author: CARPENETI, Justice.

text:
    G.C., Appellant, v. STATE of Alaska, DEPARTMENT OF HEALTH & SOCIAL SERVICES, DIVISION OF FAMILY & YOUTH SERVICES, Appellee.
    No. S-10519.
    Supreme Court of Alaska.
    April 11, 2003.

      J. Randall Luffberry, Palmer, for Appellant.
    Lance B. Nelson, Assistant Attorney General, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.
    Erica Kracker, Kracker Law Office, Palmer, for Guardian ad Litem.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

CARPENETI, Justice.

I. INTRODUCTION

The superior court terminated Gary Carson's parental rights. Gary challenges the court's factual findings as erroneous and unable to support its termination decision. Because we believe the evidence supports the superior court's finding of abandonment, its decision that reasonable efforts were made to reunify Gary and his son Daniel, and its conclusion that termination would be in Daniel's best interests, we affirm the superior court's decision.

II. FACTS AND PROCEEDINGS

A. Facts

Cousins Gary Carson and Jana Bishop grew up in a small town in Colorado. As a teenager, Gary would occasionally babysit Jana and her siblings. One night at age thirteen, while babysitting, Gary smoked marijuana, consumed alcohol, and watched pornographic movies. Gary convinced Jana, then age four, to take off her clothes and the two "experimented with sex," meaning he put his penis inside of her and then stopped when she sereamed. Jana told her mother, Claire King, what had happened, at which point Claire informed Gary's mother, Faye Simmons. Faye confronted Gary and then took him to the police station until she could have him admitted to the state hospital for treatment. Approximately three years later, Gary returned to his mother's home and lived there on and off for the next few years. During this time, he was heavily involved in drug use and criminal behavior and was arrested several times.

In the summer of 1990, Claire left several of her children, including Jana, with Faye while she went to work on a "Valdez clean-up boat." At that time, Jana was fourteen and Gary was twenty-three. According to Gary, Jana started to write letters to him, expressing a desire to have sex with him and to have his child. Faye expressed concerns about the living situation to Claire, who said they would discuss it during the holidays when she came to Colorado to visit. In the meantime, Faye had Gary move out of her house and into another house she owned on the same property.

In January 1991, after her mother had returned to Alaska, Jana began sneaking out of Faye's house and going next door to Gary's house. According to Gary, on two occasions, Jana came to his house, got into bed with him, and initiated sexual intercourse. On the first occasion, Gary claimed that he did not know what had happened until he woke up the following morning and found them in bed together, naked. The second time, Gary maintained that he was drunk and stoned when Jana got into bed with him, and thinking it was his girlfriend, he had sex with her. Faye found out what was going on and told Gary he would have to move off the property. At some point after Gary moved out, Faye learned that Jana was pregnant. Jana then moved back in with her mother. Daniel was born on October 18, 1991. ©

Follbwing Daniel's birth, Faye and Gary got occasional reports about Daniel from Claire and Jana, who preferred that Gary not take an active role in Daniel's life. Gary told Jana to call him if she needed help, but privately doubted if he would ever hear from her again. The Alaska Division of Family and Youth Services (DFYS) became involved with Jana and her two children, Daniel and Stacy, in 1995. Faye was aware of some intervention, but claims she did not know that it was serious until Jana called her in October 2000 and informed Faye that DFYS was seeking to terminate Jana's parental rights. At that point, Daniel was in a pre-adoptive placement with the Peterson family and Gary was incarcerated in Colorado.

Faye then decided to inform DFYS that Gary was Daniel's father. Upon learning Gary's identity, DFYS requested that the Mesa County (Colorado) Department of Human Services perform a home study of Faye's house pursuant to the Interstate Compact on the Placement of Children (ICPC) The study was completed on May 22, 2001; placement was denied on June 1, 2001. Through his attorney, Gary requested a reconsideration of the denial of placement, which was also denied. In the meantime, DFYS filed a petition to terminate his and Jana's parental rights. During this time, the Petersons changed their minds about adoption and Daniel was placed with a former foster parent named Ted Hughes, who was considering adoption pending the outcome of the termination proceedings.

B. Proceedings

Jana voluntarily relinquished her parental rights to Daniel on August 15, 2001. Trial to terminate Gary's parental rights was held before Superior Court Judge Beverly W. Cutler in Palmer. Trial began on September 27, 2001, and was held on six separate days during the months of September, October and November. Gary testified in a videotaped deposition from the work release community corrections building in which he currently resides. He was present by phone for the duration of the trial. Trial was concluded on November 15, 2001. Judge Cutler issued oral findings from the bench at the close of trial, followed by written findings on January 25, 2002.

In its written findings, the trial court found by clear and convincing evidence that Daniel was a child in need of aid pursuant to three separate (and independent) parts of the law defining children in need of aid, that Gary had not remedied the conduct or conditions that placed Daniel at substantial risk of harm, that DFYS had demonstrated by a preponderance of the evidence that it had made reasonable efforts to provide remedial services and rehabilitative programs to Gary, and that termination of Gary's parental rights would be in Daniel's best interests. Accordingly, the trial court terminated Gary's parental rights and authorized DFYS to place Daniel for adoption.

Gary appeals, claiming that the court's factual findings were erroneous and that they were not sufficient to support the court's termination decision.

III. STANDARD OF REVIEW

We apply the clearly erroneous standard when reviewing the factual findings supporting the termination of a parent's right to raise his or her children. We will find clear error only when a review of the entire record leaves us "with a definite and firm conviction that the superior court has made a mistake." Whether the trial court's findings satisfy the requirements of the child in need of aid statutes and rules is a question of law which we review de novo.

IV. DISCUSSION

A. The Trial Court Did Not Err in Finding that Sufficient Grounds Supporting the Termination of Gary's Parental Rights Existed.

Pursuant to AS 47.10.088, prior to terminating a parent's right to raise his or her child, the court must find by clear and convincing evidence (1) that the child meets one of the bases for being a child in need of aid under AS 47.10.011 and (2) either that the parent has not remedied the conditions underlying the original harm or that returning the child to the parent would place the child at substantial risk of physical or mental infu-ry.

Judge Cutler found by clear and convine-ing evidence that Daniel was a child in need of aid under three subsections of AS 47.10.011:(1), (2), and (9) In addition, the court made findings that would support termination on the basis that Daniel was conceived as a result of child sexual assault under AS 25.23.180(c)(3). Because we conclude that there was ample support for the court's finding that Gary abandoned Daniel, we affirm the superior court's determination that there were sufficient grounds for termination of Gary's parental rights under AS 47.10.011(1). In doing so, we decline to review the court's findings under AS 47.10.011(2) or (9) or AS 25.23.180(c)(8), since one statutory basis is sufficient for finding a child to be in need of aid in a termination proceeding.

Alaska Statute 47.10.011(1) requires that the court find that the parent has abandoned his or her child within the meaning of AS 47.10.018. Subsection .018(a) provides in relevant part that:

the court may find abandonment of a child if a parent or guardian has shown a conscious disregard of parental responsibilities toward the child by failing to provide reasonable support, maintain regular contact, or provide normal supervision, considering the child's age and need for care by an adult.

The statute also provides specific examples of conduct that will be considered abandonment.

We have interpreted the abandonment statute as encompassing a two-prong test: "(1) whether the parent's conduct evidenced a disregard for his or her parental obligations, and (2) whether that disregard led to the destruction of the parent-child relationship." Additionally, it is clear that "abandonment is not determined by the parent's subjective intent or ... 'the parent's wishful thoughts and hopes for the child.' Rather, we apply an objective test to the actions of the parent, inquiring as to whether his or her behavior demonstrates a willful disregard of his or her parental responsibili-1337.

Judge Cutler made specific written findings on Gary's abandonment of Daniel, determining that:

Clearly [Mr. Carson] has abandoned [Daniel]. [Mr. Carson] knew all along that he had a son as a result of a sexual relation with the fourteen-year-old mother. He has never paid support for the child, partly out of convenience to himself and partly because he was never asked for support. He has not ever seen the child. He indicated he took a "back seat" because he thought that action would be best for everyone.

In addition, in her oral findings, Judge Cutler began by stating that

it seems abundantly clear-way beyond clear and convincing-that [Mr. Carson] did, in fact, abandon [Daniel] for the first half of his life.... No question that he knew he had a son born to him and that he just abandoned him, flat out. ... [Nlo definition of abandonment would not include that kind of conduct, and even if he may have had good personal reasons and it might have even been better for [Daniel] ... to be abandoned by his father, in light of all of the things we have heard about the young life of both [Jana] and [Mr. Carson], but he was clearly abandoned by him.

In response to a question whether she was finding that Gary had willfully abandoned Daniel, Judge Cutler responded: "It's my finding, by clear and convincing proof, that for the first many years of [Daniel]'s life that he was willfully abandoned by [Gary]. [Gary] may have had his own reasons." Nonethe-legs, the court concluded, "it was clearly willful abandonment in my opinion, ... based on the totality of what was presented about the cireumstances."

