MEMORANDUM OPINION
Star page 1*1 Cooper Trannie Gordon was convicted, following a jury trial, of second-degree murder for shooting and killing his friend, Terry Spencer.1 Gordon was also convicted of second-degree theft for stealing Spencer's firearms and third-degree weapons misconduct for being a felon in possession of a concealable firearm.2
Gordon now appeals his second-degree murder conviction, raising two claims of error. First, he argues that the evidence was insufficient to support the jury's guilty verdict under AS 11.41.110(a)(2) (the defendant “knowingly engages in conduct that results in the death of another person under circumstances manifesting an extreme indifference to the value of human life”). Second, he argues that the jury's guilty verdict for second-degree murder under AS 11.41.110(a)(1) (the defendant causes the death of any person “with intent to cause serious physical injury to another person or knowing that the conduct is substantially certain to cause death or serious physical injury to another person”) was fatally inconsistent with the jury's decision to acquit him of first-degree murder under AS 11.41.100(a)(1)(A) (“with intent to cause the death of another person, the [defendant] causes the death of any person”). For the reasons explained in this decision, we reject both claims of error.
Background facts and prior proceedings
On October 19, 2019, a hunter found a body, later identified as Terry Spencer, in the Meadow Lakes area near Wasilla. The last time Spencer had been seen was two days earlier, on October 17.
Spencer's body was found under a blue blanket. There was an obvious gunshot wound to his forehead. His jacket had been pulled up, his pants had been pulled down, and there was mud on his buttocks, suggesting that he had been dragged along the ground. The area where Spencer was found was known for target shooting, so there were bullet casings all around, along with a shooting cutout on a tree near Spencer's body.
A later autopsy confirmed that Spencer's cause of death was a “penetrating gunshot wound of the head, indeterminate range.” The lack of stippling or soot on Spencer's body suggested that he was shot from at least two feet away and that the wound was not self-inflicted. The bullet fragment taken from Spencer's skull was too damaged to make a definitive determination, but it appeared as though it came from a gun Spencer owned (a Glock).
An investigation determined that Gordon, a friend of Spencer's, had gone shooting in the Meadow Lakes area with Spencer on October 17, around the time Spencer died.3 When the troopers contacted Gordon to ask about Spencer, Gordon was evasive about whether he even knew Spencer. The troopers obtained search warrants, and a later search of the motorhome where Gordon was living revealed numerous items that belonged to Spencer, including Spencer's Glock and holster and another of Spencer's firearms (a nine millimeter Taurus) and holster. Gordon's print was found on the Taurus.
Star page 2*2 A search of Gordon's cell phone showed that he and Spencer had been texting one another in the weeks before Spencer's death. Upon review, there were a few messages that suggested there may have been an argument or disagreement between the two men.4 Additionally, Gordon's phone was near Meadow Lakes around 5:25 p.m. on October 17, the day Spencer disappeared.
Also on Gordon's cell phone were text messages with his ex-girlfriend that predated Spencer's death, discussing her need for a vehicle and asking for his help finding one. After Spencer's death, Gordon lent his ex-girlfriend Spencer's Jeep. This was discovered when the troopers stopped the ex-girlfriend while she was driving the car. She told the troopers that Gordon had lent her the vehicle and had told her he acquired the Jeep because “he did a job for somebody.” The ex-girlfriend later testified at trial that Gordon had also discussed wanting a firearm.
The cell phone search further revealed that on October 18, the day after Spencer disappeared, Gordon messaged a friend trying to give away “a vehicle,” saying that it “runs, drives[, e]verything works, and it's insured.” That next day, Gordon searched the internet for “taurus 92” and gun shows in Wasilla, suggesting that he was interested in selling the Taurus firearm that he had taken from Spencer.
Lastly, the cell phone search showed that on October 20, Gordon texted Spencer's cell phone: “Where the fuck are you at? I got some girl texting me saying your dead.” However, Gordon's phone did not actually contain any text messages from “some girl” saying that Spencer was dead.
Investigators also interviewed two of Spencer's friends who provided additional information that incriminated Gordon.5
Gordon was subsequently arrested and charged with first-degree murder, two counts of second-degree murder, second-degree theft, and third-degree weapons misconduct (felon in possession).6
Star page 3*3 At trial, the State's primary theory was that Gordon intentionally killed Spencer in order to steal his property and that Gordon was therefore guilty of first-degree murder. In the alternative, the prosecutor argued that Gordon was guilty of second-degree murder because Gordon shot Spencer intending to cause serious physical injury because “you don't shoot someone or point a gun at someone and pull the trigger and expect not to cause serious physical injury.” The prosecutor similarly argued that Gordon knew his conduct was likely to cause death or serious physical injury because “you don't point a firearm at someone and pull the trigger and not expect there to be a death or serious physical injury.” Lastly, the prosecutor argued that Gordon was guilty of extreme indifference second-degree murder because “pointing a firearm at someone [and] pulling the trigger” qualifies as “extreme recklessness.”
