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THE COURT OF APPEALS OF THE STATE OF ALASKA
BYRAN B. PEROTTI, )
) Court of Appeals No. A-3679
Appellant, ) Trial Court No. 4FA-S90-492CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
) [No. 1166 - October 4, 1991]
Appellee. )
______________________________)
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Mary E. Greene, Judge.
Appearances: Marcia E. Holland, Assistant
Public Defender, Fairbanks, and John B.
Salemi, Public Defender, Anchorage, for
Appellant. Shelley K. Chaffin, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Charles E. Cole, Attorney General, Juneau,
for Appellee.
Before: Bryner, Chief Judge, Coats, Judge,
and Andrews, Superior Court Judge.*
[Mannheimer, Judge, not participating.]
BRYNER, Chief Judge.
Byran B. Perotti was convicted by a jury of attempted
escape in the first degree and assault in the third degree.
Superior Court Judge Mary E. Greene sentenced him to three and
one-half years for the attempted escape and one and one-half
years for the assault, to be served consecutively. Perotti
appeals, arguing that there was insufficient evidence to support
his conviction on the assault charge and that his sentences are
excessive. We affirm.
On October 13, 1989, while awaiting sentencing for
unrelated charges, Perotti attempted to escape from the Fairbanks
Correctional Facility. Perotti managed to conceal himself on the
roof, but Correctional Officer Larry Newman detected movement and
became suspicious. Newman began to unsling his assault rifle and
reach for his radio, but Perotti jumped him first, knocking the
radio out of reach and the officer to the ground. Newman fell
face down on the rifle. Perotti pummeled Newman about the face,
knocked his glasses off, and tried to pry the rifle away. Newman
feared that "the only . . . reason he's up there trying to get
the rifle was to kill me." He yelled for help and struggled to
prevent Perotti from getting the rifle. Perotti was stronger
than Newman, however; Newman believed that, unless help arrived,
Perotti would succeed in taking the rifle.
After Perotti and Newman struggled for a short while,
Newman's parka rode up, exposing a pistol he carried on his belt.
Perotti took the pistol and pushed himself away, pointing it at
Newman. Newman was not afraid, however, because he knew the
pistol was unloaded. Newman attempted to fire a warning shot
with his rifle, but saw that its magazine had come out during the
struggle. Perotti then noticed that the pistol he had taken from
Newman was unloaded. He apologized to Newman and surrendered
himself.
The state thereafter charged Perotti with violating AS
11.41.220(a)(1), which provides:
(a) A person commits the crime of assault in
the third degree if that person recklessly
(1) places another person in fear of
imminent serious physical injury by means of
a dangerous instrument[.]
The state's theory was that Perotti placed Newman in fear of
imminent serious physical injury by means of the rifle.1
On appeal, Perotti contends that the trial court
erroneously denied his motion for a judgment of acquittal on the
assault charge. Perotti argues that he could not have placed
Newman in fear "by means of" the rifle, since he never managed to
take it away from Newman.
Perotti cites no authority directly supporting his
claim. His argument simply assumes that actual possession is a
prerequisite to the commission of an assault "by means of" a
dangerous instrument. Existing case law does not appear to bear
out this assumption.
Under comparable circumstances, the Nebraska Supreme
Court upheld the conviction of two assailants who had struggled
with an arresting officer for control of the officer's gun
without actually obtaining possession of it. State v. Lewis, 165
N.W.2d 569 (Neb. 1969). The applicable Nebraska statute provided
that any person who "uses a deadly or dangerous weapon" in
committing an assault upon an officer was guilty of a felony.
Id. at 572 (quoting R.R.S. 1943, 28-729.01, R.S. Supp., 1967).
The Lewis court squarely rejected the claim that actual
possession was a prerequisite to the use of a dangerous weapon:
[T]he defendants' theory is that the
frustration by the police officers of their
attempt to get final and complete control and
the use of the gun should now be considered
as a defense. Exclusive control of a weapon
and either the firing or the threat are not
elements required under the terms of the
statute. To place such a construction on the
statute would be irrational and emasculate
its obvious purpose.
Id. at 573.
In State v. Hill, 692 P.2d 100, 105 (Or. 1984), the
Oregon Supreme Court gave a similar interpretation to ORS 163.
165(1)(a), a statute that served as a model for Alaska's third-
degree assault statute. The Oregon statute provided:
(1) A person commits the crime of
assault in the third degree if he:
(a) Recklessly causes serious physical
injury to another by means of a deadly or
dangerous weapon[.]
692 P.2d at 102 (quoting ORS 163.165(1)(a)). Hill was convicted
under this provision after a passenger in his car sustained
injuries in an accident caused by Hill's reckless driving. In
affirming the conviction, the Oregon Supreme Court held that Hill
could be found guilty of committing an assault "by means of" a
dangerous instrument (his car) even though he had never actually
directed the instrument at the victim of the assault.
In the present case, Perotti was subject to conviction
under AS 11.41.220(a)(1) if the state proved that he recklessly
placed Newman in fear of imminent serious physical injury by
means of the rifle that Newman carried. Newman testified at
trial that he was engaged by Perotti in a physical struggle over
the gun. Newman believed that Perotti was about to succeed in
his efforts to gain control of the weapon. He feared that
Perotti would shoot him to make good the attempted escape.
Under the circumstances, the evidence was sufficient,
when viewed in the light most favorable to the state, to allow
reasonable jurors to conclude that Newman had been placed in
imminent fear of being shot by Perotti with the rifle. The
evidence was also sufficient to support the conclusion that
Perotti acted recklessly with regard to the likelihood that his
actions would place Newman in fear of suffering imminent serious
physical injury from the rifle. Since reasonable jurors could
differ on the issue of whether the state had proved Perotti's
guilt beyond a reasonable doubt, the trial court did not err in
denying the motion for a judgment of acquittal. Hentzner v.
State, 613 P.2d 821, 823 (Alaska 1980).
Perotti next claims that his sentence is excessive. He
argues that the court erred in the emphasis it gave to the
injuries Newman suffered. Perotti does not argue that the court
erred in finding an aggravating factor based on Newman's
injuries. He contends only that this factor should not have been
relied upon as a basis for actually increasing the one-year
presumptive term for assault to one and one-half years.
According to Perotti there was no need to increase the applicable
presumptive term because the threat he posed to Newman was merely
conditional and unrealized. To the extent that Newman actually
suffered injury, however, Perotti's assaultive conduct was
neither conditional nor unrealized. Newman's injuries could thus
properly be relied upon by the sentencing court as a basis for
adjusting the presumptive term. We cannot say that the
relatively modest, six-month enhancement in this case was clearly
mistaken. Upton v. State, 749 P.2d 386, 388 (Alaska App. 1988).
Perotti next suggests that the sentencing court erred
in imposing his assault and attempted escape sentences
consecutively. He complains that "no good reason existed for
imposing a composite sentence which exceeded the four year
presumptive sentence for the attempted escape conviction."
However, Judge Greene found that deterrence and community
condemnation justified the imposition of consecutive sentences.
Judge Greene's finding is sufficient to establish good cause for
the imposition of consecutive sentences. See Farmer v. State,
746 P.2d 1300, 1301-02 (Alaska App. 1987).
Having independently reviewed the entire sentencing
record, we cannot conclude that Perotti's composite sentence of
five years was clearly mistaken. McClain v. State, 519 P.2d 811,
813-14 (Alaska 1974).
The conviction and sentence are AFFIRMED.
_______________________________
*Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
1. The state did not base the charge on Perotti's use of
Newman's pistol, since Newman knew the pistol was unloaded and
was not placed in fear.
