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Belarde v. State (5/20/2016) ap-2500

Belarde v. State (5/20/2016) ap-2500

                                                                               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                                                     



JESSE  CECIL  BELARDE,  

                                                                                                                                                 

                                                                                                      Court of Appeals No. A-11321  

                                                                                                                                                                

                                                      Appellant,                                  Trial Court No. 3AN-10-12993 CR  



                                        v.  

                                                                                                                    O  P  I  N  I  O  N  

                                                                                                                                                 

STATE  OF  ALASKA,  



                                                      Appellee.                                           No. 2500 - May 20, 2016  

                                                                                                                                                     



                           Appeal   from  the   Superior   Court,  Third  Judicial                                                  District,  

                                                                                                                                  

                           Anchorage, Michael L. Wolverton, Judge.  

                                                                                               



                           Appearances:                 Whitney G. Glover, Assistant Public Advocate,  

                                                                                                                                 

                           Appeals  and  Statewide  Defense  Section,  and  Richard  Allen,  

                                                                                                                                        

                           Public Advocate, Anchorage, for the Appellant.  Ann B. Black,  

                                                                                                                                        

                           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 Coats,  

                                                                                                                                        

                           Senior Judge.*  

                                                        



                                        

                           Judge MANNHEIMER.  



       *      Sitting   by   assignment   made   pursuant   to   Article   IV,   Section   11   of   the   Alaska  



Constitution and Administrative Rule 23(a).                             


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

                                                                                                                           

                    Jesse Cecil Belarde and two friends, Rolando Barlow and Robert Smith,  



                                                                                                                                

entered  an  Anchorage  Fred  Meyer  store  for  the  purpose  of  stealing a  battery  for  



                        

Belarde's car.  



                                                                                                                                

                     (Belarde's car had recently broken down, and it was inoperable unless the  



                                                                                                                                

battery  was  recharged.   After concluding that it would take too long to recharge the  



                                                                                                                           

battery, Belarde borrowed another car, and he and his friends went looking for a battery  



                

to steal.)  



                                                                                                                               

                    Inside the Fred Meyer store, Belarde went to the car battery section and  



                                                                                                                          

identified the correct battery for his vehicle.  His friend Smith then picked up the battery  



                                                                                            

and attempted to carry it out of the store (without paying).  



                                                                                                                             

                    Two of the store's loss-prevention employees intercepted Smith in the arctic  



                                                                                                                                     

entry.      Smith  dropped  the  battery  and  punched  one  of  the  employees  in  the  face.  



                                                                                                                                      

Belarde's other friend, Barlow, then hit the other loss-prevention employee in the face.  



                                                                                                                         

At this point, Smith pulled a pistol from his waistband, chambered a round, and ordered  



                                                                                                                                

the loss-prevention employee to back away.  Belarde then picked up the battery from the  



                                                                                              

floor, and he and his friends left the store (with the battery).  



                                                                                                                                

                    Based on this incident,  Belarde was convicted of both the theft of the  



                                                                                                                              

battery and first-degree robbery.                     The robbery charge was based on the theory that  



                                                                                                                             

Belarde and his accomplices took the battery from the immediate presence of the store  



                                                                                                                         

employees through the use of force (the basic crime of second-degree robbery as defined  



                                                                                                                                

in AS 11.41.510(a)), and by threatening the employees with a pistol (thus elevating the  



                                                                                               

crime to first-degree robbery as defined in AS 11.41.500(a)).  



                                                                                                                              

                    In this appeal, Belarde argues that his first-degree robbery conviction must  



                                                                                                                              

be  reversed  because  his  jury  was  misinstructed  regarding  the  rules  for  when  one  



                                                                                                                                

accomplice to a crime (in this case, Belarde) can be held legally accountable for the  



                                                                                                        

intentions of another accomplice to the crime (in this case, Smith).  



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

                                                                                                                                

                    We agree with Belarde that there was a flaw in the jury instruction on the  



                                                                                                                              

elements of first-degree robbery. But we conclude that, given the facts of Belarde's case  



                                                                                                                                  

and the way in which the case was argued to the jury, there is no chance that the flaw in  



                                                                                                                         

the jury instruction affected the jury's verdict.  We therefore affirm Belarde's robbery  



                   

conviction.  



