Schlosser v. State

          Appeal from the Superior Court, Third Judicial District, Dillingham, John W. Wolfe, Judge. Trial Court No. 3DI-11-021 C R.

         Glenda J. Kerry, Girdwood, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.

         Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee.

         Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge.^[*]

          OPINION

         MANNHEIMER, Judge

         The defendant in this case, Jean L. Schlosser Jr., was observed syphoning gasoline from other people's vehicles. When a police officer arrived to investigate, Schlosser forcibly resisted the officer's attempts to take him into custody. During the ensuing struggle, the officer sustained a permanent injury to his hand.

         Based on this incident, Schlosser was convicted of first-degree trespass, fourth-degree theft, resisting arrest, fourth-degree escape, and second-degree assault (reckless infliction of serious physical injury).

         In this appeal, Schlosser contends that the evidence presented at his trial was not legally sufficient to support his convictions for assault, escape, and theft. Schlosser also contends that his convictions for resisting arrest, escape, and assault should be overturned because the trial judge did not give the jury a specific instruction on the law of self-defense. Finally, Schlosser argues that his convictions for resisting arrest and escape should be reversed because the trial judge did not define the terms " resisted arrest", " actual restraint", and " substantial risk of physical injury" for the jury.

         As we explain in this opinion, we agree with Schlosser that the evidence was not sufficient to support his second-degree assault conviction because, under the circumstances of this case, it was not reasonably foreseeable that the officer would sustain protracted or permanent injury during his struggle with Schlosser. However, we conclude that the remainder of Schlosser's claims are meritless.

         Underlying facts

         On January 13, 2013, in Dillingham, Jean Schlosser syphoned gasoline from the tanks of other people's vehicles. A bystander observed what Schlosser was doing and alerted one of the vehicle owners, who in turn called the police.

         Dillingham Police Sergeant Daniel Pasquariello arrived to investigate. Pasquariello observed evidence of the gasoline syphoning, and he also discovered (from checking with his dispatcher) that there was already a warrant for Schlosser's arrest in an unrelated matter.

         Pasquariello contacted Schlosser (who was still at the scene) and told him that he was under arrest. But when Pasquariello directed Schlosser to put his hands behind his back, Schlosser refused. Schlosser then bolted sideways and ran from the officer.

         Pasquariello pursued Schlosser, tackled him, and tried to hold him on the ground and handcuff him. But Schlosser continued to struggle: he pulled himself upright and pulled himself from Pasquariello's grasp. Pasquariello went after Schlosser and again pulled him to the ground. Schlosser managed to grab the hood of a parked car and pull himself up once more. The two men stood facing each other, with Pasquariello holding onto Schlosser. Then Schlosser shoved Pasquariello backwards. Pasquariello fell to the ground, but he was still holding onto Schlosser, and Schlosser fell on top of him.

         When Pasquariello hit the ground, he felt an intense pain in his hand. It turned out that one of the bones in Pasquariello's hand had been broken in six places. This injury required surgery and the placement of a permanent metal plate to hold the bone together. At Schlosser's trial, Pasquariello testified that his hand was permanently weakened, and that he had lost partial function of the hand.

         Based on this episode, Schlosser was charged with first-degree trespass, fourth-degree theft, resisting arrest, fourth-degree escape, and second-degree assault (reckless infliction of serious physical injury).^[1] At trial, Schlosser argued that he was not guilty of assault because Sergeant Pasquariello had used excessive force on him -- thus entitling Schlosser to use force against the officer to defend himself. The jury rejected this defense and convicted Schlosser of all the charges.

         The sufficiency of the evidence to support Schlosser's conviction for second-degree assault

         The charge of second-degree assault required the State to prove that Schlosser caused serious physical injury to Sergeant Pasquariello and that, when Schlosser did so, he was acting " recklessly" (as defined in AS 11.81.900(a)(3)) with respect to this potential result of his actions.

         The evidence at Schlosser's trial was clearly sufficient to establish that Sergeant Pasquariello suffered a " serious physical injury" as that term is defined in AS 11.81.900(b)(57)(B) --" physical injury that causes ... protracted loss or impairment of the function of a body member" . The evidence at Schlosser's trial was likewise clearly sufficient to establish that Schlosser's actions were a legal cause of this serious physical injury.

         But there is a problem as to the remaining element of the State's proof: proof that Schlosser acted " recklessly" with respect to the risk that his conduct would produce this result.

          The culpable mental state of " recklessly" is defined in AS 11.81.900(a)(3). This definition comprises two elements: first, an objective appraisal of the danger posed by the defendant's conduct; and second, an inquiry into whether the defendant was aware of this danger.

         The " objective appraisal" element of recklessly requires the government to prove that, under the circumstances, there was a " substantial and unjustifiable risk" that the prohibited result would occur. This phrase (" substantial and unjustifiable risk" ) is defined in the statute as " [a] risk ... of such a nature and degree that disregard of it constitute[d] a gross deviation from the standard of conduct that a reasonable person would observe in the situation[.]"

         The " awareness" element of recklessly requires the government to prove either (1) that the defendant " [was] aware of and consciously disregard[ed]" this risk, or (2) that the defendant " would have been aware [of this ...