author: STEWART, Judge.

text:
    Kirk Merland CRAWFORD, Appellant, v. STATE of Alaska, Appellee.
    No. A-8082.
    Court of Appeals of Alaska.
    April 25, 2003.

      Brent R. Cole and Colleen J. Moore, Mar-ston & Cole, P.C., Anchorage, for Appellant.
    Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Bo-telho, Attorney General, Juneau, for Appel-lee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

STEWART, Judge.

Kirk Merland Crawford was stopped and arrested for reckless driving. The police searched his car after the arrest and found evidence in the car's console that led to a charge of fourth-degree misconduct involving a controlled substance. Crawford moved to suppress that evidence, arguing that the search was not justified. Superior Court Judge pro tem. John R. Lohff concluded that the search was authorized as a search incident to arrest. Crawford entered a no contest plea, preserving his right to appeal.

We hold that, for purposes of the search-incident-to-arrest exception, the center console of Crawford's car is not a container associated with the person of the arrestee. Because there would not be evidence of reckless driving in the console, the search can only be justified as a search for hidden weapons. However, Judge Lohffs findings did not address that issue so we remand for additional findings.

Facts and Proceedings

On March 28, 2000, shortly after noon, Anchorage Police Officer Indrek Oruoja saw Kirk Crawford drive by him at a speed of approximately fifty miles per hour in a thirty miles-per-hour zone on I Street. He watched Crawford move from the far right lane to the far left lane and back to the far right lane in the distance of five blocks without using turn signals. Officer Oruoja pulled Crawford over. Oruoja saw that Crawford "kept looking back into the mirror and then he was making motions inside the vehicle ... and he was basically fidgeting in the driver's seat as if he was moving objects around." Officer Oruoja said he thought "from a standpoint of safety, that there could be a weapon involved, he could either be concealing a weapon or producing a weapon."

Officer Oruoja approached the vehicle and observed that Crawford was jumpy and nervous. He testified that he asked Crawford to shut off the vehicle and give him the keys, but Crawford refused to give him the keys. Officer Oruoja then pulled Crawford from the vehicle Crawford became belligerent, thrashed about, and yelled obscenities. Anchorage Police Officer Christopher Ritala and Officer Oruoja handcuffed Crawford, told him he was under arrest for reckless driving, and placed him in the back of the police car.

After placing Crawford in the police Cir, Officer Oruoja returned to Crawford's car and searched the area that had been within Crawford's immediate reach when Crawford was sitting in the driver's seat. He found a little league baseball bat between the driver's seat and the center console. He also opened a small compartment in the center console and found crack cocaine and cocaine paraphernalia. The State charged Crawford by information with one count of reckless driving and one count of misconduct involving a controlled substance in the fourth degree. The grand jury indicted Crawford on the count of misconduct involving a controlled substance in the fourth degree.

Crawford filed a motion to suppress the cocaine and cocaine paraphernalia found in the compartment in the center console and to dismiss the indictment for fourth-degree misconduct involving a controlled substance. Judge Lohff denied the motion, holding that the search was a proper search incident to arrest under Dunbar v. State. Crawford pleaded no contest to fourth-degree misconduct involving a controlled substance and now appeals the denial of his suppression motion.

Discussion

Crawford argues that Judge Lohff improperly denied his suppression motion because the search of his vehicle was not a lawful search incident to arrest. He claims that the officers were not looking for evidence associated with the crime charged and that the search could not be justified as necessary for police safety because Crawford was handcuffed in the back of the police vehicle at the time of the search.

We review the facts of the case in the light most favorable to the trial court's ruling. Moreover, we must accept the trial court's findings of fact unless they are shown to be clearly erroneous. However, once the facts are established (using these two rules), we independently assess whether the facts support the trial court's legal conclusions.

A police search conducted without a warrant is illegal unless the search is justified under one of the recognized exceptions to the warrant requirement. One of the recognized exceptions to the warrant requirement is the search incident to arrest.

When the police conduct a search incident to arrest, they may search the area within the arrestee's reach at the time the arrest was made. (This remains true even though the arrestee has been removed from the immediate area, or has been restrained, or both, at the time the search is conducted.) But there are special rules that govern police authority to open and search closed containers that they find within this area.

If the container is of the type "immediately associated with the person" of the arrestee-for example, a purse or a jacket -then the officers can open and search it. However, if the closed container is not of the type "immediately associated with the person," then the officers can open and search the container only if they have reason to believe that it contains a weapon or evidence of the crime for which the person has been arrested. Otherwise, the police are limited to seizing the container and applying for a warrant to open and search it.

Thus, one of the primary questions presented in this appeal is whether the center console of Crawford's car was a container "immediately associated with his person." Although the center console of a car or truck is designed for the storage of personal items and is generally accessible to the driver (and other occupants of the front seat), it is not worn about the person like a purse or carried upon the person like a jacket. It is more akin to a briefease-a container which, according to our supreme court, is not "immediately associated with the person. We therefore conclude that when the police arrest the driver of a vehicle, they are not authorized to search the center console of that vehicle as a matter of course. Rather, a warrantless search of the console is permissible only if the police have reason to believe that it contains a weapon or that it contains evidence of the crime for which the driver has been arrested.

As our supreme court observed in Hinkel v. Anchorage, there is generally no evidence associated with the crime of reckless driving. Thus, if the officers' warrantless search of Crawford's console is to be upheld, it must be on the basis that the officers had reason to believe that the console contained a weapon.

As we noted earlier, Officer Oruoja stated that he was concerned that there might be a weapon in Crawford's vehicle. Further, when the trial court ruled on the suppression motion, the court noted that Officer Oruoja "had] reported ... some safety concerns." But the trial court made no finding on the issue of whether the facts known to Oruoja at the time of the search provided an articulable and reasonable basis to believe that the console might contain a weapon. We must therefore remand this case to the superior court.

We REMAND Crawford's case to the superior court, and we direct the superior court to make findings as to whether there was an articulable and reasonable basis to believe that the center console of Crawford's vehicle might contain a weapon. Further, because the search in this case actually involved a small inner compartment of that console, the superior court must also make findings as to whether there was reason to believe that the small inner compartment was large enough to contain a typical weapon-or whether there was some reason to believe that Crawford possessed an atypically small weapon.

The superior court shall transmit its findings to this court within ninety days and shall serve the findings on the parties. After the superior court issues its findings, the parties shall have thirty days to file supplemental memoranda addressing the superior court's findings. We shall then renew our consideration of Crawford's appeal.

We retain jurisdiction.

      . AS 28.35.040

      . AS 11.71.040(a)G)(A).

      . See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974).

      . 677 P.2d 1275, 1277 (Alaska App.1984).

      . See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974).

      . State v. Joubert, 20 P.3d 1115, 1118 (Alaska 2001).

      . Id.

      . Wilburn v. State, 816 P.2d 907, 911 (Alaska App.1991); see also McCoy v. State, 491 P.2d 127, 132-34 (Alaska 1971) (independently assessing whether facts support trial court's legal conclusions).

      . Schraff v. State, 544 P.2d 834, 838 (Alaska 1975).

      . See McCoy, 491 P.2d at 138.

      . See Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969); Dunbar, 677 P.2d at 1277.

      . Dunbar, 677 P.2d at 1277.

      . Hinkel v. Anchorage, 618 P.2d 1069, 1071 (Alaska 1980).

      . Dunn v. State, 653 P.2d 1071, 1082 (Alaska App.1982).

      . Id. at 1081.

      . Id. at 1082.

      . Id.

      . Hinkel, 618 P.2d at 1071-72 (citing with approval United States v. Berry, 560 F.2d 861 (7th Cir.1977), vacated on other grounds, 571 F.2d 2 (7th Cir.1978) (holding that an attache case should be categorized as luggage-and thus governed by the rule in United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977)-rather than treated as an article of clothing or other container immediately associated with the person)).

