MEMORANDUM OPINION
Star page 1*1 Cornelius Everett was convicted, following a jury trial, of one count of third-degree assault and two counts of fourth-degree assault based on several physical attacks he perpetrated against his on-again, off-again girlfriend, J.M., over the span of approximately forty minutes.1 The superior court imposed a composite sentence of 4 years to serve.
Everett now appeals, raising three claims. First, Everett argues that the superior court abused its discretion in admitting the seven-minute audio recording of the responding officer's initial interview with J.M. Second, Everett argues that his assault convictions should have merged because, according to Everett, the assaults were part of one continuing course of conduct. Finally, Everett asserts, and the State concedes, that his presentence report must be updated to conform to the revisions approved by the superior court at sentencing.
For the reasons explained in this opinion, we affirm Everett's judgment, but remand his case for the superior court to conform Everett's presentence report to the superior court's oral rulings.
Background facts and proceedings
In late August 2019, Everett unexpectedly showed up at J.M.’s home and threw rocks at her window to get her to come outside. Everett was agitated and demanded that J.M. leave with him. According to J.M., when she refused to leave with Everett, he grabbed her bag, dumped it out, and took her keys. J.M. said that Everett then threw her to the ground and began to stomp on her, strangle her, and drag her by her hair across the yard.
J.M.’s neighbor came home and witnessed Everett standing on top of J.M.’s back while she lay face-down on the ground. The neighbor intervened and called 911 to report the assault. Everett drove away in J.M.’s car (with J.M. in the passenger seat) before the police could respond.
J.M. testified that, as Everett was driving through Fairbanks, he repeatedly struck her with his fist and elbow. To escape, J.M. opened her car door and jumped out of the moving car. By the time J.M. made it to her feet, Everett had already stopped the car and was coming after her on foot. According to J.M., Everett then slammed her head into the rear passenger door, strangled her with his hands, and forced her back into the car.
J.M. testified that Everett then resumed hitting and strangling her, and that she thought he was going to kill her. Everett drove across town to a forested area north of Fairbanks. J.M. said that she then kicked the gear shift of the car and yanked the steering wheel, causing the car to go off the road. Once the car stopped, a struggle ensued, during which Everett and J.M. ended up in the backseat. According to J.M., Everett used his hands to strangle her for so long that her vision went blurry; J.M. said that Everett was telling her that she was going to die.
When a car drove past and slowed down, Everett loosened his grip on J.M. long enough for her to escape. Everett once again chased after J.M., who ran barefoot to the bystander's car, which had turned around and stopped to let her in. Everett ran off into the woods.
Star page 2*2 The bystander called 911 and drove to a nearby parking lot to meet the responding officers. According to the bystander, J.M. was scared, crying, and out of breath. The responding officer noted that, when he arrived, J.M. was barefoot, had bruising and scratches on her face and arms, and had blood on her upper lip and eyebrow. The officer recorded his conversation with J.M., during which she was audibly short of breath and received medical treatment in an ambulance. A subsequent medical examination of J.M. at the hospital revealed swelling and a potential hairline fracture of her occipital bone at the base of her skull, extensive bruising, abrasions, lacerations, petechial hemorrhages on her neck, and subconjunctival hemorrhaging (broken blood vessels in her eye).
Everett was charged with attempted murder, kidnapping, and four counts of second-degree assault.2 At trial, Everett testified in his own defense. Everett admitted that he and J.M. were arguing at her house and that the argument turned physical. However, Everett denied strangling or threatening J.M. and claimed that he did not intend to hurt J.M., but rather was acting in self-defense.
The jury ultimately found Everett guilty of three lesser included offenses: (1) fourth-degree assault, for the attack outside of J.M.’s home; (2) fourth-degree assault, for the attack after J.M. jumped from the moving car; and (3) third-degree assault, for the attack of J.M. in the stopped car. The superior court found four aggravating factors applied and sentenced Everett to a composite sentence of 4 years to serve.3
At sentencing, the superior court ordered modifications to Everett's presentence report, but the modifications are not reflected in the presentence report in the record.
