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defining disfigurement as "an injury mars the [victim's] physical appearance"
Summary of this case from State v. PetionOpinion
Court of Appeals No. A-8690.
May 4, 2005.
Appeal from the Superior Court, Fourth Judicial District, Bethel, Jane F. Kauvar, Judge, Trial Court No. 4BE-02-1819 Cr.
Brant G. McGee, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for the Appellant.
Nancy R. Simel, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION
Allen Charlie Akaran was convicted of second-degree assault for attacking his girlfriend, S.P. During this attack, Akaran bit S.P. in the face, leaving a scar across her brow and her nose. The State alleged, and the jury found, that this scar was a "serious and protracted disfigurement", and that therefore S.P.'s injury was a "serious physical injury" as defined in AS 11.81.900(b)(56)(B). Based on this finding, the jury convicted Akaran of second-degree assault rather than the proposed lesser offense of fourth-degree assault.
In this appeal, Akaran contends that S.P.'s scar was not sufficiently serious to qualify as "serious and protracted disfigurement". In other words, Akaran contends that the evidence presented at his trial is insufficient to support his second-degree assault conviction. For the reasons explained here, we conclude that S.P.'s scarring was both sufficiently "serious" and sufficiently "protracted" to qualify as a serious physical injury under AS 11.81.900(b)(56)(B).
In addition, Akaran argues that the trial judge should not have allowed the State to introduce evidence that Akaran had been convicted of assaulting S.P. on two prior occasions. Because Akaran claimed that he never bit S.P., and that her injury was inflicted by accident while he was struggling with her in self-defense, we conclude that the trial judge did not abuse her discretion when she allowed the State to present evidence of Akaran's two previous assaults on the same victim.
Accordingly, we affirm Akaran's conviction.
Underlying facts
In December 2002, Akaran traveled to the village of Kotlik to visit his girlfriend, S.P. Akaran and S.P. had known each other for four years, and they had two-year-old twins. (The twins lived with S.P. and her family.)
Akaran's visit to S.P. was unlawful. Six months earlier, in June 2002, Akaran was convicted of third-degree assault upon S.P., and, as a condition of his release, he was prohibited from having contact with S.P. However, S.P. encouraged Akaran to visit Kotlik; in fact, she purchased his airplane ticket.
Initially, Akaran's visit went well. But trouble erupted after a few days. Akaran spent the afternoon of December 13th smoking marijuana and, that evening, he and S.P. shared a bottle of whiskey. By the early morning of December 14th, both Akaran and S.P. were quite intoxicated.
Because Akaran was so intoxicated, S.P. did not want Akaran to stay with her at her mother's house. Instead, S.P. told Akaran to stay with his uncle. This prompted an argument, because Akaran wanted to stay with S.P. Akaran grabbed S.P. by the arm and told her that he wished to stay with her. When S.P. tried to push Akaran away, the two of them lost their balance and fell to the ground.
S.P. landed on her back, with Akaran on top of her. S.P. struggled to get Akaran off of her, but she was unsuccessful. At this point, Akaran bit S.P. on her face, injuring her nose and left eyebrow.
Another villager (a cousin of S.P.'s) heard the commotion and saw S.P. running from Akaran. Blood was flowing down S.P.'s face and onto her clothes. The cousin took S.P. to the local health clinic. Later, S.P. was flown to the hospital in Bethel for additional treatment in the emergency room.
S.P. had a three- to four-centimeter wound across her brow and nose. Because the wound was made by a human bite (and was therefore highly prone to infection), the doctors did not sew the wound closed with sutures. Rather, they secured the wound with adhesive strips, so that it would continue to drain.
By the time of Akaran's trial in June 2003 ( i.e., six months later), this wound had closed and healed. The injury left S.P. with a pinkish scar that ran down her forehead to her left eyebrow and then curved in a semi-ellipse, first toward her left eye and then across to the bridge of her nose.
Based on this incident, Akaran was convicted of second-degree assault (reckless infliction of serious physical injury).
AS 11.41.210(a)(2).
Akaran's contention that, as a matter of law, S.P.'s injury did not constitute a "serious and protracted disfigurement"
To prove Akaran guilty of second-degree assault under AS 11.41.210(a)(2), the State had to prove that he recklessly inflicted serious physical injury on S.P. The definition of "serious physical injury" is codified in AS 11.81.900(b)(56). For purposes of Akaran's case, the pertinent part of this definition is found in subsection 900(b)(56)(B). According to this subsection of the statute, "serious physical injury" means "physical injury that causes serious and protracted disfigurement".
