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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
| NATHANIEL VICKERS, | ) |
| ) Court of Appeals Nos. A-9501/9502 | |
| Appellant, | ) Trial Court Nos. 3AN-04-10110 CR |
| ) 3AN- 05-3637 CR | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2142 January 18, 2008 |
| ) | |
Appeal from the
District Court, Third Judicial District,
Anchorage, John R. Lohff, Judge.
Appearances: Christi A. Pavia, Pavia Law
Office LLC, Anchorage, for the Appellant.
Blair M. Christensen, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and Craig J. Tillery,
Acting Attorney General, Juneau, for the
Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
STEWART, Judge.
Nathaniel Vickers was convicted of violating a
condition of his bail release by having contact with his domestic
companion, Annette Jamestown.1 During trial, Vickers argued that
he was not guilty because he reasonably, though mistakenly,
believed his conditions of release allowed him to have contact
with Jamestown. The jury rejected that defense and convicted
Vickers.
On appeal, Vickers claims the district court
impermissibly limited his mistake defense. He also argues that
the court violated his due process rights by allowing the State
to use evidence of his earlier conviction for violating his
conditions of release to show that he was not mistaken when he
committed the present offense. And he argues that the district
court erred by not instructing the jury to consider only written
conditions of release and to disregard any evidence of oral no-
contact orders. For the reasons discussed below, we conclude
that there is no merit to these claims.
Vickers also argues that the district court judge
erred by not recusing himself when he realized he had presided
over Vickerss first bail hearing and therefore had personal
knowledge that Vickers had been ordered to have no contact with
Jamestown. But the trial judge did not have personal knowledge
of any fact that was disputed in this case, and there was no
significant possibility that the judge would be called as a
witness. We therefore conclude that the judge did not err by
failing to recuse himself sua sponte.
Vickers other claims are waived for inadequate
briefing.
Facts and proceedings
On July 21, 2004, Vickers was indicted for, among
other crimes, assaulting and attempting to murder Annette
Jamestown. Vickers was released on bail to a third party
custodian on July 19, 2004. One of the conditions of his release
prohibited him from any direct or indirect contact with
Jamestown.
Less than three months later, on October 9, 2004,
Vickers was charged with violating the conditions of his release
by having contact with Jamestown. He was convicted of that
misdemeanor offense on January 14, 2005. Vickerss sentence in
that case included 5 years of probation, and one of the
conditions of that probation prohibited him from contact with
Jamestown unless Jamestown wrote a letter to the district
attorney consenting to contact. Jamestown wrote such a letter on
March 25, 2005.
When Vickers was released from custody on that
conviction he had another bail hearing in his felony case. At
that March 2, 2005, hearing, Superior Court Judge Larry D. Card
stated that Vickers was to have no contact with Jamestown.
Although Judge Cards remarks appear to have been directed, at
least in part, to Vickerss third-party custodians, they were made
in Vickerss presence:
There will be no contact between Mr. Vickers
and the alleged victim. Do you folks know
who she is? All right. There will
be no contact.
However, when the court issued its written order and
conditions of release, the no contact box on the form order was
inadvertently left blank. According to testimony in this case,
form orders for conditions of release are normally filled out by
defense counsel and given to the judge for his or her signature.
Some six weeks later, on April 15, 2005, another bail
hearing was held in Vickerss felony case to consider his request
to travel to Angoon to attend a memorial service. Judge Card
granted that request. At that hearing, the district attorney
asked Judge Card to advise Vickers again that he was not to have
any contact with Jamestown, because the State was getting reports
that Vickers was having contact with her. The judge did not
directly respond to that request, although the judge stated, in
the context of a discussion about Vickerss ankle monitoring, that
I have a problem with contact with the victim, direct or
indirect. But again, the written order and conditions of release
left the relevant box unchecked although the order did state
that all other conditions remain in effect.
