NOTICE: This opinion is subject to formal
correction before publication in the Pacific
Reporter. Readers are requested to bring
typographical or other formal errors to the
attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
PATRICIA A. CORNWALL, )
) Court of Appeals No. A-5410
Appellant, ) Trial Court No. 4FA-93-1186 Cr
)
v. ) O P I N I O N
) as Revised on Rehearing
STATE OF ALASKA, )
)
Appellee. ) [No. 1460 - February 16, 1996]
______________________________)
Appeal from the Superior Court, Fourth Judi
cial District, Fairbanks, Niesje J.
Steinkruger, Judge.
Appearances: Marcia E. Holland, Assistant
Public Defender, Fairbanks, and John B.
Salemi, Public Defender, Anchorage, for
Appellant. James L. Hanley, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau,
for Appellee.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
MANNHEIMER, Judge.
Patricia A. Cornwall appeals her convictions for
interference with official proceedings, AS 11.56.510(a), and
first-degree custodial interference, AS 11.41.320(a). For the
reasons explained in this opinion, we reverse Cornwall's
conviction for custodial interference and we call for
supplemental briefing on the question of whether we should also
reverse Cornwall's conviction for interference with official
proceedings.
Underlying Facts
On April 5, 1993, the Division of Family and Youth
Services [DFYS] of the Alaska Department of Health and Social
Services received a report that Cornwall's thirteen-year-old
daughter, A.H., had been sexually abused by her stepfather, State
Trooper David Cornwall. On the morning of April 6th, Sonja Ward
(a DFYS social worker) and three state troopers (Sergeant McCann,
Investigator Hunyor, and Investigator Dahlke) went to the
Cornwall residence in Fairbanks to investigate the report.
Patricia Cornwall was home when Ward and the three
troopers arrived. Sergeant McCann explained to Cornwall that
they needed to interview A.H.. Cornwall became upset, fearing
that DFYS was going to remove A.H. from her home. Initially,
Cornwall ordered Ward and the troopers to leave her house, but
eventually Cornwall agreed to let the troopers interview A.H..
During this interview, A.H. revealed that David Cornwall had
sexually abused her for several years.
After the interview, Investigator Hunyor told Cornwall
what A.H. had said. Cornwall indicated that she already knew of
the abuse: apparently, the day before, David Cornwall had
admitted to her that he had sexually abused A.H.; she had ordered
him to leave the house.
After the interview with A.H., Ward decided to take
emergency custody of A.H. under AS 47.10.142(a)1, but she also
decided to let A.H. stay with Patricia Cornwall for the time
being. Ward told Cornwall that she was leaving A.H. with her on
the condition that she not allow David Cornwall back into the
home. Ward also explained that a court hearing would take place
within the next 48 hours, and that she would contact Cornwall
with the details. Later that same day, the authorities arrested
David Cornwall.
After Ward and the state troopers left, Patricia
Cornwall retained an attorney, Marc Grober, and met with him in
Nenana the following day (April 7th). At this meeting, Grober
told Cornwall that he believed the State had not lawfully taken
emergency custody of A.H. because Ward had not taken physical
custody of A.H. and had not served Cornwall with any court
documents. When Cornwall asked if she could take A.H. and leave
Fairbanks, Grober told her that she was free to do so.
The next day (April 8th), Cornwall took A.H. and her
other children and moved to Palmer. Cornwall remained in contact
with Grober, but she hid from the state authorities. Cornwall
told A.H. never to reveal the names of the people with whom they
were staying because these people would get in trouble for hiding
them. Cousins of David Cornwall from Michigan, the Trowbridges,
sent Cornwall support money while she was in hiding.
During their stay in Palmer, A.H. overheard Cornwall
talking to a friend about a "120-day rule". From this
conversation, A.H. gathered that if she was not back in Fairbanks
in 120 days, the criminal case against David Cornwall would be
dismissed.
In July, Cornwall left Alaska with A.H. and her other
children. Traveling under assumed names, they moved to Michigan,
where they lived on a farm owned by the Trowbridges. While
living there, A.H. and her brothers were not allowed to answer
the phone; Cornwall herself would answer the phone only after
receiving a special code.
In the meantime, back in Fairbanks, the State initiated
Child In Need of Aid [CINA] proceedings to obtain formal custody
of A.H.. On April 7, 1993 (the day Cornwall first met with
attorney Grober), Ward filed a petition for temporary custody of
A.H. pursuant to AS 47.10.142(c). The superior court held a
hearing on this petition the next day (April 8th). Neither
Patricia Cornwall nor A.H. was present at this hearing, despite
the State's efforts to notify them.2
On April 20, 1993, the superior court issued an order
giving DFYS custody of A.H. for a period of 90 days. On May
10th, Grober appeared on behalf of Cornwall and moved to vacate
the custody order. Superior Court Judge Mary E. Greene denied
Cornwall's motion; Cornwall did not appeal this ruling. In two
subsequent hearings (June 28 and July 29, 1993), Judge Greene
extended DFYS's custody of A.H..
Although Cornwall was in hiding with her children, she
kept in contact with Grober on a regular basis. Even after Judge
Greene denied Cornwall's motion to vacate the custody order,
Grober told Cornwall that "there [still] was a substantial legal
question as to the effect of [the superior court's] order"
because the State had never served a summons on Cornwall or on
A.H..
In addition to the CINA proceedings, the State was
pursuing its criminal prosecution of David Cornwall. In April,
the State obtained a warrant for Patricia Cornwall's arrest as a
material witness in that prosecution. In May, the State filed a
complaint charging Patricia Cornwall with two felonies:
AS 11.56.510(a)(1) (interference with official proceedings) and
AS 11.56.540(a)(2) (witness tampering), and obtained another
warrant for her arrest (this time, as a criminal defendant).
