Opinion
Court of Appeals No. A-11205 No. 6143
02-11-2015
DWAYNE ELRON GLEN, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Dan S. Bair, Assistant Public Advocate, Appeals and Statewide Defense Section, and Richard Allen, Public Advocate, Office of Public Advocacy, Anchorage, for the Appellant. Elizabeth T. Burke, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
NOTICE Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law. Trial Court No. 3AN-10-8046 CR MEMORANDUM OPINION Appeal from the Superior Court, Third Judicial District, Anchorage, Gregory Miller, Judge. Appearances: Dan S. Bair, Assistant Public Advocate, Appeals and Statewide Defense Section, and Richard Allen, Public Advocate, Office of Public Advocacy, Anchorage, for the Appellant. Elizabeth T. Burke, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, and Allard and Kossler, Judges. Judge KOSSLER.
Dwayne Elron Glen was convicted of multiple crimes, including first-degree robbery and second-degree misconduct involving a weapon, after he broke into an apartment and discharged a gun. On appeal, he claims that there was insufficient evidence to support the robbery and weapons misconduct convictions. We conclude that there was sufficient evidence to support these convictions, and we therefore affirm the jury's verdicts.
Background facts and proceedings
When we review a claim that the evidence was insufficient to support the jury's verdicts, we view the evidence in the light most favorable to upholding the verdicts. Accordingly, the evidence is recounted in that light.
Dorman v. State, 622 P.2d 448, 453 (Alaska 1981).
On July 22, 2010, Darrell Stickwan was in his apartment when someone contacted him using the building's intercom entry system. When Stickwan answered the intercom, he thought the person contacting him was a man he knew by the name of "Husky." Because of a previous threat, Stickwan was afraid of Husky, so he did not unlock the building's entrance and he decided to leave his apartment.
When Stickwan opened the apartment door to leave, he saw a man who looked like Husky and a woman in the hallway. They were coming toward his apartment. The man was holding a semi-automatic handgun.
There was conflicting evidence about what happened next, but Stickwan ultimately fled his apartment by way of the second-story balcony. Soon after Stickwan jumped from the balcony, he heard a gunshot. After he landed on the ground, he ran to a neighboring apartment complex and called 911.
Police responded and interviewed a number of witnesses. Latasha Jones, who lived in the apartment next to Stickwan's, told the police (and later testified at trial) that she heard a man outside Stickwan's apartment say "give me my money, I want my money," and the sound of a door crashing in. Jones also said she thought someone had been shot.
Other witnesses testified to hearing a gunshot and watching a man and a woman quickly leave the apartment building and then hurriedly leave the area in a Dodge Durango. Police stopped the Durango soon after and identified Glen as the driver. During a search of the vehicle, police found a loaded .380 semi-automatic handgun.
Back at Stickwan's apartment, the police found a spent shell casing on the balcony next to the one from which Stickwan jumped. The spent casing was the same caliber and made by the same manufacturer as the ammunition in the handgun found in the Durango. Police also found a bootprint near the door knob of Stickwan's apartment door that matched the boots Glen was wearing when he was arrested.
The State charged Glen with first-degree robbery, first-degree burglary, second-degree misconduct involving a weapon, and third-degree assault. The jury convicted Glen of all charges. He appeals.
There was sufficient evidence to prove that Glen sought the property of another
A person commits first-degree robbery if, in the course of taking or attempting to take property from the immediate presence and control of another, the person is armed with a deadly weapon. Glen claims there was insufficient evidence for the jury to conclude that he attempted to take property from Stickwan.
AS 11.41.500(a)(1).
As Glen points out, Latasha Jones was the only witness who provided evidence that he attempted to take property from Stickwan's immediate presence and control. Jones testified that she heard a man outside Stickwan's door say "give me my money, I want my money." She said she then heard a man inside the apartment respond that he did not have the money right now. Then she heard the sounds of a door crashing in and a gunshot.
