from the Superior Court, Third Judicial District, Anchorage,
Trial Court No. 3AN-10-12993 CR, Michael L. Wolverton, Judge.
Whitney G. Glover, Assistant Public Advocate, Appeals and
Statewide Defense Section, and Richard Allen, Public
Advocate, Anchorage, for the Appellant.
Black, 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 Coats,
Cecil Belarde and two friends, Rolando Barlow and Robert
Smith, entered an Anchorage Fred Meyer store for the purpose
of stealing a battery for Belarde's car.
car had recently broken down, and it was inoperable unless
the battery was recharged. After concluding that it would
take too long to recharge the battery, Belarde borrowed
another car, and he and his friends went looking for a
battery to steal.)
the Fred Meyer store, Belarde went to the car battery section
and identified the correct battery for his vehicle. His
friend Smith then picked up the battery and attempted to
carry it out of the store (without paying).
the store's loss-prevention employees intercepted Smith
in the arctic entry. Smith dropped the battery and punched
one of the employees in the face. Belarde's other friend,
Barlow, then hit the other loss-prevention employee in the
face. At this point, Smith pulled a pistol from his
waistband, chambered a round, and ordered the loss-prevention
employee to back away. Belarde then picked up the battery
from the floor, and he and his friends left the store (with
on this incident, Belarde was convicted of both the theft of
the battery and first-degree robbery. The robbery charge was
based on the theory that Belarde and his accomplices took the
battery from the immediate presence of the store employees
through the use of force (the basic crime of second-degree
robbery as defined in AS 11.41.510(a)), and by threatening
the employees with a pistol (thus elevating the crime to
first-degree robbery as defined in AS 11.41.500(a)).
appeal, Belarde argues that his first-degree robbery
conviction must be reversed because his jury was
misinstructed regarding the rules for when one accomplice to
a crime (in this case, Belarde) can be held legally
accountable for the intentions of another accomplice to the
crime (in this case, Smith).
agree with Belarde that there was a flaw in the jury
instruction on the elements of first-degree robbery. But we
conclude that, given the facts of Belarde's case and the
way in which the case was argued to the jury, there is no
chance that the flaw in the jury instruction affected the
jury's verdict. We therefore affirm Belarde's robbery
more detai led look at Belarde's claim on appeal
acknowledges that he was properly found guilty of stealing
the car battery. (In fact, when Belarde's trial attorney
delivered his summation to the jury, he conceded that Belarde
should be convicted of theft.) But Belarde argues that his
robbery conviction should be reversed because of a faulty
clause in the jury instruction on the elements of
attack on the jury instruction is based on the defense that
he offered at trial. Belarde testified that, when he picked
up the battery and ran out of the store, he was unaware that
Smith had used a pistol to threaten the employees.
asserted that he had been using his mobile phone as he walked
out of the store, and thus his attention was initially
distracted away from the fight that occurred between Smith,
Barlow, and the two loss-prevention employees. Belarde
declared that he remained unaware that Smith had used the
pistol until they were driving away from the store, when he
listened to Smith and Barlow recounting the events that had
to the jury instruction on the elements of first-degree
robbery, paragraph 3 of this instruction told the jurors that
the State was required to prove that "[Belarde] or
another participant intended to prevent or overcome ...
resistance to the taking of the property [by using
force]". (Emphasis added) Pointing to this italicized
language, Belarde argues that this jury instruction
improperly deprived him of his defense to the first-degree
robbery charge - because this instruction told the jurors
that, as long as Smith intended to accomplish the
taking by armed force (i.e., by threatening the
store employees with a pistol), it did not matter whether
Belarde personally intended to accomplish the taking
trial attorney did not object to the jury instruction, so
Belarde must now show that the challenged jury instruction
constituted plain error.
Even if the challenged jury instruction was flawed, we
conclude that any error was harmless, given the way this case
was litigated ...