Louie C. DULIER Sr., Appellant,
STATE of Alaska, Appellee.
from the Superior Court, First Judicial District, Juneau,
Philip M. Pallenberg, Judge. Trial Court No. 1JU-15-00809 CR
Orlansky, Reeves Amodio LLC, under contract with the Public
Defender Agency, and Quinlan Steiner, Public Defender,
Anchorage, for the Appellant.
B. Bergt, Assistant Attorney General, Office of Criminal
Appeals, Anchorage, and Jahna Lindemuth, Attorney General,
Juneau, for the Appellee.
Allard, Chief Judge, Harbison, Judge, and Coats, Senior
C. Dulier Sr. was convicted of second-degree assault and
third-degree assault after Dulier, during an argument outside
a Juneau bar, pulled out his flare gun, held it to a mans
neck, and fired. Both assault charges required the State to
prove that Dulier caused physical injury "by means of a
dangerous instrument." At trial, the State
argued that Duliers flare gun was a dangerous instrument
because "under the circumstances in which it is used
[or] attempted to be used ... [it is] capable of causing
death or serious physical injury." Dulier raises three
arguments on appeal, all relating to whether Duliers flare
gun was a dangerous instrument.
Dulier argues that the State presented insufficient evidence
to prove that he used the flare gun in a manner that was
capable of causing death or serious physical injury. Second,
Dulier argues that the superior court committed plain error
by failing to sua sponte instruct the jury that it
was required to find that Dulier actually used the flare gun
in a manner that created a substantial risk of death or
serious physical injury, as opposed to finding that a flare
gun could theoretically be used in a manner that created a
substantial risk of death or serious physical injury.
Finally, Dulier argues that the courts failure to issue a
special instruction to the jury was compounded when the
superior court failed to sua sponte correct a
statement by the prosecutor during closing argument that
appeared to endorse this impermissible second theory —
i.e., that a flare gun was a dangerous instrument if
it could be used in a manner that created a substantial risk
of death or serious physical injury.
the reasons explained in this opinion, we reject Duliers
arguments and affirm his convictions.
trial testimony established that on the evening of August 1,
2015, Dulier and John Sears got into an argument when they
were smoking cigarettes outside the Rendezvous Bar in Juneau.
Sears and Dulier had a heated exchange before Sears went back
Sears and another patron went outside again. Dulier, who was
still outside, stepped up to Sears, held a flare gun to
Searss neck, and fired it. A bar patron grabbed Sears by the
shoulder just as the flare gun went off, causing Sears to
move to the left just before the flare hit him. The flare
impacted the front of Searss neck, next to his Adams apple.
Sears testified that if the patron had not intervened,
pushing him to the side, "I wouldnt be sitting here,
because my head wouldnt have turned, and
[the flare] wouldve went straight into my neck and stuck in