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Tipikin v. Municipality of Anchorage (3/14/2003) ap-1858
Tipikin v. Municipality of Anchorage (3/14/2003) ap-1858
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts.
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
SERGEY TIPIKIN, ) Court of
Appeals No. A-7881
) Trial Court Nos. 3AN-M99-
7673 CR
Appellant, )
3AN-M98-0813 CR
)
3AN-M98-4490 CR.
)
v. )
O P I N I O N
)
MUNICIPALITY OF ANCHORAGE, )
)
Appellee. )
[No. 1858 - March 14, 2003]
)
Appeal from the District Court, Third Judi
cial District, Anchorage, Peter Ashman,
Judge.
Appearances: James V. Gould, Gorton & Logue,
Anchorage, for Appellant. Joseph D.
OConnell, Assistant Municipal Prosecutor,
Anchorage, and William A. Greene, Municipal
Attorney, Anchorage, for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge.
Sergey Tipikin was convicted of assaulting his
stepdaughter, H.T., by slapping her across the face. He also was
convicted of disorderly conduct for fighting with his wife, L.T.,
and of violating probation in two cases. Tipikin was sentenced
to 730 days to serve for these offenses. He argues that there
was insufficient evidence for the jury to convict him of
assaulting H.T. He also argues that his sentence is excessive.
Having reviewed the record, we conclude that there was
sufficient evidence for a fair-minded jury to find that Tipikin
assaulted H.T. Furthermore, Tipikins composite sentence was not
clearly mistaken given his ongoing pattern of domestic violence
and his poor prospects for rehabilitation. We therefore affirm
Tipikins conviction and sentence.
Facts and proceedings
Tipikin was charged with assaulting his wife, L.T., his
stepdaughter, H.T., and his son, S.T., Jr., on May 13, 1999, in
the familys Anchorage apartment. The jury convicted Tipikin of
assaulting H.T. by slapping her across the face,1 but acquitted
him of the other assault charges. For his conduct involving
L.T., the jury convicted Tipikin of the lesser-included offense
of disorderly conduct.2 District Court Judge Peter Ashman
sentenced Tipikin to 1 year to serve for these two offenses: the
maximum 6-month sentence for disorderly conduct, and 6 months out
of a possible 1-year sentence for assault. The court also found
that Tipikin had violated probation in two separate cases and
imposed 370 days of suspended time. Tipikin thus received a
total sentence of 730 days.
Discussion
Was there sufficient evidence for the jury to
convict Tipikin of assaulting his
stepdaughter?
Tipikin argues that there was insufficient evidence to
convict him of assaulting his stepdaughter, H.T. He concedes
that he slapped H.T. but argues that his conduct was authorized
under AS 11.81.430(a)(1) because the slap was reasonably
necessary and appropriate to promote the welfare of the child. .
. .3
To determine if there is sufficient evidence to support
the jurys verdict, we must decide whether there was enough
relevant evidence for a fair-minded juror exercising reasonable
judgment to find that the Municipality met its burden of proving
guilt beyond a reasonable doubt.4 In reaching this decision, we
view the evidence and the inferences to be drawn from that
evidence in the light most favorable to upholding the verdict.5
On the day of the assault, twelve-year-old H.T. had two
friends, E.M. and A.S., over for a sleepover. While the girls
were having a pillow fight in one of the bedrooms, they
accidentally knocked Tipikins eighteen-month-old son, S.T., Jr.,
off the bed, giving him a bloody nose. L.T., H.T.s mother,
testified that this incident prompted Tipikin to smack H.T. on
the back of the head to discipline her for being irresponsible
with the baby. But H.T.s girlfriends testified that the assault
occurred later and had nothing to do with this incident. A.S.
testified that after Tipikin came out of the bathroom, he slapped
H.T. across the face really hard . . . because we were being too
loud, I guess. E.M. was in the living room but testified that
she heard the smack and saw H.T. run down the hall crying and
covering her reddened face. E.M. said A.S. and H.T. told her
Tipikin had hit H.T. Tipikin testified that he slapped H.T.
outside the bathroom because she was rude and refused to listen.
However, all the witnesses testified that Tipikin and L.T. had
been fighting and pushing all night. L.T. testified that it was
just basically a whole night of arguing and yelling and ugly
words said and it was . . . really [a] bad argument.
Tipikin argued to the jury that as a stepparent he was
justified in slapping H.T. to discipline her for talking back.
The prosecutor countered that Tipikin had no authority to use
force to discipline H.T. because L.T., H.T.s natural parent, had
never given him that authority. The prosecutor also argued that
Tipikin had slapped H.T. not to discipline her, but because he
was angry. The court left resolution of these issues to the
jury, instructing the jurors that a parent, guardian, or other
person entrusted with the care and supervision of a child may use
reasonable and appropriate force to the extent reasonably
necessary and appropriate to promote the welfare of the child.6
The jury rejected Tipikins justification defense and
convicted him of assault. Having reviewed the record, we
conclude that there was enough relevant evidence for a fair-
minded juror to reasonably find that Tipikin slapped H.T., not
because doing so was reasonably necessary and appropriate to
promote her welfare, but because he was angry. For this reason,
we affirm the jurys verdict.