Gary argues that he "did not consciously disregard his parental responsibilities." He maintains that he wanted to act as a father to Daniel, but that he was not provided the opportunity to do so by the mother, who rejected his offers of assistance. He claims that his failure to pursue fatherhood was due to his sensitivity to the wishes of the mother and her family and his fears that "to become more assertive would have cut him and his mother off from any contact or information." According to Gary, his immediate interest in Daniel once Gary learned he was in DFYS custody demonstrates that it was Jana who barred him from being a father, not his own lack of initiative.

Gary's contention that he did not willfully abandon his son or cause the destruction of the child-parent relationship lacks merit. As in In re H.C., in which we found the failure of a father to maintain any contact with his daughter for over one year to demonstrate his willful abandonment, Gary's objective conduct belies his assertions. Daniel and Gary have had no contact during Daniel's ten-year life, and Daniel only found out that Gary was his biological father in 2001. Gary has never actively attempted to provide financial or emotional support to Daniel, has never tried to see him, to gain custody of him, or to develop any type of a relationship with him. Whatever Gary's reasons for not attempting to act as a parent to Daniel for the first ten years of his life, his decision was conscious and calculated, and he sets forth no basis on which we could determine that the superior court erred in finding that his con-duet amounts to willful abandonment.

B. The Trial Court Did Not Err in Determining that DFYS Had Made Reasonable Efforts To Reunify Gary and Daniel.

In a termination proceeding, the superior court must also find "by preponderance of the evidence that the department has complied with the provisions of AS 47.10.086 concerning reasonable efforts." In relevant part, section .086 requires DFYS to make timely, reasonable efforts to provide family support services to the parent and child "that are designed to prevent out-of-home placement of the child or to enable the safe return of the child to the family home, when appropriate, if the child is in an out-of-home placement." " Specifically, the duty to make reasonable efforts requires that DFYS identify family support services to remedy the causes of CINA jurisdiction, "actively offer" these services to the parent, and refer the parent to community-based family support services whenever available and desired by the parent. Additionally, "[in making determinations and reasonable efforts under this section, the primary consideration is the child's best interests.

In considering this factor, Judge Cutler found that under the circumstances, the department had made reasonable efforts to provide remedial and rehabilitative services to Gary. While recognizing in her oral findings that DFYS was admittedly "disappointed" upon learning that Gary was the father, and that "[tlhey could have made more efforts if their heart was in it more strongly," Judge Cutler found that "clearly they did make an effort here, and I think it was definitely reasonable in the circumstances."

We have held that "[a] parent's incarceration significantly affects the seope of the active efforts that the State must make." Especially in situations such as this, where the parent is incarcerated in another state, the trial court may consider factors such as the difficulty of providing services to inmates generally, the specific resources available for the incarcerated parent in question, and the expected length of incarceration. Additionally, where a parent is in prison, "we have held that the Department of Corrections, rather than DFYS, may fulfill this obligation by enrolling the parent in classes and treatment programs."

Gary admits that DFYS was limited in the services it could provide to him due to his incarceration and concedes that efforts of any state agency, including the Department of Corrections (DOC), will suffice to meet DFYS's obligation. Nonetheless, he contends that DFYS's contact with his jail counselor was not sufficient to meet its requirements under the statute. At the very least, Gary maintains, DFYS should have been required to contact Colorado or Mesa County child protection authorities to ascertain what community-based programs they were aware of, something DFYS declined to do until well after the trial had begun. In response, the state explains that Gary was offered all of the classes and treatment available to inmates in Colorado and that therefore, DFYS's efforts were reasonable.

Given the amount of time available and the fact that Gary was incarcerated in another state throughout the period that services could be offered to him, DFYS was limited in how much it could do for him. DFYS social worker Jean Marie Hakenson testified as to her efforts upon learning that Gary might be the father, explaining that she immediately prepared a case plan, requesting parenting and anger management classes and substance abuse assessment and treatment. She also contacted Cindy Fugate, Gary's case manager at Sterling Correctional Facility, to find out what classes were available to Gary while in prison. Gary had already taken a number of these classes, which were then listed in Ms. Hakenson's permanency report. Furthermore, when Gary informed Ms. Hak-enson that he might be moving to a halfway house, she told him to notify her when he was actually there so she could arrange for services for him there. Ms. Hakenson admitted that after speaking with Ms. Fugate at DOC, she did not contact any neighborhood mental health facilities or community-based programs to see if any additional services were available for Gary. However, she testified that it was her belief that when a person is in prison, DFYS is only required to determine what services are available in the prison, and not in the community at large.

The trial court found that DFYS had made reasonable efforts by contacting DOC in Colorado and requesting that any available classes or services be provided to Gary. Given the range of relevant DOC offerings, including substance abuse counseling, anger management, relapse prevention, life skills seminars, and strategies for self-improvement and change, we see no reason why DFYS should have been required to seek out additional community-based services in this situation. As the state points out, given that Gary was in jail, and there was no home to which Daniel could be returned, the department's efforts were clearly reasonable under the circumstances. We find that the evidence supports the court's finding that reasonable efforts were made by DFYS and we therefore affirm Judge Cutler's determination that the requirements of AS 47.10.086 have been met.

C. The Trial Court Did Not Err in Finding that Termination of Gary's Parental Rights Would Be in Daniel's Best Interests.

The final requirement for termination of parental rights is that the court consider the best interests of the child.

In its written findings, the court stated: Given the age of the child and length of time that he has been in custody (over 4% years), there is a critical risk of long term harm to the child if there is not immediate permanency. The court finds that the child's counselor, Ms. [Houston], is a disinterested witness in that she has no perceived bias except for a need to look out for the best interests of the child. Her testimony was persuasive in the need for [Daniel] to have a loving, nurturing, and stable environment as soon as possible.

In her testimony, Lori Houston attested to the extreme importance to Daniel of having a stable, permanent home and of not getting his hopes up and then being disappointed again. She also voiced her concerns about the family's history and "about what type of treatment that a family with that level of dysfunction has gone through in order to repair and obtain a level of functioning that is going to be appropriate for [Daniel]."

In addition to this testimony, the trial court considered the statements of Gary himself. Specifically, the trial court expressed difficulty giving much credence to Gary's plans for himself in the future:

I do think, while he states that he expects to be a different person now than he was during the first eight or 10 years of [Daniel's] life, that in some ways I find his statements not as credible as I would those of a person who had been more stable in their life, because it does appear to me that he may-while he can verbalize the idea of who he is and what he thinks his abilities are, that often the idea a person has in their mind of who they are and what their abilities are, the idea is often not the same as their ability to actually be that person or follow through[ ] ... I'm saying as the judge I don't completely disbelieve him, but I do have great concern that his own idea of who he is and what his abilities are to be a good parent to [Daniel] and his ability to actually follow through might be separated by a lot of-there might be a lot of differences between what will actually happen and what he hoped would happen.

Gary maintains that Judge Cutler's decision that it was in Daniel's best interests for Gary's parental rights to be terminated was clearly erroneous, given that under Gary's proposed plan of placing Daniel with his grandmother Faye, permanency could have been achieved immediately. Gary argues, "With this plan, [Daniel] could have reunited with his father when, if ever, the state deemed it safe and appropriate. Also, if the trial court's fears about [Gary's] likelihood to reoffend came true, [Faye] could provide continuity, permanency, and protection of [Daniel] until he was grown." Because Daniel was not in an adoptive placement at the time of trial, Gary argues that the court should have preferred placement with Faye to Daniel's current situation.

Judge Cutler specifically found that while Daniel's best interests would be served by permanency, they would not be met by a placement with his paternal grandmother:

It appears that [Gary] and his mother [Faye], who's the grandmother that Mr. Luffberry argues really would be a perfect adoptive placement, also have a pretty dysfunctional relationship that's codependent in bad ways, and that really [Faye] was not highly successful in raising [Gary] to be a normal, ordinary, functioning adult male, and we should be concerned about [Daniel] following a bad pattern as opposed to a good pattern if he were somehow to get into placement with them.

Considering the length of time Daniel has been in state custody, that he has never met or been given the opportunity to develop a relationship with his father, that his grandmother's home was rejected as a possible placement for him in the ICPC home study, that Gary's future is uncertain, that Gary has a long history of eriminal behavior and sexual misconduct, and that Daniel is currently in a placement which may result in adoption, we do not believe Judge Cutler erred in finding that Daniel's best interests would not be served by placement with Faye and denial of the state's petition to terminate Gary's parental rights. Given the ample support in the record for the court's best interests finding, we therefore affirm the trial court's determination that termination of Gary's parental rights would be in Daniel's best interests.

v. CONCLUSION

- Because none of the factual findings underlying Judge Cutler's decision was clearly erroneous and because these findings provide sufficient support for each of the requirements of AS 47.10.088, we AFFIRM the superior court's decision to terminate Gary's parental rights.

      . Pseudonyms have been used for all family members throughout this opinion.

      . Jana had a second child, Stacy, in 1994 with Colorado resident Darren Hunt. Stacy is currently with her maternal grandmother pending placement with her father.

