Memorandum decisions of this Court do not create legal precedent.
Judge ALLARD.
Joshua Jeremiah Ziegler was convicted of first-degree robbery and eight other felony offenses in connection with a shooting in Anchorage and the subsequent discovery of a drug operation at the residence where Ziegler was staying.
This Court recently affirmed the convictions of Ziegler's co-defendant, Jason F. Mack.
For the reasons explained here, we conclude that the majority of Ziegler's claims have no merit. However, we agree with Ziegler that his two convictions for second-degree weapons misconduct must merge because they involved the same underlying drug offense, and that one of his convictions for third-degree assault must merge with his conviction for attempted first-degree assault because they involved the same underlying act of force.
Accordingly, we remand the case to the superior court for further proceedings consistent with this decision.
On January 18, 2010, Joshua Ziegler accosted Donovan Soares and Soares's friend, Sandor Olah, who were sitting in a truck in the Taco Bell parking lot at the intersection of Old Seward Highway and 88th Avenue. Ziegler punched Soares in the face and accused him of stealing his stereo speakers. After Soares denied the accusation, Ziegler told his girlfriend to call two other people (including Jason Mack, Ziegler's co-defendant)
Soon after, Mack and another friend of Ziegler's arrived with firearms. Mack confronted Soares and Olah about the missing speakers and physically assaulted Olah.
Soares and Olah subsequently drove out of the Taco Bell parking lot and sped toward the New Seward Highway. Mack and Ziegler chased after them in separate cars. During the chase, Ziegler fired four shots at Soares, two of which lodged in Soares's truck. After shooting at Soares, Ziegler drove away.
Three days later, the police arrested Ziegler at Mack's apartment, where Ziegler and Mack were hiding out. After obtaining a search warrant, the police searched the apartment, finding weapons and drugs. Specifically, the police found a Glock pistol on the refrigerator, a pistol-grip shotgun in a closet in the master bedroom, approximately 37 grams of marijuana in the room where Ziegler was staying, an additional 150 grams of marijuana in a safe in the master bedroom where Mack and his girlfriend slept, and $3,000 in cash.
Following a jury trial in which Ziegler and Mack were tried together, Ziegler was convicted of nine felony counts: (1) first-degree robbery;
Superior Court Judge Michael L. Wolverton ultimately sentenced Ziegler to a composite sentence of 17½ years, with 8 years suspended (9½ years to serve).
This appeal followed.
Before trial, Ziegler moved to dismiss his indictment based on alleged prosecutorial misconduct at grand jury. Ziegler argued that the prosecutor committed misconduct by (1) failing to instruct the grand jury on the law until after he presented the facts, (2) improperly involving himself in the grand jury's deliberative process, and (3) eliciting improper propensity evidence about Ziegler's prior arrest involving a pistol-grip shotgun.
Ziegler renews these claims on appeal. He also argues, for the first time, that the prosecutor committed misconduct by introducing misleading testimony about the location of the drugs in Mack's apartment.
In Mack's case, we reviewed the same grand jury proceedings and, although we agreed with Mack that the prosecutor's decision to present evidence before explaining the proposed charges was irregular, we concluded that Mack had not shown that this irregular procedure interfered with the grand jurors' ability to question the witnesses, evaluate their testimony, or otherwise independently evaluate the charges.
We reach the same conclusion here. We agree with Ziegler that, as a general matter, a prosecutor should explain the proposed charges to the grand jury before presenting evidence so as to avoid confusing the grand jury or impeding its consideration of the case. We note that we have previously cautioned against the procedure followed in this case.
We also reject Ziegler's claim that the prosecutor improperly inserted himself into the grand jury's deliberative process "under the guise of `advising' the jurors." The record indicates that the prosecutor appropriately limited his remarks to legal issues, and when a grand juror's question related to an issue of fact or credibility, the prosecutor either admonished the grand jury not to include him in its deliberations or offered to recall a witness.
Ziegler's claim that the prosecutor improperly introduced evidence of his prior arrest involving a pistol-grip shotgun is also without merit. The record shows that this evidence was introduced to demonstrate Ziegler's familiarity with this type of shotgun and that the grand jury was properly instructed on the limited relevance of the evidence. Moreover, even assuming that this evidence was improperly admitted, we conclude that Ziegler would not be entitled to dismissal of the indictment on this basis because the evidence was not the "decisive factor" in the grand jury's decision to indict.
Lastly, we agree with the State that Ziegler waived his claim that the prosecutor introduced misleading testimony about the location of the drugs in the apartment because he did not raise this claim below.
Before trial, Ziegler moved to suppress the drugs and guns found in Mack's apartment, which was searched pursuant to a search warrant following Ziegler's and Mack's arrest at the apartment. Ziegler argued that the search warrant, which authorized the police to search the apartment for any weapons Ziegler used during the shooting, was not supported by probable cause. The superior court denied this motion on the ground that Ziegler lacked standing to challenge the search of Mack's apartment.
On appeal, Ziegler argues that this ruling was error because the search warrant was directed at him and he had temporarily moved into the apartment.
In determining whether there is probable cause to issue a search warrant, a magistrate "need not determine whether the items to be searched for are in fact located at the premises to be searched, but only whether there is a reasonable ground to believe they are there."
Contrary to Ziegler's argument, probable cause to believe a defendant is keeping the instrumentalities of a crime in the residence where he is staying does not necessarily dissipate after three days. Here, the affidavit in support of the warrant indicated that Ziegler was a member of a violent gang and had fired shots at another driver during a high-speed chase. Three days later, the police received a tip that Ziegler knew there was a warrant for his arrest and was hiding out in an apartment. The police confirmed that vehicles matching the descriptions of the trucks involved in the chase were parked in front of the apartment, and Ziegler emerged from the apartment. These facts established probable cause to issue a warrant to search the apartment for the presence of the weapon Ziegler used in the crime.
