Opinion
Court of Appeals No. A-12527 No. 6801
06-19-2019
SIMEON NICHOLAS STANDIFER, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Jane B. Martinez, Law Office of Jane B. Martinez, LLC, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. Michal Stryszak, 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, although it may be cited for whatever persuasive value it may have. See McCoy v . State , 80 P.3d 757, 764 (Alaska App. 2002). Trial Court No. 3AN-14-09732 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael Spaan, Judge. Appearances: Jane B. Martinez, Law Office of Jane B. Martinez, LLC, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. Michal Stryszak, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Allard, Chief Judge, Harbison, Judge, and Coats, Senior Judge. Judge HARBISON.
Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).
Simeon Nicholas Standifer was convicted by a jury of two counts of third-degree assault for striking two Anchorage Safety Patrol employees after they found him sleeping on the ground and attempted to bring him to a sleep-off center.
AS 11.41.220(a)(5).
Standifer raises three arguments on appeal: (1) that he was entitled to a unanimity instruction for one of the assault charges, (2) that the court's instruction that the safety patrollers had limited authority to use lawful force was erroneous and undermined his self-defense claim, and (3) that insufficient evidence was presented to disprove that he acted in self-defense. For the reasons explained in this opinion, we find no merit to Standifer's arguments and affirm his convictions.
Relevant facts
On October 25, 2014, Anchorage Safety Patrol employees Britany Gilmer and Holly Garcia responded to a report that a person appeared to be passed out near a residential street. The individual smelled of alcohol and appeared to be asleep or unconscious. He was later identified as Simeon Standifer.
Gilmer and Garcia attempted to wake Standifer. Although their initial verbal efforts failed, they were eventually able to bring him back to consciousness through physical contact. Standifer was disoriented and unresponsive to questions from Gilmer and Garcia. They administered a breath alcohol test, which was positive, and decided to take him to the sleep-off center.
Standifer was initially cooperative as Gilmer and Garcia assisted him to his feet and walked him to the safety patrol van. They were holding his arms — one on either side of him. But as the three approached the van, Standifer's demeanor suddenly changed. He flailed his arms, got one arm free, and then began swinging at Garcia, hitting her in the chest. Standifer then struck Garcia on the head and was tackled to the ground by Gilmer.
It is not clear whether Standifer's blow to Garcia's head came before or after he was tackled by Gilmer. Garcia testified that both punches occurred before the tackle, while Gilmer testified that the tackle came first, and the blow to Garcia's head came after, when Garcia tried to pull Standifer off of Gilmer.
Once on the ground, the three continued to struggle. Garcia radioed for help from the Anchorage Police Department. When the police arrived minutes later, Standifer was on top of Gilmer, throwing punches.
Gilmer received injuries to her wrist and her face. These injuries were the basis for the one count of assault charged as to her. The other count of assault was based on the injuries to Garcia that resulted from the blows to her chest and head.
Standifer was not entitled to a unanimity instruction distinguishing the two blows to Holly Garcia because the assault was a single, continuous episode
The jury heard testimony that during the course of a struggle that only lasted a few minutes, Standifer struck Holly Garcia on both the head and the chest. The State charged and presented these blows as a single assault.
During discussions about the jury instructions, the trial court announced its intention to give a unanimity instruction for both assault charges. But the final version of the instructions only gave the unanimity instruction for the assault on Gilmer. The court did not give a unanimity instruction regarding the blows to Garcia. On appeal, Standifer asserts that it was plain error for the judge to fail to instruct the jury on factual unanimity for the assault on Garcia.
Unanimity instructions are required when there is a danger that jurors might convict a defendant of a single crime but base their individual votes on different acts constituting that crime — violating the defendant's right to due process. But when jurors are presented with evidence of multiple culpable actions in a single continuing episode, the defendant may be properly convicted as long as "the defendant's conduct and culpable mental state(s) during that episode satisfy the elements of the crime." (In such cases it would likewise be improper to convict a defendant of separate crimes for those same individual actions.)
See Jackson v. State, 342 P.3d 1254, 1257 (Alaska App. 2014).
