author: Chun, J.

text:
    Richard PLEIN, a married person, and Deborah Plein (formerly Deborah De Witt), a married person, and the marital community composed thereof, Respondents, v. USAA CASUALTY INSURANCE COMPANY, an insurance company, Petitioner, and The Sterling Group, Inc. (doing business as Sterling Group, DKI), a corporation, Defendant.
    No. 78190-1-I
    Court of Appeals of Washington, Division 1.
    FILED: July 29, 2019
    Robert Stewart Mclay, Joshua Nathan Kastan, DKM Law Group LLP, 801 2nd Ave. Ste. 800, Seattle, WA, 98104-1573, Brian Roger Esq. Davis, Attorney at Law, 535 Pacific Ave. Ste. 101, San Francisco, CA, 94133-4635, Jaime Yoshimi Ritton, Attorney at Law, 801 2nd Ave. Ste. 800, Seattle, WA, 98104-1573, Counsel for Petitioner(s)
    Joel Hanson, Attorney at Law PLLC, 13540 Lake City Way Ne. Ste. 120, Seattle, WA, 98125-3665, William Candler Smart, Ian S. Birk, Keller Rohrback LLP, 1201 3rd Ave. Ste. 3200, Seattle, WA, 98101-3052, Philip Albert Talmadge, Talmadge/Fitzpatrick/Tribe, 2775 Harbor Ave. Sw., Third Floor Ste. C., Seattle, WA, 98126-2138, Isaac Ruiz, Plaintiff Litigation Group PLLC, 95 S. Jackson St. Ste. 100, Seattle, WA, 98104, Counsel for Respondent(s)
    Mick Anthony Jaeger, William W. Simmons, Lewis Brisbois Bisgaard & Smith LLP, 1111 3rd Ave. Ste. 2700, Seattle, WA, 98101-3224, Counsel for Other Parties
    PUBLISHED OPINION
   Chun, J.

¶1 We address whether, given the facts of this case, a law firm may represent a person adverse to a former client. In doing so, we analyze whether this case constitutes a matter "substantially related" to the firm's representation of the former client under RPC 1.9(a). Comment 3 to RPC 1.9 guides our analysis.

¶2 On behalf of Richard and Debra Plein, attorney Joel Hanson filed a complaint for insurance bad faith and various other claims against USAA Casualty Insurance Company. The claims stemmed from the actions of USAA and its recommended contractor for repairs following a house fire.

¶3 A few months later, attorneys William Smart and Ian Birk from the law firm Keller Rohrback LLP, joined the Pleins' legal team. USAA objected to Keller's participation in the litigation because the company and law firm had recently ended their extensive attorney-client relationship.

¶4 Keller requested the trial court rule on the asserted conflict of interest. The trial court found no conflict under RPC 1.9. USAA filed a petition for discretionary review, which this court granted. We conclude Keller's representation of the Pleins violates RPC 1.9(a). Accordingly, we reverse.

I. BACKGROUND

¶5 The Pleins purchased homeowners' insurance from USAA. Later, in August 2015, a fire damaged their home and personal property. USAA determined that the insurance policy covered the damage and recommended The Sterling Group, LLC as a contractor to perform repairs. The Pleins followed the recommendation.

¶6 The Pleins moved back into their home after Sterling finished the repairs. They claim to have noticed a substantial lingering odor of smoke upon their return. According to the Pleins, Sterling had concealed, rather than properly repaired, the fire damage. The Pleins hired a public adjuster and USAA hired an industrial hygienist. The industrial hygienist discovered numerous deficiencies in the repair work. The Pleins alleged that USAA agreed to move them to a rental house to complete the repairs, but it did not investigate the cost of the needed repairs or offer payment for those repairs.

¶7 The Pleins claim that as of November 14, 2017, USAA had not made a coverage decision as to the additional repairs. That day, Mr. Hanson filed a complaint against USAA and Sterling on behalf of the Pleins. In January 2018, Mr. Hanson approached William Smart, an attorney with Keller, about representing the Pleins in their lawsuit.

That same month, Mr. Smart and another Keller attorney, Ian Birk, agreed to associate as counsel on the case.

¶8 A conflicts check at Keller revealed the firm's past relationship with USAA. Keller attorney Irene Hecht and at least seven additional attorneys at the firm represented USAA and its affiliates for over a decade. Between August 2006 and November 2017, Keller represented USAA and its affiliates in at least 165 cases, approximately 12 of which involved insurance bad faith litigation by homeowners. Keller served as USAA's primary law firm in Washington for bad faith litigation. In the last two years of its representation, Keller billed over 8,000 hours of work for USAA.

¶9 One of the cases in which Keller represented a USAA subsidiary in an insurance bad faith lawsuit involved issues very similar to the Pleins' case. Specifically, Cueva v. Garrison Prop. & Cas. Ins. Co., Pierce County Superior Court No. 10-2-06680-8, concerned an allegation of insurance bad faith relating to the handling of repairs after a house fire. The similarities between Cueva and the Pleins' case included smoke damage inadequately repaired by a recommended contractor, health concerns arising from the smoke damage, appropriate methods to clean the house and personal property, and "factual and legal disputes concerning the methodology for objectively testing for smoke damage."

¶10 The relationship between USAA and Keller ended in November 2017, the same month the Pleins filed suit. Keller's past work for USAA had not involved the Pleins. Additionally, the firm indicated that Mr. Smart and Mr. Birk had never been involved in Keller's relationship with USAA and did not have any knowledge of attorney-client communications with the company.

¶11 After learning of Keller's involvement in the Plein lawsuit, USAA contacted the firm to claim a conflict of interest and demand immediate withdrawal. Keller moved for a ruling on the asserted conflict of interest. In response, USAA requested disqualification of Mr. Smart, Mr. Birk, and Mr. Hanson. The trial court concluded "the Plein matter is factually distinct from and not substantially related to [Keller]'s prior representation of USAA, and as a result, the firm's representation of the Pleins is not a conflict under RPC 1.9." The trial court allowed the Keller attorneys and Mr. Hanson to remain as counsel for the Pleins.

¶12 USAA requested discretionary review of the trial court's ruling. A commissioner of this court granted discretionary review as to the representation by the Keller lawyers, but denied review as to Mr. Hanson, who remains as counsel for the Pleins. The Pleins moved to modify the commissioner's ruling. A panel of this court denied the motion.

II. DISCUSSION

¶13 USAA contends Keller's participation in the case violates RPC 1.9(a). It argues that this case constitutes a matter substantially related to the firm's prior representation of the company. The Pleins argue the conflict of interest prohibition does not apply, and ask us to view their case as factually distinct from prior USAA cases handled by Keller. For the reasons discussed herein, we agree with USAA.

A. Standard of Review

¶14 We review de novo "a court's decision to grant or deny a motion to disqualify counsel.'' Sanders v. Woods, 121 Wash. App. 593, 597, 89 P.3d 312 (2004). Likewise, we review de novo a determination of whether an attorney has violated the RPC. Teja v. Saran, 68 Wash. App. 793, 796, 846 P.2d 1375 (1993) ; see State v. Hunsaker, 74 Wash. App. 38, 42, 873 P.2d 540 (1994).

B. RPC 1.9(a) & RPC 1.10(a)

¶15 RPC 1.9(a) provides:

A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.

(Emphasis added.)

¶16 Additionally, RPC 1.10(a) provides:

[W]hile lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, unless the prohibition is based on a personal interest of the disqualified lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.

Generally, this means, "[i]f an individual in a law firm is precluded by RPC 1.9 from representing a particular client, then all the members of the law firm are likewise prohibited from representing the client under RPC 1.10." Hunsaker, 74 Wash. App. at 41-42, 873 P.2d 540. Hence, in this case, if RPC 1.9(a) precludes Ms. Hecht (or any other Keller lawyer) from representing the Pleins, RPC 1.10(a) prohibits such representation by any lawyer at the firm.

C. Underlying Principles

¶17 Comment 2 to RPC 1.10 explains:

The rule of imputed disqualification ... gives effect to the principle of loyalty to the client as it applies to lawyers who practice in a law firm. Such situations can be considered from the premise that a firm of lawyers is essentially one lawyer for purposes of the rules governing loyalty to the client, or from the premise that each lawyer is vicariously bound by the obligation of loyalty owed by each lawyer with whom the lawyer is associated.

RPC 1.9 incorporates both this duty of loyalty and the duty of confidentiality to former clients. See State v. White, 80 Wash. App. 406, 415, 907 P.2d 310 (1995). These duties correlate to bedrock principles of the legal profession. They remain critical toward former clients because "the attorney may hold confidences of the former client that could be used, sometimes subtly, against the former client." In re Marriage of Wixom, 182 Wash. App. 881, 908-09, 332 P.3d 1063 (2014). Furthermore, effective representation necessitates protection of the confidential relationship between an attorney and client. See In re Disciplinary Proceeding Against Schafer, 149 Wash.2d 148, 160, 66 P.3d 1036 (2003).

¶18 The parties do not dispute the imputation effect of RPC 1.10(a). We thus focus our inquiry on the application of RPC 1.9(a).

D. "Substantially Related Matter"

¶19 RPC 1.9(a) prohibits USAA's former lawyers at Keller-and therefore the Keller firm under RPC 1.10(a) -from representing the Pleins on any matter "substantially related" to their former representation of the company.

