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NOTICE
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303 K Street, Anchorage, Alaska 99501
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
BRUCE DICKIE, )
) Court of Appeals No. A-10670
Appellant, ) Trial Court No. 3AN-09-6508 CR
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. )
) No. 2365 - July 27, 2012
Appeal from the Superior Court, Third Judicial District,
Anchorage, Philip R. Volland, Judge.
Appearances: Josie Garton, Assistant Public Defender, and
Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Tamara E. de Lucia, Assistant Attorney General, Office of
Special Prosecutions and Appeals, Anchorage, and John J.
Burns, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger,
Judges.
BOLGER, Judge.
Bruce Dickie appeals his conviction for first-degree stalking of a family in
Anchorage. Dickie contends that the State's evidence was legally insufficient to prove
that his repeated contacts with the family were "nonconsensual" within the meaning of
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AS 11.41.270(b)(3) - i.e., that these contacts were "initiated or continued without [the
family's] consent, ... or ... in disregard of [the family's] expressed desire that the
contact[s] be avoided or discontinued." In particular, Dickie argues that the State's
evidence in this case was insufficient to prove that he knew that his contacts with the
family were contrary to their wishes. We conclude that the State's evidence, viewed in
the light most favorable to the jury's verdict, was sufficient to establish this element of
the offense.
Dickie also argues that the statutory definition of "nonconsensual" is
unconstitutionally broad unless we require the State to prove that the unwanted contacts
were accompanied by some degree of coercion or force. For the reasons explained in this
opinion, we reject this contention.
In a separate claim, Dickie argues that the superior court committed plain
error by failing to instruct the jury on the definition of "victim" under the stalking statute.
Dickie contends that, without this statutory definition, the jury might have convicted him
of stalking even though they believed Dickie's proposed defense - i.e., even though the
jurors concluded that Dickie was not targeting the family who lived at the residence, but
was instead making good-faith but misguided efforts to contact someone else who he
mistakenly believed lived in that residence.
We conclude that, given the instructions that the jury did receive, and given
the final arguments of the parties, there was no risk that the jurors misunderstood
Dickie's proposed defense. Accordingly, the superior court's failure to give the jurors
a more technical definition of "victim" was not plain error.
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Background
The Petersen family resided in a duplex in Anchorage. In May 2009, the
Petersens' eighteen-year-old daughter saw Dickie walking around their house at
approximately 9:30 p.m., holding a bag of beer. A short time later, Dickie knocked on
the door and asked for someone named Sherry Anson. The daughter informed Dickie
that Sherry Anson did not live at that residence. Dickie then left.
About two weeks later, the Petersens found a pizza on their front porch.
Another week later, someone left two Starbucks coffee drinks and a bag of deli food
from Fred Meyer on the porch. At the end of May, the family left town for Memorial
Day weekend and returned to find a can of Pringles potato chips on their porch.
On June 1, the Petersens observed Dickie return to the house and leave
another bag of Fred Meyer deli food on the porch. Mr. Petersen was able to stop Dickie
in the driveway and ask why he was leaving the food. Dickie stated that he thought his
friend, Sherry Anson, lived at the house. Dickie said his name was Bruce, but gave a
false last name.
Mr. Petersen informed Dickie that he was scaring his family and that he
believed Dickie was stalking them. Mr. Petersen said he would call the police if Dickie
returned to their home. Mr. Petersen wrote down Dickie's license plate number as he
drove away.
On June 8, Ms. Petersen was watching a movie when she saw Dickie enter
their yard from the woods behind their duplex. Dickie was swaying and appeared to be
drunk. Mr. Petersen herded his family upstairs into a bedroom, while Ms. Petersen called
911 on her cell phone. Dickie was crouched down in the yard and holding "a big, silver
gun." He eventually got up and walked out of the yard through a wooded area.
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Anchorage police responded to the 911 dispatch and went to Dickie's
home, a short distance from the Petersens' duplex. Dickie was slurring his speech and
had an odor of alcohol about him. Anchorage Police Officer Jonathan Gould performed
a field sobriety test that led him to believe Dickie was intoxicated.
Police found two guns and several magazines of ammunition in Dickie's
pants. One of the guns was a Para-Ordnance that had a round of ammunition in the
chamber and rounds of ammunition in the magazine. The second gun, a nine-millimeter
Beretta, contained rounds in the magazine. Police also found "a very large" loaded Smith
and Wesson revolver on Dickie's couch. Police located three other guns - a loaded .44
Ruger handgun, a 30.06 rifle, and a Blissfield shotgun - in Dickie's bedroom.
