author: EASTAUGH, Justice.

text:
    SAMISSA ANCHORAGE, INC., an Alaska corporation, d/b/a North Star Adolescent Hospital, Appellant, v. The DEPARTMENT OF HEALTH AND SOCIAL SERVICES, STATE OF ALASKA; Karen Perdue, in her official capacity as the Commissioner of the Alaska Department of Health and Social Services; The Medicaid Rate Advisory Commission, State of Alaska; and Jack Nielson, in his official capacity as the Executive Director of the Medicaid Rate Advisory Commission, Appellees.
    No. S-10258.
    Supreme Court of Alaska.
    Oct. 25, 2002.
    John F. Sullivan, Inslee, Best, Doezie & Ryder, P.S., Bellevue, Washington, for Appellant.
    Julie E. Bryant, Assistant Attorney General, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellees.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

EASTAUGH, Justice.

I. INTRODUCTION

The State of Alaska made additional payments to a medical services provider after the provider brought successful administrative claims against the state to increase the Medicaid reimbursement rates payable under AS 47.07.070. Does AS 09.50.280 require the state to pay the provider “prejudgment interest”? Because the provider’s claims under AS 47.07.070 are not covered by AS 09.50.250’s waiver of sovereign immunity, we hold that the state is not liable for prejudgment interest under AS 09.50.280. We therefore affirm the superior court’s denial of the medical service provider’s claims for prejudgment interest.

II. FACTS AND PROCEEDINGS

Samissa Anchorage, Inc. (d/b/a North Star Hospital or North Star) provided psychiatric services to state Medicaid patients between 1993 and 1996. North Star challenged the 1993, 1994, and 1995 Medicaid reimbursement rates of the Department of Health and Social Services (the department) in one administrative claim and challenged the 1996 rate in another. North Star ultimately appealed both challenges to the commissioner of the department under 7 Alaska Administrative Code (AAC) 43.703 and .704. North Star requested “prejudgment” interest in both challenges.

The department’s June 1999 final decision in the rate appeals for years 1993, 1994, and 1995 concluded that the rates from those years should be recalculated because North Star was entitled to additional reimbursement. The decision did not address North Star’s prejudgment interest claim. North Star filed a superior court administrative appeal in July 1999 to compel the department to reimburse North Star the amount that the commissioner had determined North Star was underpaid; North Star requested, among other things, prejudgment interest.

In late 1999 the state issued North Star two cheeks totaling $723,295 to reimburse North Star under the adjusted payment rate for the medical services North Star had rendered in 1993, 1994, and 1995. The reimbursement did not include prejudgment interest.

The department issued its final decision in North Star’s 1996 rate appeal in February 2000. This time, the commissioner expressly denied North Star’s prejudgment interest claim, stating that no “statute or regulation authorizes an award of prejudgment interest against the state in administrative proceedings related to Medicaid rates pursuant to AS 47.07 or the Administrative Procedures Act.” North Star filed a superior court administrative appeal from this ruling in March 2000. In May 2000 North Star received a check for $959, to reimburse it under the adjusted payment rate for the 1996 services. The reimbursement did not include prejudgment interest.

Superior Court Judge Milton M. Souter consolidated North Star’s two appeals. North Star argued that it was entitled to prejudgment interest under AS 09.50.250 and .280 because its payment rate claims arose out of an express contract with the state, and that the state waived sovereign immunity for contract claims under AS 09.50.250 and for prejudgment interest on those contract claims under AS 09.50.280. North Star argued that it was therefore entitled to prejudgment interest on its contract claims. The department argued that the state did not waive sovereign immunity under AS 09.50.250 for payment rate challenges. The department asserted that North Star brought its claim under the administrative procedures prescribed for challenges of payment rates calculated under AS 47.07.070, and consequently contended that North Star was not entitled to prejudgment interest.

The superior court reversed the administrative denial of prejudgment interest. It held that North Star’s Medicaid provider agreement is a contract. It further held that “AS 09.50.250 expressly authorizes prejudgment interest in contract cases regardless of whether they are first required to be pursued in administrative proceedings.” The superior court remanded to the department for award of prejudgment interest.

The department petitioned for rehearing and Superior Court Judge Sharon L. Gleason, to whom the case was reassigned after Judge Souter retired, vacated the remand order to the extent it allowed North Star to recover prejudgment interest. Judge Gleason’s decision on rehearing determined that North Star could not have brought an action under AS 09.50.250 because health care providers must challenge Medicaid payment rates under 7 AAC 43.703 and .704. Judge Gleason’s decision reasoned that those sections of the administrative code establish procedures that involve the Department of Health and Social Services, not the Department of Administration as AS 09.50.250 and .280 require.

Applying our decision in Danco Exploration, Inc. v. State, Department of Natural Resources, the superior court ruled that “administrative appeals are not encompassed within AS 09.50.250, and therefore prejudgment interest is not available under that statutory provision in this administrative appeal.” The superior court further held that no other statutory waiver of sovereign immunity allowing an award of prejudgment interest against the state applied. The superior court vacated the original remand order and affirmed the department’s decision denying prejudgment interest.

North Star appeals.

III. DISCUSSION

A. Standard of Review

We independently review administrative agency decisions when the superior court sits as an intermediate court of appeal. “We apply the substitution of judgment test to legal questions where no agency expertise is involved, such as questions of statutory interpretation or other analysis of legal relationships about which courts have specialized knowledge and experience.”

B. North Star Was Not Entitled To Recover Prejudgment Interest.

North Star argues that it brought its payment rate claims under AS 09.50.250, making it eligible for prejudgment interest under AS 09.50.280. It asserts that sections .250 and .280 allow prejudgment interest in this case because North Star brought contract or quasi-contract claims. It contends that the department erred because it did not recognize North Star’s contractual relationship with the department and asserts that there was indeed a contractual relationship. Alternatively, North Star argues that it has quasi-contractual claims based on unjust enrichment. It asserts that it was unjustly denied the correct rate for its services and that its claims therefore lie within sections .250 and .280. Finally, North Star argues that it is entitled to prejudgment interest because it exhausted administrative remedies under section .250; because Alaska courts award prejudgment interest as part of compensatory damages; and because the plain language of AS 47.07.070(b)(1) evidences legislative intent to require the department to reimburse health care facilities for the time value of the money the department incorrectly withheld.

The department argues that North Star could only bring its payment rate claims under AS 47.07.070, the statute which governs the Department of Health and Social Services’ rate-making decisions. The department asserts that our decision in Danco precludes North Star’s prejudgment interest claims.

1. Only the legislature can authorize prejudgment interest awards against the state.

“[Ujnless interest is specifically authorized by legislative enactment, it may not ordinarily be assessed against the State in any action.” In other words, only the legislature can waive the state’s sovereign immunity and authorize an award of prejudgment interest against the state. The question here is whether the legislature authorized prejudgment interest awards in payment rate challenges.

Alaska Statute 09.50.250 waives sovereign immunity and allows actionable claims against the state that sound in contract, quasi-contract, or tort. Alaska Statute 09.50.280 authorizes interest awards against the state for actions brought under section .250. We noted in Stewart & Grindle, Inc. v. State that “[sjince AS 09.50.250 and 09.50.280 were passed together and amended together by the same legislative act, it is clear that AS 09.50.280 was intended to afford a right to pre-judgment interest against the State only where AS 09.50.250 established a substantive cause of action.” Thus, this case turns on whether North Star brought or could have brought an action under section .250.

2. North Star is not entitled to prejudgment interest because payment rate challenges are not cognizable claims under AS 09.50.250.

We rejected a claim similar to North Star’s in Danco, the case that controls here. There we held that “[administrative] appeals [under 11 AAC 02.010] are not encompassed within AS 09.50.250.” Judge Gleason in this case reasoned that the administrative procedures for challenging payment rate decisions were similar to the administrative procedures for challenging the Department of Natural Resources decision that we reviewed in Danco. The superior court held that “North Star did not and could not have maintained an independent contract action under AS 09.50.250 regarding Medicaid rate-making decisions of the Department of Health and Social Services.”

North Star attempts to distinguish Danco by contending that North Star’s claims, unlike Danco’s, sound in contract and therefore lie within section .250. North Star argues that its agreement with the department contains the necessary elements of a contract, including a description of the services to be provided, the conditions of payment, and an indemnity and hold harmless provision. North Star asserts that both sides are federally mandated to enter into the agreement and that the right to sue for money owed originates with the agreement. It consequently reasons that “[t]he State’s failure to pay the full rate required by the regulations and statutes incorporated into the provider agreement constitutes a breach of contract.” Finally, North Star argues that courts in other jurisdictions have deemed the Medicaid health care provider agreement a contract.

