Foy v. State, Court of Appeals No. A-13019

CourtCourt of Appeals of Alaska
Writing for the CourtJudge ALLARD.
Citation513 P.3d 1085
Parties Matthew FOY, Appellant, v. STATE of Alaska, Appellee.
Docket NumberCourt of Appeals No. A-13019
Decision Date10 June 2022

513 P.3d 1085

Matthew FOY, Appellant,
STATE of Alaska, Appellee.

Court of Appeals No. A-13019

Court of Appeals of Alaska.

June 10, 2022
As Revised on Rehearing July 8, 2022

Gavin Kentch, Law Office of Gavin Kentch, LLC, Anchorage, for the Appellant.

Elizabeth T. Burke, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee.

Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges.



Matthew Foy was convicted, following a jury trial, of first-degree assault, third-degree assault, third-degree criminal mischief, and first-degree witness tampering based on a series of incidents in which Foy attacked Denise Topkok and threatened another person with a knife.1 On appeal, Foy contends that there was insufficient evidence presented at trial to support his convictions for the charged offenses. We have reviewed the record in this case, and we conclude that the evidence was sufficient to support all of Foy's convictions except his conviction for first-degree assault. We therefore reverse the first-degree assault conviction and remand this case to the superior court to enter a conviction for the lesser included offense of

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third-degree assault and to resentence Foy accordingly.

Foy also argues that the first-degree assault charge was the result of prosecutorial vindictiveness. The State maintains that Foy failed to present a prima facie case in support of this claim. The State also contends that Foy waived any claim of prosecutorial vindictiveness by failing to bring a timely motion raising the issue in the superior court. We conclude that we do not need to resolve this issue because our reversal of the first-degree assault conviction renders any claim of prosecutorial vindictiveness moot.

Background facts

Because Foy challenges the sufficiency of the evidence to support his convictions, we present the facts in the light most favorable to the jury's verdicts.2

On May 16, 2016, Denise Topkok offered Foy a ride from Nome to Teller. According to Topkok's later statement to the troopers, Foy and Topkok had an altercation on an isolated stretch of road at about 2:00 a.m. on May 17.

In her statement to the troopers, Topkok reported that Foy hit her in the face after she told him she would not drive him back to Nome that morning. She also told the troopers that when she got out of the car, Foy followed her and put his arm around her neck for "[p]robably over a minute." Topkok reported that Foy would "squeeze and then quit" and that he threatened to kill her. When the trooper asked if Foy was "cutting off your flow of air at all," Topkok answered "yeah" and that her throat was sore. But when Topkok was asked whether she had a "hard time breathing," she answered, "I don't know, it just, like, happened too fast," and she said that she was able to "slip out" of Foy's grasp. Foy and Topkok then got back in the car, and Topkok drove them the rest of the way into New Site (an area of Teller).

When Topkok and Foy arrived in New Site, Topkok pulled up to the house of her neighbor, Agatha Pikonganna. Pikonganna later testified that she was hosting a poker night at her home and that she, Melanie Wasky, and several other guests witnessed Topkok drive up. David Miller, Topkok's brother-in-law, was also nearby at his own home.

According to Pikonganna, Topkok got out of the car and asked for help, saying that Foy had just choked her. Pikonganna also told the jury that Foy appeared to be intoxicated and that he threatened to kill Topkok and her family.

David Miller testified that when Topkok got out of the car, Foy began aggressively "chest bump[ing]" Topkok. In response, Miller stepped between Topkok and Foy. According to Miller, Foy reacted angrily to this and began shouting at him. Foy shouted in Miller's face and spit on him, and Miller told Foy to back away. Foy continued spitting on him, and Miller testified that this prompted him to push Foy to the ground. Foy then got to his feet and pulled out a knife, threatening to "slice [Miller's] throat," which caused Miller to back away because he was afraid of being stabbed by Foy.

