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               IN THE COURT OF APPEALS OF THE STATE OF ALASKA



JEAN L. SCHLOSSER JR.,
                                                      Court of Appeals No. A-11405
                            Appellant,                Trial Court No. 3DI-11-021 CR

                     v.
                                                              O P I N I O N
STATE OF ALASKA,

                            Appellee.                    No. 2498 — May 6, 2016


              Appeal from the Superior Court, Third Judicial District,
              Dillingham, John W. Wolfe, Judge.

              Appearances: Glenda J. Kerry, Girdwood, under contract with
              the Public Defender Agency, and Quinlan Steiner, Public
              Defender, Anchorage, for the Appellant. Diane L. Wendlandt,
              Assistant Attorney General, Office of Criminal Appeals,
              Anchorage, and Craig W. Richards, Attorney General, Juneau,
              for the Appellee.

              Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock,
              Superior Court Judge. *

              Judge MANNHEIMER.




   *
       Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska
Constitution and Administrative Rule 24(d).
              The defendant in this case, Jean L. Schlosser Jr., was observed syphoning
gasoline from other people’s vehicles. When a police officer arrived to investigate,
Schlosser forcibly resisted the officer’s attempts to take him into custody. During the
ensuing struggle, the officer sustained a permanent injury to his hand.
              Based on this incident, Schlosser was convicted of first-degree trespass,
fourth-degree theft, resisting arrest, fourth-degree escape, and second-degree assault
(reckless infliction of serious physical injury).
              In this appeal, Schlosser contends that the evidence presented at his trial
was not legally sufficient to support his convictions for assault, escape, and theft.
Schlosser also contends that his convictions for resisting arrest, escape, and assault
should be overturned because the trial judge did not give the jury a specific instruction
on the law of self-defense. Finally, Schlosser argues that his convictions for resisting
arrest and escape should be reversed because the trial judge did not define the terms
“resisted arrest”, “actual restraint”, and “substantial risk of physical injury” for the jury.
              As we explain in this opinion, we agree with Schlosser that the evidence
was not sufficient to support his second-degree assault conviction because, under the
circumstances of this case, it was not reasonably foreseeable that the officer would
sustain protracted or permanent injury during his struggle with Schlosser. However, we
conclude that the remainder of Schlosser’s claims are meritless.


       Underlying facts


              On January 13, 2013, in Dillingham, Jean Schlosser syphoned gasoline
from the tanks of other people’s vehicles. A bystander observed what Schlosser was
doing and alerted one of the vehicle owners, who in turn called the police.



                                            –2–                                          2498

             Dillingham Police Sergeant Daniel Pasquariello arrived to investigate.
Pasquariello observed evidence of the gasoline syphoning, and he also discovered (from
checking with his dispatcher) that there was already a warrant for Schlosser’s arrest in
an unrelated matter.
             Pasquariello contacted Schlosser (who was still at the scene) and told him
that he was under arrest. But when Pasquariello directed Schlosser to put his hands
behind his back, Schlosser refused. Schlosser then bolted sideways and ran from the
officer.
             Pasquariello pursued Schlosser, tackled him, and tried to hold him on the
ground and handcuff him. But Schlosser continued to struggle: he pulled himself
upright and pulled himself from Pasquariello’s grasp. Pasquariello went after Schlosser
and again pulled him to the ground. Schlosser managed to grab the hood of a parked car
and pull himself up once more. The two men stood facing each other, with Pasquariello
holding onto Schlosser. Then Schlosser shoved Pasquariello backwards. Pasquariello
fell to the ground, but he was still holding onto Schlosser, and Schlosser fell on top of
him.
             When Pasquariello hit the ground, he felt an intense pain in his hand. It
turned out that one of the bones in Pasquariello’s hand had been broken in six places.
This injury required surgery and the placement of a permanent metal plate to hold the
bone together. At Schlosser’s trial, Pasquariello testified that his hand was permanently
weakened, and that he had lost partial function of the hand.
             Based on this episode, Schlosser was charged with first-degree trespass,
fourth-degree theft, resisting arrest, fourth-degree escape, and second-degree assault
(reckless infliction of serious physical injury). 1 At trial, Schlosser argued that he was

   1
      AS 11.46.320(a)(1), AS 11.46.150(a), AS 11.56.700(a)(3), AS 11.56.330(a)(2), and
AS 11.41.210(a)(2), respectively.

