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Wolfe v State (05/11/2001) ap-1740
Wolfe v State (05/11/2001) ap-1740
NOTICE
The text of this opinion can be corrected before the
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:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
STEVEN ALBERT WOLFE, )
) Court of Appeals No. A-7403
Appellant, ) Trial Court No. 3HO-97-515 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1740 May 11, 2001]
)
Appeal from the District Court, Third Judicial
District, Homer, Harold M. Brown, Judge.
Appearances: Walter Share, Seattle, and Martin
Zeller, Friedman & Brothers, Homer, for
Appellant. Mary S. Pieper, Assistant District Attorney, Dwayne
McConnell, District Attorney, Kenai, and Bruce M. Botelho, Attorney
General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
MANNHEIMER, Judge.
Steven Albert Wolfe, a high school teacher, was convicted
of disorderly conduct for shaking a student and pushing him up
against a desk. Wolfe appeals his conviction, arguing (1) that
there was insufficient evidence to support the jury's verdict, (2)
that the jury was misinstructed on an element of the offense, (3)
that the trial judge refused to allow Wolfe to present important
exculpatory evidence, and (4) that the disorderly conduct statute
is unconstitutional because it penalizes a teacher's justifiable use
of force to maintain school discipline. Wolfe also argues that he
never should have been brought to trial in the first place because
the State violated his right to a speedy trial under Criminal Rule
45. For the reasons explained here, we reject each of Wolfe's
contentions, and we therefore affirm his conviction.
Facts of the case
On November 5, 1997, Wolfe was sitting alone in his
classroom during a break between classes. Two students, Jason
Trygstad and Tisha Kuhns, entered the classroom. They were engaging
in horseplay: Trygstad was hitting Kuhns's arm and head-butting
Kuhns's shoulder or torso. At some point, Kuhns exclaimed, "Ouch!
That hurts!" Wolfe directed Trygstad to leave Kuhns alone. When
Trygstad did not immediately stop, Wolfe repeated this command. In
response, Trygstad stopped rough-housing with Kuhns and turned to
leave. As he walked out of Wolfe's classroom, Trygstad said,
laughingly, "Yeah, leave her alone."
Wolfe did not like the tone of Trygstad's remark; he took
it to be disrespectful. Wolfe therefore directed Trygstad to come
back into the classroom. When Trygstad re-entered the room, Wolfe
strode across the room, grabbed Trygstad by the upper arm, and shook
him. According to Trygstad, Wolfe exclaimed, "Young man, young man,
that really pisses me off." Wolfe then swung Trygstad around, pushed
him up against a desk, and pinned him down on top of the desk.
Wolfe pressed Trygstad against the desk so hard that the desk folded
up. Somewhere between ten and thirty seconds later, Wolfe released
Trygstad. After school was recessed for the day, Wolfe contacted
Trygstad and apologized for what he had done. Later, Wolfe met with
Trygstad's father and two school administrators. Wolfe again
apologized for his behavior.
Following a police investigation, Wolfe was charged with
three misdemeanors: fourth-degree assault, harassment, and
disorderly conduct under AS 11.61.110(a)(6) "recklessly creat[ing]
a hazardous condition for others by an act which has no legal
justification or excuse". A jury acquitted Wolfe of assault and
harassment but convicted him of disorderly conduct.
Wolfe's speedy trial claim
Wolfe contends that all charges against him should have
been dismissed because he was not brought to trial within the time
limits of Alaska's speedy trial rule, Criminal Rule 45. This
contention arises out of the trial court's response to Wolfe's
motion to continue the trial.
On April 8, 1998, Wolfe filed a motion to delay his trial
until after May 14th because his attorney would be out of the
country until then. Eight days later (on April 16th), Superior
Court Judge Harold M. Brown granted Wolfe's request and rescheduled
the trial for June 23rd. Wolfe did not object to this trial date
until he arrived in court on the day of trial, ten weeks later.
Wolfe then claimed that Rule 45 had already expired. He renews that
claim on appeal.
