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Firey v. State7/14/2002
he victim's injury. In other words, the State had to prove that the victim's injury was attributable to the fact that Firey's driving behavior departed from what we would expect of a prudent and sober driver - as manifested either by overtly dangerous driving or by Firey's inattentiveness or inability to control his vehicle in a normal fashion.
If the jury believed that, under the circumstances, even a prudent and sober driver would have collided with the victim's vehicle and struck it with comparable force, then Firey should have been acquitted of assault. Firey could be convicted of assault only if his departure from prudent and sober driving was a substantial factor in causing the victim's injuries. But like my colleagues, I conclude that the jury instructions, as augmented by the summations of the parties, adequately communicated this concept to the jurors.
The proposed mitigating factor
Firey challenges the rejection of two of his proposed mitigating factors under AS 12.55.155(d). The majority opinion concludes that neither of these factors was supported by the evidence. I would add that one of them, mitigator (d)(7), did not even apply.
Mitigator (d)(7) is that the victim provoked the crime to a significant degree. As a legal matter, this mitigator has nothing to do with Firey's case. We have previously held that this mitigator requires proof that the victim's conduct was directed toward the defendant. Here, the victim of Firey's assault did not engage in any conduct directed at Firey. Indeed, the victim was unaware of Firey's presence until the collision.
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