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Terry Allen Turner v. State of Alaska (7/5/2024) ap-2784

Terry Allen Turner v. State of Alaska (7/5/2024) ap-2784

                                                         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@akcourts.gov  

                                                                 

                                                                 

                  IN THE COURT OF APPEALS OF THE STATE OF ALASKA  

  

  

TERRY ALLEN TURNER,                                                   

                                                                           Court of Appeals No. A-13642  

                                       Appellant,                       Trial Court No. 3AN-19-07678 CR  

                                                                      

                             v.                                       

                                                                                       O P I N I O N  

STATE OF ALASKA,                                                      

                                                                      

                                       Appellee.                               No. 2784 - July 5, 2024  

  

  

                   Appeal  from  the   Superior  Court,   Third  Judicial  District,  

                   Anchorage, Andrew Guidi, Judge.  

                     

                   Appearances:  Jay  A.  Hochberg,  Attorney  at  Law,  Honolulu,  

                   Hawaii, under contract with the Public Defender Agency, and  

                    Samantha   Cherot,   Public   Defender,   Anchorage,   for   the  

                   Appellant.   Heather   Stenson,   Assistant   Attorney   General,  

                   Office of Criminal Appeals, Anchorage, and Treg R. Taylor,  

                   Attorney General, Juneau, for the Appellee.  

                     

                   Before:  Allard,  Chief  Judge,  and  Wollenberg  and  Terrell,  

                   Judges.  

                     

                   Judge TERRELL.  


----------------------- Page 2-----------------------

                                                                                                                      



                  Terry Allen Turner was convicted, following a jury trial, of second-degree  



                                                                                                              1 

robbery  and  fourth-degree theft  after he tried to steal alcohol from a liquor store.  He  



received a composite sentence of 4 years and 6 months to serve.   



                  Turner raises two claims on appeal. First, Turner argues that the superior  



court failed to accurately respond to jury questions about the applicable culpable mental  



state for the element of robbery that requires that the defendant "use[] or threaten[] the  



                                   2 

immediate  use  of  force."   We  have  reviewed  the  trial  record  and  we  conclude  that  



although  the  court's  responses  could  have  been  clearer,  there  is  no  reasonable  



possibility that the jury convicted Turner on a legally impermissible theory.  



                  Second, Turner notes that the superior court  erroneously thought that he  



was  eligible  for  discretionary  parole  on  his  second-degree  robbery  conviction  and  



argues that the court might have fashioned a different sentence absent this error. Turner  



therefore  seeks  a  remand  for  resentencing.  Because  the  record  provides  no  basis  to  



conclude that the judge's mistaken belief regarding Turner's parole eligibility affected  



the sentence imposed, we decline to remand this case for resentencing.  



                    



         Turner's challenge to the superior court's responses to the jury questions  



                  This case arose after Turner entered a liquor store and then twice tried to  



run out of the store carrying bottles of whiskey without paying for them. The first time  



Turner  tried  to  run  out  of  the  store  carrying  two  bottles  of  whiskey,  an  employee  



standing near the door blocked the exit with his body, and Turner "bounced" off the  



employee and back into the store. Turner retreated into the store, ran to the back of the  



store, and tried to exit out the back door, but that door was locked. A different employee  



                                      

     1   AS 11.4 1.510(a)(1) and AS 11.46.150(a), respectively. The jury also found Turner  



guilty  of  fourth-degree  assault,  AS  11.41.230(a)(3),  but  this  count  merged  into  his  

conviction for robbery.  



     2   AS 11.41.510(a).  



                                                       - 2 -                                                    2784  


----------------------- Page 3-----------------------

                                                                                                                   



confronted Turner with bear spray and ordered him to put down the bottles of whiskey,  



which  he  did.  But  as  Turner  was  being  escorted  towards  the  front  of  the  store,  he  



grabbed another bottle of whiskey and again tried to run with it out the front door.  



Turner ran into the employee guarding the front door for a second time, "bouncing"  



back into the store. This time, the employee got the bottle of whiskey away from Turner,  



and Turner left the store emptyhanded.   



                 Based on this conduct, Turner was charged with,  inter alia, first-degree  



           3 

robbery.   The jury acquitted Turner of first-degree robbery but convicted him of the  



lesser included charge of second-degree robbery under AS 11.41.510(a)(1). In relevant  



part, this statute provides that a person commits second-degree robbery if, in the course  



of taking property from another, "the person uses . . . force  upon any person with intent  



to  . . . prevent or overcome resistance to the taking of the property or the retention of  



                                     4 

the property after taking[.]"  This language does not specify a mental state applicable  



to the defendant's use of force. But the language does make it clear that the defendant  



must use force  "with intent to"  accomplish a particular result, namely preventing or  



overcoming resistance to the taking of property.   



