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Olson v. State (11/10/2011) ap-2336

Olson v. State (11/10/2011) ap-2336

                                               NOTICE
 
        The text of this opinion can be corrected before the opinion is published in the 
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        errors to the attention of the Clerk of the Appellate Courts: 

                               303 K Street, Anchorage, Alaska  99501
 
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                         E-mail:   corrections @ appellate.courts.state.ak.us
 

               IN THE COURT OF APPEALS OF THE STATE OF ALASKA 

LEWIS NELS OLSON, 
                                                     Court of Appeals Nos. A-10607 & A-10617 
                Appellant / Cross-Appellee,                  Trial Court No. 3DI-08-026 Cr 

                        v. 
                                                                    O    P  I  N  I  O  N 
STATE OF ALASKA, 

                Appellee / Cross-Appellant.                No. 2336    -   November 10, 2011 

                Appeal     from   the   Superior   Court,    Third   Judicial   District, 
                Dillingham, Fred Torrisi, Judge. 

                Appearances:      Jane   B.   Martinez,   Anchorage,   for   Mr.   Olson. 
                Mary A. Gilson, Assistant Attorney General, Office of Special 
                Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, 
                Attorney General, Juneau, for the State of Alaska. 

                Before:    Coats,    Chief   Judge,  and   Mannheimer      and  Bolger, 
                Judges. 

                MANNHEIMER, Judge. 

                Lewis Nels Olson attacked his girlfriend and broke her jaw.  Based on this 

incident, Olson was charged with first- and second-degree assault, and the jury found 

him guilty of both charges.   Olson moved for a judgement of acquittal on both charges. 

The superior court granted Olson's motion with respect to the first-degree assault charge, 

because the court concluded that Olson had not used a dangerous instrument when he 

----------------------- Page 2-----------------------

attacked his girlfriend (a required element of first-degree assault under subsection (a)(1) 
of the statute). 1    However, the superior court upheld Olson's conviction for second- 

degree assault. 

                 In this appeal, Olson renews his argument that the evidence presented at his 

trial   was   not   legally   sufficient   to   support   his   conviction   for   second-degree   assault. 

Specifically, Olson contends that there was insufficient evidence that the injury to his 

girlfriend's jaw constituted "serious physical injury" (a required element of second- 
degree   assault   under   subsection   (a)(2)   of   the   statute). 2   Olson   also   argues   that   the 

sentence he received for this crime - 7 years' imprisonment, with 3 years suspended 

(i.e., 4 years to serve) - is excessive. 

                 In its cross-appeal, the State challenges the superior court's decision to 

grant Olson a judgement of acquittal on the first-degree assault charge.  The State argues 

that   there   was   sufficient   evidence   to   support   a   finding   that,   when   Olson   struck   his 

girlfriend, he used his hand as a "dangerous instrument". 

                 For the reasons explained here, we uphold all three of the superior court's 

challenged decisions.  That is, we affirm the superior court's decision to acquit Olson of 

first-degree assault, and we affirm Olson's conviction for second-degree assault, as well 

as the sentence he received for that crime. 

         Underlying facts 

                 Lewis     Olson     and   his   girlfriend,    Christine    Petla,   had   a   tumultuous 

relationship that began in early 2007.           Petla moved in with Olson a couple weeks after 

    1   See AS 11.41.200(a)(1). 

    2   See AS 11.41.210(a)(2). 

                                                   - 2 -                                                 2336 

----------------------- Page 3-----------------------

they began dating.      In May 2007, and again in October 2007, Petla received hospital 

treatment after Olson assaulted her.         After the October 2007 incident, Petla's family 

convinced her to seek treatment for her alcoholism. Petla entered an in-patient treatment 

program, and she graduated from that program on January 18, 2008. 

                Around   5:00   in   the   afternoon   on   the   day   after   she   left   the   treatment 

program, Petla met up with Olson at Olson's sister-in-law's house.                 They drank beer 

together, and then, around 9:00 p.m., Petla and Olson went to Olson's house. 

