Made available by Touch N' Go Systems, Inc. and
Law Offices of James B. Gottstein.
406 G Street, Suite 210, Anchorage, AK 99501
(907) 274-7686 fax 333-5869

You can of the Alaska Court of Appeals opinions.

Touch N' Go, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website to see how.


Moffitt v. State (5/22/2009) ap-2215

Moffitt v. State (5/22/2009) ap-2215

                             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


ANDREW C. MOFFITT,                 
                                   
                    Appellant,       Court of Appeals No. A-9787
                                    Trial Court No. 3PA-06-461 Cr
               v.                  
                                   
STATE OF ALASKA,                         O  P  I  N  I  O  N
                                        
                    Appellee.      
End of Caption                         No. 2215    May 22, 2009
                                   
          Appeal  from the Superior Court,  Third  Judi
          cial District, Palmer, John Wolfe, Judge.

          Appearances:    Marjorie  Allard,   Assistant
          Public  Defender, and Quinlan Steiner, Public
          Defender,   Anchorage,  for  the   Appellant.
          Nancy  R.  Simel, Assistant Attorney General,
          Office  of Special Prosecutions and  Appeals,
          Anchorage,  and  Talis J.  Colberg,  Attorney
          General, Juneau, for the Appellee.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Bolger, Judges.

          MANNHEIMER, Judge.

          In  October  2005, Andrew C. Moffitt was facing  felony
charges in the Palmer superior court.  On October 7th, he  failed
to  appear  for  a  scheduled  court proceeding  in  that  felony
prosecution.  Based on this conduct, he was indicted  for  felony
failure  to appear at a judicial proceeding.1  Following  a  jury
trial, Moffitt was found guilty of this offense.
          A few days after the jury returned its verdict, Moffitt
filed  a  motion  asking the superior court to grant  him  a  new
trial.  In this motion, Moffitt argued that the prosecutors final
argument  to the jury, coupled with the trial judges instructions
to  the  jury  and  the trial judges later  response  to  a  mid-
deliberation  question posed by the jury, created  a  substantial
possibility  that  the jury convicted Moffitt  even  though  they
believed that his failure to appear might have been inadvertent.
          The  superior court denied Moffitts motion  for  a  new
trial.   For the reasons explained here, we conclude that Moffitt
is correct:  there is a substantial chance that the jury followed
a  mistaken view of the law when they found him guilty of failing
to  appear.  We therefore conclude that the superior court abused
its  discretion when the court denied Moffitts motion for  a  new
trial.

     The  culpable  mental  state that  must  be  proved  to
     establish a defendants guilt of failure to appear
     
