Felder v. State, 2021 Alas. App. LEXIS 69 (AK Ct. App. 2021)
Court of Appeals of Alaska
June 9, 2021, Decided
Court of Appeals No. A-12987, No. 6949
2021 Alas. App. LEXIS 69 | 2021 WL 2350838
TRAVIS CLINTON FELDER, Appellant, v. STATE OF ALASKA, Appellee.
Megan R. Webb, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee.
Judges: Before: Allard, Chief Judge, Harbison, Judge, and Mannheimer, Senior Judge. [*]
Opinion by: HARBISON
Travis Clinton Felder was convicted, following a jury trial, of one count of first-degree sexual assault, one count of first-degree assault, two counts of second-degree assault, one count of third-degree assault, two counts of fourth-degree assault, and two counts of first-degree criminal trespass. 
On appeal, Felder challenges only three of his nine convictions: his first-degree sexual assault and second-degree assault convictions involving his ex-girlfriend, C.V., and his first-degree assault conviction involving Joyce Weiss, a woman whose home Felder entered uninvited, and who suffered serious physical injury after Felder kicked her in the head, causing her to fall against a kitchen counter and crushing a vertebra in her back.
With regard to the first-degree sexual assault and second-degree assault convictions involving C.V., Felder argues that the trial court erred in excluding two pieces of evidence suggesting that C.V. was potentially biased and had a motive to fabricate testimony adverse to Felder. The State argues that any errors were harmless given the other evidence in the case. For the reasons explained in this opinion, we agree with Felder that the exclusion of this evidence requires reversal of Felder’s first-degree sexual assault conviction and the second-degree assault conviction related to C.V.
With regard to the first-degree assault conviction involving Weiss, Felder argues that there was insufficient evidence for the jury to find that he used his foot as a “dangerous instrument,” a necessary element of this charge. For the reasons explained in this opinion, we conclude that there was sufficient evidence to support the jury’s finding that Felder used his foot as a dangerous instrument.
Finally, Felder argues that his judgment erroneously describes the merger of his lesser included assault convictions as only “for purpose[s] of sentencing.” The State concedes that this is error, and we conclude that this concession is well-founded. 
Thus, we reverse Felder’s convictions for first-degree sexual assault and second-degree assault involving C.V., and we remand his case to the trial court for either a retrial or dismissal of those charges. In addition, we direct the trial court to amend the judgment to appropriately reflect the merger of Felder’s lesser included assault convictions. In all other respects, we affirm the trial court’s judgment.
Background facts and procedural history
One evening in June 2014, Felder and his ex-girlfriend, C.V., arranged to meet at an Anchorage storage unit to exchange physical custody of their eighteen-month-old daughter. At the time, Felder and C.V. were involved in a child custody dispute, and they shared custody of their daughter pursuant to a week-on, week-off custody schedule.
The exchange of custody did not occur as planned that evening; instead, Felder and C.V. spent the night in and around the storage unit, where C.V. had been living after she was forced to leave her apartment.
The following morning, the manager of the storage unit complex, Michael Miller, encountered Felder wandering around the complex and subsequently discovered C.V. asleep in her unit. Miller informed C.V. that she was not allowed to live in the storage unit, and he directed her to vacate the property. Miller then returned to his office.
C.V. and Felder provided differing accounts of what happened after Miller left. According to C.V., she and Felder began to argue, at which point Felder stepped inside the storage unit, closed the door, and attacked C.V. According to C.V.’s testimony, Felder punched her in the face repeatedly and kicked her. Felder also grabbed C.V.’s head and put his penis in her mouth, forcing her to perform fellatio on him. At one point during these acts of physical and sexual assault, Felder impeded C.V.’s ability to breathe by placing his hands over C.V.’s nose and mouth and positioning his arm around C.V.’s neck. Eventually, C.V. managed to escape; she grabbed her daughter and ran out of the storage unit, screaming for help.
Felder described a different version of the events inside the storage unit. Although he admitted that he hit C.V. repeatedly, Felder denied choking or strangling her, and claimed that he was the victim, rather than the perpetrator, of the sexual assault. According to Felder, C.V. drugged him without his knowledge, leaving him involuntarily under the influence of methamphetamine. Felder claimed that, after Miller ordered C.V. to leave the property, C.V. hit Felder and yelled at him. C.V. then began smoking methamphetamine, blowing the smoke toward the couple’s young child. Felder asserted that C.V.’s act of endangering their child’s welfare caused him to “snap,” and he charged at C.V., punching her in the face three or four times. According to Felder, while he was punching C.V., she blew something into Felder’s face, which caused him to briefly lose consciousness. When Felder awoke, he found his penis inside C.V.’s mouth. After extricating himself and then striking C.V. again, Felder told C.V. to take their child and go to a hospital, hoping that hospital staff would recognize that C.V. was not a fit parent and would remove the child from C.V.’s care.
