Court of Appeals No. A-10304.
October 20, 2010.
Appeal from the Superior Court, Third Judicial District, Anchorage, Patrick J. McKay, Judge. Trial Court No. 3AN-07-8872 CR.
Jill Wittenbrader, Contract Attorney, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Terisia Chleborad, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Kenneth D. Moto appeals his conviction for second-degree robbery, arguing that the State failed to present sufficient evidence of the crime. Moto also contends that the trial court made various sentencing errors. We affirm Moto's conviction and his sentence.
In the early morning hours, Kenneth Moto entered Jacob Vesotski's home near downtown Anchorage. Vesotski awoke to find a man fumbling with the computer on his desk, which was ten to twelve feet from his bed.
Moto walked toward where Vesotski lay in bed and told him to go back to sleep, "otherwise he was going to kill [him]." When Vesotski realized he was being robbed, he decided to encourage Moto to take whatever he wanted and leave the house. Vesotski unplugged the computer and carried it out of the bedroom to the front door.
Vesotski handed Moto the computer and tried to push him out the door, but Moto started to fight back. Moto demanded money and yelled, "I'm going to kill you. . . . You better give me something now." Vesotski told Moto that he had another computer upstairs that would be better, and Moto agreed to make the exchange.
Moto told Vesotski that Moto would kill him if he reported the incident to the police. Moto then left the house with Vesotski's computer. The police apprehended Moto as he was attempting to enter a neighbor's house. The police recovered Vesotski's computer, as well as foreign currency belonging to his roommate.
Following a trial before Superior Court Judge Patrick J. McKay, a jury convicted Moto of second-degree robbery, first-degree burglary, third-degree theft, and one count of fourth-degree assault. Moto now appeals. Was there sufficient evidence to convict Moto of second-degree robbery?
In order to prove the crime of second-degree robbery, the State was required to prove that Moto was "taking or attempting to take property from the immediate presence and control of another" person, and that he "use[d] or threaten[ed] the immediate use of force" upon another person with the "intent to . . . prevent or overcome resistance to the taking . . . or the retention of the property." Moto contends that the evidence at his trial was insufficient to prove this crime. We review the evidence in the light most favorable to upholding the verdict, asking whether a reasonable fact finder could have concluded that the State's case was proven beyond a reasonable doubt.
Johnson v. State, 188 P.3d 700, 702 (Alaska App. 2008).
First, Moto submits that Vesotski's computer was not within his "immediate presence or control" because Vesotski was lying in bed and the computer was approximately ten to twelve feet away on his desk. But we have held that the commentary to the robbery statute establishes that the legislature did not intend to require that the property be in physical contact with the victim. "[P]roperty is in a victim's `immediate presence or control' if the property is `close enough to the victim and sufficiently under his control that, had the [victim] not been subjected to violence or intimidation by the robber, he could have prevented the taking.'"
Ward v. State, 120 P.3d 204, 207 (Alaska App. 2005) (citing Commentary on the Alaska Revised Criminal Code, Senate Journal Supp. No. 47 at 27, 1978 Senate Journal 1399).
Id. (quoting 3 Wayne R. LaFave, Substantive Criminal Law § 20.3(c), at 179 (2d ed. 2003)).
Here, as discussed above, the computer was on Vesotski's desk, not far from where he lay in bed. This evidence was sufficient to show that the computer was within Vesotski's control.
Second, Moto argues that the evidence does not show that he was "taking or attempting to take property" from Vesotski. He focuses on Vesotski's decision to try to get Moto out of his house by helping him to disconnect the computer. But Vesotski testified that Moto was already fumbling with the computer when he made his first threats. Vesotski unplugged the computer because he was "terrified" by Moto and wanted him to leave. Then Moto demanded money while Vestoski was trying to get him to leave. This testimony was sufficient to show that Moto was "attempting to take" Vesotski's property.
Third, Moto argues that there was insufficient evidence that he "used or threatened the use of force." But Moto told Vesotski he would kill him if Vesotski did not put his head back on his pillow, or if Vesotski reported the incident to the police. And Moto actually punched Vesotski in the back of the head two or three times to keep Vesotski from pushing him out of the door. The jury could have reasonably concluded that Moto's threats and punches constituted the use of force that intimidated Vesotski and prevented him from retaining his computer.
Fourth, Moto argues that he was so intoxicated that he lacked "the intent to prevent or overcome resistance to the taking . . . or retention of the property." But Moto's behavior suggested that he intended to prevent or overcome resistance from Vesotski. Vesotski testified that Moto knew that he was trying to get him to leave the house, and Moto responded by asking: "Do you think I'm stupid?" Moto twice asked whether Vesotski's roommate was calling the police, and threatened to return if Vesotski reported the incident. The jury could have reasonably concluded that Moto understood and intended the nature of his actions.
In summary, a reasonable juror could have concluded that the evidence presented at Moto's trial was sufficient to establish the elements of second-degree robbery beyond a reasonable doubt.
Moto argues that the superior court improperly found an aggravating factor and improperly failed to find certain statutory and nonstatutory mitigating factors. We review the superior court's factual findings on these issues for clear error and independently assess whether these facts establish these aggravating and mitigating factors. Moto has three or more prior felony convictions.