On April 23, 2005, Anchorage Detective Steve Lyons,
the investigating officer in Vickerss felony case, saw Vickers
and Jamestown together, apparently en route to the airport to fly
to Angoon. Based on this conduct, Vickers was again charged with
violating his conditions of release by having contact with
Jamestown.
At trial on that charge, Vickers argued that he
reasonably believed, given the absence of check marks in the no
contact boxes on the March and April orders, that his conditions
of release allowed him to have contact with Jamestown. The jury
rejected that defense and convicted Vickers. He appeals.
Discussion
The district court did not improperly limit Vickerss
mistake defense
Vickerss primary claim on appeal is that the court
improperly limited his argument to the jury that he reasonably,
if mistakenly, believed he could have contact with Jamestown.
As noted earlier, at the time of this offense Vickers
was on probation for violating the conditions of his release by
having contact with Jamestown. One of his probation conditions
barred him from contact with Jamestown unless she wrote a letter
to the district attorney permitting such contact, which she did.
Vickers argues that the district court should have allowed him to
argue to the jury that he reasonably relied on the sentencing
order in that prior case, and the letter Jamestown wrote pursuant
to that order, to believe he was permitted to have contact with
Jamestown. The court disallowed that argument, ruling that it
was an impermissible mistake-of-law defense.
In making this ruling, the district court relied on
the Alaska Supreme Courts decision in State v. Strane.2 That
case involved facts similar to those presented here. Strane was
convicted of violating a domestic violence protective order by
contacting the woman who had obtained the protective order
against him.3 At trial, Strane sought to defend against that
charge by claiming that he honestly, albeit mistakenly, believed
the no-contact order did not apply if the woman consented to the
contact.4 The trial court ruled that even if Strane had a good-
faith belief that his conduct did not violate the terms of the
protective order, that belief did not entitle him to a mistake-of-
law defense.5
We reversed that decision, ruling that Strane had a
right to defend against the charge of violating a domestic
violence protective order by showing that he had an honest but
mistaken belief that his conduct did not violate the order.6 But
the supreme court disagreed with our analysis. The court held
that Stranes subjective understanding of the effect or scope of
the no-contact order was irrelevant. As the supreme court
explained: It does not matter whether Strane mistakenly
concluded for whatever reason that the no-contact order was
inapplicable to his conduct; what matters ... is Stranes admitted
awareness of the restraining orders existence and contents.7 The
court concluded that Stranes admitted awareness of the protective
orders existence and contents which included the orders facially
clear and unqualified no-contact provisions sufficed to
establish the circumstances element of his offense: that he
recklessly disregarded a substantial and unjustifiable risk that
his conduct was prohibited by the order.8
Vickers argues that Strane is not controlling in his
case. He notes that Strane was convicted of violating a
protective order, not of violating conditions of release, and
that different statutory schemes govern those crimes. He also
notes that the order at issue in Strane clearly prohibited
contact, while the bail orders in his case were ambiguous. But
these distinctions have no bearing on the pertinent holding in
Strane that a defendant cannot ask a jury to acquit him based on
his honest subjective belief as to the meaning of a judicial
order. The applicable culpable mental state is recklessly.
Thus, an honest belief is not sufficient to exculpate the
defendant if the defendant understood that there was a
substantial and unjustifiable possibility that his conduct would
violate the order that is, if the defendants decision to run
this risk was a gross deviation from what a reasonable person
would do under the circumstances.9
Applying that rule here, Vickerss subjective
understanding of the legal effect or scope of the conditions of
his release was not particularly relevant. But Vickers was
entitled to challenge the States proof that he was reckless,
either by showing that he was unaware of the risk that his
conduct would violate the order, or by showing that his decision
to run that risk was not a gross deviation from what a reasonable
person would do in the situation. And Judge Lohff allowed
Vickers to do this.
