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Strane v. State (1/12/01) ap-1711
Strane v. State (1/12/01) ap-1711
NOTICE
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opinion is published in the Pacific Reporter. Readers are
encouraged to bring typographical or other formal errors to the
attention of the Clerk of the Appellate Courts:
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
PATRICK STRANE, )
) Court of Appeals No. A-7014
Appellant, ) Trial Court No. 3AN-98-887 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1711 January 12, 2001]
)
Appeal from the District Court, Third Judicial
District, Anchorage, John R. Lohff, Judge.
Appearances: Quinlan Steiner, Jill E. Farrell,
and Michael Dieni, Assistant Public Defenders, and Barbara K. Brink,
Public Defender, Anchorage, for Appellant. Kenneth M. Rosenstein,
Assistant Attorney General, Office of Special Prosecutions and
Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau,
for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
MANNHEIMER, Judge.
The Alaska Legislature has authorized the courts of this
state to issue special protective orders in domestic violence cases.
These protective orders can contain one or more of the types of
restraining provisions listed in AS 18.66.100(c)(1)-(7). [Fn. 1]
Under AS 11.56.740(a), if a person is subject to a domestic violence
protective order that contains one or more of these seven
restraining provisions, it is a crime for that person to "knowingly"
commit or attempt to commit an act that violates these provisions.
In this appeal, we are asked to construe this criminal
statute and determine what culpable mental state, if any, the State
must prove with respect to the defendant's degree of awareness that
their conduct violated (or might violate) the protective order. We
conclude that the statute requires proof of a culpable mental state,
but the statute is irresolvably ambiguous as to whether that
culpable mental state is "recklessly" or "knowingly". Construing this
ambiguity against the government, we conclude that the State must
prove that the defendant acted "knowingly" as that term is defined
in AS 11.81.900(a)(2).
The positions of the parties to this appeal
The statute at issue, AS 11.56.740(a), declares:
A person commits the crime of violating a
protective order if the person is subject to a protective order
containing a provision listed in AS 18.66.100(c)(1)-(7) and
knowingly commits or attempts to commit an act in violation of that
provision.
The question, ultimately, is to determine what the legislature
intended when it defined this crime in terms of "knowingly"
committing or attempting to commit an act that violates the listed
restraining provisions. [Fn. 2]
Strane and the State approach this statute from radically
different perspectives. Strane argues that the legislature used the
word "knowingly" to convey the notion that the crime is committed
only if the defendant understood the provision(s) of the protective
order and was aware that, by their conduct, they were violating the
protective order. The State argues the polar opposite. The State
contends that, just as ignorance of the law does not excuse a
person's violation of a criminal statute, so too ignorance or
misunderstanding of the provisions of a protective order does not
excuse a person's violation of that order. The State argues that
a person who violates the provisions of a protective order is guilty
of a crime under AS 11.56.740(a) even if they acted with no culpable
mental state i.e., acted with absolutely no awareness that their
conduct might violate the provisions of the order.
The culpable mental state that would govern in the absence
of a statute
The rule at common law that is, the rule that would
prevail in the absence of a statute lies in between the positions
staked out by Strane and the State. Violation of a domestic
violence protective order is but one specific, codified instance of
the more general crime of contempt of court. In previous cases
dealing with contempt of court, this court has held (1) that the
applicable culpable mental state is "recklessness" (i.e., the
government must prove that the defendant recklessly disregarded the
possibility that their conduct violated an order of the court), and
(2) that a person charged with contempt can defend by asserting that
they made a reasonable mistake concerning the terms or the effect
of the court order.
Alaska law recognizes that not all violations of a court
order are contemptuous. Indirect contempt (i.e., contempt of court
not committed in the judge's presence) requires proof that the
defendant acted "willfully" when the defendant violated the court's
order. In this context, willfulness means that the defendant was
aware of, and knowingly violated, the terms of the order:
For an act of contempt to be willful, the
defendant must have been aware of the requirements of the court
order, and the defendant must knowingly violate the court's order.
[Although some earlier cases seem] to suggest that "willfully" might
require proof of a specific intent to violate a court order[, other]
case law clarifies that [what is] required is an intentional act
which the defendant knows violates the court order, not an act
motivated by the intent to violate a court order.
O'Brannon v. State, 812 P.2d 222, 228 (Alaska App. 1991).
Even when a defendant has knowingly violated the terms of
a court order, the defendant may still defend by showing that there
was some lawful excuse for failing to comply with the order. As the
Alaska Supreme Court declared in Johansen v. State [Fn. 3]:
[When we speak of disobedience] of a
lawful order of the court[,] [this] connotes more than the mere
failure to comply with [the] order. The word "disobey" has the
connotation of wilfully failing to comply, without some lawful or
reasonable excuse for not complying. If such an excuse ... is
established, there can be no contempt of the authority of the court.