                Olson and Petla sat in Olson's kitchen, drinking more beer, and they began 

to argue.  Eventually, Petla left the kitchen and went into the bedroom.   Olson followed 

her into the bedroom, and they continued arguing.               According to Petla's testimony, 

Olson started to get "pushy", so Petla suggested that they go outside and have a cigarette. 

                After smoking her cigarette, Petla went into the bathroom. When she came 

out, Olson started yelling at her and calling her names.           Using an open hand, Olson hit 

Petla "a couple times" on the left side of her face.          These blows were forceful enough 

that Petla grabbed ahold of Olson's shirt to prevent herself from falling down.                 Olson 

responded by grabbing Petla's throat:  according to Petla, Olson told her, "All I have to 

do is squeeze it" or "[All I have to do is] snap your neck." 

                After Olson said this, Petla punched Olson, and Olson let her go.  Petla ran 

to the phone and called the police and her daughters.           The police responded to the call, 

and Olson was arrested. 

                After this incident, Petla's jaw was in pain, and she was unable to chew. 

However, she did not immediately seek medical treatment for her jaw because she did 

not realize how serious her injury was. 

                Two days later, on January 22nd, Petla went to the hospital and was given 

Vicodin for the pain.      Petla returned to the hospital on January 30th because "she was 

unable to open her mouth, [her jaw was] markedly tender, [and] she had pain with jaw 

                                                 - 3 -                                            2336
 

----------------------- Page 4-----------------------

motion and ... opening and closing her mouth." At the hospital, Petla's jaw was x-rayed, 

and she was diagnosed with a fractured jaw. 

                The type of fracture that Petla suffered is not usually treated surgically 

because the location is inaccessible.        However, Dr. Adele Megli, a dentist who treated 

Petla, decided to refer Petla to an oral surgeon because "[Petla's] fracture was more 

displaced than [she] had seen before."           The oral surgeon determined that "this was not 

something that could be, or should be, treated with surgical intervention."  Instead, Petla 

was instructed not to wear her dentures, and to "eat a very soft diet for a period of time." 

She was also given Tylenol with codeine to help manage the pain. 

                Because of her broken jaw, Petla suffered pain whenever she coughed, 

yawned, laughed, or even smiled, and she could not lift objects of even ten pounds 

because it hurt her to do so.        At a follow-up appointment on February 21st (i.e., one 

month after she was injured), Petla still had pain when she chewed, and she often awoke 

in the night because of pain in her jaw. 

                On March 7th, Petla was still having pain, although the severity of the pain 

had lessened.  She was beginning to eat normal foods again, but her jaw was still tender 

and sensitive to pressure, and her mandible (i.e., her lower jaw) deviated to the side, so 

that she could not open her mouth straight.          By April 7th, Petla "was eating reasonably 

well"; she had "minimal discomfort", and she was "doing as well as could be expected." 

                The State charged Olson with first-degree assault under AS 11.41.200(a)(1) 

(i.e.,   recklessly   causing   serious   physical   injury   to   Petla   by   means   of   a   dangerous 

instrument), and with second-degree assault under AS 11.41.210(a)(2) (i.e., recklessly 

causing serious physical injury to Petla, irrespective of whether a dangerous instrument 

was used). 

                At Olson's trial, after the State concluded its case, Olson's attorney made 

a   motion   for   a   judgement   of   acquittal   on   both   the   first-   and   second-degree   assault 

                                                  - 4 -                                             2336
 

----------------------- Page 5-----------------------

charges.    The defense attorney argued that the evidence failed to establish the crime of 

first-degree assault because there was no evidence that Olson had used his hand in such 

a manner as to constitute a "dangerous instrument".                The defense attorney also argued 

that   the   evidence   was   insufficient   to   establish   either   first-   or   second-degree   assault 

because   there   was   no   evidence   that   Petla's   injury   amounted   to   a   "serious   physical 

injury". 

                 The   trial   judge,   Superior   Court   Judge   Fred   Torrisi,   denied   the   defense 

motion for a judgement of acquittal on the second-degree assault charge.   However, he 

expressed concern as to whether the State had proved that Olson used a "dangerous 

instrument" when he assaulted Petla, and he therefore took the defense motion under 

advisement with respect to the first-degree assault charge. 