Wolfe acknowledges that, under Rule 45(d)(2), the speedy
trial "clock" is tolled during "[any] period of delay resulting from
an adjournment or continuance granted at the timely request" of the
defense. But Wolfe argues that he only asked for a continuance
until May 14th. Wolfe contends that, because Judge Brown responded
to his request by scheduling the trial for June 23rd, the additional
40 days must be charged to the State, not to Wolfe.
Our examination of the record shows that Wolfe's motion
to continue the trial was much more open-ended than he acknowledges.
Although Wolfe's motion stated that May 14th would be a preferred
trial date, his motion also stated that, "under any conditions,
[defense] counsel requests that trial and all other matters
pertaining to this case be continued until after May 14, 1998, as
[counsel] will be out of the country until that time". (Emphasis
added)
Thus, the record does not support Wolfe's contention that
he never agreed to any date after May 14th. By filing an open-ended
request, and by never indicating that he refused to consent to the
new trial date set by the court, Wolfe effectively consented to the
June 23rd trial date. The Alaska Supreme Court faced a similar
issue in Henson v. State. [Fn. 1] In Henson, the defendant
originally requested a continuance of "about two weeks", but the
defense attorney "clearly indicated that a longer period of delay
... was acceptable." [Fn. 2] The supreme court held that, under
these circumstances, the entire period up through the rescheduled
trial date (not just the suggested two weeks) should be excluded
under Rule 45(d)(2).
There is a second reason for rejecting Wolfe's Rule 45
argument. Rule 45(d)(2) excludes all delay "resulting from" a
defense request for a continuance of trial. The venue for Wolfe's
trial was Homer. Wolfe's trial judge, Judge Brown, resided in Kenai
and made only monthly trips to Homer and he was unavailable to
visit Homer during the normally scheduled week in May. As Judge
Brown explained to the defense attorney:
The Court: When you file a motion for
continuance, ... the court has to re-calendar
the case. And you may be available at a
certain time, but that does not mean that [the
parties] and other counsel are. So any time we
depart from [the date] that the case was
originally scheduled, you run into
complications.
For example, I only come down to Homer
once a month. ... Now, I couldn't have tried
this case in May because I attended my
daughter's graduation back at Bowdoin College
in May. Now, that's not your fault, but it's
not my fault either. ... [T]hat's the reason
why [this case] couldn't have been [scheduled
for the] May calendar [in Homer] and it
sounds like [that date would] have been a
little close, anyway, from your point of view.
So, we put [this case] down on the June
calendar, and here we are. And I don't think
there is a Rule 45 problem under the
circumstances.
We agree.
For these two reasons, we conclude that Wolfe's right to
a speedy trial under Criminal Rule 45 was not violated.
Sufficiency of the evidence to support the jury's verdict
Wolfe contends that the evidence presented at his trial
was not sufficient to support his conviction for disorderly conduct.
To resolve this claim, we must assess the evidence in the light most
favorable to upholding the verdict and then decide whether, viewing
the evidence in this light, reasonable jurors could have been
convinced of Wolfe's guilt beyond a reasonable doubt. [Fn. 3]
Wolfe was charged with disorderly conduct under subsection
(a)(6) of the statute "recklessly creat[ing] a hazardous condition
for others by an act that has no legal justification or excuse".
Wolfe argues that, even if he grabbed Trygstad, shook him, and
pinned him to the desk, these actions never placed Trygstad in
danger of physical injury, and thus Wolfe never created a "hazardous
condition" for Trygstad.
Alternatively, Wolfe points out that even if Trygstad was
conceivably placed in physical danger by Wolfe's conduct (so that
Wolfe's actions created a "hazardous condition"), the State was also
required to prove that Wolfe acted "recklessly" with respect to this
danger that Wolfe "[was] aware of and consciously disregard[ed]
a substantial and unjustifiable risk" that his actions would create
a hazardous condition for Trygstad. [Fn. 4] Wolfe argues that any
possibility of physical harm created by his actions was so slight
or so remote that, even assuming he was aware of a slight or remote
risk of harm to Trygstad, the State failed to prove that his
disregard of this slight or remote possibility "constitute[d] a gross
deviation from the standard of conduct that a reasonable person
would observe in the [same] situation". [Fn. 5]
Whether a defendant's actions created a risk of physical
injury to others, and whether the defendant recklessly disregarded
that risk, are questions that ultimately depend on the facts of the
particular case. Here, the evidence showed that Wolfe held
Trygstad, shook him, and then pinned him against the top of a desk
so hard that the desk folded up. Wolfe, who was both a sports coach
and a wrestler himself, weighed 210 pounds and was a strong man.