¶20 The Court of Appeals originally established the following process for determining whether matters are substantially related:

[W]e must: (1) reconstruct the scope of the facts of the former representation; (2) assume the lawyer obtained confidential information from the client about all these facts; and (3) determine whether any former factual matter is sufficiently similar to a current one that the lawyer could use the confidential information to the client's detriment.

Sanders, 121 Wash. App. at 598, 89 P.3d 312 ; see also Hunsaker, 74 Wash. App. at 41-42, 873 P.2d 540 ; Teja, 68 Wash. App. at 796, 846 P.2d 1375. It did so under the former version of RPC 1.9(a).

¶21 Thereafter, in keeping with its inherent power to regulate the practice of law in Washington, see Chism v. Tri-State Constr. Inc., 193 Wash. App. 818, 838, 374 P.3d 193 (2016), our Supreme Court adopted the current version of RPC 1.9 along with associated comments in 2006. RPC 1.9 & cmts. 1-9 at 157 Wn.2d 1202-06 (2006). The RPCs' "Scope" provisions explain the role of the comments: Such comments "do not add obligations to the Rules but provide guidance for practicing in compliance with the Rules." RPC Scope [14]. "The Comment accompanying each Rule explains and illustrates the meaning and purpose of the Rule. ... The Comments are intended as guides to interpretation, but the text of each Rule is authoritative." RPC Scope [21].

¶22 Comment 3 provides guidance on the meaning of "substantially related matter." However, it does not mention the prior standard for assessing substantially related matters as found in Sanders, Teja, or Hunsaker. Since adoption of the comments, no published Washington case has interpreted the comments to RPC 1.9 in order to address the definition of "substantially related matter."

¶23 For the following reasons, Comment 3, rather than the prior case law, guides our analysis of whether Keller's prior representation of USAA is substantially related to this case. First, the Court of Appeals decided those prior cases before 2006, in the absence of any similar comment. And second, the comments bear the imprimatur of the Washington Supreme Court, which adopted them and which exercises plenary authority over attorney discipline. Chism v. Tri-State Constr. Inc., 193 Wash. App. at 841, 374 P.3d 193.

¶24 Turning then to Comment 3, it provides, in pertinent part, a somewhat more stringent standard compared to the case law above:

Matters are "substantially related" for purposes of this Rule if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client's position in the subsequent matter.

(Emphasis added.) Below, we apply this definition as well as other provisions of the comment and conclude that this case and the prior representation of USAA qualify as substantially related.

¶25 To illustrate, Comment 3 provides the example of a lawyer who learns "extensive private financial information" about a businessperson during representation and thus cannot subsequently represent the spouse in divorce proceedings. While the business and divorce proceedings are factually distinct, and do not involve the same transaction or legal dispute, there is a substantial risk that the attorney's knowledge of private financial information would materially advance the spouse's position in the divorce.

¶26 USAA faces similar concerns as the businessperson described in Comment 3. While the specific facts of the Pleins' case may qualify as distinct, Keller learned significant confidential information about USAA's strategies for bad faith litigation. USAA provided a declaration about the scope of Keller's representation during their professional relationship, which spanned over a decade. Keller does not dispute this description of the extent of its representation of USAA.

¶27 According to USAA, it trusted Keller attorneys "with direct access to confidential and proprietary business information of USAA CIC and its affiliated companies" including, confidential claims handling materials, thought processes of adjusters and in-house attorneys, business and litigation philosophies, and strategies such as "approaches to settlement discussions, motion practice, case analysis, defenses, witness meetings, witness preparation, trial preparation, and discovery both on a case-by-case and institutional, company-wide level." Keller served as one of the few law firms involved in insurance bad faith litigation on behalf of USAA in Washington, and had "intimate business and litigation knowledge." Keller provided USAA and its affiliates with advice including "insurance coverage matters, litigation strategies, factual positions, litigation mitigation recommendations for training and communication materials, and legal arguments."

¶28 Keller also participated in seminars as part of enterprise-wide strategic discussions where attorneys became privy to "proprietary information including litigation approach and strategies that has only been shared with a limited group of all of the law firms nationally representing USAA CIC and its affiliate companies in alleged bad faith litigation across the United States." And Keller attorneys had electronic login credentials to certain internal proprietary and confidential documents concerning insurance bad faith litigation, "including document repositories holding attorney-client information and electronic claim databases."

¶29 Moreover, Keller gathered information on specific issues in order to defend USAA in Cueva. Keller provided advice on local expert witnesses in industrial hygiene and toxicology. Thus, USAA has shown a significant risk that Keller has knowledge of both specific and general confidential information that could materially advance the Pleins' case.

¶30 Additionally, the temporal proximity of the prior representation affects the analysis of risk to the former client. "Information acquired in a prior representation may have been rendered obsolete by the passage of time." RPC 1.9 cmt. 3. Here, Keller agreed to represent the Pleins within three months of the end of its relationship with USAA. This short time frame provides scant opportunity for obsolescence, particularly given the extent-in substance and duration-of the prior representation.

¶31 The Pleins contend that Keller had only general knowledge and information that would be disclosed during discovery. Comment 3 addresses the role of specific versus general information as well as information disclosed to third parties: "In the case of an organizational client, general knowledge of the client's policies and practices ordinarily will not preclude a subsequent representation; on the other hand, knowledge of specific facts gained in a prior representation that are relevant to the matter in question ordinarily will preclude such a representation," and, "Information that has been disclosed to the public or to other parties adverse to the former client ordinarily will not be disqualifying." RPC 1.9 cmt. 3. The Pleins' argument, however, disregards the significant amount of confidential information on legal strategies and defenses developed between USAA and Keller. Moreover, the specific knowledge gained during defense of Cueva appears relevant to the issues in the Pleins' case. Therefore, Keller's knowledge of USAA's legal strategies goes beyond the permitted "general knowledge of the client's policies and practices." RPC 1.9 cmt. 3.

¶32 Keller points to the fact that USAA has not suggested any pattern or practice of intentionally acting in bad faith that would have been learned during representation. However, the Comments state, "A former client is not required to reveal the confidential information learned by the lawyer in order to establish a substantial risk that the lawyer has confidential information to use in the subsequent matter." RPC 1.9 cmt. 3. As further noted by Comment 3, "[a] conclusion about the possession of such information may be based on the nature of the services the lawyer provided the former client and information that would in ordinary practice be learned by a lawyer providing such services." The bad faith litigation defense conducted by Keller on behalf of USAA, particularly in Cueva. creates significant concern that Keller possesses specific confidential information that could unfairly aid the Pleins.

III. CONCLUSION

¶33 In light of the foregoing, we determine that Keller's representation of the Pleins generates a substantial risk that USAA's confidential information would materially advance the Pleins' position in this case. We conclude there is a conflict of interest under RPC 1.9(a). Mr. Smart, Mr. Birk, and their firm are disqualified from representing the Pleins in this matter.

¶34 Reversed.

WE CONCUR:

Hazelrigg-Hernandez, J.

Mann, A.C.J.

      Sterling is not a party before us.

      Washington courts have not established which party bears the burden of proof in connection with a motion to disqualify under RPC 1.9. The United States District Court for the Western District of Washington has assigned the burden to the firm whose disqualification is sought. See, e.g., FMC Techs., Inc. v. Edwards, 420 F. Supp. 2d 1153, 1158 (W.D. Wash. 2006) ; Avocent Redmond Corp. v. Rose Elec., 491 F. Supp. 2d 1000, 1007 (W.D. Wash. 2007). Another federal court, applying the Model Rules of Professional Conduct, concluded that the party seeking disqualification bears the burden of establishing the conflict of interest. Velazquez-Velez v. Molina-Rodriguez, 235 F. Supp. 3d 358, 361-62 (D.P.R. 2017). In this case, we would reach the same conclusion regardless of which party bears the burden.

      This case discusses former RPC 1.9, which, for the purposes of this proposition, does not vary materially from the current rule.

      "[L]awyers are regarded as people who know how to keep secrets, as much as they are regarded as litigators ... or drafters of contracts." In re Disciplinary Proceeding Against Schafer, 149 Wash.2d 148, 160, 66 P.3d 1036 (2003) (citing 1 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering § 9.2 (3d ed. 2002)). "This perception is founded on more than 300 years of the practice of confidentiality." Schafer, 149 Wash.2d at 160, 66 P.3d 1036. "The attorney-client privilege is thought to derive from the original concept of an attorney's implicit oath of loyalty to [their] client and is the oldest of the common law privileges." Schafer, 149 Wash.2d at 160 n.4, 66 P.3d 1036 (citing 8 John Henry Wigmore, Evidence in Trials at Common Law § 2290 (John T. McNaughton ed., 4th rev. ed. 1961)).

      The United States Supreme Court observed almost 170 years ago:
      There are few of the business relations of life involving a higher trust and confidence than that of attorney and client, or, generally speaking, one more honorably and faithfully discharged; few more anxiously guarded by the law, or governed by sterner principles of morality and justice; and it is the duty of the court to administer them in a corresponding spirit, and to be watchful and industrious, to see that confidence thus reposed shall not be used to the detriment or prejudice of the rights of the party bestowing it.
      Stockton v. Ford, 52 U.S. 232, 247, 11 How. 232, 13 L. Ed. 676 (1850).

