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Gibson v. State (4/3/2015) ap-2448

Gibson v. State (4/3/2015) ap-2448


         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 @



                                                                    Court of Appeals No. A-11094  

                                    Appellant,                    Trial Court No. 3AN-10-4238 CR  

                           v.                                                O P I N I O N  


                                    Appellee.                         No. 2448 - April 3, 2015  

                  Appeal   from   the   Superior   Court,   Third   Judicial   District,  

                  Anchorage, Beverly Cutler, Judge.  

                  Appearances:  Marjorie Mock, under contract with the Public  


                  Defender   Agency,   and   Quinlan   Steiner,   Public   Defender,  


                  Anchorage, for the Appellant.  Diane L. Wendlandt, Assistant  

                  Attorney General, Office of Special Prosecutions and Appeals,  


                  Anchorage, and Michael C. Geraghty, Attorney General, Juneau,  

                  for the Appellee.  

                  Before:  Mannheimer, Chief Judge, Allard, Judge, and Hanley,  


                  District Court Judge. *  


                  Judge HANLEY, writing for the Court.  

                  Judge MANNHEIMER, concurring.  

     *   Sitting  by  assignment  made  pursuant  to  Article  IV,  Section  16  of  the  Alaska  

Constitution and Administrative Rule 24(d).  

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

                     On March 28, 2010, a man went into a coffee shop in downtown Anchorage       

and, while the owner's back was turned, stole a charity donation jar from the counter.   

Taking the jar, the man quickly left the shop and got into the back seat of a waiting   


                     The owner immediately noticed the theft, and she and her daughter ran out  


of the shop in pursuit of the thief.  They went up to the waiting vehicle, and they told the  


driver - Amy Dawn Gibson - not to leave.  Instead, Gibson drove away.  The owner  


and her daughter held onto the car for a short distance, but ultimately they both fell to the  


ground, sustaining minor injuries.  

                     Based on this episode, Gibson was convicted of second-degree robbery  

under the theory that she was an accomplice to the theft of the donation jar from the  

immediate presence and control of the coffee shop owner, and that, by driving away  


while the owner and her daughter were holding onto the  car, Gibson used force "to  


prevent or overcome resistance to the taking ... or retention" of the stolen property. 1  


                     Gibson was also convicted of two counts of third-degree assault under the  


theory that Gibson recklessly caused physical injury to the owner and to her daughter by  

means of a dangerous instrument (i.e., the vehicle).2  

                     In this appeal, Gibson challenges all three of these convictions.  


                     With respect to her robbery conviction, Gibson contends her conduct did  


not constitute second-degree robbery because (1) the taking of the donation  jar was  


essentially complete by the time she used force against the owner and her daughter, and  

(2) the second-degree robbery statute does not apply to situations where force is used  

      1    AS 11.41.510(a)(1).  

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

                                                                   -2-                                                             2448

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

after a theft has been committed, while the thief is in immediate flight from the scene of  


the crime. She also challenges the sufficiency of the evidence of her robbery conviction.  


                   And with respect to her two third-degree assault convictions, Gibson argues  

that  she  did  not  use  her  vehicle  in  such  a  manner  that  it  qualified  as  a  "dangerous  


instrument."  Gibson thus contends that even if she recklessly caused injury to the coffee  


shop owner and her daughter, this would only constitute fourth-degree assault, not third- 

degree assault.  

                   For the reasons explained in this opinion, we reject Gibson's contentions,  


and we affirm her convictions.  

                   We now address Gibson's arguments in reverse order.  

          Gibson's argument that, under the facts of this case, the motor vehicle did  


          not constitute a "dangerous instrument"  

                   Alaska  Statute  11.81.900(b)(15)(A)  defines  "dangerous  instrument"  as  

including "anything that, under the circumstances ... , ... is capable of causing death or  


serious physical injury."  Gibson asserts that, even viewing the evidence in the light most  


favorable to the jury's verdict, she did not use the vehicle in such a manner that it was  

capable of causing death or serious physical injury.  

                   More particularly, Gibson argues that she drove away from the coffee shop  


in an "unremarkable manner" - not at a high speed, nor recklessly.  Noting that the  

owner and her daughter suffered only minor injuries, Gibson argues that there was "no  


readily identifiable, actual risk" of serious physical injury.  