                 The case was submitted to the jury, and the jury found Olson guilty of both 

charges. 

                 After the jury rendered its verdict, Judge Torrisi granted the defense motion 

for a judgment of acquittal on the first-degree assault charge.  Specifically, Judge Torrisi 

ruled that the State had failed to present sufficient evidence to establish that Olson had 

used a dangerous instrument when he slapped Petla: 

                         [F]air-minded   persons   in   the   exercise   of   reasonable 
                judgment could not [conclude that] the evidence established 
                 beyond a reasonable doubt that a dangerous instrument was 
                 used by Mr. Olson ... .  While [Mr. Olson] acted recklessly in 
                 disregarding   the   risk   that   his   blow   might   seriously   injure 
                 Ms. Petla, the evidence [is insufficient to] establish that the 
                 defendant hit her with a stick, or the telephone, or even his 
                 fist. Accordingly, the motion for judgment of acquittal on 
                 [first-degree assault] is granted. 

                                                   - 5 -                                               2336
 

----------------------- Page 6-----------------------

                As a first felony offender convicted of second-degree assault, Olson was 

subject to a maximum sentence of 10 years' imprisonment, and he faced a presumptive 
range of 1 to 3 years' imprisonment. 3         Judge Torrisi found one aggravating factor:  that 

Olson's criminal history included repeated instances of assaultive behavior. 4  (Olson had 

assault convictions in 1992, 1993, 1994, 1995, 1997, and 2001.) 

                Because   of   this   aggravating   factor,   Judge   Torrisi   had   the   authority   to 
impose a sentence above the presumptive range. 5            The judge sentenced Olson to 7 years' 

imprisonment with 3 years suspended - i.e., 4 years to serve. 

        The   evidence   presented   at   Olson's   trial   is   not   sufficient   to   support   a 
        conviction for first-degree assault 

                We turn first to the State's contention that the evidence presented at Olson's 

trial was sufficient to establish that Olson used his hand as a "dangerous instrument", and 

that Judge Torrisi therefore should not have granted Olson a judgement of acquittal on 

this charge. 

                The term "dangerous instrument" is defined in AS 11.81.900(b)(15).  For 

purposes of Olson's case, the pertinent portion of this definition is "anything that, under 

the circumstances in which it is used, ... is capable of causing death or serious physical 
injury". 6 

    3   See AS 11.41.210(b) and AS 12.55.125(d)(1). 

    4   See AS 12.55.155(c)(8). 

    5   See AS 12.55.155(a). 

    6   AS 11.81.900(b)(15)(A). 

                                                  - 6 -                                               2336 

----------------------- Page 7-----------------------

                Because this statute speaks of "anything" that, under the circumstances, is 

"capable" of causing death or serious physical injury, one might infer that whenever one 

person strikes another person with their hand or foot, and death or serious physical injury 

ensues, the person who dealt the blow must have used their hand or foot as a "dangerous 

instrument". 

                But as this Court has explained, the statute does not use the phrase "capable 

of causing death or serious physical injury" in this retrospective sense.              The fact that 

serious   physical   injury   resulted   from   the   defendant's   actions   does   not   answer   the 

question of whether the defendant used an object (including the defendant's own hand 

or foot) as a "dangerous instrument". Rather, this question is answered by examining the 

consequences that were reasonably likely to ensue from the defendant's actions, given 

the type of object that the defendant used, and given the manner and circumstances in 

which the object was used. 

                The fact that death or serious physical injury does ensue from a blow struck 

with a hand or a foot is, of course, evidence that the hand or foot was used in a manner 

that would qualify it as a "dangerous instrument".             But the fact that death or serious 

physical injury ensued is not, by itself, sufficient to establish the element of "dangerous 

instrument".    Konrad v. State, 763 P.2d 1369, 1373-74 (Alaska App. 1988); see also 

Wettanen v. State, 656 P.2d 1213, 1217 (Alaska App. 1983) ("Every kick or blow [that] 

causes     serious   injury  ...  will  not  automatically     be  an   assault  with   a  dangerous 

instrument."). 

