OPINION

Judge, MANNHEIMER.

Jesse Cecil Belarde and two friends, Rolando Barlow and Robert Smith, entered an Anchorage Fred Meyer store for the purpose of stealing a battery for Belarde's car.

(Belarde's car had recently broken down, and it was inoperable unless the battery was recharged. After concluding that it would take too long to recharge the battery, Belarde borrowed another car, and he and his friends went looking for a battery to steal.)

Inside the Fred Meyer store, Belarde went to the car battery section and identified the correct battery for his vehicle. His friend Smith then picked up the battery and attempted to carry it out of the store (without paying).

Two of the store's loss-prevention employees intercepted Smith in the arctic entry. Smith dropped the battery and punched one of the employees in the face. Belarde's other friend, Barlow, then hit the other loss-prevention employee in the face. At this point, Smith pulled a pistol from his waistband, chambered a round, and ordered the loss-prevention employee to back away. Belarde then picked up the battery from the floor, and he and his friends left the store (with the battery).

Based on this incident, Belarde was convicted of both the theft of the battery and first-degree robbery. The robbery charge was based on the theory that Belarde and his accomplices took the battery from the immediate presence of the store employees through the use of force (the basic crime of second-degree robbery as defined in AS 11.41.510(a)), and by threatening the employees with a pistol (thus elevating the crime to first-degree robbery as defined in AS 11.41.500(a)).

In this appeal, Belarde argues that his first-degree robbery conviction must be reversed because his jury was misinstructed regarding the rules for when one accomplice to a crime (in this case, Belarde) can be held legally accountable for the intentions of another accomplice to the crime (in this case, Smith).

We agree with Belarde that there was a flaw in the jury instruction on the elements of first-degree robbery. But we conclude that, given the facts of Belarde's case and the way in which the case was argued to the jury, there is no chance that the flaw in the jury instruction affected the jury's verdict. We therefore affirm Belarde's robbery conviction.

A more detailed look at Belarde's claim on appeal

Belarde acknowledges that he was properly found guilty of stealing the car battery. (In fact, when Belarde's trial attorney delivered his summation to the jury, he conceded that Belarde should be convicted of theft.) But Belarde argues that his robbery conviction should be reversed because of a faulty clause in the jury instruction on the elements of first-degree robbery.

Belarde's attack on the jury instruction is based on the defense that he offered at trial. Belarde testified that, when he picked up the battery and ran out of the store, he was unaware that Smith had used a pistol to threaten the employees.

(Belarde asserted that he had been using his mobile phone as he walked out of the store, and thus his attention was initially distracted away from the fight that occurred between Smith, Barlow, and the two loss-prevention employees. Belarde declared that he remained unaware that Smith had used the pistol until they were driving away from the store, when he listened to Smith and Barlow recounting the events that had just occurred.)

Turning to the jury instruction on the elements of first-degree robbery, paragraph 3 of this instruction told the jurors that the State was required to prove that "[Belarde] or another participant intended to prevent or overcome ... resistance to the taking of the property [by using force]". (Emphasis added) Pointing to this italicized language, Belarde argues that this jury instruction improperly deprived him of his defense to the first-degree robbery charge — because this instruction told the jurors that, as long as Smith intended to accomplish the taking by armed force (i.e., by threatening the store employees with a pistol), it did not matter whether Belarde personally intended to accomplish the taking by force.

Belarde's trial attorney did not object to the jury instruction, so Belarde must now show that the challenged jury instruction constituted plain error.

Even if the challenged jury instruction was flawed, we conclude that any error was harmless, given the way this case was litigated and argued to the jury

Under the definition of robbery codified in AS 11.41.510(a), the theft or attempted theft of property from the immediate presence and control of another constitutes robbery if, during the course of the taking (or attempted taking), the defendant

On appeal, Belarde implicitly concedes that if Smith threatened the Fred Meyer employees with a pistol to overcome their resistance to the theft of the car battery, this would constitute a robbery — and would, in fact, constitute a first-degree robbery under AS 11.41.500(a)(1), which covers all cases of robbery where the defendant "is armed with a deadly weapon or represents by words or other conduct that [the defendant] or another participant [in the taking] is so armed".