Akaran argues that the scarring of S.P.'s face was not "serious". He further argues that even if the scarring qualified as "serious" at the time of his trial, there was no evidence that the scar would remain serious for a "protracted" period of time. Accordingly, Akaran contends that the evidence presented at his trial fails to establish that S.P. suffered serious physical injury.
The State suggests that we need not reach this issue. In its brief to this Court, the State argues that the evidence at Akaran's trial established "serious physical injury" under one of the other provisions of AS 11.81.900(b)(56) — in particular, the clause of AS 11.81.900(b)(56)(A) which defines serious physical injury as any injury "caused by an act performed under circumstances that create a substantial risk of death". The State points out that, according to the medical testimony at Akaran's trial, human bites are dangerous wounds because they are so prone to infection. Based on this testimony, the State argues that a finding of "serious physical injury" can be justified under section 900(b)(56)(A).
But the prosecuting attorney never argued this theory to the jury, and the jury never made a finding as to whether Akaran's biting of S.P. was "an act performed under circumstances that create[d] a substantial risk of death". We therefore reject the State's suggestion that the second-degree assault verdict can be upheld on this alternative ground, and we turn to the merits of Akaran's arguments on appeal.
Akaran concedes that a visible scar is a "disfigurement", and his concession of this issue comports with a recent decision of our supreme court.
In City of Bethel v. Peters, 97 P.3d 822, 828-29 (Alaska 2004), the supreme court defined "disfigurement" in a civil law context. Alaska law sets a higher limit on damages in personal injury lawsuits if the plaintiff has suffered "severe disfigurement". See AS 09.17.010(c). The supreme court held that, for purposes of this statute, a "disfigurement" is an injury that "impairs or injures the beauty, symmetry, or appearance of a person . . . [or that] renders [a person's appearance] unsightly, misshapen, or imperfect". Peters, 97 P.3d at 829. "If a reasonable person would see the injury as detracting from the plaintiff's appearance, the injury has caused disfigurement." Id. Other courts agree that if a scar is observable from a normal social distance, it constitutes a disfigurement.
See State v. Malufau, 906 P.2d 612, 619 (Haw. 1995) ("even a small but noticeable scar on a person's face . . . is a disfigurement"); State v. Bledsoe, 920 S.W.2d 538, 540 (Mo.App. 1996) ("Disfigure means to deface or mar the appearance or beauty of someone. Clearly, . . . the victim in this case [was] disfigured. . . . [H]e had a scar underneath his chin, and the trial court noted it could see the scar.").
Although Akaran repeatedly characterizes S.P.'s injury as a "hairline scar", the record rebuts this description. The record on appeal includes color photographs of S.P.'s face at the time of Akaran's trial, and these photographs show a scar that is approximately one-eighth to three-sixteenths of an inch wide, with irregular borders, stretching in an arc that begins above her left eyebrow and travels downward toward her eye, then across to the bridge of her nose. The scar has a different color from the rest of S.P.'s face, and it is readily visible in the photographs.
The question is whether reasonable jurors could conclude that this type of scarring constituted a disfigurement that was both "serious" and "protracted".
The statutory language at issue — the "serious and protracted disfigurement" clause of the definition of "serious physical injury" — appears in the Tentative Draft of our criminal code. The drafters of our criminal code adopted this language in place of the phrase "serious, permanent disfigurement" that was part of our former criminal code's definition of "great bodily injury".
Alaska Criminal Code Revision, Tentative Draft, Part 1 (1977), pp. 93-94.
See former AS 11.15.225(b) (1979).
The legislature's substitution of "protracted" for "permanent" is a fair indication that the legislature no longer wished to insist on proof that the disfigurement was permanent. However, neither the Tentative Draft nor the various legislative commentaries to the definition section of the criminal code — AS 11.81.900(b) — contain a more specific description of what the legislature meant by the two words "serious" and "protracted".
Neither this Court nor the Alaska Supreme Court has had occasion to further define this clause of AS 11.81.900(b). However, as noted earlier in this opinion, the supreme court recently interpreted similar language in AS 09.17.010(c) — the phrase "severe disfigurement". We have already discussed the supreme court's interpretation of the word "disfigurement". With regard to the meaning of "severe", the court stated:
[A] [d]isfigurement is severe if a reasonable person would find that the injury mars the [victim's] physical appearance and causes a degree of unattractiveness sufficient to bring negative attention or embarrassment. . . . [A] plaintiff is not required to introduce evidence showing how particular people react to the injury; the court and the jury themselves [can] supply the views of the reasonable person.