The department responds that North Star’s payment rate claims are not contract claims. Alternatively, the department asserts that it is irrelevant whether the provider agreement between North Star and the department is a contract because our decision in Danco prevented North Star from bringing an action under section .250.

Danco involved a state lease sale in which Danco Exploration, Inc. submitted a winning bid. After it was awarded the leases, Dan-co missed a payment deadline by one day and consequently was denied the leases. Danco appealed the rescission to the commissioner of the Alaska Department of Natural Resources (DNR) and later appealed the commissioner’s decision to the superior court. The superior court reversed the commissioner’s decision and ordered that the leases be issued to Danco. Danco moved for an award of interest on its initial bid deposit and on the balance of its bonus payment. The superior court refused to award interest and Danco appealed.

We reiterated what we had stated in Stewart & Grindle, that only the legislature can authorize awards of interest against the state and that “[sjection .280 only applies where AS 09.50.250 establishes a substantive cause of action.” Danco argued on appeal that its claims sounded in either tort or contract, and therefore came within section .250.

We noted that 11 AAC 02.010 provided the administrative procedures through which a lease bidder could challenge a decision of the DNR. We ultimately held that “11 AAC 02.010 appeals are not encompassed within AS 09.50.250. A party who brings an appeal from a commissioner’s decision to the superi- or court is bound by the result of such an appeal and may not maintain a separate action under section .250.”

Danco controls here. With regard to waiver of sovereign immunity under AS 09.50.250, we find no reason to distinguish between the administrative procedures here and those we reviewed in Danco. Accordingly, North Star could not have maintained a section .250 action because its remedy was to pursue the administrative procedure provided in 7 AAC 43.703 and .704; this procedure required that North Star challenge the commissioner’s denial by administrative appeal to the superior court, and did not permit a separate action under section .250. Although North Star refers us to cases from other jurisdictions that allow prejudgment interest, our previous reading of AS 09.50.250 mandates our rejection of North Star’s prejudgment interest claims.

3. North Star has not demonstrated any other basis for recovering prejudgment interest.

Alaska Statute 09.50.250 expressly permits one with a contract claim against the state to bring an action in state court, and claims under AS 44.77 may be brought under AS 09.50.250 if more than one year has elapsed without a departmental decision after, the claimant presents its AS 44.77 administrative claim.

But North Star’s disputes with the department about the medical provider reimbursement rate were not contractual claims and were not brought as contract actions in state court; they concerned administrative rate-making and were brought as administrative disputes. Because these rate challenges did not lie within section .250, it does not matter, as North Star argues, whether North Star had a contract with the state, whether North Star exhausted administrative remedies, or whether its claims can be characterized as ones for unjust enrichment. North Star was required to bring its claims under AS 47.07. Alaska Statute 47.07 does not itself award prejudgment interest and is not listed in section .250’s waiver of sovereign immunity.

Alaska Statute 09.50.250 does encompass some types of claims medical services providers might bring. It provides that “A person who may present [a contract claim] under AS 44.77 may not bring an action under [AS 09.50.250] except as set out in AS 44.77.040(c).” Alaska Statute 44.77.040(c) permits a medical services provider that contends that the department has not decided within one year an administrative claim presented under AS 44.77.010 to “bring an action ... under AS 09.50.250.” Because section .250 contemplates such a claim and AS 44.77.040(c) expressly provides for it, a provider whose AS 44.77.010 administrative claim is undecided for more than one year after it is submitted and who brings a successful action against the state would be eligible to recover prejudgment interest under AS 09.50.280. But that is not the type of claim North Star has, and that is not how North Star proceeded here. Instead; North Star challenged the payment rate determination that the department made under AS 47.07.070. Likewise, it brought" its claims as administrative disputes in the Department of Health and Social Services under 7 AAC 43.703 and not as a superior court “action” under AS 44.77.040(c), or as claims to the Department of Administration. North Star’s claims were therefore not ones “as set out in AS 44.77.040(c),” and were therefore not within section .250.

North Star understandably emphasizes the injustice and inequity that will result if its interest claims are denied. It also asserts that denial will encourage the department to “drag out these Medicaid rate appeals for as long as possible” while the state “has the interest-free use of the funds.” Our decision insulates the department from prejudgment interest claims resulting from delayed rate-making decisions, to the detriment of service providers whose rate-making requests are delayed. But such concerns are better addressed to the legislature, and do not alter our reading of AS 09.50.250 and .280. Moreover, the legislature provided a remedy for delay by establishing a grievance reporting procedure under AS 47.07.075(b)(3). Its adoption of this remedy implies that the legislature recognized the possibility of delay, but chose to deal with it by adopting the reporting procedure rather than permitting interest claims against the state. We conclude that the legislature did not intend prejudgment interest to be a remedy for delay.

IV. CONCLUSION

Because AS 09.50.250 does not apply to administrative appeals brought under AS 47.07.070, we AFFIRM the superior court decision that affirmed the department’s denial of North Star’s prejudgment interest claims.

      . The department determines the rate at which health service providers are reimbursed for services rendered to state benefits recipients. AS 47.07.070 states, in part: "(a) The department shall set the prospective rate of payment to a health facility under this chapter ... based on a fair rate for reasonable costs • incurred by the facility.”

      . To challenge payment rate determinations, providers may request reconsideration of the rate by the executive director of the Medicaid Rate Advisory Commission Staff under 7 AAC 43.701 (2002). Providers may file an administrative appeal to the commissioner of the department under 7 AAC 43.703 (2002) to challenge the executive director’s determination in lieu of or after the executive director's reconsideration. The commissioner assigns the appeal to a hearing officer under 7 AAC 43.704 to make a preliminary recommendation after conducting a hearing.

      . The parties, the department, and the superior court have consistently referred to North Star’s interest claim as one for "prejudgment interest.” Although the administrative and judicial procedure North Star followed here did not call for entry of a "judgment” as that term is usually used, we will refer here to North Star’s interest claim as one for prejudgment interest.

      . AS 09.50.250 states, in part:
      A person or corporation having a contract, quasi-contract, or tort claim against the state may bring an action against the state in a state court that has jurisdiction over the claim. A person who may. present the claim under AS 44.77 may not bring an action under this section except as set out in AS 44.77.040(c).

      . AS 09.50.280 states: "If judgment is rendered for the plaintiff, it shall be for the legal amount found due from the state with interest as provided under AS 09.30.070 and without punitive damages.”

      . 7 AAC 43.703 states, in part: "(a) A party aggrieved by a written determination of the executive director under 7 AAC 43.701(a) ... may request reconsideration under 7 AAC 43.701(b) or may file an administrative appeal to the commissioner.”

      . 7 AAC 43.704 provides the procedure by which the commissioner assigns the administrative appeal to a hearing officer; the hearing officer conducts a hearing; the hearing officer proposes a decision; and the commissioner issues a decision or refers the appeal back to the hearing officer.

      . 924 P.2d 432 (Alaska 1996).

      . Judge Gleason’s decision on rehearing stated:
      North Star did not and could not have maintained an independent contract action under AS 09.50.250 regarding the Medicaid ratemak-ing decisions of the Department of Health and Social Services. Instead, health care providers who dispute Medicaid rate determinations “must pursue administrative procedures provided by [regulation]," including the right to judicial review. 7 AAC 43.703-704. The Alaska Supreme Court has ruled in Danco that administrative appeals are not encompassed within AS 09.50.250, and therefore prejudgment interest is not available under that statutory provision in this administrative appeal. 924 P.2d at 434. No other statutory provision authorizes an award of prejudgment interest against the State in administrative proceedings pursuant to AS 47.07. The State’s sovereign immunity can only be waived by the legislature, not the court, and no waiver of the state’s immunity with respect to the recovery of prejudgment interest has occurred in this administrative review proceeding.
      (Footnotes omitted.)

      . Justice v. RMH Aero Logging, Inc., 42 P.3d 549, 552 (Alaska 2002).

      . Id. (internal quotation marks and citation omitted).

      . 924 P.2d 432 (Alaska 1996).

      . Stewart & Grindle, Inc. v. State, 524 P.2d 1242, 1245 (Alaska 1974).

      . Id. (internal footnote omitted).

      . 924 P.2d at 434.

