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Gibson v. State (4/3/2015) ap-2448

Gibson v. State (4/3/2015) ap-2448

                                                     NOTICE
  

         The text of this opinion can be corrected before the opinion is published in the  

         Pacific Reporter.  Readers are encouraged to bring typographical or other formal  

         errors to the attention of the Clerk of the Appellate Courts:  



                                  303 K Street, Anchorage, Alaska  99501
  

                                             Fax:  (907) 264-0878
  

                                     E-mail:  corrections @ akcourts.us
  



                IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



AMY DAWN GIBSON,  

                                                                    Court of Appeals No. A-11094  

                                    Appellant,                    Trial Court No. 3AN-10-4238 CR  



                           v.                                                O P I N I O N  



STATE OF ALASKA,  



                                    Appellee.                         No. 2448 - April 3, 2015  



                  Appeal   from   the   Superior   Court,   Third   Judicial   District,  

                  Anchorage, Beverly Cutler, Judge.  



                  Appearances:  Marjorie Mock, under contract with the Public  

                                                                    

                  Defender   Agency,   and   Quinlan   Steiner,   Public   Defender,  

                                            

                  Anchorage, for the Appellant.  Diane L. Wendlandt, 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 HANLEY, writing for the Court.  

                  Judge MANNHEIMER, concurring.  



     *   Sitting  by  assignment  made  pursuant  to  Article  IV,  Section  16  of  the  Alaska  



Constitution and Administrative Rule 24(d).  


----------------------- Page 2-----------------------

                     On March 28, 2010, a man went into a coffee shop in downtown Anchorage       



and, while the owner's back was turned, stole a charity donation jar from the counter.   



Taking the jar, the man quickly left the shop and got into the back seat of a waiting   



vehicle.  



                     The owner immediately noticed the theft, and she and her daughter ran out  

                                                                                                     



of the shop in pursuit of the thief.  They went up to the waiting vehicle, and they told the  

                                                                                                                 



driver - Amy Dawn Gibson - not to leave.  Instead, Gibson drove away.  The owner  

                                                                                                                         



and her daughter held onto the car for a short distance, but ultimately they both fell to the  

                                                                                       



ground, sustaining minor injuries.  



                     Based on this episode, Gibson was convicted of second-degree robbery  



under the theory that she was an accomplice to the theft of the donation jar from the  



immediate presence and control of the coffee shop owner, and that, by driving away  

                                                                                     



while the owner and her daughter were holding onto the  car, Gibson used force "to  

                                                                                                       

prevent or overcome resistance to the taking ... or retention" of the stolen property. 1  



                                                                                                                            

                     Gibson was also convicted of two counts of third-degree assault under the  



                                                                          

theory that Gibson recklessly caused physical injury to the owner and to her daughter by  

means of a dangerous instrument (i.e., the vehicle).2  



                     In this appeal, Gibson challenges all three of these convictions.  



                                                                   

                     With respect to her robbery conviction, Gibson contends her conduct did  



                                                                                                                               

not constitute second-degree robbery because (1) the taking of the donation  jar was  



                                                                            

essentially complete by the time she used force against the owner and her daughter, and  



(2) the second-degree robbery statute does not apply to situations where force is used  



      1    AS 11.41.510(a)(1).  



     2     AS 11.41.220(a)(1)(B).  



                                                                   -2-                                                             2448
  


----------------------- Page 3-----------------------

after a theft has been committed, while the thief is in immediate flight from the scene of  

                                                                                                                    



the crime. She also challenges the sufficiency of the evidence of her robbery conviction.  

                 



                   And with respect to her two third-degree assault convictions, Gibson argues  



that  she  did  not  use  her  vehicle  in  such  a  manner  that  it  qualified  as  a  "dangerous  

                          



instrument."  Gibson thus contends that even if she recklessly caused injury to the coffee  

                                



shop owner and her daughter, this would only constitute fourth-degree assault, not third- 



degree assault.  



                   For the reasons explained in this opinion, we reject Gibson's contentions,  

                                                                                  



and we affirm her convictions.  



                   We now address Gibson's arguments in reverse order.  



