BYRON GEISINGER v. STATE OF ALASKA (2010)

NOTICE Memorandum decisions of this court do not create legal precedent.  See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3).  Accordingly, this memorandum decision may not be cited as binding precedent for any proposition of law.

MEMORANDUM OPINION AND JUDGMENT

Byron F. Geisinger was convicted, following a jury trial conducted by Superior Court Judge Randy M. Olsen, of manslaughter,¹ leaving the scene of an injury accident,² two counts of assault in the first degree,³ forgery,⁴ and driving under the influence.⁵  Judge Olsen sentenced Geisinger to a composite sentence of twenty-one and one-half years with five years suspended.   Geisinger appeals his sentence.   We affirm.

In September of 2006, Yong-Hee Kim was visiting Alaska with her husband, Dr. Yong-Ki Kim, and her son, Edward Kim. On September 9, 2006, they were in a Pontiac Grand Am driving on Chena Hot Springs Road. Edward Kim was driving, and Dr. Kim was in the backseat.   Mrs. Kim was in the front passenger seat.   They saw a sign which indicated that there would be a picture opportunity, so they pulled over onto the shoulder and parked the car to look at the mountains.

Byron Geisinger was also traveling on Chena Hot Springs Road at that time in a truck.   Robert Walden observed Geisinger's truck, which was traveling ahead of him.   He followed the truck for about ten to fifteen minutes.   Walden saw the truck weaving erratically, including going into the opposite lane of travel and then back to the far right-hand side of the road.   At the urging of his girlfriend, Walden dropped farther back from Geisinger's truck.   Geisinger continued to weave back and forth, “going into oncoming traffic, [and then back to the] side of the lane.”   Walden saw the Grand Am, which was parked on the side of the road.   Suddenly the truck turned “and just bounded right into the back end of [the] Grand [Am].”

Dr. Kim was killed instantly in the collision.   Edward Kim was knocked unconscious.   He woke up in the emergency room and had no memory of the collision.   Edward Kim testified that, at the time of trial, he still had a very sore neck, shoulder, and left arm.   He testified that he had to do exercises every morning, or he would not be able to even drive to work.   Mrs. Kim remained conscious after the collision.   Edward Kim, who was unconscious, had his head on her shoulder.   She discovered that her husband was dead.   She was taken to the hospital.   The bones around her eye socket were broken, she had some internal bleeding, and she had shoulder injuries.   She testified that, although she could do normal work, the shoulder was not the same as it was before the accident.

Geisinger left the scene of the accident.   The next day, Geisinger contacted the Alaska State Troopers.

A grand jury charged Geisinger with manslaughter, failure to render assistance, and two counts of assault in the first degree.   In addition, the State charged him with driving under the influence and forgery in the second degree.   A jury convicted Geisinger on all counts.

Geisinger was forty-six years old at the time of these offenses.   He had a limited record of prior criminal offenses.   In 1991, he received a suspended imposition of sentence on a charge of making a harassing communication.   In 2006, he was convicted of misconduct involving weapons for possessing a loaded firearm while under the influence of alcohol.

In sentencing Geisinger, Judge Olsen mainly considered the seriousness of the manslaughter, the assaults, and leaving the scene of the accident.   He found that the Kims had moved as far off the road as they possibly could.   It was a sunny day, and visibility was good.   Geisinger was driving while he was intoxicated, and his vehicle was in bad condition.   He smashed into the Grand Am, killing Dr. Kim and seriously injuring Mrs. Kim and Edward.   Judge Olsen noted that Edward and Mrs. Kim could easily have been killed.   He observed that, after the accident, Geisinger left the scene, failed to render assistance, and hid from the police.   He concluded that Geisinger's actions reflected poorly on his prospects for rehabilitation.

Geisinger first contends that Judge Olsen erred in rejecting the mitigating factor that his conduct constituting the assault in the first degree of Mrs. Kim “was among the least serious conduct included in the definition of the offense.” ⁶  In arguing for the mitigating factor, Geisinger contended that his offense was among the least serious because Mrs. Kim's injuries were not severe.

A person commits assault in the first degree if he “recklessly causes serious physical injury to another by means of a dangerous instrument.” ⁷  One prong of the statutory definition of “serious physical injury” is “physical injury caused by an act performed under circumstances that create a substantial risk of death.” ⁸  The injury sustained by Mrs. Kim and the circumstances that led to this injury appear to be typical of a “serious physical injury” under this definition.   As Judge Olsen observed, Geisinger could easily also have killed both Edward and Mrs. Kim. The circumstances of Geisinger's assault do not establish least serious conduct.

