source: Caselaw Access Project

author: EASTAUGH, Justice.

license: Public Domain

text:
    ANCHORAGE POLICE & FIRE RETIREMENT SYSTEM, Appellant, v. Jack GALLION, Michael Crotty, John Young, Carroll Grant, Anthony Provost, Douglas K. Bohac, and Anchorage Police and Fire Retirees Association, Appellees.
    No. S-9880.
    Supreme Court of Alaska.
    March 14, 2003.
    See also 944 P.2d 436.

      Douglas J. Serdahely and David J. May-berry, Patton Boggs LLP, Anchorage, for Appellant.
    Peter J. Maassen, Ingaldson Maassen, P.C., and Peter Gruenstein, Gruenstein & Hickey, Anchorage, for Appellees.
    Before: MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.

      . Id. at 439-40.

   OPINION

EASTAUGH, Justice.

I. INTRODUCTION

The superior court held the Board of Trustees of the Anchorage Police & Fire Retirement System in indirect criminal contempt for violating a court order that approved a class action settlement. Indirect criminal contempt" requires finding beyond a reasonable doubt that the respondent violated an order willfully. Because the superior court found that the system willfully violated the court’s order, because we conclude that the evidence supports that finding and that the order was unambiguous, and because we also conclude that there is no indication the superior court applied the wrong standard of proof, we affirm.

II. FACTS AND PROCEEDINGS

The Anchorage Police & Fire Retirement System (APFRS, or system) from 1994 to 1997 consisted of three benefit plans (Plans I, II, and III) that provided retirement, disability, and death benefits for Municipality of Anchorage police officers and fire fighters. At pertinent times the board of trustees administering the APFRS consisted of eight members. The Anchorage mayor appointed the board’s eight members; four were chosen from the mayor’s administration and four were chosen from a list of persons nominated by the APFRS membership.

As of 1994 Plan I was 135% funded, Plan II was 112% funded, and Plan III was 89% funded; thus, Plans I - and II were over-funded, Plan III was under-funded, and the three plans were over-funded in the aggregate. In 1994 the Anchorage Assembly passed Anchorage Ordinance 94-95, combining the plans and requiring that the assets of Plans I and II fund Plan III. APFRS members sued, challenging the constitutionality of the ordinance. We held in Gallion v. Municipality of Anchorage (Gallion I) that the assets of the three plans could not be combined to fund all three plans to the detriment of the members of Plans I and II, and that the surpluses of each of those plans had to be used for the sole benefit of its members.

Following our remand, APFRS members filed a second class action (Gallion II) in which they claimed that the APFRS board had not used the funds’ surpluses for the benefit of the members in compliance with our decision in Gallion I. The members, represented by class counsel, sought to recover some of the monies by “either reducing] contributions, increasing] ■ benefits, or both.” In March 2000 the class, the board, and the Municipality of Anchorage entered into a Conditional Settlement Agreement (CSA, or agreement) to settle Gallion I, Gallion II, and two other lawsuits. Among other things, the CSA provided for distributing funds from the three plans to their respective members, provided for a one-time reversion of $40 million to the municipality, and provided for attorney’s fees for class counsel.

Superior Court Judge John Reese conducted a hearing on March 17, 2000, approved the proposed CSA, and approved an award of attorney’s fees to class counsel. The court observed that some class members had filed objections, some of which harshly criticized class counsel, to the proposed award of fees to class counsel. The court’s oral comments explained at length the court’s reasoning in rejecting those objections and in calculating the amount of its fee award to class counsel. The superior court entered a written order on April 6, 2000 awarding attorney’s fees to class counsel. The April 6 order also ordered APFRS, when it distributed the funds to the members per the CSA, to send each member a copy of the court’s written findings along with a copy of the transcript of the court’s oral order. This requirement was intended to educate the members about the court’s reasons for the fee award and was apparently intended to respond to members’ criticism of class counsel. Thus, the April 6 order awarding attorney’s fees provided:

[S]o that the APFRS members may fully understand the basis for the court’s order with respect to attorneys’ services and fees, it is further ORDERED that the APFRS shall mail at the expense of the common fund to each of the APFRS members a copy of these findings along with a copy of the transcript of the court’s oral order no later than the date enhancements are distributed to retirees.

(Emphasis added.) The April 6 order therefore contemplated sending out copies of the transcript and findings at the same time, and no later than the time the system distributed the settlement payments to each APFRS member.

Several weeks later, the board filed a motion for clarification and interpretation of the CSA due to the board’s professed concern about difficulties in making timely distributions. In response, the superior court issued a written order on April 28 that stated: “1. When sufficient funds have been made available through liquidation of investments to make all payments, all payments will be made. 2. Neither the Municipality nor the attorneys, nor the members, get paid before anyone else.” The order also required that “5. The ‘educational’ requirements of the settlement will be accomplished within the time allowed by the liquidation schedule. Distribution will not be delayed to accomplish education.”

The system transferred money to class counsel, the municipality, and some class members on May 18, 2000. But there was a delay of about three weeks before the system distributed the court’s findings regarding attorney’s fees. The system first sent the transcript to members as an enclosure with a letter from the APFRS board dated June 8. On June 9 the system filed a document entitled Notice of Compliance with Court Order; the notice stated that the required mail-out was completed June 7.

On June 21 class counsel moved for an order to show cause and for Rule 95 penalties; the motion asked court to sanction the board or its attorneys under Alaska Civil Rule 90(b) or Alaska Civil Rule 95. Following briefing, the court ordered the system and its counsel to appear and show cause why they should not be sanctioned “for violating the court’s order concerning the timing of notification of the class members of the attorney fee dispute resolution.”

After conducting an evidentiary hearing, the superior court found that “the distributions were made before the June 8th notice [enclosing the transcript] was sent.” “[Distributions were to the attorneys, the Municipality and 149 of the members.... I do find that that is contrary to the specific and unambiguous language of the April 6th order, so the system did violate that order, and in doing so defeated the purpose of that clause of the order.” The court then held the system in contempt and announced an intention to fine it $100. Counsel for the system argued that contempt required a willful violation of the order and that the evidence demonstrated that Charles Laird, who had acted for the board, “did not intentionally defy the court’s order” and had an honest and good faith belief as to what he was required to do. The court nonetheless held the system in contempt. We discuss the court’s comments in Part III.B of this opinion.

The court also found the system’s attorney, Robert Klausner, in contempt and assessed, but suspended, a “nominal penalty” of $10 against him.

The APFRS appeals from the order holding the system in contempt. Klausner has not appealed.

III. DISCUSSION

A. Standard of Review

We review de novo a legal determination of what elements are necessary to prove indirect criminal contempt. Relying by analogy on the standard of review applicable in deciding whether a court has made findings on each necessary element of a statutory violation, we will review de novo contempt citations imposed under Alaska Civil Rule 90(b). We exercise our independent judgment in deciding whether a court has made factual findings satisfying each element necessary for indirect contempt. We review for clear error factual findings a court makes in deciding whether to hold a respondent in contempt.

B. The Superior Court Found the Necessary Element of Willfulness When It Held the System in Indirect Criminal Contempt of Court.

The superior court held the system in contempt for disobeying the April 6 order. This contempt was criminal because the sanction served a punitive, as opposed to a coercive, function. The contempt was indirect because the court did not witness or hear the conduct constituting the contempt.

The system argues that the superior court misdefined and misapplied the elements of indirect criminal contempt, because it omitted the requirement that the violation be willful. The system also suggests that the court failed to find a willful violation.

We described in Taylor v. District Court for the Fourth Judicial District the inquiry a court must make concerning the element of willfulness in determining whether an indirect contempt has occurred. There we said:

In order for there to be contempt it must appear that there has been a willful disregard or disobedience of the authority or orders of the court. Whether such willfulness exists is something the court cannot be aware of from its own observations in the courtroom and without inquiry from other sources. Without such inquiry the court cannot ascertain the operational facts from which an inference of willful disobedience or disregard of the court’s authority or orders can be drawn.[]

In this case, the system’s alleged noncompliance with the court’s orders was not observed by the superior court; rather, it was brought to the court’s attention by class counsel’s motion for an order to show cause.

In Taylor we stated that willfulness is the mens rea requirement for criminal contempt. “When a criminal contempt is involved, all elements of the offense, including that of willfulness, must be proven beyond a reasonable doubt.” “Willfulness is established by proof of conscious action and does not require a showing of specific intent.” We said in Continental Insurance Cos. v. Bayless & Roberts that “[i]f it is proved that a party had notice of the court’s order and was aware of the requirements but failed to comply with the order, in the absence of explanation of the reason for such failure, a court could infer it to be intentional.” But we held in Bayless & Roberts that “[n]o findings of fact were made as to Continental’s intent in disobeying the court’s order.”

During the show cause hearing the superi- or court heard testimony from Charles Laird, the APFRS director and the administrator charged with implementing the court’s orders. Laird explained how he, the APFRS lawyer, and the staff interpreted the orders, and discussed why he believed the system was in compliance. Laird explained the lengthy process of distributing the funds. He described sending out inquiries to the APFRS members to determine in which form each wished to receive payment, receiving the responses, and issuing the checks. He explained that this process could not be done in one day. He therefore did not interpret the April 6 order to mean that the letters transmitting the court’s findings had to be sent on the first day any checks went out. The order referred to “the date enhancements are distributed to retirees.” Laird testified that the process did not take place on just one day. Instead, he understood the order’s reference to “the date enhancements are distributed to retirees” to refer to the span of time, as described in the CSA, in which the system was compelled to complete the process — by late spring or early summer of 2000. He testified that he believed he was complying with the court’s orders by sending the letters on June 8 — before the process was completed — as opposed to sending the letters simultaneously with the payments. This was the only testimony the court heard regarding the system’s alleged contempt. But there was other evidence before the court. This evidence included the April 6 order itself, the court file containing memo-randa about how that order was to be interpreted and applied, the clarifying April 28 order, the text of the board’s June 8 letter to the class members, and copies of May and June correspondence between counsel concerning what the system needed to do and when it needed to do it to comply with the April 6 order.