Grober again appeared for Cornwall and moved to quash the arrest
warrant; Superior Court Judge Richard Savell denied this motion.
In late September, the authorities located Cornwall and A.H. in
Michigan; they were brought back to Alaska.
Following her return to Alaska, Cornwall was indicted
for interference with official proceedings (for using force on
A.H. with the intention of influencing her testimony or with the
intention of otherwise influencing the criminal proceedings
against David Cornwall). Cornwall was also indicted for first-
degree custodial interference (for withholding A.H. from the
custody of the DFYS). Following a jury trial, Cornwall was
convicted of both these charges, and she now appeals.
Cornwall's Challenge to the Grand Jury Indictment
Before trial, Cornwall filed a motion asking the
superior court to dismiss the count of the indictment charging
Cornwall with custodial interference. Cornwall argued that the
State never became a "custodian" of A.H., and therefore, even
though Cornwall might have knowingly withheld A.H. from the
authorities, she did not thereby commit the crime of custodial
interference.
With regard to the period of April 6-8, 1993, Cornwall
argued that the State was not a custodian of A.H. because (1)
Sonja Ward, the social worker, never unequivocally exercised her
authority to take A.H. into emergency custody, and (2) even if
she did, such emergency custody is not the kind of "custody" that
the custodial interference statutes are addressed to. Cornwall
asserted that, before the State can become a "custodian" for
purposes of the custodial interference statutes, there must be a
court-ordered change in custody.
Cornwall recognized that, beginning on April 20, 1993,
the superior court issued orders granting custody of A.H. to
DFYS. However, Cornwall insisted that these court orders were
not valid. She pointed out that, by the time the superior court
held its first custody hearing on April 8th, Cornwall and A.H.
had already left Fairbanks and neither Cornwall nor A.H. was ever
served with a summons to attend these hearings. Cornwall argued
that, without service of a summons, the superior court never
obtained personal jurisdiction over either Cornwall or A.H., and
thus the ensuing custody orders were void.
The superior court denied Cornwall's motion. On
appeal, Cornwall again attacks the grand jury indictment, but the
argument has shifted to different grounds.
In her opening brief, Cornwall focuses solely on the
events of April 6, 1993. Cornwall renews her argument that
DFYS's assertion of emergency custody was not "custody" for
purposes of the custodial interference statute. Cornwall asks
this court to declare that a social worker can not obtain custody
of a child "simply by saying the magic words 'emergency custody'
to a parent".3 Cornwall's opening brief does not discuss the
ensuing superior court orders giving custody of A.H. to DFYS.
In its responding brief, the State argues that the
charge against Cornwall does not involve Sonja Ward's assertion
of emergency custody over A.H. on April 6th. Cornwall was
indicted for committing first-degree custodial interference
during the months of June through September, 1993 C in other
words, long after the superior court had given custody to DFYS.
(As explained above, the first superior court order giving
custody to DFYS was issued on April 20, 1993.)
In her reply brief, Cornwall responds to the State's
mootness argument with a variety of claims.
First, Cornwall asserts that, "as a matter of law, the
state cannot become a "lawful custodian" until a court has
severed the relationship between parent and child and has ordered
that the state is the lawful custodian." (Emphasis added.)
Cornwall appears to be arguing that the superior court has no
power to place a minor in the custody of the Division of Family
and Youth Services until the court has terminated the parental
rights of the minor's parents or guardians.
Second, Cornwall argues that a superior court order
entered under AS 47.10.142(e) (giving temporary custody of a
minor to DFYS pending a full CINA hearing) does not establish
"custody" for purposes of the custodial interference statute.
Cornwall argues that only an order entered under AS 47.10.080(c)
C that is, the judgement issued by the superior court when it
makes its final CINA adjudication C is sufficient to vest DFYS
with "legal custody" of a child.4
Third, Cornwall argues that even if a court order under
AS 47.10.142 was sufficient to give custody of A.H. to the
Division of Family and Youth Services, Cornwall was never
properly served with the superior court's three custody orders.
Cornwall asserts that she "could not be charged with custodial
interference because she maintained her status as A.H.'s sole
lawful custodian until a court order altered this relationship
and until she was served with notice that the court had done so".
(Emphasis added.)
Fourth, Cornwall asserts that even if the law allows
the State to prove that Cornwall obtained knowledge of the
superior court's action through means other than personal service
of the court's orders, the grand jury record nevertheless
contains insufficient evidence that Cornwall was aware of the
court's orders.
None of these arguments was preserved in the trial
court.5 These claims are therefore forfeited. See Alaska
Criminal Rule 12(b)(1)-(2) and 12(e). To the extent that
Cornwall might be relieved from this forfeiture by showing plain
error, she has failed to do so.
Finally, Cornwall asserts that the prosecutor who
presented the case to the grand jury erred by instructing the
grand jury that, as a matter of law, the Division of Family and
Youth Services became A.H.'s custodian on April 6, 1993. Before
the grand jurors received this instruction, they heard Sonja Ward
testify that she placed A.H. in emergency custody on that date.
Thus, in context, the prosecutor was not telling the grand jurors
what facts they must find; rather, the prosecutor's instruction
was an explanation of the legal significance of Ward's actions C
an explanation that, after a representative of DFYS has assumed
emergency custody of a child, the state becomes a "lawful
custodian" of the child for purposes of the custodial
interference statute.
