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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| WILLIAM PETER PASTOS, | ) |
| ) Court of Appeals No. A-9425 | |
| Appellant, | ) Trial Court No. 3AN-05-3339 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2102 May 18, 2007 |
| ) | |
Appeal from the District Court, Third Judi
cial District, Anchorage, Sigurd E. Murphy,
Judge.
Appearances: Joe P. Josephson, Anchorage,
for the Appellant. Blair M. Christensen,
Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
David W. M rquez, Attorney General, Juneau,
for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
In August 2005, William Peter Pastos pleaded no contest
to four counts of engaging in unlawful contact with his ex-
girlfriend, Kristen Yearsley. On each of the four counts,
District Court Judge Sigurd E. Murphy sentenced Pastos to serve
15 days in jail, with another 345 days suspended on condition of
Pastoss good behavior during ten years probation. After imposing
this sentence, Judge Murphy ordered Pastos to report to jail the
next morning. In the interim, as a condition of release, Judge
Murphy ordered Pastos to have no contact, direct or indirect,
with Yearsley.
After Pastos left the courtroom, he went to the bank
and deposited a check for $2000 that Yearsley had written to him
more than three years earlier (as payment for house painting).
Based on Pastoss act of negotiating this check, Judge Murphy
found that Pastos had engaged in indirect contact with Yearsley,
thus violating the terms of his release.
Violating the terms of ones release is a crime under
AS 11.56.757(a). Based on Pastoss commission of this new crime,
Judge Murphy revoked Pastoss probation and sentenced him to some
of the previously suspended jail time. Pastos now appeals.
The question is whether Pastoss act of depositing
Yearsleys check constituted a contact with Yearsley in violation
of Pastoss conditions of release. We conclude that, given the
circumstances of this case, Judge Murphy reasonably found that
Pastos cashed the check with the knowledge that his action would,
in all probability, cause Yearsley emotional distress and fear.
Because Pastos acted with this culpable mental state, his act of
cashing the check constituted a prohibited contact with Yearsley.
Additional underlying facts, and Judge Murphys ruling
Yearsley wrote the check to Pastos in 2002 in
payment for painting her house. According to Yearsley,
Pastos refused the check (declaring that he performed
the labor out of friendship), so Yearsley kept the
check and put it in a locked box in her house.
When Yearsley presented her victim-impact
statement at Pastoss sentencing hearing, she mentioned
this check and the fact that she thought the check was
still in her possession. (Yearsley told the court that
she had last seen the check in the box sometime in the
spring of 2005.) In her victim-impact statement,
Yearsley told the court that she now thought that
Pastos had refused the check to make [her] feel
obligated, and that she had [paid] for it time and time
again emotionally.
Later, after Pastos cashed the check and the
State petitioned Judge Murphy to revoke Pastoss
probation, Yearsley told Judge Murphy that she believed
that Pastos had broken into her house and stolen the
check and that he cashed the check out of malice and
vindictiveness, to hurt her financially, and to show
her that he continued to have power over her.
At the probation revocation hearing, Pastos
offered a different account of what happened to the
$2000 check. According to Pastos, he accepted the
check when Yearsley wrote it, but he kept the check and
did not cash it. Pastos testified that he kept the
check clipped behind the visor of his truck from 2002
to 2005. (Two other witnesses corroborated this.)
Pastos said he did not wish to cash the check, but he
kept it, thinking that he might cash it one day if he
really needed the money.
Then, at Pastoss sentencing hearing, Yearsley
spoke about the check during her victim-impact
statement. According to Pastoss version of events,
Yearsleys remarks during the victim-impact statement
reminded him that he still had the check and that the
check was a potential source of needed funds, now that
he was going to jail. Pastos testified that, as he
left the sentencing hearing, he spoke to his ex-wife,
Gina Pastos, and asked her what he should do:
Pastos: I looked at the check, [and I
asked Gina,] What do you think? [Do] you
think I could cash this? And she said, Yeah,
I think you can cash it; you did the work.
And I said, Yeah, I think so, too.
Pastos told Judge Murphy that he did not
think that depositing the check could
possibly be any kind of contact with
[Yearsley], nor did he think that his act of
negotiating the check would cause Yearsley to
be afraid of him.
