Dulier v. State

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          Appeal from the Superior Court, First Judicial District, Juneau, Philip M. Pallenberg, Judge. Trial Court No. 1JU-15-00809 CR

         Susan Orlansky, Reeves Amodio LLC, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.

         RuthAnne B. Bergt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.

         Before: Allard, Chief Judge, Harbison, Judge, and Coats, Senior Judge.^[*]

          OPINION

         HARBISON, Judge

         Louie 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 man’s neck, and fired. Both assault charges required the State to prove that Dulier caused physical injury "by means of a dangerous instrument."^[1] At trial, the State argued that Dulier’s 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."^[2] Dulier raises three arguments on appeal, all relating to whether Dulier’s flare gun was a dangerous instrument.

          First, 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 court’s 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.

          For the reasons explained in this opinion, we reject Dulier’s arguments and affirm his convictions.

          Factual background

          The 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 inside.

          Later, Sears and another patron went outside again. Dulier, who was still outside, stepped up to Sears, held a flare gun to Sears’s 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 Sears’s neck, next to his Adam’s apple. Sears testified that if the patron had not intervened, pushing him to the side, "I wouldn’t be sitting here, because my head wouldn’t have turned, and

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[the flare] would’ve went straight into my neck and stuck in ...