Matthew Foy v. State of Alaska ( 2022 )

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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
MATTHEW FOY,
Court of Appeals No. A-13019
Appellant, Trial Court No. 2NO-16-00324 CR
v.
OPINION
STATE OF ALASKA,
Appellee. No. 2725 — June 10, 2022
Appeal from the Superior Court, Second Judicial District,
Nome, Jane F. Kauvar, Judge.
Appearances: Gavin Kentch, Law Office of Gavin Kentch,
LLC, Anchorage, for the Appellant. Elizabeth T. Burke,
Assistant Attorney General, Office of Criminal Appeals,
Anchorage, and Kevin G. Clarkson, Attorney General, Juneau,
for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Harbison,
Judges.
Judge ALLARD.
Matthew Foy was convicted, following a jury trial, of first-degree assault,
third-degree assault, third-degree criminal mischief, and first-degree witness tampering
based on a series of incidents in which Foy attacked Denise Topkok and threatened
another person with a knife.1 On appeal, Foy contends that there was insufficient
evidence presented at trial to support his convictions for the charged offenses. We have
reviewed the record in this case, and we conclude that the evidence was sufficient to
support all of Foy’s convictions except his conviction for first-degree assault. We
therefore reverse the first-degree assault conviction and remand this case to the superior
court to enter a conviction for the lesser included offense of third-degree assault and to
resentence Foy accordingly.
Foy also argues that the first-degree assault charge was the result of
prosecutorial vindictiveness. The State maintains that Foy failed to present a prima facie
case in support of this claim. The State also contends that Foy waived any claim of
prosecutorial vindictiveness by failing to bring a timely motion raising the issue in the
superior court. We conclude that we do not need to resolve this issue because our
reversal of the first-degree assault conviction renders any claim of prosecutorial
vindictiveness moot.
Background facts
Because Foy challenges the sufficiency of the evidence to support his
convictions, we present the facts in the light most favorable to the jury’s verdicts.2
On May 16, 2016, Denise Topkok offered Foy a ride from Nome to Teller.
According to Topkok’s later statement to the troopers, Foy and Topkok had an
altercation on an isolated stretch of road at about 2:00 a.m. on May 17.
1
AS 11.41.200(a)(1), AS 11.41.220(a)(1)(A), AS 11.46.482(a)(1), and
AS 11.56.540(a)(1), respectively. The jury also found Foy guilty of a second third-degree
assault charge but this guilty verdict merged with the first-degree assault conviction.
2
See Iyapana v. State, 284 P.3d 841, 848-49 (Alaska App. 2012).
–2– 2725
In her statement to the troopers, Topkok reported that Foy hit her in the face
after she told him she would not drive him back to Nome that morning. She also told the
troopers that when she got out of the car, Foy followed her and put his arm around her
neck for “[p]robably over a minute.” Topkok reported that Foy would “squeeze and then
quit” and that he threatened to kill her. When the trooper asked if Foy was “cutting off
your flow of air at all,” Topkok answered “yeah” and that her throat was sore. But when
Topkok was asked whether she had a “hard time breathing,” she answered, “I don’t
know, it just, like, happened too fast,” and she said that she was able to “slip out” of
Foy’s grasp. Foy and Topkok then got back in the car, and Topkok drove them the rest
of the way into New Site (an area of Teller).
When Topkok and Foy arrived in New Site, Topkok pulled up to the house
of her neighbor, Agatha Pikonganna. Pikonganna later testified that she was hosting a
poker night at her home and that she, Melanie Wasky, and several other guests witnessed
Topkok drive up. David Miller, Topkok’s brother-in-law, was also nearby at his own
home.
According to Pikonganna, Topkok got out of the car and asked for help,
saying that Foy had just choked her. Pikonganna also told the jury that Foy appeared to
be intoxicated and that he threatened to kill Topkok and her family.
David Miller testified that when Topkok got out of the car, Foy began
aggressively “chest bump[ing]” Topkok. In response, Miller stepped between Topkok
and Foy. According to Miller, Foy reacted angrily to this and began shouting at him.
Foy shouted in Miller’s face and spit on him, and Miller told Foy to back away. Foy
continued spitting on him, and Miller testified that this prompted him to push Foy to the
ground. Foy then got to his feet and pulled out a knife, threatening to “slice [Miller’s]
throat,” which caused Miller to back away because he was afraid of being stabbed by
Foy.
