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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
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| KIRK D. EAKLOR, | ) |
| ) Court of Appeals No. A-9574 | |
| Appellant, | ) Trial Court No. 1KE-05-999 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2089 March 9, 2007 |
| ) | |
Appeal from the District Court, First Judi
cial District, Ketchikan, Kevin G. Miller,
Judge.
Appearances: Dallas S. Hargrave, Assistant
Public Defender, Ketchikan, and Quinlan
Steiner, Public Defender, Anchorage, for the
Appellant. Carolyn Perkins, Assistant
District Attorney, and Stephen R. West,
District Attorney, Ketchikan, and David W.
M rquez, Attorney General, Juneau, for the
Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
Kirk D. Eaklor and another man, James Cannon, got into
an argument over money. During this argument, Eaklor grabbed
Cannon in a headlock and then punched him in the face, leaving
Cannon with a red, swollen eye and a bleeding scratch below the
eye. Based on this incident, Eaklor was charged with, and later
convicted of, fourth-degree assault under AS 11.41.230(a)(1):
recklessly causing physical injury to another person.
The term physical injury is defined in AS
11.81.900(b)(46) as physical pain or an impairment of physical
condition. In this appeal, Eaklor asserts two claims of error
relating to this definition.
First, Eaklor contends that the evidence presented at
his trial was insufficient to establish that his act of striking
Cannon in the face caused physical pain to Cannon. Second,
Eaklor contends that the trial judge, District Court Judge Kevin
G. Miller, improperly prevented Eaklors attorney from arguing to
the jury that the States evidence was insufficient to establish
that Cannon suffered any impairment of his physical condition.
Eaklor additionally argues that Judge Miller compounded this
error by affirmatively instructing the jury that the defense
attorneys argument on this point was wrong.
Eaklors first contention turns on James Cannons
testimony about his encounter with Eaklor. Cannon testified that
Eaklor punched him in the face. The prosecutor then asked
Cannon, Did it hurt when [Eaklor] hit you? Cannon replied, No, I
think it was just more or less upsetting [to] me, because ... of
the whole situation. The prosecutor then asked the follow-up
question, But it caused you some sort of pain? Cannon answered,
Yes.
On appeal, Eaklor argues that when Cannon agreed that
the punch caused him some sort of pain, Cannon was referring to
an emotional pain rather than the physical pain required for
conviction of fourth-degree assault. But when we assess the
sufficiency of the evidence to support a criminal conviction, we
are obliged to view the evidence in the light most favorable to
upholding the verdict.1 Here, reasonable jurors could interpret
Cannons testimony to mean that he suffered physical pain from the
punch (as well as being upset by the situation). Thus, the
evidence was sufficient to establish this element of the offense.
We now turn to Eaklors second contention, his argument
concerning the element of impairment of physical condition. This
issue arose at Eaklors trial when, following the conclusion of
the States case-in-chief, Eaklors attorney asked the court to
grant him a judgement of acquittal rather than allowing the case
to go to the jury. In arguing for the directed acquittal, the
defense attorney contended that a swollen eye and a bleeding
scratch did not constitute an impairment of Cannons physical
condition. The prosecutor took the contrary position: i.e.,
that Cannons injuries qualified as an impairment. Neither party
cited any legal authority to support their position.
Judge Miller ruled that the swelling of Cannons eye and
the bleeding scratch to Cannons face constituted an impairment of
Cannons physical condition, and the judge therefore denied
Eaklors motion for a directed acquittal.
Eaklors attorney then presented the defense case.
After the defense rested, the parties discussed jury
instructions. Neither party offered an instruction defining the
phrase impairment of physical condition. The jury was simply
instructed according to the language of the fourth-degree assault
statute. That is, the jurors were told that the State was
obliged to prove that Eaklor caused physical injury to Cannon,
and that physical injury means physical pain or impairment of
physical condition.
During the defense attorneys closing argument, he told
the jurors that an impairment of physical condition has to be
something more than just damage to someones face. The defense
attorney asserted that the State was obliged to prove that Cannon
suffered the kind of injury that [made] something less operable
on Cannons body.
Predictably, the prosecutor objected to this argument.
