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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Johnson v. State (1/22/2010) sp-6454
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| FRANK R. JOHNSON, | ) |
| ) Supreme Court No. S- 13023 | |
| Petitioner, | ) |
| ) Court of Appeals No. A- 9444 | |
| v. | ) Superior Court No. 2NO-04- 356 CR |
| ) | |
| STATE OF ALASKA, | ) O P I N I O N |
| ) | |
| Respondent. | ) No. 6454 - January 22, 2010 |
| ) | |
| ) | |
Petition for Hearing from the Court of
Appeals of the State of Alaska, on petition
from the Superior Court of the State of
Alaska, Second Judicial District, Nome, Ben
Esch, Judge.
Appearances: Sharon Barr, Assistant Public
Defender, Quinlan Steiner, Public Defender,
Anchorage, for Petitioner. Timothy W.
Terrell, Assistant Attorney General,
Anchorage, Talis J. Colberg, Attorney
General, Juneau, for Respondent.
Before: Fabe, Chief Justice, Eastaugh,
Carpeneti, Winfree, and Christen, Justices.
WINFREE, Justice.
I. INTRODUCTION
We are asked in this petition for hearing to clarify
the standard of foreseeability for a criminal prosecution based
on reckless conduct.
A defendant is responsible for the natural consequences
of his or her act or failure to act. But the defendants
liability for harm to another is not limitless because natural
consequences are those a reasonable person could have foreseen.
If the trier of fact finds a general type of harm was
foreseeable, then the trier of fact must determine whether the
actual harm was within the scope of risk hazarded by the
defendants conduct. The trier of fact need not find the exact
manner in which the actual harm occurred was foreseeable, but the
exact manner of harm must not be too remote a possibility or
liability cannot be imposed.
Because in this case the court of appeals applied a
foreseeability standard that did not expressly include a
consideration of remoteness, we vacate its decision and remand
for further proceedings consistent with the standard articulated
in this opinion.
II. FACTS AND PROCEEDINGS
The court of appeals succinctly set forth the
underlying facts of this case as follows:
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.[1]
The State prosecuted Johnson for second-degree murder
premised on a parents duty to protect his child from physical
harm.2 The state medical examiner testified at Johnsons trial
that both head trauma and starvation caused Christinas death. He
also testified that the head trauma would have killed Christina
even if she had not been starved, but either had the capacity to
kill her. Johnsons forensic pathologist testified that although
Christina was profoundly starved and would likely have died, the
sole cause of Christinas death was the head trauma and starvation
neither caused nor contributed to her death. Johnson argued to
the jury that even if it found he had been aware that Takak was
starving Christina, he had no reason to be aware of a particular
danger that Takak might assault Christina.
The jury acquitted Johnson of second-degree murder but
convicted him of manslaughter. The jury also returned a special
verdict form showing unanimous agreement that the cause of
Christinas death was head trauma, not starvation or a combination
of the two.
Johnson filed a motion for judgment of acquittal,
arguing that even if the State proved he recklessly disregarded
the risk that Takak was starving Christina, the jurys special
verdict established that starvation did not contribute to
Christinas death. The trial court treated the motion as a
request for a new trial, vacated the verdict, and ordered a new
trial:
The court has no doubt that evidence
supports a jury verdict that the defendant
knew that allowing Christina to remain with
Heather Takak would result in her death by
starvation or that he was aware of and
consciously disregarded a substantial and
unjustifiable risk that allowing the baby to
remain with Heather Takak would result in
starvation. The court further believes that
the evidence supports a jury verdict of
manslaughter, if starvation was a substantial
factor in bringing about the death of
Christina Johnson. The testimony of [the
state medical examiner] was clear on that
issue. Because the evidence supports a
verdict of manslaughter, given the evidence
from the trial, the court must deny the
motion for judgment of acquittal.
The problem this case presents is that
the jury found the defendant guilty of
manslaughter and then further unanimously
found the cause of death to be head trauma.
There was insufficient evidence to suggest
that Frank Johnson knew or was aware of a
substantial and unjustifiable risk that
Heather Takak would cause head trauma to the
child and did nothing. . . .
. . . The jury unanimously agreed as to
the cause of death. The question is whether
the evidence supports a verdict of
manslaughter in the face of that unanimous
special verdict.