Geisinger contends that the sentence that Judge Olsen imposed, twenty-one and one-half years with five years suspended, is excessive.   Manslaughter is a class A felony with a maximum term of twenty years of imprisonment.⁹  As a first felony offender, Geisinger faced a presumptive range of seven to eleven years.¹⁰  Judge Olsen imposed a sentence of eleven years with two years suspended for the manslaughter-a sentence toward the middle of the presumptive range.   In addition to the manslaughter sentence, Judge Olsen imposed the following active terms:  a consecutive two years for the assault on Mrs. Kim, two years for the assault on Edward Kim, two years for failure to render assistance, one year for forgery, and six months for driving under the influence.   The total time to serve was sixteen and one-half years of imprisonment.

State v. Dunlop ¹¹ provides that a sentencing court should consider the seriousness of the consequences of a defendant's actions, including the fact that multiple victims are injured.¹²  Although Geisinger's sentence is substantial compared to many vehicular homicide sentences we have reviewed in the past, we conclude that the sentence is not clearly mistaken.¹³  First, the legislature has recently raised the presumptive range for both manslaughter and assault in the first degree.   Under the pre-2005 code, under which many of our prior cases were decided, the presumptive ranges for first felony offenders convicted of manslaughter and assault in the first degree were five years.¹⁴  The sentencing range for first felony offenders convicted of these crimes is now seven to eleven years.¹⁵  Second, we conclude that Judge Olsen could properly take into account the fact that Geisinger's offenses involved three separate victims.

In reviewing a composite sentence for two or more crimes, we review the sentence to determine whether the composite sentence is clearly mistaken given the totality of the defendant's conduct and background.¹⁶  The composite sentence which Judge Olsen imposed for Geisinger's crimes does not appear to be clearly mistaken given Geisinger's background and the severity of those crimes.¹⁷

The judgment of the superior court is AFFIRMED.

FOOTNOTES

FN1. AS 11.41.120(a)(1)..  FN1. AS 11.41.120(a)(1).

FN2. AS 28.35.060(c)..  FN2. AS 28.35.060(c).

FN3. AS 11.41.200(a)(1)..  FN3. AS 11.41.200(a)(1).

FN4. AS 11.46.505(a)(1)..  FN4. AS 11.46.505(a)(1).

FN5. AS 28.35.030(a)(2)..  FN5. AS 28.35.030(a)(2).

FN6. AS 12.55.155(d)(9)..  FN6. AS 12.55.155(d)(9).

FN7. AS 11.41.200(a)(1)..  FN7. AS 11.41.200(a)(1).

FN8. AS 11.81.900(b)(56)(A)..  FN8. AS 11.81.900(b)(56)(A).

FN9. AS 11.41.120;  AS 12.55.125(c)..  FN9. AS 11.41.120;  AS 12.55.125(c).

FN10. AS 12.55.125(c)(2)(A)..  FN10. AS 12.55.125(c)(2)(A).

FN11. 721 P.2d 604 (Alaska 1986)..  FN11. 721 P.2d 604 (Alaska 1986).

FN12. Id. at 609-10;  Pusich v. State, 907 P.2d 29, 36 (Alaska App.1995)..  FN12. Id. at 609-10;  Pusich v. State, 907 P.2d 29, 36 (Alaska App.1995).

FN13. Pusich, 907 P.2d at 32;  Bottcher v. State, Memorandum Opinion and Judgment No. 5435 (Alaska App., Jan. 28, 2009), 2009 WL 226010, at *4-5..  FN13. Pusich, 907 P.2d at 32;  Bottcher v. State, Memorandum Opinion and Judgment No. 5435 (Alaska App., Jan. 28, 2009), 2009 WL 226010, at *4-5.

FN14. Former AS 12.55.125(c)(1) (2004)..  FN14. Former AS 12.55.125(c)(1) (2004).

FN15. AS 12.55.125(c)(2)(A)..  FN15. AS 12.55.125(c)(2)(A).

FN16. Brown v. State, 12 P.3d 201, 210 (Alaska App.2000)..  FN16. Brown v. State, 12 P.3d 201, 210 (Alaska App.2000).

FN17. See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974)..  FN17. See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).

COATS, Chief Judge.