author: HILL, Chief Justice.

text:
    2003 WY 124
    Henry MASCARENAS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 01-225.
    Supreme Court of Wyoming.
    Sept. 30, 2003.

      Representing Appellant: Kenneth M. Ko-ski, State Public Defender; Donna D. Do-monkos, Appellate Counsel; and Tina N. Ke-rin, Senior Assistant Appellate Counsel.
    Representing Appellee: Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; and D. Michael Pauling, Senior Assistant Attorney General.
    Before HILL, C.J., and GOLDEN, LEHMAN, and VOIGT, JJ; and BURKE, | D.J.
   HILL, Chief Justice.

[T1] Henry Mascarenas (Mascarenas) challenges his conviction for felony interference with a peace officer in violation of Wyo. Stat. Ann. § 6-5-204(b) (LexisNexis 2008) on the grounds that there was insufficient evidence that the police officer was engaged in the lawful performance of his official duties or that the officer suffered bodily injury. He also claims that the State failed to disclose material, exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and Kerns v. State, 920 P.2d 632 (Wyo.1996). We find sufficient evidence in the record to support the conviction and conclude that Mascarenas has failed to demonstrate a Brady violation. We affirm.

ISSUES

[42] Mascarenas states the following issues:

I. Was [Mascarenas's] arrest unlawful, as the police had no probable cause to arrest [him] (which was admitted by the charging officer); and as a result, was there insufficient evidence to con-viet [him]?
II. Was there insufficient [evidence] to convict [Masearenas] as the alleged victim/officer did not suffer "physical pain"?
IIL. Did the State fail to disclose exeulpato-ry evidence, warranting reversal?

The State condenses the issues into two:

I. Was the evidence presented by the State sufficient to support [Mascare-nas's] conviction?
II. Did the State fail to disclose material exculpatory evidence?

FACTS

[13] The main issue Mascarenas raises in this appeal is whether or not the evidence is sufficient to sustain his conviction for interference with a peace officer. When considering claims related to the sufficiency of the evidence, we review the record:

[assuming] that the evidence favoring the prevailing party is true, disregard the evidence favoring the unsuccessful party, and give the prevailing party the benefit of every favorable inference that we may reasonably draw from the evidence.

Howard v. State, 2002 WY 40, ¶ 29, 42 P.3d 483, 129 (Wyo.2002) (quoting Lucero v. State, 14 P.3d 920, 924 (Wyo.2000)). In assessing the sufficiency of the evidence, we neither reweigh the evidence nor re-examine the credibility of the witnesses. Curl v. State, 898 P.2d 369, 375 (Wyo.1995).

[14] On December 31, 2000, the Rawlins Police Department received a call from an unknown person that a fight between Mas-carenas and the bartender was in progress at the Wyoming Bar. The caller specifically identified Mascarenas by name. When the police arrived, there was shattered glass on the floor from a neon sign. It was later determined that the sign had broken when Mascarenas had stumbled into it while the bartender was unsuccessfully attempting to escort him from the premises. The officers spied Mascarenas standing by the bar engaged in a heated verbal argument with the bartender. Officer Davis asked the bartender what was going on and was told that Mascarenas had been asked to leave because of his intoxication but that he had refused to exit the premises.

[15] Officer Davis and Officer Grauber-ger asked Mascarenas to step outside and talk to them. Mascarenas ignored the officers and pulled away when Officer Davis attempted to grab his arm to escort him outside. Mascarenas then gripped the bar and refused to move. Two additional officers had arrived and they, along with Officer Grauberger, pried Mascarenas's fingers from the bar and took him to the floor to cuff his hands behind his back. At that point, Officer Davis informed Mascarenas that he was under arrest for "fighting in public."

[16] Officer Grauberger began to search Mascarenas for weapons. The officer placed Mascarenas's personal items, such as his cigarettes and wallet, on the floor as he proceeded with the search. This apparently upset Mascarenas who responded by stomping on his cigarettes and saying, "Here are my cigarettes, here are your balls," whereupon Mascarenas kneed Officer Grauberger in the groin. In response, the officers took Mas-carenas to the floor again and placed him in leg restraints.

[T7] Mascarenas was charged with one count of intentionally causing bodily injury to a peace officer engaged in the lawful performance of his official duties in violation of Wyo. Stat. Ann. § 6-5-204(b) (LexisNexis 2008). After a trial, the jury returned a guilty verdict.

DISCUSSION

[18] Mascarenas challenges the sufficiency of the evidence supporting two elements of interference with a peace officer. In his initial claim, Masearenas contends that the evidence does not support a conclusion that the officer was engaged in the lawful performance of his official duties when Mas-carenas kneed him in the groin. Mascare-nas's argument is predicated on the contention that his arrest was not supported by probable cause. During the course of the encounter at the bar, Mascarenas was arrested when he refused to accompany the police officers outside for "fighting in public." The crime of "fighting in public" is defined at Wyo. Stat. Ann. § 6-6-101 (LexisNexis 2008) as:

A person commits a misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both, if, by agreement, he fights with one (1) or more persons in public.

Mascarenas points out that there was no evidence that there was any agreement between him and the bartender to fight in public. Accordingly, he contends that there was no probable cause to arrest him and that the actions taken by the police were not in the "lawful performance" of their duties.

[19] The State counters that Mascarenas unreasonably assumes that Officer Davis was referencing § 6-6-101 when the officer announced that Masearenas was under arrest for "fighting in public." The State argues that aspects of Mascarenas's conduct encompassed in the phrase, "fighting in public," could be construed to justify Mascarenas's arrest "for not only a variety of potential but unknown municipal offenses, but also for a number of statutory crimes." Later, the State suggests that Mascarenas's conduct supported probable cause for an arrest for: (1) simple battery in violation of Wyo. Stat. Ann. § 6-2-501(b) (LexisNexis 2008) for unlawfully touching another in a rude, insolent or angry manner; (2) property destruction pursuant to Wyo. Stat. Ann. § 6-8-201(a) (LexisNexis 2003) for knowingly defacing, injuring or destroying another's property without his consent; and (8) for breach of the peace in violation of Wyo. Stat. Ann. § 6-6-102(a) (LexisNexis 2008) for disturbing the peace by using threatening, abusive or obscene language or violent actions. In effect, the State argues that the officer's statement that Mascarenas was being arrested for "fighting in public" is more of a de-seription of conduct rather than a reference to a specific offense.

[110] Our discussion begins with a review of the standards for determining whether or not a warrantless arrest is justified by probable cause:

This court also has defined probable cause as " 'the facts and circumstances within the peace officer's knowledge and of which he had reasonably trustworthy information * * * sufficient to warrant a reasonably cautious or prudent man to believe that the person arrested has committed * * * an offense (emphasis added)" " Ostrowski v. State, 665 P.2d 471, 476 (Wyo.1983); Neilson [v. State, 599 P.2d 1326 (Wyo.1979), cert. denied, 444 U.S. 1079, 100 S.Ct. 1031, 62 L.Ed.2d 763 (1980) ]. See Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879, reh. denied, 338 U.S. 839, 70 S.Ct. 31, 94 L.Ed. 513 (1949). It is recognized that the standard is an objective one which is not subject to police discretion, Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964), but, even so, the matter of probable cause "is to be viewed from the vantage point of a prudent, reasonable, cautious police officer on the seene at the time of the arrest guided by his experience and training." United States v. Davis, 458 F.2d 819, 821 (D.C.Cir.1972). The experience and expertise possessed by the arresting officer is to be taken into account. United States v. Ortiz, 422 U.S. 891, 95 S.Ct. 2585, 45 L.Ed.2d 623 (1975); Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948).
The facts and circumstances which justify a determination that probable cause was present must amount to more than mere suspicion, but they need not rise to the level of proof of guilt, nor even to the level of prima facie evidence of guilt. Ostrowski; Raigosa v. State, 562 P.2d 1009 (Wyo.1977); Brinegar. The determination of whether the standard was met must be made upon an evaluation of the record. Ostrowski; Neilson. In applying the standard, we evaluate the record, with a practical view using good sense. Vrooman v. State, 642 P.2d 782 (Wyo.1982).

Jandro v. State, 781 P.2d 512, 518 (Wyo.1989).

[T1l]l We agree with the State's analysis and conclude that probable cause existed justifying the warrantless arrest of Mascarenas. At the time of the arrest, Officer Davis was in possession of the following information: An anonymous phone call had reported a fight between the bartender and Mascarenas, who was specifically identified by name; upon arrival, Mascarenas was observed standing by the bar engaged in what appeared to be a heated verbal exchange with the bartender, and there was a broken neon sign and glass on the floor. When the officers indicated to Mascarenas that they wished to speak with him outside, Mascare-nas refused to comply and physically resisted any effort to remove him from the premises. As noted above, we review a warrantless arrest based upon the entire circumstances "viewed from the vantage point of a prudent, reasonable cautious police officer on the scene at the time of the arrest guided by his experience and training" with our evaluation being guided by "a practical view using good sense." -It is obvious from the facts that we have set out from the record that the officer's reference to "fighting in public" could not have been referring to the statutory offense prohibiting agreements to fight in public. The only rational explanation for the officer's statement is that suggested by the State: The officer was describing conduct rather than the specific offense.

[¥12] Based upon our review of the record, there was, at a minimum, probable cause to arrest Masearenas for breach of the peace. Probable cause could be found here for an arrest based upon: (1) the phone call alleging that Mascarenas was engaged in a physical altercation with the bartender, which was corroborated by the officers' observations of the broken sign and the heated verbal confrontation between Mascarenas and the bartender; and (2) Mascarenas's violent reaction to the officers' request that he exit the bar to discuss the situation with them. A breach of the peace is committed if a person uses "threatening, abusive or ob-seene language or violent actions with knowledge or probable cause to believe he will disturb the peace." The facts and cireum-stances noted above justify a determination that probable cause was present. Therefore, the officer was acting in the lawful performance of his duties when Mascarenas assaulted him.

[118] In his second claim relating to the sufficiency of the evidence, Mascare-nas contends that the evidence is insufficient to support a conclusion that Officer Grauber-ger suffered serious bodily injury. As part of the charge against him, Mascarenas was alleged to have intentionally and knowingly caused bodily injury to Officer Grauberger. The phrase, "bodily injury," is statutorily defined as, "physical pain, illness or any impairment of physical condition." Wyo. Stat. Ann. § 6-1-104(a)(i) (LexisNexis 2008). At trial, Officer Grauberger described the injury from Mascarenas's kneeing as "severe discomfort." Mascarenas contends that during his testimony, Officer Grauberger was equivocal on whether or not the kneeing caused him "pain" or simply "discomfort." Mascare-nas insists "discomfort" is not the same as "pain." In fact, Mascarenas points out that Officer Grauberger went on with his duties that night and did not need medical treatment. - Accordingly, Mascarenas concludes that the State had failed to present sufficient evidence to support a conclusion that he caused bodily injury to Officer Grauberger.

