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Kwon v. State3/3/2004
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.
No. 4837
MEMORANDUM OPINION AND JUDGMENT
MANNHEIMER, Judge, concurring.
A jury convicted Ho Sik Kwon of second-degree murder for killing Chang Do Woo by driving into Woo with his vehicle while Kwon was intoxicated. Kwon argues that the superior court should have granted his motion for a judgment of acquittal. We reject that claim because we conclude that sufficient evidence supports the verdict. Kwon also argues that the court made several errors in the jury instructions. We reject those claims as well. Either those claims were not preserved and Kwon has not shown plain error, or the court did not abuse its discretion in giving the instruction.
Background Facts and Proceedings
Early in the morning on November 1, 1998, Ho Sik Kwon and two of his friends, Kichang Yum and Jung Yong Park, went to the Captain's Galley, a karaoke bar in Anchorage. After they arrived, Kwon and his friends had several drinks.
After drinking for a while, Kwon went to the bar's karaoke area, where two other customers, Kwan Su Yi and Dae Yong Kim, were already singing. Kwon told Yi and Kim to leave so he could sing. Yi, Kim, and Kwon argued briefly until the bar's disc jockey, Tommy Lee, asked Yi and Kim to let Kwon sing. Yi and Kim left the stage and joined a friend, Chang Do Woo, at the bar.
Woo told Yi that he knew Kwon and Kwon's friends. Woo said that Kwon was older and entitled to respect, and asked Yi to go and apologize for arguing with Kwon. After Kwon finished his song, Woo, Yi, and Lee approached Kwon, and Yi apologized. Yi and Kwon shook hands.
About ten minutes later, the bar closed for the night. On the way out to the parking lot, Yi told Kim that Kwon's behavior had not been very nice. Kwon's friend, Park, overheard Yi's comment, and Park demanded to know who had made it. Kim, Yi, Park, and Yum began arguing in the parking lot. Several other customers and some bar staff gathered around, either joining in the argument or trying to stop it.
Kwon stood by and watched for awhile, and then left while the fracas continued. Two witnesses, Min Kim and Moon Kim, testified that Kwon looked "a little bit upset" or "mad" before he left. Yum grabbed Dae Yong Kim by the neck and refused to let go. Kim grabbed Yum back. Woo and another man separated Kim and Yum. Yum hit Woo, and the two struggled. Several people tried to help Woo, but before anyone could reach Woo, Kwon drove his Ford Explorer into the crowd.
Kwon struck both Kim and Yi with the Ford before coming to a full stop. Yi and Kim began to bang on its hood and windows. Kwon drove the car forward again, this time hitting the wall of the building. Kwon then backed up and drove out of the parking lot. Some of the people in the crowd chased Kwon's car, but they were unable to catch up to it.
Woo was lying on the ground bleeding from his nose and mouth, and he was not moving. A witness called 911, and APD officers Francis Stanfield, Justin Doll, and Phillip Lee were dispatched to the scene. When they arrived, Officers Stanfield and Doll began to perform CPR on Woo, who was not breathing well and who had no pulse. Officers Stanfield and Doll continued performing CPR on Woo until paramedics arrived and determined that Woo was "beyond any reasonable chance of resuscitation," at which point all efforts to reviv
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