Opinion
A-13209
06-23-2021
CARLIE GEORGE DAVID ASHEPAK, Appellant, v. STATE OF ALASKA, Appellee.
Bradly A. Carlson, The Law Office of Bradly A. Carlson, LLC, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Elizabeth T. Burke, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Fourth Judicial District, Trial Court No. 4BE-17-00281 CR Bethel, Dwayne W. McConnell, Judge.
Bradly A. Carlson, The Law Office of Bradly A. Carlson, LLC, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Elizabeth T. Burke, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges.
MEMORANDUM OPINION
WOLLENBERG JUDGE
A jury found Carlie George David Ashepak guilty of two counts of second-degree robbery, two counts of fourth-degree theft, and one count of fourth-degree assault for hitting Wassilie Alfred and taking two cell phones from him. (One cell phone was Alfred's; the other phone Alfred borrowed from someone nearby, Joseph Chikoyak, in order to call the police.) The superior court merged the assault and one of the thefts into one of the robbery convictions and entered convictions for two counts of second-degree robbery and one count of fourth-degree theft. Ashepak now appeals, raising three claims.
AS 11.41.510(a)(1), AS 11.46.150(a), and AS 11.41.230(a)(1), respectively.
Prior to sentencing, Ashepak asked the superior court to merge all the counts into a single conviction for second-degree robbery. As we have just explained, the court only partially granted this request. Ashepak does not renew his merger argument on appeal. We therefore assume for purposes of this appeal that the superior court's merger analysis was correct.
First, Ashepak argues that there was insufficient evidence to support his two robbery convictions. When we evaluate the sufficiency of the evidence to support a conviction, we view the evidence - and the inferences arising from that evidence - in the light most favorable to the verdict and ask whether a reasonable juror could have concluded that the defendant was guilty beyond a reasonable doubt. We therefore present the evidence in that light.
Iyapana v. State, 284 P.3d 841, 848-49 (Alaska App. 2012).
At trial, Alfred testified that Ashepak grabbed Alfred's phone from his hand and then "punched [him] on [his] forehead and slapped [him]" before grabbing $ 10 from his pocket. Ashepak's assault left a lump on Alfred's head. This conduct formed the basis for the first robbery count.
With respect to this count, Ashepak argues that there was insufficient evidence to support a robbery conviction because he used force - punching and slapping Alfred - only after he had already taken the phone from Alfred. He contends this means he did not use force "in the course of taking or attempting to take" the phone, as required by the robbery statute.
AS 11.41.510(a).
But a robbery is committed if the defendant uses force at any point from the beginning of an attempt to commit a theft through the defendant's immediate flight after the seizure or attempted seizure of the property, with the intent to prevent or overcome resistance either to the taking or "to the retention of the property after taking." Here, the evidence showed that Ashepak inflicted bodily injury to Alfred immediately following the taking, as Alfred tried in vain to retrieve his phone. We therefore conclude that there was sufficient evidence to support the jury's verdict on the first count of second-degree robbery.
Id.; Gibson v. State, 346 P.3d 977,981 (Alaska App. 2015); see also McGrew v. State, 872 P.2d 625, 626 (Alaska App. 1994) ("Under this statute, the crime of robbery is committed, not only when a defendant uses force upon the person who possesses the property, but whenever a defendant uses force upon any person with the intent to prevent or overcome anyone's resistance to the taking, or to compel any person to engage in conduct that might facilitate the taking." (emphasis in original)).
After Ashepak took Alfred's phone, Alfred walked to a nearby parking lot and asked Chikoyak if he could use Chikoyak's phone to call the police. Alfred was already on the phone when he walked into the view of a surveillance camera. The video (which recorded images, but had no sound) showed Ashepak continuously following Alfred while Alfred used Chikoyak's phone.
Nearly three minutes after the recording first showed Alfred using Chikoyak's phone, Ashepak grabbed Alfred's arm. Alfred tried walking away, but Ashepak again followed him and ultimately wrested Chikoyak's phone from Alfred's hand about twenty seconds later. According to Alfred, Ashepak "threatened" him before taking the phone, and Alfred did not attempt to retrieve the phone because he feared violence from Ashepak. This conduct formed the basis for the second robbery count.