[T 14] - Officer Grauberger testified during trial about the assault and its effects:
Q: Okay. And so during the pat down search, what happened?
A: - There were several items in his pockets. There was [sic] no tables in the immediate area or chairs or anything, so as I took items out of his pockets to ensure there weren't weapons involved or anything, I just placed them on the floor to my right. One of the things was a pack of cigarettes. I set the cigarettes down on the floor, and [Mascarenas] moved his left foot over and stepped on the cigarettes. And I looked down at the cigarettes, and [Masearenas] said there's-and I don't remember the exact quote. But he said, there's my cigarettes and then he kneed me in the testicles.
Q: Did you suffer any physical pain as a result of being kneed in the testicles?
A: It hurt.
Q: Was it severe or moderate?
A: It was pretty good. I didn't double over or anything like that, but-
Q: Okay. And how long do you think you suffered physical pain?
A: Roughly three days. It was discomforting.
[Tr. at 112-18]
Q: All right. Did you ever receive any treatment for the injury to your testicles?
A: - No. I just spoke to the on-shift emer-geney room physician.
Q: And what did you speak to the physician about?
A: I told him what had happened. He asked me if there was any swelling or blood in my urine or anything like that. I told him, no, not that I had noticed. He told me to watch for those symptoms and should they occur to come in immediately and be seen.
Q: Okay. And were you able to finish out your shift that night, as far as finish working?
A: I believe I did, yes.
Q: Okay. And you testified that you had pain for approximately three days?
A: Approximately.
Q: Okay. And were you able to work and have activities during those three days?
A: I don't reeall that I had to work. I think that was my last night shift, so I think I was on days off following that.
Q: Okay. Did you have to ice your groin area or provide any treatment to the groin area?
A: There was ice, yes.
Q: - Okay. Did you ice it that night?
A: After I got home.
Q: Okay. And any of the following days?
A: Just onee the next day, I believe.

On cross-examination, Officer Grauberger was questioned further about the injury:

Q: And he actually kneed you right in the groin?
A: It was not a direct hit, no.
Q: - It wasn't a direct hit?
A: No. Well, I didn't have a direct hit when I got kneed, but it dropped me right down to the ground. I was down there for 10 minutes or so waiting for the pain to subside.
Q: But you kept on your job, correct?
A: Correct.
Q: - So it wasn't that painful at all, was it?
A: Yes, it was.
Q: Well, why didn't you put in the ree-ord-You put that you experienced discomfort.
A: - Severe discomfort.
Q: Severe discomfort. This is severe discomfort? Pain is pain. Isn't pain simply pain?
A: To some people, I suppose.
Q: - But pain to you is discomfort?
A: That was.
Q: It was discomfort?
A: Yes.
Q: Now, you called this doctor on duty at the emergency room. Was that after your shift ended or before your shift ended?
A: No. It was onee I arrived at the police department.
Q: When did you arrive at the police department?
A: After [Mascarenas] was seen by the physician.
Q: After he was seen by the physician. Why didn't you talk to the physician when you were in the emergency room? Weren't you in pain at that time?
A: It was-
Q: Or severe discomfort, as you put it?
A: It was increasing.
Q: It increased. Okay. Did you notify the physician that it was increasing?
A: Not at that point, no. He was busy with [Mascarenas].
Q: No, no. I'm talking about after you got back to the police station, did you ask the physician-or tell the physician that the pain is increasing, it's been increasing all night. Did you?
A: I don't recall.
Q: You don't recall. your shift, did you not? You finished out
A: It was, as I recall, it was almost over when I arrived back at the police department, or it had just ended.
Q: Okay. Did the pain increase after you left the police department?
A: And went home?
Q: Yeah.
A: No. It quit increasing.
Q: Did it decrease at that point?
A: No, it was just a continuing discomfort.
Q: Continuing discomfort. Who told you to put ice on it?
A: The physician.
Q: The physician told you to put ice on it. And you put ice on it the next day?
A: When I arrived home after shift that night, as well as, I believe, one time the next day.
Q: And it didn't concern you that this discomfort continued for two days, and it didn't concern the doctor that this discomfort was continuing?
A: No. He told me what to look for and I, I guess, monitored that. And I never seen any of those symptoms.
Q: Had you ever been kicked in the groin before?
A: Yes.
Q: Did you have the pain or discomfort, as you call it{,] for days afterwards?
A: The one time that sticks out in my mind, yes.
@: One time. And how were you kicked at that time?
During a soccer or football game.
Okay. Full force?
I don't believe so, no.
No. Pretty big guy that kicked you?
Bigger than me.
Did you see a doctor that time?
Yes, I did.
And was it just the routine ice pad on your groin area?
A: Tee and monitor for swelling and blood in the urine.
Q: But you did that, you just had discomfort for three days?
A: Correct.
Q: Okay. But you didn't-When this initially happened, you didn't even double over, I think is your testimony, you didn't even double over, you went on arresting [Mascarenas]; isn't that true?
A: I didn't, other officers took [Mascare-nas] to the ground.
Q: But you didn't double over, anything like that, you continued with your duties?
A: Not that I recall, no.

The prosecutor revisited the issue with Officer Grauberger during redirect examination:

Q: Now, have you ever been in pain and not doubled over?
A: Yes.
Q: Okay. So there are, in your experience, various kinds of pain, different kinds of pain, pains in your arm?
A: To me personally, yes, there is.
Q: And with some of those pains, I take it you don't double over?
A: No.
Q: And in this instance, you experienced pain when you were kneed in the groin, correct?
A: Yes. I believe I called it severe discomfort.
Q: Okay. And when you said "severe discomfort," does that to you mean pain?
A: -It hurt, yes.

[1 15] In light of the statutory definition of "bodily injury," we conclude that there is more than sufficient evidence that Mascare-nas caused bodily injury to Officer Grauber-ger. As noted above, the statute defines "bodily injury" as "physical pain, illness or any impairment of physical condition." § 6-1-104(a)@). Officer Grauberger testified that immediately after being kneed, he went to the ground for ten minutes while waiting for the pain to subside. Thereafter, he had to apply ice on the affected area the night of the incident and once the next day. Officer Grauberger indicated that he experienced "discomfort" over a three-day period. While Officer Grauberger described his injury as "severe discomfort," several times he specifically equated that with pain. The statute does not specify particular gradations of physical pain, illness, or impairment. The jury heard this testimony and concluded that Masearenas had inflicted bodily injury on Officer Grauberger. The evidence clearly is sufficient to support that determination.

[116] In his final issue, Mascare-nas contends that the State failed to disclose material, exeulpatory evidence in violation of Brady. During his testimony, Officer Grau-berger testified that the hospital had medical records related to his injury. Prior to trial, the district court issued an order requiring the State to disclose all exeulpatory evidence. A conference was held at the bench, which was memorialized in the transcript after the jury had been excused for deliberations. The parties disputed what exactly Officer Grauberger had meant when he indicated that the hospital had a "record" related to his injury. The State contended that the "record" was merely a log showing that the officer had indeed called the emergency room. The defense, on the other hand, believed the "record" would indicate the substance of the discussion between the officer and the physician on the nature and extent of the injury. The State replied that it had asked the officer whether records as described by the defense existed and he had replied negatively. The trial court took no action, noting that there was "no specific request of the Court regarding this matter."

[117] On appeal, Mascarenas contends that the medical records were never disclosed in violation of the district court's pretrial order. He argues that the information in the record was highly relevant to the defense since it went to the sufficiency of the evidence that Officer Grauberger had suffered bodily injury. Mascarenas argues that the failure of the State to disclose or produce this material evidence is grounds for reversal.

[118] In order for a Brady violation to be established, a defendant must show that the prosecution suppressed evidence, that the evidence was favorable to him, and that the evidence was material. Davis v. State, 2002 WY 88, ¶ 16, 47 P.3d 981, 16 (Wyo.2002) (citing Helm v. State, 1 P.8d 635, 689 (Wyo.2000)). The defendant has the burden of proving that he was denied constitutionally material evidence and of providing evidence supporting such a claim. Roderick v. State, 858 P.2d 538, 544 (Wyo.1993). Mas-carenas's argument must fail because there is no indication in the record that the evidence allegedly contained in the medical records was either favorable or material,. Mascare-nas did not make the medical records part of the case record nor did he move for a new trial before the district court. Without the benefit of a hearing or the presence of the alleged exculpatory evidence in the record, we can only speculate as to what the records contained. In short, Masearenas has completely failed to carry his burden of demonstrating that he was denied constitutionally material evidence, and his claim must fail.

CONCLUSION

[119] There was sufficient evidence that Officer Grauberger was acting in the lawful performance of his official duties and suffered bodily injury as the result of having been kneed in the groin by Mascarenas. Furthermore, Mascarenas has failed to carry his burden to demonstrate that a Brady violation existed when certain medical records were not disclosed. Masearenas's conviction is affirmed.

      . § 6-5-204. Interference with peace officer[.]
      (b) A person who intentionally and knowingly causes or attempts to cause bodily injury to a peace officer engaged in the lawful performance of his official duties is guilty of a felony punishable by imprisonment for not more than ten (10) years.

      . § 6-2-501. ties. Simple assault; battery; penal-
      (b) A person is guilty of battery if he unlawfully touches another in a rude, insolent or angry manner or intentionally, knowingly or recklessly causes bodily injury to another.

      . § 6-3-201. Property destruction and defacement; grading; penalties; aggregated costs or values.
      (a) A person is guilty of property destruction and defacement if he knowingly defaces, injures or destroys property of another without the owner's consent.

      . § 6-6-102. Breach of the peace; penalties.
      (a) A person commits breach of the peace if he disturbs the peace of a community or its inhabitants by unreasonably loud noise or music or by using threatening, abusive or obscene language or violent actions with knowledge or probable cause to believe he will disturb the peace.


source: Caselaw Access Project

author: BILLINGS, Associate Presiding Judge:

license: Public Domain

text:
    2003 UT App 256
    STATE of Utah, Plaintiff and Appellee, v. Lacy BISSEGGER, Defendant and Appellant.
    No. 20020679-CA.
    Court of Appeals of Utah.
    July 17, 2003.

