author: Judge MANNHEIMER, writing for the Court. Judge ALLARD, concurring. Judge ALLARD, concurring.

text:
    James Patrick TANNER, Appellant, v. STATE of Alaska, Appellee.
    Court of Appeals No. A-12617
    Court of Appeals of Alaska.
    December 14, 2018
   Judge MANNHEIMER, writing for the Court.

In 1997, James Patrick Tanner pleaded guilty to two counts of second-degree sexual abuse of a minor. He received a composite sentence of 20 years' imprisonment with 10 years suspended, and he was placed on probation for 10 years following his release from prison.

The current appeal arises from the fact that the superior court later revoked Tanner's probation, and Tanner was released on bail pending his appeal of the superior court's decision. When the superior court granted Tanner's request to be released on bail, the court imposed a requirement of electronic monitoring.

Tanner's contract with the electronic monitoring company generally required him to remain at home, but the contract listed various exceptions to this requirement - various reasons why Tanner would be allowed to leave his home. One of the listed reasons was grocery shopping.

After the parties discussed the terms of this contract with the superior court, the court adopted the terms of the contract as conditions of Tanner's bail release.

Later, while Tanner was on bail release, the State again petitioned the superior court to revoke Tanner's probation (for a new violation). Following a hearing, the superior court found that Tanner had, in fact, violated his probation. Based on this new violation, the court imposed 90 days of Tanner's previously suspended jail time.

Tanner later filed a motion seeking credit against this sentence for the 212 days that he had spent on electronic monitoring.

The statute that governed Tanner's credit for electronic monitoring, AS 12.55.027(d), stated that a defendant could receive this credit only if "the court imposes restrictions on the [defendant's] freedom of movement and behavior while under the electronic monitoring program", and only if these restrictions include "requiring the [defendant] to be confined to a residence except for a (1) court appearance; (2) meeting with counsel; or (3) ... employment, attending educational or vocational training, performing community volunteer work, or attending a rehabilitative activity or medical appointment."

The superior court noted that, because the conditions of Tanner's electronic monitoring allowed him to leave his home to go grocery shopping, it appeared that Tanner's electronic monitoring was not sufficiently restrictive to meet the requirements of the statute. In response, Tanner argued that grocery shopping was an essential activity, and thus the statute should be construed to implicitly allow defendants to leave their residence to go grocery shopping. In the alternative, Tanner argued that grocery shopping qualified as a "rehabilitative activity" under the statute.

After hearing argument on these matters, the superior court ultimately rejected both of Tanner's arguments: the court ruled that AS 12.55.027(d) did not contain an implicit exception for grocery shopping, and the court ruled that grocery shopping did not qualify as a "rehabilitative activity" for purposes of AS 12.55.027(d). Thus, the court concluded, Tanner was not entitled to credit against his sentence for the time he spent on electronic monitoring.

Tanner now appeals the superior court's ruling.

Tanner argues that, unless AS 12.55.027(d) is interpreted as implicitly allowing defendants to leave home to go grocery shopping, the statute "leads to absurd results".

We agree with Tanner that life is more complicated and inconvenient for defendants who cannot leave their home to do their own grocery shopping, and we further agree that it would be reasonable for the legislature to expand the scope of the statute to allow defendants to occasionally leave their homes to buy groceries.

But the legislature could validly draw a distinction between grocery shopping and the appointments and activities expressly listed in the statute.

As we have explained, AS 12.55.027(d) states that a court cannot give a defendant credit for time spent on electronic monitoring unless the defendant's absences from home are limited to:

• court appearances,
• meetings with counsel,
• employment, or educational or vocational training,
• community volunteer work,
• rehabilitative activities, and
• medical appointments.

The factor that distinguishes these activities from "grocery shopping" is that, when a defendant leaves home to engage in the activities listed in the statute, someone will be expecting the defendant to show up at a particular place, and at a particular time. Thus, if the defendant does not show up, or if the defendant does not show up on time, someone will take note.

For this reason, we conclude that it was not absurd for the legislature to omit grocery shopping from the statutory list of a defendant's allowed absences from their home.

This leaves Tanner's argument that grocery shopping constitutes a "rehabilitative activity" for purposes of the statute.

The pertinent dictionary definition of "rehabilitate" is "to prepare ... an inmate ... for useful employment or successful integration into society by counseling, training, etc." Most people would not consider grocery shopping to constitute a form of rehabilitative "counseling" or "training".

We note, as well, that the statute refers to this authorized purpose for leaving home as "attending a rehabilitative activity". The legislature's use of the word "attend" is a further indication that the legislature was referring to defendants who enroll in scheduled sessions of counseling or training - as opposed to defendants who leave their homes for an unspecified destination, and for an unspecified length of time, to go shopping for groceries.

It is true, as Tanner notes in his brief, that when the legislature was formulating the current version of AS 12.55.027(d), they spent a considerable amount of time discussing the equivalent electronic monitoring program run by the Department of Corrections - a program under which convicted prisoners are released on electronic monitoring under modified house arrest, rather than being housed in correctional centers. Under the Department of Corrections' electronic monitoring program, prisoners get weekly passes that authorize them to leave their homes to handle personal errands, such as grocery shopping.

But despite this legislative discussion, the statute that the legislature ultimately enacted is more restrictive than the Department of Corrections' electronic monitoring program. AS 12.55.027(d) specifies the limited circumstances in which a defendant may be absent from their home and still get sentencing credit for the time they spend on electronic monitoring. This limited list does not include passes that authorize a defendant to leave their home to run personal errands.

For these reasons, we reject Tanner's contention that grocery shopping constitutes a "rehabilitative activity" for purposes of AS 12.55.027(d).

The judgement of the superior court is AFFIRMED.

Judge ALLARD, concurring.

Judge ALLARD, concurring.

I agree with the majority decision that Tanner's electronic monitoring program was insufficiently restrictive to qualify for credit under AS 12.55.027(d). I write separately only to make clear that, in my view, our decision is limited to the facts presented in this case and that a defendant whose monitoring program includes very limited and highly circumscribed passes specifically to obtain groceries (or other essential items of daily living such as medication) should not necessarily suffer the same disqualification.

In its briefing, the State concedes that "[t]he legislature probably intended that defendants on electronic monitoring receive credit against their sentences when they receive passes to go grocery shopping." The State bases this concession on the underlying purpose of AS 12.55.027(d), which is "to facilitat[e] independent living" and help defendants get "back on track" by allowing them to "gain access to community-based treatment, maintain employment, access diverse medical treatment, perform community service work, and begin the process of reintegration." The State nevertheless argues that passes for grocery shopping are prohibited because they are not specifically enumerated in the statute.

But our underlying goal when we construe a statute is to determine legislative intent and, if possible, to implement that intent. We are also required to construe statutes to avoid absurd results. Although AS 12.55.027(d) does not directly refer to grocery shopping, the statute does refer to passes for "attending a rehabilitative activity or medical appointment." Presumably a pass to attend a medical appointment would also include a pass to obtain the medication prescribed at such an appointment. And if a person is permitted to go to a pharmacy to obtain medication, it is not clear why the person should not be permitted to go to the grocery store to obtain the nutritional sustenance required to perform all of the other rehabilitative activities contemplated by the statute.

The majority opinion rejects the notion that grocery shopping can constitute a "rehabilitative activity" on the ground that a person does not "attend" such an event. But I see no reason why a limited pass to go grocery shopping cannot be structured to ensure the same sort of accountability and oversight present in other types of rehabilitative activities.

However, here, the record indicates that Tanner was permitted essentially four hours of unregulated passes a week under the terms of his electronic monitoring contract. Although the parties repeatedly referred to this free time as time set aside for "grocery shopping," the reality is that there were very few restrictions on Tanner's use of this time. Indeed, Tanner's personal log indicates that he spent a significant amount of this time at a car repair shop with multiple visits on multiple days to this same shop, apparently due to recurring mechanical problems with his car.

Given the record before us, I agree with the majority that Tanner is not entitled to credit against his sentence under AS 12.55.027(d), but I also believe that our decision should be read narrowly and limited to the specific facts presented here.

      See Tanner v. State , unpublished, 1997 WL 796501 (Alaska App. 1997) (sentence appeal); Tanner v. State , unpublished, 2000 WL 1593662 (Alaska App. 2000) (appeal of denial of post-conviction relief).

      This Court ultimately affirmed the superior court's decision; see Tanner v. State , unpublished, 2016 WL 5335672 (Alaska App. 2016).

      Webster's New World College Dictionary (Fourth Edition, 2004), p. 1208.

      Minutes of House Judiciary Comm., House Bill 15, statement of Representative Tammie Wilson (Feb. 20, 2015 at 1:56:23 p.m.); Minutes of House Judiciary Comm., House Bill 15, statement of Representative Tammie Wilson (Mar. 18, 2015 at 1:08:07 p.m.) (goal of electronic monitoring is to allow "defendants to keep their jobs, and receive treatment, while awaiting trial to help them get back on track").

      Brown v. State , 404 P.3d 191, 193 (Alaska App. 2017) ; Y.J. v. State , 130 P.3d 954, 959 (Alaska App. 2006).

      Miller v. State , 382 P.3d 1192, 1197 (Alaska App. 2016) ("A court should not construe statutes in a way that leads to unfair or incongruous results, or in a manner which yields results that are inexplicably draconian or that have no discernible purpose.") (internal citations omitted); Williams v. State , 853 P.2d 537, 538 (Alaska App. 1993) ("[A] court is obliged to avoid construing statutes in a way that leads to patently absurd results or to defeat of the obvious legislative purpose behind the statute.") (internal citations omitted).


source: Caselaw Access Project

author: Judge ALLARD.

license: Public Domain

text:
    Brant Josef Natori MARSHALL, Appellant, v. STATE of Alaska, Appellee.
    Court of Appeals No. A-12131
    Court of Appeals of Alaska.
    December 14, 2018
    Renee McFarland, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
    Thomas J. Aliberti, Assistant District Attorney, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.
    Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge.

      Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).

   Judge ALLARD.

Brant Josef Natori Marshall was convicted, following a jury trial, of second-degree failure to register as a sex offender. One of the elements of this crime is that the defendant is, in fact, a convicted sex offender who is required to register as a sex offender under AS 12.63.010.

At the beginning of Marshall's trial, Marshall's attorney offered to stipulate to this fact. The defense attorney explained that Marshall was not disputing that he was required to register; instead he was disputing only that he had knowingly failed to comply with the registration requirement. The defense attorney further explained that her reason for proposing this stipulation was to prevent the prosecution from entering the judgment for Marshall's underlying sex offense into evidence, thereby preventing the jury from learning that Marshall had been convicted of sexual abuse of a minor.

The prosecutor agreed to the proposed stipulation, and the trial court subsequently instructed the jury on the stipulation. The jury was also separately instructed on their obligation to find all the elements of second-degree failure to register as a sex offender beyond a reasonable doubt, including the element that was the subject of the stipulation. Following deliberations, the jury convicted Marshall of the charged offense.

On appeal, Marshall argues that the stipulation effectively removed an element from the jury's consideration and it was therefore error for the trial court to instruct the jury on the stipulation without first obtaining Marshall's personal waiver of his right to a jury trial on the element covered by the stipulation. Marshall further argues that the failure to obtain his personal jury trial waiver was structural error, entitling Marshall to automatic reversal of his conviction without any showing of prejudice.

For the reasons explained in this opinion, we disagree with Marshall that the stipulation removed an element of the charged offense from the jury's consideration, and we find no error in the trial court's handling of the stipulation.

Marshall also separately argues that the trial court erred when it failed to sua sponte instruct the jury that Marshall could not be convicted of failure to register if his failure to act was "the result of mistake, inadvertence, or negligence." We find no merit to this claim, given how this case was litigated and argued to the jury.

Background facts and prior proceedings

Marshall is a convicted sex offender who has been required to register as a sex offender on an annual basis since June 2000. Marshall's underlying sex offense was for second-degree sexual abuse of a minor. Marshall was in compliance with his registration requirements until June 2013, when he failed to submit his annual registration. Marshall had filed a change of address form with the Department of Public Safety the previous summer, indicating that he was homeless.

Approximately a month after Marshall failed to file his June 2013 annual sex offender registration, Marshall was a passenger in a car that was pulled over for a traffic stop. The officer who was conducting the stop recognized Marshall's name and was aware that Marshall was a sex offender who was out of compliance with his registration requirement. After confirming that Marshall was out of compliance, the officer confronted Marshall about his registration status. According to the officer's later testimony, Marshall responded with a series of statements indicating that "he didn't agree with the registration requirements, and so he purposefully stayed homeless." Marshall was arrested and charged with second-degree failure to register as a sex offender, a class A misdemeanor.

Alaska Statute 11.56.840(a) states, in pertinent part, that a person commits the crime of second-degree failure to register as a sex offender if the person "(1) is required to register under AS 12.63.010 ; (2) knows that the person is required to register under AS 12.63.010 ; and (3) fails to ... file the annual or quarterly written verification." A person is required to register as a sex offender under AS 12.63.010 if they have been convicted of a sex offense as defined in AS 12.63.100(6).

At the beginning of Marshall's trial, Marshall's attorney offered to stipulate to the first element - that is, she offered to stipulate that Marshall was required to register as a sex offender under AS 12.63.010. The defense attorney explained that she was offering this stipulation to prevent the State from introducing Marshall's criminal judgment for his sex offense - which would have alerted the jury to the fact that Marshall's underlying sex offense was for sexual abuse of a minor. According to the defense attorney, Marshall was not disputing that he was required to register as a sex offender; instead he was disputing only that he had knowingly failed to comply with that requirement. Marshall was present when this discussion took place, and he did not object to the stipulation or to his attorney's explanation of why it was being offered.

The prosecutor agreed to the proposed stipulation, and the trial court subsequently instructed the jury as follows:

The prosecution and the defense have agreed, or stipulated, to the following facts:
1. That the Defendant, BRANT JOSEF NATORI MARSHALL, is a sex offender and has the duties to register as a sex offender as imposed by AS 12.63.010.

The trial court also separately instructed the jury on all the elements of second-degree failure to register, including the element covered by the stipulation, and on the State's burden to prove each element beyond a reasonable doubt.

Following deliberations, the jury found Marshall guilty of second-degree failure to register. At sentencing, the trial court imposed 35 days to serve. This appeal followed.

Marshall's claim that the stipulation removed an essential element of the charge from the jury's consideration and therefore required his personal waiver of his right to a jury trial on that element

On appeal, Marshall argues that the stipulation effectively removed an element of the charged offense from the jury's consideration and it was therefore error for the trial court to instruct the jury on the stipulation without first obtaining Marshall's personal waiver of his right to a jury trial on that element.

We disagree with the underlying premise of this claim. Contrary to Marshall's assumptions, there is a distinction between a defendant stipulating to facts at a jury trial and a defendant waiving his right to a jury trial on those same facts. We previously explained this distinction in Ross v. State . As we explained in that case:

Criminal cases are decided by jury unless the defendant waives the right to jury trial and the government consents to have the case tried to the court. In a jury trial, even when the parties reach a stipulation concerning [an element of the offense], the stipulation will be presented to the jury and the jury will decide.

In the current case, the record shows that the jury was instructed on all of the elements of the offense, including the element covered by the stipulation. The jury was also specifically instructed that they could not convict Marshall of failing to register unless the State proved every element of the offense beyond a reasonable doubt. At no time was the jury instructed that the stipulation relieved the State of its burden of proving this element. And at no time was the jury told that, because of the stipulation, the jurors did not need to deliberate on this element of the offense.

We acknowledge that, in closing argument, the prosecutor ambiguously stated that "the State does not need to prove [the first element], with the stipulation." But this statement was made in the context of a paragraph that reaffirmed the State's duty to prove every element of the charged offense, including the element covered by the stipulation:

Instruction Number 5 ... is the list of elements that the State is going to have to prove beyond a reasonable doubt. ... So, the first element that the State needs to prove beyond a reasonable doubt is that Mr. Marshall is a sex offender. No one is contesting this element. The defense has stipulated to this, they have agreed to this, and the State does not need to prove that, with the stipulation.

Thus, contrary to Marshall's characterization of the prosecutor's statement on appeal, the prosecutor was not arguing that the State did not have a burden to prove the first element beyond a reasonable doubt. Instead, the prosecutor was pointing out that the stipulation was evidence and that the State was entitled to rely on this evidence to meet its evidentiary burden on that element.

In his appeal, Marshall relies heavily on Hutton v. State , an Alaska Supreme Court case in which the court reversed the defendant's felon-in-possession conviction because it found the defendant's jury trial waiver invalid. But Hutton is easily distinguishable from the present case. In Hutton , the jury was never instructed on the elements of felon-in-possession or asked to return a verdict on that charge. Instead, Hutton waived his right to a jury trial on that charge - a waiver that was later found invalid because the trial court had not informed him of all of the essential elements of the charge. Here, unlike in Hutton , Marshall received a jury trial in which the State was required to prove all of the essential elements of the charged offense, and it was the jury (not the judge) who found Marshall guilty of second-degree failure to register as a sex offender.

Marshall's briefing on appeal also relies on Smallwood v. State , a case in which this Court reversed the defendant's conviction because the trial court erroneously took conclusive judicial notice of an element of the offense. But this case is also distinguishable. Smallwood , and the line of cases that follow Smallwood's reasoning, are all cases where the judge erroneously took conclusive judicial notice of an element of the crime. In contrast, this case involves a stipulation between the parties, not judicial notice by the judge. In addition, unlike those other Smallwood cases, the judge's instruction on the stipulation was at the direct request of the defense attorney, who essentially invited the purported error now claimed on appeal.

We caution trial courts, however, that our decision should not be read as suggesting that there is never any need for inquiry when the defense attorney proposes a stipulation. We note that there are some jurisdictions that require a personal waiver from the defendant before accepting stipulations that essentially amount to a guilty plea. There are also jurisdictions that prohibit trial courts from accepting stipulations to which the defendant has expressly objected. We need not decide to what extent we would follow the approach of these jurisdictions because the record is clear that neither of those circumstances existed here.

Accordingly, we reject Marshall's claim that the trial court erred in accepting the defense-proposed stipulation without a personal jury trial waiver from Marshall, and we find no merit to his claim of structural error.

Whether it was plain error for the trial court not to affirmatively instruct the jury that Marshall couldn't be convicted if his failure to register was a result of mistake, inadvertence, or negligence

At trial, Marshall's jury was instructed on the elements of second-degree failure to register as a sex offender with a jury instruction modeled on the 2008 criminal pattern jury instruction for this offense. The trial judge therefore instructed the jury that, to convict Marshall of second-degree failure to register as a sex offender, the State had to prove four elements beyond a reasonable doubt: (1) that Marshall was a sex offender, (2) that Marshall knew that he was required to register as a sex offender, (3) that Marshall failed to file the annual written verification required of sex offenders, and (4) that Marshall did so knowingly. The jury was also separately instructed on the definition of knowingly.

Prior to closing arguments, Marshall's attorney requested that the jury also be instructed on the definition of "recklessly." The defense attorney explained that she wanted a jury instruction on this lesser culpable mental state so that she could refer to that instruction when arguing why there was a reasonable doubt as to whether Marshall "knowingly" failed to register as a sex offender.