Baker v. State, 22 P.3d 493, 500 (Alaska App. 2001) (quoting Norris v. State, 857 P.2d 349, 354 (Alaska App. 1993)).
See Nicklie v. State, 402 P.3d 424, 427 (Alaska App. 2017).
When the course of conduct is broken by a small change in location or lapse in time, the incidents are not legally separate—particularly when the conduct is directed at the same victim and was intended to secure the same objective.
See Andrew v. State, 2018 WL 1136368, at *4 (Alaska App. Feb. 28, 2018) (unpublished) (finding that a single assault occurred when some of the assault happened inside the house and some of the assault happened outside the house); Wilson v. State, 2018 WL 4492289, at *1 (Alaska App. Sept. 19, 2018) (unpublished) (holding that a single assault occurred even though ten minutes separated the first and second attack between the defendant and the victim); see also Mill v. State, 585 P.2d 546, 551-52 (Alaska 1978); S.R.D. v. State, 820 P.2d 1088, 1092-93 (Alaska App. 1991).
Accordingly, in our leading unanimity case, S.R.D. v. State, we held that "multiple blows struck in the course of a single, continuous criminal episode" comprise a single assault unless "[the] blows are struck at clearly separate times and in clearly separate incidents, [as] when one blow is separated from another by a change in purpose, a 'fresh impulse,' or a different provocation."
S.R.D., 820 P.2d at 1092-93 (quoting Gray v. United States, 544 A.2d 1255 (D.C. App. 1988)).
Standifer concedes that multiple blows delivered in quick succession normally constitute a single assault, but he argues that the punches to Garcia's head and chest were not part of a single continuous episode. According to Standifer, the two blows were separate acts delineated by the act of Gilmer tackling Standifer to the ground. Standifer argues that the tackle created a "fresh impulse or different provocation," entitling him to a unanimity instruction to distinguish the punch to Garcia's chest from the punch to her head.
In S.R.D. v. State, we drew the term "fresh impulse" from Owens v. United States, a D.C. Court of Appeals decision that suggests that such an impulse must be supported by a distinct intention. In this case, Gilmer testified that, after she tackled him, Standifer punched Garcia in the head when Garcia tried to pull Standifer off of her. (As we have explained, Garcia testified that both blows happened before Gilmer tackled Standifer.) But there was no evidence that Standifer's mindset changed as a result of the tackle such that the tackle provided a "fresh impulse" or "different provocation."
Owens v. United States, 497 A.2d 1086, 1095-96 (D.C. 1985).
Because the blows to Garcia's chest and head occurred moments apart, during the same fight, and with apparently the same motive, the acts were properly treated as a single assault — even assuming that Standifer was tackled between the two punches. Having applied our independent judgment, we find no error in the court's failure to give a unanimity instruction.
The trial court did not err in instructing the jury on the definition of "lawful force"
At trial, Standifer argued that the safety patrollers had no authority to use force to take him into protective custody and that the court should give a jury instruction stating "Alaska law does not authorize the use of coercive force by medical personnel in executing their job duties." The trial court disagreed, and ultimately it gave two instructions on the safety patrollers' legal authority to use force.
The trial court first instructed the jury about the obligations of the members of the emergency service patrol by quoting a portion of AS 47.37.170(b):
A person who appears to be incapacitated by alcohol or drugs in a public place shall be taken into protective custody by a peace officer or a member of the emergency service patrol and immediately brought to an approved public treatment facility, an approved private treatment facility, or another appropriate health facility or service for emergency medical treatment. If no treatment facility or emergency medical service is available, a person who appears to be incapacitated by alcohol or drugs in a public place shall be taken to a state or municipal detention facility in the area if that appears necessary for the protection of the person's health or safety.Additionally, over Standifer's objection, the judge instructed the jury on the definition of "lawful force." This instruction read:
"Lawful force" includes physical assistance, touching, or manipulation to awake or assist an incapacitated person to the approved public treatment facility. The use of such lawful force must be undertaken in the good faith belief that the person is in fact incapacitated.