Foy left and went to Topkok's nearby house. About an hour later, Pikonganna and Wasky heard the sound of breaking glass. Miller went to investigate, taking a shovel to defend himself against Foy. When Miller arrived at Topkok's house, he saw a window break. He then yelled until Foy came outside. Miller verbally confronted Foy and told him to stop breaking windows.

The state troopers arrived a few hours later, at around 7:00 a.m. They first spoke with Miller and the other witnesses and then talked to Topkok, who provided a detailed statement describing Foy's assault on her. The troopers observed a red mark on Topkok's neck, at her collar.

The troopers next went to Topkok's residence. They found both entrances blocked from the inside, household belongings strewn around, and a broken window. Foy was sleeping on a bunk bed inside the home. The troopers handcuffed Foy and recovered the knife. After being read his Miranda rights, Foy gave a rambling account of the incident in which he claimed that he was attacked in a

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vehicle by an unknown woman and that a man had broken Topkok's window with a shovel. Foy also claimed that he felt threatened, and that is why he pulled out the knife. Foy denied ever hitting or harming Topkok.

Procedural history

On May 26, 2016, the prosecutor prepared an indictment charging Foy with three crimes: third-degree assault for the conduct involving David Miller, third-degree assault for the conduct involving Denise Topkok, and third-degree criminal mischief for breaking Topkok's window. However, Topkok did not respond to the grand jury subpoena, and the prosecutor therefore only went forward with the third-degree assault against Miller.3

On June 21, Foy filed a bar complaint against the prosecutor, alleging that the prosecutor was harassing witnesses. The prosecutor responded to the complaint with a letter describing Foy as "a seasoned criminal defendant seeking to gain some advantage in his latest proceedings by making false accusations about the prosecutor." On August 30, the Alaska Bar Association notified Foy and the prosecutor that the grievance did not warrant further investigation.

About a week later, on September 7, the prosecutor convened a second grand jury. This time, Topkok appeared. Topkok told the grand jury that although she and Foy had a "verbal argument," they did not have a physical altercation. To impeach this testimony, the prosecutor introduced the recordings of Topkok's statement to the troopers on the morning after the assault. The second grand jury indicted Foy for first-and third-degree assault for strangling Topkok, as well as third-degree criminal mischief for breaking the window.4

On November 2, a third grand jury indicted Foy for the crime of witness tampering.5 The evidence presented to this grand jury established that, between the first two grand jury proceedings, Foy spoke to Topkok on the phone several times. During these conversations, Foy acknowledged that Topkok had made a number of statements to the troopers accusing him of assaulting her. He also acknowledged that Topkok was subpoenaed to testify before the grand jury. In one of the calls, Foy instructed Topkok to tell the grand jury that nothing happened between them and that the troopers "put words in [her] mouth." At the second grand jury hearing, Topkok testified that nothing happened between Foy and herself and she claimed that the trooper "was most likely putting words in my mouth."

The matter then proceeded to a jury trial. At trial, Topkok testified that she was intoxicated during her phone calls with Foy and when she testified before the grand jury. She also testified that although she and Foy got into a verbal argument in the car between Nome and Teller, nothing more happened. According to Topkok, she did not remember what she told the troopers.

The prosecutor then played the recording of Topkok's report to the troopers as a prior inconsistent statement.

The jury found Foy guilty of all charges.

Foy's insufficiency arguments on appeal

On appeal, Foy argues that there was insufficient evidence presented at trial to support his convictions. When we evaluate the sufficiency of the evidence, we are required to view the evidence — and all reasonable inferences arising from that evidence — in the light most favorable to the jury's verdict and ask whether a reasonable fact finder could have found the defendant guilty beyond a reasonable doubt.6 We do not evaluate the weight of the evidence or witness credibility, as those are questions for the fact finder.7

We address Foy's arguments in the order in which he raises them in his brief.

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1. The witness tampering conviction

Foy argues first that there was insufficient evidence to support his conviction for witness tampering.

To establish that Foy was guilty of first-degree witness tampering, the State was required to prove beyond a reasonable doubt that Foy...

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