
capable of making conscious decisions, that an individual's
ability to make decisions or form intent would be impaired "at or
near that level where people pass out, .350," and that a person
who consumes numerous drinks over a period of time but is capable
of walking and communicating with others is capable of forming
intent.
2. See, e.g., State v. Krieger, 731 P.2d 592, 595 (Alaska
App. 1987).
