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Perrin v. State (3/21/2003) ap-1862

Perrin v. State (3/21/2003) ap-1862

                             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

RONN B. PERRIN,               )
                              )           Court of Appeals No. A-
7696
                              Appellant, )       Trial Court  No.
3PA-S99-894 CR
                              )
                              )
                  v.          )
                              )                     O  P  I  N  I
O  N
STATE OF ALASKA,              )
                              )
                              Appellee.  )             [No.  1862
March 21, 2003]
                              )

          Appeal  from the Superior Court,  Third  Judi
          cial District, Palmer, Eric Smith, Judge.

          Appearances:  Margi A. Mock, 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.

          STEWART, Judge.
          COATS, Chief Judge, concurring.
          MANNHEIMER, Judge, dissenting.

          In  Gerlach  v.  State,1 we upheld the superior  courts

refusal  to  instruct  the  jury on  Gerlachs  claimed  necessity

defense to a charge of first-degree custodial interference.2   In

          this case, on the eve of trial, the State moved to bar Ronn B.

Perrin  from  presenting a necessity defense relying on  Gerlach.

Perrin  disclaimed  any  reliance on the affirmative  defense  of

necessity;  even so, the superior court requested  a  summary  of

Perrins defense.

          After  hearing  the  summary, the court  reasoned  that

Perrins proffered testimony was a necessity defense and announced

that  Perrins defense was barred by Gerlach.  Because we conclude

the superior court applied Gerlach too broadly, we reverse.

          Facts  and  proceedings leading to the courts  Gerlach-

based ruling

          B.C. is Perrins daughter, but Perrin was not married to

B.C.s  mother.  In 1997, Perrin filed an action to establish  his

paternity  of  B.C. and obtain joint custody.   After  a  custody

trial  in  January 1998, the superior court granted  joint  legal

custody  of  B.C.  to Perrin and B.C.s mother,  primary  physical

custody  to  B.C.s  mother,  and set a  visitation  schedule  for

Perrin.

          During  the  summer  of 1999, Perrin had  court-ordered

visitation with B.C. on Wednesday evenings and two out  of  every

three  weekends.  On Sunday, May 15, 1999, when  Perrin  did  not

return  B.C.  as scheduled,  B.C.s mother called Perrins  cousin,

Don  Perrin.  She discovered that Don had received a call from  a

relative  in California, telling him to pick up Perrins truck  at

the  airport.   B.C.s mother contacted the Alaska State  Troopers

and reported that B.C. was missing.

          About  one week later, Don Perrin received a  power  of

attorney  in the mail from California from Perrin.  The power  of

attorney  gave  Don  Perrin  authority  over  Perrins  residence,

automotive repair business, and all his personal possessions.

          The Alaska State Troopers tracked Perrin down through a

phone  number  they  found on a notepad  at  his  business.   The

Troopers learned Perrin had stayed with a friend near San  Diego,

but  had  since left.  On June 26, 1999, B.C.s mother received  a

letter  in Perrins handwriting from San Diego.  The letter  read:

Everyone is fine, safe, healthy and happy.

          On  August 3, 1999, the FBI located Perrin in Oklahoma.

Perrin  had dyed his hair.  Perrin was arrested and charged  with

first-degree custodial interference, a class C felony.3

          Before jury selection on the day of Perrins trial,  the

State  moved to prevent Perrin from raising a necessity defense.4

The  State  argued that Gerlach precluded a necessity defense  in

custodial  interference cases.  Arguing that a necessity  defense

was  unavailable, the State maintained that Perrin was  precluded

from  giving  his reasons for taking B.C. out of  the  state  and

describing his actions while out-of-state.

          Perrin  replied  that he would not  offer  a  necessity

defense.   He  stated  that he expected to  present  evidence  to

counter  the element of custodial interference that requires  the

defendant have the requisite intent to hold the child ...  for  a

protracted period.5

          At  this  point, Superior Court Judge Eric Smith  asked

Perrin  to  give  him, in a nutshell, an offer of  proof  on  his

defense  strategy.  Perrin did so and described his  relationship

with B.C.s mother, his concerns after B.C. complained to him that

she  was physically abused by her mothers companion, what led  up

to  his  departure  from Alaska with B.C., and  what  he  did  to

prepare to return to Alaska with B.C. before he was arrested.

          Following  this  proffer,  Judge  Smith  reviewed  this

courts  decision in Gerlach.  Judge Smith concluded that  Gerlach

holds  that self-help is not an acceptable defense for  custodial

interference  and  allowing  self-help  to  be  brought   in   to

demonstrate lack of intent essentially establishes the  necessity

defense  without calling it that.  The judge had a lot of trouble

with the fact that Perrin was out-of-state with B.C. for two  and

one-half months and intended to keep her out-of-state for as long

as  four months.   Judge Smith said that the time frame could not

be  viewed  as  anything  but prolonged because  Perrin  actually

attempted to establish sufficient residence and job for  purposes

of getting California family services involved and attempt[ed] to

          stay ahead of the FBI[.]

          Judge  Smith  granted  the States  motion  and  ordered

Perrin  not to present any evidence to the jury relating  to  the

actions he took while out of state to prepare to raise the  issue

when  he returned to Alaska.  The judge admitted that he was  not

comfortable  depriving a defendant ... of his ability  to  defend

against the intent [element.]

          Following  this ruling, Perrin said that a jury  trial,

without  the ability to present a defense, would be  a  waste  of

judicial  resources.   Judge Smith suggested  that  Perrin  could

obtain  appellate review of his ruling by having a  bench  trial.

Because  the  court  and  the parties viewed  the  courts  ruling

barring  Perrins  defense  testimony  as  non-dispositive,   they

concluded  that  a  Cooksey6 plea was  not  available.   After  a

recess,  Perrins  attorney told the court that his  client  would

agree to waive his right to a jury trial and proceed with a bench

trial.   The  court dismissed the jury and proceeded  to  opening

statements without addressing Perrin personally and asking if  he

understood the rights he would lose if he proceeded with a  court

trial.7

          Does Gerlach bar Perrins proffered testimony?

          In  Gerlach, a mother left Alaska with her daughter and

hid  in  Washington  State for over one  year.   The  mother  was

arrested and convicted of first-degree custodial interference  at

trial.8

          Before trial, Gerlach made an offer of proof supporting

her plan to present a necessity defense.9  Gerlach said she would

testify  that  she  believed the childs father was  not  properly

caring  for  the child because the child had a vaginal infection,

was  dirty  and  unkempt, and, also, that  the  father  beat  his

children from a previous marriage.10  Gerlach claimed she held the

child  out-of-state because she had little faith in the  judicial

system  and  feared she would run out of money before  a  custody

dispute  was  resolved.11   Gerlach had  witnesses  available  to

testify   about  the  fathers  abuse  of  the  child.12   Gerlach

          maintained the purpose of this testimony was to show her state of

mind  and  her fear of imminent harm to her daughter.  The  trial

judge  ruled that Gerlachs offer of proof was insufficient  as  a

matter  of  law such that he could not instruct the jury  on  the

necessity  defense.   He  also precluded her  from  raising  that

defense at trial.13

          We  upheld the superior courts ruling for two  reasons.

First,  we  held that Gerlachs claim failed to meet an  essential

prong  of a necessity defense:  the harm caused by the defendants

conduct  must not be disproportionate to the harm avoided.14   In

addition, we concluded that Gerlach had remedies at law  she  did

not utilize.15  We recognized that the legislature has established

remedies   to   protect  vulnerable  children  and  has   adopted

procedures for resolving child custody disputes.16

          A  person  commits the crime of first-degree  custodial

interference  if  the  person  commits  second-degree   custodial

interference and also causes the child to be removed from or kept

out   of   this  state.17   To  commit  second-degree   custodial

interference, a defendant must be the relative of a  child  under

18 and, knowing that they have no right to do so, takes, entices,

or  keeps the child from its lawful custodian with the intent  to

withhold   the  child  for  a  protracted  period.18    Custodial

interference  is  a  continuing offense.19  Thus,  to  convict  a

defendant  for  custodial interference the  State  must  prove  a

defendant  committed the actus reus, the act of taking, enticing,

or keeping a child from a lawful custodian with no legal right to

do  so,  with the necessary mental state, knowing that he or  she

has  no  legal right to take the child and intending to keep  the

child for a protracted period.20

          In  his offer of proof, Perrin conceded that he removed

B.C. from Alaska.  He also did not dispute that he knew retaining

B.C.  violated the custody order.  Thus, the element  in  dispute

when  the superior court considered the States motion was whether

Perrin intended to withhold B.C. from her lawful custodian for  a

protracted period.

          Perrin  argued  evidence of his conduct and  objectives

during  the alleged continuing offense was admissible to undercut

the  States  burden  of proof on the element  of  whether  Perrin

intended to withhold B.C. for a protracted period.

          After  Perrins  proffer, the superior  court  ruled  as

follows:

               The  Court:   My  concern  is  that   by
          essentially allowing self-help to be  brought
          in  to demonstrate lack of intent essentially
          establishes  the  necessity  defense  without
          calling  it  that.  And that the telling  the
          jury,  well, youre only to look at  this  for
          intent,  really  is the same  as  telling   I
          mean,  I  guess maybe the burden of proofs  a
          little   different.   I   dont   know.    But
          essentially the jury is being given the  same
          defense in another guise.  So I think,  based
          on  the defendants offer of proof, there isnt
          enough  for me to find that ... the  jury  be
          informed  of  those  particular  reasons  for
          running.   I  recognize that  this  may  well
          straitjacket  the defendants  case.   I  dont
          know   if  it  will  or  not.   It  certainly
          deprives  him of one key thing he  wanted  to
          explain.   But  it seems to me that  this  is
          just the Gerlach case all over again.

Perrins  attorney  asked  if the court was  ordering  us  not  to

address  the issue as to what my client did to, while he was  out

of state, to assist him in bringing what he perceived to be abuse

to  the forefront, or to get help as to that issue[?]  The  court

responded:  I dont see how I can let it in without making this  a

necessity  defense. ... Given the Gerlach opinion, I dont  see  I

have much choice.

          Shortly  after  this exchange, the jury was  discharged

and  the case proceeded to a court trial.  Judge Smith found that

the  State proved beyond a reasonable doubt that Perrin  had  the

intent  to withhold B.C. for a protracted period of time.   Judge

Smith found Perrin guilty of first-degree custodial interference.21

          The  Alaska Constitution accords criminal defendants  a

constitutional right to testify in their own behalf.   In  Hughes

v.  State,22 the Alaska Supreme Court observed that a  defendants

          right to testify in his own defense is of such fundamental

importance  that [n]o defendant requesting to testify  should  be

deprived  of exercising that right and conveying his  version  of

the facts to the court or jury[.]23

          Perrin  disavowed any reliance on a necessity  defense.