The judge admitted all of the evidence on this point
that Vickers offered. Furthermore, the judge allowed Vickers to
argue that he reasonably believed the March 2 and April 15 orders
allowed him to contact Jamestown. Vickers was also allowed to
argue that the sentencing order and letter in his prior case gave
him reason to look carefully at the bail orders in this case and
to conclude that they did not prohibit contact with Jamestown.
The only restriction the court placed on Vickerss
litigation of this point was to barVickers from arguing that he
was entitled to an acquittal based on his subjective mistaken
belief that the sentencing order issued in his earlier
misdemeanor case (and the letter that Jamestown wrote pursuant to
that order consenting to contact) waived or superseded the no-
contact provision of release in his felony case.
Judge Lohff was not mistaken in limiting Vickerss
defense in this manner. In Busby v. State,10 we upheld a similar
restriction on the presentation of a defense case. The issue in
Busby was whether the defendant could defend against a charge of
driving with a revoked license by claiming that he mistakenly
believed, based on his own research, that his international
driving permit gave him the right to drive in Alaska even though
his Alaska drivers license was revoked. We held that this
argument constituted an impermissible mistake-of-law defense.11
Likewise, in Clark v. State,12 we ruled that the defendant could
not defend against a charge of felon in possession of a
concealable firearm by relying on his erroneous belief that the
probation condition barring him from possessing firearms was
suspended while his conviction was on appeal.13 We observed that
Clarks mistake-of-law claim amount[ed] only to his personal
belief that he was not convicted for purposes of the felon in
possession statute while his case was on appeal. This is far
from the type of claim where a reasonable mistake of law
constitutes a defense.14
Vickerss case is governed by this same rule. Vickers
was not entitled to argue to the jury that he should be acquitted
based on a mistaken personal belief that the letter Jamestown
wrote (the letter consenting to contact with Vickers) superseded
the no-contact provision of the conditions of release in his
felony case. We therefore conclude that Judge Lohff did not err
in limiting Vickerss defense in this manner.
There is no merit to Vickerss claim that the court
should have instructed
the jury that only written conditions of release were
relevant
In this case, Judge Lohff instructed the jury that
oral and written conditions of bail carry equal weight. Vickers
argues that the district court should have instructed the jury
that the written orders and conditions of release were the only
relevant orders in his case. In support of this claim, he points
to AS 12.30.027(c), the statute that requires courts imposing
release conditions in cases involving domestic violence to issue
a written order specifying a defendants conditions of release and
to provide a copy of the order to the defendant.15 This
provision is similar to AS 12.30.020(d), which requires in any
criminal case that the court issue an order containing a
statement of the conditions imposed. Both of these provisions
promote notice of the conditions imposed.
To prove that Vickers violated a condition of his
release, AS 11.56.757 requires the State to prove that Vickers
violated a condition of release imposed by a judicial officer
under AS 12.30. The statute does not exclude a condition of
release imposed orally by a judicial officer but, through
oversight or error, not included in a written order.
The court did not violate Vickerss due process rights
by allowing the State to rely on his prior conviction
to show absence of mistake
Vickers argues that the court violated his due process
rights by allowing the State to use the evidence of his prior
conviction for violating his conditions of release to show that
he was not mistaken when he committed this offense while
preventing him from using the same evidence to show he was
mistaken.
Vickers raised this same argument at trial. In
response, Judge Lohff outlined the permissible arguments the
parties could make based on this evidence: He ruled that Vickers
could argue that the earlier conviction put him on notice that
bail conditions are important, and led him to look carefully at
the conditions in this case and to infer that they did not bar
contact with Jamestown. Conversely, Judge Lohff ruled that the
State could rely on the prior conviction to show that Vickers was
aware of his bail conditions. Vickers did not object to this
resolution.
Based on the courts ruling, the prosecutor argued as
follows:
I told you that you cannot use this prior
[violating conditions of release] conviction
for the proposition that he that Annette
[Jamestown] can consent to contact. You
cant do that, its improper use, a mistake of
law defense. What you can use it for is to
show that the defendant has been previously
convicted of [violating conditions of
release], which means that he knows that
violating his bail conditions leads to
criminal liability. He knows that if he
doesnt follow his bail conditions he may end
up being charged and ultimately convicted.