          Gibson's argument that, under the facts of this case, the motor vehicle did  

                                                                               

          not constitute a "dangerous instrument"  



                   Alaska  Statute  11.81.900(b)(15)(A)  defines  "dangerous  instrument"  as  



including "anything that, under the circumstances ... , ... is capable of causing death or  

                                                



serious physical injury."  Gibson asserts that, even viewing the evidence in the light most  

                                                                                      



favorable to the jury's verdict, she did not use the vehicle in such a manner that it was  



capable of causing death or serious physical injury.  



                   More particularly, Gibson argues that she drove away from the coffee shop  

                                                                     



in an "unremarkable manner" - not at a high speed, nor recklessly.  Noting that the  



owner and her daughter suffered only minor injuries, Gibson argues that there was "no  

                                                                                                     



readily identifiable, actual risk" of serious physical injury.  



                   As we have pointed out in previous cases, a motor vehicle can qualify as  



a  "dangerous  instrument"  when  it  is  used  in  a  manner  that  creates  a  real  danger  of  



serious physical injury, even though no one suffers serious injury.  



                                                             -3-                                                        2448
  


----------------------- Page 4-----------------------

                    For example, in State v. Waskey, the defendant was driving an automobile   

when she struck a child who was riding a bicycle.                       3  The handlebar of the bicycle hooked  



                                                 

onto the front bumper of the car, and Waskey dragged the child 140 feet before stopping.  

Fortunately, the child was not seriously injured.4  



                    We  concluded  that,  under  these  circumstances,  Waskey's  automobile  



constituted a dangerous instrument:  



                    Because of an automobile's solidity and mass, an automobile  

                                                                                

                    is  normally  easily  capable  of  inflicting  death  or  serious  

                    physical injury in such circumstances.  While it is possible to  

                                                                                        

                    imagine collisions between an automobile and a pedestrian or  

                    a  cyclist  that  one  might  not  expect  to  result  in  serious  

                    physical injury (for instance, when the driver's failure to set  

                                                                

                    the parking brake leads to a collision at 2 miles per hour),  

                    these are clearly exceptional cases.  



                              Under  any  reasonable  construction  of  the  facts  of  

                                                                                                 

                    Waskey's  case,  her  automobile  constituted  a  "dangerous  

                    instrument"  within  the  statutory  definition.    The  circum- 

                    stances of Waskey's collision with the bicyclist show that her  

                                                                 

                    car was easily capable of inflicting serious physical injury or  

                    death; indeed, the bicyclist's escape with only minor injuries  

                                                                

                    was completely fortuitous.5  



                    In the present case, Gibson drove away from the coffee shop while both the  

                                         



owner and her daughter were holding onto the car.  The owner took several big steps to  

                                                         



keep up with the car, and then she fell into the oncoming lane of traffic and struck her  

                                                                                                                  



head on the roadway.  The owner's daughter had to lift her feet to avoid being run over.  



She eventually let go of the car and fell to the roadway, where she rolled to a stop.  Her  

                                                                                             



     3    State v. Waskey, 834 P.2d 1251, 1252 (Alaska App. 1992).  



     4    Id. at 1252.  



     5    Id.  at 1253.  



                                                              -4-                                                         2448
  


----------------------- Page 5-----------------------

clothing was ripped, she lost her shoes in this fall, and her shoulders and side were  



bleeding.  



                   The question is whether this evidence, viewed in the light most favorable  

                                                                                                



to the jury's verdict, was sufficient to allow fair-minded jurors to reasonably conclude  

                                                                 



that Gibson used the vehicle in such a manner that it was "capable of causing death or  

serious physical injury."6  

                                      We conclude that the answer is "yes."  



                                        

                   The evidence presented at Gibson's trial was therefore legally sufficient to  



support Gibson's convictions for third-degree assault.  



          Gibson's argument that her conduct did not fall within the definition of  

          second-degree robbery  



                                                   

                   Under the provisions of AS 11.41.510(a)(1), a defendant commits second- 



                                                    

degree robbery if, "in the course of taking ... property from the immediate presence and  



control of another," the defendant uses force (or threatens the immediate use of force)  



"with intent to ... prevent or overcome resistance to the taking of the property or the  



retention of the property after taking."  



