Opinion
Court of Appeals No. A-11323 No. 6235
09-09-2015
JOSHUA JEREMIAH ZIEGLER, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Rex Lamont Butler, Attorney at Law, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Criminal 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-10-683 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael L. Wolverton, Judge. Appearances: Rex Lamont Butler, Attorney at Law, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge. Judge ALLARD.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Joshua Jeremiah Ziegler was convicted of first-degree robbery and eight other felony offenses in connection with a shooting in Anchorage and the subsequent discovery of a drug operation at the residence where Ziegler was staying.
This Court recently affirmed the convictions of Ziegler's co-defendant, Jason F. Mack. Ziegler raises a number of claims in this appeal, some of which are similar to the claims raised by Mack.
Mack v. State, 2014 WL 4265823 (Alaska App. Aug. 27, 2014) (unpublished).
For the reasons explained here, we conclude that the majority of Ziegler's claims have no merit. However, we agree with Ziegler that his two convictions for second-degree weapons misconduct must merge because they involved the same underlying drug offense, and that one of his convictions for third-degree assault must merge with his conviction for attempted first-degree assault because they involved the same underlying act of force.
Accordingly, we remand the case to the superior court for further proceedings consistent with this decision.
Background facts and prior proceedings
We have summarized the facts in the light most favorable to upholding the indictment and the jury's verdicts. See Iyapana v. State, 284 P.3d 841, 848-49 (Alaska App. 2012); Eide v. State, 168 P.3d 499, 500 (Alaska App. 2007).
On January 18, 2010, Joshua Ziegler accosted Donovan Soares and Soares's friend, Sandor Olah, who were sitting in a truck in the Taco Bell parking lot at the intersection of Old Seward Highway and 88th Avenue. Ziegler punched Soares in the face and accused him of stealing his stereo speakers. After Soares denied the accusation, Ziegler told his girlfriend to call two other people (including Jason Mack, Ziegler's co-defendant) and to tell them to bring guns. Ziegler then looked in Soares's truck and determined that the speakers were not there.
See Mack, 2014 WL 4265823, at *1.
Soon after, Mack and another friend of Ziegler's arrived with firearms. Mack confronted Soares and Olah about the missing speakers and physically assaulted Olah.
Soares and Olah subsequently drove out of the Taco Bell parking lot and sped toward the New Seward Highway. Mack and Ziegler chased after them in separate cars. During the chase, Ziegler fired four shots at Soares, two of which lodged in Soares's truck. After shooting at Soares, Ziegler drove away.
Three days later, the police arrested Ziegler at Mack's apartment, where Ziegler and Mack were hiding out. After obtaining a search warrant, the police searched the apartment, finding weapons and drugs. Specifically, the police found a Glock pistol on the refrigerator, a pistol-grip shotgun in a closet in the master bedroom, approximately 37 grams of marijuana in the room where Ziegler was staying, an additional 150 grams of marijuana in a safe in the master bedroom where Mack and his girlfriend slept, and $3,000 in cash.
Following a jury trial in which Ziegler and Mack were tried together, Ziegler was convicted of nine felony counts: (1) first-degree robbery; (2) conspiracy to commit first-degree robbery; (3) first-degree weapons misconduct for shooting from a moving car; (4) attempted first-degree assault; (5) third-degree assault for recklessly placing Soares in fear of imminent serious physical injury; (6) third-degree assault for recklessly placing Olah in fear of imminent serious physical injury; (7) second-degree weapons misconduct for possessing the Glock pistol in connection with a drug offense; (8) second-degree weapons misconduct for possessing the pistol-grip shotgun in connection with a drug offense; and (9) fourth-degree misconduct involving a con- trolled substance (marijuana).
AS 11.41.500(a)(1).
Id.; AS 11.31.120. This count was subsequently vacated.
AS 11.61.190(a)(2).
AS 11.41.200(a)(2); AS 11.31.100.
AS 11.41.220(a)(1)(A).
AS 11.41.220(a)(1)(A).
AS 11.61.195(a)(1).
AS 11.61.195(a)(1).
AS 11.71.040(a)(2).
Superior Court Judge Michael L. Wolverton ultimately sentenced Ziegler to a composite sentence of 17½ years, with 8 years suspended (9½ years to serve).
This appeal followed.
Ziegler's claims regarding alleged prosecutorial misconduct during the grand jury proceedings
Before trial, Ziegler moved to dismiss his indictment based on alleged prosecutorial misconduct at grand jury. Ziegler argued that the prosecutor committed misconduct by (1) failing to instruct the grand jury on the law until after he presented the facts, (2) improperly involving himself in the grand jury's deliberative process, and (3) eliciting improper propensity evidence about Ziegler's prior arrest involving a pistol-grip shotgun.