Thats what you can use this prior
[conviction for violating conditions of
release] for. You can use it to show that
he had the knowledge, he knew that he had
bail conditions. He knew that if he had any
question of what his bail conditions were a
reasonable person would have asked and would
have sought clarification from the judge.
Thus, the State did not argue, as Vickers asserts, that Vickers
could not have been mistaken about his ability to have contact
with Ms. Jamestown because hed already gotten in trouble for that
before. Rather, the State relied on the evidence of Vickerss
prior conviction simply to show that Vickers knew that he had
bail conditions.
Vickerss attorney argued in turn:
[Vickers] chose to ... tell you about the
fact that he had been convicted in January,
why he was convicted, and it made an impact
on his life and he wasnt going to make that
mistake again, so he wanted to be very
careful about his contact. He believed
fully in his mind that he could have contact
with ... Annette, and the reason he did was
because of the documents in his possession.
He had the March 2nd and the April 15th
court orders that were very clear.
This is exactly the argument that Vickers claims in
his brief on appeal that he was prohibited from making at trial.
Vickers is thus wrong when he asserts that the court prevented
him from rebutting the States argument about the relevance of his
prior conviction to his mental state. The court allowed both
parties to argue this issue, within the constraints of the courts
ruling disallowing a mistake-of-law defense. Furthermore,
Vickers waived any claim of error because he did not object to
the courts resolution of this issue at trial, and because he did
not cite or discuss the courts ruling on this issue in his brief
on appeal.16
Did Judge Lohff err in failing to recuse himself?
During sentencing, Judge Lohff remarked that he had
presided over Vickerss first bail hearing and that he had clearly
ordered Vickers, as a condition of his release, to have no
contact with Jamestown. Based on this statement, Vickers argues
that Judge Lohff should have sua sponte recused himself because
he had personal knowledge of a disputed evidentiary fact in this
case whether Vickers knew he could have contact with Jamestown
and was therefore a material witness. He claims Judge Lohffs
failure to recuse himself tainted the entire proceedings and
quite clearly the sentencing, when Judge Lohff specifically
relied on his prior knowledge.
A judge is not required to recuse himself simply
because he previously presided over a case involving the party
seeking recusal.17 As the supreme court has explained, every
judge, when he hears a case or writes an opinion must form an
opinion on the merits and ... [often] an opinion relative to the
parties involved. But this does not mean that the judge has a
personal bias or prejudice.18 Furthermore, a party seeking to
disqualify a judge for bias must show that the judges actions
were the result of personal bias developed from a nonjudicial
source.19 Thus, to the extent that Vickers is arguing that Judge
Lohff had a duty of disclosure or recusal based solely on the
fact that he presided over Vickerss first bail hearing, there is
no merit to his claim. Vickers was present at that bail hearing,
and if he did not remember who the judge was, he could easily
have obtained that information. Moreover, Vickers has offered no
persuasive argument that he was prejudiced by Judge Lohffs
personal knowledge of his case.
Vickers next argues that Judge Lohff had a duty to
disqualify himself because he had personal knowledge of disputed
evidentiary facts concerning the proceeding.20 This claim also
fails. The parties actively disputed whether it was reasonable
for Vickers to believe he could have contact with Jamestown,
given the March 2 and April 15 bail orders (which did not
expressly bar contact) and the January 2005 sentencing order and
letter in his prior misdemeanor case (which permitted contact if
Jamestown wrote a letter consenting to contact). But Vickers
never argued that the order issued by Judge Lohff in July 2004
allowed contact with Jamestown (clearly, on its face, it did
not). Rather, he argued that the order had no relevance to this
case.