      As the United States Supreme Court noted over 130 years ago:
      The rule which places the seal of secrecy upon communications between client and attorney is founded upon the necessity, in the interest and administration of justice, of the aid of persons having knowledge of the law and skilled in its practice, which assistance can only be safely and readily availed of when free from the consequences or the apprehension of disclosure.
      Hunt v. Blackburn, 128 U.S. 464, 470, 9 S. Ct. 125, 127, 32 L. Ed. 488 (1888) ; cf. Schafer, 149 Wash.2d at 160-162, 66 P.3d 1036 (discussing how the attorney-client privilege benefits society at large).

      For a discussion regarding the history and development of the substantial relationship test in the United States, see 1 Geoffrey C. Hazard, Jr., W. William Hodes & Peter R. Jarvis, The Law of Lawyering §§ 14.07-14.10 (4th ed. 2015).

      At the time, RPC 1.9 provided as follows:
      A lawyer who has formerly represented a client in a matter shall not thereafter:
      (a) Represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents in writing after consultation and a full disclosure of the material facts; or
      (b) Use confidences or secrets relating to the representation to the disadvantage of the former client, except as rule 1.6 would permit.

      Even though Comment 3 clearly addresses the meaning of "substantially related," the Pleins point to Comment 2 to argue that their case is "factually distinct" from Keller's prior representation of USAA. The Pleins highlight Comment 2's statement that "a lawyer who recurrently handled a type of problem for a former client is not precluded from later representing another client in a factually distinct problem of that type even though the subsequent representation involves a position adverse to the prior client." RPC 1.9 cmt. 2 (emphasis added). But Comment 2 expressly focuses on the scope of the term "matter." Deciding whether matters qualify as factually distinct does not necessarily complete the RPC 1.9(a) analysis. We must still determine whether those matters are substantially related. To be sure, Comment 3 indicates that matters may be substantially related even if they do not involve "the same transaction or legal dispute."

      USAA's expert witness opines that this businessperson hypothetical constitutes an "example of the playbook problem." And he implies that Keller possesses knowledge of USAA's "playbook." No published Washington case has yet to expressly address the "playbook" concept. One treatise describes it as follows:
      Some courts and commentators ... hold that the lawyer and [their] new client would have an improper advantage if the lawyer was permitted to make use of general tactical information and psychological insights, such as the former client's negotiating style, risk aversion, willingness to be deposed, and ability to handle the stress-including the financial stress-of litigation. ... This method of defining substantial relationship between legal matters is commonly referred to, utilizing a sports metaphor, as the "playbook" rationale. ... [A]lthough disqualification based on pure playbook concerns is unwarranted, courts have not infrequently taken a close look where playbook information blends into more specific factual information that could be put to adverse use. Thus, even where matters are factually distinct, disqualification is sometimes ordered where a lawyer represented a client in a series of matters that involve the same modus operandi and underlying factual base as the new matter.
      1 Hazard, Jr., Hodes & Jarvis , supra, § 14.10. We note the playbook rationale for informational purposes. To a certain extent, it overlaps with the concerns set forth in Comment 3, and it is a concept that non-Washington courts have discussed extensively.


source: Caselaw Access Project

author: BOOMGAARDEN, Justice.

license: Public Domain

text:
    Matthew Vernon HOPKINS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    S-18-0262
    Supreme Court of Wyoming.
    July 23, 2019
    Representing Appellant: Office of the Public Defender: Diane M. Lozano, State Public Defender; Kirk A. Morgan, Chief Appellate Counsel; Robin S. Cooper, Senior Assistant Appellate Counsel. Argument by Ms. Cooper.
    Representing Appellee: Bridget L. Hill, Wyoming Attorney General; Christyne M. Martens, Deputy Attorney General; Shawnna M. Lamb, Senior Assistant Attorney General. Argument by Ms. Lamb.
    Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.
   BOOMGAARDEN, Justice.

[¶1] On March 14, 2017, Appellant Matthew Vernon Hopkins, a psychiatric addiction specialist, huffed from a can of Dust-Off, got behind the wheel of his car, and lost consciousness while driving to his office. He veered into oncoming traffic, hit another vehicle head on, and injured the other driver. The State filed criminal charges and a jury convicted Mr. Hopkins of aggravated assault and battery, driving under the influence of a controlled substance, and unlawful use of a toxic substance. On appeal, Mr. Hopkins challenges his conviction for aggravated assault and battery. Finding no error, we affirm.

ISSUES

[¶2] We restate and reorder the three issues Mr. Hopkins raises on appeal:

I. Does the "knowingly" element of Wyo. Stat. Ann. § 6-2-502(a)(ii) require the State to prove that Mr. Hopkins purposefully hit the victim's vehicle?
II. Does sufficient evidence support Mr. Hopkins' conviction for aggravated assault with a deadly weapon?
III. Was Mr. Hopkins prevented from presenting a complete defense?

FACTS

[¶3] The facts established at trial were largely uncontested. Mr. Hopkins owned a practice in Cody, Wyoming, where he specialized in adolescent and addiction psychiatry. Mr. Hopkins personally suffers from addiction-he is an alcoholic and abuses Adderall and air dusters. His medical license was suspended in 2003 and 2010 due to his addictions. Mr. Hopkins maintained sobriety for periods of time, but relapsed prior to the incident due to severe financial problems. Mr. Hopkins did not seek treatment because he feared he would lose his medical license permanently. Instead, he used air dusters (inhalants) to combat "the shakes" and anxiety associated with alcohol withdrawal. He admitted air dusters made him light-headed, but denied that he had ever passed out from huffing prior to the incident. Mr. Hopkins abused the air dusters even though he read the warning label on the can and, as a psychiatrist, he knew the risks (including brain damage) of using air dusters and the effects of inhalants on the brain.

[¶4] On the morning of the incident, Mr. Hopkins used some "duster" shortly after he woke up. An hour later, he drove his son to school and headed to work. Mr. Hopkins began getting the shakes and stopped at his hotel room (where he lived temporarily) to get another can of Dust-Off. After he retrieved a can, Mr. Hopkins proceeded to drive himself to his office. He "possibly" used the air duster again while driving and passed out. His vehicle veered into oncoming traffic and he hit another vehicle head on. The other driver sustained injuries and required neck surgery. A forensic toxicologist found inhalants in Mr. Hopkins' blood.

[¶5] In closing argument, defense counsel conceded Mr. Hopkins drove under the influence of a controlled substance and unlawfully used a toxic substance, but argued that the State failed to meet its burden on the "knowingly" element of the aggravated assault and battery charge. The jury convicted Mr. Hopkins of all three charges. This timely appeal followed.

DISCUSSION

[¶6] Mr. Hopkins' issues on appeal all stem from his contention that he lacked the requisite mens rea for aggravated assault and battery under Wyo. Stat. Ann. § 6-2-502(a)(ii) (LexisNexis 2017). During trial, Mr. Hopkins asserted that even though subsection (a)(ii) is a general intent crime, it nonetheless requires some purposeful intent and foreseeability. He argued that the State had to prove that he purposefully hit the victim's vehicle-not that he knowingly drove while under the influence of an inhalant. Mr. Hopkins reasoned that he could not have hit the victim's vehicle on purpose because he was passed out when he veered into oncoming traffic and, further, that the incident was not foreseeable because he had never before lost consciousness while using inhalants. The district court disagreed with Mr. Hopkins' position because it was an improper statement of the law. Consequently, the court did not allow Mr. Hopkins to argue his theory to the jury. Mr. Hopkins claims the district court erred in its ruling, which prevented him from providing a complete defense and resulted in a conviction based on insufficient evidence.

I. Does the "knowingly" element of Wyo. Stat. Ann. § 6-2-502(a)(ii) require the State to prove that Mr. Hopkins purposefully hit the victim's vehicle?

[¶7] We review a district court's legal determinations de novo. Mraz v. State , 2016 WY 85, ¶ 29, 378 P.3d 280, 288 (Wyo. 2016) (citation omitted). To the extent Mr. Hopkins raises a statutory interpretation issue, our review is also de novo. Adekale v. State , 2015 WY 30, ¶ 12, 344 P.3d 761, 765 (Wyo. 2015).

The plain, ordinary, and usual meaning of words used in a statute controls in the absence of clear statutory provisions to the contrary. Where there is plain, unambiguous language used in a statute there is no room for construction, and a court may not look for and impose another meaning. Where legislative intent is discernible a court should give effect to the most likely, most reasonable, interpretation of the statute, given its design and purpose.

Id. (citations and quotation marks omitted).

[¶8] Wyoming's aggravated assault and battery statute clearly states, in relevant part:

(a) A person is guilty of aggravated assault and battery if he:
....
(ii) ... intentionally or knowingly causes bodily injury to another with a deadly weapon[.]
(b) Aggravated assault and battery is a felony punishable by imprisonment for not more than ten (10) years.

Wyo. Stat. Ann. § 6-2-502. Mr. Hopkins does not dispute that he caused the victim's bodily injury or that his vehicle was a deadly weapon. His argument focuses on the "knowingly" requirement in subsection (a)(ii).