Belarde's claim of plain error rests on the premise that even if Smith and Barlow committed robbery by striking the Fred Meyer loss-prevention employees, and even if that robbery became a first-degree robbery when Smith drew the pistol, Belarde himself would be innocent of robbery if he did not personally intend for the theft to be accomplished by force. Based on this premise, Belarde argues that it was obvious error for the trial judge to instruct the jurors that it was sufficient for the State to prove that either Belarde or Smith or Barlow used force with the intent of preventing or overcoming resistance to the taking of the battery.

The "natural and probable consequences" theory of accomplice liability

Belarde's argument ignores the criminal law doctrine that a person who participates in a joint criminal enterprise (such as the theft in this case) is deemed to intend the natural and probable consequences of that enterprise — including any reasonably foreseeable related criminal offenses committed by the person's accomplices. United States v. Barnett, 667 F.2d 835, 841 (9th Cir.1982); People v. Durham, 70 Cal.2d 171, 74 Cal.Rptr. 262, 269, 449 P.2d 198, 204 (1969). See also Vaden v. State, 768 P.2d 1102, 1111 (Alaska 1989) (Justice Burke, dissenting).

As the California Supreme Court explained in People v. Prettyman, 14 Cal.4th 248, 58 Cal.Rptr.2d 827, 833-34, 926 P.2d 1013, 1019-1020 (1996):

Although legal commentators have questioned whether it is proper to hold accomplices liable for all reasonably foreseeable crimes committed in pursuance of a criminal enterprise,1 most courts adhere to the "natural and probable consequences" doctrine. See Wayne R. LaFave, Substantive Criminal Law (2nd ed.2003), § 13.3(b), Vol. 2, pp. 360-63 (criticizing the doctrine but describing it as the "established rule"). And under this doctrine, if the jury concluded that it was reasonably foreseeable that Smith would threaten the loss-prevention officer with a firearm, then Belarde could properly be found guilty of first-degree robbery.

There is no Alaska case expressly adopting the "natural and probable consequences" doctrine of accomplice liability. And, in any event, it is a jury question whether an accomplice's crime was "reasonably foreseeable" under the facts of a given case — and Belarde's jury was not asked to resolve this question.

The foregoing discussion of the "natural and probable consequences" doctrine is relevant only because Belarde's attack on the jury instruction is raised as a claim of plain error. That is, Belarde must show that it was obvious error for the trial judge to instruct the jurors that Belarde could be convicted of robbery if any participant in the theft (Belarde or Smith or Barlow) used force or threatened the use of force to prevent or overcome resistance to the theft of the battery. The "natural and probable consequences" doctrine is the predominant rule in American jurisdictions; and under this doctrine, the challenged jury instruction was not obvious error — indeed, it was not error at all — so long as the jurors found that Belarde's accomplice's use of force was reasonably foreseeable.

But to resolve Belarde's case, we need not decide whether to adopt the "natural and probable consequences" doctrine of accomplice liability — because there is a second, more case-specific reason why we conclude that the challenged jury instruction was not plain error.

Why we conclude that any flaw in the jury instruction was cured by the final arguments of the parties

As we explained earlier, Belarde's theory of defense was that (1) he was unaware that Smith had threatened the Fred Meyer loss-prevention employees with a pistol, and that (2) even if Smith did threaten the Fred Meyer employees with the pistol, Belarde himself never intended to accomplish the theft of the battery through the use of force.

In response to this offered defense, the prosecutor told the jurors that the State was required to prove (1) that Belarde was, indeed, personally aware that Smith had drawn a gun on the Fred Meyer employees, and (2) that Belarde knowingly took advantage of this situation to grab the battery, knowing that the Fred Meyer employees had been intimidated and were no longer actively attempting to stop the theft.

