Dulier v. State

          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 [the flare] would've went straight into my neck and stuck in there."

         Instead, the flare ricocheted off Sears's neck, hit the wall of the bar, and then landed on the bar's welcome mat, where it sat burning for a moment before another patron kicked it out toward the street. An officer who responded to the incident testified that the flare left a "melted scorch mark on the ... all-weather mat in front of the [bar]."

         When the officers arrived at the bar, Sears had a "large bloody powder burn" and welt on his neck. After speaking to the police, Sears went to the hospital for treatment. In addition to a bad burn, Sears had a large bruise and a bloody gouge in his neck. He was prescribed antibiotics and a painkiller. After the incident, Sears had a hard time talking, and the inside of his throat was swollen for four or five days. It took about three weeks for the wound to heal.

         There was sufficient evidence to support the "dangerous instrument" element of the assault convictions

         Dulier was convicted of second-degree assault and third-degree assault, both of which include the element that the defendant caused physical injury "by means of a dangerous instrument."^[3] The phrase "dangerous instrument" is defined by statute as, inter alia, "anything that, under the circumstances in which it is used, attempted to be used, or threatened to be used, is capable of causing death or serious physical injury."^[4]

         On appeal, Dulier argues that the evidence was insufficient to establish that the flare gun was used in a manner capable of causing death or serious physical injury because he aimed the flare gun "at a particular spot, with little realistic risk of hitting another more vulnerable spot, such as Sears's eye." Dulier asserts that there was no evidence that the flare gun, when used in that manner, could have caused any greater harm than what actually happened to Sears.

         When a defendant challenges the sufficiency of the evidence to support a criminal conviction, an appellate court is required to view the evidence, and all reasonable inferences that can be drawn from that evidence, in the light most favorable to upholding the jury's verdict.^[5] Viewing the evidence in this light, the court then asks whether a reasonable ...