      . 618 P.2d 1069 (Alaska 1980).

      . Id. at 1070.


source: Caselaw Access Project

author: COATS, Chief Judge.

license: Public Domain

text:
    Bradford L. MORTON, Appellant, v. STATE of Alaska, Appellee.
    No. A-8210.
    Court of Appeals of Alaska.
    May 2, 2003.
    Marcia E. Holland, Assistant Public Defender, Fairbanks, and Barbara K. Brink, Public Defender, Anchorage, for Appellant.
    Kenneth J. Diemer, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Barbara J. Ritchie, Acting Attorney General, Juneau, for Appel-lee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

COATS, Chief Judge.

A jury convicted Bradford L. Morton of burglary in the second degree, theft in the third degree, criminal mischief in the third degree, and possession of burglary tools. Morton was convicted based on evidence that he had broken into a gift shop and stolen jewelry.

Morton appeals his conviction for possession of burglary tools, contending that he could not be convicted of that offense for possession of an ordinary screwdriver and rubber mallet, neither of which had been adapted or designed for use in committing a burglary. The State has confessed error. We accept the State's concession and order the superior court, on remand, to enter a judgment of acquittal on Morton's charge that he possessed burglary tools.

Alaska Statute 11.46.3815 criminalizes the possession of burglary tools. A person commits this crime if he possesses the burglary tool "with intent to use or permit use of the tool in the commission of ... burglary in any degree." The statute defines the term "burglary tools" as:

(1) nitroglycerine, dynamite, or any other tool, instrument, or device adapted or designed for use in committing a erime referred to in (a)(1)-(8) of this section; or
(2) any acetylene torch, electric are, burning bar, thermal lance, oxygen lance, or other similar device capable of burning through steel, concrete, or other solid material.[]

Because Morton did not possess explosives or a burning device capable of penetrating steel or other solid material, Morton could have only violated the statute if his tools were "adapted or designed" for use in committing a burglary.

The legislative commentary to AS 11.46.8315 expressly states the legislature's intent to not criminalize the possession of ordinary tools, even if those tools were used to commit a burglary. The commentary to AS 11.46.315 states:

[UJnless the defendant possessed nitroglycerine, dynamite, "an acetylene torch, electric are, burning bar, thermal lance, oxygen lance or other similar device capable of burning through steel, concrete, or other solid material," the state must establish that the tool was "adapted or designed for use" in committing one of the three target crimes. That the tool was "commonly used for committing" the offense is not sufficient. This exelusion is necessary to insure that possession of items such as screwdrivers, toothpicks or rubber gloves will not give rise to prosecution under the statute.[]

The State concedes that Morton possessed an ordinary screwdriver and an ordinary rubber mallet that had not been altered in any manner and that both items were not designed to commit a burglary. He therefore did not commit this offense.

We accordingly direct the superior court, on remand, to issue a judgment of acquittal on the charge that Morton possessed burglary tools.

Morton's conviction for possession of burglary tools is VACATED. On remand the superior court shall enter a judgment of acquittal.

      . AS 11.46.310(a).

      . AS 11.46.140(a).

      . AS 11.46.482(a).

      . AS 11.46.315(a).

      . AS 11.46.315(b)(1)-(2).

      . Commentary on the Alaska Revised Criminal Code, Senate Journal Supp. No. 47 at 105, 1978 Senate Journal 1399.


text:
    Todd Eric PORTERFIELD, Appellant, v. STATE of Alaska, Appellee.
    No. A-7899.
    Court of Appeals of Alaska.
    May 2, 2003.

      Margi A. Mock, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for Appellant.
    Kenneth J. Diemer, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruee M. Botelho, Attorney General, Juneau, for Appellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

STEWART, Judge.

A jury convicted Todd Eric Porterfield of first-degree murder and first-degree arson for starting a fire that killed Walter Roll. At the trial, the superior court admitted recordings of statements by Porterfield's wife, Michele S. Porterfield, to a third party and the third party's testimony describing Mrs. Port-erfleld's unrecorded statement about the fire and homicide; those statements implicated both Mr. and Mrs. Porterfield in the arson and homicide. Porterfield argues that the court abused its discretion when it admitted this evidence.

Based on our review of the record, we conclude that the superior court did not abuse its discretion when it admitted evidence of Mrs. Porterfield's statements as declarations against interest. We also conclude that admission of those statements did not violate Porterfield's confrontation rights.

Background facts

On March 21, 1999, a fire in Delta Junetion killed Walter Roll. Roll suffered burns to his upper body, but died of smoke inhalation. The initial investigation found no indication that the fire was intentionally set. During the investigation, Porterfield was arrested on a warrant from Washington State. Soon after the fire, Diana Knight contacted the Alaska State Troopers. Knight reported that Porterfield's wife told her that the Porter-fields started the fire that killed Roll.

The police obtained a Glass warrant and secretly recorded conversations between Knight and Mrs. Porterfield. After recording Mrs. Porterfield's statements, the State arranged to have Porterfield released under the guise that Knight and her husband arranged to post bail. On April 2, the Knights picked Porterfield up in Fairbanks in a van wired for audio surveillance and drove toward Delta. ‘

During the drive, Porterfield admitted to the Knights that he was responsible for the arson and Roll's homicide; the police recorded this conversation pursuant to a Glass warrant as well. The troopers stopped the van and arrested Todd. The troopers advised Porterfield of his rights, and Porterfield admitted responsibility for the arson and Roll's death.

The grand jury indicted Porterfield and his wife for first-degree murder, second-degree murder, and first-degree arson. The superi- or court severed the defendants' trials.

Following several pre-trial discussions about the admissibility of Mrs. Porterfield's statements, Superior Court Judge Charles R. Pengilly admitted edited versions of Mrs. Porterfield's taped statements and Knight testified about Mrs. Porterfield's statement to her the day after the fire. The court also admitted Porterfield's statements to Knight during the drive and his statement to the troopers just after his arrest. The jury found Porterfield guilty of first-degree murder and first-degree arson.

Were Mrs. Porterfleld's statements admissible as statements against interest?

The State offered Mrs. Porterfield's statements to Knight as statements against interest under Evidence Rule 804(b)@8). Alaska Rule of Evidence 804(b)(8) allows the introduction into evidence of an unavailable declarant's statement which, when it was made, "so far tended to subject the declarant to ... criminal liability ... that a reasonable person in the declarant's position would not have made the statement unless believing it to be true." Judge Pengilly found that Mrs. Porterfield was unavailable. Porterfield has not challenged that ruling.

We examined Evidence Rule 804(b)(8) in Linton v. State. Linton's father told his domestic partner that Linton murdered Linton's wife and admitted that he helped Linton conceal the wife's body. After the father died, his domestic partner contacted the police, and the police arranged for him to record some "arguably inculpatory statements" by the defendant.

At trial, Linton argued that because the only crime for which his father might have been guilty was tampering with evidence, and because the statute of limitations had tolled before his father made the inculpatory statements, the statements were not against his father's penal interest and, therefore, were inadmissible. Whether or not the statute of limitations had run, we observed that the surrounding cireumstances did not indicate that the father was aware of the statute of limitations. Even if Linton's father had known about the statute of limitations, we reasoned that it was doubtful he would have "felt free" to tell people that he helped dispose of the body of a murder victim. We declared that the "proper focus" of the inquiry into the surrounding cireumstances is "the motivations of the out-of-court declarant.

