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Mahan v. State (7/26/2002) ap-1812
Mahan v. State (7/26/2002) ap-1812
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
MIRIAM M. MAHAN, )
) Court of Appeals No.
A-7662
Appellant, )
Trial Court No. 3KN-99-1655 Cr.
)
v. )
) O P I N I
O N
STATE OF ALASKA, )
)
Appellee. )
[No. 1812 July 26, 2002]
)
Appeal from the District Court, Third Judi
cial District, Kenai, Jonathan H. Link,
Judge, and David S. Landry, Magistrate.
Appearances: Carol A. Brenckle, Kenai, for
Appellant. John W. Wolfe, 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.
Miriam M. Mahan kept over 130 animals on her property,
including 9 horses, 2 llamas, 10 cows, 18 sheep, 1 goat, 34 pigs,
21 dogs, 10 cats, 18 assorted birds, and a number of rabbits. At
the request of some of Mahans relatives, a private organization
called Alaska Equine Rescue entered Mahans property to check on
the condition of these animals. They found that the animals were
in ill-health and were not adequately cared for. With the aid of
the Alaska State Troopers, Equine Rescue removed the animals from
Mahans property and found foster homes for them.
Mahan was ultimately convicted of one consolidated
count of cruelty to animals, AS 11.61.140(a)(1)-(2), for
neglecting these animals. She now appeals her conviction and
certain aspects of her sentence.
Mahan raises a number of claims on appeal. For the
reasons explained here, we conclude that none of these claims has
merit, and we therefore affirm Mahans conviction and sentence.
Mahans request for a writ of assistance
After Alaska Equine Rescue rescued the
animals from Mahans property, it placed them with
various foster families. When Mahans attorney prepared
for trial, she arranged through Equine Rescue to visit
Mahans animals and the families caring for them.
However, the defense attorneys initial visits did not
go well, and the foster families (apparently through
Equine Rescue) resisted further contacts. Ultimately,
Equine Rescue agreed to further visits, but only if the
defense attorney refrained from pressuring the foster
families to answer a questionnaire that the defense
attorney had prepared.
At this point, Mahans attorney asked the
district court to issue a writ of assistance a court
order directing the state troopers to accompany the
defense attorney on her visits to the foster families.
The defense attorney conceded that the foster families
were willing to allow her to visit their property and
to photograph Mahans animals, but the defense attorney
claimed that the foster families were unwilling to
answer her questionnaire. Thus, the defense attorney
told the court, she needed police assistance to get the
foster families to answer her questionnaire.
A writ of assistance is a court order
directing law enforcement officers to assist a litigant
in enforcing a judgement or decree. Blacks Law
Dictionary defines writ of assistance as limited to
enforcement of decrees adjudicating title to real
property1, but Alaska cases use the term in a broader
sense. For example, one Alaska case speaks of a writ
of assistance to aid a trustee in supervising and
preventing the removal or destruction of assets that
were the subject of a pre-judgement attachment.2
Several other supreme court decisions refer to writs of
assistance issued to enforce child custody and
visitation decrees3, and one case speaks of a writ of
assistance issued to aid the Division of Family and
Youth Services in entering a home to investigate a
childs welfare.4
But although Alaska cases may use the term
writ of assistance in a broader sense than its
historical origins, the gist of a writ of assistance
remains the same: it is a court order directing law
enforcement officers to assist a person in enforcing a
prior court order when there is reason to believe that
enforcement efforts may be met with forcible
opposition.
Thus, to determine whether Mahans attorney
was entitled to a writ of assistance to help her force
the foster families to answer her questionnaire, the
primary question to ask is whether Mahans attorney was
legally entitled to demand answers to her questionnaire
in the first place. The answer is no. A person has no
legal duty to answer an attorneys questions unless the
questions are posed after the person has been sworn as
a witness at a deposition or court hearing.
If Mahans attorney believed that her client
would be denied a fair trial unless the foster families
were forced to answer the questions in her
questionnaire, she could have asked the district court
to order the deposition of these families under Alaska
Criminal Rule 15(a). But unless and until the court
ordered a deposition and the foster families were
properly subpoenaed to attend that deposition, the
families were under no legal obligation to respond to
the questionnaire and, thus, the defense attorney was
not entitled to police assistance to force or
intimidate the families to answer her questions. We
therefore uphold the district courts denial of Mahans
request for a writ of assistance.
Mahans request for a change of venue
Mahan asked the district court to change the
venue of her trial because of the publicity that her
case had generated locally. The court chose to defer
its decision on this matter until it could assess the
results of jury selection.5 After hearing the voir
dire examinations of many prospective jurors, the
district court denied Mahans motion.