Why we conclude that the superior court did not abuse its discretion by admitting J.M.’s recorded statements to the responding officer
On appeal, Everett argues that the superior court abused its discretion by admitting a seven-minute audio recording of the responding officer's initial interview with J.M. He argues that the court erroneously found that the statements satisfied several exceptions to the hearsay rule — specifically, the exceptions for present sense impression, excited utterance, and then-existing physical condition.4
Star page 3*3 Hearsay statements — out-of-court statements offered to prove the truth of the matter asserted — are inadmissible unless an exception applies.5 An excited utterance is a statement made by a declarant while still under the stress of excitement caused by the event about which the statement is made.6 The rationale for this exception is that such a condition of excitement “temporarily stills the [speaker's] capacity of reflection and produces utterances free of conscious fabrication.”7
Here, the superior court could reasonably conclude that J.M.’s out-of-court statement was an excited utterance. In terms of J.M.’s state of excitement, the court found that “the stress, the physical stress of the flight, is still evident in her challenged respiration.” The court further observed that “it is evident from the recording that she is under some physical stress at the very least because her breathing is consistently labored, challenged, and she has some apparent difficulty speaking and breathing in combination.” The court also found that J.M. was describing an event “immediately after” it happened — i.e., “within a time frame of minutes” after the conclusion of J.M.’s “emotional and startling and physically confrontational” encounter with Everett. These findings are not clearly erroneous.8
In her testimony, J.M. stated that less than five minutes passed between her escape from Everett and her interaction with the trooper, and that she was “still shaken up” when speaking to the trooper. The admitted photographs of J.M.’s injuries reflected that a violent confrontation had taken place. The audio of the initial interview demonstrated that, when speaking to the trooper, J.M. was having a difficult time breathing and was still in physical pain from her injuries. As the superior court pointed out, throughout the audio recording, “the physical stress of the flight [wa]s still evident in [J.M.’s] challenged respiration.” The second half of the audio recording took place in the ambulance while J.M. was receiving medical care and was repeatedly interrupted by J.M.’s gasps of pain as medical personnel examined her injuries.
Everett acknowledges that J.M.’s labored breathing could indicate extended emotional excitement from the assault, but he points to the possibility of alternative explanations for her breathing, such as running away from the car or “the physicality of being strangled.” But physical trauma, such as injury or pain, can constitute a valid form of stress for purposes of the excited utterance exception.9 Therefore, the court could reasonably find that physical stress produced a state of excitement in J.M. and stilled her capacity for reflection.
Star page 4*4 Everett also questions whether J.M.’s statements were sufficiently spontaneous, as they were in response to the trooper's questioning. But a statement made in response to police questioning can be an excited utterance for purposes of a hearsay exception.10 For example, in Charles v. State, we held that a recorded statement made to police thirty-seven minutes after a startling event qualified as an excited utterance, because the declarant was, inter alia, still “quite shaken.”11
We note that in the latter portion of the audio, J.M. was describing her pain and injuries to emergency medical technicians and some of her statements at this time were independently admissible under Evidence Rule 803(3) as statements of her then-existing physical condition.12 To the extent that any of the latter statements made during her medical treatment in the ambulance were not regarding her then-existing physical condition or not otherwise excited utterances, they were largely cumulative of the information she had provided to the trooper earlier in the interview.
For these reasons, we reject Everett's challenges to the admission of the audio recording.13
Why we conclude that Everett's assaults were sufficiently distinct to permit separate convictions
On appeal, Everett argues that the superior court erred in failing to merge his three assault convictions because, according to Everett, the assaults were part of one continuing course of conduct.14 We disagree. The record shows that Everett's convictions were based on specific assaults that were distinct in both time and location.
