|
You can of the Alaska Court of Appeals opinions.
|
|
NOTICE
The text of this opinion can be corrected before the opinion is published in thePacific
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
BYRON R. LEU, )
) Court of Appeals No. A-10346
Appellant, ) Trial Court No. 3PA-08-1416 CR
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) No. 2303 - April 8, 2011
)
Appeal from the District Court, Third Judicial District, Palmer,
John Wolfe, Judge.
Appearances: Alexandra Foote-Jones, Assistant Public Defender,
and Quinlan Steiner, Public Defender, Anchorage, for the
Appellant. Ann B. Black, Assistant Attorney General, Office of
Special Prosecutions and Appeals, Anchorage, and Daniel S.
Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger,
Judges.
COATS, Chief Judge.
Byron R. Leu was convicted of fourth-degree domestic violence assault and
sixth-degree misconduct involving a controlled substance.1 He argues that his assault was
1 AS 11.41.230(a)(1) and AS 11.71.060(a)(1), respectively.
----------------------- Page 2-----------------------
justified in defense of his daughter, and that the district court erred by refusing to instruct
the jury on defense of a third person. He also argues that the domestic violence statutes
are unconstitutionally vague on their face and as applied to him. For the reasons discussed
below, we reject Leu's claims and affirm his convictions.
Facts and proceedings
On May 23, 2008, Byron Leu was visiting his friend Kenneth Wehmeier.
Leu had his eight-month-old daughter with him. The two men were drinking and "hanging
out" as they often did. According to Wehmeier, he and Leu had previously been sexually
involved, but that involvement had ended some five months earlier, when Leu met his
girlfriend.
At some point during this visit Wehmeier made remarks that angered Leu.
Wehmeier testified that Leu chased him into the kitchen and pushed him into some
cabinets, causing the shelves and their contents to spill to the floor. Leu then held
Wehmeier around the neck and punched him in the face several times.
Wehmeier testified that after this assault he called 911 and Leu called his
girlfriend to come pick him up. During the three or four minutes it took the police to
arrive, Wehmeier tried to get Leu to leave, kicking him in the legs in an effort to get him
out the door. Leu refused to leave, telling Wehmeier he was waiting for his girlfriend
and that he did not want to wait outside with the baby.
When the police arrived, Leu denied assaulting Wehmeier. Initially, he told
the police he did not know how Wehmeier was injured, but later he said Wehmeier must
have fallen down. The two officers observed that Wehmeier's house was generally tidy
but that in the kitchen several pantry shelves and their contents had been upended. The
officers also observed that Leu was calm and that Wehmeier was upset and crying.
- 2 - 2303
----------------------- Page 3-----------------------
Wehmeier's left eye was swollen and he had a cut on his shin. The police arrested Leu,
and during a pat-down search they found a small amount of marijuana, a marijuana pipe,
and a digital scale in his coat pocket.
Leu was charged with fourth-degree assault and sixth-degree misconduct
involving a controlled substance. At trial on those charges, Leu denied assaulting
Wehmeier. He said Wehmeier got very drunk and said derogatory things about women
and called his daughter names. He said he told Wehmeier he no longer wanted to be
friends and that Wehmeier became irate and told him to leave. Leu said that Wehmeier
then ran around the house gathering things that belonged to Leu and his daughter and
throwing them out the door, including the child's car seat. Leu testified that he retrieved
the car seat but when he tried to re-enter the house to get his daughter Wehmeier kicked
him and tried to shove him out the door. Leu said he put his left arm around Wehmeier's
neck and used his foot to trip him and that they both fell to the floor. Leu speculated that
Wehmeier may have received his injuries - the black eye and the cut on his shin -
during this fall.
After the close of evidence, Leu asked the court to instruct the jury on
defense of a third person (his daughter) and self-defense. District Court Judge John Wolfe
refused to give the instruction on defense of a third person but agreed to instruct the jury
on self-defense. The jury convicted Leu of both charges.
At sentencing, the court found by a preponderance of the evidence that Leu
and Wehmeier had previously engaged in a sexual relationship, and that the assault was
therefore a domestic violence assault.
Leu appeals.
