JOHNSON STALKER III v. STATE OF ALASKA (2011)

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

C.G. obtained a domestic violence restraining order against her boyfriend, Johnson Stalker III. Stalker and C.G. were residents of the village of Buckland.   Approximately two weeks after being served with the restraining order, Stalker started drinking and assaulted C.G.

Village Police Officer Cynthia Brown arrested Stalker and brought him to the village jail.   Brown hired Jonny Hadley to be the jailer for the night.   Hadley had no formal training to be a jail guard.   Around 3 a.m., Stalker left the jail, but there was conflicting testimony at trial about whether he forcibly escaped or left with Hadley's permission.

Hadley testified that Stalker asked to have his handcuffs removed, so Hadley opened the cell door and removed the handcuffs.   Stalker then punched at Hadley until he lost his balance, and Stalker escaped from the jail.   Hadley testified that he followed Stalker to the residence Stalker shared with his grandmother.   When Hadley tried to convince Stalker to return to the jail, Stalker punched at Hadley again.

Stalker testified that Hadley agreed to let him visit his grandmother to say good-bye because Stalker expected to receive a lengthy jail sentence.   He denied that he had punched at Hadley.

Stalker was convicted of eight offenses, including one conviction for escaping from the jail and one conviction for assaulting Hadley at his grandmother's residence.

On appeal, Stalker contends that there was insufficient evidence to support his conviction of escape in the second degree.   To decide this question, we view the record in the light most favorable to the verdict and “determine whether fair minded jurors exercising reasonable judgment could find the defendant guilty beyond a reasonable doubt.” ¹  We do not weigh the credibility of witnesses-determining the credibility of witnesses is the jury's responsibility.²

A person commits the crime of escape in the second degree if they remove themselves from a correctional facility without lawful authority while under official detention.³  In this case, a reasonable fact-finder could have found that Hadley was more credible than Stalker and that Stalker left the Buckland jail without authorization.

Stalker also argues that the trial judge improperly granted the State's motion to amend the charge for assaulting Hadley.   The information originally charged that Stalker “recklessly caused physical injury” to Hadley.⁴  But at trial, Hadley testified that he had eluded Stalker's punches, so he had not suffered any physical injury.

At the close of the State's case, Stalker moved for a judgment of acquittal on this assault charge.   The trial judge agreed that there was no evidence that Hadley had been injured.   But the prosecutor moved to amend the charge to allege that Stalker had recklessly placed Hadley in fear of imminent physical injury.⁵  The court denied Stalker's motion for a judgment of acquittal and granted the State's motion to amend the assault charge.   Stalker then proceeded with his defense case.

Under Alaska Criminal Rule 7(e) “a court may permit a charge to be amended before the verdict has been returned if the prosecution satisfies two elements:  (1) ‘no additional or different offense is charged’ and (2) ‘the substantial rights of the defendant [have not been] prejudiced.’ ” ⁶  We will not reverse a trial court's decision unless the defendant shows that “the nature or timing of the amendment prejudiced his defense.” ⁷

At trial, Stalker argued that he had prepared to defend against the charge that he had injured Hadley and not against a charge that he had placed him in fear of injury.   He also argued that it was unfair to amend the charge after the State had rested.   But Stalker did not request a continuance or argue that he needed any other relief in order to meet the amended charge.

On appeal, Stalker argues that he needed to adapt his trial strategy to meet the amended charge.   But the record suggests that Stalker did have the chance to adapt his defense strategy by recalling Hadley to the stand or addressing the incident in his own testimony.   Stalker's defense did not address whether he had injured Hadley or merely placed him in fear of injury.   Instead, Stalker denied that he had punched at Hadley at all.   We accordingly conclude that Stalker was not prejudiced by this amendment.

We AFFIRM the superior court's judgment.

FOOTNOTES

FN1. Abyo v. State, 166 P.3d 55, 60 (Alaska App.2007)..  FN1. Abyo v. State, 166 P.3d 55, 60 (Alaska App.2007).

FN2. Id..  FN2. Id.

FN3. AS 11.56.310(a)..  FN3. AS 11.56.310(a).

FN4. AS 11.41.230(a)(1) provides that a “person commits the crime of assault in the fourth degree if ․ that person recklessly causes physical injury to another person.”.  FN4. AS 11.41.230(a)(1) provides that a “person commits the crime of assault in the fourth degree if ․ that person recklessly causes physical injury to another person.”

FN5. AS 11.41.230(a)(3) provides that a “person commits the crime of assault in the fourth degree if ․ by words or other conduct that person recklessly places another person in fear of imminent physical injury.”.  FN5. AS 11.41.230(a)(3) provides that a “person commits the crime of assault in the fourth degree if ․ by words or other conduct that person recklessly places another person in fear of imminent physical injury.”

FN6. Shorty v. State, 214 P.3d 374, 385 (Alaska App.2009) (alteration in original) (quoting Criminal Rule 7(e))..  FN6. Shorty v. State, 214 P.3d 374, 385 (Alaska App.2009) (alteration in original) (quoting Criminal Rule 7(e)).

FN7. Id. at 385..  FN7. Id. at 385.

BOLGER, Judge.