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Moore v. State (10/2/2009) ap-2243

Moore v. State (10/2/2009) ap-2243

     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

             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878


NOLAN P. MOORE,                    
                    Appellant,       Court of Appeals No. A-10200
                                    Trial Court No. 3PA-06-3030 Cr
STATE OF ALASKA,                                   O  P  I  N   I
                                   O  N
End of Caption                     
                                     No. 2243    October 2, 2009
          Appeal  from the Superior Court,  Third  Judi
          cial District, Palmer, Eric Smith, Judge.

          Appearances:   David  D.  Reineke,  Assistant
          Public  Defender, and Quinlan Steiner, Public
          Defender, Anchorage, for the Appellant.   Amy
          M.   Williams,  Assistant  Attorney  General,
          Criminal Division Central Office, and Richard
          A. Svobodny, Acting Attorney General, Juneau,
          for the Appellee.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Bolger, Judges.

          MANNHEIMER, Judge.

          Around  1:00 in the morning on December 7, 2006,  Nolan
P. Moore entered a Tesoro service station located at the junction
of  the Parks Highway and Main Street in Wasilla.  Brandishing  a
kitchen  knife  with a 6- to 8-inch blade, he demanded  that  the
clerk give him money.  When the clerk did not immediately comply,
Moore  pounded the hilt of the knife on the service  counter  and
declared,  Money, now!  The clerk then surrendered the  money  in
the till  an estimated $31, which included a two-dollar bill with
a recorded serial number.
          As  soon  as Moore left the service station, the  clerk
summoned the police.  Moore was apprehended a few minutes  later.
The police brought the store clerk to the site of the arrest, and
he  identified Moore as the man who had just robbed him.   During
Moores encounter with the police, a bundle of cash tumbled out of
his  pants leg.  Among this cash was the two-dollar bill with the
pre-recorded serial number.
          Based  on  this  incident, Moore was charged  with  two
offenses.   The  first of 
these was first-degree robbery under AS 11.41.500(a)(1), for taking property from the store clerks immediate presence and control by threatening the immediate use of force while armed with a deadly weapon (the knife). The second charged offense was third-degree assault under AS 11.41.220(a)(1)(A), for placing the store clerk in fear of imminent serious physical injury by means of a dangerous instrument (the knife).
Moore contested these charges at a jury trial, but he was convicted. In this appeal, Moore does not challenge the result of his trial, but he argues that the superior court committed two errors at his sentencing.
Moores argument that his  first-
     degree  robbery  sentence should  have  been  mitigated
     under  AS  12.55.155(d)(9)  (conduct  among  the  least
     serious within the definition of the offense)
               At  sentencing, Moore argued that his robbery
     sentence  should be mitigated under AS 12.55.155(d)(9),
     the  provision  that applies when a  felony  defendants
     conduct   is   among  the  least  serious  within   the
     definition of the offense.  The superior court rejected
     this proposed mitigator, and Moore now renews his claim
     on appeal.
          In his brief to this Court, Moore presents  a
multi-faceted argument as to why his conduct should  be
considered  among the least serious.  Moore argues  (1)
that  he did not use a gun, (2) that he did not  injure
anyone,  (3)  that the robbery was both  unplanned  and
poorly  executed,  (4)  that  he  was  captured  within
minutes,  (5)  that he did not resist the  police  when
they  arrested him, (6) that the amount of money  taken
