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McGee v. State (07/30/2004) ap-1942
McGee v. State (07/30/2004) ap-1942
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:
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
CHRISTIAN C. McGEE, )
) Court of Appeals No.
A-8452
Appellant, )
Trial Court No. 3VA-01-229 Cr
)
v. )
) O P I N
I O N
STATE OF ALASKA, )
)
Appellee. )
[No. 1942 July 30, 2004]
)
Appeal from the Superior Court, Third Judi
cial District, Valdez, Joel H. Bolger, Judge.
Appearances: Colleen A. Libbey, Libbey Law
Office, Anchorage, for the Appellant. John
A. Scukanec, Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and Gregg D. Renkes, Attorney
General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
Christian C. McGee appeals his conviction for third-
degree criminal mischief (damaging someone elses property in an
amount of $500 or more).1 McGee contends that this charge should
have been dismissed with prejudice because he was not brought to
trial within the time limits of Alaska Criminal Rule 45 (our
speedy trial rule). McGee further contends that his trial judge
committed error by refusing to instruct the jury on the defense
of self-defense.
In addition, McGee challenges his sentence both on the
ground that it is excessive and on the ground that the judge
made erroneous rulings on four proposed mitigating factors.
For the reasons explained here, we affirm McGees
conviction and his sentence.
McGees proposed defense of self-defense
On the evening of October 27-28, 2001, McGees
mother, Donna McGee, went to the Elks Lodge to
socialize. There she met Wesley Alexander. Ms. McGee
brought Alexander home to her trailer, where the two of
them engaged in sexual relations.
Around two oclock that morning, McGee came to
the trailer and pounded on the door. Once inside the
trailer, McGee punched his mother in the face and
called her a whore. Then McGee and Alexander began
fighting. According to both Alexanders and McGees
testimony, Alexander had McGee in a headlock, but McGee
was able to slip loose and leave the trailer.
McGee testified that, as he was leaving the
trailer, Alexander (who was still naked, according to
McGee) told McGee that he was going to run [his] punk
ass over. Alexander then remained in the trailer and
telephoned the police. While Alexander was doing this,
McGee went outside to where Alexanders truck was
parked. McGee circled the vehicle and, using a shovel,
proceeded to break all of the trucks windows one by
one. McGee claimed that he did this in order to
prevent Alexander from using the truck to run him over.
The State claimed that McGee did this because he was
angry at his mother and at Alexander.
McGees attorney asked the trial judge,
District Court Judge Joel H. Bolger (sitting pro
tempore in the superior court), to instruct the jury
that McGees destruction of the truck windows was
potentially justifiable as an act of self-defense under
AS 11.81.330(a) (use of non-deadly force in defense of
self). But Judge Bolger concluded that McGee had not
presented a prima facie case of self-defense with
respect to this charge. The judge suggested that McGee
may not have met the requirement of reasonably fearing
imminent danger. However, the judge ultimately ruled
that, because the self-defense statute refers to the
use of force upon another (i.e., upon a person), it
would be improper to instruct the jury on self-defense
with regard to the criminal mischief charge.
McGee was also being tried on charges of
assault for hitting his mother and for hitting
Alexander. Judge Bolger instructed the jury on self-
defense with respect to the assault charge involving
Alexander. The jury acquitted McGee of the assault
charge involving Alexander, and they were unable to
reach a verdict with regard to the assault charge
involving McGees mother. That latter charge was
ultimately dismissed.
Even though Judge Bolger refused to instruct
the jury that McGees act of breaking the truck windows
was potentially justifiable as self-defense, the judge
did instruct the jury that McGees actions were
potentially justifiable under the defense of necessity,
AS 11.81.320(a). McGee argued this theory to the jury
(unsuccessfully).
On appeal, McGee contends that the trial
judge should have instructed the jury on self-defense
with regard to the criminal mischief charge. McGees
first hurdle is that the self-defense statute, AS
11.81.330(a), apparently only applies when a defendant
uses force against another person, not when a defendant
uses force against an object. The statute reads (with
emphasis added):
A person may use nondeadly force upon
another when and to the extent [that] the
person reasonably believes [that this use of
force] is necessary for self defense against
what the person reasonably believes to be the
use of unlawful force by the other[.]