Cornwall's attack on the prosecutor's instruction
appears to be a restatement of an argument that Cornwall did
raise in the trial court: her assertion that "emergency custody"
is not the type of custody addressed by the custodial
interference statutes C that, for purposes of custodial
interference, DFYS becomes a child's "lawful custodian" only
after the superior court has issued an order ratifying DFYS's
custody.
This argument was preserved for appeal, but it is moot.
As noted above, the period covered by the indictment is June
through September, 1993. During this entire period, DFYS's
custody of A.H. was premised on custody orders issued by the
superior court. These orders were introduced at grand jury
through the testimony of the clerk of court.
We therefore uphold the count of the grand jury
indictment charging Cornwall with custodial interference.
However, for reasons explained below, we hold that Cornwall is
entitled to a new trial because she was prevented from presenting
important testimony concerning an element of the crime of
custodial interference.
The Superior Court's Ruling on the Scope of Attorney
Marc Grober's Testimony
At trial, Cornwall called her attorney, Marc Grober, to
testify on her behalf. During voir dire examination outside the
presence of the jury, Grober testified that he advised Cornwall
on April 7, 1993, that Sonja Ward's assertion of emergency
custody was invalid because Ward had neither taken physical
custody of A.H. nor served Cornwall with any documents. After
the superior court issued its orders granting custody of A.H. to
DFYS, Grober (who remained in contact with Cornwall) continued to
advise her that "there was a substantial legal question" as to
the validity of the superior court's orders because Cornwall and
A.H. had never been personally served with a summons to attend
the court proceedings. Grober thus advised Cornwall that she
remained free to take A.H. and go where she pleased, at least
until she was served with court process.
The State objected to Grober's testimony, arguing that
Cornwall was trying to establish that she acted under a mistake
of law. The State argued that Cornwall could not avail herself
of a mistake-of-law defense because Cornwall had not acted in
good faith when she solicited Grober's advice; rather, the State
asserted, Cornwall had selectively revealed only the parts of her
situation most favorable to herself, so that she could obtain the
advice she wanted to hear.
Superior Court Judge Niesje J. Steinkruger agreed with
the State that Cornwall was trying to raise a mistake-of-law
defense, and she barred Cornwall from presenting this testimony:
THE COURT: [E]vidence [has been
offered] that the defendant was acting under
a mistake of law C in other words, that she
had received legal advice regarding the
validity of the State's actions relating to
emergency custody [and] the court's ...
subsequent orders regarding custody, [and]
how those affected her[.]
. . .
Mistake of law ... is an issue for the
court, as clearly set forth in Ostrosky [v.
State], ... 704 P.2d 786, with [a] subsequent
opinion at 725 P.2d 1087[.] ... The general
rule is that mistake of law is no defense in
Alaska. ... Alaska has adopted a very
limited defense of mistake of law[.] ...
[T]he defendant must establish by a
preponderance of the evidence that it was
reasonable to rely on the mistake of law[.]
[In] footnote 2 of Ostrosky[,] ... the Alaska
Court of Appeals specifically declines to
find that relying on the advice of an
attorney constitutes mistake of law.
. . .
This court makes the following findings:
[One], that the reliance by the defendant on
the advice of counsel regarding the validity
of the State's actions regarding taking
emergency custody was unreasonable, either
(a) because she failed to give complete
information to her counsel from which he
could give an opinion; or (b) because the
opinion was inaccurate regarding the State's
custody, because [the attorney] had
insufficient facts. And two, relying upon
counsel regarding the validity of ... the
court's orders ... placing the child in the
custody of the State ... was unreasonable in
this circumstance. [Because Cornwall had]
information from her counsel that those
orders existed, the court finds [that] any
reliance is unreasonable and that the
defendant has failed to establish a mistake
of law defense by a preponderance of the
evidence.
Based upon [this] ruling, the court
finds that the legal opinions given by
counsel regarding the effect of orders ... in
the child-in-need-of-aid case ... [are] not
relevant to this proceeding and will not be
allowed [into evidence]. Certainly, the
facts as to whether the defendant knew about
certain court orders or knew about warrants
or knew that her daughter ... could be a
witness are relevant, and therefore the court
will allow testimony within those parameters.
When Cornwall's attorney sought clarification of Judge
Steinkruger's ruling, the judge stated that Grober would be
allowed to testify that he told Cornwall of the existence of the
superior court's orders, but Grober could "not testify that, in
his opinion, those [orders] did not have legal effect on
[Cornwall]". The following colloquy then ensued:
DEFENSE ATTORNEY: Now, does your ruling
mean that you are precluding Mr. Grober from
informing the jury that he advised my client
that she was free to do as she saw fit?
THE COURT: Yes. Now I say "yes"
because you've phrased that in a manner that
I'm not sure what you mean. If his legal
advice to her was based upon the information
she had given him -- the State didn't have
emergency custody, and ... she was free to do
whatever she wanted to do -- I mean, an
attorney can say, "Here's what I see, here's
what I think the effect is; the decision is
yours." If he was saying, "The decision is
yours; you're free to do whatever you want,"
he can testify to that. [But if he was
saying], "The State doesn't have custody;
you're free to do whatever you want", then
he's not -- he may not testify regarding
that. They're two different things.
DEFENSE ATTORNEY: Okay.
Thus, Judge Steinkruger prohibited Grober from
testifying about his legal analysis of the superior court's
custody orders. Under Judge Steinkruger's ruling, Grober was
free to testify that he informed Cornwall of the superior court's
orders giving custody of A.H. to the Division of Family and Youth
Services, but Grober was precluded from testifying that he told
Cornwall there was a substantial doubt as to the validity of
those orders. In effect, the court's ruling allowed Grober to
testify concerning the inculpatory aspects of his conversations
with Cornwall, but it barred Grober from testifying about the
exculpatory aspects of those same conversations.