                                          –3–                                        2498

not guilty of assault because Sergeant Pasquariello had used excessive force on him —
thus entitling Schlosser to use force against the officer to defend himself. The jury
rejected this defense and convicted Schlosser of all the charges.


       The sufficiency of the evidence to support Schlosser’s conviction for
       second-degree assault


              The charge of second-degree assault required the State to prove that
Schlosser caused serious physical injury to Sergeant Pasquariello and that, when
Schlosser did so, he was acting “recklessly” (as defined in AS 11.81.900(a)(3)) with
respect to this potential result of his actions.
              The evidence at Schlosser’s trial was clearly sufficient to establish that
Sergeant Pasquariello suffered a “serious physical injury” as that term is defined in
AS 11.81.900(b)(57)(B) — “physical injury that causes ... protracted loss or impairment
of the function of a body member”. The evidence at Schlosser’s trial was likewise
clearly sufficient to establish that Schlosser’s actions were a legal cause of this serious
physical injury.
              But there is a problem as to the remaining element of the State’s proof:
proof that Schlosser acted “recklessly” with respect to the risk that his conduct would
produce this result.
              The culpable mental state of “recklessly” is defined in AS 11.81.900(a)(3).
This definition comprises two elements: first, an objective appraisal of the danger posed
by the defendant’s conduct; and second, an inquiry into whether the defendant was aware
of this danger.
              The “objective appraisal” element of recklessly requires the government to
prove that, under the circumstances, there was a “substantial and unjustifiable risk” that


                                             –4–                                      2498

the prohibited result would occur. This phrase (“substantial and unjustifiable risk”) is
defined in the statute as “[a] risk ... of such a nature and degree that disregard of it
constitute[d] a gross deviation from the standard of conduct that a reasonable person
would observe in the situation[.]”
                The “awareness” element of recklessly requires the government to prove
either (1) that the defendant “[was] aware of and consciously disregard[ed]” this risk, or
(2) that the defendant “would have been aware [of this risk] had [the defendant] not been
intoxicated”.
                In Schlosser’s case, the government was required to prove that, given the
circumstances of Schlosser’s struggle with Sergeant Pasquariello, there was a
“substantial and unjustifiable risk” that the officer would suffer serious physical injury
— a risk of serious physical injury so great that Schlosser’s disregard of this risk
constituted a “gross deviation from the standard of conduct that a reasonable person
would observe in the situation”.
                Even viewing the evidence in the light most favorable to the jury’s verdict,
Schlosser’s actions did not give rise to a “substantial and unjustifiable” risk of serious
physical injury (as that phrase is defined in AS 11.81.900(a)(3)).
                Schlosser broke away and ran from Sergeant Pasquariello when the
sergeant initially tried to handcuff him. After Pasquariello chased and tackled Schlosser,
Schlosser struggled with Pasquariello on the ground. Schlosser was able to get to his feet
again, and he continued to struggle with Pasquariello. Schlosser turned around to face
Pasquariello, and then he pushed Pasquariello to the ground. As Pasquariello fell, he
held on to Schlosser, so that Schlosser landed on top of him. At that point, apparently,
Pasquariello suffered the injury to his hand.
                All of Schlosser’s actions consisted of wrestling, pushing, and otherwise
struggling to escape Pasquariello’s control. There was no evidence that Schlosser

                                            –5–                                        2498

punched, kicked, or did anything else to inflict blunt force trauma on Sergeant
Pasquariello.
                Clearly, there is always some risk that someone’s bone may be broken
when people push, tackle, or wrestle with each other. But if the pushing, tackling, and
wrestling are within typical bounds, the possibility that someone might break a bone —
while certainly real — is not a likely outcome. More specifically, the breaking of a bone
in such circumstances is not so likely an outcome that the law views all of the
participants as guilty of a “gross deviation from the standard of conduct that a reasonable
person would observe in the situation”.
                If we were to rule otherwise, we would effectively be declaring that anyone
who engages in unarmed wrestling or tussling with another person is acting recklessly
with regard to the possibility that serious physical injury will ensue. We do not think
that the legislature intended such a result.
                For these reasons, we conclude that the evidence presented at Schlosser’s
trial was legally insufficient to support his conviction for second-degree assault.


