Opinion
Court of Appeals No. A-11196 No. 6105
10-22-2014
STEVEN WARREN STINER, Appellant, v. STATE OF ALASKA, Appellee.
Appeal from the Superior Court, First Judicial District, Juneau, Philip M. Pallenberg, Judge. Appearances: Megan Webb, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
NOTICE Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law. Trial Court No. 1JU-11-775 CR
MEMORANDUM OPINION
Appeal from the Superior Court, First Judicial District, Juneau, Philip M. Pallenberg, Judge. Appearances: Megan Webb, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge. Judge ALLARD.
Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution and Administrative Rule 24(d).
Following a confrontation with a community service officer who was on his property investigating a litter complaint, Steven Warren Stiner was convicted of third-degree assault for recklessly placing another person in fear of imminent serious physical injury by means of a dangerous instrument. Stiner appeals, asserting that the evidence at trial was legally insufficient to support his conviction and that his conviction violated his constitutional right to bear arms under the Second Amendment of the United States Constitution and article I, section 19 of the Alaska Constitution.
AS 11.41.220(a)(1).
For the reasons explained here, we conclude that the evidence was legally sufficient to support Stiner's conviction. We likewise conclude that Stiner's con-stitutional arguments lack merit because the conduct for which he was convicted did not implicate the core protections of either the Second Amendment or article I, section 19.
Stiner also challenges his sentence. He argues that the sentencing judge erred by relying on the statutory aggravator AS 12.55.155(c)(13) — the defendant "knowingly directed the conduct constituting the offense ... at [a] law enforcement officer." He asserts that a community service officer does not qualify as a "law enforcement officer" under this statute. We need not determine whether a community service officer is a "law enforcement officer" for these purposes because the sentencing judge did not rely on the statutory aggravator in imposing Stiner's sentence within the presumptive range.
Factual and procedural background
In 2010, Robert Dilley was a community service officer with the Juneau Police Department. As part of his duties, he enforced the municipal code, which included investigating complaints of littering and issuing warnings or citations to those in violation. At Stiner's trial, Dilley explained that a community service officer, unlike a regular police officer, is not trained at the police academy and does not have the authority to investigate crimes against a person or to carry any weapon other than pepper spray.
In June 2010, Dilley received a complaint about a litter problem at a residence near Mile 17 of the Glacier Highway in Juneau. Dilley and another community service officer, Alisha Sell, went to investigate the complaint a few days later. Their primary concern was that the garbage might include food items, which would attract bears and present a public safety concern.
The officers parked their vehicles on the highway and walked down the driveway to the residence. As they approached the residence, they saw miscellaneous garbage strewn on the ground, but none of the garbage appeared to contain food items.
Although the front door was ajar and there were various dogs barking and running around, nobody responded to the officers' attempts to get the attention of the residents. The officers did not approach the front door because a large barking dog was tied to the front porch.
After deciding that a warning rather than a citation was appropriate, Sell walked back to her vehicle to obtain a warning notice. Dilley remained standing next to a Dodge pickup parked twenty to thirty-five feet from the house. Dilley was wearing a community service officer uniform with his badge visible.
At this point, Stiner walked out of the front door wearing jeans but no shirt and carrying a handgun at his side. Stiner immediately began walking across the front porch, shouting obscenities and yelling at Dilley to leave his property. Stiner's gun remained at his side, pointing downward, as he crossed the front porch towards Dilley.
In response, Dilley raised his hands and began walking backward toward the highway, explaining to Stiner that he and Sell were from the Juneau Police Department and that they were leaving. Dilley later testified that he walked backward facing Stiner because he was afraid if he turned around Stiner would shoot him in the back.
Even after Dilley told Stiner multiple times that he and Sell were from the police department, Stiner continued to advance toward Dilley, yelling at him angrily and still carrying his gun at his side. When Stiner got to within twenty feet of Dilley, Dilley turned and ran to the end of the driveway, with his arms still raised, shouting to Sell that Stiner had a gun.
When Sell and Dilley reached their vehicles, they called police dispatch and reported the confrontation with Stiner. A short time later, three Juneau police officers arrived at Stiner's residence to question him about what had occurred. When the officers arrived, Stiner was on the front porch still holding his gun at his side. Stiner began walking angrily towards the police officers with his gun, yelling at the officers that they had no right to be on his property.