                Rather,   as   this  Court   explained   in Wettanen,   656     P.2d   at   1218,   "the 

requirement of a dangerous instrument [requires the finder of fact] to shift the focus of 

[its] attention from the result ... , which in any given case may have been unforseeable 

to the defendant at the time the assault was committed, to the manner in which the assault 

was committed." 

                                                - 7 -                                            2336
 

----------------------- Page 8-----------------------

                 In assessing whether a hand or foot qualifies as a dangerous instrument 

under the facts of a particular case, the fact-finder must focus on the manner and the 

circumstances in which the hand or foot was used.                Konrad, 763 P.2d at 1374.          As we 

noted in Konrad, some of the key factors to consider are:               (1) whether the hand or foot 

was used in a manner that was "inordinately violent" or "particularly calculated to inflict 

serious physical injury"; (2) whether the defendant had specialized training in using his 

hands   or   feet   to   inflict   death   or   serious   physical   injury;   and   (3)   whether,   under   the 

circumstances, the victim was particularly susceptible to death or serious physical injury 

from a blow by the defendant's hand or foot.  See id. at 1375. 

                 Turning   to   the   facts   of   Olson's   case,   the   evidence   showed   that   Olson 

slapped or struck Petla a "couple times" with his open hand.  There was no evidence that 

Olson was trying to break Petla's jaw, or that the slaps were "particularly calculated to 

inflict serious physical injury." 

                 Olson obviously hit Petla hard enough to break her jaw   with his open­ 

handed slaps.  But as we explained above, the question of whether Olson used his hand 

as a "dangerous instrument" does not turn on the results that ensued, but rather on the 

results that were reasonably likely to ensue -  i.e. the  manner and circumstances in 

which Olson used his hand. 

                 In weighing this question, the jury was entitled to consider the fact that 

Petla suffered a broken jaw.  But as a matter of law, the jury's ultimate conclusion as to 

whether Olson used his hand in a manner reasonably likely to inflict death or serious 

physical injury could not rest solely on the type of injury that Olson's blows produced. 

                 Here,   there   was   no   evidence,   apart   from   Petla's   injury,   to   support   the 

conclusion that Olson used his hand in a manner that was likely to inflict death or serious 

physical injury. 

                                                   - 8 -                                              2336
 

----------------------- Page 9-----------------------

                The State argues that it presented evidence "that Olson knew how to injure 

someone in the face."       The evidence to which the State refers is Petla's testimony that, 

in the past, Olson had taught her some self-defense moves, including how to hit someone 

in the nose to disable them.   However, Petla also testified that Olson never talked to her 

about hitting a person in a way that would break their bones.                Thus, even though the 

testimony indicated that Olson had training in self-defense, it would be pure speculation 

to conclude that Olson had specialized knowledge of how to slap someone in the face in 

a manner that would break their bones or inflict other serious injury. 

                There was also very little evidence that Petla was particularly susceptible 

to   suffering    serious   physical    injury.   It   is  true  that  Petla   was   petite   (she   was 

approximately 5'1" and weighed 115 pounds) and that she was intoxicated at the time. 

However, Petla had no difficulty walking or maintaining her balance, she was coherent 

and   functional   enough   to   fight   back    when    Olson   slapped   her,   and   she   ran   to   the 

telephone and called for help when he released her. 

                Olson's case is analogous to the facts presented in Braswell v. State, Alaska 

App. Memorandum Opinion No. 2157, 1991 WL 11650678 (February 6, 1991).  The 

defendant in Braswell struck the victim on the side of her head, perforating her eardrum 

and causing serious physical injury (lasting damage to her hearing). Id. at *1-2.  Despite 

the fact that Braswell inflicted serious physical injury on the victim with his hand, this 

Court concluded that there was "insufficient particularized evidence [to establish] that 

the manner in which [Braswell's] hand was used caused the serious physical injury" - 

because "[t]here [was] no evidence [of] anything more than a single blow to the head 

with a hand".  Id. at *4. 

