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THE COURT OF APPEALS OF THE STATE OF ALASKA
MARSHALL MOSS, )
) Court of Appeals No. A-3839
Appellant, ) Trial Court No. 3KN-90-339DR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. )
______________________________) [No. 1237 - July 24, 1992]
Appeal from the District Court of the State
of Alaska, Third Judicial District, Kenai,
Charles K. Cranston and Jonathan Link,
Judges, and Lynn H. Christensen, Magistrate.
Appearances: V. Fate Putman, Assistant
Public Defender, Kenai, and John B. Salemi,
Public Defender, Anchorage, for Appellant.
Mary A. Gilson, Assistant Attorney General,
Anchorage, and Charles E. Cole, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
COATS, Judge.
Marshall Moss was convicted following a jury trial of
four counts of criminal contempt of court. AS 09.50.010(5);
AS 09.50.020. On appeal, he contends the court erred in
declining to dismiss his case for violation of his right to
speedy trial under Alaska Rule of Criminal Procedure 45. He also
asserts a violation of his right against self-incrimination and
contends he should have been tried by a twelve-person jury in
superior court. We affirm.
On February 23, 1990, the attorney general's office
filed a motion for order to show cause why Moss should not be
held in civil contempt for his failure to pay child support. See
Alaska Rule of Civil Procedure 90(b).1
At a hearing on the matter on June 15, 1990, the state
explained that on May 21, 1986, the court had ordered Moss to pay
child support payments of $375 per month, as well as $1,875 in
arrears. The state advised the court that it had obtained some
of the money from Moss by garnishing his wages, but that Moss had
made no voluntary payments. According to the state, Moss was now
$17,072 in arrears.
The court asked Moss whether he disputed the state's
allegations and Moss, who was not represented by counsel,
responded in the negative. Master for the Superior Court, Lynn
H. Christensen, then advised Moss that the burden was on him to
show why he should not be held in contempt and "perhaps face
incarceration for being in contempt." Moss responded that he was
"just not making the money." Moss was then sworn in; when asked
to give his occupation, he indicated that he was unemployed.
Moss did not testify further. Instead, the court advised him
that, because he faced possible incarceration, he was entitled to
an attorney and a jury trial. Moss responded that he could not
afford an attorney, whereupon the court explained how he could
apply for court-appointed counsel. The court then adjourned the
hearing after scheduling the matter for trial.
On August 14, 1990, Superior Court Judge Charles K.
Cranston issued the following order:
This court after a hearing before
the Honorable Lynn H. Christensen, Master for
the Superior Court, held on June [15], 1990,
has determined that criminal contempt
proceedings are in order. The court hereby
appoints Assistant Attorney General, Joseph
Cooper, as special prosecutor.
The Assistant Attorney General shall
prepare and file a charging document in this
court . . . .
On September 10, 1990, the state filed an information
charging Moss with seven counts of criminal contempt, AS
09.50.010(5); AS 09.50.020, and one count of criminal nonsupport,
AS 11.51.120(a). The state also filed a motion for order to show
cause, requesting the court to order Moss to appear and answer
the criminal charges.
At a hearing on November 2, 1990, Moss, now represented
by counsel, pled not guilty to the charges and requested a jury
trial. The parties also discussed Rule 45 at the hearing. The
state asserted that Rule 45 began running in October 1990 -- when
Moss was served with the criminal information -- but Moss'
attorney claimed Rule 45 began running in March 1990 -- when Moss
was served with the motion for order to show cause in the civil
case.
At a status conference on December 7, 1990, Moss moved
for dismissal based on Rule 45.
On December 12, 1990, Master Christensen issued a
master's report and order, finding that Rule 45 began to run on
October 26, 1990 -- the date the criminal information was served
upon Moss. The court also ruled that the matter would be tried
in district court because the offenses alleged in the information
were misdemeanors. Judge Cranston approved Master Christensen's
order on December 13, 1990.
Moss was convicted following a six-person jury trial on
December 20 and 21, 1990.
On appeal, Moss contends the court erred in ruling that
Rule 45 did not begin to run until the criminal information was
served on him. Moss claims that, because the conduct giving rise
to the criminal contempt proceeding was identical to the conduct
alleged in the civil contempt proceeding, Rule 45 should have
begun to run when he was served with the civil contempt charges.
In Moss' view, the civil contempt proceeding was tantamount to an
arraignment on the criminal charges. See Alaska Rule of Criminal
Procedure 45(c)(1) (120-day calculation begins running when
defendant is initially arraigned).