      . 42 C.F.R. § 431.107(b) (2001) states, in part: Agreements. A State plan must provide for an agreement between the Medicaid agency and each provider or organization furnishing services under the plan in which the provider or organization agrees to: (1) Keep any records necessary to disclose the extent of services the provider furnishes to recipients; (2) On request, furnish to the Medicaid agency, tire Secretary, or the State Medicaid fraud control unit ... any information maintained under paragraph (b)(1) of this section and any information regarding payments claimed by the provider for furnishing services under the plan; (3) Comply with the disclosure requirements specified in part 445, subpart B of this chapter; and (4) Comply with the advance directives requirements for hospitals....

      . 924 P.2d at 433.

      . Id. at 434 (citing Stewart & Grindle, 524 P.2d at 1245).

      . We determined that "[sjince Danco did not purport to bring this claim under section .250 its claim must be that it could have done so, and that it would be unduly technical to deny it interest based on a mere matter of form.” Id.

      . Id. (citation omitted).

      . Id.

      . The department, is correct that we did not need to decide in Danco whether Danco and DNR had a contract. Similarly, we need not decide whether North Star and the department had a contract.

        .Id. at 433-34.

      . AS 09.50.250; AS 44.77.040(c).

      . AS 09.50.250.

      . AS 44.77.040(c) provides;
      If the claimant does not accept the decision of the Department of Administration, the claimant may obtain judicial review of the decision in accordance with AS 44.62.560-44.62.570. A claimant may also bring an action under AS 09.50.250-09.50.300 at any time after one year has elapsed since the presentation of the claim under AS 44.77.010, if no decision has been made by the department.

      .In a footnote, the superior court remarked that North Star could not rely on AS 44.77.040. The court correctly noted that:
      [Alaska Statute 44.77.040] does allow an action under AS 09.50.250 with regard to decisions of the Department of Administration when that state agency has delayed making a payment decision on a claim, including a Medicaid claim, that had been presented to it for over one year_[T]hat statutory provision is inapplicable to the review of a different action by a different state agency — a Medicaid ratemaking determination by the Department of Health and Social Services.

      . AS 47.07.075(b)(3) states in pertinent part: [I]f either time limit set under (1) or (2) of this subsection is not met, the department shall report the noncompliance to the legislature and the governor ... with an explanation of the length of delay, reasons for the delay, and proposed corrective action by the department to ameliorate the causes of delay.


source: Caselaw Access Project

author: MANNHEIMER, Judge. COATS, Chief Judge,

license: Public Domain

text:
    Wayne W. SEMANCIK, Appellant, v. STATE of Alaska, Appellee.
    No. A-7286.
    Court of Appeals of Alaska.
    Oct. 17, 2002.
    David D. Reineke, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for Appellant.
    Kim S. Stone, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

MANNHEIMER, Judge.

Wayne W. Semancik threatened his neighbors with a firearm and broke a window of their house in an attempt to enter the residence because he believed (falsely) that they had stolen his dog. For this conduct, Sem-ancik was indicted for attempted first-degree burglary. But the indictment was flawed.

The crime of burglary consists of unlawfully entering or remaining in a building with the intent to commit a crime. Forty years ago, in Adkins v. State, the Alaska Supreme Court ruled that a burglary indictment must specify this intended (“ulterior”) crime because it is an essential element of the charge.

Semancik’s indictment did not specify his intended crime (or any other element of burglary); instead, the indictment simply alleged that Semancik “inten[ded] to commit the offense of Burglary in the First Degree [and] engage[d] in conduct which constitute[d] a substantial step toward the commission of that crime”.

Semancik did not attack his indictment, seek a bill of particulars, or otherwise raise this problem before or during his trial. Based on the State’s evidence and the prosecutor’s arguments, Semancik’s attorney proceeded on the reasonable assumption that the alleged ulterior crime was assault. The defense attorney argued to the jury that Semancik’s sole intention was a lawful one (to retrieve his dog) and that Semancik had no intention of committing assault (or any other crime) inside his neighbors’ house.

The jury rejected this argument and convicted Semancik of attempted burglary. Now, on appeal, Semancik points out the flaw in the indictment and asks us to set aside his burglary conviction.

In Adkins, the supreme court not only ruled that a burglary indictment must specify the defendant’s intended crime, but the court also ruled that a burglary indictment which fails to specify the defendant’s intended crime is fatally flawed: it fails to “charge an offense” within the meaning of Alaska Criminal Rule 12(b)(2). This means that it is not too late for Semancik to raise this issue.

Under Criminal Rule 12(b)(2) and (e), a defendant is normally obliged to raise all “[d]efenses or objections based on defects in the indictment” before trial, otherwise these objections are forfeited. But Rule 12(b)(2) exempts two types of objections from this time limit: objections based on the indictment’s “failure to show jurisdiction in the court or to charge an offense”. In Adkins, the supreme court held that a burglary indictment’s failure to specify the defendant’s intended crime is the type of problem that falls within this latter exemption. Thus, a defendant is entitled to raise this objection on appeal even though the defendant has gone to trial and has been convicted and sentenced without ever bringing this issue to the attention of the trial court.,

(Alaska Criminal Rule 12(b)(2) declares that such an objection can be raised “at any time during [the] pendency of the proceeding”. Arguably, this phrase could be read to require the defendant to voice the objection before the end of the proceeding in the trial court. Adkins does not specifically address this point, but the result in Adkins is clearly contrary to such an interpretation of Rule 12(b)(2). We note that the federal courts, construing their equivalent rule, also take the position that the phrase “during the pendency of the proceeding” includes an appeal).

To summarize: under Adkins, the failure of Semancik’s indictment to specify his intended crime is a fatal defect in the indictment, and Semancik is entitled to raise this objection for the first time on appeal.

The State concedes that Adkins requires reversal of Semancik’s attempted burglary conviction, but the State asks us to re-examine Adkins and modify Alaska’s rule on this subject.

The State’s argument that Adkins was wrongly decided

The legal issue that our supreme court confronted in Adkins has created a split in American jurisdictions. Some states hold that a burglary indictment is fatally flawed unless it specifies the defendant’s intended crime. Other states hold that a burglary indictment need not specify the defendant’s intended crime or, alternatively, that a burglary indictment should specify the intended crime but that failure to specify this crime is a defect in form rather than a fatal flaw.

As the Iowa Supreme Court recently explained in State v. Mesch, and as the Washington Supreme Court earlier explained in State v. Bergeron, this split can generally be attributed to differences in the wording of the states’ burglary statutes:

“One of the elements of common-law burglary was that the breaking and entering be with the intent to commit a felony” therein. At common law[,] no indictment for burglary was sufficient which failed to state the facts necessary to show the particular felony intended to be committed. Thus, at common law, the indictment obviously had to plead facts showing a felony was intended beeause[,] if anything other than a felony was intended[,] the breaking and entering did not constitute burglary. So it is that those states with burglary statutes which still require an intent to commit a felony, or intent to commit a felony or larceny, or intent to commit other designated crimes, can logically require that a specific intended crime be alleged and proved. There is no similar reason to require it in [a state] where burglary is a statutory offense and where [the] burglary statutes require only an intent to commit any crime.

State v. Mesch, 574 N.W.2d at 13, quoting State v. Bergeron, 711 P.2d at 1008.

Court decisions from around the country tend to group themselves as described in Mesch and Bergeron. In states where the burglary statute requires proof that the defendant intended to commit a particular type of crime (e.g., a “felony”, an “assault”, or a “theft”), a burglary indictment is fatally flawed if it does not specify the defendant’s intended crime. On the other hand, in states where the burglary statute requires the government to prove only that the defendant intended to commit “a crime”, the failure of the indictment to specify the intended crime does not invalidate the indictment. These decisions fall into two groups: Some of them hold that a burglary indictment need not specify the defendant’s intended crime. Others hold that a burglary indictment should specify the defendant’s intended crime, but the failure to specify the intended crime is not a fatal flaw in the indictment. In other words, the defendant must raise this objection in the trial court (like other objections to the indictment). If the issue is not raised until appeal, the defendant must show plain error — generally, inability to anticipate the State’s theory of prosecution and resulting prejudicial surprise.

The burglary statute at issue in Adkins was former AS 11.20.080. Under this statute, a person committed the offense of “burglary in a dwelling house” if the person “br[oke] and enter[ed] a dwelling house with intent to commit a crime in it”. Because Alaska’s burglary statute did not require proof that the defendant intended to commit a felony, an assault, a theft, or any other specific type of crime, one would have expected the supreme court to decide Adkins the other way. The State asserts that Adkins indeed should have been decided the other way — that the supreme court mistakenly relied on cases from other jurisdictions without seeing that they were inapplicable. The State urges us to revisit the issue decided in Adkins and change Alaska’s rule.