Perrin planned to present evidence that described his conduct and

his  objectives  while he was withholding B.C.  from  her  lawful

custodian.   As  part  of  its burden of  proof,  the  State  was

required to prove that Perrins conscious objective while  he  was

withholding  B.C.  was to withhold her for a  protracted  period.

Even though Perrins proffer contained evidence that might aid the

State  in meeting its burden of proof, Perrins testimony  denying

that  he  had  the  conscious objective to withhold  B.C.  for  a

protracted  period and describing his conduct  is  relevant.   In

fact,  during  the court trial, Perrin testified at length  about

his  actions  and his state of mind when he left  the  state  and

while he was out-of-state.

          Moreover,  even  though the court  was  concerned  that

Perrins  strategy  was  to claim necessity  without  meeting  the

requirements of that affirmative defense, under the reasoning  of

Gerlach,  the  court could have instructed the jury  that  Perrin

would  have  to avail himself of available legal remedies  before

undertaking unlawful self-help.24

          However, after the superior court announced its  ruling

after  Perrin proffered his evidence, the jury was discharged  in

apparent reliance on that ruling, leading to a court trial  where

Perrin  actually testified to much that he proffered  before  the

courts ruling.           We have not ruled that the testimony  of

the  other witnesses Perrin planned to call at his jury trial  is

admissible.  We hold only that the superior court erred  when  it

announced  that  it  would bar Perrins testimony.   As  with  any

testimony,  the testimony of other witnesses must  be  admissible

under the normal rules of evidence.

          This decision does not impose any additional burden  of

proof on the State. The State retains the burden to prove to  the

          trier of fact that Perrin intended to withhold B.C. for a

protracted period.  And Perrin is entitled to take the stand  and

testify  that he did not have the conscious objective to withhold

B.C. for a protracted period, even if Perrins proffered testimony

might  not  appear plausible in the circumstances  of  his  case.

Perrins conviction must be reversed.  Under the circumstances  of

this case, Perrin is entitled to a jury trial.25

          Conclusion

          The judgment of the superior court is REVERSED.

COATS, Chief Judge, concurring.

          To  me  this case turns on the premise that a defendant

has a constitutional right to a jury trial.  Under our system  of

government  the legislature has the authority to pass  laws.   At

trial  the judge has the duty to tell the jury what the  law  is.

It  is  the jurys job to determine if the defendant violated  the

law.   In  my  view Perrin was entitled to have a jury  determine

whether he committed the crime of custodial interference.

          A  person  commits the crime of custodial  interference

if,  knowing that he  lacks the authority to do so, he  takes  or

keeps  a  child from a lawful custodian with intent to  hold  the

child . . . for a protracted period.1

          Perrins defense was that he did not intend to hold  his

daughter,  B.C., for a protracted period of time.   According  to

Perrin, he believed that his daughter was being physically abused

and  that his only option was to keep B.C. until he could  obtain

help to prevent the abuse.  Perrin claimed his intent was not  to

abscond with B.C. or to be gone for a protracted period of  time.

He  told  Judge Smith that the longest period of time he intended

to  keep B.C. away was three or four months.  His intent  was  to

seek  help to stop the abuse.  Judge Smith ruled that, even if  a

jury  believed  Perrins  defense,  Perrin  would  be  guilty   of

custodial  interference as a matter of law because the time  that

Perrin had been gone was a protracted period.  He therefore  told

Perrin that he would not allow Perrin to present this evidence in

a  jury  trial.  Perrin subsequently waived his right to  a  jury

trial based upon Judge Smiths ruling that he would not be able to

present the reasons why he left with B.C. and to explain  why  he

was gone for so long.         Judge Smith based his ruling on our

decision  in  Gerlach v. State,2 which involved  the  offense  of

custodial  interference.   But  I  see  significant  distinctions

between  Gerlach  and  this case.  Gerlachs  former  husband  had

custody of her daughter Angela.3  Gerlach had visitation rights.4

Gerlach  and  her  former  husband were involved  in  an  ongoing

custody dispute.5 Gerlach offered to testify that she had  little

          faith in judicial proceedings as a means for resolving custody

disputes.6   She was concerned that the judge would rule  against

her.7   She  accordingly fled with her daughter to another  state

where she hid for over a year.8  From Gerlachs offer of proof  it

appears  that she intended to hide her daughter from  her  former

husband  and the authorities for as long as possible.  She  never

testified that she had any intent to resolve the custody  problem

other than by keeping her daughter away from her former husband.

          Gerlach  attempted to raise the defense  of  necessity.

The  defense  of  necessity is an affirmative defense  where  the

defendant  must show that the act charged was done to  prevent  a

significant  evil,  that there was no adequate  alternative,  and

that  the  harm  caused  was  not disproportionate  to  the  harm

avoided.9  Where a defendant has an adequate remedy at  law,  she

is  not  entitled to the defense.10  The trial judge  ruled  that

Gerlach  was  not entitled to present the defense of necessity.11

After she was convicted, Gerlach appealed.  We concluded that the

trial  judge  did  not  err in entering a protective  order  that

precluded Gerlach from raising the necessity defense at trial.12

          It  is generally difficult for a defendant to establish

a  necessity  defense.   And there are many  decisions  in  which

appellate courts have upheld the trial courts refusal to instruct

on  the  necessity defense.13  Gerlach had a difficult  case  for

claiming necessity.  She had a remedy at law  she was involved in

an ongoing custody battle in court.  She thought she was going to

lose.   So  she left, apparently forever if possible.  She  never

gave  any  indication  that  she intended  to  pursue  any  legal

remedies.  It is therefore not surprising that this court  upheld

the  trial  judges  ruling  that  Gerlachs  offer  of  proof  was

insufficient  as  a  matter of law to establish  the  affirmative

defense of necessity.

          Perrins case is different.  Perrin did not rely on  the

defense  of  necessity.  He pointed out that in order to  convict

him  of  custodial interference, the State had to  prove,  as  an

element of the offense, that he intentionally kept the child from

          her lawful custodian for a protracted period.  This is an element

of  the  offense that the State had  to prove beyond a reasonable

doubt.

          The  parties in Gerlach apparently never mentioned this

element   of  the  offense.14   But  this  court  addressed   the

protracted  period element of the offense in a  footnote  to  the

decision.   We  offered  a  potential  definition  of  protracted

period, stating:

          If  the  term protracted period is ultimately
          interpreted  to  mean  an  unreasonably  long
          period  under all the circumstances,  a  jury
          may   then   be  required  to  consider   the
          defendants reasons for withholding the  child
          in  determining whether the child was in fact
          withheld for a protracted period.[15]

We concluded that it was unnecessary for us to resolve this issue

and  that,  in any event, Gerlachs retention of her daughter  for

over  a  year  would  appear  to satisfy  the  protracted  period

requirement, however it is defined.16

          It  seems  to me that there are a number of  things  to

consider  when  evaluating the discussion  about  the  protracted

period element of custodial interference in the Gerlach footnote.

First,  it seems apparent that Gerlach never contended  that  she

did not intend to keep her daughter from her former husband for a

protracted  period.   This issue was never raised  in  the  trial

court  or  on appeal.  Furthermore, looking at Gerlachs offer  of

proof,  it  appears that she fully intended to keep her  daughter

away  from  her  former husband for as long as possible.   It  is

therefore not surprising that this court concluded, as  a  matter

of  law, that Gerlach intended to keep the child for a protracted

period.  Gerlach understandably conceded the issue.

          But   the  footnote  does  appear  to  be  helpful   in

suggesting  that  protracted period means  an  unreasonably  long

period  under all the circumstances.17  And the footnote  appears

to  predict that a jury would ultimately be required to  consider

the  defendants reasons for withholding the child in  determining

whether the child was in fact withheld for a protracted period.18

          Perrin asserted that he did not intentionally keep  his

daughter  from her mother for a protracted period  of  time.   He

specifically asserted that his intent was not to abscond with his

daughter  or  to  be gone for a protracted period  of  time.   He

represented that the longest he intended to keep his daughter was

for  three  or four months.  He intended to seek help to  protect

his daughter from physical abuse.

          The  question that Perrin raised in his offer of  proof

was  whether he intentionally kept his daughter from  her  lawful

custodian  for a protracted period.  The question is,  using  the

Gerlach definition, whether he kept her for an unreasonably  long

period under all the circumstances.19  Whether Perrin intended to

keep  his daughter for a protracted period is an element  of  the

offense and a factual question that should be decided by a  jury.

The jury would be required to consider the defendants reasons for

withholding  the child in determining whether the  child  was  in

fact  withheld  for a protracted period.20  I  agree  with  Judge

Stewart that the court could have instructed the jury that Perrin

was  required  by  law  to avail himself  of  legal  remedies  if

possible.  Under our system of law, Perrin was entitled to have a

jury determine if he violated the law.

MANNHEIMER, Judge, dissenting.


          This  case involves an all-too-familiar occurrence:   a

parent  steals a child, flees the state, and conceals  the  child

from  the other parent and from the authorities, claiming  to  be

motivated by the belief that the child is being mistreated by the

other parent (or the other parents new spouse or companion).

          The defendant in this case, Ronn Perrin, absconded with

his  three-year-old daughter, fled to the Lower 48, and concealed

the  child from her mother and the authorities for almost  twelve

weeks,  until  he was finally located and arrested  by  the  FBI.

Perrin  was  charged  with  custodial  interference,  an  offense

defined as taking or keeping a child from a lawful custodian with

[the]  intent  to  hold  the child ... for a  protracted  period.

AS 11.41.330(a).

          Perrin  proposed to defend this charge  by  taking  the

stand and explaining that his abduction of B.C. was motivated  by

his  belief  that  the  child was in danger of  being  physically

abused  or  otherwise mistreated if she remained in  her  mothers

household.  The trial judge precluded Perrin from presenting this

defense.

          My  two colleagues conclude that Perrin was entitled to

present  this testimony and to argue this theory of justification

to the jury.  I conclude that he was not.  Our differing views of

Perrins case ultimately rest on our differing interpretations  of

the custodial interference statute.

          As  noted above, AS 11.41.330(a) requires the State  to

prove  that the defendant intended to hold the child  ...  for  a

protracted  period.  My colleagues construe this phrase  to  mean

that, in any prosecution for custodial interference, the State is

obliged  to prove that the defendants abduction of the child  was

unreasonable, given all the surrounding circumstances.

          If  this  is  indeed what our statute  means,  then  of

course Perrin would be entitled to a new trial  because he should

have been allowed to explain his reasons for abducting the child.

But  the  wording of our statute, the derivation of our  statute,

and  the historical context in which the statute was enacted  all

point   to  a  contrary  conclusion   the  conclusion  that   the

legislature  did  not  intend  to allow  defendants  to  litigate

whether  their act of child abduction was reasonable  (except  to

the  extent that the abduction might be justified by one  of  the

defenses  codified  in AS 11.81.300-450).   Thus,  Perrins  trial

judge  correctly  precluded  him  from  presenting  his  proposed

defense, and Perrins conviction should be affirmed.



     Underlying facts
     

               Ronn   Perrin   and  Patricia  Carlisle,   an

     unmarried  couple,  had  a  child,  B.C..   Perrin  and

     Carlisle  separated when B.C. was three years old,  and

     Perrin  filed a lawsuit to obtain custody of the child.

     He  was  unsuccessful.  In January  1998,  following  a

     trial,  the  superior  court awarded  primary  physical

     custody of the child to Carlisle, with Perrin receiving

     visitation rights.

               On  May  15,  1999, at the  conclusion  of  a

     scheduled visit, Perrin absconded with B.C. instead  of

     returning  the  child  to Carlisle.   Hiding  from  the

     authorities,  Perrin took B.C. to California,  then  to

     Ohio,  then  to Oklahoma.  On August 3, 1999,  the  FBI

     finally  caught  up with Perrin.  He was  arrested  and

     charged with first-degree custodial interference  under

     AS 11.41.320.

          At  his trial, Perrin proposed to defend  the

charge of custodial interference by testifying that  he

took  B.C. and kept her from Carlisle because he feared

that the child was being physically abused by Carlisles

new  boyfriend.   In  an offer of  proof  (outside  the

hearing  the jury), Perrin took the stand and gave  the

following explanation of his actions:

          During the eighteen months that preceded  his

flight  (basically,  from the time  that  the  superior

court  awarded custody of B.C. to Carlisle until Perrin

absconded  with the child), Perrin contacted  both  the

Alaska  State Troopers and the Division of  Family  and

Youth Services to let them know that he suspected  that

B.C.  was  being  physically  mistreated  in  Carlisles

household.   But  both agencies told Perrin  that  they

needed evidence of abuse before they could act.

          Frustrated by these agencies inaction, Perrin

decided  to engage in self-help.  He fled to the  Lower

48  with  B.C.,  altering his physical  appearance  and

moving  from state to state.  Perrin conceded  that  he

kept  moving  so  that  he  could  stay  ahead  of  the

authorities, but he asserted that his motive for  doing

so  was  beneficent:  he was looking for  a  counseling

program for B.C., and he feared that B.C. would not get

the  counseling she needed if Perrin was  arrested  and

the two of them were brought back to Alaska.

          The  trial  judge refused to allow Perrin  to

present  this  explanation  to  the  jury  because   he

concluded  that,  under Alaska law, a parents  fear  of

harm  to  the  child is generally not a  defense  to  a

charge of custodial interference.



The  legal  backdrop of this appeal, and the source  of
Perrins   proposed   construction  of   the   custodial
interference statute


          In  Gerlach  v. State, 699 P.2d  358  (Alaska

App.  1985), this Court held that a parent charged with

custodial interference for stealing a child and fleeing

the  state could not raise a defense of necessity based

on  the  parents fear that the child faced  neglect  or

physical  abuse in the other parents home.  In Gerlach,

we  upheld  the  trial  judges  refusal  to  allow  the

defendant  to offer testimony on this point because  we

concluded (1) that the defendant had an adequate remedy

at   law,  without  resorting  to  self-help,  and  (2)

generally  speaking, the legislature had  not  intended

for  defendants  to  be  able to  raise  a  defense  of

necessity   when  they  were  charged  with   custodial

interference.1

          In  this appeal, Perrin concedes that Gerlach

precludes him from raising a defense of necessity.  But

Perrin  argues  that he was not raising an  affirmative

defense.   He  insists that he was only  requiring  the

State to prove the elements of the offense.

          Perrin  asserts that the statutory definition

of  custodial interference  in particular, the  element

of intent to hold the child ... for a protracted period

implicitly  requires  the  State  to  prove  that   the

defendant  intended to keep the child for a  length  of

time  that  was unreasonable given all the  surrounding

circumstances.  Under this proposed construction of the

statute, Perrin argues, he should have been allowed  to

explain  all  of his reasons for taking and  concealing

his  daughter, so that he could show that his  plan  to

keep  his  daughter for several months was a reasonable

response to the situation confronting him.

          (In particular, Perrin asserts that he should

have  been allowed to explain (1) that he abducted  his

daughter  because  he  reasonably  believed  that   his

daughter needed mental health counseling on account  of

          the situation at Carlisles home, and (2) that he hid

from  the  authorities  for  three  months  because  he

reasonably believed that, if the authorities found him,

he  and his daughter would be taken back to Alaska  and

his  daughter would probably not obtain the  counseling

that  she  needed, since nobody in Alaska  appeared  to

credit his suspicions of physical abuse.)

          One might be tempted to respond that a twelve-

week  abduction is surely a protracted period.  No  one

could  doubt  that  B.C.s  twelve-week  absence  seemed

protracted  to Carlisle, the mother who  did  not  know

where her child was.  But Perrins proposed construction

of  the  custodial interference statute  is,  in  fact,

prompted by language in our Gerlach decision.

          At  first  blush, Gerlach would seemingly  be

the  last  place  that a defendant in Perrins  position

would  seek  support  for, as explained above,  Gerlach

holds    that   defendants   charged   with   custodial

interference  can not rely on the defense of  necessity

as  an after-the-fact justification for taking the  law

into their own hands to resolve issues of child custody

and child safety.

          Moreover,  the facts of Gerlach resemble  the

facts  of  Perrins case in many key respects.   Gerlach

believed  that  her  former husband  was  not  properly

caring for their daughter, and she (like Perrin) had no

faith  that  the legal system would protect her  child.

Gerlach  had  little  money to  pursue  further  child-

custody  litigation,  and she also  believed  that  the

judge  assigned  to her case was biased  against  her.2

For these reasons, Gerlach absconded with the child and

hid for more than a year  until she was finally located

and arrested in the State of Washington.3

          At  her  trial  for  custodial  interference,

Gerlach proposed the defense of necessity.  She offered

          to testify that her former husband was not caring

properly  for their daughter.  Gerlach also offered  to

testify  that  she  knew that her  former  husband  had

slapped, beaten, and verbally abused [his children from

another marriage] after visits to their mother.  4   In

addition,  Gerlach offered testimony  that  her  former

husband disciplined his children by beating them with a

belt and slapping them, often for things that were  not

really their fault, and that he generally abused  [his]

children.5  The purpose of this testimony was to  prove

Gerlachs  state of mind  her justified fear of imminent

harm  to  her  daughter if she did not  take  steps  to

remove the child from her former husbands custody.6

          But  Gerlachs trial judge concluded that this

testimony,  even  if believed, was  insufficient  as  a

matter  of  law to establish the defense of  necessity.

He  therefore  precluded Gerlach from  presenting  this

testimony,  and  he  refused to instruct  the  jury  on

necessity.7   We upheld the trial judges  decision  for

three reasons.

          First,  we  held that Gerlachs act of  child-

stealing  could  not be justified by  the  doctrine  of

necessity  because  she  inflicted  a  harm  that   was

disproportionate to the harm she was trying  to  avert.

By  her conduct, Gerlach totally severed her ex-spouses

contact  with their child.  As we pointed out, even  if

Gerlachs fears of physical abuse had been shown  to  be

well-founded,  so that she was awarded custody  of  the

child  or  the  Division of Family and  Youth  Services

assumed  temporary custody of the child,  Gerlachs  ex-

husband   still  probably  would  have   been   allowed

controlled  visits  with the child.  Instead,  Gerlachs

unilateral  action denied [her ex-husband] any  contact

with [the child] at all.8

          Second, we held that a necessity defense  was

          not available to Gerlach because the legislature had

determined that a litigant such as Gerlach [should  not

be  allowed] to use a necessity defense as a  means  of

relitigating     a     [superior    courts]     custody

determination:9

     
     The  legislature has recognized the  risk  of
     child  abuse  and neglect and has established
     remedies to protect vulnerable children.  ...
     The   legislature  has  also  recognized  the
     emotions  involved in child custody  disputes
     and  has  sought to establish procedures  for
     resolving custody disputes to ensure that the
     childs  interest will not be subordinated  to
     vengeful  wars  between  parents.   ...    To
     permit  a litigant such as Gerlach to  use  a
     necessity  defense as a means of relitigating
     a custody determination would not appreciably
     advance  the legislative goals of  preventing
     child   abuse   and  neglect[,]   which   are
     adequately     protected     by      existing
     legislation[,] and [it] would not  serve  the
     legislative   purposes   exhibited   in   the
     enactment   of  the  statutes   providing   a
     judicial  forum  to  litigate  child  custody
     disputes  and barring custodial interference.
     Where   the   legislature   has   established
     procedures  for determining custody  disputes
     and separate but complementary procedures for
     investigating and preventing child abuse  and
     neglect,  a  person cannot  be  permitted  to
     ignore those procedures and rely on self-help
     simply  because he or she distrusts  lawyers,
     judges, and social workers.
     
     Gerlach, 699 P.2d at 362-63.

          Third,   we   held  that  custodial

interference is a continuing offense.   Thus,

even  though  a  person might conceivably  be

justified  in  taking  or  keeping  a   child

temporarily  in  an  emergency,  a  defendant

asserting the defense of necessity would have

to introduce evidence justifying their act of

keeping  the  child  throughout  the   entire

          duration of the abduction.10  Compare our

decision in Wells v. State, 687 P.2d 346, 350

(Alaska  App.  1984), where we  applied  this

same rule to the offense of escape.

          In  Gerlach,  we suggested  that  a

defendant   who   reasonably   perceived   an

imminent  threat to a childs safety might  be

justified  in  temporarily  withholding   the

child  from  a custodian, but for  no  longer

than  was necessary to seek medical or  legal

advice,  or  alert  the  authorities  to  the

perceived danger, or deliver the child to the

authorities.11  We held that the  defense  of

necessity  is  not available to  parents  who

abscond  with a child, leave the  state,  and

hide the child for months.12

          As   noted  above,  the  facts   of

Perrins  case are quite similar to the  facts

of  Gerlach.  Like the defendant in  Gerlach,

Perrin  stole  his daughter,  took  her  into

hiding,   and  eluded  the  authorities   for

several  months.   To justify  this  conduct,

Perrin offered evidence (1) that he suspected

that Carlisles boyfriend was mistreating B.C.

and (2) that he believed it was necessary  to

steal B.C. from Carlisle to ensure the childs

safety.

          At trial, Perrins attorney conceded

that Gerlach precluded Perrin from presenting

this   evidence  to  support  a  defense   of

necessity.  But, as explained above,  Perrins

attorney  argued that this evidence  was  not

being  offered  to establish the  affirmative

defense  of necessity, but rather  was  being

offered to rebut one of the elements  of  the

          offense  the States allegation that Perrin

intended   to  hold  B.C.  for  a  protracted

period.   Under Perrins construction  of  the

custodial interference statute, in order  for

the State to prove that Perrin inten[ded]  to

hold  the child ... for a protracted  period,

the  State was obliged to prove that  Perrins

intent to hold the child for three months was

unreasonable, given all the circumstances.

          Perrins   interpretation   of   the

custodial  interference statute is  based  on

the discussion contained in footnote 3 of the

Gerlach  decision.   In  footnote  3,   Judge

Singleton (the author of this Courts opinion)

noted that the term protracted period was not

defined   in   the   custodial   interference

statutes.  He then speculated that the phrase

protracted period could conceivably include a

notion of reasonableness:


If  the  term protracted period is ultimately
interpreted  to  mean  an  unreasonably  long
period  under all the circumstances,  a  jury
may   then   be  required  to  consider   the
defendants reasons for withholding the  child
in  determining whether the child was in fact
withheld  for a protracted period.  Thus,  it
may be that the legislatures requirement that
the  withholding  be for a protracted  period
was   intended  to  [supplant]  a   necessity
defense  by in effect requiring the state  to
disprove necessity in proving the elements of
its  case.  It is unnecessary for us to reach
this  issue  in  this case  because  Gerlachs
retention of Angela in Washington for over  a
year  would  appear to satisfy the protracted
period requirement, however it is defined.

Gerlach,   699  P.2d  at  360  n.3  (emphasis

added).

          Based  on  the suggestion  in  this

footnote,  Perrin  argues  that  the   phrase

intent  to  hold ... for a protracted  period

inherently includes the concept that a parent

is   authorized  to  withhold  a  child  from

another custodian for any length of time that

is  reasonable under the circumstances.   And

based  on this interpretation of the statute,

Perrin  insists  that  he  should  have  been

allowed  to  present evidence (primarily  his

own   testimony,  but  also  the   supporting

testimony  of other witnesses) to prove  that

he  reasonably  feared  that  B.C.  would  be

physically or emotionally harmed  if  he  did

not  remove her from Carlisles household  and

hide her for several months so that she could

obtain mental health counseling.



Clarification of the legal issue


     Ultimately,  our  task in  this  case  is  to

determine  the elements of custodial  interference

as defined in AS 11.41.330(a).

     If  Perrin  is  correct that the  offense  is

defined  so as to require proof that the defendant

intended  to  hold the child for  an  unreasonably

long  period  of time, given all the circumstances

i.e., if the legislature intended for the State to

disprove  the  reasonableness  of  the  defendants

actions   in   each  and  every  prosecution   for

custodial interference  then Perrin is entitled to

a  new  trial.   He  should have been  allowed  to

present  his  proposed  testimony,  and  the  jury

should have been instructed that Perrin was to  be

acquitted  unless  the  State  proved  (beyond   a

reasonable  doubt) that Perrins plan to  hold  the

child  for  several months was  not  a  reasonable

response  to  the situation (as Perrin  reasonably

perceived it).

     My colleagues, Judge Stewart and Judge Coats,

do  not describe the issue in quite this way,  but

their  reasons  for  reversing Perrins  conviction

ultimately  rest on the fact that they agree  with

Perrins    interpretation   of    the    custodial

interference statute.

          In  Judge  Stewarts lead opinion, he declares

that Perrins conviction must be reversed because Perrin

was denied the right to testify  by which he presumably

means  the  right  to testify on an issue  material  to

Perrins   guilt  or  innocence.   But  Judge   Stewarts

characterization of the case implicitly hinges  on  his

acceptance  of Perrins argument about the  elements  of

the  crime   Perrins argument that the legislature  has

defined the offense so as to require the State to prove

the unreasonableness of the defendants conduct.  If the

offense   is  construed  this  way,  then  Perrin   was

obviously denied the opportunity to give testimony that

was  relevant to this element of the crime.  But if the

offense is not defined in the way Perrin suggests, then

Perrins  proposed  testimony  (like  Gerlachs  proposed

testimony)  would  not be relevant, and  Perrins  trial

judge  (like  Gerlachs trial judge)  was  justified  in

excluding this testimony.

          (Judge Stewarts opinion might also be read to

suggest  that the rules governing a defendants personal

testimony are different from the rules governing  other

witnesses   testimony    that   a   defendant   has   a

constitutional   right  to  testify   about   anything,

regardless   of  whether  the  proposed  testimony   is

relevant  and  regardless of whether the  testimony  is

more  prejudicial than probative.  This  is  not  true.

Because I am not sure whether Judge Stewart is actually

asserting  this  proposition of law, I have  placed  my

answer  to  this  contention  in  an  appendix  to   my

dissent.)

          In   Judge  Coatss  concurring  opinion,   he

declares  that Perrins conviction  should  be  reversed

because  Perrin  was denied his right  to  jury  trial.

According  to  Judge  Coats, when Perrins  trial  judge

refused to allow Perrin to explain the reasons for  his

abduction of B.C. and refused to instruct the jury that

Perrin should be acquitted unless the State proved that

Perrin  acted  unreasonably, the  trial  judge  thereby

prevented  the  jury from deliberating on  one  of  the

elements of the crime  the element of Perrins intent to

hold  the child for a protracted period.  Again,  Judge

Coatss  approach to the case ultimately  rests  on  his

acceptance  of Perrins argument about the  elements  of

the  crime   Perrins argument that the legislature  has

defined the offense so as to require the State to prove

the unreasonableness of the defendants conduct.

          But  if  Perrin  is wrong  that  is,  if  the

defendants  reasonableness is not  an  element  of  the

offense   then  the trial judge could lawfully  prevent

Perrin from testifying about his reasons for committing

custodial  interference, and the judge  could  likewise

deny  Perrins request to have the jury decide his guilt

or  innocence based on their approval or disapproval of

his  reasons  for  committing the  crime.   If  Perrins

proposed  testimony was not relevant to  his  guilt  or

innocence, and would only encourage the jury to  decide

the case on an improper basis (i.e., their sympathy for

Perrin  or  their  dislike  of  Carlisle  and  her  new

boyfriend), then Perrins trial judge could do the  same

thing   that   we  upheld  in  Gerlach    prevent   the

introduction of the testimony, and refuse  to  instruct

the jury on the proposed defense.

          I  therefore turn to the real issue:  Did the

Alaska Legislature define custodial interference so  as

to  require the State to disprove the reasonableness of

the  defendants  motive for taking and withholding  the

child?



Interpreting    Alaskas   definition    of    custodial
interference


          Perrin  and my two colleagues all base  their

position  on  the assumption that the Gerlach  footnote

contains  an  accurate interpretation of the  custodial

interference statute.  That is, they assume  that  when

the  Alaska Legislature included the phrase  intent  to

hold  ... for a protracted period in the definition  of

custodial  interference,  the  legislature  meant  this

phrase  to be shorthand for intent to hold ...  for  an

unreasonably  long period under all the  circumstances.

If the statute were construed this way, the State would

always  be  required to disprove the reasonableness  of

the  defendants  motivation for taking or  keeping  the

child.   And thus, defendants would always be  entitled

to explain their reasons for abducting the child.

          But   neither   Perrin  nor  either   of   my

colleagues offers any authority for this interpretation

of  the  statute, other than the footnote  in  Gerlach.

This is troubling because the Gerlach footnote contains

no  authority  on  this  point.  Indeed,  the  footnote

declares that this is only a potential reading  of  the

statute   and  the  footnote explicitly  disclaims  any

intent to resolve this issue of statutory construction.

          Because  the  task is to ascertain  what  the

Alaska Legislature meant when they defined the crime of

custodial   interference  to  require  proof   of   the

defendants  intent to hold the child for  a  protracted

period,  I  now  turn  to  the  traditional  method  of

answering such questions:  examining the wording of the

statute, the origins of the statute, and the historical

context in which the statute was drafted.



  (a)   The   historical  context  of   our   custodial
interference statute


          In  the  middle  of  the last  century,  with

divorce  rates climbing and interstate travel  becoming

easier and cheaper, this country began to experience an

epidemic  of  child abduction by parents and  relatives

abductions generally motivated by the desire  to  annul

or  avoid an adverse custody decree.  The Commentary to

the Model Penal Code contains a lengthy description  of

this social problem as it existed at that time:

     
Willful  defiance of [child]  custody  orders
[was]  a  serious practical problem.  [United
States]  Supreme Court decisions ...  allowed
one  state  to refuse enforcement of  another
states   custody  order  in  a   variety   of
circumstances.   The  second  state   [could]
reopen [another states] custody decree if the
issuing  state lacked jurisdiction  over  the
non-custodial parent or if the original state
would  allow  modification of  the  [custody]
order   under   the   doctrine   of   changed
circumstances.   [This]  latter  ground   ...
proved   so  flexible  that  it  encourage[d]
disappointed  [litigants] to  flee  to  other
jurisdictions    in    order    to     obtain
reconsideration    of    custody     decrees.
Moreover,  a  parent who violate[d]  a  court
order  and  fle[d]  the jurisdiction  [might]
well  escape punishment by the issuing court.
That  court  [had  to] rely on  the  contempt
sanction  to  enforce its decree,  and  civil
contempt   [was  often]  not   considered   a
sufficient  ground for extradition.   Indeed,
some courts [had] gone so far as to hold that
contempt  proceedings against  the  abducting
parent  [were] no longer appropriate once  he
obtain[ed]  a court order [in another  state]
awarding him custody of the child.  While the
proposed  Uniform Child Custody  Jurisdiction
Act  would  greatly alleviate the problem  of
legalized abduction by non-custodial parents,
it  [had]  yet  to find anything  approaching
general acceptance among the states.

American Law Institute, Model Penal Code  and

Commentaries  (Official  Draft  and   Revised

Comments, 1980), Part II,  212.4, pp. 259-260

(footnotes omitted).

          The    National    Conference    of

Commissioners on Uniform State Laws expressed

similar  dismay over the situation  in  their

Prefatory Note to the proposed Uniform  Child

Custody Jurisdiction Act (1968):


     It  is well known that those who lose  a
court battle over custody are often unwilling
to  accept  the judgment of the court.   They
will  [abduct]  the  child  in  an  unguarded
moment or fail to return [the child] after  a
visit and will [then] seek their luck in  the
court  of a distant state where they hope  to
find   and  often do find  a more sympathetic
ear for their plea for custody.  ...

     The  harm  done  to  children  by  these
experiences   can  hardly  be  overestimated.
[One need not be] an expert in the behavioral
sciences  to  know  that a child,  especially
during  [its]  early years and the  years  of
growth,  needs  security  and  stability   of
environment  and a continuity  of  affection.
...

     This  unfortunate state of  affairs  has
been   aided  and  facilitated  rather   than
discouraged  by the law.  ...   The  judicial
trend  has  been  toward  permitting  custody
claimants to sue in the courts of almost  any
state, no matter how fleeting the contact  of
the   child   and  family  was  with   [that]
particular state, [and] with little regard to
any conflict of law rules.  ...  [T]he courts
of various states have acted in isolation and
at  times  in  competition with  each  other,
often with disastrous consequences.  ...

     In  this confused legal situation[,] the
person who has possession of the child has an
enormous    tactical   advantage.    Physical
presence of the child [in a state] opens  the
doors  of [its] courts to [custody] petitions
and   often  assures  [the  claimant]  of   a
decision  in his favor.  It is not surprising
then that custody claimants tend to take  the
law into their own hands, that they resort to
self-help  in  the  form  of  child-stealing,
kidnapping, and various other schemes to gain
possession of the child.

Uniform  Laws Annotated (1999), Vol. 9,  Part

1A, pp. 263-64.

          In  1977,  in an effort to  address

these  social  evils, the Alaska  Legislature

adopted    the    Uniform    Child    Custody

Jurisdiction Act.13  And in that  same  year,

Alaskas  Criminal Code Revision Subcommission

drafted  our custodial interference statutes,

AS 11.41.320 and AS 11.41.330.14



(b)  The  origin  of our definition  of  custodial
interference


     According  to  the derivation  table  in  the

Tentative  Draft  of  the  Alaska  Criminal  Code,

Alaskas  definition of custodial interference  (AS

11.41.330)   is   taken  from  Oregons   custodial

interference  statute,  Oregon  Revised   Statutes

  163.245.15  The Oregon definition of  the  crime

differs  from ours in several ways16, but  Oregons

definition  mirrors  our definition  in  requiring

proof  that  the defendant intended  to  hold  the

child permanently or for a protracted period.17

          The commentary to the Oregon statute does not

directly  explain  what the drafters  meant  by  for  a

protracted  period.   However,  the  Oregon  commentary

strongly suggests that the statute was not intended  to

          allow defendants to litigate (or relitigate) the merits

or  the reasonableness of their child custody situation

when they are prosecuted for custodial interference:

     
          The   intervention  of  the  courts   is
     necessary to adequately safeguard the  childs
     welfare  and sense of security.  Without  the
     inhibiting  influence  of  a  penal   statute
     prohibiting  child-stealing,   the   law   of
     custody  could be reduced to a seize and  run
     policy[,]  since the only deterrent  to  such
     conduct would be [an ineffectual] contempt of
     court proceeding.
     
          The   Commission  believes  [that]   the
     courts  have a duty to protect the  interests
     and  welfare of the child in custody disputes
     and   cases  where  a  removal  from  custody
     adversely  affects the childs  welfare.   The
     court must have the power to compel adherence
     to its [custody] decisions.
     
     Oregon  Criminal  Code  Revision  Commission,

     Commentary  to  O.R.S.  163.245  and  163.257

     (reprinted  in:   Oregon  District  Attorneys

     Association,  Oregon Criminal  Code  of  1971

     (December 1975), p. 130).

          This   conclusion   that   criminal

trials  for custodial interference  were  not

intended  to  be  a forum for litigating  the

reasonableness of an existing  child  custody

decree or child custody arrangement  is  even

more apparent when we compare the Oregon  and

Alaska  custodial  interference  statutes  to

Model Penal Code  212.4(1), the American  Law

Institutes  suggested provision on  custodial

interference  that  was  published  in   1962

(i.e.,  nine years before Oregon drafted  its

revised  criminal  code,  and  fifteen  years

before  Alaska  drafted its revised  criminal

code).

          Model Penal Code  212.4(1) reads:


[Interference with] Custody of Children.

     A   person  commits  an  offense  if  he
knowingly or recklessly takes or entices  any
child under the age of 18 from the custody of
its   parent,   guardian,  or  other   lawful
custodian, when he has no privilege to do so.
It is an affirmative defense that:

          (a)  the  actor believed  that  his
     action  was  necessary to  preserve  the
     child from danger to its welfare; or

          (b)  the  child, being at the  time
     not  less  than 14 years old, was  taken
     away  at  its  own  instigation  without
     enticement and without purpose to commit
     a  criminal offense with or against  the
     child.

Model Penal Code and Commentaries, p. 248.

          One  immediately notices that  this

Model  Penal  Code  provision  contains   two

affirmative defenses that were not adopted by

the  drafters  of the Oregon and  the  Alaska

criminal  codes.   For  purposes  of  Perrins

case, the first of these omitted defenses  is

the more important:  the provision that would

exonerate   defendants  who   believed   that

[their] action was necessary to preserve  the

child  from  danger  to  its  welfare.    The

accompanying  Model  Penal  Code   commentary

explains that this proposed defense hinged on

the  defendants subjective belief;  that  is,

the  Model  Penal Code did not  even  require

that the defendants belief be reasonable.18

          Even  at the time, the drafters  of

the  Model  Penal  Code conceded  that  their

proposed   defense   might   reasonably    be

criticized   as  constituting  a  substantial

          encouragement to child-stealing.19  And, in

fact,  I  have been unable to find  a  single

jurisdiction that has adopted the  subjective

good-faith  defense  proposed  by  the  Model

Penal Code.

          There  are  states whose  custodial

interference statutes contain provisions that

look  like  the  Model Penal Codes  suggested

defense   i.e., provisions that  exonerate  a

defendant  whose motive was  to  protect  the

child  from  a  danger to its  welfare.   But

these   provisions   have  been   interpreted

narrowly, so that they extend no farther than

the  type  of short-term necessity that  this

Court described in Gerlach  the necessity  to

take  action when there is no time to  resort

to normal lawful procedures.

          For   instance,  Pennsylvania   has

enacted   the  Model  Penal  Code  provision,

complete with the defense for defendants  who

act  from the belief that their conduct  will

preserve  the  child from  a  danger  to  its

welfare.   See 18 Penn. Stats.  2904(b)(1).20

But  in  Commonwealth v. Couch, 731 A.2d  136

(Pa.  App.  1999),  the  court  held  that  a

defendant  who wishes to assert this  defense

must show that the danger to the child was so

immediate that normal legal procedures  would

not suffice to protect the child:

          Custody law provides  for
          certain procedures to  be
          followed   in   a   civil
          action    to    challenge
          custody   if   a    party
          believes  that  the  best
          interests  of  the  child
          are  not being met by the
          primary        custodian.
          Therefore, in  order  for
          the             statutory
          justification defense  to
          apply   to   a   criminal
          offense  of  taking   and
          concealing a child, there
          must   be   some  instant
          danger present such  that
          to  follow the prescribed
          civil   procedures  would
          threaten   the  immediate
          welfare of the child.
Couch, 731 A.2d at 144.

          In  State v. McCoy, 421 N.W.2d  107

(Wis.  1988),  the  Wisconsin  Supreme  Court

addressed  a similar issue.  Former Wisconsin

Statute   946.715  provided  a  defense   for

custodial  interference if the  abduction  is

motivated by the intent to protect the  child

from  imminent physical harm.  In McCoy,  the

Wisconsin court rejected the suggestion  that

imminent   harm  should  be  interpreted   to

include  any  continuing and projected  harm.

The court explained that, if the statute were

construed   in   the  manner  the   defendant

suggested,  this  would  prompt  parents  and

relatives to disregard custody decrees and to

engage in self-help:


     Imbuing the term imminent with the broad
meaning   sought   by  the  defendant   would
[dis]courage  ...  resort to  legal  remedies
such  as obtaining a restraining order.   The
manifest intent of this [defense] is  that  a
reasonable removal [of a child] for  purposes
of  safety [will] be permitted[,] but not  to
the  exclusion of resort to the court system.
Any  other more extended concealment,  though
initially justified, would only victimize the
child,  wrongfully depriving the other parent
of  the opportunity to have contact with that
child,   and   interfering  in   the   childs
relationship with the other parent.

McCoy, 421 N.W.2d at 114.

          The  Wisconsin  court  went  on  to

explain  the  underlying  rationale  of   its

interpretation of the statute:


     Children  unfortunately  are  often  the
pawns in the domestic struggles between their
parents.   One parent may try ... to  deprive
[their]  mate,  whom they now  see  as  their
enemy,  of one of lifes great treasures,  ...
the  physical  presence and company  of  ones
child by the concealment of that child.   ...
See Agopian and Anderson, Legislative Reforms
to    Reduce   Parental   Child   Abductions,
6  J.Juv.L. 1, 2-3 (1982); Oversight  Hearing
on  the Parental Kidnaping Prevention Act  of
1980  Before  the Subcomm. on  Crime  of  the
House Comm. on the Judiciary, 97th Cong., 1st
Sess.  (1981)  (statement  of  Representative
William   J.   Huges,   chairman    of    the
subcommittee) (child snatching is one of  the
most  serious  and damaging  forms  of  child
abuse  that  exists.   The  severity  of  the
trauma  of child snatching is one of the  few
points that behavioral scientists agree upon,
almost   without   exception.).    ...    The
[Wisconsin]  legislature has wisely  provided
that  concealment of a child  by  one  parent
from the other parent is justified [only]  if
done  to  protect  the  child  from  imminent
physical harm.  Section 946.715(2)(a), Stats.

