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Beatty v. State (8/9/2002) ap-1816
Beatty v. State (8/9/2002) ap-1816
NOTICE
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@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
SEAN R. BEATTY, )
) Court of Appeals No. A-
7986
Appellant, ) Trial
Court No. 3AN-S99-10680 CR
)
v. ) O P I N I O
N
)
STATE OF ALASKA, )
)
Appellee. )
[No. 1816 - August 9, 2002]
)
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Larry D. Card,
Judge.
Appearances: John M. Murtagh, Anchorage, for
Appellant. John A. Scukanec, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau,
for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge.
MANNHEIMER, Judge, concurring.
A jury convicted Sean R. Beatty of conspiracy to commit
robbery in the first degree1 and robbery in the first degree.2
Beatty appeals, arguing Superior Court Judge Larry D. Card erred
in rejecting the defenses proposed jury instructions on the
lesser-included offense of attempted robbery in the first degree.
We conclude that Judge Card did not err in refusing to give the
instruction because Beatty failed to present sufficient evidence
to require the court to give such an instruction.
Facts and proceedings
In December 1999, a grand jury indicted Beatty for
conspiracy to commit robbery in the first degree and robbery in
the first degree. The states theory at trial was that late in the
evening of September 15, 1999, seven friends conspired to rob
Matthew Fox, a local drug dealer. The conspirators were Sean R.
Beatty, Adam A. Alirez, Elijah M. Lindsey, Torey J. Tuttle, Shawn
Roe, Jerry C. Lee, and Justin W. Dufour. Beatty put the
conspiracy into action by arranging a meeting with Fox under the
guise that Beatty was going to pay off an outstanding debt. Fox
agreed to meet Beatty at a local carwash in Anchorage at 3:00 the
following morning (September 16, 1999).
According to the state, the plan was that Beatty and
Tuttle would meet Fox while the others hid in the woods out of
sight. At a pre-arranged signal, the others would rush out of
the woods and surround Fox. Once surrounded, Beatty or Tuttle
would order Fox to turn over any money he had. The rumor on the
street was that Fox would be carrying a large amount of money on
him.
Fox showed up at the carwash with a friend, Daniel
Singer. While Beatty and Fox were discussing the debt, Beatty
looked at and unloaded Foxs pistol. The meeting between Beatty
and Fox became heated and someone sounded a car horn (presumably
the signal to initiate the robbery). As several individuals ran
out of the woods, Fox and Singer jumped into their car and sped
away. As they fled, someone shot at and hit Foxs vehicle,
blowing out two of his tires. Police found another bullet in a
vacuum island in the carwash parking lot.
Several blocks away, Anchorage Police Officers Gerrard
Asselin and Gary Martin heard multiple gunshots. As they raced
towards the area, they spotted two young adults running down the
street. They stopped the individuals, later identified as
Lindsey and Alirez, and questioned them about the shooting. Both
Lindsey and Alirez denied any knowledge of the shooting but gave
inconsistent stories of their whereabouts to the police. After
questioning Lindsey and Alirez, Officers Asselin and Martin
released them.
Anchorage Police Officer Doyle Warren also responded to
the area and saw four young men parked at the carwash in a white
Suburban. He contacted the individuals and identified them as
Beatty, Tuttle, Roe, and Dufour. Officer Warren searched the
vehicle, found nothing suspicious or incriminating, and released
them.
Prior to Beattys trial, Fox was arrested on an
unrelated charge. Detective John Vandervalk interviewed Fox and
convinced him to call Beatty and discuss the incident while Det.
Vandervalk surreptitiously recorded the conversation pursuant a
Glass warrant. During the call, Beatty initially denied his
involvement but ultimately made several incriminating statements
including admitting knowledge of the planned robbery and agreeing
to pay for the two tires that had been shot out during the
robbery.
At trial, the state introduced the Glass recording of
Foxs and Beattys conversation and several interviews that Det.
Vandervalk had with Beatty. Alirez, the only participant to
testify at trial, testified that he had no knowledge of a
conspiracy to rob Fox and only hid in the woods with the others
in case a fight broke out. He stated that when Fox showed up
nothing happened. According to Alirez, only after he left did
he hear gunshots coming from the carwash.