Three years ago, in People v. Williams, the Supreme Court of Colorado engaged in just such a re-evaluation of precedent. Colorado’s burglary and criminal trespass statutes require proof that the defendant committed the unlawful entry with intent to commit “a crime”. The court had previously held that an indictment for burglary or trespass was fatally flawed if it did not specify the defendant’s intended crime. But after re-examining its statutes and surveying the case law from other jurisdictions, the Colorado court decided that its prior decisions on this issue had been wrong. Instead, the court held that a burglary or trespass indictment should, as a matter of form, specify the defendant’s intended crime, but the failure of the indictment to specify the intended crime is not a substantive defect that voids the indictment.

The Colorado court relied on reasoning similar to the analysis set forth in Mesch and Bergeron , as well as on the modern trend away from technical rules of pleading and the policy that a conviction should not be overturned based on an indictment defect that does not tend to prejudice the substantial rights of the defendant — the same policy embodied in Alaska Criminal Rule 7(c).

The State argues that even if we think that a burglary indictment should specify the defendant’s intended crime, we should adopt an approach similar to the one followed in Colorado and the other states listed in footnote 11. That is, the State asks us to declare that this defect is non-fatal — so that if a defendant does not file a timely objection in the trial court, the defendant would not be entitled to automatic reversal of their conviction but would instead have to show that their ability to defend the charge was substantially prejudiced by the failure of the indictment to specify the intended crime.

There is Alaska case law to support this approach. In Lupro v. State, 603 P.2d 468 (Alaska 1979), and in Thomas v. State, 522 P.2d 528 (Alaska 1974), the Alaska Supreme Court endorsed the rule that an indictment should not be struck down merely because it fails to recite every necessary element of the crime, so long as the grand jury record (potentially supplemented by a bill of particulars) gives the defendant sufficient notice of the charge to enable him to prepare his defense and to permit him to claim former jeopardy in the event that he is later charged with the same offense. But the supreme court did not apply this reasoning in Adkins.

The State points out that the Adkins rule allows a defense attorney to purposely, “overlook” an obvious defect in the indictment if the defect appears inconsequential to the attorney’s trial preparation. For example, even though a burglary indictment may fail to specify the defendant’s intended crime, there may be complete agreement between the prosecution and the defense attorney concerning what crime (or crimes) the State thinks the defendant intended to commit inside the building. In such circumstances, the defense attorney will be able to prepare the case just as fully as if the indictment named the defendant’s intended crime. But if the defense attorney stays mum about the defect in the indictment, he or she obtains a huge tactical advantage. Under Adkins, the defense attorney can risk trial and then, if the defendant is convicted, the attorney can (in the State’s words) “pull the ace from his sleeve and present the [Adkins objection] on appeal [even though] he remained silent about [it] during trial”.

The State’s arguments have considerable force, but we are not the proper audience. Adkins was based on our supreme court’s interpretation of Alaska’s burglary statute and Alaska Criminal Rule 12(b)(2). Although both the statute and the rule have been amended since 1964, these amendments do not undermine the decision in Adkins. The burglary statute still requires proof of the defendant’s intent to commit “a crime”, and Rule 12(b)(2) still imposes no time limit on a defendant’s ability to object to an indictment on the ground that it “fail[s] ... to charge an offense”. We have no authority to alter the supreme court’s resolution of this issue of statutory construction.

Conclusion

Semancik’s conviction for attempted burglary is REVERSED and the corresponding count of his indictment is DISMISSED. The State remains free to reindict and retry Sem-ancik if it wishes.

COATS, Chief Judge,

dissenting.

The State charged Semancik with several offenses, including one count of attempted burglary in the first degree. A person commits burglary in the first degree if he enters a dwelling with the intent to commit a crime. Although it appears that the State could have charged Semancik with a completed burglary for breaking the window of his neighbor’s house and putting his arm through the window, the State’s theory was that this action constituted a substantial step towards burglary and charged the offense as an attempted burglary. In the indictment, the State never specified what crime Semancik intended to commit when he entered his neighbor’s house. But Semancik never moved to dismiss the indictment or seek a bill of particulars. Furthermore, Semancik did not object to the court’s jury instructions. From the record, it is clear that the State alleged that the crime which Semancik intended to commit was assault. Semancik argued to the jury that his sole intention was to retrieve his dog and that he had no intention of committing an assault. The jury rejected this argument.

Now, for the first time on appeal, Seman-cik points out that the indictment did not specify that he intended to commit an assault in the dwelling. He relies on Adkins v. State, a case decided by the Alaska Supreme Court nearly forty years ago. The State concedes that Adkins appears to require this result but argues that Adkins was wrongly decided.

As a lower court, we are bound by the decisions of the Alaska Supreme Court. And given the State’s position, I certainly respect my colleagues’ decision concluding that Adkins is controlling. But we do have a duty to review a concession by the State to make sure that the concession “is supported by the record on appeal and has legal foundation.” And Adkins, as interpreted by Semancik, seems to me to be contrary to supreme court decisions decided subsequent to Adkins. For instance, in Lwpro v. State and Thomas v. State the Alaska Supreme Court held that so long as an indictment gives the defendant sufficient notice of the charge to enable him to prepare his defense and to be protected against double jeopardy, the indictment is sufficient even if it does not set out every necessary element of the crime.

Furthermore, Alaska Criminal Rule 12(b)(2) requires motions against an indictment to be made before trial. The policy behind the rule is clear. This case presents an excellent example. If Semancik had pointed out the defect in the indictment before trial, the prosecution could easily have cured the problem. By not pointing out the problem in the indictment, Semancik did not suffer any prejudice: it was obvious that the State was charging him with attempting to enter the neighbor’s dwelling with the intent to commit an assault. By not objecting, Semancik was able to go to trial on the attempted burglary charge without risk. When the jury rejected his defense, Seman-cik was able to have his conviction reversed. This is obviously terrible policy. Case law from other states with burglary statutes similar to Aaska appears to universally recognize this. These cases are set out on pages 5 to 9 of the majority opinion. Some of these states hold that it is not necessary in a burglary indictment to specify the defendant’s intended crime. Other states, with statutes similar to Aaska’s, do hold that the indictment should specify the intended crime. But even these states hold that the failure to specify the crime is merely a defect in the indictment, and the defendant must either object or show plain error in order to prevail.

I therefore conclude that there is a possibility that we are misreading Adkins. The Adkins court may have concluded that Adkins might have been prejudiced by the failure to specify the underlying crime in the indictment, even though, in its opinion, the court did not discuss prejudice. In the event that Adkins actually did hold that a burglary indictment was fatally flawed unless it speci-fled the defendant’s intended crime, I conclude that the force of that decision is undermined by later supreme court cases such as Lupro and Thomas. I certainly recognize that, as a legal matter, my colleagues may be correct in concluding that we are required to follow Semancik’s interpretation of Adkins. If this is the case, I do not believe that Adkins would survive review by the Alaska Supreme Court. Perhaps my dissent will serve in some way to encourage this reexamination.

      . Semancik was indicted under two theories: AS 11.46.300(a)(1) (burglary of a dwelling) and AS 11.46.300(a)(2)(C) (using or threatening to use a dangerous instrument while committing burglary).

      . See AS 11.46.310(a).

      . 389 P.2d 915, 916 (Alaska 1964).

      . Adkins, 389 P.2d at 915-16.

      . Alaska Criminal Rule 12(b)(2) has been amended since Adkins was decided, but the changes are not pertinent to this appeal. The original version of the rule is contained in Supreme Court Order No. 4 (October 4, 1959).

        . See United States v. Panarella, 277 F.3d 678, 682 (3rd Cir.2002) ("We have squarely held that [Federal Criminal] Rule 12(b)(2) applies equally to ... objections raised [in the trial court] and objections raised for the first time before a Court of Appeals."); United States v. Smith, 223 F.3d 554, 571 (7th Cir.2000) ("[The defendant] makes his attack on the sufficiency of the indictment for the first time on appeal.... [I]t is clear that he is entitled to do so, for [Federal Criminal Rule] 12(b)(2) states that a defendant may raise at any time an objection that the indictment 'fails to show jurisdiction or to charge an offense,' and such an objection ‘shall be noticed by the court at any time during the pendency of the proceedings.’ Here, [the defendant] is arguing that the indictment’s failure to allege that he took these acts 'knowingly and intentionally' means that it fails to charge an offense.”); United States v. Gama-Bastidas, 222 F.3d 779, 785 (10th Cir. 2000) (allowing the defendant to challenge his indictment for failure to charge a crime even though the objection was raised for the first time at a re-sentencing hearing in the trial court following an appeal); United States v. Adesida, 129 F.3d 846, 850 (6th Cir. 1997) (same); United States v. Rosnow, 9 F.3d 728, 730 (8th Cir. 1993) (same); Government of the Virgin Islands v. Pemberton, 813 F.2d 626, 631 (3rd Cir.1987) ("This court has interpreted [Federal Criminal Rule] 12(b)(2) to mean that an objection to an information on the ground that it fails to charge an offense may be raised for the first time on appeal.’’).