(a) Cornwall's Conviction for Custodial
Interference Must Be Reversed
Normally, attorneys are not allowed to testify
concerning their legal analysis of the matters being litigated.
This is because, in a jury trial, issues of law are decided by
the judge, not the jury. It is the jury's role to decide the
facts of the case, but it is the judge's role to instruct the
jury on the legal significance of the facts. Therefore, when
lawyers disagree concerning the law that governs a case, they
offer arguments to the trial judge, not testimony to the jury.
If Grober's testimony had been offered for the purpose
of convincing the jury that the superior court's 1993 custody
orders had no legal effect on Cornwall (or, more precisely, that
there was a substantial possibility that these orders had no
legal effect on Cornwall), Grober's testimony would clearly have
been inadmissible. The legal effect of the superior court's
custody orders was an issue of law to be decided by the trial
judge.
Similarly, if Grober's testimony had been offered to
support a "mistake of law" defense, then his testimony should not
have been heard by the jury. A mistake-of-law defense is decided
by the trial judge. Clark v. State, 739 P.2d 777, 779 n.1
(Alaska App. 1987); Ostrosky v. State, 704 P.2d 786, 792 (Alaska
App. 1985), appeal after remand, 725 P.2d 1087, 1090 (Alaska App.
1986) (Ostrosky II).
However, Grober's testimony was not offered to support
a mistake-of-law defense. Instead, Grober's testimony was
offered because it was relevant to the issue of whether Cornwall
had the culpable mental state required for custodial
interference. Grober testified that he analyzed the legal effect
of the superior court's custody orders and then communicated his
analysis to Cornwall. Whether or not Grober's legal analysis of
the superior court's orders was sound, the fact that he
communicated that analysis to Cornwall was relevant to the jury's
task of ascertaining Cornwall's state of mind when she performed
the acts alleged in the indictment.
As we explained in Strother v. State, 891 P.2d 214, 223
(Alaska App. 1995), the crime of custodial interference has three
main elements. The actus reus of the offense (the physical
conduct prohibited by the statute) is the act of taking or
keeping a child from a lawful custodian. In addition to this
physical conduct, the government must prove that the defendant
acted with two culpable mental states. First, the defendant must
have known that he or she had no legal right to take or keep the
child from the custodian. Second, the defendant must have
intended to hold the child for a protracted period of time. (The
meaning of knowledge and intent for these purposes is found in
AS 11.81.900(a)(1)-(2).)
Grober's testimony was relevant to the first of these
culpable mental states C Cornwall's knowledge that she had no
legal right to take or keep A.H. from the Division of Family and
Youth Services. Under AS 11.81.900(a)(2), "when knowledge of the
existence of a particular fact" C here, the fact that Cornwall
had no legal right to keep A.H. from DFYS C "is an element of an
offense, that knowledge is established if [the defendant] is
aware of a substantial probability of its existence, unless [the
defendant] actually believes that it does not exist". Thus, if
Cornwall honestly believed (even mistakenly) that there was no
legal impediment to her taking A.H. and hiding A.H. from the
authorities, then Cornwall did not act with the culpable mental
state required for the crime of custodial interference.
It may seem that we are allowing Cornwall to present a
"mistake of law" defense to the jury, but that is not the case.
Normally, criminal statutes do not require proof that the
defendant acted with awareness of the applicable law. Thus, a
defendant's awareness or ignorance of the governing law normally
has no relevance to the proof or disproof of the elements of the
offense. However, the legislature may define a crime to require
proof that the defendant acted with awareness of the law. As
stated in AS 11.81.620(a),
Knowledge ... as to whether conduct
constitutes an offense, or knowledge ... as
to the existence, meaning, or application of
the provision of law defining an offense, is
not an element of an offense unless the
provision of law clearly so provides.
(Emphasis added.)6
The legislature has defined custodial interference to
require proof that the defendant acted with knowledge that he or
she had "no legal right" to take or keep the child from the
specified lawful custodian. Cornwall's subjective understanding
of the legal effect of the superior court's custody orders was
directly relevant to the proof or disproof of this element. And
Cornwall's conversations with Grober were directly relevant to
the task of ascertaining Cornwall's subjective understanding. We
thus conclude that Grober should have been allowed to testify
concerning what he told Cornwall about the legal effect of the
superior court's custody orders.
The State argues that the error in excluding Grober's
testimony was harmless because, when Grober's answers on voir
dire testimony are carefully examined, they appear to be more
favorable to the State than to Cornwall. But taking Grober's
evidence in the light most favorable to Cornwall, there is a
substantial possibility that the error in excluding Grober's
testimony appreciably affected the jury's verdict on the
custodial interference charge. Love v. State, 457 P.2d 622, 629-
631 (Alaska 1969). For this reason, Cornwall's custodial
interference conviction must be reversed.7
(b) Did this Error Affect Cornwall's
Conviction for Interference with
Official Proceedings?
In a related argument, Cornwall asserts that her
conviction for interference with official proceedings must also
be reversed because of the error in excluding Grober's testimony.
Cornwall argues that Grober's testimony was relevant to the
interference with official proceedings charge because Grober's
testimony tended to establish Cornwall's belief concerning
whether she was A.H.'s lawful custodian. As explained above, we
agree that Grober's testimony was relevant to the issue of
Cornwall's subjective belief concerning her legal status. The
question remains, however, whether Cornwall's subjective belief
concerning her legal status was relevant to the interference with
official proceedings charge.