After hearing this conflicting
testimony, Judge Murphy found that, contrary
to Yearsleys testimony, the check had not
been in her possession. Judge Murphy found,
instead, that Pastos had had custody of the
check at all pertinent times.
Nevertheless, Judge Murphy found
that Pastos engaged in indirect contact with
Yearsley when he negotiated the check:
The Court: Mr. Pastos ... not only knew
of the courts order against any indirect
contact, but [he] was aware [that it] clearly
prohibited him from doing anything that would
intrude upon [Ms. Yearsley]. I also [find],
based on the totality of the facts in this
case, ... that [Mr. Pastos] knew exactly what
he was doing by cashing the check that it
wasnt a matter of just wanting the money
because he was impoverished (which I assume
to be true), but [that] he [also] knew as he
left the courtroom and went to cash that
check that it would have an effect on [Ms.
Yearsley]. And, therefore, [it] was an
indirect contact. This is not an innocent
cashing of a check. It is a purposeful
action on his part to affect adversely the
victim in this case, ... within hours after
being warned not to. ... Mr. Pastos was
aware of a substantial probability that his
conduct violated [his conditions of release]
and would have the deleterious effect [that]
it apparently has had on the victim.
Why we conclude that Pastoss act of cashing the check
constituted a prohibited contact with Yearsley
The true source of the problem in this case
is the ambiguity of the word contact.
In our criminal code (Title 11) and in AS
18.65 and 18.66, the chapters of our statutes that
govern protective orders in cases of stalking, sexual
assault, and domestic violence, the word contact
appears in over twenty statutes. Leaving aside those
instances where the statutory reference is explicitly
to sexual contact or to physical contact, there are
eight statutes that use the term contact to refer to an
interaction between two people.1 But with one
exception, these statutes have no pertinent, clarifying
definition of exactly what sort of interaction they are
referring to.2
The Alaska Supreme Court noted in Cooper v.
Cooper, 144 P.3d 451 (Alaska 2006), that the normal
meaning of the verb contact is to either physically
touch or communicate with another person. Id. at 457-
58. And, with the exception of the stalking statute,
see AS 11.41.270(b)(3), it appears that our statutes
employ the word contact in this normal sense.3
In Cooper, our supreme court held that the
word contact is used in this normal sense in AS
18.66.100(c)(2) the statute governing protective
orders for victims of domestic violence. Id. at 458.
The supreme court noted that this statute employs the
word contact as part of the phrase, may ... prohibit
the respondent from telephoning, contacting, or
otherwise communicating directly or indirectly with the
petitioner. The court then concluded:
The statutes inclusion of the [words] or
otherwise communicating immediately after
[the word] contacting strongly suggests that
[the] nonphysical contact [that a court may
prohibit in a protective order] must involve
some element of direct or indirect
communication ... .
Cooper, 144 P.3d at 458.
Based on this clarification of the
meaning of contact, the supreme court
concluded that there was no violation of a
domestic violence protective order when the
plaintiff and the respondent attended the
same professional gathering and the
respondent made brief eye contact with the
plaintiff. The court explained, There is no
evidence that the momentary eye contact that
[the superior court] found to have occurred
had communicative content. Thus, contacting
did not take place. Id. at 458-59.
In the present case, the
prohibition on Pastoss contacting Yearsley
was contained in Pastoss conditions of
release rather than in a domestic violence
protective order issued under AS 18.66.100.
Nevertheless, the district court imposed
those conditions of release because Pastos
had just been convicted of engaging in
unlawful contact with Yearsley an offense
which, under AS 11.56.750(a)(2), is defined
as either directly or indirectly, knowingly
contact[ing] or attempt[ing] to contact the
victim or witness in violation of [a court]
order.
In this context, it is reasonable
to conclude that when Judge Murphy directed
Pastos to have no contact, direct or
indirect, with Yearsley, the judge was using
the word contact in the same sense as it is
used in the protective order statute
(AS 18.66.100) and the unlawful contact
statute (AS 11.56.750).
Cooper holds that, for purposes of
AS 18.66.100, contact means more than simply
performing an act that impinges on another
person in some way. Rather, contact requires
[an] element of direct or indirect
communication. Id. at 458. In other words,
the finder of fact must be convinced that the
respondent knowingly communicated, directly
or indirectly, with the petitioner when the
respondent engaged in the specified act. Id.
at 458 n. 19.
