August 7, 2009; withdrawn and opinion filed September 25, 2009
Appeal from the Superior Court, Third Judicial District, Kenai, John E. Suddock, Judge. Trial Court No. 3KN-06-898 CR.
The opinion of the court was delivered by: Bolger, Judge.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MANNHEIMER, Judge, concurring.
Christopher E. Cronce was convicted of assault in the second degree*fn1 and assault in the third degree*fn2 based on an incident when he attacked a man named Michael Wims. Superior Court Judge John E. Suddock imposed separate convictions and sentences for these two offenses. We conclude that these separate statutory violations must merge because, under the facts of this case, there was no difference in conduct or intent sufficient to warrant multiple punishments. We therefore vacate the separate conviction for third-degree assault.
Cronce and his brother Randall confronted Michael Wims as Wims walked out of the Casino Bar in Kenai. The men exchanged words and Cronce head-butted Wims in the face. Wims tried to escape by running across the parking lot and climbing a nearby fence, but the Cronce brothers dragged Wims back to the ground and started to beat him with their fists and kick him with their feet. The Cronce brothers continued to beat Wims as he lay helplessly on the ground until Kenai Police Officer James Johnson arrived in response to a 911 call.
Christopher and Randall Cronce were jointly charged with one count of second-degree assault and one count of third-degree assault.*fn3 At trial, Christopher Cronce testified that the initial altercation with Wims was mutual and that the Cronce brothers pursued Wims through the parking lot simply to talk about what happened. As they approached the fence, the argument continued and again escalated into a fight.
During closing arguments, the prosecutor explained to the jury that the State's theory of the case was based on both the initial assault against Wims in the parking lot and what occurred after the Cronce brothers chased him down - that is, even if the initial head-butting involved mutual combat, Cronce was still guilty because he chased Wims down and continued to beat him.
During deliberations, the jury sent a note to the judge asking if they should deliberate on the third-degree assault charge after they had reached a decision on the second-degree assault charge. In the process of discussing this note with the attorneys, the judge suggested that there might be a double jeopardy issue as to the merger of these counts. The judge then responded to the jury's question by instructing them to deliberate on both counts. The jury eventually reached a verdict of guilty on both counts.
At sentencing, the judge reconsidered his earlier opinion that Cronce's assault convictions should be merged. The judge concluded that the third-degree assault occurred when the Cronce brothers chased Wims through the parking lot, and the second-degree assault occurred when the brothers began to physically beat him. Based on this reasoning, the judge imposed separate convictions and sentences for the two charges: 3 years' imprisonment with 2 years suspended for second-degree assault, and 24 months' injury to Michael Wims by repeated assaults, even if each assault individually did not cause serious physical injury.
Count II of the indictment charged that "Randall S. Cronce and Christopher E. Cronce recklessly placed Michael Wims in fear of imminent serious physical injury by means of a dangerous instrument, to-wit: hands, arms and/or feet." imprisonment with 23 months suspended for third-degree assault, to be served consecutively.
In Whitton v. State,*fn4 the Alaska Supreme Court established a test to determine whether the violation of two different criminal statutes during a single criminal event should be treated as a single punishable offense ...