In this case, it appears that Mrs. Porter-field had less reason to believe that her statement would not be reported to the authorities than did Linton's father. Linton's father revealed his conduct to his long-term domestic partner; Mrs. Porterfield admitted her misconduct to Knight, a recent acquaintance who Porterfield said could be trusted. As was the case in Linton, Mrs. Porterfield had no apparent reason to fabricate a claim against her husband when she spoke to Knight, and she had no reason to believe that the police suspected that she was involved in the arson and the resulting homicide when they tape recorded her statements. And Mrs. Porterfield's statements were made within a few days of the arson so there was little likelihood that memory loss or confusion could be attributed to the passage of time.

After we issued the first Linton opinion, the United States Supreme Court issued its opinion in Williamson v. United States. Williamson construed Federal Rule of Evidence 804(b)(8) to require that a declarant's non-inculpatory statements be severed before a declarant's statement is admitted under that exception to the hearsay rule:

In our view, the most faithful reading of Rule 804(b)(8) is that it does not allow admission of non-self-inculpatory statements, even if they are made within a broader narrative that is generally self-inculpatory. The district court may not just assume for purposes of Rule 804(b)(8) that a statement is self-ineulpatory because it is part of a fuller confession, and this is especially true when the statement implicates someone else.[]

However, the Court cautioned that the incul-patory nature of such severed statements "can only be determined by viewing [them] in context. Even statements that are on their face neutral may actually be against the de-clarant's interest[.] 5

We granted rehearing in Linton in light of Williamson, but reaffirmed the admission of the statement against interest. We noted that the severability of non-self-inculpatory statements from an overall inculpatory narrative was not a new concept and reasoned that Linton's trial attorney may have decided, tactically, not to argue severance rather than having failed to recognize the concept. Thus, we concluded that Linton had waived the issue.

We also reasoned that the statements appeared to be admissible even if subjected to the severability requirement established by Williamson. We observed that the individual statements of Linton's father, when viewed in the context of his entire narrative, were self-inculpatory. Thus, we concluded that there was no need to decide whether Williamson should guide our interpretation of Alaska Rule of Evidence 804(b)(8).

Most states addressing the issue have followed or approved of the Williamson analysis of severability when interpreting their evidence rules; a few have not.

Porterfield raised the severability question below and argued that statements by Mrs. Porterfield that did not directly inculpate her but only inculpated Porterfield had to be severed under a Williamson analysis. Ultimately, Judge Pengilly did not order severance of any of the statements suggested by Porterfield. Judge Pengilly analyzed Mrs. Porterfield's statements in context and determined that they were admissible as statements against interest because the statements implicating Porterfield "establish her complicity in [Porterfield's] erime[.]"

Although Williamson is followed by a large majority of the states that have addressed the question, this case does not require us to decide whether we should follow Williamson when applying Evidence Rule 804(b)(8) because direct application of that rule would not change the result in this case.

Judge Pengilly found that the statements by Mrs. Porterfield that were offered by the State established her accomplice Hability for Porterfield's conduct. The record supports that finding. The evidence showed that Mrs. Porterfield told Knight "how they killed Mr. Roll" when Knight spoke with her shortly after the fire, Knight contacted the troopers, agreed to help, and wore an electronic device to record more conversations with Mrs. Porterfield. In the portions of the subsequent tape-recorded conversations offered by the State, Mrs. Porterfield said that Port-erfield was the person who actually set the fire, but she admitted that they planned the event the night before; they both kept Roll entertained and made sure he was intoxicated and incapacitated before starting the fire.

In the context of all her statements, whenever Mrs. Porterfield described Porterfield's individual actions, that description was against her penal interest because the de-seription established her accomplice liability for Porterfield's conduct. Thus, applying Evidence Rule 804(b)@), Judge Pengilly could reasonably find that viewing Mrs. Port-erfleld's statements in context, the statements "so far tended to subject [her] to ... criminal liability ... that a reasonable person in [her] position would not have made the statement unless believing it to be true." Thus, Judge Pengilly did not abuse his discretion when he concluded that Mrs. Porter-field's statements were declarations against interest under Evidence Rule 804(b)(8).

Were Porterfield's confrontation rights satisfied?

Although evidence may be admissible under an exception to the hearsay rule, that evidence must still be excluded if a defendant's confrontation rights are violated." Under the confrontation clause, a hearsay statement is admissible against a defendant: "only if it bears adequate "indicia of reliability.' Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness."

When we decided Linton, we recognized the debate whether a declaration against interest implicating a third party was a firmly rooted hearsay exception or not. We decided that the "prudent choice" was to require that such statements have "particularized guarantees of trustworthiness" in order to satisfy confrontation clause concerns. This requirement foreshadowed the United States Supreme Court's plurality opinion in Lilly v. Virginia that for confrontation clause purposes, a declaration against penal interest implicating a third party is not a firmly rooted hearsay exception.

When deciding whether particularized guarantees of trustworthiness exist, a court looks at the totality of the cireum-stances, but "the relevant cireumstances include only those that surround the making of the statement and that render the de-clarant particularly worthy of belief." Judge Pengilly discussed Linton and Lilly and decided that admission of Mrs. Porter-field's statements did not violate the confrontation clause. Judge Pengilly found that the cireumstances did not suggest that Mrs. Porterfield had a motivation to shift blame when she made the statements, or a reason to anticipate that the statements would be shared with law enforcement. Mrs. Porterfield's initial statement to Knight shortly after the fire was unprompted. Mrs. Porterfield informed Knight that Porterfield advised her that she could trust both Mr. and Mrs. Knight. Mrs. Porterfield then disclosed to Knight that she and Porterfield had killed Roll by starting the fire. In that first conversation and in the following taped conversations, there was no apparent reason for Mrs. Porterfield to fabricate her admissions. In all her statements, she described a very recent occurrence. Even though Mrs. Port-erfield's account implicated Porterfield in the arson and murder, Judge Pengilly found that there was no indication that Mrs. Porterfield minimized her own role or tried to shift blame to Porterfield. Nothing in the cireumstances of the statements provides a reason why Mrs. Porterfield would falsely implicate her husband. Significantly, Mrs. Porterfield had no reason to believe that her statements to Knight would curry any favor with the police or the State because Judge Pengilly found that she had no reason to anticipate the statements would be relayed to law en-foreement.

Also, Knight was subject to cross-examination by Porterfield when she testified at trial about Mrs. Porterfield's statement to her just after the fire. Mrs. Porterfield's other statements offered by the State were tape-recorded and the jury heard the content of those statements when they were played.

Considering all these circumstances, we agree with Judge Pengilly's conclusion that Mrs. Porterfield's statements had the particularized guarantees of trustworthiness that satisfied Porterfield's confrontation rights.

Conclusion

The judgment of the superior court is AFFIRMED.

      . AS 11.41.100(a) and AS 11.46.400(a), respectively.

      . See State v. Glass, 583 P.2d 872 (Alaska 1978), on reh'g, 596 P.2d 10 (Alaska 1979) (holding that the state constitution requires police to obtain judicial authorization before secretly recording a person's private conversations).

      . AS 11.41.110(a).

      . 880 P.2d 123 (Alaska App.1994), aff'd on reh'g, 901: P.2d 439 (Alaska App.1995), [hereinafter Linton II ].

      . Id. at 125.

      . Id. at 125-26.

      . AS 11.56.610.

      . Linton, 880 P.2d at 127.

      . Id.

      . Id.

      . Id. at 128 n. 5.

      . See id. at 128.

      . 512 U.S. 594, 114 S.Ct 2431, 129 L.Ed.2d 476 (1994).

      . Id. at 600-01, 114 S.Ct. at 2435.

      . Id. at 603, 114 S.Ct. at 2436-37.

      . Linton II, 901 P.2d at 441-42.

      . Id. at 442.

      . Id. at 441.

      . Id. at 442.

      . Id.

