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Schlosser v. State (5/6/2016) ap-2498

Schlosser v. State (5/6/2016) ap-2498

                                                                                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                                                      



JEAN  L.  SCHLOSSER  JR.,  

                                                                                                                                                  

                                                                                                       Court of Appeals No. A-11405  

                                                                                                                                                              

                                                      Appellant,                                      Trial Court No. 3DI-11-021 CR  



                                         v.  

                                                                                                                    O   P   I   N   I   O   N  

STATE  OF  ALASKA,  



                                                      Appellee.                                             No.  2498  -  May  6,  2016  



                           Appeal   from   the   Superior   Court,  Third  Judicial   District,  

                                                                                                                                   

                           Dillingham, John W. Wolfe, Judge.  

                                                                                   



                           Appearances:  Glenda J. Kerry, Girdwood, under contract with  

                                                                                                                                             

                           the  Public  Defender  Agency,  and  Quinlan  Steiner,  Public  

                                                                                                                                       

                           Defender, Anchorage, for the Appellant.   Diane L. Wendlandt,  

                                                                                                                                

                           Assistant   Attorney   General,   Office   of   Criminal   Appeals,  

                                                                                                                                   

                           Anchorage, and Craig W. Richards,  Attorney General, Juneau,  

                                                                                                                                       

                           for the Appellee.  

                                                             



                           Before:  Mannheimer, Chief Judge, Allard, Judge, and Suddock,  

                                                                                                                                    

                           Superior Court Judge.*  

                                                                         



                                        

                           Judge MANNHEIMER.  



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



Constitution and Administrative Rule 24(d).                              


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

                                                                                                                     

                    The defendant in this case, Jean L. Schlosser Jr., was observed syphoning  



                                                                                                                   

gasoline from other people's vehicles.                        When a police officer arrived to  investigate,  



                                                                                                                                

Schlosser forcibly resisted the officer's attempts to take him into custody.  During the  



                                                                                                            

ensuing struggle, the officer sustained a permanent injury to his hand.  



                                                                                                                       

                    Based on this incident, Schlosser was convicted of  first-degree trespass,  



                                                                                                                          

fourth-degree theft,  resisting  arrest,  fourth-degree escape,  and second-degree assault  



                                                                       

(reckless infliction of serious physical injury).  



                                                                                                                               

                    In this appeal, Schlosser contends that the evidence presented at his trial  



                                                                                                                                     

was  not  legally  sufficient  to  support  his  convictions  for  assault,  escape,  and  theft.  



                                                                                                                         

Schlosser also contends that his convictions for resisting arrest,  escape,  and  assault  



                                                                                                                     

should be overturned because the trial judge did not give the jury a specific instruction  



                                                                                                                        

on the law of self-defense.   Finally,  Schlosser argues that his convictions for resisting  



                                                                                                                            

arrest and  escape should be reversed because the trial judge did not define the terms  



                                                                                                                                     

"resisted arrest", "actual restraint", and "substantial risk of physical injury" for the jury.  



                                                                                                                       

                    As we explain in this opinion, we agree with Schlosser that the evidence  



                                                                                                                                

was not sufficient to support his second-degree assault conviction because, under the  



                                                                                                                           

circumstances of this case,  it was not reasonably foreseeable that  the officer would  



                                                                                                                                

sustain protracted or permanent injury during his struggle with Schlosser.  However, we  



                                                                                                   

conclude that the remainder of Schlosser's claims are meritless.  



                              

           Underlying facts  



                                                                                                                        

                    On January 13,  2013,  in Dillingham,  Jean  Schlosser syphoned gasoline  



                                                                                                                              

from the tanks of other people's vehicles.  A bystander observed what Schlosser was  



                                                                                                                   

doing and alerted one of the vehicle owners, who in turn called the police.  



                                                               - 2 -                                                          2498
  


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

                                                                         Dillingham   Police   Sergeant   Daniel   Pasquariello   arrived   to   investigate.   