      Shelden R. Carter, Provo, for Appellant.
    Mark L. Shurtleff, Atty. Gen., and Jeanne B. Inouye, Asst. Atty. Gen., Salt Lake City, for Appellee.
    Before JACKSON, P.J., BILLINGS, Associate P.J., and DAVIS, J.
   OPINION

BILLINGS, Associate Presiding Judge:

[ 1 Lacy Bissegger appeals the trial court's order denying her motion to suppress evidence from Bissegger's personal property seized during a warrantless search of a car in which she was a passenger. We reverse and remand for proceedings consistent with this opinion.

BACKGROUND

12 On the evening of November 5, 2001, appellant Lacy Bissegger was riding as a passenger in her boyfriend's car. Bissegger and her boyfriend were stopped by Provo Police because the car's registration had expired. Before the initial stop, Officer Wolken did not observe impaired driving or any other illegal activity. During the stop and the concomitant questioning, Officer Wolken testified that he smelled alcohol coming from the driver's breath. Officer Wolken saw no other signs of impairment, and knew both the driver and Bissegger were over the age of twenty-one. Based upon the odor of alcohol, Officer Wolken asked the driver to exit the car to perform a field sobriety test. The driver passed the field sobriety test. Officer Wolken then asked the driver if there were any open containers of alcohol in the car. The driver said that there were none and Officer Wolken observed none. However, Officer Wolken asked the driver for consent to search the car for open containers of alcohol. The driver consented to the search.

1 3 Before searching the car, Officer Wolken ordered Bissegger out of the car. Bisseg-ger exited, but left behind some of her personal belongings, including a small opaque lip-balm container. Officer Wolken discovered this container on the dashboard during the search, but could not see inside the container and could not tell what, if anything, was inside. Officer Wolken testified that he knew the lip-balm container was Bissegger's. Officer Wolken unscrewed the lid of the lip-balm container and found methamphetamine inside. Bissegger was subsequently charged with possession of a controlled substance.

1 4 Bissegger moved to suppress the methamphetamine found in the lip-balm container. After a hearing, the trial court denied Bis-segger's motion on the ground that she lacked Fourth Amendment standing to contest the search. Thereafter, Bissegger timely appealed.

ISSUE AND STANDARD OF REVIEW

T5 Bissegger argues the trial court erred in denying her motion to suppress. "In examining a denial of a motion to suppress, we review the trial court's findings of fact 'under a clearly erroneous standard' and the trial court's 'ultimate legal conclusions' based on those findings 'under a correctness standard' " State v. Sepulveda, 842 P.2d 913, 914 (Utah Ct.App.1992) (quoting State v. Lopez, 831 P.2d 1040, 1043 (Utah Ct.App.1992)) (other quotations omitted). The central issue raised in this appeal is whether the trial court erred in concluding Bissegger, as a passenger, lacked Fourth Amendment standing to challenge the search of her personal belongings in the car. Thus we must determine, as a matter of law, whether Bis-segger's "expectation of privacy" was objectively reasonable and legitimate,. Id. at 915.

ANALYSIS

I. Standing

16 Bissegger argues that as a passenger in a car she has Fourth Amendment standing to challenge the search of the car. The Fourth Amendment guarantees "[the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. " Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted. " Rakas v. Illinois, 439 U.S. 128, 133-34, 99 S.Ct. 421, 425, 58 L.Ed.2d 387 (1978) (quoting Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 966, 22 L.Ed.2d 176 (1969)); accord State v. Sepulveda, 842 P.2d 913, 915 (Utah Ct.App.1992). "[Tlo challenge the [constitutional] propriety of a search, a defendant must first establish 'a legitimate expectation of privacy in the invaded place' " State v. Scott, 860 P.2d 1005, 1007 (Utah Ct.App.1993) (quoting Rakas, 439 U.S. at 143, 99 S.Ct. at 430).

T7 To determine whether a defendant has a legitimate expectation of privacy "we employ a two-step test." Sepulveda, 842 P.2d at 915. First, we examine whether the defendant has demonstrated "a subjective expectation of privacy in the searched area." Scott, 860 P.2d at 1007. "An expectation of privacy is a question of intent, which may be inferred from words spoken, acts done, and other objective facts." State v. Matison, 875 P.2d 584, 587-88 (Utah Ct.App.1994) (quotations and citations omitted). Second, we determine whether the defendant's expectation was objectively reasonable-that is, "whether society is 'willing to recognize the individual's expectation of privacy as legitimate." " Id. at 588 (quoting State v. Taylor, 818 P.2d 561, 565 (Utah Ct.App.1991) (other quotations and citations omitted)). The burden is on the defendant to show Fourth Amendment standing. See State v. Marshall, 791 P.2d 880, 887 (Utah Ct.App.1990) ("Once the defendant has been put on notice that the State claims the warrantless search was constitutional because [the defendant] has no expectation of privacy in the area searched, then the defendant must factually demonstrate that he does have standing to contest the warrantless search."), overruled on other grounds by State v. Bisner, 2001 UT 99,¶ 47, 37 P.3d 1073.

18 We have held that a driver of a car who has either an ownership interest in the car or "permissive, possessory control of the car" has standing to challenge a search of the car. Matison, 875 P.2d at 588 (quotations and citation omitted); Sepulveda, 842 P.2d at 915. However, a car passenger does not normally have standing to object to a search of the car absent an ownership or possessory interest in the car. See Rakas, 439 U.S. at 148-49, 99 S.Ct. at 433. In Rakas, the United States Supreme Court established that "a [car] passenger gua passenger simply would not normally have a legitimate expectation of privacy" in the car or its contents. Id.; see also State v. Scott, 860 P.2d 1005, 1007-08 (Utah Ct.App.1993) (finding defendant passenger did not have an expectation of privacy in the car itself where he left some personal items in the glove box).

T9 Bissegger argues, however, that she has standing to challenge the search of her personal belongings left in a closed container in the car. Although Utah appellate courts have not addressed this precise issue, other jurisdictions have overwhelmingly held that a separate search of a car passenger's personal belongings left in the car gives the passenger standing to challenge the search. See, e.g., United States v. Salazar, 805 F.2d 1394, 1396 (9th Cir.1986) (holding that a car passenger had a reasonable expectation of privacy in his closed brown paper bag found on the floorboard of his companion's car); People v. Manke, 181 Ill.App.3d 374, 130 Ill.Dec. 192, 537 N.E.2d 13, 15 (1989) (concluding that a car passenger whose closed brown paper bag was found in car's trunk, and was searched by police, had standing to challenge search); Arnold v. Commonwealth, 17 Va.App. 313, 437 S.E.2d 235, 237 (1993) (holding that a car passenger had a legitimate expectation of privacy in his closed plastic shopping bag found on the floor of the car).

" 10 Other jurisdictions have also held that car passengers have a legitimate expectation of privacy in their coats or jackets found in cars. See People v. Armendarez, 188 Mich.App. 61, 468 N.W.2d 893, 900 (1991) (finding that car passenger had "standing to object to the search of his personal effects in the car, namely, his coat," where his coat was found on front seat of vehicle); State v. McCarthy, 258 Mont. 51, 852 P.2d 111, 112-13 (1993) (holding that car passenger had legitimate expectation of privacy in his jacket found crumpled on the back seat of car).

1 11 Finally, other jurisdictions have found that car passengers have a legitimate expectation of privacy in their purses left in cars. See United States v. Buchner, 7 F.3d 1149, 1151, 1154 (5th Cir.1993) (holding that the owner of a shoulder bag, located on the front seat of his girlfriend's car, had a legitimate expectation of privacy in the bag and its contents); United States v. Welch, 4 F.3d 761, 764 (9th Cir.1993) (holding that car passenger who left her purse in her boyfriend's car "had a reasonable expectation of privacy in the contents of her purse. Indeed, a purse is a type of container in which a person possesses the highest expectations of privacy"); State v. Friedel, 714 N.E.2d 1231, 1235-37 (Ind.Ct.App.1999) (holding that car passenger whose purse was found on floor behind driver's seat and searched had standing because "a purse is clearly a container in which a person has a legitimate expectation of privacy").

112 We conclude Bissegger had a legitimate expectation of privacy in her opaque lip-balm container left in the car. The State has stipulated that the lip-balm container was Bissegger's personal property. A lip-balm container is analogous to a shopping bag, shoulder bag, jacket, or purse, as each of these items is a closed container that keeps the owner's personal things hidden from public view. Here, Officer Wolken could not know what, if anything, the lip-balm container contained until he unscrewed the lid and peered inside. Furthermore, we see no meaningful distinction between a lip-balm container and a paper or plastic grocery bag. Because Bissegger placed private things in a closed opaque container, she had a legitimate expectation of privacy in the contents of that container. Thus, Bissegger, as a passenger asked by a police officer to leave the car, has standing to object to the seizure and search of her personal property found inside the car.

II. Abandonment

113 The State argues that even if Bissegger had a legitimate expectation of privacy in the lip-balm container, she does not have standing to challenge the search because she abandoned the lip-balm container. "[A] person who has voluntarily abandoned property lacks standing to object to a search or seizure of it," State v. Holbert, 2002 UT App 426,¶ 47, 61 P.3d 291 (quotations and citation omitted), because "[when individuals voluntarily abandon property, they forfeit any expectation of privacy in it that they might have had." State v. Rowe, 806 P.2d 730, 736 (Utah Ct.App.1991) (quotations and citations omitted), rev'd on other grounds, 850 P.2d 427 (Utah 1992).

114 Determining whether abandonment occurred is "primarily a factual question of intent to voluntarily relinquish a reasonable expectation of privacy." Rows, 806 P.2d at 736. Thus, the abandonment determination involves two inquiries: (1) whether the individual relinquished a legitimate expectation of privacy in the item; and (2) whether the relinquishment was voluntary. See id. "The burden of proving abandonment falls on the state, ... and must be shown by clear, unequivocal and decisive evidence." Id.

T15 We conclude Bissegger never relinquished a legitimate expectation of privacy in the lip-balm container after being ordered out of the car. The State has failed to meet its burden of establishing abandonment by "clear, unequivocal and decisive evidence," Rowe, 806 P.2d at 736, because it has failed to produce any evidence that Bissegger voluntarily relinquished a legitimate expectation of privacy in the lip-balm container. Thus, we conclude Bissegger did not abandon her lip-baim container when she was ordered to exit the car.

