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Carpentino v. State (03/01/2002) ap-1790
Carpentino v. State (03/01/2002) ap-1790
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
MICHAEL A. CARPENTINO, )
) Court of Appeals No.
A-7659
Appellant, )
Trial Court No. 4FA-99-283 Cr.
)
v. )
) O P I N
I O N
STATE OF ALASKA, ) Denying
Rehearing
)
Appellee. )
[No. 1790 March 1, 2002]
)
Appeal from the Superior Court, Fourth Judi
cial District, Fairbanks, Ralph R. Beistline,
Judge.
Appearances: Michael D. Dieni, Assistant
Public Defender, and Barbara K. Brink, Public
Defender, Anchorage, for Appellant. Ben M.
Herren, 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.
In Carpentino v. State, 38 P.3d 547 (Alaska App. 2002),
we reversed Carpentinos convictions for sexual abuse of a minor.
We reached this decision because we concluded that the trial
judge mistakenly allowed the State to introduce evidence that
Carpentino had gotten into bed with two other children in the
same family (siblings of the victim named in the indictment).
The State now seeks rehearing. The States argument can
be summed up in one sentence: the State asserts that we
committed plain error when we failed to perceive that the
disputed evidence was admissible under Alaska Evidence Rule
404(b)(4).
The State has never before argued that the disputed
evidence was admissible under Evidence Rule 404(b)(4). The
normal rule is that a party may not raise a new argument in a
petition for rehearing. Thus, it appears that the State is
procedurally estopped from pursuing its claim. But in any event,
as we explain below, the State has failed to show that the
challenged evidence was obviously and incontrovertibly admissible
under Evidence Rule 404(b)(4). We therefore deny the States
petition for rehearing.
Summary of our earlier decision
Carpentino was indicted on seven counts of
sexual abuse of a minor for engaging in various acts of
sexual penetration and sexual contact with an eight-
year-old girl. At Carpentinos trial, the State was
allowed to introduce evidence that Carpentino had once
climbed into bed with the victims older brother; the
boy testified that Carpentino sexually abused him and
then threatened to kill him if he revealed the abuse.
The State was also allowed to introduce evidence that
Carpentino had once spent the night in the same bed
with the victims three-year-old sister. The State did
not allege that Carpentino did this with a sexual
motive; rather, the State argued that Carpentinos
action merely demonstrated his plan or scheme to get
into bed with young children.
The trial judge agreed with the State that
all of this evidence was admissible under Evidence Rule
404(b)(1) to prove Carpentinos scheme or plan. But on
appeal, we concluded that the challenged evidence was
relevant only to prove Carpentinos propensity to commit
sexual abuse and that the evidence was therefore barred
by Evidence Rule 404(b)(1).1
On appeal, the State argued that Evidence
Rule 404(b)(2) provided an alternative rationale for
admitting this evidence. Rule 404(b)(2) applies to
prosecutions for sexual abuse of a minor; it authorizes
the admission of evidence of other acts by the
defendant toward the same or another child ... if the
prior offenses (i) occurred within the 10 years
preceding the date of the offense charged[,] (ii) are
similar to the offense charged[,] and (iii) were
committed upon persons similar to the [victim].
However, as we pointed out in our opinion,
there were two problems with the States theory. First,
although the State alleged that Carpentino had once
shared a bed with the younger of the two siblings, the
State never alleged that Carpentino sexually abused or
intended to sexually abuse this younger child. Without
an allegation of sexual misconduct, Carpentinos alleged
act of getting into bed with the younger child did not
qualify for admission under Evidence Rule 404(b)(2).2
Second, even though the State did allege that
Carpentino had sexually abused the older sibling, the
trial judge found that the older sibling was not
similar to the victim a foundational requirement for
admission under Rule 404(b)(2)(iii). We held that the
trial judge did not abuse his discretion when he
reached this conclusion.3
The States petition for rehearing
The State has now filed a petition for
rehearing in which the State advances a new rationale
for admitting the challenged evidence. The State
argues that its evidence was admissible under Evidence
Rule 404(b)(4), which states that [i]n a prosecution
for a crime involving domestic violence, the trial
judge is authorized to admit evidence of other crimes
involving domestic violence [perpetrated] by the
defendant against the same or another person.