On appeal, Mahan does not give a single
example of the publicity that she complains of. Even
her trial court motion is unsupported by evidence.
Instead, Mahans attorney simply made the assertion that
Mahans case had been discussed in newspaper articles in
the Peninsula Clarion and Anchorage Daily News and that
KTUU-TV ha[d] run numerous stories involving this case
and Equine Rescue. Mahans attorney did not describe
the content or tenor of this media coverage except to
say that Kenai District Attorney Dwayne McConnell [was]
quoted in the Peninsula Clarion article and that
Lieutenant Bowman, [the] Detachment Commander [of the]
Soldotna Post [of the Alaska State Troopers] was
featured in one of the early KTUU-TV broadcasts.
On appeal, Mahan asserts that her jury could
not have been fair because, of the 32 prospective
jurors summoned to court for her case, 16 had been
exposed to pre-trial publicity about the case. But
exposure to pre-trial publicity does not equal bias.
The question is whether the pre-trial publicity
prejudiced these 16 prospective jurors against Mahan to
such an extent that they would be unable to judge her
case fairly. Generally, these 16 people testified that
they had read or heard about the case only once or
twice, near the time when the animals were removed from
Mahans custody.
Moreover, all but one of these 16 prospective
jurors were excused, either for cause or through
peremptory challenges. Even if we accepted Mahans
assertion that these 15 excused jurors were prejudiced
against her as a result of their exposure to pre-trial
publicity, this would not require a change of venue.
As we explained in Cheely v. State, 861 P.2d 1168
(Alaska App. 1993), the question is not how many biased
prospective jurors were identified and excused; rather,
the question is whether there is substantial reason to
doubt the impartiality of the jurors who remained after
the selection process was complete.6
Of the jurors ultimately selected to try
Mahans case, only one had heard or read any pre-trial
publicity about the case. This one juror stated that
she had read about Mahans case in the newspaper, but
she also declared that this newspaper coverage had not
made a strong impression on her and that she had not
formed any opinion about Mahans guilt or innocence.
The trial judge found that this juror could be fair,
and Mahan does not directly challenge this ruling on
appeal.
In short, the record contains no indication
that the people who served as jurors at Mahans trial
were unable to judge the case fairly. We therefore
uphold the district courts denial of Mahans motion for
a change of venue.
Mahans suppression motion
Just before Mahans trial began, Mahans
attorney filed a motion seeking suppression of most of
the States evidence. The defense attorney claimed that
Alaska Equine Rescue and the state troopers had
unlawfully entered her land when they came to inspect
the animals and, later, to retrieve them.
The trial judge, Superior Court Judge
Jonathan H. Link, told the defense attorney that he
would not decide her motion before trial because trial
was scheduled to begin before the State was obliged to
file its response. (Under Alaska Criminal Rule 42(c),
the State had ten days to file its response to Mahans
motion.) Upon hearing that Judge Link would wait ten
days for the State to respond to her motion, the
defense attorney asked the judge if he would base his
decision on the evidence presented at trial. Judge
Link responded that he would do so if it [was]
appropriate.
Mahans trial ended on March 2, 2000. The
State filed its response to Mahans suppression motion
on the following day, March 3rd. But Judge Link never
ruled on Mahans motion, and Mahan never asked the judge
to do so. The parties appeared in court for sentencing
on March 13th, but Mahan did not press Judge Link to
decide the pending suppression motion, nor did she
renew her motion based on the evidence presented at
trial.
To preserve an issue for appeal, an appellant
must obtain an adverse ruling. We have consistently
held that a defendant who chooses to proceed without
demanding a ruling from the trial court waives the
potential claim of error.7 Here, Mahans failure to ask
Judge Link for a ruling on her suppression motion
constitutes a waiver of this claim.
Mahans term of probation
Mahan received a sentence of 1 years
imprisonment, all suspended. She does not challenge
her suspended term of imprisonment, but rather three
other facets of her sentence.
First, Mahan asserts that Judge Link was
clearly mistaken when he placed her on probation for 10
years. Mahan argues that, because she was a first
offender convicted of a misdemeanor, a 5-year term of
probation would have been sufficient to ensure her
rehabilitation and protect the public.
But Judge Link found that Mahans conduct was
among the worst offenses. He declared that it was
beyond argument that these animals were severely abused
over a long period of time. Based on these findings,
and given Mahans failure to explain why she could be
trusted not to neglect animals in the future, we
conclude that Judge Link was not clearly mistaken when
he imposed the 10-year period of probation.