      . AS 47.170.010.

      . S.H. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 42 P.3d 1119, 1122 (Alaska 2002); J.H. v. State, Dep't of Health & Soc. Servs., 30 P.3d 79, 85 (Alaska 2001).

      . S.H., 42 P.3d at 1122.

      . Id. at 1123; M.W. v. State, Dep't of Health & Soc. Servs., 20 P.3d 1141, 1143 (Alaska 2001).

      . AS 47.10.088(a)(1).

      . AS 47.10.011 provides in relevant part that the court may find a child to be in need of aid if it finds that:
      (1) a parent or guardian has abandoned the child as described in AS 47.10.013, and the other parent is absent or has committed conduct or created conditions that cause the child to be a child in need of aid under this chapter;
      (2) a parent, guardian, or custodian is incarcerated, the other parent is absent or has committed conduct or created conditions that cause the child to be a child in need of aid under this chapter, and the incarcerated parent has not made adequate arrangements for the child;
      (9) conduct by or conditions created by the parent, guardian, or custodian have subjected the child or another child in the same household to neglect.]

      . AS 25.23.180(c)(3) provides in relevant part:
      The relationship of parent and child may be terminated by a court order issued in connection with a proceeding under this chapter or a proceeding under AS 47.10 on the grounds ... that the parent committed an act constituting sexual assault or sexual abuse of a minor under the laws of this state or a comparable offense under the laws of the state where the act occurred that resulted in conception of the child and that termination of the parental rights of the biological parent is in the best interest of the child.

      . See AS 47.10.013(a)(1)-(8) (listing factors such as failure to support, communicate with, or visit the child, and failure to participate in a reunification plan}.

      . E.J.S. v. State, Dep't of Health & Soc. Servs., 754 P.2d 749, 751 (Alaska 1988).

      . Id. (quoting D.M. v. State, 515 P.2d 1234, 1237 (Alaska 1973)).

      . Id. See also Nada A. v. State, 660 P.2d 436, 439 (Alaska 1983) (indicating that while involuntary incarceration might not suffice to establish abandonment, an eight-month voluntary absence prior to incarceration would) legislatively overruled on other grounds, § 1, ch. 99, SLA 1998.

      . 956 P.2d 477 (Alaska 1998).

      . Id. at 482. See also E.J.S., 754 P.2d at 751 (affirming finding of abandonment based on father's failure to make reasonable efforts to locate and communicate with his daughter for five years); In re B.J., 530 P.2d 747, 750 (Alaska 1975) (holding that father's failure to acquire suitable home for his children, pay even nominal child support, visit or correspond with his children, or make efforts to secure permanent employment were sufficient to demonstrate conscious disregard of his parental obligations).

      . AS 47.10.088(a)(2).

      . AS 47.10.086(a).

      . Id.

      . AS 47.10.0868).

      . A.A. v. State, Dep't of Family & Youth Servs., 982 P.2d 256, 261 (Alaska 1999).

      . Id.

      . T.F. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 26 P.3d 1089, 1096 (Alaska 2001).

      . As discussed in Part C of this opinion, Daniel had already been in foster care for a significant period of time and had seen at least one preadop-tive placement fall through as a result of these proceedings. Because allowing for additional time for DFYS to provide Gary with reunification services would not have been in Daniel's best interests, DFYS faced a short window during which to provide Gary with such services.

      . AS 47.10.088(c).

      . Gary also argues that AS 47.14.100(e) requires placement with Faye because she is a blood relative. However, as Gary concedes, he did not raise this argument at trial, and therefore we deem it to have been waived. See Brandon v. Corrs. Corp. of Am., 28 P.3d 269, 280 (Alaska 2001) (repeating well-established rule that this court will not treat issue on appeal that was not raised at trial).


source: Caselaw Access Project

license: Public Domain

text:
    Homer C. INMAN, Appellant, v. Peggy S. INMAN, Appellee.
    No. S-10238.
    Supreme Court of Alaska.
    April 11, 2003.

      Richard W. Wright, Fairbanks, for Appellant.
    Carl J.D. Bauman, Hughes Thorsness Powell Huddleston & Bauman, Anchorage, for Appellee.
    Before: MATTHEWS, EASTAUGH, and CARPENETI, Justices.
   OPINION

CARPENETI, Justice.

I. INTRODUCTION

Homer Inman appeals the superior court's grant of Civil Rule 60(b) relief from judgment and its subsequent award of thirty percent of his civil service pension to his former wife, Peggy. Because the superior court lacked personal jurisdiction over Peggy at the time of the divorce, the original property division was void under Civil Rule 60(b)(4) and the court's subsequent award to Peggy of thirty percent of the pension as of the date she filed the motion was appropriate. In addition, the superior court's setting of the date of separation as the date the divorcee complaint was filed was not clearly erroneous, and the court did not abuse its discretion in finding that Homer had thirty years of qualifying service for his pension. We therefore affirm the judgment of the superior court in all respects.

II. FACTS AND PROCEEDINGS

Peggy and Homer were married in Castle Rock, Colorado on April 19, 1965. During the course of the marriage, Peggy and Homer had three sons. At some point during the marriage the couple moved to Fairbanks where Homer was working as a civil servant at Eielson Air Force Base.

In August 1976 Peggy and the children moved to Colorado. Peggy understood that Homer would join the family in Colorado as soon as he was eligible for retirement. Homer visited Peggy and the children for approximately two to three weeks each year. Peggy visited Homer in Alaska in 1981. Peggy and the children moved from Colorado to Texas in approximately 1978, and from Texas to New Mexico in 1982.

In November 1982 Homer filed for divoree in Fairbanks. Peggy was served with the complaint in New Mexico in February 1983. Peggy neither appeared nor filed an answer to the complaint. In April a default divorce decree was entered. The decree provided that each party should be permitted to maintain the property in his or her possession at that time.

In 1983 Homer remarried. He retired from his civil service job in July 1984 at approximately age fifty-seven. He began receiving pension benefits in August 1984.

In September 1999 Peggy filed a motion for a "Domestic Relations Order to Partition Plaintiff's Retirement Benefits 50/50." Homer opposed Peggy's motion, arguing that it had not been filed within a "reasonable time," that the issue should have been raised on appeal from the original decree, and that Peggy failed to demonstrate that the pension would have been divided in the first place had its existence been disclosed from the start. After supplemental briefs were submitted by the parties, Standing Master Kath-evine Bachelder held oral argument and then issued a report containing factual findings and legal recommendations regarding Peggy's motion.

In her report, Master Bachelder found that Peggy was entitled to relief only within the parameters of Civil Rule 60(b), which provides the cireumstances under which a court may set aside a final judgment. Finding that the property decree was void for lack of personal jurisdiction, Master Bachelder set it aside pursuant to Civil Rule 60(b)(4). Master Bachelder then found that Peggy's motion was timely despite the passage of seventeen years, and that Homer's defense of laches would not provide him relief from a void judgment. Master Bachelder recommended that a trial be held to divide the parties' marital property, including Homer's pension. In an order dated July 28, 2000, Superior Court Judge Niegje J. Steinkruger adopted Master Bachelder's report and ordered a trial. The trial was held on January 25, 2001.

Following the trial, Master Bachelder issued a second report in which she made recommendations regarding the division of property and retirement benefits. Although Homer alleged that the date of separation was August 1976, Master Bachelder found that the marriage did not terminate as a joint enterprise until November 1982. Further, Master Bachelder suggested that Peggy be awarded fifty percent of the marital portion of Homer's pension which constituted thirty percent of the entire pension. Master Ba-chelder found that Peggy was entitled to pension benefits effective October 1999, the month after the date on which she first filed the complaint, and Master Bachelder recommended that Peggy not be awarded a share of the benefits paid to Homer from August 1984 through September 1999 due to her delay in acting to obtain rights to Homer's pension and Homer's subsequent reliance on that delay. Judge Steinkruger adopted the master's report in full on May 21, 2001.

Homer appeals.

III. STANDARD OF REVIEW

A challenge to the validity of a judgment under Civil Rule 60(b)(4) is strictly a question of law. We review questions of law de novo. We will "adopt the rule of law that is most persuasive in light of precedent, reason, and policy" for questions of law.

We "review[ ] a trial court's findings of fact under a clearly erroneous standard." A finding of fact is clearly erroneous when we are left with a definite and firm conviction that the trial court has made a mistake. We review the equitable allocation of property for abuse of discretion and will not reverse the trial court's decision "unless it is clearly unjust."

IV. DISCUSSION

A. The Trial Court Did Not Err When It Ordered a Trial To Determine the Division of Marital Property.

The trial court adopted the Master's finding that the 1982 property division was void for lack of personal jurisdiction and that Peggy was accordingly relieved from it. Under Civil Rule 60(b)(4), a party may be relieved from a final judgment that is void. Homer argues that the superior court erred in ordering a trial to determine the division of marital property. He claims that once a court rules that a judgment is void, the court may not act affirmatively to impose relief. He further maintains that laches prevents Peggy from altering the property division at this time.