After receiving the Laird testimony, the court announced that it was holding the system in contempt. Counsel for the system asked the court to clarify its findings on the issue of willfulness. Earlier in the hearing, the court had articulated its understanding of the elements of contempt, stating, “There has to be a court order, and they have to have notice of the court order, and they have to have violated a court order, and they have to have been in a position to have not violated it.” In response to counsel’s inquiry about the issue of willfulness, the court stated:

I do not find that Mr. Laird is being dishonest.... But the fact is the board did something contrary to the specific terms of my order. Mr. Laird is not the one that’s on the hot seat here today. It’s the system that violated my order.... I find that the board, I don’t know if it was Mr. Laird, I don’t know if it was some particular member of the board, it might have been Mr. [Klausner], it might have been somebody from the Municipality, it might have been the man in the moon. I don’t know who it was, but somebody influenced the board and caused the board to make a decision in sending out the contradiction of my findings at the same time as the findings after they were supposed to have sent them out, with the particular intent of defying my order and interfering with the impact of my order, and they are in contempt for doing that.... They’ve acted like the thugs we put in the jury box every day handcuffed together, saying we don’t respect the law, they don’t respect the • court. That’s contempt. They ought to be ashamed of themselves. I’m very sorry they did this in the first place, and I’m really sorry that they didn’t come in here today and say we got carried away by emotional stuff ... and we’re sorry we got caught up in that. We don’t mean the court any disrespect. But they didn’t come in here and say that, so they’re in contempt.[]

(Emphasis added.)

The system’s attorney then argued that the system, acting through Laird, “did not intentionally defy the court’s order.” The court responded, “I find to the contrary....” The court later observed, in discussing Klausner’s role, that “his client’s purpose as I mentioned before seems culpable in that it seems tied in with an intent to interfere with and negate the rulings [of] the court.”

Thus, the court first found that the system had decided to send out the letter contradicting the court’s findings, “after they were supposed to have sent them out, with the particular intent of defying my order and interfering with the impact of my order....” Second, by announcing that “I find to the contrary,” the court expressly rejected the system’s assertion that the system did not intentionally defy the order. These findings satisfy the requirement of a willful violation. We therefore reject the system’s argument that the court misdefined the elements of contempt and failed to find a willful violation.

It does not matter that the court, when it first discussed the contempt sanction, did not specifically mention the willfulness element. After the system’s attorney asked the court about that element at the hearing, the court made the findings quoted above.

It also does not matter that the court did not specify who caused the board to defy the order. It was the system which the court held in contempt. It also does not matter that the court stated that it did not find that Laird was being dishonest, because the court found that “somebody influenced the board” and caused it to act “with the particular intent of defying my order....”

C. The Finding of Willfulness Was Not Clearly Erroneous.

We also conclude that there was sufficient evidence to support the finding of willfulness. This included Laird’s testimony that he had written the first draft of the board’s letter, but that it was “reviewed by a number of people before it was finalized.” This testimony permits an inference that the reason the information was mailed untimely was delay in drafting and revising the letter the board wanted to send with the intention of contradicting and “undermining” the court’s reasons for the award and the court’s comments responding to criticism of class counsel. Further, the court’s stated purpose for ordering the informational mail-out requires an inference that, notwithstanding Laird’s personal innocence, the system collectively recognized the importance of simultaneously sending the court’s comments when it made any payments to members of the class. This evidence also permits an inference that the system willfully violated the order by beginning to make payments to the class members some three weeks before it sent the court’s explanatory comments.

We also reject the system’s assertions that the April 6 order was ambiguous. The order specified that the court’s comments were to be sent to “each of the APFRS members ... no later than the date enhancements are distributed to retirees.” This language made it clear that payment could not be made to a member before the information was sent to that member. Further, as appellees argue on appeal, there is no indication the system’s attorney, Klausner, thought the information-distribution requirement was ambiguous. The letters class counsel and Klausner exchanged in May and early June 2000 strongly imply that Klausner understood that the information was to have been mailed when the payments began. As the days passed and class counsel became more strident and even threatened a contempt request, Klausner never asserted that the mail-out requirement was ambiguous or that the system had months in which to comply. These exchanges also tend to confirm the superior court’s suspicion that the system intentionally delayed sending the court’s comments to the members until the board could prepare and send its letter “contradicting” the court’s attorney’s fees findings.

The system also argues that because it was impossible to make all of the payments simultaneously, it also would have been impossible to comply with the April 6 order if it had been written as the court interpreted it. But the impossibility of paying each member on the same day did not prevent the system from distributing the information to each member at the same time it paid that member, or from sending the information to each member before it made the first payment to any member.

D. Standard of Proof

The system contends that the court failed to apply the reasonable doubt standard of proof. The reasonable doubt standard of proof applies to criminal contempt proceedings. The superior court did not specify the standard of proof it was applying to the contempt proceeding. We have held in other contexts that a trial court need not explicitly state all of its factual findings so long as its findings are “adequate to reveal its reasoning process.” Courts elsewhere have held that a trial court need not explicitly state the standard of proof it is applying if there is no dispute about the applicable standard. We will normally assume that the trial court has applied the correct standard.

The court’s August 22 clarification order, which explained the changes to which Klaus-ner was to respond at the August 23 hearing, cited AS 09.50.010(5). That statute defines contempt to include “disobedience of a lawful judgment, order, or process of the court.” Thus, the court was aware that a violation of AS 09.50.010(5) encompassed violations of court orders. The court was of course aware that it had required the system to show cause why it should not be sanctioned for violating a court order. Reported Alaska case law establishes that subsection .010(5) deals with criminal, rather than civil, contempt, at least if the court’s purpose is to punish rather than coerce. The sanction here had no possible coercive effect. It is undisputed that the elements of criminal contempt are subject to a beyond a reasonable doubt standard of proof in Alaska. Decisions so holding are cited and described in the annotations to AS 09.50.010. From this we can safely assume the superior court recognized and applied the correct standard.

There is no indication the court applied some other standard. The court did not mention the lesser preponderance or clear and convincing standards. The contempt hearing commenced with an oral argument by Klausner’s counsel that emphasized the punitive nature of the proceedings against Klausner. Referring to the size of the maximum potential fine, counsel also requested a jury trial and analogized to Baker v. City of Fairbanks, which counsel described as stating that a large enough fine connotes criminal conduct.

Given the context of these arguments, and absent any reason to think otherwise, we assume the court applied the correct standard of proof.

IV. CONCLUSION

For these reasons, we AFFIRM the order holding the system in contempt.

FABE, Chief Justice, not participating.

      . Former Anchorage Municipal Code (AMC) 03.85.030-.040.

      . AMC 03.85.030(B), (C).

      . Gallion v. Municipality of Anchorage (Gallion I), 944 P.2d 436, 438-39 (Alaska 1997), describes these circumstances in detail.

      . Id. at 439.

      . Id. at 443.

      . The class members moved for summary judgment in 1999. The superior court held that the board owed a fiduciary duty only to the members. It ruled that the members had no right to increased benefits, but it directed the board to recommend a proposal to the municipal assembly addressing the surplus. The municipality intervened and cross-moved for summary judgment seeking to establish a reversionary interest in the surplus. The court denied the municipality's motion, finding no such interest existed. Despite this order, the CSA granted the municipality $40 million from the surplus.

      .The system claimed that distributing the funds was a gradual process that required the system to liquidate investments to produce cash for distribution, educate the members about the payments, and wait for each recipient to determine in what form he or she wanted to receive payment before distribution of the funds could begin.

      .The board's letter stated that it contained "court-related materials from the hearing” on attorney's fees and stated that they were sent because class counsel had asked the superior court to order that they be sent. The letter then stated that the board considered that sending the materials was a "waste of trust assets." The letter also told members that the board "believed that the award of additional [class counsel attorney's] fees, to be deducted from [members'] benefit payments, was wrong.”

      . The parties do not distinguish between the system and the board for purposes of the issues on appeal.

      . Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979) (holding that on questions of law we adopt rule "that is most persuasive in light of precedent, reason, and policy”).

      . E.g., A.B. v. State, Dep’t of Health & Soc. Servs., 7 P.3d 946, 950 (Alaska 2000) (citation omitted) ("Whether the trial court's findings comport with the child in need of aid statutes is a question of law that this court reviews de novo.").

      . Alaska Rule of Civil Procedure 90(b) reads:
      For every contempt other than [contempts committed in the presence of the court], upon a proper showing on ex parte motion supported by affidavits, the court shall either order the accused party to show cause at some reasonable time, to be therein specified, why he should not be punished for the alleged contempt, or shall issue a bench warrant for the arrest of such party. Such proceeding may be commenced and prosecuted in the same action or in an independent proceeding either by the state, or by the aggrieved party whose right or remedy in an action has been defeated or prejudiced or who has suffered a loss or injury by the act constituting a contempt.

