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Moore v. State

Court of Appeals of Alaska

October 2, 2009

Nolan P. MOORE, Appellant,
v.
STATE of Alaska, Appellee.

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

Page 304

Richard A. Svobodny, Acting Attorney General, Juneau, for the Appellee.

Before : COATS, Chief Judge, and MANNHEIMER and BOLGER, Judges.

OPINION

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 Moore's 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 clerk's 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.

Moore's 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 defendant's 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 Moore's brief were presented to the sentencing judge. At the sentencing hearing, ...


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