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Sergie v. State (02/04/2005) ap-1968
Sergie v. State (02/04/2005) ap-1968
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
EVAN C. SERGIE, )
) Court of Appeals No.
A-8190
Appellant, )
Trial Court No. 3DI-01-215 Cr
)
v. )
) O P I N
I O N
STATE OF ALASKA, )
)
Appellee. )
[No. 1968 February 4, 2005]
)
Appeal from the Superior Court, Third Judi
cial District, Dillingham, Fred Torrisi,
Judge.
Appearances: Colleen A. Libbey and Daniel E.
Libbey, Libbey Law Offices, 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 Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
STEWART, Judge.
Evan C. Sergie was convicted of attempted first-degree
sexual assault,1 resisting arrest,2 interfering with the report
of a domestic violence crime,3 and two counts of fourth-degree
assault.4 On appeal, Sergie claims that neither the attempted
sexual assault conviction nor the resisting arrest conviction
were supported by sufficient evidence. Sergie also argues that
the trial court erred in failing to discharge his publicly
appointed counsel and by issuing a faulty jury instruction. We
conclude that there is ample evidence to support Sergies
convictions. We also conclude that the superior court did not
err in failing to discharge Sergies counsel. Finally, we reject
Sergies attack on the jury instructions. Therefore, we affirm
Sergies convictions.
Facts and proceedings
On June 2, 2001, Evan Sergie, his wife, S.S., and their
two-year-old son, J.S., traveled to Dillingham to visit A.S.,
Sergies sister. After they arrived at A.S.s house, Sergie went
to the liquor store and bought a twelve-pack of beer and a pint
of rum. Sergie, A.S., and S.S. spent the rest of the evening
drinking together.
The next morning, the trio awoke and continued
drinking. After a while, Sergie and A.S. argued. Sergie told
S.S. to get J.S. dressed because he wanted to leave. S.S.
prepared J.S., then returned to the living room to tell Sergie
that they were ready to go. Sergie told her that everything was
all right and that he and his sister had calmed down, so S.S.
took J.S. back into the bedroom of K.S., another family member.
The trio continued drinking. Soon, A.S. and Sergie resumed
arguing. This time, Sergie and A.S. pushed and shoved each other.
Sergie again told S.S. to get J.S. ready to go. After S.S. had
left the room, the argument ended when Sergie pushed A.S. onto
the kitchen floor and then threw a chair across the room.
Sergie then began arguing with S.S. and pushed her
down. Testimony differed on what happened next. A.S. testified
that she passed out after her fight with Sergie and that when she
woke up, she saw S.S. lying on the floor. Sergie had removed
S.S.s shirt and bra, and was trying to remove her pants. Sergie
was also trying to pull S.S.s legs apart. S.S. was holding onto
her pants, kicking her legs, and saying come on, come on. A.S.
testified that she then went to her phone and called the police.
Sergie hung up the phone, and then told S.S. to go into the
bedroom and get the baby ready to go. Sergie and S.S. went into
the bedroom, where Sergie continued to holler at S.S. A.S. then
called the police for a second time.
Another witness, K.S., testified that after Sergie had
pushed S.S. onto the floor, Sergie told S.S. to spread [her] legs
and he unbuttoned her pants. A.S. told Sergie to stop it, and
helped S.S. get up and re-button her pants. Sergie and S.S.
continued to argue. Sergie then grabbed S.S. and shoved her
again. K.S. took J.S. from Sergie and carried him into A.S.s
bedroom, where she asked one of her friends to watch him. When
K.S. came back out into the kitchen, she found S.S. lying on the
floor with her shirt and bra off. Sergie was trying to remove
S.S.s pants. S.S. was saying yeah, yeah, take my pants off.
K.S. testified that S.S. was not trying to keep Sergie from
taking her pants off, but that she seemed upset. At that point,
K.S. testified, A.S. intervened and told Sergie to stop it. A.S.
then helped S.S. off the floor and helped her put her shirt back
on.
