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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
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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
| CHRISTOPHER E. CRONCE, | ) |
| ) Court of Appeals No. A-9855 | |
| Appellant, | ) Trial Court No. 3KN-06-898 CR |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) |
| ) No. 2227 August 7, 2009 | |
Appeal from the
Superior Court, Third Judicial District,
Kenai, John E. Suddock, Judge.
Appearances: Brian T. Duffy, Assistant
Public Advocate, and Joshua Fink, Public
Advocate, Anchorage, for the Appellant.
Timothy W. Terrell, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and Talis J. Colberg,
Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Bolger, Judges.
BOLGER, Judge.
MANNHEIMER, Judge, concurring.
Christopher E. Cronce was convicted of assault in the
second degree1 and assault in the third degree2 based on an
incident when he attacked a man named Michael Wims. Superior
Court Judge John E. Suddock imposed separate convictions and
sentences for these two offenses. We conclude that these
separate statutory violations must merge because, under the facts
of this case, there was no difference in conduct or intent
sufficient to warrant multiple punishments. We therefore vacate
the separate conviction for third-degree assault.
Background
Cronce and his brother Randall confronted Michael Wims
as Wims walked out of the Casino Bar in Kenai. The men exchanged
words and Cronce head-butted Wims in the face. Wims tried to
escape by running across the parking lot and climbing a nearby
fence, but the Cronce brothers dragged Wims back to the ground
and started to beat him with their fists and kick him with their
feet. The Cronce brothers continued to beat Wims as he lay
helplessly on the ground until Kenai Police Officer James Johnson
arrived in response to a 911 call.
Christopher and Randall Cronce were jointly charged
with one count of second-degree assault and one count of third-
degree assault.3 At trial, Christopher Cronce testified that the
initial altercation with Wims was mutual and that the Cronce
brothers pursued Wims through the parking lot simply to talk
about what happened. As they approached the fence, the argument
continued and again escalated into a fight.
During closing arguments, the prosecutor explained to
the jury that the States theory of the case was based on both the
initial assault against Wims in the parking lot and what occurred
after the Cronce brothers chased him down that is, even if the
initial head-butting involved mutual combat, Cronce was still
guilty because he chased Wims down and continued to beat him.
During deliberations, the jury sent a note to the
judge asking if they should deliberate on the third-degree
assault charge after they had reached a decision on the second-
degree assault charge. In the process of discussing this note
with the attorneys, the judge suggested that there might be a
double jeopardy issue as to the merger of these counts. The
judge then responded to the jurys question by instructing them to
deliberate on both counts. The jury eventually reached a verdict
of guilty on both counts.
At sentencing, the judge reconsidered his earlier
opinion that Cronces assault convictions should be merged. The
judge concluded that the third-degree assault occurred when the
Cronce brothers chased Wims through the parking lot, and the
second-degree assault occurred when the brothers began to
physically beat him. Based on this reasoning, the judge imposed
separate convictions and sentences for the two charges: 3 years
imprisonment with 2 years suspended for second-degree assault,
and 24 months imprisonment with 23 months suspended for third-
degree assault, to be served consecutively.
Cronce now appeals.
Discussion
In Whitton v. State,4 the Alaska Supreme Court
established a test to determine whether the violation of two
different criminal statutes during a single criminal event should
be treated as a single punishable offense under the double
jeopardy clause of the Alaska Constitution:
The trial judge first would compare the
different statutes in question, as they
apply to the facts of the case, to determine
whether there were involved differences in
intent or conduct. He would then judge any
such differences he found in light of the
basic interests of society to be vindicated
or protected, and decide whether those
differences were substantial or significant
enough to warrant multiple punishments. . .
.
If such differences in intent or
conduct are significant or substantial in
relation to the social interests involved,
multiple sentences may be imposed, and the
constitutional prohibition against double
jeopardy will not be violated.5
To apply this test, we first analyze whether the two
statutory offenses as applied to the evidence in this case
involved differences in conduct or intent. Whether two offenses
qualify as a single offense for double jeopardy purposes under
Whitton is an issue of law, which we review anew, independently
of the trial courts decision.6
We have previously approved separate convictions for
assaults where there were clear breaks in time and circumstances
between the offenses.7 But when the record is ambiguous as to
whether the defendant has committed one offense or two, then the
defendant should receive only a single conviction and sentence.8
Accordingly, in an ambiguous case, we may be required to conclude
that separate convictions are forbidden, even after the trial
judge concludes that the crimes involve separate conduct.9
This is a case where the record is ambiguous. There
is nothing in the indictment to suggest that there were
substantial differences in the conduct charged for each offense.