Ziegler renews these claims on appeal. He also argues, for the first time, that the prosecutor committed misconduct by introducing misleading testimony about the location of the drugs in Mack's apartment.
In Mack's case, we reviewed the same grand jury proceedings and, although we agreed with Mack that the prosecutor's decision to present evidence before explaining the proposed charges was irregular, we concluded that Mack had not shown that this irregular procedure interfered with the grand jurors' ability to question the witnesses, evaluate their testimony, or otherwise independently evaluate the charges. As we explained in that case, "not every irregularity in a grand jury proceeding entitles the defendant to dismissal of the indictment; the defendant must show that the irregularity influenced the grand jury's decision to indict."
Mack v. State, 2014 WL 4265823, at *3 (Alaska App. Aug. 27, 2014) (unpublished).
Id. at *2 (citing Soper v. State, 731 P.2d 587, 591-92 (Alaska App. 1987)).
We reach the same conclusion here. We agree with Ziegler that, as a general matter, a prosecutor should explain the proposed charges to the grand jury before presenting evidence so as to avoid confusing the grand jury or impeding its consideration of the case. We note that we have previously cautioned against the procedure followed in this case. However, we find that Ziegler has failed to show that the prosecutor's irregular procedure confused the grand jury or influenced its independent deliberations.
See State v. Anderson, 2012 WL 3068318, at *6 (Alaska App. July 25, 2012) (unpublished).
See id.
We also reject Ziegler's claim that the prosecutor improperly inserted himself into the grand jury's deliberative process "under the guise of 'advising' the jurors." The record indicates that the prosecutor appropriately limited his remarks to legal issues, and when a grand juror's question related to an issue of fact or credibility, the prosecutor either admonished the grand jury not to include him in its deliberations or offered to recall a witness.
Ziegler's claim that the prosecutor improperly introduced evidence of his prior arrest involving a pistol-grip shotgun is also without merit. The record shows that this evidence was introduced to demonstrate Ziegler's familiarity with this type of shotgun and that the grand jury was properly instructed on the limited relevance of the evidence. Moreover, even assuming that this evidence was improperly admitted, we conclude that Ziegler would not be entitled to dismissal of the indictment on this basis because the evidence was not the "decisive factor" in the grand jury's decision to indict.
See Stern v. State, 827 P.2d 442, 445-46 (Alaska App. 1992).
Lastly, we agree with the State that Ziegler waived his claim that the prosecutor introduced misleading testimony about the location of the drugs in the apartment because he did not raise this claim below. Nor do we find that the testimony was sufficiently misleading or material to warrant dismissal of the indictment.
See Iyapana v. State, 284 P.3d 841, 846 (Alaska App. 2012) ("[W]hen a defendant raises a grand jury challenge for the first time on appeal, we generally will not review the claim for plain error."); Buckwalter v. State, 23 P.3d 81, 84 (Alaska App. 2001) (holding that when a claim of prosecutorial misconduct during grand jury proceedings is not presented to the court below, the claim is waived on appeal); see also Alaska R. Crim. P. 12(b)(2); Gaona v. State, 630 P.2d 534, 537 (Alaska App. 1981).
Ziegler's claim that the superior court erred in denying his motion to suppress
Before trial, Ziegler moved to suppress the drugs and guns found in Mack's apartment, which was searched pursuant to a search warrant following Ziegler's and Mack's arrest at the apartment. Ziegler argued that the search warrant, which authorized the police to search the apartment for any weapons Ziegler used during the shooting, was not supported by probable cause. The superior court denied this motion on the ground that Ziegler lacked standing to challenge the search of Mack's apartment.
On appeal, Ziegler argues that this ruling was error because the search warrant was directed at him and he had temporarily moved into the apartment. He contends that the court should have granted his request for an evidentiary hearing to establish that he had a privacy interest to assert. We conclude that any error on the issue of standing was harmless because there was probable cause for the court to issue the warrant.
See Fraiman v. State, Dep't of Admin., Div. of Motor Vehicles, 49 P.3d 241, 244 (Alaska 2002) ("[A]n overnight guest can invoke the protections of the Fourth Amendment against a warrantless arrest while staying in the house of a friend."); see also Waring v. State, 670 P.2d 357, 362 (Alaska 1983).
In determining whether there is probable cause to issue a search warrant, a magistrate "need not determine whether the items to be searched for are in fact located at the premises to be searched, but only whether there is a reasonable ground to believe they are there." When we determine whether a magistrate had probable cause to issue a search warrant, we review the facts in a reasonable and common-sense manner and uphold the magistrate's decision unless it was an abuse of discretion.