–3– 2725
Foy left and went to Topkok’s nearby house. About an hour later,
Pikonganna and Wasky heard the sound of breaking glass. Miller went to investigate,
taking a shovel to defend himself against Foy. When Miller arrived at Topkok’s house,
he saw a window break. He then yelled until Foy came outside. Miller verbally
confronted Foy and told him to stop breaking windows.
The state troopers arrived a few hours later, at around 7:00 a.m. They first
spoke with Miller and the other witnesses and then talked to Topkok, who provided a
detailed statement describing Foy’s assault on her. The troopers observed a red mark on
Topkok’s neck, at her collar.
The troopers next went to Topkok’s residence. They found both entrances
blocked from the inside, household belongings strewn around, and a broken window.
Foy was sleeping on a bunk bed inside the home. The troopers handcuffed Foy and
recovered the knife. After being read his Miranda rights, Foy gave a rambling account
of the incident in which he claimed that he was attacked in a vehicle by an unknown
woman and that a man had broken Topkok’s window with a shovel. Foy also claimed
that he felt threatened, and that is why he pulled out the knife. Foy denied ever hitting
or harming Topkok.
Procedural history
On May 26, 2016, the prosecutor prepared an indictment charging Foy with
three crimes: third-degree assault for the conduct involving David Miller, third-degree
assault for the conduct involving Denise Topkok, and third-degree criminal mischief for
breaking Topkok’s window. However, Topkok did not respond to the grand jury
–4– 2725
subpoena, and the prosecutor therefore only went forward with the third-degree assault
against Miller.3
On June 21, Foy filed a bar complaint against the prosecutor, alleging that
the prosecutor was harassing witnesses. The prosecutor responded to the complaint with
a letter describing Foy as “a seasoned criminal defendant seeking to gain some advantage
in his latest proceedings by making false accusations about the prosecutor.” On
August 30, the Alaska Bar Association notified Foy and the prosecutor that the grievance
did not warrant further investigation.
About a week later, on September 7, the prosecutor convened a second
grand jury. This time, Topkok appeared. Topkok told the grand jury that although she
and Foy had a “verbal argument,” they did not have a physical altercation. To impeach
this testimony, the prosecutor introduced the recordings of Topkok’s statement to the
troopers on the morning after the assault. The second grand jury indicted Foy for first-
and third-degree assault for strangling Topkop, as well as third-degree criminal mischief
for breaking the window.4
On November 2, a third grand jury indicted Foy for the crime of witness
tampering.5 The evidence presented to this grand jury established that, between the first
two grand jury proceedings, Foy spoke to Topkok on the phone several times. During
these conversations, Foy acknowledged that Topkok had made a number of statements
to the troopers accusing him of assaulting her. He also acknowledged that Topkok was
subpoenaed to testify before the grand jury. In one of the calls, Foy instructed Topkok
to tell the grand jury that nothing happened between them and that the troopers “put
3
AS 11.41.220(a)(1)(A).
4
AS 11.41.200(a)(1), AS 11.41.220(a)(1)(A), and AS 11.46.482(a)(1), respectively.
5
AS 11.56.540(a)(1).
–5– 2725
words in [her] mouth.” At the second grand jury hearing, Topkok testified that nothing
happened between Foy and herself and she claimed that the trooper “was most likely
putting words in my mouth.”
The matter then proceeded to a jury trial. At trial, Topkok testified that she
was intoxicated during her phone calls with Foy and when she testified before the grand
jury. She also testified that although she and Foy got into a verbal argument in the car
between Nome and Teller, nothing more happened. According to Topkok, she did not
remember what she told the troopers.
The prosecutor then played the recording of Topkok’s report to the troopers
as a prior inconsistent statement.
The jury found Foy guilty of all charges.
Foy’s insufficiency arguments on appeal
On appeal, Foy argues that there was insufficient evidence presented at trial
to support his convictions. When we evaluate the sufficiency of the evidence, we are
required to view the evidence — and all reasonable inferences arising from that evidence
— in the light most favorable to the jury’s verdict and ask whether a reasonable fact
finder could have found the defendant guilty beyond a reasonable doubt.6 We do not
evaluate the weight of the evidence or witness credibility, as those are questions for the
fact finder.7
We address Foy’s arguments in the order in which he raises them in his
brief.