1. The trial court did not err in acting further after setting aside the judgment as void under Rule 60(b)(4).

Homer argues that Rule 60(b)(4) can be used only to set aside a judgment and cannot be the basis for the imposition of affirmative relief. But in setting aside the judgment and ordering a trial for the division of the marital property, the superior court did not grant affirmative relief. Rather, the court ordered a new trial in order to equitably divide the estate in the absence of a legally binding property division The court's actions here are similar to what was suggested in U.S. v. One 1961 Red Chevrolet Impala Sedan when the judgment in that case was set aside as void. Because the court in this case held a new trial on the property division, it did not affirmatively impose relief under Rule 60(b)(4) and,. therefore, its actions were proper and Homer's challenge to them fails.

2. The trial court did not err in denying Homer's laches defense.

Homer next argues that Peggy's motion for relief should be denied because of her delay in filing the motion and the resulting prejudice to him. It is well-accepted that "[plroperty division in a divorce action consists of three steps: (1) determining what property is available for distribution, (2) valuing the property, and (8) allocating the property equitably." In this case, the superior court determined that, aside from Homer's retirement benefits, the marital property was divided equitably and that Homer had acquired thirty years of retirement benefits. The court then looked at the equitable factors to determine to what portion of Homer's benefits Peggy was entitled. In looking at these equitable factors, the court took notice of both Peggy's delay in filing her motion and Homer's failure to explicitly apprise the court of the existence of his retirement benefits before accepting a default divorce. The court concluded that both parties had committed economic misconduct. Consistent with the maxim that a party must do equity to receive equity, the court found that it would be equitable to award Peggy her marital share of Homer's retirement benefits as of the date she filed her motion to set aside the property division. In doing so, the court reasonably accounted for Peggy's delay in bringing her motion. We therefore find that the court did not err in denying Homer's defense of laches to Peggy's motion for relief.

B. The Trial Court Did Not Err in Finding that the Functional Termination of the Marriage Was the November 1982 Divorce Filing.

Homer argues that the court should have dated the functional termination of the marriage at August 1976, when Peggy and their children moved to Colorado. However, after listening to conflicting testimony concerning the state of the marriage after the 1976 move, the court found that the evidence offered more support for the position that the marriage did not terminate until Homer filed for divorce in November 1982. In support of its conclusion, the court pointed to Homer's visits with Peggy. and the children every year, the continued sexual relations between Homer and Peggy until 1981, Homer's efforts to lead Peggy to believe that they would reunite onee he retired, and Homer's economic support of the family. Also before the court was evidence that they each had the power of attorney signed over to the other when Peggy moved to Colorado, that they commingled assets, maintained joint checking accounts, filed joint tax returns, and were jointly responsible for various liabilities. In addition, Homer assisted Peggy and the children in their move from Alaska to Colorado and then from Colorado to Texas, and he continued to tell Peggy that he did not want a divorce even after she and the children moved from Alaska and that he planned to join the family after he retired. In light of Alaska law marking the date of separation as the date when the marriage ceased to function as a joint enterprise, and leaving that determination to the discretion of the trial court on a case-by-case basis, we affirm the superior court's finding that the marriage ended with the 1982 divoree. There is substantial evidence in the record to support the superior court's conclusion that Peggy and Homer maintained a marital relationship until Homer filed for divorcee in 1982 and, as such, the superior court's determination that this was the date of separation is not clearly erroneous.

C. The Trial Court Did Not Err When It Calculated Homer's Qualifying Years for his Pension at Thirty Instead of Thirty-Seven.

Homer argues that he had thirty-seven qualifying years of service for his civil service pension and that Peggy should bear the burden of proving that he did not acquire the thirty-seven years of qualifying service years that he claims he did. The record reflected conflicting evidence on this subject. While Homer testified that he began his civil service employment in 1950 and that he had three years of active military time that counted towards his civil service retirement, he also testified that he did not obtain career status for retirement purposes until sometime between 1953 and 1955. The court resolved this question against Homer, deciding that he did not start accumulating qualifying years until 1955 and crediting him with thirty years of service at the time of his July 1984 retirement.

The only evidence offered by Homer in support of his argument that he had thirty-seven qualifying years is his testimony that he began working in the civil service job in 1950 and that he had three years of active military service. Homer did not explain his testimony indicating that his service did not begin to count towards retirement until between 1958 and 1955, nor did he offer documentary evidence at trial of his military service and how that military service applied to his retirement benefits. Homer claims that because Peggy brought this motion, she should bear the burden of proof on the issue of how many years of qualifying service he had. He argues that Peggy had full access to all of his benefit records and that any ambiguity in the number of qualifying years should be resolved against her. The superi- or court properly rejected these arguments. Peggy brought a motion to set aside the property division, not to challenge the number of years of qualifying service Homer had accrued. We have in the past held that "Tthe party asserting a fact generally bears the burden of proving that fact.... This is particularly true when the party asserting a fact controls the evidence which bears upon that fact." " Thus, for Homer to be credited with thirty-seven qualifying service years, he must provide sufficient evidence to support this conclusion. Homer failed to provide such evidence. Therefore, it was not an abuse of discretion for the superior court to find that Homer had thirty years of qualifying service.

v. CONCLUSION

Because the superior court followed the appropriate procedures after determining that the original 1988 property division was void, and because the findings that the parties separated on November 12, 1982 and that Homer attained thirty qualifying years of service were supported by the record, the superior court's deciéion is AFFIRMED in its entirety.

FABE, Chief Justice, and BRYNER, Justice, not participating.

      . DeVaney v. State, Dep't of Revenue, Child Support Enforcement Div., 928 P.2d 1198, 1199 (Alaska 1996).

      . Krossa v. All Alaskan Seafoods, Inc., 37 P.3d 411, 415 (Alaska 2001).

      . Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979).

      . Am. Computer Inst., Inc. v. State, 995 P.2d 647, 651 (Alaska 2000).

      . Dingeman v. Dingeman, 865 P.2d 94, 96 (Alaska 1993).

      . Green v. Green, 29 P.3d 854, 857 (Alaska 2001).

      . Alaska Rule of Civil Procedure 60(b) provides, in pertinent part:
      On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons:
      ~ (4) the judgment is void[.]

      . The court clearly has the authority to so order the equitable division of the marital property under AS 25.24.160(a)(4), which provides that in an action for divorce, the court may provide for the division of the parties' property, including retirement benefits acquired during the marriage.

      . 457 F.2d 1353 (5th Cir.1972).

      . Id. at 1356 (stating that, once judgment was set aside under Rule 60(b)(4), new proceedings were required for moving party to obtain affirmative relief).

      . Faulkner v. Goldfuss, 46 P.3d 993, 996 (Alaska 2002).

      . See Lundgren v. Nat'l Bank of Alaska, 756 P.2d 270, 276 (Alaska 1987) (stating that "a party seeking equity from another party must 'do equity' only if the benefits received from that party were somehow derived from the equity the party is seeking"); see also Nat'l Bank of Alaska v. J.B.L. & K. of Alaska, Inc., 546 P.2d 579, 589 (Alaska 1976) (stating "the equitable maxim that he who seeks equity must do equity").

      . Hanlon v. Hanlon, 871 P.2d 229, 231 (Alaska 1994).

      . While the court did not make explicit findings on this issue, it did state that the "eighteen years of marriage [should be] divided by thirty years of retirement accrual." From this, we infer that the superior court determined that Homer had thirty years of qualifying service.

      . On appeal, Homer has asked this court to consider a March 15, 1984 computer printout showing that his creditable service in 1984 was estimated at 37.19 years. Because this evidence was not made available to the trial court, we decline to consider it at this time. See B.B. v. D.D., 18 P.3d 1210, 1214 (Alaska 2001) (stating that evidence not presented to the trial court will not be considered by this court on appeal).

      . Sloan v. Jefferson, 758 P.2d 81, 83 (Alaska 1988).


author: COATS, Chief Judge. MANNHEIMER, Judge,

text:
    Eugene Carey VENT, Appellant, v. STATE of Alaska, Appellee.
    No. A-7647.
    Court of Appeals of Alaska.
    April 11, 2003.

      James E. Mclain, Law Office of James E. McLain, Fairbanks, and Robert S. Noreen, Law Office of Robert S. Noreen, Fairbanks, for Appellant.
    W.H. Hawley, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

COATS, Chief Judge.

A jury convicted Eugene C. Vent of see-ond-degree murder, first-degree sexual as-second-degree assault and two counts of first-degree robbery for the assault and robbery of Franklin Dayton and the robbery, sexual assault, and murder of J.H., a fifteen-year-old juvenile. Vent appeals his convictions, arguing that the superi- or court erred in denying his motion to suppress statements he made to the police, in allowing Fairbanks Detective Aaron Ring to testify to certain matters, and, in excluding Dr. Richard A. Leo from testifying at trial as an expert witness. For the reasons set forth below, we affirm Vent's convictions.

