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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
ELISEY E. MARTUSHEFF,
Court of Appeals No. A-12793
Appellant, Trial Court No. 3PA-16-00938 CR
v.
O P I N I O N
STATE OF ALASKA,
Appellee. No. 2674 - September 4, 2020
Appeal
from the District Court, Third Judicial District, Palmer,
William L. Estelle, Judge.
Appearances: Michael Horowitz, Kingsley, Michigan, under
contract with the Public Defender Agency, and Quinlan Steiner,
Public Defender, Anchorage, for the Appellant. Glenn J.
Shidner, Assistant District Attorney, Palmer, and Kevin G.
Clarkson, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, Harbison, Judge, and Mannheimer,
*
Senior Judge.
Judge MANNHEIMER.
* Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska
Constitution and Administrative Rule 23(a).
----------------------- Page 2-----------------------
In April 2016, while Elisey E. Martusheff was incarcerated at the
Matanuska-Susitna Pretrial Correctional Facility, he asked a corrections nurse whether
he was going to receive any medications. When the nurse said no, Martusheff launched
a container of urine and feces at the nurse. The nurse was hit by this waste, and it also
splashed on two other corrections officers who were standing nearby.
Based on this incident, Martusheff was convicted of three counts of first-
degree harassment - one count for each of the corrections employees.
A defendant commits the crime of first-degree harassment if, acting "with
intent to harass or annoy another person", the defendant "subjects another person to
offensive physical contact" with feces or various body fluids, including urine. See
AS 11.61.120(a)(5) (which defines the basic crime of harassment by offensive physical
contact) and AS 11.61.118(a)(1) (which raises the degree of the crime if the offensive
contact is by feces or bodily fluids).
At trial, Martusheff's attorney conceded that Martusheff acted with the
intent to harass or annoy the corrections nurse when he threw the urine and feces at him,
and that Martusheff was therefore guilty of the count of first-degree harassment
involving the nurse. But the defense attorney argued that Martusheff was not guilty of
the other two harassment charges involving the corrections officers - and Martusheff
renews that argument on appeal.
The issue here is how to interpret the harassment statute. As we just
explained, each charge of harassment required the State to prove that Martusheff acted
"with intent to harass or annoy another person" and that Martusheff "subject[ed] another
person to offensive physical contact".
Martusheff argues that this crime is committed only when these two
elements involve the same person - i.e., when a defendant intends to harass or annoy
another person and the defendant subjects that person to offensive physical contact. The
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State, on the other hand, argues that if a defendant acts with the intention of harassing
or annoying another person, the defendant commits the crime of harassment if the
defendant takes action that subjects any person to offensive physical contact - even if
this physical contact is with an unintended victim ( i.e., not the same person that the
defendant intended to harass or annoy).
At Martusheff's trial, the trial judge adopted a slightly modified version of
the State's interpretation of the statute. The trial judge instructed the jury that if
Martusheffintended to harass or annoy any person (and remember, Martusheffconceded
that he intended to harass or annoy the nurse), then Martusheff could properly be
convicted of a separate count of harassment for each person who was hit by his waste,
so long as the State proved that Martusheff was at least reckless regarding the possibility
that this other person would be subjected to contact with this waste.
As we explain in this opinion, the wording of the harassment statute is
ambiguous on this point, and the legislative history of the statute does not directly
address this point. To the extent that this legislative history is pertinent to the question
raised here, it suggests that Martusheff's interpretation of the statute is correct - that the
legislature envisioned that the victimof the offensive physical contact would be the same
person who was targeted by the defendant.
When the wording and the legislative history of a criminal statute do not
resolve a question of statutory interpretation, we are required to construe the statute
1
against the government.
We therefore interpret the harassment statute to mean that the
person who is subjected to the offensive physical contact must be the same person whom
1 See, e.g., Whiting v. State, 191 P.3d 1016, 1023 (Alaska App. 2008) ("To the extent
that a statute defining criminal liability remains ambiguous even after we subject it to
recognized methods of statutory construction, we must resolve that ambiguity against the
government.").
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----------------------- Page 4-----------------------
the defendant intended to harass or annoy. And for this reason, we reverse Martusheff's
convictions on the two counts involving the corrections officers who were standing near
the nurse. We affirm Martusheff's conviction for harassment of the nurse.
Our analysis of the harassment statute
Some Alaska criminal statutes clearly state that the victim of the crime
need not be the same person whom the defendant intended to hurt. For example,
Alaska's first-degree murder statute declares that a defendant commits that crime if,
acting "with intent to cause the death of another person", the defendant "causes the death
2
of any person".
Similarly, a defendant commits robbery if, in the course of taking
(or attempting to take) property from the immediate presence and control of another,
the defendant uses or threatens the immediate use of force "upon any person" for the
purpose of preventing or overcoming resistance to the taking, or for the purpose of
compelling "any person" to engage in conduct that will aid the defendant's taking of the
3
property.
