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Louie C. Dulier Sr. v. State of Alaska (10/11/2019) ap-2659

Louie C. Dulier Sr. v. State of Alaska (10/11/2019) ap-2659

                                                     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  



LOUIE C. DULIER SR.,  

                                                                    Court of Appeals No. A-12557  

                                    Appellant,                   Trial Court No. 1JU-15-00809 CR  



                           v.  

                                                                               O P I N I O N  

STATE OF ALASKA,  



                                    Appellee.                       No. 2659 - October 11, 2019  



                  Appeal            

                            from the Superior Court, First Judicial District, Juneau,  

                  Philip M. Pallenberg, Judge.  



                  Appearances:        Susan  Orlansky,  Reeves  Amodio  LLC,  under  

                                                

                  contract with the Public Defender Agency, and Quinlan Steiner,  

                  Public Defender, Anchorage, for the Appellant.  RuthAnne B.  

                                                                                  

                  Bergt, Assistant Attorney General, Office of Criminal Appeals,  

                                                                            

                  Anchorage, and Jahna Lindemuth, AttorneyGeneral, Juneau, for  

                                                                                                

                  the Appellee.  



                  Before: Allard, Chief Judge, Harbison, Judge, and Coats, Senior  

                                               

                  Judge.*  

                             



                  Judge HARBISON.  



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



Constitution and Administrative Rule 23(a).  


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

                           Louie C. Dulier Sr. was convicted of second-degree assault and third-                                                                  



degree assault after Dulier, during an argument outside a Juneau bar, pulled out his flare                                                                           



gun, held it to a man's neck, and fired.                                      Both assault charges required the State to prove                                     



                                                                                                                                                   1  

                                                                                                                                                                        

that Dulier caused physical injury "by means of a dangerous instrument."                                                                               At trial, the  



                                                                                                                                                                       

State argued that Dulier's flare gun was a dangerous instrument because "under the  



                                                                                                                                                               

circumstances in which it is used [or] attempted to be used . . . [it is] capable of causing  



                                                                  2  

                                                                                                                                                               

death or serious physical injury."                                    Dulier raises three arguments on appeal, all relating  



                                                                                                                       

to whether Dulier's flare gun was a dangerous instrument.  



                                                                                                                                                                   

                           First, Dulier argues that the State presented insufficient evidence to prove  



                                                                                                                                                               

that he used the flare gun in a manner that was capable of causing death or serious  



                                                                                                                                                                         

physical injury.  Second, Dulier argues that the superior court committed plain error by  



                                                                                                                                                                     

failing to sua sponte instruct the jury that it was required to find that Dulier actually used  



                                                                                                                                                             

the flare gun in a manner that created a substantial risk of death or serious physical  



                                                                                                                                                                       

injury, as opposed to finding that a flare gun could theoretically be used in a manner that  



                                                                                                                                                                       

created a substantial risk of death or serious physical injury.  Finally, Dulier argues that  



                                                                                                                                                                        

the court's failure to issue a special instruction to the jury was compounded when the  



                                                                                                                                                               

superior court failed to sua sponte correct a statement by the prosecutor during closing  



                                                                                                                                                                     

argument that appeared to endorse this impermissible second theory - i.e., that a flare  



                                                                                                                                                        

gun was a dangerous instrument if it could be used in a manner that created a substantial  



                                                                  

risk of death or serious physical injury.  



                                                                                                                                                                       

                           For the reasons explained in this opinion, we reject Dulier's arguments and  



                      

affirm his convictions.  



       1     AS 11.41.210(a)(1) and AS 11.41.220(a)(1)(B), respectively.   



       2     See AS 11.81.900(b)(15)(A).  



                                                                                  - 2 -                                                                              2659
 


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

          Factual background  

                        



                     The trial testimony established that on the evening of August 1, 2015,  

                                                                                                                             



Dulier and John Sears got into an argument when they were smoking cigarettes outside  

                                                                                                                           



the Rendezvous Bar in Juneau.  Sears and Dulier had a heated exchange before Sears  

                                                                                                                              



went back inside.  