Likewise, the jury instructions merely simplified the language of
the indictment without suggesting that the separate counts were
based on different conduct.
The instruction on Count I required the jury to find
that Randall S. Cronce and Christopher E. Cronce, with intent to
cause physical injury to Michael Wims, caused physical injury to
Michael Wims, and the instruction on Count II required the jury
to find that Randall S. Cronce and Christopher E. Cronce
recklessly placed Michael Wims in fear of imminent serious
physical injury. The jury instructions for both counts, however,
required the jury to find that the defendants committed these
offenses by means of a dangerous instrument, to-wit: hands, arms,
and/or feet.
Similarly, the final arguments of counsel did not draw
any clear distinctions between the conduct the prosecution relied
on to establish these separate counts. In other words, both the
prosecutors argument and the jury instructions left open the
possibility that the jury could reach a guilty verdict on the
third-degree assault charge based on conduct supporting the
guilty verdict on the second-degree assault charge.10
And at the sentencing hearing, while opposing Cronces
request for certain mitigating factors, the prosecutor suggested
that the same evidence supported both offenses:
Mr. Wims fled as quickly as he could to get
away from [Cronce], and he chased him down
and savagely beat him. The beating that
occurred after the fact, the punching and
kicking, the facial injuries that Mr. Wims
received in the parking lot behind the other
building away from the bar parking lot,
after any allegation of a perceived threat
or a swing by Mr. Wims, its that conduct
that were really talking about.
The judge then interrupted with a question: As to both charges?
And the prosecutor confirmed that the same evidence supported
both charges:
As to both charges, Your Honor. The fear
assault is his feelings of fear that he
experienced, which is the assault three,
that he experienced as this man was beating
him kicking him and beating him, his fear
of imminent serious physical injury or
death.
This response suggests that the prosecutor believed that Cronces
conduct establishing the fear assault charged in Count II was the
same conduct that established the injury assault charged in Count
I.
Later in the hearing, the judge acknowledged that the
prosecutors opinion would wipe out the offense charged in Count
II. But the judge declined to merge the sentences on the two
convictions based on his alternative interpretation of the trial
evidence:
[Y]ou can make an argument . . . that
perhaps under our law the two offenses
merge, but as I view it, the assault started
during the chase down the road, and that was
the fear-based [assault] nothing in this
whole deal was scarier than running down
that road with two jackals after you knowing
what was going to happen as soon as they
caught you, and I think thats a distinct
enough interest to justify the court
imposing a second sentence for the class C
offense.
The judges conclusion on this issue seems questionable
considering the way the jury instructions applied to the evidence
presented at trial. For the third-degree assault count, the jury
was instructed to determine whether Cronce used his hands, arms,
and/or feet to frighten Wims. But the Cronce brothers did not
begin to strike Wims with their hands, arms, and/or feet as
dangerous instruments until after they chased him down and pulled
him off the fence. There was little evidence that the Cronce
brothers intended to use their hands, arms, and feet as dangerous
instruments when they chased Wims across the parking lot.11
Taking this jury instruction into account, it seems
more likely that the jury convicted Cronce for third-degree
assault based on fear he induced when he began beating Wims with
his hands, arms, and feet exactly the same theory that the
prosecutor advanced at the sentencing hearing. Under this
theory, the intent and conduct that the prosecution relied on to
establish the third-degree assault charge is entirely subsumed by
the intent and conduct that established the second-degree assault
charge.12 In any event, the weakness in the judges alternative
theory for the third-degree assault charge convinces us that
these circumstances were too ambiguous to support two separate
convictions.
We next analyze the societal interests involved to
determine whether the differences between these two crimes merit
separate punishment. The State argues that the second-degree
assault statute protects against violent physical injury and that
the third-degree assault statute protects against being placed in
fear of being subject as to serious physical injury. We conclude
that these asserted interests are very similar and that both
involve the identical goal of protecting the physical safety of
individual citizens.
This conclusion is implicit in a previous decision
where we considered convictions for an injury assault and a fear
assault involving the same incident. In Soundara v. State,13 the
defendant was convicted of two charges of third-degree assault:
one charge for recklessly causing physical injury to the victim
by means of a dangerous instrument, and a second charge for
recklessly placing the victim in fear of imminent serious
physical injury by means of a dangerous instrument.14 We
concluded that the two convictions should merge because the jury
was not instructed to determine whether the two convictions were
based on a single underlying act or two separate acts.15
In the present case, we likewise cannot ascertain any
significant difference between the intent and conduct required
for Cronces two assault convictions. And the societal interests
involved appear to be nearly identical. We therefore conclude
that only one conviction may be imposed for these two statutory
violations.