Pasquariello observed evidence of the gasoline syphoning, and he also discovered (from                                                                                                                                                                                                                                                                                                                                                                  



 checking with his dispatcher) that there was already a warrant for Schlosser's arrest in                                                                                                                                                                                                                                                                                                                                                                                    



 an unrelated matter.                                                                                           



                                                                         Pasquariello contacted Schlosser (who was still at the scene) and told him                                                                                                                                                                                                                                                                                                                 



that he was under arrest.                                                                                                                   But when Pasquariello directed Schlosser to put his hands                                                                                                                                                                                                                                                 



behind his back, Schlosser refused.                                                                                                                                                                 Schlosser then bolted sideways and ran from the                                                                                                                                                                                                                  



 officer.    



                                                                         Pasquariello pursued Schlosser, tackled him, and tried to hold him on the                                                                                                                                                                                                                                                                                                                    



ground and handcuff                                                                                                    him.     But   Schlosser continued to struggle:                                                                                                                                                                                                            he pulled himself                                           



upright and pulled himself from Pasquariello's grasp.                                                                                                                                                                                                                                          Pasquariello went after Schlosser                                                                                                    



 and again pulled him to the ground.                                                                                                                                                          Schlosser managed to grab the hood of a parked car                                                                                                                                                                                                                      



 and pull himself up once more.                                                                                                                                           The two men stood facing each other, with Pasquariello                                                                                                                                                                                     



holding onto Schlosser.                                                                                                          Then Schlosser shoved Pasquariello backwards.                                                                                                                                                                                                                                  Pasquariello  



 fell to the ground, but he was still holding onto Schlosser, and Schlosser fell on top of                                                                                                                                                                                                                                                                                                                                                                                



him.    



                                                                         When Pasquariello hit the ground, he felt an intense pain in his hand.                                                                                                                                                                                                                                                                                                                          It  



turned out that one of the bones in Pasquariello's hand had been broken in six places.                                                                                                                                                                                                                                                                                                                                                                                                    



This injury required surgery and the placement of a permanent metal plate to hold the                                                                                                                                                                                                                                                                                                                                                                                 



bone together.                                                                 At Schlosser's trial, Pasquariello testified that his hand was permanently                                                                                                                                                                                                                                                           



weakened, and that he had lost partial function of the hand.                                                                                                                                                                                                                                                                           



                                                                         Based on this episode, Schlosser was charged with first-degree trespass,                                                                                                                                                                                                                                                                                      



 fourth-degree theft,                                                                                         resisting arrest,                                                                       fourth-degree escape,                                                                                                       and second-degree assault                                                                                      

                                                                                                                                                                                                                                                             1           At trial, Schlosser argued that he was  

 (reckless infliction of serious physical injury).                                                                                                                                                                                                                                                                                                                                                                                                              



                   1                 AS 11.46.320(a)(1), AS 11.46.150(a), AS 11.56.700(a)(3), AS 11.56.330(a)(2), and                                                                                                                                                                                                                                                                                                                                                 



AS 11.41.210(a)(2), respectively.                                                                                                                                               



                                                                                                                                                                                                                                 - 3 -                                                                                                                                                                                                                             2498
  


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

                                                                                                                                 

not guilty of assault because Sergeant Pasquariello had used excessive force on him -  



                                                                                                                              

thus entitling Schlosser to use force against the officer to defend himself.                                          The jury  



                                                                                                   

rejected this defense and convicted Schlosser of all the charges.  



                                                                                                                     

          The  sufficiency  of  the  evidence  to  support  Schlosser's  conviction  for  

                                  

          second-degree assault  



                                                                                                                              

                    The  charge  of  second-degree  assault  required  the  State  to  prove  that  



                                                                                                                            

Schlosser  caused  serious  physical  injury  to  Sergeant  Pasquariello  and  that,  when  



                                                                                                                              

Schlosser did so, he was acting "recklessly" (as defined in AS 11.81.900(a)(3)) with  



                                                                    

respect to this potential result of his actions.  