[¶9] Mr. Hopkins acknowledges that this portion of the aggravated assault and battery statute articulates a general intent crime. As a general intent crime, the only intent which need be proven beyond a reasonable doubt is that the act constituting the offense charged be done voluntarily. Harris v. State , 2006 WY 76, ¶ 26, 137 P.3d 124, 131 (Wyo. 2006) (citation omitted); Carfield v. State , 649 P.2d 865, 869 (Wyo. 1982) (citations omitted). "An act is voluntary if the actor intended to do it (as opposed to an event occurring accidentally or involuntarily)." Barrera v. State , 2017 WY 123, ¶ 31, 403 P.3d 1025, 1031 (Wyo. 2017). "If done voluntarily, 'the inference thereupon arises that the defendant intended that which resulted.' " Harris , ¶ 26, 137 P.3d at 131 (quoting Slaughter v. State , 629 P.2d 481, 483-84 (Wyo.1981) ; see also Tillett v. State , 637 P.2d 261, 264 (Wyo. 1981) (stating defendants are "considered by law to have intended the natural consequences of [their] act[s]"); Streitmatter v. State , 981 P.2d 921, 927 (Wyo. 1999) (citation omitted) ("The crime of aggravated assault [under Wyo. Stat. Ann. § 6-2-502(a)(iii) ] is a general intent crime, and its commission requires only that intent which the jury may infer from the commission of the proscribed act.").

[¶10] Mr. Hopkins argues, without citation to relevant authority or pertinent language in the statute itself, that the "proscribed act" under subsection (a)(ii) is the "intentional or knowing use of force or violence directed at another person." He reasons that because he was unconscious when his vehicle veered into oncoming traffic, he could not have "purposefully used his car as a deadly weapon." Moreover, he asserts that "the natural consequences of [his] actions" were not foreseeable because the inhalants had never before caused him to lose consciousness.

[¶11] Mr. Hopkins misreads Wyo. Stat. Ann. § 6-2-502(a)(ii). There is no language in subsection (a)(ii) whatsoever that requires the State to prove a particular use of force or an act of violence, as Mr. Hopkins suggests. Subsection (a)(ii) simply and unambiguously proscribes causing bodily injury with a deadly weapon. Wyo. Stat. Ann. § 6-2-502(a)(ii). Because Mr. Hopkins does not dispute that he caused bodily injury with a deadly weapon, the pertinent question is whether Mr. Hopkins voluntarily did so even though he was unconscious. See, e.g. , Saldana v. State , 685 P.2d 20, 22 (Wyo. 1984) ("To violate the statute, it is necessary only that the proscribed conduct be undertaken voluntarily."); Harris , ¶ 26, 137 P.3d at 131 ("For general intent crimes, all that is necessary is that the act be done voluntarily."). In this case, the answer is yes.

[¶12] "Although a voluntary act is an absolute requirement for criminal liability, [not] every act up to the moment that the harm is caused must be voluntary." 1 Wayne R. LaFave, Subst. Crim. L. § 6.1(c) at 578-79 (3d ed. 2018) (footnote omitted). And, while the voluntary act must "concur" with the mental fault, "[t]he emphasis is upon results caused by the defendant, and any act or omission (with the prescribed state of mind) which causes that result will do." Id. § 6.3(c) at 617. A person, therefore, may be guilty of criminal homicide or battery even though he is unconscious or asleep at the time of the fatal or injurious impact. Id. at 618. For example, if A drives when he is extremely sleepy and hits another vehicle killing (or seriously injuring) a passenger, the act-which causes the death-is continuing to drive while knowing he is sleepy, which coincides with the required mental state. Id.

[¶13] Applying this reasoning, we have little trouble concluding that Mr. Hopkins knowingly caused bodily injury with a deadly weapon even though he was unconscious when he hit the victim's vehicle. Mr. Hopkins did not suffer an accidental loss of consciousness, as he had full knowledge of the effects inhalants have on the brain. Mr. Hopkins garnered this knowledge from his professional psychiatry work specializing in addictions, his personal use of inhalants, and his reading the warning label on the air duster can. It was foreseeable that he could lose consciousness and lose control of his vehicle. Despite such knowledge, Mr. Hopkins chose to huff and drive himself to work while under the influence of an inhalant. He admitted that he possibly inhaled more along the way and a witness observed the air duster can in his lap as he was driving. Mr. Hopkins then lost consciousness, hit another vehicle, and injured the other driver. This voluntary and knowing conduct concurs with the general intent required by Wyo. Stat. Ann. § 6-2-502 (a)(ii) -it is conduct that produced the proscribed result. See, e.g. , Streitmatter , 981 P.2d at 927. The district court, therefore, did not err when it determined that Mr. Hopkins' defense theory was an improper statement of the law.

II. Does sufficient evidence support Mr. Hopkins' conviction for aggravated assault with a deadly weapon?

[¶14] When we review a criminal conviction for sufficiency of the evidence, we view the facts in the light most favorable to the State. Downs v. State , 581 P.2d 610, 614 (Wyo. 1978). We leave out any conflicting evidence of the defendant, and draw every reasonable inference in the State's favor. Id . The question we must answer is whether a reasonable and rational jury could have convicted the defendant of the crime based upon the evidence that was presented at trial. Horn v. State , 554 P.2d 1141, 1145 (Wyo. 1976).

Guy v. State , 2008 WY 56, ¶ 37, 184 P.3d 687, 698 (Wyo. 2008).

[¶15] Mr. Hopkins asserts his conviction for aggravated assault and battery is not supported by sufficient evidence because no evidence supports an intentional or knowing mens rea. He argues that although he drove while under the influence of a toxic substance, the State failed to show "additional driving conduct" to support an "intentional and knowing action towards another individual." This claim has merit only if we adopt Mr. Hopkins' interpretation of the mens rea requirement under subsection (a)(ii). We rejected his interpretation for the reasons stated above.

[¶16] Applying the "knowingly" element of Wyo. Stat. Ann. § 6-2-502 (a)(ii) as the legislature plainly drafted it, the jury could reasonably infer the requisite mens rea from the fact Mr. Hopkins caused bodily injury to another with his vehicle under the circumstances evidenced in this case. Mr. Hopkins testified that he knew the effects inhalants have on the brain but inhaled the air duster anyway because he had the shakes; he drove his son to school after huffing; he stopped to get more air duster from his hotel room after dropping his son off at school; he got back in his car to drive to work and possibly inhaled more air duster as he was driving; and he struck another car causing injury to its driver. This testimony alone was sufficient to prove Mr. Hopkins knowingly violated Wyo. Stat. Ann. § 6-2-502(a)(ii).

III. Was Mr. Hopkins prevented from presenting a complete defense?

[¶17] Applying the same reasoning he argued in issues I and II, Mr. Hopkins contends that he should have been allowed to argue to the jury that his conduct better matched the mens rea required for related crimes, such as aggravated assault and battery under subsection (a)(i) (causing "serious bodily injury to another intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life") or driving under the influence and causing serious bodily injury under Wyo. Stat. Ann. § 31-5-233(h) (LexisNexis 2017). In other words, Mr. Hopkins wanted to present an "alternative charges" theory to argue that subsection (a)(ii) must require proof he "purposefully used his car as a deadly weapon" if aggravated assault and battery under subsection (a)(ii) is to be distinguished from those other crimes. He asserts that the district court's interpretation of "knowingly" in subsection (a)(ii) prevented him from presenting a complete defense and, thus, violated his due process rights. Mr. Hopkins frames his due process claim in terms of how the jury was ultimately instructed-arguing that the district court violated his due process rights when it (1) failed to instruct the jury on the defense's theory of the case, and (2) instructed the jury on the "knowingly" element by giving the pattern general criminal intent instruction over his objection and refusing to give his proposed instruction defining "knowingly" as "purposefully."

A. Defense Theory Instruction

[¶18] "The failure to give an offered instruction on the law related to a theory of defense is a due process issue, which this Court reviews de novo. " Tingey v. State , 2017 WY 5, ¶ 27, 387 P.3d 1170, 1178 (Wyo. 2017) (citing James v. State , 2015 WY 83, ¶ 17, 357 P.3d 101, 105 (Wyo. 2015) ). However, the failure to give an instruction that is not offered by a defendant is reviewed for plain error. Id. (citing Vaught v. State , 2016 WY 7, ¶ 13, 366 P.3d 512, 515 (Wyo. 2016) ; Schaeffer v. State , 2012 WY 9, ¶ 26, 268 P.3d 1045, 1056 (Wyo. 2012) ).

[¶19] Our review is for plain error because Mr. Hopkins did not submit a theory of defense instruction outlining his position. Tingey , ¶ 27, 387 P.3d at 1178. In order to prevail under the plain error standard, Mr. Hopkins must show the record reflects "that a clear and obvious violation of a clear and unequivocal rule of law adversely affected a substantial right to such a degree that he was materially prejudiced." Id. (citing Vaught , ¶ 14, 366 P.3d at 516 (footnote omitted)). "To establish that failure to give the instruction violated a clear rule of law, he must provide authority showing that ... Wyoming law had a clear-cut requirement that juries be given the instruction he now champions." Tingey , ¶ 27, 387 P.3d at 1178 (quoting Vaught , ¶ 14, 366 P.3d at 516 (footnote omitted)). Material prejudice requires Mr. Hopkins to demonstrate that there is a "reasonable probability that the result would have been more favorable to the defendant had the error not occurred." Larkins v. State , 2018 WY 122, ¶ 94, 429 P.3d 28, 50 (Wyo. 2018).