                                                                               

          A more detailed look at Belarde's claim on appeal  



                                                                                                                                

                    Belarde acknowledges that he was properly found guilty of stealing the car  



                                                                                                                                 

battery.  (In fact, when Belarde's trial attorney delivered his summation to the jury, he  



                                                                                                                         

conceded that Belarde should be convicted of theft.)  But Belarde argues that his robbery  



                                                                                                                                

conviction should be reversed because of a faulty clause in the jury instruction on the  



                                                    

elements of first-degree robbery.  



                                                                                                                                 

                    Belarde's attack on the jury instruction is based on  the  defense that he  



                                                                                                                                

offered at trial.  Belarde testified that, when he picked up the battery and ran out of the  



                                                                                                                         

store, he was unaware that Smith had used a pistol to threaten the employees.  



                                                                                                                                

                     (Belarde asserted that he had been using his mobile phone as he walked out  



                                                                                                                              

of the store,  and thus his attention was initially distracted away from  the  fight that  



                                                                                                                        

occurred  between Smith,  Barlow,  and the two loss-prevention employees.                                               Belarde  



                                                                                                                          

declared that he remained unaware that Smith had used the pistol until they were driving  



                                                                                                                               

away from the store, when he listened to Smith and Barlow recounting the events that  



                                

had just occurred.)  



                                                                                                                       

                    Turning to the jury instruction on the elements of first-degree robbery,  



                                                                                                                              

paragraph 3 of this instruction told the jurors that the State was required to prove that  



                                                                                                                                

"[Belarde] or another participant intended to prevent or overcome ... resistance to the  



                                                                                                                       

taking of the property [by using force]".   (Emphasis added)  Pointing to this italicized  



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

                                                                                                                                 

language,  Belarde  argues  that  this  jury  instruction  improperly  deprived  him  of  his  



                                                                                                                               

defense to the first-degree robbery charge - because this instruction told the jurors that,  



                                                                                                                     

as long as Smith intended to accomplish the taking by armed force (i.e., by threatening  



                                                                                                                         

the store employees with a pistol), it did not matter whether Belarde personally intended  



                                                       

to accomplish the taking by force.  



                                                                                                                         

                     Belarde's trial attorney did not object to the jury instruction, so Belarde  



                                                                                                                   

must now show that the challenged jury instruction constituted plain error.  



                                                                                                                      

          Even if the challenged jury instruction was flawed, we conclude that any  

                                                                                                                       

          error was harmless, given the way this case was litigated and argued to the  

          jury  



                                                                                                                                  

                     Under the definition of robbery codified in AS 11.41.510(a), the theft or  



                                                                                                                         

attempted  theft  of  property  from  the  immediate  presence  and  control  of  another  



                                                                                                                                

constitutes  robbery  if,  during  the  course  of  the  taking  (or  attempted  taking),  the  



                 

defendant  



                      

                                                                                                            

                    uses [force] or threatens the immediate use of force upon any  

                                                                                                  

                    person with [the] intent to ... prevent or overcome resistance  

                                                                                                    

                     to the taking of the property or the retention of the property  

                                                  

                     after [the] taking.  



                                                                                                                              

                     On appeal, Belarde implicitly concedes that if Smith threatened the Fred  



                                                                                                                          

Meyer employees with a pistolto overcome their resistance to the theft of the car battery,  



                                                                                                                         

this would constitute a robbery - and would, in fact, constitute a first-degree robbery  



                                                                                                                                 

under AS 11.41.500(a)(1), which covers all cases of robbery where the defendant "is  



                                                                                                                     

armed with a deadly weapon or represents by words or other conduct that [the defendant]  



                                                                              

or another participant [in the taking] is so armed".  



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

                                                                                                                               

                    Belarde's claim of plain error rests on the premise that even if Smith and  



                                                                                                                               

Barlow committed robbery by striking the Fred Meyer loss-prevention employees, and  



                                                                                                                         

even if that robbery became a first-degree robbery when Smith drew the pistol, Belarde  



                                                                                                                                 

himself would be innocent of robbery if he did not personally intend for the theft to be  



                                                                                                                             

accomplished by force.  Based on this premise, Belarde argues that it was obvious error  



                                                                                                                              

for the trial judge to instruct the jurors that it was sufficient for the State to prove that  



                                                                                                                                

either  Belarde  or  Smith  or  Barlow  used  force  with  the  intent  of  preventing  or  



                                                                              

overcoming resistance to the taking of the battery.  



