No. 5760, Court of Appeals No. A-10705.

Court of Appeals of Alaska.

October 26, 2011.



Nancy Driscoll Stroup, Law Office of Nancy Driscoll Stroup, Palmer, for the Appellant.

Eric A. Ringsmuth, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, Attorney General, Juneau, for the Appellee.

Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.



COATS, Chief Judge.

In a jury trial conducted by Superior Court Judge Michael Spaan, Joseph Delgreco was convicted of assault in the first degree for stabbing Rocky Ferrenburg with a knife and causing him serious physical injury.1 Delgreco appeals, arguing that there was insufficient evidence for the jury to conclude that he did not act in self-defense. But we conclude that, in the light most favorable to upholding the jury’s verdict, the jury could reject Delgreco’s self-defense claim. Delgreco also argues that, at sentencing, Judge Spaan erred in rejecting Delgreco’s proposed mitigating factors. We affirm Judge Spaan’s decision.

Why we conclude there was sufficient evidence to support Delgreco’s conviction

When we review a conviction to determine whether the evidence was sufficient, we view the evidence in the light most favorable to upholding the verdict.2 We are to uphold the conviction if we conclude that a reasonable jury could determine beyond a reasonable doubt that the defendant was guilty.3

The events giving rise to these convictions occurred on the evening of September 11, 2007, at an Anchorage park. It is undisputed that Delgreco and Ferrenburg got into a fight and that Delgreco stabbed Ferrenburg in the hand and a few times superficially in the abdomen.

A group of young friends, aged between thirteen and nineteen years old, were socializing in the park and drinking alcohol. Danielle Californsky was there with her boyfriend at the time, Delgreco. Another friend, Sarah, spoke to Ferrenburg on the phone and told him to join them. Ferrenburg arrived, left to give someone a ride home, and returned.

When Ferrenburg returned, Californsky, who was very upset, confronted him. She began hitting him and screaming at him. Several girls pulled Californsky away. After this point, the testimony diverged.

According to Ferrenburg, he had a cigar in his left hand and a beer bottle in his right. He testified that, after Californsky became upset, he decided to leave. But Delgreco got between Ferrenburg and his car and told Ferrenburg that he wasn’t leaving. Ferrenburg shoved Delgreco, and Delgreco pulled his hand out of his pocket. Ferrenburg testified he didn’t realize it at the time, but Delgreco had a knife in his hand. So when Ferrenburg tried to grab Delgreco’s arm as it was swinging at him, Ferrenburg was stabbed in his left hand. He pulled Delgreco’s jacket over his head and tried to hit him. Ferrenburg then slipped and fell to the ground. At this point, he realized that his left hand was not working properly and that he had been stabbed. Delgreco continued to kick Ferrenburg once he was on the ground. Californsky and Delgreco then left the park.

Delgreco testified to a different version of events. According to Delgreco, Ferrenburg started the confrontation by head butting him. Ferrenburg then began swinging at him with both hands. Ferrenburg had a beer bottle in one hand. When Delgreco swung back to defend himself, Ferrenburg grabbed his arm, and Delgreco’s hooded sweatshirt came up over his head. Delgreco said he was unable to hit back at that point and that Ferrenburg was hitting him in the head with the beer bottle. Delgreco testified he was afraid that if he took “many more hits to the head, [his head was] going to crack open … .” At this point, the only thing he could think of to defend himself was to take out his knife. When Ferrenburg continued to come at him, Delgreco took a small folding knife out of his pocket and attempted to stab Ferrenburg in the side to get Ferrenburg to stop hitting him. The knife collapsed, folding over on Delgreco’s little finger. He said that Ferrenburg did not seem to notice that Delgreco had a knife until Delgreco hit Ferrenburg in his hand. Ferrenburg fell to the ground, and Delgreco ran away.

Ferrenburg had stab wounds to his hand, chest, ribs, back, and shoulder. The cut to Ferrenburg’s hand severed his ulnar nerve and artery.

Delgreco argues that there was insufficient evidence for the jury to conclude beyond a reasonable doubt that he did not act in self-defense. Self-defense is a defense which, once raised, the State must disprove beyond a reasonable doubt.4 A person may use “nondeadly force upon another when and to the extent the person reasonably believes it is necessary for self-defense against what the person reasonably believes to be the use of unlawful force by the other person.”5 But a person cannot claim this defense if he was the initial aggressor, if he provoked the conduct with intent to cause physical injury, or if the force was “the product of mutual combat not authorized by law.”6

A person may use deadly force on another to the extent he “reasonably believes [it] is necessary for self-defense against” death or serious physical injury.7 But a person may not use deadly force if the person can avoid the necessity of using deadly force by leaving the area.8