Factual background

I. The assoult and robbery of Franklin Dayton

Franklin Dayton attended a wedding reception at the Eagles Hall in Fairbanks, which began on the night of October 10, 1997, and continued into the morning of October 11, 1997. After midnight on October 11, Dayton left the reception to take a walk downtown. As Dayton was walking down First Avenue, a car stopped behind him. Someone from the car tripped Dayton, pushed him down to the ground, stepped on his hand, kicked him in the ribs, and took his money. During the attack, Dayton was told to not look back and was instructed by someone to "give me your fucking money, bitch."

Arlo Olson, who was also attending the wedding reception and standing outside the Eagles Hall facing First Avenue, witnessed Kevin Pease, Marvin Roberts, George Frese and Vent attack Dayton and then get into a car and drive away. Later that night, Olson saw Frese again and noticed that he was limping. Edgar Henry, who was a friend of Vent, Frese, Pease and Roberts, told the police he saw them in Roberts's car on the night of October 10-11.

II. The murder, robbery, and sexual assault of J. H.

J.H. met his mother at her job during the afternoon of October 10, borrowed some money from her, and put it in his wallet. J.H. spent the evening of October 10 with Chris Stone and a third friend, who was babysitting. The boys took some prescription drugs during the evening to get high. After consuming some of the pills, J.H. had a seizure and fell down. J.H. and Stone left the babysitting residence sometime after midnight. The boys parted company in downtown Fairbanks at approximately 1:15 a.m.

At approximately 1:80 a.m., Melanie Durham, who lived in a women's shelter, had been watching television when she stepped outside to have a cigarette. She heard noises coming from the corner of Ninth and Barnette. An obstructed view prevented her from visibly observing what was causing the noise. Durham "heard a really bad smack" followed by several more smacks and then heard a young voice call out "help me, help me." The smacks continued and Durham described them as "calculated," "extremely hard," "horrendous punches." She then heard an angry, deep, slurry, intoxicated, male Native voice yell something. -

At about 2:45 a.m., citizens driving down Ninth Avenue saw J.H. lying partly on the street and partly on the sidewalk near the corner of Ninth and Barnette. J.H.'s jacket was open, his pants were down, and his personal effects were seattered in the street. J.H.'s wallet was not among the items found at the scene and was never recovered. The police observed tire marks at the seene that were similar to the width and distance between the tires on Roberts's car. After one of the citizens called 911, the paramedics responded and took J.H. to the hospital.

A sexual assault examiner, Diane Hill, examined J.H. at the hospital and observed a lot of purplish red swelling and numerous minute tears around his anal verge. Hill also discovered a large, deep, long tear on J.H.'s anus, as well as abrasions on the wall of his rectum, three or four inches inside the anal verge.

About noon on October 11, Frese sought treatment for an injured foot at the hospital. Frese admitted he had kicked someone during a fight. The police subsequently seized the boot Frese was wearing. Fairbanks Police Lieutenant David Kendrick and nurse Julie Klaker compared the tread of Frese's boot with the injury on the left side of J.H.'s head. They found the sole of the boot to be similar to the impressions on J.H.'s head.

J.H. died as a result of the injures. Dr. Franc Fallico performed the autopsy. During the external examination, Dr. Fallico observed multiple separate injuries on J.H.'s head and body. During the internal examination, Dr. Fallico found blood clots on the surface of the brain and hemorrhages in the mid-brain; he attributed J.H.'s death to blunt-foree trauma to his head. He found abrasions inside J.H.'s colon about four inches from his anus. Dr. Fallico also found similarities between the tread pattern of Frege's shoes and the pattern on J.H.'s head.

Franklin Mueller, a fellow inmate of Vent's, testified that Vent told him that on the night J.H. was murdered, Vent, Frese, Pease, and Roberts were driving together in Roberts's car. Mueller further testified that Vent stated that Vent, Frese, Pease, and Roberts went out that night and beat people up. Joshua Bradshaw, another fellow inmate, testified that Vent stated "[wle didn't mean to kick [J.H.] to death." Vent confessed to Detective Aaron Ring that he, Pease, Roberts, and Frese hit and kicked J.H.

Vent claimed at trial that he did not assault Dayton and J.H. Vent contended that Mueller and Bradshaw were not credible. He argued that Detective Ring pressured him into making a false confession by lying to him about the strength of the evidence against him.

The jury rejected Vent's defense. Superi- or Court Judge Ben J. Esch sentenced Vent to a term of imprisonment of 48 years with 10 years suspended. Vent now appeals his convictions. We affirm.

Police interviews

Detective Ring conducted three separate interviews with Vent. In the first interview, Detective Ring interviewed Vent for about two hours. Superior Court Judge Niesje J. Steinkruger found that Vent was warned of his Miranda rights, informed of his right to talk to his parents, and voluntarily waived those rights. But she found that part-way through this first interview, Vent made several ambiguous statements. She stated that these statements could be interpreted as a desire to terminate the questioning, or as a desire not to respond to further questions in a particular area, or that Vent was protesting because Detective Ring did not believe him. She concluded that because it was possible that these statements might have been a declaration of a desire to terminate the questioning, the State had not met its burden of proving that Vent waived his right to remain silent. She therefore suppressed part of the first interview.

Judge Steinkruger concluded that the see-ond and the third interviews were not tainted by Vent's first interview and were therefore admissible. She found that the second interview occurred four or five hours after the first interview. Vent had been allowed to sleep, was again warned of his Miranda rights, and was reminded of his right to have a parent present. Shortly after the interview began, Vent asked to call his mother and was allowed to do so. After he talked to his mother, Vent resumed talking to Detective Ring and made inculpatory statements.

Judge Steinkruger found that the third interview occurred approximately five or six hours after the second interview. Vent had both eaten and slept. He again waived his rights. Between the second and third interviews, Vent had talked to his mother. Judge Steinkruger pointed out that Vent had stated that he had not been coerced or threatened to make statements.

Vent raises several arguments in claiming that Judge Steinkruger erred in failing to suppress the second and third interviews. He first contends that Judge Steinkruger erred in concluding that his statements were voluntary. Factors that impact the voluntariness of the confession include: "the age, mentality, and prior erimi-nal experience of the accused; the length, intensity and frequency of interrogation; the existence of physical deprivation or mistreatment; and the existence of threat or inducement." "The prosecution must prove the voluntariness of the confession by a preponderance of the evidence," and "[when the accused is a juvenile, the state assumes a particularly heavy burden of proof."

Judge Steinkruger found that Vent was 17 years and 11 months old, was a bright young man who was lucid and alert during the interviews, and did not demonstrate any mental impairment. The police questioned Vent in the first interview for about two hours, in the second interview for about an hour and half, and in the third interview for twenty minutes. The second interview occurred approximately four hours after the first interview and took place- after Vent had slept. The third interview occurred approximately five hours after the second interview and after Vent had both slept and eaten. The police had previously arrested Vent for theft and picked up Vent two or three times for being drunk. There was no evidence of physical deprivation, mistreatment, threats, or inducements. Judge Steinkruger found that the police had allowed Vent to contact his mother. She also found that Vent had not attempted to terminate the second and third interviews.

Reviewing the trial court's findings, Judge Steinkruger properly evaluated the external phenomenological facts and inferred the mental state of the accused and its legal significance. Judge Steinkruger's findings of fact were not clearly erroneous and she did not err in finding that the State met its heavy burden and proved the voluntariness of Vent's confession by a preponderance of the evidence. After independently reviewing the record, we conclude that, under the totality of the circumstances, Vent's confessions during his second and third interviews were voluntary.

Vent contends that once Judge Steinkruger determined that he had attempted to terminate the first interview, she should have found that the second and third interviews were tainted by the first interview and should have suppressed them. But the fact that Judge Steinkruger suppressed portions of Vent's first interview did not require her to exclude the second and third interviews. In determining whether to suppress the subsequent interviews, the court needed to determine whether Vent's "decision to submit to the second and subsequent interviews was 'sufficiently an act of free will to purge the ... taint' of the Miranda violation at the first interview." The court was required to "consider a number of factors, including whether Miranda warnings were given before the later statement, the time between the initial illegality and the later statement, the presence of intervening circumstances, and the purpose and flagrancy of the official misconduct."

Over the years, the following factors have [also] been used to assess whether a defendant's subsequent statement is the tainted fruit of a prior illegality: the purpose and flagrancy of the initial illegal act, the amount of time between the illegal act and the defendant's subsequent statement, the defendant's physical and mental condition at the time of the subsequent statement, whether the defendant remained in custody or was at liberty during this interval, whether the defendant had the opportunity to contact legal counsel or friends during this interval, whether the subsequent interview took place at a different location, whether the defendant's interrogators were the same officers who committed the prior illegal act, whether the evidence obtained from the prior illegal act affected the defendant's decision to submit to a subsequent interview, whether the police used Hes or trickery to influence the defendant's decision, and whether there were other intervening events that affected the defendant's decision."

