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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| FRANK R. JOHNSON, | ) |
| ) Court of Appeals No. A-9444 | |
| Petitioner, | ) Trial Court No. 2NO-04-356 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Respondent. | ) No. 2146 February 1, 2008 |
| ) | |
Petition for Review from the Superior Court,
Second Judicial District, Nome, Ben J. Esch,
Judge.
Appearances: Sharon Barr, Assistant Public
Defender, and Quinlan Steiner, Public
Defender, Anchorage, for the Petitioner.
Kenneth M. Rosenstein, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and Talis J. Colberg,
Attorney General, Juneau, for the Respondent.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
This case involves the father of an infant child who
was convicted of manslaughter for failing to take action to
protect the infant from the life-threatening actions of the
mother. The father was aware that the mother was subjecting the
infant to prolonged starvation. However, the jury found that the
infant ultimately died, not from starvation, but rather because
the mother intentionally dropped the infant on its head,
inflicting fatal skull and brain injuries. The question
presented here is whether the father can validly be convicted of
criminal homicide when the life-threatening conduct that
ultimately caused the infants death (the physical assault) is not
the same type of life-threatening conduct that the father was
aware of (the prolonged starvation of the infant).
Based on the Alaska Supreme Courts analysis of this
issue in P.G. v. Division of Family and Youth Services, 4 P.3d
326 (Alaska 2000), we conclude that the jury could reasonably
decide that, in light of the mothers prolonged starvation of her
infant child, it was reasonably foreseeable that the mother might
also resort to physical attacks on the infant. Thus, the jury
could reasonably conclude that the father was reckless concerning
this possibility, and that the physical attack on the child was
not a superseding cause of the infants death i.e., not a cause
of death that would absolve the father of criminal
responsibility.
Background facts
The defendant in this case, Frank R. Johnson,
was the father of an infant girl, Christina Takak.
Christina died after prolonged abuse by her mother,
Heather Takak (Johnsons long-time partner). According
to the testimony presented at the trial in this case,
Takak starved Christina to the point where the infant
had essentially no fat left in her body, and her
muscles had atrophied. One witness testified that
Christina looked like a famine victim at the time of
her death. The jury found, however, that the immediate
cause of Christinas death was Takaks act of
intentionally dropping Christina on the floor head-
first, causing trauma to her skull and brain. This
physical assault (which preceded Christinas death by
one to three days) caused Christinas brain to
hemorrhage and swell inside her skull, leading to her
death.
Following Christinas death, the State
prosecuted Johnson for second-degree murder. The
States theory of prosecution was premised on a parents
duty to protect their child from physical harm.1 The
State alleged that Johnson had violated his duty to
protect Christina by failing to take action even though
he knew that Takak was subjecting Christina to life-
threatening starvation. The State acknowledged that
Christina had suffered head trauma when Takak dropped
her on the floor, but the States medical witness
testified that Christinas death was the joint result of
the head trauma and the prolonged starvation.
At trial, Johnson contended that he was not
around Christina enough to notice that she was being
starved. Johnson presented several witnesses
(including himself) to testify about the lengthy
periods that he was away from the household. But
Johnson also asserted an alternative defense: he
argued that he should be acquitted even if the jury
found that he was aware that Takak was starving the
infant because the cause of Christinas death was not
starvation (even in part).
Johnson presented a medical expert who
testified that, even though Christina was being
starved, the head trauma was the sole contributing
cause of her death. In other words, the expert
testified that Christina would have died from this
trauma even if she had not been starved and weakened.
In conjunction with this testimony, Johnsons attorney
argued that even if Johnson was aware that Takak was
starving their infant daughter, Johnson had no reason
to be aware of the particular danger that Takak might
physically assault the infant.
The parties agreed that if the jury convicted
Johnson of the homicide, the judge would then ask the
jury to fill out a special verdict form announcing
their conclusion regarding the cause of the infants
death.
At the close of the trial, the jury acquitted
Johnson of second-degree murder, but they found him
guilty of the lesser offense of manslaughter. Pursuant
to the agreement described in the preceding paragraph,
the trial judge then asked the jury to fill out the
special verdict form concerning the cause of death.