                   As we have pointed out in previous cases, a motor vehicle can qualify as  

a  "dangerous  instrument"  when  it  is  used  in  a  manner  that  creates  a  real  danger  of  

serious physical injury, even though no one suffers serious injury.  

                                                             -3-                                                        2448

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

                    For example, in State v. Waskey, the defendant was driving an automobile   

when she struck a child who was riding a bicycle.                       3  The handlebar of the bicycle hooked  


onto the front bumper of the car, and Waskey dragged the child 140 feet before stopping.  

Fortunately, the child was not seriously injured.4  

                    We  concluded  that,  under  these  circumstances,  Waskey's  automobile  

constituted a dangerous instrument:  

                    Because of an automobile's solidity and mass, an automobile  


                    is  normally  easily  capable  of  inflicting  death  or  serious  

                    physical injury in such circumstances.  While it is possible to  


                    imagine collisions between an automobile and a pedestrian or  

                    a  cyclist  that  one  might  not  expect  to  result  in  serious  

                    physical injury (for instance, when the driver's failure to set  


                    the parking brake leads to a collision at 2 miles per hour),  

                    these are clearly exceptional cases.  

                              Under  any  reasonable  construction  of  the  facts  of  


                    Waskey's  case,  her  automobile  constituted  a  "dangerous  

                    instrument"  within  the  statutory  definition.    The  circum- 

                    stances of Waskey's collision with the bicyclist show that her  


                    car was easily capable of inflicting serious physical injury or  

                    death; indeed, the bicyclist's escape with only minor injuries  


                    was completely fortuitous.5  

                    In the present case, Gibson drove away from the coffee shop while both the  


owner and her daughter were holding onto the car.  The owner took several big steps to  


keep up with the car, and then she fell into the oncoming lane of traffic and struck her  


head on the roadway.  The owner's daughter had to lift her feet to avoid being run over.  

She eventually let go of the car and fell to the roadway, where she rolled to a stop.  Her  


     3    State v. Waskey, 834 P.2d 1251, 1252 (Alaska App. 1992).  

     4    Id. at 1252.  

     5    Id.  at 1253.  

                                                              -4-                                                         2448

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

clothing was ripped, she lost her shoes in this fall, and her shoulders and side were  


                   The question is whether this evidence, viewed in the light most favorable  


to the jury's verdict, was sufficient to allow fair-minded jurors to reasonably conclude  


that Gibson used the vehicle in such a manner that it was "capable of causing death or  

serious physical injury."6  

                                      We conclude that the answer is "yes."  


                   The evidence presented at Gibson's trial was therefore legally sufficient to  

support Gibson's convictions for third-degree assault.  

          Gibson's argument that her conduct did not fall within the definition of  

          second-degree robbery  


                   Under the provisions of AS 11.41.510(a)(1), a defendant commits second- 


degree robbery if, "in the course of taking ... property from the immediate presence and  

control of another," the defendant uses force (or threatens the immediate use of force)  

"with intent to ... prevent or overcome resistance to the taking of the property or the  

retention of the property after taking."  

                   Viewing the evidence in the light most favorable to the jury's verdict, (1)  


Gibson was criminally liable as an accomplice of the man who stole the donation jar, and  


(2) she used force against the coffee shop owner and her daughter for the purpose of  


preventing or overcoming resistance to the man's retention of the donation jar.  

                   Gibson argues that by the time she used force against the owner and her  

daughter, the jar had already been successfully "tak[en] ... from the immediate presence  

and control" of the owner.  Thus, Gibson claims, her use of force did not occur "in the  


course of" this unlawful taking.  Rather, her use of force occurred after the taking -  


     6   Abyo v. State , 166 P.3d 55, 60 (Alaska App. 2007).  

                                                            -5-                                                       2448

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

 while her accomplice (the man who took the jar) was "in immediate flight" from this act         

 of theft.  

                        The wording of the definition of robbery (i.e., the definition of the offense  


 found  in  the  second-degree  robbery  statute)  seemingly  refutes  Gibson's  argument.  