The double jeopardy clauses of both the Alaska and United States Constitutions prohibit the imposition of multiple convictions for the “same offense.”15 Under the Alaska Supreme Court's decision in Whitton v. State, to determine whether two convictions must merge, a court compares the different statutory provisions, as applied to the facts of the case, and evaluates any differences in intent or conduct in light of the societal interest to be vindicated.16 “[M]ultiple blows struck in the course of a single, continuous criminal episode” may constitute a single assault, but when blows are “struck at clearly separate times and in clearly separate incidents,” multiple convictions may stand without offending double jeopardy.17
Star page 5*5 The State has the burden of establishing that criminal acts were sufficiently distinct to permit separate convictions.18 We have “previously approved separate convictions for assaults where there were clear breaks in time and circumstances between the offenses.”19 Where the record is ambiguous as to whether the defendant has committed one offense or multiple offenses, however, the defendant should receive only a single conviction.20
Here, the record supports the conclusion that the jury convicted Everett of three assaults for three distinct criminal acts. The first conviction was premised upon Everett's assault of J.M. outside of her home, prior to getting into the car. The second conviction stemmed from Everett's assault of J.M. as he forced her back into the car after she had jumped out of the moving car. And the final assault conviction was based on Everett attacking J.M. in the backseat of the car prior to her escaping and running barefoot to the bystander's car. The State distinguished each assault in its closing argument.21
Each of the three assaults underlying the convictions occurred at a distinct time and place. The first assault occurred in the yard outside J.M.’s house. After J.M.’s neighbor interrupted the assault, J.M. then got into the car with Everett, and he drove for several blocks before J.M. tried to escape by jumping from the moving car. The second assault occurred outside of the car as Everett dragged J.M. back to the car and forced her into the car. The third assault occurred inside the car approximately thirty-five minutes after the first assault, by which time Everett had driven J.M. across the entire city of Fairbanks to a forested, less populated area.
Additionally, each of the three assaults were “separated from [each] other by a change in purpose, a ‘fresh impulse,’ or a different provocation.”22 The first assault was provoked by J.M.’s refusal to leave her home with Everett. Following the neighbor's interruption, a period of recovery, more verbal argument, and J.M. getting in the car with Everett, the second assault was provoked by J.M.’s attempt to escape by jumping from the moving car; this assault had the distinct purpose of halting her escape and forcing her back into the car. The third assault occurred after Everett drove J.M. to a more secluded area and was provoked by J.M. forcing the car to the side of the road to try to escape a second time.
Finally, the jury returned a not guilty verdict for one of the charged counts of assault; the State had argued in closing that this assault occurred while Everett was driving the car between the second and fourth charged counts of assault. This further shows that the jury viewed each of the charged counts of assault as a separate incident, and not a single, continuous criminal episode.
Star page 6*6 For these reasons, we affirm the superior court's entry of separate convictions for Everett's three assaults.
Why we conclude that Everett's presentence report should be conformed to the modifications ordered by the superior court at sentencing
On appeal, the State concedes that the superior court ordered twelve modifications to Everett's presentence report that are not reflected in the presentence report in the record such that this case should be remanded for correction of the presentence report. This concession is supported by the record.23
Alaska Criminal Rule 32.1 governs the preparation and litigation of presentence reports. Under Criminal Rule 32.1(f)(5), the court is required to take action regarding any disputed factual assertion in the presentence report. If the court “concludes either that an assertion of fact is not based on sufficiently verified information, or (if based on verified information) that it has not been proved,”24 or that the disputed assertion of fact is not relevant to the sentencing decision, then the court must delete the assertion from the report.25
During the sentencing hearing, the superior court approved modifications to the original draft of the presentence report and directed the report author to make the changes. The report author agreed to make the modifications, but the only report in the record does not reflect the court-ordered revisions.
We therefore remand this case for the superior court to prepare and distribute a corrected presentence report in compliance with the court's oral rulings at the sentencing hearing.26
Conclusion
For the reasons explained above, we AFFIRM Everett's judgment. However, this case is REMANDED to the superior court for the limited purpose of conforming the presentence report to the modifications ordered at sentencing.