As the Cooper opinion suggests,
this requirement of communication means that
the same physical actions may or may not
constitute a prohibited contact, depending on
the circumstances.
Although the supreme courts
decision in Cooper was issued more than a
year after Judge Murphy made his ruling in
Pastoss case, Judge Murphy engaged in a very
similar analysis when he assessed whether
Pastoss act of cashing the check constituted
a prohibited contact with Yearsley.
As he began his remarks, Judge
Murphy commented that Pastos was aware that
his conditions of release prohibited him from
doing anything that would intrude on
Yearsley. If the judge had stopped there, we
would vacate his order and direct him to
reconsider this matter because, as we
explained above, contact does not encompass
every act that impinges on another person.
But Pastos cashed the check shortly
after he heard Yearsley say (in her victim-
impact statement) that she thought the check
was still in her house, and that she believed
Pastos had earlier broken into her house and
had moved her belongings around.
Under these circumstances, one
might reasonably conclude that Pastos knew
(i.e., Pastos was aware of a substantial
probability4) that his act of cashing the
check would cause Yearsley emotional distress
and fear that this action would communicate
to her, indirectly, that she should be afraid
of Pastos and his continuing influence on her
life. This is, in fact, the conclusion that
Judge Murphy drew:
The Court: I [find], based on the
totality of the facts in this case, ... that
[Mr. Pastos] knew exactly what he was doing
by cashing the check that it wasnt a matter
of just wanting the money because he was
impoverished (which I assume to be true), but
[that] he [also] knew as he left the
courtroom and went to cash that check that it
would have an effect on [Ms. Yearsley]. And,
therefore, [it] was an indirect contact.
This is not an innocent cashing of a check.
It is a purposeful action on his part to
affect adversely the victim in this case ...
. Mr. Pastos was aware of a substantial
probability that his conduct violated [his
conditions of release] and would have the
deleterious effect [that] it apparently had
on the victim.
In other words, Judge Murphy found
that Pastos was not merely cashing the check
to obtain money although the judge conceded
that this may have been one of Pastoss
reasons for cashing the check. Judge Murphy
found that, in addition to whatever monetary
need Pastos may have had, Pastos also knew
that, under the circumstances, his act of
cashing the check would constitute a
communication to Yearsley.
Cases on this point of law are few,
but we note that the Mississippi Court of
Appeals reached a similar decision, on
analogous facts, in the case of Broome v.
Broome, 832 So.2d 1247 (Miss. App. 2002).
Broome v. Broome arose from a
dispute between a divorced couple, Paul and
Cindy Broome. Paul had been ordered to make
support payments to Cindy. Over the course
of a year and a half, Cindy accumulated a
total of twenty-nine checks that Paul gave
her for child support and medical expenses.
Then, over the course of a single week (the
week of Pauls birthday), Cindy presented all
twenty-nine checks to Pauls bank for payment
resulting in the banks dishonoring twenty-
three of the checks for insufficient funds.5
Paul asked the court to hold Cindy
in contempt. At the ensuing hearing, the
testimony offered by Paul and Cindy [was] in
sharp dispute.6 Cindy testified that Paul
had asked her to hold the checks, while Paul
denied that he had ever asked Cindy to hold a
check for more than two days.7 The
chancellor who heard the case decided that
Cindy was not telling the truth, and the
chancellor therefore held Cindy in contempt
of court.8
On appeal, Cindy argued that the
chancellors ruling was arbitrary and
capricious and against the overwhelming
weight of the evidence.9 But as the
Mississippi Court of Appeals explained, [t]he
chancellor saw it differently:
In his findings, the chancellor
[concluded that] it [was] evident that
[Cindy] Broomes intent was to harass [Paul]
Broome ... . [S]he could have simply allowed
him to pay the checks, something the evidence
shows he made every effort to do. In
addition to holding the checks in the first
place, some [from] as early as March of 2000,
and [then] attempting to negotiate 29 of them
the week of Mr. Broomes birthday, perhaps the
most illustrative evidence of her underlying
motivation was the fact that she never told
her attorney that Mr. Broome had tried to pay
the checks and that she had been in contact
with and had received several pieces of
correspondence from Mr. Broomes attorney
trying to pay them prior to instructing her
attorney to file suit on the checks. Thus,
to this Court, Mrs. Broomes motivation was
clear. She wanted to [cause] Mr. Broome yet
more financial problems and emotional
distress.