[¶20] Mr. Hopkins does not identify a clear and unequivocal rule of law the district court violated and we have found none. As discussed above, Mr. Hopkins' defense theory, that the State was required to prove he "purposefully hit the victim's vehicle," is legally flawed and, therefore, was properly excluded from presentation to the jury. See, e.g. , Bush v. State , 2008 WY 108, ¶ 59, 193 P.3d 203, 218 (Wyo. 2008) (citation omitted) (explaining that the United States Constitution "permits judges to exclude evidence that is repetitive, only marginally relevant, or poses an undue risk of harassment, prejudice or confusion of the issues"); Marfil v. State , 2016 WY 12, ¶ 25, 366 P.3d 969, 975 (Wyo. 2016) (citation omitted) (approving the refusal of a proposed jury instruction that misstates the law).

[¶21] Moreover, it is not a theory of defense to request that the jury be instructed on crimes the State has not charged. Harnetty v. State , 2019 WY 21, ¶ 29, 435 P.3d 368, 374 (Wyo. 2019) (citing Bouwkamp v. State , 833 P.2d 486, 490 (Wyo. 1992) ("Suggestion of an alternative charge is not a defense to the crime being prosecuted.")). Mr. Hopkins had no due process right to have the district court instruct the jury on a crime under which he was not charged. See Harnetty , ¶ 30, 435 P.3d at 375. He was not charged with aggravated assault and battery under Wyo. Stat. Ann. § 6-2-502(a)(i) or driving under the influence and causing serious bodily injury under Wyo. Stat. Ann. § 31-5-233(h). Consequently, Mr. Hopkins has failed to demonstrate any plain error impacting his due process rights.

B. "Knowingly" Instruction

[¶22] During deliberations, the jury sent a note to the district court, inquiring as follows:

Need clarification for instruction #11, Point 4. "Knowingly caused" What is the legal definition? How are we as jurors to understand and apply this point?

In response to the jury's question, the district court informed the parties of its intent to provide the Wyoming Criminal Pattern Jury Instruction 6.13, defining general criminal intent. Mr. Hopkins advised the district court that he did not believe further instruction was necessary, but that if the district court was inclined to do so, he proposed that the district court provide an instruction stating "knowingly" means "purposefully." After further discussion, Mr. Hopkins informed the district court of his final position that he objected to any further instruction. He also argued that the pattern instruction would attempt to define a common usage term-"knowingly"-that needs no further definition. The district court provided the general intent instruction over Mr. Hopkins' objection.

[¶23] Mr. Hopkins now asserts that the jury's question "struck at the heart of the issue the defense wanted to raise and the court prevented, which is the 'knowing' element." He claims he was prejudiced by the district court giving the general intent instruction over his objection and the district court's refusal to provide his proposed instruction. We disagree.

[¶24] The district court has "wide latitude in instructing the jury and, as long as the instructions correctly state the law and the entire charge covers the relevant issue, reversible error will not be found." Dennis v. State , 2013 WY 67, ¶ 36, 302 P.3d 890, 897 (Wyo. 2013) (citation omitted). We review the district court's refusal to give a requested instruction for an abuse of discretion. Id. (citation omitted). Prejudice results when the instructions confuse or mislead the jury. Id. (citations omitted).

[¶25] Although Mr. Hopkins objected to the district court providing the pattern instruction defining general criminal intent, he has not demonstrated that the instruction was confusing, misleading, or an inaccurate statement of the law. In fact, at trial, Mr. Hopkins admitted that he saw "nothing wrong" with the pattern instruction "as it outlines the law."

[¶26] Mr. Hopkins' claim that the district court erred when it refused to give his proposed instruction that "knowingly" means "purposefully" likewise is without merit. "A district court is not required to define a statutory term unless the term has a technical or legal meaning different than its common meaning." Marfil , ¶ 25, 366 P.3d at 976 (citations omitted). We previously held that "the term 'knowingly' requires no clarification because the legal meaning of the term is not so separate from its ordinary meaning." Adekale v. State , 2015 WY 30, ¶ 42, 344 P.3d 761, 770 (Wyo. 2015) (citing Morris v. State , 2009 WY 88, ¶ 16, 210 P.3d 1101, 1105 (Wyo. 2009) ); see also Marfil , ¶ 25, 366 P.3d at 975 (citation omitted) (explaining that "where a term used in a criminal statute is not given a statutory definition, we presume the legislature did not mean for the term to have a specialized meaning"). Mr. Hopkins conceded at trial that "knowingly" is a "common usage" term that did not require further definition. Thus, the district court did not abuse its discretion when it rejected Mr. Hopkins' proffered instruction.

CONCLUSION

[¶27] The "knowingly" requirement of Wyo. Stat. Ann. § 6-2-502 (a)(ii) did not require the State to prove that Mr. Hopkins purposefully hit the victim's vehicle. Mr. Hopkins' knowing and voluntary act of continuing to drive while under the influence of an inhalant provided the required mens rea to impose criminal liability for aggravated assault and battery under subsection (a)(ii). The evidence was more than sufficient to support his conviction and the district court properly instructed the jury as to the statutory elements.

[¶28] Affirmed.

      Mr. Hopkins voluntarily relinquished his license after the March 14, 2017, incident.

      Two witnesses, who were friends of Mr. Hopkins' wife, observed Mr. Hopkins enter his vehicle in an impaired state and carrying an air duster can. Mr. Hopkins almost hit one of the witnesses' vehicle as he backed out. The two witnesses "caravanned" with Mr. Hopkins in an attempt to ensure he safely arrived at his office and observed him driving too fast and erratically before he veered into oncoming traffic. One of the witnesses also observed an air duster can in Mr. Hopkins' lap as he was driving.

      In discussing the mens rea issue at trial, the prosecutor, relying on Barrera , suggested that the prohibited act is "huffing while driving." The district court adopted that characterization in its oral ruling. That characterization is not helpful as it confuses conduct related to mens rea (voluntarily driving while intoxicated as discussed below at ¶¶ 11, 12) with the statutorily prohibited act of causing bodily injury with a deadly weapon. It is like saying that the "outlawed act" in a separate case is the drawing of a knife or gun from the waistband of one's pants rather than the act of stabbing someone with a knife or shooting someone with a gun in violation of Wyo. Stat. Ann. § 6-2-502(a)(ii).

      Prior to trial, the State submitted its proposed jury instructions, including an instruction on the elements of aggravated assault and battery and that self-induced intoxication is not a defense to the crime of aggravated assault and battery-bodily injury with a deadly weapon. Mr. Hopkins filed a notice with the district court stating he believed the State's proposed jury instructions were proper and appropriate; he did not have any amendments, nor did he offer other instructions.

      The district court instructed the jury:
      In the crime Aggravated Assault and Battery-Bodily Injury with Deadly Weapon charged there must exist a connection between the act or conduct and general criminal intent.
      General criminal intent requires that the charged act is voluntarily taken, but it does not require any intention to violate the law or any intention to do a further act or achieve any further consequence, result, harm or injury from such act. When a person voluntarily does that which the law declares to be a crime, that person is acting with general criminal intent.


author: BOLGER, Chief Justice.

text:
    JOHN E. and Sally E., a Minor, Appellants, v. ANDREA E., Appellee.
    Supreme Court No. S-16912
    Supreme Court of Alaska.
    July 19, 2019
    John C. Pharr, Law Offices of John C. Pharr, Anchorage, for Appellants.
    No appearance by Appellee.
    Before: Bolger, Chief Justice, Winfree, Stowers, Maassen, and Carney, Justices.
   BOLGER, Chief Justice.

I. INTRODUCTION

A divorced mother had sole legal and physical custody of her two daughters. Their father sought a protective order against the mother and a modification of custody after she repeatedly hit the older daughter with a belt. The superior court found that the mother's actions did not trigger the presumption against custody under AS 25.24.150(g). It ordered that she retain legal and physical custody, subject only to a limited protective order, and that the father have restricted visitation. The father appeals.

We conclude that it was an abuse of discretion for the superior court to exclude the testimony of a psychologist who diagnosed the child with PTSD. We thus vacate the custody decision and remand for a new analysis of the children's best interests in light of the psychologist's testimony.

II. FACTS AND PROCEEDINGS

A. Background

John and Andrea E. married in 2004. They have two daughters: one born in 2004, and one born in 2007. John and Andrea divorced in 2011 and shared legal and physical custody of their children. That arrangement was largely unchanged until 2015, when the superior court granted primary physical custody and sole legal custody of the children to Andrea and allowed John only supervised visitation. The court made this modification after finding that John had assaulted Andrea at least three times, triggering a rebuttable presumption that he not be awarded "sole legal custody, sole physical custody, joint legal custody, or joint physical custody of a child." The court noted that John could overcome this domestic violence presumption by completing a domestic violence program approved by the Department of Corrections, which he did in late 2016.

B. Andrea's 2017 Assault Of Her Daughter

On June 30, 2017, Andrea punished her older daughter, who was then twelve, by hitting her repeatedly with a belt. Andrea and the child gave different accounts of the incident at trial.

