for Review from the Superior Court, Third Judicial District,
Valdez, Daniel Schally, Judge. Trial Court No. 3VA-15-104 CR
A. Ringsmuth, Assistant Attorney General, Office of Criminal
Appeals, Anchorage, and James E. Cantor, Acting Attorney
General, Juneau, for the Petitioner.
Douglas O. Moody, Assistant Public Defender, and Quinlan
Steiner, Public Defender, Anchorage, for the Respondent.
Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock,
Superior Court Judge. [*]
AS 11.41.220(a)(1)(A), it is a felony for a person to
recklessly place another person in fear of imminent serious
physical injury by means of a dangerous instrument.
present case, the superior court has ruled that this statute
is unconstitutional unless the phrase "places another
person in fear" is confined to situations where the
defendant is (1) subjectively aware of the victim and (2)
purposely directs their conduct at the victim.
the superior court's ruling, a drunk driver cannot be
prosecuted for third-degree assault if the driver obliviously
forces a pedestrian off the road - or, as suggested by the
evidence in Watts's case, if a drunk driver nearly
collides with a pedestrian but, at the last moment, the
driver sees the pedestrian, recognizes the peril, and takes
reasons explained in this opinion, we reverse the superior
court's ruling. The third-degree assault statute does,
indeed, cover these situations - and, to the extent that it
does cover these situations, the statute is constitutional.
afternoon in early August 2015, Clayton Scott was walking and
jogging down a winding, narrow dirt road outside of Valdez.
Scott was pushing his infant son in a stroller, and he had
his two dogs with him.
same time (according to later testimony), Tisha Dee Watts
began driving down this same road at a high rate of speed.
Watts had been drinking and taking drugs with a friend; her
blood alcohol level was measured at .216 percent.
saw Watts's vehicle when it came around a curve
approximately 100 yards behind him. Even though Scott and his
infant child were in plain view, Watts did not slow her car.
She continued to drive at high speed toward Scott and his
son, without braking.
attempted to flee into the alders at the side of the road,
but the trees were too thick for him to pass, and Watts's
vehicle was so close to the side of the road that her
passenger door was brushing against the alders.
last moment, Watts swerved her vehicle to avoid hitting Scott
and his son. Scott testified that he could not tell whether
Watts swerved because she finally noticed him at the last
moment or whether, instead, Watts knew all along that Scott