Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Belarde v. State

Court of Appeals of Alaska

May 20, 2016

JESSE CECIL BELARDE, Appellant,
v.
STATE OF ALASKA, Appellee.

         Appeal from the Superior Court, Third Judicial District, Anchorage, Trial Court No. 3AN-10-12993 CR, Michael L. Wolverton, Judge.

         Appearances:

          Whitney G. Glover, Assistant Public Advocate, Appeals and Statewide Defense Section, and Richard Allen, Public Advocate, Anchorage, for the Appellant.

          Ann B. 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, Senior Judge.[*]

          OPINION

          MANNHEIMER Judge

         Jesse 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.

         (Belarde's 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.)

         Inside 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).

         Two of 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 the battery).

         Based 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)).

         In this 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).

         We 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 conviction.

         A more detai led look at Belarde's claim on appeal

         Belarde 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 first-degree robbery.

         Belarde's 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.

         (Belarde 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 just occurred.)

         Turning 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 by force.

         Belarde's 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.