       A separate problem: the jury instructions and the prosecutor’s final
       argument as to whether Schlosser acted “recklessly”


                Although we have just explained why the State’s evidence was insufficient
to support a conviction for second-degree assault, we also wish to point out that, given
the prosecutor’s final argument to the jury, and given the jury instructions in Schlosser’s
case, it is quite possible that Schlosser’s jury was misled as to what the State had to prove
to establish that Schlosser acted “recklessly”.
                Schlosser’s jury was instructed that if an element of a crime requires proof
that the defendant acted “recklessly”, that element is satisfied if the government proves


                                               –6–                                      2498

that the defendant acted “intentionally”. This jury instruction was based on the
provisions of AS 11.81.610(c) — but the instruction was not a completely accurate
rendering of what this statute means.
              The purpose of AS 11.81.610(c) is to clarify that when an element of a
crime requires proof that the defendant acted with a particular culpable mental state, the
government is allowed to prove that the defendant acted with a more blameworthy
culpable mental state than the one specified in the statute.
              For instance, if a statute requires proof that the defendant “recklessly”
caused a result, that element of the crime is satisfied if the government proves that the
defendant “intentionally” caused the result. In other words, if the crime requires proof
that the defendant recklessly disregarded the possibility that their conduct would lead to
a particular result, this element is satisfied if the government proves that the defendant
acted “intentionally” with respect to the specified result — i.e., if the government proves
that, rather than merely disregarding the risk that this result would occur, the defendant
acted with the conscious objective to cause this result. See AS 11.81.900(a)(1) (the
definition of “intentionally”).
              But this rule does not allow the government to prove that a defendant acted
recklessly with respect to one element of the crime by showing that the defendant acted
intentionally with respect to another element of the crime.
              In Schlosser’s case, for instance, the charge of second-degree assault
required the government to prove that Schlosser acted “recklessly” with respect to the
result of “serious physical injury”. The government was not allowed to satisfy this
burden by proving that Schlosser acted “intentionally” with respect to a different result
specified in a different element of the charges. But in the prosecutor’s opening statement,
and in her summation to the jury, the prosecutor told the jurors to interpret the jury
instruction in exactly this improper manner.

                                           –7–                                        2498

               In both her opening statement and in her closing argument, the prosecutor
argued — mistakenly — that if Schlosser “intentionally” broke Pasquariello’s grip, or
if Schlosser “intentionally” tried to escape from custody, then (as a matter of law)
Schlosser necessarily acted “recklessly” with respect to the possibility that Pasquariello
would suffer serious physical injury. In making this argument, the prosecutor explicitly
relied on the jury instruction we have been discussing — the instruction which told the
jurors that when the government must prove that the defendant acted “recklessly”, this
burden of proof is satisfied by proof that the defendant acted “intentionally”.
               This argument was improper. Although AS 11.81.610(c) declares that
proof of a higher culpable mental state may substitute for proof of a lower culpable
mental state, this rule operates only when both culpable mental states are being used in
reference to the same element of the crime.
               For instance, if the government must prove that a defendant acted
“recklessly” with respect to a particular result specified in the definition of the crime, the
government is not allowed to prove this element by showing that the defendant acted
“intentionally” with respect to some other result specified in a different element of the
charges. Likewise, if the government must prove that a defendant acted “recklessly”
with respect to a particular circumstance specified in the definition of the crime, the
government is not allowed to prove this element by showing that the defendant acted
“knowingly” with respect to some other circumstance specified in a different element of
the charges.
               We caution trial judges to be attentive to this limitation, since it is not
expressly spelled out in our criminal pattern jury instructions.           And we caution
prosecutors not to repeat the type of argument that the prosecutor made in Schlosser’s
case.