6
Iyapana, 284 P.3d at 848-49 (citing Morrell v. State, 216 P.3d 574, 576 (Alaska App.
2009)).
7
Morrell, 216 P.3d at 576.
–6– 2725
1. The witness tampering conviction
Foy argues first that there was insufficient evidence to support his
conviction for witness tampering.
To establish that Foy was guilty of first-degree witness tampering, the State
was required to prove beyond a reasonable doubt that Foy “knowingly induce[d] or
attempt[ed] to induce a witness to . . . testify falsely, offer misleading testimony, or
unlawfully withhold testimony in an official proceeding.”8
Foy makes three separate arguments for why there was insufficient
evidence to convict him of witness tampering. We begin with his argument that the
evidence presented at trial shows only that he coached Topkok to deliver truthful
testimony in a favorable light, as permitted by Rantala v. State.9
In Rantala, we noted that AS 11.56.540(a)(1) criminalizes any attempt to
induce a witness to “unlawfully withhold testimony.”10 We held that, because it is not
unlawful “to encourage a person to exercise their right to decline to testify if they have
not been subpoenaed,” nor is it unlawful to ask a witness to provide “yes” or “no”
answers when appropriate and to refrain from volunteering information, such conduct
did not constitute witness tampering.11
Foy’s case is clearly distinguishable from Rantala. Here, the jury heard a
recording of Topkok’s initial statement to the troopers reporting that Foy had punched
and choked her. The jury also heard a recording of a phone conversation between Foy
and Topkok discussing whether Topkok should testify before the grand jury and what
8
AS 11.56.540(a)(1).
9
Rantala v. State, 216 P.3d 550 (Alaska App. 2009).
10
Id. at 555 (emphasis in original).
11
Id. at 556-61.
–7– 2725
she should say. During this conversation, Foy told Topkok that she should testify that
nothing happened between them and that the troopers “put words in [her] mouth.” The
jury additionally heard a recording of Topkok’s grand jury testimony, where she stated
that the trooper was “most likely putting words in my mouth.”
Given this record, we have little difficulty concluding that there was
sufficient evidence presented at trial from which a reasonable juror could find that Foy
“knowingly induce[d] . . . a witness to . . . testify falsely . . . in an official proceeding.”12
Foy also argues that the State presented insufficient evidence to establish
that the statements Topkok made when she testified under oath were false. We note, as
an initial matter, that Foy would still be guilty of first-degree witness tampering even if
Topkok had testified truthfully because AS 11.56.540(a)(1) criminalizes an “attempt” to
induce a person to testify falsely, even if that attempt is unsuccessful.
But in any event, there was sufficient evidence presented at trial from which
a fair-minded juror could conclude beyond a reasonable doubt that Foy successfully
induced Topkok to testify falsely at the grand jury. As already mentioned, the jury heard
Topkok’s prior recorded statements to the troopers that Foy had hit and choked her. The
jury also heard Topkok’s contradictory testimony at the grand jury and at trial that
nothing had happened between her and Foy. The jury could reasonably credit Topkok’s
prior statements over her grand jury and trial testimony.13
Lastly, Foy argues that he could not have committed witness tampering
because Topkok was intoxicated when she spoke with him on the phone about her
testimony and when she testified before the grand jury. But Foy provides no authority
12
See AS 11.56.540(a)(1).
13
See Iyapana v. State, 284 P.3d 841, 848-49 (Alaska App. 2012) (citing Morrell v.
State, 216 P.3d 574, 576 (Alaska App. 2009)).
–8– 2725
for the proposition that, as a matter of law, a defendant cannot be guilty of witness
tampering simply because the witness was intoxicated when the defendant attempted to
induce them to testify falsely, nor are we aware of any such authority.14 We accordingly
reject this claim of error and affirm Foy’s conviction for witness tampering.
2. The criminal mischief conviction
Foy argues next that there was insufficient evidence to support his
conviction for criminal mischief.
