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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).