III. IMegal Detention

116 Because we determine Bis-segger had standing as a passenger to object to the search of her personal property left in the car, we must determine whether the search was lawful.

(17 An unreasonable traffic stop is an unconstitutional seizure. See State v. Hansen, 2002 UT 125,¶ 28, 63 P.3d 650. "To determine whether a traffic stop was reasonable, we consider two questions: (1) Was the police officer's action justified at its inception?[;] and (2) Was the resulting detention reasonably related in scope to the circumstances that justified the interference in the first place? " Id. at ¶ 29 (quoting State v. Lopez, 873 P.2d 1127, 1131-32 (Utah 1994) (other citation omitted). Here, the traffic stop for expired registration was justified at its inception as the stop was " "incident to a traffic violation committed in [an officer's] presence." " Lopez, 873 P.2d at 1132 (quoting State v. Talbot, 792 P.2d 489, 491 (Utah Ct.App.1990)). However, the resulting detention was not reasonably related in scope to the cireumstances that justified the initial stop.

[ Djuring a traffic stop an officer may request a driver's license and vehicle registration, conduct a computer check, and issue a citation.... Onee the purpose of the initial stop is concluded, however, the person must be allowed to depart. Any further temporary detention for investigative questioning after [fulfilling]! the purpose for the initial traffic stop constitutes an illegal seizure, unless an officer has probable cause or a reasonable suspicion of a further illegality.

Hansen, 2002 UT 125 at ¶ 31, 63 P.3d 650 (final alteration in original) (quotations and citations omitted).

18 After Officer Wolken verified the driver license and registration and completed a computer check, the purpose for the initial traffic stop was concluded. However, at this point Officer Wolken testified he smelled alcohol. This justified a continuation of the detention to conduct a field sobriety test.

119 Nevertheless, even if Officer Wolken had a reasonable suspicion that the driver was driving under the influence, the seope of the stop would still have been limited. See Lopez, 873 P.2d at 1132.

If reasonable suspicion of more serious criminal activity does arise, the scope of the stop is still limited. The officers must "diligently [pursue] a means of investigation that [is] likely to confirm or dispel their suspicions quickly, during which time it [is] necessary to detain the defendant."

Id. (emphasis added) (alterations in original) (quoting State v. Grovier, 808 P.2d 133, 136 (Utah Ct.App.1991) (other quotations and citation omitted)).

120 Here, the officer conducted a field sobriety test, the driver performed successfully, and thus, any further detention was unlawful. - Officer Wolken exceeded the scope of detention when he requested permission to search the car. See State v. Robinson, 797 P.2d 431, 437 (Utah Ct.App.1990) (finding Fourth Amendment violation where police did not have "the reasonable suspicion of criminal activity necessary to justify their continued detention and questioning of [defendants] once ... the purpose for the initial stop had been accomplished"). Accordingly, the search of the car and particularly the search of the lip-balm container was illegal.

CONCLUSION

121 Bissegger had standing to object as a passenger to the search of her personal property left in the car after she was ordered to exit the car. Because Officer Wolken's search of the vehicle and Bissegger's personal property left therein exceeded the scope of the detention, the search was illegal, Therefore, the district court erred in failing to grant Bissegger's motion to suppress. We therefore reverse and remand for proceedings consistent with this opinion.

122 WE CONCUR: NORMAN H. JACKSON, Presiding Judge, and JAMES Z. DAVIS, Judge.

      . We state the facts as stipulated to by the State.


author: KENNETH L. BUETTNER, Judge. ADAMS, J.,

text:
    2003 OK CIV APP 74
    ROGERS REALTY, INC., an Oklahoma corporation, Plaintiff/Appellant, v. Jean Lyall SMITH, Mary Louise Smith, individually and collectively d/b/a Pancoast & Smith, Realtors, Defendants/Appellees.
    No. 98,507.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    May 9, 2003.
    Rehearing Denied July 15, 2003.
    Grant E. Cheadle, Cheadle & Associates, Inc., Tulsa, OK, for Plaintiff/ Appellant.
    William J. Baker, Hert, Baker & Koemel, P.C., Stillwater, OK, for Defendants/Appel-lees.
   Opinion by

KENNETH L. BUETTNER, Judge.

[ 1 The parties are realtors. Plaintiff Rogers Realty, Inc. sued Defendants Jean Lyall Smith and Mary Louise Smith for interfering with the listing agreement and thus depriving it of a sales commission. Defendants moved to dismiss the lawsuit claiming that the matter should be submitted to arbitration pursuant to the Code of Ethics and Standards of Practice of the National Association of Realtors®. The trial court treated the Motion to Dismiss as a Motion for Summary Judgment, found that there were no material facts in controversy and that Defendants were entitled to judgment as a matter of law. It then dismissed the lawsuit. We affirm.

T2 In response to the Motion to Dismiss, Plaintiff argued that it had no contract with Defendants and, consequently, no "contractual dispute" as envisioned by Article 17 of the Code which would require arbitration. Plaintiff also contended that there was not a "specific non-contractual dispute" as listed by the Code applicable to the parties' situation. Plaintiff admitted that it had a contractual agreement with the National Association of Realtors®, but maintained it did not have a contractual relationship with Defendants.

I3 Article 17 of the Code states:

In the event of contractual disputes or specific non-contractual disputes as defined in Standard of Practice 17-4 between REALTORS® (principals) associated with different firms, arising out of their relationship as REALTORS®, the REALTORS® shall submit the dispute to arbitration in accordance with the regulations of their Board or Boards rather than litigate the matter.
Hoke ok
© Standard of Practice 17-1
The filing of litigation and refusal to withdraw from it by REALTORS® in an arbi-trable matter constitutes a refusal to arbitrate. (Adopted 2/86)
© Standard of Practice 17-2
Article 17 does not require REALTORS® to arbitrate in those circumstances when all parties to the dispute advise the Board in writing that they choose not to arbitrate before the Board. (Amended 1/98) -
® Standard of Practice 17-8
REALTORS®, when acting solely as principals in a real estate transaction, are not obligated to arbitrate disputes with other REALTORS® absent a specific written agreement to the contrary. (Adopted 1/96)
© Standard of Practice 17-4
Specific non-contractual disputes that are subject to arbitration pursuant to Article 17....

1 4 We have not found any Oklahoma cases on point, but cases from other states support Defendants' position. In Elbadramany v. Stanley, 490 So.2d 964 (Fla.App.1986), the parties were real estate brokers and Realtor members of the Daytona Beach Board of Realtors, Inc. A dispute about a commission arose between the parties. - Elbadramany filed for arbitration with the Board. The parties' application to be members of the Board contained their agreements to abide by the Code of the National Association of Realtors as well as with the rules of their local board. The Daytona Board's by-law, Article VI(k) stated, in part:

Professional disputes between REALTOR members or between firms, partnership, corporations or trusts with which a REALTOR member is associated, shall be settled through arbitration process as provided in ARTICLE VIII, ARBITRATION, rather than by recourse to other tribunals.

T5 Rejecting an argument that there was no contract between the parties, the draomany Court held: "The constitution and by-laws of a voluntary association, when subscribed or assented to by the members, becomes a contract between each member and the association." Id. at 966.

T6 Likewise, in Jorgensen Realty, Inc. v. Box, 701 P.2d 1256 (Colo.App.1985), two realtors had a dispute over a commission. Both were members of the Colorado Association of Realtors. Although deciding a separate matter, the Jorgensen Court stated the settled law: "The relationship between a voluntary association and its members is a contractual one and, by joining such an organization, a member agrees to submit to its rules and regulations and assumes the obligations incident to membership." Id. at 1257.

1 7 We hold that when realtors voluntarily submit to their organizations' authority, then they are bound by its rules. The dispute at issue arose out of Plaintiff's and Defendants' relationship as REALTORS and should have been submitted to arbitration pursuant to Article 17 of the Code. Oklahoma favors arbitration.

1 8 Based on the fact that all parties to the lawsuit at bar have submitted to the membership requirements of the Code, are REALTORS, and have an arbitrable dispute, then trial court did not err in dismissing the matter. We AFFIRM the order dismissing the lawsuit.

ADAMS, P.J., dissents with separate opinion; JOPLIN, C.J., concurs.

ADAMS, J.,

dissenting.

T1 Although the majority correctly concludes, in my opinion, that the parties' relationship with the National Association of Realtors®, and their subscription to its Code of Ethics, constitutes a contract, its analysis does not adequately examine the impact of that conclusion on whether the terms of the contract, i.e., Code of Ethics and Standards of Practice of the National Association of Realtors® (the Code), requires arbitration of this dispute.

{ 2 Under the majority's analysis, any dispute between two Realtors® involving their real estate activities is covered by the arbitration clause contained in Article 17 of the Code. This interpretation runs counter to the precise language which delineates the disputes which are arbitrable and renders the exclusive listing of "specific non-contractual disputes" in Standard of Practice 17-4 ineffective.

T3 In doing so, the majority fails to follow the Legislature's command in 15 0.9.2001 § 157 that we give "effect to every part" of a contract where possible. Our task in following that statute is to adopt an interpretation, whenever possible, which gives effect to all provisions of the contract. Buck's Sporting Goods, Inc. of Tulsa v. First National Bank & Trust Company of Tulsa, 1994 OK 14, 868 P.2d 693.

T4 In order to give effect to the Code's language concerning "specific non-contractual disputes," the phrase "contractual disputes" contained in the first paragraph of Article 17 cannot include disputes where the only contractual relationship between the Realtors® is the one created by their common membership in the National Association. The dispute between these parties is not a dispute concerning a contract involving these parties, as that term is used in Article 17, and it is not a "specific non-contractual dispute" identified in Standard of Practice 17-4. Plaintiff was not required to arbitrate this dispute, and I respectfully dissent.

      . 17-4 lists four specific non-contractual disputes. Because we find the parties indeed had a contractual dispute, we are not listing the four non-contractual disputes.

      . Oklahoma adopted the Uniform Arbitration Act in 1978. 15 0.S. § 801 et seq.

      . I use this appellation to designate real estate professionals who, like the ones involved here, are members of the National Association and subscribe to its Code of Ethics.


author: CARPENETI, Justice.

text:
    In the Matter of the ADOPTION OF BERNARD A.
    No. S-10771.
    Supreme Court of Alaska.
    Sept. 12, 2003.

