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State v. Watts (3/9/2018) ap-2591

State v. Watts (3/9/2018) ap-2591

                                                  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
  

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                IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



STATE OF ALASKA,  

                                                                 Court of Appeals No. A-12572  

                                  Petitioner,                   Trial Court No. 3VA-15-104 CR  



                          v.  

                                                                         O  P  I  N  I  O  N 

TISHA DEE WATTS,  



                                  Respondent.                      No. 2591 - March 9, 2018  



                 Petition  for  Review  from  the  Superior  Court,  Third  Judicial  

                 District, Valdez, Daniel Schally, Judge.  



                 Appearances:  Eric A. Ringsmuth, Assistant Attorney General,  

                 Office of Criminal Appeals, Anchorage, and James E. Cantor,  

                 Acting Attorney General, Juneau, for the Petitioner.  Douglas O.  

                                                                    

                 Moody, Assistant Public Defender, and Quinlan Steiner, Public  

                 Defender, Anchorage, for the Respondent.  



                 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-----------------------

                    Under AS 11.41.220(a)(1)(A), it is a felony for a person to recklessly place  



another person in fear of imminent serious physical injury by means of a dangerous  



instrument.   



                    In  the  present  case,  the  superior  court  has  ruled  that  this  statute  is  

                                                                                  



unconstitutional  unless  the  phrase  "places  another  person  in  fear"  is  confined  to  



situations where the defendant is (1) subjectively aware of the victim and (2) purposely  

                                                                                   



directs their conduct at the victim.   



                    Under the superior court's ruling, a drunk driver cannot be prosecuted for  

                                                                                                      



third-degree assault if the driver obliviously forces a pedestrian off the road - or, as  



suggested  by  the  evidence  in  Watts's  case,  if  a  drunk  driver  nearly  collides  with  a  



pedestrian but, at the last moment, the driver sees the pedestrian, recognizes the peril, and  

                                                   



takes evasive action.  



                    For the reasons explained in this opinion, we reverse the superior court's  



ruling.  The third-degree assault statute does, indeed, cover these situations - and, to the  

                                                                             



extent that it does cover these situations, the statute is constitutional.  



          Underlying facts  



                    One  afternoon  in  early  August  2015,  Clayton  Scott  was  walking  and  

                                                



jogging down a winding, narrow dirt road outside of Valdez.   Scott was pushing his  

                                                                                                       



infant son in a stroller, and he had his two dogs with him.   



                    At the same time (according to later testimony), Tisha Dee Watts began  



driving down this same road at a high rate of speed.  Watts had been drinking and taking  

                                                                                      



drugs with a friend; her blood alcohol level was measured at .216 percent.   



                    Scott saw Watts's vehicle when it came around a curve approximately 100  

                                                                              



yards behind him.  Even though Scott and his infant child were in plain view, Watts did  

                                                                                             



                                                            - 2 -                                                       2591
  


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

not slow her car.  She continued to drive at high speed toward Scott and his son, without  

                                                                                                      



braking.   



                    Scott attempted to flee into the alders at the side of the road, but the trees  

                                                                                                                  



were too thick for him to pass, and Watts's vehicle was so close to the side of the road  

                                                                                                                        



that her passenger door was brushing against the alders.   



                    At the last moment, Watts swerved her vehicle to avoid hitting Scott and  

                                                                            



his son.  Scott testified that he could not tell whether Watts swerved because she finally  

                                               



noticed him at the last moment or whether, instead, Watts knew all along that Scott and  

                             



his son were in the roadway, and she was "messing with us".   



                    After this incident, Scott continued walking down the road.  At the bottom  

                                                                                                               



of the road, he found Watts's car:  it had collided with a bridge.  Watts was injured, and  

                                                        



she appeared to be intoxicated.  Scott called 911, and he remained with Watts until the  

                                                           



emergency responders arrived.   



                    Based on this incident, Watts was charged with two misdemeanors:  driving  



under the influence and reckless endangerment.  Watts was also indicted for a felony -  

                                                                                           



third-degree assault under AS 11.41.220(a)(1)(A), for "recklessly plac[ing] [Clayton  

                                                



Scott] in fear of imminent serious physical injury by means of a dangerous instrument".  

                                                                                               



                    Watts's attorney moved to dismiss the third-degree assault charge, arguing  

                                                                                                             



that even if all of the State's evidence was true, Watts's actions did not constitute the  



crime of third-degree assault because Watts had not purposely directed her conduct at  



Scott.   



                    Specifically,   Watts   noted   that   AS   11.41.220(a)(1)(A)   requires   the  



government to prove that the defendant "placed another person in fear".  Watts argued  

                                                              



that this phrase was unconstitutionally broad unless it was confined to situations where  

                                                                                   



the defendant "was aware of the victim and directed [their] behavior at the victim".   