                                                                                                        

                The  "natural  and  probable  consequences"  theory  of  accomplice  

               liability  



                                                                                                                              

                    Belarde's argument ignores  the  criminal law doctrine that a person who  



                                                                                                                                 

participates in a joint criminal enterprise (such as the theft in this case) is deemed  to  



                                                                                                                              

intend  the  natural  and  probable  consequences  of  that  enterprise  -  including  any  



                                                                                                                                      

reasonably foreseeable related criminaloffenses committed by the person's accomplices.  



                                                                                                                              

United States v. Barnett, 667 F.2d 835, 841 (9th Cir. 1982); People v. Durham, 449 P.2d  



                                                                                                                            

198, 204; 74 Cal.Rptr. 262, 269 (Cal. 1969).  See also Vaden v. State, 768 P.2d 1102,  



                                                                          

1111 (Alaska 1989) (Justice Burke, dissenting).  



                                                                                                                               

                    As the California Supreme Court explained in People v. Prettyman, 926  



                                                                                                    

P.2d 1013, 1019-1020; 58 Cal.Rptr.2d 827, 833-34 (Cal. 1996):  



                      

                                                                                                 

                               At common law, a person  encouraging or facilitating  

                                                                                                            

                    the commission of a crime could be held criminally liable not  

                                                                                                              

                    only for that  crime,  but for any other offense that was a  

                                                                                                           

                    "natural and probable consequence" of the crime aided and  

                                  

                    abetted.  



                                                               - 5 -                                                          2500
  


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

                        Although legal commentators have questioned whether it is proper to hold                                                



 accomplices liable for all reasonably foreseeable crimes committed in pursuance                                                                of a   

                                   1  most courts adhere to the "natural and probable consequences"  

criminal enterprise,                                                                                                         



doctrine.  See Wayne R. LaFave, Substantive Criminal Law (2nd ed. 2003),  13.3(b),  

                                                                                                                                         



Vol. 2, pp. 360-63 (criticizing the doctrine but describing it as the "established rule").  

                                                                                                                                                        



And under this doctrine, if the  jury concluded that it was reasonably foreseeable that  

                                                                                                                                                



 Smith would threaten the loss-prevention officer with a firearm,  then Belarde  could  

                                                                                                                                             



properly be found guilty of first-degree robbery.  

                                                                                      



                        There  is  no  Alaska  case  expressly  adopting the  "natural and  probable  

                                                                                                                                       



consequences" doctrine of accomplice liability.  And, in any event, it is a jury question  

                                                                                                                                         



whether an accomplice's crime was "reasonably foreseeable" under the facts of a given  

                                                                                                                                              



case - and Belarde's jury was not asked to resolve this question.  

                                                                                                                     



                        The  foregoing discussion  of  the  "natural and  probable  consequences"  

                                                                                                                             



doctrine is relevant only because Belarde's attack on the jury instruction is raised as a  

                                                                                                                                                     



claim of plain error.  That is, Belarde must show that it was obvious error for the trial  

                                                                                                                                                



judge to instruct the jurors that Belarde could be convicted of robbery if  any participant  

                                                                                                                                     



in the theft (Belarde or Smith or Barlow) used force or threatened the use of force to  

                                                                                                                                                    



prevent or overcome resistance to the theft of the battery.  The "natural and probable  

                                                                                                                                        



consequences" doctrine is the predominant rule in American jurisdictions; and under this  

                                                                                                                                                 



doctrine, the challenged jury instruction was not obvious error - indeed, it was not error  

                                                                                                                                               



 at all - so long as the jurors found that Belarde's accomplice's  use  of  force was  

                                                                                                                                                



reasonably foreseeable.  

                                            



                        But to resolve Belarde's case, we need not decide whether to adopt the  

                                                                                                                                                 



"natural and probable consequences" doctrine of accomplice liability - because there  

                                                                                                                                              



      1     See  Joshua Dressler,               Understanding Criminal Law                        (1987)  30.05, p. 427.          



                                                                        - 6 -                                                                  2500
  


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

                                                                                                                              

is  a  second,  more  case-specific  reason  why  we  conclude  that  the  challenged  jury  



                                                 

instruction was not plain error.  