Gordon's attorney argued that the State had not proved that Gordon, rather than another person, had killed Spencer. The defense attorney also argued that the shooting could have been the result of ordinary recklessness or criminal negligence. Lastly, the defense attorney argued that Gordon's possession of Spencer's property was not necessarily proof that Gordon stole the items because he could have just been borrowing or storing the property.
The jury acquitted Gordon of first-degree murder but convicted him of second-degree murder under AS 11.41.110(a)(1) (causing the death of any person “with intent to cause serious physical injury to another person or knowing that the conduct is substantially certain to cause death or serious physical injury to another person”) and AS 11.41.110(a)(2) (“knowingly engag[ing] in conduct that results in the death of another person under circumstances manifesting an extreme indifference to the value of human life”). The jury also convicted Gordon of second-degree theft for stealing Spencer's firearms. After the jury returned these verdicts, Gordon waived his right to a jury trial on the remaining count — third-degree weapons misconduct — and the superior court convicted him of that count.7
At sentencing, the superior court merged the guilty verdicts for second-degree murder8 and sentenced Gordon to 50 years to serve on the second-degree murder conviction. The court also sentenced Gordon to 3 years for the theft conviction and 3 years for the weapons misconduct conviction — each to be served consecutively to the murder sentence — for a composite term of 56 years to serve.
This appeal followed.
Why we conclude that the evidence was sufficient to support Gordon's conviction for extreme indifference second-degree murder under AS 11.41.110(a)(2)
Gordon argues that there was insufficient evidence presented at trial to support his conviction for extreme indifference second-degree murder.9
When we review the sufficiency of the evidence to support a criminal conviction, we are required to “view the evidence, and all reasonable inferences to be drawn from the evidence, in the light most favorable to upholding the ... verdict.”10 Viewing the evidence in this light, we then ask whether a fair-minded fact-finder could have reasonably found that the State's case was proved beyond a reasonable doubt.11 We do not reweigh evidence or determine the credibility of witnesses as those are matters for the jury to decide.12
Star page 4*4 To prove Gordon guilty of extreme indifference second-degree murder, the State was required to prove beyond a reasonable doubt that Gordon “knowingly engage[d] in conduct that result[ed] in the death of [Spencer] under circumstances manifesting an extreme indifference to the value of human life.”13 The jury was instructed that “ ‘[e]xtreme indifference to the value of human life’ means extreme recklessness.” The jury was also instructed that in deciding whether the defendant's conduct manifested extreme indifference to the value of human life, the jury must consider the following factors:
(1) the social utility of the defendant's conduct;
(2) the magnitude of the risk the defendant's conduct created, including both the nature of the harm that was foreseeable by the defendant and the likelihood that the defendant's conduct would cause that harm;
(3) the defendant's knowledge of the risk; and
(4) any precautions the defendant took to minimize the risk.
On appeal, Gordon largely concedes that the evidence was sufficient to prove that he caused Spencer's death by shooting him in the forehead. But he argues that, because the details surrounding the shooting remain unknown, there was a lack of evidence showing that the shooting occurred under circumstances manifesting an extreme indifference to human life. According to Gordon, there was insufficient evidence from which the jury could distinguish between reckless conduct that would lead to a manslaughter conviction and the type of extreme recklessness required to prove extreme indifference second-degree murder.
We disagree. Based on the evidence presented at trial, a fair-minded juror could reasonably find that Gordon shot Spencer in the forehead because Gordon wanted to steal Spencer's belongings — namely, the Jeep and the firearms. As we have previously recognized, “[s]hooting at someone, by itself, is devoid of social utility and consequently has been used by commentators as the paradigm of extreme indifference to human life.”14 Stealing someone's possessions is likewise devoid of social utility and further demonstrates a degree of callousness and lack of remorse that is indicative of an extreme indifference to the value of human life.
Other facts also support the conclusion that Gordon acted callously and with extreme indifference to the value of human life. Gordon did not call the police or otherwise alert anyone to Spencer's death. Instead, he dragged the body and hid it under a blue blanket. He then left the scene, taking Spencer's Jeep and firearms with him. His actions in the immediate aftermath of the shooting — taking Spencer's Jeep and lending it to his ex-girlfriend after telling her that he got it through doing “a job,” texting someone about the Jeep, and researching how to sell the firearms he had stolen — were also indicative of a lack of remorse and a level of callousness that is more closely associated with second-degree murder than manslaughter.
The underlying premise of Gordon's sufficiency argument on appeal appears to be that a jury cannot convict a defendant of extreme indifference second-degree murder unless the exact details of how the death occurred are known. But as the State points out, we have previously upheld extreme indifference second-degree murder convictions against sufficiency challenges in cases where the exact sequence of events remained unclear. In Hinson v. State, for example, we affirmed an extreme indifference second-degree murder conviction based on evidence that the defendant was the last person to see the victim, that DNA and hair evidence showed that the defendant had sex with the victim, and that the autopsy showed that she had been strangled to death.15
Star page 5*5 Similarly, here, there was circumstantial evidence that adequately supported the jury's finding that Gordon shot and killed Spencer under circumstances manifesting an extreme indifference to the value of human life. We therefore reject this claim.