With regard to the events that transpired after Felder and C.V. left the storage unit, the testimony showed that C.V. ran to the storage facility office, and that Miller called 911.
Meanwhile, Felder for his part, left the storage unit complex and went to a nearby residence that was shared by four roommates. Felder entered this residence uninvited, went to an upstairs bedroom, and lay down on a bed. One of the roommates, Casey Knight, discovered Felder there, and he escorted Felder from the property.
Shortly thereafter, Felder entered another home uninvited, this one belonging to Joyce and Barry Weiss. Joyce Weiss discovered Felder and confronted him in the kitchen. But when Weiss tried to compel Felder to leave her home, Felder took a couple of quick steps toward her and kicked her in the face, knocking her backwards into a kitchen counter. The impact fractured a vertebra in Weiss’s back, causing permanent injury.
Felder then cornered Weiss’s husband Barry in an upstairs bedroom. According to Barry’s testimony, Felder kicked him in the chest with a speed and technique that Barry likened to a move from a martial arts film.
Based on the events involving C.V., Felder was convicted of first-degree sexual assault as well as second-, third-, and fourth-degree assault. Based on the events at the Weiss residence, Felder was convicted of first-and second-degree assault (for inflicting serious physical injury on Joyce Weiss), and fourth-degree assault (for kicking Barry Weiss). Additionally, Felder was convicted of two counts of first-degree criminal trespass for entering the two residences uninvited.
As we previously explained, Felder now challenges three of these nine convictions: his first-degree sexual assault and second-degree assault convictions involving C.V., and his first-degree assault conviction involving Joyce Weiss.
The trial court erred when it precluded Felder from introducing evidence of C.V.’s potential bias and motive to fabricate
At trial, Felder’s attorney argued that C.V. was not a credible witness because she was biased against Felder. On appeal, Felder contends that the trial court improperly excluded two pieces of evidence that Felder’s attorney offered in support of this bias claim.
Felder’s attorney first sought to introduce evidence suggesting that C.V. gave testimony against Felder because the State agreed to dismiss a felony criminal charge that was pending against C.V. The defense attorney made the following offer of proof: Nine days after the events in this case, C.V. was arrested and charged with felony vehicle theft based on a report that C.V. had stolen a trailer from the storage unit complex. A few weeks later, C.V. testified before the grand jury in Felder’s case. Then, sometime after C.V. gave this testimony, the State dismissed the felony theft charge against her.
At trial, when Felder’s attorney sought to introduce evidence of the theft charge and the State’s subsequent dismissal of it, the court ruled that the proposed evidence was not admissible in the absence of direct evidence that the State dismissed the theft charge in exchange for C.V.’s testimony. Thus, the defense attorney’s proposed evidence was never presented to the jury.
The State concedes that this ruling was erroneous, and we find the concession well-founded. We addressed a similar situation in Braund v. State, where the State dismissed a felony charge against a witness shortly before she was scheduled to testify at Braund’s trial.  The trial court refused to allow Braund’s attorney to question the witness about the dismissal of the charge unless the State affirmatively acknowledged that the dismissal was a quid pro quo in exchange for her testimony.  We held that the court’s ruling was mistaken because “[the] sequence of events, in itself, raised an inference of favoritism,” and thus “it was error to prohibit Braund from cross-examining [the witness] on this issue unless the government explicitly conceded the existence of the deal that Braund was trying to prove.” 
We reach the same conclusion in Felder’s case. The State dismissed a felony charge against C.V. shortly after she provided grand jury testimony supporting the charges against Felder. As was the case in Braund, this sequence of events, in itself, raised an inference that a deal had been struck. Thus, the trial court erred in prohibiting Felder’s attorney from presenting evidence of the timing of the dismissal of the felony charge against C.V., and from later arguing that the jurors should draw the inference that C.V. received favorable treatment from the State after she gave testimony against Felder at the grand jury.
Although the State concedes that the court’s ruling was wrong, the State argues that this error does not require reversal of Felder’s convictions. The State points out that the jury heard substantial other evidence tending to impeach C.V.’s credibility, including evidence that C.V. had four prior convictions for crimes of dishonesty, that she was on probation at the time of Felder’s trial and faced up to 300 days of incarceration if she violated her probation conditions, and that C.V. had made a series of inconsistent statements throughout the case regarding the events inside the storage unit. The State also asserts that C.V. had “little reason” to feel charitable toward the State after the State removed C.V.’s daughter from her custody.