The prosecutor reminded the jurors of the testimony given by Belarde's accomplice, Barlow, and the testimony given by the detective who interviewed Belarde following his arrest. Between them, these two witnesses testified that Belarde did see Smith take out the gun, and saw one of the Fred Meyer employees with his hands up. At that point, according to Barlow's testimony, Belarde said, "Fuck that. I'm not leaving [the battery] here." — and he picked up the battery.

The prosecutor argued that Belarde, despite his protests of ignorance, must have seen what was going on — and that Belarde, at that instant, formed the intent to take advantage of Smith's use of force by completing his theft of the battery, knowing that the Fred Meyer employees had been threatened into ceasing their resistance to the theft:

In response to the prosecutor's argument, Belarde's attorney delivered a summation in which he conceded that Belarde planned and executed a theft, but in which he asserted that Belarde was not guilty of robbery.

More specifically, the defense attorney argued that Belarde never intended to use force to accomplish the theft of the battery — and that even if Belarde had seen Robert Smith using force against the loss-prevention officers, that use of force was simply so that Smith and the others could escape. The defense attorney argued that Belarde was not responsible for Smith's use of force to avoid arrest, and the defense attorney argued that Belarde's contemporaneous act of picking up the battery and running out of the store did not prove that Belarde ever intended to accomplish the taking by force.

Here is the final paragraph of the defense attorney's summation:

In his rebuttal summation, the prosecutor agreed that the crucial issue was Belarde's intent — but the prosecutor argued that, even though Belarde may not have intended to steal the battery by force when he walked into the Fred Meyer store, Belarde formed the intent to accomplish the taking by force when he saw Smith holding the loss-prevention officers at bay with a gun:

In other words, the prosecutor did not argue that Belarde was guilty of robbery because someone else (Robert Smith) intended to use force to accomplish the taking. Rather, the prosecutor argued that Belarde was guilty of robbery because Belarde personally formed the intent to accomplish the taking by force — i.e., the intent to complete the theft of the battery by taking advantage of the fact that Smith was intimidating the store employees with a gun.

According to Wayne R. LaFave, Substantive Criminal Law (2nd ed.2003), § 20.3(e), Vol. 3, pp. 191-92, "[t]he great weight of authority" favors the view that a robbery occurs when one person strikes another, even without an intent to steal, "and ... then, seeing his adversary helpless, takes the latter's property from his person or his presence." Indeed, many appellate courts have held that, in such circumstances, a robbery is committed even if the taking of property occurs after the use of force has stopped. A number of these cases are discussed in Stebbing v. State, 299 Md. 331, 473 A.2d 903, 914-15 (1984).2

In Belarde's case, the State's theory of robbery was more straightforward — because, under the State's view, Belarde took the battery while Smith was using force against the store employees. But regardless of whether Belarde picked up the battery while Smith was intimidating the employees with a gun or immediately thereafter, the majority view supports the prosecutor's argument that Belarde committed a robbery when he formed the intent to take advantage of the opportunity created by his accomplice's use of force, by taking the car battery from the immediate presence of the now-subdued store employees.

To sum up this discussion: The prosecutor told the jurors that Belarde could be convicted of robbery only if the State proved that Belarde (1) knew that Smith had intimidated the store employees with a gun, and that Belarde (2) purposely took advantage of this opportunity to accomplish the taking of the car battery. As a legal matter, the prosecutor's argument was not plainly erroneous; in fact, it represents the majority view in this country. Accordingly, we find that any arguable ambiguity or flaw in the challenged jury instruction was cured by the defense attorney's summation and the prosecutor's response.3

For these reasons, we conclude that Belarde has failed to show that the challenged portion of the jury instruction constituted plain error.

(We also reject Belarde's related argument that the prosecutor exacerbated the flaw in the jury instruction by arguing that Belarde did not need to know that he was committing a robbery. We have examined the challenged portion of the prosecutor's argument, and it is clear that she was merely telling the jury that it did not matter whether Belarde understood that, as a legal matter, his conduct and his accompanying culpable mental state constituted the offense of robbery as defined under Alaska law.)

Conclusion

The judgement of the superior court is AFFIRMED.