Court of Appeals No. A-9684.
December 3, 2008.
Appeal from the Superior Court, First Judicial District, Juneau, Larry R. Weeks, Judge, Trial Court No. 1JU-05-1049 CR.
Marcia E. Holland, Contract Attorney, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Nancy R. Simel, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
The grand jury charged Nick F. Lindoff with second-degree assault after he attacked Jeffrey Mills with an axe. Lindoff claimed self-defense at trial, but the jury found him guilty. Lindoff attacks part of the court's jury instructions on self-defense, but because Lindoff did not object to the instructions at trial, he must show plain error. We conclude that Lindoff has not shown plain error.
Lindoff also attack s the superior court's finding that he was a worst offender. Judge Weeks's findings regarding Lindoff's prior convictions, poor history on probation, his poor work history, and his attitude of denial are supported by the record and support the court's worst offender finding. Therefore, we affirm Lindoff's conviction and sentence.
Background facts and proceedings
On the afternoon of August 10, 2005, Jeffrey Mills was drinking with some friends at Lindoff's home in Hoonah. At some point, Mills fell asleep in a recliner and the others left. About two hours later, Mills awoke to find Lindoff standing over him yelling and poking him in the chest with the handle of an axe. Mills grabbed the axe and wrestled with Lindoff for control. The next thing Mills remembered was lying on his back in the bathtub with the axe under his feet. Again, Lindoff was standing over him, yelling and hitting him. Lindoff did not respond when Mills asked him what was wrong. After Lindoff hit Mills several times, Mills fought back, grabbing Lindoff's hair and striking him in the head. Mills was able to leave after hitting Lindoff in the crotch.
Mills had several injuries to his face, which included a severe cut under his left eye and blood coming from his hairline. Mills sustained injuries to his back that appeared to match the back of the axe head. There was also bruising to Mills's chest area, hand, and upper left biceps.
Lindoff testified on his own behalf. Lindoff claimed that only he and Mills were drinking at his house. Lindoff testified that he left the house and when he returned, he was met by Mills who had gotten up out of the recliner. Lindoff testified that he asked Mills to go to the liquor store, and Mills told him to do it himself. An argument ensued, and Lindoff testified that Mills walked to the arctic entry of the house and came back with an axe. Lindoff claimed that he told Mills he would need more than an axe to beat him up. Lindoff explained that Mills clubbed him with the axe handle on the side of the head. Lindoff testified that he blocked Mills from hitting him again and punched Mills in the eye. He stated that he fell to the floor after Mills hit him again. Lindoff testified that he did not remember much until he was getting up from the floor and saw Mills standing in the bathroom. Lindoff then went to the bathroom, and as Mills put his hand up, Lindoff pushed him and Mills fell into the bathtub. He stated that he saw the axe in the tub behind Mills and went to grab it, but Mills started punching him in the face. Lindoff testified that he punched Mills back, and Mills grabbed the axe. Mills then "clubbed" Lindoff in the face, this time with the axe head, and Lindoff testified that he did not remember anything after that.
Lindoff claimed self-defense. At the beginning of trial, Superior Court Judge Larry R. Weeks raised the issue of jury instructions and proposed that he would give the self-defense instructions offered by the State. The packet included standard pattern jury instructions on self-defense, along with an instruction that read:
The law of self-defense is designed to afford protection to one who is beset by an aggressor and confronted by a necessity not of [his] own making. Therefore, only the person who fires the first shot, strikes the first blow, or speaks the first insult can be deemed an initial aggressor. A person who provokes a difficulty forfeits his right to self-defense.
Judge Weeks asked counsel if there were any objections to the jury instructions. Lindoff stated that he had no objections. Judge Weeks then instructed the jury without objection on self-defense. The jury convicted Lindoff of second-degree assault.
During sentencing, Judge Weeks found two statutory aggravating factors from AS 12.55.155(c) based on Lindoff's prior criminal history: (c)(8) (Lindoff's criminal history included aggravated or repeated instances of assault), and (c)(15) (Lindoff had three or more prior felony convictions). Judge Weeks also found that Lindoff was a worst offender and imposed the maximum 10-year sentence for second-degree assault. Lindoff appeals.
AS 11.41.210(b); AS 12.55.125(d)(4).
The challenged jury instruction does not create plain error
When a defendant does not object to a jury instruction, we review a challenge to that instruction for plain error. A plain error in a jury instruction must be so obvious that any competent judge or lawyer would have recognized the problem. Additionally, the allegedly flawed jury instruction must create "a high likelihood that the jury followed an erroneous theory resulting in a miscarriage of justice."
See Allen v. State, 51 P.3d 949, 958 (Alaska App. 2002).
Lindoff argues that the sentence in the challenged jury instruction — "A person who provokes a difficulty forfeits his right to self-defense" — was ambiguous and erroneous. Lindoff asserts that because "provokes a difficulty" was not defined, the jury could have concluded that Lindoff forfeited his right to self-defense because he started an argument with Mills about buying more alcohol, ordered Mills to leave his house, or made the statement that Mills would need more than an axe to beat him up. Lindoff argues the trial court should have clarified that arguing with Mills did not constitute "provok[ing] a difficulty."
Lindoff further argues that the court should not have included the challenged sentence or should have instructed the jury using language from Brown v. State, which explained that an initial aggressor is determined by looking at whether the assault occurred "in the course of a dispute provoked by the defendant at a time when he [knew] or ought reasonably to [have known] that the encounter [would] result in . . . combat." Lindoff argues that when the trial court failed to do either of these, it allowed the jury to find that he forfeited his right to self-defense when he confronted Mills.
