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Koym v. State6/16/1999
MEMORANDUM OPINION AND JUDGMENT
No. 4065
[Stewart, Judge, not participating.]
In this appeal, we are asked to assess the composite sentence that Robert Dean Koym received for two crimes: criminally negligent homicide and tampering with physical evidence. The superior court sentenced Koym to a composite term of 3½ years to serve. As explained in more detail below, we conclude that the record does not support the superior court's stated reasons for imposing a composite sentence exceeding 2 years to serve. We therefore remand Koym's case to the superior court for reconsideration of the sentence.
On the evening of February 1, 1997, Koym visited the apartment of an acquaintance, Tim Jolly. A third man, Bolivar Delgado, was also present. The three men talked, drank beer, and listened to music. During their conversation, Delgado expressed interest in purchasing a firearm. Koym responded that he had a shotgun he would be willing to sell.
Koym had recently offered to sell this same weapon to Jolly. In fact, Jolly had kept the shotgun for two weeks before ultimately deciding that he did not wish to purchase the weapon. Jolly had just returned the shotgun to Koym the day before (January 31, 1997).
Because Koym lived in a nearby apartment, he decided to fetch his shotgun and show it to Delgado. He did not know that the shotgun was loaded, but he admitted that he did not check the weapon.
When Koym returned to Jolly's apartment a few minutes later, Jolly approached him and said, "Let me see that shotgun." Koym replied, "No, you['ve] already seen it." Jolly then grabbed the weapon, and the two men began to tussle. Meanwhile, Delgado stood up and began to reach for the weapon, too. During the grappling for the weapon, it went off. The blast struck Delgado in the stomach, mortally wounding him.
Koym fled Jolly's apartment, and Jolly called 911 to report the shooting. Koym went back to his own apartment, buried the shotgun in a nearby snowbank, and then went to a friend's apartment to spend the night. He told his friend that a man had been shot and that he (Koym) had hid the shotgun in the snow. Soon thereafter, Koym's friend called the police, and Koym was arrested without incident. Shortly after Koym's arrest, the police located and retrieved the shotgun.
Tim Jolly initially gave the police a significantly different description of these events. He told the police that Koym had, without explanation, left the apartment and then returned with the shotgun. According to Jolly, Koym simply pointed the weapon at Delgado, fired the weapon, then left the apartment.
Based on Jolly's report, Koym was initially indicted for first-degree murder. But Jolly did not testify at Koym's trial; instead, he invoked his privilege against self- incrimination. Koym took the stand in his own defense and described how the shooting occurred. After hearing Koym's testimony, the jury rejected the State's theory of an intentional killing and instead convicted Koym of criminally negligent homicide, under the theory that Koym had acted with criminal negligence in handling the loaded weapon. For hiding the shotgun in the snowbank, Koym was also convicted of tampering with physical evidence.
Koym was a 50-year-old first felony offender. Both of his offenses are class C felonies. The State urged the superior court to sentence Koym to a composite term of 5 years to serve - 5 years with 2 years suspended for the negligent homicide, plus a consecutive 2 years to serve for the tampering with evidence. The State contended that, despite the jury's verdict, Koym's conduct actually amounted to manslaughter and his offe
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