                                                                                                                               

                    The evidence at Schlosser's trial was clearly sufficient to establish that  



                                                                                                                                 

Sergeant Pasquariello suffered a "serious physical injury" as that term is defined in  



                                                                                                                    

AS 11.81.900(b)(57)(B) - "physical injury that causes ... protracted loss or impairment  



                                                                                                                        

of the function of a body member".                          The evidence at Schlosser's trial was likewise  



                                                                                                                          

clearly sufficient to establish that Schlosser's actions were a legal cause of this serious  



                         

physical injury.  



                                                                                                                                      

                    But there is a problem as to the  remaining element of the State's proof:  



                                                                                                                           

proof that Schlosser acted "recklessly" with respect to the risk that his conduct would  



                               

produce this result.  



                                                                                                                                      

                    The culpable mental state of "recklessly" is defined in AS 11.81.900(a)(3).  



                                                                                                                            

This definition comprises two elements: first, an objective appraisal of the danger posed  



                                                                                                                            

by the defendant's conduct; and second, an inquiry into whether the defendant was aware  



                         

of this danger.  



                                                                                                                                  

                    The "objective appraisal" element of recklessly requires the government to  



                                                                                                                               

prove that, under the circumstances, there was a "substantial and unjustifiable risk" that  



                                                               - 4 -                                                          2498
  


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

                                                                                                                                   

the prohibited result would occur.   This phrase ("substantial and unjustifiable risk") is  



                                                                                                                                   

defined in the statute as "[a] risk ... of such a nature and degree  that  disregard of it  



                                                                                                                           

constitute[d] a gross  deviation from the standard of conduct that a reasonable person  



                                  

would observe in the situation[.]"  



                                                                                                                             

                     The "awareness" element of recklessly requires the government to prove  



                                                                                                                                   

either (1) that the defendant "[was] aware of and consciously disregard[ed]" this risk, or  



                                                                                                                              

(2) that the defendant "would have been aware [of this risk] had [the defendant] not been  



                      

intoxicated".  



                                                                                                                                 

                     In Schlosser's case, the government was required to prove that, given the  



                                                                                                                                  

circumstances  of   Schlosser's  struggle  with  Sergeant   Pasquariello,   there  was  a  



                                                                                                                            

"substantial and unjustifiable risk" that the officer would suffer serious physical injury  



                                                                                                                               

-  a  risk  of  serious  physical injury  so  great  that  Schlosser's  disregard  of  this  risk  



                                                                                                                           

constituted a "gross  deviation from the standard of conduct that a reasonable person  



                                                  

would observe in the situation".  



                                                                                                                          

                     Even viewing the evidence in the light most favorable to the jury's verdict,  



                                                                                                                           

Schlosser's actions did not give rise to a "substantial and unjustifiable" risk of serious  



                                                                                                     

physical injury (as that phrase is defined in AS 11.81.900(a)(3)).  



                                                                                                                                

                     Schlosser  broke  away  and  ran  from  Sergeant  Pasquariello  when  the  



                                                                                                                      

sergeant initially tried to handcuff him.  After Pasquariello chased and tackled Schlosser,  



                                                                                                                                

Schlosser struggled with Pasquariello on the ground.  Schlosser was able to get to his feet  



                                                                                                                               

again, and he continued to struggle with Pasquariello.  Schlosser turned around to face  



                                                                                                                                  

Pasquariello, and then he pushed Pasquariello to the ground.   As Pasquariello fell, he  



                                                                                                                    

held on to Schlosser, so that Schlosser landed on top of him.  At that point, apparently,  



                                                                     

Pasquariello suffered the injury to his hand.  