                 In his closing argument, defense counsel argued that Turner had not used  



force against the liquor store employee who guarded the front door and that, instead,  



the employee had used force against him.  The attorney  noted that the employee had  



moved to block the exit while Turner was running towards it, and argued that a person  



cannot use force without intending to do so. According to the attorney, the employee  



"had the intention of making bodily contact with [Turner]," while "[Turner's] intention  



. . . was to get out of the store, not to commit some sort of assault on [the employee]."   



                                     

    3    AS 11.41.500(a)(1).   



    4    AS 11.41.510(a)(1) (emphasis added).  



                                                      - 3 -                                                  2784  


----------------------- Page 4-----------------------

                                                                                                                   



                  The State, meanwhile, argued that Turner "chose to run at the door with  



[the employee] standing right there" and "had the option to stop running and not use  



the force . . . , but he chose not to." Thus, the State argued, Turner intended to use force.   



                  The  superior  court  instructed  the  jury  using  the  criminal  pattern  jury  



instruction for second-degree robbery.  The criminal pattern jury instruction  spatially  



separates the requirement that the defendant use force  from the requirement that the  



defendant act with intent to prevent or overcome resistance to the taking of property.  



Here is how the criminal pattern instruction (and the instruction given to the jury in this  



case) describes the crime of second-degree robbery:   



                  To prove that the defendant committed this crime, the state  

                 must prove beyond a reasonable doubt each of the following  

                  elements:  



                  (1)     the defendant used or threatened the immediate use of  

                 force  upon any person;  



                  (2)     the  defendant  did  so  in  the  course  of  taking  or  

                  attempting to take property from the immediate presence and  

                  control of another; and   



                  (3)     the  defendant  intended  to  .  .  . prevent  or overcome  

                 resistance to the taking of the property or the retention of the  

                 property . . . .[5]  



Neither party objected to this instruction at the time it was issued.   



                 But after the case was submitted to the jury, the jury twice asked questions  



about the culpable mental state for the use-of-force element.   



                 First, the jury requested a definition of the words  "use" and "used"  and  



asked, "[I]s intent implied in the 'use' of force?" Defense counsel argued that the court  



should instruct the jury that a defendant must  "intentionally" use force in order to be  



found guilty, while the prosecutor argued that the court should instruct the jury that a  



defendant has to "knowingly" use force.   



                                     

    5    Emphasis added.  



                                                      - 4 -                                                  2784  


----------------------- Page 5-----------------------

                                                                                                              



                 The court ultimately decided to instruct the jury that "the use of force must  



be intended in the manner described in the 3rd element" of the jury instruction on the  



elements of  second-degree  robbery.  The third element of the second-degree robbery  



instruction informed the jury that the State had to prove that "the defendant intended to  



either prevent or overcome resistance to the taking of the property or the retention of  



the property or compel any person to deliver the property or engage in other conduct  



which might aid in the taking of the property." The court reasoned that this  response  



best answered the jury's question because it pointed the jury to the specific intent that  



Turner had to have when he used force. The court believed that this would foreclose the  



possibility of the jury finding Turner guilty based on "an accidental bumping" of the  



employee  because  the  jury  would  have  to  find  that  Turner  made  contact  with  the  



employee with a specific intent.   



                 Both parties agreed to this response. The parties also agreed that the court  



would instruct the jury that the words "use" and "used" have their common meanings.   



                 The next day, the jury asked the court to provide it with definitions of the  



"common meaning" of the words "use" and "used." The jury note also asked, "Can an  



individual 'use' force intentionally, knowingly, recklessly or un[i]ntentionally[?]"   



                 With respect to  defining the common meanings  of the words  "use" and  



"used," the parties and the court discussed providing a  definition from the dictionary  



but ultimately agreed that the court would decline to provide a further definition.   



                 With respect to the question about the culpable mental state for the use of  



force, the court decided to provide the jury with the language of the statute because it  



believed that the requirement that the defendant use force with a specific intent was  



clearer in the statutory language than in the pattern jury instruction.  The court noted  



that  the  specific  intent  language  in  the  statute  immediately  followed  and  clearly  



modified the use-of-force language - requiring that the defendant "use[] or threaten[]  



the  immediate  use  of  force  upon  any  person  with  intent  to"  prevent  or  overcome  



resistance  or  compel  delivery  -  while  the  pattern  jury  instruction  separated  these  



                                                   - 5 -                                                2784  


----------------------- Page 6-----------------------

                                                                                                                         



requirements into separate, unconnected elements. Turner objected to this response and  



requested that the court instruct the jury that a defendant must "intentionally" use force  



in order to be guilty of robbery. The court rejected this request.   