     When parents have reached an impasse  in
their  relationship to each  other  and  with
their children, the resolution in a civilized
society   should  be  made  by   institutions
established for such purpose.  In our society
we  have given that duty to the court system.
It  is  in the courts that disputes  such  as
presented  here should be resolved except  in
those situations where action is required  by
one  parent to protect a child from  imminent
physical harm.

McCoy, 421 N.W.2d at 114-15.21

          More    important,   for    present

purposes,  is the fact that the  drafters  of

Oregons   custodial   interference   statutes

completely  rejected the  Model  Penal  Codes

proposed    defense   for   child   abductors

motivated   by  a  concern  for  the   childs

welfare.   The  Oregon  drafters  choice   is

important     because    Alaskas    custodial

interference statutes are based on Oregons.

          The   Oregon   Court   of   Appeals

discussed their states policy choice in State

          v. Easton, 582 P.2d 37 (Or. App. 1978).  The

defendant   in   Easton  was   convicted   of

custodial   interference.   On   appeal,   he

claimed that he was unfairly deprived of  the

opportunity to defend the charge  by  showing

that   his   abduction  of  the   child   was

reasonably  necessary to preserve  the  child

from  harm.   The  Oregon  Court  of  Appeals

answered that this was no defense to a charge

of custodial interference:


     [The  defendant] appears to  attack  the
statute on the ground that, as the statute is
now  drawn,  there  is no opportunity  for  a
defendant to demonstrate that his taking of a
child  in  apparent violation of the  statute
was  based  upon  a  good-faith  belief  that
taking or keeping the child was necessary for
the  childs best interests.  There is  simply
no   merit   in   such  an   argument.    The
legislature has made the determination, as it
was entitled to, that, absent some showing of
immediate  physical  danger  to  the   child,
individuals involved in a custody battle over
children  are  not going to be  permitted  to
steal the children back and forth.

Easton, 582 P.2d at 39-40 (footnote omitted).22

When  the  drafters of Alaskas criminal code wrote  our

definition  of  custodial interference, they  not  only

took  the  phrase intent to hold ... for  a  protracted

period  from the Oregon statute, but they also followed

the  lead  of  the Oregon drafters by not including  an

affirmative defense for defendants whose abduction of a

child  was motivated by a desire to preserve the  child

from danger.

          The  Alaska drafters were obviously aware of the  Model

Penal  Codes Interference with Custody provision,  212.4(1),  and

the  Model  Penal  Codes suggested defense for  child  abductions

motivated  by  an intent to preserve the welfare  of  the  child.

(The  approved  draft  of the Model Penal Code  had  been  issued

          fifteen years before, in 1962.)  Indeed, the drafters of Alaskas

code  quoted  the commentary to Model Penal Code   212.4(1)  when

they  declared  that  the  aim of Alaskas custodial  interference

statutes  was  to protect parental custody against  all  unlawful

interruption.23  But the Alaska drafters did not adopt the intent

to  preserve the child from danger defense that had been proposed

in  the  Model  Penal  Code.  Instead, they based  our  custodial

interference   statutes  on  Oregons  statutes   statutes   that,

according to the Easton decision, were written so as not to allow

any such defense.



          (c)  My conclusion:  The element of intent to hold
       the  child  ...  for  a  protracted  period  was  not
       intended  to  allow  defendants to  litigate  whether
       their  act  of  child abduction was reasonable  under
       the circumstances
     

               As  I explained above, the main issue in this

     case is a question of statutory construction.  Our task

     is  to  determine what the legislature meant when  they

     enacted  a  definition of custodial  interference  that

     requires   the  State  to  prove  that  the   defendant

     inten[ded]  to  hold  the child ...  for  a  protracted

     period.

          Without   citing  any  pertinent   authority,

Perrin  and  my two colleagues assert that this  phrase

was  intended  to embody the requirement that,  in  all

prosecutions for custodial interference, the State must

prove  (beyond a reasonable doubt) that the  defendants

abduction  of  the  child  was unreasonable  under  the

circumstances.   This conclusion completely  disregards

the  social  evil  that  the statute  was  intended  to

address  the widespread practice of child-stealing as a

method to avoid or circumvent adverse custody decrees.

          This  conclusion also disregards another  aim

of the custodial interference statutes that we noted in

Strother v. State, 891 P.2d 214 (Alaska App. 1995).  In

          Strother, we recognized that [t]he emotional and

financial  costs suffered by [a parent]  in  trying  to

locate  [their  missing child] are  among  the  primary

evils  that  the [custodial interference]  statute  was

intended to deter.  Id. at 221-22.  (This passage  from

Strother  is  a quote from the decision of  the  Oregon

Court  of  Appeals in West v. State, 688 P.2d 406,  408

(Or.  App.  1984),  which in  turn  was  based  on  the

Commentary to the Oregon Criminal Code.)

          The   custodial  interference  statutes   are

designed  to make people come to court and/or seek  the

intervention   of  the  authorities  when   they   have

reasonable  concerns about a child custody  arrangement

or  the  wisdom  of an existing child  custody  decree.

These  statutes  are  designed  to  deter  parents  and

relatives  from  taking the law into their  own  hands,

even  when they may have good reason to suspect that  a

child  is being mistreated.  As courts and commentators

have  noted, even a well-motivated child abduction  may

adversely  affect the emotional welfare of  the  child.

Moreover,   even   a  well-motivated  child   abduction

inflicts emotional suffering and financial costs on the

parent whose child has been stolen and is being held in

an undisclosed location.

          The   definition  of  custodial  interference

advocated  by Perrin and my colleagues also  disregards

the  history of our statute.  The drafters  of  Alaskas

custodial interference statutes could have followed the

Model  Penal Codes suggestion and expressly codified  a

defense  for  people whose act of child  abduction  was

motivated by an intent to preserve the child from harm.

Instead,  the  Alaska drafters patterned our  custodial

interference    statutes   on   Oregons   corresponding

statutes.   As explained above, Oregon has rejected  an

intent  to  preserve the welfare of the  child  defense

(except to the extent that it is already covered by the

general justification provisions of the Oregon criminal

code  e.g., necessity or defense of others).

          For   these  reasons,  I  conclude  that  the

musings in the Gerlach footnote are just that  musings.

Contrary  to  Judge  Singletons  speculations,  Alaskas

custodial  interference statutes were  not  drafted  to

require  the  State  to negate any potential  claim  of

necessity, nor was the phrase intent to hold ... for  a

protracted  period  meant  to  require  the  State   to

disprove  the reasonableness of the defendants decision

to   abduct   the   child.   Instead,   our   custodial

interference  statutes were intended to  preclude  this

sort  of defense.  People who are dissatisfied  with  a

custody  decree  must pursue their  legal  remedies  in

court   not  steal the child and then, if caught,  make

the  State prove that there was no reasonable basis for

the abduction.

          Just  like  the trial judge in  Gerlach  (who

precluded  the  defendant  from  testifying  about  her

reasons  for  abducting her child, and who  refused  to

instruct the jury on the defense of necessity), Perrins

trial  judge properly precluded Perrin from  testifying

about  his reasons for abducting his daughter, and  the

judge  properly refused to instruct the jury that  they

should acquit Perrin unless the State proved, beyond  a

reasonable doubt, that Perrins abduction of  the  child

was unreasonable.

          For  these  reasons, I would  affirm  Perrins

conviction.



The meaning of the phrase protracted period


          Thus  far, I have been occupied with the task

of  explaining what the phrase protracted  period  does

not  mean.   In  particular,  I  have  been  trying  to

demonstrate  that  this  phrase  was  not  intended  to

require  proof of lack of good reason for the abduction

in   prosecutions  for  custodial  interference.    The

drafters of our custodial interference statutes did not

intend  to  require the State to disprove the  arguable

reasonableness of the defendants act of child abduction

as an element of the crime.

          Strictly speaking, that is all we must decide

in this case.  If the reasonableness of Perrins conduct

(or,  rather, the unreasonableness of his  conduct)  is

not  an element of the offense, then Perrins conviction

can be affirmed, and we can leave the exact meaning  of

the  phrase  protracted period for another  day.   That

being said, there is a portion of the Model Penal  Code

commentary  that suggests what the Oregon drafters  and

the  Alaska  drafters had in mind  when  they  required

proof of the defendants intent to hold the child for  a

protracted period.

          As   explained   above,  Model   Penal   Code

212.4(1)   is  the  section  that  prohibits  custodial

interference.  Section 212.4(1) defines the offense  as

tak[ing]  or entic[ing] any child under the age  of  18

from  the  custody  of its parent, guardian,  or  other

lawful custodian, when [the defendant] has no privilege

to do so.

          The  commentary to this section declares that

this  definition  was not intended to  reach  every  de

minimis  instance  of  unauthorized  movement   [of   a

child].24   The  commentary then discusses  an  earlier

draft of the same section  a draft that

          undertook  to  distinguish  between
          significant and insignificant  acts
          [of   custodial  interference]   by
          limiting  liability  to  [acts  of]
          removal for so extended a period as
          would  be  likely to  substantially
          supplant  the custodians  authority
          over  the child.  The Council found
          this   language   cumbersome    and
          concluded that the [same]  idea  is
          conveyed adequately by defining the
          offense  as a taking from  custody.
          This    formulation   connotes    a
          substantial    interference    with
          parental  control, as distinguished
          from mere physical removal from the
          custodial  premises  for  a   brief
          period.
     
     Model  Penal Code and Commentaries, pp.  257-

     58.

               Obviously,   one  might  reasonably

     question   the  Model  Penal  Code   drafters

     conclusion that the phrase take from  custody

     conveys  exactly the same idea as  take  from

     custody for so extended a period as would  be

     likely   to   substantially   supplant    the

     custodians authority over the child.  Without

     reading  the  accompanying  commentary,   one

     would   be   hard-pressed  to   deduce   this

     limitation on the scope of liability from the

     wording of  212.4(1) itself.

               Although    neither   the    Oregon

     commentary    nor   the   Alaska   commentary

     discusses  this  point,  I  believe   it   is

     reasonable   to  conclude  that  the   Oregon

     drafters and the Alaska drafters included the

     phrase  intent to hold the child  ...  for  a

     protracted  period  in our  states  custodial

     interference statutes for the very purpose of

     clarifying   that  the  crime  of   custodial

     interference  was not intended  to  apply  to

     every de minimis deprivation of custody,  and

     that  criminal liability under the  custodial

     interference statutes should be limited in  a

     manner similar to the limitation contained in

     the earlier draft of the Model Penal Code.

          But  rather than distinguishing  de

minimis abductions from punishable abductions

based   on   the  actual  duration   of   the

abduction,  the  Oregon and  Alaska  statutes

draw  the  line based on the planned duration

of the abduction  by requiring proof that the

defendant  intended to hold the child  for  a

length   of  time  that  would  substantially

defeat   the  victim  custodians   right   of

physical custody.  This allows the conviction

of  defendants who planned to hold the  child

for  a  lengthy period but who, through  good

fortune, were apprehended after only a  brief

time.

          This,  I  believe, is the  intended

meaning  of  the phrase intent  to  hold  the

child ... for a protracted period.  It refers

to  the  defendants intent  to  withhold  the

child from the victim-custodian for so long a

time  as  to substantially defeat the victims

right  to  physical custody (whether  primary

custody or limited custody).25

                  Appendix
Permissible Limitations on a Defendants Right
to Testify


          Judge  Stewarts  opinion  might  be

read  to  suggest  that  a  defendant  in   a

criminal trial has a constitutional right  to

testify  about anything  even if the proposed

testimony  is  not relevant and is  therefore

barred  by Evidence Rule 402, or even if  the

proposed  testimony is more prejudicial  than

probative  and is therefore excludable  under

Evidence Rule 403.

          As  his  sole  authority  for  this

proposition, Judge Stewart quotes  Hughes  v.

State,  513  P.2d 1115, 1119  (Alaska  1973),

where   our  supreme  court  stated  that   a

defendants  right  to  testify  is  of   such

importance that [n]o defendant requesting  to

testify should be deprived of exercising that

right  and conveying his version of the facts

to  the  court or jury.  But Hughes does  not

deal with the issue of whether a defendant is

specially  entitled  to  give  testimony   in

violation of the rules of evidence.   Rather,

Hughes deals with a very different issue  the

question of whether criminal defendants  have

the  right to take the stand at trial despite

their attorneys advice to the contrary.

          Hughes   declares  that  defendants

have  the  final  word on whether  they  will

testify.   But  Hughes does not  address  the

question of whether defendants have the right

to present irrelevant or unfairly prejudicial

testimony.  To gloss over this problem, Judge

Stewart  quotes  only  part  of  the  supreme

courts   statement  concerning  a  defendants

right  to  testify.  What the  supreme  court

actually said in Hughes was that a defendants

right  to  testify is so important that  [n]o

defendant  requesting to  testify  should  be

deprived   of  exercising  that   right   and

conveying  his version of the  facts  to  the

court   or   jury,  regardless  of  competent

counsels  advice to the contrary.26 (emphasis

added)

          In  Hughes, the defendants proposed

testimony    was   clearly    relevant    and

admissible.  Although our supreme  court  did

not   describe   the   details   of   Hughess

anticipated testimony, the court stated  that

most  of  what [Hughes] wanted  to  say  [was

already]  presented to the jury by  means  of

the  statement which he gave to the police.27

Thus,  the  relevance (and admissibility)  of

this testimony was not disputed.

          But  relevance is the central issue

in  Perrins  case  because the  relevance  of

Perrins proposed testimony hinges on  how  we

interpret the custodial interference statute.

If   Perrins   interpretation  of  protracted

period   is   correct,  then   his   proposed

testimony was relevant to the jurys  decision

of  whether he intended to hold his  daughter

for  a  protracted  period.   Conversely,  if

Perrins  interpretation of protracted  period

is wrong, then his proposed testimony was not

relevant  to any issue facing the  jury,  and

his  proposed  testimony would almost  surely

have  encouraged the jury to decide the  case

on improper grounds.

          If  Perrins proposed testimony  was

irrelevant,  it was barred by  Evidence  Rule

402.   If  the  proposed testimony  was  more

prejudicial  than probative, the trial  judge

could  properly  preclude it  under  Evidence

Rule 403.

          This  Court  has repeatedly  upheld

trial  judges who precluded a defendant  from

presenting  irrelevant or overly  prejudicial

testimony.  One example that has already been

extensively  discussed is Gerlach  v.  State,

699 P.2d 358 (Alaska App. 1985).  In Gerlach,

this court upheld a trial judge who precluded

the   defendant  from  testifying  about  her

reasons   for  abducting  her  daughter   and

holding her for twelve months.  We ruled that

the  trial  judge properly prevented  Gerlach

from  testifying about these matters  because

Gerlachs proposed testimony was relevant only

to  the defense of necessity, a defense  that

was not legally available to her.28

          Similarly, in Degler v. State,  741

P.2d  659 (Alaska App. 1987), a defendant  on

trial  for robbery wished to testify that  he

committed  this crime because he  desperately

needed  money  to fly to Idaho  to  attend  a

child custody hearing and maintain custody of

his  daughter; the defendant wanted  to  make

sure that his ex-wife (whom he considered  to

be an unfit parent) did not obtain custody of

the child.29  The trial judge ruled that this

evidence,  even if believed, was insufficient

as  a  matter  of  law to  prove  either  the

defense  of  necessity  or  the  defense   of

duress.   The trial judge therefore precluded

          the defendant from giving the proposed

testimony.30  We agreed with the trial judges

interpretation of the law, and  we  therefore

upheld  the trial judges decision to preclude

the   defendant  from  testifying  about  his

reasons for committing the robbery.31

          Another  more  recent  example   is

Busby  v.  State,  40 P.3d 807  (Alaska  App.

2002),  where  we held that the  trial  judge

could  lawfully have prevented the  defendant

from   testifying  in  support  of  his  sole

defense   a  mistake-of-law defense   because

such defenses are litigated to the court (not

the  jury), and thus the defendants  proposed

testimony was irrelevant to any of the issues

to be decided by the jury.32

          Gerlach,  Degler,  and  Busby   are

ultimately  grounded on  the  principle  that

irrelevant  evidence is  inadmissible.   This

principle is codified in Alaska Evidence Rule

402  and  in Federal Evidence Rule  402.   In

Gerlach,  Degler, and Busby,  the  defendants

proposed  to testify about matters that  were

irrelevant to the jurys decision of the  case

irrelevant in Gerlach and Degler because  the

defenses  of  necessity and duress  were  not

available  to the defendants as a  matter  of

law,  and  irrelevant in  Busby  because  the

issue  that the defendant wished to  litigate

(mistake of law) is not decided by the  jury.

In all three cases, this Court ruled that the

trial  judges  had properly  exercised  their

authority  when they precluded the defendants

from  presenting their proposed testimony  to

the  jury.  In other words, Evidence Rule 402

          limits the testimony of defendants just as it

limits  the  testimony  of  other  witnesses.

Defendants have no due process right to  take

the stand and present irrelevant testimony.

          Despite  our decisions in  Gerlach,

Degler,  and Busby, Judge Stewart appears  to

assert  that  a trial judge is  powerless  to

enforce Evidence Rule 402 against a defendant

who wishes to testify but whose testimony  is

irrelevant to the issues to be decided by the

jury.   I  am unaware of any court  decision,

state or federal, holding that Evidence  Rule

402  does  not  apply  to  the  testimony  of

criminal  defendants.   Indeed,  the   United

States  Supreme  Court has  stated  that  the

defendant in a criminal case does not have an

unfettered right to offer testimony  that  is

incompetent,    privileged,   or    otherwise

inadmissible   under   standard   rules    of

evidence.33

          Moreover,  even when the defendants

proposed  testimony  is admittedly  relevant,

the  United States Supreme Court has rejected

[t]he proposition that the Due Process Clause

guarantees   the  right  to   introduce   all

relevant  evidence.34  The Court called  this

proposition   simply   indefensible.35    For

instance, in Rock v. Arkansas36, even  though

the  Supreme Court declared that  an  accused

has  a  fundamental ... right to present  his

own version of events in his own words ... by

calling ... himself as a witness37, the Court

also  declared  that a state  would  be  well

within  its powers in preventing a  defendant

from   testifying  if,  [under]   established

          guidelines [for] the evaluation of post-

hypnosis  testimony[, the state is]  able  to

show  that  [the  proposed]  testimony  in  a

particular   case   is  so  unreliable   that

exclusion  is  justified.38  After  Rock,  at

least  three  states  have  held  that  trial

judges  have  the  authority  to  prevent   a

defendant  from testifying if  the  defendant

underwent    hypnosis    and,    given    the

circumstances,   the   defendants    proposed

testimony is shown to be unreliable.39

          More   generally,  [a   defendants]

right to present relevant testimony ...  may,

in  appropriate  cases,  bow  to  accommodate

other  legitimate interests in  the  criminal

trial process [so long as these] restrictions

of  a  defendants right to testify [are]  not

...  arbitrary  or  disproportionate  to  the

purposes  they are designed to serve.40   One

of the long-recognized and legitimate reasons

for restricting the admission of evidence  is

to  avoid[] litigation [of] issues other than

the guilt or innocence of the accused.41

          This is the principle behind Alaska

Evidence Rule 403, which authorizes  a  trial

judge to exclude admittedly relevant evidence

if  the  probative value of that evidence  is

outweighed  by the danger that  the  evidence

would  prejudice the fairness of  the  trial,

confuse the issues, or otherwise mislead  the

jury.   Evidence  Rule 403 empowers  a  trial

judge  to  exclude evidence if  admission  of

that  evidence would pose a substantial  risk

of  deflecting  the jury from their  task  of

reaching a proper verdict under the law.   In

          the present case, Judge Smith relied on this

principle   as  an  alternative  ground   for

excluding  Perrins proposed  testimony.   The

judge  concluded that Perrins testimony would

only  encourage the jury to ignore their duty

to  decide  Perrins case under the applicable

law   by encouraging them to speculate as  to

whether  Perrins  actions  might  have   been

justified by necessity (a defense that Perrin

conceded  was not available to  him),  or  by

prompting the jurors to reach a result  based

on their sympathy or enmity toward the people

involved in the litigation.

          This Court has repeatedly held that

a trial judges proper application of Evidence

Rule  403 does not abridge a defendants right

to  present  testimony.42  Here, Judge  Smith

had  good reason for concluding that  Perrins

proposed testimony would induce the  jury  to

decide  Perrins  case on an  improper  ground

either the inapplicable defense of necessity,

or  (potentially) an attack on the  character

of  Carlisle,  the childs primary  custodian,

casting the insinuation that Carlisle did not

deserve the protection of the law.

          Thus, unless Perrins testimony  had

substantial probative value, Judge Smith  did

not abuse his discretion  and did not abridge

Perrins   constitutional  rights    when   he

excluded this testimony.  And, again, Perrins

proposed testimony would have probative value

only  if  his  interpretation of  the  phrase

protracted period is correct.  If Perrin  has

correctly    construed   what   the    Alaska

Legislature  meant  by the phrase  protracted

          period in the custodial interference statute,

then    Perrins   proposed   testimony    had

considerable probative value, and Judge Smith

abused  his  discretion  in  excluding   this

testimony.  On the other hand, if  Perrin  is

wrong  in  his interpretation of the  statute

if Perrins intent to hold the child for three

or  four months constituted an intent to hold

the child for a protracted period, regardless

of  his  reasons for taking the  child   then

Perrins  proposed testimony  had  no  obvious

probative   value,  and  Judge  Smith   could

exclude  it  both under Rule 402 (because  it

was  irrelevant) and under Rule 403  (because

it created a substantial danger that the jury

would be induced to decide Perrins case on an

improper basis).



_______________________________
     1 699 P.2d 358 (Alaska App. 1985).

     2 AS 11.41.320(a).

     3 AS 11.41.320(b).

     4 AS 11.81.320.

     5 AS 11.41.330(a).

     6  See  Cooksey  v.  State, 524 P.2d 1251,  1255-57  (Alaska
1974).   In  Cooksey,  the  Alaska Supreme  Court  established  a
procedure  permitting a defendant to plead no contest  and  still
preserve  an  issue  for  appeal,  so  long  as  the  issue   was
dispositive of the defendants case.  Id.

     7  In  Walker  v.  State, 578 P.2d 1388 (Alaska  1978),  the
Alaska Supreme Court ruled that the superior court must address a
defendant  personally to obtain a waiver of  jury.   We  followed
Walker  in  McGlauflin v. State, 857 P.2d 366, 369  (Alaska  App.
1993), and ruled that the record must explicitly demonstrate that
the defendant understood and personally relinquished the right to
trial by jury.

     8 Gerlach, 699 P.2d at 359, 360.

     9 Id. at 359.

     10 Id.

     11 Id.

     12 Id. at 360.

     13 Id.

     14 Id. at 361.

     15 Id. at 362.

     16 Id. at 362-63.

     17 AS 11.41.320(a).

     18 AS 11.41.330(a).

     19 Gerlach, 699 P.2d at 362.

     20  See Vachon v. Pugilese, 931 P.2d 371, 377 (Alaska 1996),
quoting Strother v. State, 891 P.2d 214, 223 (Alaska App. 1995).

     21 AS 11.41.320(a).

     22 513 P.2d 1115 (Alaska 1973).

     23 Id. at 1119.

     24 See Gerlach, 699 P.2d at 362.

     25 See Strane v. State, 16 P.3d 745, 753 (Alaska App. 2001),
revd on other grounds, 61 P.3d 1284 (Alaska 2003).

1   AS 11.41.330(a).

     2   699 P.2d 358 (Alaska App. 1985).

     3   Id. at 359.

     4   Id.

     5   Id.

6   Id.

     7   Id. at 359-60.

     8   Id. at 359.

     9    Cleveland  v.  Anchorage, 631 P.2d 1073,  1078  (Alaska
1981); Gerlach, 699 P.2d  at 360.

     10     Schnabel  v.  State, 663 P.2d 960, 966  (Alaska  App.
1983).

     11    Gerlach, 699 P.2d at 360.

     12    Id. at 363.

     13     See,  e.g.,  Cleveland, 631 P.2d at 1081;  Nelson  v.
State, 597 P.2d  977, 980 (Alaska 1979); Wells v. State, 687 P.2d
346, 350-51 (Alaska App. 1984); Schnabel, 663 P.2d at 966.

     14    Gerlach, 699 P.2d at 360 n.3.

     15    Id.

     16    Id.

     17    Id.

     18    Id.

     19    Id.

     20    Id.

1  See  Gerlach,  699 P.2d at 362-63.  The  wording  of  the
opinion is arguably ambiguous as to whether the trial  judge
precluded  the  proposed  testimony  or,  instead,   allowed
Gerlach  to present the testimony but then precluded Gerlach
from   arguing  the  defense  of  necessity  based  on  this
testimony.   The  briefs filed in Gerlach clarify  that  the
trial  judge precluded Gerlach from presenting her  proposed
testimony.  See Brief of Appellant filed November 9, 1984 in
Gerlach  v.  State, File No. A-501, pp. 3-6,  and  Brief  of
Appellee filed December 21, 1984, pp. 2-5.

2 Gerlach, 699 P.2d at 359-360.

3 Id. at 359.

4 Id.

5 Id. at 360.

6 Id.

7 Id.

8 Id. at 361.

9 Id. at 363.

10Id. at 362.

11Gerlach, 699 P.2d at 362.

12Id.

13See  SLA  1977, ch. 61,  1.  That act  has  now  been
superseded   by   the   Uniform   Child   Custody   and
Jurisdiction   Enforcement  Act,  AS   25.30.300    910
(enacted in SLA 1998, ch. 133,  2).

14See Alaska Criminal Code Revision, Tentative Draft, Part
I  (February  1977), pp. 53-54 (text  of  the  proposed
statutes) and pp. 62-63 (commentary).

15See Alaska Criminal Code Revision, Tentative Draft, Part
I (February 1977), Appendix II (Derivations), p. 98.

16The Oregon statute states:  A person commits the crime of
custodial interference in the second degree if, knowing
or  having reason to know that he has no legal right to
do  so,  he takes, entices, or keeps a person from  his
lawful custodian with intent to hold him permanently or
for a protracted period.

17Oregons definition is, in turn, taken from New York Penal
Laws,   135.45,  custodial interference in  the  second
degree.   See Oregon Criminal Code Revision Commission,
Commentary  to O.R.S.  163.245 and 163.257,  Derivation
(reprinted  in:  Oregon District Attorneys Association,
Oregon Criminal Code of 1971 (December 1975), p.  129).
(At  least in its reprinted form, the Oregon commentary
mistakenly refers to New York Penal Law  134.45.  There
is no such statute; the correct reference is  135.45.)

The  New York custodial interference statute reads,  in
pertinent  part:   A  person  is  guilty  of  custodial
interference in the second degree when ... [, being]  a
relative  of  a  child  less than  sixteen  years  old,
intending  to  hold  such child permanently  or  for  a
protracted  period, and knowing that he  has  no  legal
right to do so, he takes or entices such child from his
lawful  custodian[.]  The New York statute is based  on
the  Model Penal Code.  See Kennedy v. State, 640 So.2d
22, 31 (Ala. Crim. App. 1993).

18See Model Penal Code and Commentaries, pp. 259-261.

19See id.

20This portion of the statute reads:  Defenses.  It is a
defense that ... the actor believed that his action was
necessary  to  preserve the child from  danger  to  its
welfare[.]

21In 1987, Wisconsin Statute  946.715 was repealed  and
replaced by  948.31.  Nevertheless, McCoy continues  to
be  cited with approval for its interpretation  of  the
Wisconsin  offense  of  custodial  interference.   See,
e.g.,  State v. MacDonnell, 2001 WL 477436 *2, *6 (Wis.
App.  2001); State v. Inglin, 592 N.W.2d 666, 674 (Wis.
App. 1999).

22The  omitted footnote quotes Oregon Statute  161.209,
which authorizes a person to use a reasonable amount of
force  to  defend third persons from imminent  unlawful
force.

23    Alaska  Criminal  Code Revision, Tentative  Draft,  Part  1
(1977), p. 65.

24   Model Penal Code and Commentaries, p. 257.

25Compare our decision in Strother v. State, 891 P.2d 214
(Alaska  App.  1995),  where we  held  that  even  when
physical  custody of a child is jointly shared  by  two
parents, a parent can commit custodial interference  if
that  parent  takes custody of the child and  exercises
that  custody  in  a  manner that defeats  the  custody
rights of the other parent.  Id. at 224.

26Id. at 1119.

27Id. at 1120.

28Gerlach, 699 P.2d at 359-360, 363.  To reiterate what was
said in footnote 1 of this dissent:  The wording of the
Gerlach opinion is arguably ambiguous as to whether the
trial  judge  precluded  the  proposed  testimony   or,
instead,  allowed Gerlach to present the testimony  but
then  precluded  Gerlach from arguing  the  defense  of
necessity based on this testimony.  The briefs filed in
Gerlach  clarify that the trial judge precluded Gerlach
from  presenting her proposed testimony.  See Brief  of
Appellant  filed November 9, 1984 in Gerlach v.  State,
File  No.  A-501, pp. 3-6, and Brief of Appellee  filed
December 21, 1984, pp. 2-5.

29Degler, 741 P.2d at 660.

30Id.

31Id. at 661.

32Busby, 40 P.3d at 816-17.

33Taylor v. Illinois, 484 U.S. 400, 410; 108 S.Ct. 646,
653; 98 L.Ed.2d 798 (1988).

34Montana v. Egelhoff, 518 U.S. 37, 42; 116 S.Ct. 2013,
2017;  135  L.Ed.2d 361 (1996) (Justice Scalia  writing
for a four-member plurality).

35Id.

36483 U.S. 44, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987).

37Id., 483 U.S. at 52, 107 S.Ct. at 2709.

38Id., 483 U.S. at 61, 107 S.Ct. at 2714.

39See State v. Butterworth, 792 P.2d 1049, 1059 (Kan. 1990)
(rejecting   the   contention  that  exclusion   of   a
defendants testimony violates Rock v. Arkansas);  State
v.  L.K.,  582  A.2d 297, 306 (N.J. App. 1990)  (same);
Tumlinson  v.  State, 757 S.W.2d 440 (Tex.  App.  1988)
(same).

40Rock v. Arkansas, 483 U.S. at 55-56, 107 S.Ct. at 2711.

41United States v. Scheffer, 523 U.S. 303, 314; 118 S.Ct.
1261, 1267; 140 L.Ed.2d 413 (1998).

42See Heaps v. State, 30 P.3d 109, 112 (Alaska App. 2001);
Ragsdale v. State, 23 P.3d 653, 663 (Alaska App. 2001);
Larson  v. State, 656 P.2d 571, 575 (Alaska App. 1982).
See  also Brown v. State, 779 P.2d 801, 804-05  (Alaska
App.  1989)  (proper application of Rule 403  does  not
abridge  a  defendants right to confront the  witnesses
against him).