 Under this definition, the crime of robbery occurs not only when a person uses force to  


 prevent or overcome resistance to "the taking of the property," but also when a person  


 uses  force  to  prevent  or  overcome  resistance  to  "the  retention  of  the  property  after  


                        Thus, it appears that the drafters of this statute intended the definition of  

 robbery to cover instances where a thief uses force to retain possession of stolen property  


 during the immediate flight from the scene.  But Gibson argues that a provision of the  

first-degree  robbery statute shows that this interpretation of the second-degree statute is  



                        Gibson notes that, under the definition of first-degree robbery codified in  


 AS 11.41.500(a), second-degree robbery is raised to robbery in the first degree if the  

 defendant uses a dangerous instrument, or threatens to use a dangerous instrument, (1)  


 "in  the  course  of"  committing  second-degree  robbery,  or  (2)  "in  immediate  flight  



                        Gibson argues that there would be no need for the legislature to include this  


 second clause - the clause referring to "immediate flight thereafter" - if the crime of  


 second-degree robbery already included a defendant's immediate flight from the scene.  


 Thus, Gibson argues, an act of violence that occurs during a defendant's "immediate  


 flight" from the unlawful taking of property does not, as a matter of law, occur "in the  


 course of" that unlawful taking.  

       7    AS 11.41.510(a)(1).  

                                                                         -6-                                                                 2448

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

                     Based on this reasoning, Gibson asserts that she  could   not lawfully be  

convicted of second-degree robbery, even under the State's view of the evidence.  

                     Gibson's interpretation of the robbery statute hinges on her assertion that  


a "taking" of property is complete at the moment the offender removes the property from  

the immediate presence and control of the victim - even when, as in this case, the  


victim perceives the taking and immediately gives chase.  But this reading of the robbery  


statute is at odds with its legislative history.  

                     As  this  Court  explained  in  Andrew  v.  State ,  for  purposes  of  assessing  


accomplice liability under Alaska law, the crimes of theft and robbery continue from the  


moment  the  property  is  taken  "until  the  thief  or  robber  [is]  able  to  place  the  stolen  


property  somewhere  so  as  not  to  be  found  upon  him,  where  it  would  be  securely  




                 In a case decided shortly after statehood, the Alaska Supreme Court applied  

this doctrine to a theft prosecution in Mahle v. State .9  

                     The legislative history of our robbery statute supports this construction of  


the law.  Alaska's second-degree robbery statute was patterned after Oregon's third- 

degree robbery statute, Oregon Revised Statute 164.395.10  

                                                                                               In the commentary to that  


Oregon statute, the drafters explained that the language "in the course of committing or  


attempting to commit theft" was intended "to extend from the attempt state through the  

     8    Andrew v. State , 237 P.3d 1027, 1047 (Alaska App. 2010) (internal quotation marks     

and alterations omitted) (quoting  United States v. Barlow, 470 F.2d 1245, 1253 (D.C. Cir.   


     9     371 P.2d 21, 25 (Alaska 1962).  

      10   See Alaska Criminal Code Revision (Tentative Draft, 1977), Part II, at 110 (Tent.  

Draft 1977) ("Justification").  

                                                                   -7-                                                            2448

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


phase of flight."             The Oregon courts have recognized this as the proper interpretation  

of the statute.12  

                     This Oregon statute, in turn, was based on the Model Penal Code's formu-      

lation of robbery.13                                                                                    

                                According to the drafters of the Model Penal Code, their definition  

of robbery was drafted for the purpose of:  

                     extend[ing] robbery to include conduct that occurs in ... flight  


                     after the ... commission [of the taking].  Thus, a robbery is  


                     committed if the [perpetrator inflicts or threatens immediate  


                     serious bodily injury] at any point from the beginning of an  

                     attempt  to  commit  a  theft  through  the  end  of  the  flight  

                     following its attempt or commission.14  

                     In sum, both the pre-existing common law of Alaska and the legislative  


history  of  our  current  second-degree  robbery  statute  lead  to  the  conclusion  that  the  


phrase "in the course of taking ... property from the immediate presence and control of  


another" includes the offender's immediate flight after seizing the property.  

                     It is true, as Gibson points out, that the language of the first-degree robbery  


statute  singles  out  an  offender's  conduct  "in  immediate  flight  thereafter,"  as  if  this  


conduct were not included within the definition of second-degree robbery.  We are not  


sure why the first-degree robbery statute was drafted in this fashion.  But whatever the  


drafters  may  have  intended  by  this  phrasing,  we  are  sure  that  they  did  not  mean  to  

      11   Proposed Oregon Criminal Code, Final Draft and Report  148-50 cmt. C, at 155  


      12   State v. Jackson , 596 P.2d 600, 602 (Or. App. 1979) (noting that "the flight stage of         

a completed theft is regarded as [being] within the course of an attempted theft").  