Why we conclude that the jury's guilty verdict for second-degree murder under AS 11.41.110(a)(1) was not fatally inconsistent with the jury's acquittal on the first-degree murder charge
Gordon's second argument on appeal is that the jury's conviction for second-degree murder under AS 11.41.110(a)(1) was fatally inconsistent with the jury's acquittal on the first-degree murder charge. Notably, Gordon concedes that the evidence at trial was sufficient to support a conviction for second-degree murder under AS 11.41.110(a)(1); that is, the evidence was sufficient to support the jury's finding that Gordon caused Spencer's death “with intent to cause serious physical injury to another person or knowing that the conduct [was] substantially certain to cause death or serious physical injury to another person.” Indeed, Gordon concedes that the evidence was sufficient to support a conviction for first-degree murder because, as Gordon acknowledges, a single gunshot to the head could reasonably be viewed as proof of an intent to kill. Gordon's argument appears to be that it is logically inconsistent for the jury to have rejected the State's theory of an intentional killing but to still find that the single gunshot to the head was proof that Gordon acted either with the intent to seriously physically injure Spencer or with the knowledge that the gunshot was “substantially certain to cause death or serious physical injury.”16 We find no merit to this argument, which is based on a misunderstanding of what makes criminal jury verdicts fatally inconsistent.
The Alaska Supreme Court recognized the existence of fatal inconsistencies in criminal jury verdicts in DeSacia v. State.17 In that case, the defendant was charged with killing two victims in an automobile accident — both the driver and a passenger in another vehicle.18 At trial, the jury convicted the defendant of manslaughter with regard to the passenger but acquitted him of any wrongdoing in relation to the driver.19 After the jury rendered its verdicts, DeSacia moved for judgment notwithstanding the verdict, arguing that the verdicts were inconsistent.20 The motion was denied and DeSacia appealed.21
On appeal, the Alaska Supreme Court recognized that the verdicts were “irreconcilably in conflict” and that the result was “irrational.”22 As the court explained:
It is obvious that the two counts of the indictment in this case charged DeSacia with identical conduct and with the same element of negligence. They differed only in that a different person was named as the victim in each instance. Under these circumstances, the verdict convicting DeSacia must of necessity be construed to be inconsistent with the verdict acquitting him.[23]
The court acknowledged that the majority of jurisdictions would not reverse a conviction based on factual or logical inconsistency, but it nevertheless joined the minority of jurisdictions that do reverse on those grounds.24 The court made clear, however, that it was not requiring complete consistency, it was only requiring that the convictions not be “strictly inconsistent.”25 As the court noted in a later case, “A verdict which does not reach such a high level of inconsistency” — i.e., is not “necessarily inconsistent,” “irreconcilably in conflict,” and “irrational” — “is allowed to stand.”26
Star page 6*6 Here, we reject the contention that the jury's verdicts are necessarily inconsistent. As the State points out, the jury could reasonably conclude that Gordon shot Spencer knowing that the gunshot was substantially certain to cause death or serious physical injury while still harboring doubts as to whether Gordon specifically intended to kill Spencer.
Because Gordon did not contemporaneously object to the jury's verdicts as allegedly inconsistent, he must show plain error on appeal.27 We conclude that the jury's verdicts were not so irreconcilably inconsistent as to constitute plain error. We therefore reject this second claim on appeal.
Why we conclude that a remand is needed to correct two minor errors in Gordon's judgment
As we already mentioned, the jury found Gordon guilty of second-degree murder under AS 11.41.110(a)(1) (the defendant caused the death of any person “with intent to cause serious physical injury to another person or knowing that the conduct is substantially certain to cause death or serious physical injury to another person”) and AS 11.41.110(a)(2) (the defendant “knowingly engage[d] in conduct that result[ed] in the death of another person under circumstances manifesting an extreme indifference to the value of human life”). At sentencing, the superior court merged the two counts and orally made clear that only one conviction for extreme indifference second-degree murder would be entered. However, on the judgment, the court mistakenly checked “Y[es]” with regard to whether a conviction was entered for the guilty verdict under AS 11.41.110(a)(1). This was error.28 The court should have checked “N[o].” The court was alerted to this problem by the Department of Public Safety, which issued a notice of judgment error. For reasons that are unclear, the court did not correct the judgment in response to the notice of judgment error.
The Department of Public Safety also issued a second notice identifying a second error in the judgment. As we already mentioned, the jury acquitted Gordon of first-degree murder. The judgment, however, erroneously says both that the jury reached a not guilty verdict on this count and that the count was “dismissed.” As the Department of Public Safety correctly noted, the language about the count being dismissed should be deleted.
Conclusion
This case is REMANDED for the sole purpose of correcting two minor errors in the judgment. In all other respects, the judgment of the superior court is AFFIRMED.