Court of Appeals of Alaska (2022)
In Foy v. State, 513 P.3d 1085 (Alaska Ct. App. 2022), the Court of Appeals held that, to sustain a first-degree assault conviction, the State must prove beyond a reasonable doubt that an offender used a dangerous weapon to cause a serious physical injury, which required creating a substantial risk of death. (Id. at 1093). The victim offered the offender, Foy, a ride. (Id. at 1087). With the car stopped in an “isolated” area, Foy slapped the victim when she declined to give him a return ride home. (Id.). The two left the car, and Foy put his arm around the victim’s throat for over a minute, threatening to kill her. (Id.). The victim later told a state trooper she had a hard time breathing and that Foy cut off her air flow, but that the episode passed quickly. (Id.). To prove that Foy committed first-degree assault, the State had to prove beyond a reasonable doubt that he “recklessly caused serious physical injury to the victim by means of a dangerous instrument.” (Id. at 1090). Because prosecutors had previously experienced difficulty establishing that hands could be dangerous instruments in strangulation cases, the Alaska legislature expanded dangerous instruments to include “hands or other objects when used to impede normal breathing or circulation of blood by applying pressure on the throat or neck or obstructing the nose or mouth.” (Id. at 1091). However, Foy argued that even though his hands were dangerous instruments, they had not caused the victim “serious physical injury.” (Id. at 1091). A serious physical injury must “create a substantial risk of death.” (Id.). Since the victim never felt like she would black out, was “still able to breathe,” and claimed that Foy applied pressure “intermittently,” the Court of Appeals determined that Foy never used his hands to cause physical injury. (Id. at 1092). Therefore, the Court of Appeals lowered the first-degree assault conviction to a third-degree assault conviction, holding that because Foy did not create a substantial risk of death, he did not cause a serious physical injury using a dangerous weapon. (Id. at 1092–94).