Judge Steinkruger applied these standards and concluded that the statements that Vent made in the second and third interviews were sufficiently separate and were acts of free will that purged any violation of his right to remain silent that had occurred during his first interview. She found that Detective Ring's failure to cease pursuing the first interview, or at least clarify any ambiguities in Vent's statements, was not a flagrant or purposeful violation. She concluded that it had been a very close question whether to suppress. She found that several hours had lapsed between the first and second interview and between the second and third interviews. She found that Vent had opportunities to sleep, talk to his mother, and eat. She found that Detective Ring had not threatened or intimidated Vent. She did find that the police had misled Vent about the strength of the case against him in order to induce him to talk. But she concluded that this police tactic was not unusual or flegal and that the tactics did not overbear Vent's will.

Judge Steinkruger's findings are supported by the record and support her conclusion that Vent's second and third interviews were admissible. Our independent review of the record supports her conclusion.

Detective Ring's testimony

Vent contends that the court erred in permitting Detective Ring to testify that one of the reasons he returned to question Vent in the second interview was because he did not believe Vent's statement in the first interview that Michael Ludenbocker and Mike Williams had been involved in an altercation near where J.H. had been attacked. He argues that it was improper for Ring to testify that Vent had not been truthful and that this statement was an improper comment on Vent's credibility.

But reading the transcript as a whole reveals that the purpose of the exchange was not to prove that Vent was a dishonest person, but rather to illustrate the reasons why Detective Ring decided to interrogate Vent a second time. Specifically, after the initial interrogation, Detective Ring investigated Vent's claim that he, Ludenbocker, and Williams were involved in a fight that night. Since Detective Ring's investigation revealed that Ludenbocker and Williams could not have been involved in the fight as Vent claimed, Detective Ring went back to interview Vent a second time and confront him with his misrepresentation.

Judge Esch did not err in allowing this testimony. The testimony was permissible to allow Detective Ring to show one of the reasons why he returned and interviewed Vent a second time. Vent had contended that Detective Ring had repeatedly questioned and pressured Vent, ultimately coercing his confession. Detective Ring's testimony was admissible to show one of the reasons why he continued to interrogate Vent. Certainly, in some situations it would be unduly prejudicial for an officer to testify regarding the truthfulness of a defendant. But, in this case, it is difficult to see how Vent was prejudiced by Ring's testimony. During the second and third interviews, Vent himself testified that he had not been truthful in his statements about Ludenbocker and Williams. In addition, Vent later testified that he had "made up" the information about Ludenbocker and Williams. Therefore, the fact that Vent had not been truthful in this part of his first statement was uncontested. Judge Esch could properly conclude that Detective Ring's explanation that one reason he returned to talk to Vent was that he did not believe Vent's story about Ludenbocker and Williams was admissible.

In support of his contention that Detective Ring pressured and coerced him into confessing, Vent's trial counsel cross-examined Detective Ring on the techniques that he had used to question Vent. Detective Ring admitted that he had misrepresented to Vent the evidence against him. He admitted that he had told Vent that Vent's clothes had blood splatter on them when this evidence did not exist. Vent's attorney suggested that this technique was coercive. In response, Detective Ring stated, "It's quite common. It doesn't make innocent people confess. It's a technique used by police officers all over the country for years, even when you were [a] prosecutor, Sir, and you didn't seem to have a problem with it then." Vent's counsel did not object and continued with his cross-examination.

On appeal, Vent contends that, although he did not object, the trial court committed plain error in allowing Detective Ring's statement. But we are to find plain error only when an error is "so obvious that it must have been apparent to a competent judge and a competent lawyer even without an objection and . so substantially prejudicial that failing to correct it on appeal would perpetrate a miscarriage of justice." Had Vent's attorney moved to strike Detective Ring's statement, it would probably have been granted. But Vent's counsel chose not to take this action. Counsel may have concluded that Detective Ring's arguably defensive statement tended to help Vent's case. We do not find plain error.

Whether the trial court erred in refusing to allow Vent to call Dr. Richard Leo as an expert witness on police interrogation practices and the risk of false confessions

A major portion of Vent's defense was his contention that Detective Ring pressured him into making false statements in which Vent implicated himself. Vent contends that Judge Esch erred in ruling that Dr. Richard Leo, an expert witness in the field of police interrogation practices, could not testify about the psychology of confessions and how police interrogation techniques can cause innocent people to confess to crimes they did not commit.

Dr. Leo received a bachelor's degree in sociology from the University of California at Berkeley, a masters degree in sociology from the University of Chicago, a J.D. from Berkeley, and a Ph.D in jurisprudence and social policy from Berkeley. He wrote his dissertation on the history, psychology, and law of police interrogation practices in the 20th century. Dr. Leo is currently an assistant professor of criminology and an assistant professor of psychology at the University of California at Irvine. He has studied and conducted research in the field of police interrogation, as well as taught classes on police interrogation practices, confessions, and the eriminal justice system. Dr. Leo has published numerous peer reviewed articles on police coercion, persuasion, and interrogation. He is also familiar with various case studies in which a person confesses to a crime that was impossible for them to have committed.

Based on his education and research, Dr. Leo was going to testify, inter alia, that:

there is the common belief that people do not make unreliable or false statements unless they're tortured or mentally ill. And I would explain that that-that's not the case, sometimes people do make false statements, even if they're not physically tortured or mentally ill, that there-there is psychological research that explains how certain techniques can lead people to make the decision to confess whether they're guilty or innocent. And that there are certain principles of analysis that researchers use to evaluate whether or not a statement is likely reliable or likely unreliable....
[The testimony would explain] how interrogation works to produce confessions, particular techniques and what their impact can be on someone's decision making.

Alaska Rule of Evidence 702(a) states that:

[1i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

"To be admissible, expert testimony must (1) address an issue beyond the common knowledge of the average layman, (2) be presented by a witness having sufficient expertise, and (8) assert a reasonable opinion given the state of the pertinent art or scientific knowledge." Pursuant to Rule 702, "an expert is permitted wide latitude to offer opinions, including those that are not based on firsthand knowledge or observation." "The general test regarding the admissibility of expert testimony is whether the jury can receive 'appreciable help' from such testimony." One of the purposes of admitting expert testimony is "to inform the court and jury about affairs not within the full understanding of the average man." ' "When the subject of inquiry is one which common knowledge would enable one to decide, it is not a proper subject for expert testimony. It is for the trial court in the exercise of a sound discretion to determine whether expert testimony is appropriate under the cireumstances of the case."

The touchstone of admissibility under Rule 702 is helpfulness to the jury. An expert's opinion is helpful only to the extent the expert draws on some special skill, knowledge, or experience to formulate that opinion; the opinion must be an expert opinion (that is, an opinion informed by the witness' expertise) rather [than] simply an opinion broached by a purported expert.!

In Daubert v. Merrell Dow Pharmaceuticals, Inc., the United States Supreme Court established a two-part test for determining whether to admit expert testimony, which the Alaska Supreme Court adopted in State v. Coon. "Faced with a proffer of expert scientific testimony, then, the trial judge must determine at the outset, pursuant to Rule 104(a), whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue." Daubert sets out a number of factors for determining whether scientific evidence is valid. The factors are whether the expert's reasoning: (1) can be and has been tested; (2) has been subject to peer review; (8) has a known or potential rate of error; and (4) generally has been accepted by the scientific community.

Expert testimony should be admitted only if it is both reliable and relevant. The Unites States Supreme Court has stated that "Daubert's general holding-setting forth the trial judge's general 'gatekeeping' obligation-applies not only to testimony based on 'scientific knowledge, but also to testimony based on "technical and 'other specialized' knowledge." Therefore, the Court stated that the Daubert factors, designed for the admission of scientific evidence, must be applied flexibly and with regard to the type of testimony being offered. However as at least one commentator has explained, "[T]he upshot is that although the Dawbert Court may have selected the optimal test for the admissibility of scientific evidence, that test is useless as a criterion for the admissibility of other types of expert testimony."

Where courts are faced with the issue of admitting non-scientific expert testimony, it is difficult to set out objective standards for when such testimony is admissible. Nonscientific opinions are not based on experiments that can be replicated and tested. Yet our society relies on these experts, such as an attorney to testify about the standard of practice in a particular field, or an auto mechanic to testify about the function and repair of an automobile. Determining whether these experts, who testify from experience rather than scientific experimentation, will be helpful to the jury can be a challenging question. But the trial court has great discretion in exercising its gatek-eeping function to determine whether expert testimony based on experience should be admissible.

In the present case, after hearing Vent's offer of proof, Judge Esch determined that Dr. Leo's testimony would not appreciably aid the jury in determining whether Vent made a false confession. He indicated that he was troubled by the fact that there was no way to quantify or test Dr. Leo's conclusions that certain techniques might lead to false confessions. He also concluded that jurors would be aware that some people do make false confessions and that this proposition could be developed by questioning and argument.