Ziegler argues that the evidence presented at the grand jury and at trial was legally insufficient to indict and convict him of first-degree robbery.
When we review a challenge to the sufficiency of the evidence before a grand jury, we must draw every legitimate inference that may be drawn from the evidence in favor of the indictment.
When we assess a claim that evidence is insufficient to support a trial jury's verdict, we review the evidence, and the reasonable inferences to be drawn from the evidence, in the light most favorable to the jury's verdict.
A defendant commits first-degree robbery under AS 11.41.500(a)(1) if, while armed with a deadly weapon or representing that he or another participant in the robbery is so armed, the defendant takes or attempts to take property "from the immediate presence and control of another."
Ziegler acknowledges that the evidence presented at trial supports a jury finding that he threatened Soares and physically assaulted him when he initially approached him about the missing speakers. But Ziegler points out that there was undisputed evidence at trial that he discovered that Soares did not possess the missing speakers before his friends showed up with the guns. He argues that he cannot be convicted of first-degree robbery under these facts because by the time guns were involved — an essential element of first-degree robbery — Ziegler knew there were no speakers to take and therefore lacked the mens rea to commit robbery.
The flaw in Ziegler's claim of insufficient evidence is that the jury was instructed that it could convict Ziegler under an accomplice liability theory. As the supreme court has explained,
Here, the jury was told that a person is guilty as an accomplice if, "with intent to promote or facilitate the commission of the offense," the person aided or abetted another in planning or committing the offense. The jury was further instructed that "aid or abet" means "to help, assist, or facilitate the commission of a crime, promote the accomplishment thereof, help in advancing or bringing it about, or encourage, counsel, or incite as to its commission."
Viewed in the light most favorable to upholding the verdict, the evidence at trial established that after Ziegler accused Soares of stealing his speakers — but before he discovered that the speakers were not in Soares's immediate presence and control — Ziegler told his girlfriend to tell Mack and another friend to bring guns. Soon after, Mack and the friend arrived with the guns, and Mack confronted Soares and Olah about the speakers and physically assaulted Olah. As we explained in our decision in Mack's case, this evidence was sufficient for the jury to convict Mack of first-degree robbery as a principal.
Because the grand jury heard similar evidence and was also instructed on the legal principles of accomplice liability, we conclude that the grand jury's decision to indict Ziegler on first-degree robbery was likewise supported by sufficient evidence.
Ziegler also asserts that the evidence at trial was insufficient to support his convictions for first-degree weapons misconduct, third-degree assault, second-degree weapons misconduct, and fourth-degree misconduct involving a controlled substance. He also attacks the sufficiency of the evidence before the grand jury on these charges.
We conclude that the evidence at trial and at grand jury was sufficient to support Ziegler's indictment and convictions.
The evidence, viewed in the light most favorable to upholding the indictment and verdicts, also established that Ziegler possessed a Glock pistol and a pistol-grip shotgun in connection with his possession of more than one ounce of marijuana that he intended to sell. This was sufficient evidence to support his indictment and conviction on charges of second-degree weapons misconduct and fourth-degree misconduct involving a controlled substance.
Accordingly, we reject these claims of insufficient evidence.
Ziegler also argues that the superior court erred in rejecting his proposed statutory mitigator of "least serious conduct" with regard to the second-degree weapons misconduct charges.
As we have explained, Ziegler was convicted of two counts of second-degree weapons misconduct for possessing a firearm during the commission of a felony drug offense.
Ziegler argues that these two convictions should merge because they were based on the same underlying drug offense and involved the same conduct, intent, and societal interests.
Although the legislative history of the second-degree weapons misconduct statute does not speak directly to this issue, the history reflects a general intent to follow federal law on the subject.
Ziegler additionally argues that his convictions for first-degree weapons misconduct, attempted first-degree assault, and two counts of third-degree assault (against Soares and Olah, respectively) must merge with his first-degree robbery conviction. He relies on our decision in Moore v. State, where we held that when a robbery is also separately charged as a third-degree assault against the same victim and the defendant is convicted of both charges, the double jeopardy clause of the Alaska Constitution requires that the verdicts be merged into one conviction and sentence.
We conclude that Ziegler's third-degree assault against Olah does not merge with his robbery conviction because the robbery was directed at recovering property from Soares, not Olah. Ziegler's conviction of attempted first-degree assault also does not merge with the first-degree robbery conviction because attempted first-degree assault requires proof of intent to cause serious physical injury, which is not an element of first-degree robbery.
That leaves Ziegler's argument that his conviction for third-degree assault against Soares should merge with his conviction for first-degree robbery. We conclude that we do not need to resolve this issue because it is clear that Ziegler's third-degree assault on Soares was based on the same underlying conduct — firing a gun at Soares from a moving car — as the attempted first-degree assault conviction. When an attempted first-degree assault and a third-degree assault both involve the same victim and stem from the same criminal episode, the convictions must merge.
Accordingly, we remand this case to the superior court and direct the court to merge (1) the two second-degree weapons misconduct convictions (count VII and count VIII) and (2) the third-degree assault conviction against Soares (count V) and the attempted first-degree assault conviction (count IV), and to resentence Ziegler accordingly.
We AFFIRM the judgment of the superior court, with the exception that the superior court is directed to merge Ziegler's convictions as set out in this decision and to resentence Ziegler accordingly. We do not retain jurisdiction.