                   Viewing the evidence in the light most favorable to the jury's verdict, (1)  

                                                                     



Gibson was criminally liable as an accomplice of the man who stole the donation jar, and  

                                                                       



(2) she used force against the coffee shop owner and her daughter for the purpose of  

            



preventing or overcoming resistance to the man's retention of the donation jar.  



                   Gibson argues that by the time she used force against the owner and her  



daughter, the jar had already been successfully "tak[en] ... from the immediate presence  



and control" of the owner.  Thus, Gibson claims, her use of force did not occur "in the  

                                                                                                                    



course of" this unlawful taking.  Rather, her use of force occurred after the taking -  

                                                                        



     6   Abyo v. State , 166 P.3d 55, 60 (Alaska App. 2007).  



                                                            -5-                                                       2448
  


----------------------- Page 6-----------------------

 while her accomplice (the man who took the jar) was "in immediate flight" from this act         



 of theft.  



                        The wording of the definition of robbery (i.e., the definition of the offense  

                                                                                                       



 found  in  the  second-degree  robbery  statute)  seemingly  refutes  Gibson's  argument.  



 Under this definition, the crime of robbery occurs not only when a person uses force to  

                     



 prevent or overcome resistance to "the taking of the property," but also when a person  

                                                                                                                     



 uses  force  to  prevent  or  overcome  resistance  to  "the  retention  of  the  property  after  

 taking."7  



                        Thus, it appears that the drafters of this statute intended the definition of  



 robbery to cover instances where a thief uses force to retain possession of stolen property  

                                                                                           



 during the immediate flight from the scene.  But Gibson argues that a provision of the  



first-degree  robbery statute shows that this interpretation of the second-degree statute is  

                                                                                                   



 incorrect.  



                        Gibson notes that, under the definition of first-degree robbery codified in  

                                                                    



 AS 11.41.500(a), second-degree robbery is raised to robbery in the first degree if the  



 defendant uses a dangerous instrument, or threatens to use a dangerous instrument, (1)  

                                                  



 "in  the  course  of"  committing  second-degree  robbery,  or  (2)  "in  immediate  flight  

                                                         



 thereafter."  



                        Gibson argues that there would be no need for the legislature to include this  

                                                                                                      



 second clause - the clause referring to "immediate flight thereafter" - if the crime of  

                                                                                                                                 



 second-degree robbery already included a defendant's immediate flight from the scene.  

                                                                                               



 Thus, Gibson argues, an act of violence that occurs during a defendant's "immediate  

                                                                                                            



 flight" from the unlawful taking of property does not, as a matter of law, occur "in the  

                                                                                                                                



 course of" that unlawful taking.  



       7    AS 11.41.510(a)(1).  



                                                                         -6-                                                                 2448
  


----------------------- Page 7-----------------------

                     Based on this reasoning, Gibson asserts that she  could   not lawfully be  



convicted of second-degree robbery, even under the State's view of the evidence.  



                     Gibson's interpretation of the robbery statute hinges on her assertion that  

                                                                                                               



a "taking" of property is complete at the moment the offender removes the property from  



the immediate presence and control of the victim - even when, as in this case, the  

       



victim perceives the taking and immediately gives chase.  But this reading of the robbery  

                                                                                                                    



statute is at odds with its legislative history.  



                     As  this  Court  explained  in  Andrew  v.  State ,  for  purposes  of  assessing  

                                                                                                                      



accomplice liability under Alaska law, the crimes of theft and robbery continue from the  

                                                                    



moment  the  property  is  taken  "until  the  thief  or  robber  [is]  able  to  place  the  stolen  

                                    



property  somewhere  so  as  not  to  be  found  upon  him,  where  it  would  be  securely  

                                                                                                       



              8  

hidden."                                                                            

                 In a case decided shortly after statehood, the Alaska Supreme Court applied  

this doctrine to a theft prosecution in Mahle v. State .9  



                     The legislative history of our robbery statute supports this construction of  



                                                                                                                 

the law.  Alaska's second-degree robbery statute was patterned after Oregon's third- 

degree robbery statute, Oregon Revised Statute 164.395.10  

                                                                                               In the commentary to that  



                                                                          

Oregon statute, the drafters explained that the language "in the course of committing or  



                                                                                                                

attempting to commit theft" was intended "to extend from the attempt state through the  



     8    Andrew v. State , 237 P.3d 1027, 1047 (Alaska App. 2010) (internal quotation marks     



and alterations omitted) (quoting  United States v. Barlow, 470 F.2d 1245, 1253 (D.C. Cir.   