From these facts, reasonable jurors could have concluded that
Wolfe's actions posed a risk of physical harm to Trygstad, that
Wolfe was aware of this risk, and that, under the circumstances,
Wolfe's disregard of this risk was a substantial and unjustifiable
departure from the standard of conduct that a reasonable person
would have observed in that situation. The evidence was therefore
sufficient to support the jury's decision to convict Wolfe of
disorderly conduct.
The jury instruction defining "hazardous condition"
The offense of disorderly conduct under AS 11.61.110(a)(6)
requires proof that the defendant's conduct created a "hazardous
condition". The term "hazardous condition" is not defined in Title
11, but Judge Brown concluded that the jurors needed an explanation
of this term. He instructed the jury that a "hazardous condition"
is a condition "which is dangerous or involves the risk of injury
or damage".
Wolfe's attorney did not object to this instruction at the
time, but Wolfe now claims that this instruction constituted plain
error that it was manifestly wrong, so wrong that any competent
judge or attorney should have recognized the error and corrected it.
[Fn. 6] The error in the instruction, Wolfe asserts, is that it
defines "hazardous" too broadly.
Wolfe argues that the offense of disorderly conduct
requires proof, not just of a "risk of injury", but of a substantial
and imminent risk of injury. Wolfe also argues that "hazardous
condition" includes only risks to people that a risk of "damage"
to property (for instance, a risk that the desk might have been
damaged) is not sufficient to establish the offense of disorderly
conduct.
Wolfe cites no legal authority for these propositions.
He refers us to the definition of "hazardous substance" found in AS
46.03.826 (in the chapter of the statutes dealing with the
prevention and abatement of environmental hazards), but he offers
no reason to believe that the legislature intended the same
definition of "hazardous" to govern the definition of disorderly
conduct.
Wolfe's failure to furnish legal authority for his
interpretation of the statutory language is, by itself, essentially
fatal to his argument that the trial judge's instruction was "plain
error". As explained above, a litigant who asserts plain error must
show that the error was so plain that any competent judge or
attorney would have seen it. Judge Brown's instruction in this case
tracks the dictionary definition of "hazardous". [Fn. 7] Therefore,
in the absence of some reason to believe that the legislature was
not using this word in its normal sense, we must reject Wolfe's
contention of "plain error".
We also reject Wolfe's argument for a second reason. A
litigant who alleges "plain error" must show that the error
manifestly prejudiced the fairness of the proceedings. [Fn.
8] Here, we are convinced that the arguable flaws in the jury
instruction did not affect the jury's decision.
As noted above, Wolfe contends that the definition of
"hazardous condition" should not have included a reference to "damage"
because the jury might have believed that a risk of damage to
property (as opposed to persons) was sufficient to establish the
actus reus of disorderly conduct. From the legislative commentary
to AS 11.61.110(a)(6), it does appear that the legislature was
thinking only of potential injury to persons when it enacted this
subsection of the disorderly conduct statute. [Fn. 9] However, this
limitation is written into the statute itself. The offense is
committed when a defendant "recklessly creates a hazardous condition
for others ...".
Wolfe's jury was given a definition of the offense that
tracked this statutory language. Thus, even if there was a
potential ambiguity in the instruction on "hazardous condition", the
instructions as a whole correctly limited the offense to conduct
that created a risk of harm to people. [Fn. 10] Moreover, we note
that the final arguments of the parties focused on the potential
risk of harm to Trygstad; neither attorney suggested that the
offense might be proved by the potential risk of damage to the desk.
