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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
NOLAN P. MOORE,
Appellant, Court of Appeals No. A-10200
Trial Court No. 3PA-06-3030 Cr
v.
STATE OF ALASKA, O P I N I
O N
Appellee.
End of Caption
No. 2243 October 2, 2009
Appeal from the Superior Court, Third Judi
cial District, Palmer, Eric Smith, Judge.
Appearances: David D. Reineke, Assistant
Public Defender, and Quinlan Steiner, Public
Defender, Anchorage, for the Appellant. Amy
M. Williams, Assistant Attorney General,
Criminal Division Central Office, and Richard
A. Svobodny, Acting Attorney General, Juneau,
for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Bolger, Judges.
MANNHEIMER, Judge.
Around 1:00 in the morning on December 7, 2006, Nolan
P. Moore entered a Tesoro service station located at the junction
of the Parks Highway and Main Street in Wasilla. Brandishing a
kitchen knife with a 6- to 8-inch blade, he demanded that the
clerk give him money. When the clerk did not immediately comply,
Moore pounded the hilt of the knife on the service counter and
declared, Money, now! The clerk then surrendered the money in
the till an estimated $31, which included a two-dollar bill with
a recorded serial number.
As soon as Moore left the service station, the clerk
summoned the police. Moore was apprehended a few minutes later.
The police brought the store clerk to the site of the arrest, and
he identified Moore as the man who had just robbed him. During
Moores encounter with the police, a bundle of cash tumbled out of
his pants leg. Among this cash was the two-dollar bill with the
pre-recorded serial number.
Based on this incident, Moore was charged with two
offenses. The first of | these was first-degree robbery under AS 11.41.500(a | )(1 | ), for taking property from the store clerks immediate presence and control by threatening the immediate use of force while armed with a deadly weapon (the knife | ). The second charged offense was third-degree assault under AS 11.41.220(a | )(1 | )(A | ), for placing the store clerk in fear of imminent serious physical injury by means of a dangerous instrument (the knife | ). |
| Moore contested these charges at a jury trial, but he was convicted. In this appeal, Moore does not challenge the result of his trial, but he argues that the superior court committed two errors at his sentencing. | |||||||
Moores argument that his first-
degree robbery sentence should have been mitigated
under AS 12.55.155(d)(9) (conduct among the least
serious within the definition of the offense)
At sentencing, Moore argued that his robbery
sentence should be mitigated under AS 12.55.155(d)(9),
the provision that applies when a felony defendants
conduct is among the least serious within the
definition of the offense. The superior court rejected
this proposed mitigator, and Moore now renews his claim
on appeal.
In his brief to this Court, Moore presents a
multi-faceted argument as to why his conduct should be
considered among the least serious. Moore argues (1)
that he did not use a gun, (2) that he did not injure
anyone, (3) that the robbery was both unplanned and
poorly executed, (4) that he was captured within
minutes, (5) that he did not resist the police when
they arrested him, (6) that the amount of money taken
during the robbery was small, and (7) that all of this
money was recovered.
However, with the exception of the first two
of these arguments (i.e., the fact that Moore did not
use a gun, and that no one was injured), none of the
arguments contained in Moores brief were presented to
the sentencing judge. At the sentencing hearing,
Moores substantive argument of this point was confined
to the following:
Defense Attorney: [L]east serious
conduct ... would include the fact that
[Moore] used a knife and not a firearm. ...
Obviously, the Court has seen the [store
surveillance] video, [and] has seen the
trial, [and] knows that ... he came into
[the] store and brandished a knife which I
think is significantly different than pulling
a firearm on people and pointing it in their
direction ... . There was also a counter in
between [Moore] and the victim. So, in terms
of a robbery, we feel that this would be the
least serious robbery. ... [Also,] nobody
was injured ... .
In other words, the sentencing
judge was only asked to consider the fact
that Moore used a knife rather than a gun,
that Moore and the store clerk were separated
by a service counter, and that no one was
harmed. Moore never asked the superior court
to consider, or to rule on the validity of,
the other assertions of fact that he puts
forward in his appellate brief.
However, the State appears to
concede the accuracy of all of Moores factual
assertions except one: the assertion that
the robbery was unplanned and poorly
executed. Accordingly, with that one
exception, we will overlook Moores procedural
default.
We begin our analysis by noting
that it was Moores burden to prove his
proposed mitigating factor by clear and
convincing evidence. See AS 12.55.155(f)(1).
When we, as an appellate court, review the
superior courts decision on this issue, we
must accept the superior courts findings of
historical fact unless those findings are
shown to be clearly erroneous; but we
independently assess the legal question of
whether, given those facts, Moores conduct
was among the least serious within the
definition of first-degree robbery. See
Michael v. State, 115 P.3d 517, 519 (Alaska
2005).
Contrary to Moores argument on
appeal, it is not obvious that a robber
wielding a large knife poses less of a danger
than a robber wielding a firearm when, as
here, the victim is within striking distance
of the robber. A knife can be deadly at
close quarters. Both firearms and knives are
classified as deadly weapons for purposes of
our criminal code. See AS 11.81.900(b)(17).
In an unpublished decision, Dunnell
v. State,1 we confronted a situation similar
to the one presented in Moores case. The
defendant in Dunnell was convicted of first-
degree robbery for committing two separate
robberies while armed with a large kitchen
knife. In one robbery, Dunnell displayed the
knife but did not use it to injure his
victim; in the other robbery, Dunnell merely
held the knife in his coat pocket without
displaying it.2
At sentencing, Dunnell argued that
a knife was considerably less dangerous than
a loaded firearm, and that therefore his
conduct should be deemed among the least
serious within the definition of the offense
mitigator (d)(9).3 This Court rejected
Dunnells argument that knives were inherently
less dangerous than firearms. We held that
the relevant issue, for purposes of
evaluating the proposed mitigator, was the
level of danger created or posed under the
particular circumstances of Dunnells case:
[B]ecause first-degree robbery is primarily a
crime against persons, the seriousness of the
defendants conduct must be gauged by the
actual risk of physical injury created in
each case. [Citation omitted] In the
present case, this is precisely the manner in
which [the sentencing judge] evaluated the
seriousness of Dunnells conduct. Given the
level of risk arising from Dunnells
possession of a large kitchen knife during
each of the robberies, we conclude that [the
sentencing judge could properly decline] to
find that Dunnells conduct was among the
least serious in its class.
Dunnell, slip opinion at 4, 1990 WL 10509494
at *2 (citations omitted).
In Moores case, the superior court
followed the same kind of analysis that we
described in Dunnell when the court concluded
that Moore had failed to prove mitigator
(d)(9). The superior court rejected Moores
argument that robberies committed with knives
were inherently among the least dangerous.
And, with respect to the particular facts of
Moores case, the superior court noted that
Moore brandished [the] knife, was aggressive
toward the store clerk, and was pretty close
to the clerk.
Given these facts, the superior
court was justified in concluding that Moore
failed to prove mitigator (d)(9).
Moores argument that he should not have received
separate convictions and sentences for first-
degree robbery and third-degree assault
Moore argues that he should not have received
separate convictions and sentences for first-degree
robbery and third-degree assault; rather, the superior
court should have merged the jurys verdicts into one
conviction for the greater offense, first-degree
robbery.
Moore was prosecuted for first-degree robbery
because, by threatening the immediate use of force, and
while armed with a deadly weapon, he coerced the store
clerk to surrender money that was in the clerks
immediate presence and control.4 Moore was prosecuted
for third-degree assault under AS 11.41.220(a)(1)(A)
that is, under the theory that he placed the store
clerk in apprehension of imminent serious physical
injury by means of a dangerous instrument (the knife).
In a series of unpublished decisions, we have
repeatedly concluded that under these circumstances
that is, when the same threat of harm that is a
component of the defendants act of robbery is also
separately charged as a third-degree assault against
the same victim the State is allowed to litigate both
charges to the jury, but if the jury returns guilty
verdicts on both charges, the double jeopardy clause of
the Alaska Constitution requires that the verdicts be
merged into one conviction and sentence. See Sudbury
v. State,5 Tremont v. State,6 and Holmes v. State.7
Based on the reasoning found in these prior
unpublished decisions, the State confesses error and
agrees that Moore should have received only a single
conviction and sentence for first-degree robbery. We
conclude that the States confession of error is well-
founded,8 and we now take the opportunity to issue a
published decision confirming the rule that we
previously applied in Sudbury, Tremont, and Holmes.
The superior court is directed to amend its
judgement so that it reflects a single merged
conviction for first-degree robbery based on the jurys
two guilty verdicts on the robbery and assault charges.
Because Moores sentence for the assault was completely
concurrent with his robbery sentence (in other words,
the assault sentence did not increase Moores composite
sentence in any way), the elimination of this separate
assault sentence should not require a re-examination of
Moores composite sentence.
Conclusion
The judgement of the superior court is
AFFIRMED IN PART AND REVERSED IN PART. We affirm the
superior courts rejection of proposed mitigator (d)(9),
but we agree that Moore is entitled to a merger of his
convictions for first-degree robbery and third-degree
assault. Accordingly, the superior court is directed
to amend the judgement so as to eliminate Moores
separate conviction for third-degree assault.
_______________________________
1Alaska App. Memorandum Opinion No. 2122 (November 7, 1990),
1990 WL 10509494.
2Id., slip opinion at 1-2, 1990 WL 10509494 at *1.
3Id., slip opinion at 2, 1990 WL 10509494 at *1.
4 See AS 11.41.510(a) (the basic definition of robbery i.e.,
second-degree robbery) and AS 11.41.500(a)(1) (defining
first-degree robbery as any robbery where the perpetrator is
armed with a deadly weapon).
5 Alaska App. Memorandum Opinion No. 5170 (January 31, 2007),
slip opinion at pp. 8-10; 2007 WL 293129 at *4-5.
6 Alaska App. Memorandum Opinion No. 2880 (March 30, 1994),
slip opinion at p. 5, 1994 WL 16196222 at *3.
7 Alaska App. Memorandum Opinion No. 616 (June 20, 1984), slip
opinion at pp. 7-10, 1984 WL 908540 at *3-4.
8 See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972)
(requiring an appellate court to independently assess any
concession of error by the State in a criminal case).
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