                              



                     Later, Sears and another patron went outside again.  Dulier, who was still  

                                                                                                                                



outside, stepped up to Sears, held a flare gun to Sears's neck, and fired it.  A bar patron  

                                                                                                                            



grabbed Sears by the shoulder just as the flare gun went off, causing Sears to move to the  

                                                                                                                                  



left just before the flare hit him. The flare impacted the front of Sears's neck, next to his  

                                                                                                                                  



Adam's apple.  Sears testified that if the patron had not intervened, pushing him to the  

                                                                                                                                 



side, "I wouldn't be sitting here, because my head wouldn't have turned, and [the flare]  

                                                                                                                              



would've went straight into my neck and stuck in there."  

                                                                              



                     Instead, the flare ricocheted off Sears's neck, hit the wall of the bar, and  

                                                                                                                                



then landed on the bar's welcome mat, where it sat burning for a moment before another  

                                                                                                                           



patron kicked it out toward the street. An officer who responded to the incident testified  

                                                                                                                          



that the flare left a "melted scorch mark on the . . . all-weather mat in front of the [bar]."  

                                                                                                                            



                     When the officers arrived at the bar, Sears had a "large bloody powder  

                                                                                                                          



burn" and welt on his neck.  After speaking to the police, Sears went to the hospital for  

                                                                                                                                  



treatment.  In addition to a bad burn, Sears had a large bruise and a bloody gouge in his  

                                                                                                                                  



neck. He was prescribed antibiotics and a painkiller. After the incident, Sears had a hard  

                                                                                                                               



time talking, and the inside of his throat was swollen for four or five days.  It took about  

                                                                                                                              



three weeks for the wound to heal.  

                                               



                                                               -  3 -                                                         2659

 


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

             There   was   sufficient   evidence   to   support   the   "dangerous   instrument"  

             element of the assault convictions          



                          Dulier was convicted of second-degree assault and third-degree assault,                                                         



both of which include the element that the defendant caused physical injury "by means                                                                        

of a dangerous instrument."                            3                                                  

                                                          The phrase "dangerous instrument" is defined by statute  



                                                                              

as, inter alia, "anything that, under the circumstances in which it is used, attempted to  



                                                                                                                                                                       4  

                                                                                                                                                                           

be used, or threatened to be used, is capable of causing death or serious physical injury." 



                                                                                                                                                                  

                          On appeal, Dulier argues that the evidence was insufficient to establish that  



                                                                                      

the flare gun was used in a manner capable of causing death or serious physical injury  



                                                                                                                                                            

because he aimed the flare gun "at a particular spot, with little realistic risk of hitting  



                                                                                                                                                                    

another more vulnerable spot, such as Sears's eye."  Dulier asserts that there was no  



                                                                                                                                                            

evidence that the flare gun, when used in that manner, could have caused any greater  



                                                                          

harm than what actually happened to Sears.  



                                                                                                                                                                       

                          When a defendant challenges the sufficiency of the evidence to support a  



                                                                                                                                                                   

criminal  conviction,  an  appellate  court  is  required  to  view  the  evidence,  and  all  



                                                                                                                                                       

reasonable inferences that can be drawn from that evidence, in the light most favorable  



                                                            5  

                                                                                                                                                                 

to upholding the jury's verdict.                                Viewing the evidence in this light, the court then asks  



       3     AS 11.41.210(a)(1) and AS 11.41.220(a)(1)(B), respectively.   



       4  

                                                                                                                  

             AS 11.81.900(b)(15)(A). The definition of "dangerous instrument" also includes "any  

                                                                                                                                                       

deadly weapon," which, in turn, includes any "firearm." AS 11.81.900(b)(17).  The State  

                                                                                                                                                                      

argues on appeal that a flare gun is a "firearm," but it did not make this argument below.  In  

                                                                                                                                                          

fact, during the trial, the prosecutor told the jury that a flare gun is not a firearm.  Because  

we are able to decide this case without reaching the State's argument that a flare gun is a  

                    

"firearm" we decline to resolve this question in the context of this appeal.  