1972)).  



     9     371 P.2d 21, 25 (Alaska 1962).  



      10   See Alaska Criminal Code Revision (Tentative Draft, 1977), Part II, at 110 (Tent.  



Draft 1977) ("Justification").  



                                                                   -7-                                                            2448
  


----------------------- Page 8-----------------------

                          11  

phase of flight."             The Oregon courts have recognized this as the proper interpretation  

of the statute.12  



                     This Oregon statute, in turn, was based on the Model Penal Code's formu-      

lation of robbery.13                                                                                    

                                According to the drafters of the Model Penal Code, their definition  



of robbery was drafted for the purpose of:  



                     extend[ing] robbery to include conduct that occurs in ... flight  

                                                                                   

                     after the ... commission [of the taking].  Thus, a robbery is  

                                                                        

                     committed if the [perpetrator inflicts or threatens immediate  

                                        

                     serious bodily injury] at any point from the beginning of an  

                     attempt  to  commit  a  theft  through  the  end  of  the  flight  

                     following its attempt or commission.14  



                     In sum, both the pre-existing common law of Alaska and the legislative  

                                                                                                                   



history  of  our  current  second-degree  robbery  statute  lead  to  the  conclusion  that  the  

                                                                            



phrase "in the course of taking ... property from the immediate presence and control of  

            



another" includes the offender's immediate flight after seizing the property.  



                     It is true, as Gibson points out, that the language of the first-degree robbery  

                                        



statute  singles  out  an  offender's  conduct  "in  immediate  flight  thereafter,"  as  if  this  

             



conduct were not included within the definition of second-degree robbery.  We are not  

                                                                                                                              



sure why the first-degree robbery statute was drafted in this fashion.  But whatever the  

                                                                                                



drafters  may  have  intended  by  this  phrasing,  we  are  sure  that  they  did  not  mean  to  



      11   Proposed Oregon Criminal Code, Final Draft and Report  148-50 cmt. C, at 155  



(1970).  



      12   State v. Jackson , 596 P.2d 600, 602 (Or. App. 1979) (noting that "the flight stage of         



a completed theft is regarded as [being] within the course of an attempted theft").  



      13   See Proposed Oregon Criminal Code,  148-50 cmt. C, at 155-56; see also Model  



Penal Code   222.1.  



      14   American Law Institute, Model Penal Code and Commentaries (Official Draft and  



Revised Comments, 1980), Part II,  222.1, at 99 (internal quotation marks omitted).  



                                                                  -8-                                                            2448
  


----------------------- Page 9-----------------------

narrow the pre-existing definition of robbery so as to exclude any conduct committed  



during the offender's immediate flight.  If anything, the legislative history of our robbery  

                                 



statutes reflects an intent to expand the definition of robbery.  



                    We therefore hold that the phrase used in AS 11.41.510(a), "in the course  

                                                                                  



of taking or attempting to take property from the immediate presence and control of  



another," includes an offender's immediate flight after the seizure or attempted seizure  

                                                                                                   



of the property.  



                    Thus, under the facts of this case, Gibson committed robbery when she used  



force  against  the  coffee  shop  owner  and  her  daughter  to  prevent  or  overcome  their  

                                                                



resistance to her accomplice's retention of the stolen donation jar.  



                    (Indeed, because the State proved that Gibson's use of force involved the  



use of a dangerous instrument (the vehicle), it appears that Gibson's conduct constituted  

                                                                    



                                                                                            15  

the offense of first-degree  robbery under AS 11.41.500(a)(2).  

                                                                                                However, Gibson was  



only charged with second-degree robbery.)  