A few cases from other
jurisdictions have been willing to recognize
self-defense as a potential justification for
non-assaultive crimes (e.g., theft of a car
to escape an imminent assault, or damage to
property that results from the defendants use
of defensive force upon a person), but the
traditional view is that necessity is the
applicable theory of defense in such
circumstances. See Wayne R. LaFave,
Substantive Criminal Law (2nd ed. 2003),
10.4(a), Vol. 2, p. 143, n. 2.
We leave resolution of this issue
for another day because we conclude that,
even if self-defense is a potential defense
to a charge of criminal mischief, the
evidence in McGees case failed to establish
any reason to believe that McGee faced an
imminent threat of injury.
A self-defense instruction is
proper if there is some evidence to support a
finding in the defendants favor on each
element of self-defense.2 One of the
elements of self-defense is that the
defendant reasonably perceived a threat of
imminent injury.3
Here, even when we view the
evidence in the light most favorable to
McGees request for a self-defense
instruction, McGee could not reasonably have
believed that he faced imminent attack.
According to McGee, Alexander threatened to
run him over with his truck. But Alexander
had no obvious means of carrying out this
threat unless and until he left the trailer
and got into his vehicle. And there was no
evidence that Alexander made any move to
leave the trailer, or that Alexander did
anything else to put this purported threat in
motion. (Instead, it was McGee who left the
trailer, went to the truck, and then
proceeded to break the windows one by one.)
On this record, the trial judge did
not commit error when he declined to instruct
the jury on self-defense with regard to the
charge of criminal mischief.
McGees speedy trial claim
McGees trial was delayed several times
because the State had trouble locating Alexander
and procuring his presence. McGees attorney
objected to some of these continuances, arguing
that the extra time should count against the State
under Alaskas speedy trial rule, Criminal Rule 45.
But when the judge refused to count the time
against the State, McGee went along with the
continuances. He never filed a motion to dismiss
the charges against him under Rule 45.
Now, on appeal, McGee challenges the trial
courts rulings on these continuances. He argues
that the time should have been counted against the
State, and that therefore the time for holding his
trial expired before his trial began.
But McGees failure to ask the trial court to
dismiss the charges is fatal to his claim on
appeal. Criminal Rule 45(f) states that the
[f]ailure of a defendant represented by counsel to
move for dismissal of the charges under [this
rule] prior to [the defendants] plea of guilty or
[the defendants] trial shall constitute [a] waiver
of the defendants rights under this rule.
Because McGee went to trial and never sought
dismissal of the charges under Rule 45, he is not
entitled to seek dismissal of those charges now.
McGees sentencing arguments
McGee was a second felony offender for
presumptive sentencing purposes. He had been convicted
of second-degree assault in 2000. In that prior
offense, McGee and four other men beat up and robbed a
hitchhiker that they had picked up on the way from
Valdez to the Talkeetna Bluegrass Festival. At the end
of the robbery, the hitchhiker was thrown down a steep
embankment near the highway.
As a second felony offender, McGee faced a 2-
year presumptive term for the class C felony of third-
degree criminal mischief.4 Judge Bolger found that the
State had proved one aggravating factor:
AS 12.55.155(c)(20) that McGee was on felony probation
at the time he committed the current offense. Based on
this aggravating factor, Judge Bolger increased McGees
presumptive term by 6 months; he sentenced McGee to
2 years imprisonment.
McGee proposed four different mitigating
factors under AS 12.55.155(d) at his sentencing, and
Judge Bolger rejected each of these mitigators. On
appeal, McGee argues that Judge Bolger was mistaken in
these rulings. To prevail on appeal, McGee must show
that the judges rulings were clearly erroneous.5
McGee proposed mitigator (d)(3) that he
committed the offense under some degree of duress,
coercion, threat, or compulsion ... which significantly
affected [his] conduct. McGee argued that his
destruction of the truck windows was provoked by
Alexanders threat to run him over.