      . Matanuska Elec. Ass'n, Inc. v. Rewire the Board, 36 P.3d 685, 700-01 (Alaska 2001) (noting clear error standard when reviewing contempt orders is "consistent with the deferential review used by courts in other jurisdictions" and citing cases illustrating deferential standards of other states).

      . The system's briefs focus on the April 6 order. In its oral contempt order the superior court explicitly mentioned only the April 6 order but also seemed to take the April 28 order into consideration.

      . Johansen v. State, 491 P.2d 759, 763 (Alaska 1971) (citing Gompers v. Buck’s Stove & Range Co., 221 U.S. 418, 441, 31 S.Ct. 492, 55 L.Ed. 797 (1911)).

        . See Hutchison v. State, 27 P.3d 774, 779 (Alaska App.2001).

      . In L.A.M. v. State, 547 P.2d 827, 831 (Alaska 1976), we explained that the four elements of contempt are:
      (1) the existence of a valid order directing the alleged contemnor to do or refrain from doing something and the court’s jurisdiction to enter that order; (2) the contemnor's notice of the order within sufficient time to comply with it; ... (3) the contemnor's ability to comply with the order; and (4) the contemnor's willful failure to comply with the order.

      . 434 P.2d 679, 681 (Alaska 1967).

      . Taylor, 434 P.2d at 681 (citations omitted).

      . The system argues that class counsel's motion was insufficient because it was not supported by affidavits. We have ruled that the purpose of Civil Rule 90(b)'s affidavit requirement is to ensure procedural due process for the person charged. Taylor, 434 P.2d at 681-82. In Taylor we held that the order to show cause specifying the contemptuous act satisfied the notice requirement of procedural due process. In this case, the motion for an order to show cause specified the allegedly contemptuous acts and delineated what actions the system would have to defend. An affidavit would have been redundant. See id.

      . Continental Ins. Cos. v. Bayless & Roberts, Inc., 548 P.2d 398, 407 (Alaska 1976) (citations omitted).

      . Rollins v. State ex rel. Municipality of Anchorage, 748 P.2d 767, 771 (Alaska App.1988) (citing Hentzner v. State, 613 P.2d 821, 826 (Alaska 1980)).

      . Bayless & Roberts, 548 P.2d at 407 (citations omitted).

      . Id. at 400.

      . "|T]he contradiction of my findings” is a reference to the letter the board wrote and sent out to the members with the copy of the court’s attorney's fees award. The letter the board wrote expressed, among other things, the board's disagreement with the court’s April 6 order and attorney's fees award.

      . Continental Ins. Cos. v. Bayless & Roberts, Inc., 548 P.2d 398, 407 (Alaska 1976); Carter v. Brodrick, 750 P.2d 843, 845 (Alaska App.1988).

      . Borchgrevink v. Borchgrevink, 941 P.2d 132, 137 (Alaska 1997) (holding in child custody context that court not required to make "wrap-up” finding); see also Virgin v. Virgin, 990 P.2d 1040, 1047-48 (Alaska 1999) (noting that requiring "wrap-up" finding "would unjustifiably elevate form over substance”).

      . Ross v. Superior Court, 19 Cal.3d 899, 141 Cal.Rptr. 133, 569 P.2d 727, 737 (1977) ("[T]he applicability of the reasonable doubt standard to contempt proceedings has ... been firmly established in a long line of California decisions, and thus in the instant case there is no reason to depart from the normal presumption that the trial court properly followed established law.”); Johnson v. De Toledo, 61 Conn.App. 156, 763 A.2d 28, 32 (2000); In re C.T., 724 A.2d 590, 597 (D.C.1999); State v. Kotis, 91 Hawaii 319, 984 P.2d 78, 99 (1999); State v. Hazelton, 267 Kan. 384, 985 P.2d 698, 701 (1999); Exporte Jackson, 911 S.W.2d 230, 234 (Tex.App.1995) ("While relator is apparently correct that a 'beyond a reasonable doubt’ standard should be applied, there is no evidence that a lesser standard was applied. The trial court, sitting without a jury is presumed to have used the correct standard of proof absent a showing to the contrary.”).

      . L.A.M. v. State, 547 P.2d 827, 832 (Alaska 1976).

      . See, e.g., Continental Ins. Cos. v. Bayless & Roberts, Inc., 548 P.2d 398 (Alaska 1976).

      . 471 P.2d 386 (Alaska 1970).


author: MANNHEIMER, Judge.

text:
    Torey John TUTTLE, Appellant, v. STATE of Alaska, Appellee.
    No. A-8077.
    Court of Appeals of Alaska.
    May 3, 2002.
    On Rehearing March 14, 2003.

      Rex Lamont Butler, Anchorage, for Appellant.
    James J. Fayette, Assistant District Attorney, Susan A. Parkes, District Attorney, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

MANNHEIMER, Judge.

Torey John Tuttle was one of a group of men who attacked another man for the purpose of stealing his money. One member of the group fired several shots at the victim, but the victim escaped unharmed. Based on this incident, seven men — including Tuttle— were indicted for first-degree robbery, AS 11.41.500(a)(1). Some of these seven defendants went to trial, but Tuttle ultimately pleaded no contest to this charge.

First-degree robbery is a class A felony. Because Tuttle was a first felony offender, he faced a presumptive term of either 5 years’ or 7 years’ imprisonment, depending on whether he personally possessed a firearm during the robbery.

The evidence was in conflict on this point. According to a police report filed in this case, the victim of the robbery initially told the police that another defendant, Sean Beatty, was the one who fired the gun at him. However, when Beatty was interviewed (under the authority of a Glass warrant), he stated that Tuttle was the shooter. Another participant in the robbery, Sean Roe, corroborated this version of events. Roe told the police that he initially had the gun, but then Tuttle yanked the weapon away from him, commenting that Roe “didn’t have [the] balls” to use it. Finally, another member of the group, Jerry Christopher (“J.C.”) Lee, also stated that Tuttle was the shooter — although his basis for knowing this was uncertain, since he apparently left the scene before the robbery began. Tuttle, for his part, told the police that he never possessed the gun.

Superior Court Judge Larry D. Card was the sentencing judge who was asked to resolve this disputed issue of fact. By the time of Tuttle’s sentencing hearing, Judge Card was well familiar with the case: he had already presided over the trials of two of Tuttle’s co-defendants (including Sean Roe), and he had presided over the sentencings of four of Tuttle’s co-defendants.

Judge Card resolved this factual dispute against Tuttle. That is, Judge Card found that Tuttle possessed (and fired) the gun during the robbery, and that Tuttle therefore faced a 7-year presumptive term rather than a 5-year presumptive term. However, when Judge Card made this finding, he expressly relied on the observations he made while presiding over Roe’s trial:

The Court: I sat through the trial of Mr. Roe[, and] I’m satisfied [that] Mr. Tuttle, if [he did not seize] the gun [from Roe], was handed the gun by Mr. Roe_
[When] Mr. Tuttle [was interviewed,] he denied ever having the gun or firing the gun. [But] by the process of elimination— [and] I’ve heard the trials — I find that [Tuttle] was telling Detective Vandervalk a lie. He was the one who took the gun and fired the gun....
I think that Mr. Tuttle fired at [the victim]. I think [that] Mr. Roe ... was very believable when I listened to him, when I observed him [at his trial]. [He] was very truthful. And I observed his demeanor, and I’m satisfied that Mr. Tuttle did take the gun from ... Sean Roe [and] did fire the gun....
I’m satisfied that Mr. Tuttle was the one who took the gun [from Roe] and fired the gun. And [this is proved] by a preponderance [of the evidence], which is the requirement ... in a proceeding such as this.

On appeal, Tuttle argues that Judge Card violated his right to due process when he relied on Roe’s testimony. Tuttle and his attorney were aware, before sentencing, that Roe had identified Tuttle as the shooter. But Tuttle points out that he never had the opportunity to cross-examine Roe on. this issue and point out the reasons why one might distrust Roe’s account of what happened.

The State responds that Tuttle had no right to confront Roe at the sentencing hearing. This is correct. Under Evans v. State, 23 P.3d 650, 652 (Alaska App.2001), and Hamilton v. State, 771 P.2d 1358, 1362-63 (Alaska App.1989), Judge Card could rely on Roe’s out-of-court statements unless Tuttle took the stand and offered a testimonial denial of the State’s assertion that he was the shooter. Tuttle did not do this. Thus, Judge Card could properly rely on the content of Roe’s out-of-court statements.

(We again emphasize that Tuttle does not allege that he was ignorant of Roe’s account of the robbery when he prepared for his own sentencing. Tuttle’s attorney acknowledged that he had received “all discovery” concerning Roe’s statements.)

It is possible, however, that Judge Card acted improperly when he resolved the credibility of Roe’s version of events by relying on his personal observations of Roe at trial. When a judge hears the separate trials or sentencings of two or more co-defendants, the judge is generally obliged to “set aside any judicially acquired information that [is] not admissible against [a particular] defendant, and decide [each defendant’s] case ... solely upon the evidence presented in [that defendant’s] case”.

A judge can not rely on personal knowledge of matters outside the judicial record. Although Judge Card was entitled to rely on the content of Roe’s testimony (because Roe’s statements had been disclosed to Tuttle), one might plausibly argue that the judge violated this rule when he expressly resolved the evidentiary dispute at Tuttle’s sentencing hearing by relying on Roe’s demeanor while testifying at a separate trial — for Roe’s demeanor was something that Judge Card personally observed but which was not known to Tuttle or his attorney.

Nevertheless, we conclude (for two reasons) that we should not resolve this issue of law.

