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Ivy v. State2/12/2003
NOTICE 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
No. 4657
The State charged Michael L. Ivy with three counts of kidnapping, assault in the second degree, three counts of stalking in the first degree, attempted murder in the first degree, two counts of assault in the third degree, violating a domestic restraining order, harassment, resisting arrest, and criminal mischief in the third degree. Ivy pled guilty to the resisting arrest and criminal mischief charges and he does not contest these convictions on appeal. A jury convicted Ivy of one count of kidnapping, fourth-degree assault, violating a domestic restraining order, and harassment. Ivy appeals these convictions and his sentence arguing that: (1) Superior Court Judge Michael L. Wolverton abused his discretion by failing to sever the resisting arrest and criminal mischief charges; (2) the jury should have been required to unanimously determine which type of kidnapping Ivy committed; (3) the jury was not properly instructed on the element of restraint; and (4) the sentence was clearly mistaken. We affirm Ivy's convictions and sentence.
Factual and procedural background
Ivy and K.I. met in 1989 and were subsequently married in 1992. They had a very turbulent relationship marked by episodes of domestic violence. They have two children, R.I. and C.I. Eventually K.I. obtained a restraining order against Ivy. Despite the restraining order, in July of 1995, Ivy attacked K.I. and knocked her unconscious.
Ivy and K.I. divorced in 1996 but subsequently resumed living together. K.I. contended that Ivy was physically abusive. K.I. obtained another restraining order, which Ivy violated multiple times.
The charges in this case arose on April 3, 1999. At approximately 3:30 a.m., Ivy went to K.I.'s residence. K.I. let Ivy into the residence and noticed he smelled of alcohol. Ivy had been out drinking early that morning and was crying. He testified that he went over to K.I.'s residence to persuade her to get back together with him.
Upon entering the residence, Ivy noticed the children were asleep in the living room. K.I. thought Ivy was going to wake the children, so she led him to the bedroom to prevent the children from waking and seeing Ivy crying. In the bedroom, when Ivy and K.I. talked about their relationship, K.I. informed him that they were not getting back together and that she was seeing Michael Greene and having sexual relations with him. In response, Ivy attacked K.I. K.I. testified that Ivy held her down on the bed and choked her with both hands.
According to K.I.'s testimony, the attack stopped when their son came into the bedroom. As their son left the bedroom, Ivy yelled at K.I., called her a whore and a slut, and punched her in the nose. K.I. stated that she had difficulty breathing because of her bloody nose. Ivy then sat on top of her, put his hand over her mouth, and asked her questions about Greene. In the course of defending herself, K.I. bit Ivy's hand. In response, Ivy bit K.I. on the cheek and hit her a couple of times in the head.
Ivy demanded to know where Greene lived. He further demanded that K.I. take him to see Greene. K.I. testified she did not want to leave with Ivy and especially did not want to leave without her children. But she stated that "I felt like if I didn't tell him, he was going to keep hurting me t
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