      . See State v. Soto-Fong, 187 Ariz. 186, 928 P.2d 610 (1996); People v. Duarte, 24 Cal.4th 603, 101 Cal.Rptr.2d 701, 12 P.3d 1110 (2000); State v. Schiappa, 248 Conn. 132, 728 A.2d 466 (1999); Smith v. State, 647 A.2d 1083 (Del.1994); Brooks v. State, 787 So.2d 765 (Fla.2001); Gabow v. Commonwealth, 34 S.W.3d 63 (Ky.2000); State v. Lucky, 755 So.2d 845 (La.1999); State v. Matusky, 343 Md. 467, 682 A.2d 694 (1996); State v. Dukes, 544 N.W.2d 13 (Minn.1996); Williams v. State, 667 So.2d 15 (Miss.1996); State v. Sheets, 260 Neb. 325, 618 NW.2d 117 (2000); State v. Benavidez, 128 NM. 261, 992 P.2d 274 (1999); People v. James, 93 N.Y.2d 620, 695 NYS2d 715, 717 N.E.2d 1052 (1999); Commonwealth v. Robins, 571 Pa. 248, 812 A.2d 514 (2002); State v. Pacheco, 763 A.2d 971 (R.I.2001); State v. Fuller, 337 S.C. 236, 523 S.E.2d 168 (1999); State v. Roberts, 142 Wash.2d 471, 14 P.3d 713 (2000); State v. Mason, 194 W.Va. 221, 460 S.E.2d 36 (1995); Johnson v. State, 930 P.2d 358 (Wyo.1996).

      . See People v. Newton, 966 P.2d 563 (Colo.1998); State v. Hills, 264 Kan. 437, 957 P.2d 496 (1998); State v. Sonthikoummane, 145 N.H. 316, 769 A2d 330 (2000); Chandler v. Commonwealth, 249 Va. 270, 455 S.E.2d 219 (1995).

      . See U.S. Const. Amend. VI; Alaska Const. art. I, § 11.

      . Linton, 880 P.2d at 129 (quoting Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980).

      . Id. at 129.

      . Id.

      . 527 U.S. 116, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999).

      . Id. at 134, 119 S.Ct at 1899.

      . Linton, 880 P.2d at 129 (quoting Idaho v. Wright, 497 U.S. 805, 819, 110 S.Ct. 3139, 3148, 111 L.Ed.2d 638 (1990)).


text:
    Larry PARROTT, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee.
    No. A-7829.
    Court of Appeals of Alaska.
    May 2, 2003.

      Rex Lamont Butler, James Adam Bartlett, Rex Lamont Butler & Associates, Anchorage, for Appellant.
    John E. McConnaughy III, Assistant Municipal Prosecutor, William A. Greene, Municipal Attorney, Anchorage, for Appellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

COATS, Chief Judge.

Following a bench trial, Larry Parrott was convicted of soliciting an undercover policewoman who was posing as a prostitute. He argues that District Court Judge Sigurd E. Murphy should have granted his motion for judgment of acquittal because he did not solicit the police offieer-she solicited him. He also argues that he was entrapped by the police and that his arrest violated due process, equal protection, and the separation of powers. Lastly, Parrott argues that the court was clearly mistaken in refusing to impose a suspended imposition of sentence and in ordering him to write an essay on the ills of prostitution. We reject Parrott's claims and affirm the district court's decision.

Facts and proceedings

At about midnight on May 27, 2000, Par-rott drove his pickup truck by the corner of 32nd Avenue and Spenard Road, where Anchorage Police Officer Bianca Dodson was posing as a prostitute. A short while later, Parrott returned to that intersection and stopped at the stop sign. After Parrott had lingered at the stop sign longer than necessary to make a turn, Officer Dodson approached. Parrott asked Dodson how she was doing, and she responded that she was "just looking around." Parrott asked Dodson several times if she was associated with the police, and she said she was not. Dodson then told Parrott that her prices were $20 for oral sex and $60 for sex. Parrott told Dodson she could get in the truck. Dodson asked Parrott what they were going to do, and he said he wanted oral sex. Dodson asked Parrott if he had any money and he reached for something, which Dodson assumed was his wallet. Dodson then signaled other officers who were observing the sting operation and Parrott was cited for soliciting prostitution.

At the close of the Municipality's case, Parrott moved for a judgment of acquittal, which the court denied. Parrott presented no evidence. Judge Murphy convicted Par-rott of soliciting prostitution and sentenced him to a $1,000 fine with $500 suspended, 10 days of jail with 10 days suspended, and 24 hours of community work service. Judge Murphy placed Parrott on probation for 1 year and directed him within 80 days to write an essay on the ills of prostitution.

Parrott appeals his conviction and sentence.

Discussion

Did the court err by denying Parrott's motion for judgment of acquittal?

Parrott argues that Judge Murphy should have granted his motion for judgment of acquittal because he did not solicit Officer Dodson for the purpose of prostitution. He argues that he was a passive participant in the encounter and that Officer Dodson solicited him by approaching his truck and telling him what she charged for sex. He argues that even if he had invited Officer Dodson into his truck for sex, he committed no crime because he did not initiate the contact.

The first question raised by this appeal is whether Parrott can be convicted under the municipal code for soliciting an act of prostitution. As we acknowledged in State v. Burden, under the common law a person cannot be convicted as an accomplice to an offense unless that person would face criminal liability for the completed offense If the Municipal Assembly intended prostitutes, but not their customers, to be punished for their part in a completed act of prostitution, then-absent indications to the contrary in the language or history of the soliciting ordinance-it is arguable that the common-law presumption applies and that the ordinance does not prohibit a prospective customer's solicitation of a prostitute (only a prostitute's or a procurer's solicitation of a prospective customer).

Anchorage Municipal Code (AMC) 8.65.020 makes it unlawful for any person to "knowingly engage in prostitution or assignation." Prostitution is defined as "the giving or receiving of the body for sexual conduct for hire." The Municipality argues that this definition plainly applies to both the prostitute, who gives his or her body for hire, and the prostitute's patron, who receives the body in return for consideration.

While this is one reasonable interpretation of the ordinance, the opposite conclusion is equally plausible. The Alaska prostitution statute, as originally drafted, defined prostitution as "the giving or receiving of the body by a female for sexual intercourse for hire." (In 1979, the Alaska Supreme Court struck the "by a female" language because it discriminated against female prostitutes by excluding the conduct of male prostitutes.) This parallel language in the former Alaska statute, which plainly encompassed only the prostitute's conduct, effectively refutes the Municipality's claim that the Anchorage ordinance unambiguously refers to both prostitutes and their customers.

Even assuming that the customer of a prostitute is not criminally liable for prostitution under the municipal code, the Assembly may have intended to depart from the common-law rule and encompass the conduct of potential patrons when it drafted the soliciting ordinance. The parties have advanced no legislative history that sheds light on the Assembly's original intent, and we have found none. However, the enforcement history of the soliciting ordinance resolves any ambiguity in the ordinance's language The Municipality has long prosecuted the prospective customers of prostitutes for soliciting prostitution.

Twenty years ago, in Amchorage v. Afualo, the Municipality appealed two district court decisions holding that the Municipality could not charge men who had approached undercover policewomen for sex with soliciting prostitution because the Alaska soliciting statute made only the conduct of prostitutes illegal. This court reversed the district court, holding that the Municipality could apply its soliciting ordinance to customers because Anchorage was a home rule city with broad powers of legislation and because the state legislature had not sought statewide uniformity in regulating commercial sexual relations. After Afualo, the Municipal Assembly reenacted and renumbered the soliciting ordinance, adding the "knowingly" mental state but making no other changes. The Assembly kept the same definition of prostitution. In retaining this language, the Assembly impliedly adopted the interpretation of the ordinance discussed in Afualo. We therefore conclude that regardless of the Assembly's original intent in drafting the soliciting ordinance, it has since ratified the Municipality's practice of prosecuting the prospective customers of prostitutes.

