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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
DIANE C. NELSON, )
) Court of Appeals No. A-5688
Appellant, ) Trial Court No. 4FA-94-410 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1486 - October 11, 1996]
______________________________)
Appeal from the Superior Court, Fourth Judicial
District, Fairbanks, Niesje J. Steinkruger,
Judge.
Appearances: Marcia E. Holland, Assistant
Public Defender, Fairbanks, and John B. Salemi,
Public Defender, Anchorage, for Appellant.
Eric A. Johnson, Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and Bruce M. Botelho, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
MANNHEIMER, Judge.
Diane C. Nelson appeals her convictions for third-degree
assault. We affirm.
On the afternoon of February 12, 1994, Nelson went to the
Sears department store in Fairbanks with her fifteen-year-old
cousin, Kenny Matthews. Nelson had a long history of shoplifting;
she went to the store because she had a compulsive urge to shoplift.
(EN1) At the Sears store, Nelson began to collect merchandise to
steal.
Boanerges Jasso, a plain-clothes Sears loss prevention
officer, noticed Nelson's behavior. He radioed this information to
Brenden Davis, another plain-clothes loss prevention officer. Davis
observed Nelson and Matthews leave the store, each carrying piles
of unpaid-for merchandise.
Davis followed Nelson and Matthews out of the store and
into the parking lot. As Nelson and Matthews got ready to climb
into a Ford pickup truck, Davis identified himself as a Sears loss
prevention officer and told Nelson that she needed to return with
him to the store. While Davis was speaking, Nelson and Matthews
urged each other to hurry up and get into the truck. Nelson got
into the driver's side of the truck and closed the door.
Davis reached through the driver's side window (which
apparently was open) and covered the ignition socket with his hand
to prevent Nelson from inserting the key. Nelson climbed out of the
passenger side of the truck, causing the stolen merchandise to spill
to the ground. Nelson and Matthews began to leave the parking lot
on foot, but Davis grabbed Matthews by the arm; the two men
struggled and fell to the ground.
During this struggle, Nelson urged Matthews to kick Davis.
Then Nelson ran toward Davis and attempted to kick him in the head.
Nelson's kick was blocked by Jasso, who had by this time arrived at
the scene; he stepped between Nelson and Davis at the last moment
and blocked Nelson's foot.
Nelson then climbed back into the truck, put the truck in
reverse, and backed up toward Jasso, Davis, and Matthews at a speed
of 25 to 30 miles per hour. Davis grabbed Matthews and pulled him
out of the truck's path. Nelson narrowly missed the three men.
Nelson then braked, put the truck in drive, and began
driving toward the men again. As Nelson drove toward them, the
truck's tires spun on the snow and the three men were able to dodge
the truck.
After the second pass, Nelson backed up, shifted into
drive once again, and began driving toward the men a third time.
This time the three men were backed up against a snowbank and could
not get out of the truck's path. As Nelson drove into them, Jasso
fell back against the snowbank; the t his leg. Davis and Matthews
also fell to the ground but were not injured.
As Nelson again backed the truck up, Matthews got up from
the ground and climbed into the truck. Nelson and Matthews then
drove away. Davis and Jasso returned to the store and telephoned
the police, describing the truck and reporting the license plate
number.
Later that day, the police located Nelson at a Fairbanks
hospital, where she had been admitted after cutting her wrists in
an apparent suicide attempt. Nelson told the investigating officer
that she had decided to kill herself rather than return to jail.
She also admitted that she had stolen merchandise from Sears, that
she had driven the truck towards the security guards a couple of
times, and that she had struck one of them. She explained that she
had driven the truck towards the guards in an effort to help
Matthews escape from them.
At trial, Nelson testified that she was scared because she
did not want to go back to jail for shoplifting. She asserted that
she had no desire to assault the Sears employees; she only wanted
to retrieve Matthews and then leave the area quickly. Nelson
claimed that she did not see the security guards in her path.