1. Andrea's account

According to Andrea, her daughter had been constantly misbehaving leading up to the June 30 incident, and had "been sneaking out of the house for the past year." Andrea said she had unsuccessfully tried to control this behavior without corporal punishment, but eventually warned her daughter that if she continued to sneak out she would "get spanked."

Andrea said that on June 30 she saw a Snapchat video showing her daughter walking down a busy street with friends "at three o'clock in the morning," and a second video showing her smoking. Andrea then confronted her daughter and demanded the passcode for her phone. When the child refused, Andrea decided to "spank" or "whip[ ]" her with a belt. Andrea claims that she then grabbed her daughter, turned her around, and started whipping her rear end with a plain leather belt. She said that soon after she started, her daughter gave her the passcode to her phone.

Andrea said that she then stopped hitting her daughter and began to review the contents of her cell phone, where she saw sexual content, including sexual communications. Andrea asked for the friend's phone number and was refused; angered by this, she then grabbed the belt and began hitting her daughter again. Andrea said that she was hitting her daughter's legs, but that the child grabbed the belt and tried to kick her. Andrea said that while wrestling with her over the belt, she accidentally hit her daughter in the face, giving her a bloody nose. Andrea said that her fiancé then restrained the child, the fight ended, and she told her daughter to take a shower to clean up. According to Andrea, the whole incident took place within a 30-minute period.

2. The child's account

The child's account differed from Andrea's in several ways. She agreed that the incident began when Andrea saw videos of her "hanging out [with a friend] early in the morning." She said that Andrea told her to sit on a "game chair" and "started hitting [her] with [a] belt." The child testified that instead of being plain leather, the belt was studded with "metal stars." She also said that Andrea hit her "a few times ... in the face" in addition to her legs and arms. She said that when she tried to shield her face with her hands, Andrea pushed her hands aside, and that Andrea's fiancé assisted throughout much of the incident by restraining her while Andrea continued the beating. She also testified that Andrea put her hands around her neck. The child said that at some point Andrea "threw [a cup of juice] all over" her, then told her to take a shower. The child stated that Andrea continued beating her while spraying her with the shower handset.

C. Proceedings Following The Assault

The morning after the assault, the child left the house again without Andrea's permission; she was picked up by John's wife, Kimberly, and resided with John and Kimberly until the end of the proceedings at issue in this appeal.

John took the child to the hospital the morning after the assault, and he obtained an ex parte domestic violence protective order on behalf of both his daughters. Andrea moved to dissolve the order, and on July 5, 2017, a magistrate judge granted her motion with respect to the younger daughter, but not the older one. That same day John filed a motion to modify custody, requesting sole legal and primary physical custody of both children.

The superior court held a status hearing on September 21 for both the domestic violence case and the motion to modify custody. Among other things, the parties argued over the fact that John had taken their older daughter to see a psychologist despite the fact that Andrea retained sole legal custody over her. The court scheduled an evidentiary hearing for October 4 and 5.

Various witnesses testified at the evidentiary hearing, including Andrea and the older daughter, who each described their version of the assault. [summarized above in Part II.B] Andrea also sought to justify the incident, explaining that her mother had practiced even harsher forms of punishment when she was a child. Noting that other punishments had failed to correct her daughter's behavior, Andrea explained that she did not regret her decision and would make the same one again if confronted with the same circumstances. The older daughter testified at the hearing that she did not want to return to live with Andrea, and that she still had some marks from the assault that had not yet gone away.

John introduced photographs of the child's injuries after the assault and testified that a doctor performed a CAT scan of her nose because it appeared to be broken, but that the test showed it was not. Another witness who saw the child right after the assault testified that her injuries appeared minor at the time, and were not as serious as those in John's photographs.

John also sought to call as a witness the psychologist who had seen his daughter. Andrea objected and the court ruled that it would not allow the psychologist to testify. The court seemed to conclude that John lacked the authority to bring his daughter to the psychologist, because Andrea had sole legal custody, and that he had done so for litigation purposes rather than to secure emergency treatment. In its final custody order, the court explained that it "declined to permit John to take advantage of overstepping his legal and medical authority when he took [his daughter] to a counselor a day before the [September 21] hearing."

At the end of testimony on October 5, the court dissolved the existing ex parte domestic violence order to the extent that it prohibited contact between Andrea and her older daughter, and scheduled supervised visitation between them. On October 13 John filed an expedited motion to suspend this visitation until a therapist had approved its "time, place and manner," arguing that the child was not ready to see Andrea and that "[r]elations between mother and daughter cannot be normalized without therapeutic intervention." The court decided that this motion was moot when it delivered its oral ruling on custody three days later, and denied it in its final custody order.

On October 16 the court held a hearing to decide John's request for a longterm domestic violence protective order and his motion to modify custody. John argued that Andrea's assault of their older daughter resulted in "serious physical injury" because it produced "protracted impairment of health," and so triggered the rebuttable presumption that she should not have custody. He also argued that the assault constituted two or three distinct incidents of domestic violence because Andrea interrupted the beating to look at her daughter's phone and - in the child's account - to tell her to get in the shower. Andrea argued that her use of violence against the child was excusable as reasonable discipline.

D. The Superior Court's Rulings On The Long-Term Domestic Violence Order And Motion To Modify Custody

The superior court delivered an oral ruling at the close of the hearings, and later issued written orders. It issued a long-term domestic violence protective order with only one provision: that Andrea "not threaten to commit or commit acts of domestic violence, stalking, or harassment."

In its custody order the court made the following findings about Andrea's assault of her daughter: that "Andrea hit [the child] with her hands and then several times with the belt on the legs and arms" after she refused to give Andrea the passcode to her cell phone; that once she obtained access to the phone, Andrea "resumed hitting [the child] with the belt"; that the child suffered "facial bruising," but that it was unclear whether this was caused by intentional or accidental contact; and that the younger daughter "was in the same room during most of the confrontation between Andrea and [her sister]."

The court rejected Andrea's argument that her assault was reasonable corporal punishment. But it likewise rejected John's argument that the assault constituted two distinct incidents of domestic violence or that it resulted in "serious physical injury" to the child. The court explained that "the various acts of violence were all part of one excessive disciplinary episode" and that they did not "create a substantial risk of [the child's] death" or cause her to "suffer protracted disfigurement or impairment of health," as was required to find a single incident of domestic violence serious enough to trigger the presumption. The court thus declined to apply the domestic violence presumption in AS 25.24.150(g). It explained that Andrea's single incident of domestic violence was instead "to be considered when weighing the best interest factors of AS 25.24.150(c)." The court found the assault "troubling," but concluded that Andrea's violence "had a more understandable origin than [did] John's repeated behaviors" - presumably referring to John's multiple assaults of Andrea and other disruptive behavior since their divorce.

The court found that Andrea's assault on her older daughter "damaged their relationship at a time when it needed to be strong and trusting," but that John was also causing harm to the child by "manipulating [his] relationship [with her] to get revenge on Andrea." The court ultimately concluded that "Andrea is more able to meet each child's daily emotional and medical needs."

The court found it significant that the "children ha[d] been living with Andrea for a greater period of time in the past two years" than they had with John. The court noted the older daughter "expressed a fear of returning to Andrea's home." But it did not view her expressions of fear as "mature, thought out expressions of a preference to live with one parent rather than the other" but instead "as evidence of her need for help relating with her mother."

The court awarded Andrea sole legal and primary physical custody of the children, and ordered that John have unsupervised visitation with the children for four hours every week. The court recognized that the older daughter "need[ed] time and assistance to restore her relationship with Andrea" and that Andrea needed to develop more appropriate strategies for dealing with her misbehavior. Accordingly the court ordered that Andrea should arrange for counseling for the child and engage in anger management and parenting counseling herself. The court ordered that neither parent should use corporal punishment on the children.

John now appeals the superior court's long-term domestic violence protective order and its 2017 custody order.

III. DISCUSSION

A. The Decision To Exclude The Testimony Of The Older Daughter's Psychologist Was An Abuse Of Discretion.

John had his older daughter examined by a psychologist in September 2017, just before the hearings in this case, and he offered the psychologist's testimony as a hybrid witness at the October 4 hearing. Upon Andrea's objection, the court excluded the evidence, deciding that the report was driven by the litigation and that it was not an emergency counseling session or otherwise authorized by Andrea. It explained in its written order that it "declined to permit John to take advantage of overstepping his legal and medical authority."

John argues that the exclusion of the psychologist's testimony was erroneous. "We review decisions involving the admission of expert testimony for abuse of discretion." "A decision constitutes abuse of discretion if it is 'arbitrary, capricious, manifestly unreasonable, or ... stems from an improper motive.' "

The court's language makes it clear that the exclusion of the testimony was a sanction, intended to punish John for taking the child to see the psychologist without legal authority. The court found that John had violated the earlier custody order granting Andrea sole legal custody by doing so. It explained that its earlier order had been clear that John had no authority to make medical decisions for the children, and that it was not convinced by John's explanation that Andrea had authorized him to arrange counseling for their older daughter months before he brought her to the psychologist. The record supports the superior court's conclusion that John brought his daughter to the psychologist for litigation purposes rather than emergency care. But even though John did not have the legal authority to bring the child to the psychologist, the reality is that the psychologist nevertheless saw her in a clinical setting and developed an opinion relevant to her best interests by doing so.