First, Tuttle has failed to adequately brief it. Tuttle’s brief focuses purely on his purported right to confront Roe — a right that he did not have — and, moreover, he cites no case law in support of his argument. We conclude that even if Tuttle might validly challenge Judge Card’s decision on the ground we have just described, that challenge has been inadequately briefed.

Second, we must in any event vacate Judge Card’s finding. As can be seen from Judge Card’s remarks quoted above, he applied the “preponderance of the evidence” standard of proof when resolving the question of whether Tuttle possessed a firearm during the robbery. This was error. Because the applicable presumptive term hinges on this factual issue, the State must prove Tuttle’s possession of the firearm beyond a reasonable doubt. We decided this precise question in Huf v. State, 675 P.2d 268, 273-74 (Alaska App.1984).

Tuttle raises one final claim on appeal. Relying on our decision in Malloy v. State, 1 P.3d 1266 (Alaska App.2000), Tuttle argues that his possession of a firearm during the robbery was not a sentencing factor but was actually an element of the crime, and thus the State was obliged to prove this fact to a jury rather than proving it to Judge Card.

But Tuttle’s argument is rebutted by the Malloy opinion itself. In Malloy, we followed the Alaska Supreme Court’s decision in Donlun v. State and held that any factor which increases the maximum punishment for an offense is an element of the offense that must be proved to a jury. At the same time, we carefully explained that this rule did not apply to the factors that trigger the various presumptive terms specified in AS 12.55.125.

To summarize our holding:

First, Tuttle’s possession of a firearm is not an element of the offense to be proved to the finder of fact at trial, but rather a sentencing factor to be proved to the court at sentencing.

Second, because Tuttle did not offer a testimonial denial of the State’s assertion that he possessed a firearm during the robbery, Judge Card was entitled to rely on out-of-court statements made by Tuttle’s co-defendants (and other witnesses) concerning this issue — although it is possible that he was not entitled to rely on his personal observations of Sean Roe’s demeanor.

Third, we vacate Judge Card’s finding that Tuttle possessed a firearm during the robbery because Judge Card applied the wrong standard of proof. The State was obliged to prove this fact beyond a reasonable doubt.

We VACATE Tuttle’s sentence, and we remand this case to the superior court. Judge Card should re-determine the question of whether Tuttle possessed a firearm during the robbery. If the judge again concludes that the State has proved the applicability of the 7-year presumptive term, he may reimpose the same sentence. However, if Judge Card concludes that the State has not proved Tuttle’s possession of a firearm beyond a reasonable doubt, he should re-sentence Tuttle using a 5-year presumptive term as the starting point.

We do not retain jurisdiction of this case.

OPINION ON REHEARING

The State asks us to reconsider a portion of our decision in this case: our conclusion that the sentencing judge applied the wrong standard of proof when he found that Tuttle carried a firearm during the robbery — a finding that subjected Tuttle to a 7-year presumptive term rather than a 5-year presumptive term under AS 12.55.125(c).

As described in our prior decision (Tuttle v. State, 65 P.3d 884 (2002)), Tuttle’s sentencing judge declared that he was applying the “preponderance of the evidence” standard of proof when he found that Tuttle carried a firearm during the robbery. But we had previously ruled in Huf v. State, 675 P.2d 268 (Alaska App.1984), that the applicable standard of proof was “beyond a reasonable doubt”.

Huf addressed a legal issue that was not expressly answered in our sentencing statutes: What burden of proof applies when the State alleges that the defendant faces a presumptive term, or a more severe presumptive term, based on the circumstances of the offense rather than the number of the defendant’s prior felony convictions?

In most instances, the applicable presumptive term for any given felony is determined solely by the number of the defendant’s prior felony convictions. The legislature has declared that “prior convictions not expressly admitted by the defendant must be proved by authenticated copies of court records”. See AS 12.55.145(b). And if, after the State produces these court records, the defendant still disputes a prior felony conviction (by asserting, for example, that he is not the person named in the court records), the State must prove the prior conviction beyond a reasonable doubt. See AS 12.55.145(d).

But though the legislature specified “beyond a reasonable doubt” as the standard for proving a defendant’s prior felony convictions, the legislature did not expressly specify the burden of proof that sentencing courts should apply when the determination of the presumptive term rests on other factual issues — such as the defendant’s possession of a firearm during the offense. In Huf, we reasoned that the legislature must have intended to have sentencing courts apply the same standard of proof — “beyond a reasonable doubt” — in these situations, too. Huf, 675 P.2d at 273-74.

The State, in its petition for rehearing, points out that Huf appears to have been superseded by AS 12.55.025(i), a statute that was enacted in 1992. This statute reads:

Except as provided by AS 12.55.125(a)(3)
[specifying an increased sentence for first-degree murder if the State proves by “clear and convincing evidence” that the defendant subjected the victim to substantial physical torture],
12.55.125(k)
[authorizing a court to sentence a first felony offender to a term of imprisonment exceeding the presumptive term for second felony offenders if the State proves aggravating factors or extraordinary circumstances by “clear and convincing evidence”],
12.55.145(d)
[specifying “beyond a reasonable doubt” as the standard of proof that the State must meet when a defendant contests a prior felony conviction],
12.55.155©
[specifying that aggravating and mitigating factors must be proved by “clear and convincing evidence”],
and 12.55.165
[specifying that the grounds for referring a defendant’s case to the statewide three-judge sentencing panel must be proved by “clear and convincing evidence”],
the preponderance of the evidence standard of proof applies to sentencing proceedings.

The State notes that, in Tuttle’s case, the sentencing judge was required to resolve a factual issue under AS 12.55.125(c). Specifically, the judge had to determine whether Tuttle’s presumptive term was governed by subsection 125(e)(1) (stating that 5 years is the normal presumptive term for a first felony offender convicted of a class A felony) or, instead, by subsection 125(c)(2)(A) (stating that when a first felony offender is convicted of a class A felony other than manslaughter, and the defendant possessed a firearm during the offense, the presumptive term is 7 years).

AS 12.55.125(c) is not one of the statutes listed in AS 12.55.025® as being an exception to the normal rule that sentencing issues are governed by the “preponderance of the evidence” standard of proof. Accordingly, the State contends that our decision in Huf has been superseded by this statute, and thus Tuttle’s sentencing judge was correct when he decided the firearm possession issue by a preponderance of the evidence.

If Alaska followed the “plain meaning” rule of statutory interpretation, the State would have an open-and-shut case. AS 12.55.025® purports to list all of the exceptions to the “preponderance of the evidence” standard of proof, and AS 12.55.125(e) is not among those exceptions. But Alaska does not follow the “plain meaning” rule. Thus, even when a statute is “absolute and unambiguous” on its face,

the plain language of [the statute] does not itself end the inquiry. Under Alaska’s sliding-scale approach to statutory construction, strong legislative history may support a different meaning [ — although when a] statute’s meaning appears clear and unambiguous, the party asserting a different meaning bears a correspondingly heavy burden of demonstrating contrary legislative intent.

Wold v. Progressive Preferred Insurance Co., 52 P.3d 155,161 (Alaska 2002) (footnotes and internal quotations omitted).

For the reasons explained here, we conclude that the legislative history of AS 12.55.025® demonstrates that the legislature did not intend to overrule our decision in Huf — that, in fact, when the legislature enacted AS 12.55.025®, the legislature intended to codify Alaska’s then-current law (both statutes and court decisions) defining the various burdens of proof at sentencing.

AS 12.55.025® was introduced as 1992 House Bill 396. There is no mention of Huf in the legislative discussions of this bill. Instead, the minutes of these legislative discussions reveal that House Bill 396 was written by the Department of Law for the purpose of having the legislature overturn a sentencing decision that this Court had issued the year before: Buoy v. State, 818 P.2d 1165 (Alaska App.1991).

Our decision in Buoy was a follow-up to our decisions in Austin v. State, 627 P.2d 657, 657-58 (Alaska App.1981), and Brezenoff v. State, 658 P.2d 1359, 1362 (Alaska App.1983). In Austin and Brezenoff, we held that a first felony offender should receive a more favorable sentence than the presumptive term mandated for second felony offenders convicted of the same offense, unless the State proved aggravating factors under AS 12.55.155(c) or extraordinary circumstances under AS 12.55.165.

In Buoy, we were required to decide what standard of proof should apply when the State sought a higher sentence for a first felony offender by alleging aggravators or extraordinary circumstances. As was true in Huf, there was no statute governing this issue, but there were statutes that governed related issues.

In AS 12.55.155(f), the legislature had declared that the “clear and convincing evidence” standard governed the proof of ag-gravators and mitigators when a defendant is subject to presumptive sentencing. Similarly, in AS 12.55.165, the legislature had declared that the “clear and convincing evidence” standard governed the proof of non-statutory aggravators and mitigators, as well as extraordinary circumstances, for the purpose of determining whether a defendant’s case should be sent to the statewide three-judge sentencing panel. Using these two statutes as guides, this Court concluded that this same burden of proof — clear and convincing evidence — should apply when the State wished to prove aggravating factors and/or extraordinary circumstances at the sentencing hearing of a first felony offender for the purpose of seeking a sentence above the normal Austin limit. Buoy, 818 P.2d at 1167-68.