The trial court refused this request because it believed that it would be confusing for the jury to be instructed on mental states that were not directly relevant to the elements of the charged offense. Later, during closing argument, Marshall's attorney began to read the statutory definition of "recklessly" to the jury. The prosecutor objected, and the trial court sustained the objection, noting that Marshall's attorney could make the argument that Marshall had not acted with the culpable mental state of "knowingly" without relying on the statutory definition of "recklessly." The defense attorney then resumed her argument, asserting that it was the State's burden to prove beyond a reasonable doubt that Marshall "knowingly did not register in June." The attorney also emphasized that "[t]o be able to prove somebody's state of mind, their awareness, their conscious neglect or disregard, intentionality, is a high burden." No further objections occurred.

On appeal, Marshall does not argue that the trial judge should have instructed the jury on the statutory definition of "recklessly" or that the trial judge erred when she sustained the prosecutor's objection. Instead, Marshall raises a new claim: Marshall argues that the trial judge erred by failing to supplement the pattern jury instructions with a clearer definition of the term "knowingly." According to Marshall, the defense attorney's request for the court to instruct the jury on "recklessly" should have alerted the court that it should instruct the jury that Marshall could not be convicted of knowingly failing to register as a sex offender if the jury found that his failure to register "was the result of mistake, inadvertence, or negligence."

To prevail on this claim of plain error, Marshall must show, inter alia , that it would have been obvious to any competent judge that this supplemental instruction was needed and that, without this instruction, there was a "high likelihood" that the jury followed an erroneous theory, resulting in a miscarriage of justice.

Marshall has not met this burden. The record shows that Marshall's jury was properly instructed on the State's burden to prove beyond a reasonable doubt that Marshall acted knowingly when he failed to register as a sex offender and was also properly instructed on the meaning of "knowingly." Although the trial judge would not let Marshall's attorney read the statutory definition of "recklessly" to the jurors, the judge explicitly told the defense attorney that she was free to argue - "[in] any way [she] want[ed] to" - that Marshall did not act "knowingly" when he failed to register. There is no indication from the record that Marshall's defense attorney was prevented from meaningfully arguing Marshall's defense to the jury; nor is there any indication that the jury was confused about what "knowingly" failing to register meant.

Accordingly, we find no merit to Marshall's claim that it was plain error to fail to provide the jury with this additional clarification of the required mental state.

Conclusion

The judgment of the superior court is AFFIRMED.

      AS 11.56.840.

      See Hinson v. State , 377 P.3d 981, 984 (Alaska App. 2016).

      See Jordan v. State , 420 P.3d 1143, 1148 (Alaska 2018) (defining structural errors as errors that defy harmless error analysis because they "affec[t] the framework within which the trial proceeds, and are not simply an error in the trial process itself") (internal citations omitted).

      Cf. Moffitt v. State , 207 P.3d 593, 600 (Alaska App. 2009).

      AS 11.56.840.

      Under AS 11.56.840(b), it is an affirmative defense to a prosecution for second-degree failure to register as a sex offender that
      (1) unforeseeable circumstances, outside the control of the person, prevented the person from registering ...; and
      (2) the person contacted the Department of Public Safety orally and in writing immediately upon being able to perform the requirements described in this section.

      See Hinson , 377 P.3d at 984 ("The duty to register as a sex offender arises only if a defendant has been convicted of a sex offense as defined in AS 12.63.100(6).").

      Ross v. State , 950 P.2d 587, 591 (Alaska App. 1997) (noting that a defendant's willingness to stipulate to an element of the offense "does not answer the question of who will be the trier of fact on this element of the crime"); see also Tallent v. State , 951 P.2d 857, 864 (Alaska App. 1997) ("[E]ven when a defendant stipulates to the existence of prior convictions, the issue remains with the jury.").

      Ross , 950 P.2d at 591-92.

      Hutton v. State , 350 P.3d 793, 799 (Alaska 2015).

      Id. at 794.

      Id. at 799.

      Smallwood v. State , 781 P.2d 1000, 1004 (Alaska App. 1989).

      Smallwood , 781 P.2d at 1004 (plain error for trial court to erroneously take judicial notice that defendant's daughter was not mentally culpable for the crime of theft, despite lack of objection by defense); see also Rae v. State , 884 P.2d 163, 167 (Alaska App. 1994) (trial court erred in taking conclusive judicial notice of one of the elements of DWLR, despite lack of objection by defense); Fielding v. State , 842 P.2d 614, 615 (Alaska App. 1992) (error for judge to take conclusive judicial notice of road qualifying as a highway over objection by defense).

      See Barrett v. State , 772 P.2d 559, 568 n. 10 (Alaska App. 1989) (noting that invited error "occurs when the court takes erroneous action at the express request of [a party], and then [that party] urges reversal on that basis on appeal"); see also Parson v. State, Dep't of Revenue, Alaska Hous. Fin. Corp. , 189 P.3d 1032, 1038 (Alaska 2008) ("When an error is invited, an appellate court examines the error to see if there is an 'exceptional situation'' where reversal is necessary to preserve the integrity of the judicial process or to prevent a miscarriage of justice.").

      See, e.g. , Bonilla-Romero v. United States , 933 F.2d 86, 88-89 (1st Cir. 1991) ; Commonwealth v. Brown , 55 Mass.App.Ct. 440, 771 N.E.2d 214, 220-21 (2002) ; see also United States v. Strother , 578 F.2d 397, 404-05 (D.C. Cir. 1978) (holding that where stipulation and waiver of jury trial is tantamount to a guilty plea, trial courts should arguably "take heed of at least some of the advices enumerated in Rule 11(c)").

      See, e.g. , United States v. Williams , 632 F.3d 129, 133 (4th Cir. 2011) (reversing conviction where stipulation was given over the defendant's express objection); State v. Humphries , 181 Wash.2d 708, 336 P.3d 1121, 1124-25 (2014) ("[A]lthough the decision to stipulate an element of the crime does not generally require a colloquy on the record with the defendant, such a decision may not be made over the defendant's known and express objection."); see also United States v. Ferreboeuf , 632 F.2d 832, 836 (9th Cir. 1980) ("[W]e hold that when a stipulation to a crucial fact is entered into the record in open court in the presence of the defendant, and is agreed to by defendant's acknowledged counsel, the trial court may reasonably assume that the defendant is aware of the content of the stipulation and agrees to it through his or her attorney.").

      See Alaska Criminal Pattern Jury Instruction 11.56.840(a)(1) (amended 2008). We note that AS 11.56.840 was amended in 2010 and Marshall's alleged failure to register occurred in 2013, after those legislative amendments went into effect. See SLA 2010, ch. 18, §§ 3, 20; see also SLA 2010 ch. 19, § 2. However, neither party addresses the 2010 change in the law in their briefing in this case, and both parties appear to accept the 2008 criminal pattern jury instruction as a correct articulation of the culpable mental state required for the criminal offense of failure to register as a sex offender. Because neither party addresses the 2010 legislative amendments to the statute, we do not address them here and we express no opinion as to the effect and constitutionality of those legislative changes.

      See Alaska Criminal Pattern Jury Instruction 11.81.900(a)(2) ("A person acts 'knowingly' with respect to conduct or to a circumstance described by a provision of law defining an offense when the person is aware that the conduct is of that nature or that the circumstance exists. When knowledge of the existence of a particular fact is an element of the offense, that knowledge is established if a person is aware of a substantial probability of its existence, unless the person actually believes it does not exist.").

      Cf. Moffitt v. State , 207 P.3d 593, 603 (Alaska App. 2009) (defining "knowingly" in the context of the former failure to appear statute). Following our decision in Moffitt , the Alaska legislature amended the failure to appear statute to eliminate the "knowingly" mens rea requirement and to substitute a criminal negligence standard in its stead. See SLA 2010, ch. 19, §§ 2, 30. The current failure to appear statute still requires the State to prove that the defendant was aware of his or her duty to appear. See AS 11.56.730.

      Patterson v. Cox , 323 P.3d 1118, 1120-21 (Alaska 2014) (quoting Khan v. State , 278 P.3d 893, 896 (Alaska 2012) ).


author: Judge ALLARD, writing for the Court. Judge MANNHEIMER, dissenting. Judge MANNHEIMER, dissenting.

text:
    Jennifer ANDERSON, Petitioner, v. STATE of Alaska, Respondent.
    Court of Appeals No. A-12600
    Court of Appeals of Alaska.
    December 14, 2018
   Judge ALLARD, writing for the Court.

Jennifer Anderson is the wife of Jeremy Anderson, a former high school teacher. Jeremy Anderson currently stands indicted on multiple counts of first- and second-degree sexual abuse of a minor, based on allegations that he had sexual intercourse with one of his students, fifteen-year-old K.H., over the span of four months.

Mrs. Anderson has asserted her spousal immunity privilege not to testify against her husband at his trial. In the proceedings below, the superior court rejected Mrs. Anderson's claim of privilege, concluding that the sexual abuse prosecution against Mr. Anderson fell within one of the codified exceptions to the marital privileges - specifically, the exception codified in Alaska Evidence Rule 505(a)(2)(D)(v) for cases in which one of the spouses is charged with "a crime involving domestic violence as defined in AS 18.66.990."

Mrs. Anderson petitioned this Court to review the superior court's ruling and we accepted the petition as an original application for relief under Alaska Appellate Rule 404. For the reasons explained here, we conclude that the superior court did not err when it rejected Mrs. Anderson's marital privilege claim in this case.

Background facts

On May 8, 2014, fifteen-year-old K.H. reported to one of her high school teachers that she had been sexually involved with her music teacher, thirty-six-year-old Jeremy Anderson, since February of that year. The troopers were contacted, and an investigation ensued. Based on the results of that investigation, Anderson was indicted on fourteen counts of first-degree sexual abuse of a minor and two counts of second-degree sexual abuse of a minor.