In Count I of the indictment (the count charging
interference with official proceedings), Cornwall was charged
with using force upon A.H. (that is, forcibly removing A.H. from
the Fairbanks area) for the purpose of influencing the outcome of
the criminal prosecution against her husband, David Cornwall.
Defending herself against this charge, Cornwall asserted that her
act of removing A.H. from Fairbanks had been motivated by her
belief that A.H. needed to be moved elsewhere to obtain
counseling for the sexual abuse she had suffered. See
AS 11.81.430(a)(1), as interpreted in State v. Jones, 750 P.2d
828 (Alaska App. 1988).
The jury at Cornwall's trial received an instruction
embodying this defense:
Count I [of the indictment] charges the
defendant with Interference with Official
Proceedings[.] [A]n element of [this]
offense is that the defendant used force on
A.H. The use of force upon another person
that would otherwise constitute an offense is
justified under the following circumstance:
when and to the extent reasonably necessary
and appropriate to promote the welfare of a
child[,] a parent, who is the lawful
custodian of that child, may use reasonable
and appropriate nondeadly force upon that
child. It is for you to determine whether a
decision by the defendant to remove A.H. from
the jurisdiction was not in fact made to
promote the welfare of A.H. or was not
reasonably necessary and appropriate to
promote the child's welfare. ... [U]nless
the state has proven beyond a reasonable
doubt that the defendant did not act in these
circumstances, you should find the defendant
not guilty.8
Under this instruction, the availability of the
"parental justification" defense hinged on two major issues: (1)
whether Cornwall was A.H.'s "lawful custodian" at the time she
removed A.H. from Fairbanks and, later, from the State of Alaska;
and (2) whether Cornwall's acts of taking and hiding A.H. were
"reasonably necessary and appropriate to promote [A.H.'s]
welfare".
Cornwall's jury was instructed that "lawful custodian"
meant "a parent, guardian, or other person responsible by
authority of law for the care, custody, or control of another".
Using this instruction as a point of departure, the parties
litigated Cornwall's status as an issue of fact. The prosecutor
argued to the jury that, because of Sonja Ward's actions and the
superior court's ensuing custody orders, Cornwall was not A.H.'s
lawful custodian during the time period covered by the
indictment. Cornwall's attorney argued that, because Cornwall
was A.H.'s mother and because DFYS had left the child in her
physical custody, Cornwall remained A.H.'s lawful custodian.
Cornwall's attorney further argued that Cornwall's
actions had been motivated by an intent to protect A.H. and to
secure her welfare. The defense attorney reminded the jury that
a mental health clinician, Jana Eyer-Stough, had testified that
it was difficult to say whether a sexual abuse victim was hurt
more by the sexual abuse or by going through the ensuing judicial
process. The prosecutor responded that Cornwall's intention was
irrelevant: to claim the "parental justification" defense,
Cornwall had to be a lawful custodian, and she was not.
The jury's general verdict does not allow us to
ascertain whether the jury rejected Cornwall's parental
justification defense because they concluded beyond a reasonable
doubt that Cornwall was not A.H.'s lawful custodian or,
alternatively, because they concluded beyond a reasonable doubt
that Cornwall's actions were not "reasonably necessary and
appropriate to promote the child's welfare".9
Against this background, we now evaluate Cornwall's
assertion that Marc Grober's testimony was relevant to her
"parental justification" defense. As explained above, the
parental-justification defense raised two main issues: whether
Cornwall was A.H.'s lawful custodian, and whether Cornwall's
conduct was reasonably necessary and appropriate to promote
A.H.'s welfare.
With regard to the first of these issues (whether
Cornwall was A.H.'s lawful custodian), the question for the jury
was whether Cornwall was in fact A.H.'s lawful custodian, not
whether she believed herself to be. The parental justification
defense codified in AS 11.81.430(a)(1) is not defined in terms of
the defendant's knowledge of or belief concerning her legal
status. Under the statute, the defense is available only to
people who are in fact lawful custodians of children. If the
jury found that Cornwall was not A.H.'s lawful custodian, then it
would be irrelevant that Cornwall mistakenly believed herself to
be A.H.'s lawful custodian. Grober's testimony therefore had no
direct bearing on the first issue raised by Cornwall's parental-
justification defense C whether Cornwall was in fact A.H.'s
lawful custodian. Judge Steinkruger could properly exclude
Grober's testimony on this point.
Similarly, Grober's testimony seemingly has no direct
bearing on the second issue raised by Cornwall's parental-
justification defense C whether Cornwall's actions were
reasonably necessary and appropriate to promote A.H.'s welfare.
Under the statutory definition of the parental-justification
defense, the test of reasonable necessity is an objective one:
the jury was called upon to decide, not whether Cornwall
subjectively believed her actions to be necessary and
appropriate, but rather whether Cornwall's actions were in fact
reasonably necessary and appropriate. It is unclear to us how
Grober's testimony, which was offered only to establish
Cornwall's subjective belief as to her lawful custody of A.H.,
could have influenced the jury's determination of whether,
objectively viewed, Cornwall's actions were reasonably necessary
and appropriate to promote the welfare of A.H..
It appears, therefore, that the error in excluding
Grober's testimony affected only the custodial interference
charge and that it did not affect the jury's ability to reach a
fair decision on the interference with official proceedings
charge. Nevertheless, we note that the issue of harmless error
as to the interference with official proceedings charge has
received only token briefing by the parties.10 We are concerned
that our view of this issue may be clouded by the lack of
meaningful discussion in the parties' briefs. Despite our
present inability to see how the erroneous exclusion of Grober's
testimony had any impact on the jury's consideration of the
interference with official proceedings charge, we think it
possible that the lack of full adversarial briefing may mask
potential prejudice to Cornwall's case. We conclude that the
interests of justice will be served by allowing the parties to
file supplemental briefing before we decide whether this error
was harmless. We thus reserve decision on this point.