                                                                                                                      

                Why we conclude that any flaw in the jury instruction was cured by the  

                                                   

               final arguments of the parties  



                                                                                                                               

                    As we explained earlier, Belarde's theory of defense was that (1) he was  



                                                                                                                                   

unaware that Smith had threatened the Fred Meyer loss-prevention employees with a  



                                                                                                                           

pistol, and that (2) even if Smith did threaten the Fred Meyer employees with the pistol,  



                                                                                                                                  

Belarde himself never intended to accomplish the theft of the battery through the use of  



           

force.  



                                                                                                                                

                    In response to this offered defense, the prosecutor told the jurors that the  



                                                                                                                                

State was required to prove (1) that Belarde was, indeed, personally aware that Smith had  



                                                                                                                             

drawn  a  gun  on  the  Fred  Meyer  employees,  and  (2)  that  Belarde  knowingly  took  



                                                                                                                    

advantage of this situation to grab the battery, knowing that the Fred Meyer employees  



                                                                                                                        

had been intimidated and were no longer actively attempting to stop the theft.  



                                                                                                                      

                    The prosecutor reminded the jurors of the testimony given by Belarde's  



                                                                                                                         

accomplice, Barlow, and the testimony given by the detective who interviewed Belarde  



                                                                                                                                

following his arrest.  Between them, these two witnesses testified that Belarde did see  



                                                                                                                                     

Smith take out the gun, and saw one of the Fred Meyer employees with his hands up.  



                                                                                                                          

At that point, according to Barlow's testimony, Belarde said, "Fuck that.  I'm not leaving  



                                                                                 

[the battery] here." - and he picked up the battery.  



                                                                                                                              

                    The prosecutor argued that Belarde, despite his protests of ignorance, must  



                                                                                                                                  

have seen what was going on - and that Belarde, at that instant, formed the intent to  



                                                                                                                        

take advantage of Smith's use of force by completing his theft of the battery, knowing  



                                                                                                                                

that the Fred Meyer employees had been threatened into ceasing their resistance to the  



          

theft:  



                                                               - 7 -                                                          2500
  


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

  

                                                                                      

          Prosecutor :  [The crime of] robbery ... requires [an]  

                                                                                        

assault - [a] threat, [a] show of force - and it requires [a]  

                                                                                       

taking.   You need both.                In this case, Rolando Barlow and  

                                                                                

Robert Smith were the use of force,  ...  and Jesse Belarde  

                                                                                      

completed  the  taking.                 And,  together,  that  created  the  

               

robbery.  



                                                                                         

          It's pretty convenient for Mr. Belarde at this point to  

                                                                             

say, ... "I don't remember seeing the gun; I don't remember  

                                                                                      

looking around."              [But]  I  encourage  you  to  go  back  and  

                                                                                 

watch the video.   ...            Mr.  Belarde is in there, he's moving  

                                                                                 

around.        He's watching what's going on, and he's actively  

                                                                                       

involved.        He comes towards Jonathan Canaii [one of the  

                                                                                       

store's loss-prevention officers] with his hand out.  You can  

                                                                                              

see him do that.  [Belarde says that] he doesn't remember.  

                                                                                              

[But] he is an active and willing participant in this robbery.  

                 

          .   .  .  



                                                                                         

          Jesse Belarde tells loss-prevention officer Canaii to let  

                                                                                      

[Robert] Smith go.   Let  him  go.                     And you can see in that  

                                                                                        

video when [Belarde] comes forward with something in his  

                                                                                       

hand, probably a cell phone.  He comes forward.  Ladies and  

                                                                                        

gentlemen, he's in this; he's a part of this.  He picks up the  

                                                                                         

battery after the gun comes out.  ...  And they [all] run out of  

                                                          

the store.  He's the get-away driver.  



                                                                                      

          Ladies  and  gentlemen,  you  heard  today  that  Mr.  

                                                                                     

Belarde  and Mr.  Barlow were standing right next to each  

                                                                                     

other  while  the  loss-prevention  officers  were  dealing with  

                                                                                      

Mr. Smith.  There's no way that [Belarde] couldn't have seen  

                                                                                         

what  was going on.                And I encourage you to go listen ...  

                                                                                     

again [to] the interview with Detective Summey,  and hear  

                                                                 

what Mr. Belarde said actually happened.  

                 

          .   .  .  