In response, the officers drew their service weapons and told Stiner to drop his weapon. Stiner complied with this command, putting his gun down, and raising his hands. He was then handcuffed and arrested. During the arrest, Stiner complained that Dilley and Sell had no right to be on his property.
Stiner was charged with third-degree assault (for placing Dilley in fear of imminent serious physical injury by means of a dangerous weapon) and fifth-degree misconduct involving a weapon (for failing to immediately inform the Juneau police officers in the second encounter that he possessed a handgun).
AS 11.41.220(a)(1).
AS 11.61.220(a)(1)(A).
At trial, Stiner testified that he had been napping when his dogs started barking and that he grabbed his handgun because he was concerned that the commotion could be a bear. Stiner said he heard voices when he went out on the front porch and that he responded by yelling that whoever was there was trespassing and needed to leave. Stiner claimed that he did not see or speak to anyone directly until the three police officers arrived and that he had not realized that Dilley and Sell were from the police department. Stiner's claim that he never saw Dilley or Sell was impeached at trial by his recorded statements during his arrest, in which he acknowledged seeing Dilley and Sell and complained that "those people" had no right to be on his property.
The jury found Stiner guilty of third-degree assault for recklessly placing Dilley in fear of imminent serious physical injury by means of the gun. The jury was unable to reach a verdict on the misconduct involving a weapon charge.
After returning its verdict, the jury found that the State had proven the statutory aggravating factor AS 12.55.155(c)(13) — that Stiner had "knowingly directed the conduct constituting the offense" at a "law enforcement officer ... during or because of the exercise of official duties."
At sentencing, the trial judge declined to use this statutory aggravating factor to aggravate Stiner's sentence above the applicable presumptive range, which was 0-2 years. The judge found, however, that Stiner's conduct was "aggravated" by the fact that it was knowingly directed at a "law enforcement officer" — a term the judge interpreted broadly to include a community service officer entrusted with the responsibility of enforcing municipal laws. The judge imposed a sentence of 2 years with 18 months suspended (6 months to serve) and 3 years of supervised probation.
This appeal followed.
The evidence at trial was legally sufficient to support Stiner's conviction for third-degree assault
A person commits the crime of third-degree assault under AS 11.41.220(A)(1) if the person recklessly places another person in fear of imminent serious physical injury by means of a dangerous instrument. For purposes of this statute, a victim is "placed in fear" of imminent serious physical injury if the victim reasonably perceives a threat of imminent serious physical injury.
Hughes v. State, 56 P.3d 1088, 1090 (Alaska App. 2002).
Stiner contends that the evidence at trial failed to prove that Dilley's fear that Stiner would shoot him was "objectively reasonable." Stiner emphasizes that he never pointed the gun at Dilley or verbally threatened to shoot him, and he asserts that the "mere presence" of a gun during the confrontation was insufficient to establish that Dilley's fear was reasonable, particularly given the prevalence of guns in Alaska.
When we review a claim of legal insufficiency on appeal, we are required to view the evidence — and all reasonable inferences to be drawn from the evidence — in the light most favorable to upholding the jury's verdict. We then decide whether a fair-minded juror exercising reasonable judgment could conclude that the State met its burden of proving guilt beyond a reasonable doubt.
Cleveland v. State, 258 P.3d 878, 885 (Alaska App. 2011).
Id.
Viewing the evidence in this light, we disagree with Stiner's claim that the gun played a de minimis role in the confrontation between Stiner and Dilley. Taking all reasonable inferences in favor of the jury's verdict, the evidence showed that a visibly armed Stiner angrily and aggressively pursued the unarmed and clearly frightened Dilley while Dilley retreated down the driveway, and that Stiner did so even after Dilley identified himself as a law enforcement officer and even after Dilley demonstrated his awareness of, and fear of, Stiner's gun by holding his arms up.
Given these circumstances, we conclude that a fair-minded juror could find that the State proved that Dilley's fear was objectively reasonable and that Stiner acted in reckless disregard of that fear. We therefore find the evidence legally sufficient to support Stiner's conviction.