To establish that Foy was guilty of third-degree criminal mischief, the State
was required to prove beyond a reasonable doubt that Foy intentionally “damage[d] [the]
property of another in an amount of $750 or more” with “no right to do so or any
reasonable ground to believe [he] ha[d] such a right.”15 “The amount of damage caused
by an act of criminal mischief may be established through evidence showing either
diminution in value or reasonable cost of repair.”16
On appeal, Foy does not dispute that there was sufficient evidence that he
broke the window, but he contends that the State did not present sufficient evidence to
establish that he caused at least $750 in damages. At trial, Topkok’s landlord testified
that a new window would cost “[$]600 for a window, and like another six [hundred] for
labor and expenses,” for a total repair cost of approximately $1,200. By contrast,
14
Cf. Spencer v. State, 164 P.3d 649, 653 (Alaska App. 2007) (“There is no categorical
rule barring the testimony of a witness who has been drinking, and we reject [the appellant’s]
suggestion that we should adopt such a rule. Instead, trial judges should handle these
situations as the circumstances require.”).
15
AS 11.46.482(a)(1).
16
Young v. State, 848 P.2d 267, 271 (Alaska App. 1993).
–9– 2725
Topkok testified that she had already purchased a window for $400 and that her uncles
would install it for her, apparently for free.
Here, the jury’s verdict establishes that the jury credited the landlord’s
testimony over Topkok’s testimony. We will not second-guess such credibility decisions
on appeal. Accordingly, we reject Foy’s contention that there was insufficient evidence
to support his conviction for third-degree criminal mischief.
3. The first-degree assault conviction
At trial, the jury found Foy guilty of first-degree assault (for recklessly
causing serious physical injury with a dangerous instrument) and third-degree assault
(for recklessly placing Topkok in fear of imminent serious physical injury with a
dangerous instrument) based on the allegations that he choked and hit Topkok.17 These
guilty verdicts merged at sentencing into a single conviction for first-degree assault. On
appeal, Foy challenges the sufficiency of the evidence to support the first-degree assault
conviction. For the reasons explained here, we conclude that the evidence was
insufficient to support the first-degree assault conviction but sufficient to support a
conviction for the lesser included offense of third-degree assault (for recklessly causing
physical injury with a dangerous instrument).18
To establish that Foy was guilty of first-degree assault, the State was
required to prove beyond a reasonable doubt that Foy “recklessly cause[d] serious
physical injury to [Topkok] by means of a dangerous instrument.”19 In other words, the
17
AS 11.41.200(a)(1) and AS 11.41.220(a)(1)(A), respectively.
18
AS 11.41.220(a)(1)(B).
19
AS 11.41.200(a)(1).
– 10 – 2725
State needed to prove beyond a reasonable doubt that Foy used “a dangerous instrument”
and that he caused “serious physical injury.”
In 2005, the Alaska legislature added a new prong to the definition of
“dangerous instrument.” Prior to 2005, “dangerous instrument” was defined as “any
deadly weapon or anything that, under the circumstances in which it is used, attempted
to be used, or threatened to be used, is capable of causing death or serious physical
injury.”20 However, prosecutors often had a difficult time proving that a defendant used
their hands as dangerous instruments in strangulation cases unless they had an expert
who could directly establish that the strangulation caused a substantial risk of death.21
In response, the legislature amended the definition of dangerous instrument
to include a second definition of “dangerous instrument” targeted at strangulation cases.
The second definition defined “dangerous instrument” as including “hands or other
objects when used to impede normal breathing or circulation of blood by applying
pressure on the throat or neck or obstructing the nose or mouth.”22 The legislative intent
behind this amendment was to ensure that strangulation cases could be prosecuted as
felonies.23
20
Former AS 11.81.900(b)(15) (pre-2005 version).
21
Minutes of House Judiciary Comm., House Bill 219, testimony of Tara Henry, R.N.,
Sexual Assault Nurse Examiner, and Assistant Attorney General Anne Carpeneti, 8:53­
9:11 a.m. (Mar. 23, 2005).
22
SLA 2005, ch. 20, § 1; former AS 11.81.900(b)(15)(B) (2005). The second definition
in the statute was amended again in 2019 to the current version: “‘dangerous instrument’
means . . . hands, other body parts, or other objects when used to impede normal breathing
or circulation of blood by applying pressure on the throat or neck or obstructing the nose or
mouth.” SLA 2019, ch. 11, § 3; AS 11.81.900(b)(15)(B).
23
See Minutes of House Judiciary Comm., House Bill 219, testimony of Representative
(continued...)