[Fn. 11]
Wolfe's second attack on the jury instruction defining
"hazardous condition" is that it did not include the limitation that
the risk of harm to persons must be substantial and imminent. As
explained above, Wolfe has failed to present any authority to
support a conclusion that the legislature intended the phrase to be
limited in this fashion. But even assuming that the legislature did
intend to limit the scope of disorderly conduct to the creation of
a substantial and imminent risk to others, we conclude that any
arguable defect in the challenged instruction had no effect on the
jury's decision.
With regard to Wolfe's argument that "hazardous condition"
must be confined to substantial risks, this concept was conveyed to
the jury by the instructions dealing with the State's obligation to
prove that Wolfe acted "recklessly" in creating the hazardous
condition. As defined in AS 11.81.900(a)(3), a person acts
"recklessly" with regard to a result (here, the creation of a
hazardous condition) if the person "is aware of and consciously
disregards a substantial and unjustifiable risk that the result will
occur". The statute then defines "substantial and unjustifiable risk"
as "[a] risk ... of such a nature and degree that disregard of it
constitutes a gross deviation from the standard of conduct that a
reasonable person would observe in the situation".
Wolfe's jury was instructed on the meaning of "recklessly"
in accordance with the statute, and Wolfe's attorney focused on the
elements of this statutory definition during his summation to the
jury. He told the jurors:
Defense Attorney: Now, [the law] requires
[that,] at the time [Mr. Wolfe] was acting, ...
he must have been aware of the risk. He had to
be aware of the risk. It's in the
instructions. You'll see that when you come to
"recklessly". Mr. Wolfe had to be aware of the
risk he was taking. ... [And] that risk had to
be really substantial. It had to be
substantial. This is what the State has to
prove beyond a reasonable doubt. This is their
burden. The risk also has to be unjustified.
[This is] not our burden. ... That is the
State's burden. And [the State must prove]
that his behavior [was] a gross deviation [from
the standard of reasonable conduct]. Not just
a minor one, not just a moderate one, but a
gross one.
Given the jury instruction on "recklessly", and given the
handling of this issue during final argument, we conclude that the
jury understood that they should not convict Wolfe of disorderly
conduct unless they were convinced that his actions created a
substantial risk of harm to Trygstad, a risk so substantial that
Wolfe's disregard of it constituted a gross departure from a
reasonable standard of care.
As to Wolfe's argument that "hazardous condition" must be
confined to conditions that pose a risk of imminent harm, we note
that, under the circumstances of this case (Wolfe's act of shaking
a person and pinning that person down on a desk), any risk of harm
was obviously a risk of imminent harm.
For these reasons, we reject Wolfe's contention that the
jury instruction defining "hazardous condition" was plain error.
The claim that the disorderly conduct statute is overbroad
because it penalizes justified behavior, and that is
unconstitutionally vague because the statute contains no definition
of "hazardous condition"
Wolfe challenges the constitutionality of the disorderly
conduct statute in particular, the constitutionality of the
subsection that he was charged with violating, AS 11.61.110(a)(6).
Wolfe contends that this statute allows the State to prosecute and
punish teachers for using appropriate force to maintain discipline
and protect students and staff.
The very wording of the challenged provision rebuts
Wolfe's claim. In order to prove Wolfe guilty of disorderly conduct
under subsection (a)(6), the State had to prove that Wolfe
"recklessly creat[ed] a hazardous condition for others by an act that
ha[d] no legal justification or excuse". Wolfe's jury was instructed
that if they had a reasonable doubt concerning any element of the
offense, they were obliged to acquit Wolfe. With particular regard
to the possibility that Wolfe's role as a school teacher may have
justified his conduct, the jury was further instructed, in words
drawn directly from AS 11.81.430(a)(2), that
[t]he use of force upon another person ... is
justified when and to the extent reasonably necessary and
appropriate to maintain order, or when the use of force is
consistent with the welfare of the students. A teacher may, if
authorized by school regulations and the principal of the school,
use reasonable and appropriate non-deadly force upon a student. ...