The Alaska Supreme Court has determined that AS 47.37.170(b) places an affirmative duty on the safety patrol to take people who appear to be incapacitated by alcohol or drugs in a public place into protective custody. Because the safety patrollers' duty is mandatory rather than optional, we conclude that AS 47.37.170 authorizes members of the safety patrol to use a limited amount of force in order to assist an incapacitated person to an approved facility. Accordingly, we find no error in the court's instructions.
Busby v. Anchorage, 741 P.2d 230, 234 (Alaska 1987) (holding that AS 47.37.170(b) imposes an "affirmative duty to take persons incapacitated by alcohol in a public place into protective custody").
Furthermore, the supreme court has equated taking an incapacitated person to a treatment facility as taking the person into "custody." Since safety patrollers are obligated to take incapacitated persons into custody to transport them, it follows that they are authorized to use force if needed. And AS 47.37.170(i) additionally authorizes safety patrol employees to "take reasonable steps for self-protection, including a full protective search of the person of a detainee." If the incapacitated person does not consent to such a search, these reasonable steps would logically include using force to effect the search. If safety patrol employees are permitted to use force to search detainees, it follows that they are permitted to use reasonable force to transport them to a treatment facility.
See id.
Finally, we note that AS 47.37.170(g) limits civil liability for authorities acting to fulfill their statutory duty to protect incapacitated persons. This is further indication that the law contemplates the use of limited force to assist such individuals when they do not agree to be taken to a treatment facility.
"A person may not bring an action for damages under this section . . . unless the action is for damages caused by gross negligence or intentional misconduct." AS 47.37.170(g).
Here, the trial court's instruction on "lawful force" did not suggest that the safety patrollers could use an unfettered amount of force against Standifer. In fact, it did not even state that the safety patrollers had the authority to use force to detain Standifer against his will.
Although Standifer concedes that the statute "allows emergency personnel to 'assist' incapacitated persons," he argues they had no authority to "coerce" or "force" an incapacitated person to go to a treatment facility, and that, as a result, the instruction given by the court undermined his claim of self-defense. Essentially, Standifer contends that when he expressed that he did not want to go with the safety patrollers, they used coercive force to detain him against his will, and the trial court's instruction limited his ability to argue to the jury that this was unlawful.
But the trial court's instruction did not purport to authorize the safety patrollers to detain Standifer against his will. The instruction stated only that lawful force by the safety patrollers includes "physical assistance, touching, or manipulation to awake or assist." Accordingly, Standifer's self-defense argument was not undermined by the lawful force instruction given to the jury. In fact, the instruction given by the trial court authorized what appears to be the same level of force that Standifer, on appeal, concedes was permitted. It was not error for the court to instruct the jury on "lawful force."
There was sufficient evidence to disprove the theory that Standifer acted in self-defense
Standifer's final argument on appeal is that the State failed to disprove that he acted in self-defense. For the reasons we now explain, we find no merit to this claim.
When a defendant challenges the sufficiency of the evidence to support a criminal conviction following trial, an appellate court is obliged to view the evidence, and all reasonable inferences to be drawn from that evidence, in the light most favorable to upholding the jury's verdict. The question is then whether, based on this view of the evidence, a reasonable juror could conclude that the State had proved its case beyond a reasonable doubt.
Johnson v. State, 188 P.3d 700, 702 (Alaska App. 2008).
Id. (citing Helmer v. State, 608 P.2d 38, 39 (Alaska 1980)).
Based on our review of the evidence presented at Standifer's trial, we find that a reasonable juror could conclude that the State disproved beyond a reasonable doubt that Standifer was acting in self-defense. The evidence showed that Standifer initially cooperated with the safety patrollers as they held his arms and walked him toward their van. Then, without warning to the safety patrollers and without any expression of his unwillingness to go to the sleep-off center, Standifer jerked his arm free and struck Garcia in the chest and head. Gilmer tackled Standifer but he ended up getting on top of her and straddling her. While on the ground, Standifer continued punching and hitting both Gilmer and Garcia, until the police arrived and arrested him. This evidence was sufficient to disprove that Standifer's assaults on Garcia and Gilmer were justified as self-defense.
Conclusion
The judgment of the superior court is AFFIRMED.