- 3 - 2303
----------------------- Page 4-----------------------
Why we conclude that the district court did not err in instructing the
jury
At trial Leu testified that the only reason he used force against Wehmeier
was to protect his eight-month-old daughter, and he asked Judge Wolfe to instruct the
jury on the justification of defense of a third person. Under AS 11.81.340, a person is
justified in using force to defend a third person if he reasonably believes the third person
would be justified in using that degree of force in self-defense.2
Leu argues that Judge Wolfe based his refusal to give the defense of a third
person instruction on the legally irrelevant consideration that Leu's daughter, at eight
months old, was incapable of acting in her own defense. Although we acknowledge some
ambiguity in Judge Wolfe's remarks, we do not agree with Leu's interpretation of them.
Judge Wolfe ultimately focused on the appropriate question - whether Leu's child
"would have beenjustified in throwing Mr. Wehmeier down to defend herself"3 - not
on whether the child was physically capable of doing so.
To be entitled to an instruction on defense of a third person, Leu had to
present "some evidence" that he reasonably believed that his daughter faced imminent
harm or threat of harm.4 In district court, Leu did not offer any evidence to support a
2 AS 11.81.340 provides:
A person is justified in using force upon another when and to the
extent the person reasonably believes it is necessary to defend a third
person when, under the circumstances as the person claiming defense
of another reasonably believes them to be, the third person would be
justified under AS 11.81.330 or 11.81.335 in using that degree of force
for self-defense.
3 Emphasis added.
4 AS 11.81.340; AS 11.81.900(b)(27); Ha v. State, 892 P.2d 184, 191 (Alaska App.
1995).
- 4 - 2303
----------------------- Page 5-----------------------
reasonable belief that an attack on his daughter was imminent, such that the child would
have been justified in using force to defend herself. On appeal, Leu argues that
Wehmeier's angry and irrational behavior made it reasonable for him to conclude that
Wehmeier was capable of harming his daughter. But even accepting this assertion as true,
it does not amount to evidence that Leu reasonably feared that Wehmeier posed an
imminent risk to his daughter.5 Judge Wolfe therefore did not err in refusing Leu's
proposed instruction on defense of a third person.
Judge Wolfe concluded that Leu did present sufficient evidence to raise a
claim of self-defense because there was evidence that Wehmeier used unlawful force
(kicking and shoving) to keep Leu out of the house. Judge Wolfe reasoned that Leu had
a right to reenter Wehmeier's house to retrieve his daughter, and that when Wehmeier
used force to keep Leu out of the house, this was arguably an unlawful use of force against
Leu, thus entitling Leu to use defensive force against Wehmeier.
Leu challenges Judge Wolfe's ruling on two grounds. First, he argues that
the self-defense instruction did not encompass his theory of the case and that Judge Wolfe
erroneously concluded that it did. Second, he argues that the court's ruling precluded
him from arguing to the jury that he acted to protect his daughter.
Leu's second claim is not supported by the record. Although Leu was not
entitled to a defense of others instruction, nothing in the judge's remarks precluded Leu
from arguing to the jury that he used force against Wehmeier to protect his daughter, and
Leu in fact made that argument.
5 See Lamont v. State, 934 P.2d 774, 777-79 (Alaska App. 1997) (citing McCracken
v. State, 914 P.2d 893, 898 (Alaska App. 1996)).
- 5 - 2303
----------------------- Page 6-----------------------
The problem with Leu's other claim - that Judge Wolfe erred in concluding
that the self-defense instruction encompassed his theory of the case - is that Leu failed
to object on this ground in district court.6
Leu is not challenging Judge Wolfe's decision to instruct the jury on self-
defense - he requested the self-defense instruction. His quarrel is with Judge Wolfe's
conclusion that the instruction adequately conveyed his theory that the force he used
against Wehmeier was justified to protect his daughter.7 But absent any objection by Leu,
or any proposal to modify the language of the instruction, Judge Wolfe could reasonably
conclude that Leu was satisfied that the self-defense instruction would serve this purpose.
Moreover, Leu has failed to show how he was prejudiced. In closing
argument, Leu abandoned any claim that his assault on Wehmeier was justified, arguing
instead that the State had failed to prove the mens rea element of fourth-degree assault.
Leu argued that, because he acted reasonably when he knocked Wehmeier down to get
to his daughter, the State failed to prove that he acted with the required reckless intent.