      . 574 N.W.2d 10 (Iowa 1997).

      . 105 Wash.2d 1,711 P.2d 1000 (1985).

      . See Commonwealth v. Walter, 40 Mass.App.Ct. 907, 661 N.E.2d 942, 944 (1996) (construing a burglary statute that requires proof of the defendant's intent to commit a felony); State v. Linn, 251 Kan. 797, 840 P.2d 1133, 1138 (1992) (construing a burglary statute that requires proof of the defendant's intent to commit a felony); People v. Palmer, 83 Ill.App.3d 732, 39 IlI.Dec. 262, 404 N.E.2d 853, 857 (1980) (construing a burglary statute that requires proof of "intent to commit therein a felony or theft”); People v. Failla, 64 Cal.2d 560, 51 Cal.Rptr. 103, 414 P.2d 39, 41-42 (1966) (construing a burglary statute that requires proof of "intent to commit theft or any felony”); State v. Allen, 186 N.C. 302, 119 S.E. 504, 506 (1923) (construing a burglary statute that requires proof of the defendant’s intent to commit a felony) (superseded by statute as held in State v. Worsley, 336 N.C. 268, 443 S.E.2d 68, 73 (1994)).
      Semancik cites one case in his reply brief, Lanier v. State, 733 So.2d 931 (Ala.Crim.App.1998), that is, at first blush, contra. In Lanier, the court held that an indictment must specify the defendant's intended crime even though the burglary statute at issue required only proof of "intent to commit a crime". But the Lanier court relied on a line of decisions—Coleman v. State, 443 So.2d 1355, 1358 (Ala.Crim.App. 1983); Cliatt v. State, 348 So.2d 509, 512 (Ala.Crim.App. 1977); and Behel v. State, 40 Ala.App. 689, 122 So.2d 537, 538 (Crim.App.1960) — that all dealt with a differently worded burglary statute: one that required proof that the defendant acted "with intent to commit theft or a felony”. The Lanier court showed no awareness that these prior cases might not apply to a statute that only required proof of the defendant’s intent to commit "a crime”. This is probably because this issue was not litigated. The defendant in Lanier did not challenge the wording of the indictment on appeal; rather, the Alabama court noted this "jurisdictional defect” on its own motion. See Lanier, 733 So.2d at 935.

      . See State v. Robinson, 289 N.J.Super. 447, 673 A.2d 1372, 1375 (App.1996) (holding that New Jersey’s burglary statute, which requires proof that the unlawful entry was accomplished “with purpose to commit an offense”, did not require the state to specify the defendant’s intended offense); Commonwealth v. Alston, 539 Pa. 202, 651 A.2d 1092, 1094 (1994) (holding that Pennsylvania's burglary statute, which defines the offense as "an unauthorized entry with the intent to commit a crime after entry”, did not require the state to specify the crime that the defendant intended to commit after entry); People v. Mahboubian, 74 N.Y.2d 174, 544 N.Y.S.2d 769, 543 N.E.2d 34, 44 (1989) (citing People v. Mackey, 49 N.Y.2d 274, 425 N.Y.S.2d 288, 401 N.E.2d 398, 400 (1980)) (“In order to secure a conviction for burglary, the People need only allege and prove a knowing and unlawful entry coupled with an intent to commit a crime therein. There is no requirement that the People allege or establish what particular crime was intended!.]" (emphasis in the original)).

      . See State v. Frazier, 73 Ohio St.3d 323, 652 N.E.2d 1000, 1009 (1995) (even though an indictment for aggravated burglary failed to specify the felony intended in the burglary, there was no plain error because the other counts in the indictment apprised the defendant of what he was indicted for and needed to defend against, and because the state did not put on evidence of any felony other than those charged in the several counts of the indictment); State v. Worsley, 336 N.C. 268, 443 S.E.2d 68, 74 (1994) (failure of a burglary indictment to specify the defendant’s intended crime is not a fatal defect because, through discovery and (if necessary) a bill of particulars, defendants will be able to adequately inform themselves of the nature of the charge); State v. Skelton, 247 Kan. 34, 795 P.2d 349, 359 (1990) (although a burglary indictment is defective in form unless it specifies the defendant's ulterior crime, "this defect does not automatically result in prejudicial error”); State v. Waters, 436 So.2d 66, 68-69 (Fla.1983) (holding that, in light of Florida’s "broad reciprocal discovery rules”, "[sjpecification of the offense intended is not so essential a part of the intent element as to require that it always be set out in the charging document.’’).

      . This former burglary statute is quoted in full in footnote 2 of Donlun v. State, 527 P.2d 472, 473 (Alaska 1974).

      . 984 P.2d 56, 58 (Colo.1999).

      . See Gomez v. People, 162 Colo. 77, 424 P.2d 387, 388 (1967); Martinez v. People, 163 Colo. 503, 431 P.2d 765, 767 (1967).

      . Williams, 984 P.2d at 61, 65.

      . See id. at 61-63.

      . See id. at 60.

      . See id. at 64.

      . Lupro, 603 P.2d at 472-73; Thomas, 522 P.2d at 530.

      . AS 11.46.300; AS 11.46.310.

      . Sears v. State, 713 P.2d 1218, 1220 (Alaska App.1986).

      . 389 P.2d 915 (Alaska 1964).

      . Marks v. State, 496 P.2d 66, 68 (Alaska 1972).

      . 603 P.2d 468 (Alaska 1979).

      . 522 P.2d 528 (Alaska 1974).

      . Lupro, 603 P.2d at 472-73; Thomas, 522 P.2d at 530.


author: MANNHEIMER, Judge.

text:
    Kevin WILLIS and Barbara Nauska, Appellants, v. STATE of Alaska, Appellee.
    Nos. A-7587, A-7778.
    Court of Appeals of Alaska.
    Oct. 25, 2002.

      Kathleen A. Murphy and Wally Tetlow, Assistant Public Defenders, and Barbara K. Brink, Public Defender, Anchorage, for Appellant Willis.
    Chet Randall, Portland, Maine, for Appellant Nauska.
    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

MANNHEIMER, Judge.

Kevin Willis and Barbara Nauska were indicted for seriously injuring their two-month-old child. At six o’clock in the evening on July 17, 1997, Nauska brought the baby to the emergency room at Bartlett Regional Hospital in Juneau. The baby had a fractured skull and broken ribs.

According to medical testimony, these injuries were likely inflicted when someone grasped the infant by its chest and bashed its head against a wall or other hard object. Medical testimony also indicated that the baby sustained these injuries during the two hours preceding his arrival at the hospital. During most of this time, the infant was in the care of Willis and Nauska on their small houseboat. However, Willis and Nauska both claimed that they did not know how the baby was injured.

Following a police investigation, Willis and Nauska were indicted for second-degree assault. The State conceded that it could not prove which of them had assaulted the baby. However, the indictment was based on the theory that one of them had personally assaulted the infant while the other had knowingly stood by and allowed the assault to happen — thus violating their parental duty to protect the child and rendering them criminally liable for the resulting injuries. See Michael v. State, 767 P.2d 193, 198-99 (Alaska App.1988).

At trial, Willis and Nauska asserted that their babysitter, Patrick Prewett, had assaulted the baby before they returned home that afternoon. The jury rejected this defense and convicted Willis and Nauska of second-degree assault under AS 11.41.210(a)(2) — “recklessly causing] serious physical injury to another person”. Both defendants now appeal their convictions and their resulting sentences.

The defendants’ assertion that the State presented inadmissible evidence to the grand jury

Both Willis and Nauska argue that then-indictments were fatally flawed by inadmissible and prejudicial evidence that was presented to the grand jury.

The grand jury heard testimony indicating that Nauska showed little affection for the infant and little interest in him while he was being treated at the hospital. We agree with the superior court that this testimony was relevant.

The grand jury heard testimony indicating that Willis and Nauska had previously mistreated the infant and had also mistreated his two-year-old brother. In addition, the grand jury heard evidence that Willis had mistreated Nauska and had hit another woman named “Joni”. The grand jury heard testimony that Willis’s and Nauska’s two children suffered from developmental difficulties. Finally, the grand jury also viewed photographs depicting the squalid condition of Willis’s and Nauska’s houseboat. Willis and Nauska argue that all of this evidence improperly suggested that they were bad parents and that Willis was abusive toward women.