      Michael J. Walleri, Law Offices of Michael J. Walleri, Fairbanks, for Appellants.
    Brooks W. Chandler, Hicks, Boyd, Chandler & Falconer, LLP, Anchorage, for Appel-lees.
    Before: FABE, Chief Justice, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

CARPENETI, Justice.

I. INTRODUCTION

A grandfather and grandmother appeal the decision of the superior court denying their petition for adoption of their grandson and granting the adoption petition of the child's foster parents. They claim that the superior court placed undue emphasis on the length of time that the three-year-old child had spent in the care of his foster parents. We hold that there was no abuse of discretion; accordingly, we affirm.

II. FACTS AND PROCEEDINGS

A. Facts

Bernard A., the child at the center of the current dispute, was born in January 1999 and was removed from his parents by the Division of Family and Youth Services (DFYS) in August 1999. Bernard is the fifth of Linda G.'s six children. With the possible exception of an additional seventh child with which Linda was pregnant at the time of the superior court hearing, about which we have no further information, none of these children is in Linda's custody. Although appellants Constance and Clark L., Linda's mother and stepfather, immediately asked that Bernard be placed with them when he was removed from his parents' custody in August 1999, Bernard was instead placed in foster care with appellees Ruth K. and John A. He has lived with Ruth and John ever since. The parental rights of Linda and Bernard's father were terminated in April 2001 due to abandonment, substance abuse, and neglect, at which time both parents expressed a preference that the child be placed for adoption with Constance and Clark.

We reviewed the termination of Linda's parental rights to two of her children, J.G. and S.G., in 2000 in L.G. v. State, Department of Health & Social Services. S.G. was eventually placed for adoption with Ruth and John, who were among her several foster placements. Constance and Clark had wished to adopt both girls themselves, and appealed the superior court's decision granting adoption of both girls to their respective foster parents in C.L. & C.L. v. P.C.S., but were unsuccessful. These decisions were based in part on several incidents that showed that Constance and Clark lacked understanding of the psychological needs of these children: in 1994 Constance and Clark decided they could no longer cope with having two-year-old J.G. placed with them on a foster care basis and simply had her dropped off at the DFYS office without warning to DFYS or to J.G.; there was evidence that DFYS workers had encountered Constance in states of intoxication in the mid-1990's, prior to the girls' adoptions, even though this was traumatic for J.G. given her history with her mother (at least one of these occasions was when J.G. was brought in for a visit); and Constance and Clark had in the past given Linda access to the children in contravention of DFYS instructions after this proved traumatic for J.G. Constance and Clark did later obtain custody of Linda's sixth child, K.G., and were in the process of adopting him at the time of the hearing in the current case.

Linda and her mother, Constance, are affiliated with the Yup'ik village of Emmonak; Bernard's father had no tribal affiliation. Bernard is eligible for tribal affiliation through his mother and is therefore an "Indian child" under the Indian Child Welfare Act (ICWA). Clark has no tribal affiliation. John is a Yupik and Inupiat affiliated with the village of Kotlik. Ruth is a Yupik affiliated with the village of Emmonak. We held in C.L. & C.L. v. P.C.S. that Ruth qualified for the extended family placement preference for Linda's children because of evidence that Yupik tradition considers a see-ond cousin once removed to be extended family under 25 U.S.C. § 1908(2). In addition, John also presented evidence in this case that his older brother was married to one of Constance's cousins.

B. Proceedings

Constance and Clark filed various amended petitions to adopt Bernard in February and June 2001; Ruth and John filed petitions to adopt Bernard in June and August 2001 after parental rights were terminated in April 2001. The village government of Em-monak was contacted, and it expressed no opinion as to where Bernard should be placed. DFYS had legal custody of Bernard because he was a child in need of aid, and consented to Ruth and John's petition. Constance and Clark finally submitted the last of the documentation supporting their petition at the end of September 2001, and asked for a rescheduling of the hearing on their petition, which was granted for November 2001. After a similar hearing on Ruth and John's petition in November 2001, a special master recommended in December 2001 that the two adoption petitions be consolidated. Separately, Constance and Clark also filed a motion to consolidate, and that motion was later granted. The superior court accepted the special master's recommendation to consolidate in January 2002, and hearings on the best interests of the child were held before Special Master Alicemary L. Closuit on February 28 and Special Master Daniel Weber on March 18-19, 2002.

In a lengthy report, Special Master Weber recommended in late May 2002 that Ruth and John be allowed to adopt Bernard. The primary reason for this recommendation was that several experts had testified that early childhood bonding was of "crucial importance" to a child's future emotional stability, and Bernard had lived only with Ruth and John from the ages of seven months to three years at the time of the hearing. The special master also indicated that the parenting style of Ruth and John was more likely to meet Bernard's emotional needs, in light of Constance and Clark's past behavior with J.G., including the aleohol use, unauthorized exposure to her mother, and their sudden and unceremonious renunciation of her foster care placement. The special master found that the parties were equally capable of caring for Bernard's physical and cultural needs, and that each party would provide him with differing but acceptable access to at least some of his other relatives. The special master also found that the families both satisfied the ICWA extended family placement preference under C.L. & C.L. v. P.C.S., but that the placement preference of the biological parents was not entitled to much weight in judging Bernard's best interests. Constance and Clark objected to the special master's report in June 2002. In July Superior Court Judge Niesje J. Steinkruger adopted the special master's report, granted Ruth and John's petition, and denied Constance and Clark's petition. The adoption decree was issued on August 2, 2002. Constance and Clark appeal.

III. STANDARD OF REVIEW

An adoptive placement determination should be reversed only when the record as a whole reveals an abuse of discretion or when controlling factual findings are clearly erroneous. The trial court abuses its discretion if it considers improper factors, fails to consider relevant statutory factors, or assigns disproportionate weight to some factors while ignoring others. In an adoption case, the court's best interests of the child finding and other factual findings are reviewed under the "clearly erroneous" standard. A finding is clearly erroneous only when a review of the entire record leaves us firmly convinced that a mistake has been made.

We apply our independent judgment to questions of law and "adopt the rule of law that is most persuasive in light of precedent, reason, and policy."

IV. DISCUSSION

The parties agree that the relevant inquiry in a contested adoption is whether the adoption is in the best interests of the child. Constance and Clark argue that the superior court abused its discretion by overemphasizing the length of time that Bernard had spent with his foster parents and by deprecating other factors they argue weigh in their favor. We reject these arguments.

A. The Trial Court Properly Considered the Length of Time Bernard Spent with his Foster Parents.

Constance and Clark argue that the special master assigned too much weight to the length of time Bernard had spent with Ruth and John, thereby ignoring Bernard's bonds with Constance and Clark as well as several other factors which will be discussed below in Part IV.B. They claim that this contravenes our holding in In re A.S. that "no single factor should be allowed to outweigh all others in applying the 'best interests of the child standard." Constance and Clark also claim that the superior court should have taken more trouble to compare the quality and duration of Bernard's bond with each of the parties, as was ordered in In re W.E.G. & J.R.G.

In Adoption of N.P.S., we held that in determining the best interest of a child, "Iwlhether one factor outweighs another is committed to the sound discretion of the trial court." In the present case, expert witnesses testified that continuity of caregiving is very important to the happiness and emotional development of very young children and that unnecessary transfers of care should be avoided, because children can suffer dramatic emotional problems when they are not able to form stable attachments with those around them. This accords with the finding of the Alaska Legislature in AS 47.05.065(5)(C) that "it is important ... to ensure that all children, especially those under the age of six years, who have been removed from their homes are placed in permanent homes expeditiously." In his findings of fact, the special master did not ignore Constance and Clark's relationship and bond with Bernard, but simply found that even a gradual transition into their care would disrupt his life unnecessarily and possibly to his great detriment. The special master considered numerous other factors in Bernard's case, including cultural literacy and participation, ability to meet his physical needs, and access to his other relatives, and often found either that they weighed equally in favor of both parties, or that Ruth and John had performed better in the past. While it is certainly true that Bernard's continuous residence with Ruth and John for thirty of his thirty-seven months by March 2002, the end of trial, appears to have been the most significant factor in this case, it is hardly an abuse of discretion to find that among several factors, many of which weigh equally between the parties, one takes on the most importance. This does not amount to a "single factor ... outweigh{ing] all others in applying the 'best interests of the child' standard."

Constance and Clark also argue that Bernard's continuity of care with Ruth and John results artificially from the superior court's refusal to hear their first adoption petition in February 2001 when they filed it. In effect, they imply that continuity of care should be disregarded in determining placement in this case because continuity of care resulted from the superior court's refusal to hear their first petition promptly. As a preliminary matter we must observe that a standing master of the Fairbanks Probate Office notified Constance and Clark on February 15, 2001 that their petition was incomplete because it lacked numerous supporting documents required under Alaska Adoption Rules 6, 8, 9, and 10; AS 18.50.510; AS 25.283.040, .060, 080, .090, .100, .170, and .185; and 25 U.S.C. §§ 1912-1918. Constance and Clark did not file the last of these documents until September 27, 2001, and the case progressed smoothly thereafter given its complexity. But we also note that even in February of 2001, Bernard had spent eighteen of his twenty-four months in the sole care of Ruth and John. It is unfortunate that an initial foster care placement of a very young child in need of aid may ripen into an adoptive placement precisely because of the need for continuity of care." For this reason we encourage trial courts to expedite and dispose of adoption contests as soon as possible. But statutory law and the testimony of experts relied upon in case law tell us that multiple placements of very young children put them at risk of grave psychological consequences. Tt is the duty of the trial court to move cases expeditiously and to rule in the best interest of the child, and the perceived fairness of the result to the adults involved is necessarily of secondary, and far less, importance than the best interests of the child. As one expert in the case put it, the question is where the child's best interests lie, not which of the applicants is the most deserving.

B. The Trial Court Properly Evaluated and Placed Sufficient Emphasis on Factors Weighing in Favor of the Grandparents.

Constance and Clark essentially argue that instead of stressing Bernard's long-term and successful care by Ruth and John, the trial court should have been persuaded by several factors that they contend weigh in their favor. We hold that the special master made no clearly erroneous factual findings against Constance and Clark, and did not abuse his discretion in declining to give certain factors more weight. |

1. The alleged inability of Ruth and John to supervise the child safely

Constance and Clark contend that the special master clearly erred in rejecting evidence that Ruth and John had allowed Bernard to suffer bruising, lacerations, cuts, bite marks, toenail problems, and improperly fitted shoes while in their care. Constance testified at trial, with the aid of photographs and a videotape, that she had alerted DFYS to such problems when visiting Bernard, but that no action had been taken. The special master found that "[nlone of the marks appears to a medically untrained eye to be a significant injury" or "anything beyond ailments and minor injuries which would be ordinary in an active toddler." Having reviewed the photographic evidence, we agree with the special master that these injuries do not appear to be significant. We hold that the special master's findings on this point are not clearly erroneous.