                                                              -  3 -                                                         2591
  


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

                   The superior court agreed with Watts that the third-degree assault statute  



was unconstitutional unless the phrase "places another person in fear" was construed to  

                                         



require proof that the defendant was aware of the victim and purposely directed their  



conduct at the victim.  The superior court then concluded that the grand jury evidence  



was insufficient to support such a finding, so the court dismissed Watts's indictment.   



                   We granted the State of Alaska's petition to review the superior court's  

                                                                                 



ruling.  



          Why we conclude that the phrase "places another person in fear of injury"  

         does not require proof that the defendant engaged in purposeful assault  



                   The issue in this case arises from the special way that Alaska defines the  



crimes of third- and fourth-degree assault.  



                   Since the days of the common law, the criminal law has punished both  



(1) the intentional, reckless, or criminally negligent infliction of unlawful injury, and  



(2) the intentional act of placing another person in apprehension ("fear") of imminent  

                                                                                              

unlawful injury. 1  

                           



                   Alaska's four assault statutes - AS 11.41.200 through AS 11.41.230 -  



encompass both of these categories of unlawful acts:  acts that inflict injury, and acts that  

                                                                    



cause another person to apprehend imminent injury.  



                   But with regard to this second category (acts that cause another person to  

                                 



apprehend imminent injury), our third- and fourth-degree assault statutes do not limit the  

                                                                                                                



crime to acts that are done with the purpose  of causing another person to apprehend  



     1    See, for example, the discussions of common-law assault found in Rollin M. Perkins     



& Ronald N. Boyce, Criminal Law  (3rd ed. 1982), pp. 159 et seq., and in Wayne R. LaFave,  

Substantive Criminal Law (3rd ed. 2017),  16.3(b), Vol. 2, pp. 772-76.  



                                                          - 4 -                                                     2591
  


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

imminent  injury.    Instead,  our  third-  and  fourth-degree   assault  statutes  expand  this  



category to include situations where a defendant acts "recklessly" with regard to the   



possibility that their conduct will cause another person to apprehend imminent injury.  



                    See  AS  11.41.220(a)(1)(A)  (recklessly  causing  another  person  to  fear  



imminent serious physical injury by means of a dangerous  instrument) and AS 11.- 

                                                                                              



41.230(a)(3) (recklessly causing another person to fear imminent physical injury).  By  



comparison, AS 11.41.250(a) makes it a misdemeanor for someone to recklessly create  

                                                                                                        



a substantial risk of serious physical injury to another person, even if that person remains  

                                                        



unaware of the danger.     



                    Only a handful of states have expanded the definition of "fear" assault in  

                                                                                                                      



the way that Alaska has - i.e., expanded the crime so that it not only includes situations  

                                                                                                 



where a defendant acts for the purpose  of causing another person to fear imminent injury,  

           



but also situations where a defendant acts in disregard of a substantial and unjustifiable  

                                                                    

risk that their conduct will cause the other person to fear imminent injury. 2  

                                                                                                                       (See the  



definition of "recklessly" codified in AS 11.81.900(a)(3).)  



     2    In the superior court, Watts's attorney filed a chart summarizing other states' laws  



regarding the crimes of "assault" or "threatening".  According to this chart, five states -  

                                                                                    

Georgia, New Mexico, North Carolina, Rhode Island, and West Virginia - define the "fear"  

theory of assault as a general intent crime, requiring proof only that the defendant's conduct  

            

caused the victim to reasonably apprehend imminent injury, regardless of the defendant's  

                                                                                 

specific purpose.  See  Georgia Code  16-5-20; New  Mexico Statutes  30-3-1; State v.  

Messick , 363 S.E.2d 657, 661 (N.C. App. 1988); Proffitt v. Ricci , 463 A.2d 514, 517 (R.I.  

 1983); West Virginia Code  61-2-9.  



                                                                                                           

     Hawai'i (like Alaska) imposes criminal liability for "threatening" if a defendant acts "in  

                                              

reckless disregard of the risk" that their conduct will cause another person to fear bodily  

injury.  Hawai'i Revised Statutes  707-715.  



                                                                                 

     Aside from these six states (and Alaska), it appears that every other state requires proof  

that the defendant acted with the purpose of causing another person to fear imminent injury.                



                                                              -  5 -                                                         2591
  


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

                    Nevertheless, the fact that seven states (including Alaska) have expanded  

                                                                               



the "fear" theory of assault to include acts of recklessness is, itself, an indication that we  

                                                                                                   



should be wary of declaring that all such statutes are unconstitutional.    



                    But more importantly, we have no hesitation in holding that AS 11.41.- 



220(a)(1)(A) is constitutional under the facts of Watts's case.  



                    Under Alaska law, there are (generally speaking) three culpable mental  



states that can apply when a criminal offense is defined in terms of causing a result.  