                  After  receiving the court's  second answer, the jury  acquitted Turner of  



first-degree robbery but  found Turner guilty of second-degree robbery, fourth-degree  



theft,  and  fourth-degree  assault.  (As  we  noted  previously,  the  fourth-degree  assault  



count merged with the second-degree robbery conviction.)  



                    



          Why  we  reject  Turner's  challenge  to the  court's  responses  to  the  jury  

         questions  



                  On appeal, Turner argues that the court erred when it rejected his request  



to instruct the jury that the mental state applicable to the use-of-force element of robbery  



is "intentionally."    



                  Under Alaska Criminal Rule 30(b), a trial court must generally "instruct  



the jury on all matters of law which it considers necessary for the jury's information in  



giving their verdict." If the jury asks a legal question while deliberations are underway,  



the  scope  of  the  court's  discretion  as  to  how  to  respond  depends  on  existing  jury  



                 6 

instructions.   If the jury's question concerns a legal issue that the court has  already  



                                                                                                             7 

adequately instructed on, the court may decline to provide further clarification.  But if  



the court's previous instructions were incorrect or insufficient, or if it is apparent from  



                                                                                                              8 

the jury's question that it misunderstands the law, the court has a duty to clarify.    



                                       

     6   See Des Jardins v. State , 551 P.2d 181, 190 (Alaska 1976).   



     7   Id.   



     8   Id.; see also Moffitt v. State , 207 P.3d 593, 602-03 (Alaska App. 2009); Glidden v.  



State, 842 P.2d 604, 610-11 (Alaska App. 1992).  



                                                        - 6 -                                                      2784  


----------------------- Page 7-----------------------

                                                                                                                    



                  To determine if the court's responses to the jury's  questions in this case  



were correct and sufficient, we must first determine the mental state applicable to the  



use-of-force element in Alaska's robbery statute.   



                  Both Turner and the State agree that the defendant's use of force must be  



non-accidental -  i.e., it must be more than negligent or reckless. But Turner argues  



that  the  defendant  must  use  force  "intentionally,"  whereas  the  State  argues  that  the  



defendant must only use force "knowingly."  



                  We agree with both parties that there must be some mental state applicable  



to  the  use-of-force  element.  This  is  evident  from  the  statutory  text  for  at  least  two  



                                                                                                     9 

reasons. First, the word "use" typically implies "action and implementation."  Thus, as  



the  United  States  Supreme  Court  has  concluded,  the  statutory  phrase  "use  .  .  .  of  



physical force against the person or property of another" (set out in a  former  federal  



statute  which  is  not  meaningfully  distinguishable  from  the  relevant  language  in  



Alaska's  robbery  statute)  "most  naturally  suggests  a  higher  degree  of  intent  than  

negligent or merely accidental conduct."10 Similarly, federal appellate courts construing  



the offense of robbery under the Hobbs Act have repeatedly held that the defendant's  

conduct must be knowing.11  



                  Second, Alaska's second-degree robbery statute requires that the person  



use force "with intent to" accomplish a particular objective  -  either to "prevent or  



                                     

    9    Bailey v. United States, 516 U.S. 137, 145 (1995), superseded by statute, 18 U.S.C.  



§ 924(c)(1)(A), as recognized in  United States v. O'Brien, 560 U.S. 218, 232-33 (2010).  



     10   Leocal v. Ashcroft , 543 U.S. 1, 9 (2004).   



     11   United States v. Barrett, 102 F.4th 60, 79  (2nd Cir. 2024) (collecting cases).  The  



Hobbs  Act  defines  "robbery"  in  18  U.S.C. §  1951(b)(1)  as  "the  unlawful  taking  or  

obtaining of personal property from the person or in the presence of another, against his  

will, by means of actual or threatened force, or violence, or fear of injury, immediate or  

future, to his person or property, or property in his custody or possession, or the person or  

property of a relative or member of his family or of anyone in his company at the time of  

the taking or obtaining."  



                                                      - 7 -                                                   2784  


----------------------- Page 8-----------------------

                                                                                                                    



overcome resistance to the taking [or retention] of the [stolen] property," or to "compel  



any person to deliver the property or engage in other conduct which might aid in the  

taking of the property."12  This language requires more than just proof that the person  



used force while having a particular objective. Rather, the person must use force with  



the intent to accomplish that objective. This makes it clear that the defendant's use of  



force  cannot  be  accidental,  because  a  person  cannot  use  force  accidentally  while  



simultaneously  using  that  same  force  with  the  intent  to  accomplish  a  particular  



objective.  