The question remains whether Par-rott's conduct amounted to soliciting for the purpose «of prostitution under AMC 8.65.030(A). That ordinance makes it unlawful for any person to "knowingly solicit, induce, entice, invite, or procure another for the purpose of prostitution[.]" Neither the Anchorage Municipal Code nor the Alaska Statutes define these terms. "Unless words have acquired a peculiar meaning, by virtue of statutory definition or judicial construction, they are to be construed in accordance with their common usage." The predominant meaning of these terms, taken together, is to tempt or entice; however, "solicit" and "invite" can also mean simply to "ask." Presumably the Assembly included all these terms in the ordinance because it meant to encompass this broad range of meaning. Furthermore, Parrott has pointed to nothing in the language of AMC 8.65.030(A) to indicate that only the person who initiates the dialogue that leads to a solicitation for sexual services can commit the offense of soliciting for the purpose of prostitution.

The district court found that Parrott committed the offense of soliciting when he invited Officer Dodson into his truck for the purpose of oral sex. As the court explained:

After being told the price of the goods, so to speak, he then invited her into his vehicle. Then she said what are we doing, he said we're having oral sex. And whether he used a euphemism for that or not, that was the statement. At that juncture with all the other evidence, he did not need to pull out money and hand it to her in order to reach the level of what the law requires as a knowing solicitation, inducement, enticement, invite, or procurement. He had invited her into his vehicle for the purpose of having oral sex contrary to the law.

Parrott challenges the district court's factual finding that he told Officer Dodson he wanted oral sex. But Officer Dodson testified that Parrott, after telling Dodson to get in the truck, "indicated we were going to do oral sex, he said that." Later, Dodson testified that Parrott had said either "a blow job" or "oral sex." During eross examination, Parrott's attorney asked Dodson: "So, Mr. Parrott says something that you associate with oral sex, could have been oral sex, could have [been] blow job, but whatever it was, it was something associated with oral sex?" Officer Dodson responded: "That's correct."

There was no ambiguity in Officer Dodson's testimony that Parrott asked her for oral sex. Indeed, Parrott did not suggest in closing argument that there was ambiguity in Officer Dodson's testimony on this issue. Given this evidence and argument, we conclude that there was substantial evidence to support the district court's finding that Par-rott had invited Dodson into his truck for oral sex. |

Parrott also complains that Officer Dodson's police report defined the crime of soliciting differently than the Anchorage ordinance. The police report used the phrase "suggesting and agreeing" in lieu of the terms "solicit, induce, entice, invite, or procure." Parrott argues that under this "misstatement of law" in the police report "it makes no difference who actively solicits whom." Parrott advances this argument to support his claim that Officer Dodson, operating under a misconception of the law, arrested him for non-criminal conduct. But Judge Murphy convicted Parrott under AMC 8.65.030(A). Consequently, the wording of the police report and Officer Dodson's understanding of the ordinance are irrelevant.

After reviewing the evidence, as we must, in the light most favorable to upholding the verdict, we conclude that there was "adequate relevant evidence to support a conclusion by a reasonable mind that there was no reasonable doubt" as to Parrott's guilt. The court thus properly held that Parrott had solicited prostitution under AMC 8.65.030(A) when he invited Officer Dodson into his truck for the purpose of oral sex. We therefore affirm the court's decision to deny Parrott's motion for judgment of acquittal.

Did the court abuse its discretion by refusing to dismiss the case on the ground of entrapment? Did the police conduct violate due process, equal protection, and the separation of powers doctrine?

Parrott next argues that the district court abused its discretion by not dismissing the case based on his claim that Officer Dodson's conduct amounted to entrapment. Parrott also argues that the district court failed to properly address the due process concerns implicit in his entrapment defense.

During closing argument, Parrott stated that he was "not arguing entrapment for the simple reason that the case law wants extreme and outrageous conduct." But Par-rott went on to urge the court to "look at the situation and make a determination about whether, under these cireumstances, there is entrapment." Judge Murphy declined to address the entrapment issue, noting that Par-rott had not filed the required pre-trial notice and ruling that it was "not appropriate" for Parrott to raise that defense for the first time in closing argument. The court did note that the entrapment argument "if you want to call it that ... does go along with his other argument."

We conclude that Parrott waived his entrapment claim because he did not raise it below. Even if he did attempt to raise the defense for the first time in closing argument, Judge Murphy acted within his disceretion by refusing to consider the claim.

Parrott also argues that the police denied him due process and equal protection by arresting him based on a standard police form that included an erroneous interpretation of AMC 8.65.030(A). He argues that the Anchorage Police Department's use of that form violated the separation of powers doe-trine by vesting legislative authority in the executive branch. Because none of these claims were raised below, we treat them as waived. In any event, as the district court found, Parrott's citation put him on notice that he was charged with soliciting prostitution under AMC 8.65.0830(A). Given that Parrott was properly convicted for violating this ordinance, we find no infringement of his constitutional rights.

Was the court clearly mistaken in refusing to impose a suspended imposition of sentence and in requiring Parrott to write an essay?

Parrott argues that Judge Murphy was clearly mistaken in refusing to impose a suspended imposition of sentence. He argues that his rehabilitation is a "foregone conclusion" because he is remorseful, aware of the stigma carried by his offense, and a forty-eight-year-old first-time offender. By statute, sentencing courts have discretion whether to impose a suspended imposition of sentence in a given case.

At trial, Parrott asked the court to impose a suspended imposition of sentence because he had no criminal history and his offense was not aggravated. Parrott's counsel told the court that Parrott was embarrassed by the criminal case but not that he was remorseful. Nor did Parrott express remorse in his statement to the court. Judge Murphy concluded that a suspended imposition of sentence was not appropriate given that Parrott was close to fifty years old and should have known better. And although Judge Murphy focused his remarks on deterrence and rehabilitation, he did not find that Parrott's rehabilitation was a "foregone conclusion." Rather, he stated that he was concerned about deterring Parrott and others, and about "what we can do in a rehabilitative sense to make sure that you don't come back here again." Given this record, we conclude that Judge Murphy was not clearly mistaken in deciding that a suspended imposition of sentence would not satisfy the sentencing goals of deterrence and rehabilitation in Parrott's case.

Parrott also argues that the court was clearly mistaken in requiring him to write an essay on the ills of prostitution. Parrott does not claim that Judge Murphy had no authority to order him to write an essay; instead, he argues that the essay requirement violates his right against self-incrimination. We find no merit in this argument. As the Municipality points out, Judge Murphy did not order Parrott to admit his crime; he ordered Parrott to 'write an essay on the harm to society of prostitution. A probationer cannot validly invoke the privilege against self-incrimination when there is "no real or substantial hazard of incrimination. The burden of establishing a hazard of incrimination is on the claimant. Parrott has not established that he has a valid claim of privilege with regard to the mandated essay. We therefore reject Parrott's claim that the essay requirement violates his right to silence.

Conclusion

The judgment of the district court is AFFIRMED.

      . Anchorage Municipal Code (AMC) 8.65.030(A).

      . 948 P.2d 991 (Alaska App.1997).

      . Id. at 992; see also Howard v. State, 496 P.2d 657, 660 (Alaska 1972).

      . AMC 8.65.010.

      . The interpretation of a statute or ordinance is a question of law we review de novo. Sosa v. State, 4 P.34 951, 953 (Alaska 2000).

      . Ch. 104, § 1, SLA 1955 (emphasis added).

