Spencer v. State

164 P.3d 649, 2007 Alas. App. LEXIS 141, 2007 WL 1892090

• Court: Court of Appeals of Alaska
• Decided: June 29, 2007
• Docket: A-9024
• Status: Published

Opinions

OPINION

STEWART, Judge.

Komson I. Spencer and a cohort, David Williams, restrained and assaulted Nathaniel Ahsoak over a period of several hours. For this conduct, Spencer was convicted of kidnapping and first-degree assault¹ and was sentenced to a composite term of 10 years' imprisonment. Spencer now appeals these convictions. For the reasons explained here, we conclude that Spencer's claims of error have no merit, and we therefore affirm the judgment of the superior court.

Background facts and proceedings

On the morning of March 18, 2004, Ahsoak went to visit Spencer and Williams at their trailer in North Pole. They were acquaintances, and they regularly socialized.

The three men started drinking beer, and after four or five hours they went to a barbecue where they continued drinking. At about 8:00 pm., they returned to Spencer's and Williams's trailer, and they continued to drink. Spencer's girlfriend, Sasha Dennis, was with them. Their friend Keifer Hering was also there, asleep on a couch.

At about 9:80 p.m., Ahsoak called a friend, Nicole James, to give him a ride home. Before James arrived, Absoak accidentally pushed Dennis and she fell down. Williams hit Ahsoak for pushing Dennis.

When James arrived, Spencer met her at the door. Spencer opened the door just three inches, and he told James that she could not come in to the trailer-and that Ahsoak was not leaving. Through the opening, James saw Ahsoak try to walk to the door, but Spencer would not let him out.

James returned to her car. When she looked back toward the trailer, through a window, she saw Williams hit Ahsoak in the stomach, causing Ahsoak to "fly] back." She watched for a few more minutes and then left.

Back inside the trailer, Spencer shaved Ahsoak's head while Williams held him down. Ahsoak at first testified that he did not consent to having his head shaved but later testified that he agreed to have his head shaved as punishment for pushing Dennis. Onee Absoak's head was shaved, Spencer glued a pornographic picture to Ahsoak's head with super glue.

An hour or two later, Ahsoak and Williams fought. Ahsoak tried to leave, but Williams would not let him. Spencer decided that Ahsoak was winning the fight with Williams-that Williams was "getting [his] ass beat too bad"-so Spencer and Williams decided to tie Ahsoak up.

Spencer kicked Ahsoak's legs out from under him while Williams pulled Ahsoak to the floor. Ahsoak tried to get up, but Spencer and Williams pushed him back down. They then bound his wrists and legs with tape.

Over the next several hours, while Abhsoak lay bound, Spencer and Williams assaulted him. Spencer and Williams repeatedly hit Ahsoak's face and ribs with their closed fists. Abhsoak testified that Williams was doing most of the punching, while Spencer was "sitting there and enjoying it," but Ahsoak also testified that Spencer punched him a couple times. As Ahsoak described it, "one would hit me and go sit down and have a beer, and the other one would get up and hit me." Ahsoak testified that Williams also kicked him, but he was unsure whether Spencer ever kicked him. In addition, during these hours of assault, Williams twisted Absoak's ankle until it broke and jabbed Ahsoak with the handle of an axe.

Ahsoak managed to free himself from the tape, but Spencer and Williams "hog tied" Ahsoak, using plastic zip ties on his wrists to bind his hands behind his back and connect them to his ankles, which were bound with tape. Abhsoak could not see who was attacking him after he was hogtied, but he testified that Spencer and Williams talked to him every time they hit him. Ahsoak stated that he knew when Spencer had hit him because Spencer would announce that he was going to hit Abhsoak, and then Ahsoak was punched.

After midnight, two of Spencer's friends arrived. Absoak asked them for help, but Spencer told his friends to leave Ahsoak alone.

Eventually everyone in the trailer fell asleep. Around 9:30 or 10:00 the next morning, Keifer Hering (the friend who had been asleep on the couch) cut the zip ties off Ahsoak. The men all had a couple of beers, and then Spencer gave Ahsoak a ride home.

Ahsoak called the police and went to the hospital. The emergency room staff treated him for injuries to his face, chest, and ankle. He had a broken ankle, a punctured lung, and broken ribs.

Spencer and Williams were tried for kidnapping and first-degree assault (under the theory that they recklessly caused serious physical injury to Ahsoak by means of a dangerous instrument).² The jury convicted both men of kidnapping and first-degree assault. Spencer received the mandatory minimum sentence of 5 years for the kidnapping, and a concurrent sentence of 10 years to serve for the assault-ie, a composite 10 years to serve.