                                                                                                                       

                     All of Schlosser's actions consisted of wrestling, pushing, and otherwise  



                                                                                                                      

struggling to  escape  Pasquariello's  control.                        There  was  no  evidence  that  Schlosser  



                                                               - 5 -                                                          2498
  


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

                                                                                                                       

punched,  kicked,  or  did  anything  else  to  inflict  blunt  force  trauma  on  Sergeant  



                       

Pasquariello.  



                                                                                                                           

                     Clearly,  there is always some risk that someone's bone may be broken  



                                                                                                                                

when people push, tackle, or wrestle with each other.  But if the pushing, tackling, and  



                                                                                                                                  

wrestling are within typical bounds, the possibility that someone might break a bone -  



                                                                                                                               

while certainly real - is not a likely outcome.  More specifically, the breaking of a bone  



                                                                                                                                

in  such  circumstances  is  not  so  likely  an  outcome  that  the  law  views  all  of  the  



                                                                                                                      

participants as guilty of a "gross deviation from the standard of conduct that a reasonable  



                                                               

person would observe in the situation".  



                                                                                                                           

                     If we were to rule otherwise, we would effectively be declaring that anyone  



                                                                                                                      

who engages in unarmed wrestling or tussling with another person is acting recklessly  



                                                                                                                              

with regard to the possibility that serious physical injury will ensue.   We do not think  



                                                                  

that the legislature intended such a result.  



                                                                                                                     

                     For these reasons, we conclude that the evidence presented at Schlosser's  



                                                                                                              

trial was legally insufficient to support his conviction for second-degree assault.  



                                                                                                                    

          A separate problem:   the jury  instructions and the prosecutor's final  

                                                                          

          argument as to whether Schlosser acted "recklessly"  



                                                                                                                     

                     Although we have just explained why the State's evidence was insufficient  



                                                                                                                             

to support a conviction for second-degree assault, we also wish to point out that, given  



                                                                                                                    

the prosecutor's final argument to the jury, and given the jury instructions in Schlosser's  



                                                                                                                             

case, it is quite possible that Schlosser's jury was misled as to what the State had to prove  



                                                                       

to establish that Schlosser acted "recklessly".  



                                                                                                                              

                     Schlosser's jury was instructed that if an element of a crime requires proof  



                                                                                                                           

that the defendant acted "recklessly", that element is satisfied if the government proves  



                                                               - 6 -                                                          2498
  


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

                                                                                                                               

that  the  defendant  acted  "intentionally".                       This  jury  instruction  was  based  on  the  



                                                                                                                       

provisions of AS 11.81.610(c) - but the instruction was not a completely accurate  



                                                           

rendering of what this statute means.  



                                                                                                                                   

                    The purpose of AS 11.81.610(c) is to clarify that when an element of a  



                                                                                                                                

crime requires proof that the defendant acted with a particular culpable mental state, the  



                                                                                                                

government is allowed to prove that the defendant acted with  a  more blameworthy  



                                                                             

culpable mental state than the one specified in the statute.  



                                                                                                                  

                    For  instance,  if a statute requires proof that the defendant "recklessly"  



                                                                                                                                

caused a result, that element of the crime is satisfied if the government proves that the  



                                                                                                                            

defendant "intentionally" caused the result.  In other words, if the crime requires proof  



                                                                                                                                  

that the defendant recklessly disregarded the possibility that their conduct would lead to  



                                                                                                                     

a particular result, this element is satisfied if the government proves that the defendant  



                                                                                                                           

acted "intentionally" with respect to the specified result - i.e., if the government proves  



                                                                                                                      

that, rather than merely disregarding the risk that this result would occur, the defendant  



                                                                                                                              

acted with the conscious objective to cause this result.  See AS 11.81.900(a)(1)  (the  



                                             

definition of "intentionally").  



                                                                                                                             

                    But this rule does not allow the government to prove that a defendant acted  



                                                                                                                             

recklessly with respect to one element of the crime by showing that the defendant acted  



                                                                                           

intentionally with respect to another element of the crime.  