Stiner's conviction does not violate the Second Amendment of the United States Constitution or article I, section 19 of the Alaska Constitution
After he was convicted, Stiner filed a motion for a judgment of acquittal notwithstanding the verdict, asserting that his conviction violated the Second Amendment of the United States Constitution and article I, section 19 of the Alaska Constitution, and that the jury's verdict should be set aside on that basis. The trial court denied the motion.
On appeal, Stiner contends that this ruling was error and that this Court should vacate his conviction as unconstitutional. According to Stiner, his actions were the actions of an ordinary, law-abiding citizen who possesses a handgun for the defense of family and hearth. He asserts that he was within his constitutionally protected rights when he picked up his handgun and went out to the front porch to investigate why the dogs were barking.
This argument ignores the conduct for which Stiner was actually convicted. As noted above, Stiner did more than just stand on the porch with his gun: he angrily and aggressively pursued an unarmed and clearly frightened Dilley as Dilley retreated backwards down the driveway with his hands in the air. Moreover, as the jury's finding on the statutory aggravator demonstrates, the jury directly rejected Stiner's claim that he mistakenly thought there were trespassers on his property and that he was unaware that Dilley was from the police department.
See 6A C.J.S. Assault § 115 (2014) (a law enforcement officer lawfully on property is not a trespasser and a property owner has no right to eject the officer by force); cf. State v. Mooring, 20 S.E. 182, 182 (N.C. 1894) (under English and early American common law, the rule that one's home is one's "castle" and can be defended by force did not allow one to defend against the king's officers who came upon property with valid authority to make an arrest).
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Thus, contrary to Stiner's claim, Stiner was not convicted for using his firearm in lawful defense of family or home. Instead, Stiner was convicted for threatening unlawful force against Dilley, who the jury found was on Stiner's property in the course of his official duties.
Because neither the Second Amendment of the United States Constitution nor article I, section 19 of the Alaska Constitution protect the type of unlawful threat of force used here, we find no merit to Stiner's constitutional challenges to his conviction.
The trial court did not err in relying on the jury's finding that Stiner "knowingly directed his conduct at a law enforcement officer" to increase Stiner's sentence within the presumptive range
The statutory aggravating factor AS 12.55.155(c)(13) applies when:
the defendant knowingly directed the conduct constituting the offense at an active officer of the court or at an active or former judicial officer, prosecuting attorney, law enforcement officer, correctional employee, firefighter, emergency medical technician, paramedic, ambulance attendant, or other emergency responder during or because of the exercise of official duties.The jury found that this statutory aggravating factor applied because Stiner had "knowingly directed the conduct constituting the offense ... at a law enforcement officer."
On appeal, Stiner argues that Dilley did not qualify as a "law enforcement officer" under this statute. Stiner contends that the statutory term "law enforcement" should be construed narrowly in this context to apply only to persons with broad police powers, including the authority to arrest, investigate crimes, and carry firearms.
This statutory interpretation question is not before us in this case because the trial court did not use the jury's finding of this statutory aggravating factor to aggravate Stiner's sentence above the presumptive range. Instead, the only question properly before us is whether the sentencing court erred in relying on the evidence that Stiner knowingly directed his conduct at a person acting in his official capacity as a community service officer when the court imposed a sentence within the presumptive range.
The record indicates that the superior court referred to Dilley's status as a "law enforcement officer" at sentencing, but the court relied on a common-sense definition of the term:
I frankly don't know if Officers Dilley and Sell are peace officers from a technical standpoint [but] in their capacity as Community Service Officers, they are surely law enforcement officers, they are surely charged with enforcing the law. ... They wear the uniform, they go out to enforce the law. They're exercising official duties. The fact that they do it without a gun on their belt if anything makes them more vulnerable and more deserving of protection because of that fact.
We conclude that the sentencing court did not err in adopting this common-sense approach to the definition of "law enforcement," given that the only question the court was considering was whether to enhance Stiner's sentence within the presumptive range. For this purpose, the critical issue was not whether Dilley qualified as a law enforcement officer under AS 12.55.155(c)(13) but rather whether Stiner was aware that Dilley was on his property in an official capacity when the confrontation occurred. Given the jury's finding on this question, and the sentencing court's own comments, we conclude that the court did not err in concluding that this circumstance made Stiner's offense more serious and warranted an enhanced sentence within the presumptive range.
Conclusion
The judgment of the superior court is AFFIRMED.