Johansen, 491 P.2d at 767 (footnote omitted).
Thus, Alaska case law on this subject is at odds with the
State's position in this appeal the State's argument that any
violation of a restraining order is contemptuous, even though the
defendant acted with no culpable mental state.
On the other hand, decisions from other jurisdictions
indicate that contempt can be proved even when the defendant does
not subjectively "know" or understand the precise terms of the court
order. Instead, the requisite "willful" failure to comply can be
established by proof that the defendant recklessly disregarded the
possibility that their conduct violated the requirements of a court
order. This rule is illustrated most starkly in cases where
defendants purposely refused to read or listen to a court order, so
that they remained ignorant of the exact terms of the order. In
such cases, courts have upheld contempt convictions even though the
defendants could truthfully assert that they were not subjectively
aware of the precise requirements of the court order. [Fn.
4]
In Russell v. State [Fn. 5], this court adopted and
implemented this interpretation of the law. The defendant in
Russell was convicted of AS 9.50.010(10), a statute that codifies
another aspect of contempt: disobedience of a properly served
subpoena. Russell was subpoenaed to attend a criminal trial
scheduled to commence in January 1988. When the trial was postponed
until March, the trial judge ordered that all existing subpoenas
would remain in effect. [Fn. 6] Although Russell was informed that
the trial had been postponed, she failed to appear in March. She
claimed that she mistakenly believed that her subpoena was no longer
valid once the trial was rescheduled. [Fn. 7]
One might plausibly argue that Russell's defense amounted
to a claim of "mistake of law" a mistake concerning the legal
effect of the subpoena. However, this court characterized Russell's
defense as "a mistake of fact". [Fn. 8] This characterization makes
a crucial difference. Alaska law generally does not recognize
mistake of law as a defense to a criminal charge. [Fn. 9] But under
AS 11.81.620(b), a mistake of fact will constitute a defense if the
mistake is reasonable and if it either negates the culpable mental
state required for commission of the offense or supports a defense
of justification. Accordingly, this court declared that Russell's
guilt hinged on two issues: (1) did the government prove that
Russell acted with at least reckless disregard of the subpoena's
directive to appear?, and (2) if Russell was truly mistaken
concerning the continuing effect of the subpoena, was this mistake
reasonable?
The judge [who adjudicated the contempt charge]
found that, at best, Russell acted recklessly in assuming that her
subpoena was no longer valid because the trial had been postponed.
On this basis, the judge concluded that Russell's subjective belief
that the subpoena was no longer valid did not absolve her of
responsibility for contempt.
[The judge's] ruling is not error. Under
AS 11.81.620(b), a mistake of fact can be a defense to a crime only
when it is a reasonable mistake. There is ample evidence in the
record to justify [the] finding that, if Russell actually did
believe [that] she was no longer bound to appear, her mistake was
not reasonable. Accordingly, [the evidence supports] Russell's
conviction for contempt of court.
Russell, 793 P.2d at 1087.
This court's decision in Russell stands as a rejection of
the State's position in the present appeal: the contention that a
defendant's violation of a restraining order can never be excused
because of the defendant's ignorance of the terms of the restraining
order or the defendant's misunderstanding concerning the meaning of
those terms. Under Russell, questions as to what conduct is
required or prohibited by a court order are treated as questions of
fact. When the government charges a defendant with violating a
court order, the fact that the court order requires or prohibits
certain conduct is the circumstance that makes the defendant's
conduct a contempt.
In deciding what culpable mental state the government must
prove with respect to this circumstance, Russell adopted the
approach codified in AS 11.81.610(b)(2): when a person's conduct
constitutes a crime only under a particular factual circumstance,
the government normally must prove that the defendant acted
"recklessly" with respect to that circumstance. In addition, Russell
recognized that a defendant charged with violating a court order
could claim the defense of reasonable mistake codified in
AS 11.81.620(b). Because the court order is a factual circumstance
that determines the legality of the defendant's conduct, the law
will excuse the defendant's conduct if (1) the defendant made a
reasonable mistake concerning the terms of the court order, and if
(2) under this reasonable but mistaken interpretation of the court
order, the defendant's conduct did not violate the order.
As explained above, the approach adopted in Russell flows
from the explanations of the law of contempt contained in O'Brannon
and Johansen. We therefore reaffirm that the approach taken in
Russell is a correct interpretation of the common law of contempt
the law that governs adjudications of contempt in the absence of
a statute. Under Alaska common law, contempt requires proof that
the defendant recklessly disregarded the possibility that their
conduct violated a court order, and defendants are allowed to plead
reasonable mistake of fact as a defense. We reject the contrary
arguments that the State presents in this appeal.