However, Judge Bolger rejected this assertion
about McGees motivation for committing the crime.
Based on the evidence presented at McGees trial, Judge
Bolger concluded that McGee broke the windows of
Alexanders truck because he was enraged at Alexander
for having sexual relations with his mother. This
conclusion finds support in the record. For this
reason, Judge Bolgers rejection of the proposed
mitigating factor was not clearly erroneous.
McGee also proposed mitigating factor (d)(7),
which required proof that his conduct was provoked by
Alexander. However, as we have just explained, Judge
Bolger found that McGees conduct was motivated by his
anger at discovering that Alexander had slept with his
mother. Alexanders act of sexual relations with McGees
mother was not provocation within the meaning of
mitigator (d)(7) because this conduct was not directed
at McGee. As we explained in Roark v. State, 758 P.2d
644 (Alaska App. 1988),
In common usage, to provoke means: 1. to
excite to some action or feeling 2. to
anger, irritate, or annoy 3. to stir up
(action or feeling) 4. to call forth; evoke.
Websters New World Dictionary (2nd College
ed. 1980). This definition plainly suggests
something more direct and purposive than a
mere causal link between the person who
provokes a response and the action or feeling
that is provoked. When the victim directs
actions or words at the defendant for the
express purpose of eliciting a response, it
is clear that the defendant may be said to
have been provoked. When the victims conduct
is neither directed at the defendant nor
intended to influence the defendants actions
or emotions, however, the mere fact that it
has the incidental effect of prompting the
defendant to react, thereby contributing in a
causal sense to the commission of the crime,
would not in itself justify a finding of
provocation.
Id. at 647.
McGee proposed mitigator (d)(4),
which applies when the conduct of a youthful
defendant was substantially influenced by
another person more mature than the
defendant. McGee argued that he had been
provoked to commit his crime by the actions
of his mother (to wit, her decision to engage
in sexual relations with Alexander). But
mitigator (d)(4) applies to situations in
which a more mature person solicits or
otherwise prevails on a youthful, less mature
defendant to engage in criminal behavior.
This mitigator does not apply to the facts of
McGees case.
Finally, McGee proposed mitigator
(d)(9) that his conduct was among the least
serious included within the definition of
third-degree criminal mischief. McGee argued
that his destruction of the truck windows was
a spur-of-the-moment reaction to a disturbing
situation, and he also pointed out that the
value of the destroyed property
(approximately $2100) was at the lower end of
the range for his offense ($500 to $100,000).
Judge Bolger acknowledged that the
amount of damage was toward the lower end of
the statutory range, but he also concluded
that McGee had acted intentionally, angered
when he discovered that his mother was
sleeping with a man whom he did not know.
The judge found that McGee had not shown, by
clear and convincing evidence, that this
conduct was among the least serious within
the definition of the offense. We conclude
that the judges finding is not clearly
erroneous.
McGees final argument on appeal is
that Judge Bolger was clearly mistaken in
increasing McGees time to serve from the
presumptive term of 2 years imprisonment to
an enhanced term of 2 years imprisonment.
Judge Bolger imposed this additional 6 months
based on the aggravating factor that McGee
was on felony probation at the time of this
offense, and based on the serious nature of
McGees prior felony assault conviction.
Having independently reviewed the record, we
conclude that Judge Bolger was not clearly
mistaken in adding six months to McGees
presumptive term.6
Conclusion
The judgement of the district court is
AFFIRMED.
_______________________________
1 AS 11.46.482(a)(1).
2 Ha v. State, 892 P.2d 184, 190 (Alaska App. 1995).
3 Id. at 190-91.
4 AS 12.55.125(e)(1).
5 See Lepley v. State, 807 P.2d 1095, 1099 n.1 (Alaska App.
1991).
6 See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974)
(an appellate court is to affirm a sentencing decision
unless the decision is clearly mistaken).