In response, the state introduced Alirezs earlier
interview with Det. Vandervalk as a prior inconsistent statement.
In that interview, Alirez described how the planned robbery
evolved and implicated Beatty. He stated Beatty was the one who
called Fox and convinced him to come to the carwash and that the
signal to initiate the robbery was a honk from the car horn. He
stated that he never saw what happened during the actual robbery
and told Det. Vandervalk that he left the carwash before the
robbery began.
Beatty requested Judge Card instruct the jury on the
lesser-included offense of attempted robbery in the first degree.
Beattys theory was that the jury could find Beatty and his co-
conspirators had planned to rob Fox and had taken a substantial
step to accomplish the robbery but Beatty and his co-conspirators
never completed the robbery because they did not confront Fox and
demand property. The state argued that the robbery statute had
been broadened by the legislature to include attempts and
therefore the offense of attempted robbery does not exists under
the Alaska criminal code. Judge Card accepted this argument and
denied Beattys proposed attempted robbery instruction.
The jury convicted Beatty of conspiracy to commit
robbery in the first degree and robbery in the first degree.
Judge Card sentenced Beatty to four years with two suspended for
conspiracy to commit robbery and seven years with two years
suspended for the robbery, to run concurrent with the conspiracy
sentence.
Under the Alaska criminal code, attempted
robbery in the first degree is an offense
Alaska Statute 11.41.510(a) defines second-degree
robbery:
A person commits the crime of robbery in the
second degree if, in the course of taking or
attempting to take property from the
immediate presence and control of another,
the person uses or threatens the immediate
use of force upon any person with the intent
to
(1) prevent or overcome resistence to the
taking of the property or the retention of
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.
Second-degree robbery is elevated to first-degree
robbery if, during the robbery, the person is (1) armed or
represents that he is armed with a deadly weapon, (2) uses or
attempts to use a dangerous instrument, or (3) causes or attempts
to cause serious physical injury to another.3
Thus, for the jury to convict Beatty of first-degree
robbery, the jury was required to find:
(1) that Beatty or an accomplice took or attempted
to take property from the immediate presence and
control of Fox;
(2) that Beatty or an accomplice used or
threatened immediate use of force upon Fox;
(3) with the intent to prevent or overcome
resistance from Fox or compel Fox to deliver the
property; and
(4) that Beatty or an accomplice was armed with a
deadly weapon or represented by words that they
were armed with a deadly weapon.
The Alaska criminal code went into effect in 1980.
Before the revised criminal code, attempt was not included within
the definition of robbery.4 Instead, robbery required the
defendant to steal or take property.5 If a defendant failed to
complete the theft during the robbery, he was guilty of assault
with the intent to commit robbery or attempted robbery.6
Under the revised code, robbery, assault with the
intent to commit robbery, and some attempted robberies were all
incorporated into one general inclusive robbery statute.7 The
commentary to the Alaska Revised Criminal Code indicates that the
additional language attempting to take was intended to
criminalize both a successful and unsuccessful robbery. The
legislative purpose behind the revised statute was to emphasize
the physical danger associated with robbery, not the theft of
property:
The revised Code does not require, for
either degree of robbery, that property
actually be taken from the victim. Under
existing law, robbery is only committed if
the robber steals or takes anything of value,
AS 1[1].15.240. If the would-be robber fails
to acquire any property, he is guilty of
Assault with Intent to Commit Robbery, AS
11.15.160, or simply Attempted Robbery. This
approach emphasizes the property aspects of
the crime and treats it as an aggravated form
of theft. If, however, the primary concern
is with the physical danger to the victim and
his difficulty in protecting himself from
sudden attacks against his person, then the
actual taking of property becomes less
important. The Revised Code emphasizes the
person, rather than the property, aspects of
the offense.8
But the commentary does not suggest that the additional
language was to eliminate all attempted robberies. The
legislative intent behind the revised robbery statute was to
criminalize unsuccessful takings of property to the same extent
as successful takings. The legislature was not trying to
criminalize anticipatory acts in preparation of a robbery under
the general robbery statute. This interpretation is consistent
with AS 11.41.510s language. The current statute reads:
[I]n the course of taking or attempting to
take property from the immediate presence and
control of another, the person uses or
threatens the immediate use of force[.]9
The phrase immediate presence and control seems to
relate to property, as only property can be within a persons
presence and control. The phrase uses or threatens to the
immediate use of force, on the other hand, seems to be
independent of taking or attempting to take. If attempting to
take only relates to property, and not to the use of or the
threatened use of force, then it appears that a person could
still face criminal liability under the general attempt statute
for the acts that led up to the robbery before he used or
threatened the immediate use of force to try to obtain property
from a others immediate presence and control.
