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State v. Watts

Court of Appeals of Alaska

March 9, 2018

STATE OF ALASKA, Petitioner,
v.
TISHA DEE WATTS, Respondent.

         Petition for Review from the Superior Court, Third Judicial District, Valdez, Daniel Schally, Judge. Trial Court No. 3VA-15-104 CR

          Eric 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. [*]

          OPINION

          MANNHEIMER, JUDGE

         Under 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.

         In the 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.

         Under 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 evasive action.

         For the 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.

         Underlying facts

         One 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.

         At the 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.

         Scott 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.

         Scott 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.

         At the 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 ...


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