Cab driver found guilty of misconduct involving a weapon

A 12-person jury delivered not-guilty verdicts on four of five counts Wednesday at the Kenai Courthouse for Andre Dong Shin, a cab driver charged with firing his gun at the ground and into the air to scare a passenger who did not pay an Anchorage to Kenai fare.

 


However, Shin was found guilty of fourth-degree misconduct involving a weapon, specifically for discharging a gun from or across a highway, which is defined by law as various types of roads.


“It is dangerous,” Shin said in response to Assistant District Attorney Sam Scott when asked about firing his gun. “I was only trying to make noise, make (the passenger) scared.”


Judge Carl Bauman sentenced him to 45 days in jail and ordered forfeiture of the gun. No fine was imposed.


Charges against Shin included two counts of third-degree assault, fourth-degree misconduct involving a weapon, fifth-degree misconduct involving a weapon and reckless endangerment.


Shin said he had drove two passengers from the Anchorage Airport to Soldotna, but they did not have enough money to pay the fare. The passengers said they could get the money in Kenai. At an apartment on N. Gill Street a female passenger exited the cab and did not return. Shin and the male passenger knocked on a door at the apartment, but no one answered. The male passenger said he needed to urinate, and Shin began walking back to his cab. The passenger began running away from the apartment, and Shin chased after him on foot, according to court records.


In an attempt to stop the fleeing passenger Shin said he shot the pistol several times at the ground. Later, he described chasing the male down a street while firing the pistol, allegedly in the air, police report.


Following an investigation, Doug Nelson, 21, and Mary Mestas, 25, both of Kenai were identified as the passengers.


Nelson requested a condition of no contact between himself and Shin. Bauman granted the condition but only for the 45 days of jail time.


Wiping tears from his eyes, Shin was patted on the back by Defense Attorney Stephan Hale after the verdict.


“This is ridiculous,” Shin said after the trial. “Somebody I give ride, and they punish me.


“I thank the jurors, but I still won’t be able to get a job. I’ve already been to jail and bailed out.”


He lost his job as a result of the charges.


Nelson said he was somewhat surprised by the single guilty verdict.


“It wasn’t that big of a surprise, but it upset me, because I was in fear of my life,” he said. “It’s over now. I can’t change what happened inside the courtroom, but I’m disappointed that the court couldn’t use the rest of his previous charges to make this verdict count.”


After the verdict was delivered, the court considered a number of past charges against Shin. The charges include two dismissed third-degree assault charges in 2006 and a homicide charge reduced to an assault in October 1987.


Neither prosecution nor defense knew the details of the 25-year-old case. Shin was at his brother’s bar when a person brought a shotgun onto the property and after placing Shin in a headlock attempted to point the firearm at his head, he said. Shin drew his firearm and pointed it toward the perpetrator, he said. Neither of the gun-wielding persons fired their guns before police arrived. No further explanation was given to the court.


Bauman imposed a sentence not in line with either of the party’s recommendations. A fine and a probationary period were not appropriate. However, a period of incarceration was appropriate, he said.


“The circumstances were very serious to Mr. Shin,” he said. “Was the incident frustrating? Yes. Was it justification for firing a weapon in a neighborhood? No.”


The judge also approved a delayed remand to the Anchorage jail on April 4 at 7:45 a.m.


The state argued the evidence agreed upon by both parties was enough to return a guilty verdict on all five counts, focusing less on the issue of varying stories between the offender and the victims. Defense Attorney Stephen Hale questioned the validity of the victims’ stories, and he argued his client used reasonable force to stop the fleeing passenger.


Shin appeared in court wearing a black blazer. The 53-year-old with graying hair struggled with his English to tell his side of the story to the court, an issue raised by his defense attorney during closing arguments.


The judge prohibited the defense from arguing that Shin was lawfully defending his property or his right to payment for services rendered.

But he did explain the justification of defense to the jury during his oral instructions.


“A defendant may use non-deadly force upon another person when and to the extent the defendant believes it is necessary to terminate what the defendant believes to be the commission or attempted commission by the other person of an unlawful taking of or damaging of property and services,” Bauman said. “The defendant’s beliefs must be reasonable under the circumstances. Unless the state has proven beyond a reasonable doubt that the defendant did not act in defense of property or services that is described above you shall find the defendant not guilty.”


Deadly force means an action a person uses or a person creates a substantial risk of causing death or serious physical injury. It includes intentionally discharging or pointing a firearm in the direction of another person, he added.


The assault charges stemmed from placing Nelson and Mestas in fear of injury by a dangerous instrument, Scott said.


“It’s not whether physical injury occurred but whether the threat of injury occurred by chasing Nelson for a few city blocks and by yelling ‘I have a gun,’” he said. “(Shin) was implying by yelling he would use the gun.”


The misconduct involving a weapon charges stemmed from Shin failing to tell Kenai Officer Levi Russell he possessed a concealed weapon and firing a weapon in a neighborhood, Scott said.


An aerial photo of the Kenai neighborhood was used in court, as well as night and daytime photos of the roadways where KPD officers discovered gun shell casings.


“The whole place is covered with homes, churches ... children attend school here,” Scott said. “Mr. Shin’s bullets have to come down somewhere.”


Scott also argued the sides agreed on $250 for the fare before leaving Anchorage, and Nelson said he had the money.


Outside the courtroom, Nelson said the price was agreed upon before leaving Anchorage, but Shin changed his mind when they reached Soldotna. The final destination was specified as Kenai, he said.


Nelson was not asked to pay the fare after the incident, he said.


Shin never called 911; evidence of a guilty conscience for firing the weapon in a crowded neighborhood, Scott said.


Hale, defense attorney, said Shin was distraught and out of breath when Officer Russell asked whether Shin possessed a firearm.


But Hale mainly argued the conflicting stories of the victims. Mestas reported she witnessed Shin driving around the neighborhood after the shots were fired when the cab driver did not re-enter his vehicle. He also called Nelson a “liar and a thief.”


Neslon previously was charged with theft, but the case was dismissed.


A resident who called the police heard shots and someone laughing, he said.


“I can guarantee it was (the passengers),” he said.


“Shin is a hard-working good man.”

Jerzy Shedlock can be reached at jerzy.shedlock@peninsulaclarion.com.

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