                                                                                                                         

                    In  Schlosser's  case,  for  instance,  the  charge  of  second-degree  assault  



                                                                                                                                

required the government to prove that Schlosser acted "recklessly" with respect to the  



                                                                                                                               

result of "serious physical injury".                    The government was not allowed to satisfy this  



                                                                                                                            

burden by proving that Schlosser acted "intentionally" with respect to a different result  



                                                                                                                     

specified in a different element of the charges. But in the prosecutor's opening statement,  



                                                                                                                              

and in her summation to the jury, the prosecutor told the  jurors to interpret the jury  



                                                                     

instruction in exactly this improper manner.  



                                                               - 7 -                                                          2498
  


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

                                                                                                                     

                     In both her opening statement and in her closing argument, the prosecutor  



                                                                                                                                 

argued - mistakenly - that if Schlosser "intentionally" broke Pasquariello's grip, or  



                                                                                                                              

if Schlosser "intentionally"  tried to escape from custody,  then (as a matter of law)  



                                                                                                                  

 Schlosser necessarily acted "recklessly" with respect to the possibility that Pasquariello  



                                                                                                                       

would suffer serious physical injury.  In making this argument, the prosecutor explicitly  



                                                                                                                                

relied on the jury instruction we have been discussing - the instruction which told the  



                                                                                                                               

jurors that when the government must prove that the defendant acted "recklessly", this  



                                                                                                                      

burden of proof is satisfied by proof that the defendant acted "intentionally".  



                                                                                                                               

                     This  argument was improper.                     Although AS 11.81.610(c) declares that  



                                                                                                                        

proof  of  a  higher culpable mental state may substitute for proof of a lower culpable  



                                                                                                                                  

mental state, this rule operates only when both culpable mental states are being used in  



                                                                     

reference to the same element of the crime.  



                                                                                                                            

                     For  instance,  if  the  government  must  prove  that  a  defendant  acted  



                                                                                                                                

"recklessly" with respect to a particular result specified in the definition of the crime, the  



                                                                                                                            

government is not allowed to prove this element by showing that the defendant acted  



                                                                                                                                

"intentionally" with respect to some other result specified in a different element of the  



                                                                                                                  

charges.   Likewise, if the government must prove that a defendant acted "recklessly"  



                                                                                                                                

with respect to a particular circumstance specified in the definition of the  crime, the  



                                                                                                                            

government is not allowed to prove this element by showing that the defendant acted  



                                                                                                                                  

"knowingly" with respect to some other circumstance specified in a different element of  



                     

the charges.  



                                                                                                                               

                     We  caution trial judges to be attentive to this limitation,  since it is not  



                                                                                                                         

expressly  spelled  out  in  our  criminal  pattern  jury  instructions.                                  And  we  caution  



                                                                                                                   

prosecutors not to repeat the type of argument that the prosecutor made in Schlosser's  



          

case.  



                                                               - 8 -                                                          2498
  


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

                       Schlosser's   arguments   that   the   evidence   presented   at   his   trial   was  

                       insufficient to support his convictions for escape and theft                                                                                                                      



                                             In   addition to challenging the sufficiency of the evidence to support his                                                                                                                                                         



 conviction   for   second-degree   assault,   Schlosser   also   argues   that   the   evidence   was  



 insufficient to support his convictions for escape and for the theft of gasoline.                                                                                                                                                                                     More  



 specifically,   Schlosser contends that the evidence fails to establish that he was ever                                                                                                                                                                                    



 placed in "actual restraint" by Sergeant Pasquariello, and that the evidence fails to show                                                                                                                                                                                



 that he actually obtained any gasoline through his clandestine syphoning efforts.                                                                                                                                                                                    



                                            Viewing the evidence (and the reasonable inferences to be drawn from it)                                                                                                                                                                 



 in the light most favorable to the jury's verdicts, we conclude that fair-minded jurors                                                                                                                                                                               



 could find that the State had proved these elements beyond a reasonable doubt.                                                                                                                                                                                               We  