But the fact that the jury heard this other impeachment evidence does not cure the erroneous exclusion of the evidence related to the dismissal of C.V.’s felony theft charge. The dismissal of a pending felony charge was a materially different form of impeachment than the other evidence the jury heard.  While Felder admitted physically assaulting C.V., he denied strangling her or sexually assaulting her. There was little evidence to corroborate C.V.’s testimony regarding these charges, and there is a significant chance that the proposed additional impeachment would have altered the jury’s assessment of C.V.’s credibility. 
The error in excluding this evidence was compounded by the trial court’s incorrect exclusion of a second piece of impeachment evidence involving C.V.
As we have explained, Felder and C.V. were engaged in a contentious child custody dispute involving their eighteen-month-old daughter. In the midst of this custody dispute (and approximately six weeks prior to the events in this case), C.V. sent a text message to Felder in which she told him: “If u go back to prison the [question of child] custody wouldn’t even b an issue hmmmmm.”
At trial, Felder’s attorney argued that this text message was admissible to establish C.V.’s motive to lie about, or at least to exaggerate, the events in this case — under the theory that C.V. might want to ensure that Felder would be incarcerated for a significant period of time and thus unable to challenge C.V.’s custody of their child. The trial court, however, concluded that this text message was “simply not relevant,” and the court therefore excluded all evidence of the text message. This ruling, too, was error.
Because the trial court refused to allow Felder’s attorney to pursue these two methods of impeaching C.V.’s testimony, we reverse Felder’s first-degree sexual assault and second-degree assault convictions involving C.V. 
The evidence presented at trial was sufficient to establish that Felder used his foot as a dangerous instrument
Felder next argues that the evidence presented at his trial was legally insufficient to support his conviction for first-degree assault against Joyce Weiss.
To prove this assault charge, the State had to establish: (1) that Felder caused serious physical injury to Weiss; (2) that he acted at least recklessly with regard to the possibility that his actions would cause serious physical injury; and (3) that he caused this injury by means of a dangerous instrument. 
Felder does not dispute that he kicked Weiss in the face, or that she suffered serious physical injury as a result. But Felder argues that the evidence was insufficient to support a finding that he caused this injury by means of a dangerous instrument.
The statutory definition of “dangerous instrument” includes “anything that, under the circumstances in which it is used, attempted to be used, or threatened to be used, is capable of causing death or serious physical injury.”  A hand or foot may qualify as a dangerous instrument under this definition, but only if the State presents “particularized evidence from which reasonable jurors could conclude beyond a reasonable doubt that the manner in which the hand [or foot] was used in the case at issue posed an actual and substantial risk of causing death or serious physical injury, rather than a risk that was merely hypothetical or abstract.” 
The mere fact that a defendant’s actions resulted in serious physical injury is not, standing alone, sufficient to support a finding that the defendant’s hand or foot was used in a manner that made it a “dangerous instrument.”  Instead, jurors must consider the precise manner in which the defendant used their hand or foot in the specific circumstances of that case, and then the jurors must assess “the consequences that were reasonably likely to ensue from the defendant’s actions.”  In their assessment, the jurors should consider:
(1) whether the hand or foot was used in a manner that was “inordinately violent” or “particularly calculated to inflict serious physical injury”; (2) whether the defendant had specialized training in using his hands or feet to inflict death or serious physical injury; and (3) whether, under the circumstances, the victim was particularly susceptible to death or serious physical injury from a blow by the defendant’s hand or foot. 
Here, the trial court properly instructed the jury on these factors and on the requirement to focus on the particular manner and circumstances in which Felder used his foot to assault Weiss. The parties’ closing arguments likewise highlighted these factors.
Given the evidence presented at Felder’s trial, we conclude that this evidence was sufficient to allow reasonable jurors to find that Felder used his foot as a dangerous instrument within the meaning of the statute. The evidence suggested that Felder kicked Weiss in a particularly violent manner. In their testimony, both Joyce and Barry Weiss described Felder’s kicks as those of a martial arts expert — kicks delivered “in a millisecond,” without warning, and aimed at the face or upper chest of an unprepared victim.
Felder was a professional physical trainer, and he had a significant age and size advantage over Weiss, a sixty-five-year-old woman. Felder admitted to the police that he had studied taekwondo — a form of martial arts training which utilizes head-height kicks to inflict injury on opponents. And the evidence supported the conclusion that, moments before Felder kicked Weiss, he rapidly closed the distance Weiss had tried to put between them and lashed out with a swift kick — one sufficiently forceful to knock Weiss off her feet and send her crashing into a kitchen countertop.
The totality of this evidence was sufficient to allow reasonable jurors to find that the manner in which Felder used his foot posed “an actual and substantial risk of causing death or serious physical injury” to Weiss — a risk that was more than “hypothetical or abstract.” Accordingly, there was sufficient evidence for reasonable jurors to conclude that Felder used his foot as a dangerous instrument when he assaulted Weiss.
