In Dulier v. State, the court of appeals held that there was sufficient evidence for a jury to find that a flare gun fired at the victim by the defendant was a dangerous instrument capable of causing death or serious physical injury. After an altercation, defendant Dulier pressed a flare gun into the victim’s neck and fired. A bystander grabbed the victim’s shoulder just as the gun went off, causing the flare to hit the front of the victim’s neck, apparently reducing the damage caused by the device. Dulier was convicted of second- and third-degree assault, both of which include the element that the defendant caused physical injury by means of a “dangerous instrument,” defined as anything that, under the circumstances it was used, was capable of causing death or serious physical injury. On appeal, Dulier argued that the evidence was insufficient to establish that the flare gun was used in a manner capable of causing death or serious injury. Further, Dulier argued that the trial court erred by not sua sponte instructing the jury to only consider whether the use of the flare gun actually—not hypothetically—risked death or serious injury. Dulier claims this error was compounded by the prosecutor’s hypothetical framing of the issue in closing argument. The court of appeals affirmed the convictions, finding that the evidence of the victim’s injuries in addition testimony about the similarity between a flare gun shell and a shotgun shell were sufficient for a reasonable juror to find that the flare gun was a dangerous instrument. Further, the court of appeals held that, although a jury instruction focusing the issue on actual rather than hypothetical use of the device would have been appropriate and the prosecutor should not have used a hypothetical framing of the issue during closing argument, these errors did not rise to the level of plain error. At trial, the parties were primarily focused on other issues, and during the brief discussions of the “dangerous instrument” element, the parties appropriately focused on the manner in which the flare gun had actually been used. The prosecutor’s sole misstep in framing the issue hypothetically was addressed and corrected in the defense’s closing argument. The court of appeals held that there was sufficient evidence to affirm the jury’s finding that Dulier’s flare gun was dangerous instrument.
 451 P.3d 790 (Alaska Ct. App. 2019).