Opinion
A-13788
06-14-2023
RONALD R. WHEAT, Appellant, v. STATE OF ALASKA, Appellee.
David T. McGee, Attorney at Law, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Diane L. Wendlandt, 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UNPUBLISHED See Alaska Appellate Rule 214(d)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, First Judicial District, Juneau Trial Court No. 1JU-18-00415 CR, Amy Mead, Judge.
David T. McGee, Attorney at Law, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Terrell, Judges.
SUMMARY DISPOSITION
Following a jury trial, Ronald R. Wheat was convicted of second-degree robbery after he attempted to steal a bag full of groceries from a store in Juneau. At trial, the State alleged that Wheat's original act of shoplifting turned into a robbery when he used force against the two store employees who confronted him. Specifically, the State alleged that when he was approached by two store employees, Wheat and one employee struggled over possession of the bag, and Wheat punched the other employee in the face. In his defense, Wheat contested this version of events, alleging that he had set down the bag of groceries before any altercation with either employee. Wheat raises two issues on appeal.
AS 11.41.510(a)(1). The jury also found Wheat guilty of one count of fourth-degree assault. The court merged the assault count into the second-degree robbery conviction.
First, Wheat argues that the superior court erred when it refused to allow him to present various demonstrations about the strength (or lack thereof) of the reusable grocery bag. According to Wheat, these demonstrations would have shown that, had he and the employee struggled over the bag, it would have ripped. Because the bag did not rip during the incident, Wheat argues that this supported the defense's theory that he had not exerted any force to retain possession of the bag, an element needed to establish robbery.
"Under Alaska law, evidence of an experiment is admissible 'only if the conditions of the experiment were substantially similar to the conditions at the time of the event in issue.'" The superior court found that Wheat failed to show that the bag he proposed to use, or the way in which force would be applied to it, were substantially similar to the conditions at the time of the event. The court's findings are supported by the record, and the court's ruling was therefore not an abuse of discretion. We also note that the jury was permitted to bring a similar grocery bag into the jury room, and thus were able to evaluate Wheat's underlying claim that the bag would have ripped if the incident had occurred in the manner the State alleged.
Joseph v. State, 315 P.3d 678, 682 (Alaska App. 2013) (quoting Beck v. State, Dep't of Transp. & Pub. Facilities, 837 P.2d 105, 113 (Alaska 1992)).
Id. at 682-83 (explaining that appellate courts apply the abuse of discretion standard when reviewing a trial court's ruling that an experiment was not substantially similar to the conditions at the time of the event).
State v. Pease, 163 P.3d 985, 989 (Alaska App. 2007) ("Courts have repeatedly upheld jurors' efforts to test the credibility or plausibility of trial testimony by experimenting with items of physical evidence admitted during the trial, or by re-enacting the events or conditions described by witnesses.").
Second, Wheat argues that the superior court committed plain error when it failed to instruct the jury that it was required to be unanimous as to which use of force - Wheat's struggle over possession of the bag with one employee, or Wheat's punch of the other employee - formed the basis of the robbery conviction. We rejected a nearly identical argument in our unpublished decision in Moore-Barras v. State, where the defendant used force against two separate store employees in the course of a robbery. As we explained in that case, "the robbery was prosecuted as one continuous course of conduct for which no factual unanimity instruction was needed." The same is true here.
Moore-Barras v. State, 2018 WL 4913800, at *2 (Alaska App. Oct. 10, 2018) (unpublished).
Id.
The judgment of the superior court is AFFIRMED.