                                                                                                                                                                                                                                                                       2  

 therefore reject Schlosser's arguments that the evidence was legally insufficient.                                                                                                                                                                                        



                       Schlosser's argument that the trial judge committed error by not fully  

                                                                                                                                                                                                                                                      

                       instructing the jury on the law of self-defense  

                                                                                                                                      



                                            At Schlosser's trial, his attorney raised the defense of self-defense  with  

                                                                                                                                                                                                                                                                            



 regard to the charge of resisting arrest.  But when Schlosser's attorney asked the trial  

                                                                                                                                                                                                                                                                               



judge  to  give  the  jurors  an  instruction  detailing  the  law  of  self-defense,  the  judge  

                                                                                                                                                                                                                                                                        



 declined to do so.  The judge declared that such an instruction was not needed, since the  

                                                                                                                                                                                                                                                                                  



jury instruction on the elements of resisting arrest already informed the jurors  that  a  

                                                                                                                                                                                                                                                                                       



 person could not use force to resist an arrest unless the officer making the arrest used  

                                                                                                                                                                                                                                                                            



 excessive force.  

                                                        



            2          See,  e.g.,  Eide v. State                                            , 168 P.3d 499, 500-01 (Alaska App. 2007).                                                                                                



                                                                                                                                        - 9 -                                                                                                                                  2498
  


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

                                                                                                                                   

                     On appeal, Schlosser points out that, because the judge declined to give a  



                                                                                                                             

separate  and  more  complete  instruction  on  self-defense,  the  jurors  might  not  have  



                                                                                                                               

understood certain aspects of the law of self-defense - for instance, the principle that  



                                                                                                                        

a person can act in self-defense, not only if they are actually being subjected to unlawful  



                                                                                                                                  

force, but also if they honestly and reasonably believe that they are being subjected to  



                                                                                                                          

unlawful force.  The State concedes that Schlosser is right - that Schlosser was entitled  



                                                                          

to a more complete instruction on self-defense.  



                                                                                                                            

                     However, we conclude that the  trial judge's error was harmless.   Even  



                                                                                                                            

without  a  separate  self-defense  instruction,  Schlosser's  attorney  was  able  to  argue  



                                                                                                                     

 Schlosser's self-defense claim to the jury - i.e., to argue that Schlosser was authorized  



                                                                                                                        

to use force to resist Sergeant Pasquariello,  and to try to escape from him,  because  



                                                                                                             

Pasquariello used unreasonable (i.e., excessive) force upon Schlosser.  



                                                                                                                    

                     The defense attorney's argument did not rest on notions  of reasonable  



                                                                                                                                

mistake, or on any of the less familiar aspects of the law of self-defense.   Rather, the  



                                                                                                                  

defense attorney  asserted that Schlosser acted to defend himself when Pasquariello  



                                                                                                                                

subjected him to excessive force.  The defense attorney also told the jurors that it was the  



                                                                                                                                 

 State's  burden  to  disprove  (beyond  a  reasonable  doubt)  Schlosser's  assertion  of  



                                                                                                                                 

excessive force.  And the prosecutor did not dispute that the State bore this burden of  



            

proof.  



                                                                                                                               

                     Given the way Schlosser's case was litigated,  we  conclude that the trial  



                                                                                                                               

judge's failure to give the jurors a complete instruction on the law of self-defense was  



                         

harmless error.  



                                                              -  10 -                                                         2498
  


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

                                                                                                                       

          Schlosser's argument that the trial judge committed error by not giving the  

                                                                                                                      

          jurors more explicit instruction on the legal meaningof"resist arrest" and  

                                                        

           "substantial risk of physical injury"  



                                                                                                                                

                     During  the  jury's  deliberations,  the  jury  asked   the   trial  judge  for  



                                                                                                                                       

clarification of a phrase used in the instruction defining the elements of resisting arrest.  