The court made no apparent inquiry into the potential harm to the fact-finding process that would be caused by precluding the psychologist's testimony. This case was a proceeding to determine the custody and protection of two children. Their best interests were paramount. Having seen her as a patient, the psychologist planned to testify about the older child's mental condition after being beaten. This evidence would certainly have been relevant to the child's best interests. And the superior court recognized this, stating that: "I don't know why I should be precluded from hearing testimony from a person who has spoken with this child and ... presum[ably] has some professional opinion. Why am I precluded from hearing that simply because [John] violated my order in obtaining it?" Nevertheless it chose to exclude her testimony. This exclusion arguably made it harder for the superior court to address the crucial consideration of the child's best interests.

Moreover, the superior court's statement in its final custody order demonstrates that it excluded the psychologist's testimony to punish John for violating its earlier order. As noted above, the court explained in its written order that it had "declined to permit John to take advantage of overstepping his legal and medical authority." And while the court engaged in a lengthy dialogue about whether Andrea had granted John authority to take the child to a therapist, its ultimate conclusion focuses mainly on John's violation of its earlier order, not the psychologist's qualifications or the value of her testimony.

We conclude that the superior court's exclusion of the psychologist's testimony stemmed from an improper motive. A trial court has "the inherent power, as well as the duty, to enforce" custody orders. But the way in which the superior court chose to enforce the order in this case potentially undermined its primary concern. By excluding the psychologist's testimony, the superior court subordinated the children's best interests to its own interest in sanctioning John for his violation of the earlier order.

We thus hold it was an abuse of discretion to punish John by excluding the psychologist's testimony when its inclusion could have served the best interests of his daughter. Because the psychologist's testimony could have affected the superior court's best interests analysis, we vacate the custody decision. We now turn to John's remaining arguments.

B. The Superior Court Did Not Err When It Found That Andrea Did Not Have A History Of Perpetrating Domestic Violence.

"There is a rebuttable presumption that a parent who has a history of perpetrating domestic violence against the other parent, a child, or a domestic living partner may not be awarded sole legal custody, sole physical custody, joint legal custody, or joint physical custody of a child." "A parent has a history of perpetrating domestic violence ... if the court finds that, during one incident of domestic violence, the parent caused serious physical injury or the court finds that the parent has engaged in more than one incident of domestic violence." The superior court did not apply the presumption here because it found that Andrea neither caused a serious physical injury, nor engaged in more than one incident of domestic violence. John challenges both of these findings. After considering the record and the statutory language, we cannot conclude that the superior court erred.

1. Andrea did not cause serious physical injury to the child.

John argues that his older daughter suffered "serious physical injury" during the assault. We review the superior court's factual findings concerning the assault for clear error. Whether these factual findings support a conclusion that the child suffered "serious physical injury" is a question of law that we review de novo. Likewise, the interpretation of the term "serious physical injury" is a question of law to which we apply our independent judgment.

We have previously determined that the term "serious physical injury" in AS 25.24.150(h) (the domestic violence presumption) has the meaning given by the definition of "serious physical injury" in the criminal code. "Serious physical injury" is defined in the criminal code as

(A) physical injury caused by an act performed under circumstances that create a substantial risk of death; or
(B) physical injury that causes serious and protracted disfigurement, protracted impairment of health, protracted loss or impairment of the function of a body member or organ, or that unlawfully terminates a pregnancy[.][ ]

John conceded at trial that Andrea's actions did not create a substantial risk of death, unlawfully terminate a pregnancy, or impair the function of a body member or organ. Thus the question before us is whether the superior court erred in concluding that the child did not suffer "serious and protracted disfigurement" or "protracted impairment of health."

The child sustained marks, scratches, and bruises - including bruises on her face - as a result of the beating. There was evidence to suggest that some of these injuries persisted for six days or more. Moreover, the child testified that she still had some marks on October 4, 2017, months after the assault. But the beating did not break any bones and the child did not sustain any injuries that caused a permanent loss of function or required serious medical intervention.

John also argues that the superior court erred by not concluding that the emotional harm suffered by the child amounted to serious physical injury. John additionally argues that the superior court erred by not concluding that the emotional harm suffered by the child was sufficient to trigger the domestic violence presumption. We have never held that an emotional injury could be considered a serious physical injury for the purposes of AS 25.24.150(h), and John provides no basis for us to do so now. And having reviewed the criminal code definition, which governs the use of the term in the domestic violence presumption, we are not convinced that "serious physical injury" should be expanded to include emotional harm. Therefore, we conclude that the superior court did not err when it concluded that the child did not suffer "serious physical injury."

2. Andrea's assault of her daughter did not constitute two or more distinct incidents of domestic violence.

Under the statute, a parent has a history of perpetrating domestic violence if the superior court finds that he or she "engaged in more than one incident of domestic violence." In this case, the superior court determined that "Andrea's behavior on 30 June 2017 constituted a single episode of domestic violence" and was "one excessive disciplinary episode." John argues that this determination was erroneous and that Andrea engaged in at least two distinct incidents of domestic violence. We review the superior court's factual findings for clear error. But the interpretation of the language "more than one incident of domestic violence" in AS 25.24.150(h) is a question of law to which we apply our independent judgment.

The superior court found that "Andrea hit [her daughter] with her hands and then several times with the belt on the legs and arms," stopped beating her to review the contents of the cell phone, and then "resumed hitting [her] with the belt." These findings are supported by Andrea's testimony and, to a certain degree, the child's. Andrea's testimony that the entire episode lasted approximately 30 minutes was uncontradicted in the record. John argues that by interrupting the beating to look at her daughter's phone, Andrea broke the episode into at least two distinct incidents of domestic violence. The question is thus a legal one: whether this conduct constituted one incident or two incidents of domestic violence.

We have not previously considered the phrase "more than one incident of domestic violence" in detail. Dictionary definitions of "incident" could provide some guidance, but are largely circular and rely on synonyms. Thus to give meaning to "incident" we must consider the purpose behind the domestic violence presumption and the legislature's specific use of the word.

A sponsor of the bill that enacted the domestic violence presumption made comments that are particularly helpful. At one point she referred to "serious bodily injury on a repetitive, perpetual basis." Referring to the conduct that would trigger the presumption, she also noted that "we've always meant for it to be more than an act." And she explained that the "rebuttable presumption specifies that a child will not be placed in ... custody if there are proven incidents of serious bodily injury and/or a proven pattern of domestic violence." And an attorney who was involved in the development of the domestic violence presumption language referred in his testimony to the "control dynamic in abusive relationships" and "the abuser's clear ability in the relationship to do it again and again if necessary to keep control."

The references to a "pattern" of domestic violence; to "repetitive, perpetual" domestic violence; to "perpetuating" domestic violence; and to "do[ing] it again and again ... to maintain control" indicate that the legislature viewed the phrase "more than one incident of domestic violence" as referring to habitual or recurring violence. An episode of excessive corporal punishment lasting 30 minutes does not evince a "pattern" of domestic violence. Thus, although it was arguably broken into two periods of violence, we conclude that the 30-minute episode was a single incident for the purposes of the domestic violence presumption.

Accordingly we hold that it was not error to conclude that Andrea had not triggered the domestic violence presumption by either causing the child serious physical injury or engaging in more than one incident of domestic violence.

C. The Decision To Restrict John's Visitation Was Not Adequately Explained.

John argues that the superior court erred by limiting his visitation with the children to only four unsupervised hours per week. We review the superior court's visitation decisions for abuse of discretion.

In several cases, though, we have required an explanation when the superior court severely restricts a parent's visitation. John had limited visitation while he was completing his domestic violence program; under the 2015 order, John was only allowed supervised visitation with the children, and the record indicates that visits during this period were somewhat sporadic. But he later had full physical custody of his older daughter for the three months prior to the superior court's 2017 final custody order. Nevertheless the superior court reinstated John's limited visitation rights. Without an explanation of its reasoning, we cannot review this decision for an abuse of discretion. Under these circumstances, the superior court was required to explain its decision to restrict John's visitation so severely. Although the visitation decision is vacated with the 2017 custody decision, we find it necessary to identify this deficiency in case it becomes relevant on remand.

D. The Superior Court's Long-Term Domestic Violence Protective Order Was Not An Abuse Of Discretion.

John argues that we should reverse the superior court's protective order because its only requirement was that Andrea could not "commit[ ] further acts of domestic violence." We review the superior court's protective order for abuse of discretion. John contends that "[a] finding of domestic violence with no sanction but to follow the law is meaningless." He points for support to a case where we held that an injunction requiring the state to "obey the law" while managing fisheries was too vague to convey the steps necessary for compliance. But the superior court here was not vague at all; it specifically ordered that Andrea "not threaten to commit or commit acts of domestic violence, stalking, or harassment." We therefore hold that it did not abuse its discretion.

E. John Waived The Argument That The Superior Court Erred By Denying His Motion To Suspend Andrea's Visitation.

After the second day of the October 2017 evidentiary hearing, the superior court scheduled supervised visitation between Andrea and her older daughter. A little over a week later, John filed an expedited motion to suspend that visitation until a therapist could approve its "time, place and manner." On October 16, when the superior court delivered its oral ruling on custody, Andrea's attorney asked whether the motion was moot. The court responded, "Yes." Neither John nor his attorney objected. In the written custody order, the superior court denied the motion in a footnote. John argues on appeal that it was error to deny his motion to suspend visitation, but does not discuss the question of its mootness at the time of the court's ruling. We conclude that John waived this argument; first by doing nothing to correct the court's understanding that the motion was moot, and second by failing to address the basis of the superior court's ruling in his briefing.

