Opinion
Court of Appeals No. A-12273 No. 6697
09-12-2018
HAROLD PETE KANKANTON, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Kelly R. Taylor, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Patricia L. Haines, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, 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-14-2292 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Kevin M. Saxby, Judge. Appearances: Kelly R. Taylor, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Patricia L. Haines, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, and Allard, Judge. PER CURIAM.
Harold Pete Kankanton was convicted of two counts of third-degree assault after he advanced on two men with a knife. (The assaults ended when one of the victims drew a handgun and told Kankanton to back off.) Kankanton now appeals these convictions, arguing that the jury's decision was tainted by certain evidence that the trial judge admitted over the objection of Kankanton's attorney. Kankanton also argues that his 6-year composite sentence is excessive.
Prior to trial, Kankanton's attorney presented a motion in limine to exclude a small portion of the testimony that was ultimately given by one of the assault victims, Terrance Slimp. Slimp testified that he first contacted Kankanton because his 14-year-old son came to him and reported that "there was a guy in [their apartment building] hallway [who] was drunk and playing with his nipples or something". Slimp then explained that, based on his son's report, he "went out there and asked [the man] if he was visiting, or ... where he was supposed to be, [or] if he knew anybody [in the building]." According to Slimp, Kankanton said no, and then "he got aggressive with me."
Kankanton's attorney asked the trial judge to prohibit Slimp from testifying about what his son told him — especially the part about Kankanton "playing with his nipples or something". The judge denied this motion.
On appeal, Kankanton argues that Slimp's testimony about what his son told him was inadmissible hearsay. In the alternative, Kankanton argues that even if Slimp's testimony about his son's statement was admissible (either because it was not introduced for the truth of the matter asserted, or because it constituted a present sense impression), the evidence still should have been excluded under Alaska Evidence Rule 403 as unfairly prejudicial, because the son's report suggested that Kankanton was playing with himself sexually. Kankanton argues that any probative value in the son's out-of-court statement could have been communicated equally well if Slimp had simply testified that his son reported that there was an intoxicated, shirtless man in the hallway.
We conclude that any error in admitting this testimony was harmless. The challenged portion of the evidence comprised a mere six words among the twenty-two transcript pages of Slimp's testimony — testimony that was almost completely devoted to a description of Slimp's confrontations with Kankanton that day, including the instance where Kankanton assaulted him with the knife. Having examined the record as a whole, we can fairly say that the challenged evidence had no appreciable effect on the jury's decision.
See Love v. State,457 P.2d 622, 634 (Alaska 1969) (holding that, for instances of non-constitutional error, the test for harmlessness is whether the appellate court "can fairly say that the error did not appreciably affect the jury's verdict").
This leaves Kankanton's argument that his sentence is excessive. Kankanton was convicted of two counts of third-degree assault, one for each of the men he assaulted. At the time of his sentencing, Kankanton was 55 years old, and he had spent the majority of his adult life in jail.
Because of his prior felony convictions, Kankanton was a "third felony offender" for purposes of the presumptive sentencing laws, and he therefore faced a presumptive sentencing range of 3 to 5 years for each of the two assault counts.
See former AS 12.55.125(e)(3) (as of 2014).
The court sentenced Kankanton to serve 4 years on each count. And based on its finding "that the public needs to be protected [from Kankanton]", the court ordered that 2 years of these sentences run consecutively. Thus, Kankanton's composite sentence is 6 years to serve.
On appeal, Kankanton notes that his 6-year sentence exceeds the 5-year maximum sentence that he could have received for either assault count alone. Under Alaska law, a judge cannot sentence a defendant to a composite term to serve that exceeds the maximum sentence for the defendant's single most serious crime unless the judge finds that the sentence is justified by the need to protect the public by isolating the defendant, or for other good cause. See Neal v. State, 628 P.2d 19 (Alaska 1981), as interpreted in Phelps v. State, 236 P.3d 381 (Alaska App. 2010).
In Kankanton's case, his decades-long history of criminal offenses (including several assaults) amply justified the sentencing judge's conclusion that a 6-year composite sentence was necessary to protect the public. Having independently examined the record, we conclude that Kankanton's composite sentence is not clearly mistaken.
See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (an appellate court is to affirm a sentencing decision unless the decision is clearly mistaken). --------
The judgement of the superior court is AFFIRMED.