                                                                                                                                  

Specifically, the jury asked the judge what was meant by the phrase "resisted arrest by  



                                                                                                                           

any means that created a substantial risk of physical injury to another person".  



                                                                                                                               

                     When the trial judge received the jury's note, he asked the attorneys how  



                                                                                                                               

they thought he should proceed.  Both attorneys counseled the judge to do nothing.  The  



                                                                                                                   

prosecutor said that this was an issue of fact for the jury to decide, and Schlosser's  



                                                                                                                                       

attorney told the judge, "[J]ust say, 'No more precise definition is possible.'  Period."  



                                            

So the judge told the jurors:  



                       

                                                                                                             

                               This is a factual determination that must be made by  

                                                                                                                  

                     the jury.  No more precise definition of this term is available.  



                                                                                                                                

                    Now, on appeal, Schlosser claims that the judge's response to the jury was  



                                                                                                                                 

plain error - that the judge should have given the jurors substantive guidance on the  



                                                                                                                                  

meaning of the phrase "resisted arrest by any means that created a substantial risk of  



                                                                                                                            

physical injury to another person".   More specifically, Schlosser argues that the jurors  



                                                                                                                              

needed to receive a fuller explanation of what constitutes  "resisting arrest" and what  



                                                                

constitutes a "substantial risk of physical injury".  



                                                                                                                                  

                     We disagree with  Schlosser's claim of plain error.                               First,  this is not an  



                                                                                                                                

instance of plain error;  it is an instance of invited error.   Schlosser's attorney did not  



                                                                                                                          

merely  fail to  object  to  the  wording of  the  judge's  response  to  the  jury.                                     Rather,  



                                                                                                                           

Schlosser's attorney expressly urged the judge to tell the jurors,  "'No  more precise  



                                                                                                   

definition is possible.'  Period."  And that is what the judge did.  



                                                              -  11 -                                                         2498
  


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

                            Moreover, Schlosser's case does not present an instance of clear injustice                                                             



where we would intervene to correct an invited error.                                                             Given the facts of Schlosser's            



case, there was no                        reasonable dispute that Schlosser "resisted arrest" as that term is                                                                   



                                                3  

defined in Alaska law.                                                                                                                                                        

                                                      The issue was whether Schlosser was  justified in doing so  



                                                                                                    

because of the officer's use of excessive force.  



                                                                                                                                                          

                            And as to whether Schlosser's conduct - pushing Sergeant Pasquariello  



                                                                                                                                                                                 

and wrestling with him - created a substantial risk of physical injury (as opposed to a  



                                                                                                                                                                         

substantial risk of serious physical injury), Schlosser has failed to suggest, even now,  



                                                                                                                                                                         

how the phrase "substantial risk of physical injury" could have been clarified in a way  



                                                                                                                                            

that might reasonably have led the jury to reach a different verdict.  



                                                                                                                             

                            We therefore reject Schlosser's claim of error.  



                                                                                                                                                                

              Schlosser's argument that the trial judge committed error by not giving the  

                                                                                                                                                 

             jurors more explicit instruction on the legal meaning of "actual restraint"  



                                                                                                                                                                        

                            Schlosser raises one more claim on appeal:  he contends that the trial judge  



                                                                                                                                                                          

committed error by not responding to the  jury's  request for clarification of the term  



                                                                                                                                                                          

"actual restraint".  (Schlosser was charged with escape on the theory that, "having been  



                                                                                                                                                                  

placed in actual restraint by a peace officer before arrest", Schlosser "removed himself"  



                                                                                              

from that restraint without lawful authority.)  



                                                                                                                                                                  

                            The record of the superior court proceedings indicates that the jury prepared  



                                                                                                                                                                    

a note asking the judge for clarification of the term "actual restraint".   There is nothing  



                                                                                                                                                                           

in the record to indicate that the trial judge ever responded to this note.   Based on this,  



       3      See Velarde v. State                     , 353 P.3d 355, 358-59 (Alaska App. 2015);                                               Eide v. State            , 168   



P.3d 499, 501-02 (Alaska App. 2007).                                         



                                                                                    -  12 -                                                                               2498
  


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

 Schlosser contends that the trial judge committed error by declining to answer the jury's                                                                                                                                                   



 request.   