Dickie was indicted on one count of third-degree misconduct involving
1 2
weapons, one count of first-degree stalking, and one count of first-degree criminal
3
trespass. After the State presented its case at trial, Dickie moved for a judgment of
acquittal on the stalking charge. Dickie argued that the State failed to prove that he
engaged in a course of conduct that placed the Petersens in fear of death or physical
injury. Superior Court Judge Philip R. Volland denied Dickie's motion. The jury found
Dickie guilty of all three charges, and he now appeals.
Discussion
Dickie raises two arguments on appeal. First, Dickie argues that the court
erred in denying his motion for judgment of acquittal because the State failed to show
1 AS 11.61.200(a)(7).
2 AS 11.41.260(a)(4).
3 AS 11.46.320(a)(1).
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that Dickie made repeated, nonconsensual contacts with the Petersens as necessary to
satisfy the stalking statute. Dickie also argues that the trial court erred in failing to
instruct the jury on the definition of the term "victim."
The trial court did not err in denying Dickie's motion for
judgment of acquittal.
A person commits the crime of stalking when the person "knowingly
engages in a course of conduct that recklessly places another person in fear of death or
physical injury, or in fear of the death or physical injury of a family member."4 The
statute defines the phrase "course of conduct" as "repeated acts of nonconsensual contact
involving the victim or a family member."5 "[N]onconsensual contact" is defined as "any
contact with another person that is initiated or continued without that person's consent,
that is beyond the scope of the consent provided by that person, or that is in disregard of
that person's expressed desire that the contact be avoided or discontinued."6 Such
contacts include "appearing within the sight of that person"; "entering onto or remaining
on property owned, leased, or occupied by that person"; and "placing an object on, or
delivering an object to, property owned, leased, or occupied by that person."7
Dickie argues on appeal that his conduct does not fall within the definition
of stalking because his conduct does not meet the definition of "nonconsensual contact."
4 AS11.41.270(a) (defining second-degree stalking). Under AS 11.41.260(a), a person
commits first-degree stalking if they violate the second-degree stalking statute and "at any
time during the course of conduct constituting the offense, the defendant possessed a deadly
weapon."
5 AS 11.41.270(b)(1).
6 AS 11.41.270(b)(3).
7 AS 11.41.270(b)(3)(A), (D), (G).
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Dickie argues that we should require an element of coercion or force as part of the phrase
"without that person's consent" to address potential constitutional problems with the
stalking statute. Because these claims raise questions of statutory interpretation, our goal
is to determine the intent of the legislature and to implement that intent.8
In Petersen v. State , we noted that the phrase "without that person's
9
consent" appears to cover all contacts that are not expressly authorized beforehand. But
we noted that this broad coverage is tempered by the other elements of the statute: "To
establish the crime of stalking, the government must prove that the defendant knowingly
engaged in repeated acts of nonconsensual contact, the government must prove that these
nonconsensual contacts placed another person in fear of injury or death, and the
government must prove that the defendant acted with reckless disregard for this result."10
Because of these elements, we held that the stalking statutes do not criminalize
nonconsensual contacts made for "legitimate purposes, even when the defendant knows
that the person contacted may (or will) unreasonably perceive the contact as
threatening." 11
Under the facts of this case, we likewise conclude that the requirements of
the stalking statute pass constitutional muster even if we do not require the prosecution
to show an element of coercion or force as part of the proof that the defendant's course
of conduct against the victim was "without that person's consent."
8 Boyd v. State , 210 P.3d 1229, 1231 (Alaska App. 2009).
9 930 P.2d 414, 425 (Alaska App. 1996).
10 Id. at 431.
11 Id .
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In the stalking statute, the legislature did not provide a statutory definition
for the phrase "without that person's consent" or for the word "consent." The word
consent is generally defined as "[a]greement, approval, or permission as to some act or
purpose." 12 "Without consent" then refers to the lack of agreement, approval, or
permission.
Because the meaning of "without consent" appears to be clear from the
dictionary definition, Dickie bears a heavy burden to demonstrate the legislature intended
to adopt the meaning he advocates on appeal.13 To satisfy this burden, Dickie must show
that the legislature enacted the statute with the intent of requiring force or coercion to
satisfy this element of the stalking statute.
Dickie does not point to any legislative history demonstrating that the
legislature intended to require force or coercion where the defendant initiates contact
without the victim's consent. Had the legislature intended to require an element of
coercion or force, the legislature could have included a statutory definition similar to the
statutory definitions in the sexual offense, kidnapping, custodial interference, and human
trafficking statutes.14 The lack of a similar definition in the stalking statute appears to
indicate that the legislature did not intend to require force or coercion as part of the
definition of nonconsensual contact.