                                            –8–                                          2498

       Schlosser’s arguments that the evidence presented at his trial was
       insufficient to support his convictions for escape and theft


             In addition to challenging the sufficiency of the evidence to support his
conviction for second-degree assault, Schlosser also argues that the evidence was
insufficient to support his convictions for escape and for the theft of gasoline. More
specifically, Schlosser contends that the evidence fails to establish that he was ever
placed in “actual restraint” by Sergeant Pasquariello, and that the evidence fails to show
that he actually obtained any gasoline through his clandestine syphoning efforts.
             Viewing the evidence (and the reasonable inferences to be drawn from it)
in the light most favorable to the jury’s verdicts, we conclude that fair-minded jurors
could find that the State had proved these elements beyond a reasonable doubt. We
therefore reject Schlosser’s arguments that the evidence was legally insufficient. 2


       Schlosser’s argument that the trial judge committed error by not fully
       instructing the jury on the law of self-defense


             At Schlosser’s trial, his attorney raised the defense of self-defense with
regard to the charge of resisting arrest. But when Schlosser’s attorney asked the trial
judge to give the jurors an instruction detailing the law of self-defense, the judge
declined to do so. The judge declared that such an instruction was not needed, since the
jury instruction on the elements of resisting arrest already informed the jurors that a
person could not use force to resist an arrest unless the officer making the arrest used
excessive force.




   2
       See, e.g., Eide v. State, 168 P.3d 499, 500-01 (Alaska App. 2007).

                                           –9–                                         2498

              On appeal, Schlosser points out that, because the judge declined to give a
separate and more complete instruction on self-defense, the jurors might not have
understood certain aspects of the law of self-defense — for instance, the principle that
a person can act in self-defense, not only if they are actually being subjected to unlawful
force, but also if they honestly and reasonably believe that they are being subjected to
unlawful force. The State concedes that Schlosser is right — that Schlosser was entitled
to a more complete instruction on self-defense.
              However, we conclude that the trial judge’s error was harmless. Even
without a separate self-defense instruction, Schlosser’s attorney was able to argue
Schlosser’s self-defense claim to the jury — i.e., to argue that Schlosser was authorized
to use force to resist Sergeant Pasquariello, and to try to escape from him, because
Pasquariello used unreasonable (i.e., excessive) force upon Schlosser.
              The defense attorney’s argument did not rest on notions of reasonable
mistake, or on any of the less familiar aspects of the law of self-defense. Rather, the
defense attorney asserted that Schlosser acted to defend himself when Pasquariello
subjected him to excessive force. The defense attorney also told the jurors that it was the
State’s burden to disprove (beyond a reasonable doubt) Schlosser’s assertion of
excessive force. And the prosecutor did not dispute that the State bore this burden of
proof.
              Given the way Schlosser’s case was litigated, we conclude that the trial
judge’s failure to give the jurors a complete instruction on the law of self-defense was
harmless error.




                                          – 10 –                                      2498

       Schlosser’s argument that the trial judge committed error by not giving the
       jurors more explicit instruction on the legal meaningof“resist arrest” and
       “substantial risk of physical injury”


              During the jury’s deliberations, the jury asked the trial judge for
clarification of a phrase used in the instruction defining the elements of resisting arrest.
Specifically, the jury asked the judge what was meant by the phrase “resisted arrest by
any means that created a substantial risk of physical injury to another person”.
              When the trial judge received the jury’s note, he asked the attorneys how
they thought he should proceed. Both attorneys counseled the judge to do nothing. The
prosecutor said that this was an issue of fact for the jury to decide, and Schlosser’s
attorney told the judge, “[J]ust say, ‘No more precise definition is possible.’ Period.”
So the judge told the jurors:

                     This is a factual determination that must be made by
              the jury. No more precise definition of this term is available.

              Now, on appeal, Schlosser claims that the judge’s response to the jury was
plain error — that the judge should have given the jurors substantive guidance on the
meaning of the phrase “resisted arrest by any means that created a substantial risk of
physical injury to another person”. More specifically, Schlosser argues that the jurors
needed to receive a fuller explanation of what constitutes “resisting arrest” and what
constitutes a “substantial risk of physical injury”.
              We disagree with Schlosser’s claim of plain error. First, this is not an
instance of plain error; it is an instance of invited error. Schlosser’s attorney did not
merely fail to object to the wording of the judge’s response to the jury. Rather,
Schlosser’s attorney expressly urged the judge to tell the jurors, “‘No more precise
definition is possible.’ Period.” And that is what the judge did.