Considering the evidence presented at trial in the light most favorable to upholding the verdict, the jury could find beyond a reasonable doubt that Delgreco did not act in self-defense. Delgreco was at the park armed with a pocket knife. The jury could find that Ferrenburg was attempting to leave when Delgreco confronted him and told him that he was not leaving. When Ferrenburg shoved Delgreco, Delgreco pulled the knife out of his pocket and stabbed Ferrenburg in the hand. Based upon these facts, the jury could find that Delgreco was the initial aggressor — Ferrenburg was attempting to leave, and Delgreco initiated the confrontation. Or, the jury could have concluded that the confrontation started when Ferrenburg shoved Delgreco, but that Delgreco’s response was out of proportion when he responded to nondeadly force with deadly force. We therefore conclude that the State presented sufficient evidence for the jury to reasonably conclude beyond a reasonable doubt that Delgreco did not act in self-defense.

Why we conclude that Judge Spaan did not err in rejecting Delgreco’s proposed mitigating factors

Although Delgreco was convicted of assault in the first, second, and third degree, Judge Spaan merged the three assault convictions and sentenced Delgreco based upon the conviction for assault in the first degree. As a first felony offender convicted of assault in the first degree, Delgreco faced a presumptive term of seven to eleven years.9 Delgreco proposed four mitigating factors: first, that he “committed the offense under some degree of duress, coercion, threat, or compulsion insufficient to constitute a complete defense, but that significantly affected [his] conduct”10; second, that he “acted with serious provocation from the victim”11; third, that “the victim provoked the crime to a significant degree”12; and fourth, that “the conduct constituting the offense was among the least serious conduct included in the definition of the offense.”13 Judge Spaan rejected the proposed mitigating factors. Delgreco argues that Judge Spaan erred.

The burden is on the defendant to prove the existence of a mitigating factor by clear and convincing evidence.14 When we review a sentencing judge’s factual findings, we view the evidence in the light most favorable to upholding the judge’s ruling and overturn the sentencing judge’s factual findings only when we conclude that they are clearly erroneous.15

In rejecting the mitigating factors, Judge Spaan found credible the witnesses who testified that Delgreco swung first. Judge Spaan found that it was unclear exactly when Delgreco used the knife, but he pointed out that Ferrenburg testified that he was stabbed “almost immediately.” He found that Delgreco brought the knife, that he “attempted to defend the honor of his girlfriend and, unfortunately, used a knife to do so.” He found that Ferrenburg’s injuries were permanent, serious, and “could have been a lot worse when a deadly weapon was brought to the party and used at the party.”

By his findings, Judge Spaan rejected any factual support for Delgreco’s proposed mitigating factors. And Judge Spaan’s factual findings are not clearly erroneous. We independently review Judge Spaan’s legal conclusion that Delgreco’s conduct did not constitute a least serious offense.16 Based upon Judge Spaan’s factual findings, we conclude that Delgreco did not prove by clear and convincing evidence that his offense was a least serious offense. (As a legal matter, AS 12.55.155(d)(7), the “significant provocation” mitigator, does not apply to defendants who are being sentenced for felony assault because (d)(6) applies to felony assault instead.17)


The judgment of the superior court is AFFIRMED.



1. AS 11.41.200(a)(1).

2. Dailey v. State, 65 P.3d 891, 898 (Alaska App. 2003) (citing Simpson v. State, 877 P.2d 1319, 1320 (Alaska App. 1994)).

3. Id. (citing Dorman v. State, 622 P.2d 448, 453 (Alaska 1981)); Pinkerton v. State, 784 P.2d 671, 677 (Alaska App. 1989).

4. AS 11.81.300; AS 11.81.900(b)(19)(B); Morrell v. State, 216 P.3d 574, 577-78 (Alaska App. 2009).

5. AS 11.81.330(a).

6. AS 11.81.330(a)(1)-(3).

7. AS 11.81.335(a)(1)-(2).

8. AS 11.81.335(b).

9. AS 11.41.200(a)(1), (b); AS 12.55.125(c)(2)(A).

10. AS 12.55.155(d)(3).

11. AS 12.55.155(d)(6).

12. AS 12.55.155(d)(7).

13. AS 12.55.155(d)(9).

14. AS 12.55.155(f)(1).

15. Michael v. State, 115 P.3d 517, 519 (Alaska 2005); Harmon v. State, 11 P.3d 393, 395 (Alaska App. 2000).

16. Michael, 115 P.3d at 519.

17. Smith v. State, 229 P.3d 221, 226 (Alaska App. 2010); Harris v. State, Memorandum Opinion & Judgment No. 5585 (Alaska App., Apr. 14, 2010), 2010 WL 1511719 at *5-6 (Mannheimer, J., concurring).

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