At the grand jury hearing, K.H. testified regarding the nature and frequency of her sexual encounters with Anderson. K.H. stated that Anderson had started acting flirtatious towards her in December 2013. Anderson's "flirtation" continued, and the pair had sex for the first time in February 2014. K.H. testified that they had sexual intercourse around twenty to thirty times between February 2014 and early May 2014. The sex occurred on school grounds, generally in the choir room closet or the band room closet. Even though K.H. was below the age of sexual consent under Alaska law, she testified that she personally viewed the sex acts as "consensual." She testified that the last time she and Anderson had sex, she told him she did not want to because she felt guilty, but Anderson pressured her to have sex with him despite her initial unwillingness.

During the pretrial proceedings in Jeremy Anderson's case, it became clear that the State intended to introduce various statements that Anderson made to his wife during the course of the investigation.

On the same day that school officials contacted the state troopers, the troopers received a call informing them that a man - later determined to be Jeremy Anderson - was trying to kill himself. The troopers began searching for Mr. Anderson, and ultimately arrested him in his truck. Prior to Anderson's arrest, one of the troopers overheard a cell phone conversation between Anderson and his wife Jennifer. The trooper was able to overhear both sides of the conversation.

During that conversation, Anderson made general admissions of wrongdoing.

After arresting Anderson, the troopers discovered a letter addressed to his wife and children in the car. In this letter, Anderson admitted, again in general terms, that he had done wrong, and he apologized to his wife for his actions. Later, a trooper spoke with Jennifer Anderson about this letter. Mrs. Anderson told the trooper that, aside from this letter, her husband admitted to her that he had engaged in an inappropriate relationship with one of his students - a student named "K."

In the pretrial proceedings, the State indicated that it intended to call Mrs. Anderson as a witness to testify to her husband's admissions of wrongdoing. The State also indicated that it intended to introduce Mr. Anderson's suicide letter into evidence.

In response, Mr. Anderson asserted his marital communications privilege under Alaska Evidence Rule 505(b) to exclude evidence of any confidential communications between himself and his wife. In later proceedings before the trial court, Mrs. Anderson also asserted her spousal immunity privilege under Rule 505(a), and she separately asserted her own marital communications privilege under Rule 505(b).

The two forms of marital privilege recognized under Alaska law

Alaska law recognizes two marital privileges: the spousal immunity privilege codified in Evidence Rule 505(a), and the marital communications privilege codified in Evidence Rule 505(b).

Evidence Rule 505(a) provides that "a husband shall not be examined for or against his wife, without his consent, nor a wife for or against her husband, without her consent." This privilege belongs solely to the witness-spouse, and it can only be invoked during the life of the marriage. Although originally premised on an outmoded jurisprudential theory that a wife has no legal existence separate from her husband, the more modern understanding of the privilege is that it exists to "promote family peace and harmony" that would otherwise be destroyed by adverse spousal testimony.

Evidence Rule 505(b) provides that a spouse shall "[not] be examined as to any confidential communications made by one spouse to the other during the marriage, without the consent of the other spouse." This privilege may be claimed by either spouse, and it continues to apply even after the marriage has ended (provided that the confidential communications occurred during the marriage). Unlike the spousal immunity privilege, which is concerned with protecting the peace and harmony of a particular marriage, the confidential marital communications privilege is concerned with protecting the sanctity of marriage in general by safeguarding the freedom of spouses to "communicate their deepest feelings to each other without fear of eventual exposure in a court of law."

Both the spousal immunity privilege and the marital communications privilege have been criticized by legal commentators, and both privileges are subject to multiple statutory exceptions under Alaska law. The privileges are purely statutory in nature and neither privilege is absolute. Moreover, because both marital privileges operate to impede the normal truth-seeking function of court proceedings, they must be "strictly construed" by the courts and accepted "only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth."

The statutory exceptions to the marital privileges in criminal cases

The Alaska legislature has enacted multiple statutory exceptions to Alaska Evidence Rule 505. Many of these exceptions are specific to criminal proceedings. Evidence Rule 505(a)(2)(D) and Evidence Rule 505(b)(2)(A) prohibit application of either privilege in a criminal proceeding in which one spouse is charged with:

(i) A crime against the person or the property of the other spouse or of a child of either ...
(ii) Bigamy, incest, adultery, pimping, or prostitution;
(iii) A crime related to abandonment of a child or nonsupport of a spouse or child;
(iv) A crime prior to the marriage; [or]
(v) A crime involving domestic violence as defined in AS 18.66.990.

These exceptions represent situations in which the legislature has directly determined that society's interest in promoting "family peace and harmony" must give way to society's larger interest in prosecuting certain crimes. Most jurisdictions have codified similar exceptions to their marital privileges. Indeed, virtually every jurisdiction recognizes an exception for crimes committed against a spouse or against the children of either spouse.

Some jurisdictions have also expanded this exception to include an "any child" exception - which means that spouses are precluded from asserting their marital privileges in a prosecution involving sexual abuse of any child, regardless of whether the child is related to either spouse. These jurisdictions have expressly decided that "[s]ociety's interest in convicting and punishing one who commits child abuse is the same" regardless of whether there is a familial relationship to the child. Alaska does not have an "any child" exception to its marital privileges.

The superior court's rulings regarding the marital privileges in this case

The superior court made two different rulings on the Andersons' assertions of marital privilege in this case.

First, the superior court ruled that the suicide letter could be introduced because it did not qualify as a "confidential" marital communication. The court noted that the letter included a section addressed to Mrs. Anderson, but it also included sections addressed to "my kids" and "my family." The court also noted that the letter was left in plain view. Based on these circumstances, the court concluded that Mr. Anderson did not have a reasonable expectation that the suicide note would only be read by his wife, and the letter therefore did not qualify as a confidential marital communication.

Second, the superior court ruled that the "domestic violence" exception applied to this criminal prosecution because the sexual abuse qualified as a "crime of domestic violence" as that term is defined in AS 18.66.990. Alaska Statute 18.66.990(3) defines a crime of domestic violence as including any crime against a person under 11.41 (sexual abuse of a minor qualifies as a crime against a person) if the crime is committed by one "household member" against another "household member." Alaska Statute 18.66.990(5) defines "household member" to include "adults or minors who are dating or who have dated," as well as "adults or minors who are engaged in or who have engaged in a sexual relationship."

Based on K.H.'s grand jury testimony, the superior court ruled that Anderson and K.H. qualified as "household members" under AS 18.66.990(5)(C) and (D) because they had been engaged in a "sexual relationship" and had been "dating" for several months. The court therefore concluded that Mr. Anderson's alleged sexual abuse of his teenage student constituted "crimes of domestic violence" for purposes of precluding the use of either marital privilege at Mr. Anderson's criminal trial.

Mrs. Anderson's petition for review to this Court

The superior court's rulings ultimately applied to both Mr. and Mrs. Anderson. But the rulings initially applied only to Mr. Anderson, because he was at first the only spouse asserting a marital privilege. After the superior court rejected Mr. Anderson's confidential marital communications claim of privilege, Mr. Anderson filed a petition for review in this Court, seeking pretrial interlocutory review of the superior court's ruling. This Court declined to exercise our power of discretionary review because the case was pending trial and because Mr. Anderson had adequately preserved the issue for any future appeal should this ruling materially affect the resolution of his criminal case. In denying Mr. Anderson's petition, we expressed no opinion on the merits of the superior court's ruling.

Following our denial of Mr. Anderson's petition for review, Jennifer Anderson filed her own motion in the superior court, asserting her spousal immunity privilege (i.e. , her privilege not to be called as a witness in her husband's case) and her marital communications privilege. The superior court rejected Mrs. Anderson's claims of privilege - again ruling that the domestic violence exception applied.

Mrs. Anderson petitioned this Court to review the superior court's rejection of her spousal immunity privilege. Because we recognized that Mrs. Anderson's rights as a witness-spouse could be adversely affected if we denied interlocutory review of her claim, we granted Mrs. Anderson's petition as an original application for relief under Alaska Appellate Rule 404.

Why we affirm the superior court's ruling that the spousal immunity privilege does not apply to this criminal prosecution

Whether the domestic violence exception applies under the particular facts of this case is a question of law that we review de novo.

The domestic violence exception to the marital privileges was enacted by the Alaska legislature in 1996 as part of a comprehensive revision of Alaska's domestic violence laws. The intended purpose of this 1996 legislation was to provide greater protections to victims of domestic violence and to focus more state resources on domestic violence prevention. To this end, the legislation broadened the definition of "domestic violence" and expanded the categories of persons who would qualify for protection as a victim of domestic violence. Included in these legislative changes was the adoption of the Model Code on Domestic and Family Violence's definition of "household member."

Under the Model Code, the term "household member" includes:

(a) Adults or minors who are current or former spouses;
(b) Adults or minors who live together or who have lived together;
(c) Adults or minors who are dating or who have dated;
(d) Adults or minors who are engaged in or who have engaged in a sexual relationship;
(e) Adults or minors who are related by blood or adoption;
(f) Adults or minors who are related or formerly related by marriage;
(g) Persons who have a child in common; and
(h) Minor children of a person in a relationship that is described in paragraphs (a) through (g).

This definition, with a few minor revisions, is now codified in AS 18.66.990(5).

Alaska's domestic violence exception to the marital privileges is also derived from the Model Code on Domestic and Family Violence. Section 215 of the Model Code provides, in pertinent part:

Sec. 215. Spousal privileges inapplicable in criminal proceedings involving domestic or family violence.
The following evidentiary privileges do not apply in any criminal proceeding in which a spouse or other family or household member is the victim of an alleged crime involving domestic or family violence perpetrated by the other spouse:
1. The privilege of confidential communication between spouses.
2. The testimonial privilege of spouses.

This exception was therefore intended to apply broadly to crimes outside the traditional intrafamilial domestic violence situation.