McClelland v. State, 928 P.2d 1224, 1225 (Alaska App. 1996).
Id.
Contrary to Ziegler's argument, probable cause to believe a defendant is keeping the instrumentalities of a crime in the residence where he is staying does not necessarily dissipate after three days. Here, the affidavit in support of the warrant indicated that Ziegler was a member of a violent gang and had fired shots at another driver during a high-speed chase. Three days later, the police received a tip that Ziegler knew there was a warrant for his arrest and was hiding out in an apartment. The police confirmed that vehicles matching the descriptions of the trucks involved in the chase were parked in front of the apartment, and Ziegler emerged from the apartment. These facts established probable cause to issue a warrant to search the apartment for the presence of the weapon Ziegler used in the crime. We therefore find no merit to Ziegler's claim that the superior court erred in denying his motion to suppress.
See 2 Wayne R. LaFave, Search and Seizure § 3.7(d), at 540-41 n.214 (5th ed. 2012); cf. Snyder v. State, 661 P.2d 638, 645-46 (Alaska App. 1983).
Ziegler's claims that there was legally insufficient evidence to indict and convict him of first-degree robbery
Ziegler argues that the evidence presented at the grand jury and at trial was legally insufficient to indict and convict him of first-degree robbery.
When we review a challenge to the sufficiency of the evidence before a grand jury, we must draw every legitimate inference that may be drawn from the evidence in favor of the indictment. The evidence is sufficient if it is "adequate to persuade reasonable-minded persons that, if unexplained or uncontradicted, the evidence would warrant a conviction by a judge or jury trying the offense."
State v. Williams, 855 P.2d 1337, 1346 (Alaska App. 1993).
Id. (quoting State v. Parks, 437 P.2d 642, 644 (Alaska 1968) (quotation marks omitted)).
When we assess a claim that evidence is insufficient to support a trial jury's verdict, we review the evidence, and the reasonable inferences to be drawn from the evidence, in the light most favorable to the jury's verdict. Viewing the evidence in this light, we will uphold a jury's verdict if fair-minded jurors could conclude beyond a reasonable doubt that the evidence established the defendant's guilt.
Eide v. State, 168 P.3d 499, 500 (Alaska App. 2007); Tipkin v. Anchorage, 65 P.3d 899, 901 (Alaska App. 2003); Simpson v. State, 877 P.2d 1319, 1320 (Alaska App.1994).
Eide, 168 P.3d at 500-01.
A defendant commits first-degree robbery under AS 11.41.500(a)(1) if, while armed with a deadly weapon or representing that he or another participant in the robbery is so armed, the defendant takes or attempts to take property "from the immediate presence and control of another." As we recently explained in Mack:
AS 11.41.500(a)(1); AS 11.41.510; see Beatty v. State, 52 P.3d 752, 756 (Alaska App. 2002) ("A completed robbery requires the use of force or threat of force in an attempt to take property from the immediate presence of the victim.").
[A] defendant is not guilty of robbery unless the State proves that the defendant was attempting to take property from the victim's immediate presence and control. Thus, if a defendant uses unlawful force against a victim after learning that property is not within the victim's immediate presence and control, the defendant might be guilty of assault, but not robbery — because
the force was not used in an attempt to take property from the victim's immediate presence and control.
Mack v. State, 2014 WL 4265823, at *3 (Alaska App. Aug. 27, 2014) (unpublished) (citing Beatty, 52 P.3d at 756) (emphasis omitted).
Ziegler acknowledges that the evidence presented at trial supports a jury finding that he threatened Soares and physically assaulted him when he initially approached him about the missing speakers. But Ziegler points out that there was undisputed evidence at trial that he discovered that Soares did not possess the missing speakers before his friends showed up with the guns. He argues that he cannot be convicted of first-degree robbery under these facts because by the time guns were involved — an essential element of first-degree robbery — Ziegler knew there were no speakers to take and therefore lacked the mens rea to commit robbery.
See AS 11.41.500(a)(1).
The flaw in Ziegler's claim of insufficient evidence is that the jury was instructed that it could convict Ziegler under an accomplice liability theory. As the supreme court has explained,
A person need not commit every element of the offense in order to be guilty as an accomplice. However, it is necessary that he in some way "associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed."
Gordon v. State, 533 P.2d 25, 29 (Alaska 1975) (quoting United States v. Peoni, 100 F.2d 401, 402 (2d Cir. 1938)).