The Department of Law was dissatisfied with Buoy, so they drafted House Bill 396 to overturn it. In its original form, House Bill 396 read:

Except as provided in AS 12.55.145(d) [i.e., proof of a defendant’s prior felony convictions, which is governed by the “beyond a reasonable doubt” standard], 12.55.155(f) [i.e., proof of aggravators and mitigators in cases governed by presumptive sentencing, where the “clear and convincing evidence” standard applies], and 12.55.165 [i.e., proof of non-statutory factors or extraordinary circumstances which, again, is governed by the “clear and convincing evidence” standard], the preponderance of the evidence standard of proof applies to sentencing proceedings.

During the House Judiciary Committee’s hearings on this bill, the Committee was repeatedly told that the effect of this language was to overturn Buoy but that, in all other respects, the bill would codify and restate Alaska’s existing law regarding the burdens of proof at sentencing.

During a hearing on January 15, 1992, Staff Counsel Laurie Otto told the Committee that the proposed bill “would codify a whole body of [existing] case law” and that “the Buoy case was the only one which would be reversed by [the proposed AS 12.55.025© l”. At a subsequent hearing on January 17, Ms. Otto referred to a written analysis of the bill which had been distributed to the Committee members. This memorandum apparently contained a discussion of the benefits of the “preponderance of the evidence” standard of proof. Ms. Otto again assured the Committee that the proposed bill would merely codify Alaska’s existing law, with the exception of overruling Buoy. ,

At this same hearing of January 17, 1992, Deputy Commissioner of Public Safety Gayle Horetski echoed Ms. Otto’s comments: she told the Committee that the proposed bill would return Alaska’s sentencing law to what it had been before Buoy was decided. One week later, at a hearing on January 24,1992, Assistant Attorney General Margo Knuth (representing the Department of Law) also announced support for the proposed bill. She, too, indicated that the effect of the new law would be to return Alaska sentencing law to its pre-Buoy status.

Surprisingly, despite all of this support for overruling Buoy, the legislature decided not to overrule Buoy. Instead, they did the opposite: they enacted a new statute to codify the Buoy decision. That statute — originally enacted as AS 12.55.125(k), and now re-numbered as AS 12.55.125(k)(2) — reads:

[Except as provided in subdivision (1) of this statute], [a] first felony offender convicted of an offense for which a presumptive term of imprisonment is not specified ... may not be sentenced to a term of unsuspended imprisonment that exceeds the presumptive term for a second felony offender convicted of the same crime unless the court finds by clear and convincing evidence that an aggravating factor under AS 12.55.155(c) is present, or that circumstances exist that would warrant a referral to the three-judge panel under AS 12.55.165.

Having enacted AS 12.55.125(k) to codify the Buoy decision, the legislature approved the Department of Law’s proposed AS 12.55.025© — but only after adding the new statute, AS 12.55.125(k), to the list of sentencing issues exempted from the preponderance of the evidence standard of proof — that is, sentencing issues governed by a higher standard of proof.

In its petition for rehearing, the State argues that the legislature’s inclusion of AS 12.55.125(k) in the list of exemptions is proof that the legislature considered all of the factual issues that might arise at sentencing hearings, and that the legislature carefully chose which issues would be governed by a higher standard of proof. According to the State, the fact that AS 12.55.025© contains no exemption for factual issues under AS 12.55.125(c) — i.e., the fact that this statute contains no exemption for issues of fact that will determine the presumptive term for a first felony offender convicted of a class A felony — means that the legislature decided to overrule our decision in Huf.

But the State’s interpretation is inconsistent with the legislative history. As just explained, the legislature was told that AS 12.55.025®, as originally proposed, would effect no change in Alaska sentencing law except to overrule Buoy. The legislature rejected the Department of Law’s overture to overrule Buoy, they enacted a statute to codify Buoy, and then they amended proposed AS 12.55.025® so that it expressly confirmed the Buoy decision.

In all of these discussions, no one indicated dissatisfaction with our decision in Huf. In fact, no one mentioned Huf. The reason no one mentioned Huf is plain: the sponsors of AS 12.55.025® and the Judiciary Committee’s own staff counsel repeatedly assured the Committee that, leaving aside Buoy, the proposed statute would ratify Alaska’s existing law concerning the burdens of proof at sentencing.

Based on this legislative history, we conclude that even though the wording of AS 12.55.025© appears to supersede our decision in Huf, this was not the legislature’s intention. Rather, the failure of AS 12.55.025® to include a reference to AS 12.55.125(c) appears to be a drafting error on the part of the proponents of the bill — proponents whose express intention was to codify Alaska’s existing law on this issue.

For these reasons, we re-affirm our decision that, on the issue of whether Tuttle possessed a firearm during the robbery for purposes of determining his presumptive term under AS 12.55.125(c), the sentencing judge applied the wrong standard of proof. The State was — and is — obliged to prove this fact beyond a reasonable doubt.

      . See AS 11.41.500(b).

      . See AS 12.55.125(c)(l)-(2)(A).

        . See State v. Glass, 583 P.2d 872 (Alaska 1978) (generally requiring the police to obtain a warrant before secretly monitoring or taping a conversation).

      . Boyd v. State, 321 Md. 69, 581 A.2d 1, 6-7 (1990). Boyd holds that a judge's exposure to information from a co-defendant's separate trial does not require the judge's disqualification, see id. at 3-6, 9, but it also confirms a judge's duty to decide each defendant’s case on its own merits, see id. at 3-7.

      . See Ex parte Rains, 555 S.W.2d 478, 480-81 (Tex.Crim.App.1977); State v. Jamison, 20 Ohio App.2d 196, 253 N.E.2d 316, 318 (1969); State v. Denoon, 8 Ohio App.2d 70, 220 N.E.2d 730, 730-31 (1966).

      . See Legge v. Greig, 880 P.2d 606, 609 (Alaska 1994):
      Appellate briefs should be crafted to serve their primary puiposeL] which is to bring together the relevant facts and law in a clear and concise manner so that the court is fully informed. Kiester v. Humana Hosp. of Alaska, Inc,, 843 P.2d 1219, 1227 n. 8 (Alaska 1992) (quoting Dickerson v. Geiermann, 368 P.2d 217, 218 (Alaska 1962)). An issue given only cursory treatment in a brief will be treated as abandoned. Petersen v. Mutual Life Ins. Co., 803 P.2d 406, 410 (Alaska 1990). [The appellant’s] cursory briefing of a significant and potentially difficult ... issue leaves this court virtually no informed basis for meaningful appellate review.

      . 527 P.2d 472 (Alaska 1974).

      . See Malloy, 1 P.3d at 1282-84, 1288-89; Donlun, 527 P.2d at 474.

      . See Malloy, 1 P.3d at 1282-83, citing and discussing Huf v. State, 675 P.2d 268, 271-73 (Alaska App.1984).

      . See Minutes of the House Judiciary Committee, January 15, 1992, Tape 92-1, Side B, Log No. 211.

      . See Minutes of the House Judiciary Committee, January 17, 1992, Tape 92-2, Side A, Log No. 578.

      . See id., Tape 92-2, Side A, Log No. 680.

      . See Minutes of the House Judiciary Committee, January 24, 1992, Tape 92-3, Side B, Log No. 140.


author: STEWART, Judge.

text:
    Gary W. DAILEY, Appellant, v. STATE of Alaska, Appellee.
    No. A-7969.
    Court of Appeals of Alaska.
    March 14, 2003.

      Darin B. Goff, Assistant Public Defender, Kenai, and Barbara Brink, Public Defender, Anchorage, for Appellant.
    Scot H. Leaders, Assistant District Attorney, Kenai, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

STEWART, Judge.

A jury convicted Gary W. Dailey of three counts of failing to comply with the Alaska Sex Offender Registration Act (ASORA). On appeal, Dailey contends that Magistrate David S. Landry erred when he refused to dismiss the three charges, when he instructed the jury on the definition of “knowingly,” when he refused to allow Dailey to introduce evidence that he had subsequently complied with ASORA, and when he denied Dailey’s motion for a judgment of acquittal. For the reasons below, we affirm Dailey’s convictions.

Facts and proceedings

Dailey was required to register as a sex offender under ASORA beginning in 1996 and to file sworn quarterly verification reports beginning in 1999. In September 1999, December 1999, and April 2000, Dailey prepared quarterly verifications, but refused to sign and attest that the information in those verifications was accurate. For each of these three unsworn verifications, he was charged under AS 11.56.840(a)(4) for not complying with AS 12.63.010(e), the subsection that requires sex offenders to file sworn quarterly verifications.

Before trial, Dailey moved to dismiss the charges on the ground that his refusals to swear to the contents of each quarterly verification report he filed did not' constitute criminal offenses under AS 11.56.840. Dailey also argued that the statute was unconstitutionally vague. The State opposed and Magistrate Landry denied the motion.

Before trial, the State sought a protective order to bar Dailey from introducing evidence that, after he was charged with the instant offenses, he properly filed sworn quarterly verifications. Over Dailey’s objection, this motion was granted.

The case proceeded to a jury trial, with Magistrate Landry presiding. During trial, Alaska State Trooper Karl J. Erickson testified that Dailey had said he would continue to refuse to sign his forms. Dailey asked Magistrate Landry to reconsider the protective order. He argued that the State had opened the door, and that the evidence that he was now complying with ASORA was admissible to rebut the State’s evidence that he had said that he would never properly register. Magistrate Landry reaffirmed his decision to grant the protective order. However, he also determined that the State’s evidence that Dailey had said he would continue to refuse to sign the forms was not relevant to whether Dailey did or did not comply with the registration requirements. He instructed the jury not to consider the testimony for this purpose; he also refused to allow Dailey to introduce evidence of his recent compliance. At the close of the State’s case-in-chief, Dailey moved for a judgment of acquittal. Magistrate Landry ultimately denied this motion.