                                                                                       

           [Under  a  complicity  theory,  a]  defendant  need  not  

                                                                                         

commit every element of the offense in order to be guilty as  



                                          - 8 -                                                          2500
  


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

                                                                                                                  

                     an accomplice.  However, it's necessary [that] he participate.  

                                                                                                        

                     In other words, it's something that he wishes to bring about,  

                                                                                                         

                     [something] that  the  person seeks by his actions to make  

                                                                                                             

                     succeed.        ...    Jesse  Belarde  is  ...  absolutely  guilty  as  an  

                                                                                                         

                     accomplice.          His  actions  helped  promote,  facilitate,  plan,  

                                                                                                            

                     [and] develop [the]  execution of this robbery.   Ladies and  

                                                                                                           

                     gentlemen, he was in there; he was involved.  He got the car,  

                                                                                                            

                     he picked up the battery at the end [after] he picked out the  

                                                                                                   

                    battery itself.   If it weren't for Mr. Belarde, there wouldn't  

                                                             

                     have been a robbery that day.  



                                                                                                                                    

                     In response to the prosecutor's argument, Belarde's attorney delivered a  



                                                                                                                            

summation in which he conceded that Belarde planned and executed a theft, but in which  



                                                                               

he asserted that Belarde was not guilty of robbery.  



                                                                                                                         

                     More specifically, the defense attorney argued that Belarde never intended  



                                                                                                                               

to use force to accomplish the theft of the battery - and that even if Belarde had seen  



                                                                                                                               

Robert Smith using force against the loss-prevention officers,  that use of force was  



                                                                                                                               

simply so that Smith and the others could escape.   The defense attorney argued that  



                                                                                                                          

Belarde was not responsible for Smith's use of force to avoid arrest, and the defense  



                                                                                                                               

attorney  argued  that  Belarde's  contemporaneous  act  of  picking up  the  battery  and  



                                                                                                                             

runningout of the store did not prove that Belarde ever intended to accomplish the taking  



                

by force.  



                                                                                                      

                     Here is the final paragraph of the defense attorney's summation:  



                       

                                                                                                           

                               Defense Attorney : The crucial thing is the intent.  And  

                                                                                                         

                     Mr. Belarde never intended to rob anybody. [And] Mr. Smith  

                                                                                                              

                     never intended to rob anybody.  Mr. Smith's intent was to ...  

                                                                                                              

                     escape, and Mr. Belarde's intent was to steal the battery.  So  

                                                                                                                  

                     I ask you to find my client not guilty of robbery.  Thank you.  



                                                                                                                                

                     In his rebuttal summation, the prosecutor agreed that the crucial issue was  



                                                                                                                              

Belarde's intent - but the prosecutor argued that, even though Belarde may not have  



                                                               - 9 -                                                          2500
  


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

                                                                                                                          

intended to steal the battery by force when he walked into the Fred Meyer store, Belarde  



                                                                                                                              

formed the intent to accomplish the taking by force when he saw Smith holding the loss- 



                                                    

prevention officers at bay with a gun:  



                       

                                                                                                            

                               Prosecutor :         Ladies  and  gentlemen,  people  are  not  

                                                                                                             

                     required to premeditate  or  plan their intent.   Intent can be  

                                                                                                                  

                     formed in an instant.  ...  [T]hat's what happened in this case.  

                                                                                                          

                     After  the  gun  is  out,  after  [loss-prevention  officer]  Fred  

                                                                                                         

                     Becker is standing there with his hands up - we know [that]  

                                                                                                        

                     Robert  Smith  intended  to  still take  the  battery  by  force,  

                                                                                                              

                     because,  as he's holding Fred Becker at bay,  he  starts to  

                                                                    

                     move towards the battery.  ...  



                                                                                                              

                               [Robert Smith] wasn't trying to just get out of there; he  

                                                                                                              

                     was trying to get out there with the battery.  He was trying to  

                                                                                                   

                     complete that robbery.   And as [Robert Smith is]  standing  

                                                                                                     

                     there with a gun pointed at Fred Becker, it's Jesse Belarde  

                                                                                                           

                     who sees [Smith's] use of force ... .   He sees that, and he's  

                                                                                                              

                     using that force when he picks up the battery and runs out of  

                                     

                     the store.  



                                                                                                            

                               Ladies and gentlemen,  the intent was formed at the  

                                                                                                             

                     moment he bent over, after seeing the gun, and picks up the  

                                                                                                           

                     battery and runs out.  This is a theft that went wrong.  It was  

                                                            

                     a theft that turned into a robbery.  