Accordingly, the general concept of attempt as defined
in AS 11.31.100(a) must govern. That is, a person is guilty of
attempt if, with the intent to commit a crime, the person takes a
substantial step toward the commission of that crime.10 The
attempt statute is intended to encompass a wide-range of acts
beyond mere preparation. Examples include: lying in wait,
searching for or following the potential victim, enticing the
victim to go a contemplated place, possessing materials for the
commission of the offense, or any overt act done towards its
commission.11
The difference between attempted robbery and robbery is
not whether the theft was successful but whether the defendant
used or threatened to use force against the victim with the
intent to obtain property from the victims immediate presence and
control. The statute clearly criminalizes unsuccessful robberies
caused by victim resistence or lack of property. For example, a
defendant who initiates a robbery is still guilty of robbery if
the victim flees before the robber gains control of the property
or if the victim has an empty pocket.12 However, a defendant is
not guilty of robbery if the victim never shows up at a pre-
arranged meeting place where the defendant had planned to rob
him.13 A completed robbery requires the use of force or threat
of force in an attempt to take property from the immediate
presence of the victim. Once a defendant uses or threatens to
use force to implement the attempted taking, it is irrelevant
whether the taking is successful; the offense is a completed
robbery. But if the intended robbery is interrupted before the
defendants use of force or threat of force, the crime is
attempted robbery.
The Model Penal Code supports this view. Both the
Model Penal Code and the Alaska Criminal Code require the
defendant to use or threaten to use force during the robbery.14
According to the Model Penal Code commentary, the term threaten
implies a purposeful conduct that must be conveyed to the victim
either explicitly or implicitly.15 It is the defendants
purposeful behavior that controls whether the threat has been
communicated, not the victims reaction.16 Both the Model Penal
Code and AS 11.41.510 focus on the defendants intent during the
robbery and not the victims state of mind. Focusing on the
defendants purposeful behavior, as opposed to the victims
reaction, prevents a victims overreaction elevating an offense
from theft to robbery.17
For this reason, the Model Penal Code commentary notes
that under certain circumstances (e.g., where the actor does not
actually threaten harm or use force), the appropriate charge will
be attempted robbery, not robbery:
If, for example, the defendant is apprehended
before he reaches his robbery victim and thus
before he has actually engaged in threatening
conduct, proof of his purpose to engage in
such conduct will justify a conviction of
attempted robbery if the standards of [the
general attempt provision] are met. [The
general attempt provision] was drafted in
large part with the offense of robbery in
mind, applying as it does to one who is lying
in wait, searching for or following the
contemplated victim of the crime.18
Therefore, under Alaskas revised criminal code, a
person is guilty of attempted robbery if, with the intent to
commit the robbery, the person takes a substantial step toward
its commission. The crime becomes a completed robbery when in
the course of taking or attempting to take property from the
immediate presence and control of another, the person uses or
threatens the immediate use of force upon any person with the
intent to obtain or retain the property. It is the robbers use
or threat of force that distinguishes the completed robbery from
the attempt. Once force is used or threatened, a completed
robbery has occurred.
There was insufficient evidence to require
Judge Card to instruct the jury on attempted
robbery in the first degree
Attempted robbery in the first degree is a lesser-
included offense of robbery in the first degree.19 Therefore, if
Beatty could point to some evidence to support the reasonable
conclusion that he and his co-conspirators (1) intended to rob
Fox but (2) never actually used force or threatened the use of
force, then Judge Card was required to instruct on the lesser-
included offense.20
The only eyewitness to testify at trial was Adam
Alirez. At trial, Alirez testified that he and the others only
hid in the bushes in case a fight broke out. He denied any plan
to rob Fox. According to Alirez, when Fox showed up nothing
happened. It was only after he left that Alirez heard gun shots.
The state impeached Alirez with his prior statement to Det.
Vandervalk. In this prior statement, Alirez outlined how the co-
conspirators had planned the robbery. He stated that Beatty
called Fox and convinced Fox to come to the carwash. He
described how he hid in the woods and how he and the others
intended to run out of the bushes and order Fox to turn over his
money. He also described the gun that Tuttle had taken to the
carwash to threaten Fox. In both his trial testimony and his
prior statement, Alirez stated he left the carwash before the
planned robbery began.
To demonstrate what happened at the carwash once Fox
arrived, the state relied on the Glass recording of Beattys
conversation with Fox, Det. Vandervalks interviews with Beatty,
and the testimony of Officer Asselin, Officer Martin, and Alirez
that they heard gunshots coming from the area of the carwash at
approximately the time the planned robbery was to occur. The
state also introduced an expended bullet that Officer Martin
found in a vacuum at the carwash following the robbery. Beatty
did not testify at trial.
In the statements to Det. Vandervalk, Beatty stated
that he was in the car at the carwash with Fox and unloaded Foxs
gun. He stated that after someone sounded the horn, four or
five men came running out of the woods, trying to jump [Fox] and
beat [Fox] up. He stated that Fox jump[ed] in his car and people
start[ed] shootin[g] at . . . shootin[g] at his car. Beattys
major defenses at trial were that he had no prior knowledge of
the conspiracy to rob Fox and no evidence indicated what actually
happened once Fox arrived at the carwash.
On appeal, Beatty contends that the states evidence did
not clearly establish what happened at the carwash. Beatty
points out that the record suggests that Fox was unaware that the
purpose of any assault on him was a robbery. He argues that,
under the evidence the state presented at trial, it is possible
that Fox, a person who was armed and had a reputation as a drug
dealer, initiated the confrontation before the co-conspirators
were able to initiate the robbery. He also argues that, under
the evidence the state presented at trial, it is possible that
the co-conspirators did not confront Fox sufficiently for the
jury to find that the co-conspirators attempted to take property
from his immediate presence and control or that they managed to
use or threatened to use immediate force upon him. He argues
that under either of these versions of the facts, the jury could
have concluded that the state did not establish that he committed
robbery in the first degree but, instead, that he only committed
an attempted robbery in the first degree.
But Beattys argument relies totally on speculation. We
know from the jurys verdict on the conspiracy charge that the
jury found Beatty conspired with the others to rob Fox. The
evidence clearly established that shots were fired while Fox was
at the carwash and that Fox fled. Beattys own statement supports
the conclusion that the co-conspirators came out of the woods
trying to jump Fox and beat him up and that after Fox got into
his car, people started shooting at his car. There is simply no
basis to conclude that Fox initiated the confrontation before the
co-conspirators could initiate the plan to rob him or that the
robbers did not sufficiently confront or threaten Fox to support
a conclusion that a completed robbery did not occur. We conclude
that Judge Card did not err in refusing to instruct the jury on
the lesser-included offense of attempted robbery in the first
degree because the record does not establish that some evidence
supported a finding that this offense occurred.
The conviction is AFFIRMED.
MANNHEIMER, Judge, concurring.
I am writing separately to emphasize the salient points
of our decision. This appeal presents two questions: (1) Is
there such a crime as attempted robbery under Alaskas current
criminal code? And, if so, (2) Did the evidence at Beattys trial
justify an instruction on this crime?
There is a crime of attempted robbery under Alaska law
Under AS 11.41.510(a), the offense of robbery
includes not only forcible takings of property but also
the use of force or threat of force in attempting to
take property from the immediate presence and control
of another. If an attempt to take property constitutes
the completed crime of robbery, is there any lesser
conduct that might properly be called attempted
robbery?
The answer is yes. As the majority opinion
explains, the crime of robbery becomes complete when
the defendant (acting with one of the culpable mental
states specified in the statute) uses force or
threatens the use of force in an attempt to take
property from the immediate presence or control of
another. But if the attempt to take the property never
reaches this stage i.e., if the attempt is frustrated
or interrupted before the defendant (or one of the
defendants accomplices) begins to use force or
threatens to use force then the defendants conduct may
constitute an attempted robbery. This is because,
under AS 11.31.100(a), an attempt may be proved based
on various preparatory acts that can occur before the
would-be robber ever begins or threatens the use of
force. According to the commentary written by the
drafters of our Criminal Code, an attempt can consist
of acts such as lying in wait for the victim, searching
for or following the intended victim, enticing the
victim to come to the place contemplated for the
offense, gathering unlawful materials to be used in the
commission of the offense, or any other overt act done
toward the commission of the contemplated offense.1
Did the evidence at Beattys trial justify a jury
instruction on the lesser offense of attempted robbery?
Because Beatty was charged with robbery,
attempted robbery was a potential lesser included
offense in his case. But a defendant is not entitled
to a jury instruction on a potential lesser included
offense unless (1) the defendant necessarily committed
the lesser offense if he or she committed the charged
offense in the manner alleged by the State; (2) the
defendant actually disputes the element or elements
distinguishing the charged offense from the lesser; and
(3) the evidence would support a reasonable conclusion
that the defendant is guilty of only the lesser offense
and not the charged offense.2
Beattys appeal falters on this third
requirement. The evidence at Beattys trial shows that
Beatty and his accomplices conspired to rob Fox, lured
Fox to the place contemplated for the robbery, and then
fired shots at Fox as he fled to avoid being robbed.
Even if Fox became suspicious and began to flee before
Beatty and his cohorts could threaten Fox or otherwise
communicate their intention to rob him, this active use
of force to prevent Foxs flight made the crime of
robbery complete.
Beatty does not dispute that shots were fired
at Fox, but he suggests that his crime might still be
attempted robbery if those shots were fired in self-
defense. Beatty suggests the following scenario: he
and his accomplices conspired to rob Fox, and they
lured Fox to a location where the robbery would take
place; but before they ever threatened Fox or
communicated their intention to rob him in any other
manner, Fox commenced an unprovoked assault on them
and thus Beatty and his accomplices shot at Fox in self-
defense rather than in furtherance of the planned
robbery.
There is no evidence to support these
assertions. Beattys scenario rests entirely on
speculation. Thus, he was not entitled to a jury
instruction on attempted robbery.
_______________________________
1 AS 11.31.120(a)(1); AS 11.41.500(a)(1).
2 AS 11.41.500(a)(1).
3 AS 11.41.500(a).
4 See former AS 11.15.240 (repealed 1978).
5 See former AS 11.15.240 (repealed 1978).
6 See former AS 11.15.160 (repealed 1978); see, e.g.,
Brookins v. State, 600 P.2d 12, 14-15 (Alaska 1979).
7 See Alaska Criminal Code Revision Part II, at 81 (Tent.
Draft 1977).
8 Id.
9 AS 11.41.510.
10 AS 11.31.100(a).
11 Alaska Criminal Code Revision Part II, at 73 (Tent.
Draft 1977) (citing Model Penal Code (MPC) 5.01(2)).
12 MPC Part II, 222.1 cmt. at 99-100 (1980).
13 Id. at 114-15.
14 See MPC Part II, 222.1 at 96 (1980); AS 11.41.510(a).
15 MPC Part II, 222.1 cmt. at 114-15.
16 See id.
17 See id.
18 Id. at 115.
19 See Alaska R. Crim. P. 31(c).
20 See Hartley v. State, 653 P.2d 1052, 1054 (Alaska App.
1982).
1 See Alaska Criminal Code Revision, Tentative Draft, Part 2
(1977), p. 73.
2 See State v. Minano, 710 P.2d 1013, 1016 (Alaska 1985);
Elisovsky v. State, 592 P.2d 1221, 1225 (Alaska 1979);
Petersen v. State, 930 P.2d 414, 433 (Alaska App. 1996);
Blackhurst v. State, 721 P.2d 645, 648 (Alaska App. 1986).