                    Gibson raises one additional claim:  that there was insufficient evidence for  

                                                                                                                



the jury to find that she acted with the prohibited purpose - preventing or overcoming  

                                                                                           



resistence to the retention of the property by her accomplice - when she used force  

                                                                     



against the owner and her daughter.  Gibson argues that her only purpose in using force  

                                                                                    



against the owner and her daughter was to facilitate the escape, and that she had no  

                                                                                                          



intention of helping her accomplice retain the stolen donation jar.  



                    This was a question of fact for the jury.  The jurors were instructed that, to  

                                                                                      



convict Gibson of second-degree robbery, they had to find that she "intended to prevent  

                                                                                                   



or overcome resistance to the taking of the property or the retention of the property."  

                     



     15   Under AS 11.41.500(a)(2), an act of second-degree robbery is raised to first-degree  



robbery if the offender "uses or attempts to use a dangerous instrument."  



                                                              -9-                                                         2448
  


----------------------- Page 10-----------------------

The evidence presented at Gibson's trial was sufficient for reasonable jurors to conclude                                                                  



that the State had proved this allegation beyond a reasonable doubt.  



               Conclusion  



                              The judgment of the superior court is AFFIRMED.  



                                                                                                 -10-                                                                                   2448
  


----------------------- Page 11-----------------------

Judge MANNHEIMER, concurring.  



                    I  write  separately  because  I  believe  that  even  under  the  narrower,  



common-law definition of robbery, Gibson committed robbery when she used force to  

                                                                                                                    



prevent the victims from regaining their property during her accomplice's immediate  



flight from the scene.  



                   According to Professor Perkins's text on the criminal law - Rollin M.  



Perkins & Ronald N. Boyce, Criminal Law (3rd edition 1982) - the common-law courts  



distinguished between (1) situations where a person committed a theft and then later  



used  force  or  intimidation  to  prevent  the  property  owner  from  retaking  the  stolen  



property,  and  (2)  situations  where  a  person  committed  a  theft  and  used  force  or  

                                                                                                   



intimidation to stop the property owner from immediately retaking the property:  



                    The former situation - instances where, "subsequent to the larceny[,] the  

                                                                                                            



owner should come upon the thief and be prevented from retaking his property by force  

                                                                                                 



or [intimidation]" - was treated by the common law as "larceny and assault, but not  

                                                                                                         



robbery."  Id. at 349.  But the latter situation - instances where "one snatches property  

                                                                                    



from the hand of another and uses force or intimidation to prevent an immediate retaking  

                                                              



by the other" - was "all one transaction and constitute[d] robbery."  Ibid.  

                                                                                                               



                    I acknowledge that the Commentary to the Model Penal Code suggests that  

                                                                                                     



the common-law rule was different.   



                   According  to  the  drafters  of  the  Model  Penal  Code,  their  definition  of  



robbery ( 222.1) was intended to expand the common-law definition of robbery by  



expressly including the use of force (or threat of force) during the thief's immediate  

                               



flight after the taking.  The drafters declared that "[p]rior law was ... narrower ... on this  

                                                                                    



                                                             -1111-                                                     2448
  


----------------------- Page 12-----------------------

point  and  did  not  include  [the  use  of]   force  during  flight  within  the  offense  of  



                1  

robbery."         



                     In support of this assertion, the Model Penal Code drafters cited a passage  



from William Blackstone's Commentaries on the Laws of England - but the drafters  

          



appear to have misinterpreted this passage.  



                     In the cited passage - Commentaries, Vol. IV, Chapter 17 ("Of Offenses  

                                                                                                                   



Against Private Property"), p. 242 - Blackstone addressed the common-law rule that  



a thief's later use of force to hold onto the property was not deemed a robbery.  But note  

                                                                                        



that, in this passage, Blackstone speaks of the act of "privately stealing":  



                       

                               Lastly, [to constitute robbery,] the taking must be by  

                     force, or a previous putting in fear; which makes the violation  

                                                                            

                     of the person more atrocious than privately stealing.  For if  

                                                                                                           

                     one privately steals sixpence from the person of another, and  

                                                                   

                     afterwards keeps it by putting him in fear, this is no robbery,  

                                                                                        

                     for the fear is subsequent.  



Modern readers might easily skip over, or ignore, the word "privately" - because we  



no longer use this word in the technical sense that Blackstone meant it.   