The question presented by this case is whether this exception applies to the case at hand, which involves alleged sexual abuse of a minor by a person in a position of authority over the minor. Mrs. Anderson contends that the domestic violence exception should be limited to the "everyday meaning" of domestic violence which she defines as "[f]amily or household members [who] have a connection rooted in blood, marriage, family standing, or a chosen romantic relationship."

As a general matter, we agree with Mrs. Anderson that the hallmark of a crime of domestic violence is that it is a crime that is committed within the context of a pre-existing relationship. As we explained in Bates v. State :

the purpose of domestic violence legislation is to protect victims from harm caused by ... persons whose intimate ... relationship to the victim increases the danger of harm, either because the parties live in physical proximity or because the relationship is one whose intimacy may disable the victim from seeking protection.

We disagree, however, with Mrs. Anderson's contention that her husband and K.H. were not engaged in such an intimate relationship.

In Bates , we concluded that the term "dating" was properly understood as a requirement that the parties be involved in a "dating relationship " - a term which connotes "an ongoing series of social engagements, usually characterized by the parties' interest, or at least their potential interest, in pursuing a romantic relationship." We applied a similar durational requirement to the term "sexual relationship." In Leu v. State , for example, we held that the defendant's ongoing friendship with another man that included occasional sexual intimacy qualified as a "sexual relationship" under AS 18.66.990 because "[t]his is not the type of non-consensual or short-lived sexual involvement that falls outside the ordinary person's understanding of a 'sexual relationship.' " Likewise, in Richart v. State , we expressed significant doubt that a "single prior act of forced sexual contact" could qualify as a "sexual relationship" for purposes of AS 18.66.990.

Here, we are not dealing with a single prior act of forced sexual contact. Instead, K.H.'s grand jury testimony makes clear that, from K.H.'s perspective at least, she was engaged in a sexual or dating relationship with Anderson - a relationship that spanned many months and involved multiple intimate encounters, not all of which were sexual in nature.

Mrs. Anderson and the dissent both contend that this relationship cannot be acknowledged as a "relationship" for purposes of AS 18.66.990(5)(C)-(D) because K.H. could not lawfully be in a sexual relationship with Anderson given their respective ages. We agree with Mrs. Anderson and the dissent that K.H.'s purported "consent" to the sexual acts does not alter the criminal nature of Mr. Anderson's conduct. Sexual activity between an adult and a person under the legal age of consent is a crime, regardless of whether the minor victim subjectively perceives him or herself to be a "consenting" partner to the sexual abuse. As we previously explained in State v. Jackson , "[i]t is precisely because the law deems children to be incapable of rendering meaningful consent in such situations that [statutory rape] has been defined to make consent irrelevant."

We disagree, however, with Mrs. Anderson and the dissent that this means K.H. should be denied the legal protections that would otherwise be granted to her in these circumstances. The underlying legislative intent of the 1996 legislation was to broaden the definition of domestic violence so as to ensure legal protections to all persons who were rendered particularly vulnerable by virtue of their intimate relationship with their abuser. In keeping with this intent, the legislature defined "household member" to include adults and minors "who are engaged in or who have engaged in a sexual relationship" - thereby recognizing that such a relationship between an adult and a minor can exist for purposes of extending legal protections to those minors.

In the dissent, Chief Judge Mannheimer criticizes the Court for extending legal protections to K.H. under reasoning that would not apply to all minors who have suffered sexual abuse. We agree that this case would be much easier to resolve if Alaska law included an "any child" exception to its marital privileges, as many other jurisdictions have done. But we do not have the authority to create such a broad exception where none currently exists. That is for the legislature to decide.

We are guided in our analysis, however, by the larger principles of statutory interpretation, which require us to strictly construe the marital privilege at issue here and to interpret the statutory exception in accordance with the underlying legislative intent.

At its heart, the domestic violence exception represents a clear legislative determination that society's interest in preserving family peace and harmony must give way to the broader societal interest in protecting victims who are made particularly vulnerable by virtue of their familial, domestic, or intimate relationships with their offenders. Because K.H.'s grand jury testimony provides a factual basis for finding such an intimate relationship here, and because society's interest in preserving the peace and harmony of a marriage in which an adulterous affair with an underage student has occurred is commensurately that much weaker, we conclude that the superior court did not err when it rejected Mrs. Anderson's spousal immunity claim in this case.

Conclusion

The ruling of the superior court is AFFIRMED.

Judge MANNHEIMER, dissenting.

Judge MANNHEIMER, dissenting.

The petitioner in this case, Jennifer Anderson, is the wife of Jeremy Anderson. Mr. Anderson is a former high school teacher who stands indicted on multiple counts of sexual abuse of a minor. These charges are based on allegations that, over the span of several months, Mr. Anderson repeatedly had sexual intercourse and sexual contact with one of his students, fifteen-year-old K.H.

Under Alaska Evidence Rule 505(a)(1), a married person has a privilege not to be called as a witness when their spouse is charged with a crime. But there are several exceptions to this "spousal immunity" privilege. One of the exceptions is for cases where the spouse is charged with a "crime of domestic violence".

The main question in this appeal is whether the charges against Jeremy Anderson - charges of sexual abuse of a minor - constitute "crimes of domestic violence". For if these charges are "crimes of domestic violence", then Jennifer Anderson cannot validly claim the spousal immunity privilege, and the State can compel her to testify against her husband.

Anderson and K.H. are not related, nor are they members of the same domestic household. Rather, K.H. was Anderson's student.

Under these circumstances, and under the pertinent definitions contained in AS 18.66.990, the question of whether the charges against Jeremy Anderson constitute "crimes of domestic violence" ultimately turns on the answer to yet another question: Were Jeremy Anderson and his teenage student K.H. "engaged in a sexual relationship"?

If Anderson and K.H. were "engaged in a sexual relationship", then (by statute) they are deemed to be "household members", and Anderson's sexual abuse of K.H. would constitute a crime of domestic violence - meaning that Anderson's wife can be compelled to testify against him.

Normally, when an adult sexually abuses a child, it would seem strange (if not somewhat repugnant) to say that the child and their abuser were "engaged in a sexual relationship". Indeed, if K.H. were a significantly younger child, I trust that my colleagues would never uphold a finding that K.H. had a "sexual relationship" with an adult, no matter what K.H. said about her willingness to engage in the sexual activity.

But my colleagues conclude that, as a matter of law, there was a "sexual relationship" between Jeremy Anderson and K.H. in this case. They base their conclusion on K.H.'s grand jury testimony.

At grand jury, K.H. testified that, with one exception, she viewed all of her sexual activities with Anderson as "consensual". Based on K.H.'s testimony that she consented to have sex with Anderson, my colleagues conclude that K.H. and Anderson were "engaged in a sexual relationship". Thus, Anderson's alleged sexual abuse of K.H. constitutes "domestic violence" - and Jennifer Anderson can therefore be forced to testify against her husband.

But my colleagues also concede that, as a practical matter, their ruling means that sexual abuse cases will henceforth be divided into two categories.

The first category will be the typical cases where the child victim does not view the sexual abuse as "consensual". In those cases, the sexual abuse will not be a "crime of domestic violence". This means that the defendant's spouse can validly invoke their spousal immunity privilege, and the spouse cannot be compelled to testify.

The second category will be the cases where the child victim declares that they consented to the acts of sexual abuse. In those cases, the sexual abuse will be a "crime of domestic violence". Because of this, the spousal immunity privilege will not apply, and the defendant's spouse can be compelled to testify.

In other words, under the rule adopted by my colleagues, when a defendant is charged with sexually abusing a child who is unrelated to the defendant or their spouse, and who is not otherwise a member of the defendant's domestic unit, the question of whether the defendant's spouse can be compelled to testify hinges on the victim's attitude toward the sexual abuse.

If the victim says that they wanted to participate in the acts of sexual abuse, then the defendant's spouse can be compelled to testify. But if the victim says that they did not want to participate in the acts of sexual abuse, then the defendant's spouse cannot be compelled to testify.

My colleagues justify this strange rule by asserting that they are simply interpreting AS 18.66.990 and Evidence Rule 505 to advance the legislative purpose of making it easier to prosecute cases of sexual abuse. They acknowledge that, under their rule, spouses cannot be compelled to testify in cases where an adult is accused of sexually abusing an unwilling child, or where an adult is accused of abusing a child so young that the child cannot articulate willingness or unwillingness to engage in sexual activity. Nevertheless, my colleagues conclude that it is better to achieve at least a portion of the legislature's goal.

Thus, in the interest of partially achieving this goal, my colleagues are willing to declare that when a child says that they wanted to have sex with an adult (and to have sex with this adult on more than one occasion), the child and the adult have formed a "sexual relationship".

This reasoning is inconsistent with the doctrine that minors cannot meaningfully consent to engage in sexual conduct with adults. It implicitly rests on the notion that some children have the intellectual and emotional maturity to make a meaningful decision about such matters.

Even conceding this notion (which I do not), my colleagues do not remand this case to the superior court so that the trial judge can evaluate K.H.'s intellectual and emotional capacity to meaningfully consent to have sex with her teacher, or so that the judge can investigate whether there might have been coercive aspects to the situation that would raise questions as to whether the child was truly "consenting" to the sexual activity with her teacher. Instead, my colleagues base their decision in this case on an uncritical acceptance of the child's grand jury testimony.

Moreover, the distinction that my colleagues have drawn bears no rational relation to the policies behind the marital privileges, nor to the policies underlying the exceptions to the marital privileges.

I therefore dissent.

What follows is a more detailed examination of the law pertaining to this case, and a fuller explanation of why I believe that my colleagues have reached the wrong decision.

The pertinent statutes and rules

Alaska Evidence Rule 505(a)(1) gives married people the right to refuse to testify against their spouse (or to testify in favor of their spouse, for that matter). And Alaska Evidence Rule 505(b)(1) gives spouses and former spouses the right to block testimony about confidential communications that occurred between the spouses during their marriage. But these evidentiary privileges have many exceptions. One of the exceptions is for cases where a spouse is charged with a "crime involving domestic violence" as defined in AS 18.66.990.