Conclusion
We VACATE the separate judgment of conviction on Count
II. The superior court must enter one merged conviction for
second-degree assault.16 On remand, the court may reconsider the
sentence for this merged conviction as long as the sentence does
not exceed the composite sentence imposed for both counts at the
original sentencing hearing.17
MANNHEIMER, Judge, concurring.
I agree with my colleagues that Cronce could not
properly be convicted of both second- and third-degree assault
under the facts of this case. I write separately because my
analysis of the case is a little different from the analysis
presented in the lead opinion.
In answering the question of whether Cronce could
properly receive separate convictions for second-degree assault
and third-degree assault, my colleagues apply a constitutional
analysis: they conclude that separate convictions are barred by
the double jeopardy clause of the Alaska Constitution as
construed by our supreme court in Whitton v. State, 479 P.2d 302
(Alaska 1970). I do not believe that a constitutional analysis
is required. Rather, the question is one of substantive criminal
law an issue of statutory interpretation and legislative intent.
The double jeopardy doctrine announced in Whitton the
doctrine that our constitution authorizes the judiciary to make
policy decisions about how many separate convictions are allowed
in a given situation has been undercut by more recent decisions
of the United States Supreme Court and the Alaska Supreme Court.
As the United States Supreme Court declared in Missouri v.
Hunter, when the question is whether a defendant may lawfully be
subjected to multiple punishments for a single criminal act or a
single course of criminal conduct, the Double Jeopardy Clause
does no more than prevent the sentencing court from prescribing
more punishment than the legislature intended.1
The Alaska Supreme Court acknowledged this principle
of federal double jeopardy law in Todd v. State, 917 P.2d 674,
677-78 (Alaska 1996), a case that raised the issue of whether
separate punishments can lawfully be imposed for both the offense
of felony murder and the underlying felony.
It is true that, after our supreme court acknowledged
the rule announced in Missouri v. Hunter, the supreme court then
separately analyzed the double jeopardy issue under the Whitton
rule (see Todd, 917 P.2d at 681-83) thus implying that the
Whitton analysis requires Alaska courts to consider something
other than legislative intent when resolving an issue of double
punishment. But a careful reading of the supreme courts opinion
in particular, the section in which the court analyzed the double
jeopardy issue under Whitton reveals that the court resolved the
issue in exactly the same way that federal courts would resolve
it under Missouri v. Hunter. That is, the supreme court looked
to the Alaska Legislatures intent.
The supreme court couched its decision as a ruling
that, when a defendant is charged with felony murder, the
defendants underlying felony is not a lesser included offense of
the murder charge. Todd, 917 P.2d at 682. However, the court
openly acknowledged that, under Alaskas test for greater and
lesser included offenses, these two offenses do indeed stand in
the relationship of greater offense and lesser included offense.
Id. The supreme court then declared that, notwithstanding this
fact, felony murder [is] a distinct area of the criminal law
[that is] not governed by [the] traditional lesser-included[-
]offense analysis. Id.
How did the court explain this conclusion? The court
declared that [the] lesser-included offense analysis [applies to]
offenses with overlapping elements ... [where] it is not clear
whether the legislature intended [that] the defendant be punished
under both statut[es] ... . Id. And, in the case of the felony-
murder statute, the intent of the legislature to allow multiple
punishments is clear. Id.
In other words, the Whitton analysis that the supreme
court applied in Todd hinged on legislative intent the same test
that federal courts employ under Missouri v. Hunter.
Based on Hunter and Todd, I believe that the primary
question to be asked in the present case is this: In
circumstances where a defendant approaches a victim in a
threatening manner, the victim perceives the threat, and then the
defendant carries out the threat by attacking the victim and
inflicting injury, did the Alaska Legislature intend to permit
the State to convict the defendant of separate counts of assault
one conviction for the threatening conduct that immediately
preceded the physical assault, and the other conviction for the
physical assault itself?
Allowing two convictions in this situation is not a
traditional approach. Normally, if the physical attack is
actually launched (i.e., if the defendant moves beyond
threatening conduct), the immediately preceding threat is seen as
merely a preliminary step in the attack, and separate convictions
are not imposed.
For example, in Tuckfield v. State, 621 P.2d 1350,
1352 (Alaska 1981), the supreme court held that a defendant could
not be separately convicted of both an assault with intent to
commit rape and the completed rape arising from the same assault.