Superior Court Judge Larry R. Weeks concluded that even if this evidence should not have been presented to the grand jury, there was po realistic possibility that this evidence affected the grand jury’s decision to indict Willis and Nauska. We agree.

When inadmissible evidence is presented to the grand jury, a court must engage in a twp-part analysis:

The superior court first subtracts the improper evidence from the total case heard by the grand jury and determines whether the remaining evidence would be legally sufficient to support the indictment. If the remaining evidence is legally sufficient, the court then assesses the degree to which the improper evidence might have unfairly prejudiced the grand jury’s consideration of the case. The question the court must ask itself is whether, even though the remaining admissible evidence is legally sufficient to support an indictment, the probative force of that admissible evidence was so weak and the unfair prejudice engendered by the improper evidence was so strong that it appears likely that the improper evidence was the decisive factor in the grand jury’s decision to indict.

Stern v. State, 827 P.2d 442, 445—16 (Alaska App.1992).

When we apply this test to Willis’s and Nauska’s case, we reach the same conclusion as Judge Weeks. The grand jury heard uncontradicted evidence that the baby suffered serious physical injuries and that these injuries were not suffered accidentally but rather were inflicted deliberately. The grand jury also heard evidence strongly suggesting that the baby had suffered these injuries while he was in Willis’s and Nauska’s sole care. This evidence was sufficient to support Willis’s and Nauska’s indictment for second-degree assault. Even assuming that the grand jury should not have heard the evidence that Willis and Nauska complain of, it does not appear likely that this improper evidence was “the decisive factor in the grand jury’s decision to indict”.

For these reasons, Judge Weeks acted properly when he denied Willis’s and Naus-ka’s motion to dismiss the indictment.

The adequacy of the trial judge’s curative instruction tvhen Patrick Prewett — a witness and one-time suspect — referred to the fact that he had taken a polygraph examination

Although Willis and Nauska were with their infant son for the ninety minutes to two hours immediately before he was brought to the hospital, another person — Patrick Prew-ett — had babysat the infant earlier that same afternoon. The police therefore investigated Prewett as a potential suspect. During this investigation, the police asked Prewett to take a polygraph examination. The results were inconclusive.

Before trial began, the prosecutor asked Judge Weeks to issue a protective order hairing either defense attorney from mentioning Prewett’s polygraph test and its inconclusive results. Judge Weeks granted this request.

During trial, when Nauska’s attorney was cross-examining Prewett, the defense attorney asked Prewett whether he remembered his interview with Sgt. Hernandez of the Juneau Police Department. Prewett responded, “Oh, yes. I know the one you’re talking about now. He was on the lie de-tec — I was on — as to the lie detector.”

A few moments later, Nauska’s attorney asked for a mistrial. His sole stated reason was that Prewett had referred to information that the court had excluded.

Judge Weeks declined to order a mistrial. Instead, he proposed the following curative instruction:

Normally, evidence about a lie detector test is not admissible in evidence in court. This is because courts have determined that such evidence is not sufficiently reliable. Evidence about a lie detector was mentioned by Mr. Prewett.
Mr. Prewett was administered a lie detector test by the Juneau Police. The results of that test were inconclusive. It is for you to determine the weight to give to Mr. Prewett’s testimony. You should weigh his testimony in the manner I’ve explained about weighing any witness’s testimony.

Both defense attorneys announced that they had no objection to this instruction. Naus-ka’s attorney added, “for the record”, that he did not wish to abandon his earlier motion for a mistrial, but he offered no explanation of why he thought that Judge Weeks’s instruction was inadequate to cure the problem.

On appeal, both Nauska and Willis contend that Judge Weeks erred in failing to grant Nauska’s motion for a mistrial.

Willis concedes that his trial attorney did not join Nauska’s motion, but he argues that Judge Weeks’s failure to declare a mistrial was plain error. Willis is barred from pursing this argument. To prove plain error, a litigant must show that their attorney had no tactical reason for failing to object to the alleged error. Here, the record shows that Willis’s attorney made a purposeful decision not to join Nauska’s motion for a mistrial. Willis may now believe that his attorney’s decision was mistaken, but the decision was clearly tactical and was not plainly incompetent.

Turning to Nauska’s claim of error, we again note that Nauska’s attorney failed to articulate any reason why a mistrial was required — i.e., why Judge Weeks’s curative instruction was inadequate. This is tantamount to failing to preserve this claim of error. Under Alaska Criminal Rule 46, an attorney does not preserve a claim of error unless, “at the time the ruling or order of the court is made or sought, [the attorney] makes known to the court the action which the party desires the court to take or the [attorney’s] objection to the action of the court and the grounds therefor ”.

We have repeatedly held that a trial attorney must do more than object; the attorney must also apprise the trial court of their reasons for objecting (unless those reasons are obvious). An objection without an accompanying statement of reasons is not sufficient to preserve a point on appeal. Nauska must therefore show that Judge Weeks committed plain error by failing to declare a mistrial.

This Court has previously pointed out the dangers of polygraph evidence. The chief danger is that jurors may view polygraph results as an objective, scientific assessment of a witness’s credibility, or they may rely on polygraph results instead of carefully evaluating conflicting testimony. But Judge Weeks’s curative instruction addressed these problems. He told the jury that polygraph evidence is inherently unreliable and that, in any event, Prewett’s polygraph test yielded inconclusive results. He further told the jury that they should evaluate Prewett’s testimony in the same manner as the testimony of the other witnesses in the case.

Nauska points out that there is an additional problem with polygraph evidence. Leaving aside the question of whether the test results prove anything, a jury may conclude that a witness’s willingness to take a polygraph test-is circumstantial evidence that the witness is telling the truth.

It is true that Judge Weeks’s curative instruction failed to expressly tell the jurors not to speculate about Prewett’s willingness to take the polygraph examination. However, this was a problem that could easily have been cured if either of the two defense attorneys had spoken up. As explained above, Judge Weeks asked the two defense attorneys if they had any objection to his proposed curative instruction, and both attorneys announced themselves satisfied with it. Although Nauska’s appellate attorney has now identified a potential omission in Judge Weeks’s instruction, we will not reverse Nauska’s conviction unless it is clear that the fairness of Nauska’s trial was prejudiced by this omission.

Here, the jury was told that Prewett took a polygraph test, but there was no evidence that Prewett volunteered to take the test. For all the jury knew, Prewett might have been unwilling to take the test and did so only because of police pressure. No one suggested that Prewett actively sought or willingly consented to the polygraph examination.

Nauska points out that the jury heard testimony that the authorities ultimately concluded that Prewett had not assaulted the baby. But this fact was obvious: Willis and Nauska were indicted, and Prewett was not. The real question is whether the jury was led to believe that the authorities based their decision on Prewett’s polygraph results.

Judge Weeks’s curative instruction answers this question: the jurors were told that Prewett had not passed the polygraph test— that his test results were inconclusive.

Moreover, the prosecuting attorney made it clear (both in her opening statement and her summation) that Willis and Nauska were charged with assault based primarily on the fact that they lied about when they returned to their houseboat to resume care of their baby, and on the medical evidence showing that the baby most likely suffered his injuries during the late afternoon while he was in their care.

Finally, we note that Willis and Nauska did not view Prewett’s polygraph test results as prejudicing their defense; rather, they believed that Prewett’s test results bolstered their defense. As explained above, both defendants argued at trial that Prewett was the true culprit. During Willis’s summation to the jury, his attorney reminded the jurors that Prewett’s polygraph results had been “inconclusive”, and he argued that this adjective aptly described the State’s entire case. In other words, Willis’s attorney argued that Prewett’s inconclusive polygraph results tended to create a reasonable doubt as to Willis’s and Nauska’s guilt.

Nauska’s attorney (who argued second) did not expressly refer to the polygraph results, but he closed his remarks by reminding the jury of the argument made by Willis’s attorney:

Nauska’s Attorney: As Mr. Meyers [ie., Willis’s attorney] closed, so will I. The metaphor in this case is, the evidence is “inconclusive”. The evidence is inconclusive. The State hasn’t proven their case. Perhaps the defense has indicated to you that the State should continue to look at Mr. Prewett. Thank you.

For these reasons, we conclude that Judge Weeks did not commit plain error when he gave the curative instruction and declined to order a mistrial.