This special verdict form asked the jurors to indicate
their decision as to whether (1) Christinas death was
caused solely by starvation, or (2) her death was
caused solely by head trauma, or (3) her death was
caused by both starvation and head trauma. The jurors
unanimously declared that the head trauma was the sole
cause of the infants death.
After the jury announced its finding
regarding the cause of death, Johnson asked the
superior court to grant him a judgement of acquittal.
Johnson noted that, even though the State might have
proved that he recklessly disregarded the risk that
Takak was starving the infant to the point where she
might die, the jurys special verdict established that
this starvation ultimately did not contribute to the
infants death. Rather, the jury found that the infant
died solely as a result of the head trauma inflicted by
Takak. Johnson argued that, if the head trauma was the
sole cause of the infants death, then his manslaughter
conviction had to be set aside because the State
presented no evidence that Johnson was aware of the
risk that Takak would physically assault the infant.
Superior Court Judge Ben J. Esch agreed that
there was insufficient evidence to support the
conclusion that Johnson was aware of the risk that
Takak would physically assault Christina.
Nevertheless, Judge Esch denied Johnsons motion for a
judgement of acquittal.
Judge Esch acknowledged that the jury had
declared (in their special verdict) that Christina died
solely as a result of the head injuries. But Judge
Esch found that the jurys conclusion was contrary to
the weight of the evidence, as well as contrary to
reason and common sense.
(As explained above, the States medical
expert testified that Christina died as a combined
result of the head trauma and the prolonged starvation.
In his written decision, Judge Esch stated that reason
and common sense support [the] conclusion that any
person who is severely malnourished faces a much
reduced likelihood of survival when subjected to
traumatic injury. [Thus, starvation] would be a
substantial factor in causing any subsequent death.)
Given the testimony of the States expert,
Judge Esch concluded that there was sufficient evidence
to support Johnsons conviction for manslaughter if the
evidence presented at trial was viewed in the light
most favorable to the State even though there was
insufficient evidence to support Johnsons guilt under
the jurys theory of the case.
Because Judge Esch concluded that the
evidence, viewed in the light most favorable to the
State, was sufficient to support Johnsons conviction
for manslaughter, Judge Esch denied Johnsons motion for
a judgement of acquittal.
Nevertheless, because the jurys special
verdict appeared to be contrary the jurys general
verdict, Judge Esch ordered a new trial under the
authority of Alaska Criminal Rule 33(a).
(Criminal Rule 33(a) authorizes a court to
grant a new trial to a defendant if required in the
interest of justice. We have construed this rule as
authorizing a court to grant a new trial when a jurys
verdicts demonstrate such a skewed or inconsistent view
of the evidence as to indicate that the jury either
failed to understand the evidence, failed to understand
the courts instructions, or simply returned a
compromise verdict when the case proved too difficult.2
)
Johnson now petitions us for review. Johnson
argues that Judge Esch should have granted his motion
for a judgement of acquittal.
In one paragraph of his brief, Johnson argues
that the trial evidence was not even sufficient to
prove that he was aware of the possibility that
Christina was being starved to death. Given the
testimony that Christinas body was visibly wasting away
and that she had the physical appearance of a famine
victim, this argument has no merit. However, the
remainder of Johnsons brief is devoted to a more
substantial claim.
Specifically, Johnson contends that even
though the evidence may have been sufficient to support
a conviction for manslaughter under the States theory
of the case (i.e., the theory that Christinas death was
due, at least in part, to starvation), this fact is
irrelevant because the jury expressly rejected the
States theory of the case and affirmatively found that
Christinas death was solely due to the injuries
suffered during the physical assault.
Johnson argues that any assessment of the
sufficiency of the evidence must be made in light of
the jurys express finding that the physical assault was
the sole cause of death. Because Judge Esch concluded
that the evidence was not sufficient to support
Johnsons manslaughter conviction under the jurys view
of the case, Johnson asserts that Judge Esch was
obliged to enter a judgement of acquittal.
The State, in response, argues that the
evidence was sufficient to support Johnsons
manslaughter conviction even if Christina died solely
as a result of the head injuries. Thus, the State
argues, we should uphold Judge Eschs ruling on Johnsons
motion for a judgement of acquittal, but we should
reverse Judge Eschs decision to grant Johnson a new
trial.