                                        For two separate reasons, Schlosser has failed to adequately preserve this                                                                                                                                  



 issue for review.                                  



                                        First, Schlosser has failed to present this Court with a record of the trial                                                                                                                               



 court proceedings sufficient to demonstrate                                                                                         the occurrence of the claimed error, and                                                                      



 sufficient to allow this Court to review the matter.                                                                                                



                                        It is true that there is                                   nothingin                     the record of the superior court proceedings                                               



 to show that the trial judge responded to the jury's note.                                                                                                          But there is also nothing in the                                                



 record   to show that the judge ever                                                                      received  this note, or that the judge ever made a                                                                                             



 decision concerning it.                                            As the appellant (                                 i.e., the party challenging the judgement of the                                                                               



 trial   court),   Schlosser   has   the   burden   to   present   this   Court   with   a   record   that  

                                                                                                                                                    4  The current record does not do that.  

 demonstrates the occurrence of the error he claims.                                                                                                                                                                                                            



 If  Schlosser  believed  that  the  record  of  the  trial  court  proceedings  needed  to  be  

                                                                                                                                                                                                                                                      



 supplemented or reconstructed to show that the trialjudge received the jury's request and  

                                                                                                                                                                                                                                                    



 declined to answer it, our Appellate Rules gave Schlosser the means of requesting this  

                                                                                                                                                                                                                                                    

                                                                                                       5     But the current record is not adequate to support  

 supplementation or reconstruction.  

                                                                                                                                                                                                                                        



 Schlosser's claim of error.  

                                                                                



                                        Second, Schlosser has failed to adequately brief his claim of error.   Even  

                                                                                                                                                                                                                                              



 if we assume that the trial judge received the jury's note and decided not to respond to  

                                                                                                                                                                                                                                                         



 the note, Schlosser's briefs to this Court offer no suggestion as to what sort of answer the  

                                                                                                                                                                                                                                                      



judge  should  have  given  the  jury.                                                                         Schlosser  presents  no  argument  as  to  how  the  

                                                                                                                                                                                                                                                    



          4         Miscovich v. Tryck                                    , 875 P.2d 1293, 1304 (Alaska 1994);                                                                          Ketchikan Retail Liquor                            



Dealers Ass'n v.                                Alcoholic Beverage Control Board , 602 P.2d 434, 438-39 (Alaska 1979);                                                                                                                      

Natkong v. State                                , 925 P.2d 672, 676 (Alaska App. 1996).                                                                           



           5  

                                                                                                                    

                    See Alaska Appellate Rule 210(i).  



                                                                                                                        -  13 -                                                                                                                    2498
  


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

                                                                                                                               

everyday definition of "actual restraint" might have been inadequate or misleading to the  



                                                                                                                           

jurors under the facts of his case, and he offers no suggestion as to how the judge might  



                                                                                                                            

have explained the term "actual restraint" in a manner that would have materially aided  



                                                              

the jurors in understanding this concept.  



                                                                                                                              

                     For these reasons, we conclude that Schlosser has failed to preserve this  



                        

claim of error.  



           Conclusion  



                                                                                                                                

                     Schlosser's conviction for second-degree assault is REVERSED, but in all  



                                                                                                                            

other respects the judgement of the superior court is AFFIRMED.   The superior court  



                                                                                                                            

will have to re-sentence Schlosser, and the State may conceivably ask the superior court  



                                                                                                                               

to enter judgement against Schlosser for fourth-degree assault. We therefore remand this  



                                                                                                                       

case to the superior court for further proceedings consistent with this opinion.  



                                                              -  14 -                                                        2498
  

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