In contrast to Nelson's account, both Jasso and Davis
perceived that Nelson was trying to drive straight into them. A
passerby who observed these events testified at trial that he
initially thought some type of abduction was taking place. When he
saw Nelson first drive the vehicle toward the men, he thought that
she was trying to get Matthews into the truck. This witness then
testified that "the second approach of the vehicle left a distinct
impression in my mind that the driver ... was trying to run into the
individuals, trying to stop that struggle by -- by striking those
individuals."
Nelson was indicted for second-degree assault under
AS 11.41.210(a)(1): intentionally causing physical injury to Jasso
by means of a dangerous instrument (her vehicle). She was also
charged with third-degree assault under AS 11.41.220(a)(1): reck-
lessly placing Davis in fear of imminent serious physical injury by
means of a dangerous instrument (again, her vehicle). (EN2) With
respect to the assault on Jasso, the jury found Nelson not guilty
of second-degree assault but guilty of the lesser offense of third-
degree assault under AS 11.41.220(a)(2) þ recklessly causing
physical injury to Jasso by means of a dangerous instrument. With
respect to the assault on Davis, the jury found Nelson guilty of
third-degree assault as charged.
On appeal, Nelson asserts that the jury received faulty
instructions concerning the elements of third-degree assault.
Because Nelson did not object to these instructions in the trial
court, she must prove plain error. See Alaska Criminal Rule 30(a).
Nelson was convicted under two different theories of
third-degree assault. With respect to the charge involving Jasso,
the jurors were told that the offense of third-degree assault
required them to find:
that [Nelson] recklessly caused physical injury
to [Jasso]; and ... that [she] caused such
injury by means of a dangerous instrument, a
motor vehicle.
See AS 11.41.220(a)(2). With respect to the charge involving Davis,
the jurors were told that the offense of third-degree assault
required them to find:
that [Nelson] unlawfully and recklessly placed
[Davis] in fear of imminent serious physical
injury; and ... that [she] did so by means of
a dangerous instrument, a motor vehicle.
See AS 11.41.220(a)(1). These two instructions track the language
of the two subsections of the third-degree assault statute.
Nevertheless, Nelson asserts that these instructions are defective
because they fail to mention an element of "knowing conduct". (EN3)
Nelson does not claim that there was any dispute
concerning her conduct. In fact, Nelson expressly concedes that
"[t]here was no dispute as to the conduct [that she] knowingly
engaged in, i.e., that she voluntarily started the truck and drove
it in the manner described by the various witnesses." Rather,
Nelson asserts, the problem with omitting any mention of "knowing
conduct" is that the jury might have been confused concerning the
culpable mental state that applied to Nelson's awareness of the
potential consequences of her actions.
In general, the elements of any crime defined by the
Alaska Criminal Code fall into one of three categories: elements
that require proof of a particular "result"; elements that require
proof of a particular kind of "conduct"; and elements that require
proof of a surrounding "circumstance". See the legislative
commentary to AS 11.81.900(a), found at 1978 Senate Journal, Supp.
No. 47 (June 12), pp. 139-143; Neitzel v. State, 655 P.2d 325, 328-
330 (Alaska App. 1982).
Nelson and the State agree that when AS 11.41.220(a)(1)
speaks of "recklessly ... plac[ing] another person in fear of
imminent serious physical injury", the statute is specifying a
result (that another person is placed in fear of imminent serious
physical injury) and a culpable mental state (the defendant must act
recklessly with respect to the result). Similarly, when AS 11.41.-
220(a)(2) speaks of "recklessly ... caus[ing] physical injury to
another person", the statute is specifying a result (the infliction
of physical injury) and a culpable mental state (again, reckless-
ness). In both instances, the element of recklessness requires
proof that
[the defendant was] aware of and consciously
disregard[ed] a substantial and unjustifiable
risk that the result [would] occur[.]
AS 11.81.900(a)(3).