Discussion

Spencer's motion to strike Ahsoak's imitial testimony

After Abhsoak took the stand at Spencer's trial, and during a recess when the jury was absent, the prosecutor told Superior Court Judge Charles R. Pengilly that he had noticed "a hint of aleohol" on Ahsoak's breath. Judge Pengilly brought Ahbsoak back to the stand and asked him if he had been drinking. Ahsoak admitted that he had consumed about four beers before he came to court, to relieve the stress he felt about testifying. Judge Pengilly asked Ahsoak if the alcohol was affecting his ability to testify, and Ahsoak said that it was.

At this point, Spencer's attorney moved to strike all of the testimony that Absoak had given thus far, on the ground that it was "incompetent testimony." Judge Pengilly responded that he believed Ahsoak was competent: "[Mly impression of it is that he's been perfectly coherent and cogent. I mean, he's not visibly intoxicated, otherwise, obviously, I would have said something earlier."

Notwithstanding Judge Pengilly's response, Spencer's attorney renewed his contention that Ahsoak was incompetent to be a witness, and he again asked Judge Pengilly to strike the testimony that Ahsoak had given so far. Judge Pengilly denied this request, However, the judge delayed the remainder of Absoak's testimony until the next morning, when he expected that Absoak would be sober. Judge Pengilly informed Spencer's attorney that, when Absoak returned to complete his testimony, the defense attorney would be allowed to cross-examine Ahsoak about his earlier intoxication. Judge Pengilly then told the jury that the trial was being recessed because of Absoak's intoxication.

When Absoak resumed his testimony the next day, Spencer's attorney cross-examined him about his intoxication. Absoak admitted that he had been drinking before he came to court the previous morning, because he had been nervous about testifying. Ahsoak also testified that he has a difficult time telling the truth "half the time" when he is intoxicated, because "I don't even remember what I'm saying half the time when I'm intoxicated." And Ahsoak admitted that he had been intoxicated when he testified the day before.

Now, on appeal, Spencer renews his argument that because of Ahsoak's intoxication, he was not a competent witness during his first day of testimony. Spencer relies on Alaska Evidence Rule 601. This rule provides:

A person is competent to be a witness unless the court finds that (1) the proposed witness is incapable of communicating concerning the matter so as to be understood by the court and jury either directly or through interpretation by one who can understand the proposed witness, or (2) the proposed withess is incapable of understanding the duty of a witness to tell the truth.

Spencer urges us to hold that an intoxicated witness is per se incompetent. However, in Blume v. State,³ this court rejected a categorical attack on the competency of all young children to testify.⁴ The court ruled that under Evidence Rule 601, a trial court "is vested with broad discretion on the issue of competency, and its decision to allow a witness to testify is subject to reversal only for abuse of discretion."⁵ We directed trial courts "to evaluate the competency of each prospective witness on a case-by-case basis, relying on the totality of the cireum-stances." ⁶

There is nothing in the record to indicate that Absoak's initial testimony was incoherent. -In fact, Judge Pengilly found just the opposite, and the record supports this finding. Nor is there any indication that Ahsoak was incapable of understanding his duty to tell the truth.

Spencer cites two cases to support his argument that Absoak's testimony should have been stricken: Hartford v. Palmer, 16 Johns. 143 (N.Y.Sup.Ct.1819) and United States v. Hyson, 721 F.2d 856 (1st Cir.1983). But neither of these cases requires a categorical exclusion of witnesses who have been drinking. Instead, both cases recognize that a witness's competence presents a question for the trial court's discretion, leaving the weight to be accorded to the testimony up to the jury. This approach is in accord with the approach in other jurisdictions.⁷

There is no categorical rule barring the testimony of a witness who has been drinking, and we reject Spencer's suggestion that we should adopt such a rule. Instead, trial judges should handle these situations as the cireumstances require.

Here, Judge Pengilly recessed Ahsoak's testimony and directed Ahsoak to return to court sober the next day. The judge informed the jury about the problem and allowed Spencer's attorney to cross-examine Ahsoak regarding his previous intoxication, so that the defense attorney could suggest to the jury how Ahsoak's intoxication might affect the credibility of his earlier testimony. We find that Judge Pengilly properly exercised his discretion in this matter.