– 11 – 2725
On appeal, Foy does not dispute that there was sufficient evidence that he
used his hands in a manner that rendered them a “dangerous instrument” — i.e., that he
used his hands to “impede normal breathing . . . by applying pressure on the throat or
neck.”24 Instead, Foy disputes only whether the evidence was sufficient to prove that he
actually caused Topkok “serious physical injury” by means of that dangerous instrument.
“Serious physical injury” is defined as:
(A) physical injury caused by an act performed under
circumstances that create a substantial risk of death; or
(B) 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.[25]
Here, the State relied solely on the first definition, asserting that Foy’s conduct created
“a substantial risk of death.” To prove “a substantial risk of death,” the State need not
prove that death was the probable result of the defendant’s actions; but the State does
need to prove that the risk of death was both real (and not merely hypothetical) and that
the risk was “substantial.”26
23
(...continued)
Mike Hawker, 8:42:28 a.m. (Mar. 23, 2005) (“Currently it is very difficult to establish the
‘serious injury’ criteria in situations involving strangulation . . . so as to be able to prosecute
such situations as a felony. There is not always physical evidence that strangulation has
occurred, and HB 219 proposes to assist the legal community in such cases, which currently
are being prosecuted as misdemeanors.”).
24
AS 11.81.900(b)(15)(B).
25
AS 11.81.900(b)(59).
26
See Hutchings v. State, 53 P.3d 1132, 1137-38 (Alaska App. 2002) (explaining that
the existence of a “substantial risk of serious physical injury” depends on the “particular
circumstances” of the case and not hypothetical cases); Konrad v. State, 763 P.2d 1369, 1373
(continued...)
– 12 – 2725
As previously noted, when we consider a claim of insufficiency on appeal,
we view all the evidence presented at trial and all reasonable inferences to be drawn from
that evidence in the light most favorable to the jury’s verdict.27 We then determine
whether a fair-minded fact finder, viewing the evidence in this manner, could find the
defendant guilty beyond a reasonable doubt.28
At trial, Topkok claimed that nothing physical happened between her and
Foy. But she was impeached by her prior inconsistent statements to the troopers and her
excited utterance to her neighbor that Foy “choked” her. These prior statements
therefore form the primary evidentiary basis for the jury’s verdict.
The jury also heard from the trooper who initially interviewed Topkok and
who testified that he had received “specialized training in strangulation.” The trooper
acknowledged that Topkok’s only visible injury was some light redness on her neck that
26
(...continued)
(Alaska App. 1988) (emphasizing that, in determining whether a dangerous instrument is
capable of causing death or serious physical injury, “[i]t is the actual use of the instrument
in each case that must be considered, not abstract possibilities for use of the instrument in
hypothetical cases”); Brown v. State, 2008 WL 4531666, at *3 (Alaska App. Oct. 8, 2008)
(unpublished) (noting that the jury instructions correctly stated that “substantial risk of death”
meant that “[t]he ultimate injuries need not have made death probable, but the manner in
which the injuries were inflicted had to present an actual, substantial risk of death”); Redman
v. State, 1997 WL 184774, at *4 (Alaska App. Apr. 16, 1997) (unpublished) (rejecting
appellant’s assertion that “substantial risk of death” meant that death had to have been
“probable”); Willett v. State, 836 P.2d 955, 959-960 (Alaska App. 1992) (holding that the
State did not prove a “substantial risk of death” because it presented no evidence that
victim’s injuries were “actually life-threatening”); cf. State v. Mayo, 511 P.2d 456, 458
(Or. App. 1973) (holding that a substantial risk of death is not established by showing only
that there is a possibility of risk of death).
27
Iyapana v. State, 284 P.3d 841, 848-49 (Alaska App. 2012) (citing Morrell v. State,
216 P.3d 574, 576 (Alaska App. 2009)).
28
Id.– 13 – 2725
was difficult to see in a photograph. But he testified that Topkok’s lack of injuries was
still “consistent” with strangulation because, according to his training, only fifteen
percent of strangulation cases result in visible injuries. The trooper also acknowledged
that Topkok had referred to Foy’s conduct as putting her in a “chokehold” rather than
“strangulation.” The trooper stated that “strangulation” and “choking” are “different
terms,” although not always used correctly.