Why we conclude that the evidence supports Johnsons
conviction for manslaughter, even given the jurys
decision as to the cause of Christinas death
As explained above, Johnson was convicted of
manslaughter under the theory that he knowingly
breached his parental duty to protect Christina. The
crime of manslaughter is defined in AS 11.41.120(a)(1)
as recklessly caus[ing] the death of another person
(under circumstances not amounting to murder in the
first or second degree).
To prove the crime of manslaughter under the
facts of this case, the State had to establish (1) that
Johnson had a legal duty to protect Christina, (2) that
Johnson knew of a circumstance that triggered his duty
to take protective action, (3) that he chose not to act
(i.e., he knowingly failed to take action), and (4)
that he was reckless with regard to the possibility
that his failure to act would result in his infant
daughters death i.e., he was aware of and consciously
disregarded a substantial and unjustifiable risk that,
if he failed to act, Christina would die.3
(See our discussion of this point of law in
Willis v. State, 57 P.3d 688, 694-95 (Alaska App.
2002).)
The parties to this appeal agree that
Johnson, as Christinas father, had a legal duty to
protect her. And, as we indicated in the preceding
section, we conclude that the evidence (viewed in the
light most favorable to the jurys verdict) was
sufficient to prove that Johnson was aware of a
circumstance that triggered his duty to take protective
action: he was aware that Heather Takak was starving
Christina to death. Moreover, the evidence was
likewise sufficient to prove that Johnson knowingly
failed to take action to protect Christina from Takak.
The main dispute in this case arises from the
fact that, according to the jury, Christinas death was
not caused by this starvation. Rather, Christina died
as a result of head injuries injuries inflicted when
Takak physically assaulted the infant.
Based on the jurys finding regarding the
cause of death, Johnson argues that the States proof of
manslaughter fails on two grounds.
First, Johnson asserts that the evidence does
not provide any basis for concluding that Johnson acted
recklessly with respect to the possibility that Takak
would physically assault Christina (as opposed to
slowly starving the infant to death).
Second, Johnson asserts that even though
Christina might eventually have died from starvation
(the danger that Johnson knew about), Takaks physical
assault on Christina was a superseding cause of death
i.e., an unforeseeable danger that Johnson did not know
about and could not reasonably have anticipated. In
other words, Johnson argues that, as a matter of law,
his failure to take action to protect Christina from
starvation was not a cause of the infants death.
Both of these arguments rest on the
underlying premise that Johnson should be absolved of
criminal liability because, even when the evidence is
viewed in the light most favorable to the jurys
verdict, (1) Takaks physical assault on Christina was
an unforeseeable event, and (2) Christinas death
resulted from this unforeseeable physical assault
rather than from starvation.
When (as in Johnsons case) the government
alleges that a defendant is criminally responsible for
harm to another person because of the defendants
failure to perform a care-taking duty, a question often
arises as to whether the conduct or event that caused
the harm was foreseeable to a person in the defendants
position. As our supreme court explained in Joseph v.
State, 26 P.3d 459 (Alaska 2001), the resolution of
this question of foreseeability is relevant to two
issues: the issue of whether the defendant failed to
fulfill the care-taking duty imposed by law, and the
issue of whether a superseding cause intervened to
cause the harm.
With respect to the defendants breach of
duty, the foreseeability of the conduct or event that
caused the harm is a necessary component of the
governments effort to prove that the defendant was
aware of the circumstance that triggered the defendants
duty to take protective action. And with respect to
the issue of causation, the foreseeability of the harm
resolves this issue because, as a matter of law, [a]
reasonably foreseeable occurrence cannot be [a]
superseding cause if the actor has a duty to prevent
that occurrence. Joseph, 26 P.3d at 471. Thus, in
cases where liability is premised on the defendants
alleged failure to fulfill a care-taking duty, the
superseding cause analysis coincides with the [breach
of] duty analysis. Id.
In other words, the defendants care-taking
duty is breached only if the defendant was aware of the
risk of harm and refrained from taking preventative
action. If the defendant could not reasonably foresee
the conduct that caused the harm, then there would be
no breach of duty when the defendant failed to take
action to prevent it. And, by the same token, if the
conduct that caused the harm was not foreseeable, then
that conduct would normally constitute a superseding
cause of the harm.