Reviewing the law in other jurisdictions reveals that there is some support for and against the admissibility of false confession expert testimony. For example, in United States v. Hall, the Seventh Cireuit concluded that the trial judge had excluded false confession expert testimony by improperly applying the Dawbert standards On remand, the district court admitted testimony similar to Dr. Leo's. We would emphasize, however, that in that case, the appellate court did not determine that the failure to admit such testimony was error. Furthermore, at least as set out in the district court's decision in Hall, the proposed testimony in that case appears to have been more probative than the offer of proof in Vent's trial. Various other courts have upheld the admissibility of false confession expert testimony. But in numerous other cases, appellate courts have concluded that a trial court does not abuse its discretion in refusing to admit this testimony.

After a close examination of the science and court decisions in this area, one scholar has concluded:

The unusual nature of the social sciences like psychology and social psychology may require a somewhat lower standard of serutiny than the "hard" sciences like physics or chemistry, but Daubert remains a valid guideline for most scientific evidence, both hard and soft. For too long the behavioral sciences and the criminal justice system have neglected the phenomenon of false confessions. Professors Gud-jonsson, Kassin, Wrightsman, Leo, and Ofshe, have opened a door on a new and little understood aspect of the interrogation process. This is not "voodoo science" but is not yet ready for "prime time" either.
The false confession theory needs further study and refinement. Consequently, the admission of expert testimony based on this new theory is premature and therefore unreliable. Currently, the empirical base that supports the theory has too many unanswered questions, no known error rate, and just one laboratory experiment to back it up. This foundation cannot support reliable conclusions just yet.
Gudjonsson, Leo, and Ofshe present haunting tales that clearly establish the existence of false confessions. While every case of wrongful conviction from a false confession is a travesty of justice, these cases cannot be viewed in the abstract. Many of the tactics used by police that create false confessions typically result in true confessions as well.... A lack of corroborating evidence may also be a sign of a weak case or a lack of evidence, but it does not necessarily mean the confession was false. To encourage further study in this area, courts should exercise their discretion as the "gatekeepers" of expert testimony and find the psychology of false confessions unreliable at this time.
Still, the admissibility of expert testimony based on the psychology of false confessions cannot be ruled out. Two federal appellate courts have found this testimony admissible and the state courts are split on the issue of the reliability of this theory. In light of the Kumho Tire Co. case, no trial court judge should fear the appellate courts on the reliability issue. Almost every trial judge who found this evidence reliable or unreliable has been upheld on appeal. Few have been found to abuse their discretion.[]

The case law and law review commentary is split over whether to admit false confession expert testimony. Our review of the authorities and the record convince us that there is merit to Judge Eseh's questions concerning Dr. Leo's methodology and whether his testimony would appreciably aid the jury. We conclude that whether to admit Dr. Leo's testimony and the determination whether his testimony would appreciably aid the jury in this case is a question that fell within the broad discretion reserved to the trial court. We accordingly conclude that Judge Esch did not err in refusing to admit Dr. Leo's testimony.

The convictions are AFFIRMED.

MANNHEIMER, Judge,

concurring.

I agree that Judge Esch acted within his proper discretion when he refused to allow Vent to present the expert testimony of Dr. Richard Leo. However, unlike my colleagues, I do not believe that this question hinges on the Daubert-Coon rule governing the admission of scientific testimony. Rather, Judge Esch's ruling should be upheld on the basis he himself articulated: Dr. Leo's proposed testimony would not appreciably aid the jury because it was based on common sense rather than scientific expertise.

Dr. Leo was extensively examined (outside the presence of the jury) concerning his proposed testimony. He stated that, if allowed to testify, he wished to dispel "the common belief that people do not make unreliable or false statements unless they're tortured or [are] mentally il." Dr. Leo continued:

I would explain that that's not the case. Sometimes, people do make false statements, even if they're not physically tortured or mentally ill.... There is psychological research that explains how certain [interrogation] techniques can lead people to make the decision to confess, whether they're guilty or innocent. And ... there are certain principles of analysis that researchers use to evaluate whether or not a statement is likely reliable or likely unreliable.

Dr. Leo then explained that, "with regard to the question of [a confession's] reliability,

what researchers look at is the post-admission [narrative] that the suspect gives what the suspect says after the words, "I did it." What we call the "post-admission narrative." [We examine] whether that post-admission narrative fits the facts of the crime and demonstrates that the suspect possesses actual knowledge [of what the suspect is describing]. If the suspect is giving a truthful and reliable confession, one would expect the confession to fit the facts of the crime ... [and] to lead to new evidence where applicable, ... derivative evidence, [and] to reveal details that were only known by the police [and] the true perpetrator, ... not public knowledge, and [one would also expect the confession] to be corroborated by physical and medical evidence.

Later, during cross-examination by the prosecutor, Dr. Leo summarized his two areas of expertise. First, Leo told the court that he had investigated, and could testify about, the techniques that are effective in getting people to admit things that are against their own self-interest. Second, Leo told the court that he had investigated, and could testify about, the principles that allow researchers to determine whether the confession is reliable or not-the same principles that he described in the excerpt just quoted.

With regard to Dr. Leo's first area of expertise-his study of interrogation techniques-Leo did not claim the ability to tell whether specific interrogation techniques had caused an innocent person to falsely confess, nor did Leo claim that he could discern when specific interrogation techniques had overborne a suspect's will. He clarified that "[his] expertise is not on psychological mental states, but on the interrogation techniques and tactics, and their influence on decision-making." Leo explained that he was not an expert on the mental state of the confessing suspect-not able to identify whether a particular suspect was more susceptible or less susceptible to interrogation techniques, or whether a particular suspect was atypically influenced by the suggestions of his interrogators.

Rather, Leo told the court, his area of expertise was identification of the techniques that interrogators generally employ to convince suspects to confess. Leo had no opinion to offer as to whether these techniques led to truthful or false confessions. In fact, he told the court:

Dr. Leo: Even if an interrogation is [overtly] coercive, it still could produce a true confession. And so one can't infer from the [interrogative] techniques that are used, ... proper or improper, whether or not the confession is false. The only way to do [that] is to objectively analyze whether the suspect demonstrates actual knowledge [of the crime] and how [the suspect's narrative] fits with the record or doesn't fit with the record.

In sum, Dr. Leo told the court that he did not intend to express an opinion as to whether Vent did or did not participate in the homicide, or whether Vent was telling the truth or speaking falsely when he made his statements to the police. Instead, Dr. Leo proposed to acquaint the jury with the principles he had described for evaluating the truthfulness or reliability of a confession.

It is true that, in response to a question from Vent's attorney, Dr. Leo agreed that "there are scientifically known, provable ways to verify that a statement made to [the] police is true, accurate, and reliable." But Leo was speaking only of the principles he had enunciated before: the "fit" between the person's confession and the known facts of the crime. This became obvious when Leo offered examples of how his principles might be used to show that a confession was false. Leo offered the following examples: (1) a suspect confesses to a homicide, but later the purported victim shows up alive; (2) a suspect confesses to a crime, but later investigation shows that it would have been physically impossible for the suspect to have committed the crime-as, for instance, where the suspect was in prison or in another state at the time of the crime; and (8) a suspect confesses to a crime, but DNA analysis later shows that the suspect is definitely not the perpetrator.

At this point, Judge Esch asked Dr. Leo if there were other factors, besides the "fit" of the suspect's narrative with the facts of the case, that were relevant to assessing the truthfulness or reliability of a confession. Leo answered, "Not really."

After hearing this, Judge Esch wondered aloud whether Leo's proposed testimony would be of appreciable help to the jury, since his analysis appeared to be based on common sense rather than academic study or research. A few minutes later, after he had heard the arguments of the parties, Judge Esch formally ruled that Leo would not be allowed to testify concerning his technique for evaluating the truthfulness or reliability of a confession, since this technique amounted to nothing more than testing the details of the confession against the known facts. Judge Esch concluded that this was not a proper subject for expert testimony because the jurors would understand this without explanation from an expert.

After hearing a little more voir dire, Judge Esch preliminarily ruled that Dr. Leo would be allowed to testify concerning his study of police interrogation techniques, "but that alone." The judge explained that he did not want Leo "to go into whether ... those [methods] are correct or incorrect, or the value of [the resulting] confessions-[whether they are] reliable or unreliable."

Under Alaska Evidence Rule 702(a), expert testimony is allowed when it will "appreciably assist the trier of fact." The test is "[whether] the witness' special knowledge [willl assist the trier of fact to understand the evidence or determine a fact in issue." And, as the Alaska Supreme Court stated in D.H. v. State, "[the decision to admit opinion testimony into evidence lies within the sound discretion of the trial judge and is reviewable only for abuse of discretion."

Dr. Leo has earned university degrees (including a law degree) and, for several years, he has focused his studies on police interrogation techniques. But Dr. Leo's academic and research achievements are not determinative of whether Judge Esch should have allowed him to testify. The real question is whether Dr. Leo's proposed testimony was based on analysis or research that was beyond the ken of the normal juror. A witness may be an "expert" in the sense that they have specialized training or experience not shared by most people, but, under Evidence Rule 702(a), the proponent of the witness's testimony must further show that their proposed testimony is in fact grounded on this specialized training or experience.