On the other hand, some Alaska criminal statutes - such as our stalking
statute and one clause of our third-degree assault statute - clearly state that the victim
of the crime must be the person whom the defendant targeted (or a family member of the
4
targeted victim).
And Alaska's kidnapping statute contains both types of provisions:
2 AS 11.41.100(a)(1)(A). Our second-degree murder statute and our first-degree assault
statute contain provisions that are worded in an analogous way; see AS 11.41.110(a)(1) and
AS 11.41.200(a)(2).
3 AS 11.41.510(a).
4 See AS 11.41.270(a) and (b)(1) & (b)(5) (stalking), and AS 11.41.220(a)(2) (third-
degree assault by making repeated threats to cause death or serious physical injury to another
(continued...)
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----------------------- Page 5-----------------------
provisions that require proof that the defendant's actions were directed toward the
targeted victim, as well as provisions that speak of instilling fear in either the targeted
5
victim or a "third person".
The provision of the harassment statute that is at issue in Martusheff's case,
AS 11.61.120(a)(5), is worded in a way that falls between these two poles. The two
operative clauses of this provision - "with intent to harass or annoy another person",
and "subjects another person to offensive physical contact" - do not clearly specify
whether the person who is subjected to the offensive physical contact must be the same
person that the defendant intended to harass or annoy. And the statute makes sense when
it is read either way.
The harassment statute was enacted as part of the 1978 revision of the
Alaska Criminal Code. The legislative commentary's description of this statute does not
resolve the question raised here. The commentary simply states that paragraph (5) of the
statute "covers subjecting a person to offensive physical contact if done with an intent
6
to harass or annoy".
Likewise, when the staff counsel for the legislature's Criminal Code
Revision Subcommission, Barry Stern, explained the "offensive physical contact"
provision to the House Judiciary Committee in January 1978, he did not directly address
the issue raised in the present case. However, Mr. Stern's description of the statute
4 (...continued)
person, if the defendant is acting with the intent of placing that person in fear that they or a
family member will suffer death or serious physical injury).
5 See AS 11.41.300(a)(1)(A), (B), (C), and (F).
6 Commentary to Alaska's revised criminal code, 1978 Senate Journal, Supp. No. 47
(June 12), p. 97.
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----------------------- Page 6-----------------------
suggested that the person who was subjected to the offensive physical contact was the
same person that the defendant intended to harass or annoy.
Stern first explained that the "offensive physical contact" provision was
intended to cover conduct that did not cause any physical pain (because any conduct that
caused pain was already covered by the assault statutes), but which would have been a
battery at common law - conduct such as slight shoving or spitting. Stern then
explained that, initially, the "offensive physical contact" provision was drafted to cover
any touching of another person if done "with reckless disregard for the offensive,
provocative, injurious, or insulting effect". However, Stern told the Committee that the
provision had been narrowed - "redrafted to require [an] intent to harass or annoy the
7
person, and the person has to be subject[ed] to offensive physical contact."
Stern's repeated use of the words "the person" in this last part of his
explanation suggests that a defendant's intent to harass or annoy had to be directed at the
same person who was subjected to the offensive physical contact.
This interpretation of the "offensive physical contact" provision of the
statute - i.e., interpreting the phrase "another person" as meaning the person who was
the target of the defendant's conduct - is consistent with the way "another person" is
used in the other provisions of the harassment statute.
Two other subsections of the harassment statute use the phrase "another
person" in contexts where the phrase clearly means "the person whom the defendant
intended to harass or annoy". Subsection (a)(1) of the statute declares that a defendant
commits harassment "if, with intent to harass or annoy another person", the defendant
"insults, taunts, or challenges another person in a manner likely to provoke an immediate
violent response". And subsection (a)(2) of the statute declares that a defendant commits
7 Minutes of the House Judiciary Committee's consideration of House Bill 661,
January 28, 1978, pp. 4-7.
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----------------------- Page 7-----------------------
harassment "if, with intent to harass or annoy another person", the defendant "telephones
another and fails to terminate the connection with intent to impair the ability of that
person to place or receive telephone calls".
In short, both Barry Stern's testimony to the House Judiciary Committee
and the wording of these two sibling provisions of the harassment statute indicate that
the drafters of the statute understood the phrase "another person" to mean the person who
was the target of the defendant's effort to harass or annoy.
This conclusion is further supported by the fact that our "offensive physical
contact" provision is derived from the mid-1970s version of the Oregon harassment
statute, ORS § 166.065(1)(a). Like subsection (a)(5) of Alaska's harassment statute, the
former Oregon harassment law provided that "[a] person commits the crime of
harassment if, with intent to harass, annoy or alarm another person, he ... [s]ubjects
8
another to offensive physical contact".