The State has never before advanced this
rationale for admitting the challenged evidence. This,
in itself, is seemingly fatal to the States claim, for
a party can not present new arguments in a petition for
rehearing:
It is elementary law that parties can not
require this court to address claims or
arguments that were not briefed. A partys
failure to brief an issue constitutes an
abandonment of that issue. Appellate Rule
506(a) allows a party to seek rehearing when
this court has overlooked ... or failed to
consider a principle directly controlling the
decision on appeal, or when this court has
overlooked ... [a] material ... proposition
of law. However, Rule 506(a) was not
intended to allow parties to raise new
arguments after they have had a chance to
analyze an appellate courts decision. Rule
506(a) implicitly limits rehearing to legal
principles or propositions that were raised
by the parties in the normal course of the
appeal.
Booth v. State, 903 P.2d 1079, 1090 (Alaska
App. 1995) (citation omitted).
The State recognizes this
procedural problem and attempts to circumvent
it in two ways.
First, the State asserts that its
argument based on Evidence Rule 404(b)(4) is
merely a variation of the argument[s] that
[were] presented in its brief. This is
simply not so. Each subsection of Evidence
Rule 404(b) contains a distinct rule
governing the admission of evidence of a
persons other crimes. Our decision in
Carpentinos appeal illustrates that these
subsections work independently: the State
argued that the challenged evidence was
admissible under subsections (b)(1) and
(b)(2), and we were accordingly obliged to
address each subsection separately (and at
length).
Even if subsection (b)(4) arguably
provides a different basis for admitting the
challenged evidence, a claim based on
subsection (b)(4) is not merely a reworking
or a variant of the States earlier arguments.
It is a new and different argument.
Anticipating that we might take
this view of the matter, the State next asks
us to make an exception to the normal rule
that new arguments can not be raised in a
petition for rehearing. The State argues
that we should relax this rule in the
interest of justice because the challenged
evidence in Carpentinos case is so clearly
admissible under Evidence Rule 404(b)(4).
But again, this is not so.
The States argument requires us to
interpret a statute that has not previously
been construed: the definition of domestic
violence codified in AS 18.66.990(3) and (5).
The State contends that this statutory
definition of domestic violence clearly
includes non-violent acts of sexual abuse.
But as we explain below, the meaning of this
statute is not clear. Moreover, the States
interpretation of this statute presents
difficult legal issues because it tends to
make Evidence Rule 404(b)(2) superfluous.
Finally, even if we accepted the States
interpretation of the statute, the evidence
regarding the victims three-year-old sister
would still not be admissible under Evidence
Rule 404(b)(4) because the State never
alleged that Carpentino engaged in (or
attempted to engage in) sexual misconduct
with the victims sister.
The relationship between Evidence Rule 404(b)(4) and
the definition of domestic violence codified in AS
18.66.990(3)
Evidence Rule 404(b)(4), by its terms,
applies only to prosecution[s] for a crime involving
domestic violence. At first blush, it would seem that
Evidence Rule 404(b)(4) has no application to
Carpentinos case. Carpentino was charged with sexually
abusing an eight-year-old child. Although non-violent
sexual relations with a minor are rightly condemned,
most people would not apply the term domestic violence
to this criminal activity. Rather, domestic violence
is normally understood to mean violent assault
committed by one domestic partner against another.4
But the State points out that Evidence Rule
404(b)(4) uses a special definition of domestic
violence. Rule 404(b)(4) declares that, for purposes
of that rule, domestic violence and crime involving
domestic violence have the meanings specified in
AS 18.66.990. The State argues that, under the
definitions contained in AS 18.66.990, any person who
has sexual relations (even non-violent sexual
relations) with a minor living in the same household
commits an act of domestic violence.
The State is correct that AS 18.66.990
contains a broad definition indeed, a potentially
sweeping definition of domestic violence. According
to subsection (3) of this statute, the terms domestic
violence and crime involving domestic violence include
any of the following crimes (and attempts to commit any
of the following crimes) when committed by one
household member against another:
(A) a crime against the person under AS 11.41;
(B) burglary under AS 11.46.300 11.46.310;
(C) criminal trespass under AS 11.46.320
11.46.330;
(D) arson or criminally negligent burning under
AS 11.46.400 11.46.430;
(E) criminal mischief under AS 11.46.480
11.46.486;
(F) terroristic threatening under AS 11.56.810;
(G) violating a domestic violence order under
AS 11.56.740; or
(H) harassment under AS 11.61.120(a)(2) (4)[.]
