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Court of Appeals No. A-11311 (Alaska Ct. App. Apr. 23, 2014)

Court of Appeals No. A-11311 Trial Court No. 3DI-11-179 CR No. 6046


GALU SOLO VALA JR., Appellant, v. STATE OF ALASKA, Appellee.

Appearances: Nancy Driscoll Stroup, Law Office of Nancy Driscoll Stroup, Palmer, for the Appellant. W.H. Hawley, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.


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.


Appeal from the Superior Court, Third Judicial District, Dillingham, Patricia Douglass, Judge.

Appearances: Nancy Driscoll Stroup, Law Office of Nancy Driscoll Stroup, Palmer, for the Appellant. W.H. Hawley, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.

Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge.

Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution and Administrative Rule 24(d).


A jury convicted Galu Solo Vala Jr. of assault in the second degree for recklessly causing serious physical injury to his former girlfriend when he punched her in the face, and of interfering with her attempt to report this domestic violence. The evidence at trial established that when Vala punched the victim, he fractured bones in her left orbit — the socket that surrounds and supports the eye. A doctor performed surgery to repair the injury. Vala contends that because the victim's injuries had healed by the time of trial, they were not "protracted," so there was insufficient evidence to establish that the victim suffered serious physical injury as defined by AS 11.81.900(b)(57)(B). We have reviewed the record and conclude that the evidence was sufficient to support a finding of serious physical injury.

AS 11.41.210(a)(2).

AS 11.56.745.

At the time of Vala's trial, the definition of "serious physical injury" was codified in AS 11.81.900(b)(56)(B)(2012).

The superior court sentenced Vala to 6 years of imprisonment for the assault and an additional year for interfering with a report of domestic violence. Vala argues that the court erred by not finding that his mitigating factors were established, and that his sentence is excessive. Vala did not preserve his mitigating factor claim for appeal, and we conclude that the sentence is not clearly mistaken.

We affirm Vala's conviction and his sentence.

Facts and proceedings

When a defendant claims that a criminal conviction is not supported by sufficient evidence, we must view the evidence (and all reasonable inferences to be drawn from that evidence) in the light most favorable to upholding the verdict. The facts of Vala's case are therefore presented in that light.

Richards v. State, 249 P.3d 303, 304-05 (Alaska App. 2011).

Vala and Heather Olson were in a romantic relationship for approximately ten years, until they separated in 2011. Vala and Olson worked together at a bar in Dillingham, and after work one night they picked up their four-year-old daughter from her babysitter and went to Vala's apartment, where Olson kept some of her belongings. When Olson told Vala that she was going to leave the apartment, Vala became upset and punched her in the face repeatedly with his fist. Olson dialed 911 and put the phone under a pillow. Over the next eight minutes, Vala was heard berating Olson and repeatedly threatening her, including telling her that "it doesn't matter to me if I get locked up for life, you're dead." Olson was heard yelling for help and begging Vala to stop.

When a police officer arrived and knocked on the door, Vala and Olson's daughter said, "Sorry cop, my daddy said not to let you in." Following her statement, the officer heard furniture being placed against the door. The officer then heard Olson scream, and he forced his way into the residence. Vala told the officer to shoot him, and then retreated into a bathroom where Olson was. The officer forced his way into the bathroom, struggled with Vala, and ultimately arrested him. Vala's breath alcohol was later determined to be .243 percent.

The officer observed injuries to Olson's face and transported her to the hospital. The emergency room physician testified at trial that Olson exhibited bruises on her head, face, and eyes. Her face was swollen, and her left eye was swollen shut. A CT scan revealed that Olson had suffered a "blowout fracture" of her left orbit. The doctor explained that the orbit is a socket comprised of bones that surround and support the eye. He also testified that the fat that cushions the eye was forced down into Olson's sinus and that the sinus was full of blood. The doctor explained that the orbital fracture was a significant injury that required surgery, so he arranged for Olson to be sent to Anchorage to be treated by a specialist.