2. Constance and Clark's stronger contacts with the child's biological relatives

Constance and Clark argue that the special master gave insufficient consideration to their ability to provide Bernard with access to his other biological relatives. They argue that in living with them, Bernard would reside with his brother, and that he would have access to relatives on both his mother's and father's sides. Ruth and John point out in reply that in their household Bernard has already lived with S.G., his half-sister, for two years. They argue that they too arrange for Bernard to spend time with his relatives, and that these are simply different relatives from the ones Constance and Clark know. The record supports the contention that Constance and Clark can provide Bernard with access to more of his extended family, especially relatives from his deceased father's side. Nonetheless, Ruth and John can provide adequate exposure to the extended family, and we agree with the superior court that Bernard's daily care is even more important than his contacts with his extended family.

Constance and Clark also submit that because the extended family placement preference of the ICWA is meant to reverse a pattern of breaking up Indian families and to promote the stability of Indian families, this factor should be given no inconsiderable weight. Ruth and John argue that they themselves are part of Bernard's extended family and that placement with them does not "break up" an Indian family any more than has already occurred. In the previous case between these parties, we held that Ruth provides a sufficiently close family relationship to meet the purpose of the ICWA extended family placement preference, and that Constance and Clark had not shown that they bave any greater claim under Yupik tradition to the ICWA extended family placement preference by virtue of being more closely related by blood, They produced no new evidence on Yupik tradition in the current trial. Accordingly, we hold that the trial court did not abuse its discretion on this point.

3. The preference of the child's biological parents

Constance and Clark also contend that the trial court attached insufficient weight to the placement preference of the biological parents. They argue that parental preference is an ICWA factor that has previously been given effect by this court in Adoption of N.P.S. and In re Adoption of F.H., but that in those cases the parental preference resulted in the placement of Indian children with non-Indian parents, which they argue cannot be consistent with the purposes of the ICWA. Ruth and John contend that the ICWA states that parental preference is to be considered "[where appropriate" and that Linda's preference was properly given less weight because Linda was a "demonstrably incompetent parent with little history of genuine concern for her children's care." A DFYS investigator had testified that Linda had "really put [her older] children into emotional turmoil" when she told them that she would regain their custody and take them away from their foster parents. This allegedly occurred when Constance and Clark allowed Linda to have "unauthorized contact" with the children. Constance and Clark reply that we have previously held that the fact of the preference is more significant than the reasoning behind it under the ICWA, and that it is factually unfounded to say that they will give Linda improper access to the children in the future.

We agree with the special master that in this case, parental preference does not shed light on what the best living situation for Bernard is and should not overcome the importance of continuity of care. Moreover, Constance and Clark's argument about a policy of ratifying the parental preference only for non-Indian placements is irrelevant to this ease, because both parties include a partner who shares Bernard's tribal affiliation. We find no abuse of discretion on this point.

4. The comparative stability of the parties

Constance and Clark also make a number of arguments addressing the "stability" of the two households, which is a best-interest factor under McDanold v. McDonald. They first contend that their household is more stable because both of them are retired, whereas John travels frequently on business. Constance and Clark also contend that they have no alcohol problems, whereas in the past John has admitted to alcohol dependency. Constance and Clark also argue that they have never given up prior children for adoption, whereas both Ruth and John have. Ruth and John contend that these allegations center on problems that are "decades old and completely overcome." The special master found that the adoptions of Ruth's and John's respective children were organized responsibly and do not reflect negatively on their judgment, in distinction to Constance and Clark's return of J.G. to DFYS. We agree that the placements for adoption occurred years ago and are therefore of little value as evidence of the present stability of the household under McDanold. Likewise, both couples-Constance and Clark, Ruth and John-have been certified as foster parents and therefore have been cleared of present-day substance abuse problems. The special master did not err in finding that Ruth and John provide a stable household.

To the limited extent that Constance and Clark have been able to prove any of the above four factors (alleged inability to supervise the child safely, the grandparents' better access to the child's extended family, parental preference, and relative "stability"), these factors do not outweigh the superior court's finding that Bernard's emotional health would be best served by continuing his placement with Ruth and John. We hold that there was no abuse of discretion and no clear error.

v. CONCLUSION

Because the superior court did not abuse its discretion in weighing best-interest factors or clearly err in finding that Bernard's interests were best served by granting the adoption petition of his foster parents, we AFFIRM the order of the superior court.

MATTHEWS, Justice, not participating.

      . We use pseudonyms to protect the privacy of family members involved in this case.

      . 14 P.3d 946 (Alaska 2000).

      . Id. at 948-49; C.L. & C.L. v. P.C.S., 17 P.3d 769, 771 (Alaska 2001).

      . 17 P.3d at 771.

      . This incident was used as a partial basis for our finding that Constance and Clark were not a suitable alternative placement for J.G. in L.G. 14 P.3d at 955.

      . This evidence was part of the reason we affirmed the superior court's finding that "the grandparents do not understand the impact on J.G. of exposure to ... alcohol consumption" in the adoption case regarding J.G. and S.G. CL., 17 P.3d at 774-75.

      . This evidence was part of the reason we affirmed the superior court's finding that "the grandparents do not understand the impact on J.G. of exposure to her mother" in the adoption case regarding J.G. and S.G. Id.

      . 25 U.S.C.A. § 1903(4) (West 2001).

      . ICWA recognizes a placement preference for members of an Indian child's extended family. 25 U.S.C.A. § 1915(a)(1) (West 2001).

      . 17 P.3d at 777.

      . C.L., 17 P.3d at 777.

      . L.G. v. State, Dep't of Health & Soc. Servs., 14 P.3d 946, 950 (Alaska 2000).

      . West v. West, 21 P.3d 838, 841 (Alaska 2001).

      . In re J.J.J., 718 P.2d 948, 957 (Alaska 1986).

      . West, 21 P.3d at 841.

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

      . See, e.g., In re W.E.G. & J.R.G., 710 P.2d 410, 417 (Alaska 1985).

      . In re A.S., 740 P.2d 432, 435-36 (Alaska 1987).

      . See W.E.G., 710 P.2d at 416-17 (suggesting that in adoption contest between foster parents and grandparents, trial court should consider length and quality of time and bonding experienced by children with each petitioner).

      . Adoption of N.P.S., 868 P.2d 934, 938 (Alaska 1994).

      . A.S., 740 P.2d at 435-36.

      . See AS 47.10.088(d)(1) (providing that DFYS shall cease efforts to reunite a child in need of aid with its parents if the child has been in foster care for fifteen of last twenty-two months) (reflecting Adoption and Safe Families Act of 1997 § 103(a)(3), 42 U.S.CA. §675(5)(E) (Supp. 2003)).

      . AS 47.05.065(5) (finding by legislature that children under six years of age who have been removed from their homes must be placed in permanent homes expeditiously because of risks of emotional damage stemming from failure to attach to adult caregiver).

      . See, eg., J.H. v. State, Dep't of Health & Soc. Servs., 30 P.3d 79, 87 n. 14 (Alaska 2001); M.W. v. State, Dep't of Health & Soc. Servs., 20 P.3d 1141, 1147 (Alaska 2001); L.G. v. State, Dep't of Health & Soc. Servs., 14 P.3d 946, 951 (Alaska 2000).

      . 25 U.S.C.A. § 1915(a) (West 2001).

      . 25 U.S.C.A. §§ 1901(4)-(5), 1902 (West 2001).

      . C.L. & C.L. v. P.C.S., 17 P.3d 769, 777 (Alaska 2001).

      . Id.

      . 868 P.2d 934, 937 (Alaska 1994) (honoring parental preference for placement of child with mother's non-Indian partner).

      . 851 P.2d 1361, 1364-65 (Alaska 1993) (honoring parental preference for placement of child with non-Indian foster parents).

      . 25 U.S.C.A. § 1915(c) (West 2001).

      . N.P.S., 868 P.2d at 937 n. 3.

      . 718 P.2d 467, 470 (Alaska 1986) (explaining that parent's past conduct may be considered where it sheds light on "current stability and parenting ability").

      . Constance has a fur and crafts business, which she runs out of her home. Clark is a retired plumber.

      . John is a biologist with the U.S. Fish and Wildlife Service.

      . Both Constance and Clark have convictions for alcohol-related offenses dating from 1987 to 1990, including two DWI's for Clark and an alcohol-related arrest of Constance for urinating in public. Constance and Clark underwent substance abuse evaluations in 2000 and no concerns were expressed.


author: STEWART, Judge.

text:
    Guy W. JOHNSON, Appellant, v. STATE of Alaska, Appellee.
    No. A-7401.
    Court of Appeals of Alaska.
    Sept. 12, 2003.

      David K. Allen, Assistant Public Advocate, Fairbanks, and Brant McGee, Public Advocate, Anchorage, for Appellant.
    Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for Ap-pellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

STEWART, Judge.

Guy W. Johnson was convicted of first-degree murder and sentenced to 99 years in prison. In our earlier decision in this case, we addressed Johnson's attorney's motion to withdraw. The attorney claimed that Johnson's case presented no non-frivolous issues. We directed the attorney to file a supplemental brief that conformed with the requirement we established in Griffin v. State: [ An] attorney seeking to withdraw from [an appeal] must provide [this] court with a full explanation of all the claims the attorney has considered and why the attorney has concluded that these claims are frivolous."

We have now reviewed the attorney's supplemental brief. Johnson himself has filed a brief. We have independently examined the record in light of this additional briefing. We do not agree with Johnson's attorney that the case raises no non-frivolous issues; we conclude that Johnson's case presents at least two arguable claims. Accordingly, we order additional briefing.

Background facts

On June 28, 1997, Johnson shot Brad McKown to death outside of MeKown's cabin in Fairbanks. Johnson called 911 from the cabin and reported that he had killed McKown. When Alaska State Troopers arrived at the cabin, Johnson explained that he had had an ongoing feud with McKown. Johnson said that his problems with McKown began when Johnson first moved onto property owned by the Upton family, where McKown was also living at the time. McKown left the state a short while later. When McKown returned, he did not live on the Upton property but appeared there occasionally to retrieve belongings he had left behind and, according to Johnson, to harass Johnson. Corbett Upton eventually told McKown to stay off the property. Johnson was convinced that MeKown continued to trespass.

