MANNHEIMER, Judge.
In early December 2005, Don Nanthavong broke into a residence where a woman and her five-year-old son were living. He was wearing a ski mask, and he carried a handgun, a pair of handcuffs, and a roll of duct tape.
In the presence of the little boy, Nanthavong pointed a gun at the boy's mother, pushed her to the floor, handcuffed her, and placed duct tape over her mouth. During the ensuing struggle, the woman managed to rip the duct tape away from her mouth. She pleaded with Nanthavong not to hurt her and her child, and then she screamed for her child to run away. The boy, however, was apparently paralyzed with fear. He stayed in the living room while Nanthavong forced his mother into another room and raped her. Nanthavong then returned to the front room, where the boy was still sitting. He stole the woman's purse, and then he left the residence.
For this conduct, Nanthavong was convicted of first-degree burglary, first-degree sexual assault, and first-degree robbery, as well as third-degree assault upon the little boy. This last conviction was based on the theory that Nanthavong recklessly placed the boy in fear of imminent serious physical injury by means of a dangerous instrument. See AS 11.41.220(a)(1)(A).
After Nanthavong's trial was over, the trial judge — Superior Court Judge John Suddock — belatedly realized that there was a flaw in the jury instruction on the elements of the third-degree assault charge involving the little boy. The instruction included the elements that Nanthavong (1) placed the boy in fear of imminent serious physical injury, and that he (2) did so by means of a dangerous instrument, but the instruction failed to include the element that Nanthavong acted "recklessly" with regard to the possibility that his conduct would cause the boy to fear ( i.e., apprehend) imminent serious physical injury.
Judge Suddock notified the parties of his discovery, and he gave Nanthavong's attorney ten days to file any motion based on the flaw in the jury instruction. In response, Nanthavong's attorney filed a motion to set aside the third-degree assault conviction.
After considering Nanthavong's motion and the State's response, and based on the evidence presented at Nanthavong's trial, Judge Suddock concluded that it was "inconceivable" that the error in the jury instruction affected the jury's verdict on this third-degree assault count.
Judge Suddock noted that the little boy testified that he was in the living room when a masked man carrying a gun and duct tape came through their door, that the man placed duct tape on his mother and took her into the bedroom, and that he was scared.
Judge Suddock further noted that, at trial, Nanthavong's defense focused on disputing the State's allegation that Nanthavong raped the boy's mother after they went into the bedroom. Nanthavong's defense attorney conceded that Nanthavong entered the residence with gun in hand and that he handcuffed and duct-taped the boy's mother, partially disrobed her, and struggled with her, all in the boy's presence. The boy's mother testified that her son was so paralyzed with fear that he could not respond when she told him to call 911, even though he knew how to do this and Nanthavong left him alone in the living room where the telephone was.
Based on this record, Judge Suddock concluded that it "could not possibly have escaped the conscious attention of Mr. Nanthavong" that "a small boy would be terrified by a masked man with a handgun" entering his home and attacking his mother. Judge Suddock wrote:
It cannot . . . be seriously contended that [Nanthavong] did not . . . consciously disregard an unreasonable risk that the boy would be frightened [of suffering imminent serious physical injury]. It is flatly inconceivable that the jury would not have convicted Mr. Nanthavong, who offered no defense to the [third-degree assault] charge, had the word "recklessly" been included in the [jury] instruction.
Having independently examined the record of Nanthavong's trial, we concur in Judge Suddock's assessment. We, too, conclude that the error in the jury instruction was harmless beyond a reasonable doubt. Accordingly, the judgement of the superior court is AFFIRMED.