The State argued that the assault occurred in the kitchen, and was entirely unrelated to
Leu's effort to re-enter the house to retrieve his daughter. Given this record, we conclude
that any deficiency in the court's self-defense instruction did not contribute to Leu's
conviction.
6 See Alaska R. Crim. P. 30(a) ("No party may assign as error any portion of the
charge or omission therefrom unless the party objects thereto before the jury retires to
consider its verdict.").
7 See Carman v. State, 658 P.2d 131, 135 (Alaska App. 1983).
- 6 - 2303
----------------------- Page 7-----------------------
Why we conclude that the definition of "household member" is not
unconstitutionally vague
At sentencing, at the State's request and over Leu's objection, Judge Wolfe
found by a preponderance of the evidence that Leu's assault on Wehmeier qualified as
a domestic violence crime as defined in AS 18.66.990(3).8
The Alaska Statutes define certain crimes (e.g., assault, burglary, criminal
mischief) as domestic violence crimes if they are committed by one household member
against another.9 The term "household member" is commonly understood to refer to
individuals who live together. But the Alaska Statutes define the term much more broadly
to include10:
(A) adults or minors who are current or former spouses;
(B) adults or minors who live together or who have lived
together;
(C) adults or minors who are dating or who have dated;
(D) adults or minors who are engaged in or who have engaged
in a sexual relationship;
8 See Alaska Criminal Rule 32(e), which provides:
Judgment for Crimes Involving Domestic Violence. In a case in which
the defendant is convicted of an offense listed in AS 18.66.990(3) and
the prosecution claims at sentencing that the offense is a crime
involving domestic violence, the written judgment must set forth
whether the offense is a crime involving domestic violence as defined
in AS 18.66.990(3) and (5). A factual and legal determination
supporting this finding must be made on the record.
9 AS 18.66.990(3).
10 AS 18.66.990(5); see Cooper v. District Court, 133 P.3d 692, 707 (Alaska App.
2006); Bingaman v. State, 76 P.3d 398, 406-08 (Alaska App. 2003); Carpentino v. State, 42
P.3d 1137, 1141 (Alaska App. 2002).
- 7 - 2303
----------------------- Page 8-----------------------
(E) adults or minors who are related to each other up to the
fourth degree of consanguinity, whether of the whole or half
blood or by adoption, computed under the rules of civil law;
(F) adults or minors who are related or formerly related by
marriage;
(G) persons who have a child of the relationship; and
(H) minor children of a person in a relationship that is
described in (A) - (G) of this paragraph[.]
Leu challenges subsection (D), which defines household member to include
"adults who are engaged in or who have engaged in a sexual relationship." He argues
that this definition is unconstitutionally vague on its face and as applied to him.
When no first amendment rights are implicated, we consider two factors in
determining whether a statute is unconstitutionally vague: first, whether the statute gives
adequate notice of the conduct that is prohibited and, second, whether the statute's
language is so imprecise that it encourages arbitrary enforcement by allowing prosecuting
authorities too much discretion in determining the scope of the law.11 Leu attacks
AS 18.66.990(5)(D) on both of these grounds.12
11 Summers v. Anchorage, 589 P.2d 863, 866-67 (Alaska 1979).
12 To the extent that Leu is raising a separate claim of overbreadth, that claim is
waived for inadequate briefing. See 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."); see also Holton
v. State, 602 P.2d 1228, 1236 n.11 (Alaska 1979) & Marks v. Anchorage, 500 P.2d 644, 646
(Alaska 1972) (recognizing that claims of vagueness and overbreadth are "functionally and
doctrinally distinct").
- 8 - 2303
----------------------- Page 9-----------------------
Basic fairness requires that statutes provide ordinary citizens with adequate
notice of what conduct is prohibited.13
But the fact that people can, in good faith, litigate the meaning
of a statute does not necessarily (or even usually) mean that
the statute is so indefinite as to be unconstitutional. The
question is whether the statute's meaning is unresolvably
confused or ambiguous after it has been subjected to legal
analysis.14
A statute will not be invalidated on its face on vagueness grounds unless
it is impermissibly vague in all its applications.15 In other words, "the possibility of
difficult or borderline cases will not invalidate a statute where there is a hard core of cases
to which the ordinary person would doubtlessly know the statute unquestionably
applies."16
The term "sexual relationship" is not so unresolvably confused or ambiguous
that it gives inadequate notice in all its applications of what conduct it encompasses. An
ordinary person would, at a minimum, understand the term "sexual relationship" to include
13 State v. Rice, 626 P.2d 104, 109 (Alaska 1981); Stock v. State, 526 P.2d 3, 8
(Alaska 1974).
