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
COATS, Chief Judge.
Stephen J. Borozny was convicted by a jury of assault in the first degree for recklessly causing serious physical injury to Francis Katongan by stabbing her with a knife.1 Borozny argues that the evidence presented at trial was insufficient to show that he caused serious physical injury. He also contends that the State's argument to the jury about the evidence concerning serious physical injury was improper. We affirm.
Factual and procedural background
On the evening of August 18, 2008, a cabdriver drove three people from the Mush Inn to the Spirits of Alaska liquor store near downtown Anchorage. The party included Borozny and Katongan. When they arrived at the liquor store, Borozny gave Katongan $50 and asked her to purchase some alcohol. She returned with an eighteen-pack of Budweiser, which she gave to Borozny in the front seat of the cab.
Katongan gave Borozny only $12 in change from the purchase. This displeased Borozny. He was "shaking and angry."
Borozny left the front seat of the cab and walked around to the back seat, where Katongan was sitting. Words were exchanged. He then stabbed Katongan in the abdomen with a knife, picked up the beer, and ran off. Katongan remained near the vehicle, holding her stomach on her lower left side.
Katongan called the police. The driver called 911. The driver spent some time following Borozny as he traveled through the nearby Fairview neighborhood. Borozny was soon arrested nearby. The knife was never found. Katongan was transported by ambulance to Alaska Native Medical Center.
The State charged Borozny with assault in the first degree for recklessly causing serious physical injury to Katongan by stabbing her with a knife. "[S]erious physical injury" is defined as "physical injury caused by an act performed under circumstances that create a substantial risk of death ...."2
In a jury trial conducted by Superior Court Judge Michael Spaan, Borozny did not dispute that he stabbed Katongan. He defended on the ground that the injuries that he caused did not constitute serious physical injury. The jury rejected his argument and found Borozny guilty. Borozny raises the same argument on appeal.
Why we conclude that the jury could find that Borozny caused serious physical injury
The critical evidence on the issue of whether Katongan suffered serious physical injury was presented through the testimony of Dr. Kevin Stange, an experienced trauma surgeon at Alaska Native Medical Center who had treated Katongan. Dr. Stange testified that the knife wound was two centimeters wide and roughly ten centimeters deep. He said the knife entered Katongan's left abdominal cavity somewhere between her ninth and tenth ribs. Dr. Stange stated that vital organs in the area of the wound included the stomach, colon, and spleen. Injury to any of these, he testified, had the potential to cause serious harm or death. Fortunately, in Katongan's case, the knife went up toward her heart and lungs rather than down toward her colon and intestines. Although the knife punctured her chest wall, it did not puncture her lung.
Dr. Stange testified that Katongan was fortunate that the knife went in at an angle that missed her vital organs. Although the wound caused Katongan to lose one-third of her blood volume, this was not sufficient to kill her. Dr. Stange acknowledged that a person who had an injury such as Katongan's had "an appreciable and significant risk of death, absent medical intervention." He also noted that the same wound received by someone else, who was older or was not in as good shape as Katongan, "could easily kill them by heart attack, stroke, etc."
Dr. Stange testified that, although the kind of wound that Katongan received could be dangerous and life-threatening, because she was fortunate and the knife did not strike any vital organs, massive medical intervention turned out to be unnecessary. Ultimately, after taking x-rays and CT scans, Katongan was treated by simply monitoring and observation. Katongan's body was able to heal, and she ultimately made a good recovery.
Borozny argues that because Katongan was able to recover without any substantial medical intervention, he did not cause serious physical injury. But we rejected this view in James v. State.3 In James, we stated: "It makes little sense to focus exclusively on the victim's personal ability to tolerate or recover from an injury, without reference to the seriousness of the risk the injury poses at the time of its infliction."4 Whether a defendant commits serious physical injury under AS 11.81.900(56)(A) is determined by whether the defendant caused physical injury "by an act performed under circumstances that create a substantial risk of death." The question is not the nature of the injury, although that could be relevant to demonstrate the circumstances under which the injury was inflicted, but the circumstances themselves. In the present case, according to Dr. Stange's medical testimony, when Katongan was brought to the hospital after being stabbed, she faced "an appreciable and significant risk of death." It was only after significant observation that Dr. Stange was able to discover that Katongan would survive. But the fact that Katongan (and by extension, Borozny) was lucky does not change the fact that the wound that he inflicted created a substantial risk of death. We conclude that there was sufficient evidence for the jury to find that Borozny caused serious physical injury.
The State's argument to the jury was not improper
Borozny argues that Judge Spaan erred in allowing the State to argue to the jury about potential injuries that Katongan could have but did not receive from the stab wound. Judge Spaan resolved this issue in the same manner we have previously discussed. The question of whether the defendant caused serious physical injury was whether Borozny caused physical injury "by an act performed under circumstances that create a substantial risk of death." Therefore, the jury could properly consider the risk that Borozny created when he stabbed Katongan in the abdomen. We accordingly conclude that Judge Spaan did not err in allowing the State to make this argument.
Conclusion
The judgment of the superior court is AFFIRMED.