The Superior Court's Refusal to Give Cornwall's
Proposed Instruction on Emergency Custody
On the first day of Cornwall's trial, Judge Steinkruger
recognized that there might be both factual and legal disputes as
to whether Sonja Ward asserted emergency custody over A.H. on
April 6, 1993. As to potential legal questions, the judge
declared that "the Court has not been asked to rule [on the
emergency custody issue] as a matter of law". She encouraged the
attorneys to think about this issue.
On the second day of trial, Cornwall's attorney
submitted a proposed jury instruction on the question of whether
the Division of Family and Youth Services took emergency custody
of A.H. on April 6, 1993. This instruction read:
In order for you to find that Pat
Cornwall is guilty of the crime of Custodial
Interference in the first degree, you must
find that the State of Alaska through the
Department of Health and Social Services had
taken EMERGENCY CUSTODY of [A.H.] on April 6,
1993. In order for the Department to have
taken emergency custody you must find:
1. that the Department took
physical possession and control of
[A.H.] on the afternoon of April 6.
2. that the Department notified
Pat Cornwall as soon as possible, but in
any event within 12 hours unless unable
to reach her, that they had taken the
physical possession and control of
[A.H.]; and
3. that the Department notified
the court of the emergency custody by
filing, within 12 hours after custody
was assumed, a petition alleging that
[A.H.] was a child in need of aid.
If you find that the Department did not take
each and every one of these steps, you must
find the Defendant not guilty of the crime of
Custodial Interference in the first degree.
...
As can be seen, Cornwall's proposed instruction
embodied the legal assertion that, unless a DFYS representative
takes physical possession of a child, any purported assertion of
emergency custody has no legal effect. It was undisputed that
Sonja Ward (the DFYS representative) did not take physical
possession of A.H. on April 6. Thus, under Cornwall's
instruction, the jury would be directed to acquit Cornwall of
custodial interference.
When Cornwall's attorney submitted this instruction, he
made no argument in support of the instruction, and he provided
the court with no supporting legal authority. At the beginning
of the next day's proceedings, Judge Steinkruger again reminded
the parties that, potentially, there could be both factual and
legal disputes concerning DFYS's assertion of emergency custody.
She told the parties that any factual dispute would be submitted
to the jury, but questions of law would be decided by the court,
not the jury. Cornwall's attorney was therefore on notice that,
to the extent the proposed instruction on emergency custody
incorporated disputed legal theories or definitions, those legal
issues would have to be litigated to Judge Steinkruger.
Subsequently, during the defense attorney's cross-
examination of a government witness, the question arose whether
DFYS's failure to file a petition with the superior court within
12 hours of assuming emergency custody of A.H. might invalidate
the emergency custody and thus constitute a defense to the charge
of custodial interference. Judge Steinkruger ruled that DFYS's
failure to meet the 12-hour time limit was not a defense. This
ruling was, in effect, a rejection of paragraph 3 of Cornwall's
proposed instruction. Despite this, Cornwall's attorney accepted
Judge Steinkruger's ruling without presenting any counter-
argument.
Just before final arguments, Judge Steinkruger
distributed copies of the court's packet of proposed jury
instructions. This packet did not include an instruction on the
definition of "emergency custody". Cornwall's attorney did not
object to this omission. Instead, the following colloquy took
place between Cornwall's attorney and Judge Steinkruger:
DEFENSE ATTORNEY: I take it [that] the
absence of an instruction defining "emergency
custody" means we're free to argue our theory
of what is emergency custody?
THE COURT: What I said originally --
[when] no one had proposed an instruction on
emergency custody -- was that ... I urged you
to look at [this issue] in the event that the
jury came back with a question about
emergency custody. And so I didn't put [your
proposed instruction] in.
DEFENSE ATTORNEY: Okay.
THE COURT: My goal was to ... alert you
to the possibility that [this issue] seemed
to me an area that could come up. The reason
I didn't put [your proposed instruction] in
is that the [time] period [charged in Count
II] is June to September[;] the charged
period is not April 6th.
. . .
DEFENSE ATTORNEY: Okay.
On appeal, Cornwall asserts that Judge Steinkruger
committed error by declining to give Cornwall's proposed
instruction on emergency custody. She claims that that "[t]he
court provided no explanation for refusing to give" the proposed
instruction. But, as can be seen from the above-quoted exchange,
Judge Steinkruger did explain why she was not instructing the
jury on the legal definition of emergency custody. The judge
told the parties that no instruction was necessary because Count
II of the indictment (the count charging custodial interference)
covered June through September 1993 C a period of time in which
A.H.'s custody was governed, not by emergency custody, but by
superior court order.
Cornwall's trial attorney accepted this explanation
without comment and voiced no objection to Judge Steinkruger's
decision to omit the proposed instruction. Thus, Cornwall failed
to preserve an objection to the superior court's decision. See
Alaska Criminal Rule 30(a).11
Moreover, as we have already discussed in the context
of Cornwall's attack on the indictment, Cornwall has failed to
demonstrate that the superior court's omission of this
instruction was plain error. Judge Steinkruger ruled that,
because the period covered in the indictment was June through
September, the validity of the initial emergency custody was a
moot issue. Judge Steinkruger's ruling is supported by the
Alaska Supreme Court's decision in R.C. v. Alaska Department of
Health & Social Services, 760 P.2d 501 (Alaska 1988). In R.C., a
parent challenged the procedures employed at a temporary custody
hearing. The supreme court held that, because DFYS's custody of
the child was re-affirmed in later judicial proceedings that were
not challenged, the purported defects in the temporary custody
hearing were not plain error:
[E]ven if procedural defects existed in an
earlier temporary custody hearing, they can
be cured by a subsequent procedurally correct
final dispositional hearing. D.E.D. v.
