Konrad v. State
| Decision Date | 10 November 1988 |
| Docket Number | No. A-2126,A-2126 |
| Citation | 763 P.2d 1369 |
| Parties | George A. KONRAD, Appellant, v. STATE of Alaska, Appellee. |
| Court | Alaska Court of Appeals |
Janet L. Crepps, Gilmore & Feldman, Anchorage, for appellant.
Cynthia M. Hora, Asst. Atty. Gen., Office of Sp. Prosecutions and Appeals, Anchorage, and Grace Berg Schaible, Atty. Gen., Juneau, for appellee.
Before BRYNER, C.J., and COATS and SINGLETON, JJ.
George A. Konrad was convicted, following a jury trial, of assault in the third degree, assault in the second degree, and terroristic threatening. Konrad appeals, arguing that the trial court erred in failing to dismiss his indictment, that Alaska's terroristic threatening statute is unconstitutionally vague, that the evidence presented at trial was insufficient to support his conviction, that the trial court erred in excluding testimony offered to impeach the victim, and that the court erred in denying his motion for a new trial when a new judge was assigned to his case for purposes of conducting sentencing proceedings. We affirm Konrad's convictions for second-degree assault and terroristic threatening, but vacate his conviction for third-degree assault.
Konrad was indicted for a series of incidents that occurred during the breakup of his marriage to Luann Konrad. The indictment charged Konrad with third-degree assault for recklessly causing physical injury to Luann Konrad by striking her on the head and ribs with his hands, with second-degree assault for recklessly causing serious physical injury to Luann by throwing her off a bed onto a wooden crate, and with terroristic threatening for engaging Luann in a telephone conversation in which Konrad repeatedly threatened to kill her.
On May 9, 1986, following a heated argument, George Konrad struck Luann Konrad twice with his hands: once on the head and once on the ribs. Luann Konrad experienced abdominal pain following the assault. Several days later a physician determined that the blow to Luann's midsection had injured her spleen, causing it to bleed into her abdominal cavity. The injury resolved itself without treatment.
Based on the May 9 incident, the state requested the grand jury to charge Konrad with assault in the third degree. The state proceeded under AS 11.41.220(a)(2), which states that "a person commits the crime of assault in the third degree if that person recklessly ... causes physical injury to another person by means of a dangerous instrument." The state's theory was that Konrad's hands were dangerous instruments.
After reading the statutory definition of "dangerous instrument" to the grand jury, the prosecutor stated, in relevant part: "I would instruct you at this time that in the state of Alaska hands or feet can be considered a dangerous instrument under the definition that I have given you of a dangerous instrument." The grand jury returned a true bill.
Prior to trial, Konrad moved to dismiss the third-degree assault charge, challenging the propriety of the prosecutor's instruction to the grand jury. The superior court denied Konrad's motion. At trial, Konrad unsuccessfully moved for a judgment of acquittal on the third-degree assault charge, contending that the evidence was insufficient to establish the use of a dangerous instrument. Konrad now renews these arguments on appeal.
The term "dangerous instrument" is defined in AS 11.81.900(b)(11):
(11) "[D]angerous instrument" means any deadly weapon or anything which, 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.
"Physical injury" and "serious physical injury" are in turn defined in AS 11.81.900(b)(40) and (50):
(40) "[P]hysical injury" means a physical pain or an impairment of physical condition;
* * *
(50) "[S]erious physical injury" means
(A) physical injury caused by an act performed under circumstances that create a substantial risk of death; or
(B) physical injury that causes serious and protracted disfigurement, protracted impairment of health, protracted loss or impairment of the function of a body member or organ, or that unlawfully terminates a pregnancy.
This court has never squarely decided whether a bare hand can be a "dangerous instrument" within the meaning of these provisions. In Wettanen v. State, 656 P.2d 1213 (Alaska App.1983), we held that a bare foot could qualify as a dangerous instrument under certain circumstances. The evidence there established that Wettanen had kicked another person repeatedly about the face and head, inflicting serious physical injuries. Because the state neglected to establish whether Wettanen was shod when he committed the assault, it was necessary to decide if a bare foot could qualify as a dangerous instrument. We concluded that sufficient evidence had been presented at trial to allow a finding that Wettanen's foot was a dangerous instrument, even if it was unshod. Id. at 1218. In reaching this conclusion, we expressly declined to decide whether a bare hand could similarly qualify as a dangerous instrument, noting that the cases from other jurisdictions on the issue are in conflict. Id. at 1218.