S.S. testified that after Sergie had shoved her onto
the floor, she got up and went to the living room. Sergie
followed S.S. and shoved her again. S.S. landed on her back on
the kitchen floor. S.S. passed out for a couple seconds. When
she came to, Sergie was standing in front of her. S.S. said that
her shirt had been removed, but that she was still wearing her
pants. S.S. also testified that she was holding onto her pants,
but that she did not remember why. S.S. testified that she told
Sergie to bring it on in hopes that the reverse psychology would
make Sergie stop.
Officers Dan Pasquariello and Kenneth Brockman arrived
at A.S.s residence at about 6:30 a.m., but Sergie was no longer
present. After interviewing A.S., K.S., and S.S., the officers
left to look for Sergie. They found him walking down a nearby
street.
Sergie was evasive and uncooperative. Officer Brockman
told Sergie that he was under arrest. Sergie sat down on the
ground and refused to stand. The officers lifted him up and
walked him to the patrol car. When the officers searched Sergie,
he made vulgar comments about Officer Brockmans wife. When the
officers tried to put Sergie in the patrol car, he struggled with
the officers and kicked Officer Pasquariello several times.
The jury found Sergie guilty on all counts. Sergie
appeals.
Sergies challenges to the attempted sexual assault jury
instruction
At trial, Sergie proposed a jury instruction on the
elements of attempted first-degree sexual assault. Under this
proposed instruction, the jury could not convict Sergie of that
offense unless it found both that he intended to engage in sexual
penetration of S.S., and that he intended the sexual penetration
to be non-consensual.
Superior Court Judge Fred Torrisi disagreed with the
proposed instructions description of the second element. He
ruled that recklessly, not intentionally, was the culpable mental
state that applied to this element of the crime (the circumstance
that the sexual penetration occurred without the victims
consent). Judge Torrisi therefore rejected Sergies proposed jury
instruction and instead gave an instruction modeled on the
pattern jury instruction for attempted first-degree sexual
assault. That instruction told the jurors that to convict Sergie
they had to find that he intended to engage in sexual penetration
with another person without regard to that persons lack of
consent.
On appeal, Sergie renews his argument that
intentionally is the culpable mental state that applies to
disregard of the victims consent.
Sergie acknowledges that to prove the completed crime
of first-degree sexual assault, the State is required to
establish that the defendant (1) knowingly engaged in sexual
intercourse and (2) recklessly disregarded the victims lack of
consent to that intercourse.5 That is, knowingly is the
culpable mental state that applies to the conduct element of
sexual penetration, and recklessly is the culpable mental state
that applies to the circumstance of disregard of the victims lack
of consent.6
However, Sergie argues that different culpable mental
states apply to both the conduct and circumstance elements of
attempted first-degree sexual assault. To support this claim, he
relies on AS 11.31.100(a), the statute defining criminal attempt:
A person is guilty of attempt to commit a
crime if, with intent to commit a crime, the
person engages in conduct which constitutes a
substantial step toward commission of that
crime.
The parties do not dispute that, under this statute, a
defendant cannot be convicted of attempted first-degree sexual
assault unless the State proves that the defendant intended to
commit the target crime of first-degree sexual assault. But
Sergie argues that the defendant cannot intend to commit sexual
assault unless he intends to disregard lack of consent, for lack
of consent is an essential element of that offense. Sergie cites
no authority on point, instead asserting in conclusory terms that
the intentionally culpable mental state applies to all essential
elements of the offense.