As noted above, the challenged jury instructions in
Nelson's case closely track the language of the two subsections of
AS 11.41.220(a). Nelson argues, however, that the jury might have
been misled by the wording of the statute. Nelson suggests that the
jury might have thought that third-degree assault was proved if
Nelson (1) drove her truck "recklessly" and, in so doing, (2) either
inflicted injury on Jasso or placed Davis in fear of imminent
serious physical injury þ even though Nelson may have had no inkling
that this would be the result of her driving. That is, the jury
might have failed to understand the need for proof that Nelson was
aware of and consciously disregarded the risk of causing these two
results.
We find Nelson's suggestion implausible. The two
challenged jury instructions do not speak of "reckless driving" or
any equivalent phrase. Instead, the instructions asked the jury to
determine whether Nelson "recklessly caused physical injury" to
Jasso and whether she "recklessly placed [Davis] in fear of imminent
serious physical injury". In other words, the culpable mental state
"recklessly" was positioned directly in front of the result it
applied to. Moreover, the jury was correctly instructed that the
State had to prove Nelson's awareness of the risk. Instruction 29
informed the jury that a person acts "recklessly" with respect to
a result
when [the] person is aware of and consciously
disregards a substantial and unjustifiable risk
that the result will occur[.]
As already noted, Nelson did not object to these
instructions in the trial court; she must therefore prove plain
error. In the context of jury instructions, "[p]lain error exists
when [the] instruction obviously creates a high likelihood that the
jury will follow an erroneous theory resulting in a miscarriage of
justice." Aviation Associates, Ltd. v. Temsco Helicopters, Inc.,
881 P.2d 1127, 1131 n.7 (Alaska 1994) (quoting Ollice v. Alyeska
Pipeline Service Co., 659 P.2d 1182, 1185 (Alaska 1983)). We find
no plain error here. (EN4)
Nelson's final contention is that the trial judge should
not have given the following instruction:
The flight of a person immediately after
the commission of a crime is not sufficient in
itself to establish her guilt, but is a fact
which, if proved, may be considered by you in
the light of all other facts in deciding the
question of her guilt or innocence. The weight
to which such evidence is entitled is a matter
for the jury to determine.
Nelson argues that any evidence that she fled the scene was only
"nominally probative", since she had already decided to flee the
Sears parking lot (to escape with the stolen goods) before any of
the assaultive conduct occurred. Because Nelson sees little or no
probative force in her act of flight, she argues that the trial
court's decision to highlight this piece of evidence was "highly
prejudicial" with respect to the assault offenses.
We disagree with Nelson's view of the evidence. With
regard to the second-degree assault charge against Nelson, the major
question litigated at trial was whether Nelson intended to injure
Jasso by striking him with her vehicle. Despite the fact that
thieves can be expected to flee the scene of their thefts, it is
also plausible that a thief would nevertheless stop and render
assistance if she realized that she had struck someone with her
vehicle. Thus, the fact that Nelson did not stop is at least some
indication that she intended to strike Jasso. See Evidence Rule 401
(evidence is relevant if it has "any tendency to make the existence
of any [material] fact more or less probable than it would be
without the evidence"). Moreover, as noted in footnote 2, Nelson
was being tried concurrently for third-degree theft. Evidence of
her flight was obviously relevant to the jury's consideration of
that charge.
Given the fact that Nelson's act of flight was relevant,
the trial judge did not abuse her discretion when she instructed the
jury on how to approach this evidence. This court has held that a
trial judge may properly instruct the jury that evidence of a
defendant's flight can be considered in the same manner as other
evidence in determining a defendant's guilt or innocence. Charles
v. State, 780 P.2d 377, 383 (Alaska App. 1989); Lipscomb v. State,
700 P.2d 1298, 1309 & n.11 (Alaska App. 1985). The holdings of
Charles and Lipscomb are based on Dyer v. State, 666 P.2d 438, 449
(Alaska App. 1983). In Dyer, this court upheld a flight instruction
almost identical to the instruction given in Nelson's case. This
court reasoned:
The instruction merely tells the jury that it
can consider evidence of flight if it wishes
and that it should give such evidence the
weight which it deems appropriate. Although we
are not sure any instruction on flight was
necessary, we find that the court did not err
in giving this instruction.