But if, on the other hand, the danger was
foreseeable to the defendant, this would establish a
breach of duty and, at the same time, it would preclude
a finding of superseding cause. As our supreme court
stated in Loeb v. Rasmussen, 822 P.2d 914, 920 (Alaska
1991), intervening causes which lie within the scope of
the foreseeable risk, or [which] have a reasonable
connection to it[,] are not superseding causes.
Thus, Johnsons contention in this appeal his
argument that the States evidence was insufficient to
support a manslaughter conviction if the cause of
Christinas death was physical assault rather than
starvation stands or falls on the issue of whether a
reasonable jury could conclude that Takaks physical
assault on the infant was foreseeable.
As our supreme court stated in Dura Corp. v.
Harned, 703 P.2d 396, 406 (Alaska 1985), [t]he issue of
proximate cause is normally a question of fact for the
jury to decide[,] and [it] becomes a matter of law only
where reasonable minds could not differ. If no
reasonable (and properly instructed) jury could have
concluded that Takaks assault on the infant was
foreseeable, then the States evidence was insufficient
to support Johnsons manslaughter conviction. If, on
the other hand, a jury could reasonably have found that
Takaks assault on the infant was foreseeable, then
Johnsons sufficiency of the evidence argument fails.
The Alaska Supreme Court confronted a similar
question of foreseeability in P.G. v. Division of
Family and Youth Services, 4 P.3d 326 (Alaska 2000).
In that case, the Division of Family and Youth Services
placed a troubled teenager with a foster family, but
DFYS did not warn the family that the teenager was
emotionally disturbed, that he would smoke marijuana
and become moody and unpredictable, and that he had
been suspended from school for overly rough horseplay.4
The teenager later physically and sexually assaulted
the familys two children. The family then sued the
State, under the theory that DFYS knew or should have
known that the teenager posed a serious threat of harm
to the members of the family, and that DFYS had
breached a duty of care to the family by not providing
them with the pertinent information before placing the
teenager in their home.5
The State conceded that DFYS owed a duty of
care to the foster family, and that this duty included
a duty to disclose pertinent information about the
child to be placed in the familys home,6 but the State
contended that even if this duty had been breached, the
State was not liable to the family. The State argued
that, despite the teenagers emotional problems and past
misbehavior, it was not foreseeable that he would
engage in the specific acts for which the State was
being sued i.e., the physical and sexual assaults on
the foster familys two children. The superior court,
convinced by this argument, entered summary judgement
in the States favor.7 The family then appealed.
The supreme court concluded that the State
was not entitled to summary judgement. The court
declared that, although the elements of negligence and
causation necessarily involve foreseeable risks, the
concept of foreseeability does not imply an ability to
predict [the] precise actions or injuries that form the
basis of liability.8
The supreme court then explained:
When the risk created causes damage in fact,
insistence that the precise details of the
intervening cause be foreseeable would
subvert the purpose of [the] law. Thus,
Prosser and Keeton9 note that there is quite
universal agreement that what is required to
be foreseeable is only the general character
or general type of the event or the harm, and
not its precise nature, details, or above all
manner of occurrence. Or as the [Second]
Restatement [of Torts] puts it,10
[t]he fact that the actor, at the time
of his negligent conduct, neither
realized nor should have realized that
it might cause harm to another of the
particular kind or in the particular
manner in which the harm has in fact
occurred, is not of itself sufficient to
prevent him from being liable for the
others harm if his conduct was negligent
toward the other and was a substantial
factor in bringing about the harm.
P.G., 4 P.3d at 334 (some footnotes omitted).
The court added that, when a duty
of care has been breached, the doctrine of
superseding cause i.e., an intervening cause
of harm that will absolve the defendant of
liability is limited to situations where,
[examining] the event [in retrospect] and
looking back from the harm to the actors
negligent conduct, it appears ... highly
extraordinary that [the actors conduct]
should have brought about the harm. Id. at
334 (emphasis in the original).
The supreme court then explained
why the superior court was wrong to grant
summary judgement to the State:
[T]he superior court concluded as a
matter of law that the information available
to DFYS could not have allowed a reasonable
person to predict [the teenagers] subsequent
assaults on the [foster familys] children.
