Made available by Touch N' Go Systems, Inc. and
Law Offices of James B. Gottstein.
406 G Street, Suite 210, Anchorage, AK 99501
(907) 274-7686 fax 333-5869

You can of the Alaska Court of Appeals opinions.

Touch N' Go, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website to see how.

Rupeiks v. State (10/28/2011) ap-2329

Rupeiks v. State (10/28/2011) ap-2329


        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 @


DAVID RUPEIKS,                                  ) 
                                                )           Court of Appeals No. A-10533 
                            Appellant,          )         Trial Court No. 3KN-07-1445 CR 
             v.                                 ) 
                                                )                   O P I N I O N 
STATE OF ALASKA,                                ) 
                            Appellee.           ) 
                                                )           No. 2329 - October 28, 2011 

                Appeal from the Superior Court, Third Judicial District, 
                Kenai, Anna Moran, Judge. 

                Appearances:      Renee   McFarland,   Assistant   Public   Defender, 
                and    Quinlan    Steiner,  Public   Defender,    Anchorage,     for  the 
                Appellant.     Eric   A.   Ringsmuth,   Assistant   Attorney   General, 
                Office   of   Special   Prosecutions   and   Appeals,   Anchorage,   and 
                John J. Burns, Attorney General, Juneau, for the Appellee. 

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

                BOLGER, Judge. 

                David Rupeiks contends that his conviction for assault in the third degree 

should be reversed because there was insufficient evidence suggesting that he had used 

his fist as a dangerous instrument when he injured Terrence Christensen. We conclude 

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

that the manner in which Rupeiks attacked Christensen and the nature of Christensen's 

injuries   show   that   Rupeiks's   attack   posed   an   actual   and   substantial   risk   of   causing 

Christensen to suffer death or serious physical injury. We therefore affirm Rupeiks's 

conviction for assault in the third degree. 


                In July 2007, Rupeiks was fishing in Centennial Campground in Soldotna, 

when he was hit in the back of the neck with a full soda can. Rupeiks followed the 

teenager he thought had thrown the can back to one of the campsites. The occupants of 

the campsite were Christensen, his wife, and several teenagers. 

                After identifying the campsite, Rupeiks immediately went to a campground 

phone to call the police. It was shortly after three o'clock in the morning. Soldotna Police 

Officer Duane Kant responded to the call. He told the teenagers that, if they saw Rupeiks 

fishing in a particular spot, they should avoid him and find another spot. He returned to 

Rupeiks and told Rupeiks the same thing - that if Rupeiks arrived to see the boys 

fishing in a particular place, he should avoid them and find another place to fish. 

                After   the   officer   left   the   campground,   Rupeiks   drove   his   truck   to   the 

Christensens'   campsite   to   "gloat."   As   Rupeiks   approached   the   campsite   he   yelled 

through the passenger window, "Go back to Washington," "You're ruining the fishing 

season," and "We don't want you here." 

                Christensen   was   exiting   his   tent   as   Rupeiks   approached   the   campsite. 

Christensen approached the truck, intending to find out what was going on and to calm 

down the driver. Christensen walked up to the truck's passenger side window and bent 

down to look into the cab of the truck in order to identify the driver. 

                                                    2                                               2329

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

                 Rupeiks then grabbed Christensen's left arm, yanked   his torso into the 

truck, and "clubbed" Christensen in the face, sending the side of his head "towards the 

frame of the window." Rupeiks then drove away while continuing to hold Christensen's 

arm inside the vehicle. Christensen eventually fell to the ground and rolled out of the 


                 Christensen was transported by ambulance to the hospital. He had suffered 

a   fracture   of   the   frontal   bone   of   his   skull,   a   fractured   orbital   bone,   and   fractures   to 

"several different pieces" of his cheekbone. The blow to his head also caused bleeding 

in   two    separate   areas   around     his  brain.   The    treating   physician    had   Christensen 

transported to Anchorage where a neurosurgeon would be close by. 

                 Christensen was released from the hospital the following day, but suffered 

"extreme pain" for three weeks. He attempted to return to work, but he was unable to 

perform fully for more than six months. Christensen also experienced extensive memory 

loss;   as   of   the   date   of   trial   he   still   could   not   remember   fully   what   happened   at   the 


                 At trial, the treating physician testified that Christensen's injuries were 

consistent with a single blow to the head with a blunt object. He testified that it was 

unlikely that Christensen had been hit with only a fist because he had never seen a fist 

cause such extensive injuries. 

                 A   grand   jury   indicted   Rupeiks   on   charges   of   second-degree   and   third- 

degree assault for causing physical injury either intentionally or recklessly by means of 

a dangerous instrument - specifically, a "hand, fist, and/or unidentified object." 