Broome, 832 So.2d at 1253. The court of
appeals concluded that the chancellors
finding of fact that Cindys actions were
designed to harass Paul was supported by the
record and was not clearly erroneous.10
Thus, the appeals court upheld the
chancellors ruling that Cindy had committed a
contempt of court.
The Broome case and Pastoss case
are analogous, in that both cases involve an
act the presentation of a negotiable
instrument to a bank that would be perfectly
legal in most instances. But in the
particular context of Broome, and in the
particular context of Pastoss case, the facts
supported a reasonable conclusion that the
cashing of the check was done for an
additional reason besides a desire to get the
money. In both instances, the act of cashing
the check could reasonably be viewed as a
means of communicating with, and causing
distress to, the maker of the check.
This is not to say that this
conclusion was foregone. Rather, it was a
question of fact to be resolved by the judge,
based on the totality of the evidence. In
Pastoss case, Judge Murphy weighed the
competing evidence and found against Pastos.
Judge Murphy found that Pastos knew that his
act of cashing the check would, under the
circumstances, instill emotional distress and
fear in Yearsley that it would be an act of
communication.
Judge Murphys resolution of this
question of fact is not clearly erroneous,
and we therefore uphold it.11 Given this
finding, Judge Murphy properly concluded that
Pastos had violated the no contact provision
of his conditions of release.
The judgement of the district court
is AFFIRMED.
_______________________________
1See AS 11.41.270 (defining the crime of stalking);
AS 11.56.750 & 755 (defining the crimes of first- and second-
degree unlawful contact); AS 11.61.220 (defining the crime
of fifth-degree weapons misconduct, which includes failing
to apprise a police officer that you are carrying a
concealed weapon); AS 11.46.340 (defining emergency use of
premises as a defense to a prosecution for burglary or
criminal trespass); AS 18.65.850 (defining the authorized
protective orders for victims of stalking and sexual
assault); and AS 18.66.100 & 130 (defining the authorized
protective orders for victims of domestic violence).
2The one exception is AS 11.61.220(j), which defines the
phrase contacted by a police officer.
Although the second-degree stalking statute contains a
definition of nonconsensual contact, see AS 11.41.270(b)(3),
the Alaska Supreme Court has held that this definition goes
beyond the meaning of contact in normal usage, and that this
definition is therefore not controlling on the question of
what constitutes contact in the context of a protective
order prohibiting one person from contacting another. See
Cooper v. Cooper, 144 P.3d 451, 457-58 (Alaska 2006).
3See AS 11.56.750(a)(2) (either directly or indirectly,
knowingly contacts or attempts to contact the victim or
witness in violation of the order); AS 11.61.220(j)
( contacted by a peace officer means stopped, detained,
questioned, or addressed in person by the peace officer for
an official purpose); AS 11.46.340(2) (as soon as reasonably
practical after the [emergency] entry, use, or occupancy [of
the premises], the person contacts the owner of the
premises, the owners agent or, if the owner is unknown, the
nearest state or local police agency); AS 18.65.520(a) (A
peace officer ... shall orally and in writing inform the
victim ... [that they] have the right to [seek] a protective
order that may include ... prohibit[ing their] abuser from
stalking, harassing, telephoning, contacting, or otherwise
communicating with [them], directly or indirectly);
AS 18.65.850(c)(2) (A protective order issued under this
section may ... prohibit the respondent from telephoning,
contacting, or otherwise communicating directly or
indirectly with the petitioner or [other] designated
household member); AS 18.66.100(c)(2) (A protective order
under this section may ... prohibit the respondent from
telephoning, contacting, or otherwise communicating directly
or indirectly with the petitioner).
4AS 11.81.900(a)(2).
5Broome, 832 So.2d at 1251-52, 1253.
6Id. at 1252.
7Id.
8Id. at 1252-53.
9Id. at 1252.
10Id. at 1253.
11See Slwooko v. State, 139 P.3d 593, 598 (Alaska App.
2006); Wilburn v. State, 816 P.2d 907, 911 (Alaska App.
1991).
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