We reject Moss' argument. Civil and criminal contempt
proceedings are distinct and independent proceedings. The
principal purpose of civil contempt is to compel compliance; the
proceeding is remedial in nature in that it seeks to coerce the
defendant to comply with court orders, in this case, to pay money
in the future. The purpose of criminal contempt, on the other
hand, is primarily to punish an individual for past
noncompliance. Frequently, courts treat the failure to pay child
support as a civil contempt. However, the court may punish the
past willful failure to pay child support by criminal contempt.
Diggs v. Diggs, 663 P.2d 950, 951 (Alaska 1983); Johansen v.
State, 491 P.2d 759, 763-66 (Alaska 1971).
In the instant case, the state instituted a civil
action "to coerce the defendant into paying his child support
payments"; the state's motion indicated that it might request
that Moss be incarcerated until he met his financial obligation.
The criminal information that was subsequently filed, however,
addressed Moss' "willful" disobedience of the court's order in
September, October, November, and December of 1986 and February,
March, and May of 1988. Unlike the civil action, the criminal
action was intended to punish Moss for his past willful
noncompliance. Because of these differences in the nature of the
two proceedings, the court did not err in ruling that Rule 45
began to run on the date the criminal information was served.
Moss' appearance at the civil contempt proceeding resulted from a
valid court order issued in connection with a separate civil
matter for which there is no right to a speedy trial under Rule
45. See also G.D. v. State, 681 P.2d 366 (Alaska App. 1984)
(where defendant was summoned to child in need of aid hearing and
admitted he sexually assaulted his daughter, Rule 45 did not
begin to run until criminal information was served).2
Moss next contends the state should have been precluded
from filing criminal contempt charges because he was compelled to
give self-incriminating testimony concerning his financial
situation in the civil case and this information was then used to
form the basis of the criminal allegations. Relying on Diggs,
Moss further contends his conviction must be reversed because at
no time in the civil case did the court or the state advise him
that criminal sanctions were possible.
Moss did not raise this issue in the court below, has
not listed it in his points on appeal, and has not cited any
authority which would suggest that he was compelled to give
statements in violation of his right against self-incrimination
or that he was prejudiced in any way by the admission of these
statements. We conclude that Moss has not adequately preserved
this issue for appeal.
Moss' final contention on appeal is that, because the
case originated in a superior court divorce case, he should have
been tried in superior court by a twelve-person jury.
The superior court referred the criminal contempt
charges to the district court for trial. The offenses, punishable
by a maximum of six months in jail, were plainly misdemeanors.
See AS 09.50.020; AS 11.81.900(b)(32); Criminal Rule 56(e); State
v. Browder, 486 P.2d 925, 937 (Alaska 1971). Under AS
22.15.060(a)(1)(A), the district court has jurisdiction over all
misdemeanors "unless otherwise provided." The district court's
jurisdiction in misdemeanor cases is concurrent with that of the
superior court. AS 22.15.060(b). Moss has cited no authority
that purports to restrict the district court's jurisdiction over
criminal contempt cases arising from superior court proceedings,
and we are aware of no such restriction. See Rollins v.
Anchorage, 748 P.2d 767, 771 (Alaska App. 1988).
In addition, AS 22.15.150 provides that the jury in
district court shall consist of "a body of six persons in
number." Accordingly, Moss was not entitled to a twelve-person
jury in superior court.
The conviction is AFFIRMED.
_______________________________
1. Alaska Rule of Civil Procedure 90(b) reads:
(b) Other Contempts -- Proceedings --
Parties. For every contempt other than that
specified in subdivision (a) of this rule,
upon a proper showing on ex parte motion
supported by affidavits, the court shall
either order the accused party to show cause
at some reasonable time, to be therein
specified, why he should not be punished for
the alleged contempt, or shall issue a bench
warrant for the arrest of such party. Such
proceeding may be commenced and prosecuted
in the same action or in an independent
proceeding either by the state, or by the
aggrieved party whose right or remedy in an
action has been defeated or prejudiced or who
has suffered a loss or injury by the act
constituting a contempt.
2. Moss' argument on appeal concerning Rule 45 is
predicated on his initial premise that the 120-day speedy trial
period began running when he was served with the motion for order
to show cause in the civil case. Our determination that the
speedy trial period did not begin to run on that date is
therefore dispositive of his claim.