This list of crimes obviously encompasses a
broader range of conduct than physical assault upon a
spouse or live-in companion. But this list is only
half of the reason why the legislatures definition of
domestic violence is so sweeping. The other
contributing factor is the legislatures expansive
definition of household member.
Under AS 18.66.990(3), domestic violence
occurs whenever one of the above-listed crimes is
committed by one household member against another. One
might assume that this phrase refers to crimes in which
the perpetrator and the victim share the same
household. But the legislature has defined household
member much more broadly. Under AS 18.66.990(5),
household member includes:
(A) adults or minors who are current or
former spouses;
(B) adults or minors who live together
or who have lived together;
(C) adults or minors who are dating or
who have dated;
(D) adults or minors who are engaged in
or who have engaged in a sexual relationship;
(E) adults or minors who are related to
each other up to the fourth degree of
consanguinity, whether of the whole or half
blood or by adoption, computed under the
rules of civil law;
(F) adults or minors who are related or
formerly related by marriage;
(G) persons who have a child of the
relationship; and
(H) minor children of a person in a
relationship that is described in (A)-(G) of
this paragraph[.]
Thus, under subsection (E), the term
household member includes ones first cousins
and great-aunts and uncles, no matter where
they reside. Under subsections (C) and (H)
(in combination), household member also
includes the children of a high school or
college sweetheart that one has not seen or
thought of in thirty years.
Potential difficulties posed by the statutory
definition of domestic violence
The apparently expansive scope of crime
involving domestic violence leads to some strange
results.
For example, if an elderly uncle comes to
visit his favorite nephew and, while lighting his pipe,
recklessly scorches a table cloth or a chair, the old
man has seemingly just committed an act of domestic
violence as defined in AS 18.66.990(3). That is, the
uncle has committed the listed offense of criminally
negligent burning under AS 11.46.430 (negligently
damaging the property of another by fire), and the
victim is related to the perpetrator within the fourth
degree of consanguinity thus qualifying them as
household members under AS 18.66.990(5)(E).
Similarly, if a group of former college
roommates decide to hold a twenty-year reunion at one
of their homes, and if one of the visiting former
roommates gets drunk and recklessly jams his friends CD
player while trying to insert a CD into it, this
roommate has seemingly just committed an act of
domestic violence. The intoxicated roommate has
committed the listed offense of fourth-degree criminal
mischief under AS 11.46.486(a)(1) (tampering with the
property of another with reckless disregard for the
risk of harm or loss), and all of the former college
roommates are household members under
AS 18.66.990(5)(B).
Because the statutory definition of domestic
violence apparently leads to these counter-intuitive
results, we conclude that the meaning of this statute
is not as clear as the State would have it. Rather,
the interpretation of AS 18.66.990(3) presents
difficulties. And because Evidence Rule 404(b)(4)
expressly incorporates this statutory definition of
domestic violence, the proper scope of Evidence Rule
404(b)(4) is likewise subject to potential dispute. In
other words, the meaning of Evidence Rule 404(b)(4) is
not plain.
There is yet another problem with the States
interpretation of Evidence Rule 404(b)(4). If the
statutory definition of domestic violence is taken at
face value and applied to Evidence Rule 404(b)(4) as
the State suggests, then subsection (b)(4) would
seemingly make Evidence Rule 404(b)(2) obsolete in
prosecutions for sexual abuse of a minor.
Evidence Rule 404(b)(2) applies to
prosecution[s] ... involving ... sexual abuse of a
minor. It authorizes the admission of evidence of
other acts by the defendant toward the same or another
child, but only if the proposed evidence meets the
three foundational criteria set forth in subsections
(i), (ii), and (iii) that the prior offenses
(i) occurred within the 10 years preceding the date of
the offense charged[,] (ii) are similar to the offense
charged[,] and (iii) were committed upon persons
similar to the [victim].
But under the States interpretation of
Evidence Rule 404(b)(4), evidence of the defendants
sexual abuse of other children would be admissible
without regard to whether the State proved the three
foundational criteria set forth in subsection (b)(2).
This follows because, under the States interpretation
of AS 18.66.990(3), any prosecution for sexual abuse of
a minor would be a prosecution for a crime involving
domestic violence, and any act of sexual abuse of a
minor would constitute a crime involving domestic
violence.