The trooper testified that strangulation was dangerous because it only took
“ten to fifteen seconds” of occlusion of the carotid or jugular vein to cause a blackout,
dizziness, or loss of consciousness. The trooper further testified that “[o]nce loss of
consciousness happens . . . it’s anybody’s guess whether somebody will wake up from
that.”
But Topkok never claimed that Foy put sustained pressure on her neck.
Instead, she told the trooper that Foy put his arm around her neck and was intermittently
“squeezing and . . . letting go and then squeezing again” for “[p]robably over a minute.”
Topkok also never claimed that she suffered a blackout, dizziness, or loss of
consciousness from Foy’s actions. In her recorded statement, Topkok said that she did
not remember if she was able to breathe because it all “happened too fast.” At trial, the
trooper testified that Topkok affirmatively said that she was still able to breathe. The
trooper also testified that “[it] did get to the point where she felt like she was going to
black out, but didn’t.”29 Topkok did not report any other indicia of strangulation, such
as vomiting, hyperventilation, loss of bladder or bowel control, or petechiae.30
29
This statement does not appear in the recorded statements played to the jury.
30
See Minutes of House Judiciary Comm., House Bill 219, testimony of Tara Henry,
R.N., Sexual Assault Nurse Examiner, 8:53:53 a.m. (Mar. 23, 2005) (discussing signs of life-
threatening strangulation); Carter v. State, 235 P.3d 221, 226 (Alaska App. 2010) (discussing
(continued...)
– 14 – 2725
To convict Foy of first-degree assault (a class A felony), the State was
required to prove, beyond a reasonable doubt, that Foy caused serious physical injury by
means of a dangerous instrument. Here, the evidence established that Foy used his arm
as a dangerous instrument to temporarily impede Topkok’s airflow on an intermittent
basis. The evidence also established that Foy caused physical injury to Topkok and that
his intent was likely to do so, or at least to frighten Topkok. But the evidence did not
establish that Foy’s actual conduct was so dangerous as to create a substantial risk of
death, even when viewed in the light most favorable to upholding the jury’s verdict. To
rule otherwise would be to collapse the difference between “dangerous instrument” and
“serious physical injury” and to say that any time a person impedes another person’s
breathing or blood circulation (however momentarily), the person has automatically
created a substantial risk of death sufficient to establish proof of “serious physical
injury,” beyond a reasonable doubt.
Accordingly, we conclude that the evidence at trial, even when viewed in
the light most favorable to upholding the jury’s verdict, was insufficient to support a
conviction for first-degree assault.
We note that, in addition to being instructed on first-degree assault, the jury
was also instructed on the lesser included offenses of second-degree assault (recklessly
causing serious physical injury) and third-degree assault (recklessly causing physical
injury by means of a dangerous instrument).31 Because the evidence at trial was
insufficient to establish that Topkok suffered “serious physical injury,” there is
insufficient evidence to enter a conviction for the lesser included offense of second­
30
(...continued)
expert testimony regarding relationship between petechiae and strangulation).
31
AS 11.41.210(a)(2) and AS 11.41.220(a)(1)(B), respectively.
– 15 – 2725
degree assault in this case.32 However, the evidence was clearly sufficient to support a
conviction for the lesser included offense of third-degree assault. We therefore reverse
the first-degree assault conviction and direct the superior court to enter a conviction for
the lesser included offense of third-degree assault.33
4. The third-degree assault conviction against Miller
Lastly, Foy argues that there was insufficient evidence presented at trial to
support his conviction for third-degree assault against David Miller.
To establish that Foy was guilty of third-degree assault against Miller, the
State was required to prove beyond a reasonable doubt that Foy “recklessly place[d]
[Miller] in fear of imminent serious physical injury by means of a dangerous
instrument.”34 On appeal, Foy contends that there was insufficient evidence to support
his conviction for third-degree assault against Miller because, according to Foy, he acted
in self-defense when he drew his knife on Miller.
32
We note that strangulation cases are often charged as second-degree assault under
AS 11.41.210(a)(1) (“with intent to cause physical injury to another person, that person
causes physical injury to another person by means of a dangerous instrument”). See, e.g.,
Wassillie v. State, 2022 WL 610626, at *1 (Alaska App. Mar. 2, 2022) (unpublished); James
v. State, 2015 WL 5309209, at *1 (Alaska App. Sept. 9, 2015) (unpublished); Tolen v. State,
2012 WL 104477, at *1 (Alaska App. Jan. 11, 2012) (unpublished); Hebert v. State, 2010
WL 2432047 (Alaska App. June 16, 2010) (unpublished). However, Foy was not charged
under this subsection.