       5     Iyapana v. State , 284 P.3d 841, 848-49 (Alaska App. 2012).  



                                                                                - 4 -                                                                           2659
 


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

whether a reasonable juror could find that the State had proved the defendant's guilt                                                      

beyond a reasonable doubt.                    6  



                                                                                                                                                

                       Here, a reasonable juror could find that Dulier used the flare gun in a  



                                                                                                                                             

manner that created a substantial risk that Sears would suffer serious physical injury, i.e.,  



                                                                                                                                

"physical injury that causes serious and protracted disfigurement, protracted impairment  



                                                                                                                                              

of health,  [or]  protracted  loss or  impairment of the function  of a body  member  or  

organ[.]"7  



                                                                                                                                            

                      At trial, one of the responding police officers explained how a flare gun  



works:  



                                                                                                               

                       [I]t kind of works like just a regular shotgun shell.  There's  

                                                                                                                      

                       a powder charge behind the flare and when you fire it off,  

                                                                                                                         

                      that powder charge launches the flare and ignites it.  And so  

                                                                                                                  

                      the flare is essentially burning as soon as it leaves the barrel  

                                                                                            

                       of whatever you've launched it from . . . .  



                                                                                                                                              

                      Additionally, Sears testified that if the other patron had not pushed him, the  



                                                                                                                                             

flare would have gone straight into his neck rather than ricocheting off the side of his  



                                                                                                                                                    

neck.  And even with this last-second intervention, Sears still had significant injuries:  



                                                                                                                                    

a bloody gouge, a burn, a bruise on his neck, and a swollen throat and difficulty speaking  



                    

for several days.  



                                                                                                                                                    

                       This evidence, viewed in the light most favorable to the jury's verdict, was  



                                                                                                                                

sufficient to establish that Dulier used the flare gun in a manner that created a substantial  



                                         

risk of serious physical injury.  



      6    Id. at 849.  



      7    AS 11.81.900(b)(58)(B).  



                                                                     -  5 -                                                               2659
 


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

              The trial court did not commit plain error by failing to give a                                                                          Konrad  

              instruction and failing to correct one instance in which the prosecutor                                                            

              misstated the law             



                            Dulier raises two more claims of error on appeal.                                                       First, Dulier argues that                  



the trial court erred by not                            sua sponte giving the jury a special instruction that it could                                        



only find that Dulier's flare gun was a dangerous instrument if it found that Dulier used                                                                                    



it in a manner "that actually created a substantial risk of death                                                                            or  serious physical   



                8  

injury."                                                                                                                                                                        

                    Second, Dulier argues that the prosecutor's closing argument compounded this  



                                                                                                                                                                               

error by suggesting to the jury that it could convict Dulier if it concluded that a flare gun  



                                                                                                                                                                     

could be used in a manner that created a substantial risk of death or serious physical  



injury.  



                                            

                            Dulier argues that these two errors, when combined, create a serious risk  



                                                                                                                                                                             

that the jury convicted Dulier under the legally impermissible theory that Dulier's flare  



                                                                                                                                                                                    

gun was a dangerous instrument because it could be used in a manner that created a  



                                                                                                              

substantial risk of death or serious physical injury.  



                                                                                                                                                             

                            Dulier, however, did not raise these issues below. We review unpreserved  



                                                                                                 9  

                                                                                                                                                                             

claims of error under the plain error doctrine.                                                      To show plain error, a defendant must  



                                                                                                                                                                                

show that the error "(1) was not the result of intelligent waiver or a tactical decision not  



                                                                                                                                                                               10  

                                                                                                                                                     

to object; (2) was obvious; (3) affected substantial rights; and (4) was prejudicial." 