Here, the jury was told that a person is guilty as an accomplice if, "with intent to promote or facilitate the commission of the offense," the person aided or abetted another in planning or committing the offense. The jury was further instructed that "aid or abet" means "to help, assist, or facilitate the commission of a crime, promote the accomplishment thereof, help in advancing or bringing it about, or encourage, counsel, or incite as to its commission."
See Thomas v. State, 391 P.2d 18, 25 (Alaska 1964).
Viewed in the light most favorable to upholding the verdict, the evidence at trial established that after Ziegler accused Soares of stealing his speakers — but before he discovered that the speakers were not in Soares's immediate presence and control — Ziegler told his girlfriend to tell Mack and another friend to bring guns. Soon after, Mack and the friend arrived with the guns, and Mack confronted Soares and Olah about the speakers and physically assaulted Olah. As we explained in our decision in Mack's case, this evidence was sufficient for the jury to convict Mack of first-degree robbery as a principal. We therefore conclude that even if, as Ziegler claims, the evidence was insufficient to convict him of first-degree robbery as a principal, the jury had sufficient evidence to conclude that Ziegler aided and abetted Mack's commission of first-degree robbery, and that Ziegler was therefore legally accountable for Mack's conduct.
Mack, 2014 WL 4265823 at *3-4 (rejecting Mack's claim that there was insufficient evidence to convict him of first-degree robbery).
Because the grand jury heard similar evidence and was also instructed on the legal principles of accomplice liability, we conclude that the grand jury's decision to indict Ziegler on first-degree robbery was likewise supported by sufficient evidence.
Ziegler's other claims of insufficient evidence
Ziegler also asserts that the evidence at trial was insufficient to support his convictions for first-degree weapons misconduct, third-degree assault, second-degree weapons misconduct, and fourth-degree misconduct involving a controlled substance. He also attacks the sufficiency of the evidence before the grand jury on these charges.
We conclude that the evidence at trial and at grand jury was sufficient to support Ziegler's indictment and convictions. The evidence before the grand jury and the trial jury established that Ziegler fired multiple shots at Soares and Olah from a moving vehicle, placing them in apprehension of imminent serious physical injury. This was sufficient evidence for the jury to convict Ziegler of first-degree weapons misconduct and third-degree assault.
See Cleveland v. State, 258 P.3d 878, 882 (Alaska App. 2011); Anderson v. State, 289 P.3d 1, 9 (Alaska App. 2012) (citing Silvera v. State, 244 P.3d 1138, 1142 (Alaska App. 2010)).
The evidence, viewed in the light most favorable to upholding the indictment and verdicts, also established that Ziegler possessed a Glock pistol and a pistol-grip shotgun in connection with his possession of more than one ounce of marijuana that he intended to sell. This was sufficient evidence to support his indictment and conviction on charges of second-degree weapons misconduct and fourth-degree misconduct involving a controlled substance.
Accordingly, we reject these claims of insufficient evidence.
Ziegler's claim that he was entitled to the "least serious conduct" mitigator
Ziegler also argues that the superior court erred in rejecting his proposed statutory mitigator of "least serious conduct" with regard to the second-degree weapons misconduct charges. We conclude that the superior court did not err in rejecting this proposed mitigator given the testimony that both the Glock pistol and the pistol-grip shotgun were loaded and had been strategically placed within the apartment such that Ziegler could easily access them to protect the drug operation from intruders.
AS 12.55.155(d)(9).
See Brockway v. State, 37 P.3d 427, 430 (Alaska App. 2001) (finding no clear error in rejecting least serious mitigator in third-degree weapons misconduct case where a weapon was loaded and other aggravating circumstances were present).
Ziegler's claim that his convictions should merge
As we have explained, Ziegler was convicted of two counts of second-degree weapons misconduct for possessing a firearm during the commission of a felony drug offense. These convictions were based on the two different firearms — a Glock pistol and a pistol-grip shotgun — that were found, along with more than one ounce of marijuana, in Mack's apartment.
AS 11.61.195(a)(1).
Ziegler argues that these two convictions should merge because they were based on the same underlying drug offense and involved the same conduct, intent, and societal interests. He asserts that there is no justification for imposing separate punishments for each gun. We agree.
See Whitton v. State, 479 P.2d 302, 312 (Alaska 1970) (holding that multiple punishments for multiple offenses committed in a single criminal event are appropriate only if there are differences in conduct or intent and those differences substantially protect or vindicate different societal interests).