The adequacy of the jury instructions concerning criminal ?'esponsibility based on a parent’s failure to act to protect their child

As explained above, the State could not identify either Willis or Nauska as the person who inflicted the baby’s injuries. The State’s theory of prosecution was that one of them assaulted their child while the other stood by and allowed the assault to occur. Because the case was litigated this way, the jurors had to be instructed concerning the circumstances under which a parent can be held criminally responsible for failing to protect their child.

Judge Weeks gave the jurors an instruction that combined both theories of criminal responsibility — ie., responsibility based on personal commission of an assault, and responsibility for failing to act to prevent the assault:

A person commits the crime of assault in the second degree if, either by acting or by failing to act when he or she has a legal duty to act, that person recklessly causes serious physical injury to another person.
In order to establish the crime of assault in the second degree ..., it is necessary for the state to prove beyond a reasonable doubt the following:
First, that the event in question occurred at or near Juneau and on or about July 17,1997;
Second, that the defendant had a duty to protect [the child];
Third, that the defendant performed an act or failed to perform an act which resulted in serious physical injury to [the child];
Fourth, that the defendant acted recklessly.

When Judge Weeks’proposed this instruction, Willis’s attorney expressed concern that the instruction did not adequately explain the culpable mental state required to prove the “dereliction of duty” theory of culpability:

Willis’s Attorney: I think my concern was about the mental state of “recklessly” as to the circumstance ... that the defendant has to be aware that there is some injury occurring to the child. And I don’t think that [this concept] is necessarily reflected in this instruction_ [T]he Michael [decision] says that the parent has to have some awareness that there was an injury coming about to the child. And I think the instruction ought to incorporate that_ What I’m saying ... is that I think that somewhere [in the instruction] there ought to be something that says that the parent ought to have be[en] aware of the substantial probability that [the child] was under a risk of physical attack or assault. Am I making sense?

Judge Weeks agreed with Willis’s attorney that this was a valid concern, but the judge believed that this concern was fully addressed by the court’s separate instruction on the definition of “recklessly”:

The Court: I think that there has to be a substantial probability that [the child] was under a risk of physical attack or assault.... I think that that’s included in the definition of “recklessly”. [The separate jury instruction on] “recklessly” says, “A person acts recklessly with respect to a result described in the law when the person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur.”
Willis’s Attorney: The risk being the injury to [this child]?
The Court: No.... The risk is that an injury may occur.
Willis’s Attorney: Okay.

Nauska’s attorney then told Judge Weeks that he had no objection to the instruction.

On appeal, Willis and Nauska argue that the jury instruction on the elements of assault fails to correctly state the components of criminal responsibility based on dereliction of duty. As we explain below, the defendants are correct. However, despite the colloquy that we have just quoted, Willis did not bring this problem to Judge Weeks’s attention. Thus, both defendants are in the same procedural position on appeal: they must show that Judge Weeks committed plain error by giving this instruction. Given the facts of this case and the way it was litigated, we conclude that this jury instruction did not constitute plain error.

(a) The two culpable mental states that must be proved when a parent is charged with homicide or assault for failing to protect their child

The elements of criminal responsibility based on dereliction of duty are set out in Michael v. State, 767 P.2d 193 (Alaska App.1988). The actus reus of the offense is the defendant’s failure to act when the defendant had a duty to act. The State must show that this failure to act was “knowing”. (Under Alaska’s criminal code, only, one culpable mental state — “knowingly”—applies to conduct. See AS 11.81.900(a)(l)-(4), as explained in Neitzel v. State, 655 P.2d 325, 333 (Alaska App.1982).)

More specifically, when a defendant is prosecuted for failing to act, the State must show that the defendant was aware of the circumstance that triggered the duty to act and that, being aware of this circumstance, the defendant chose to do nothing — i.e., “knowingly” refrained from acting. In the case of a parent prosecuted for assault or homicide for failing to protect their child, the State must prove that the parent knew of the need to take action to protect the child and knowingly refrained from taking action.

In addition to proving this actus reus, the State must additionally prove that the parent acted with the requisite culpable mental state regarding the result specified by the offense. (In a homicide prosecution, the prohibited result is death. In an assault prosecution, the prohibited result is either serious physical injury, physical injury, or apprehension of imminent injury.)

At first blush, it might seem superfluous to require proof of a separate culpable mental state regarding the possibility of the child’s injury — for, as we have just explained, the State must prove that the parent knew of the need to protect the child in order to establish that the parent’s failure to act was “knowing”. But children often engage in sports and other activities that hold some degree of physical peril. Even though a parent understands that their child might be injured while engaging in these activities, the parent’s knowing failure to intervene does not constitute a crime unless the government also proves that the parent acted (or, more precisely, failed to act) with a culpable mental state regarding the potential injury — a culpable mental state that will vary according to the crime charged.

For example, even though a child might conceivably suffer serious physical injury while skiing or while driving a motor vehicle, the child’s parent could not be convicted of second-degree assault under AS 11.41.210(a)(2) (recklessly causing serious physical injury) for failing to take protective action unless the government proved that the parent acted “recklessly” with regard to this result — ie., proved that the parent was “aware of and consciously disregard[ed] a substantial and unjustifiable risk” that serious physical injury would occur if the parent failed to intervene. See AS 11.81.900(a)(3), the statutory definition of “recklessly”.

Under this statutory definition, the government would have to show that the risk of serious physical injury was “of such a nature and degree that [the parent’s] disregard of it constitute^ a gross deviation from the standard of conduct that a reasonable person would observe in the situation”. This, in a nutshell, is the difference between letting a toddler play with a firearm and letting an adolescent go on a hunting trip.

(b) Why we conclude that Willis’s attorney failed to alert Judge Weeks to the problem, in this case

When the jury instruction in Willis’s and Nauska’s ease is evaluated in light of the foregoing discussion, one can see that the instruction is flawed. The instruction correctly stated that the State was obliged to prove that the defendants performed an act or failed to perform an act that resulted in serious physical injury to their child. The instruction also correctly stated that the State was obliged to prove that the defendants acted recklessly with regard to this result. But the instruction failed to tell the jury that, before a defendant can be held criminally accountable for failing to act, the State is obliged to prove that the defendant’s failure to act was “knowing”.

On appeal, Willis points out this flaw. He also contends that he brought this problem to Judge Weeks’s attention. But the record shows that he did not.

When Willis’s attorney spoke to Judge Weeks about the instruction, he expressed concern that the instruction lacked any language “say[ing] that the parent [had] to have be[en] aware of the substantial probability that [the child] was under a risk of physical attack or assault”. The phrase “substantial probability” comes from the statutory definition of “knowingly” in AS 11.81.900(a)(2). One might therefore think that Willis’s attorney was directing Judge Weeks’s attention to the fact that the instruction failed to mention that a defendant’s failure to act must be “knowing”. But the subsequent exchange between the defense attorney and Judge Weeks shows that the attorney had not identified this problem.

When Judge Weeks answered Willis’s attorney, he agreed that the law required proof of “a substantial probability that [the child] was under a risk of physical attack or assault”. However, Judge Weeks told the attorney that he believed this concept was adequately communicated by the definition of “recklessly” contained in a separate jury instruction: “A person acts recklessly with respect to a result described in the law when the person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur.”

At this juncture, if Willis’s attorney had been trying to alert Judge Weeks to the fact that the instruction failed to comply with the analysis set out in Michael, the defense attorney would have responded that the charge of second-degree assault required proof of two culpable mental states — “knowingly” with respect to the defendant’s failure to act, and “recklessly” with respect to the defendant’s awareness of the possibility that failing to act might result in serious physical injury. But instead of saying this, Willis’s attorney said, “Okay”. That is, the attorney agreed with Judge Weeks that the separate instruction on “recklessly” constituted a satisfactory answer to his concerns.

Under Alaska Criminal Rule 30(a), an attorney who objects to a jury instruction must “stat[e] distinctly the matter to which the party objects and the grounds of the objections”, so that the trial judge is alerted to the problem and has an opportunity to correct it. Although Willis’s attorney expressed concern about the jury instruction defining the elements of second-degree assault, he never articulated the problem that he now raises on appeal. And Nauska’s attorney told Judge Weeks that he had no problem with the instruction. Thus, in this appeal, both Willis and Nauska must demonstrate that the instruction constituted plain error.

(c) Why we conclude that Judge Weeks did not commit plain error when he gave this jury instruction

We have just explained why, when a defendant is prosecuted for second-degree assault based on dereliction of their parental duty, the government’s burden to prove that the defendant knowingly failed to act is distinct from its burden to prove that the defendant was reckless with respect to the possibility that their failure to act might result in serious physical injury.- Nevertheless, it is often true that the same facts will prove both elements.