When the parties discussed jury instructions, Dailey offered an instruction defining “knowingly” in a way that he argued would have required the State to prove that Dailey knew he had a duty to file sworn verification forms. He generally argued that because he was charged with a failure to act, the State had to prove that he was aware that he had a duty to act. He argued that without this additional element, the crime became one of strict liability. Magistrate Landry rejected Dailey’s instruction and gave a pattern jury instruction that used the statutory definition of “knowingly.”

The jury found Dailey guilty on all three counts.

Discussion

Should the trial court have dismissed the charges on the grounds that refusing to file sworn quarterly verification forms is not a criminal offense under AS 11.56.84- or because the statutory scheme involved is unconstitutionally vague?

Dailey asserts that his failure to swear to the accuracy of the information in the verification forms was not an element of the offense of failing to register as a sex offender. He argues that AS 11.56.840 does not criminalize the failure to file a sworn verification. He points out that while AS 11.56.840(a)(4) requires him to provide the information required in AS 12.63.010(b), a sworn signature is not listed as part of the required “information,” nor, he argues, is a signature itself “information.” He also claims that this statutory scheme is unconstitutionally vague because he lacked notice that it was a criminal offense to knowingly fail to file sworn verification forms.

To resolve Dailey’s claim, we must interpret the last clause of AS 11.56.840(a). This statute provides that a person commits the crime of “failure to register as a sex offender” in the second degree if the person knowingly fails to “(1) register, (2) file the written notice of change of address, (3) file the annual or quarterly written verification, or (4) supply all of the information required to be submitted under (l)-(3) of this subsection, as required in AS 12.68.010.” The question is whether the clause “as required in AS 12.63.010” refers solely to subsection (4) of AS 11.56.840(a), or whether it refers to all four subsections. Based on the legislature’s clear intent in AS 12.63.010-AS 12.63.100 to require convicted sex offenders to register and to periodically provide certain information to the State, we conclude that the legislature intended this clause to refer to all four subsections of AS 11.56.840. Hence, Dailey was required to “file ... quarterly written verification[s] ... as required in AS 12.63.010.”

Under AS 12.63.010(b), (d), and (e), sex offenders required to register under AS 12.63.010(a) are required to provide certain information to the state. Convicted sex offenders who, like Dailey, are required to register “for life ... shall, not less than quarterly, on a date set by the department, provide written verification to the department, in the manner required by the department, of the sex offender’s ... address and any changes to the information previously provided under (b)(1) of this section.” Furthermore, subsection (e) requires that the “required ... quarterly verifications must be sworn to by the offender ... and contain an admonition that a false statement shall subject the offender ... to prosecution for perjury.”

Thus, AS 12.63.010 requires sworn quarterly verifications. By refusing to swear to the accuracy of the information in his verification forms, Dailey failed to “file ... quarterly written verification^ ... as required in AS 12.63.010.” Hence, each time Dailey knowingly failed to provide a sworn quarterly verification form, he committed the offense defined in AS 11.56.840(a)(3).

Although Dailey separately argues that this scheme is unconstitutionally vague because it did not provide him -with adequate notice that his conduct was a criminal offense, we conclude that the statutes provided him with adequate notice that it was a crime to knowingly fail to file sworn written quarterly verification forms.

We conclude that Magistrate Landry did not err when he denied Dailey’s motion to dismiss.

Did Magistrate Landry err when he instructed the jury on the elements of failing to file sworn quarterly verifications?

Under AS 11.56.840(a), it is an offense for a person to “knowingly fail[ ] to ... file ... the quarterly written verification, or ... supply all of the information required to be submitted under (l)-(3) of this subsection, as required in AS 12.63.010.” Here, Dailey was charged with knowingly failing to file sworn quarterly written verifications of his sex offender registration. The actus reus of this offense was his failure to file sworn verifications. The culpable mental state that applies to this element of the offense is “knowingly.” But, because Dailey was prosecuted for a failure to act, the State also had to prove a second culpable mental state: that Dailey was aware of the circumstances that triggered his duty to act. In other words, to convict Dailey of failure to file sworn written quarterly verifications, the State had to prove both that Dailey was aware of the circumstances giving rise to his duty to file sworn quarterly written verifications and that he knowingly refrained from performing that duty.

Dailey’s jury was instructed that, among other things, the State had to prove for each count that Dailey had “knowingly failed to file a sworn quarterly written verification.” Dailey’s attorney did not expressly object to this instruction on the ground that the State, in addition to proving that he had knowingly failed to file, had to prove that he was aware of the duty to file. He did, however, generally object below to any instruction that “directs the jury to convict if he doesn’t sign the form, because I think that’s oversimplified; I think ... it creates problems with the mens rea.” He argued that the court’s proposed pattern instruction for “knowingly” made the offense “a strict liability crime, where if an individual simply fails to register, and ... knows he didn’t register, well, that’s the end of the story.” He went on to say that “[w]hat we’ve got here is a crime of omission.... [I]f you don’t know that you have a duty to register, you can’t knowingly fail to register.”

After making this objection, Dailey offered the following instruction to define the culpable mental state he thought was required:

A person has the required mental state for the crime of failure to register as a sex offender if one of the following is true:
1. The person knew that the person had a duty to file a sworn quarterly written verification;
2. The person was aware of and consciously disregarded a substantial and unjustifiable risk that he had a duty to file a sworn quarterly written verification; or
3. The person failed to perceive a substantial and unjustifiable risk that the person had a duty to file a sworn quarterly written verification.
Disregard of, or failure to perceive the risk must, under the circumstances, amount to a gross deviation from the standard of care that a reasonable person would observe in this situation.

He noted that he had derived this instruction from one used for driving while license suspended and argued that it more accurately defined the culpable mental state required for a malum prohibitum crime. Magistrate Landry refused to give this instruction. He said that “there’s no way I’m going to, in a knowingly jury instruction, provide language that both tracks ... reckless and ... criminal negligence.” Dailey’s attorney then asked if Magistrate Landry wanted him to “provide some other instruction,” or if the court was going to proceed with another version of the instruction. Magistrate Landry ruled that he was “going to stick with the knowingly instruction that has been the pattern instruction that I’ve always used in the past.” He later gave the following jury instruction:

A person acts “knowingly” with respect to conduct or to a circumstance described by a provision of law defining an offense when the person is aware that the conduct is of that nature or that the circumstance exists. When knowledge of the existence of a particular fact is an element of an offense, that knowledge is established if a person is aware of a substantial probability of its existence, unless the person actually believes it does not exist.

We find that the instruction Magistrate Landry gave defining “knowingly” was proper. However, while we agree with Magistrate Landry’s decision to reject Dailey’s requested instruction, we also find that the jury was not clearly instructed that the State had to prove that Dailey was aware of the circumstances giving rise to his duty to file signed and attested verifications. Below, Dailey should have objected to the instructions that defined the elements of the charged offenses, rather than the definition of “knowingly.” But, despite the fact that both his objections and his proposed instruction served to confuse this issue more than to provide guidance, we find that Dailey adequately alerted the district court that the jury instructions were incomplete. Because this omission was an error that “lies in the court’s definition of the elements of the offense,” we must reverse Dailey’s conviction unless we are convinced that the error was harmless beyond a reasonable doubt. In determining whether errors are harmless beyond a reasonable doubt, the question is whether there is a reasonable possibility that the error affected the result.

The jury heard overwhelming evidence that Dailey knew he was obliged to sign and attest to the verification forms. First and foremost, Dailey in his testimony never actually said he was unaware of his duty to sign and attest to the information on the forms. Additionally, the evidence showed that in August 1999, the Department of Public Safety had mailed to all sex offenders — from a list that included Dailey — notice that they were required to file complete verification forms. This notice, which included a blank verification form, explained that the verification form must be complete, that it had to be signed, and that it had to be signed in front of a notary or an agency representative, if available. The notice also indicated in bold font that “[flailure to return your completed registration form ... may cause you to be out of compliance with Alaska’s registration law.”

The verification forms themselves instructed sex offenders to provide a signature and a date. The evidence also included copies of Dailey’s previous annual verification forms, which he had signed. Dailey’s own testimony at trial illustrates that he read the forms, that he was aware that he had to sign and attest to the information on the verification forms, but that he chose not to because he was afraid of committing perjury.

Additionally, the September 1999 form showed that Dailey consciously refused to provide a sworn signature writing “I do not swear or attest” and “I will not pay to do this” (that is, pay for a notary) in the signature section of the verification form. There was similar evidence that Dailey was told his December 1999 form was incomplete without his sworn signature, but that he nevertheless “refused to sign and complete [the] form”; when told the form was not completed properly, “he said he wasn’t going to do it and walked out.” Dailey conceded in his testimony that he had been told that he had to sign the December form, but that he “wouldn’t sign it.” Furthermore, Dailey told Trooper Erickson that he had not signed his verification forms in part because he felt he should no longer have to register. Additionally, on the April 2000 form, Dailey dated the signature block, but submitted it unsigned.

Based on the evidence in this case, no reasonable juror could have found that Dai-ley was unaware of the duty to sign and attest to the information he provided in the quarterly verifications. We therefore conclude that the error in the jury instructions was harmless beyond a reasonable doubt.

Should the trial court have allowed Dailey to rebut a witness’s testimony that indicated that he had claimed that he would never register?

As we mentioned above, the court granted the State’s request for a protective order precluding Dailey from introducing evidence that, after he was charged with the instant cases, he began to comply with ASORA by submitting sworn verifications.