In front of the jury (because neither party asked Judge Miller to
excuse the jury during this discussion), the defense attorney and
the prosecutor reiterated their respective positions on the
meaning of impairment of physical condition the same arguments
they had presented when Eaklor made his earlier motion for a
judgement of acquittal. At the end of this discussion, Judge
Miller instructed the jury that a scratch or anything that
pierces the skin is [an] impairment of physical condition.
On appeal, Eaklor contends that Judge Miller
overstepped his authority when he told the jurors that the
defense attorneys interpretation of impairment of physical
condition was wrong, and that any injury that pierces the skin is
an impairment of the victims physical condition.
Eaklor bases his position on the fact that the Alaska
Statutes contain no further definition of the phrase impairment
of physical condition. Eaklor contends that, because the
statutes do not further define impairment of physical condition,
attorneys are at liberty to argue any interpretation of this
phrase that favors their clients and trial judges are prohibited
from interfering with this advocacy.
Thus, for example, in his opening brief to this Court,
Eaklor repeats the argument he made to Judge Miller: that a
criminal defendant should be able to argue what an impairment of
physical condition is [because this phrase] is not defined [in
the statutes]. Eaklor further argues that it was improper for
Judge Miller to give the jury any instruction regarding the
meaning of this phrase. Eaklor contends that when [another]
statute or [existing] case law doesnt provide a definition for a
term [in a statute], then [this term] is not defined as a matter
of law. Thus, according to Eaklor, any instruction that Judge
Miller might give to the jury concerning the meaning of
impairment of physical condition would be (in Eaklors attorneys
words) an erroneous statement of law because the judge would be
defin[ing] a material term that Alaska law does not define.
Eaklors arguments misapprehend the distinction between
issues of law and issues of fact, the division of authority
between trial judges and juries, and a judges duty to interpret
the law when this is necessary to resolve the case being
litigated.
The question presented here is whether the injuries
that Eaklor inflicted on Cannon constituted an impairment of
[Cannons] physical condition within the meaning of AS
11.81.900(b)(46). Before Judge Miller sustained the States
objection, Eaklors attorney was arguing to the jurors that, even
if they believed that Eaklor had inflicted a bleeding scratch on
Cannons face, this injury did not constitute an impairment of
Cannons physical condition.
The meaning of a statute in this case, the meaning of
the statutory phrase impairment of physical condition is a
question of law.2 Under our system of justice, judges (not
juries) decide what a statute means.
[I]n a jury trial, issues of law are decided
by the judge, not the jury. It is the jurys
role to decide the facts of the case, but it
is the judges role to instruct the jury on
the legal significance of the facts.
Therefore, when lawyers disagree concerning
the law that governs a case, they offer
arguments to the trial judge, not to the
jury.
Cornwall v. State, 915 P.2d 640, 647 (Alaska
App. 1996).
Because of this fundamental tenet
of our system of justice, Eaklors attorney
was not entitled to ask the jurors to adopt
his own particular interpretation of the
statutory phrase impairment of physical
condition. If this phrase needed to be
clarified in order to resolve Eaklors case,
it was Judge Millers job to construe the
statutory language and it was the defense
attorneys obligation to present his arguments
to Judge Miller, not to the jury.
In this case, the defense attorneys
departure from proper procedure is even more
striking because, as explained above, Judge
Miller had already adopted a contrary
interpretation of the statute (when the judge
denied Eaklors motion for a judgement of
acquittal). Under these circumstances, Judge
Miller was authorized to stop the defense
attorney from arguing to the jury that the
statutory language meant something different.
Moreover, because it now appeared
(from the defense attorneys argument) that
the jurys decision in Eaklors case might well
hinge on this question of law, Judge Miller
was not only authorized but obliged to
instruct the jury concerning the proper
interpretation of the statutory language. As
our supreme court noted in McKee v. State,
when the statutory language defining an
element of a crime is susceptible of
differing interpretations, only one of which
is a proper statement of the law, and when
the defendants guilt or innocence may turn on
the jurys understanding of this element, an
instruction [on the meaning of this element]
must be given. 488 P.2d 1039, 1043 (Alaska
1971).
In short, Eaklors objections to
Judge Millers actions have no merit.