As Tipikin points out, the jury might have convicted
him because it believed (as the prosecutor argued) that he had no
authority to use force to discipline H.T. because H.T.s mother
had never given him that authority. Tipikin asserts, without
argument or authority, that this interpretation of the statute is
wrong. Moreover, he suggests that the jury must have convicted
him based on this faulty interpretation because a reasonable jury
could not have concluded that he was unjustified in slapping H.T.
unless it found he had no authority to use reasonable and
appropriate force to discipline the child.
But Tipikin never asked the district court to rule on
this legal issue; nor did he object below to L.T.s testimony, the
prosecutors argument, or the courts jury instruction.7 In
addition, Tipikin has not briefed this claim on appeal.8 We
therefore do not decide whether, as Tipikin asserts, a stepparent
has independent authority under AS 11.81.430(a)(1) to use
reasonable and appropriate force to discipline a stepchild when
that authority has not been delegated by the childs natural
parent or legal guardian.
Is Tipikins sentence excessive?
As noted above, Judge Ashman sentenced Tipikin to 730
days to serve for fourth-degree assault, disorderly conduct, and
two violations of probation. Tipikin challenges these individual
sentences and his composite sentence. However, when reviewing a
composite sentence imposed for two or more criminal convictions,
we assess only whether the combined sentence is clearly mistaken
given the whole of the defendants conduct and history.9 In
doing so, we do not require that a specific sentence for a
particular offense be individually justifiable as if that one
crime were considered in isolation.10
Before imposing sentence, Judge Ashman reviewed
Tipikins history of domestic violence, the conduct underlying his
current offenses, and his repeated failures at rehabilitation.
Tipikin had been convicted of assaulting L.T. twice in 1998 and
again in 2000 (after the 1999 convictions in this case). He also
had convictions dating back to 1987 for harassing communication,
driving while intoxicated, negligent driving, furnishing liquor
to a minor, and minor consuming alcohol. Judge Ashman found that
L.T. clearly had minimized Tipikins violence when she testified
about the current offenses. Moreover, the offenses occurred in
front of the couples eighteen-month-old son, L.T.s twelve-year-
old daughter, and the daughters two friends.
Judge Ashman found, based on Tipikins pattern of
domestic violence, his failure at counseling, and his testimony
at trial which revealed his arrogance, his lack of insight,
[and] self-centeredness that Tipikin had no intention of taking
responsibility for his actions or of changing his violent
behavior toward women and children. He noted that Tipikin in his
testimony had offered the classic batterers justification for
slapping H.T.: she had challenged his authority. He concluded
that the Chaney11 criteria of rehabilitation and individual
deterrence were not important sentencing goals in Tipikins case
and, instead, emphasized the need to reaffirm societal norms and
isolate Tipikin from his victims. We conclude that Judge Ashmans
findings are supported by the record and that the composite
sentence he imposed for Tipikins four offenses was not clearly
mistaken.12
Conclusion
Tipikins conviction and sentence are AFFIRMED.
_______________________________
1 Anchorage Municipal Code (AMC) 8.10.010(B)(1).
2 AMC 8.30.120(A)(6).
3 AS 11.81.430 provides in relevant part:
(a) The use of force upon another person that
would otherwise constitute an offense is justified
under any of the following circumstances:
(1) When and to the extent reasonably
necessary and appropriate to promote the
welfare of the child or incompetent person, a
parent, guardian, or other person entrusted
with the care and supervision of a child
under 18 years of age or an incompetent
person may use reasonable and appropriate
nondeadly force upon that child or
incompetent person.
4 Collins v. State, 977 P.2d 741, 747 (Alaska App. 1999).
5 Shafer v. State, 456 P.2d 466, 469 (Alaska 1969).
6 Jury Instruction No. 15 provided:
The use of force upon another person that would
otherwise constitute an offense is justified when
and to the extent reasonably necessary and
appropriate to promote the welfare of the child, a
parent, guardian, or other person entrusted with
the care and supervision of a child under 18 years
of age may use reasonable and appropriate
nondeadly force upon that child.
Therefore, unless the Municipality has proven
beyond a reasonable doubt that the defendant did
not act in these circumstances, you shall find the
defendant not guilty.
7 See R.M. v. S.G., 13 P.3d 747, 752 (Alaska 2000) (holding
that the defendant waived a claim by not objecting below).
8 See State v. ONeill Investigations, Inc., 609 P.2d 520,
528 (Alaska 1980) (noting that failure to argue a point
constitutes an abandonment of it).
9 Brown v. State, 12 P.3d 201, 210 (Alaska App. 2000);
Comegys v. State, 747 P.2d 554, 558-59 (Alaska App. 1987).
10 Waters v. State, 483 P.2d 199, 202 (Alaska 1971); Jones
v. State, 765 P.2d 107, 109 (Alaska App. 1988); Comegys, 747 P.2d
at 558-59.
11 State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970).
12 See McClain v. State, 519 P.2d 811, 813-14 (Alaska
1974).