We find no merit to this claim. A person is guilty of
attempted first-degree sexual assault if he intends to commit the
target crime in other words, if he intends to engage in sexual
penetration with reckless disregard to the victims consent.7 As
explained by the drafters of the Model Penal Code, when a person
is charged with criminal attempt, [t]he requirement of purpose
extends to the conduct of the actor and to the results that his
conduct causes, but his purpose need not encompass all of the
circumstances included in the formal definition of the
substantive offense.8 For instance, even if an essential element
of the offense of burglary is proof that the breaking and
entering occurred at night, the government need not show that the
defendant intended the circumstance that the offense occur at
night.9 Furthermore, to be guilty of attempt, a defendant need
not intend that his conduct be criminal; he must simply have as
his affirmative objective engaging in conduct that the criminal
law denominates as criminal.10 The drafters of the Model Penal
Code explained the policy behind this approach as follows:
The judgment is thus that if the
defendant manifests a purpose to engage in
the type of conduct or to cause the type of
result that is forbidden by the criminal law,
he has sufficiently exhibited his
dangerousness to justify the imposition of
criminal sanctions, so long as he otherwise
acts with the kind of culpability that is
sufficient for the completed offense. The
objective is to select out those elements of
the completed crime that, if the defendant
desires to bring them about, indicate with
clarity that he poses the type of danger to
society that the substantive offense is
designed to prevent.[11]
This approach is compatible with our analysis in Riley
v. State.12 Riley and his cohort were each charged with two
counts of first-degree assault both as a principal and as an
accomplice to the other, for recklessly shooting at a group of
people and causing serious physical injury to two of the
victims.13 The State could not prove which defendants firearm
wounded the two seriously injured victims, and the jury convicted
Riley as an accomplice on both counts.14 To prove accomplice
liability, the State had to prove that Riley aided or abetted his
cohort in planning or committing the offense, while intending to
promote or facilitate the commission of the offense.15
Ultimately we concluded that when the State has to
prove that an accomplice intended to promote or facilitate the
commission of the offense, the culpable mental state
intentionally applies only to the conduct that the accomplice
intended to occur (in Rileys case, his cohorts shooting at the
group).16 And we concluded that recklessly, the culpable mental
state that normally applied to the circumstance or result element
of the crime (in Rileys case, the result that the shooting caused
serious physical injury to each victim), still applied to the
circumstance or result element when the State proceeded on an
accomplice liability theory.17
We conclude that this approach applies with equal force
here, and conclude that Judge Torrisi correctly rejected Sergies
proposed jury instruction. To prove that Sergie committed the
offense of attempted first-degree sexual assault, the State was
not required to prove that Sergie intended the circumstance that
the penetration be without S.S.s consent. If Sergie had
completed the act of sexual penetration, no such showing would
have been required to convict him of first-degree sexual
assault.18
Sergie also argues that the instruction as given was
flawed because it did not explicitly specify recklessly as the
culpable mental state for the disregard of the victims lack of
consent. But Sergie did not object to this potential flaw when
the parties were discussing jury instructions with Judge Torrisi.
Therefore, Sergie must show that the instruction constituted
plain error i.e., that the instruction was so patently wrong
that any competent judge or attorney would have recognized the
problem, and that the error in the instruction prejudiced the
jurys deliberations.19
Sergie cannot show plain error. As explained above,
the pattern jury instruction declared that the State was required
to prove that Sergie intended to engage in sexual penetration
with [S.S.] without regard to [her] lack of consent. This
instruction might have been clearer if the court had specified
that the culpable mental state applicable to this circumstance
was recklessly. But the pattern instruction, as worded, does not
plainly dispense with the requirement that the defendant acted
recklessly with respect to the victims lack of consent to the
intended sexual penetration.
We believe that reasonable people, reading the pattern
jury instruction as a whole, would interpret the phrase without
regard to that persons lack of consent as requiring the State to
prove that Sergie intended to engage in sexual penetration with
S.S. whether she consented or not. Moreover, the wording of the
instruction allowed Sergies attorney to argue that Sergie should
be found not guilty because he had no indication that S.S. was
not consenting to his sexual advance.
In addition, we find there was no plain error because
Sergie never argued that he was unaware of S.S.s lack of consent.
During the parties discussion of the jury instructions, Sergies
attorney did not contradict Judge Torrisis observation that there
did not appear to be much dispute about whether [S.S.] consented
or not. Indeed, during the defense summation to the jury,
Sergies attorney did not discuss the element of consent (or lack
of consent) at all. The defense attorney presented only two
arguments: that Sergie had been too intoxicated to form the
intent to sexually penetrate S.S., and that even if Sergie had
formed this intent, he promptly renounced it when S.S. indicated
her unwillingness to engage in sexual relations.