                 At   trial,  the  State   argued    the  "dangerous      instrument"     element    under 

alternate theories - that Rupeiks either used a sap found in his truck or that his fist was 

the dangerous instrument that caused Christensen's injuries. The jury acquitted Rupeiks 

                                                     3                                                2329

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

of   second-degree assault and found him guilty of third-degree assault, unanimously 

agreeing   in   a   special   verdict   form   that   Rupeiks's   hand   or   fist   had   been   used   as   a 

"dangerous instrument." 

                Following the trial, Rupeiks filed a motion for a new trial, arguing there 

was insufficient evidence to support a finding that Rupeiks used either his hand or fist 

as a dangerous instrument. Superior Court Judge Anna Moran denied the motion, finding 

sufficient evidence that Rupeiks used his hand in a manner capable of causing serious 

physical injury. Rupeiks now appeals his conviction. 


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

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

reasonable inferences to be drawn from that evidence, in the light most favorable to 
upholding the jury's verdict.1  In applying this standard, this court must first resolve all 

conflicts and doubts presented by the evidence in favor of the verdict, and then ask 

whether, viewing the evidence in that light, a reasonable juror could have concluded that 
the State proved its case beyond a reasonable doubt.2 

                Assault in the third degree occurs where a person recklessly causes physical 
injury to another person by means of a dangerous instrument.3  The statutory definition 

    1    Johnson v. State, 188 P.3d 700, 702 (Alaska App. 2008). 

    2    Id. 

    3    AS 11.41.220(a)(1)(B). 

                                                    4                                                 2329 

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

of "dangerous instrument" includes anything that, under the circumstances in which it 
is used, is capable of causing death or serious physical injury.4 

               Before a hand or foot can be a dangerous instrument, "the state must present 

particularized evidence ... that the manner in which the hand was used in the case at issue 
posed an actual and substantial risk of causing death or serious physical injury."5 An 

actual and substantial risk is something more than a risk that is merely hypothetical or 
abstract.6  In making this inquiry, we have said it is important not to focus solely on the 

resulting injuries because it is possible the injuries were unforeseeable at the time of the 
assault.7 The determination "must be based on a case-specific analysis of the totality of 

the circumstances."8 

               In this case, the circumstances were sufficient to allow reasonable jurors to 
find "an actual and substantial risk of causing death or serious physical injury."9 The jury 

heard testimony that Rupeiks grabbed Christensen's left arm and jerked his torso into the 

    4     AS   11.81.900(b)(15)(A)   (indicating   "dangerous   instrument"   means   "any   deadly 

weapon or anything that, under the circumstances in which it is used, attempted to be used, 
or threatened to be used, is capable of causing death or serious physical injury"). 

    5   Konrad v. State, 763 P.2d 1369, 1374 (Alaska App. 1988) (hands); see also Wettanen 

v. State, 656 P.2d 1213, 1218 (Alaska App. 1983) (feet). 

    6   Konrad, 763 P.2d at 1373-74. 

    7    Wettanen, 656 P.2d at 1218. 

    8    Willett v. State, 836 P.2d 955, 959 (Alaska App. 1992); see also Konrad, 763 P.2d 

at 1374 ("[T]he actual determination of whether a dangerous instrument was used must be 
made on a case-by-case basis, based on the totality of the circumstances surrounding the 
actual use of the object in question." (quoting Carson v. State, 736 P.2d 356, 361 (Alaska 
App. 1987))). 

    9   Konrad, 763 P.2d at 1374. 

                                                 5                                           2329

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

truck, holding him there while he punched Christensen in the face with enough force to 

fracture his facial bones in three places and cause bleeding in two areas around his brain. 

                The evidence suggested that the blow Rupeiks delivered was particularly 

violent. The treating physician testified that the injuries were consistent with a single 

blow   to   the   head   and   that   he   had   never   seen   a   fist   cause   such   serious   injuries.   The 

evidence also suggested that Christensen was especially vulnerable to incurring a serious 

injury. Christensen's ability to defend himself was compromised because he was off 

balance and held inside the truck by the arm. 

                The totality of this evidence was sufficient to allow reasonable jurors to find 

"an actual and substantial risk of causing death or serious physical injury" -  a risk that 
was more than "hypothetical or abstract."10 Therefore, there was sufficient evidence for 

reasonable jurors to conclude that Rupeiks used his hand as a dangerous instrument. 


                We AFFIRM the superior court's judgment. 

    10   Id. at 1374. 

                                                    6                                                2329 
Case Law
Statutes, Regs & Rules

IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights