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Willis v. State (10/25/2002) ap-1839
Willis v. State (10/25/2002) ap-1839
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
KEVIN WILLIS and )
BARBARA NAUSKA, ) Court of Appeals Nos. A-7587
& 7778
) Trial Court Nos. 1JU-99-
252 &
Appellants, )
1JU-99-253 Cr
)
v. )
) O P I N
I O N
STATE OF ALASKA, )
)
Appellee. )
[No. 1839 October 25, 2002]
)
Appeal from the Superior Court, First Judi
cial District, Juneau, Larry R. Weeks, Judge.
Appearances: Kathleen A. Murphy and Wally
Tetlow, Assistant Public Defenders, and
Barbara K. Brink, Public Defender, Anchorage,
for Appellant Willis. Chet Randall,
Portland, Maine, for Appellant Nauska.
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.
Kevin Willis and Barbara Nauska were indicted for
seriously injuring their two-month-old child. At six oclock in
the evening on July 17, 1997, Nauska brought the baby to the
emergency room at Bartlett Regional Hospital in Juneau. The baby
had a fractured skull and broken ribs.
According to medical testimony, these injuries were
likely inflicted when someone grasped the infant by its chest and
bashed its head against a wall or other hard object. Medical
testimony also indicated that the baby sustained these injuries
during the two hours preceding his arrival at the hospital.
During most of this time, the infant was in the care of Willis
and Nauska on their small houseboat. However, Willis and Nauska
both claimed that they did not know how the baby was injured.
Following a police investigation, Willis and Nauska
were indicted for second-degree assault. The State conceded that
it could not prove which of them had assaulted the baby.
However, the indictment was based on the theory that one of them
had personally assaulted the infant while the other had knowingly
stood by and allowed the assault to happen thus violating their
parental duty to protect the child and rendering them criminally
liable for the resulting injuries. See Michael v. State, 767
P.2d 193, 198-99 (Alaska App. 1988).1
At trial, Willis and Nauska asserted that their
babysitter, Patrick Prewett, had assaulted the baby before they
returned home that afternoon. The jury rejected this defense and
convicted Willis and Nauska of second-degree assault under
AS 11.41.210(a)(2) recklessly caus[ing] serious physical injury
to another person. Both defendants now appeal their convictions
and their resulting sentences.
The defendants assertion that the State presented
inadmissible evidence to the grand jury
Both Willis and Nauska argue that their
indictments were fatally flawed by inadmissible and
prejudicial evidence that was presented to the grand
jury.
The grand jury heard testimony indicating
that Nauska showed little affection for the infant and
little interest in him while he was being treated at
the hospital. We agree with the superior court that
this testimony was relevant.
The grand jury heard testimony indicating
that Willis and Nauska had previously mistreated the
infant and had also mistreated his two-year-old
brother. In addition, the grand jury heard evidence
that Willis had mistreated Nauska and had hit another
woman named Joni. The grand jury heard testimony that
Williss and Nauskas two children suffered from
developmental difficulties. Finally, the grand jury
also viewed photographs depicting the squalid condition
of Williss and Nauskas houseboat. Willis and Nauska
argue that all of this evidence improperly suggested
that they were bad parents and that Willis was abusive
toward women.
Superior Court Judge Larry R. Weeks concluded
that even if this evidence should not have been
presented to the grand jury, there was no realistic
possibility that this evidence affected the grand jurys
decision to indict Willis and Nauska. We agree.
When inadmissible evidence is presented to
the grand jury, a court must engage in a two-part
analysis:
The superior court first subtracts the
improper evidence from the total case heard
by the grand jury and determines whether the
remaining evidence would be legally
sufficient to support the indictment. If the
remaining evidence is legally sufficient, the
court then assesses the degree to which the
improper evidence might have unfairly
prejudiced the grand jurys consideration of
the case. The question the court must ask
itself is whether, even though the remaining
admissible evidence is legally sufficient to
support an indictment, the probative force of
that admissible evidence was so weak and the
unfair prejudice engendered by the improper
evidence was so strong that it appears likely
that the improper evidence was the decisive
factor in the grand jurys decision to indict.
Stern v. State, 827 P.2d 442, 445-46 (Alaska
App. 1992).
When we apply this test to Williss
and Nauskas case, we reach the same
conclusion as Judge Weeks. The grand jury
heard uncontradicted evidence that the baby
suffered serious physical injuries and that
these injuries were not suffered accidentally
but rather were inflicted deliberately. The
grand jury also heard evidence strongly
suggesting that the baby had suffered these
injuries while he was in Williss and Nauskas
sole care. This evidence was sufficient to
support Williss and Nauskas indictment for
second-degree assault. Even assuming that
the grand jury should not have heard the
evidence that Willis and Nauska complain of,
it does not appear likely that this improper
evidence was the decisive factor in the grand
jurys decision to indict.
For these reasons, Judge Weeks
acted properly when he denied Williss and
Nauskas motion to dismiss the indictment.
The adequacy of the trial judges curative instruction
when Patrick Prewett a witness and one-time
suspect referred to the fact that he had taken a
polygraph examination
Although Willis and Nauska were with their
infant son for the ninety minutes to two hours
immediately before he was brought to the hospital,
another person Patrick Prewett had babysat the
infant earlier that same afternoon. The police
therefore investigated Prewett as a potential
suspect. During this investigation, the police
asked Prewett to take a polygraph examination.
The results were inconclusive.
Before trial began, the prosecutor asked
Judge Weeks to issue a protective order barring either
defense attorney from mentioning Prewetts polygraph
test and its inconclusive results. Judge Weeks granted
this request.
During trial, when Nauskas attorney was cross-
examining Prewett, the defense attorney asked Prewett
whether he remembered his interview with Sgt. Hernandez
of the Juneau Police Department. Prewett responded,
Oh, yes. I know the one youre talking about now. He
was on the lie detec I was on as to the lie detector.
A few moments later, Nauskas attorney asked
for a mistrial. His sole stated reason was that
Prewett had referred to information that the court had
excluded.
Judge Weeks declined to order a mistrial.
Instead, he proposed the following curative
instruction:
Normally, evidence about a lie detector
test is not admissible in evidence in court.
This is because courts have determined that
such evidence is not sufficiently reliable.
Evidence about a lie detector was mentioned
by Mr. Prewett.
Mr. Prewett was administered a lie
detector test by the Juneau Police. The
results of that test were inconclusive. It
is for you to determine the weight to give to
Mr. Prewetts testimony. You should weigh his
testimony in the manner Ive explained about
weighing any witnesss testimony.
Both defense attorneys announced that they
had no objection to this instruction.
Nauskas attorney added, for the record, that
he did not wish to abandon his earlier motion
for a mistrial, but he offered no explanation
of why he thought that Judge Weekss
instruction was inadequate to cure the
problem.
On appeal, both Nauska and Willis
contend that Judge Weeks erred in failing to
grant Nauskas motion for a mistrial.
Willis concedes that his trial
attorney did not join Nauskas motion, but he
argues that Judge Weekss failure to declare a
mistrial was plain error. Willis is barred
from pursing this argument. To prove plain
error, a litigant must show that their
attorney had no tactical reason for failing
to object to the alleged error.2 Here, the
record shows that Williss attorney made a
purposeful decision not to join Nauskas
motion for a mistrial. Willis may now
believe that his attorneys decision was
mistaken, but the decision was clearly
tactical and was not plainly incompetent.
Turning to Nauskas claim of error,
we again note that Nauskas attorney failed to
articulate any reason why a mistrial was
required i.e., why Judge Weekss curative
instruction was inadequate. This is
tantamount to failing to preserve this claim
of error. Under Alaska Criminal Rule 46, an
attorney does not preserve a claim of error
unless, at the time the ruling or order of
the court is made or sought, [the attorney]
makes known to the court the action which the
party desires the court to take or the
[attorneys] objection to the action of the
court and the grounds therefor.
We have repeatedly held that a
trial attorney must do more than object; the
attorney must also apprise the trial court of
their reasons for objecting (unless those
reasons are obvious). An objection without
an accompanying statement of reasons is not
sufficient to preserve a point on appeal.3
Nauska must therefore show that Judge Weeks
committed plain error by failing to declare a
mistrial.
This Court has previously pointed
out the dangers of polygraph evidence. The
chief danger is that jurors may view
polygraph results as an objective, scientific
assessment of a witnesss credibility, or they
may rely on polygraph results instead of
carefully evaluating conflicting testimony.4
But Judge Weekss curative instruction
addressed these problems. He told the jury
that polygraph evidence is inherently
unreliable and that, in any event, Prewetts
polygraph test yielded inconclusive results.
He further told the jury that they should
evaluate Prewetts testimony in the same
manner as the testimony of the other
witnesses in the case.
Nauska points out that there is an
additional problem with polygraph evidence.
Leaving aside the question of whether the
test results prove anything, a jury may
conclude that a witnesss willingness to take
a polygraph test is circumstantial evidence
that the witness is telling the truth.5
It is true that Judge Weekss
curative instruction failed to expressly tell
the jurors not to speculate about Prewetts
willingness to take the polygraph
examination. However, this was a problem
that could easily have been cured if either
of the two defense attorneys had spoken up.
As explained above, Judge Weeks asked the two
defense attorneys if they had any objection
to his proposed curative instruction, and
both attorneys announced themselves satisfied
with it. Although Nauskas appellate attorney
has now identified a potential omission in
Judge Weekss instruction, we will not reverse
Nauskas conviction unless it is clear that
the fairness of Nauskas trial was prejudiced
by this omission.6
Here, the jury was told that
Prewett took a polygraph test, but there was
no evidence that Prewett volunteered to take
the test. For all the jury knew, Prewett
might have been unwilling to take the test
and did so only because of police pressure.
No one suggested that Prewett actively sought
or willingly consented to the polygraph
examination.
Nauska points out that the jury
heard testimony that the authorities
ultimately concluded that Prewett had not
assaulted the baby. But this fact was
obvious: Willis and Nauska were indicted,
and Prewett was not. The real question is
whether the jury was led to believe that the
authorities based their decision on Prewetts
polygraph results. Judge Weekss curative
instruction answers this question: the
jurors were told that Prewett had not passed
the polygraph test that his test results
were inconclusive.
Moreover, the prosecuting attorney
made it clear (both in her opening statement
and her summation) that Willis and Nauska
were charged with assault based primarily on
the fact that they lied about when they
returned to their houseboat to resume care of
their baby, and on the medical evidence
showing that the baby most likely suffered
his injuries during the late afternoon while
he was in their care.
Finally, we note that Willis and
Nauska did not view Prewetts polygraph test
results as prejudicing their defense; rather,
they believed that Prewetts test results
bolstered their defense. As explained above,
both defendants argued at trial that Prewett
was the true culprit. During Williss
summation to the jury, his attorney reminded
the jurors that Prewetts polygraph results
had been inconclusive, and he argued that
this adjective aptly described the States
entire case. In other words, Williss
attorney argued that Prewetts inconclusive
polygraph results tended to create a
reasonable doubt as to Williss and Nauskas
guilt.
Nauskas attorney (who argued
second) did not expressly refer to the
polygraph results, but he closed his remarks
by reminding the jury of the argument made by
Williss attorney:
Nauskas Attorney: As Mr. Meyers [i.e.,
Williss attorney] closed, so will I. The
metaphor in this case is, the evidence is
inconclusive. The evidence is inconclusive.
The State hasnt proven their case. Perhaps
the defense has indicated to you that the
State should continue to look at Mr. Prewett.
Thank you.
For these reasons, we conclude that Judge Weeks did not
commit plain error when he gave the curative
instruction and declined to order a mistrial.
The adequacy of the jury instructions concerning
criminal responsibility based on a parents failure to
act to protect their child
As explained above, the State could not
identify either Willis or Nauska as the person who
inflicted the babys injuries. The States theory of
prosecution was that one of them assaulted their child
while the other stood by and allowed the assault to
occur. Because the case was litigated this way, the
jurors had to be instructed concerning the
circumstances under which a parent can be held
criminally responsible for failing to protect their
child.
Judge Weeks gave the jurors an instruction
that combined both theories of criminal responsibility
i.e., responsibility based on personal commission of an
assault, and responsibility for failing to act to
prevent the assault:
A person commits the crime of assault in
the second degree if, either by acting or by
failing to act when he or she has a legal
duty to act, that person recklessly causes
serious physical injury to another person.
In order to establish the crime of
assault in the second degree ... , it is
necessary for the state to prove beyond a
reasonable doubt the following:
First, that the event in question
occurred at or near Juneau and on or about
July 17, 1997;
Second, that the defendant had a duty to
protect [the child];
Third, that the defendant performed an
act or failed to perform an act which
resulted in serious physical injury to [the
child];
Fourth, that the defendant acted
recklessly.
When Judge Weeks proposed this instruction, Williss
attorney expressed concern that the instruction did not
adequately explain the culpable mental state required
to prove the dereliction of duty theory of culpability:
Williss Attorney: I think my concern
was about the mental state of recklessly as
to the circumstance ... that the defendant
has to be aware that there is some injury
occurring to the child. And I dont think
that [this concept] is necessarily reflected
in this instruction. ... [T]he Michael
[decision] says that the parent has to have
some awareness that there was an injury
coming about to the child. And I think the
instruction ought to incorporate that. ...
What Im saying ... is that I think that
somewhere [in the instruction] there ought to
be something that says that the parent ought
to have be[en] aware of the substantial
probability that [the child] was under a risk
of physical attack or assault. Am I making
sense?
Judge Weeks agreed with Williss attorney that this was
a valid concern, but the judge believed that this
concern was fully addressed by the courts separate
instruction on the definition of recklessly:
The Court: I think that there has to be
a substantial probability that [the child]
was under a risk of physical attack or
assault. ... I think that thats included in
the definition of recklessly. [The separate
jury instruction on] recklessly says, A
person acts recklessly with respect to a
result described in the law when the person
is aware of and consciously disregards a
substantial and unjustifiable risk that the
result will occur.
Williss Attorney: The risk being the
injury to [this child]?
The Court: No. ... The risk is that
an injury may occur.
Williss Attorney: Okay.
Nauskas attorney then told Judge Weeks that he had no objection
to the instruction.
On appeal, Willis and Nauska argue that the jury
instruction on the elements of assault fails to
correctly state the components of criminal
responsibility based on dereliction of duty. As we
explain below, the defendants are correct. However,
despite the colloquy that we have just quoted, Willis
did not bring this problem to Judge Weekss attention.
Thus, both defendants are in the same procedural
position on appeal: they must show that Judge Weeks
committed plain error by giving this instruction.
Given the facts of this case and the way it was
litigated, we conclude that this jury instruction did
not constitute plain error.
(a) The two culpable mental states that must be
proved when a parent is charged with homicide or
assault for failing to protect their child
The elements of criminal responsibility based
on dereliction of duty are set out in Michael v.
State, 767 P.2d 193 (Alaska App. 1988).7 The
actus reus of the offense is the defendants
failure to act when the defendant had a duty to
act. The State must show that this failure to act
was knowing. (Under Alaskas criminal code, only
one culpable mental state knowingly applies to
conduct. See AS 11.81.900(a)(1)-(4), as explained
in Neitzel v. State, 655 P.2d 325, 333 (Alaska
App. 1982).)
More specifically, when a defendant is
prosecuted for failing to act, the State must show that
the defendant was aware of the circumstance that
triggered the duty to act and that, being aware of this
circumstance, the defendant chose to do nothing i.e.,
knowingly refrained from acting.8 In the case of a
parent prosecuted for assault or homicide for failing
to protect their child, the State must prove that the
parent knew of the need to take action to protect the
child and knowingly refrained from taking action.9
In addition to proving this actus reus, the
State must additionally prove that the parent acted
with the requisite culpable mental state regarding the
result specified by the offense. (In a homicide
prosecution, the prohibited result is death. In an
assault prosecution, the prohibited result is either
serious physical injury, physical injury, or
apprehension of imminent injury.)
At first blush, it might seem superfluous to
require proof of a separate culpable mental state
regarding the possibility of the childs injury for, as
we have just explained, the State must prove that the
parent knew of the need to protect the child in order
to establish that the parents failure to act was
knowing. But children often engage in sports and other
activities that hold some degree of physical peril.
Even though a parent understands that their child might
be injured while engaging in these activities, the
parents knowing failure to intervene does not
constitute a crime unless the government also proves
that the parent acted (or, more precisely, failed to
act) with a culpable mental state regarding the
potential injury a culpable mental state that will
vary according to the crime charged.
For example, even though a child might
conceivably suffer serious physical injury while skiing
or while driving a motor vehicle, the childs parent
could not be convicted of second-degree assault under
AS 11.41.210(a)(2) (recklessly causing serious physical
injury) for failing to take protective action unless
the government proved that the parent acted recklessly
with regard to this result i.e., proved that the
parent was aware of and consciously disregard[ed] a
substantial and unjustifiable risk that serious
physical injury would occur if the parent failed to
intervene. See AS 11.81.900(a)(3), the statutory
definition of recklessly.
Under this statutory definition, the
government would have to show that the risk of serious
physical injury was of such a nature and degree that
[the parents] disregard of it constitute[d] a gross
deviation from the standard of conduct that a
reasonable person would observe in the situation.
This, in a nutshell, is the difference between letting
a toddler play with a firearm and letting an adolescent
go on a hunting trip.
(b) Why we conclude that Williss attorney failed to
alert Judge Weeks to the problem in this case
When the jury instruction in Williss and
Nauskas case is evaluated in light of the foregoing
discussion, one can see that the instruction is flawed.
The instruction correctly stated that the State was
obliged to prove that the defendants performed an act
or failed to perform an act that resulted in serious
physical injury to their child. The instruction also
correctly stated that the State was obliged to prove
that the defendants acted recklessly with regard to
this result. But the instruction failed to tell the
jury that, before a defendant can be held criminally
accountable for failing to act, the State is obliged to
prove that the defendants failure to act was knowing.
On appeal, Willis points out this flaw. He
also contends that he brought this problem to Judge
Weekss attention. But the record shows that he did
not.
When Williss attorney spoke to Judge Weeks
about the instruction, he expressed concern that the
instruction lacked any language say[ing] that the
parent [had] to have be[en] aware of the substantial
probability that [the child] was under a risk of
physical attack or assault. The phrase substantial
probability comes from the statutory definition of
knowingly in AS 11.81.900(a)(2). One might therefore
think that Williss attorney was directing Judge Weekss
attention to the fact that the instruction failed to
mention that a defendants failure to act must be
knowing. But the subsequent exchange between the
defense attorney and Judge Weeks shows that the
attorney had not identified this problem.
When Judge Weeks answered Williss attorney,
he agreed that the law required proof of a substantial
probability that [the child] was under a risk of
physical attack or assault. However, Judge Weeks told
the attorney that he believed this concept was
adequately communicated by the definition of recklessly
contained in a separate jury instruction: A person
acts recklessly with respect to a result described in
the law when the person is aware of and consciously
disregards a substantial and unjustifiable risk that
the result will occur.
At this juncture, if Williss attorney had
been trying to alert Judge Weeks to the fact that the
instruction failed to comply with the analysis set out
in Michael, the defense attorney would have responded
that the charge of second-degree assault required proof
of two culpable mental states knowingly with respect
to the defendants failure to act, and recklessly with
respect to the defendants awareness of the possibility
that failing to act might result in serious physical
injury. But instead of saying this, Williss attorney
said, Okay. That is, the attorney agreed with Judge
Weeks that the separate instruction on recklessly
constituted a satisfactory answer to his concerns.
Under Alaska Criminal Rule 30(a), an attorney
who objects to a jury instruction must stat[e]
distinctly the matter to which the party objects and
the grounds of the objections, so that the trial judge
is alerted to the problem and has an opportunity to
correct it. Although Williss attorney expressed
concern about the jury instruction defining the
elements of second-degree assault, he never articulated
the problem that he now raises on appeal. And Nauskas
attorney told Judge Weeks that he had no problem with
the instruction. Thus, in this appeal, both Willis and
Nauska must demonstrate that the instruction
constituted plain error.
(c) Why we conclude that Judge Weeks did not commit
plain error when he gave this jury instruction
We have just explained why, when a defendant
is prosecuted for second-degree assault based on
dereliction of their parental duty, the governments
burden to prove that the defendant knowingly failed to
act is distinct from its burden to prove that the
defendant was reckless with respect to the possibility
that their failure to act might result in serious
physical injury. Nevertheless, it is often true that
the same facts will prove both elements.
For example, if a parent does nothing even
though they are aware that their spouse is assaulting
their infant child, this fact will tend to prove both
the defendants knowing failure to act and the
defendants recklessness concerning the possibility of
serious physical injury. That was the case in Michael,
and it was also the States theory of prosecution
against Willis and Nauska.
The State presented evidence that Williss and
Nauskas baby sustained serious physical injury in the
late afternoon of July 17, 1997, that this injury was
the result of an assault rather than an accident, and
that Willis and Nauska were alone with the baby on a
small houseboat when the injury occurred. The State
alleged that one of the two defendants violently
assaulted the baby while the other one looked on and
did not intervene.
Faced with this theory of prosecution, Willis
and Nauska conceivably might have pursued litigation
strategies that highlighted the need to instruct the
jury on the element of a knowing failure to act. For
instance, either defendant might have contended that
they left the houseboat for some reason and that their
spouse was alone with the baby when the baby was
injured. Alternatively, either defendant might have
contended that, although they were present on the
houseboat when the baby was injured, they had fallen
asleep from fatigue and/or intoxication and thus they
were unaware that the baby was being assaulted by their
spouse. Or either defendant might have asserted that
their spouse assaulted the baby but that the assault
occurred in an instant, giving the defendant no time to
intervene or do anything other than rush the baby to
the hospital.
Likewise, the defendants might have pursued a
litigation strategy that highlighted the distinction
between a knowing failure to act and recklessness
concerning the possibility of serious physical injury.
For instance, one of the defendants might have asserted
that, even though they knowingly failed to prevent
their spouse from assaulting the child, they had no
reason to believe that the assault would be severe
enough to inflict serious physical injury on the baby.
But Willis and Nauska did not pursue such
litigation strategies. Instead, from beginning to end,
Willis and Nauska jointly asserted that no harm had
befallen the baby while he was in their presence. Both
defendants argued that Prewett was the culprit that he
assaulted the baby before Willis and Nauska returned to
the houseboat in the late afternoon.
Given the way this case was litigated, the
jurys crucial task was to determine who injured the
baby. If it was either Willis or Nauska, this meant
that the remaining spouse witnessed the assault and did
nothing. Under these circumstances, the two culpable
mental states effectively coalesced. Judge Weekss jury
instruction told the jurors that the State was obliged
to prove that the non-assaulting parent acted
recklessly that the non-assaulting parent was aware of
and consciously disregarded a substantial and
unjustifiable possibility that their spouse would
inflict serious physical injury on the baby. Given the
defense strategy adopted by Willis and Nauska, such a
finding was tantamount to a finding that the non-
assaulting parent knowingly failed to protect the baby.
In previous cases, we have found plain error
when the jury instructions incorrectly defined the
essential elements of the charged offense.10
But there is no plain error when, viewing
the trial record as a whole, the erroneous jury
instructions had no significant influence on the jurys
decision.11 For the reasons we have just explained, we
conclude that the error in Williss and Nauskas case
the failure to explicitly require proof of a knowing
failure to act had no affect on the jurys decision and
was harmless beyond a reasonable doubt.
Williss and Nauskas sentence appeals
Willis and Nauska were convicted of second-
degree assault, a class B felony with a sentencing
range of 0 to 10 years imprisonment.12 Because both
defendants were first felony offenders, their sentences
were governed by the benchmark sentencing ranges we
established in State v. Jackson, 776 P.2d 320, 326-27
(Alaska App. 1989).
In addition, under AS 12.55.125(k)(2),
neither defendant could receive more than 4 years
unsuspended imprisonment unless the State proved
aggravating factors under AS 12.55.155(c) or
exceptional circumstances under AS 12.55.165. However,
Judge Weeks found that the State had proved three
aggravating factors. (Neither Willis nor Nauska
disputes these three aggravators on appeal.)
Two of these factors were fairly
straightforward: (c)(5) that Willis and Nauska knew
that their victim (a 2-month-old baby) was particularly
vulnerable; and (c)(18)(A) that the victim was a
member of the defendants household. The third
aggravator was based on the evidence at trial. Judge
Weeks found aggravator (c)(10) that the defendants
conduct was among the most serious within the
definition of the offense because the evidence showed
that the babys injuries had been life-threatening.
According to the medical testimony at Williss
and Nauskas trial, their baby suffered a major skull
fracture at the back of his head and the posterior
fracturing of three ribs all injuries that bespoke
enormous or incredible force. A doctor testified that
the babys life was very much at risk during the first
twelve hours of his hospitalization in Seattle. The
baby also showed signs of prior injuries to his spine,
his arms, and the fingers of his right hand.
Based on the evidence before him, Judge Weeks
concluded that Barbara Nauska was most likely the one
who assaulted the baby, but the judge also concluded
that Kevin Willis knew, from the babys prior injuries,
that Nauska posed a danger to their child.