We could find no Oregon cases where Martusheff's issue of statutory
interpretation was raised. However, the commentary to the Oregon statute declares that
this statute was derived from a New York statute (the pre-1992 version of New York
9
Penal Law § 240.25, now renumbered as Penal Law § 240.26). And this New York
harassment provision clearly stated that the person who was subjected to the unwanted
physical contact had to be the person whom the defendant was targeting.
(Under the New York statute, a defendant was guilty of harassment "when,
with intent to harass, annoy or alarm another person", the defendant "strikes, shoves,
kicks or otherwise subjects such other person to physical contact, or attempts or
threatens to do the same".)
8 Quoted in State v. Sallinger, 504 P.2d 1383, 1384 (Or. App. 1972).
9 See Oregon Criminal Law Revision Commission, Proposed Oregon Criminal Code,
Final Draft and Report (July 1970), Commentary to Article 26, section 223.
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----------------------- Page 8-----------------------
Although the original version of the Oregon harassment statute used the
ambiguous "another person" phrasing, the statute was reworded in the mid-1980s so that
it now contains New York's unambiguous phrasing: a person commits the crime of
harassment in Oregon "if the person intentionally ... [h]arasses or annoys another person
by ... [s]ubjecting such other person to offensive physical contact".
Finally, we note that several other states have enacted criminal statutes that
prohibit the throwing of feces or bodily fluids, and the laws of these other states clearly
specify that the person who is subjected to unwanted contact with feces or bodily fluids
10
must be the person whom the defendant intended to "assault", "harass", or "alarm".
For these reasons, the State's proposed interpretation of the harassment
statute - i.e., the State's suggestion that the statute covers both intended and unintended
victims - is a doubtful reading of the statute. While there might be valid policy reasons
to write a broader statute, both the wording of the harassment statute (read as a whole)
and the legislative history of the "offensive physical contact" provision of the statute
suggest that the drafters wrote a narrower statute - a statute which requires proof that
the person who was subjected to the offensive physical contact was the target of the
defendant's effort to harass or annoy.
In sum, the State's proposed broader interpretation of the "offensive
physical contact" provision of the harassment statute is, at best, only arguable. And
because the meaning of this provision remains ambiguous or unclear even after it has
10 See Montana Statute § 45-5-214; New Hampshire Statute § 642:9; New York Penal
Law § 240.32; Ohio Statute § 2921.38; Oregon Statute § 166.070; and Texas Penal Code
§ 22.11(a).
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----------------------- Page 9-----------------------
been subjected to legal analysis, the law requires us to construe the statute against the
11
government.
We therefore interpret AS 11.61.120(a)(5) and AS 11.61.118(a)(1) as
requiring the State to prove that the defendant intended to harass or annoy the person
who was subjected to the offensive physical contact.
The State argues that even if the harassment statutes are construed in this
manner, we should still affirm all three of Martusheff's harassment convictions because
the evidence presented at trial was legally sufficient to support findings that Martusheff
acted with intent to harass or annoy not only the nurse, but also the two corrections
officers who were nearby.
However, as we explained earlier in this opinion, the trial judge instructed
the jurors that, so long as the jurors were convinced that Martusheff acted with intent to
harass or annoy the nurse (something that Martusheff conceded at trial), Martusheff
could also properly be convicted of harassing the two corrections officers, even if
Martusheff did not intend to harass or annoy the two officers (so long as Martusheff was
at least reckless regarding the possibility that his waste would hit the two officers).
In other words, the trial judge erroneously told the jurors that if they
accepted Martusheff's concession that he intended to harass or annoy the nurse, it was
irrelevant whether the State proved that Martusheff acted with intent to harass or annoy
the two corrections officers.
Because of this erroneous jury instruction, we must reverse Martusheff's
harassment convictions involving the two corrections officers even if the evidence at
Martusheff's trial might be legally sufficient to support a finding that he intended to
harass or annoy these two officers.
11 See Wooley v. State , 221 P.3d 12, 19 (Alaska App. 2009); State v. ABC Towing, 954
P.2d 575, 579 (Alaska App. 1998).
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Martusheff's claim of evidentiary error at his trial
Martusheff raises oneadditionalclaimin thisappeal: a claimof evidentiary
error at his trial. Because we are reversing two of Martusheff's harassment convictions
on other grounds, and because, at trial, Martusheff conceded that he was guilty of the one
remaining count of harassment (the count alleging that he acted with intent to harass the
nurse), we need not resolve Martusheff's claim of evidentiary error.
Conclusion
We REVERSE Martusheff's harassment convictions involving the two
corrections officers who accompanied the nurse. We AFFIRM Martusheff's conviction
involving the nurse.
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