. . . The court believes that, under the
circumstances of this case, it should treat
[the acquittal] motion as a motion for a new
trial. The court believes that between the
two expert witnesses, [the state medical
examiner] was more persuasive. Had this case
been tried to the court, the court would have
returned the same verdict as the jury, but
any special verdict would have been
different. The court believes that reason
and common sense support a conclusion that
any person who is severely malnourished faces
a much reduced likelihood of survival when
subjected to traumatic injury. In that
context, inanition would be a substantial
factor in causing any subsequent death.
Nevertheless, the jury concluded otherwise.
However, because substantial evidence
supports a verdict of manslaughter, but not
manslaughter in the manner found by the jury,
the court will deny the motion for acquittal
but grant a new trial. (Emphasis added.)
Johnson petitioned the court of appeals, arguing that
the trial court should have granted his motion for judgment of
acquittal and asking the court of appeals for that relief. The
court of appeals instead reversed the trial courts order granting
a new trial and affirmed the manslaughter conviction,3 stating
that Johnsons conviction stands or falls on whether a reasonable
jury could conclude Takaks physical assault on Christina was
foreseeable:4
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.
. . . .
. . . [T]he 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.[5]
Because this case involves a legal duty of protection,
the court of appeals examined and discussed our explanation of
foreseeability in P.G. v. State, Department of Health & Human
Services, Division of Family & Youth Services,6 a civil case
involving the states duty to inform potential foster parents of a
foster childs known dangerous propensities.7 Acknowledging P.G.s
broad definition of foreseeability for tort liability, the court
of appeals nevertheless concluded that:
[T]he 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.[8]
The court of appeals determined that the general type
of harm that Johnson could foresee was Christinas death through
her mothers abuse and that a jury could reasonably conclude it
was foreseeable that Takak would tire of waiting for Christina to
starve to death and would turn to other, more immediate forms of
child abuse.9 The court of appeals concluded that under this
analysis, the evidence submitted at trial was sufficient to
support Johnsons manslaughter conviction.10
Johnson petitioned our court to answer the question of
whether the court of appeals erred in imposing the civil
negligence definition of foreseeability to a criminal prosecution
based on reckless conduct.11
III. STANDARD OF REVIEW
We review de novo questions of law,12 such as the
appropriate definition of foreseeability.13 We adopt the rule of
law that is most persuasive in light of precedent, reason, and
policy.14
IV. DISCUSSION
Johnson was convicted of manslaughter, statutorily
defined as intentionally, knowingly, or recklessly caus[ing] the
death of another person under circumstances not amounting to
murder in the first or second degree.15 Recklessly is defined as:
when the person is aware of and consciously
disregards a substantial and unjustifiable
risk that the result will occur or that the
circumstance exists; the risk must be of such
a nature and degree that disregard of it
constitutes a gross deviation from the
standard of conduct that a reasonable person
would observe in the situation.[16]
If death was not a foreseeable result of an act or failure to
act, the defendant cannot be guilty of manslaughter because (1)
the victims death would not have been a substantial and
unjustifiable risk17 and (2) the defendants act or failure to act
would not have been a proximate cause of the victims death.18
Johnson had a legal duty to protect Christina from harm
because he was her father.19 Substantial evidence was presented
at trial that Johnson provided some care for Christina in the
weeks leading up to her death and that Christinas starvation was
so severe anyone providing care for her should have known she was
being starved to death. Johnson argues that even if it had been
foreseeable to him that Christina would die of starvation without
his intervention, it was not foreseeable that without his
intervention Christina would die from injuries caused by Takak
deliberately dropping her on her head. Thus, Johnson argues, his
failure to intervene to stop the starvation cannot be a proximate
cause of Christinas death by head trauma.
We have not addressed the scope of foreseeabililty
required for the imposition of criminal liability for reckless
conduct.20 Johnson contends the imposition of criminal liability
for reckless conduct mandates a much narrower definition of
foreseeability for the required proximate cause formulation than
that found in the civil context.21 Johnson urges us to limit
criminal liability to circumstances where the defendant can
foresee the specific manner in which the victim is injured or
killed. Johnson relies first on the following passage from
Professor LaFaves treatise:
the defendants conduct . . . must in fact
cause the death of a person who is
foreseeably endangered by the conduct and
whose death occurs in a foreseeable way. If
it seems quite extraordinary that this victim
was killed in the way he was killed, the
defendant is not liable for manslaughter. [22]
Citing State v. Malone,23 Johnson then contends that
existing Alaska law is in accord with Professor LaFaves view.
The relevant passages from State v. Malone are as follows:
Although a defendants criminal
responsibility is broad, it is not limitless.
The law does not hold a defendant responsible
if the injury or death, while perhaps linked
to the defendants conduct, is primarily
caused by abnormal, unforeseeable conduct on
the part of the victim or of a third person,
so that it no longer seems fair to say that
the injury was caused by the defendants
conduct. . . . [T]he law calls the other
persons conduct a superseding or intervening
cause of the injury meaning that the
defendant is excused from liability.
. . . .
Nevertheless, once a defendant has set
events in motion, no conduct of the victim or
of a third person will be a superseding or
intervening cause (that is, one that relieves
the defendant of criminal responsibility for
an ensuing injury or a death) if (1) the
defendants conduct created or enhanced the
risk that someone would suffer the type of
injury actually suffered by the victim, and
(2) the contributing conduct of the victim or
of the third person was either a normal
reaction to the defendants conduct or was a
reasonably foreseeable consequence of the
defendants conduct.[24]
We do not agree with Johnsons narrow reading of these
passages. It is true that Professor LaFave advocates for a
stricter standard of foreseeability for criminal liability than
that imposed by tort law.25 But Professor LaFaves view and State
v. Malone do not inevitably lead to the narrow standard of
foreseeability Johnson proposes.
We also take into account the Model Penal Code text and
commentary, which was adopted in large measure by the Alaska
legislature in 1978.26 We, and the court of appeals, have
previously recognized the usefulness of the Model Penal Code and
its commentary in interpreting Alaska criminal statutes.27
Consulting that source here seems particularly appropriate given
the similarity between Alaskas statutory definition of
recklessness and that of the Model Penal Code.28 The Model Penal
Code formulation of foreseeability, which is similar or identical
to statutes in other jurisdictions,29 is especially informative:
(3) When recklessly or negligently causing a
particular result is an element of an
offense, the element is not established if
the actual result is not within the risk of
which the actor is aware or, in the case of
negligence, of which he should be aware
unless:
. . . .
(b) the actual result involves the same kind
of injury or harm as the probable result and
is not too remote or accidental in its
occurrence to have a [just] bearing on the
actors liability or on the gravity of his
offense.[30]
The Model Penal Code couches the relationship between
liability and unforeseen consequences in terms of culpability,
not causation.31 The question is not whether the actual result
occurs in a manner the actor knows or should know is
substantially more probable given his conduct the drafters
initially proposed such an alternative ending for subsection
(3)(b), but ultimately recognized the need to be flexible for
application to the infinite variety of cases that may arise.32
The comment to subsection (3) explains instead that if the actual
result involved the same kind of injury or harm as the probable
result, the question asked is whether the actual result is too
remote or accidental in its occurrence to have a [just] bearing
on the actors liability . . . .33
The Model Penal Code provision and its related
commentary make clear that the exact manner in which a crime
occurs need not correspond precisely to the potential risk posed
by the defendants behavior.34 We agree that the high price of
criminal liability should not be paid where the relationship
between a defendants conduct and its consequences is only remote
or accidental. Yet we also agree with the Model Penal Code
drafters that one cannot escape criminal liability simply because
his conduct did not produce the intended or even most likely
chain of events. As the drafters rightly concluded, the need for
flexibility is great. We cannot fashion a rule detailing
precisely which consequences are too remote to preclude criminal
liability that will be left to the fact finder.
With these principles in mind we turn to the specific
definition of foreseeability to be used in determining criminal
liability for reckless conduct. A defendant is responsible for
the natural consequences of his or her act or failure to act.