Since deciding Wettanen, we have had no occasion to resolve this issue. In at least one case, however, we have assumed that a hand might qualify as a dangerous instrument in some situations. See New v. State, 714 P.2d 378, 383 (Alaska App.1986).
For the purpose of deciding the present case, we may likewise assume that there is no categorical prohibition against a hand being deemed a dangerous instrument under the definition set forth in AS 11.81.900(b)(11). Our prior cases nevertheless firmly establish that the question of whether a hand qualifies as a dangerous instrument in any given case must be answered by examining the precise manner in which the hand is actually used.
The need to focus on the specific circumstances of each case derives from the definition of "dangerous instrument." While the statutory definition encompasses "anything" that is capable of causing death or serious physical injury, the express language of the statute requires that an instrument's potential for causing death or serious physical injury be assessed in light of "the circumstances in which it is used, attempted to be used, or threatened to be used." AS 11.81.900(b)(11). It is the actual use of the instrument in each case that must be considered, not abstract possibilities for use of the instrument in hypothetical cases.
We emphasized this point in Wettanen, cautioning that "every ... blow, even if it causes serious injury, will not automatically be an assault with a dangerous instrument." Wettanen, 656 P.2d at 1217. We pointed out that the inquiry must focus on the vulnerability of the victim and the specific nature of the assault in each case. Id. at 1217. In this regard, we emphasized that "the requirement of a dangerous instrument serves to shift the focus of the trier of facts' attention from the result (physical injuries), which in any given case may have been unforeseeable to the defendant at the time the assault was committed, to the manner in which the assault was committed." Id. at 1218.
We elaborated on Wettanen in Carson v. State, 736 P.2d 356 (Alaska App.1987), hearing denied, 742 P.2d 782 (Alaska 1987), a case involving an analogous situation. In that case, police officers performing a misdemeanor arrest subdued Carson by kicking him in the groin and unleashing a police dog, which bit Carson on the legs and buttocks until he ceased struggling. At issue was whether the officers' actions amounted to "deadly force." The applicable statute defined "deadly force" to include any force used under circumstances that "create a substantial risk of causing death or serious physical injury." See AS 11.81.900(b)(12); Carson, 736 P.2d at 361.
We found that the evidence in Carson did not support a finding that deadly force had been used. In reaching this conclusion we emphasized the need to focus on the actual risk of serious physical injury posed in the specific case, rather than on the abstract possibility of serious physical injury under other, hypothetical circumstances. We said, in relevant part:
Although we can certainly conceive of cases in which specific testimony describing a kick to the groin or an attack by a dog would support the inference that a substantial risk of death or serious physical injury was created, we are unwilling to conclude that testimony establishing no more than the unadorned fact of a kick to the groin or an attack by a police dog is per se sufficient to create a jury question as to the use of deadly force. The issue is not one to be resolved in the abstract. There must, at a minimum, be some particularized evidence from which a reasonable juror could conclude that a substantial risk of serious physical injury was actually created in the specific case at bar.
The issue is analogous to one we considered in Wettanen v. State. There, we held that, while any object, including an unshod foot, that was capable of inflicting serious physical injury might qualify under the broad statutory definition of "dangerous instrument," the actual determination of whether a dangerous instrument was used must be made on a case-by-case basis, based on the totality of the circumstances surrounding the actual use of the object in question.
Carson, 736 P.2d at 361 (citations omitted).
When read together, Wettanen and Carson stand for the proposition that, before a hand may be deemed a "dangerous instrument," the state must present particularized evidence from which reasonable jurors could conclude beyond a reasonable doubt that the manner in which the hand was used in the case at issue posed an actual and substantial risk of causing death or serious physical injury, rather than a risk that was merely hypothetical or abstract.
Obviously, whenever serious physical injury...
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