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before publication in the Pacific Reporter. Readers
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
CALVIN L. McGREW, )
) Court of Appeals No. A-4835
Appellant, ) Trial Court No. 4FA-91-2845
Cr.
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1341 - April 8, 1994]
________________________________)
Appeal from the Superior Court, Fourth
Judicial District, Fairbanks, Jay Hodges,
Judge.
Appearances: Nelson Traverso, Assistant
Public Advocate, Fairbanks, and Brant McGee,
Public Advocate, Anchorage, for Appellant.
Bill D. Murphree, Assistant District Attor
ney, Harry L. Davis, District Attorney, Fair
banks, and Charles E. Cole, Attorney Gener
al, Juneau, for Appellee.
Before: Coats and Mannheimer, Judges,
and Wolverton, District Court Judge.*
[Bryner, Chief Judge, not participating.]
MANNHEIMER, Judge.
Calvin L. McGrew, who was indicted under the name
"Darrel L. Poindexter" before his true name was discovered, was
charged by a Fairbanks grand jury with two counts of first-degree
robbery, AS 11.41.500(a)(1), one count of second-degree escape,
AS 11.56.310(a)(1)(B), and one count of second-degree theft,
AS 11.46.130(a)(1). These charges arose from an episode near
Nenana: McGrew and his companions robbed Donald and Jacqueline
Boschert, a husband and wife who had offered aid to McGrew and
his companions following a car crash. McGrew ultimately pleaded
no contest to one of the robbery counts -- the count charging the
taking of property from Donald Boschert. McGrew also pleaded no
contest to the escape and theft counts. In exchange, the State
dismissed the robbery count that charged the taking of property
from Jacqueline Boschert.
In his appeal to this court, McGrew challenges the
legality of the 7-year sentence he received for robbery.
Superior Court Judge Jay Hodges ruled that McGrew was subject to
a 7-year presumptive term under AS 12.55.125(c)(2) because McGrew
held a knife to Mrs. Boschert during the robbery. McGrew
contests this ruling; he asserts that he was subject to only a 5-
year presumptive term.
First-degree robbery is a class A felony, AS
11.41.500(b), and McGrew was a first felony offender. The
pertinent sentencing statute, AS 12.55.125(c), provides:
(c) A defendant convicted of a class A
felony may be sentenced to a definite term of
imprisonment of not more than 20 years, and
shall be sentenced to the following presump
tive terms ... :
(1) if the offense is a first felony
conviction and does not involve circum
stances described in (2) of this subsec
tion, five years;
(2) if ... the defendant possessed a
firearm, used a dangerous instrument, or
caused serious physical injury during
the commission of the offense, ... seven
years[.]
McGrew notes that he pleaded no contest to the count involving
Donald Boschert, and there was no proof that he ever used a
weapon against Donald Boschert. Therefore, McGrew contends, the
fact that he used a weapon against Jacqueline Boschert can not,
as a legal matter, serve as a basis for applying the 7-year
presumptive term under subsection (c)(2). McGrew asserts that
his sentencing was governed by subsection (c)(1), he was subject
to only a 5-year presumptive term, and he must be resentenced.
McGrew stands convicted of robbery for taking property
from Donald Boschert. The enhanced presumptive term specified in
AS 12.55.125(c)(2) governs McGrew's sentencing only if McGrew
personally "used a dangerous instrument ... during the commission
of [this] offense".1 Judge Hodges found that McGrew personally
used a knife against Jacqueline Boschert, but not against her
husband Donald. Thus, the legal question presented by this
appeal is whether McGrew's use of the knife against Mrs. Boschert
qualifies as the use of a dangerous weapon during the robbery of
her husband.
The definition of robbery is found in AS 11.41.510(a),
which reads:
A [defendant] commits the crime of rob
bery ... if, in the course of taking or at
tempting to take property from the immediate
presence and control of another, the [defen
dant] uses or threatens the immediate use of
force upon any person with intent to
(1) prevent or overcome resistance to
the taking of the property or the reten
tion of the property after taking; or
(2) compel any person to deliver the
property or engage in other conduct
which might aid in the taking of the
property.
Under this statute, the crime of robbery is committed, not only
when a defendant uses force upon the person who possesses the
property, but whenever a defendant uses force upon any person
with the intent to prevent or overcome anyone's resistance to the
taking, or to compel any person to engage in conduct that might
facilitate the taking. Thus, if McGrew used force or threatened
to use force against Jacqueline Boschert with the intent of
preventing or overcoming resistance to the taking of property
from Donald Boschert, he committed robbery. And if, as Judge
Hodges found, McGrew used a knife against Jacqueline Boschert for
these purposes, then McGrew "used a dangerous instrument ...
during the commission of the offense" as required by AS
12.55.125(c)(2).2
We note (although it is not strictly necessary to our
decision of the legal issue raised in this appeal) that the count
of the indictment to which McGrew pleaded no contest is worded in
a manner that embodies this construction of the statute, giving
McGrew notice of the State's theory of the offense:
THE GRAND JURY CHARGES:
That on or about the 21st day of Septem
ber, 1991, at or near Nenana ... , [Calvin L.
McGrew], in the course of taking or
attempting to take property ... from the
immediate presence and control of Donald
Boschert, used or threatened the immediate
use of force upon him and/or Jacqueline
Boschert with intent to prevent or overcome
resistance to the taking of the property, or
retention of the property after taking[.]
McGrew's use of a knife against Jacqueline Boschert for the
purpose of facilitating the taking of property from her husband
falls squarely within the grand jury's charge.
The judgement of the superior court is AFFIRMED.
_______________________________
* Sitting by assignment of the chief justice made pursuant
to Article IV, Section 16 of the Alaska Constitution.
1 See Dailey v. State, 675 P.2d 657, 661-62 (Alaska App.
1984), in which this court held that, even though a defendant can
be convicted of armed robbery based on an accomplice's use or
possession of a firearm, the enhanced presumptive term provided
in subsection (c)(2) applies to the defendant's sentencing only
if the defendant personally used or possessed the firearm.
2 Compare Bowell v. State, 728 P.2d 1220, 1225-26 (Alaska
App. 1986), overruled on other grounds, Echols v. State, 818 P.2d
691 (Alaska App. 1991), where this court held that when, during
the commission of a sexual assault, an accomplice furnished a
firearm to his principal so that the principal could intimidate
the victim of the assault, the accomplice was properly found to
have personally possessed the firearm for purposes of imposing
the enhanced presumptive term.