Johnson claimed that he went to McKown's cabin because Johnson believed that McKown had been trespassing on the property Johnson lived on. Johnson told the troopers that McKown came out of the cabin, told him to leave, and turned to head back inside. Johnson said he shot at McKown when MceKown turned around. Johnson said he fired all six shots from his handgun at MeKown's back. Johnson added, "I wasn't just trying to hurt him. I wanted him dead then." Johnson said he then took his rifle and shot McKown while he tried to crawl away. McKown was shot eight times. McKown died as a result of the gunshot wounds. The grand jury indicted Johnson for first-degree murder.

Johnson's statements to the troopers were recorded, and portions were played at trial. Johnson also reenacted the events at the cabin while the troopers videotaped; portions of the videotape were played at the trial

Johnson personally claimed that the tape recording of his on-the-scene statement to Trooper Susan Acquistapace had been altered. Johnson's trial attorney submitted a motion in limine seeking to prevent the State from relying on the tape but the attorney later withdrew the motion and told the court that he did not believe the tape had been altered. The defense did not object when the State played portions of the tape during its case in chief.

Before Johnson testified, Superior Court Judge Dale O. Curda issued a protective order barring Johnson from presenting evidence of his personal belief that the tapes had been altered. Nevertheless, Johnson testified, "Those are edits you're hearing. You're listening to edits," and implied that portions of his taped statement to Acquista-pace had been removed.

Johnson also sought to introduce a photograph of the victim's rifle inside the victim's cabin to support his claim that he killed McKown in self-defense. Judge Curda ruled that the photograph had minimal relevance and was unfairly prejudicial because the last time Johnson had seen McKown with the rifle was several years before Johnson killed McKown. But, when Johnson testified, he stated that McKown "turned to walk toward the cabin door, where there was a rifle inside the door...."

Johnson also testified that after he fired the first shots, injuring MeKown, "I had already committed myself to killing him at that time. ... I say that repeatedly. I didn't want him just hurt. I imply that I wanted him dead then, yes."

The court gave a self-defense instruction, and although it was not the version proposed by Johnson, Johnson did not object. Johnson specifically requested that the jury not be instructed on the lesser included offense of second-degree murder, so there were no lesser included offense instructions. The jury returned a guilty verdiet on first-degree murder.

The evidence regarding McKown's rifle raises an arguable claim

Johnson sought to admit a photograph that showed that there was a rifle inside McKown's cabin when Johnson shot him. The court ruled that the presence of the rifle had minimal relevance and was more prejudicial than probative. Even so, Johnson testified that "there was a rifle inside the door" at McKown's cabin.

Johnson did not know the rifle was there and conceded when he testified that he had not seen McKown with any firearms and thought that McKown was probably unarmed. Even so, the court instructed the jury on self-defense. Johnson argued self-defense and cited his knowledge that McKown had a firearm during his argument.

Even though the court ruled that the photograph of the rifle and any evidence of the rifle's presence were not admissible, Johnson testified that McKown had a rifle inside the cabin. And Johnson referred to MceKown's firearm during his final argument.

Although Johnson's concern that McKown possessed a firearm was based on years-old information, that knowledge tended to support his claim that he subjectively feared for his safety because he thought McKown had access to a weapon. Thus Johnson could plausibly argue that Judge Curda abused his discretion by ruling that the photograph, and other evidence that McKown had access to a rifle in the cabin, was not admissible.

A claim is frivolous if there is no colorable argument that a zealous advocate could advance in support of the claim. We conclude that this potential claim is non-frivolous, that is, Johnson can plausibly argue on this record that Judge Curda should have admitted the photograph and other evidence that McKown possessed the rifle. This is not to say that the claim is necessarily meritorious. Perhaps the probative force of the photograph is small. Even so, because the presence of the rifle tended to support Johnson's claim that he reasonably feared McKown, Johnson can plausibly argue that Judge Cur-da abused his discretion by barring this evidence.

Because Johnson has a plausible argument on this issue, Johnson is entitled to have an attorney zealously advocate this claim.

Johnson's maximum sentence raises an arguable excessiveness claim

Judge Curda found that Johnson was a worst offender. He found that Johnson showed a "total lack of responsibility." He described McKown's murder as a "deliberate, cold-blooded execution." He found that Johnson's conduct showed "deliberate cruelty." Out of the Chaney sentencing factors, Judge Curda focused on Johnson's isolation. He imposed a 99-year term.

Johnson received the maximum 99-year sentence for his first-degree murder convietion. Although Judge Curda found that Johnson was a worst offender based on this offense, the pre-sentence report showed that Johnson had no significant adult criminal record (he had a 1970 failure to appear in Florida) and provided no information that Johnson had a juvenile record. The report also advised that Johnson appeared to have unaddressed mental health issues.

Even though our decision in Riley v. State suggests that a defendant who commits first-degree murder is often, by virtue of the crime itself, properly categorized as a "worst offender," we did not rule that first-degree murderers can always receive 99-year sentences, nor does Riley free sentencing judges from their obligation to base sentences on a careful consideration of the Chaney sentencing criteria. However, after Riley, a defendant who challenges a 99-year sentence for first-degree murder must show some reason to believe that his offense is mitigated or that his background is atypically favorable.

Again, we do not rule that Johnson's potential excessiveness claim is necessarily meritorious. Instead, we rule that Johnson's potential excessiveness claim is non-frivolous because Johnson has a colorable claim that his sentence is excessive.

Johnson himself identified several points on appeal in the brief he filed in response to his attorney's brief. But other than identifying these points, Johnson has not cited the record to support those issues or pointed out any authority that supports those claims.

We have not reviewed the record in light of Johnson's personal claims to decide whether any of those claims are frivolous. Nor have we considered whether the other claims that Johnson's attorney raised in his supplemental brief are frivolous.

Although we have discussed two non-frivolous claims above, Johnson's attorney retains the tactical choice to decide what issue or issues should be advanced in this appeal on Johnson's behalf-whether the issues are those we identified, the issues raised by Johnson personally, the remaining issues identified in the supplemental brief, or any other issues identified with additional analysis.

We address one last point. Johnson's present attorney has twice claimed in this appeal that Johnson's case presents no non-frivolous issues. If Johnson requests that the case be reassigned to another attorney, we direct the Office of Public Advocacy to reassign the case.

Conclusion

We order additional briefing. We direct the clerk's office to issue an order specifying that Johnson's opening brief is due ninety days from the date of this opinion.

      . AS 11.41.100(a).

      . Johnson v. State, 24 P.3d 1267 (Alaska App.2001).

      . 18 P.3d 71 (Alaska App.2001).

      . Id. at 77.

      . Griffin, 18 P.3d at 73.

      . See State v. Wortham, 537 P.2d 1117, 1120 (Alaska 1975).

      . 720 P.2d 951 (Alaska App.1986).

      . AS 12.55.005; Riley, 720 P.2d at 952; State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970).

      . See Sakeagak v. State, 952 P.2d 278, 285 (Alaska App.1998).

      . Johnson identified eleven claims:
      1. Deliberate sabotage of evidence by State of Alaska State Police; 2. Trial Fraud; 3. Obstruction of Appeal & Justice; 4. Fabrication & Destruction of Evidence; 5. Coverup of Trial Fraud by State of Alaska Court System; 6. Failure to allow Credible Demonstration by Myself in my own Defense of Simultaneous Recordings. One altered, one is not; 7. Obstruction of Brief of Appellant; 8. Compromise of Trial Records; 9. Sabotage of Democracy & Treason; 10. Fabrication of Confession; 11. Failure to Correct Errors.

      . See Tucker v. State, 892 P.2d 832, 837 & n. 7 (Alaska App.1995).


text:
    Frank J. OLSON, Appellant, v. STATE of Alaska, Appellees.
    No. A-8379.
    Court of Appeals of Alaska.
    Sept. 12, 2003.
    Leslie Hiebert, Assistant Public Advocate, and Brant McGee, Public Advocate, Anchorage, for Appellant.
    Erin E. White, Assistant District Attorney, Susan Parkes, District Attorney, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

STEWART, Judge.

Frank J. Olson was convicted of violating a long-term domestic violence protective order by approaching the residence of Cay Jackson. Olson knew at the time he approached Jackson's apartment building that the court had ordered him not to do so. But he had never received notice of the hearing on the petition for the protective order, and thus never had an opportunity to contest the allegations of domestic violence or the terms of the order. Olson filed an application for post-conviction relief, claiming that this lack of notice was a valid defense to the charge of violating the protective order, and that his attorney provided ineffective assistance of counsel by failing to file a motion to dismiss the case on this ground. Because we conclude that Olson's claims have merit, we grant his application for post-conviction relief and reverse his conviction.

Facts and proceedings

On September 2, 1997, Master Andrew Brown held a hearing on Larry Jackson's petition to the court for a long-term domestic violence protective order against Olson. Jackson had previously been Olson's third-party custodian; he was also the father of Olson's former girlfriend, Melodie Jackson. Larry Jackson alleged, among other things, that Olson had threatened to kill him. Following that hearing, Master Brown issued a protective order prohibiting Olson for six months from contacting Larry Jackson or approaching his home, vehicle, or work place. The order also barred Olson from approaching the apartment building of Larry Jackson's other daughter, Cay Jackson.

On April 3, 1998, a jury convicted Olson of violating the long-term domestic violence protective order by approaching Cay Jackson's residence. Two years after this convietion, Olson brought an application for post-conviction relief, claiming, among other things, that his conviction was void because Master Brown had issued the long-term protective order without giving him notice and an opportunity to be heard. Olson claimed that his trial attorney was ineffective because he never challenged his conviction on this ground, even though Olson told his attorney before trial that he had received no notice of the September 2, 1997, hearing.

District Court Judge Gregory J. Motyka denied Olson's application for post-conviction relief, and Olson appealed to this court. We upheld Judge Motyka's decision on all but one of Olson's claims: because the record was unclear as to whether Olson had received notice of the September 2, 1997, hearing on Jackson's petition for a long-term protective order, we directed the district court to reconsider Olson's assertion that it lacked personal jurisdiction over him when it issued the order. Generally, a judgment is void if the court that issued the judgment lacked personal jurisdiction over the defendant or otherwise acted in a manner inconsistent with due process of law.