                                                                          



These three culpable mental states are "intentionally", "recklessly", and "with criminal  

                                                                                                      



negligence".   



                    (See Smith v. State, 28 P.3d 323, 326 (Alaska App. 2001), and Neitzel v.  

                            



State, 655 P.2d 325, 329-330 (Alaska App. 1982) - both of which  summarize the  

                                                                                                           



provisions of AS 11.81.900(a).)  



                    The  offense  with  which  Watts  is  charged,  third-degree  assault  under  



AS 11.41.220(a)(1)(A), is defined in terms of causing a result:  causing another person  

                                                                 



to apprehend imminent serious physical injury.  



                    The law has long accepted the idea that a person can be punished for killing  

                                 



or injuring someone else even though the person did not intend this result - that is, if  

                                                                                



the  person  acted  only  recklessly  or  with  criminal  negligence  with  respect  to  the  

                            



possibility  that  their  conduct  would  cause  death  or  injury.    But  the  law  is  more  



complicated  when  a  criminal  statute  defines  an  offense  in  terms  of  causing  another  

                                                                                           



person to experience mental distress of some kind - for example, apprehension of  



imminent injury, or feelings of annoyance, worry, or torment.  



                    With regard to such statutes, proof that the defendant  intended to cause  

                                            



another  person  to  experience  mental  distress  will  often  suffice  to  answer  potential  



constitutional objections to the application of the statute.  See, for example, this Court's  

                                                                                             



handling  of  a  constitutional  challenge  to  the  "harass  or  annoy"  provision  of  the  

                                                                                          



                                                             -  6 -                                                       2591
  


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

disorderly conduct statute in McKillop v. State , 857 P.2d 358, 364-65 (Alaska App.                            



1993).  



                    But when a statute only requires proof of the defendant's recklessness or  



criminal negligence with respect to the possibility that their conduct will cause mental  



distress to someone else, this can raise more significant constitutional questions.  



                    Two of this Court's prior decisions - Petersen v. State , 930 P.2d 414  

                                                                                                               



(Alaska App. 1996), and Powell v. State , 12 P.3d 1187 (Alaska App. 2000) - discuss  



the problems that are potentially raised when an assault statute only requires proof that  

                                                                                      



the defendant acted recklessly with regard to the possibility that their conduct would  

                                                        

cause another person to apprehend imminent serious physical injury. 3  

                                                                                                             



                    The first problem is that a defendant could conceivably be charged with  



assault merely for acting erratically or unconventionally, even when the defendant's  



actions  are  not  creating  any  objective,  immediate  danger  to  the  people  who  are  



experiencing the fear.  



                    The second problem is that, even when a defendant's actions are creating  

                                                                                                                  



an  actual  danger  to  other  people,  a  defendant  could  conceivably  be  charged  with  

                                                                                      



assaulting a person who is placed in fear by the defendant's conduct but who is not  

                                                                       



within the "zone of danger" that defines the defendant's duty of care - i.e., not among  

                                                                    



the group of people "who are foreseeably endangered by [the defendant's] conduct, with  

                                                                                            



respect to [the] risks which make [that] conduct unreasonably dangerous."  Division of  

             



Corrections v. Neakok, 721 P.2d 1121, 1126 (Alaska 1986).  



                    But  the  facts  of  Watts's  case  do  not  present  either  of  these  problems.  

                                                                         



According to the State's evidence, Watts engaged in drunken, dangerous driving down  

                                                                                 



     3    See  Petersen , 930 P.2d at 429 (Judge Mannheimer, concurring), and                               Powell , 12 P.3d  



at 1192 (Judge Mannheimer, concurring).  



                                                              -  7 -                                                         2591
  


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

a public road - i.e., a place where one could reasonably anticipate the presence of other  

    



people.  Watts's driving created a danger of serious physical injury to the other people  

                                      



she might encounter on the road.  Clayton Scott (as a pedestrian walking along this road)  



was among the group of people who were foreseeably endangered by Watts's conduct.  

                                                



                    We therefore hold that it is constitutional to prosecute Watts for third- 



degree assault under AS 11.41.220(a)(1)(A).   



                    To successfully pursue this prosecution, the State would have to prove that  

                                                                                



Scott did, in fact, reasonably apprehend a threat of imminent serious physical injury to  

                                                                                                       



himself because of Watts's conduct.  And the State would have to prove that Watts acted  

                                                                                                                



recklessly with respect to the possibility that her conduct would cause another person to  

                                                                        



apprehend a threat of imminent serious physical injury.  The grand jury evidence in  

                                                                           



Watts's case was sufficient to establish these two elements of the offense.  



          Conclusion  



                    The superior court's decision to dismiss Watts's indictment is REVERSED,  



and this case is remanded to the superior court for further proceedings on that indictment  

                                                                                                       



(as well as on the two other charges pending against Watts).  



                                                             -  8 -                                                       2591
  

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