                                                                                                                                  

                     In other words, the prosecutor did not argue that Belarde  was  guilty of  



                                                                                                                                 

robbery because someone else (Robert Smith) intended to use force to accomplish the  



                                                                                                                         

taking.       Rather,  the  prosecutor  argued  that  Belarde  was  guilty  of  robbery  because  



                                                                                                                             

Belarde personally formed the intent to accomplish the taking by force - i.e., the intent  



                                                                                                                               

to complete the theft of the battery by taking advantage  of the fact that Smith was  



                                                                     

intimidating the store employees with a gun.  



                                                              -  10 -                                                         2500
  


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

                                                                            Accordingto Wayne R. LaFave,                                                                                                                                                      Substantive Criminal Law                                                                                                                              (2nd ed. 2003),                                 



   20.3(e), Vol. 3, pp. 191-92, "[t]he great weight of authority" favors the view that a                                                                                                                                                                                                                                                                                                                                                                                                       



robbery occurs when one person strikes another, even without an intent to steal, "and ...                                                                                                                                                                                                                                                                                                                                                                                                   



 then, seeing his adversary helpless, takes the latter's property from his person or his                                                                                                                                                                                                                                                                                                                                                                                              



presence."    Indeed,   many appellate courts have held that,                                                                                                                                                                                                                                                                                           in such circumstances,                                                                                                                  a  



robbery is committed even if the taking of property occurs                                                                                                                                                                                                                                                                                          after  the use of force has                                                                                                    



 stopped.   A number of these cases are discussed in                                                                                                                                                                                                                                  Stebbing v. State                                                                               , 473 A.2d 903, 914-                                                                    



                                                                                          2  

  15 (Md. 1984).                                                                                



                   2                  In  Rex  v. Hawkins                                                                                        , 3 Carr. & P. 392 (1828), a gamekeeper came upon a group of                                                                                                                                                                                                                                                                             



poachers.   The poachers beat the gamekeeper until he was unconscious, left him lying on the                                                                                                                                                                                                                                                                                                                                                                                             

 ground and fled.                                                                         After the poachers had gone some little distance, one of them, Williams,                                                                                                                                                                                                                                                                                 

returned and took the gamekeeper's money and gun.                                                                                                                                                                                                                                        The court held that the poachers, other                                                                                                                                             

 than Williams, were not guilty of robbery, but that Williams had committed robbery.                                                                                                                                                                                                                                                                                                                                                                               



                    To the same general effect are:                                                                                                                                        People v. McGrath                                                                                            , 62 Cal.App.3d 82, 133 Cal.Rptr. 27                                                                                                                                               

 (1976) (after the victim was murdered in retribution for a homosexual attack on a third party,                                                                                                                                                                                                                                                                                                                                                                                                             

 the defendant removed money from victim's pockets);                                                                                                                                                                                                                                                   People v. Jordan                                                                                  , 303 Ill. 316, 135                                                       

N.E.  729 (1922) (after the victim was knocked out in a street fight; the victim's money was                                                                                                                                                                                                                                                                                                                                                                                        

 taken);  State v. Covington                                                                                                                  , 169 La. 939, 126 So. 431 (1930) (the victim was beaten until he                                                                                                                                                                                                                                                                            

 appeared to be dead, then his money was taken);                                                                                                                                                                                                                     Hope v. People                                                                           , 83 N.Y. 418 (1881) (the                                                                                           

victim was forced to reveal the combination to safe located on bank premises, then the key                                                                                                                                                                                                                                                                                                                                                                                          

 to the bank taken from the victim's bedroom when the defendants were leaving);                                                                                                                                                                                                                                                                                                                                                                     Turner v.   

