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Johnson v. State (2/1/2008) ap-2146

Johnson v. State (2/1/2008) ap-2146

                             NOTICE
     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific 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


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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