MEMORANDUM OPINION
Henry Solomon Koenig was convicted of assaulting and kidnapping his then-girlfriend, Jessica Benavides.1 Koenig now appeals, challenging only his kidnapping conviction.
On appeal, Koenig makes two claims. First, Koenig argues that the jury was not properly instructed on the culpable mental state for the restraint element of kidnapping. Second, Koenig asserts that the superior court erred in denying his motion for a judgment of acquittal because there was insufficient evidence to convict him of kidnapping. For the reasons discussed here, we affirm the judgment of the superior court.
Underlying facts and proceedings
Benavides moved to Kivalina in late July 2018 to teach at the local school and started dating Koenig in November. Benavides often stayed the night at Koenig's house, where he lived with several family members, including his sister, Joy Brown.
On a Friday evening in February of 2019, Koenig and Benavides started having sex in Koenig's bedroom. According to Benavides, the sex was normal in the beginning but quickly turned aggressive. When Benavides asked Koenig why he was hurting her, Koenig accused her of cheating on him. Koenig then assaulted Benavides. Benavides testified that Koenig repeatedly strangled her and smothered her with a pillow. Koenig only stopped when Brown (Koenig's sister) was able to break through the locked bedroom door.
Benavides further testified that, after Brown entered the room, she turned her attention back to Koenig and saw that he was pointing a nine-millimeter handgun at her head. According to Benavides, the nine-millimeter gun was her gun that she had left at Koenig's house and it had been on a shelf in his bedroom. For the next two to three hours, Koenig alternated between pointing the gun at Benavides and at himself and made suicidal statements.
Koenig specifically told Benavides that he would shoot her if she tried to leave. Brown sat in the doorway and talked to Koenig, trying to deescalate the situation. For much of this time, Benavides stood naked in the bedroom until Koenig let her put on a tank top and boxers. Koenig eventually got tired, and everyone went to bed.
Benavides testified that Koenig took her phone from her on Friday night, that “word got out in the village about the fight and what happened to me,” and that “the troopers were contacted about the incident.” Benavides stated that Koenig became afraid of the consequences of assaulting her after word got out in the village on Saturday and Sunday. Koenig told Benavides “off and on the entirety of the whole weekend” that he would have a shootout with the troopers if they came to his house.
Benavides testified that, on Saturday, Koenig still had Benavides's phone and he was monitoring her voicemail. Koenig told Benavides that there was a message from the troopers. Koenig made Benavides call the troopers back to tell them that everything was fine. Koenig had Benavides make the phone call on speakerphone while he sat next to her and listened. The dispatcher was unable to locate details about a health and welfare check on Benavides, so Benavides told the dispatcher that everything was fine, that she would be at work on Monday, and that she would call back the next day.
Benavides testified that Koenig made her call the troopers again on Sunday to tell them that everything was fine. Koenig again made Benavides call on speakerphone while he sat next to her. Benavides then asked Koenig if she could go home to work on her lesson plans for the next week. Koenig told her “No,” and Benavides did her lesson planning at Koenig's house. The entire time she was working, Koenig sat so he could see Benavides.
Benavides testified that she did not attempt to leave Koenig's house that weekend for multiple reasons. These reasons included Koenig's statements and actions toward her, her inability to open the front door by herself, and the fact that it was blizzarding outside due to a storm that moved into the area. Benavides testified that she was only wearing a tank top and boxers, which would be insufficient in the blizzard, and she believed that she would be unable to put her outdoor gear on without making noise and waking Koenig up. Benavides further testified that she could not jump out a window because the house was elevated and she would likely land on the dogs outside.
According to Benavides, even if she were able to get out of the house, she would likely not get far because Koenig was “very fit,” had a “large gait,” and was “very quick,” so he could easily catch her. Benavides said that she worried what Koenig would do if he caught her trying to leave. Benavides testified that Koenig indicated that if she attempted to run, there would be repercussions. And although she did not see the gun again after Friday night, Benavides testified that she knew that Koenig hid the gun and that he was the only person who knew where the gun was for the rest of the weekend.
Benavides spent the weekend trying to pacify Koenig. She testified that she cooked, cleaned, did laundry, and had sex with Koenig when he initiated it. Benavides testified that, throughout the weekend, Koenig made disparaging remarks about her, calling her a slut and asking who she was cheating on him with.
On Monday morning, Koenig agreed to take Benavides to her house before school started. Once Benavides was inside her house, she immediately locked the doors and called her principal to resign from her teaching position. Benavides then called the troopers to retract her previous statements and told them that Koenig beat her up, choked her, and held her at gunpoint. When asked if she sought medical attention for her injuries from the assault, Benavides told the troopers that she did not because Koenig would not let her leave. Benavides then left Kivalina that day and did not seek medical attention until she arrived in Georgia.