33
This conviction, under AS 11.41.220(a)(1)(B), should remain merged with the jury’s
guilty verdict on the separate third-degree assault charge against Topkok, for which there was
also sufficient evidence. See AS 11.41.220(a)(1)(A) (“recklessly places another person in
fear of imminent serious physical injury by means of a dangerous instrument”).
34
AS 11.41.220(a)(1)(A).
– 16 – 2725
With certain enumerated exceptions, a person in Alaska may use deadly
force against what they reasonably believe is the unlawful use of force by another person
to the extent necessary to protect against death or serious physical injury.35 The initial
aggressor may not use the justification of self-defense.36
In this case, Foy received a self-defense instruction at trial, and he does not
challenge the adequacy of that instruction on appeal. Instead, he argues that any
reasonable juror would have concluded that he acted in self-defense.
But we have reviewed Miller’s testimony, and we conclude that, viewing
this testimony in the light most favorable to the verdict, a reasonable juror could have
concluded that the State had disproved Foy’s claim of self-defense. While there was
enough evidence to justify a self-defense instruction, the jury could have concluded
either that Foy was the initial aggressor or that he used deadly force to respond to the use
of nondeadly force, both of which would defeat a claim of self-defense.37 Accordingly,
we reject Foy’s insufficiency claim and affirm his conviction for third-degree assault
against Miller.
Foy’s vindictive prosecution claim
Foy also raises a vindictive prosecution claim. Foy bases this claim on the
fact that the prosecutor initially prepared an indictment for the first grand jury hearing
charging only third-degree assault for the conduct involving Topkok (which was later
withdrawn when Topkok did not appear for the grand jury). But after Foy filed a bar
complaint against the prosecutor and asserted his right to a speedy trial, the prosecutor
35
AS 11.81.330(a); AS 11.81.335(a).
36
AS 11.81.330(a)(3).
37
AS 11.81.330(a)(3); AS 11.81.335(a).
– 17 – 2725
later charged Foy with first-degree assault, in addition to third-degree assault, for the
same conduct at the second grand jury hearing.
The State argues that Foy waived this claim by failing to bring a timely
motion in the trial court proceedings. The State also argues that Foy failed to establish
a prima facie case of prosecutorial vindictiveness.
The State is correct that Foy did not timely raise this issue in the superior
court. Foy raised this claim for the first time in a motion to dismiss the indictment that
was not filed until after Foy was convicted at trial. Alaska Criminal Rule 12(b) requires
a claim alleging a defect in the institution of the proceedings to be raised prior to trial.38
There are possible exceptions to this rule.39 But Foy does not argue that any of them
apply here.
In any event, we conclude that we need not reach the question of whether
Foy has waived his prosecutorial vindictiveness claim by bringing an untimely motion
because our decision to reverse Foy’s first-degree assault conviction has rendered this
claim moot.
38
See Alaska R. Crim. P. 12(b)(1); see also Fed. R. Crim. P. 12(b)(3)(A)(iv) (identifying
selective or vindictive prosecution as a defect in instituting the prosecution and requiring
defenses and objections based on such defects to be raised before trial).
39
See Alaska R. Crim. P. 12(e) (“Failure by the defendant to raise defenses or objections
or to make requests which must be made prior to trial, at the time set by the court pursuant
to section (c), or prior to any extension thereof made by the court, shall constitute waiver
thereof, but the court for cause shown may grant relief from the waiver.”); see also Iyapana
v. State, 284 P.3d 841, 846-47 (Alaska App. 2012) (holding that grand jury defects cannot
be raised for the first time on appeal but noting that “policy considerations may require us
to review a grand jury violation that is singularly egregious” and that “a defendant may be
able to establish manifest injustice in a case where the grand jury violation is of such a nature
that the state would be unable to secure a new indictment in a renewed jury proceeding”).
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Conclusion
For the reasons explained in this opinion, we REVERSE Foy’s conviction
for first-degree assault in Count IV and remand this case to the superior court with
instructions to enter a judgment of conviction for the lesser included offense of third-
degree assault and to resentence Foy accordingly. In all other respects, the judgment of
the superior court is AFFIRMED.
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