Unless the State has proven beyond a reasonable doubt [that] the
defendant did not act in these circumstances, you should find the
defendant not guilty.
We therefore reject Wolfe's contention that the disorderly
conduct statute punishes innocent or justified behavior.
We also conclude that there is no possibility that the
jury convicted Wolfe for engaging in conduct that was justified by
his role or his duties as a school teacher. We note that, during
their summations, both attorneys explicitly addressed this issue.
The prosecutor contended that Wolfe had assaulted Trygstad
"for no good reason" that Wolfe's use of force was not justified
by any purported need to maintain school discipline or to protect
Kuhns from sexual harassment. The prosecutor conceded that teachers
have a duty "to maintain order absolutely". But the prosecutor
argued that Wolfe's reaction to the situation was completely
inappropriate that Wolfe "got angry ... [and] lost his cool" when
Trygstad "didn't react fast enough".
The defense attorney, on the other hand, argued that the
situation appeared serious from Wolfe's point of view that it
appeared as if Trygstad was harassing or assaulting a female
student, and then, when Wolfe directed Trygstad to stop, the boy
seemingly gave Wolfe an impudent reply. Under these circumstances,
the defense attorney argued, Wolfe's reaction either was justified
or was so close to being justified that the State could not prove
that Wolfe acted recklessly.
Thus, the jury was fully and correctly instructed on the
issue of justification, and the issue was placed squarely in front
of them by the summations of the parties. The jury weighed the
evidence and concluded that the State had shown, beyond a reasonable
doubt, that Wolfe's conduct had not been justified by his role as
a school teacher.
With respect to Wolfe's claim that the phrase "hazardous
condition" is unconstitutionally vague, we note that "hazardous" is
a word of common usage meaning "dangerous" or "perilous". [Fn. 12]
Moreover, the disorderly conduct statute does not use the phrase
"hazardous condition" in isolation; rather, the statute requires
proof that the defendant created a "hazardous condition to others"
that is, a condition hazardous to other people.
Taking our lead from the dictionary and from the
legislative commentary to the statute (quoted in footnote 9 above),
we construe the phrase "hazardous condition to others" as meaning
"a condition posing a risk to the health or physical safety of
others". Construed in this fashion, the statute is constitutional.
Moreover, as we explained above (when we rejected Wolfe's argument
that the trial judge's definition of "hazardous condition" amounted
to plain error), this interpretation of the statute was conveyed to
the jury through the trial court's instructions and the arguments
of the attorneys.
The claim that Wolfe was prevented from presenting
exculpatory evidence concerning the school district's policy on
sexual harassment
At trial, Wolfe's attorney wished to present the testimony
of Keith Gephardt, the assistant principal of Homer High School.
The defense attorney wanted to question Gephardt concerning the
school district's policy on sexual harassment. According to the
defense offer of proof, Gephardt's testimony concerning the school
district's policy would tend to show that Wolfe was justified in
"reprimand[ing]" Trygstad for a perceived act of sexual harassment.
However, when the defense attorney conducted a voir dire
examination of Gephardt (outside the presence of the jury) and
showed Gephardt a copy of the Kenai Peninsula Borough School
District's policy on sexual harassment, Gephardt disclaimed
familiarity with the precise provisions of the policy. He stated
that he was not sure whether he had ever seen the policy before.
Gephardt added, however, that he was reasonably certain that the
school district followed the same policy as Homer High School the
policy that sexual harassment was not tolerated.
Gephardt was ultimately asked to read certain passages
from the printed policy. These passages confirmed that the school
district has taken a stand against sexual harassment. According to
the policy, "the Board shall not tolerate the sexual harassment of
any student by any other student, or [by] any district employee",
and "[a]ny student or any employee who is found guilty of sexual
harassment shall be subject to disciplinary actions."
However, the policy apparently does not deal with a school
teacher's right or obligation to use force upon students or
employees to prevent or stop sexual harassment. At least, there was
no discussion of such a provision during Gephardt's voir dire
examination.