      . Plas v. State, 598 P.2d4 966 (Alaska 1979).

      . See Norman J. Singer, Sutherland Statutory Construction, § 49.03, at 14-15 (6th ed.2000).

      . 657 P.2d 407 (Alaska App.1983).

      . Id. at 408-09.

      . Anchorage Ordinance (AO) 98-59(S), at 56 (comparing former AMC 8.14.030 with AMC 8.65.030(A)).

      . Anchorage Ordinance (A0) 98-59(8), at 55-56 {(comparing former AMC 8.14.010 with 8.65.010).

      . See Singer, Sutherland Statutory Construction, § 49:09, at 108-09 ("Legislative adoption is presumed conclusive when repeated reenactments follow a notorious practical interpretation.").

      . State, Dep't of Revenue v. Debenham Elec. Supply Co., 612 P.2d 1001, 1001 (Alaska 1980).

      . See Webster's New World College Dictionary (3d ed.1997) (definitions for solicit, induce, entice, invite).

      . See id. (definitions for solicit, invite).

      . See Ross v. State, 586 P.2d 616, 617-18 (Alaska 1978).

      . See Alaska R.Crim. P. 16(c)(5), which provides:
      Notice of Defenses. Unless a different date is set by the court, no later than 10 days prior to trial, the defendant shall inform the prosecutor of the defendant's intention to rely upon a defense of alibi, justification, duress, entrapment, or other statutory or affirmative defense. Failure to provide timely notice under this rule shall entitle the prosecutor to a continuance. If the court finds that a continuance is not an adequate remedy under the circumstances of the case, the court may impose other sanctions, including prohibiting the defendant from asserting the designated defense. The defendant shall give notice of an insanity defense or a defense of diminished capacity due to mental disease or defect in compliance with AS 12.47.

      . See Wettanen v. Cowper, 749 P.2d 362, 364 (Alaska 1988) (holding that arguments not raised below are considered waived on appeal absent plain error).

      . See Alaska R.Crim. P. 16(c)(5).

      . See Wettanen, 749 P.2d at 364.

      . Nattrass v. State, 554 P.2d 399, 401 (Alaska 1976) (citing AS 12.55.085(a)).

      . See AS 12.55.015 (listing authorized sentences).

      . Gyles v. State, 901 P.2d 1143, 1148 (Alaska App.1995) (quoting State v. Gonzalez, 853 P.2d 526, 530 (Alaska 1993)).

      . See id. at 1149.


text:
    In the Matter of Karen J. ROOSE, Attorney-Respondent.
    No. 02SA155.
    Supreme Court of Colorado, En Banc.
    April 21, 2003.
    As Modified on Denial of Rehearing May 12, 2003.

      Kim E. Ikeler, Assistant Regulation Counsel, Denver, Colorado, Attorney for Petitioner.
    Karen J. Roose, Lake City, Colorado, Attorney for Attorney-Respondent.
   Justice COATS delivered the Opinion of the Court.

Karen Roose, the respondent in the underlying attorney disciplinary proceeding, appealed from the order of the Hearing Board disbarring her and imposing costs. See People v. Roose, 44 P.3d 266 (Colo. PDJ 2002). The Board found that she had violated several provisions of the Colorado Rules of Professional Conduct by walking out of a depen-deney and neglect proceeding, despite being ordered by the court to remain as co-counsel, and by filing a notice of appeal and misrepresenting pertinent events to the court of appeals, after the trial court had terminated her appointment as counsel. Although we agree that the respondent violated the Rules of Professional Conduct, we hold that a proper application of the ABA Standards for Imposing Lawyer Sanctions leads to the conclusion that suspension rather than disbarment is the appropriate sanction.

I. PROCEDURAL HISTORY

Karen J. Roose was charged by the Attorney Regulation Counsel in two separate complaints, with violations of Colo. RPC 8.4(c) (knowingly disobeying an obligation under the rules of a tribunal); 84(d) (engaging in conduct prejudicial to the administration of justice); 1.1 (failing to provide competent representation to a client); 3.8(a) (knowingly making a false statement of material fact or law to a tribunal); and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation). All of the charges arose from Roose's conduct in connection with a dependency and neglect proceeding in Hinsdale County, styled In the Interest of S.S. and C.S., Case No. OOJVOL.

According to the findings of the Board, following a hearing at which Roose represented herself and testified, at the time of the events critical to this case, Roose had been practicing law for less than two years and was generally inexperienced with trial practice. In November 2000, she was appointed as attorney for the respondent mother, N.P., who was then residing in Aruba and was not physically present in Colorado. Roose filed several motions challenging personal jurisdiction over N.P., which were heard and denied by the district court. An adjudicatory jury trial began on February 21, 2001. On the second day of trial, Roose moved for a mistrial on the grounds that she was not capable of handling the jury trial, had no experience with juries, and was generally providing ineffective assistance to her client. The district court denied Roose's motion and over her objection appointed the father's attorney as N.P.'s co-counsel. Roose continued to object and notified the court that she would have to leave if it insisted on proceeding in this fashion. Despite being ordered to remain and being advised that she would be held in contempt, Roose left the courtroom.

On the advice of her new counsel, N.P. confessed the neglect charges, and the district court both terminated Roose's appointment as counsel for N.P. and issued her a contempt citation. The district court subsequently denied a motion to dismiss the dependency and neglect matter, filed by Roose before she received the court's order terminating her, and mailed Roose a new minute order, again indicating that she had been discharged from her duties and instructing her to refrain from filing any further pleadings in the case. The district court appointed a third attorney to represent N.P. in the remaining stages of the case.

In August 2001, Roose filed a notice of appeal in the court of appeals. In the notice, Roose identified herself as "appointed attorney for N.P.," and she included several statements pertaining to the events below that the Hearing Board determined she knew to be false. In response to opposing counsel's motion to strike, disclosing that Roose had been removed as counsel by order of the trial court, the court of appeals remanded the case to the district court for its resolution of the counsel question. After receiving notice of the district court's decision that Roose was not N.P.'s attorney, the court of appeals ordered, on November 30, any further filings by Roose to be stricken and not considered.

Following phone conversations between N.P. and Roose, N.P. retained Roose as her private counsel for the termination hearing set for December 11, 2001. Roose filed an Entry of Appearance on December 6, which the district court rejected. Despite N.P.'s refusal to participate in the termination hearing unless she could be represented by Roose, the district court informed her that she would be represented by the attorney it had appointed. NP. refused to participate and her parental rights were terminated.

The Hearing Board concluded that Rooge's departure from the courtroom in defiance of the district court's express order amounted to knowingly disobeying the court's order, in violation of Colo. RPC 34(c); engaging in conduct prejudicial to the administration of justice, in violation of Colo. RPC 8.4(d); and failing to provide competent representation to her client, in violation of Colo. RPC 1.1. Roose, 44 P.8d at 270. The Board also concluded that in filing her notice of appeal, Roose violated Colo. RPC 3.3(a)(1), prohibiting her from making false statements of material fact or law to a tribunal, and Colo. RPC 8.4(c), prohibiting her from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. Roose, 44 P.3d at 271.

In imposing the sanction of disbarment, the Board considered the ABA Standards for Imposing Lawyer Sanctions (1991 & Supp. 1992), and found applicable Standards 6.11 and 6.21. Id. Construing these standards and existing Colorado law to hold that "[the presumptive discipline for a knowing misstatement of material fact to a tribunal is disbarment," Id., and that "[k]nowing disobedience to a court order resulting in a serious injury to a client or serious interference with a legal proceeding also justifies the imposition of disbarment," Id. at 272, the Board turned to consideration of the aggravating and mitigating factors enumerated in ABA Standards 9.22 and 9.32.