The State charged Koenig with second-degree assault and fourth-degree assault, and the grand jury added a third count of kidnapping.2 Koenig was charged with kidnapping for either restraining Benavides with the intent to inflict physical injury upon or sexually assault her, or restraining Benavides by placing her in apprehension that she or another person would be subjected to serious physical injury or sexual assault.3 The State's theory of restraint was that Koenig threatened to harm both himself and Benavides with a handgun and that she feared he would harm her if she tried to leave.
The case proceeded to trial. Outside of the presence of the jury, the parties discussed how the jury should be instructed on kidnapping. Koenig requested that the jury be instructed on the affirmative defense of safe release, which required that Koenig prove by a preponderance of the evidence, inter alia, that he “voluntarily caused the release of the restrained person alive in a safe place.”4 The State did not oppose this instruction.
Koenig also requested that the jury be instructed that “the defendant is not guilty of kidnapping if you find the defendant's restraint of another person was merely incidental to the commission of an assault.” The court denied Koenig's requested language. The court, however, did include the pattern jury instruction defining “restrain.” This instruction stated in part that “[m]ovement or confinement of another person that is merely incidental to the commission of another offense does not qualify as ‘restraint.’ ”
In closing, the State argued that Koenig was guilty of kidnapping because he restrained Benavides with the intent of either physically injuring her or placing her in fear of serious physical injury. The State told the jury that it was required to prove that Koenig intentionally restrained Benavides. During closing argument, the State explained:
There's one thing I have to correct from [defense counsel] with regard to the kidnap statute. I don't need to prove beyond a reasonable doubt — I do have to prove everything beyond a reasonable doubt, but I don't need to prove that she was — suffered a serious physical injury. What I need — or that he intended to commit a serious physical injury on her.
What I do need to prove is that she suffered an injury, that he intended to hold her and suffered — he intended to restrain her and that he intentionally caused a physical injury, not a serious physical injury, but a physical injury. All those bruises are physical injuries.
The jury convicted Koenig of second-degree assault, fourth-degree assault, and kidnapping with safe release.5 Koenig appeals.
Why we conclude that the superior court's failure to instruct the jury on the mental state of the restraint element of kidnapping was harmless beyond a reasonable doubt
On appeal, Koenig argues that the superior court plainly erred by not instructing the jury on the culpable mental state required for the restraint element of kidnapping.6 “A person commits the crime of kidnapping if the person restrains another with intent to ... inflict physical injury upon or sexually assault the restrained person or place the restrained person or a third person in apprehension that any person will be subjected to serious physical injury or sexual assault.”7
The superior court gave the pattern jury instruction, which stated:
To prove that the defendant committed [the crime of kidnapping], the state must prove beyond a reasonable doubt each of the following elements:
(1) the defendant restrained another person; and
(2) the defendant intended to inflict physical injury upon or sexually assault the restrained person or place the restrained person or a third person in apprehension that any person will be subjected to serious physical injury or sexual assault.
The parties agree that the restraint element listed in subsection (1) of the jury instruction given by the court did not specifically include a culpable mental state. The parties also agree that the requisite mental state for the restraint element is knowingly, which is the mental state that applies to conduct.8 Thus, the State was required to prove that Koenig knowingly restrained Benavides.
Koenig did not object to the superior court's failure to specifically instruct the jury that the State had to prove that Koenig knowingly restrained Benavides. Because this failure potentially eased the State's burden of proof, the State must prove on appeal that failing to instruct the jury on the requisite mental state for restraint was harmless beyond a reasonable doubt.9
We have explained that “ambiguities and potential flaws in jury instructions can be cured by the arguments of the parties.”10 When a jury is instructed that the applicable mental state for a particular element is higher than the actual applicable mental state, the error favors the defendant and it is not reversible error.11
Here, the State told the jury during closing argument that it was required to prove that Koenig intentionally restrained Benavides, which created a higher burden of proof than proving that Koenig knowingly restrained Benavides.12 The State was incorrect when it so informed the jury, but this error favored Koenig because it imposed a higher burden on the State.13
Furthermore, given the facts of this case and how it was litigated, the jury could only have found that Koenig had proven the affirmative defense of safe release if the jury had also found that the State had proven that Koenig was knowingly restraining Benavides.14 To establish the affirmative defense of safe release, Koenig had to prove that, inter alia, “the defendant voluntarily caused the release of the restrained person alive in a safe place before the defendant was arrested or within 24 hours after the defendant's arrest.” The jury was instructed that, to find Koenig guilty of kidnapping with safe release, it had to find that the State proved the elements of kidnapping beyond a reasonable doubt and that Koenig proved safe release by a preponderance of the evidence. The jury found Koenig guilty beyond a reasonable doubt of kidnapping at the erroneously higher burden for intentional restraint and found that he had proven the affirmative defense of safe release. We conclude that by finding that Koenig voluntarily caused Benavides's release to a safe place, the jury necessarily found that Koenig knowingly restrained Benavides beyond a reasonable doubt.