                                                                                                                                                                              

                            For  the  reasons  we  explain,  we  agree  with  Dulier  that  a  special  jury  



                                                                                                                                                                            

instruction  clarifying  the  definition  of  a  "dangerous  instrument"  would  have  been  



                                                                                                                                                                                  

appropriate in this case.  We also agree that the prosecutor misstated the law when he  



       8      Bowlin v. State, 2015 WL 5918178, at *3 (Alaska App. Oct. 7, 2015) (unpublished).  



       9      Adams v. State , 261 P.3d 758, 764 (Alaska 2011).  



       10     Id.   



                                                                                      - 6 -                                                                                  2659
 


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

 suggested that a flare gun was a dangerous instrument because it                                                                                                       could  be used in a                         



 manner that created a substantial risk of death or serious physical injury.                                                                                                               We do not           



 agree, however, that these errors, either singly or in combination, rise to the level of plain                                                                                                             



 error.   



                                  In   Konrad v. State                            , this Court held that when a defendant commits an                                                                             



 assault with an allegedly dangerous instrument that is not a deadly weapon, and where                                                                                                                  



 no serious physical injury occurs, "the possibility that the grand jury might decide the                                                                                                                       



 instrument's potential for causing injury as an abstract or hypothetical matter is . . .                                                                                                                                 



                                                                                                                                                                        11  

 sufficiently great to require that an express instruction be given."                                                                                                                                             

                                                                                                                                                                                Our decision in  



                                                                                                                                                                                                             

Konrad was limited to grand jury proceedings, but we have since applied Konrad to petit  



                                                                                                                   12  

                                                                                                                         

juries in an unpublished case, Bowlin v. State. 



                                                                                                                                                                                                             

                                  As we stated in Bowlin, the reasoning in Konrad applies equally to the petit  



                                                                                                                                                                                                              

jury  context,  and  therefore  trial  courts  should  provide  the  instruction  when  the  



                                                               13  

                                                                                                                                                                                                               

                                                                       This instruction ensures that the jury finds, based on the  

 circumstances require it. 



                                                                                                                                                                                                              

 evidence in the case before it, "that the defendant used the instrument in a manner that  



                                                                                                                                                                                     14  

                                                                                                                                                                 

 actually created a substantial risk of death or serious physical injury."                                                                                                                                    

                                                                                                                                                                                             Given our  



                                                                                                                                                                                                           

 decision in Bowlin, we agree with Dulier that a Konrad  instruction would have been  



                                                             

 appropriate in his case.  



                                                                                                                                                                                                              

                                  We also agree with Dulier that the prosecutor briefly misstated the law  



                                                                  

 during closing argument.  This occurred when the prosecutor told the jury that "if you  



                                                                                                                                                                                                            

 can [use a flare gun to shoot out a person's eye], then it's a dangerous instrument." This  



         11      Konrad v. State, 763 P.2d 1369, 1374-75 (Alaska App. 1988).

 



         12      Bowlin, 2015 WL 5918178, at *3.
 
 



         13      Id.  



         14      Id. (citing Konrad, 763 P.2d at 1375).  



                                                                                                      -  7 -                                                                                                2659
 


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

statement erroneously suggested that the jury could find that a flare gun is a dangerous  

                                                                                                                     



instrument if it can be used to shoot out an eye rather than focusing the jury's attention  

                                                                                                                       



on the manner in which Dulier used the flare gun in this particular case.  

