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Merculief v. State

Court of Appeals of Alaska
Nov 4, 2009
Court of Appeals No. A-10333 (Alaska Ct. App. Nov. 4, 2009)

Opinion

Court of Appeals No. A-10333.

November 4, 2009.

Appeal from the Superior Court, Third Judicial District, Anchorage, Philip R. Volland, Judge, Trial Court No. 3AN-07-8391 CR.

David K. Allen, Assistant Public Advocate, Fairbanks, and Rachel Levitt, Public Advocate, Anchorage, for the Appellant. Eric Ringsmuth, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Richard A. Svobodny, Acting Attorney General, Juneau, for the Appellee.

Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.


MEMORANDUM OPINION AND JUDGMENT


Burt Gregory Merculief Jr. and a female companion approached Sean Hickey late in the evening outside Hickey's apartment. Merculief pulled a knife with a six-inch blade out of his left pocket, showed it to Hickey, and demanded, "Hey, give me money." In response, Hickey gave Merculief all of the money he had with him.

A jury convicted Merculief of first-degree robbery. In this appeal, Merculief argues that there was insufficient evidence that he "threatened the immediate use of force," a required element of this crime. Accordingly, we must now determine whether the jury verdict was supported by sufficient evidence to support a conclusion by a reasonable mind that there was no reasonable doubt as to the Merculief's guilt.

AS 11.41.500 provides that "A person commits the crime of robbery in the first degree if the person violates AS 11.41.510" while "armed with a deadly weapon." AS 11.41.510(a) provides:

A person commits the crime of robbery in the second degree if, in the course of taking or attempting to take property from the immediate presence and control of another, the person uses or threatens the immediate use of force upon any person with intent to (1) prevent or overcome resistence to the taking of the property or the retention of the property after taking; or (2) compel any person to deliver the property or engage in other conduct which might aid in the taking of the property.

(Emphasis added.)

Dorman v. State, 622 P.2d 448, 453 (Alaska 1981).

In the robbery statute, the word "threat" means "a menace, however communicated . . . [and] includes all threats to inflict physical injury on anyone." And the word "force" includes "the threat of imminent bodily impact." Applying these definitions, a menacing display of a knife may be sufficient to "communicate" the "threat" essential to a robbery conviction, even when the robber does not cut the victim or make any verbal threat of harm.

AS 11.81.900(b)(61) (emphasis added).

AS 11.81.900(b)(27).

See O gden v. State, 597 S.E.2d 491, 492-93 (Ga. App. 2004) (defendant demanded money from victim while displaying a closed folding knife); State v. Tran, 95 P.3d 2, 13-14 (Haw. App. 2002) (defendant demanded money, then took a knife out of his pocket); State v. Boyance, 924 So. 2d 437, 441 (La. App. 2006) (defendant ordered cashier to open the cash register while defendant was holding a knife); State v. Echols, 765 N.E.2d 379, 383 (Ohio App. 2001) (defendant brandished a knife at a store clerk while saying, "Be cool, baby").

Merculief's jury could have reasonably concluded that Merculief threatened the immediate use of force when he demanded money while pulling a knife out of his pocket. Accordingly, there was sufficient evidence to support the jury's verdict.

We therefore AFFIRM the superior court's judgment.


Summaries of

Merculief v. State

Court of Appeals of Alaska
Nov 4, 2009
Court of Appeals No. A-10333 (Alaska Ct. App. Nov. 4, 2009)
Case details for

Merculief v. State

Case Details

Full title:BURT GREGORY MERCULIEF JR., Appellant v. STATE OF ALASKA, Appellee

Court:Court of Appeals of Alaska

Date published: Nov 4, 2009

Citations

Court of Appeals No. A-10333 (Alaska Ct. App. Nov. 4, 2009)

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