IV. CONCLUSION

We VACATE the 2017 custody decision and REMAND for reconsideration of the children's best interests in light of the psychologist's testimony.

      We use initials in lieu of the parties' last names to protect the family's privacy. We have chosen to use a pseudonym for the name of their oldest daughter in the caption of this case for the same reason.

      AS 25.24.150(g).

      See AS 25.24.150(g) -(h).

      See AS 11.81.430(a)(1) (justifying the parental use of force "[w]hen and to the extent reasonably necessary and appropriate to promote the welfare of the child").

      See AS 25.24.150(h).

      We have explained that "[w]hen physicians are called to testify about matters pertaining to the treatment of patients, the distinction between an expert witness and a fact witness inevitably becomes blurred." Miller v. Phillips , 959 P.2d 1247, 1250 (Alaska 1998) ; see also Thompson v. Cooper , 290 P.3d 393, 400 (Alaska 2012) (explaining that treating physicians may be offered as "experience-based experts" whose opinions are based on treatment of the patient).

      Although he did not have legal custody of the children, John did have the authority to provide emergency medical care to them.

      See Griffith v. Taylor , 12 P.3d 1163, 1166 (Alaska 2000) ; see also del Rosario v. Clare , 378 P.3d 380, 386 (Alaska 2016) (reviewing order enforcing child custody decree for abuse of discretion).

      del Rosario , 378 P.3d at 383 (omission in original) (quoting Gunn v. Gunn , 367 P.3d 1146, 1150 (Alaska 2016) ).

      AS 25.24.150(c) ("The court shall determine custody in accordance with the best interests of the child ...."); Ronny M. v. Nanette H. , 303 P.3d 392, 403 (Alaska 2013) ("We have emphasized that the best interests of the child remain paramount ...."); Starkweather v. Curritt , 636 P.2d 1181, 1182 (Alaska 1981) ("The paramount consideration in the determination of child custody is the best interests of the child.").

      del Rosario , 378 P.3d at 386.

      John argues that the superior court abused its discretion and made several erroneous factual findings when analyzing the children's best interests under AS 25.24.150(c). Because we vacate the custody decision with instructions to reconsider the children's best interests in light of the psychologist's testimony, we do not reach these issues.

      AS 25.24.150(g). Moreover, the parent's visitation must be supervised until certain conditions are met. AS 25.24.150(j). The domestic violence presumption applies not just when the court issues a custody award as part of a divorce but also when the court modifies custody, as in this case. Williams v. Barbee , 243 P.3d 995, 1001 (Alaska 2010).

      AS 25.24.150(h).

      See Faye H. v. James B. , 348 P.3d 876, 878 (Alaska 2015) ("Whether the court's findings on domestic violence are supported by the record is a question of fact which we review for clear error." (quoting Yelena R. v. George R. , 326 P.3d 989, 998 (Alaska 2014) )).

      See id. ("[W]hether the court used the proper legal standard for applying the domestic violence presumption - including whether the court's findings support applying the presumption - is a question of law, which we review de novo." (quoting Yelena R. , 326 P.3d at 998 )).

      See Johnson v. State, Dep't of Corr. , 380 P.3d 653, 655 (Alaska 2016) ("The interpretation of a statute is a question of law to which we apply our independent judgment." (quoting Barber v. State, Dep't of Corr. , 314 P.3d 58, 62 (Alaska 2013) )).

      Parks v. Parks , 214 P.3d 295, 301 (Alaska 2009).

      AS 11.81.900(b)(57).

      While surgical treatment or hospitalization is not necessary to establish serious physical injury, the court of appeals has considered the level of medical response as indicative of the severity of an injury under AS 11.81.900(b)(57). See Konrad v. State , 763 P.2d 1369, 1375-76 (Alaska App. 1988) (holding that "internal bleeding from the spleen [which] healed without treatment within a short period of time" was not serious physical injury but a "collapsed right lung" requiring surgery and hospitalization was).

      John points to the child in need of aid context, where "mental injury" is defined as "a serious injury." AS 47.17.290(3). But the statute he cites does not mention serious physical injury. Moreover, we have made it clear that the term "serious physical injury" has the same meaning for the domestic violence presumption as it does in the criminal code. Parks , 214 P.3d at 301.

      See Parks , 214 P.3d at 301.

      Worden v. State , 213 P.3d 144, 148 (Alaska App. 2009) ("A basic rule of statutory construction 'is that statutes imposing criminal liability should be construed narrowly.' " (quoting State v. ABC Towing , 954 P.2d 575, 579 (Alaska App. 1998) )).

      AS 25.24.150(h).

      See Faye H. v. James B. , 348 P.3d 876, 878 (Alaska 2015) ("Whether the court's findings on domestic violence are supported by the record is a question of fact which we review for clear error." (quoting Yelena R. v. George R. , 326 P.3d 989, 998 (Alaska 2014) )).

      See Johnson v. State , 380 P.3d 653, 655 (Alaska 2016).

      The child testified that in addition to beating her with a belt, Andrea put her hands around her neck, threw a cup of juice on her, and continued hitting her after making her get in the shower. But we cannot conclude, and John does not argue, that the superior court's decision not to credit this further testimony in its final decision was clear error. "When the superior court is faced with conflicting evidence, we do not re-weigh it. 'It is the job of the trial court, not the appellate court, to judge the credibility of the witnesses and to weigh conflicting evidence.' " Silvan v. Alcina, 105 P.3d 117, 122 (Alaska 2005) (quoting Native Alaskan Reclamation & Pest Control, Inc. v. United Bank Alaska , 685 P.2d 1211, 1215 (Alaska 1984) ).

      He argues that there were "as many as four separate assaults," referring to the juice throwing and beating in the shower as the third and fourth incidents. As explained in note 27, though, the superior court's apparent decision not to credit this testimony in its decision was not clearly erroneous.

      But see Timothy W. v. Julia M. , 403 P.3d 1095, 1105 (Alaska 2017) (glossing "more than one incident" as "more than one occasion").

      See Alaskans for Efficient Gov't, Inc. v. Knowles , 91 P.3d 273, 276 n.4 (Alaska 2004) ("Dictionaries provide a useful starting point for determining what statutory terms mean, as they provide the common and ordinary meaning of words.").

      See, e.g. , Incident , Black's Law Dictionary (10th ed. 2014) ("A discrete occurrence or happening; an event, esp. one that is unusual, important, or violent.").

      We interpret statutes "according to reason, practicality, and common sense, considering the meaning of the statute's language, its legislative history, and its purpose." Johnson v. State , 380 P.3d 653, 655 (Alaska 2016) (quoting Barber v. State, Dep't of Corr. , 314 P.3d 58, 62 (Alaska 2013) ).

      Minutes, Sen. Judiciary Standing Comm. Hearing on H.B. 385, 23d Leg., 2d Sess. at 15 (Apr. 27, 2004) (statement of Rep. Lesil McGuire) ("If you have been the recipient of serious bodily injury on a repetitive, perpetual basis, it is unlikely that you would want to have a close and loving contact with that person that has been your batterer."), http://www.legis.state.ak.us/PDF/23/M/SJUD2004-04-270815.PDF.

      Id. at 18.

      Minutes, House Judiciary Standing Comm. Hearing on H.B. 385, 23d Leg., 2d Sess. at 29 (Mar. 1, 2004) (statement of Rep. Lesil McGuire), http://www.legis.state.ak.us/PDF/23/M/HJUD2004-03-011310.PDF.

      Id. at 43 (statement of Allen M. Bailey, family law attorney), http://www.legis.state.ak.us/PDF/23/M/HJUD2004-03-011310.PDF.

      Bruce H. v. Jennifer L. , 407 P.3d 432, 436 (Alaska 2017).

      See id . at 441-42 (holding that the trial court did not sufficiently explain decision awarding father two weeks of summer visitation, 30-minute weekly calls, and alternating spring/winter vacations where father previously had visitation for three nights per week); I.J.D. v. D.R.D. , 961 P.2d 425, 432 (Alaska 1998) ("[T]he trial court must make specific findings supporting a limited award of visitation unless the reasons can be gleaned from the record."); Lone Wolf v. Lone Wolf , 741 P.2d 1187, 1190-91 (Alaska 1987) (holding that the trial court did not adequately explain decision awarding father 32 hours of visitation per weekend where there was no evidence he was an unfit parent).

      Cooper v. Cooper , 144 P.3d 451, 454 (Alaska 2006).

      Cook Inlet Fisherman's Fund v. State, Dep't of Fish & Game , 357 P.3d 789, 803-04 (Alaska 2015).

      Cf. Williams v. Util. Equip., Inc. , 837 P.2d 1112, 1116-17 (Alaska 1992) (holding that a party waived appellate challenge to testimony that purportedly violated trial court's protective order when he did not "make specific objections while [the witness] was on the stand").

      Manning v. State, Dep't of Fish & Game , 420 P.3d 1270, 1279 n.51 (Alaska 2018) (holding that an argument was waived due to inadequate briefing).