Sufficiency of the evidence to support Spencer's convictions

Spencer also contends that the evidence presented at his trial is legally insuffi-client to support his convictions. Because Spencer did not move for a judgment of acquittal in the superior court, he must show plain error.⁸ The question is whether fair-minded jurors, exercising reasonable judgment, could conclude that the State had proven the charges beyond a reasonable doubt.⁹ In making this assessment, we view the evidence (and the reasonable inferences from that evidence) in the light most favorable to the jury's verdicts.¹⁰

Turning to the charge of first-degree assault, the question is whether the evidence supports the conclusion that Spencer, either personally or through the actions of his accomplice, Williams, recklessly caused serious physical injury to Ahsoak by means of a dangerous instrument.¹¹

Viewing the evidence in the light most favorable to the jury's verdict, Ahsoak suffered "serious physical injury" ¹² as a result of the beating administered by Spencer and Williams. Ahsoak was treated at the hospital for a broken ankle, broken ribs, and a punctured lung.

As to the question of whether Spencer was criminally responsible for that beating, the evidence showed that Spencer actively assisted in restraining Ahsoak and that Spencer participated in the beating, by hitting Ahsoak several times with his closed fist both before and after Ahsoak was tied up.

Spencer notes that, even viewing the evidence in the light most favorable to the State, Spencer's co-defendant Williams was the one who inflicted most of the punches on Ahsoak, and Williams was the one who used the axe handle to strike Abhsoak. Based on this, Spencer argues that Williams was the one primarily responsible for Abhsoak's injuries.

But the State relied on a theory of accomplice liability. Under AS 11.16.110(2), a defendant becomes legally accountable for the conduct of another person if the defendant solicits, encourages, or aids the other person's criminal conduct "with intent to promote or facilitate the commission of the offense." If the State proved that Spencer was Williams's accomplice in the beating (thus rendering Spencer legally accountable for Williams's actions), then it did not matter whether Spencer personally inflicted Ahs-oak's injuries.

Viewing the evidence in the light most favorable to the verdict, the jury could reasonably conclude that Spencer not only actively participated in the assault, but he also intentionally helped and encouraged Williams to participate in the assault, and that he acted with at least reckless disregard as to whether this assault would inflict serious physical injury on Ahsoak. The evidence is therefore legally sufficient to support Speneer's conviction for first-degree assault.

Spencer also argues that the State did not prove that he acted with the culpable mental state required to convict him as an accomplice. Relying on this Court's holding in Echols v. State,¹³ Spencer contends that the State was obliged to prove that he "specifically intend[ed] that [Ahsoak] suffer serious physical injury." But in Riley v. State,¹⁴ we expressly overruled our decision in Echols.¹⁵ Riley holds that, when the charged crime requires proof of a particular result (here, the infliction of serious physical injury), the accomplice need not act "intentionally" with respect to this result.¹⁶ Rather, the State must prove that the accomplice acted with the culpable mental state specified by the applicable criminal statute ¹⁷-here, the culpable mental state of "recklessly" specified in subsection (a)(1) of the first-degree assault statute.

And, as we stated earlier, the evidence was sufficient to support a finding that Spencer acted with at least reckless disregard for the possibility that Absoak would suffer serious physical injury as a result of the beating administered by Spencer and his accomplice, Williams.

Turning to the charge of kidnapping, the question is whether the evidence supports the conclusion that Spencer, either personally or through the actions of his accomplice, Williams, restrained Ahsoak with the intent to inflict physical injury on him.¹⁸

Spencer does not dispute that he helped to restrain Absoak, but he argues that there is no evidence that, when he helped to restrain Abhsoak, he acted with the intention that Ahs-oak be injured. This argument hinges on viewing the evidence in the light most favorable to Spencer. But as we explained above, we must view the evidence in the light most favorable to the verdict. Viewing the evidence in this light, there is ample evidence to support a finding that Spencer intended that Ahsoak suffer physical injury, either through Spencer's personal actions or through the actions of his accomplice, Williams.

The jury instruction on accomplice ability

When Judge Pengilly instructed the jury on accomplice liability, he used an instruction similar to the definitions of accomplice liability provided by the Alaska Supreme Court in Evans v. State¹⁹ and Gordon v. State.²⁰ The jury instruction stated that a person who "knowingly" and with "criminal intent" assists or participates in a criminal act can be held accountable as an accomplice. The instruction further provided:

A person who in some manner, "knowingly" and with criminal "intent," assists or participates in a criminal act is an accomplice. An accomplice is legally responsible for the criminal act.