Sexual abuse of a minor (in any degree) is a
crime against the person under AS 11.41, thus
satisfying the requirement of AS 18.66.990(3)(A). And,
seemingly, sexual abuse of a minor will invariably be
committed by one household member against another
because, under AS 18.66.990(5)(D), the definition of
household member includes not only adults and minors
who live in the same household but also adults or
minors who are engaged in or who have engaged in a
sexual relationship. In other words, even when the
perpetrator and the victim have never lived together,
sexual abuse of a minor seemingly will (by definition)
invariably constitute domestic violence. Thus, under
the States interpretation, evidence of a defendants
sexual abuse of another child will always be admissible
under Evidence Rule 404(b)(4) even though the State can
not prove the foundational facts that are required to
make this same evidence admissible under Evidence Rule
404(b)(2).
Such an interpretation of Evidence Rule
404(b)(4) violates one of the primary rules of
statutory construction: that a court should assume
that the legislature did not enact redundant or useless
statutes.5 As the Alaska Supreme Court has declared,
One of the prime directives of statutory construction
is to avoid interpretations that render parts of a
statute inoperative or superfluous, void or
insignificant.6 The States interpretation of Evidence
Rule 404(b)(4) would seemingly inflict this fate on
Evidence Rule 404(b)(2).
For these reasons, we reject the States
invitation to relax the normal rule that new
contentions can not be raised in a petition for
rehearing. Even assuming that we would relax this rule
when faced with obvious error and manifest injustice,
the State has shown neither obvious error nor manifest
injustice here. The States request for relaxation of
the rule hinges on its underlying assertion that the
challenged evidence in Carpentinos case was clearly
admissible, beyond any argument, under Evidence Rule
404(b)(4). As we have explained at length, that is not
the case.
Even under the States interpretation of Rule 404(b)(4),
the States evidence regarding the three-year-old sister
would not be admissible
There is one more problem with the States
assertion of plain error. Even if we accepted the
States interpretation of domestic violence, the States
evidence that Carpentino once shared a bed with the
victims three-year-old sister would still not be
admissible under Evidence Rule 404(b)(4). The State
never alleged that Carpentino engaged in (or attempted
to engage in) sexual misconduct with the sister. Thus,
even under the States interpretation of domestic
violence, the State never alleged that Carpentino
engaged in a crime involving domestic violence with the
three-year-old. The State thus failed to establish the
necessary foundation for admitting this evidence under
Rule 404(b)(4).
Conclusion
The State acknowledges that the law normally
precludes a party from raising a new argument in a
petition for rehearing. Nevertheless, the State
asserts that the disputed evidence in Carpentinos case
is incontrovertibly admissible under Evidence Rule
404(b)(4), and we should therefore relax the normal
rule in order to prevent manifest injustice.
As we have explained here, half of the States
evidence (the evidence relating to the victims three-
year-old sister) is incontrovertibly inadmissible under
Rule 404(b)(4), even as the State has interpreted it.
Moreover, the States interpretation of Rule 404(b)(4)
presents serious legal difficulties. In short, the
States evidence was not clearly and incontrovertibly
admissible under Evidence Rule 404(b)(4).
Because the State has failed to show that our
earlier decision was manifest error, we need not decide
whether we should recognize an exception to the normal
rule that new issues can not be raised in a petition
for rehearing.
The States petition for rehearing is DENIED.
_______________________________
1 See Carpentino, 38 P.3d at 550-52.
2 See id. at 553.
3 See id. at 553-54.
4 See, e.g., the Introduction section to Deborah M. Goelman
and Roberta L. Valentes When Will They Ever Learn?
Educating to End Domestic Violence (American Bar Association
Commission on Domestic Violence, 1997):
Domestic violence is a societal problem of epidemic
proportions. Experts estimate that 2 to 4 million
American women are battered every year, and that
between 3.3 and 10 million children witness violence in
their homes. Battering affects families across America
in all socioeconomic, racial and ethnic groups. As
information about the extent and impact of domestic
violence emerges, it has been identified as a criminal
justice issue, a public health crisis, and a costly
drain on economic productivity. ... Legal
professionals who are uninformed about domestic
violence issues may endanger the safety of victims or
contribute to a society which has historically condoned
the abuse of intimate partners.
5 Wurthmann v. State, 27 P.3d 762, 772 (Alaska App. 2001)
(Mannheimer, J., dissenting).
6 Champion v. State, 908 P.2d 454, 464 (Alaska App. 1995)
(quoting 22,757 Square Feet, more or less v. State, 799 P.2d
777, 779 (Alaska 1990)).