Although the supreme court portrayed its decision as an
application of the double jeopardy rule announced in Whitton, the
decision in Tuckfield appears to be a straightforward application
of the rule now codified in AS 11.31.140(c) the rule that [a]
person may not be convicted on the basis of the same course of
conduct of both [an attempt and] the crime that is the object of
the attempt.
This Court reached the same result in Tookak v. State,
648 P.2d 1018, 1023 (Alaska App. 1982), where we concluded that
the defendant could not be convicted of both assault with intent
to commit rape and the completed rape when the assault and the
completed rape were merely separate stages of one continuous
assault culminating in the rape of the victim.
The State argues that allowing two convictions in
Cronces case (and other analogous cases) makes sense because the
two convictions would reflect a vindication of separate societal
values: first, that a person should be free from fear; and
second, that a person should not be injured.
It is true that one might draw a distinction between
the two stages of the assault in this case: the first stage
being the instilling of fear during the chase, the second stage
being the successful capture of the victim and the completion of
the attack. Conceivably, the legislature might wish to divide
these two stages of the continuous assaultive act into separate
offenses, as the State now proposes. It is also conceivable that
any such legislation would raise constitutional issues. But for
now, the question is one of legislative intent: whether, under
our current assault statutes, the Alaska Legislature has already
authorized separate convictions for the two stages of a
continuous act of assault like the one in this case.
As I noted earlier, allowing two convictions in
situations like this is not a normal or typical resolution of the
matter. The State is essentially arguing that anyone who
physically attacks another person will commit two separately
punishable assaults if the victim perceives (no matter how
fleetingly) that the attack is coming. There is nothing in the
legislative commentary to Alaskas assault statutes (AS 11.41.200
230) suggesting that the legislature intended to adopt this non-
traditional approach.
Accordingly, I conclude that, in situations like the
one presented here, defendants can not be separately convicted
and punished for (1) instilling fear in their victims by
threatening to attack them, and then (2) completing the attack.
I reach this conclusion as a matter of statutory interpretation
and substantive criminal law, rather than under a double jeopardy
analysis.
_______________________________
1 AS 11.41.210(a)(1)(3).
2 AS 11.41.220(a)(1)(A).
3 Count I of the indictment charged:
Randall S. Cronce and Christopher E. Cronce with
intent to cause physical injury to Michael Wims,
caused physical injury to Michael Wims by means of
a dangerous instrument, to-wit: hands, arms,
and/or feet; and/or Randall S. Cronce and
Christopher E. Cronce recklessly cause serious
physical injury to Michael Wims; and/or Randall S.
Cronce and Christopher E. Cronce recklessly caused
serious physical injury to Michael Wims by
repeated assaults, even if each assault
individually did not cause serious physical
injury.
Count II of the indictment charged that Randall S. Cronce and
Christopher E. Cronce recklessly placed Michael Wims in fear of
imminent serious physical injury by means of a dangerous
instrument, to-wit: hands, arms and/or feet.
4 479 P.2d 302 (Alaska 1970).
5 Id. at 312.
6 Erickson v. State, 950 P.2d 580, 585 (Alaska App. 1997).
7 See, e.g., Williams v. State, 928 P.2d 600, 604 (Alaska
App. 1996).
8 Atkinson v. State, 869 P.2d 486, 495-96 (Alaska App.
1994); Horton v. State, 758 P.2d 628, 632 (Alaska App. 1988)
(noting that the State has the burden of proving each offense
beyond a reasonable doubt); see also Mill v. State, 585 P.2d 546,
552 n.4 (Alaska 1978) (In marginal cases doubt should be resolved
against turning a single transaction into multiple offenses).
9 See Moore v. State, 123 P.3d 1081, 1092-93 (Alaska App.
2005).
10 See State v. McDonald, 872 P.2d 627, 660 (Alaska App.
1994).
11 Cf. Konrad v. State, 763 P.2d 1369, 1374-76 (Alaska
App. 1988) (noting that the defendants use of his hands to strike
the victim on the head and ribs was not sufficient to support a
finding that he employed his hands as a dangerous instrument).
12 See Whitton, 479 P.2d at 314 (Since the more serious
offense already proscribes and punishes the activity of the less
serious offense, the differences between the two offenses must be
deemed insubstantial or insignificant in relation to the social
interests involved).
13 107 P.3d 290 (Alaska App. 2005).
14 Id at 299.
15 Id.
16 See Hurd v. State, 107 P.3d 314, 322 (Alaska App.
2005).
17 See Allain v. State, 810 P.2d 1019, 1021 (Alaska App.
1991).
1 459 U.S. 359, 365-66; 103 S.Ct. 673, 678; 74 L.Ed.2d 535
(1983).
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