Judge Weeks imposed the same sentence on both
defendants: 10 years imprisonment with 4 years
suspended (6 years to serve). The judge recognized
that Williss prior criminal record was worse, but he
concluded that Nauska should receive an equal sentence
because she was the one who assaulted the baby.
On appeal, both Willis and Nauska contend
that 6 years to serve is excessive. But in State v.
Jackson, we concluded that a first felony offender
convicted of a class B felony could receive up to 6
years to serve if the offense was exceptionally
aggravated which we defined as a case involving
significant statutory aggravating factors.13
Williss and Nauskas cases each involve
three undisputed aggravating factors. Judge Weeks
could properly conclude that these three aggravating
factors were significant enough to call for sentences
within the Jackson benchmark range for exceptionally
aggravated offenses. We therefore hold that Williss
and Nauskas sentences of 6 years to serve are not
clearly mistaken.14
Conclusion
The judgements of the superior court are
AFFIRMED.
_______________________________
1 Reversed on other grounds, 805 P.2d 371 (Alaska 1991).
2 See Massey v. State, 771 P.2d 448, 453 (Alaska App.
1989); Potts v. State, 712 P.2d 385, 394 n.11 (Alaska
App. 1985).
3 See Petersen v. State, 930 P.2d 414, 434 (Alaska App.
1996) (when an attorney declines to argue the point or
provide any rationale for giving a requested jury
instruction, the party forfeits any claim of error);
Cornwall v. State, 915 P.2d 640, 653 n.11 (Alaska App.
1996) (same); Hohman v. State, 669 P.2d 1316, 1325-26
(Alaska App. 1983) (when an attorney offers evidence
which is challenged for lack of relevance, and the
proponent of the evidence fails to make an offer of
proof concerning the potential relevance of the
challenged testimony, the party thereby forfeits the
point on appeal).
See also Alaska Criminal Rule 30(a) (No party may assign as
error any portion of the charge [to the jury] or
omission therefrom unless the party objects thereto
before the jury retires to consider its verdict,
stating distinctly the matter to which the party
objects and the grounds of the objection.) (emphasis
added).
4 See Leonard v. State, 655 P.2d 766, 770 (Alaska App.
1982).
5 See Leonard, 655 P.2d at 770; see also Jackson v. State,
652 P.2d 104, 107 (Alaska App. 1982).
6 See Estate of McCoy, 844 P.2d 1131, 1134 (Alaska 1993):
Plain error will be found only when an erroneous
[jury] instruction creates a high likelihood that
the jury followed an erroneous theory[,] resulting
in a miscarriage of justice. Holiday Inns of
America, Inc. v. Peck, 520 P.2d 87, 91 (Alaska
1974). ... [T]he ultimate determination in
analyzing plain error in jury instructions is
simply whether a correct instruction would have
likely altered the result. Conam Alaska v. Bell
Lavalin, 842 P.2d 148, 153 (Alaska 1992)
(citations omitted).
7 Our decision in Michael was reversed by the Alaska
Supreme Court on other grounds. See Michael v. State,
805 P.2d 371 (Alaska 1991).
8 Compare Kimoktoak v. State, 584 P.2d 25, 31 (Alaska 1978)
(holding that a defendant can not be convicted of leaving
the scene of an accident unless the government proves that
the defendant was aware that an accident had occurred).
9 Michael, 767 P.2d at 200.
10 See S.R.D. v. State, 820 P.2d 1088, 1095-96 (Alaska
App. 1991); Reischman v. State, 746 P.2d 912, 915-16 (Alaska
App. 1987).
11 See Bowell v. State, 728 P.2d 1220, 1224 (Alaska App.
1986); Reynolds v. State, 664 P.2d 621, 627-28 (Alaska App.
1983); see also S.R.D. v. State, 820 P.2d 1088, 1096 (Alaska
App. 1991) (acknowledging this rule of harmless error, but
nonetheless concluding that the error was not harmless under
the facts of the case).
12 See AS 11.41.210(b); AS 12.55.125(d).
13 776 P.2d at 326.
14 See McClain v. State, 519 P.2d 811, 813-14 (Alaska
1974) (an appellate court is to affirm a sentencing decision
unless the decision is clearly mistaken).