Based on this record, we conclude that failing to specifically instruct the jury that Koenig had to knowingly restrain Benavides was harmless beyond a reasonable doubt.
Why we conclude that the superior court did not err in denying Koenig's motion for judgment of acquittal on the kidnapping charge
Koenig claims on appeal that there was insufficient evidence of his intent to kidnap Benavides and, therefore, the superior court erred in denying his motion for judgment of acquittal on the kidnapping charge. Koenig argues that any restraint was incidental to the assault that occurred on Friday night and evidence of Benavides's fear during the rest of the weekend was not evidence of Koenig's mental state. Koenig also argues that there was insufficient evidence of his intent to cause Benavides injury or to place her in fear that she or another person would be subjected to serious physical injury or sexual assault.
Whether the evidence presented at trial is sufficient to support a defendant's conviction is a question of law that this Court reviews de novo.15 In determining whether the evidence presented was sufficient to support the conviction, we “view all evidence presented at trial, and all reasonable inferences to be drawn from that evidence, in the light most favorable to the jury's verdict.”16 We then “determine whether, viewing the evidence in this manner, a fair-minded fact finder could find proof beyond a reasonable doubt” to support the conviction.17
First, Koenig argues that any evidence of his intent to restrain Benavides was merely incidental to his assault of Benavides on Friday night. We have explained that “the completed crime of kidnapping would be proved if the defendant actually restrained the victim either temporally or spatially beyond what was necessary to commit the target assault.”18 Here, the evidence was sufficient to establish Koenig's intent to continue to restrain Benavides on Friday night after the assault ended.
Koenig assaulted Benavides by repeatedly strangling her and smothering her with a pillow. Benavides testified that when Koenig's sister broke through the bedroom door and the assault ended, Koenig was pointing a nine-millimeter handgun at her head. Viewing the testimony in the light most favorable to upholding the verdict establishes that for two to three hours after the assault ended, Koenig alternated between pointing the gun at Benavides and at himself, making suicidal threats. And, while Koenig's sister sat in the doorway trying to deescalate the situation, Benavides stood naked for much of these two to three hours until Koenig allowed her to put on a tank top and boxers. We conclude that this is sufficient evidence for a reasonable juror to conclude that Koenig's intent to restrain Benavides on Friday night was not merely incidental to the assault.
Second, Koenig argues that there was insufficient evidence of his intent to cause Benavides injury or to place her in apprehension that she or another person would be subjected to serious physical injury. The State was required to prove beyond a reasonable doubt that Koenig intended to “inflict physical injury upon or sexually assault the restrained person or place the restrained person or a third person in apprehension that any person will be subjected to serious physical injury or sexual assault.”19
We conclude that there was sufficient evidence of Koenig's intent to place Benavides in apprehension that she or another person would be subjected to serious physical injury. Benavides testified that she asked Koenig if she could leave multiple times between Friday night and Sunday but Koenig would not let her leave. Koenig told Benavides that he would shoot her if she tried to run. And, although Koenig did not point the gun at Benavides again after Friday night, Benavides testified that Koenig hid the gun (which belonged to Benavides) and that he was the only person who knew where the gun was for the rest of the weekend.
Benavides also testified that Koenig became afraid of the consequences of assaulting her after word got out in the village and that he told her throughout the weekend that he would have a shootout with the troopers if they came to his house. Koenig's actions were also consistent with an intent to control or scare Benavides. Koenig took Benavides's phone from her on Friday night and did not allow Benavides unimpeded access to her phone for the rest of the weekend. Koenig also screened Benavides's voicemail messages and made her respond to a welfare check from the troopers on speaker phone, so he could hear the entire conversation and ensure that she told the troopers that she was alright. Based on this evidence, a reasonable juror could conclude that Koenig intended to place Benavides in apprehension that she or another person would be subjected to serious physical injury.
We therefore conclude that there was sufficient evidence of Koenig's intent to kidnap Benavides and that the superior court did not err in denying his motion for judgment of acquittal.
Conclusion
We AFFIRM the judgment of the superior court.