from the Superior Court, Third Judicial District No.
3PA-13-1322 CR, Palmer, Kari Kristiansen, Judge.
N. Page III (opening brief), and Douglas Moody (reply brief),
Assistant Public Defenders, and Quinlan Steiner, Public
Defender, Anchorage, for the Appellant.
A. Ringsmuth, Assistant Attorney General, Office of Criminal
Appeals, Anchorage, and Craig W. Richards, Attorney General,
Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock,
Superior Court Judge. [*]
Earl Saunders was charged with third-degree assault under AS
11.41.220(a)(2) for making repeated threats that he would
inflict death or serious bodily injury on his mother, Valerie
Saunders, and his uncle, Ron Combs (Valerie's brother).
Saunders made some of these threats to his mother in person,
while he was pounding on the walls and windows of her house.
Saunders made the other threats in voice messages that he
left on his mother's telephone answering machine.
appeal, Saunders challenges the instruction that the trial
judge gave to the jury on the question of whether
Saunders's threatening statements against his uncle, Ron
Combs, should be considered "repeated" threats or,
instead, one continuing threat. This issue arose because
Saunders's threatening statements against his uncle were
all contained in a single message that Saunders left on his
mother's answering machine. In this message, Saunders
stated several times in quick succession, over the course of
approximately 45 seconds, that he would take Combs's
reasons explained in this opinion, we agree with Saunders
that the court's instruction to the jury incorrectly
stated the law pertaining to this issue, but we conclude that
this error was harmless beyond a reasonable doubt.
also argues that there was a fatal variance between the
theory of third-degree assault that the State presented to
the grand jury and the evidence that the State presented at
Saunders's trial. Saunders interprets the indictment as
charging only threats against his mother, Valerie, and he
argues that the evidence at trial varied from the indictment
because, at trial, the State also presented evidence of
Saunders's threats to his uncle, Ron Combs.
argument is based on a misreading of the indictment and a
misunderstanding of the elements of third-degree assault
under AS 11.41.220(a)(2).
accordingly uphold Saunders's conviction.
mother Valerie allowed Saunders, her adult son, to live in
her home on condition that he not consume alcohol or drugs.
When Saunders broke this rule and behaved abusively toward
Valerie, she told him that he could no longer live in her
house, and she bought him a tent and a sleeping bag so that
he could reside for the summer in her backyard. One night in
May, Saunders, aggrieved by his recent eviction, pounded on
the walls and windows of the house - and, according to
Valerie, he threatened her with serious harm.
following day, Valerie obtained a domestic violence
restraining order precluding Saunders from contacting her.
That evening, Saunders left five messages on Valerie's
telephone answering machine. Two of these messages contained
first of the threatening messages - a message that lasted
about 1 minute and 20 seconds in its entirety - Saunders
threatened the life of his uncle, Ron Combs. Here is the
pertinent portion of this message - a portion that lasted
only 45 seconds:
If I get served with fucking paperwork that says that I
can't be allowed on my mom's property, I will take
Ron's life. I swear that before my children and my holy
God. I will take your life. If I get served with fucking
paperwork because I'm not even allowed in the greenhouse,
I will take his life, so - [if] I get served some paperwork
like that, I'm going to take Ron's life and your
little boyfriend's going to be gone, so I'll kill
him. I swear that to God.
two hours later, Saunders left a second threatening message
on Valerie's answering machine. In this message, Saunders
said, "You be lucky I don't show up at your house
and show you who the boss is, bitch."
on the threats that Saunders uttered to Valerie as he pounded
on the walls and windows of Valerie's home, plus the two
threatening messages that Saunders left on Valerie's
answering machine, the State charged Saunders with
third-degree assault under AS 11.41.220(a)(2) - for
"mak[ing] repeated threats to cause death or serious
physical injury to another person" while acting with the
intent of placing ...