JEAN L. SCHLOSSER JR., Appellant,
v.
STATE OF ALASKA, Appellee
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 ...