City of Bethel v. Peters, 97 P.3d at 829.
In Peters, the supreme court was interpreting the phrase "severe disfigurement", while our task is to interpret "serious . . . disfigurement". However, we note that at least one dictionary views these two phrases as equivalent. We therefore conclude that at least one reasonable test for "serious" disfigurement is the test for "severe" disfigurement described by our supreme court in Peters: an "injury [that] mars the [victim's] physical appearance and causes a degree of unattractiveness sufficient to bring negative attention or embarrassment".
See Webster's New World College Dictionary (4th ed. 2004), p. 1313: " severe . . . 3 serious or grievous [a severe wound]".
Peters, 97 P.3d at 829.
Moreover, having reviewed the testimony presented at Akaran's trial and the photographs of S.P.'s appearance at the time of trial, we conclude that reasonable jurors could find that S.P.'s injury constituted a "serious disfigurement" under this definition.
One further question remains: Was the evidence at Akaran's trial sufficient to present a jury issue as to whether S.P.'s disfigurement was also "protracted"?
As we noted earlier, Alaska's current criminal code substitutes the word "protracted" for the word "permanent" that appeared in our former criminal code. We therefore conclude that a "protracted" disfigurement need not be permanent. This conclusion is bolstered by the supreme court's decision in City of Bethel v. Peters.
In Peters, the supreme court was dealing with a statute that raised the cap on tort damages if the victim suffered "severe permanent disability" or "severe disfigurement". Based on the fact that the legislature omitted the word "permanent" when describing "disfigurement", the supreme court concluded that "a severe disfigurement need not be permanent to support [the higher ceiling on] damages". But the supreme court added that a transient or temporary disfigurement is not sufficient:
Peters, 97 P.3d at 828.
[A] reasonable healing period must be allowed before disfigurement may be assessed. Otherwise, a plaintiff might . . . claim to be disfigured based on his condition immediately after being injured[,] when a wound that will eventually heal completely still appears grisly. . . . [The question is] the longterm state of [the victim's body].
Peters, 97 P.3d at 828.
At Akaran's trial, the prosecutor relied on S.P.'s physical condition at the time of trial — i.e., her condition six months after the assault. In addition, the prosecutor presented a medical witness who observed S.P. during the trial. This witness testified that S.P.'s scarring would be permanent.
Akaran points out that this medical witness did not expressly state that S.P.'s scar would continue to look exactly the same in the future. But by the same token, there was no evidence that the scar would fade or otherwise ameliorate.
Based on this evidence, reasonable jurors could conclude that S.P.'s scarring was not a transient or temporary disfigurement, but rather that the scarring remained serious even after a reasonable healing period. Thus, the evidence presented at Akaran's trial was sufficient to establish that S.P.'s disfigurement was "protracted".
For these reasons, we uphold Akaran's conviction for second-degree assault.
Akaran's challenge to the evidence of his two prior assaults on S.P.
As discussed in the preceding section, the jury at Akaran's trial was asked to decide whether Akaran inflicted serious physical injury on S.P. (and was therefore guilty of second-degree assault) or whether he merely inflicted physical injury on S.P. (and was therefore guilty of only fourth-degree assault). However, this was only one of the issues litigated at Akaran's trial. Akaran's primary defense was that he had not assaulted S.P. at all.
Akaran contended that he never bit S.P. or even attacked her. According to Akaran's testimony, S.P. attacked him while they were having an argument outside her cousin's home. Akaran claimed that he struggled with S.P. only in self-defense, and that, during this struggle, S.P. sustained an accidental injury to her face when she hit her head against a nearby snow machine or some other object in the yard.
Before trial began, Akaran notified the State that he intended to rely on this defense of justification. At the same time, the State sought permission to introduce evidence of Akaran's three prior assaults on S.P. The State claimed that these prior assaults were admissible under Alaska Evidence Rule 404(b)(4), which allows evidence of a defendant's other acts of domestic violence. Akaran's attorney objected that the proposed evidence was more prejudicial than probative, and that it should therefore be excluded under Evidence Rule 403.