Felder’s written judgment must be amended to reflect that merger is not solely for sentencing purposes
Felder’s final argument on appeal concerns the manner in which the trial court’s written judgment characterizes the merger of Felder’s various assault convictions.
At sentencing, with the consent of the parties, the court merged the second-, third-, and fourth-degree assault convictions involving C.V., and the court merged the first-and second-degree assault convictions involving Joyce Weiss.
The record shows that both the court and the parties intended to have these convictions merge for all purposes, so that, based on the jury’s verdicts, Felder would receive a single merged conviction for second-degree assault for the assault involving C.V. and a single merged conviction for first-degree assault for the assault involving Weiss. However, the court’s written judgment states that the various assault counts merged only “for purpose[s] of sentencing.”
As we have explained in previous decisions, Alaska law does not recognize a merger of counts “for sentencing purposes only.”  When a defendant is convicted of multiple counts that merge, “the merger results . . . in a single sentence and in a single conviction.”  In other words, the merger is not for purposes of sentencing only, but rather for all purposes.
Thus, as the State concedes, Felder’s written judgment is worded erroneously and should be amended to reflect a single assault conviction for each of the two victims.
Accordingly, with respect to the two assault counts involving Joyce Weiss, we direct the trial court to amend its judgment to reflect a single conviction for first-degree assault based on the jury’s guilty verdicts on Counts VI and VII.
With respect to the three assault counts involving C.V., the effect on the judgment will hinge on whether the State retries Felder for second-degree assault, and whether the jury finds Felder guilty. If Felder is retried for second-degree assault and is found guilty, then the trial court shall amend its judgment to reflect a single conviction for second-degree assault based on the jury’s guilty verdicts on Counts III, IV, and IX. On the other hand, if the State chooses not to retry Felder for second-degree assault, or if Felder is retried but acquitted, then the trial court shall amend its judgment to reflect a single conviction for third-degree assault based on the jury’s guilty verdicts on Counts IV and IX.
We REVERSE Felder’s first-degree sexual assault and second-degree assault convictions involving C.V. We REMAND this case to the trial court for a potential new trial on those charges, and also for the trial court to amend its written judgment to properly reflect the merger of Felder’s various assault convictions. In all other respects, the judgment of the trial court is AFFIRMED.
*. Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).
- AS 11.41.410(a)(1), AS 11.41.200(a)(1), AS 11.41.210(a)(1) and (a)(2), AS 11.41.220(a)(1)(A), AS 11.41.230(a)(1), and AS 11.46.320(a)(2), respectively.
- See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (requiring a reviewing court to independently evaluate any concession of error by the State); see also Nicklie v. State, 402 P.3d 424, 426 (Alaska App. 2017) (“Alaska law does not recognize the existence of a merger ‘for sentencing purposes only.'”).
- Braund v. State, 12 P.3d 187, 190 (Alaska App. 2000).
- Id. at 191.
- Cf. Beltz v. State, 895 P.2d 513, 518 (Alaska App. 1995) (reversing a conviction for sexual abuse of a minor because the trial court erroneously excluded evidence that a key prosecution witness had previously committed an armed assault against the defendant, even though the jury heard other evidence suggesting that the witness was biased, because the assault evidence was materially different from the other impeaching evidence).
- See Wood v. State, 837 P.2d 743, 749 (Alaska App. 1992) (reversing a conviction after the erroneous exclusion of impeachment evidence, where the error related to the State’s primary witness, there was minimal evidence corroborating the witness’s testimony, and the case hinged on the witness’s credibility).
- Because we are reversing these two convictions based on the errors we have just explained, we need not resolve Felder’s additional claim that these two convictions should be reversed because of a separate ruling that the trial court made under Alaska Evidence Rule 801(d)(1)(B).
- AS 11.41.200(a)(1).
- AS 11.81.900(b)(15)(A).
- Konrad v. State, 763 P.2d 1369, 1374 (Alaska App. 1988); see also Wettanen v. State, 656 P.2d 1213, 1218 (Alaska App. 1983).
- Wettanen, 656 P.2d at 1217.
- Olson v. State, 264 P.3d 600, 604 (Alaska App. 2011); see also Konrad, 763 P.2d at 1373-74.
- Olson, 264 P.3d at 604 (citing Konrad, 763 P.2d at 1374-75).
- Konrad, 763 P.2d at 1374.
- Nicklie v. State, 402 P.3d 424, 426 (Alaska App. 2017).
- Smith v. State, 426 P.3d 1162, 1167 (Alaska App. 2018).