Sexual relations between a teacher and a minor student might not constitute "domestic violence" within the everyday meaning of this phrase. But AS 18.66.990 contains a special, expansive definition of "domestic violence".

Under AS 18.66.990(3), any "crime against the person" - i.e ., any crime defined in Title 11, chapter 41 of the Alaska Statutes - qualifies as a crime of "domestic violence" if the crime was committed by one "household member" against another "household member".

Sexual abuse of a minor is one of the "crimes against the person" codified in AS 11.41. And AS 18.66.990(5) defines "household member" in a special, expansive way. Under subsection (D) of this statute, the term "household member" not only includes people who share the same household, but also "adults or minors who ... have engaged in a sexual relationship".

Putting all of these statutory provisions together: Alaska law declares that if two people have "engaged in a sexual relationship", then they are "household members" even if they don't live in the same household. And because they are "household members", if one of them commits a crime against the other, and if this crime is one of the "crimes against the person" defined in AS 11.41, then the crime is a "crime involving domestic violence".

As I have already explained, when a person is charged with a "crime involving domestic violence", the spousal immunity privilege and the marital communications privilege do not apply. Thus, in cases of "domestic violence" - as that term is broadly defined in AS 18.66.990 - the defendant's spouse can be compelled to testify against the defendant.

Why I conclude that Jeremy Anderson and K.H. did not share a "sexual relationship"

Jennifer Anderson has asserted her spousal privilege not to testify against her husband, and the State is relying on the "domestic violence" exception to defeat this claim of privilege. But the State's invocation of the "domestic violence" exception is problematic for two reasons.

The first difficulty is that, of the several definitions of "household member" contained in AS 18.66.990(5), none of them seem to apply to Jeremy Anderson's case. Anderson is charged with sexually abusing a child who is not a member of the Anderson household, and who has no familial relationship with either Anderson or his wife. Rather, Anderson and K.H. had the relationship of teacher and student.

To resolve this difficulty, my colleagues rely on the definition of "household member" contained in subsection (D) of the statute. This provision declares that a defendant and a victim are "household members" if have "engaged in a sexual relationship". Based on K.H.'s grand jury testimony that she viewed her sexual activities with Anderson as "consensual", my colleagues conclude that Anderson and K.H. were engaged in a sexual relationship.

But the fact that two people have repeatedly engaged in sexual activity does not necessarily mean that they have shared a "sexual relationship".

Alaska has seen unfortunate instances where a man has held a woman captive and raped her repeatedly over a number of days. See, for instance, Morrell v. State , 575 P.2d 1200 (Alaska 1978). I am confident that, in such cases, my two colleagues would disavow any notion that the defendant and his victim were "engaged in a sexual relationship".

The principle is the same when an adult sexually abuses a child. Alaska's sexual abuse of a minor statutes are premised on the idea that children below a certain age cannot make meaningful decisions about engaging in sexual activity with an adult.

I doubt that my colleagues would be willing to say that, when an adult repeatedly engages in sex with a pre-pubescent child, the adult and the child are sharing a "sexual relationship" - even in cases where the child says that they were willing to engage in the sexual activity to please the adult.

But my two colleagues have embraced the notion that when an adult sexually abuses an older child (a child who is below the age of consent, but who is physically mature), and if this older child asserts that they wanted to engage in this sexual activity, then the adult and the abused child have shared a "sexual relationship".

I disagree. K.H. was fifteen years old - below the age of consent - when she allegedly engaged in sex with Anderson. The reason for having an age of consent is that, even though children may be physically mature, and even though they think that they want to have sexual relations with an adult, the legislature has determined that children of that age do not have sufficient intellectual and emotional maturity to meaningfully consent to such sexual activity.

Thus, even though K.H. testified that she willingly engaged in sex with Anderson, they did not share a "sexual relationship" in the eyes of the law. As a legal matter, their sexual activities were no more "consensual" than if K.H. had been a prepubescent child.

There is yet another problem with my colleagues' analysis of this issue. Even if we assume that some children have the intellectual and emotional maturity to make a meaningful decision about engaging in sexual activity with adults, my colleagues make no effort to discover if K.H. is one of those children.

My colleagues do not remand this case to the superior court so that the trial judge can evaluate whether K.H. possesses the intellectual and emotional capacity to meaningfully consent to have sex with her teacher. Nor do my colleagues ask the trial judge to investigate whether there might have been coercive aspects to the situation that would cause someone to question whether K.H. was truly "consenting" to the sexual activity, despite what she told the grand jury. Instead, like the trial judge in this case, my colleagues simply accept the child's grand jury testimony uncritically.

I do not.

Why I conclude that Jeremy Anderson's alleged sexual abuse of K.H. does not constitute a "crime of domestic violence"

There is a separate legal difficulty with my colleagues' conclusion that the "domestic violence" exception applies to Anderson's case: that conclusion is inconsistent with the legislature's reasons for punishing a crime more severely when it is committed in the context of a domestic relationship.

The phrase "crime involving domestic violence" must be interpreted within the context of the social harm that the legislature was trying to address. Crimes of "domestic violence" share a common characteristic: they are offenses committed by one person against another within the context of a pre-existing relationship .

A crime is deemed a "crime involving domestic violence" when it is committed in the context of a pre-existing romantic or familial relationship between the defendant and the victim - a pre-existing relationship that provided the motivation for the crime, or that made the victim more vulnerable (either physically or emotionally), or that otherwise significantly contributed to the commission of the crime. As this Court noted in Bates v. State , the "hallmark" of domestic violence is criminal conduct whose purpose is to "coerce, control, punish, intimidate, or exact vengeance within the context of an intimate relationship."

The charges against Anderson do not fit this mold. The State does not allege that Anderson became sexually involved with K.H. and then committed a crime against her. Instead, the State alleges that Anderson's sexual activity with K.H. was simultaneously the conduct that formed the "relationship" and the conduct that constituted the crime itself.

As the parties to this case acknowledge, there is little legislative history explaining the purpose of the "domestic violence" exception to the marital privileges. But there is no indication that the legislature intended the "domestic violence" exception to be interpreted in this circular manner.

Conclusion

Although Jeremy Anderson is charged with a serious felony against a minor, his offense does not constitute a "crime involving domestic violence" for purposes of Evidence Rule 505. I therefore conclude that the superior court should have honored Jennifer Anderson's assertion of the spousal immunity privilege. Under Alaska law, Jennifer Anderson has a right to refuse to testify against her husband.

      See Alaska Evid. R. 505(a).

      See also Alaska Evid. R. 505(b)(2)(A) (applying this same exception to an assertion of the confidential marital communications privilege under Evidence Rule 505(b) ).

      See AS 11.41.434(a)(3)(B) ; AS 11.41.436(a)(5)(B).

      K.H. also testified that Anderson drove her to a church youth group one time and they kissed in the car, but no direct sexual activity occurred.

      It is unclear from the current record whether this was done with Mrs. Anderson's knowledge and permission.

      See Arredondo v. State , 411 P.3d 640, 644 (Alaska App. 2018) ; Alaska Evid. R. 505(a)(1) cmt. ("If the marriage is a sham or has been terminated by divorce, annulment, or death, there is no privilege.").

      See Daniels v. State , 681 P.2d 341, 345 (Alaska App. 1984) ; see also Trammel v. United States , 445 U.S. 40, 44, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980) (noting that the testimonial privilege derives from two (now outmoded) jurisprudential theses: (1) "the rule that an accused was not permitted to testify in his own behalf because of his interest in the proceeding," and (2) "the concept that husband and wife were one, and that since the woman had no recognized separate legal existence, the husband was that one").

      Alaska Evid. R. 505(b)(1) ; see also Salazar v. State , 559 P.2d 66, 78 (Alaska 1976) (noting that the confidential marital communications privilege "is meant to protect those communications arising between the partners of a marital relationship that are confidential and not as a privilege for all communications").

      Alaska Evid. R. 505(b)(1) ("Neither during the marriage nor afterwards shall either spouse be examined as to any confidential communications made by one spouse to the other during the marriage, without the consent of the other spouse."); Alaska Evid. R. 505(b)(1) cmt. ("both spouses are the holders of the privilege and either spouse may claim it").

      United States v. Byrd , 750 F.2d 585, 590 (7th Cir. 1984).

      See, e.g. , Alaska Evid. R. 505(a)(2) & (b)(2) ; AS 47.17.060 (declaring marital privileges inapplicable in all child in need of aid proceedings); see also Kenneth S. Broun et al., McCormick on Evidence § 86, at 383 (6th ed. 2006) (criticizing the probable benefits of the marital communications privilege in actually encouraging marital confidences and wedded harmony as marginal); 8 John Henry Wigmore, Evidence in Trials at Common Law , § 2228, at 221 (McNaughton rev. 1961) (criticizing the spousal immunity privilege as "the merest anachronism in legal theory and an indefensible obstruction to truth in practice").

      See Osborne v. State , 623 P.2d 784, 787 (Alaska 1981) (approving relaxation of former spousal immunity privilege in the interests of justice under Criminal Rule 53 ); Loesche v. State , 620 P.2d 646, 649 (Alaska 1980) ; see also Daniels , 681 P.2d at 345 (noting that courts have expressed a "general policy to construe the marital privilege narrowly, particularly in cases involving child abuse").

      Daniels , 681 P.2d at 344 (quoting Trammel , 445 U.S. at 50, 100 S.Ct. 906 ); see also Osborne , 623 P.2d at 787 ("Compulsory testimony is the basic norm of our legal system. Correspondingly, testimonial privileges, other than those resting upon a constitutional basis, should be given a fairly narrow scope.").