Interpreting the statute at issue, AS 11.56.740(a)
The foregoing discussion of the common law does not
resolve Strane's case. Strane is charged with violating a statute,
AS 11.56.740(a), and not the common-law crime of contempt. The
statute declares that a person commits the crime of violating a
protective order if the person "knowingly" commits an act (or
attempts to commit an act) that violates the protective order.
As explained above, when a statute declares that conduct
is criminal only under certain circumstances, AS 11.81.610(b)(2)
provides that the government must normally prove that the defendant
acted "recklessly" with respect to those circumstances unless the
statute prescribes a different culpable mental state. Here, the
statute in question could be read to require proof that the
defendant acted "knowingly" with respect to the inculpating
circumstance (i.e., the circumstance that the defendant's conduct
violated a domestic violence protective order).
The problem is that the legislature's use of the word
"knowingly" is ambiguous. As explained in the legislative commentary
to AS 11.81.900(a)(1)-(4) [Fn. 10], the culpable mental state of
"knowingly" can apply to conduct (in fact, it is the sole culpable
mental state that applies to conduct), and it can also apply to
circumstances. Thus, there are two potential ways of interpreting
AS 11.81.740(a).
One interpretation is that the word "knowingly" applies
to the defendant's conduct. Under this first interpretation, the
statute would mirror the elements of contempt under common law. The
State would have to prove that Strane knowingly engaged in conduct,
that his conduct violated the terms of the protective order, and
that Strane recklessly disregarded the possibility that his conduct
violated the protective order. That is, the State would have to
prove that Strane was aware of and consciously disregarded a
substantial and unjustifiable risk that his conduct violated the
court order. [Fn. 11] Strane could assert a defense of mistake of
fact (mistake concerning the requirements of the court order), but
this mistake would have to be reasonable.
On the other hand, the legislature might have intended the
word "knowingly" to apply to the fact that the defendant's conduct
(or attempted conduct) violated the terms of the protective order.
Under this second interpretation, the State would again have to
prove that Strane knowingly engaged in conduct (since "knowingly"
is the only culpable mental state that applies to conduct), and that
Strane's conduct violated the terms of the protective order. But
instead of merely proving that Strane acted "recklessly" with respect
to the circumstance that his conduct violated the court order, the
State would have to prove that Strane "knowingly" disregarded the
fact that his conduct violated the protective order. That is, the
State would have to prove that Strane knew that his conduct violated
the court order or, in the alternative, (1) that Strane was aware
of a substantial probability that his conduct violated the court
order and (2) that he did not actually believe that his conduct was
permitted by the court order. [Fn. 12]
In practical terms, these differing interpretations of the
statute lead to two major differences in the way the criminal charge
would be prosecuted and defended.
The first difference concerns the defendant's level of
subjective awareness that their conduct might violate the terms of
the protective order. If the culpable mental state is "recklessly",
the State would have to prove only that the defendant consciously
disregarded a substantial and unjustifiable risk that their conduct
violated the protective order. But if the culpable mental state is
"knowingly", the State would have to prove that the defendant knew
that their conduct violated the protective order or, at least, that
the defendant was aware of a substantial probability that their
conduct violated the order.
The second difference concerns the issue of whether a
defendant should be found guilty if they honestly but unreasonably
believed that their conduct was permitted by the protective order.
If the culpable mental state is "recklessly", then the rule announced
in Russell would apply: a defendant could assert a defense of
"mistake of fact" under AS 11.81.620(b), but the defendant's mistake
would have to be reasonable. If the defendant's mistake about the
requirements of the protective order was unreasonable, it would be
no defense. But if the culpable mental state is "knowingly", then
any honest mistake, even an unreasonable mistake, would appear to
be a good defense to the charge.
This follows from the definition of "knowingly" contained
in AS 11.81.900(a)(2). Applying this definition to the crime of
violating a protective order, the State would have to prove either
(1) that the defendant knew that their conduct violated the
protective order or (2) that the defendant was aware of a
substantial probability that their conduct violated the order unless
the defendant actually believed that their conduct was permitted by
the order. Under either theory of prosecution, if the defendant
honestly believed that their conduct was permitted by the
protective order, this honest mistake even if unreasonable would
constitute a defense to the charge.