The police officers who responded to the scene testified that they found both Alfred's and Chikoyak's cell phones in Ashepak's pants pocket.
As to this count, Ashepak argues that he did not use force in taking Chikoyak's phone. But, as the State notes, the second-degree robbery statute requires only that Ashepak used or threatened the immediate use of force, and the definition of "force" includes "any bodily impact, restraint, or confinement, or the threat of imminent bodily impact, restraint, or confinement." Here, the video showed Ashepak closely following Alfred as he called the police, and then grabbing Alfred's arm before wresting the phone from his hand. Alfred testified that Ashepak threatened him, and that he feared Ashepak would hurt him. Viewing the evidence in the light most favorable to the verdict, we conclude that there was sufficient evidence to support the jury's verdict on the second count of second-degree robbery.
AS 11.41.510(a)(1).
AS 11.81.900(b)(28) (emphasis added); see also Merculief v. State, 2009 WL 3681657, at *1 (Alaska App. Nov. 4,2009) (unpublished) ("In the robbery statute, the word 'threat' means 'a menace, however communicated . . . [and] includes all threats to inflict physical injury on anyone.'" (alteration and emphasis in Merculief) (quoting former AS 11.81.900(b)(61)(2009))); Bunker State, 1990WL 10513267,at*2 (Alaska App. Feb. 21, 1990) (unpublished) ("[T]he threat of harm, for robbery, must be such as would, under the circumstances, arouse in the victim a reasonable fear of harm, or cause a reasonable man to be apprehensive of harm, or induce a reasonable person to part with his property." (alteration in Bunker) (quoting LaFave & Scott, Handbook on Criminal Law § 94, at 700 (1972))).
Second, Ashepak argues that the superior court should not have instructed the jury on the second count of fourth-degree theft - the count corresponding to the taking of Chikoyak's phone. The State originally charged Ashepak with third-degree theft, which criminalizes theft of property with a value of at least $250. But the State failed to elicit evidence at trial that Chikoyak's phone was worth at least $250. The State therefore asked the court to instruct the jury on the lesser included offense of fourth-degree theft - for which there is no minimum value. The superior court granted this request.
AS 11.46.140(a)(1).
AS 11.46.150(a).
On appeal, Ashepak argues that instructing the jury on the lesser included offense of fourth-degree theft constituted an amendment to the charging document after the State had rested and that this late amendment prejudiced his defense. But we have held that "a criminal defendant is on notice, as a matter of law, that the State is entitled to ask the trier of fact to find the defendant guilty of a lesser offense necessarily included within the charged offense." Thus, the superior court did not err in instructing the jury on the charge of fourth-degree theft for stealing Chikoyak's phone.
Rogers v. State, 232 P.3d 1226, 1236 (Alaska App. 2010).
Finally, Ashepak argues that the superior court should have instructed the jury that intoxication can negate the intent element of an offense-an element contained in both the robbery and theft statutes. Because Ashepak did not request such an instruction, he must show plain error.
.See AS 11.81.630; see also AS 11.41.510(a); AS 11.46.100 and AS 11.46.150.
Adams v. State, 261 P.3d 758,764 (Alaska 2011) ("Plain error is an error that (1) was not the result of intelligent waiver or a tactical decision not to object; (2) was obvious; (3) affected substantial rights; and (4) was prejudicial").
We find no plain error. The jury was properly instructed that a person acts "intentionally" when the person's conscious objective is to cause a particular result.In his closing argument to the jury, Ashepak cited this definition and actively argued that he did not have the requisite conscious objective because he was intoxicated. The State never suggested at any point that this argument was inappropriate. Although Ashepak would certainly have been entitled to an intoxication instruction had he requested one, Ashepak was nonetheless able to rely on the jury instruction defining "intentionally" in order to argue that his intoxication negated his intent. We therefore conclude that any error was not prejudicial.
AS 11.81.900(a)(1).
See Adams, 261 P.3d at 764; Love v. State, 457 P.2d 622, 632-34 (Alaska 1969) (holding that nonconstitutional errors are harmless unless they appreciably affect the verdict, unlike constitutional errors which must be harmless beyond a reasonable doubt).
The judgment of the superior court is AFFIRMED.