      See, e.g. , Ariz. Rev. Stat. Ann. § 13-4062 ; Cal. Evid. Code §§ 972, 980 ; D.C. Code §§ 14-306, 22-3024 ; Fla. Stat. § 90.504 ; Idaho Code Ann. § 9-203(1) ; Mass. Gen. Laws ch. 233, § 20 ; Mich. Comp. Laws § 600.2162(3) ; Nev. Rev. Stat. § 49.295.

      See Pamela A. Haun, The Marital Privilege in the Twenty-First Century , 32 U. Mem. L. Rev. 137, 163-64, 173 (2001) (noting that "[e]ssentially every state has adopted an exception to the marital privilege in cases where the spouse has committed a crime against the other spouse" and "[n]early every state has similarly adopted an exception in cases where the spouse has committed a crime against a child of either spouse, though some states limit this exception to minor children"); see also Me. R. Evid. 504(d)(1)(C) (expanding exception to include "any person residing in either spouse's household").

      See, e.g. , D.C. Code § 22-3024 ; Mass. Gen. Laws ch. 233, § 20 ; Mich. Comp. Laws § 600.2162(3) ; Miss. R. Evid. 504(d)(2)(A) ; see also Naomi Harlin Goodno, Protecting"Any Child": The Use of the Confidential-Marital-Communications Privilege in Child-Molestation Cases , 59 U. Kan. L. Rev. 1, 28, 37, n. 110 (2010) (listing states with "any child" exception and noting that some states distinguish child sexual abuse cases from other child abuse cases, while others apply the any child exception to all abuse cases).

      Villalta v. Com. , 428 Mass. 429, 702 N.E.2d 1148, 1152 (1998) ; see also United States v. Martinez , 44 F.Supp.2d 835, 837 (W.D. Tex. 1999) ("[I]n a case where one spouse is accused of abusing minor children, society's interest in the administration of justice far outweighs its interest in protecting whatever harmony or trust may at that point still remain in the marital relationship.").

      Cf. United States v. Strobehn , 421 F.3d 1017, 1021 (9th Cir. 2005) (holding that a defendant's letter that expressly addressed third parties in addition to his wife was not a privileged marital communication); Ellis v. State , 570 So.2d 744 (Ala. App. 1990) (holding that a suicide note to a husband discovered by the police who responded to a wife's 911 emergency call did not qualify as a confidential marital communication).

      See AS 18.66.990(5)(C), (D).

      See Dep't of Pub. Safety v. Superior Court , 411 P.3d 648, 649 (Alaska App. 2018).

      See State v. Ketchikan Gateway Borough , 366 P.3d 86, 90 (Alaska 2016) (internal citations omitted).

      See SLA 1996, ch. 64 §§ 33, 70; see also Governor's Transmittal Letter for House Bill 314, 1996 House Journal 2546-47 (Jan. 26, 1996) (introduced as House Bill 454).

      See Sponsor Statement of Rep. Sean Parnell for H.B. 314, 19th Legis. (February 12, 1996).

      SLA 1996, ch. 64 § 33.

      See Model Code on Domestic and Family Violence § 215 (Nat'l Council of Juvenile and Family Court Judges 1994), available at http://www.ncjfcj.org/resource-library/publications/model-code-domestic-and-family-violence.

      Id. § 102.

      Id. § 215.

      Id. § 215. (Emphasis added.) We note that this provision was misquoted in the appellate briefing before this Court.

      See id. § 102 cmt. (acknowledging that "[t]he definition of family or household member is broad. Cohabitation is not a prerequisite for eligibility; and the relationship between the victim and the perpetrator need not be current.").

      This definition is taken from an out-of-state case with different statutory definitions. See Scott v. Shay , 928 A.2d 312, 314-16 (Penn. Super. Ct. 2007).

      Bates v. State , 258 P.3d 851, 862 (Alaska App. 2011) (citations omitted).

      Id. at 861 ; see also Cal. Fam. Code § 6210 and Cal. Penal Code § 243(f)(10) (defining "dating relationships" broadly as "frequent, intimate associations primarily characterized by the expectation of affection or sexual involvement independent of financial considerations").

      Leu v. State , 251 P.3d 363, 369 (Alaska App. 2011).

      Richart v. State , 2001 WL 1299120, at *3 (Alaska App. Oct. 24, 2001) (unpublished); see also Miller v. State , 312 P.3d 1112, 1116 (Alaska App. 2013) (noting that a single consensual sexual encounter does not amount to a "sexual relationship" under AS 18.66.990(5) ).

      See AS 11.41.434(a)(3)(B) ; AS 11.41.436(a)(5)(B). As a general matter, the age of consent in Alaska is 16 years old.

      State v. Jackson , 776 P.2d 320, 328 (Alaska App. 1989).

      Id.

      We note that those protections would include being able to apply for a domestic violence protective order should the relationship turn violent. See AS 18.66.100(a) ("A person who is or has been a victim of a crime involving domestic violence may file a petition in the district or superior court for a protective order against a household member.").

      AS 18.66.990(5)(D). We note that Mrs. Anderson argues that the "or" in this statutory subsection should be interpreted to mean that only adults in sexual relationships with other adults qualify as household members and only minors in sexual relationships with other minors qualify as household members. But such a reading would be contrary to the meaning of the other subsections, which are structured similarly and clearly intend "adults or minors" to also include adults and minors. See, e.g. , AS 18.66.990(5)(B) ("household member" includes "adults or minors who live together or have lived together"); AS 18.66.990(5)(E) ("household member" includes "adults or minors who are related to each other up to the fourth degree of consanguinity, whether of the whole or half blood or by adoption"); AS 18.66.990(5)(F) ("household member" includes "adults or minors who are related or formerly related by marriage").

      Griswold v. City of Homer , 925 P.2d 1015, 1019 (Alaska 1996) ; Concerned Citizens of South Kenai Peninsula v. Kenai Peninsula Borough , 527 P.2d 447, 452 (Alaska 1974).

      Cf. Goodno, supra note 16, at 22-23 (discussing the public policy reasons for adopting an "any child" exception to marital privileges and noting the particular need for such an exception in sexual abuse cases involving young children where the victims will often be developmentally unable to act as witnesses in court and the need for relevant testimony from a reluctant spouse may be that much greater).

      See Y.J. v. State , 130 P.3d 954, 959 (Alaska App. 2006) ; Daniels v. State , 681 P.2d 341, 344, 345 (Alaska App. 1984) ; see also Osborne v. State , 623 P.2d 784, 787 (Alaska 1981) ; Loesche v. State , 620 P.2d 646, 649 (Alaska 1980).

      See Alaska Evidence Rules 505(a)(2)(D)(v) and 505(b)(2)(A).

      See AS 18.66.990(3) and AS 18.66.990(5)(D).

      See Evidence Rule 505(a)(2)(D)(v) and Evidence Rule 505(b)(2)(A).

      See AS 11.41.434 through AS 11.41.440.

      See AS 18.66.990(5).

      Tofelogo v. State , 408 P.3d 1215, 1219-1220 (Alaska App. 2017).

      Bates v. State , 258 P.3d 851, 862 (Alaska App. 2011).


text:
    James Allen CHARLES Jr., Appellant, v. STATE of Alaska, Appellee.
    Court of Appeals No. A-12119
    Court of Appeals of Alaska.
    December 28, 2018
    Timothy Ayer (opening and reply brief) and Callie Patton Kim (supplemental brief and oral argument), Assistant Public Defenders, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
    Terisia K. Chleborad, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards and Jahna Lindemuth, Attorneys General, Juneau, for the Appellee.
    Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge.

      Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).

   Judge ALLARD.

James Allen Charles Jr. is a convicted sex offender. In November 2014, the superior court revoked Charles's probation based on Charles's failure to attend a polygraph appointment with his probation officer. The court imposed 9 months to serve for this violation. This was the State's second petition to revoke Charles's probation. The first petition to revoke Charles's probation (based on excessive use of alcohol) had been resolved less than a month before the second petition was filed.

On appeal, Charles argues that the superior court erred when it revoked his probation based on a single missed appointment. According to Charles, a defendant's probation can only be revoked for a "willful" violation of the terms of his probation. Charles contends that he did not knowingly or purposely miss his appointment and that the court therefore had no authority to revoke his probation.

For the reasons explained here, we conclude that the existence of "good cause" to revoke a defendant's probation as required by AS 12.55.110(a) does not necessarily depend on the willfulness of the violation. Instead, it depends on the nature of the probation condition, the applicable mental state for the violation, and the significance of the violation with regard to the defendant's amenability to continued probation supervision. In the current case, the superior court found that (1) Charles had notice of the polygraph appointment and his obligation to attend the appointment; (2) Charles failed to attend the polygraph appointment for reasons that were within his control; (3) the missed polygraph appointment and Charles's failure to keep track of this appointment were part of a larger pattern of Charles's noncompliance with and resistance to the rehabilitative aspects of probation; and (4) Charles's failure to commit to his responsibilities as a sex offender on probation and his failure to actively engage in the rehabilitative process made him dangerous to the community. These findings are well supported by the record and sufficient to constitute "good cause" to revoke Charles's probation in this case. Accordingly, we find no error in the court's decision to revoke Charles's probation.

Background facts and prior proceedings

In 1983, Charles was convicted of first-degree burglary and second-degree sexual assault, and sentenced to 6 years to serve. Charles's probation in that case was later revoked for selling cocaine to an undercover police agent, and he ultimately served the remainder of his sentence in prison.

In 1994, Charles was convicted of first-degree sexual assault, second-degree sexual assault, and second-degree sexual abuse of a minor for sexually assaulting a fourteen-year-old. As a second felony offender, Charles received a composite sentence of 25 years with 5 years suspended (20 years to serve) for these new crimes.