Based on the results of this voir dire, Judge Brown
concluded that Wolfe had failed to show that the school district
policy was particularly relevant to the issues being litigated at
trial. Judge Brown noted that the policy merely stated the obvious:
"[I]n this day and age, there isn't anybody in this courtroom
including the ladies and gentlemen on the jury who doesn't know
that sexual harassment is not going to be tolerated." The judge
further noted that the policy was silent on the point for which
Wolfe was offering it. That is, the policy did not specify or
describe a teacher's potential right or duty to use force to
prevent or interrupt sexual harassment. Judge Brown found that the
policy did not address "what teachers are expected to do, or how they
are expected to do it, with regards to preventing sexual harassment."
The judge therefore ruled that evidence of the contents of the
policy would be more confusing than probative, and he refused to
allow Wolfe to present Gephardt's testimony concerning the policy.
On appeal, Wolfe asserts that Judge Brown refused to allow
him to present evidence of a school district policy "[that] directed
Mr. Wolfe to prevent and discipline [students] for sexual
harassment". This is a mischaracterization of the record. As just
explained, the policy (or, at least, the portion of the policy that
appears in the record) does not direct school teachers to do
anything. Rather, the policy states that students or employees "who
[are] found guilty of sexual harassment shall be subject to
disciplinary actions." (Emphasis added) As Judge Brown correctly
noted, this language does not direct or authorize teachers to
forcibly intervene when they believe that sexual harassment is
occurring. Rather, this language describes the consequences that
may ensue when, following an adjudicatory process, a student or
employee is found to have committed sexual harassment.
Based on this record, Judge Brown could properly conclude
that the school district policy on sexual harassment did not add
anything of appreciable value to the jury's consideration of the
issue being litigated: whether Wolfe's use of force on Trygstad
might be justified by Wolfe's duty to maintain school discipline and
to protect students from assault or sexual harassment. Judge Brown
therefore did not abuse his discretion when he declined to allow
Wolfe's attorney to call Assistant Principal Gephardt to the stand
to describe this policy.
Conclusion
For the reasons explained here, the judgement of the
district court is AFFIRMED.
FOOTNOTES
Footnote 1:
576 P.2d 1352 (Alaska 1978).
Footnote 2:
Id. at 1356.
Footnote 3:
See Dorman v. State, 622 P.2d 448, 453 (Alaska 1981);
Silvernail v. State, 777 P.2d 1169, 1172 (Alaska App. 1989).
Footnote 4:
AS 11.81.900(a)(3) (defining "recklessly").
Footnote 5:
Id. (defining "substantial and unjustifiable risk").
Footnote 6:
See Massey v. State, 771 P.2d 448, 453 (Alaska App. 1989);
Carman v. State, 658 P.2d 131, 137 (Alaska App. 1983); Marrone v.
State, 653 P.2d 672, 675-681 (Alaska App. 1982).
Footnote 7:
See Webster's New World Dictionary of American English (Third
College Edition, 1988), p. 620.
Footnote 8:
See Potts v. State, 712 P.2d 385, 394 n.11 (Alaska App. 1985);
Marrone v. State, 653 P.2d 672, 675-681 (Alaska App. 1982).
Footnote 9:
That commentary, which is found in 1978 Senate Journal, Supp.
No. 47 (June 12), p. 96, reads:
Paragraph (6) prohibits the reckless creation of "a
hazardous condition for others by an act which has no legal
justification or excuse." An example of the conduct covered under
this provision would include shouting "fire" in a crowded auditorium.
Footnote 10:
See Wilson v. State, 967 P.2d 98, 102 (Alaska App. 1998) ("the
ultimate question is whether, taking the jury instructions as a
whole," the jury was correctly apprised of the law governing their
decision).
Footnote 11:
See Norris v. State, 857 P.2d 349, 355 (Alaska App. 1993);
O'Brannon v. State, 812 P.2d 222, 229 (Alaska App. 1991) (the
parties' arguments can cure defects, ambiguities, or omissions in
the jury instructions).
Footnote 12:
See Webster's New World Dictionary of American English (Third
College Edition, 1988), p. 620.