Vickers also argues that Judge Lohff was a material
witness, and that he was therefore obliged to disqualify himself
under AS 22.20.020(a)(3). This claim fails for the same reason.
There was no significant possibility that Judge Lohff would be
called as a witness.21 Vickerss position at trial was that the
March 2 and April 15 orders and conditions of release were the
only relevant orders in this case. He therefore had no reason to
call Judge Lohff to testify about an order the judge issued some
eight months earlier especially an order that stated on its face
that Vickers was to have no contact with Jamestown. The only
additional evidence Judge Lohff could have offered was his
recollection, if any, that he verbally told Vickers to have no
contact with Jamestown. Given these circumstances, Judge Lohff
had no duty to disqualify himself as a material witness under AS
22.20.020(a)(3). Nor was Judge Lohff obliged to disclose his
involvement because AS 22.20.020 imposes a duty of disclosure
only if the judge has some basis to disqualify himself under the
statute.22
Vickerss other claims are inadequately briefed
Vickers argues that the court improperly limited his
cross-examination of Detective Lyons about Jamestowns letter
giving him permission to contact her. But the State objected to
admission of that letter on the grounds that it had not been
authenticated and its relevance had not been shown. The court
ruled that Vickers could not question Detective Lyons about the
letter until it was authenticated and until he had offered
evidence to show that it was the letter Vickers referred to when
he told Detective Lyons he had permission to contact Jamestown.
Vickers later called Jamestown to testify that she
wrote the letter, and the letter was admitted into evidence.
Vickers testified that his son gave him a copy of the letter.
But Vickers never recalled Detective Lyons as a witness.
Vickers has not discussed the courts ruling on this
issue or shown how it was wrong. Nor has he explained why he did
not recall Detective Lyons, or how he was prejudiced by the
limitations the court placed on the order of proof. For these
reasons, Vickerss claim is waived for inadequate briefing.23
Vickers also claims that the court erroneously
excluded a temporary order note that failed to contain a no-
contact provision. He cites to the page of the transcript at
which the court excluded Vickerss March 2, 2005, Instructions to
Jail. But Vickers gives no insight into why he believes this
evidence was wrongly excluded. His claim is therefore waived for
inadequate briefing.24
Vickers argues that the court abused its discretion by
allowing evidence of his prior conviction to come in by way of
his recorded statement to Detective Lyons that he had paperwork
from two courts. He also argues that the court erred by not
granting a mistrial on this basis.
During trial the State played an audio tape of
Detective Lyonss interview with Vickers in which Vickers asserted
that he had paperwork from two courts permitting him to have
contact with Jamestown. Vickers moved for a mistrial after this
statement was admitted, arguing that it violated the courts
protective order. The court denied the mistrial motion. Later,
the evidence of Vickerss prior conviction was admitted at
Vickerss request.
Judge Lohff made no ruling admitting this evidence.
Rather, the State failed to redact it from the audio tape. Judge
Lohff concluded that the admission of Vickerss reference to
paperwork from two courts did not violate the protective order
because it was difficult to hear and did not necessarily support
an inference that Vickers had a prior conviction. Judge Lohff
also offered to give a curative instruction, which Vickers
declined. Vickers does not discuss the courts findings, point
out why he thinks they were wrong, or cite any authority to
support his claims. His claims are therefore waived for
inadequate briefing.25
Vickers argues that the court, the State, and the
States witnesses, wrongly instructed the jury that it was unheard
of to allow contact between a defendant and an alleged victim of
domestic violence. But in support of this claim, Vickers with
one exception cites to discussions that took place outside the
presence of the jury. The exception involved a witness who
testified that during the eight and a half years she had worked
with Judge Card, she could not remember him ever allowing a
defendant to contact a victim in a case with allegations similar
to those in Vickerss case. But Vickers did not object to this
testimony, nor does he explain on appeal how this testimony
equates to an improper jury instruction. His claim is therefore
waived for inadequate briefing.26
Vickers also appears to argue that the court usurped
the jurys role in judging Vickerss credibility by stating that it
would be disingenuous of Vickers to assert that he was unaware of
a condition of release he had previously been convicted of
violating. Vickers takes this statement out of context. Judge
Lohff made this statement outside the presence of the jury when
he initially ruled that the State could not offer evidence of
Vickerss prior conviction. The court warned Vickers that it
might reconsider its ruling if Vickers made the disingenuous
argument that he was unaware of the condition of release. After
the evidence of Vickerss prior conviction was admitted at
Vickerss request, the court heard additional argument and made
more precise rulings on how evidence of the prior conviction
could be used. Viewing Judge Lohffs remark in the proper
context, there is no merit to Vickerss claim that he usurped the
jurys role in judging credibility.
