Grossman v. State

120 P.3d 1085, 2005 Alas. App. LEXIS 100, 2005 WL 2327126
CourtCourt of Appeals of Alaska
DecidedSeptember 23, 2005
DocketA-8689
StatusPublished
Cited by3 cases

This text of 120 P.3d 1085 (Grossman v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Alaska primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Grossman v. State, 120 P.3d 1085, 2005 Alas. App. LEXIS 100, 2005 WL 2327126 (Ala. Ct. App. 2005).

Opinions

OPINION

COATS, Chief Judge.

William D. Grossman appeals his conviction and sentence for murder in the second degree. He first contends that Superior Court Judge Larry D. Card erred in instructing the jury on Grossman's liability as an accomplice. We conclude that the instruction was proper. Second, Grossman argues that his 99-year sentence is illegal because Judge Card imposed a sentence beyond the benchmark range, which we first set out in Page v. State, of 20 to 80 years for second-degree murder. Grossman argues that, under the United States Supreme Court's decision in Blakely v. Washington, Judge Card could not impose a sentence in excess of the Page benchmark range without giving Grossman a jury trial on the reasons justifying the greater sentence. We conclude that even if Blakely applied to sentencing for second-degree murder, Gross-man's more than twenty prior convictions produced ample justification for his sentence.

Factual background

On the day of the offense, August 14, 2001, codefendants William D. Grossman and Erick David, two homeless men, were drinking vodka in an empty lot in Anchorage with three other homeless people-Larry Brown, Kevin Vanderway, and Kathy Tugatuk. Subsequent testing on all, besides Grossman (who was not located until days later), indicated that they were highly intoxicated.1 Tugatuk and Vanderway testified that, due to their intoxication, they had little memory of the events of that day.

Vanderway claimed that while drinking with Grossman a few weeks before the incident, he had stolen a bottle of liquor from Grossman. When Grossman demanded that Vanderway replace it, he promised to do so. But, on August 14, Grossman, impatient with Vanderway's promises, hit Vanderway. Brown attempted to protect Vanderway from [1087]*1087Grossman, and Grossman then attacked Brown.

From an apartment building overlooking the empty lot, several residents witnessed the assaults. One witness, Ryan Sjostrom, saw two men, one matching Grossman's description (tattooed arms, blue vest, and dark hair), attacking a man on the ground, later identified as Brown. According to Sjostrom, Grossman was the primary aggressor. He said that Grossman beat the victim badly, stomping him and kicking him with the toes of his boots. Sjostrom testified that he called 911 but that it took nearly thirty minutes for the police to respond.

Sjostrom's girlfriend, Nana Lewis, also described seeing the assault from the same vantage point. She positively identified Grossman as the assailant. She testified that she had seen Grossman one week earlier, wearing the same clothing, in the same alley, arguing with a woman. She described Grossman as straddling Brown, punching him several times. She stated that Gross-man would then get up, kick Brown, and then go back to punching him. When the ambulance arrived, Lewis saw Brown taken away by the paramedics. She testified that she was positive that the victim loaded into the ambulance was the person she had seen Grossman assaulting.

Like Sjostrom, Lewis also described a see-ond assailant who attacked Brown as well as a second victim, later identified as Vander-way. She identified the second assailant, later identified as Grossman's co-defendant David, as taller than Grossman and apparently a Native. She testified that David appeared to kick Brown in the body but not the head. She stated that Grossman kicked Brown "like he hated him" but that David did not kick him as hard.

A third witness, Cassia Northbird, lived in a nearby apartment. She testified that she saw two men assaulting a third man in the lot. Northbird's description of the shorter assailant matched Sjostrom's and Lewis's description of Grossman. Northbird testified she saw the shorter assailant straddling the victim and choking him. She also saw a Native man kicking the victim while he was on the ground. She testified that both the shorter assailant and the Native man kicked, punched, and stomped the victim simultaneously. But unlike Sjostrom and Lewis, Northbird testified that the man taken away by the ambulance was not the same man she saw being beaten. However, she also testified that Vanderway was not the victim either.

Brown died of the injuries which he received in the beating. The State charged Grossman and David with murder in the second degree2 for beating Brown to death. Additionally, the State charged Grossman with one count of assault in the fourth degree3 for assaulting Vanderway. The two men were tried jointly in a trial conducted by Judge Card. At trial, Grossman denied ever assaulting Brown. He contended that the witnesses had seen him assault Vanderway, not Brown.

The jury convicted Grossman and David for the second-degree murder of Brown. They also convicted Grossman for the fourth-degree assault on Vanderway. Judge Card sentenced Grossman to a maximum term of 99 years of imprisonment for murder in the second degree and to a l-year concurrent term for the assault. Grossman appeals his conviction and sentence.

The accomplice Hability instruction

A person is guilty as an accomplice if he aids another person in committing the offense "with intent to promote or facilitate the commission of the offense.4 In Riley v. State,5 we held that when a person is charged as an accomplice for a crime that requires proof of a particular result, the government must prove that the person acted with the same culpable mental state that applies to the principal. This means that to convict Grossman as an accomplice in this case, the State had to show that Grossman acted with the intent to promote or facilitate the assault [1088]*1088on Brown, and that Grossman acted with the culpable mental state set out in the second-degree murder statute: with the intent to cause serious physical injury to Brown or with manifest extreme indifference to the value of human life.6

In Riley, we stated that "[when AS 11.16.110(2) speaks of a person's "intent to promote or facilitate the commission of the offense', this phrase means the accomplice must act with the intent to promote or facilitate the conduct that constitutes the actus reus of the offense."7 As we have stated, this means that the State had to prove that Grossman acted with the intent to promote or facilitate the assault on Brown. In the trial court, Grossman objected to the State's accomplice liability instruction because it read that to be liable the "accomplice must act with intent to promote or facilitate the act or conduct of the principal."8 Grossman argued that the instruction was erroneous because it substituted "act or conduct" for the single word "conduct" which we used in Riley. Grossman argues on appeal that the instruction would allow the jury to convict Grossman as an accomplice even if he abetted David in landing only a single blow. He argues that since Brown was killed from a prolonged beating, the instruction allowed the jury to convict him on an insufficient factual showing.

Grossman's argument is not valid. A person can be convicted as an accomplice for engaging in a single act. To convict Gross-man as an accomplice, the State had to show that Grossman acted with the intent to promote or facilitate the beating of Brown.

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Related

Smart v. State
146 P.3d 15 (Court of Appeals of Alaska, 2006)
Grossman v. State
120 P.3d 1085 (Court of Appeals of Alaska, 2005)

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Bluebook (online)
120 P.3d 1085, 2005 Alas. App. LEXIS 100, 2005 WL 2327126, Counsel Stack Legal Research, https://law.counselstack.com/opinion/grossman-v-state-alaskactapp-2005.