For example, if a parent does nothing even though they are aware that their spouse is assaulting their infant child, this fact will tend to prove both the defendant’s knowing failure to act and the defendant’s recklessness concerning the possibility of serious physical injury. That was the case in Michael, and it was also the State’s theory of prosecution against Willis and Nauska.

The State presented evidence that Willis’s and Nauska’s baby sustained serious physical injury in the late afternoon of July 17, 1997, that this injury was the result of an assault rather than an accident, and that Willis and Nauska were alone with the baby on a small houseboat when the injury occurred. The State alleged that one of the two defendants violently assaulted the baby while the other one looked on and did not intervene.

Faced with this theory of prosecution, Willis and Nauska conceivably might have pursued litigation strategies that highlighted the need to instruct the jury on the element of a knowing failure to act. For instance, either defendant might have contended that they left the houseboat for some reason and that their spouse was alone with the baby when the baby was injured. Alternatively, either defendant might have contended that, although they were present on the houseboat when the baby was injured, they had fallen asleep from fatigue and/or intoxication and thus they were unaware that the. baby was being assaulted by their spouse. Or either defendant might have asserted that their spouse assaulted the baby but that the assault occurred in an instant, giving the defendant no time to intervene or do anything other than rush the baby to the hospital.

Likewise, the defendants might have pursued a litigation strategy that highlighted the distinction between a knowing failure to act and recklessness concerning the possibility of serious physical injury. For instance, one of the defendants might have asserted that, even though they knowingly failed to prevent their spouse from assaulting the child, they had no reason to believe that the assault would be severe enough to inflict serious physical injury on the baby.

But Willis and Nauska did not pursue such litigation strategies. Instead, from beginning to end, Willis and Nauska jointly asserted that no harm had befallen the baby while he was in their presence. Both defendants argued that Prewett was the culprit — that he assaulted the baby before Willis and Nauska returned to the houseboat in the late afternoon.

Given the way this case was litigated, the jury’s crucial task was to determine who injured the baby. If it was either Willis or Nauska, this meant that the remaining spouse witnessed the assault and did nothing. Under these circumstances, the two culpable mental states effectively coalesced. Judge Weeks’s jury instruction told the jurors that the State was obliged to prove that the non-assaulting parent acted recklessly — that the non-assaulting parent was aware of and consciously disregarded a substantial and unjustifiable possibility that their spouse would inflict serious physical injury on the baby. Given the defense strategy adopted by Willis and Nauska, such a finding was tantamount to a finding that the non-assaulting parent knowingly failed to protect the baby.

In previous cases, we have found plain error when the jury instructions incorrectly defined the essential elements of the charged offense. But there is no plain error when, viewing the trial record as a whole, the erroneous jury instructions had no significant influence on the jury’s decision. For the reasons we have just explained, we conclude that the error in Willis’s and Naus-ka’s case — the failure to explicitly require proof of a knowing failure to act — had no affect on the jury’s decision and was harmless beyond a reasonable doubt.

Willis’s and Nauska’s sentence appeals

Willis and Nauska were convicted of second-degree assault, a class B felony with a sentencing range of 0 to 10 years’ imprisonment. Because both defendants were first felony offenders, their sentences were governed by the benchmark sentencing ranges we established in State v. Jackson, 776 P.2d 320, 326-27 (Alaska App.1989).

In addition, under AS 12.55.125(k)(2), neither defendant could receive more than 4 years’ unsuspended imprisonment unless the State proved aggravating factors under AS 12.55.155(c) or exceptional circumstances under AS 12.55.165. However, Judge Weeks found that the State had proved three aggravating factors. (Neither Willis nor Nauska disputes these three aggravators on appeal.)

Two of these factors were fairly straightforward: (c)(5) — that Willis and Nauska knew that their victim (a 2-month-old baby) was particularly vulnerable; and (c)(18)(A)— that the victim was a member of the defendants’ household. The third aggravator was based on the evidence at trial. Judge Weeks found aggravator (c)(10) — that the defendants’ conduct was among the most serious within the definition of the offense — because the evidence showed that the baby’s injuries had been life-threatening.

According to the medical testimony at Willis’s and Nauska’s trial, their baby suffered a major skull fracture at the back of his head and the posterior fracturing of three ribs— all injuries that bespoke “enormous” or “incredible” force. A doctor testified that the baby’s life “was very much at risk” during the first twelve hours of his hospitalization in Seattle. The baby also showed signs of prior injuries to his spine, his arms, and the fingers of his right hand.

Based on the evidence before him, Judge Weeks concluded that Barbara Nauska was most likely the one who assaulted the baby, but the judge also concluded that Kevin Willis knew, from the baby’s prior injuries, that Nauska posed a danger to their child.

Judge Weeks imposed the same sentence on both defendants: 10 years’ imprisonment with 4 years suspended (6 years to serve). The judge recognized that Willis’s prior criminal record was worse, but he concluded that Nauska should receive an equal sentence because she was the one who assaulted the baby.

On appeal, both Willis and Nauska contend that 6 years to serve is excessive. But in State v. Jackson, we concluded that a first felony offender convicted of a class B felony could receive up to 6 years to serve if the offense was “exceptionally aggravated”— which we defined as a case involving significant statutory aggravating factors. Willis’s and Nauska’s cases each involve three undisputed aggravating factors. Judge Weeks could properly conclude that these three aggravating factors were significant enough to call for sentences within the Jackson benchmark range for exceptionally aggravated offenses. We therefore hold that Willis’s and Nauska’s sentences of 6 years to serve are not clearly mistaken.

Conclusion

The judgements of the superior court are AFFIRMED.

      . Reversed, on other grounds, 805 P.2d 371 (Alaska 1991).

      . See Massey v. State, 111 P.2d 448, 453 (Alaska App.1989); Potts v. State, 712 P.2d 385, 394 n. 11 (Alaska App.1985).

        .See Petersen v. State, 930 P.2d 414, 434 (Alaska App.1996) (when an attorney declines to argue the point or provide any rationale for giving a requested jury instruction, the party forfeits any claim of error); Cornwall v. State, 915 P.2d 640, 653 n. 11 (Alaska App.1996) (same); Hohman v. State, 669 P.2d 1316, 1325-26 (Alaska App.1983) (when an attorney offers evidence which is challenged for lack of relevance, and the proponent of the evidence fails to malte an offer of proof concerning the potential relevance of the challenged testimony, the party thereby forfeits the point on appeal).

        See also Alaska Criminal Rule 30(a) ("No party may assign as error any portion of the charge [to the jury] or omission therefrom unless tire party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which the party objects and the grounds of the objection.”) (emphasis added).

      . See Leonard v. State, 655 P.2d 766, 770 (Alaska App.1982).

      . See Leonard, 655 P.2d at 770; see also Jackson v. State, 652 P.2d 104, 107 (Alaska App.1982).

      . See Estate of McCoy, 844 P.2d 1131, 1134 (Alaska 1993):
      Plain error will be found only when an erroneous [jury] instruction creates ‘a high likelihood that the jury followed an erroneous theory[,] resulting in a miscarriage of justice.’ Holiday Inns of America, Inc. v. Peck, 520 P.2d 87, 91 (Alaska 1974).... [T]he ultimate determination in analyzing plain error in jury instructions is simply whether a correct instruction would have likely altered the result. Conam Alaska v. Bell Lavalin, 842 P.2d 148, 153 (Alaska 1992) (citations omitted).

      . Our decision in Michael was reversed by the Alaska Supreme Court on other grounds. See Michael v. State, 805 P.2d 371 (Alaska 1991).

      . Compare Kimoktoak v. State, 584 P.2d 25, 31 (Alaska 1978) (holding that a defendant can not be convicted of leaving the scene of an accident unless the government proves that the defendant was aware that an accident had occurred).

        .Michael, 767 P.2d at 200.

      . See S.R.D. v. State, 820 P.2d 1088, 1095-96 (Alaska App.1991); Reischman v. State, 746 P.2d 912, 915-16 (Alaska App.1987).

      . See Bowell v. State, 728 P.2d 1220, 1224 (Alaska App.1986); Reynolds v. State, 664 P.2d 621, 627—28 (Alaska App.1983); see also S.R.D. v. State, 820 P.2d 1088, 1096 (Alaska App.1991) (acknowledging this rule of harmless error, but nonetheless concluding that the error was not harmless under the facts of the case).

      . See AS 11.41.210(b); AS 12.55.125(d).

      . 776 P.2d at 326.

      . See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (an appellate court is to affirm a sentencing decision unless the decision is clearly mistaken).