State, 704 P.2d 774, 782 (Alaska 1985).
Because the parents [in this case]
subsequently acknowledged ... that their
children were in fact in need of aid and
that the Department should have custody of
them, any alleged defects in the first
temporary custody hearing were not "obviously
prejudicial" to the point of plain error.
R.C., 760 P.2d at 507. By analogy, purported defects in DFYS's
assertion of emergency custody of A.H. would be mooted by later
judicial proceedings under AS 47.10.142(d)-(e) in which the
superior court gave temporary custody of A.H. to DFYS. We find
no plain error.
Conclusion
We uphold Cornwall's indictment, and we uphold the
superior court's refusal to give Cornwall's proposed instruction
defining "emergency custody". However, due to the exclusion of
Marc Grober's testimony, Cornwall's conviction for custodial
interference is REVERSED. Cornwall is entitled to a new trial on
that charge.
Regarding Cornwall's conviction for interference with
official proceedings, we reserve decision and direct the parties
to file supplemental briefs on two issues:
(1) Was Marc Grober's testimony relevant to the
determination of whether Cornwall's actions were reasonably
necessary and appropriate to promote A.H.'s welfare? And,
if so,
(2) Did the exclusion of this testimony have an
appreciable effect on the jury's verdict?
Cornwall's supplemental brief shall be filed within 30 days of
the issuance of this opinion. The State's brief shall be filed
within 20 days of the filing of Cornwall's brief.
We retain jurisdiction over this case.
_______________________________
1 This statute reads:
The Department of Health and Social Services may
take emergency custody of a minor upon discovering any
of the following circumstances:
(1) the minor has been abandoned;
(2) the minor has been grossly neglected by the
minor's parents or guardian, as "neglect" is defined in
AS 47.17.290, and the department determines that
immediate removal from the minor's surroundings is
necessary to protect the minor's life or provide
immediate necessary medical attention;
(3) the minor has been subjected to child abuse or
neglect by a person responsible for the minor's
welfare, as "child abuse or neglect" is defined in AS
47.17.290, and the department determines that immediate
removal from the minor's surroundings is necessary to
protect the minor's life or that immediate medical
attention is necessary; or
(4) the minor has been sexually abused under
circumstances listed in AS 47.10.010(a)(2)(D).
2 At approximately 6:40 p.m. on April 6, 1993, Patricia
Cornwall telephoned Sonja Ward. Ward told Cornwall that the
custody hearing was scheduled for April 8th, but she did not yet
know the time. Cornwall asked Ward to leave the papers
containing information about the hearing at the trooper station
for Cornwall to pick up the next day. Ward agreed to leave the
papers at the trooper station, and she also reminded Cornwall to
keep her apprised of A.H.'s whereabouts at all times. The
following day, Ward left the papers at the trooper station as
Cornwall had requested, but Cornwall never picked up these
papers. That same day, Ward and the troopers returned to the
Cornwall residence with a search warrant, hoping to find A.H..
No one was home at the Cornwall residence, but Ward and the
troopers found Ward's business card, which she had left with
Cornwall on the afternoon of April 6th, torn into two pieces and
thrown on top of the garbage. Ward left a note for Cornwall at
the residence; this note contained the hearing time and a request
for Cornwall to call her.
3 We note that, despite Cornwall's aspersion, the law gives
legal effect to words in various circumstances. For instance, a
police officer's words "You are under arrest" can convert a
citizen's act of walking away into the crime of resisting arrest.
Likewise, a property owner's words "I direct you to leave" can
convert a citizen's presence on property into a trespass.
4 The Alaska Supreme Court apparently rejected this
argument in Matter of E.A.O., 816 P.2d 1352, 1355 (Alaska 1991):
"Although [AS 47.10].084 on its face only applies to cases where
children are committed to the department after a disposition
hearing, the parties agree that its principles apply here, where
the commitment was a result of a temporary placement hearing
[under] AS 47.10.142(e)."
5 To reiterate, Cornwall argued below that the superior
court's custody orders were invalid because Cornwall was never
served with a summons to attend the proceedings, and thus the
superior court never obtained personal jurisdiction over
Cornwall. Cornwall has abandoned this argument. It also appears
to be meritless. See Alaska Child in Need of Aid Rule 7(d)
("Inability to obtain service on any party does not deprive the
court of jurisdiction."); In re Interest of R.G., 470 N.W.2d
780, 790 (Neb. 1991); N.W. v. Madison County Department of Public
Welfare, 493 N.E.2d 1256, 1258-59 (Ind. App. 1986).
6 See Wayne R. LaFave and Austin W. Scott, Jr., Substantive
Criminal Law (1986), '' 5.1(a) & 5.1(d), Vol. 1, pp. 575-77 and
585-89, as supplemented in the 1996 pocket part, pp. 58-59:
The basic rule is ... : ignorance or mistake of
fact or law is a defense when it negatives the
existence of a mental state essential to the crime
charged. ... For example, to take the classic case of
a man who takes another's umbrella out of a restaurant
because he mistakenly believes that the umbrella is
his, ... the man is not guilty because he does not have
the mental state (intent to steal the property of
another) required for the crime of larceny. ... If,
instead of [mistaking one umbrella for another], the
[defendant] took the [umbrella] through a mistake of
law, such as that his prior dealings had vested
ownership of [the umbrella] in him, he would again not
have the intent-to-steal mental state required for the
crime of larceny.