14 De Nardo v. State, 819 P.2d 903, 907 (Alaska App. 1991) (emphasis in original).
15 Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494
95, 102 S. Ct. 1186, 1191, 71 L. Ed. 2d 362 (1982); Bachlet v. State, 941 P.2d 200, 204
(Alaska App. 1997).
16 Stock, 526 P.2d at 9.
- 9 - 2303
----------------------- Page 10-----------------------
individuals who are in a committed sexual relationship.17 We therefore reject Leu's claim
that the term is impermissibly vague on its face.18
Leu also argues that the term is unconstitutionally vague as applied to him
because it did not provide him with adequate notice that the term would include the type
of casual sexual relationship he had with Wehmeier.
As we already explained, the void for vagueness doctrine requires that
criminal laws give ordinary citizens fair notice of what conduct is prohibited, so that they
are not left to guess at whether a certain course of conduct is criminal.19 But the doctrine
only requires fair notice of the elements that make the conduct criminal - a defendant
has no right to notice of the collateral circumstance that his offense might be classified
as a domestic violence crime.
We addressed a related principle in Bell v. State,20 a case in which the
defendant was convicted of inducing a girl under the age of sixteen to engage in
prostitution. Bell argued that his conviction violated due process because the trial court
did not allow him to raise the defense of mistake of age.21 In addressing that claim, we
acknowledged the well-recognized rule that a defendant cannot be convicted of criminal
conduct without an awareness or consciousness of wrongdoing.22 But we explained that
"[w]hat is essential is not awareness that a given conduct is a 'wrongdoing' in the sense
17 See Webster's New World College Dictionary (4th ed. 2007) (defining
"relationship" as "a continuing attachment or association between persons ..., specif., one
between lovers").
18 See Stock, 526 P.2d at 9.
19 Gottschalk v. State, 575 P.2d 289, 290 (Alaska 1978).
20 668 P.2d 829 (Alaska App. 1983).
21 Id. at 832-35.
22 Id. at 833.
- 10 - 2303
----------------------- Page 11-----------------------
that it is proscribed by law, but rather, an awareness that one is committing the specific
acts which are defined by law as a 'wrongdoing.'"23 Thus, for Bell's conviction to be
constitutional, the State had to prove that Bell was aware he committed an act the law
defined as wrongdoing: procuring a woman to engage in prostitution.24 The State did
not have to prove that Bell was aware the girl he procured was under sixteen, even though
that circumstance aggravated his offense.25 In Ortberg v. State,26 we similarly held that
there was no due process violation in convicting the defendant of second-degree criminal
mischief without proof that the defendant knew or had reason to believe the damage he
caused was in excess of the $500 specified in the statute.27
The same principle leads us to reject Leu's claim that his due process rights
were violated because he was convicted of domestic violence assault without adequate
notice that his offense was a crime of domestic violence. All the constitution required
was proof that Leu was aware he committed an act the law defined as wrongdoing:
assaulting Wehmeier. It was not necessary for Leu to be aware that, because of his prior
sexual relationship with Wehmeier, the assault would be a domestic violence crime.
This does not mean Leu would have no recourse if the record left us
uncertain that the legislature intended the term "sexual relationship" to apply under the
facts of his case, such that we doubted whether trial judges could apply the term in a
reasonably evenhanded manner. But the record does not leave us with that doubt.
23 Id.
24 Id.
25 Id.
26 751 P.2d 1368 (Alaska App. 1988).
27 Id. at 1374.
- 11 - 2303
----------------------- Page 12-----------------------
At trial, Leu denied that he and Wehmeier had ever been sexually involved.
But Judge Wolfe credited Wehmeier's testimony about the nature of the two men's
relationship, and Leu does not challenge that finding on appeal. Wehmeier testified that
during the year or so he lived next door to Leu they "used to hang out together a lot."
