Opinion
A-13550
03-23-2022
JACOB ALEXANDER ROBERTS, Appellant, v. STATE OF ALASKA, Appellee.
Jay A. Hochberg, Attorney at Law, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Alex Engeriser, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Third Judicial District, Anchorage, Trial Court No. 3AN-18-08899 CR Andrew Peterson, Judge.
Jay A. Hochberg, Attorney at Law, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Alex Engeriser, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Harbison and Terrell, Judges.
SUMMARY DISPOSITION
Jacob Alexander Roberts was convicted of third-degree assault after pointing a handgun at his former employer through the open window of his truck during an argument.
AS 11.41.220(a)(1)(A).
Roberts now appeals, arguing that the superior court erred by not instructing the jury on the lesser included offense of disorderly conduct under AS 11.61.110(a)(5) - which makes it a crime to "challenge[] another to fight or engage[] in fighting other than in self-defense." Roberts contends that he was entitled to the instruction because there was evidence that he and his former employer were engaged in mutual fighting or, alternatively, that he challenged his former employer to a fight.
The State argues that Roberts did not preserve this error because he did not formally object or provide sufficient legal authority for his proposed instruction. We disagree. The record shows that Roberts explicitly requested a jury instruction on the lesser included offense at issue on appeal, and we conclude that he provided sufficient argument in support of it. Therefore, this issue was preserved.
A defendant is entitled to a jury instruction on a lesser included offense when, inter alia, the evidence would support a reasonable conclusion that the defendant is guilty of only the lesser offense and not the charged offense.
Geisinger v. State, 498 P.3d 92, 103 (Alaska App. 2021).
We have reviewed the record and conclude that there was no evidence to support a reasonable conclusion that Roberts was guilty of disorderly conduct under subsection (a)(5). Under this subsection, fighting other than in self-defense "encompasses only those situations where the participants share a mutual purpose or understanding that they will trade blows or attempt to trade blows." Likewise, challenging another to a fight means "daring or inviting someone else to engage in mutual fighting."
Dawson v. State, 264 P.3d 851, 854 (Alaska App. 2011).
Id. at 857 (emphasis added).
At trial, it was uncontested that Roberts and his former employer - who had recently fired Roberts-began arguing with and yelling at each other when Roberts went to pick up his last paycheck. Both parties also agreed that, during this argument, Roberts remained in his truck and that neither man touched the other. Each man testified that he personally did not want a physical fight, but that the other man unilaterally escalated the dispute. As a result, the superior court correctly concluded that disorderly conduct under subsection (a)(5) was not a lesser included offense of third-degree assault in this case.
Roberts also argues that the court's failure to instruct on the lesser included offense was structural error under Jordan v. State, 420 P.3d 1143 (Alaska 2018). Because we conclude that disorderly conduct under subsection (a)(5) was not a lesser included offense in this case, the absence of a disorderly conduct jury instruction was not structural error.
The judgment of the superior court is therefore AFFIRMED.