State,   198   S.W.2d 890                                                                                                           (Tex.   Crim.   1947)   (the   victim was                                                                                                                                                                   knocked unconscious                                                                                                       in an   

 altercation arising out of a    minor traffic accident;then                                                                                                                                                                                                                                   the victim's money was taken);  Alaniz  

 v.  State, 177 S.W.2d 965 (Tex. Crim. 1944) (the victim was beaten to avenge an insult, then                                                                                                                                                                                                                                                                                                                                                                                    

his money taken:                                                                              "[Although] there must be an intent to steal at the time of the taking ... ,                                                                                                                                                                                                                                                                                                                          

 the intent to steal need not coincide with the force.                                                                                                                                                                                                                        It is sufficient if there be force followed                                                                                                                               

by a taking with intent to steal as part of the same general occurrence or episode.").                                                                                                                                                                                                                                                                                                                                                                     Accord :   

Norman v. Sheriff of Clark County                                                                                                                                                          , 558 P.2d 541, 542-43 (Nev. 1976);                                                                                                                                                               State v. Iaukea                                                                   , 537   

 P.2d 724 (Haw. 1975).                                                                                                       

  

                                                                                                                                                                                                                                                                                                                                                                                                                                   (continued...)  



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

                                             In Belarde's case, the State's theory of robbery was more straightforward                                                                                                                       



-  because, under the State's view, Belarde took the battery                                                                                                                                      while  Smith was using force                                                



against the store employees.                                                                     But regardless of whether Belarde picked up the battery                                                                                                                



while Smith was intimidating the employees with a gun or immediately thereafter, the                                                                                                                                                                                                



majority view supports                                                            the prosecutor's argument that Belarde committed a robbery                                                                                                                     



when   he   formed   the   intent   to   take   advantage   of   the   opportunity   created   by   his  



accomplice's use of force, by taking the car battery from the immediate presence of the                                                                                                                                                                                             



now-subdued store employees.                                                                             



                                             To sum up this discussion:                                                                  The prosecutor told                                                    the   jurors that Belarde                            



could be convicted of robbery only if the State proved that Belarde (1) knew that Smith                                                                                                                                                                                     



had intimidated the store employees with a                                                                                                         gun,  and that Belarde (2) purposely took                                                                                   



advantage of this opportunity to accomplish the taking of                                                                                                                                          the   car battery.                                       As a legal      



matter, the prosecutor's argument was not plainly erroneous; in fact, it represents the                                                                                                                                                                                             



majority view in this country.                                                                      Accordingly, we find that any arguable ambiguity or flaw                                                                                                                     



in the challenged jury instruction was cured by the defense attorney's summation and the                                                                                                                                                                                             



                                                                            3  

prosecutor's response.                                                           



                                             For these reasons, we conclude that Belarde has failed to show that the  

                                                                                                                                                                                                                                                                                    



challenged portion of the jury instruction constituted plain error.  

                                                                                                                                                                                                                     



           2           (...continued)  



                                                                                                                                                                                                                                                                                 

           But see People v. King , 384 N.E.2d 1013 (Ill. App. 1979); State v. Lopez, 900 A.2d 779,  

                                                                                                                                                                                                                                                                                     

783-86 (N.J. 2006); Branch v. Commonwealth , 300 S.E.2d 758 (Va. 1983) (adopting the  

                                                                                                                                                                                                                                                                            

minority position that  this situation does not support a conviction for robbery, but rather  

                                                                                                                                       

separate convictions for assault and theft).  



           3  

                                                                                                                                                                                                                                                                                 

                      See Riley v. State, 60 P.3d 204, 208 (Alaska App. 2002) ("we have repeatedly held  

                                                                                                                                                                                                                                                                                      

that ambiguities and potential flaws in jury instructions can be cured by the arguments of the  

                                                                                                                                                                                                                                                                                   

parties"); Norris v. State , 857 P.2d 349, 355 (Alaska App. 1993); O'Brannon v. State, 812  

                                                                                                                

P.2d 222, 229 (Alaska App. 1991).  



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

                                                                                 (We also reject Belarde's related argument that the prosecutor exacerbated                                                                                                                                                                                                                                                                                                        



the flaw in the jury instruction by arguing that Belarde did not need to know that he was                                                                                                                                                                                                                                                                                                                                                                                                                    



committing a robbery.                                                                                                                    We have examined the challenged portion of the prosecutor's                                                                                                                                                                                                                                                       



argument, and it is clear that she was merely telling the jury that it did not matter whether                                                                                                                                                                                                                                                                                                                                                                                         



Belarde understood that, as a legal matter, his conduct and his accompanying culpable                                                                                                                                                                                                                                                                                                                                                                                               



mental state constituted the offense of robbery as defined under Alaska law.)                                                                                                                                                                                                                                                                                                                                                                                                  



                                         Conclusion  



                                                                                 The judgement of the superior court is AFFIRMED.                                                                                                                                                                                                                                                                              



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