Based on these considerations, we conclude that the
arguable imprecision in the pattern jury instruction had no
effect on the litigation or decision of Sergies case. Therefore,
Sergie has failed to show plain error.
Sufficient evidence supports Sergies challenged
convictions
When we consider a claim that insufficient evidence
supports a conviction, we view the evidence presented at trial
and the reasonable inferences arising from the evidence in the
light most favorable to upholding the verdict.20 Viewing the
evidence in this manner, we decide whether a fair-minded juror
exercising reasonable judgment could conclude that the State met
its burden of proving guilt beyond a reasonable doubt.21
Sergie argues that his resisting arrest conviction is
not supported by sufficient evidence. Alaska Statute 11.56.700
provides that [a] person commits the crime of resisting ...
arrest if, knowing that a peace officer is making an arrest, with
the intent of preventing the officer from making the arrest, the
person resists ... by ... force. Sergie argues that he was so
intoxicated at the time of his arrest, that the evidence was
insufficient to show that he was capable of forming the specific
intent required under AS 11.56.700 the intent to prevent the
officers from arresting him. But Sergie incorrectly views the
evidence in his favor, not in favor of upholding the verdict.
Officer Pasquariello testified that during the arrest
Sergie was aware of what he was doing and that he was coherent as
to who Officer Brockman [is] and who I am and our families.
Sergie was apparently able to remember Officer Brockmans wifes
background, because Officer Brockman testified that Sergie made
several references to her background during the arrest. Officer
Brockman also testified that Sergie made comments about
Thanksgiving, which Officer Brockman interpreted as referring to
a contact that he had had with Sergie on Thanksgiving several
years earlier. This evidence supported the jurys conclusion that
Sergie knew that the officers were arresting him and intended to
resist arrest when he struggled with the officers and kicked
Officer Pasquariello.
Sergie next argues that there was insufficient evidence
to support his conviction for attempted first-degree sexual
assault. Specifically, Sergie claims: (1) that the evidence
showed that he was too intoxicated to have formed the intent to
engage in sexual penetration with S.S.; (2) that the evidence was
insufficient to show that he had intended to disregard S.S.s
consent (or that he had recklessly disregarded her lack of
consent); (3) that the evidence was insufficient to show that he
had taken a substantial step towards committing the crime of
sexual assault; and (4) that the evidence showed that Sergie had
renunciated his criminal intent.
Again, Sergie views the evidence in the light most
favorable to himself. The evidence, when viewed in the light
most favorable to upholding the verdict, established that Sergie
knocked his wife to the floor, removed her shirt and bra, and
then tried to remove her pants. The evidence also established
that S.S. tried to keep Sergie from removing her pants by holding
on to her belt loops and by kicking her legs, and that S.S.
seemed upset while Sergie was trying to remove her pants.
Therefore, in the light most favorable to upholding the verdict,
reasonable jurors could conclude, beyond a reasonable doubt, that
Sergie had a conscious objective to engage in sexual penetration
with S.S., that Sergie took a substantial step toward that
result, and that Sergie recklessly disregarded S.S.s lack of
consent. Furthermore, a reasonable juror could find that Sergie
had not shown the affirmative defense that he prevented the
commission of the attempted crime by voluntarily and completely
renouncing his intent to sexually penetrate S.S.22
Judge Torrisi properly declined to replace Sergies
attorney
Finally, Sergie argues that Judge Torrisi should have
allowed his public defender to withdraw so that the court could
appoint new trial counsel. He claims that the attorney-client
relationship with his public defender had reached the point where
[his counsel] was incapable of effective communication for there
was no communication between counsel and his client. We review
the superior courts decision to deny a defendants request for new
counsel for an abuse of discretion.23
Indigent defendants are entitled to be represented by a
competent attorney, but they are not entitled to counsel of
[their] choice24 or to a meaningful relationship25 with their
attorney. Furthermore, a defendants right to effective
assistance of counsel does not encompass the right of a defendant
to purposely frustrate his attorneys efforts on his behalf and
then attempt to escape conviction on the basis of his own lack of
cooperation.26
The week before trial was scheduled, Sergie asked Judge
Torrisi to dismiss his court-appointed public defender and
appoint a new attorney to represent him. Sergie claimed that he
and his attorney suffered from a lack of communication. Sergies
attorney told Judge Torrisi that he had traveled to Anchorage to
meet with Sergie, who was in custody, but that Sergie had
declined to speak with him. Sergies attorney also noted that
Sergie seemed constantly angry. When Judge Torrisi asked Sergie
why he had refused to speak with his attorney, Sergie said
[b]ecause I didnt want to. I choose not to.