698 P.2d 671 (Alaska App. 1985).
Id. at 674 (alterations in original).
The genesis for the challenged instruction is found in several cases: Gray v. State, Toomey v. State, and Bangs v. State. In Gray, the supreme court addressed whether a defendant committing an armed robbery can claim self-defense in response to a police officer's alleged use of excessive force during an arrest. While ruling on the self-defense claim, the court announced that "a person who provokes a difficulty thereby forfeits his right to self-defense."
463 P.2d 897 (Alaska 1970).
581 P.2d 1124 (Alaska 1978).
608 P.2d 1 (Alaska 1980).
Gray, 463 P.2d at 908-910.
Id. at 908-910.
In Toomey, the supreme court stated, "While ordinarily one who provokes a difficulty forfeits the opportunity to claim self-defense, it is established that where the initiator abandons his aggressive posture and then is subjected to an assault or attempted assault, the privilege of self-defense may be asserted." The instruction in question in Toomey was similar to the challenged instruction in this case:
Toomey, 581 P.2d at 1126.
[Self-defense] is ordinarily not available to a person who provokes a difficulty from which he attempts to extricate himself with excessive force unless there is a clear showing that such person abandons his initial purpose and retreats from the difficulty initially provoked and is placed in danger thereafter by an aggressive act of another.
Id. at 1127 n. 11.
And in Bangs, the supreme court rejected Bangs's argument that he was entitled to self-defense instructions: "The law of self-defense is designed to afford protection to one who is beset by an aggressor and confronted by a necessity not of his own making."
Bangs, 608 P.2d at 5.
Even though the sentence Lindoff challenges — "A person who provokes a difficulty forfeits his right to self-defense" — was taken directly from Gray, Lindoff claims that it was error to give the instruction. Lindoff argues that the court should have included language from Brown explaining that an initial aggressor is determined by looking at whether the assault occurred "in the course of a dispute provoked by the defendant at a time when he [knew] or ought reasonably to [have known] that the encounter [would] result in . . . combat."
Considering the case law supporting the instruction, we doubt whether it would have been readily apparent to a competent judge, without an objection, that the instruction was flawed.
Furthermore, after reviewing the evidence and the final arguments of the parties, we conclude that Lindoff has not shown a high likelihood that the jury followed an erroneous theory that would lead to a miscarriage of justice. The State argued that Lindoff was guilty because Lindoff was the first aggressor. Lindoff argued that he was not guilty because Mills started the altercation and, therefore, Mills was the first aggressor. Thus, the evidence and the arguments of the parties presented the jury with two competing views. In these circumstances, there w as no substantive ambiguity in the phrase "provokes a difficulty." Lindoff has not demonstrated any likelihood that the jury followed an erroneous theory resulting in a miscarriage of justice.
Accordingly, Lindoff has not shown plain error.
The record supports the superior court's worst offender finding Lindoff argues that Judge Weeks erred when he found that Lindoff was a worst offender. Lindoff points out that the prior misdemeanor assaults the court relied upon in its findings were more than ten years old, and the three felony convictions in his criminal record occurred in 1982 and 1997. Lindoff also argues that the court should not have considered his violations of probation because the probation conditions for his sex offense conviction were "onerous."
Because Lindoff was a third felony offender, he faced a presumptive sentencing range of 6 to 10 years' imprisonment. Based on Lindoff's three prior felony convictions and his criminal history of repeated assaults, Judge Weeks found the two statutory aggravating factors discussed above from AS 12.55.155: (c)(8) and (c)(15). Judge Weeks thus found that Lindoff was a worst offender based on his prior misdemeanor and felony convictions, his history of several probation revocations, his "grim" work record, and his attitude of denial.
See AS 12.55.125(d)(4).
A maximum sentence should not be imposed "without some foundation for characterizing a defendant as the worst type offender." A worst offender finding may be based on the facts of the defendant's offense, the defendant's criminal history, or both. In State v. Wortham, the supreme court listed factors for courts to consider when determining whether someone is a worst offender:
Some of the factors which this court has looked to in order to support such a characterization — and the imposition of a maximum term — have been prior criminal convictions, age, military records, employment history, drug or alcohol addiction, presentence report evaluations and recommendations, and behavior which has been considered to demonstrate an antisocial nature or dangerous propensities which pose a clear risk to the public.
Wortham, 537 P.2d at 1120.
Lindoff's criminal history included the three prior felony convictions, all for sexual abuse of a minor. The first was in 1982, and the other two were in 1997. Lindoff had nine misdemeanor convictions, including four convictions for assault. In addition, Lindoff violated probation nine times.
The presentence report found that Lindoff was non-compliant or non-amenable to treatment because he had failed at both substance abuse treatment and sex offender treatment. Lindoff's attitude of denial is shown by his allocution, where he demonstrated a lack of remorse for assaulting Mills.
Judge Weeks also cited Lindoff's poor work record. And based on Lindoff's criminal history, his age, and his poor performance on probation, Judge Weeks found that Lindoff was a poor prospect for rehabilitation.
From our review of the sentencing record, we conclude that the record supports Judge Weeks's worst offender finding and his decision to impose the maximum term.
The judgment of the superior court is AFFIRMED.