Prior to his release on mandatory parole, Charles's parole was anticipatorily revoked for failure to participate in and complete court-ordered sex offender treatment while in prison. Following his release, Charles's parole was revoked more than once based on his failure to comply with the terms of his mandatory parole. Charles finally completed his mandatory parole in March 2014, but his supervision on probation continued.

Charles continued to struggle with the obligations of his probation. Charles was frequently late to his appointments with his probation officer, and he would often arrive with incomplete forms or accounts of his daily activities that were not sufficiently detailed. Charles also tested positive for drug use.

In August 2014, the State filed its first petition to revoke Charles's probation, alleging excessive use of alcohol based on a police contact in which Charles was suspected of driving under the influence. As a result of this petition to revoke, Charles's probation conditions were modified to prohibit any use of alcohol.

A little more than a month later, on September 26, 2014, the State filed a second petition to revoke Charles's probation after Charles missed a scheduled polygraph examination. In this petition, the probation officer alleged that Charles posed a "high risk" for assaulting or abusing new victims.

At the adjudication hearing that followed, Charles acknowledged that he had received notice of the polygraph examination from his probation officer, who had notified him by phone and who had also written down the date and time of the appointment on a business card and given it to Charles.

According to Charles, he put the polygraph appointment card into his wallet along with an appointment card for his sex offender treatment, which was scheduled for four days after the polygraph appointment.

Sometime on September 24, the day before the polygraph appointment, Charles received a text from his employer telling him that he needed to work the following day. Charles testified that it did not occur to him that he was not available to work and it was only the next day, after he returned home from working, that he became concerned that he might have had an appointment. When Charles first looked in his wallet, he only saw the appointment card for the sex offender treatment (which was scheduled for four days later). But when Charles looked behind that appointment card and saw the polygraph appointment card, he realized that he had missed the polygraph appointment. Charles then called his probation officer and left a message explaining what happened. Charles also went into the probation office the following morning and met with his probation officer. He was given an appointment for the following Monday and was allowed to leave the office. However, later that same day, he was called back to the probation office and arrested. The probation officer later explained that the decision to petition for revocation was based on Charles's status as an untreated sex offender and his pattern of failing to take his probation obligations seriously. The probation officer also explained that rescheduling the polygraph appointment would not have been a simple matter, and that these appointments required significant coordination and were critical to the sex offender containment model used to supervise sex offenders on probation.

At the adjudication hearing, Charles's attorney argued that Charles's probation should not be revoked based on a single missed appointment. The attorney further argued that Charles had not "willfully" failed to attend his appointment; instead he had simply made "an honest mistake."

The superior court agreed with Charles's attorney that Charles had not missed his polygraph appointment on purpose. But the court noted that Charles had a legal obligation "to do what it takes to make sure [he was] not going to forget [the appointment]," and that he had failed to meet that obligation. The court emphasized that its decision would be different if Charles had missed the appointment due to circumstances that were outside his control.

At the disposition hearing that followed, the court heard argument about Charles's larger pattern of inattention to his probation obligations and the safety risks that Charles posed as an untreated sex offender. The court subsequently revoked Charles's probation and imposed 9 months of his remaining suspended sentence, concluding that Charles continued to be a dangerous offender with a high risk of reoffending and a very low chance of successfully completing his probation.

Why we uphold the superior court's revocation of Charles's probation

Charles argues that Alaska law prohibits a trial court from revoking a defendant's probation unless the court finds that the defendant "willfully" or knowingly violated the terms of his probation. Charles also asserts that due process prohibits a court from finding a violation of probation without proof of a culpable mental state.

The State contends that a defendant can be held strictly liable for any violation of probation that may occur, even if the violation resulted from circumstances outside the defendant's control, or otherwise occurred through no fault of the defendant. The State argues that a defendant's mental state is only relevant at the disposition stage-and that, even then, the State is not required to prove any particular mental state.

We disagree with both parties for the reasons we explained in a recent case, Pulusila v. State . In Pulusila , we rejected the State's contention "that a defendant's lack of culpability is completely irrelevant when a court decides whether the facts establish good cause to revoke the defendant's probation." Instead, we concluded that a defendant's mental state and a defendant's "blameworthiness" for the violation could be critical to the determination of whether the defendant's probation should be revoked, and to the determination of how much, if any, suspended time should be imposed.

As we explained in Pulusila , the ultimate question in any probation revocation proceeding is whether "good cause" exists to revoke the defendant's probation. To find good cause to revoke a defendant's probation, a trial judge must find that "continuation of probationary status would be at odds with the need to protect society and society's interest in the probationer's rehabilitation." Revocation should follow a violation of a condition of probation only when "that violation indicates that the corrective aims of probation cannot be achieved."

Our holding in Pulusila is in accord with the United States Supreme Court's opinion in Bearden v. Georgia . In Bearden , the United States Supreme Court held that a defendant's probation cannot be revoked solely based on the defendant's failure to pay a fine or restitution if the defendant made "sufficient bona fide efforts" to fulfill his financial obligations under the terms of his probation but was nevertheless unable to do so. As the Court explained, imprisonment in such a case would be contrary to the "fundamental fairness required by the Fourteenth Amendment" because it "would deprive the probationer of his conditional freedom simply because, through no fault of his own, he cannot pay the fine." The Court also noted, however, that if the probationer willfully refused to pay the fine or failed to make bona fide efforts to pay, revocation of the defendant's probation and imposition of suspended time could be justified.

In the current case, the superior court found that Charles had failed to take reasonable steps to keep track of his polygraph appointment. The court also found that Charles's failure to keep track of this appointment was part of a larger pattern of noncompliance with his probation obligations and a failure to fully engage in treatment. The court was also clear that it would not have found a violation if Charles's failure to attend his appointment had been due to circumstances outside his control-such as getting in a car accident or being at the hospital.

On appeal, Charles asserts that the court essentially found that he acted only with "criminal negligence" when he failed to attend the polygraph appointment. Charles then argues that a higher culpable mental state-recklessly or knowingly-is required before revocation of a defendant's probation can occur. In support of this claim, Charles cites Hamrick v. State, a 2003 case in which we reversed the defendant's probation revocation because we concluded that the State had failed to show a "willful violation" of Hamrick's probation.

But Hamrick is distinguishable from the present case. In Hamrick , we reversed the trial court's anticipatory revocation of Hamrick's probation because we concluded that the Department of Corrections had failed to provide sufficient notice to Hamrick that his actions would constitute a violation of his probation. As we explained in our decision, the problem in Hamrick arose primarily from the ambiguity of the probation condition. Hamrick's probation condition required him to "successfully complete an approved sexual offender treatment program as directed by the Department of Corrections." We concluded that "as directed by the Department of Corrections" meant that the department could potentially petition the court to revoke Hamrick's probation if he failed to file a timely second application for treatment (Hamrick's first application was lost), but only if the department had made it sufficiently clear to Hamrick that he was required to file the second application as part of his probation condition. Because the record showed that Hamrick had never been directly ordered to file the second application or to file the second application by a particular time, and that he had never been informed that filing the second application was part of his obligations under his probation condition, we reversed Hamrick's probation revocation.

Thus, the underlying issue in Hamrick was not whether Hamrick purposely or willfully delayed submitting his treatment application on time. Instead, the problem was the lack of proper notice to Hamrick that a delay in filing a second application would constitute a violation of the conditions of his probation.

There is no such lack of notice in Charles's case. Here, the probation condition and Charles's duties under the probation condition were both unambiguously communicated to Charles. As Charles himself concedes, he was aware that he was required to abide by any specific instructions of his probation officer, and he was also aware that his probation officer had instructed him to attend the polygraph appointment. Charles further concedes that he was given proper notice of the date of the polygraph appointment, and there was no confusion over his obligation to attend this appointment. Although the superior court found that Charles may not have consciously made a decision to miss that appointment, the superior court also found that Charles's failure to keep track of and attend the polygraph appointment was part of a larger pattern of noncompliance and failure to engage in the treatment-related obligations of his sex offender probation. Thus, the court could reasonably conclude that Charles's violation indicated that "the corrective aims of probation" could not be achieved without revocation of Charles's probation.

Conclusion

For the foregoing reasons, we AFFIRM the judgment of the superior court.

      Prior to these probation revocations, Charles's mandatory parole had been revoked multiple times.

      See Pulusila v. State , 425 P.3d 175, 180-82 (Alaska App. 2018).

      Charles v. State , 1997 WL 33832396, at *1-2 (Alaska App. Apr. 2, 1997) (unpublished).

      Pulusila v. State , 425 P.3d 175 (Alaska App. 2018).

      Id. at 181.

      Id. at 177, 179.

      See AS 12.55.110(a) ; Trumbly v. State , 515 P.2d 707, 709 (Alaska 1973) ; Pulusila , 425 P.3d at 179.

      Pulusila , 425 P.3d at 178-79 (quoting Trumbly , 515 P.2d at 709 ).

      Id. at 179 (quoting Trumbly , 515 P.2d at 709 ).

      Bearden v. Georgia , 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983).

      Id. at 660-61, 103 S.Ct. 2064.

      Id. at 672-73, 103 S.Ct. 2064.

      Id. at 672, 103 S.Ct. 2064.

      Hamrick v. State , 64 P.3d 175 (Alaska App. 2003).

      Id. at 178 ("[I]n order to find a willful violation, we believe that the department needed to establish that Hamrick was fully aware that his behavior was in violation of his conditions of probation and would result in his revocation.")

      Id. at 178.

      Id. at 176.

      Id. at 178-79 ("[I]n order to revoke Hamrick's probation for failing to file a timely application, we believe that the Department of Corrections had the duty to make Hamrick's duties clear to him and to make sure that Hamrick understood that his failure to comply would violate his probation.").

      Id.

      Pulusila v. State , 425 P.3d 175, 179 (Alaska App. 2018) (quoting Trumbly v. State , 515 P.2d 707, 709 (Alaska 1973) ).