Judge Torrisi refused Sergies request for new counsel.
Instead, he continued Sergies trial date for approximately one
month. He urged Sergie to cooperate with the trial attorney.
About two weeks later, Sergies attorney filed a motion
to withdraw from Sergies case. He reported that Sergie still
would not cooperate with him. The attorney stated that Sergie
was rude and abusive during phone calls, used foul language, and
threatened the attorney and his staff. Sergie also refused to
discuss the case when the attorney tried to meet with Sergie in
person. The attorney thought the relationship was damaged beyond
repair. Judge Torrisi denied the motion to withdraw.
The record shows that Sergie continually refused to
cooperate with his attorney. Sergies public defender twice
traveled to Anchorage to meet with Sergie, but Sergie refused to
cooperate. When Judge Torrisi asked Sergie why he had refused to
meet with the attorney, Sergie stated that he had chosen not to.
Judge Torrisi also advised Sergie in court that he needed to
cooperate with his attorney. However, Sergie disregarded this
advice.
Judge Torrisi was not required to appoint new counsel
for Sergie merely because Sergie refused to cooperate with the
counsel he already had. Judge Torrisi thus did not abuse his
discretion in denying Sergies request for new counsel.
Conclusion
The judgment of the superior court is AFFIRMED.
_______________________________
1 AS 11.41.410(a)(1) and AS 11.31.100(a).
2 AS 11.56.700(a)(1).
3 AS 11.56.745(a).
4 AS 11.41.230(a)(1).
5 Reynolds v. State, 664 P.2d 621, 623-35 (Alaska App.
1983).
6 Id.; AS 11.81.610(b)(2).
7 Cf. Guertin v. State, 854 P.2d 1130, 1132 (Alaska App.
1993) (noting that the offense of attempted second-degree sexual
assault requires proof that the defendant intended to engage in
sexual contact with another person without regard to that persons
lack of consent); Baden v. State, 667 P.2d 1275, 1278 (Alaska
App. 1983) (holding that attempted first-degree sexual assault
requires proof that the defendant intended to engage in sexual
penetration, and noting in dicta that [t]he state argues
convincingly that a defendant must act only recklessly with
regard to the lack of consent.).
8 American Law Institute, Model Penal Code and Commentaries,
explanatory note to 5.01, at 301 (Official Draft and Revised
Comments 1985).
9 See id. at 301 n.9.
10 See id. at 301 n.8.
11 Id. at 303.
12 60 P.3d 204 (Alaska App. 2002).
13 Id. at 205-06.
14 Id.
15 Riley, 60 P.3d at 207; AS 11.16.110(2)(B).
16 Riley, 60 P.3d at 221.
17 Id.
18 See Reynolds, 664 P.2d at 625; AS 11.81.610(b)(2).
19 See Allen v. State, 51 P.3d 949, 958 (Alaska App.
2002).
20 Silvernail v. State, 777 P.2d 1169, 1172 (Alaska App.
1989).
21 Id.; Dorman v. State, 622 P.2d 448, 453 (Alaska 1981).
22 See AS 11.31.100(c).
23 Mute v. State, 954 P.2d 1384, 1386 (Alaska App. 1998).
24 Id. at 1385 (quoting Coleman v. State, 621 P.2d 869,
878 (Alaska 1980)).
25 Id. (quoting Monroe v. State, 752 P.2d 1017, 1020
(Alaska App. 1988)).
26 Coleman, 621 P.2d at 881.