Dyer, 666 P.2d at 449.
Nelson argues that Dyer, Charles, and Lipscomb should be
re-evaluated. She asserts that it is inherently unfair for a trial
judge to emphasize any part of the evidence. See Fenelon v. State,
594 So.2d 292, 294 (Fla. 1992) ("The flight instruction ...
invade[s] the province of the jury by commenting on the evidence or
indicating what inferences may be drawn from it.").
We disagree with Nelson and with Fenelon, the Florida case
she relies on. Both during trial and at the close of trial, judges
frequently (and properly) give juries instruction on various aspects
of the evidence they have heard. These instructions can clarify the
proper uses of the evidence, or caution against potential improper
uses of the evidence, or both. Such instructions do not "invade the
province of the jury". We find no reason to alter the rule adopted
in Charles and Lipscomb.
The judgement of the superior court is AFFIRMED.
ENDNOTES:
1. Nelson apparently suffers from a severe personality disorder;
her urge to shoplift is a manifestation of this disorder.
2. Nelson was also charged with, and convicted of, third-degree
theft. Nelson has not appealed her theft conviction.
3. Nelson assumes that third-degree assault requires proof of an
element of "conduct". That is not self-evident.
Every criminal offense must be premised on some voluntary act
or omission of the defendant. See AS 11.81.600. In Nelson's case,
the voluntary act that underlies her criminal liability is her act
of driving the vehicle. But although all criminal liability must
be premised on a voluntary act or omission, not all criminal
offenses have a "conduct" element. That is, not all crimes are
defined in terms of a specific type of conduct.
For example, second-degree assault under AS 11.41.210(b)
requires proof that the defendant recklessly inflicted serious
physical injury on another person. This offense requires proof of
a result (infliction of serious physical injury) and a culpable
mental state (the defendant's reckless disregard of the possibility
of causing serious physical injury), but the statute does not
require proof of any particular form of "conduct". Seemingly, any
voluntary act or omission of the defendant will support criminal
liability under this statute, as long as the State proves that the
defendant's act caused the proscribed result and that the defendant
acted with the specified culpable mental state. See Guertin v.
State, 854 P.2d 1130, 1130 n.1 (Alaska App. 1993) (while the
criminal code categorizes the elements of offenses into "conduct",
"circumstances", and "results", a criminal offense need not include
an element from each of these three categories).
Nelson was charged with third-degree assault under
AS 11.41.220(a)(1) and (a)(2). The offense requires proof that the
defendant achieved the prohibited result (infliction of injury, or
placing another person in fear) "by means of a dangerous
instrument". It is unclear whether the legislature intended for
the phrase "by means of a dangerous instrument" to refer to a
"circumstance" or to a particular type of "conduct". If a
circumstance, the culpable mental state of "recklessly" applies; if
a type of conduct, then the culpable mental state of "knowingly"
applies. See AS 11.81.610(b). The parties have not briefed this
question, and Nelson's case does not require us to resolve it.
4. At its heart, Nelson's argument seems to be that it is
inherently misleading for the culpable mental states of "inten-
tionally" or "recklessly" ever to be linked to a verb in a jury
instruction, since this might lead the jury to believe that these
culpable mental states applied to conduct. But the legislature
used adverbs to define these culpable mental states. When the
criminal code uses "intentionally" and "recklessly", these words
are always linked to a verb. For example, the statutes that define
these culpable mental states begin with the phrases, "a person acts
'intentionally'" and "a person acts 'recklessly'". See AS 11.81.-
900(a)(1) and (a)(3). English syntax demands such usage.
We agree with the State that, in the absence of unusual
circumstances, jurors who are asked to decide whether a defendant
has "intentionally" or "recklessly" caused some result will
approach their task correctly if they are told the statutory
meaning of "intentionally" or "recklessly".