(We note, however, that, according to the legislative
commentary to AS 11.81.900(a)(2), a defendant's mistake will not be
deemed honest or in good faith if the defendant is guilty of willful
blindness that is, if the defendant "deliberately avoids acquiring
[the pertinent] knowledge by closing his eyes". [Fn. 13])
Which interpretation of the statute did the legislature
intend? The legislative history of AS 11.56.740(a) is scanty. It
is clear that this statute was intended to supersede
AS 11.61.120(a)(6), an earlier provision dealing with violations of
protective orders that was part of the statute on "harassment".
Under this former statute, it was a crime to violate a protective
order if the defendant acted "with intent to harass or annoy another
person".
According to the minutes of a hearing held on February 7,
1991, by the House Committee on Health, Education, and Social
Services, AS 11.56.740(a) was drafted by Representative (now
Lieutenant Governor) Fran Ulmer, and the goal of the statutory
change was to improve legal protection for victims of domestic
violence by eliminating the requirement that the State prove an
intent to harass or annoy:
Representative Fran Ulmer told the
committee that [House Bill 44] came as a result of conversations she
has had ... with individuals in the law enforcement community as
well as people who work in domestic violence shelters around the
state ... who pointed out some shortcomings pertaining to the
protection of victims of domestic violence.
[The bill] includes ... [a] change in the
harassment statute to clarify that if a person knowingly violates
a provision of a domestic violence restraining order, the crime of
harassment is committed. Under current law, arrests and
prosecutions are not being made because it is difficult to prove
that the defendant acted with "intent" to harass.
But these committee minutes are just as ambiguous as the resulting
statute itself on the question facing this court: does the culpable
mental state of "knowingly" apply just to the defendant's conduct,
or does it also apply to the defendant's degree of awareness that
their conduct violated the protective order?
When we turn to the principles of statutory construction,
we find that two common principles of construction point to opposing
conclusions in this case.
The first principle is that "statutes imposing criminal
liability should be construed narrowly. When the scope of a
criminal statute is unclear, courts should normally construe the
statute against the government that is, construe it so as to limit
the scope of criminal liability." [Fn. 14] Here, the question is
which culpable mental state "recklessly" or "knowingly" applies
to the defendant's degree of awareness that their conduct violated
the terms of the protective order. If we follow the principle that
ambiguous criminal statutes should be construed to limit criminal
liability, we should construe AS 11.56.740(a) to require proof that
the defendant acted "knowingly" with respect to this circumstance.
But the second principle is that "statutes in derogation
of the common law should be construed strictly." [Fn. 15] That is,
when courts are presented with a question as to the proper
construction of a statute that potentially modifies the common law,
"the normal rule of interpretation is that such statutes are
construed so as to preserve the pre-existing common law unless the
legislature has clearly indicated its purpose to change that law."
[Fn. 16] Here, as explained above, the common law would require
proof that Strane acted "recklessly" with respect to the circumstance
that his conduct violated the protective order. If we follow the
principle that statutes should not be construed to alter the common
law unless the legislature has clearly indicated their intention to
do so, we should construe AS 11.56.740(a) to require proof that
Strane acted "recklessly" with respect to the circumstance that his
conduct violated the protective order.
But this second principle arguably should not apply to
Strane's case. As explained above, the legislature first codified
this crime (violation of a protective order) as part of the
harassment statute. At that time, the crime required proof of
intent to harass or annoy an unmistakable departure from the
common law. Now, under AS 11.56.740(a), the definition of the crime
is closer to common-law contempt. But the statute's ancestry
indicates that the legislature may still be purposefully departing
from the common-law definition of the crime.
Finally, we note that both potential interpretations of
the statute are reasonable. That is, policy arguments could be made
in favor of each of the competing culpable mental states
"knowingly" or "recklessly".
In these circumstances, we conclude that the principle of
lenity should hold sway. The wording of the statute and its
legislative history are irresolvably ambiguous on the issue before
us. We can not tell which culpable mental state the legislature
intended. In such a case, the law directs us to decide in favor of
individual liberty and against the government.
We therefore hold that the applicable culpable mental
state is "knowingly". To prove Strane guilty of violating a
protective order under AS 11.56.740(a), the State must prove that
Strane acted "knowingly" with respect to the circumstance that his
conduct violated the protective order. That is, the State must
prove that Strane knew that his conduct violated the order or,
alternatively, that Strane was aware of a substantial probability
that his conduct violated the order, unless Strane actually believed
that his conduct did not violate the order.