Mahans conditions of probation
Mahan challenges two of her conditions of
probation. Judge Link ordered her not to own (or be
the primary caretaker of) more than one animal during
her term of probation, and he prohibited her from
owning or caring for a horse. Mahans argument of this
point consists of a two-sentence description of these
two conditions. She does not state why she believes
that Judge Link abused his sentencing discretion when
he imposed them.
Given Mahans conduct in this case, these two
conditions of probation are not facially unreasonable.
Mahans failure to offer any argument to the contrary
constitutes a waiver of her claims.8
The amount of Mahans restitution
Mahan claims that the record does not support
the amount of restitution ordered by Judge Link.
Initially, on April 26, 2000, Judge Link ordered Mahan
to pay slightly more than $30,000 restitution to Alaska
Equine Rescue for the cost of maintaining Mahans
animals pending the outcome of the prosecution against
her. Mahan was given until May 28, 2000 to pay this
restitution, but the deadline was later postponed to
July 16, 2000. Because Mahans conditions of probation
barred her from continuing to own the animals, and
because Equine Rescue would continue to pay to maintain
the animals until they were sold, Judge Link ordered
that Mahans restitution debt would increase by $150 per
day until she sold the animals. By the end of May 2000
(when Judge Link issued his final judgement in this
case), the amount of restitution had increased to
slightly more than $36,000.
Mahans challenge to this figure of $36,000 is
fairly cursory. She asserts that the figure is suspect
because the district court would not issue the
requested writ of assistance to force the foster
families to answer her questionnaire. But Mahan had
the opportunity to challenge Equine Rescues restitution
claims at the restitution hearing.
On appeal, she identifies only one
restitution claim as questionable: the request for
$1600 to repay one of the foster families for
constructing additional fencing so that all of Mahans
roughly three dozen pigs could be kept at one location.
But Judge Link could reasonably determine that, in the
end, it would be more cost-effective to house and feed
all the pigs in one location. Thus, despite the cost
of the additional fencing, Judge Link could reasonably
conclude that the expense of maintaining these animals
and, thus, the amount of Mahans restitution obligation
would ultimately be reduced if all the pigs were housed
together. Mahan offers no argument to the contrary.
The purported forfeiture of Mahans animals
Mahan argues that Judge Link exceeded his
sentencing authority when he ordered Mahans animals
forfeited to Alaska Equine Rescue. But Judge Link
ordered no forfeiture.
During the sentencing proceedings, the State
indeed urged Judge Link to order forfeiture of Mahans
animals to Equine Rescue, but the judge concluded that
he had no authority to do so. Instead, the judge
issued an order that, in effect, made Mahans animals
the security for the restitution debt Mahan owed to
Equine Rescue.
As explained above, Judge Link ultimately
ordered Mahan to pay slightly more than $36,000
restitution to Equine Rescue for the cost of
maintaining Mahans animals pending the outcome of the
prosecution against her. Mahans deadline for paying
this restitution was July 16, 2000.
Because a separate condition of probation
forbade Mahan from continuing to own animals, Judge
Link directed Mahan to sell her animals. Under Judge
Links order, Alaska Equine Rescue would receive the
proceeds of these sales until Mahans restitution
obligation was satisfied. (As noted earlier, to offset
the continuing cost of maintaining the animals until
they were sold, Mahans amount of restitution would
increase by $150 per day until [Mahan] divest[ed]
herself of all ownership interest in the animals.)
To prevent Mahan from selling the animals at
below-market prices, Judge Link further ordered that,
regardless of the sales price, Alaska Equine Rescue
must be paid the fair market value of the animal prior
to the transfer of any ownership interest.
The next paragraph of Judge Links order
stated that, in the event that Mahan (1) failed to sell
the animals and (2) failed to otherwise pay the
restitution owed to Alaska Equine Rescue by the
deadline, all of [Mahans] ownership interest in the
remaining animals [would] transfer to Alaska Equine
Rescue by operation of law but, in this event, Mahans
restitution obligation would be reduced by the market
value of the animals. Based on the evidence presented
at the restitution hearing, Judge Link initially
calculated the total market value of the animals at
$13,775. This figure was later revised to $20,000,
exclusive of the pigs, which were to be valued
separately.
Mahan argues that Judge Links order amounted
to a forfeiture of her animals to Alaska Equine Rescue
a forfeiture [that] is not permitted under Alaska law.
But a forfeiture is a penalty a loss of property
without compensation. Judge Link did not order
forfeiture of the animals. Rather, he ordered Mahan to
sell the animals to satisfy her restitution obligation
to Alaska Equine Rescue. Two conditions governed these
sales: Mahan could not sell the animals for less than
fair market value, and the sales had to take place by
July 16, 2000.