On appeal, Dailey argues that he should have been allowed to rebut the testimony that he would never register. He claims that once Trooper Erickson “presented evidence that Dailey had no intention of complying with the registration statute, Dailey should have been afforded the opportunity to rebut that assertion with evidence that he did, in fact, sign the form after learning of the statutory requirement to do so.”

At trial, immediately following Erickson’s testimony, Dailey’s attorney made this same point: ‘Tour honor, I think [the State] has opened the door to the issue of whether or not Mr. Dailey did continue to refuse_ [The State’s] positing [as its] theory [in] this case that my client is defiant, and that he’s never going to [register].” Dailey asked to introduce evidence that after he was charged, he had complied with ASORA’s registration requirements. The magistrate, however, refused to change his earlier ruling that evidence of Dailey’s subsequent compliance was inadmissible.

Dailey then asked for an instruction that the trooper’s “comment that [Dailey] would never register [was] irrelevant, because I have no way of rebutting it.” The State countered that the evidence of Dailey’s statement was relevant to Dailey’s state of mind at the times he failed to register, while evidence of his subsequent compliance was not. After this discussion, Magistrate Landry cautioned the jury to not consider the trooper’s testimony that Dailey said he would refuse to file sworn verification forms in the future “as evidence that Mr. Dailey did or did not comply with the registration requirements.” Dailey did not object to this instruction, nor did he ask for any additional language. Ordinarily we presume that a jury follows the court’s limiting instructions. Here, we conclude that Magistrate Landry’s instruction was adequate to address Dailey’s concern about rebutting the trooper’s testimony.

Dailey also appears to argue that evidence of his subsequent compliance should have been admitted as evidence that he had not understood he had a duty to sign his verification forms. He claims that this evidence may have led the jury to “entertain reasonable doubt as to [his] guilty ... especially [concerning] the ‘knowing’ element of the offense.” But evidence that Dailey began to file verified registration forms after he was charged with the instant offenses was at best only marginally relevant to show his mental state before he was charged. Moreover, the magistrate had, prior to the start of trial, already ruled that this marginal evidence was outweighed by the risk of confusing or misleading the jury.

We will not overturn an evidentiary ruling in the absence of a clear abuse of discretion. Here, we conclude the magistrate did not abuse his discretion when he excluded evidence of Dailey’s subsequent compliance with ASORA.

Should the trial court have granted Dai-ley’s motion for a judgment of acquittal?

At the close of the State’s case-in-chief, Dailey moved for a judgment of acquittal. Magistrate Landry denied his motion. On appeal, Dailey argues that this was error.

When a defendant attacks a conviction for insufficiency of the evidence, this court must view the evidence presented, and reasonable inferences from the evidence, in the light most favorable to upholding the jury’s verdict. Viewing the evidence from this perspective, this court must decide whether a fair-minded juror exercising reasonable judgment could conclude that the State had met its burden of proving guilt beyond a reasonable doubt.

Considering “only those facts in the record most favorable to the prosecution and such reasonable inferences as a jury may have drawn from them,” the evidence showed that Dailey knew that he had a duty to register, that he was required both by statute and by the administering agency, the Department of Public Safety, to file sworn written quarterly verification forms, and that he knowingly failed to file them. The State put on three witnesses: Trooper Erickson, and two Department of Public Safety employees, Barbara Lynn Roper and Leda Evans. Erickson testified that he stopped Dai-ley for a vehicle equipment violation. During the stop, he discovered that Dailey was considered non-compliant with ASORA. The information Erickson received indicated that Dailey had refused to sign his verification forms. When asked, Dailey admitted that he had not signed the verification forms. Erickson testified that Dailey said that “he was not going to be signing anything, ... and that if it meant jail, that was fine with him.” According to Erickson, Dailey also said that he had served his time and that he did not believe that he had to be involved with the registration requirements. Dailey did not say that he did not understand the form or that he had been concerned about committing perjury.

Roper, a clerk who worked in the Soldotna trooper post, testified that Dailey brought the December 1999 form to her office to file; she told him that it had to be signed and completed. According to Roper, Dailey refused to do so and walked out. Again, Dailey did not ask any questions about the form or about the need to sign it. He did not indicate that he did not understand what he was supposed to do or ask for any assistance. Instead, when told the form was not completed properly, “he said he wasn’t going to do it and walked out.” Roper then wrote on Dai-ley’s unsworn verification form that Dailey had refused to sign.

Evans, the supervisor for the sex offender central registration program, testified that beginning in 1999, Dailey was required to register quarterly. She testified that all sex offenders, including Dailey, were notified of this requirement by letter in August 1999. This letter, which included a blank verification form, explained that the verification form had to be completed and signed, and that it had to be signed in front of a notary or an agency representative, if available. The letter also indicated in bold font that “[f]ailure to return your completed registration form in the time specified may cause you to be out of compliance with Alaska’s registration law.”

Evans also said that quarterly reminders were mailed, along with a blank verification form. She testified that Dailey had submitted his September 1999 form to the central registry by mail but had not signed it. She said that on that form he had scratched out the language stating “I certify under penalty of perjury that the above information and attachments are true” and had written “I do not swear or attest.” Evans testified that the verification form was not valid because Daily had refused to attest to the information he was providing. Evans testified that the December 1999 form that had been given to Roper in Soldotna was also invalid because he had refused to sign and complete the form.

Evans then testified that the State had sent notice in April 2000 to Dailey that his last valid verification was from December 1998; she said that the other verifications were invalid because they all were unsigned. She testified that Dailey mailed his April 2000 verification form to central registry but that it too was not signed. Evans said that generally when a verification form is mailed to the central registry unsigned, the department does not immediately treat it as an intentional violation because there is a chance the offender forgot to sign the form. The department conducts a follow-up investigation to see if there was an ASORA violation.

Evans testified that despite the fact that central registry accepted Dailey’s verification forms and considered him compliant pending follow-up investigations, Dailey had in fact not complied in September 1999, December 1999, or April 2000. She testified that based on her review of the forms, Dailey had intentionally refused to sign the September and December forms and was not in compliance with ASORA with any of the three forms.

Dailey admitted in his testimony that he knew he had to register. He said that he refused to sign the forms because he was concerned with the perjury warning. He also admitted that Roper informed him his December 1999 form was incomplete because it was not signed but acknowledged that he told her to file it anyway.

Looking at the evidence in the light most favorable to the State and at all reasonable inferences that the jury may have drawn from that evidence, there was sufficient evidence to support Dailey’s convictions for knowingly failing to file sworn written quarterly verification forms in September 1999, December 1999, and April 2000.

Conclusion

Dailey’s convictions are AFFIRMED.

      . AS 11.56.840(a)(4); AS 12.63.010.

      . See AS 12.63.010.

      . See AS 11.81.900(a)(2).

      . Emphasis added.

      . See AS 11.56.840(a)(3).

      . See AS 12.63.010(d)(2) (emphasis added).

      . AS 12.63.010(e) (emphasis added).

      . See AS 11.56.840(a)(3).

      . See, e.g., Lambert v. California, 355 U.S. 225, 229-30, 78 S.Ct. 240, 243-44, 2 L.Ed.2d 228 (1957) (holding that a person could not be convicted consistently with due process for failure to register as a felon if the person did not know of the duty to register and there was no proof of the probability of such knowledge); Hentzner v. State, 613 P.2d 821, 826 (Alaska 1980) (holding that consciousness of wrongdoing was an element of the offense of willfully failing to register securities); Speidel v. State, 460 P.2d 77, 80 (Alaska 1969) (holding that the statute punishing failure to return a rented motor vehicle was invalid to the extent that it punished a person who had no awareness of wrongdoing); Steve v. State, 875 P.2d 110, 122 (Alaska App.1994) (quoting 1 W. LaFave and A. Scott, Substantive Criminal Law § 3.3(b), at 289-90 (1986)) ("the prevailing view is that [one] may not be held liable [for failing to perform an act] if [one] does not know the facts indicating a duty to act”).

        . See Ervin v. State, 761 P.2d 124, 126 (Alaska App.1988) (even though record was not clear, and despite the fact that the proposed instruction misstated the law, defendant’s proposed instruction preserved his objection because it was "sufficient to focus the court’s attention on the issue of the culpable mental state.”)

      . See McKillop v. State, 857 P.2d 358, 366 (Alaska App.1993); see also Raphael v. State, 994 P.2d 1004, 1010 (Alaska 2000) (constitutional error is a ground for reversal of conviction unless the error is harmless beyond a reasonable doubt).

      . See Smithart v. State, 988 P.2d 583, 589 (Alaska 1999).

      . See State v. McDonald, 872 P.2d 627, 654-55 (Alaska App.1994) (citing Whiteaker v. State, 808 P.2d 270, 277 (Alaska App.1991)).

      . Alaska Evidence Rule 403 provides in part that relevant evidence “may be excluded if its probative value is outweighed by the danger of ... confusion of the issues, or misleading the jury[.]"

      . See Hawley v. State, 614 P.2d 1349, 1361 (Alaska 1980) ("the admissibility of evidence is largely within the trial court’s discretion and its rulings will not be overturned on appeal in the absence of an abuse of discretion.”).

      . Cf. Stumpf v. State, 749 P.2d 880, 900 (Alaska App.1988) (trial judge did not abuse discretion when excluding evidence of defendant's cooperation with the police and the fact that he made a statement even though this evidence was marginally relevant to establish a lack of consciousness of guilt).

      . See Simpson v. State, 877 P.2d 1319, 1320 (Alaska App.1994).