                                                                                                       



                    We conclude, however, that these errors do not rise to the level of plain  

                                                                                                                             



error given the way this case was argued to the jury.  We note that, at trial, the parties  

                                                                                                                          



were primarily focused on Dulier's claim that he acted in self-defense.   As a result,  

                                                                                                                           



neither  attorney  spent  a  significant  amount  of  time  addressing  the  "dangerous  

                                                                                                                  



instrument" definition in their closing argument.  However, when they did address the  

                                                                                                                                



"dangerous instrument" element, their discussions appropriately focused on the manner  

                                                                                                                          



in which the flare gun had been used, rather than on hypothetical ways that it could have  

                                                                                                                              



been used.  

                  



                    For  example,  the  prosecutor  began  her  discussion  of  this  element  by  

                                                                                                                                



referencing a movie in which a person was killed with a pen, explaining, "I've got a  

                                                                                                                                   



billion Bics on my desk but . . . you're looking at the way that something is used to  

                                                                                                                                  



determine whether or not it's a dangerous instrument."   She then asked, "[s]o, what  

                                                                                                                             



evidence do you have of that in this case?" The prosecutor then pointed out that Dulier's  

                                                                                                                        



flare gun operates by the same gunpowder blast mechanism that a shotgun uses, and that  

                                                                                                                               



the flare burned Sears when it hit him in the neck.  She further argued:  

                                                                                                 



                    Is that fiery, phosphorous shell capable of causing death or  

                                                                                                             

                     serious physical injury?  Well, it depends on how it's used.  

                                                                                                                  

                    Which is how dangerous instrument is defined. As Mr. Sears  

                                                                                                         

                    testified, if I hadn't turned to the left, it would've hit me  

                                                                                                           

                    directly on the neck and then I don't know what would've  

                                                                                                  

                    happened.  He was afraid of that possibility.  

                                                                        



These arguments properly focused the jury's attention on the manner in which the flare  

                                                                                                                              



gun was used in this case.  

                                         



                                                              -  8 -                                                         2659
 


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

                                             As discussed above, there was one portion of the prosecutor's closing                                                                                                                                                   



 argument   that   was   improper.     But   the   defense   attorney   directly   addressed   the  



 misstatement in her closing argument and corrected any misunderstanding it may have                                                                                                                                                                                           



 generated:  



                                             Now, [the prosecutor] was talking about how you can shoot                                                                                                                          

                                             somebody's eyeballs out, but that's not the situation we're                                                                                                                       

                                             dealing with here.                                            This is not a situation where Mr. Dulier                                                                          

                                             had Mr. Sears' mouth open and shot it down his gullet.                                                                                                                               Like  

                                             that could kill someone, but the way it was used, no, we saw                                                                                                                             

                                             what happened.                                          You can't be killed in the way that - or                                                                                              

                                             cause even serious physical injury in the way that it was used.                                                                                                                                        



 In   other   words,   the   prosecutor's   sole   misstep   was   addressed  and   corrected   in   the  



 defense's closing argument.                                                                   And on rebuttal, the prosecutor did not repeat her mistake.                                                                                                                                      



                                             Thus, when the evidence and arguments are viewed as a whole, they do not                                                                                                                                                               



justify a finding that there was "a high likelihood that the jury followed an erroneous                                                                                                                                                                      



                                                                                                                                                           15  

                                                                                                                                                                                                                                                                                    

 theory[,] resulting in a miscarriage of justice."                                                                                                                  Nor do they justify a finding that the  



                                                         

jury would have been misled by the isolated misstatement the prosecutor made during  



                                                                                                                                                                                                                                                                             

 her initial closing argument.   Accordingly, we find no merit to Dulier's plain error  



                                                                         

 arguments on appeal.  



                       Conclusion  



                                                                                                                                                                          

                                             The judgment of the superior court is AFFIRMED.  



            15        Iyapana v. State , 284 P.3d 841, 847-48 (Alaska App. 2012) (alteration in original)  



                                                                                                                                                                                                       

 (internal quotation marks omitted) (quoting Dobberke v. State, 40 P.3d 1244, 1247 (Alaska  

 App. 2002)).  



                                                                                                                                        -  9 -                                                                                                                                  2659
 

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