Following an evidentiary hearing, Judge Motyka found that Olson had never received notice of the hearing on Jackson's petition for a long-term protective order. Judge Mo-tyka then addressed the question this court had posed when it remanded the case: If Olson never received notice of the hearing, did he have a valid defense to the charge of violating the long-term protective order, even though he knew the terms of the order before he violated it? And, if so, did he receive ineffective assistance of counsel because his attorney did not file a motion to dismiss the case on this ground?

Judge Motyka concluded that Olson did not have a valid claim and reaffirmed his dismissal of Olson's application for post-conviction relief He held that notice and an opportunity to be heard were not constitutionally required in Olson's case because O1-son had no interest in harassing Jackson, and the State had a strong countervailing interest in preventing domestic violence. He also ruled, based on our decisions in Jacko v. State and MacDonald v. State, that once Olson had received notice that the protective order had been issued, he was obliged to comply with the order until it was vacated by the court.

Following Judge Motyka's ruling, the parties submitted supplemental briefs.

Discussion

Was the long-term protective order issued against Olson void?

The statute governing long-term domestic violence protective orders, AS 18.66.100, requires a court receiving a petition for a protective order to "schedule a hearing and provide at least 10 days' notice to the respondent of the hearing and of the respondent's right to appear and be heard, either in person or by an attorney." Following that hearing-whether or not the respondent appears-the court may issue a long-term protective order if it finds by a preponderance of the evidence that the respondent committed domestic violence against the petitioner. The legislature has thus specified in the statute authorizing long-term domestic violence protective orders what type of notice is required for a court to assert personal jurisdiction over the person who is to be bound by the order.

On remand, Judge Motyka found that Master Brown had issued the long-term protective order directing Olson to stay away from Cay Jackson's residence without giving Olson the prior notice and opportunity to be heard mandated by statute. In light of Judge Motyka's finding, we conclude that the district court never acquired personal jurisdiction over Olson, and the protective order issued against him was void.

Was Olson nevertheless required to obey the void protective order?

Judge Motyka held that even if the protective order was void, Olson could still be convicted of violating the order because he had been served with a copy of the order and was aware of its terms. He reasoned, based on our decisions in MacDonald and Jacko, that Olson was obliged to comply with the void order until it was vacated by the court.

In reaching this conclusion, Judge Motyka failed to properly distinguish between short-term domestic violence protective orders, which the legislature has authorized courts to issue ex parte, and long-term protective orders, which the legislature has declared may not be issued without giving the respondent notice and an opportunity to be heard. We have upheld convictions for violating short-term domestic violence protective orders where the defendant knew of the order but was not properly served, and where the order was later vacated by the court. But in those instances, the court had jurisdiction to issue the order without prior notice to the defendant. We have never held that a person must comply with an order that the legislature has said may not be issued ex parte if that person had no notice or opportunity to be heard before the order was issued.

The weight of authority is against adopting such a doctrine. The well-settled rule in other jurisdictions is that a person may collaterally attack a judgment as void on the ground that the court issuing the judgment lacked jurisdiction over the person or subject matter, or the authority to render the particular judgment. Applying this rule, courts have reversed convictions for criminal contempt of orders that were issued without notice to the party charged with contempt. By analogy, Olson could not be convicted for violating a protective order that was issued by a court that had no jurisdiction to issue the order.

In Jacko, we recognized that this general rule did not apply in the case of temporary restraining orders. We ruled that "a person is obliged to obey a restraining order-even an illegal one-until, through judicial process, the order is vacated or reversed." We concluded that Jacko was required to obey the 20-day protective order and could be convicted for violating the order, even though the court ultimately held that it had no authority to restrain Jacko because Jacko and the petitioner were not "household members."

But a short-term domestic violence protective order is a temporary order issued to prevent an imminent threat of domestic violence, and the legislature has authorized courts to issue such protective orders ex parte. Because the orders are temporary, and the need is urgent, we concluded in MacDonald that notice of the order after it is issued suffices to protect the respondent's due process rights.

Olson's case presents a different circumstance. The long-term protective order issued against him was not an emergency order aimed at averting an immediate threat of domestic violence. The legislature has declared that courts may not issue long-term protective orders without prior notice and an opportunity to be heard. Therefore, the general rule that a person may collaterally attack a judgment for lack of personal jurisdiction applies. Olson may not be punished for failing to comply with the protective order in this case because the court did not take the statutorily mandated steps to acquire personal jurisdiction over him. We therefore conclude that Olson's lack of notice before the protective order was issued was a valid defense to the charge of violating the order.

Did Olson receive ineffective assistance of counsel?

Because Olson raised this claim for the first time in his application for post-convietion relief, he is only entitled to post-convietion relief if he can show that his trial attorney was ineffective for failing to raise this defense when Olson was prosecuted.

In Risher v. State, the supreme court adopted a two-prong test for evaluating claims of ineffective assistance of counsel. First, defendants must show that their counsels' performance fell below the "range of competence displayed by one of ordinary training and skill in the criminal law." Second, defendants must show that this lack of competency had an adverse impact on the ease that contributed to their convictions. Defendants have the burden of proving their counsels' lack of competency by clear and convincing evidence. This includes the burden to rebut the strong presumption that the attorneys' actions stemmed from "sound tactical considerations."

Because Olson has established that the long-term protective order was void and that he could not be convicted of violating it, he has shown that his attorney's failure to raise this claim affected the outcome of his trial. Olson's trial attorney concedes that there was no strategic reason not to attack the court's personal jurisdiction on this basis. Thus, the only remaining question is whether an attorney of ordinary training and skill would have challenged the court's jurisdiction to convict Olson for violating the long-term order because it was issued without prior notice or opportunity to be heard.

As noted earlier, AS 18.66.100(b) requires the court to "schedule a hearing and provide at least 10 days' notice to the respondent of the hearing and of the respondent's right to appear and be heard" whenever a petition for a protective order is filed. This statutory language should have alerted son's attorney that any order issued without notice would be void. Olson's trial attorney acknowledged in his affidavit that Olson told him before trial that he had received no notice of the hearing at which the long-term order was issued. The State does not contest this assertion. Although the long-term order contradicted Olson's claim-a box was checked on the order indicating that Olson had received notiee-a transcript of the hearing reveals no discussion of whether Olson had received notice, and there is no return of service in the record. Given these circumstances, we conclude that an attorney of ordinary competence would have challenged the court's jurisdiction to issue the long-term protective order without the notice and opportunity to be heard mandated by statute. We therefore conclude that Olson's trial attorney provided ineffective assistance of counsel.

Conclusion

For the foregoing reasons, we REVERSE the judgment of the district court. Olson is entitled to post-conviction relief, and that relief is reversal of his conviction.

      . Olson was apparently ordered to stay away from Cay Jackson's residence based on Larry Jackson's testimony that Olson had made threats at that location.

      . AS 11.56.740(@a).

      . Olson v. State, Alaska App. Memorandum Opinion and Judgment No. 4442, 2001 WL 1007464 (September 5, 2001).

      . Id. at 8, 2001 WL 1007464 at *4.

      . See Aguchak v. Montgomery Ward Co., Inc., 520 P.2d 1352, 1354 (Alaska 1974); Holt v. Powell, 420 P.2d 468, 471 (Alaska 1966).

      . Olson, Memorandum Opinion and Judgment No. 4442 at 8, 2001 WL 1007464 at *4.

      . Id. at 5, 11-23, 2001 WL 1007464 at *3, 6.

      . 981 P.2d 1075 (Alaska App.1999).

      . 997 P.2d 1187 (Alaska App.2000).

      . AS 18.66.100(b)-(c) authorize courts to prohibit the respondent indefinitely from committing or threatening to commit domestic violence; other provisions of a long-term protective order, for example those barring the respondent from approaching the petitioner's residence, are effective for six months unless the court dissolves them earlier at the request of either party; AS 18.66.110(a)-(b) authorize emergency and ex parte protective orders, which expire, respectively, in 72 hours or 20 days, unless the court dissolves them earlier.

      . AS 18.66.100(b).

      . Id.

      . See Holt, 420 P.2d at 471; see also Aguchak, 520 P.2d at 1354; Smith v. Smith, 117 Ariz. 249, 571 P.2d 1045, 1048 (Ariz.App.1977); Lee v. Placer Title Co., 28 Cal.App.4th 503, 33 Cal.Rptr.2d 572, 575 (1994); Faulkner v. Kirkes, 276 P.2d 264, 265 (Okla.1954); Farrington v. Swenson, 210 N.W.2d 82, 85 (N.D.1973); American Family Mut. Ins. Co. v. Royal Ins. Co. of America, 167 Wis.2d 524, 481 N.W.2d 629, 632-33 (1992); cf. State, Dep't of Corrections v. Kila, Inc., 884 P.2d 661, 661-62 (Alaska 1994); see generally 62B Am.Jur.2d, Process § 4 at 748-49 (1990).

      . See MacDonald, 997 P.2d at 1189-90.

      . See Jacko, 981 P.2d at 1077-78.

      . See Annotation, Right to Punish for Contempt for Failure to Obey Court Order or Decree Either Beyond Power or Jurisdiction of Court or Merely Erroneous, 12 A.LR.2d 1059, 1067 (1950), and Later Case Service (1997).

      . See, e.g., Smith v. People, 2 Colo.App. 99, 29 P. 924, 926-27 (1892); Williams v. Koelsch, 67 Idaho 341, 180 P.2d 237, 240 (1947); Singuefield v. Valentine, 160 Miss. 61, 133 So. 210, 211 (1931); People ex rel. Sandnes v. Sheriff of Kings County, 164 Misc. 355, 299 N.Y.S. 9, 13-14 (1937); Ex parte Renfro, 115 Tex. 82, 273 S.W. 813, 814 (1925).

      . Jacko, 981 P.2d at 1078.

      . See MacDonald, 997 P.2d at 1189-90.

      . See generally 12 A.L.R.2d 1059 § 2, § 3, at 1067 and § 19, at 1090-91.

      . 523 P.2d 421 (Alaska 1974).

      . Id. at 424-25.

      . Id. at 424.

      . State v. Jones, 759 P.2d 558, 573 (Alaska App.1988); Risher, 523 P.2d at 424-25.

      . AS 12.72.040; Alaska R.Crim. P. 35.1(g).

      . Jones, 759 P.2d at 569.