Although Roose had no prior disciplinary record, see ABA Standards 9.32(a), was inexperienced in the practice of law, see id. at 9.32(F), and suffered other sanctions as the result of being held in contempt, see id. at 9.32(k), the Board found that her conduct was also aggravated by constituting a pattern of misconduct, see id. at 9.22(c), involving the commission of multiple offenses, see id. at 9.22(d), and injuring a client who was in a vulnerable position, see id. at Primarily, however, the Board determined that the degree of injury caused by Roose's conduct, which it found to include the deprivation of any opportunity for N.P. to meaningfully contest the termination of her parental rights at the December 11 hearing and causing serious interference with both the district and appellate court proceedings, satisfied the requirements for disbarment. Roosg 44 P.3d at 278. It further found that her misconduct was not sufficiently mitigated to justify a reduction of that sanction. Id.

Roose, continuing to represent herself, appealed directly to this court, challenging the jurisdiction of the Board, its legal interpretation of the ethical proscriptions she was found to have violated, and the propriety of the sanction of disbarment. See C.R.C.P. 251.27. '

II. RULES OF PROFESSIONAL CONDUCT

Acts or omissions by an attorney constituting misconduct, as defined by the Colorado Rules of Professional Conduct, are grounds for discipline. See C.R.CP. 251.5(a). In addition to violations and attempts to violate the specific rules of professional conduct, misconduct is defined by Rule 84 of the Rules of Professional Conduct to include a broad range of attorney conduct, including conduct that involves dishonesty, fraud, deceit or misrepresentation and conduct that is prejudicial to the administration of justice. Colo. RPC 8.4(c), (d). Among the specific provisions of the rules, an attorney is required to provide competent representation to a client, Colo. RPC 1.1, and is prohibited from "knowingly mak[ing] a false statement of material fact or law to a tribunal," Colo. RPC 3.3(a)(1), or "knowingly disobey[ing] an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists." Colo. RPC 8.4(c).

It is clear that Roose violated Colo. RPC 3.4(c) by leaving the courtroom during trial in the face of an express court order not to do so. She does not assert that she refused on grounds that she had no valid obligation to comply, but rather that she acted in what she considered to be the best interests of her client, erroneously anticipating that her contemptuous conduct would provoke an immediate hearing and an opportunity to vindicate her client's interests. Abandoning a proceeding under these cireumstances was also clearly disruptive and prejudicial to the administration of justice, as contemplated by Colo. RPC 8.4(d), and constituted a failure to provide competent representation to her client, as required by Colo. RPC 1.1.

Characterizing Roose's conduct in filing a notice of appeal as knowingly making false statements of material fact is more problematic, but in light of the record before us, we cannot say that the Board erred. The Board expressly found that Roose knowingly mischaracterized several factual events in the notice and misidentified herself as the appointed counsel for N.P. Roose, 44 P.3d at 270-71. Both the accuracy of her factual statements and her mental state in making them are determinations of fact, which we will disturb only when clearly erroneous. C.R.CP. 251.27(b); In re Hickox, 57 P.3d 403, 404 (Colo.2002). By failing to designate a transcript of the disciplinary hearing, including even her own testimony, Roose has made review of the sufficiency of factual findings unavailable under any standard. People v. Lutz, 897 P.2d 807, 808 (Colo.1995) (if no transcript of testimony before the Board is filed with the reviewing court, the Board's factual findings are considered binding on review). At least to the extent that her status as appointed counsel below is material to various aspects of an appeal, Roose's conduct therefore violates Colo. RPC 3.3(a)(1). In addition, regardless of her mental state, several of Roose's statements, and omissions, objectively constituted misrepresentations to the court of appeals, in violation of Colo. RPC 8. 4(c).

III. SANCTION

This court will affirm a sanction imposed by the Board unless it determines the form of discipline bears no relation to the conduct, is manifestly excessive or insufficient in relation to the needs of the public, or is otherwise unreasonable. C.R.C.P. 251.27(b); In re Cardwell, 50 P.3d 897, 905 (Colo.2002). In making those determinations, we have consistently recognized the ABA Standards for Imposing Lawyer Sanctions (1991 & Supp.1992) as the guiding authority for selecting the appropriate sanction to impose for lawyer misconduct. In re Attorney D., 57 P.3d 395, 399 (Colo.2002) (and cases cited therein). The purpose behind the creation of these Standards was to enhance the consistency of sanctions imposed in attorney disciplinary proceedings. See ABA Standards, Preface. The Standards describe a range of available sanctions and require, in choosing the appropriate one, consideration of the duty that was violated, the lawyer's mental state, the actual or potential injury caused by the lawyer's misconduct, and the existence of various aggravating or mitigating factors. ABA Standards 3.0.

In arriving at the conclusion that disbarment was an appropriate sanction, the Board relied on two Standards distinguishing disbarment from mere suspension on the basis of a specific intent, above and beyond a knowing violation of the ethical prohibition itself. See ABA Standards 6.11 and 6.21. In neither instance, however, did the Board find that Roose acted with the required specific intent. Furthermore, in light of the other findings and conclusions of the Board, the prohibited specific intent is not necessarily implied by the knowing conduct in this case.

In the absence of aggravating or mitigating circumstances that could alter the sanction, the ABA Standards would prescribe disbarment, rather than suspension, as the appropriate sanction when the knowing violation of a court order not only causes harm but causes serious harm, and when the court order in question was violated "with the intent to obtain a benefit for the lawyer or another." Compare ABA Standards 6.21 with 6.22. Although it noted the ABA Standard, the Board found merely that "[kinow-ing disobedience to a court order resulting in serious injury to a client or serious interference with a legal proceeding also justifies the imposition of disbarment." Roose, 44 P.3d at 272.

It nowhere suggested, either in its findings of fact or conclusions of law, that Roose acted from an intent to gain a benefit for herself or her client. Quite the contrary, it made clear that it believed she acted from an extreme lack of understanding of the adversarial process and perceived her actions to constitute zealous advocacy on behalf of her client. Id. Unlike the attorney disbarred in People v. Chappell, 927 P.2d 829 (Colo.1996), with whom the Board compared her, Roose did not assist her client in absconding with a child; refuse to disclose her client's whereabouts in the face of a court order; or perpetrate a fraud on the court by making arrangements for child support while knowing that her client was fleeing with the child. To the extent that Roosge's departure during trial could be seen as a deliberate attempt to force an additional hearing on motions that had already been denied, as she claimed, rather than merely an inability to control her anger and outrage at the court's denial of her motion, we do not consider an additional hearing the kind of benefit contemplated by the ABA Standard. Even if abandoning the proceeding to her court-appointed co-counsel could be fairly characterized as a serious interference with the proceeding, we hold therefore that disbarment was not the presumptive sanction for Roose's disobedience to the trial court's order.

Similarly, with regard to Roose's notice of appeal, in the absence of aggravating or mitigating cireumstances, the ABA Standards would prescribe disbarment, as distinguished from suspension, as an appropriate sanction for knowingly submitting false statements to a -eourt only when such conduct results in serious harm and the false statements are submitted "with the intent to deceive the court." Compare ABA Standards 6.11 with 6.12. Rather than specifically finding, as a matter of fact, any such intent by Roose, however, the Board found instead that "[the presumptive discipline for a knowing misstatement of material fact to a tribunal is disbarment." Roose, 44 P.3d at 271.