Natural consequences are those reasonably foreseeable in light of
ordinary experience.35 The defendant need not have foreseen the
specific manner of resulting harm so long as (1) the general type
of harm was foreseeable, and (2) the actual harm falls within the
scope of risk hazarded by the defendants conduct and is not too
remote or accidental in occurrence.36
We agree with Johnson that using P.G.s definition of
foreseeability was error, even though the only difference between
P.G.s definition and that announced today is the express
consideration of remoteness. But we decline to apply the
definition of foreseeability articulated in our opinion to the
facts of this case or to consider Johnsons argument that retrial
would violate double jeopardy principles.
V. CONCLUSION
We VACATE the court of appealss decision and REMAND for
further proceedings consistent with this opinion.
_______________________________
1 Johnson v. State, 175 P.3d 674, 675 (Alaska App. 2008).
We also note that although underweight at birth (she was born
prematurely), Christina stopped gaining weight in July 2003 when
she weighed roughly 10 pounds. Christina weighed 7.7 pounds when
she died in November 2003, just weeks before her first birthday.
2 See Willis v. State, 57 P.3d 688, 693-97 (Alaska App.
2002) (affirming conviction for criminal responsibility based on
parents failure to act to protect child from assault by other
parent); Michael v. State, 767 P.2d 193, 197-98 (Alaska App.
1988) (holding that parent can be held responsible for assault on
child if parent, knowing that child is in danger of assault from
other parent, unreasonably fails to take action to protect
child), revd on other grounds, 805 P.2d 371 (Alaska 1991).
3 Johnson, 175 P.3d at 681.
4 Id. at 678.
5 Id. (emphasis in original).
6 4 P.3d 326 (Alaska 2000).
7 Id. at 332-35 (concluding foreseeability does not
require an ability to predict precise actions and exact injuries
and holding in part it was error to find no genuine factual
dispute on issue of foreseeability).
8 Johnson, 175 P.3d at 680.
9 Id.
10 Id.
11 The State argues that Johnson proposed jury instruction
language embodying the same standard employed by the court of
appeals and, consequently, that any error was invited. The
invited error doctrine limits the scope of review on appeal when
a party urges a lower court to do something that it later appeals
as erroneous. Barrett v. State, 772 P.2d 559, 568 n.10 (Alaska
App. 1989).
Johnson correctly points out that his proposed jury
instruction related to proximate cause, but did not contain a
definition of foreseeability. The most relevant statement in
that instruction is: the law does not hold a defendant
responsible if the death, while perhaps linked to the defendants
conduct, is primarily caused by extraordinary or unforeseeable
conduct on the part of a third person, so that it no longer [is]
reasonable to say that the injury was caused by the defendants
conduct.
Because this petition deals solely with the appropriate
standard of foreseeability to sustain a conviction based on
reckless conduct, the invited error doctrine does not limit our
review.
12 See Turney v. State, 936 P.2d 533, 538, 544-45 (Alaska
1997) (interpreting criminal trespass statute de novo).
13 See Beck v. State, Dept of Transp. & Pub. Facilities,
837 P.2d 105, 109 (Alaska 1992) (stating that extent of duty owed
based on whether defendant should foresee an injury is a
question of law).
14 Cameron v. State, 171 P.3d 1154, 1156 (Alaska 2007)
(quoting James v. State, 84 P.3d 404, 406 (Alaska 2004)).
15 AS 11.41.120(a)(1).
16 AS 11.81.900(a)(3).
17 Id.
18 See 1 Paul H. Robinson, Myron Moskovitz, & Jane Grall,
Criminal Law Defenses 88(e) (1984) (emphasizing that when
determining whether an actor is the proximate cause of a death
the inquiry is whether the harm was too remote a possibility).
19 See Willis, 57 P.3d at 693-97; Michael, 767 P.2d at 197-
98.
20 In Wren v. State we considered a defendants challenge
to a jury instruction on proximate cause in a negligent homicide
case allowing multiple proximate causes. 577 P.2d 235, 240
(Alaska 1978). The defendant based her arguments on a line of
cases from other states applying different standards for
proximate cause in civil and criminal cases, such that, in
criminal cases, the defendant could be convicted only if his or
her actions were the sole proximate cause of the harm. Id. We
rejected that argument. Id. Although Wren allowed the
imposition of that particular civil standard of proximate cause
in criminal cases, it did not address the specific issue of
foreseeability.