Dr. Bryan Wachter, an ear, nose, and throat surgeon in Anchorage, evaluated Olson and found that she had sustained two orbital fractures. After several days of observation, the doctor became concerned that Olson's eye was "sinking in," and decided to surgically repair the injuries. He explained that the broken bones were very thin and unlikely to heal and, as a result of the fractures, the floor of the orbit was effectively missing. To compensate for this, Dr. Wachter inserted a small dissolvable plastic plate under Olson's eye to support the fat and soft tissue. He testified that the plate typically dissolves within "a couple months," during which time scar tissue forms and supports the eye so it does not sink. Dr. Wachter noted that Olson exhibited no complications from the surgery but she experienced some mild double vision.

The State charged Vala with assault in the second degree, asserting that he recklessly caused serious physical injury to Olson. Vala's trial was held nine months after the incident in which Olson was injured. Olson testified at trial that she had no difficulty moving her eye and that while she experienced double vision for a time after the assault, it was no longer present. She explained, however, that she continued to experience headaches on the same side of her head as her injured eye and that these headaches usually began in that eye. While the frequency of the headaches varied, at times they occurred on a daily basis. She acknowledged that she had experienced headaches prior to the assault, but she testified that the headaches after the assault were different because they originated in her eye.

AS 11.41.210(a)(2).

When asked how the left side of her face felt at the time of trial, Olson testified that she did not feel permanent pain there but that she still felt numbness and tightness in her eye. When asked if she felt healed after the surgery, Olson stated she did not have "permanent damage" but had the feeling of tight skin and could "still feel the thing in there," apparently referring to the scar tissue that had formed beneath her eye.

The evidence was sufficient to establish that the victim suffered serious physical injury

Vala contends on appeal that the evidence presented at trial was not sufficient to establish that Olson suffered serious physical injury, which is an element of assault in the second degree as charged by the State. The definition of serious physical injury that pertains to Vala's charge is "physical injury that causes serious and protracted disfigurement, protracted impairment of health, [or] protracted loss or impairment of the function of a body member or organ." The trial court provided this definition to the jury. One of Vala's defenses at trial was that Olson's injuries were not protracted and thus did not satisfy the statutory definition of serious physical injury. The jury rejected this defense and convicted Vala of assault in the second degree.

Former AS 11.81.900(b)(56)(B) (2012), now codified at AS 11.81.900(b)(57)(B).

Vala acknowledges that Olson was injured, but he contends that her injuries did not cause the protracted results that are required to establish serious physical injury. To support this contention, Vala points to Olson's testimony that her vision was not impaired, that she had no visible scars, that she only took pain medication for a short period of time after her surgery, that she was able to return to work promptly, and that she did not feel that she had any permanent damage. Vala recognizes that at the time of trial Olson still experienced headaches. However, he argues that these headaches were not caused by the assault because Olson suffered from headaches even before the injury.

The problem with Vala's argument is that it is based on only selected portions of the record, which he views in the light most favorable to himself. When this Court determines whether there is sufficient evidence to support a conviction, we are obliged to view the evidence, and inferences to be drawn from it, in the light most favorable to upholding the jury's verdict. When viewed in this light, the record reveals that nine months after the assault, a portion of Olson's orbital floor was effectively missing. She could feel what was apparently the scar tissue that had formed under her eye, and she continued to experience numbness, tightness in her eye, tight skin, and frequent headaches that were different from her prior headaches because they began in her injured eye.

Simpson v. State, 877 P.2d 1319, 1320 (Alaska App. 1994).

We have independently reviewed the record from Vala's trial. The evidence in the record, when viewed in the light most favorable to upholding the verdict, constitutes a sufficient basis for fair-minded jurors to conclude that Olson suffered protracted impairment of health. The evidence presented at trial was therefore sufficient to support the jury's verdict.

See Eide v. State, 168 P.3d 499, 500-01 (Alaska App. 2007).

The sentence imposed by the superior court is not clearly mistaken

Vala also argues on appeal that the superior court erred when it failed to find the mitigating factors he proposed, and that the court imposed an excessive sentence.