Judge Link further ordered that if Mahans
restitution obligation was not paid on time, the
animals would become the property of Alaska Equine
Rescue (the entity to whom Mahan owed the debt), and
Mahans debt would be reduced accordingly. Until then,
Mahan remained free to sell the animals to anyone, but
she had to do so within the time allotted, and not for
less than fair market value.
In other words, Judge Link effectively placed
a lien on the animals, making them security for Mahans
restitution debt if that debt was not satisfied by July
16, 2000. The judge declared that if Mahan failed to
sell the animals as prescribed, the animals would
become the property of Equine Rescue, but Equine Rescue
would have to pay Mahan fair market value for them
i.e., Mahans restitution debt would be reduced by the
fair market value of the animals.
We have already upheld the condition of
probation that forbids Mahan from owning more than one
animal (and no horses), so it follows that Judge Link
could order Mahan to divest herself of the animals.
Because Mahan owed a substantial amount of restitution
to Alaska Equine Rescue, Judge Link could reasonably
require Mahan to pay that restitution from the proceeds
of the animal sales if she did not otherwise satisfy
her restitution obligation. Likewise, Judge Link could
reasonably prohibit Mahan from selling the animals for
less than fair market value.
Because Alaska Equine Rescue was spending a
considerable amount of money to maintain the animals
for each day that their final ownership remained
unsettled, it was reasonable for Judge Link to place a
time limit on Mahans efforts to sell the animals. And
finally, it was reasonable for Judge Link to give
Equine Rescue a lien on the animals so that, if Mahan
would not or could not sell them for fair market value
within the time allotted, Equine Rescue would gain
ownership of the animals and Mahan would have her
restitution debt reduced by their fair market value.
One might, perhaps, debate whether Alaskas
restitution statutes actually authorize a sentencing
judge to place this sort of lien on the defendants
property. But Mahan does not address this issue. She
argues only that Judge Links order constituted a
forfeiture a contention that we reject.
Mahan also complains that Judge Link refused
to recognize her purported sale of the animals to RPM,
Inc. on April 28, 2000 for the price of $13,375. But
Judge Link considered this issue and ultimately ruled
that no sale had occurred. Mahan does not address this
ruling or argue why it is erroneous. Moreover, as
already explained, Judge Link eventually concluded that
the animals (leaving aside the pigs) had a fair market
value of $20,000. Under the terms of the sentencing
order, any sale of the animals for less than this
amount would be void.
Whether Mahans restitution should be reduced by the
amount of donations that Alaska Equine Rescue received
from members of the community
Finally, Mahan claims that her restitution
obligation should be reduced by the approximately
$20,000 in donations that Alaska Equine Rescue received
from members of the community to help defray the cost
of maintaining Mahans animals.
Mahans argument is facially appealing. The
purpose of restitution is to make someone whole, not to
enrich them.9 Because members of the community
responded to the call for help and donated money to
Alaska Equine Rescue, there is a distinct possibility
that the total money received by that organization the
donations, plus the amount that Mahan pays in
restitution will more than offset the costs incurred
by the organization and the foster families that Equine
Rescue enlisted to care for Mahans animals.
On the other hand, it is unlikely that the
people who donated money to Alaska Equine Rescue
intended for their donations to reduce Mahans
restitution obligation. It is more probable that these
people intended their donations to accomplish two
goals: first, to make sure that Equine Rescue could
meet the current expenses of maintaining Mahans animals
until Mahan ultimately paid any restitution ordered by
the court; and second, to make sure that Equine Rescue
would be able to bear the full cost of maintaining
Mahans animals even if Mahan herself never fully
reimbursed the organization for its expenses.
This is not the first time that we have had
to decide how contributions to crime victims from
members of the community affect a defendants duty to
pay restitution. In Demers v. State, 42 P.3d 1 (Alaska
App. 2002), we addressed a different aspect of this
restitution problem: whether a defendant could be
ordered to pay restitution for the value of non-
monetary donations (donations of goods and services)
made by members of the community to offset or
ameliorate the victims loss. To the extent that such
non-monetary donations reduce the expenses that the
victim would otherwise have to bear, these
contributions from members of the community might
reasonably be considered part of the total social cost
of the defendants crime. Nevertheless, we concluded
that Alaskas restitution statutes do not authorize a
sentencing court to order a defendant to reimburse the
value of these non-monetary contributions.10
Mahans case presents a different issue. The
amount of costs occasioned by Mahans crime is not at
issue or, more precisely, we have already upheld Judge
Links valuation of these costs. Rather, the question
is whether Mahans duty to repay these costs should be
reduced by the amount of monetary donations that the
victim has received from members of the community.