But the accuracy of this conclusion is beside
the point for purposes of determining DFYSs
potential liability. For as we have
explained, foreseeability does not require an
ability to predict precise actions and exact
injuries.
Considering the evidence in the light
most favorable to the [family], it does not
seem highly extraordinary that DFYSs conduct
should have brought about the harm allegedly
committed. Reasonable jurors applying the
correct standard of foreseeability could
properly conclude that [DFYSs] alleged
description of [the teenager] as a really
good kid who had never been in trouble before
and had no problems was highly misleading,
that DFYS failed to make reasonable efforts
to gather and disclose relevant information
concerning [the teenagers] background, that
this failure exposed the [family] to a
foreseeable and unjustifiable risk that [the
teenager] might engage in harmful actions,
that the injuries he allegedly inflicted were
of the general nature that could be expected,
and that the [family] could have avoided
these injuries either by declining to accept
[the teenager] as a foster child or by
subjecting him to more rigorous supervision
had they known what they were entitled to
know.
Accordingly, we conclude that the
superior court erred in finding [that there
was] no genuine factual dispute on the issue
of foreseeability and in granting summary
judgment to the state on that basis.
P.G., 4 P.3d at 335.
We acknowledge that the supreme
courts ruling on the issues of foreseeability
and superseding causation in P.G. was made in
the context of a lawsuit in which a plaintiff
sought money damages based on a theory of
civil negligence not in the context of a
criminal prosecution. As the supreme court
noted in P.G., 4 P.3d at 334 n. 28, the law
employs a broader definition of
foreseeability in matters of purely economic
harm.
Nevertheless, we conclude that the
same basic principle applies to criminal
prosecutions based on a breach of the duty of
care: the harm to the victim will be deemed
foreseeable if the victim suffers the general
type of harm that the defendant could
foresee, even though the defendant might not
have been able to foresee the precise nature
or details of the harm, or the precise manner
in which the harm was inflicted.
Turning to the facts of Johnsons
case, the evidence (viewed in the light most
favorable to the jurys verdict) is sufficient
to support the conclusion that Johnson was
aware of the danger that Christina would die
of starvation if Johnson failed to intervene
and stop Takaks mistreatment of the infant.
Thus, the general type of harm that Johnson
could foresee was Christinas death through
her mothers abuse.
Based on the evidence in this case,
a jury could reasonably conclude that it was
foreseeable that Takak would grow tired of
waiting for Christina to die of starvation,
and that Takak would turn to other, more
immediate forms of child abuse actions such
as physically assaulting the infant.
Under this analysis of the case,
the fact that Christina ultimately died as a
result of a physical assault would not
exculpate Johnson. Johnson would still have
breached his duty to protect Christina, and
Christinas death by assault would not
constitute a superseding cause of death
because it was foreseeable.
In other words, (1) the jurys
decision to convict Johnson of manslaughter
is consistent with the jurys finding that
Christinas death was solely the result of the
physical assault, and (2) the evidence
presented at Johnsons trial is sufficient to
support the jurys decision.
Conclusion
For the reasons explained here, Johnson is
not entitled to a judgement of acquittal.
However, the superior courts order granting
Johnson a new trial is REVERSED. Barring any
other requests for relief in the superior court,
Judge Esch should proceed to sentence Johnson
based on the jurys verdict.
_______________________________
1See Michael v. State, 767 P.2d 193 (Alaska App. 1988),
reversed on other grounds, 805 P.2d 371 (Alaska 1991)
(holding that a parent can be held responsible for an
assault on their child if, knowing that the child is in
danger of assault from a third person, the parent
unreasonably fails to take action to protect the child).
2State v. Walker, 887 P.2d 971, 977 (Alaska App. 1994).
3See AS 11.81.900(a)(3), the definition of recklessly.
4P.G., 4 P.3d at 328-29.
5Id. at 329-330.
6Id. at 331.
7Id. at 332.
8Id. at 334.
9W. Page Keeton et alia, Prosser and Keeton on the Law of
Torts (5th ed. 1984), 43, p. 299.
10Second Restatement of Torts (1965), 435, comment a.
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