                                           – 11 –                                      2498

             Moreover, Schlosser’s case does not present an instance of clear injustice
where we would intervene to correct an invited error. Given the facts of Schlosser’s
case, there was no reasonable dispute that Schlosser “resisted arrest” as that term is
defined in Alaska law. 3 The issue was whether Schlosser was justified in doing so
because of the officer’s use of excessive force.
             And as to whether Schlosser’s conduct — pushing Sergeant Pasquariello
and wrestling with him — created a substantial risk of physical injury (as opposed to a
substantial risk of serious physical injury), Schlosser has failed to suggest, even now,
how the phrase “substantial risk of physical injury” could have been clarified in a way
that might reasonably have led the jury to reach a different verdict.
             We therefore reject Schlosser’s claim of error.


       Schlosser’s argument that the trial judge committed error by not giving the
       jurors more explicit instruction on the legal meaning of “actual restraint”


             Schlosser raises one more claim on appeal: he contends that the trial judge
committed error by not responding to the jury’s request for clarification of the term
“actual restraint”. (Schlosser was charged with escape on the theory that, “having been
placed in actual restraint by a peace officer before arrest”, Schlosser “removed himself”
from that restraint without lawful authority.)
             The record of the superior court proceedings indicates that the jury prepared
a note asking the judge for clarification of the term “actual restraint”. There is nothing
in the record to indicate that the trial judge ever responded to this note. Based on this,




   3
      See Velarde v. State, 353 P.3d 355, 358-59 (Alaska App. 2015); Eide v. State, 168
P.3d 499, 501-02 (Alaska App. 2007).

                                          – 12 –                                     2498

Schlosser contends that the trial judge committed error by declining to answer the jury’s
request.
              For two separate reasons, Schlosser has failed to adequately preserve this
issue for review.
              First, Schlosser has failed to present this Court with a record of the trial
court proceedings sufficient to demonstrate the occurrence of the claimed error, and
sufficient to allow this Court to review the matter.
              It is true that there is nothingin the record of the superior court proceedings
to show that the trial judge responded to the jury’s note. But there is also nothing in the
record to show that the judge ever received this note, or that the judge ever made a
decision concerning it. As the appellant (i.e., the party challenging the judgement of the
trial court), Schlosser has the burden to present this Court with a record that
demonstrates the occurrence of the error he claims. 4 The current record does not do that.
If Schlosser believed that the record of the trial court proceedings needed to be
supplemented or reconstructed to show that the trialjudge received the jury’s request and
declined to answer it, our Appellate Rules gave Schlosser the means of requesting this
supplementation or reconstruction. 5 But the current record is not adequate to support
Schlosser’s claim of error.
              Second, Schlosser has failed to adequately brief his claim of error. Even
if we assume that the trial judge received the jury’s note and decided not to respond to
the note, Schlosser’s briefs to this Court offer no suggestion as to what sort of answer the
judge should have given the jury.       Schlosser presents no argument as to how the


   4
      Miscovich v. Tryck, 875 P.2d 1293, 1304 (Alaska 1994); Ketchikan Retail Liquor
Dealers Ass’n v. Alcoholic Beverage Control Board, 602 P.2d 434, 438-39 (Alaska 1979);
Natkong v. State, 925 P.2d 672, 676 (Alaska App. 1996).
   5
       See Alaska Appellate Rule 210(i).

                                           – 13 –                                       2498

everyday definition of “actual restraint” might have been inadequate or misleading to the
jurors under the facts of his case, and he offers no suggestion as to how the judge might
have explained the term “actual restraint” in a manner that would have materially aided
the jurors in understanding this concept.
              For these reasons, we conclude that Schlosser has failed to preserve this
claim of error.


       Conclusion


              Schlosser’s conviction for second-degree assault is REVERSED, but in all
other respects the judgement of the superior court is AFFIRMED. The superior court
will have to re-sentence Schlosser, and the State may conceivably ask the superior court
to enter judgement against Schlosser for fourth-degree assault. We therefore remand this
case to the superior court for further proceedings consistent with this opinion.




                                            – 14 –                                  2498