                  Having concluded that there must be some mental state applicable to the  



use-of-force  element,  the  next  question  is  whether  the  applicable  mental  state  is  



"intentionally," as Turner contends, or "knowingly," as the State argues. We agree with  



the  State  that  the  applicable  mental  state  is  "knowingly."  Alaska  law  divides  the  

elements of an offense into three categories: conduct, circumstances, and result.13 But  



Alaska  law  further  provides  that  "knowingly"  is  the  only  mental  state  that  can  be  

applied  to  conduct,14  and  the  use  of  force  is  a  conduct  element. 15  The  mental  state  



applicable to the use-of-force element is therefore "knowingly."   



                  Finally, we must determine whether the superior court's responses to the  



jury's questions were accurate and sufficiently clarified the law.  Because "knowingly,"  



not  "intentionally,"  is  the  mental  state  applicable  to  the  use-of-force  element,  the  



                                     

     12   AS 11.41.510(a)(1)-(2).  



     13   See AS  11.81.610(b).  



     14   See AS 11.81.900(a); Neitzel v. State , 655 P.2d 325, 328-29 (Alaska App. 1982);  



Commentary  to  Alaska's  Revised  Crim.  Code,   1978  Senate  Journal  Supp.  No.  47  

(June  12,  1978), at 140; Stoner v. State, 2016 WL 1394221, at *4-5 (Alaska App. Apr. 6,  

2016) (unpublished) (Mannheimer, C.J., concurring).  



     15   See State v.  Getz, 313 P.3d 708, 715 (Haw. 2013); People v. Mortenson, 541 P.3d  



639, 642 (Colo. App. 2023) (citing People v. Derrera, 667 P.2d 1363, 1368 (Colo. 1983)).  



                                                      - 8 -                                                   2784  


----------------------- Page 9-----------------------

                                                                                                                                                       



 superior court did not err when it rejected Turner's request to instruct the jury that the  



mental state applicable to the use-of-force element is "intentionally."  



                       We further conclude that the jury instructions, taken as a whole, properly  

informed the jury of the applicable law.16 As we have explained, our conclusion that the  



"use  of  force"  requires  proof of  something more  than  negligence  or  recklessness  is  



derived from a plain reading of  the text of the statute itself.  Here,  in response to the  



jury's second question, the superior court provided the jury with the  actual language of  



Alaska's robbery statute - language that makes it clear that the use of force cannot be  



accidental.  After  receiving  this  language,  the  jury did not  ask  any  further questions  



about the mental state applicable to the use of force, and it returned a verdict shortly  



thereafter. The jury instructions adequately informed the jury of the applicable law .  



                       This conclusion is further reinforced by the evidence presented at trial. At  



trial,  the  State  admitted  video  footage  of  both  collisions,  and  both  store  employees  



testified.  The  footage  and  testimony  regarding  the  second  collision  provided  strong  



evidence that Turner knowingly used force against the employee who guarded the door.  



When  Turner  collided  with  that  employee  the  first  time,  he  began  running  from  a  



location near the store counter. But when Turner collided with the employee the second  



time, he began running from a greater distance. Turner was also aware the second time  



that the employee had stood his ground and absorbed contact moments earlier.   



                       Given  the  instructions  provided  to  the  jury,  and  the  strength  of  the  



evidence that Turner's use of force was knowing, there is no reasonable possibility that  



the jury  convicted Turner on the legally incorrect theory that  accidental use of force  

was sufficient to convict.17 We therefore affirm his conviction.   



                                                

      16   Kangas v. State, 463 P.3d 189, 194 (Alaska App. 2020).  



      17   See  Moffitt  v.  State,  207  P.3d  593,  596-603  (Alaska  App.  2009)  (reversing  a  



defendant's conviction when there was a "substantial possibility" that the jury convicted  

on a legally incorrect theory). On appeal, Turner argues that the court's failure to instruct  

the jury on the culpable mental state for the use-of-force element is structural error under  



  



                                                                       - 9 -                                                                     2784  


----------------------- Page 10-----------------------

        Turner's sentencing challenge  



                Turner  raises  one  additional  claim  on  appeal.  Turner  notes  that  the  



superior court misunderstood his eligibility for discretionary parole and argues that the  



court might have imposed a different sentence had it realized that he was not eligible  



for discretionary parole. Turner therefore seeks a remand for resentencing.   