Jones testified that she was mentally ill and that she sometimes heard voices others did not hear. She also said she did not think she was taking her medication at the time of the shooting, and she only realized that what she heard was real when the police questioned her about it.
Glen argues that, in light of Jones's mental illness, no reasonable juror could believe her testimony. He asserts that her testimony was "palpably incredible and ... unbelievable."
When this Court reviews the sufficiency of the evidence, it upholds a verdict if a reasonable jury could conclude that the defendant was guilty beyond a reasonable doubt. This Court does not weigh the evidence or witness credibility, and it views the evidence and all reasonable inferences to be drawn from the evidence in the light most favorable to the verdict.
Sheldon v. State, 796 P.2d 831, 839 (Alaska App. 1990).
Ratliff v. State, 798 P.2d 1288, 1291 (Alaska App. 1990) ("[T]he weight and credibility of evidence are matters for the jury to consider in reaching a verdict, not for the reviewing court to decide in ruling on the legal sufficiency of the evidence.").
Dorman, 622 P.2d at 453.
Applying this standard, we reject Glen's claim that there was insufficient evidence for a reasonable jury to conclude that he demanded money from Stickwan. Reasonable jurors could credit Jones's testimony that she heard a man demand money from her neighbor, especially in light of the independent evidence corroborating the other aspects of Jones's testimony — e.g., the evidence of the forced entry into the apartment and the testimony of other witnesses who heard the gunshot. We conclude that there was sufficient evidence for the jury to convict Glen of first-degree robbery.
There was sufficient evidence supporting the weapons misconduct conviction
Glen was also convicted of second-degree misconduct involving a weapon. A person commits second-degree misconduct involving a weapon if the person knowingly discharges a firearm at or in the direction of a dwelling.
AS 11.61.195(a)(3)(B).
Glen argues that there was no evidence showing the direction in which he fired the handgun after he broke into Stickwan's apartment. He primarily bases his argument on the fact that the police were unable to find the bullet or to show that the bullet actually hit a dwelling.
Glen views the evidence presented in this case in the light most favorable to him. As already explained, when this Court reviews the sufficiency of the evidence, it must view the evidence in the light most favorable to the verdict.
Dorman, 622 P.2d at 453.
Here, there was evidence that Glen broke into Stickwan's apartment and fired a handgun. Glen was in possession of a handgun when he was arrested. A spent shell casing matching the caliber and make of the ammunition found in this handgun was found on the balcony next to the one Stickwan jumped from when he fled the apartment. There was also evidence that a woman who lived upstairs yelled, "[H]e almost hit him." Given this and other evidence presented at trial, the jury could determine that Glen fired the handgun from Stickwan's balcony, and that he fired it in Stickwan's direction.
There was also evidence that Stickwan lived in a high-density residential neighborhood with multiple apartment buildings. According to the testimony, there were residential buildings in "any direction you look." From this, the jury could infer that shooting at Stickwan as he fled would necessarily involve shooting in the direction of a dwelling.
Glen argued below that there was no evidence that he did not shoot into the ground. But the jury heard evidence that Glen "almost hit" Stickwan. Moreover, the prosecutor did not argue that shooting into the ground would constitute the crime of knowingly discharging a weapon at or in the direction of a dwelling.
Cf. Delreal v. State, 2007 WL 518632, at *5-8 (Alaska App. Feb. 21, 2007) (unpublished) (Mannheimer, J., concurring) (rejecting the State's claim that shooting into the air in an urban area would necessarily constitute second-degree weapons misconduct).
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Ultimately, it was up to the jury to weigh the evidence. The jury could reasonably conclude that Glen shot at Stickwan as Stickwan ran toward another apartment building — and that, in doing so, Glen shot in the direction of that dwelling. We conclude that there was sufficient evidence for the jury to convict Glen of second-degree weapons misconduct.
Conclusion
We AFFIRM the judgment of the superior court.