during the robbery was small, and (7) that all of  this
money was recovered.
          However, with the exception of the first  two
of  these arguments (i.e., the fact that Moore did  not
use  a  gun, and that no one was injured), none of  the
arguments  contained in Moores brief were presented  to
the  sentencing  judge.   At  the  sentencing  hearing,
Moores  substantive argument of this point was confined
to the following:
          Defense   Attorney:    [L]east   serious
     conduct  ...  would  include  the  fact  that
     [Moore] used a knife and not a firearm.   ...
     Obviously,  the  Court has  seen  the  [store
     surveillance]  video,  [and]  has  seen   the
     trial,  [and]  knows that ...  he  came  into
     [the]  store and brandished a knife  which  I
     think is significantly different than pulling
     a  firearm on people and pointing it in their
     direction ... .  There was also a counter  in
     between [Moore] and the victim.  So, in terms
     of  a robbery, we feel that this would be the
     least  serious robbery.  ...  [Also,]  nobody
     was injured ... .
               In   other  words,  the  sentencing
     judge  was  only asked to consider  the  fact
     that  Moore used a knife rather than  a  gun,
     that Moore and the store clerk were separated
     by  a  service counter, and that no  one  was
     harmed.  Moore never asked the superior court
     to  consider, or to rule on the validity  of,
     the  other  assertions of fact that  he  puts
     forward in his appellate brief.
               However,   the  State  appears   to
     concede the accuracy of all of Moores factual
     assertions  except one:  the  assertion  that
     the   robbery   was  unplanned   and   poorly
     executed.    Accordingly,   with   that   one
     exception, we will overlook Moores procedural
          We  begin  our analysis  by  noting
that  it  was  Moores  burden  to  prove  his
proposed  mitigating  factor  by  clear   and
convincing evidence.  See AS 12.55.155(f)(1).
When  we,  as an appellate court, review  the
superior  courts decision on this  issue,  we
must  accept the superior courts findings  of
historical  fact  unless those  findings  are
shown   to  be  clearly  erroneous;  but   we
independently  assess the legal  question  of
whether,  given  those facts, Moores  conduct
was   among  the  least  serious  within  the
definition  of  first-degree  robbery.    See
Michael  v. State, 115 P.3d 517, 519  (Alaska
          Contrary  to  Moores  argument   on
appeal,  it  is  not obvious  that  a  robber
wielding a large knife poses less of a danger
than  a  robber wielding a firearm  when,  as
here,  the victim is within striking distance
of  the  robber.  A knife can  be  deadly  at
close quarters.  Both firearms and knives are
classified as deadly weapons for purposes  of
our criminal code.  See AS 11.81.900(b)(17).
          In an unpublished decision, Dunnell
v.  State,1 we confronted a situation similar
to  the  one presented in Moores  case.   The
defendant in Dunnell was convicted of  first-
degree  robbery for committing  two  separate
robberies  while armed with a  large  kitchen
knife.  In one robbery, Dunnell displayed the
knife  but  did  not use  it  to  injure  his
victim; in the other robbery, Dunnell  merely
held  the  knife  in his coat pocket  without
displaying it.2
          At  sentencing, Dunnell argued that
a  knife was considerably less dangerous than
a  loaded  firearm,  and that  therefore  his
conduct  should  be deemed  among  the  least
serious  within the definition of the offense
mitigator   (d)(9).3   This  Court   rejected
Dunnells argument that knives were inherently
less  dangerous than firearms.  We held  that
the   relevant   issue,   for   purposes   of
evaluating  the proposed mitigator,  was  the
          level of danger created or posed under the
particular circumstances of Dunnells case:

[B]ecause first-degree robbery is primarily a
crime against persons, the seriousness of the
defendants  conduct must  be  gauged  by  the
actual  risk  of physical injury  created  in
each   case.   [Citation  omitted]   In   the
present case, this is precisely the manner in
which  [the  sentencing judge] evaluated  the
seriousness of Dunnells conduct.   Given  the
level   of   risk   arising   from   Dunnells
possession  of a large kitchen  knife  during
each  of the robberies, we conclude that [the
sentencing  judge could properly decline]  to
find  that  Dunnells conduct  was  among  the
least serious in its class.

Dunnell,  slip opinion at 4, 1990 WL 10509494
at *2 (citations omitted).
          In  Moores case, the superior court
followed  the same kind of analysis  that  we
described in Dunnell when the court concluded
that  Moore  had  failed to  prove  mitigator
(d)(9).   The superior court rejected  Moores
argument that robberies committed with knives
were  inherently  among the least  dangerous.
And, with respect to the particular facts  of
Moores  case, the superior court  noted  that
Moore  brandished [the] knife, was aggressive
toward the store clerk, and was pretty  close
to the clerk.
          Given  these  facts,  the  superior
court  was justified in concluding that Moore
failed to prove mitigator (d)(9).

Moores  argument that he should not have  received
separate  convictions  and  sentences  for  first-
degree robbery and third-degree assault

          Moore argues that he should not have received
separate  convictions  and sentences  for  first-degree
robbery  and third-degree assault; rather, the superior
court  should have merged the jurys verdicts  into  one
conviction   for  the  greater  offense,   first-degree
          Moore was prosecuted for first-degree robbery
because, by threatening the immediate use of force, and
while  armed with a deadly weapon, he coerced the store
clerk  to  surrender  money  that  was  in  the  clerks
immediate  presence and control.4  Moore was prosecuted
for  third-degree  assault under AS  11.41.220(a)(1)(A)
that  is,  under  the theory that he placed  the  store
clerk  in  apprehension  of imminent  serious  physical
injury by means of a dangerous instrument (the knife).
          In a series of unpublished decisions, we have
repeatedly  concluded  that under  these  circumstances
that  is,  when  the  same threat of  harm  that  is  a
component  of  the defendants act of  robbery  is  also
separately  charged as a third-degree  assault  against
the  same victim  the State is allowed to litigate both
charges  to  the  jury, but if the jury returns  guilty
verdicts on both charges, the double jeopardy clause of
the  Alaska Constitution requires that the verdicts  be
merged  into one conviction and sentence.  See  Sudbury
v. State,5 Tremont v. State,6 and Holmes v. State.7
          Based  on the reasoning found in these  prior
unpublished  decisions, the State confesses  error  and
agrees  that Moore should have received only  a  single
conviction  and sentence for first-degree robbery.   We
conclude  that the States confession of error is  well-
founded,8  and we now take the opportunity to  issue  a
published   decision  confirming  the  rule   that   we
previously applied in Sudbury, Tremont, and Holmes.
          The  superior court is directed to amend  its
judgement   so   that  it  reflects  a  single   merged
conviction for first-degree robbery based on the  jurys
two guilty verdicts on the robbery and assault charges.
Because  Moores sentence for the assault was completely
concurrent  with his robbery sentence (in other  words,
the  assault sentence did not increase Moores composite
sentence  in any way), the elimination of this separate
assault sentence should not require a re-examination of
Moores composite sentence.


          The  judgement  of  the  superior  court   is
superior courts rejection of proposed mitigator (d)(9),
but  we agree that Moore is entitled to a merger of his
convictions  for first-degree robbery and  third-degree
assault.   Accordingly, the superior court is  directed
to  amend  the  judgement  so as  to  eliminate  Moores
separate conviction for third-degree assault.

1Alaska App. Memorandum Opinion No. 2122 (November 7, 1990),
1990 WL 10509494.

2Id., slip opinion at 1-2, 1990 WL 10509494 at *1.

3Id., slip opinion at 2, 1990 WL 10509494 at *1.

4 See AS 11.41.510(a) (the basic definition of robbery  i.e.,
second-degree  robbery)  and  AS  11.41.500(a)(1)  (defining
first-degree robbery as any robbery where the perpetrator is
armed with a deadly weapon).

5 Alaska App. Memorandum Opinion No. 5170 (January 31, 2007),
slip opinion at pp. 8-10; 2007 WL 293129 at *4-5.

6  Alaska App. Memorandum Opinion No. 2880 (March 30, 1994),
slip opinion at p. 5, 1994 WL 16196222 at *3.

7 Alaska App. Memorandum Opinion No. 616 (June 20, 1984), slip
opinion at pp. 7-10, 1984 WL 908540 at *3-4.

8  See  Marks  v.  State, 496 P.2d 66, 67-68  (Alaska  1972)
(requiring  an appellate court to independently  assess  any
concession of error by the State in a criminal case).

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