Despite the wording of the last sentence, we do not intend
to express any opinion on the question of who bears the burden of
production or proof on the issue of Strane's potential actual belief
that his conduct did not violate the court order. With respect to
any inculpatory circumstance, AS 11.81.900(a)(2) declares that a
defendant's awareness of a "substantial probability" of the existence
of that circumstance is enough to establish guilt "unless the
[defendant] actually believes [that the circumstance] does not
exist". (Emphasis added.) As we have explained, this statutory
definition allows a defense for honest but unreasonable mistakes of
fact a broader defense than the reasonable mistake of fact defense
codified in AS 11.81.620(b). But based on the wording of
AS 11.81.900(a)(2), it is conceivable that an honest, unreasonable
mistake is an "exception" to criminal liability meaning that the
defendant would bear the burden of proof on this issue, or at least
the burden of coming forward with evidence. [Fn. 17]
Conclusion
The district court ruled that even if Strane had a good-
faith belief that his conduct did not violate the terms of the
protective order, this belief was irrelevant to his guilt or
innocence under AS 11.56.740(a). We have concluded that this ruling
was error. Even at common law, a reasonable mistake concerning the
requirements of a court order is a potential defense to a charge of
contempt. And, because we have construed AS 11.56.740(a) to require
proof that a defendant acted "knowingly" with regard to the
circumstance that their conduct violated the protective order,
Strane can potentially defend on the basis of a good-faith mistake
concerning the terms of the protective order, even if that mistake
was objectively unreasonable.
Strane was convicted at a bench trial. Normally, when a
defendant is tried without a jury and we later conclude that the
trial judge applied the wrong law in finding the defendant guilty,
we would vacate the defendant's conviction and direct the trial
judge to re-assess the defendant's guilt or innocence under the
proper law. But here, Strane agreed to a bench trial only after the
district court ruled that he could not defend the charge by
asserting a good-faith mistake. Under these circumstances, we
conclude that Strane should be given a choice: either to consent
to a second bench trial, or to rescind his waiver of jury trial and
be tried by jury.
Strane's conviction for violating a protective order is
REVERSED, and this case is remanded to the district court for
further proceedings on the complaint.
FOOTNOTES
Footnote 1:
These seven provisions of AS 18.66.100(c) authorize a court to:
(1) prohibit the respondent from threatening to
commit or committing domestic violence, stalking, or harassment;
(2) prohibit the respondent from telephoning,
contacting, or otherwise communicating directly or indirectly with
the petitioner;
(3) remove and exclude the respondent from the
residence of the petitioner, regardless of [the] ownership of the
residence;
(4) direct the respondent to stay away from the
residence, school, or place of employment of the petitioner or any
specified place frequented by the petitioner or any designated
household member;
(5) prohibit the respondent from entering a propelled
vehicle in the possession of or occupied by the petitioner;
(6) prohibit the respondent from using or possessing
a deadly weapon if the court finds the respondent was in the actual
possession of or used a weapon during the commission of domestic
violence; [and]
(7) direct the respondent to surrender any firearm
owned or possessed by the respondent if the court finds that the
respondent was in the actual possession of or used a firearm during
the commission of the domestic violence[.]
Footnote 2:
"The guiding principle of statutory construction is to ascertain
and implement the intent of the legislature." Sakeagak v. State,
952 P.2d 278, 284 (Alaska App. 1998) (citing Millman v. State, 841
P.2d 190, 194 (Alaska App. 1992)).
Footnote 3:
491 P.2d 759 (Alaska 1971).
Footnote 4:
See Vermont Women's Health Center v. Operation Rescue, 617 A.2d
411, 415-16 (Vt. 1992); People v. Poe, 47 Cal.Rptr. 670, 677-78
(Cal. App. 1965); United States v. Southern Wholesale Grocers'
Ass'n, 207 F. 434, 444 (N.D. Ala. 1913).
Footnote 5:
793 P.2d 1085 (Alaska App. 1990).
Footnote 6:
See id. at 1087.
Footnote 7:
See id.
Footnote 8:
See id.
Footnote 9:
AS 11.81.620(a) declares: "Knowledge, recklessness, or criminal
negligence as to whether conduct constitutes an offense, or
knowledge, recklessness, or criminal negligence 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."
Footnote 10:
See 1978 Senate Journal, Supp. No. 47 (June 12th), pp. 139-142.
Footnote 11:
See AS 11.81.900(a)(3), the definition of "recklessly".
Footnote 12:
See AS 11.81.900(a)(2), the definition of "knowingly".
Footnote 13:
See 1978 Senate Journal, Supp. No. 47 (June 12th), pp. 140-41.
Footnote 14:
State v. ABC Towing, 954 P.2d 575, 579 (Alaska App. 1998).
Footnote 15:
Id.
Footnote 16:
Id.
Footnote 17:
See Trout v. State, 866 P.2d 1323, 1324-25 (Alaska App. 1994).