Here, Judge Esch concluded that most of Dr. Leo's proposed testimony was not based on specialized training or experience, but rather was based on the common-sense notion that the truthfulness or reliability of a defendant's confession should be tested by seeing how the defendant's account meshed with the facts of the case. Judge Esceh's conclusion is firmly supported by the record of Dr. Leo's voir dire.

We addressed a similar situation in New v. State, 714 P.2d 378 (Alaska App.1986). The defendant in New offered an expert witness who would testify about the "point of no return" that a truck driver (or any motorist) would ultimately reach when confronted with a traffic emergency-the point at which the driver must commit to a particular course of action and hope for the best. The trial judge refused to allow the defendant to offer this testimony, and this Court upheld the trial judge's decision. We said:

We perceive no abuse of discretion in the present case. At best, [this witness's] testimony would have been cumulative and only marginally relevant. New's point of no return defense was based on a common sense notion, which is readily capable of being understood by lay persons. [The proposed witness's] testimony concerning the options open to a truck driver who goes beyond the point of no return would have added little to the understanding that any juror could reasonably be expected to have without the need for expert testimony.

New, 714 P.2d at 380.

Based on Dr. Leo's voir dire, Judge Esch could reasonably conclude that Dr. Leo's principles for determining the truthfulness or reliability of a confession amounted to nothing more than the common-sense notion that a confession must be tested against the known facts. This being so, Judge Esch did not abuse his discretion when he ruled that Leo's proposed testimony on this subject was not admissible under Evidence Rule 702(3).

For these reasons, I join my colleagues in upholding Judge Esch's decision to substantially restrict Dr. Leo's testimony.

      . AS

      . AS 11.41.410(a).

      . AS 11.41.210(a).

      . AS 11.41.500(a).

      . Sprague v. State, 590 P.2d 410, 414 (Alaska 1979) (quoting Brown v. United States, 356 F.2d 230, 232 (10th Cir.1966)).

      . Beavers v. State, 998 P.2d 1040, 1044 (Alaska 2000).

      . Halberg v. State, 903 P.2d 1090, 1097-1100 (Alaska App.1995).

      . Id. at 1097 (quoting Brown v. Illinois, 422 U.S. 590, 602, 95 S.Ct. 2254, 2261, 45 L.Ed.2d 416 (1975)).

      . Murray v. State, 12 P.3d 784, 790 (Alaska App.2000).

      . Halberg, 903 P.2d at 1098.

      . See Sakeagak v. State, 952 P.2d 278, 282 (Alaska App.1998).

      . See Flynn v. State, 847 P.2d 1073, 1075-176 (Alaska App.1993).

      . Potts v. State, 712 P.2d 385, 390 (Alaska App. 1985).

      . United States v. Vallejo, 237 F.3d 1008, 1019 (9th Cir.2001).

      . Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592, 113 S.Ct. 2786, 2796, 125 L.Ed.2d 469 (1993).

      . United States v. Amaral, 488 F.2d 1148, 1152 (9th Cir.1973).

      . Id. at 1152-53 (quoting Farris v. Interstate Circuit, 116 F.2d 409, 412 (5th Cir.1941)).

      . Cohen v. W. Hotels, Inc., 276 F.2d 26, 27 (9th Cir.1960) (quoting Duff v. Page, 249 F.2d 137, 140 (9th Cir.1957) (concluding that a jury can determine, without expert assistance, whether the installation of carpet caused the edge of a rug to wrinkle)).

      . TRW Title Ins. Co. v. Sec. Union Title Ins. Co., 887 F.Supp. 1029, 1031 (N.D.Ill.1995) (quoting United States v. Benson, 941 F.2d 598, 604 (7th Cir.1991) and finding that expert "opinion is based solely on deposition transcripts and exhibits," court excluded expert opinion "because it [did] not rely on any expertise but [was] comprised of inferences from the record that [the expert was] no more qualified than the jury to draw"); see also City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 565 (11th Cir.1998) (noting under facts of case that "the trier of fact is entirely capable of determining whether or not to draw such conclusions without any technical assistance from ... experts"); Jetcraft Corp. v. Flight Safety Int'l, 16 F.3d 362, 366 (10th Cir.1993) (holding that "the district court properly prohibited plaintiffs' expert from doing what the jury could do just as well on its own, i.e., infer the presence or absence of negligence from the circumstantial evidence adduced at trial").

      . Daubert, 509 U.S. at 592, 113 S.Ct. at 2796.

      . 974 P.2d 386, 402 (Alaska 1999).

      . FRE. 104(a) (Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court.... In making its determination it is not bound by the rules of evidence except those with respect to privileges."); also A.R.E. 104(a) (stating the identical Alaska rule).

      . Daubert, 509 U.S. at 592, 113 S.Ct. at 2796 (footnotes omitted).

      . Id. at 593-94, 113 S.Ct. at 2796-97.

      . Id.

      . Id. at 589, 113 S.Ct. at 2795.

      . Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167, 1171, 143 L.Ed.2d 238 (1999).

      . Id. at 150, 119 S.Ct. at 1175.

      . Edward J. Imwinkelried, The Next Step After Daubert: Developing a Similarly Epistemological Approach to Ensuring the Reliability of Nonscientific Expert Testimony, 15 Cardozo L.Rev. 2271, 2285 (1994).

      . See Kumho Tire, 526 U.S. at 141, 119 S.Ct. at 1171.

      . Imwinkelried, supra, at 2284-85.

      . See id. at 2293-94.

      . 93 F.3d 1337 (7th Cir.1996).

      . Id. at 1346.

      . 974 F.Supp. 1198, 1204-05 (C.D.Ill.1997), aff'd, 165 F.3d 1095 (7th Cir.1999).

      . See, eg., United States v. Shay, 57 F.3d 126, 129-30 (1st Cir.1995) (finding trial court erred in excluding expert testimony regarding defendant's mental condition that caused him to give false confession); United States v. Raposo, 1998 WL 879723, at 5-6 (S.D.N.Y. Dec.16, 1998) (admitting expert testimony on false confessions); Callis v. State, 684 N.E.2d 233, 239 (Ind.App.1997) (affirming trial court's decision to admit, on limited grounds, expert witness testimony regarding police interrogation tactics); State v. Buechler, 253 Neb. 727, 572 N.W.2d 65, 72-74 (1998) (holding that the trial court committed prejudicial error when it excluded expert testimony on false confessions); State v. Baldwin, 125 N.C.App. 530, 482 S.E.2d 1, 5 (1997) (holding that the trial court erred in excluding expert witness testimony that police interrogation tac» tics made defendant susceptible to giving a false confession).

      . See, eg., United States v. Griffin, 50 M.J. 278, 284 (U.S.A.F.1999) (holding that testimony of defense expert on false confessions properly excluded as not sufficiently reliable); State v. Cobb, 43 P.3d 855, 869 (Kan.App.2002) (concluding that Dr. Leo's testimony invaded the province of the jury and that argument and cross-examination were sufficient to illicit problems with police interrogation techniques); State v. Tellier, 526 A.2d 941, 944 (Me.1987) (affirming trial court's ruling that false confession expert testimony would not be of assistance to the jury); State v. Davis, 32 S.W.3d 603, 608-09 (Mo.App.2000) (affirming the trial court's decision to exclude Dr. Leo's testimony on the ground that the testimony invaded the province of the jury); State v. Free, 351 N.J.Super. 203, 798 A.2d 83, 95-96 (2002) (reversing trial court's ruling that admitted expert false confession testimony); Green v. State, 55 S.W.3d, 633, 640 (Tex.App.2001) (affirming trial court's decision excluding expert's false confession testimony).

      . Major James R. Agar, II, The Admissibility of False Confession Expert Testimony, 1999 Army Law 26, 42-43 (1999); see also Paul G. Cassell, The Guilty and the Innocent: An Examination of Alleged Cases of Wrongful Conviction from False Confessions, 22 Harv. J.L. & Pub. Pol'y 523 (1999) (criticizing Dr. Leo's methodology).

      . Leo proposed to give the following testimony concerning police interrogation techniques: The basic interrogation technique used by police is first to make the suspect feel that they are "trapped" or that their situation is hopeless; then, the police make the suspect feel that they can improve their situation if they confess. Thus, even though a confession is generally perceived to be against the confessing person's self-interest, the suspect begins to view the confession as actually promoting their self-interest. In instances where the suspect denies any memory of the crime, the police sometimes employ an alternative interrogation technique, which is to confront the suspect with physical evidence and/or the reports of other witnesses, attempting to convince the suspect that, though he may not remember it, he must have committed the crime.

      . Coburn v. Burton, 790 P.2d 1355, 1358 (Alaska 1990), quoting D.H. v. State, 561 P.2d 294, 297 (Alaska 1977).

      . Shepard v. State, 847 P.2d 75, 80 (Alaska App. 1993), quoting Norris v. Gatts, 738 P.2d 344, 350 (Alaska 1987).

      . 561 P.2d 294, 297 (Alaska 1977).