The trial judge, Superior Court Judge pro tempore Jane F. Kauvar, took this matter up on the first morning of trial. Akaran's defense attorney reiterated his position that the prior assaults were too prejudicial — that the jury might be tempted to convict Akaran solely because of his prior bad acts. But in addition, the defense attorney pointed out that the prosecutor apparently intended to call six or seven witnesses to establish these prior offenses. The defense attorney argued that, leaving aside the question of whether the jury should hear about the prior assaults, this kind of evidentiary presentation would cause problems of its own — because it would require something "close to a little minitrial".
At the conclusion of his remarks, the defense attorney told Judge Kauvar that even if the State was going to be permitted to introduce evidence of the prior assaults, the judge needed "to sort out how . . . that information is going to be present[ed] in a way that's not unduly prejudicial to Mr. Akaran".
Judge Kauvar ruled that the evidence pertaining to one of the three prior assaults — the one that had not resulted in a criminal conviction — was too speculative to survive a Rule 403 balancing test. She therefore prohibited the State from mentioning that assault in its case-in-chief. However, with respect to the two prior assaults that had resulted in criminal convictions against Akaran (a misdemeanor assault from December 2001, and a felony assault from June 2002), Judge Kauvar ruled that the State could introduce evidence of these assaults. The judge concluded that these two prior assaults were relevant because they were "fairly recent" and because they "[involved] the same victim".
After Judge Kauvar made this ruling, the prosecutor announced that he did not intend to call multiple witnesses to establish the two prior assaults. Instead, he intended to establish the prior assaults by having S.P. testify about them, and by introducing copies of the criminal judgements.
Akaran's attorney replied that, although he would not waive his overall objection to the admission of this other crimes evidence, he thought that the prosecutor's proposed method of proving these two prior assaults answered his earlier concerns about the manner in which this evidence was going to be presented. The defense attorney declared that the prosecutor's proposed method of proving the prior assaults was "about as streamlined as you can get".
A little later in the trial, just before S.P. took the stand, the prosecutor suggested that he was willing to forego having S.P. testify about the prior assaults if the court would allow him to introduce two documents describing those assaults: a copy of the judgement entered in the misdemeanor assault case, and a piece of paper prepared by the district attorney's office which stated that Akaran "ha[d] been convicted of assault in the third degree, a class C felony, committed on June 15, 2002".
The prosecutor asked Judge Kauvar for permission "to mark [these two documents] as an exhibit and [to] have the victim read it". Akaran's attorney responded, "No objection to that. . . . That's fine. I have no objection. Those can come in."
The two documents were eventually marked as Exhibits 13 and 14. During her testimony, S.P. identified the two documents and testified that she was the victim of the two assaults described in these documents. Akaran's attorney made no objection to this testimony or to the later admission of the two exhibits.
On appeal, Akaran renews his objection that the evidence of the two prior assaults was more prejudicial than probative, and that evidence of these assaults should have been excluded under Evidence Rule 403. But as Judge Kauvar noted, the two assaults were recent instances in which Akaran assaulted the same victim, S.P. Moreover, Akaran's two prior assaults on S.P. were relevant to rebut the defense contentions that Akaran had acted in self-defense, and that S.P. had sustained her injury when she accidentally hit her head against a snow machine or other hard object. Judge Kauvar did not abuse her discretion when she concluded that the probative value of these prior assaults was sufficient to withstand Akaran's challenge under Evidence Rule 403.
As an alternative argument, Akaran contends that even if evidence of the two prior assaults was admissible, it was improper to allow the State to establish the two assaults through a court judgement and a piece of paper prepared by the district attorney's office. Akaran argues that the State should have been required to present witness testimony to establish the prior assaults.
But as we have explained here, Akaran's trial attorney took exactly the opposite position when this issue was litigated in the superior court. The defense attorney protested the "mini-trial" that would ensue if the prosecutor was allowed to present several witnesses to prove the prior assaults, and the defense attorney openly welcomed the prosecutor's proposal to limit the State's proof to the two documents (with brief supporting testimony from S.P.).
Accordingly, we conclude that Akaran's current objection to the State's method of proof was not preserved for appeal.
Conclusion
The judgement of the superior court is AFFIRMED.
This Court's main opinion concludes that the evidence presented at Akaran's trial was sufficient to support a finding that S.P.'s scarring constituted a disfigurement that was both serious and protracted. I write separately because I believe that Akaran faces a procedural hurdle not addressed in the main opinion: his failure to preserve his current claim when his case was litigated in the superior court.