      13   See Proposed Oregon Criminal Code,  148-50 cmt. C, at 155-56; see also Model  

Penal Code   222.1.  

      14   American Law Institute, Model Penal Code and Commentaries (Official Draft and  

Revised Comments, 1980), Part II,  222.1, at 99 (internal quotation marks omitted).  

                                                                  -8-                                                            2448

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

narrow the pre-existing definition of robbery so as to exclude any conduct committed  

during the offender's immediate flight.  If anything, the legislative history of our robbery  


statutes reflects an intent to expand the definition of robbery.  

                    We therefore hold that the phrase used in AS 11.41.510(a), "in the course  


of taking or attempting to take property from the immediate presence and control of  

another," includes an offender's immediate flight after the seizure or attempted seizure  


of the property.  

                    Thus, under the facts of this case, Gibson committed robbery when she used  

force  against  the  coffee  shop  owner  and  her  daughter  to  prevent  or  overcome  their  


resistance to her accomplice's retention of the stolen donation jar.  

                    (Indeed, because the State proved that Gibson's use of force involved the  

use of a dangerous instrument (the vehicle), it appears that Gibson's conduct constituted  



the offense of first-degree  robbery under AS 11.41.500(a)(2).  

                                                                                                However, Gibson was  

only charged with second-degree robbery.)  

                    Gibson raises one additional claim:  that there was insufficient evidence for  


the jury to find that she acted with the prohibited purpose - preventing or overcoming  


resistence to the retention of the property by her accomplice - when she used force  


against the owner and her daughter.  Gibson argues that her only purpose in using force  


against the owner and her daughter was to facilitate the escape, and that she had no  


intention of helping her accomplice retain the stolen donation jar.  

                    This was a question of fact for the jury.  The jurors were instructed that, to  


convict Gibson of second-degree robbery, they had to find that she "intended to prevent  


or overcome resistance to the taking of the property or the retention of the property."  


     15   Under AS 11.41.500(a)(2), an act of second-degree robbery is raised to first-degree  

robbery if the offender "uses or attempts to use a dangerous instrument."  

                                                              -9-                                                         2448

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

The evidence presented at Gibson's trial was sufficient for reasonable jurors to conclude                                                                  

that the State had proved this allegation beyond a reasonable doubt.  


                              The judgment of the superior court is AFFIRMED.  

                                                                                                 -10-                                                                                   2448

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

Judge MANNHEIMER, concurring.  

                    I  write  separately  because  I  believe  that  even  under  the  narrower,  

common-law definition of robbery, Gibson committed robbery when she used force to  


prevent the victims from regaining their property during her accomplice's immediate  

flight from the scene.  

                   According to Professor Perkins's text on the criminal law - Rollin M.  

Perkins & Ronald N. Boyce, Criminal Law (3rd edition 1982) - the common-law courts  

distinguished between (1) situations where a person committed a theft and then later  

used  force  or  intimidation  to  prevent  the  property  owner  from  retaking  the  stolen  

property,  and  (2)  situations  where  a  person  committed  a  theft  and  used  force  or  


intimidation to stop the property owner from immediately retaking the property:  

                    The former situation - instances where, "subsequent to the larceny[,] the  


owner should come upon the thief and be prevented from retaking his property by force  


or [intimidation]" - was treated by the common law as "larceny and assault, but not  


robbery."  Id. at 349.  But the latter situation - instances where "one snatches property  


from the hand of another and uses force or intimidation to prevent an immediate retaking  


by the other" - was "all one transaction and constitute[d] robbery."  Ibid.  


                    I acknowledge that the Commentary to the Model Penal Code suggests that  


the common-law rule was different.   

                   According  to  the  drafters  of  the  Model  Penal  Code,  their  definition  of  

robbery ( 222.1) was intended to expand the common-law definition of robbery by  

expressly including the use of force (or threat of force) during the thief's immediate  


flight after the taking.  The drafters declared that "[p]rior law was ... narrower ... on this  


                                                             -1111-                                                     2448

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

point  and  did  not  include  [the  use  of]   force  during  flight  within  the  offense  of  



                     In support of this assertion, the Model Penal Code drafters cited a passage  

from William Blackstone's Commentaries on the Laws of England - but the drafters  


appear to have misinterpreted this passage.  