We now turn to the evidence in this case. When we examine the sufficiency
of the evidence to support a conviction, we view "the evidence in the light most
favorable to the state and [ask] whether reasonable jurors could conclude that the
12 Black's Law Dictionary 323 (8th ed. 2004).
13 Stephan v. State, 810 P.2d 564, 566 (Alaska App. 1991).
14 See AS 11.41.370(3); AS 11.41.470(8).
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accused's guilt was established beyond a reasonable doubt."15 In this case, the evidence
indicates that the first time Dickie arrived at the Petersens' residence, Dickie knocked on
the door and asked for Sherry Anson. The daughter informed Dickie during that first
encounter that "nobody lives here by that name." From that point forward, Dickie was
on notice that Sherry Anson was not present at that residence and that his continuing
contacts with the Petersens were without their consent.
Dickie then repeatedly stopped by the house and left food without
attempting to contact the Petersens. When Mr. Petersen confronted Dickie, he gave a
false name. Dickie's conduct suggested that he knew he did not have the Petersens'
consent, that he possibly knew his conduct was criminal, and that he felt the need to
operate with some degree of secrecy. Then, after Mr. Petersen told Dickie not to come
back, Dickie returned to the Petersens' house with a gun. A juror could reasonably
conclude that Dickie knew that his contacts with the Petersens were without their
consent.
The trial court did not commit plain error in failing to
instruct the jury on the definition of "victim."
Dickie argues on appeal that the court committed plain error in failing to
instruct the jury on the definition of the term, "victim." Because Dickie's defense at trial
was that he was looking for Sherry Anson, he argues that the court's failure to instruct
the jury "permitted the jury to find that Dickie had engaged in stalking even if he did not
target the Petersens."
Criminal Rule 30(a) states that a party who disagrees with a jury instruction
must object before the jury retires to deliberate. When a litigant does not make a timely
15 Simpson v. State, 877 P.2d 1319, 1320 (Alaska App. 1994).
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objection to the court's failure to provide a jury instruction, we review the claim for plain
16
error. In the context of jury instructions, this court will only find plain error when the
lack of an instruction "creates a high likelihood that the jury followed an erroneous
theory[,] resulting in a miscarriage of justice."17
The stalking statute defines "victim" as "a person who is the target of a
course of conduct."18 The statutory definition of victim does not differ dramatically from
the dictionary definition. A dictionary definition of this term includes "[o]ne who is
harmed by or made to suffer from an act, circumstance, agency, or condition." 19 Black's
Law Dictionary defines victim as "[a] person harmed by a crime, tort, or other wrong."20
Because the dictionary definitions of victim do not differ significantly from the statutory
definition, it is unlikely that the jury would have understood the term "victim" in a
manner that differed significantly from the plain and ordinary meaning of the term.
Moreover, the lack of a jury instruction defining this term did not create a
likelihood that the jury followed an erroneous theory. The jury instructions required the
jury to find Dickie not guilty of stalking if they concluded that Dickie was mistaken
about the object of his conduct. The jury instructions stated, "If you find that the
defendant had a reasonable mistake of fact that he was not engaging in a 'course of
conduct' ... , then you must find him not guilty of Stalking in the First Degree." The
16 Heaps v. State , 30 P.3d 109, 114 (Alaska App. 2001).
17 In re Estate of McCoy , 844 P.2d 1131, 1134 (Alaska 1993).
18 AS 11.41.270(b)(4).
19 The American Heritage Dictionary of the English Language 1990 (3d ed. 1992).
20 Black's Law Dictionary 1598 (8th ed. 2004).
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instructions also defined the term "course of conduct" as "repeated acts of nonconsensual
contact involving the victim or a family member."
Based on these jury instructions, Dickie's counsel argued to the jury that
Dickie was merely mistaken about who was living in the duplex. In response, the
prosecutor argued to the jury that Dickie was not mistaken about the fact that his conduct
was directed at the Petersens.
We conclude that the jury was adequately instructed that they should find
Dickie not guilty of stalking if they believed that Dickie was only looking for an
acquaintance named Sherry Anson. The jury rejected this theory when they returned the
guilty verdict. Accordingly, we conclude that the lack of an instruction on the statutory
definition of the term "victim" did not create a likelihood that the jury followed an
erroneous theory.
Conclusion
We AFFIRM the superior court's judgment.
10 2365
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