In Shafer v. State, 456 P.2d 466 (Alaska 1969), the Alaska Supreme Court held that a defendant can raise a "sufficiency of the evidence" claim on appeal even though the defendant did not ask the superior court for a judgement of acquittal on this basis. The supreme court explained that the judiciary has an independent duty to make sure that criminal convictions are supported by sufficient evidence; thus, even if the defendant did not ask the trial judge for a ruling on the sufficiency of the evidence, the lack of an evidentiary basis for the defendant's conviction "would amount to plain error affecting the defendant's substantial rights". Id. at 468.
The Shafer decision did not create a special rule for claims of evidentiary insufficiency. Rather, the supreme court simply applied the established rule that claims of error can be raised for the first time on appeal if the error is "plain" — that is, if the error is so obvious that it should have been apparent to any competent judge or attorney, and if the error is so prejudicial to the fairness of the proceedings that failure to correct it would perpetuate manifest injustice.
See Vent v. State, 67 P.3d 661, 666-67 (Alaska App. 2003); Massey v. State, 771 P.2d 448, 453 (Alaska App. 1989); Potts v. State, 712 P.2d 385, 394 n. 11 (Alaska App. 1985); Carman v. State, 658 P.2d 131, 137 (Alaska App. 1983); Marrone v. State, 653 P.2d 672, 675-681 (Alaska App. 1982).
In Shafer, there was no dispute concerning the legal definitions of the elements of the offense. Instead, the dispute was whether the evidence presented at trial (when viewed in the light most favorable to the jury's verdict) was sufficient to establish those elements. Thus, if the evidence was indeed insufficient, this insufficiency would be "plain" from the appellate record: the supreme court could simply review the transcript of the trial to resolve the claim on appeal.
Shafer, 456 P.2d at 468-69.
But Akaran's case is different, because his claim does not begin with an agreed-upon definition of the offense. Although Akaran refers to his claim as an "insufficiency of the evidence" claim, his real argument is that the statutory phrase "serious and protracted disfigurement" should be interpreted in a particular way.
Akaran did not preserve this claim of error. When Akaran's case was litigated in the superior court, he did not raise any question concerning the legal meaning of "serious" or "protracted". He did not ask for a jury instruction defining these terms, nor did he raise this definitional issue in any other manner. Instead, Akaran allowed his case to be argued to the jury based simply on the statutory phrasing.
Because of this, Akaran can not insist on appellate review of his arguments concerning the proper interpretation of "serious and protracted disfigurement" unless he demonstrates plain error. Just like the defendant in Shafer, Akaran must show that the asserted error would have been obvious to any competent judge or attorney. That is, Akaran must show that no competent judge would have believed that "serious" and "protracted" could be defined in such a way as to allow Akaran's case to go to the jury.
See McGill v. State, 18 P.3d 77, 82-84 (Alaska App. 2001) (The defendant argued for the first time on appeal that, as a matter of law, no sexual assault occurs when the victim initially consents to the act of sexual penetration but then, during the act of penetration, withdraws their consent. This Court held that the defendant was obliged to show plain error.). See also Stock v. State, 526 P.2d 3, 11-14 (Alaska 1974) (The defendant, convicted of an act of pollution, argued for the first time on appeal that the phrase "potentially harmful [to the environment]" was unconstitutionally vague and, unless clarified and limited, unconstitutionally overbroad. The supreme court held that the defendant was obliged to show plain error.).
But unlike the defendant in Shafer, Akaran's claim can not be resolved merely by examining the transcript of his trial. Instead, as our main opinion demonstrates, resolution of Akaran's claim requires significant legal research. Because the contested statutory language has not been construed before, resolution of Akaran's claim requires a close examination of that contested language using established methods of judicial interpretation.
A claim of plain error fails if the law is unsettled — if the proper resolution of the claim of error is reasonably debatable. Given our supreme court's construction of the phrase "severe disfigurement" in City of Bethel v. Peters, it is clear that at least some competent judges could conclude that the terms "serious" and "protracted" should be interpreted in ways that would allow Akaran's case to go to the jury for decision. This defeats a claim of plain error.
See Heaps v. State, 30 P.3d 109, 114-15 (Alaska App. 2001); Marrone v. State, 653 P.2d 672, 676 (Alaska App. 1982) (a claim of plain error fails if reasonable judges could differ as to what the law requires).
97 P.3d 822 (Alaska 2004).
Thus, although I agree that this Court should reject Akaran's argument concerning the meaning of this statutory language, I would reach that result on the narrower ground that Akaran has failed to show plain error.