As we remarked above, the probable intent of
the contributors was to make sure that Alaska Equine
Rescue would be able to bear the cost of maintaining
Mahans animals even if Mahan never made full
restitution for the organizations expenses. In this
respect, the private contributors played much the same
role as an insurance or indemnity company. Because of
this, we conclude that our decision in Dorris v. State,
656 P.2d 578 (Alaska App. 1982), provides the rule that
governs Mahans case.
In Dorris, we upheld a restitution award even
though the victim was insured for the loss caused by
the defendant. We held that the sentencing court could
properly order the defendant to pay the restitution
even though the victim might be obligated (either
legally or morally) to turn over any extra money to the
insurance company.11
Obviously, the private contributors in this
case are not the legal equivalent of an insurance
company for they were not contractually obligated to
reimburse Alaska Equine Rescue for its expenses. But
we believe that the underlying principle is the same:
when the victim of a crime receives money from a third
party either contractual payments from an insurance
company or voluntary donations from members of the
public this money should not reduce the amount of
restitution that the offender can be ordered to pay.
We note that Alaska Equine Rescue is an
ongoing non-profit organization, part of a nation-wide
network of similar organizations whose goal is to
identify and care for abused animals (and secure the
return of stolen animals).12 Although the impetus for
the private donations at issue here may have been the
particular expenses caused by Mahans crime, we assume
that, in the event these donations exceeded expenses,
the people who gave the money would want it to be used
for the continuing efforts of Alaska Equine Rescue, or
refunded, rather than having it turned over to Mahan.
Additionally, as we noted in Dorris,
restitution serves two goals: not only restoring
victims, but also making defendants pay the expenses
they have caused by their criminal conduct.13 This
second goal would not be served if defendants received
credit for money that crime victims received from
sympathetic members of the community. Under such a
rule, defendants would, in effect, be enriched by these
donations: either the donations would reduce the
amount of the defendants unpaid restitution obligation
or, if the defendant had already satisfied their
restitution obligation, the donated money would have to
be turned over to the defendant to reimburse the extra
restitution they had paid. This result would
discourage the community from coming to the aid of a
crime victim.
For these reasons, we conclude that a
defendant who is ordered to pay restitution is not
entitled to a credit, an offset, or a refund for
monetary donations received by the crime victim. The
district court therefore properly denied Mahans request
to have her restitution reduced by the approximately
$20,000 in donations that Alaska Equine Rescue received
from the community.
Conclusion
The judgement of the district court is
AFFIRMED.
_______________________________
1 Id. (7th edition, 1999), p. 1603.
2 See Eagle Air, Inc. v. Corroon and Black / Dawson and Co.
of Alaska, Inc., 648 P.2d 1000, 1006 (Alaska 1982).
3 See Pauley v. Anchorage School District, 31 P.3d 1284,
1285 (Alaska 2001); Puhlman v. Turner, 874 P.2d 291, 292
(Alaska 1994); Adoption of N.P.S., 868 P.2d 934, 936 (Alaska
1994).
4 See D.M. v. Div. of Family and Youth Services, 995 P.2d
205, 207 (Alaska 2000).
5 This is the preferred course of action. See Wylie v.
State, 797 P.2d 651, 656 (Alaska App. 1990), where we
endorsed the rule that, generally speaking, motions for
change of venue based on pre-trial publicity should not be
decided until jury selection has been attempted.
6 Id. at 1175.
7 See Marino v. State, 934 P.2d 1321, 1327 (Alaska App.
1997) (defendant proceeded to trial without demanding a
ruling on his discovery request); Erickson v. State, 824
P.2d 725, 733 (Alaska App. 1991) (defendant failed to press
the trial judge for a ruling on his motion to suppress his
statements to the police); Jonas v. State, 773 P.2d 960, 963
(Alaska App. 1989) (defendant proceeded to trial without
demanding a ruling on his motion for a psychiatric
evaluation of the complaining witness).
8 See Petersen v. Mutual Life Insurance Co. of New York, 803
P.2d 406, 410 (Alaska 1990) (when a claim is given only
cursory treatment in a partys brief, the appellate court can
deem the point waived and not consider it).
9 See Demers v. State, 42 P.3d 1, 3 (Alaska App. 2002)
(Mannheimer, J., concurring) (The aim of restitution is to
restore victims to their financial condition before the
crime.).
10 See id. at 2.
11 See id. at 583-84.
12 See, e.g.,
http://www.equinerescue.com/staterescues.html .
13 See Dorris, 656 P.2d at 584.