21 Professor Wayne LaFave, in his treatise, Substantive
Criminal Law, concludes that the civil standard for proximate
cause has at least some bearing on the issue of proximate cause
in criminal law:
The problems of legal causation arise in
both tort and criminal settings, and the one
situation is closely analogous to the other.
Although the courts have generally treated
legal causation in criminal law as in tort
law, on principle they do not have to, for
the issue is not precisely the same in the
two situations. . . .
But with crimes, where the consequences
of a determination of guilt are more drastic
(death or imprisonment, generally accompanied
by moral condemnation, as contrasted with a
mere money payment) it is arguable that a
closer relationship between the result
achieved and that intended or hazarded should
be required.
1 Wayne R. LaFave, Substantive Criminal Law 6.4(c), at 471-72
(2d ed. 2003) (footnotes omitted).
22 2 id. 15.4(c), at 527 (emphasis added by Johnson).
23 819 P.2d 34 (Alaska App. 1991).
24 Id. at 37 (citing (for the second passage) Rollin M.
Perkins & Ronald N. Boyce, Criminal Law 9, at 814-15 (3d ed.
1982))
25 See 1 LaFave, note 21, above, 6.4(c) at 471-72.
26 Jeffries v. State, 169 P.3d 913, 916 (Alaska 2007)
(quoting Pears v. State, 698 P.2d 1198, 1202 (Alaska 1985)).
27 See, e.g., Pears, 698 P.2d at 1203 n.10 (quoting
Neitzel v. State, 655 P.2d 325, 327 (Alaska App. 1982))
(Nevertheless, the Model Penal Code is the foundation upon which
our code rests and a researcher interested in discovering the
meaning of a given Alaskan criminal statute must begin with the
Model Penal Code and its comments . . . .).
28 Compare AS 11.81.900(a)(3):
[A] person acts recklessly with respect to a
result or to a circumstance described by a
provision of law defining an offense when the
person is aware of and consciously disregards
a substantial and unjustifiable risk that the
result will occur or that the circumstance
exists; the risk must be of such a nature and
degree that disregard of it constitutes a
gross deviation from the standard of conduct
that a reasonable person would observe in the
situation . . . .
with Model Penal Code 2.02(c), at 226 (Official Draft & Revised
Comments 1985):
A person acts recklessly with respect to a
material element of an offense when he
consciously disregards a substantial and
unjustifiable risk that the material element
exists or will result from his conduct. The
risk must be of such a nature and degree
that, considering the nature and purpose of
the actors conduct and the circumstances
known to him, its disregard involves a gross
deviation from the standard of conduct that a
law-abiding person would observe in the
actors situation.
29 See, e.g., Ala. Code 13A-2-5 (1975); Del. Code Ann.
tit. 11, 263 (1995); Haw. Rev. Stat. 702-216 (1984); Mont. Code
Ann. 45-2-201 (1973); N.J. Stat. Ann. 2C:2-3; 18 Pa. Cons.
Stat. Ann. 303 (West 2003).
30 Model Penal Code, note 28, above, 2.03, at 253-54.
31 See id. cmt. 2, at 258.
32 Id. cmt. 3, at 261 n.17 (noting also that the
prevailing view puts a much less artificial question to the
jury).
33 Id. at 263-64. The comment further explains that, with
respect to subsection (3), the actual result is to be contrasted
with the probable result in terms of its specific character and
manner of occurrence. Id. at 260 n.13.
34 Id. at 261-64.
35 State v. Lovelace, 738 N.E.2d 418, 427 (Ohio App.
1999). In that case the Ohio Court of Appeals stated:
It should be emphasized that for
something to be foreseeable does not mean
that it be actually envisioned. . . . It is
not necessary that the accused [be] in a
position to foresee the precise consequence
of his conduct; only that the consequence be
foreseeable in the sense that what actually
transpired was natural and logical in that it
was within the scope of the risk created by
his conduct.
Id. at 428 (quoting State v. Losey, 491 N.E.2d 379, 383 (Ohio
App. 1985)). In Lovelace the Ohio court held the jury could
reasonably have concluded the defendant should have foreseen that
by leading the police on a high-speed chase, one of his pursuers
could lose control of his car and kill a bystander. Id.
36 See id. at 427-28; Model Penal Code, note 28, above,
2.03, cmt. 3, at 261-64.
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