A person need not commit every element of the offense in order to be guilty as an accomplice. However, it is necessary that the person be in some way associated with the venture, that the person participate in it as something that he or she wishes to bring about, and that the person seek by his or her actions to make it succeed. Prior knowledge that a crime is about to be committed and concealment of that knowledge alone do not make one criminally liable as an accomplice. Furthermore, onee a crime has been committed, concealment of one's knowledge of the crime does not make one an accomplice. Finally, mere presence at the scene of the crime is not in itself enough to make one an accomplice.

Spencer's attorney did not object to this instruction at the time. However, on appeal, Spencer argues that this instruction constituted plain error.

In particular, Spencer argues that the instruction is flawed because it did not require the jury to find that Spencer "specifically intended that [the] precise erimes [of kidnapping and first-degree assault] be accomplished." The answer to this contention is that the law does not require this proof.

Rather, as we explained in Riley, the State's complicity theory required proof (1) that Spencer encouraged or assisted Williams's restraint of, and assault on, Ahs-oak; (2) that Spencer provided this encouragement or assistance to Williams with the intent to promote or facilitate the restraint and the assault; and (8) that when Spencer provided this encouragement or assistance, he also acted with the culpable mental states specified in the kidnapping and first-degree assault statutes-namely, intent to inflict physical injury on Ahsoak and reckless disregard of the possibility that Ahsoak would suffer serious physical injury.

The challenged jury instruction on complicity informed the jurors that the State was obliged to prove that Spencer participated in the restraint and the assault "as something that he ... wishe[d] to bring about," and that Spencer "[sought] by his [ ] actions to make it succeed." This was an adequate restatement of elements (1) and (2) listed in the preceding paragraph.

The challenged jury instruction did not mention element (8)-the requirement that the State prove that Spencer also acted with the culpable mental states specified in the underlying kidnapping and first-degree assault statutes (intent to inflict physical injury and recklessness regarding the possibility of serious physical injury). But other jury instructions, specifically the instructions that described the elements of kidnapping and first-degree assault, informed the jurors of this aspect of the State's required proof.

Accordingly, we conclude that it was not plain error for Judge Pengilly to give the challenged complicity instruction.

Conclusion

The judgment of the superior court is AFFIRMED.

1 . AS 11.41.300(a)(1)(C) and AS 11.41.200(a)(1), respectively.

2 . See AS 11.41.200(a)(1).

3 . 797 P.2d 664 (Alaska App.1990).

4 . Id. at 668.

5 . Id.

⁶

7 . See Diamond v. State, 49 Ala.App. 68, 268 So.2d 850, 852 (Ala.Crim.App.1972) ('The admission of testimony of an allegedly intoxicated witness was not error since the weight to be accorded to the testimony is for the jury to say."); Cannady v. Lynch, 27 Minn. 435, 8 N.W. 164, 164-65 (1881) (holding that an intoxicated witness's competency is to be determined by the trial court); State v. Underwood, 28 N.C. 96 (N.C.1845) (holding the competency of a drunk witness to be within the discretion of the trial court); Prudential Ins. Co. of America v. Hashman, 7 Ohio App.3d 55, 454 N.E.2d 149, 153 (1982) ("[Wlhether a witness is so intoxicated so as to render him incompetent to testify is within the sound discretion of the trial court."); Gould v. Crawford, 2 Pa. 89 (Pa.1845) (holding that whether an intoxicated witness is competent is in the discretion of the court); Myers v. State, 37 Tex.Crim. 208, 39 S.W. 111, 112 (Tex.Crim.App.1897) (holding that a witness's intoxication when testifying does not render him incompetent, but goes to his credibility).

8 . See Shafer v. State, 456 P.2d 466, 467-68 (Alaska 1969).

9 . Dorman v. State, 622 P.2d 448, 453 (Alaska 1981); Pease v. State, 54 P.3d 316, 331 (Alaska App.2002).

10 . Dorman, 622 P.2d at 453.

¹¹

12 . "Serious physical injury" is defined in AS 11.81.900(b)(56) as "physical injury caused by an act performed under circumstances that create a substantial risk of death" or "physical injury that causes serious and protracted disfigurement, protracted impairment of health, protracted loss or impairment of the function of a body member or organ, or that unlawfully terminates a pregnancy."

13 . 818 P.2d 691, 692-94 (Alaska App.1991).

14 . 60 P.3d 204 (Alaska App.2002).

15 . Id. at 221.

¹⁶

¹⁷

18 . See AS 11.41.300(a)(1)(C).

19 . 550 P.2d 830, 841 (Alaska 1976).

20 . 533 P.2d 25, 29 (Alaska 1975).