We note that we currently have jurisdiction to consider Vala's excessive sentence claim under Appellate Rule 215(a), notwithstanding the legislative restrictions under AS 12.55.120(e). See Mund v. State, ___ P.3d ___, Op. No. 2413, 2014 WL 1133555 (Alaska App. March 21, 2014).

The jury convicted Vala of assault in the second degree, a class B felony with a maximum sentence of 10 years of imprisonment, and of interfering with a report of a crime involving domestic violence, a class A misdemeanor with a maximum sentence of one year. Because Vala had previously been convicted of first-degree assault in Hawaii — reduced from murder — he was subject to a presumptive sentencing range of 4 to 7 years for the present assault.

AS 11.41.210(b); AS 12.55.125(d).

AS 11.56.745(c); AS 12.55.135(a).

AS 12.55.125(d)(3).

Vala claimed that Olson provoked the assault and that the mitigating factors provided by AS 12.55.155(d)(6) and (d)(7) therefore applied to his case. We have already held in Smith v. State that mitigator AS 12.55.155(d)(7) does not apply to defendants convicted of felony assault. Superior Court Judge Patricia Douglass did not rule on mitigator AS 12.55.155(d)(6). She did, however, find an aggravating factor — that Vala had been convicted of first-degree assault in Hawaii. The court sentenced Vala to 6 years with none suspended for the assault and to a consecutive term of 1 year for interfering with a report of domestic violence.

AS 12.55.155(d)(6) (the defendant acted with serious provocation from the victim); AS 12.55.155 (d)(7) (the victim provoked the crime to a significant degree).

229 P.3d 221, 226 (Alaska App. 2010).

AS 12.55.155(c)(8).

Vala argues that the sentencing court erred by not finding the mitigators he proposed. However, mitigator AS 12.55.155(d)(7) does not apply to his offense. And because Vala did not obtain a ruling from the sentencing court on mitigator AS 12.55.155(d)(6), he has waived this claim on appeal.

See Pierce v. State, 261 P.3d 428, 430-31 (Alaska App. 2011) ("[A] litigant is not entitled to pursue a claim on appeal unless that claim was presented to the lower court, and unless the lower court issued a ruling on the merits of that claim."); Bryant v. State, 115 P.3d 1249, 1258 (Alaska App. 2005) ("Normally, an appellant may only appeal issues on which he has obtained an adverse ruling from the trial court.").

Vala also contends that the court failed to properly consider the sentencing criteria, including his prospects for rehabilitation, and imposed an excessive sentence. Sentencing is a discretionary judicial function. In exercising this discretion, the judge must consider the Chaney sentencing factors: the seriousness of the offense, the defendant's prior criminal history and likelihood of rehabilitation, isolation of the offender to prevent criminal conduct, deterrence of the defendant and others generally, community condemnation of the criminal act, reaffirmation of societal norms, the impact of the crime on the victim, and restoration of the victim. The sentencing court bears primary responsibility for determining the priority and relationship of the various sentencing goals in each case. When reviewing a sentence, this Court will not disturb the sentencing court's decision unless it is clearly mistaken.

State v. Chaney, 477 P.2d 441, 443 (Alaska 1970).

AS 12.55.005; Chaney, 477 P.2d at 444.

Asitonia v. State, 508 P.2d 1023, 1026 (Alaska 1973).

Nicholas v. State, 477 P.2d 447, 449 (Alaska 1970).

The sentencing court considered the seriousness of Vala's assault and the physical and psychological impact it had on Olson as well as their young daughter, who was present when Vala assaulted and threatened to kill her mother. The court also considered Vala's criminal history, including his felony assault from Hawaii, and the fact that he had absconded from probation in that case and ultimately served all of his parole time. The court considered rehabilitation and ordered Vala to participate in anger management if available in prison, but concluded that the sentence should emphasize the goals of community condemnation and deterrence.

The sentencing court carefully considered the sentencing criteria, and, upon this record, the sentence the court imposed is not clearly mistaken.


Vala's conviction and sentence are AFFIRMED.