Although the legislative history of the second-degree weapons misconduct statute does not speak directly to this issue, the history reflects a general intent to follow federal law on the subject. The federal analogue to our second-degree weapons misconduct statute is 18 U.S.C. § 924(c)(1). The overwhelming majority of federal cases interpreting this provision have held that when multiple firearms are possessed during the commission of a single drug offense, separate convictions for different firearms must merge at sentencing. This is largely because the federal statute (like our own second-degree weapons misconduct statute) "emphasizes the relationship between the firearms and the underlying drug-trafficking crime, rather than the individual firearms themselves."
See Minutes of Senate Judiciary Committee, House Bill 396, testimony of Jerry Luckhaupt, Legal Counsel, Legal Services Division, Legislative Affairs Agency, log no. 280 (May 6, 1992) (explaining that "misconduct involving weapons in the second degree" was intended to "parallel[] the federal law on this subject").
See Murray v. State, 54 P.3d 821, 824 (Alaska App. 2002) (noting the parallel between 18 U.S.C. § 924(c)(1) and our second-degree weapons misconduct statute).
See, e.g., United States v. Rentz, 777 F.3d 1105, 1109-15 (10th Cir. 2015); United States v. Diaz, 592 F.3d 467, 470-75 (3d Cir. 2010); United States v. Rodriguez, 525 F.3d 85, 111-12 (1st Cir. 2008); United States v. Anderson, 59 F.3d 1323, 1334 (D.C. Cir. 1995); United States v. Cappas, 29 F.3d 1187, 1191 (7th Cir. 1994); United States v. Taylor, 13 F.3d 986, 994 (6th Cir. 1994); United States v. Lindsay, 985 F.2d 666, 674 (2d Cir. 1993); United States v. Hamilton, 953 F.2d 1344, 1346 (11th Cir. 1992); United States v. Privette, 947 F.2d 1259, 1262-63 (5th Cir. 1991); United States v. Smith, 924 F.2d 889, 894-95 (9th Cir. 1991). But see United States v. Freisinger, 937 F.2d 383, 390 (8th Cir. 1991) (holding that 18 U.S.C. § 924(c)(1) "authorizes prosecution for the possession of each firearm a defendant possesses during and in relation to a single ... drug trafficking crime"), overruled on other grounds by United States v. Beaman, 361 F.3d 1061, 1064 (8th Cir. 2004).
Lindsay, 985 F.2d at 673.
Ziegler additionally argues that his convictions for first-degree weapons misconduct, attempted first-degree assault, and two counts of third-degree assault (against Soares and Olah, respectively) must merge with his first-degree robbery conviction. He relies on our decision in Moore v. State, where we held that when a robbery is also separately charged as a third-degree assault against the same victim and the defendant is convicted of both charges, the double jeopardy clause of the Alaska Constitution requires that the verdicts be merged into one conviction and sentence.
Moore v. State, 218 P.3d 303, 306 (Alaska App. 2009).
We conclude that Ziegler's third-degree assault against Olah does not merge with his robbery conviction because the robbery was directed at recovering property from Soares, not Olah. Ziegler's conviction of attempted first-degree assault also does not merge with the first-degree robbery conviction because attempted first-degree assault requires proof of intent to cause serious physical injury, which is not an element of first-degree robbery.
See AS 11.41.200; AS 11.31.100; AS 11.41.500; AS 11.41.510.
That leaves Ziegler's argument that his conviction for third-degree assault against Soares should merge with his conviction for first-degree robbery. We conclude that we do not need to resolve this issue because it is clear that Ziegler's third-degree assault on Soares was based on the same underlying conduct — firing a gun at Soares from a moving car — as the attempted first-degree assault conviction. When an attempted first-degree assault and a third-degree assault both involve the same victim and stem from the same criminal episode, the convictions must merge.
See Felber v. State, 243 P.3d 1007, 1010 (Alaska App. 2010) (third-degree and first-degree assaults involving same criminal episode and same victim merge); Crane v. State, 1983 WL 807945, at *1 (Alaska App. Nov. 23, 1983) (unpublished) (attempted first-degree assault merges with third-degree assault); see also Soundara v. State, 107 P.3d 290, 299 (Alaska App. 2005) (assault convictions based on separate theories of assault — "fear" and "injury" — merge when based on same underlying conduct). --------
Accordingly, we remand this case to the superior court and direct the court to merge (1) the two second-degree weapons misconduct convictions (count VII and count VIII) and (2) the third-degree assault conviction against Soares (count V) and the attempted first-degree assault conviction (count IV), and to resentence Ziegler accordingly.
Conclusion
We AFFIRM the judgment of the superior court, with the exception that the superior court is directed to merge Ziegler's convictions as set out in this decision and to resentence Ziegler accordingly. We do not retain jurisdiction.