                The   State   argued   in Braswell   that,   because   the   victim   suffered   serious 

physical injury, the trier of fact could reasonably infer that Braswell had used his hand 

in a manner likely to cause serious injury.  But this Court rejected the State's argument: 

                                                 - 9 -                                             2336
 

----------------------- Page 10-----------------------

"[To] permit inferences of the manner in which the hand was used by relying solely on 

the injury produced is exactly what Wettanen and Konrad prohibit."  Ibid (emphasis in 

the original). 

                For these reasons, we agree with Judge Torrisi that the evidence in this case 

was    not   sufficient   to  support   a  finding  that   Olson  used   his   hand  as   a  dangerous 

instrument. And, without proof that Olson used a dangerous instrument, it was improper 

to convict Olson of first-degree assault. Accordingly, we affirm Judge Torrisi's decision 

to grant Olson a judgement of acquittal on the first-degree assault charge. 

        The   evidence   was   sufficient   to   support   Olson's   conviction   for   second- 
        degree assault 

                We next turn to Olson's contention that he should receive a judgement of 

acquittal on the second-degree assault charge - i.e., his contention that the evidence 

presented at his trial was not sufficient to establish that Petla suffered "serious physical 

injury". 

                For purposes of Olson's case, the pertinent definition of "serious physical 

injury"    is  any  physical    injury  that  causes   "serious    and  protracted    disfigurement, 

protracted impairment of health, [or] protracted loss or impairment of the function of a 

body member or organ".         AS 11.81.900(b)(56). 

                Here, the evidence showed that Olson struck Petla and broke her jaw.  One 

of the doctors who treated Petla described her broken jaw as a "significant" fracture 

because her jaw was "very displaced". Another of the doctors who treated Petla testified 

that "[this] fracture was more displaced than [she] had seen before," and that the fracture 

would have been corrected with surgery but for the fact that it was in "a very inaccessible 

area". 

                                                -  10 -                                          2336
 

----------------------- Page 11-----------------------

                This second doctor also stated that Petla's jaw would probably never be the 

same as it was before the incident.   The doctor testified that "[she] wouldn't expect, with 

this kind of a fracture, that [Petla will] be able to open her mouth as wide as she used to, 

or [to] move [her jaw] from side to side [to the extent] she used to." 

                The evidence showed that, a month after the incident, Petla still had pain 

when she chewed, and that she often awoke at night because of the pain in her jaw.                     A 

month and a half after the incident, Petla was still having some pain.               She experienced 

tenderness when she put pressure on her jaw, and her jaw "deviate[d] to the side"; in 

other words, she couldn't open her mouth straight anymore. 

                Petla testified that it was "a couple months" before she could eat a regular 

meal.  Because she was unable to eat normally, she lost approximately 15 pounds (about 

one-eighth of her total body weight) while her jaw was healing.  At the time of Olson's 

trial (over a year after the incident), Petla's jaw still ached when it was cold outside. 

                This evidence was sufficient to support a finding that Petla's injury caused 

"protracted impairment of [her] health" and/or "protracted loss or impairment of the 

function of a body member".  See Walker v. State, 742 P.2d 790, 791 (Alaska App. 

1987),   where   this   Court   held   that   the   victim   suffered   protracted   impairment   of   the 

function of a body member when the victim's broken jaw prevented him from chewing 

food for six weeks. 

                Because   of   the   severity   and   duration   of   Petla's   injury,   Judge   Torrisi 

correctly denied Olson's motion for a judgment of acquittal on the second-degree assault 

charge. 

                                                 -  11 -                                            2336
 

----------------------- Page 12-----------------------

        Olson's sentence is not clearly mistaken 

                As   we   explained   earlier   in   this   opinion,   Olson   received   a   sentence   of 

7 years' imprisonment with 3 years suspended - i.e., 4 years to serve - for the crime 

of   second-degree      assault.   This    sentence    was   considerably     more    severe   than   the 

applicable presumptive range (1 to 3 years' imprisonment), but Judge Torrisi found that 

Olson had a history of assaultive conduct - i.e, aggravating factor AS 12.55.155(c)(8) 

-  and, as a consequence, the judge was authorized to exceed the presumptive range 

when he sentenced Olson. 