                     In   the   eighteenth   century,   the   word   "private"   meant   "secret"   or  

"concealed". 2  

                        A "private stealing" meant an act of larceny that occurred without the  

                                                                                                                       



property owner's knowledge.   



     1    American Law Institute, Model Penal Code and Commentaries (Official Draft and  



Revised Comments, 1980), Part II, Definition of Specific Crimes ( 220.1 - 230.5), p. 104.         



     2     See the Oxford English Dictionary, citing these examples of usage from the 1700s:
  



     "He lay private, till his Peace was made with the King."  (1700)
  

     "If the sound comes to you dead, and flat, it is a sign of some private infirmity."  (1726)
         

     "Let private weddings be for doubtful happiness."  (1753) 
 



                                                                 -1122-                                                          2448
  


----------------------- Page 13-----------------------

                    Thus,  the  phrase  "private  stealing"  was  used  to  describe  the  act  of  a  

                                                                                  



pickpocket if the theft went wholly undetected at the time.  Indeed, the prosecutor was  

                     



required to prove the victim's complete lack of contemporaneous knowledge that a theft  



was occurring, else the crime was not pickpocketing:  



                     

                             Up  until  1808  [i.e.,  forty  years  after  Blackstone  

                   published his  Commentaries], this crime [of pickpocketing]  

                                                                        

                    involved  "privately"  stealing  from  the  person  of  another,  

                                                                          

                   which  meant  without  their  knowledge,  goods  worth  more  

                   than a shilling.  The difficulty of proving that the victim had  

                   no  knowledge  of  the  crime  made  it  difficult  to  convict  

                    defendants of this offence, though many were found guilty  

                                                                                 

                    [of] lesser charges through use of partial verdicts.  



Clive Emsley, Tim Hitchcock, and Robert Shoemaker, "Crime and Justice - Crimes  



Tried at the Old Bailey", Old Bailey Proceedings Online (www.oldbaileyonline.org,  



version 7.0, 12 October 2014):  "Crime, Justice and Punishment" / "Crimes Tried at the  



Old Bailey" / "Theft" / "Pickpocketing".  



                    This same crime of pickpocketing - and the phrase, "private stealing" -  

                                                                                                  



also applied to thefts committed by prostitutes whose clients were asleep or otherwise  



distracted.  Ibid .  



                    Thus, when Blackstone refers to cases where someone "privately steals  



sixpence from the person of another", he is referring to thefts that go undetected at the  

                                                              



time.  As Blackstone explains, if the thief "afterwards keeps [the sixpence] by putting  

                                                                                                                



[the owner] in fear, this is no robbery, for the fear is subsequent."  That is, if the thief's  

                                                         



use of force or intimidation occurs afterwards, as part of a separate transaction, then the  

       



thief has committed larceny and a separate assault, but not robbery.  



                    The  drafters  of  the  Model  Penal  Code  interpreted  the  passage  from  



Blackstone too broadly when they declared that, at common law, there was no robbery  

                                                                            



                                                             -1133-                                                     2448
  


----------------------- Page 14-----------------------

if the use of force occurred at any time after the moment of the taking.  The passage from  

                                                                                                       



Blackstone does not support this assertion.  



                    Instead, what Blackstone said on this subject is wholly consistent with the  

                                                           



rule stated in Perkins & Boyce :  there was no robbery at common law if the thief used  

                                                                                                          



force at a separate time to retain the property; but the crime of robbery did include the  

                                     



use of force during the same transaction as the act of taking.  



                    Returning to Gibson's case:   The intention of the drafters of the Model  

                                                                                           



Penal Code and the drafters of the Alaska criminal code was to expand the common-law  

                                                                           



definition of robbery.  The common-law definition of robbery already encompassed the  



conduct exhibited in Gibson's case.  This Court would therefore be thwarting the inten- 

                                                               



tion of the  legislature if we construed our second-degree robbery statute to exclude  

            



Gibson's conduct from the definition of robbery.   



                    For these reasons (in addition to the reasons explained in the lead opinion),  



I join my colleagues in affirming Gibson's conviction for second-degree robbery.  



                                                              -1144-                                                      2448
  

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