      . See Dorman v. State, 622 P.2d 448, 453 (Alaska 1981).

      . Martin v. Fairbanks, 456 P.2d 462, 464 (Alaska 1969), partially overruled on other grounds in Whitton v. State, 479 P.2d 302 (Alaska 1970).


author: COATS, Chief Judge.

text:
    Sergey TIPIKIN, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee.
    No. A-7881.
    Court of Appeals of Alaska.
    March 14, 2003.

      James V. Gould, Gorton & Logue, Anchorage, for Appellant.
    Joseph D. O’Connell, Assistant Municipal Prosecutor, Anchorage, and William A. Greene, Municipal Attorney, Anchorage, for Appellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

COATS, Chief Judge.

Sergey Tipikin was convicted of assaulting his stepdaughter, H.T., by slapping her across the face. He also was convicted of disorderly conduct for fighting with his wife, L.T., and of violating probation in two eases. Tipikin was sentenced to 730 days to serve for these offenses. He argues that there was insufficient evidence for the jury to convict him of assaulting H.T. He also argues that his sentence is excessive.

Having reviewed the record, we conclude that there was sufficient evidence for a fair-minded jury to find that Tipikin assaulted H.T. Furthermore, Tipikin’s composite sentence was not clearly mistaken given his ongoing pattern of domestic violence and his poor prospects for rehabilitation. We therefore affirm Tipikin’s conviction and sentence.

Facts and proceedings

Tipikin was charged with assaulting his wife, L.T., his stepdaughter, H.T., and his son, S.T., Jr., on May 13,1999, in the family’s Anchorage apartment. The jury convicted Tipikin of assaulting H.T. by slapping her across the face, but acquitted him of the other assault charges. For his conduct involving L.T., the jury convicted Tipikin of the lesser-included offense of disorderly conduct. District Court Judge Peter Ashman sentenced Tipikin to 1 year to serve for these two offenses: the maximum 6-month sentence for disorderly conduct, and 6 months out of a possible 1-year sentence for assault. The court also found that Tipikin had violated probation in two separate eases and imposed 370 days of suspended time. Tipikin thus received a total sentence of 730 days.

Discussion

Was there sufficient evidence for the jury to convict Tipikin of assaulting his stepdaughter?

Tipikin argues that there was insufficient evidence to convict him of assaulting his stepdaughter, H.T. He concedes that he slapped H.T. but argues that his conduct was authorized under AS 11.81.430(a)(1) because the slap was “reasonably necessary and appropriate to promote the welfare of the child....”

To determine if there is sufficient evidence to support the jury’s verdict, we must decide whether there was enough relevant evidence for a fair-minded juror exercising reasonable judgment to find that the Municipality met its burden of proving guilt beyond a reasonable doubt. In reaching this decision, we view the evidence and the inferences to be drawn from that evidence in the light most favorable to upholding the verdict.

On the day of the assault, twelve-year-old H.T. had two friends, E.M. and A.S., over for a sleepover. While the girls were having a pillow fight in one of the bedrooms, they accidentally knocked Tipikin’s eighteen-month-old son, S.T., Jr., off the bed, giving him a bloody nose. L.T., H.T.’s mother, testified that this incident prompted Tipikin to smack H.T. on the back of the head to discipline her for being irresponsible with the baby. But H.T.’s girlfriends testified that the assault occurred later and had nothing to do with this incident. A.S. testified that after Tipikin came out of the bathroom, he slapped H.T. across the face “really hard ... because we were being too loud, I guess.” E.M. was in the living room but testified that she heard the smack and saw H.T. run down the hall crying and covering her reddened face. E.M. said A.S. and H.T. told her Tipi-kin had hit H.T. Tipikin testified that he slapped H.T. outside the bathroom because she was rude and refused to listen. However, all the witnesses testified that Tipikin and L.T. had been fighting and pushing all night. L.T. testified that “it was just basically a whole night of arguing and yelling and ugly words said and it was ... really [a] bad argument.”

Tipikin argued to the jury that as a stepparent he was justified in slapping H.T. to discipline her for talking back. The prosecutor countered that Tipikin had no authority to use force to discipline H.T. because L.T., H.T.’s natural parent, had never given him that authority. The prosecutor also argued that Tipikin had slapped H.T. not to discipline her, but because he was angry. The court left resolution of these issues to the jury, instructing the jurors that “a parent, guardian, or other person entrusted with the care and supervision of a child” may use reasonable and appropriate force “to the extent reasonably necessary and appropriate to promote the welfare of the child.”

The jury rejected Tipikin’s justification defense and convicted him of assault. Having reviewed the record, we conclude that there was enough relevant evidence for a fair-minded juror to reasonably find that Tipikin slapped H.T., not because doing so was “reasonably necessary and appropriate” to promote her welfare, but because he was angry. For this reason, we affirm the jury’s verdict.

As Tipikin points out, the jury might have convicted him because it believed (as the prosecutor argued) that he had no authority to use force to discipline H.T. because H.T.’s mother had never given him that authority. Tipikin asserts, without argument or authority, that this interpretation of the statute is wrong. Moreover, he suggests that the jury must have convicted him based on this faulty interpretation because a reasonable jury could not have concluded that he was unjustified in slapping H.T. unless it found he had no authority to use reasonable and appropriate force to discipline the child.

But Tipikin never asked the district court to rule on this legal issue; nor did he object below to L.T.’s testimony, the prosecutor’s argument, or the court’s jury instruction. In addition, Tipikin has not briefed this claim on appeal. We therefore do not decide whether, as Tipikin asserts, a stepparent has independent authority under AS 11.81.430(a)(1) to use reasonable and appropriate force to discipline a stepchild when that authority has not been delegated by the child’s natural parent or legal guardian.

Is Tipikin’s sentence excessive?

As noted above, Judge Ashman sentenced Tipikin to 730 days to serve for fourth-degree assault, disorderly conduct, and two violations of probation. Tipikin challenges these individual sentences and his composite sentence. However, when reviewing a composite sentence imposed for two or more criminal convictions, we assess only whether the combined sentence is clearly mistaken given the whole of the defendant’s conduct and history. In doing so, we do not require that a specific sentence for a particular offense be individually justifiable as if that one crime were considered in isolation.

Before imposing sentence, Judge Ashman reviewed Tipikin’s history of domestic violence, the conduct underlying his current offenses, and his repeated failures at rehabilitation. Tipikin had been convicted of assaulting L.T. twice in 1998 and again in 2000 (after the 1999 convictions in this case). He also had convictions dating back to 1987 for harassing communication, driving while intoxicated, negligent driving, furnishing liquor to a minor, and minor consuming alcohol. Judge Ashman found that L.T. clearly had minimized Tipikin’s violence when she testified about the current offenses. Moreover, the offenses occurred in front of the couple’s eighteen-month-old son, L.T.’s twelve-year-old daughter, and the daughter’s two friends.

Judge Ashman found, based on Tipikin’s pattern of domestic violence, his failure at counseling, and his testimony at trial — which revealed his “arrogance, his lack of insight, [and] self-eenteredness” — that Tipikin had no intention of taking responsibility for his actions or of changing his violent behavior toward women and children. He noted that Tipikin in his testimony had offered the “classic” batterer’s justification for slapping H.T.: she had challenged his authority. He concluded that the Chaney criteria of rehabilitation and individual deterrence were not important sentencing goals in TipiMn’s ease and, instead, emphasized the need to reaffirm societal norms and isolate Tipikin from his victims. We conclude that Judge Ash-man’s findings are supported by the record and that the composite sentence he imposed for Tipikin’s four offenses was not clearly mistaken.

Conclusion

Tipikin’s conviction and sentence are AFFIRMED.

      . Anchorage Municipal Code (AMC) 8.10.010(B)(1).

      . AMC 8.30.120(A)(6).

      . AS 11.81.430 provides in relevant part:
      (a) The use of force upon another person that would otherwise constitute an offense is justified under any of the following circumstances:
      (1) When and to the extent reasonably necessary and appropriate to promote the welfare of the child or incompetent person, a parent, guardian, or other person entrusted with the care and supervision of a child under 18 years of age or an incompetent person may use reasonable and appropriate nondeadly force upon that child or incompetent person.

      . Collins v. State, 977 P.2d 741, 747 (Alaska App.1999).

      . Shafer v. State, 456 P.2d 466, 469 (Alaska 1969).

      . Jury Instruction No. 15 provided:
      The use of force upon another person that would otherwise constitute an offense is justified when and to the extent reasonably necessary and appropriate to promote the welfare of the child, a parent, guardian, or other person entrusted with the care and supervision of a child under 18 years of age may use reasonable and appropriate nondeadly force upon that child.
      Therefore, unless the Municipality has proven beyond a reasonable doubt that the defendant did not act in these circumstances, you shall find the defendant not guilty.

      . See R.M. v. S.G., 13 P.3d 747, 752 (Alaska 2000) (holding that the defendant waived a claim by not objecting below).

      . See State v. O’Neill Investigations, Inc., 609 P.2d 520, 528 (Alaska 1980) (noting that failure to argue a point constitutes an abandonment of it).

      . Brown v. State, 12 P.3d 201, 210 (Alaska App.2000); Comegys v. State, 747 P.2d 554, 558-59 (Alaska App.1987).

      . Waters v. State, 483 P.2d 199, 202 (Alaska 1971); Jones v. State, 765 P.2d 107, 109 (Alaska App.1988); Comegys, 747 P.2d at 558-59.

      . State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970).

      . See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).