                Olson does not challenge Judge Torrisi's finding of aggravator (c)(8). (The 

record shows that Olson had assault convictions in 1992, 1993, 1994, 1995, 1997, and 

2001.)    However, Olson argues that his sentence is excessive because,   according to 

Olson, neither his conduct nor the injury he inflicted on Petla is as serious as the conduct 

and injury found in typical second-degree assault cases. 

                At Olson's sentencing hearing, Judge Torrisi concluded that Olson's current 

offense was serious, but he also stated that he was giving significant weight to Olson's 

extensive history of prior assaults.         Judge Torrisi noted that Olson had abused Petla 

several times, and that Olson also had several convictions for similar assaults on other 

victims.  The judge concluded that "the most important thing [in sentencing Olson] is to 

protect [Petla] and others like her," and to "reaffirm[] community norms." 

                It is true, as Olson points out, that this Court has decided sentence appeals 

where defendants received sentences similar to Olson's even though their conduct was 

more egregious.      However, as this Court explained in Hurn v. State, "affirmance of a 

sentence on appeal means only that we conclude the sentence is not excessive; it does not 

set a ceiling on sentences in similar cases, nor does it necessarily mean that we would not 

                                                 -  12 -                                           2336
 

----------------------- Page 13-----------------------

have affirmed a greater sentence in the appeal being litigated."              872 P.2d 189, 199-200 

(Alaska App. 1994). 

                Moreover, this Court has upheld sentences more severe than the applicable 

presumptive term or range in domestic violence cases where the defendant had a "history 

of repeated serious violence against the same victim."             Pickard v. State, 965 P.2d 755, 

756-57 (Alaska App. 1998) (upholding a sentence of 4 years to serve, plus another year 

suspended, for a first felony offender convicted of third-degree assault).  We stated that, 

in such cases, a trial judge may properly emphasize "the sentencing goals of isolation, 

deterrence, and reaffirmation of societal norms rather than rehabilitation."                Id. at 760. 

                Given the facts of the present case, and given Olson's history of assaults, 

Judge Torrisi was not clearly mistaken in sentencing Olson to 7 years' imprisonment 

with 3 years suspended. 

        The assertion that the statutory definition of "dangerous instrument" is 
        unconstitutionally vague 

                During the proceedings in the trial court, Judge Torrisi suggested that the 

first-degree assault statute might be unconstitutionally vague. When the judge's remarks 

are   read   in   context,   it   appears   that   he   was   actually   suggesting   that   the   definition   of 

"dangerous instrument" might be unconstitutionally vague - and that, as a result, there 

might be no intelligible distinction between second-degree assault under AS 11.41.­ 

210(a)(2) (reckless infliction of serious physical injury) and first-degree assault under 

AS    11.41.200(a)(1)      (reckless    infliction  of  serious   physical    injury   by   means    of  a 

dangerous instrument). 

                The parties have briefed this issue as if it were potentially presented in this 

appeal.   But even though Judge Torrisi talked about this issue, he made no ruling on it. 

                                                 -  13 -                                            2336
 

----------------------- Page 14-----------------------

Thus, there is no ruling for us to review.    Moreover, we are affirming Judge Torrisi's 

decision to acquit Olson of first-degree assault.  Consequently, the question of whether 

the definition of "dangerous instrument" is unconstitutionally vague is moot in Olson's 

case. 

              For both of these reasons, we decline to take up the issue of the purported 

unlawful vagueness in the statutory definition of "dangerous instrument". 

       Conclusion 

              The superior court's decision to grant Olson a judgement of acquittal on the 

charge of first-degree assault is AFFIRMED.          Olson's conviction for second-degree 

assault, and the sentence he received for that crime, are AFFIRMED. 

                                            -  14 -                                      2336
 
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