In support of this proposition, the Hearing Board, consisting of the Presiding Disciplinary Judge and two Hearing Board Members, cited as authority earlier opinions issued by the PDJ and various Hearing Board Members. Unless stayed, vacated, reversed, or otherwise modified by order of this court, a final decision of a Hearing Board clearly resolves the matter before it and is binding on the parties, just as if it were the order of this court. See C.R.C.P. 251.19(b)(6). When the case does come before this court, the court affirms the decision of the Hearing Board unless the findings are clearly erroneous or the discipline bears no relation to the conduct, is manifestly excessive or insufficient or is otherwise unreasonable. As to matters of law, this court conducts de novo review. C.R.C.P. 251.18(b). Thus, as a practical matter, every case proceeds before a different panel and the outcome of that case cannot logically be controlled by cases decided by a previous Hearing Board. On he other hand, opinions issued by the Hearing Boards are officially published for the benefit of the profession in order to advise and instruct practicing attorneys of conduct that has resulted in discipline, the basis for and severity of the discipline, and the reasoning of the Hearing Board. In addition, the opinions of the Hearing Boards serve to instruct and guide, but not bind, future Hearings Boards in their decisions; and serve to inform the public of the proceedings.

The rationale of the Hearing Board in a particular case can neither serve as stare decisis precedent for future cases nor constitute the law of the jurisdiction. This court, and only this court, has the power to determine the law of this jurisdiction as applied in disciplinary proceedings. In the event a Hearing Board decision is not appealed to us, or for any other reason we do not address a legal interpretation of the board, this court's silence cannot be understood as an implicit adoption of the Hearing Board's conclusion's of law so as to be entitled to stare decisis effect in future proceedings.

While the Board may have intended merely to indicate its observation that normally a lawyer would not knowingly make a misstatement to a tribunal without an intent to deceive it, the distinction between knowledge and intent is critical in imposing sanctions under the Standards relevant here. The latter may not be presumed from proof of the former but must be separately proved by clear and convincing evidence. Much like the Colorado Criminal Code, see § 18-1-501, 6 C.R.S. (2002), the ABA Standards define "intent" as the conscious objective or purpose to accomplish a particular result, while "knowledge" is the conscious awareness of the nature or attendant cireumstances of the conduct but without the conscious objective or purpose to accomplish a particular result. See ABA Standards, Definitions. In neither its findings of fact nor its conclusions of law does the Board suggest that Roose acted with the conscious objective of deceiving the court of appeals about the events to which she referred, and in light of the limited purpose of a notice of appeal, such a finding would have been questionable.

Unlike pleadings or motions, the purpose of a notice of appeal is not to allege facts to be accepted or disputed or to request action by a court. A notice of appeal identifies and gives notice to others that the appellant is seeking review of specific rulings or orders and provides the reviewing court with an advisory listing of issues he intends to raise. Even if Roose was actually aware that her truncated, conclusory characterizations were, in themselves, likely to give the reader a false impression, her statements are explainable as attempts to characterize the issues she intended to raise in favorable legal terms rather than attempts to deceive the court about what happened below.

None of the statements at issue misrepresented the timing or nature of the proceedings below, which would have been relevant to the appellant's right to appeal. Even Roose's reference to herself as "appointed attorney for N.P.," without further indicating (at least at that point) that she had been dismissed from that role, was explainable as her description of the proceedings in which she acted in that capacity and her intention to raise the lawfulness of her dismissal as an issue on appeal, rather than any attempt to deceive the appellate court about the fact of her removal. An attorney need not have been the appellant's attorney below to represent him on appeal, and an attorney enters his appearance in the appellate court by merely signing a pleading or entry of appearance. See C.A.R. 5(aq). The Board did not find that Roose filed the notice without the approval of NP., and it is clear that shortly thereafter N.P. even refused to participate further without Roose as her attorney.

In the absence of a finding of intent to obtain a benefit by disobeying the district court's order or to deceive the court of appeals, the appropriate sanction for both knowingly submitting materially false statements and knowingly violating a court order, as long as those acts caused at least some injury to a party or adverse effect on the legal proceeding, is suspension. See ABA Standards 6.12 and 6.22; see also In the Matter of Attorney C, 47 P.3d 1167, 1173 (Colo.2002). Whether or not any injury or interference with the district or appellate court proceedings could be fairly characterized as serious under the circumstances of this case, Roose's conduct clearly had at least some adverse effect on legal proceedings in both courts.

With regard to the appropriate length of suspension, see ABA Standards 2.3, Commentary, as the Board noted, Roose's conduct is mitigated by her inexperience in the practice of law, her lack of any prior disciplinary record, and the fact that she has already been held in contempt and punished by the district court. Perhaps as important ly, despite her conduct being misguided, there is no suggestion that it was motivated by self-interest or self-aggrandizement. See ABA Standards 9.22(b) and 9.32(b) (listing dishonest or selfish motive as an aggravating or mitigating factor). Furthermore, to the extent that her violations could be considered a pattern of misconduct or the commission of multiple offenses, they actually involved only two separate acts, arising from the same lack of understanding, and the same misguided perception of zealous advocacy, in the same case. Although her client may have been vulnerable in some sense, Roose's shortcomings did not arise from any neglect or willingness to take advantage of that vulnerability, see, eg., People v. Brailsford, 933 P.2d 592, 595 (Colo.1997) (finding that attorney took advantage of the privacy associated with marital relationship when he assaulted his wife at a time and place when rescue was unlikely and exploited the disparity in size between them), but rather from an overly-zealous attempt to protect her client's legal rights.

Whether or not the Hearing Board is proved right in its factual assessment that any period of suspension will be futile in light of the depth of Rooge's lack of understanding, the findings of the Board do not support disbarment in this case. Roose's failure to appreciate the serious nature of her conduct and the jurisdiction of the Hearing Board to discipline her is, however, a serious matter, meriting a substantial period of suspension and a redetermination of her fitness before being permitted to again practice law in this jurisdiction. Considering the nature of Roose's conduct, together with mitigation and aggravation, we therefore agree with the original recommendation of the Attorney Regulation Counsel that suspension for a period of one year and one day is appropriate and accomplishes these purposes. See C.R.C.P. 251.29(b) (requiring an attorney who has been suspended for a period longer than one year to file a petition for reinstatement and prove by clear and convincing evidence that the attorney has been rehabilitated, has complied with all applicable disciplinary orders, and is fit to practice law).

IV. CONCLUSION

We therefore affirm the hearing board's findings of ethical violations and its assessment of costs against the respondent. We, however, modify its order of disbarment by instead ordering that the respondent be suspended from the practice of law for one year and one day.

The judgment of the Hearing Board is therefore affirmed in part and reversed in part.

      . The court of appeals, however, did not strike the notice of appeal and in fact recertified the appeal, ordering that N.P.'s new appointed counsel represent her on appeal as well. In a combined opinion, dated December 12, 2002, the court of appeals addressed the issues arising from both the adjudicatory trial and termination hearing. See People in the Interest of S.S. and C.S. and Concerning NP., Nos. O1CA1566 & 02CA00Y6, 2002 WL 31770823 (Colo.App. Dec. 12, 2002) ({not selected for official publication).

      . The court of appeals affirmed this decision of the trial court, finding no gabuse of discretion, in the combined appeal.

      . In stating that the respondents in Aruba were not permitted to participate at the adjudicatory trial, Roose argues that she was merely drawing the conclusion that by permitting them to participate by phone only at their own expense, the court effectively denied them any right to participate at all. Similarly, in indicating that after the respondents entered their plea, the court set the trial for only two business days later, despite her knowing that the court actually entered the setting weeks earlier, Roose contends that she was merely drawing the conclusion that the court set the trial date for only two days after it was legally permitted to do so. The third challenged statement appears to have been truly ambiguous, in that the Board considered it to assert that Roose was dismissed from court and therefore was unable to participate at the rest of the adjudicatory trial, while she claims that by "disposition phase" she was referring to the termination hearing, from which she actually was barred from participation by the court.

      . She was required to pay for the additional proceedings she caused and perform community service for her conduct.