                The court's sentencing remarks that Turner challenges came in the last  



few minutes of an hour-long sentencing hearing. The court began these remarks by  

telling Turner that it needed "to give [him] some truth in sentencing statements."18 The  



court stated,  "You must serve at least one-fourth of your sentence before you will be  



eligible for [discretionary] parole." This was error, in that recently passed legislation  



that took effect  before Turner committed his offense eliminated discretionary parole  



eligibility for, inter alia, second and third felony offenders convicted of a class B felony  

(including second-degree robbery) and Turner was a third felony offender.19   



Jordan v. State , 420 P.3d 1143, 1152-57 (Alaska 2018). Although the jury instructions did  

not  specifically  include  the  word  "knowingly,"  they  did  not,  taken  as  a  whole,  fail  to  

instruct the jury as to the culpable mental state applicable to the use-of-force element. We  

also note, as have other courts, that statutory terms such as "robbery" and "takes" imply  

knowing, deliberate action.  See, e.g.,  United  States v. Jackson, 749 F.  Supp.  2d 19, 27  

(N.D.N.Y. 2010); People v. Jones, 595 N.E.2d 1071, 1075 (Ill. 1992) (charging document  

that  said  defendant  "took"  property  sufficiently  conveyed  that  he  acted  knowingly).  

Moreover, Turner has only ever argued that his use of force was accidental because he did  

not know that the employee would block his way; he did not argue that he did not take  

knowing and deliberate action.  



    18   Alaska   R.   Crim.   P.   32.2(c)(2)(A)-(B)   (requiring   sentencing  judges   to    state  



approximate minimum amounts of time a defendant will have to serve before becoming  

eligible for discretionary parole, if applicable).  



    19   See  FSSLA 2019,  ch. 4,  § 106, which amended AS 33.16.090(a)(1) to add,  inter  



alia,  subparagraph (D), which states: "a prisoner sentenced to a single sentence within or  

below a presumptive range set out in AS  12.55.125(c), (d)(2)-(4), (e)(3) and (4), or (i) who  

has not been allowed by the three-judge panel under AS 12.55.175 to be considered for  

discretionary  parole  release  is  not  eligible  for  discretionary  parole."  Turner  was  also  

sentenced for fourth-degree theft, but the court ran this sentence concurrently to the robbery  

sentence. Under AS 33.16.090(b)(5)(C), a person sentenced to concurrent sentences may  



                                               - 10 -                                            2784  


----------------------- Page 11-----------------------

                                                                                                                      



                  Turner argues that the court was thus unaware of the full parameters of its  



sentencing authority and that it might have sentenced him differently if it realized he  

was ineligible for discretionary parole.20 But the court's "truth in sentencing" statements  



came after the court had resolved the parties' disputes regarding the presentence report,  



made  findings  as  to  aggravating  and  mitigating  factors,  analyzed  the  pertinent  



sentencing  factors,  and  imposed  sentence.  In  other  words,  the  court's  view  as  to  



Turner's discretionary parole eligibility did not play a role in the court's fashioning of  



Turner's sentence.  



                  We therefore affirm Turner's sentence.   



                    



         Conclusion  



                  The judgment of the superior court is AFFIRMED.   



                                      

not be paroled, as relevant to the circumstances here, until they have reached eligibility on  

their primary crime, thus pegging eligibility to their primary crime and essentially treating  

it as a single sentence.  



         Alaska Statute 33.16.090(a)(1)(D) took effect July 9, 2019, and applied to sentences  

imposed  on  or  after  the  effective  date  of  the  bill  for  conduct  occurring  on  or  after  the  

effective date. FSSLA 2019, ch. 4, §§ 142(b)(18), 150. Turner committed the robbery on  

August 1, 2019.  



     20   See Adkins v. State, 776 P.2d 1058, 1060 n.1 (Alaska App. 1989) (noting that the  



supreme  court  in  Jackson  v.  State ,  616  P.2d  23  (Alaska  1980),  "cautioned  against  

calculating the length of a sentence on the assumption that the defendant would in fact be  

released   from   prison   upon   becoming   eligible   for   parole");  Jones   v.   State ,   2018  

WL 4913802,  at  *3-6 (Alaska App. Oct. 10, 2018) (unpublished) (remanding when the  

sentencing court appeared to have declined referral to the three-judge sentencing panel at  

least in part on a mistaken belief that the defendant would be eligible for discretionary  

parole);  Avery  v.  State ,  2009  WL  692089,  at  *2-3   (Alaska  App.  Mar.  18,  2009)  

(unpublished) (remanding when the record was unclear whether the sentencing court had  

a misunderstanding about parole eligibility that affected the sentence it imposed).  



                                                      -  11 -                                                   2784  

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