Lastly, Vickers argues that his sentence of 150 days
to serve is excessive because Judge Lohff should have recused
himself and because Judge Lohff erroneously limited his mistake
defense. Vickers is apparently arguing that even if we fail to
find reversible error on these grounds, we should reduce his
sentence to 120 days. But Vickers does not explain his rationale
or cite any authority to support his claim. Moreover, as
discussed above, Judge Lohff did not err in limiting Vickerss
mistake defense or in failingto recuse himself sua sponte.
Vickers has therefore given us no reason to conclude that Judge
Lohffs sentence was clearly mistaken.27
Conclusion
Vickerss conviction and sentence are AFFIRMED.
_______________________________
1 AS 11.56.757(a).
2 State v. Strane (Strane II), 61 P.3d 1284 (Alaska 2003).
3 Id. at 1285.
4 Id.
5 Id.
6 Strane v. State (Strane I), 16 P.3d 745, 748-49 (Alaska
App. 2001).
7 Strane II, 61 P.3d at 1290.
8 Id. at 1292.
9 Id. at 1290. See AS 11.81.900(a)(3) (the definition of
recklessly).
10 40 P.3d 807 (Alaska App. 2002).
11 Id. at 816-17.
12 739 P.2d 777 (Alaska App. 1987).
13 Id. at 779.
14 Id.
15 AS 12.30.027(c)(1), (2).
16 Tenala, Ltd. v. Fowler, 921 P.2d 1114, 1121 n.10
(Alaska 1996); McCormick v. Anchorage, 999 P.2d 155, 166 (Alaska
App. 2000).
17 Pride v. Harris, 882 P.2d 381, 385 (Alaska 1994); see
Hanson v. Hanson, 36 P.3d 1181, 1184 (Alaska 2001).
18 Pride, 882 P.2d at 385 (quoting State v. Anchorage, 513
P.2d 1104, 1113 (Alaska 1973), disavowed on other grounds in
State v. Alex, 646 P.2d 203, 208 n.4 (Alaska 1982) (quoting
Tucker v. Kerner, 186 F.2d 79, 84 (7th Cir. 1950))).
19 Hanson, 36 P.3d at 1184.
20 Alaska Code of Judicial Conduct, Canon 3 E(1)(A).
21 See Vaska v. State, 955 P.2d 943, 946-47 (Alaska App.
1998) (disqualifying judge under AS 22.20.020(a)(3) because there
was a significant possibility that he would be called as a
material witness on remand).
22 AS 22.20.020(b).
23 Petersen v. Mutual Life Ins. Co. of N.Y., 803 P.2d 406,
410 (Alaska 1990) (Where a point is not given more than a cursory
statement in the argument portion of a brief, the point will not
be considered on appeal.).
24 Id.
25 Id.
26 Id.
27 See AS 11.56.757(b)(1) (providing that a violation of
conditions of release is a class A misdemeanor if the person is
released from a felony charge); AS 12.55.135(a) (authorizing a
term of imprisonment of up to 1 year for a class A misdemeanor).
See also McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974)
(holding that an appellate court is to uphold a sentencing
decision unless the sentence is clearly mistaken).
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