He said they were "both drinkers" and would "stay up pretty late, you know, watching
TV or whatever, and we would end up in the same bed." Wehmeier said that "pretty soon
we were intimate, but we were more like friends. I mean, that was something that would
happen every once and a while." Wehmeier said he and Leu had not been "intimate" for
about five months before the incident in this case, when Leu met his girlfriend. Wehmeier
said he was jealous at first and that it took him a few months to warm up to Leu's
girlfriend. But he testified that "the friendship ... was what was important to me." On
cross-examination, Wehmeier acknowledged that he had called Leu and been to his house
a few times since the assault; he said he "thought we maybe could patch things up," and
that he "wanted to forgive [Leu]."
Based on this record, Leu asserts that any sexual involvement he had with
Wehmeier was too casual to fall within the definition of "sexual relationship." But when
the Alaska Legislature defined "household member" to include adults "who have engaged
in a sexual relationship," it did not specify that the relationship had to be a serious one.
As Leu points out, Minnesota has imposed this requirement by statute, and it has adopted
a multi-factor test to determine when a romantic or sexual relationship is "significant."28
28 Minn. Stat. § 518B.01(b) (defining "family or household members" to include
"persons involved in a significant romantic or sexual relationship" and adopting factors for
the court to consider in determining if the relationship is significant).
- 12 - 2303
----------------------- Page 13-----------------------
The Alaska Legislature chose not to define "sexual relationship," leaving the courts to
construe the term in accordance with its ordinary meaning.29
As just explained, Judge Wolfe credited Wehmeier's testimony that the two
men had an ongoing friendship that, up until five months before the assault, included
occasional sexual intimacy, and that this intimacy continued until Leu met his girlfriend.
This is not the type of non-consensual or short-lived sexual involvement that falls outside
the ordinary person's understanding of a "sexual relationship."
Leu's next argument is that the term "sexual relationship" is impermissibly
vague because it lends itself to arbitrary or selective enforcement. Because Leu did not
raise this claim in the district court, he must show plain error.30
Leu does not argue that the police or prosecuting authorities have actually
engaged in arbitrary or selective enforcement in their prosecution of domestic violence
crimes; nor does he provide any evidence of such conduct. The Alaska Supreme Court
has held that there must be actual evidence of a history of arbitrary or capricious
enforcement to invalidate a statute on this ground, or the language of the statute must be
so conflicting and confused that arbitrary enforcement is inevitable.31 A law will not be
invalidated simply because of its potential for arbitrary enforcement.32
29 See Anchorage v. Suzuki, 41 P.3d 147, 150 (Alaska 2002) (discussing rules of
statutory construction); Norman J. Singer and J.D. Shambie Singer, 2A Statutes and Statutory
Construction, § 47:7 at 306-11 (7th ed. 2007).
30 See Alaska R. Crim. P. 47(b); Garroutte v. State, 508 P.2d 1190, 1191 (Alaska
1973).
31 Lazy Mountain Land Club v. Matanuska-Susitna Borough Bd. of Adjustment and
Appeals , 904 P.2d 373, 384 (Alaska 1995) (citing Summers, 589 P.2d at 869 and Williams
v. State, Dep't of Revenue, 895 P.2d 99, 105 (Alaska 1995)).
32 Haggblom v. City of Dillingham , 191 P.3d 991, 998 (Alaska 2008).
- 13 - 2303
----------------------- Page 14-----------------------
Leu tries to get around this requirement by arguing that the cases in which
a history of selective and arbitrary enforcement has been established usually involve
"disorderly conduct type laws" that historically have been used to "target undesirables."
Leu argues that he should be exempt from this requirement because this historical context
"is simply not present in the context of domestic violence cases." But we have never held
that a defendant is required to offer evidence of selective or arbitrary enforcement only
if the statute at issue has historically been used to "target undesirables."33 Furthermore,
the term "sexual relationship" "is not so imprecise that it obviously would encourage
arbitrary enforcement."34 We find no plain error.
Conclusion
We AFFIRM Leu's convictions.
33 See, e.g., Bachlet, 941 P.2d at 206 (receipt of bribe statute); Morrow v. State, 704
P.2d 226, 233 (Alaska App. 1985) (imitation of controlled substance statute); McKenzie v.
Anchorage , 631 P.2d 514, 518 (Alaska App. 1981) (gambling ordinances).
34 See Turney v. State, 936 P.2d 533, 544 (Alaska 1997) (quoting Summers, 589 P.2d
at 867).
- 14 - 2303
 |
| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
|