. . .
Ignorance of the law ... is an excuse when it
negatives a required mental state[.] ... Illustrative
[of this concept] is a statute making it an offense
knowingly to evade the payment of income taxes,
properly interpreted in Cheek v. United States[, 498
U.S. 192, 111 S.Ct. 604, 112 L.Ed.2d 617 (1991),] as
not reaching a defendant who was unaware of his duty
under the law to pay taxes. As the Supreme Court
explained, the "proliferation of statutes and
regulations has sometimes made it difficult for the
average person to know and comprehend the extent of the
duties and obligations imposed by the tax laws," and
accordingly the Congress made "intent to violate the
law an element of certain federal criminal tax
offenses."82.4
82.4 [However,] the Court concluded
that the knowledge-of-duty element was not
defeated if the defendant knew of the law but
believed, even reasonably, that it was
unconstitutional as applied to him. In such
circumstances, [the Court held,] Congress
anticipated that the person should pay the
tax and then ... challenge the
constitutionality of the tax[.]
(Emphasis in the original; footnotes omitted, with the exception
of footnote 82.4.)
7 If Cornwall is retried, the reception of Grober's
testimony may require some care. For instance, when the jury
determines whether DFYS became a lawful custodian of A.H. by
virtue of either Sonja Ward's actions on April 6th or the
superior court's subsequent custody orders, the jury will be
bound by the trial judge's instruction(s) on the legal effect of
those actions and orders. The jury can properly be instructed
that, on this issue, they should disregard anything that Grober
might say to the contrary. However, the jury should consider
Grober's statements to Cornwall when the jury decides the issue
of whether Cornwall knew that she had no legal right to keep A.H.
from DFYS.
8 By quoting this instruction, we do not intend to give it
our judicial imprimatur. This instruction uses the phrase
"lawful custodian of [a] child", even though the underlying
statute, AS 11.81.430(a)(1), uses words that suggest a broader
application: "parent, guardian, or other person entrusted with
the care and supervision of a child". Further, because the
instruction refers to a person "who is the lawful custodian" of a
child (emphasis added), the instruction might be read to require
the jury to identify a single person or entity as the sole lawful
custodian of a particular child. In fact, a child may have more
than one lawful custodian. See Strother v. State, 891 P.2d 214,
223-24, 226 (Alaska App. 1995).
9 In addition to arguing a "parental justification" defense
to the jury, Cornwall litigated an ancillary "mistake of law"
claim to Judge Steinkruger. Cornwall argued that, even if she
was no longer A.H.'s lawful custodian when she fled with A.H.,
she nevertheless acted under a good-faith, mistaken belief (based
on Marc Grober's advice) that she remained A.H.'s lawful
custodian. As described above, Judge Steinkruger heard Grober's
testimony and rejected Cornwall's mistake-of-law defense. The
judge concluded that, to the extent Cornwall might have relied on
Grober's advice in deciding that the superior court's custody
orders were invalid, Cornwall acted unreasonably.
10 In her opening brief, Cornwall evidently assumed that the
error in excluding Grober's testimony affected both charges. In
a few conclusory sentences, Cornwall argued that because Grober's
testimony revealed her subjective understanding of her status as
A.H.'s custodian, this testimony was relevant to the interference
with official proceedings charge.
Responding to Cornwall's opening brief, the State made two
arguments. The State first argued that Cornwall had abandoned
this issue by failing to adequately brief it. Cornwall's
discussion of this issue is admittedly sketchy. However, given
the difficult nature of the legal issues involved in Cornwall's
case, and given Cornwall's misunderstanding of the elements of
her parental-justification defense, we are reluctant to find that
Cornwall abandoned her argument regarding the harmfulness of the
error. The State argued alternatively that any error in excluding
Grober's testimony had no impact on the interference with
official proceedings charge. However, this argument was
presented in conclusory terms.
In her reply brief, Cornwall again chose to give the
harmless-error issue only a passing nod, setting out a cursory
argument that the error might somehow have affected the jury's
consideration of the first prong of the parental-justification
defense (whether Cornwall was A.H.'s legal custodian). As we
have explained, however, this argument is incorrect.
11 We note that Judge Steinkruger told the parties that if
they submitted any proposed instructions different from the ones
ultimately given by the court, those proposed instructions would
be considered "objections" to the court's instructions. However,
Judge Steinkruger did not have the authority to excuse the
parties from their normal burden of preserving a point for
appeal. When a party objects to a trial judge's ruling but fails
to present any argument or legal authority in support of his or
her position, that point is not preserved. See Hohman v. State,
669 P.2d 1316, 1325-26 (Alaska App. 1983) (when a party offers
evidence which is challenged for lack of relevance, and the
offering party fails to make an offer of proof concerning the
potential relevance of challenged testimony, the party has
thereby failed to preserve the point for appeal).
With regard to jury instructions, Alaska Criminal Rule 30(a)
declares, in pertinent part, "No party may assign as error any
portion of the charge [to the jury] or omission therefrom unless
the party objects thereto before the jury retires to consider its
verdict, stating distinctly the matter to which the party objects
and the grounds of the objections." (Emphasis added).
Cornwall's proposed jury instruction on emergency custody
incorporated questionable propositions of law, yet the defense
attorney failed to provide any legal authority in support of the
instruction. Moreover, when Judge Steinkruger explained why she
believed that the issues addressed in Cornwall's proposed
instruction were moot, the defense attorney accepted Judge
Steinkruger's explanation without comment. By failing to comply
with the requirements of Criminal Rule 30(a), Cornwall failed to
preserve her arguments for appeal.