                     In the cited passage - Commentaries, Vol. IV, Chapter 17 ("Of Offenses  


Against Private Property"), p. 242 - Blackstone addressed the common-law rule that  

a thief's later use of force to hold onto the property was not deemed a robbery.  But note  


that, in this passage, Blackstone speaks of the act of "privately stealing":  


                               Lastly, [to constitute robbery,] the taking must be by  

                     force, or a previous putting in fear; which makes the violation  


                     of the person more atrocious than privately stealing.  For if  


                     one privately steals sixpence from the person of another, and  


                     afterwards keeps it by putting him in fear, this is no robbery,  


                     for the fear is subsequent.  

Modern readers might easily skip over, or ignore, the word "privately" - because we  

no longer use this word in the technical sense that Blackstone meant it.   

                     In   the   eighteenth   century,   the   word   "private"   meant   "secret"   or  

"concealed". 2  

                        A "private stealing" meant an act of larceny that occurred without the  


property owner's knowledge.   

     1    American Law Institute, Model Penal Code and Commentaries (Official Draft and  

Revised Comments, 1980), Part II, Definition of Specific Crimes ( 220.1 - 230.5), p. 104.         

     2     See the Oxford English Dictionary, citing these examples of usage from the 1700s:

     "He lay private, till his Peace was made with the King."  (1700)

     "If the sound comes to you dead, and flat, it is a sign of some private infirmity."  (1726)

     "Let private weddings be for doubtful happiness."  (1753) 

                                                                 -1122-                                                          2448

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

                    Thus,  the  phrase  "private  stealing"  was  used  to  describe  the  act  of  a  


pickpocket if the theft went wholly undetected at the time.  Indeed, the prosecutor was  


required to prove the victim's complete lack of contemporaneous knowledge that a theft  

was occurring, else the crime was not pickpocketing:  


                             Up  until  1808  [i.e.,  forty  years  after  Blackstone  

                   published his  Commentaries], this crime [of pickpocketing]  


                    involved  "privately"  stealing  from  the  person  of  another,  


                   which  meant  without  their  knowledge,  goods  worth  more  

                   than a shilling.  The difficulty of proving that the victim had  

                   no  knowledge  of  the  crime  made  it  difficult  to  convict  

                    defendants of this offence, though many were found guilty  


                    [of] lesser charges through use of partial verdicts.  

Clive Emsley, Tim Hitchcock, and Robert Shoemaker, "Crime and Justice - Crimes  

Tried at the Old Bailey", Old Bailey Proceedings Online (,  

version 7.0, 12 October 2014):  "Crime, Justice and Punishment" / "Crimes Tried at the  

Old Bailey" / "Theft" / "Pickpocketing".  

                    This same crime of pickpocketing - and the phrase, "private stealing" -  


also applied to thefts committed by prostitutes whose clients were asleep or otherwise  

distracted.  Ibid .  

                    Thus, when Blackstone refers to cases where someone "privately steals  

sixpence from the person of another", he is referring to thefts that go undetected at the  


time.  As Blackstone explains, if the thief "afterwards keeps [the sixpence] by putting  


[the owner] in fear, this is no robbery, for the fear is subsequent."  That is, if the thief's  


use of force or intimidation occurs afterwards, as part of a separate transaction, then the  


thief has committed larceny and a separate assault, but not robbery.  

                    The  drafters  of  the  Model  Penal  Code  interpreted  the  passage  from  

Blackstone too broadly when they declared that, at common law, there was no robbery  


                                                             -1133-                                                     2448

----------------------- Page 14-----------------------

if the use of force occurred at any time after the moment of the taking.  The passage from  


Blackstone does not support this assertion.  

                    Instead, what Blackstone said on this subject is wholly consistent with the  


rule stated in Perkins & Boyce :  there was no robbery at common law if the thief used  


force at a separate time to retain the property; but the crime of robbery did include the  


use of force during the same transaction as the act of taking.  

                    Returning to Gibson's case:   The intention of the drafters of the Model  


Penal Code and the drafters of the Alaska criminal code was to expand the common-law  


definition of robbery.  The common-law definition of robbery already encompassed the  

conduct exhibited in Gibson's case.  This Court would therefore be thwarting the inten- 


tion of the  legislature if we construed our second-degree robbery statute to exclude  


Gibson's conduct from the definition of robbery.   

                    For these reasons (in addition to the reasons explained in the lead opinion),  

I join my colleagues in affirming Gibson's conviction for second-degree robbery.  

                                                              -1144-                                                      2448

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