One caveat: We express no opinion
as to whether Judge Miller was correct when
he interpreted the phrase impairment of
physical condition to include any scratch
that pierces the skin. Our examination of
the case law from other jurisdictions shows
that courts have reached differing opinions
as to whether statutory language of this sort
encompasses all minor injuries or instead
requires proof of a more significant injury.3
We do not resolve this issue, and
need not explore it further, because Eaklor
makes no attempt to show that Judge Millers
interpretation of the statutory language was
wrong. Eaklors sole argument is that Judge
Miller exceeded his lawful authority when the
judge adopted any interpretation of the
phrase impairment of physical condition. As
we have explained, this argument has no
merit.
The judgement of the district court
is AFFIRMED.
_______________________________
1Shafer v. State, 456 P.2d 466, 469 (Alaska 1969).
2See, e.g., Bailey v. Texas Instruments, Inc., 111 P.3d 321,
323-24 (Alaska 2005) (The constitutionality of a statute and the
meaning of statutory terms [are] questions of law ... .); Grimm
v. Wagoner, 77 P.3d 423, 427 (Alaska 2003) (Questions regarding
the application, interpretation, and constitutionality of a
statute are questions of law.); Hammock v. State, 52 P.3d 746,
751 (Alaska App. 2002) (The interpretation of a statute is a
question of law ... .).
3There is considerable out-of-state authority interpreting
impairment of physical condition. In jurisdictions
that have statutes similar to Alaskas, courts have
ruled that scratches, small cuts, and bruises qualify
as impairments of physical condition. See, e.g.,
Tucker v. State, 725 N.E.2d 894, 897-98 (Ind. App.
2000) (red marks, bruises, and minor scratches
constitute impairment of physical condition, even if
the victim testifies that the injury did not hurt);
State v. Slaughter, 691 N.W.2d 70, 76 (Minn. 2005)
(scratches caused by necklaces being torn from the
victims neck qualified as impairment of physical
condition). In jurisdictions with statutes that
arguably set a slightly higher threshold for physical
injury (impairment of physical condition or substantial
pain), courts have tended to reverse convictions
involving this sort of injury. See, e.g., People v.
Prosser, 516 N.Y.S.2d 559 (N.Y. App. 1987) (holding
that linear abrasions on the side of the victims neck
did not qualify as physical injury when the victim
testified that he suffered only slight pain); State v.
Rice, 616 P.2d 538, 539 (Or. App. 1980) (a slight cut
from flying glass caused by the defendants act of
breaking the rear window of a vehicle with a pickaxe
did not qualify as physical injury when the victim
testified that she felt no pain and did not even
realize that she had been cut until later, when
somebody told her). But there are exceptions. See,
e.g., Striplin v. City of Dothan, 607 So.2d 1285, 1287
(Ala. Crim. App. 1992) (the element of physical injury
was satisfied by evidence that the victim was kicked
several times in the groin, even though the victim
testified that he suffered pain for only a second and
there were no resulting bruises, scratches, or
abrasions). At least one court has hinged its finding
of physical injury on the type of conduct that led to
the injury holding that a bleeding scratch on the
victims arm, sustained during a domestic confrontation,
qualified as impairment of physical condition, even
though bruises and slight cuts sustained during violent
dancing did not (because dancing is an activity that is
a customary part of modern day living). See Cronin v.
West Whiteland Township, 994 F.Supp. 595, 601 (E.D. Pa.
1998) (distinguishing Commonwealth v. Kirkwood, 520
A.2d 451, 454 (Pa. Super. 1987)). An Oregon appeals
court has interpreted impairment of physical condition
to require evidence of the victims diminished ability
to use their body or one of its organs a definition
quite similar to the one that Eaklor advanced in this
case. See State v. Higgins, 998 P.2d 222, 224-25 (Or.
App. 2000) (reversing a wifes conviction for fourth-
degree assault based on her acts of shaking,
scratching, and slapping her husband and pushing him
out of bed, when there was no evidence that the husband
experienced pain, and when his only injuries were six
red scrape marks on his neck and arm that did not bleed
and did not require medical attention). The Oregon
court noted, however, the existence of other decisions
holding that a swollen lip or swollen eye would
constitute an impairment of physical condition if the
injury impaired the ordinary functioning of that body
part.
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