Michael v. State, 115 P.3d 517, 519 (Alaska 2005).
Moto has a felony conviction for escape and a separate felony conviction for a weapons offense, both entered on March 20, 1997. He also has a conviction for burglary on April 29, 1994. Based on these convictions, the superior court concluded that the State had established an aggravating factor, that the defendant had three or more prior felony convictions.
For purposes of this aggravating factor, "a prior conviction may not be considered if a period of 10 or more years has elapsed between the date of the defendant's unconditional discharge on the immediately preceding offense and commission of the present offense." Moto agrees that his discharge for the 1997 felonies fell within the ten years preceding this offense. But he argues that he does not have three prior felony convictions because his discharge on the 1994 felony fell before this ten-year look-back period.
Moto's argument misinterprets this part of the definition of a prior felony offense. When less than ten years separates the unconditional discharge on a prior felony from the commission of the current offense, then all prior felony offenses, however remote, may be considered for purposes of presumptive sentencing. All three of Moto's prior convictions are recognized for presumptive sentencing purposes because he was discharged from his most recent felony less than ten years before he committed the present offenses. The superior court did not err when it found this aggravating factor.
This offense was not among the least serious second-degree robberies.
Judge McKay concluded that Moto had not proven the mitigating factors he submitted. Moto argues that the judge should have concluded that this offense was "among the least serious conduct included in the definition" of second-degree robbery. This factor is established by evidence that the defendant's conduct approaches a lesser-included offense. In determining whether Moto's offense was the least serious, the judge was entitled to consider the totality of the circumstances surrounding his misconduct.
State v. Parker, 147 P.3d 690, 695 n. 27 (Alaska 2006).
Moto does not argue that his conduct approaches a lesser-included offense. And some of the circumstances of this offense are more serious than a routine robbery. Vesotski was confronted and threatened in his bedroom during the night when he was sleeping. And Moto repeatedly threatened to kill Vesotski. We agree with Judge McKay's decision that this robbery was not among the least serious.
The harm from Moto's conduct has not been consistently minor.
Moto also argues that Judge McKay should have found another mitigating factor, that "the facts surrounding the commission of the offense and any previous offenses by the defendant establish that the harm caused by the defendant's conduct is consistently minor and inconsistent with the imposition of a substantial period of imprisonment." But Moto's criminal background is lengthy and somewhat serious. Indeed, Judge McKay found that Moto's criminal record established three aggravating factors: Moto has three prior felony convictions, he has five or more convictions for class A misdemeanors, and he has repeated convictions for assault.
The State also points out that two of Moto's prior convictions involved especially violent misconduct. Considering Moto's record and the circumstances of this offense, we agree with the judge's conclusion that Moto has not proven this mitigating factor.
See Moto v. State, Mem. Op. J. No. 3798, 1998 WL 191161 (Alaska App. 1998).
Moto did not ask the superior court to find any nonstatutory factors.
A defendant may establish extraordinary circumstances justifying relief from presumptive sentencing if he shows that manifest injustice would result from failure to consider a relevant nonstatutory mitigating factor. Moto argues that the superior court erred by failing to find the nonstatutory mitigating factor, that his current and prior crimes are all related to a treatable condition: his chronic alcohol abuse. But there are several problems with this argument.
AS 12.55.165(a). See generally Smith v. State, 711 P.2d 561 (Alaska App. 1985) (discussing nonstatutory mitigating factors).
A defendant who contends that the superior court should find extraordinary circumstances must file a presentence notice, including a summary of the evidence supporting this finding. Moto did not file any notice that he was relying on a nonstatutory mitigating factor or any summary of the evidence he was relying on. So the superior court did not hold a hearing or make a decision on this issue. If the court had found extraordinary circumstances, then it would have been required to refer the case to the three-judge panel. Moto failed to preserve this issue for review by his failure to make the appropriate request in the superior court.
Also, the superior court may not refer a case to the three-judge panel based on the defendant's potential for rehabilitation if the court finds the aggravating factor described in AS 12.55.155(c)(15) (i.e., "the defendant has three or more prior felony convictions"). As noted above, Judge McKay correctly concluded that this factor applies to this case. So the superior court could not have properly found a nonstatutory mitigating factor based on Moto's potential for rehabilitation.
In addition, the Alaska sentencing code provides that "chronic alcoholism . . . may not be considered an aggravating or a mitigating factor." In circumstances like this, when the legislature has specifically rejected a mitigating factor, then the same factor cannot support a referral to the three-judge panel. Thus, the superior court did not commit plain error when it failed to recognize that Moto's chronic alcohol abuse was a nonstatutory mitigating factor.
Totemoff v. State, 739 P.2d 769, 776-77 (Alaska App. 1987).
The judgment needs to be corrected.
The parties agree that the first page of the judgment should be corrected to show that Moto was convicted of theft in the third degree rather than theft in the second degree. This correction can be made without any further proceedings. Conclusion
We REMAND this case for correction of the judgment as noted above. In all other respects, we AFFIRM the superior court's judgment and sentence.