Appeal from the Superior Court, Third Judicial District, Anchorage, Beverly Cutler, Judge. Trial Court No. 3AN-10-4238 CR.
Marjorie Mock, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge.[*] Judge HANLEY, writing for the Court. Judge MANNHEIMER, concurring.
On March 28, 2010, a man went into a coffee shop in downtown Anchorage and, while the owner's back was turned, stole a charity donation jar from the counter. Taking the jar, the man quickly left the shop and got into the back seat of a waiting vehicle.
The owner immediately noticed the theft, and she and her daughter ran out of the shop in pursuit of the thief. They went up to the waiting vehicle, and they told the driver -- Amy Dawn Gibson -- not to leave. Instead, Gibson drove away. The owner and her daughter held onto the car for a short distance, but ultimately they both fell to the ground, sustaining minor injuries.
Based on this episode, Gibson was convicted of second-degree robbery under the theory that she was an accomplice to the theft of the donation jar from the immediate presence and control of the coffee shop owner, and that, by driving away while the owner and her daughter were holding onto the car, Gibson used force " to prevent or overcome resistance to the taking ... or retention" of the stolen property.
Gibson was also convicted of two counts of third-degree assault under the theory that Gibson recklessly caused physical injury to the owner and to her daughter by means of a dangerous instrument ( i.e., the vehicle).
In this appeal, Gibson challenges all three of these convictions.
With respect to her robbery conviction, Gibson contends her conduct did not constitute second-degree robbery because (1) the taking of the donation jar was essentially complete by the time she used force against the owner and her daughter, and (2) the second-degree robbery statute does not apply to situations where force is used after a theft has been committed, while the thief is in immediate flight from the scene of the crime. She also challenges the sufficiency of the evidence of her robbery conviction.
And with respect to her two third-degree assault convictions, Gibson argues that she did not use her vehicle in such a manner that it qualified as a " dangerous instrument." Gibson thus contends that even if she recklessly caused injury to the coffee shop owner and her daughter, this would only constitute fourth-degree assault, not third-degree assault.
For the reasons explained in this opinion, we reject Gibson's contentions, and we affirm her convictions.
We now address Gibson's arguments in reverse order.
Gibson's argument that, under the facts of this case, the motor vehicle did not constitute a " dangerous instrument"
Alaska Statute 11.81.900(b)(15)(A) defines " dangerous instrument" as including " anything that, under the circumstances ..., ... is capable of causing death or serious physical
injury." Gibson asserts that, even viewing the evidence in the light most favorable to the jury's verdict, she did not use the vehicle in such a manner that it was capable of causing death or serious physical injury.
More particularly, Gibson argues that she drove away from the coffee shop in an " unremarkable manner" -- not at a high speed, nor recklessly. Noting that the owner and her daughter suffered only minor injuries, Gibson argues that there was " no readily identifiable, actual risk" of serious physical injury.
As we have pointed out in previous cases, a motor vehicle can qualify as a " dangerous instrument" when it is used in a manner that creates a real danger of serious physical injury, even though no one suffers serious injury.
For example, in State v. Waskey, the defendant was driving an automobile when she struck a child who was riding a bicycle. The handlebar of the bicycle hooked onto the front bumper of the car, and Waskey dragged the child 140 feet before stopping. Fortunately, the child was not seriously injured.
We concluded that, under these circumstances, Waskey's automobile constituted a dangerous instrument:
Because of an automobile's solidity and mass, an automobile is normally easily capable of inflicting death or serious physical injury in such circumstances. While it is possible to imagine collisions between an automobile and a pedestrian or a cyclist that one might not expect to result in serious physical injury (for instance, when the driver's failure to set the ...