Opinion
Court of Appeals No. A-9798.
July 2, 2008.
Appeal from the Superior Court, Third Judicial District, Palmer, Beverly W. Cutler, Judge, Trial Court No. 3PA-05-2648 Cr.
David D. Reineke, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Suzanne C. Powell, Assistant District Attorney, and Roman J. Kalytiak, District Attorney, Palmer, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION
Donald E. Hodge appeals his conviction for third-degree assault under AS 11.41.220(a)(1)(A): recklessly placing another person in fear of imminent serious physical injury by means of a dangerous instrument. He contends that the evidence presented at his trial is legally insufficient to support his conviction.
When we assess the sufficiency of the evidence to support a verdict, we are obliged to view the evidence (and all reasonable inferences from the evidence) in the light most favorable to upholding the verdict. Viewed in that light, here is the evidence at Hodge's trial:
Dorman v. State, 622 P.2d 448, 453 (Alaska 1981).
Three state troopers were dispatched to a residence near Willow after the residents reported that they had just been assaulted by Hodge. According to one of the victims, Hodge pulled a knife on him and also threatened to shoot him.
The three troopers (driving separate vehicles) went looking for Hodge. They found him walking down a road near the residence where the assault occurred. Lieutenant (then Sergeant) James A. Helgoe, who was in the lead vehicle, spotted Hodge about fifty to sixty yards away. Helgoe slammed on his brakes, grabbed his rifle, and got out of his patrol car.
Helgoe testified that when he looked up at Hodge again, Hodge had "bladed" his body — by which Helgoe apparently meant that Hodge had turned sideways to Helgoe, so that his arms were no longer visible from a distance. (In later questioning, Helgoe agreed that Hodge's posture could be described as "a shooter's stance".)
Because of the distance, because the overcast sky afforded limited depth perception, and because Hodge was wearing dark-colored clothing, Helgoe could not see Hodge clearly. However, Helgoe could see that Hodge's arms were up, and it appeared that Hodge was pointing something at him. Although Helgoe "didn't know for sure what [Hodge] was pointing at [him]", Helgoe feared that this object was a gun.
Helgoe ducked behind the door of his patrol car and he yelled at Hodge, "Show me your hands!" three to five times. Helgoe had his own rifle poised, aimed at Hodge's chest and ready to shoot, when he saw Hodge throw something away from him — an object that looked like a large stick. Hodge put his hands up, and then he got down on the ground.
The troopers approached Hodge and handcuffed him. About five to ten feet from Hodge, the troopers saw the stick-like object that Hodge had tossed aside. This object was an unloaded rifle.
Under AS 11.41.220(a)(1)(A), a person co mmits third-degree assault if they recklessly place another person in fear of serious physical injury by means of a dangerous instrument — which includes all firearms, whether loaded or unloaded. Viewing the evidence in the light most favorable to upholding the jury's verdict, Hodge pointed his rifle at Helgoe and, by this act, he placed Helgoe in apprehension of imminent serious physical injury or death.
AS 11.81.900(b)(15) (the term "dangerous instrument" includes any "deadly weapon"); AS 11.81.900(b)(17) (the term "deadly weapon" includes any "firearm"); AS 11.81.900(b)(26) (the term "firearm" means "any weapon, including a . . . rifle, . . . whether loaded or unloaded, . . . designed for discharging a shot capable of causing death or serious physical injury").
Nevertheless, Hodge argues that this evidence is legally insufficient to support the verdict — because Helgoe, by his own admission, did not know for certain that the object Hodge was pointing at him was indeed a firearm until after the assault was over, when Hodge surrendered and the troopers retrieved the "large stick" that Hodge had tossed away from him moments before.
In support of this argument, Hodge relies on court decisions holding that, even if a defendant engaged in threatening words or actions that were intended to instill fear in the victim, there can be no conviction for assault if the intended victim remained unaware of the defendant's threatening actions or words until after the threatening conduct was over. But these decisions have no direct relevance to Hodge's case — because Helgoe testified that he did observe H odge's conduct w hile it was occurring, and that this conduct placed him in apprehension of imminent serious physical injury or death (because he feared that the object Hodge was pointing at him was a firearm).
See Wayne R. LaFave, Substantive Criminal Law (2nd ed. 2003), § 16.3, Vol. 2, p. 569.
The true issue presented by Hodge's case is whether a defendant can properly be convicted of third-degree assault under AS 11.41.220(a)(1)(A) if the State proves that (1) the defendant engaged in threatening conduct directed at the victim, (2) the defendant's threatening conduct involved the use or threatened use of a dangerous instrument, (3) the victim perceived the defendant's conduct and, as a result, was placed in fear of imminent serious physical injury or death, but (4) the victim was not completely sure that the defendant was employing a dangerous instrument.
Hodge does not brief this issue. However, we believe that the answer lies in our prior decisions holding that a third-degree assault conviction requires proof that the victim's apprehension of danger was reasonable. See DeHart v. State, 781 P.2d 989, 990 (Alaska App. 1989); Wyatt v. State, 778 P.2d 1169, 1170 (Alaska App. 1989) (holding that, to establish that a defendant "recklessly" placed another person in fear of injury, the State must prove that the victim's fear was reasonable).
See also Baker v. State, 22 P.3d 493, 499 (Alaska App. 2001) (applying this same doctrine to the interference with official proceedings statute), and P etersen v. State, 930 P.2d 414, 430-31 (Alaska App. 1996) (applying this same doctrine to the stalking statute).
It appears to us that the sufficiency of the evidence to support Hodge's conviction rests on whether, under the circumstances, Helgoe reasonably feared that the object Hodge pointed at him was a firearm. Given the fact that Hodge had threatened to shoot one of the residents of the house, and given the fact that Hodge assumed a "shooter's stance" when Helgoe confronted him on the road, the evidence is sufficient to support the conclusion that a reasonable person in Helgoe's situation would fear that the object pointed at him was a firearm.
Because Helgoe's fear that Hodge was employing a dangerous instrument was reasonable under the circumstances, and because the object in Hodge's hands was in fact a firearm, Hodge could properly be convicted of third-degree assault.
Accordingly, the judgement of the superior court is AFFIRMED.