               Under   AS  12.30.060,  a  defendant   facing
     criminal charges commits the separate crime of  failure
     to  appear  if the defendant knowingly fails to  appear
     before a court or judicial officer as required.
               This Court has interpreted and explained  the
     elements of this crime in two decisions:  Hutchison  v.
     State,   27   P.3d   774  (Alaska   App.   
2001), and Jackson v. State, 85 P.3d 1042 (Alaska App. 2004).
In Hutchison, we were called upon to construe the pre-September 2000 version of the statute, which defined the crime as wilfully failing to appear (as opposed to the current version, which penalizes knowingly failing to appear).2 The defendant in Hutchison testified that, on the night before his scheduled omnibus hearing, he drank so much that he passed out and did not awaken until the next afternoon thus missing his court appearance. Based on this testimony, the trial judge (who was hearing the case without a jury)3 declared that he ha[d] a reasonable doubt [whether] Mr. Hutchisons conscious goal was not to come to court that morning. Id. at 782. The question presented in Hutchisons appeal was whether this reasonable doubt concerning Hutchisons purpose (or, rather, his lack of conscious purpose) required the trial judge to acquit Hutchison.
We first surveyed the federal cases on this subject and concluded that, under federal law, a defendants failure to appear at a judicial proceeding will constitute the crime of failure to appear only if the defendants failure to appear was purposeful or deliberate or intentional (in the usual sense of this word, rather than under the technical definition of intentional codified in AS 11.81.900(a)(1)). Id. at 777. In other words, even though a defendant may have failed to appear as required, the defendant will not have acted [with the culpable mental state required for conviction] if the failure to appear was the result of mistake or inadvertence or good-faith but feckless efforts. Id.
We then examined Alaska case law on a related subject contempt of a court order and concluded that the Alaska law of contempt required proof of essentially the same culpable mental state. Id. at 779- 780. We noted, in particular, what the Alaska Supreme Court said in Continental Insurance Companies v. Bayless & Roberts, Inc., 548 P.2d 398, 407 (Alaska 1976): for purposes of adjudicating a charge of criminal contempt, [a] willful failure to comply with [a court] order occurs when [the] failure is ... due ... to purposefulness, bad faith[,] or fault of [the] petitioner as distinguished from accidental, inadvertent[,] or negligent conduct.
Having surveyed these two lines of cases, we concluded in Hutchison that the crime of failure to appear codified in AS 12.30.060 requires proof of this same culpable mental state:
[A] defendant willfully fails to appear if, in the absence of some legally recognized justification or excuse, the defendant makes a deliberate decision to disobey a known obligation to appear in court (including instances of willful blindness, where the defendant engages in conduct designed to avoid notice of the court date). ... [T]he government need not prove that the defendant acted with the conscious aim or purpose of causing a particular result[, but] the government must prove ... that the defendants purpose was to disobey or disregard the courts order to appear.
Hutchison, 27 P.3d  at
     780.
               Having  construed  the  statute  in
     this  manner,  we concluded  that  the  trial
     judge  should  have  acquitted  Hutchison  of
     failing to appear:
     
          Based  on  [Hutchisons] testimony,  [the
     trial   judge]  declared  that  he  ha[d]   a
     reasonable  doubt  [whether]  Mr.  Hutchisons
     conscious goal was not to come to court  that
     morning.   If Hutchison did not act with  the
     conscious  purpose of avoiding his obligation
     to  appear,  he  did not act wilfully  ...  .
     Therefore,   based  on  [the  trial   judges]
     evaluation of the evidence, Hutchison  should
     have been acquitted.
     
     Hutchison, 27 P.3d at 782.
          As  noted  above, our  decision  in
Hutchison  dealt with the pre-September  2000
version  of  the  failure to appear  statute.
This  former  version of the statute  defined
the offense in terms of willfully failing  to
appear,  whereas the current version  of  the
statute  defines  the  offense  in  terms  of
knowingly  failing  to  appear.   But  as  we
explained  in Hutchison, given the definition
of  knowingly codified in AS 11.81.900(a)(2),
the concept of willfully failing to appear is
essentially  the  same  as  the  concept   of
knowingly   failing  to  appear    with   the
exception  that there is a special clause  in
the  definition  of knowingly which  provides
that  voluntary intoxication does not  negate
this culpable mental state.4
          Thus,  our  decision  in  Hutchison
          established the rule that, to prove a knowing
failure to appear, the State must prove  that
the  defendant  made a deliberate,  conscious
decision not to come to court.  The crime  is
not  proved  if  the  defendants  failure  to
attend  the judicial proceeding was a  result
of mistake, inadvertence, or even negligence.
          Three  years  after  Hutchison,  we
applied this same definition of knowingly  in
our next decision dealing with the failure to
appear  statute, Jackson v.  State,  85  P.3d
1042 (Alaska App. 2004).
          The  precise  issue  presented   in
Jackson was whether the State was required to
prove  that the defendants conscious decision
not  to appear in court was made on the  very
day,  and at the very time, of the defendants
scheduled court appearance.  In other  words,
was  the  State  required to prove  that  the
defendant was consciously thinking about  the
obligation   to   appear   in   court,    and
consciously deciding not to go to  court,  at
the  very time of their court date?   Id.  at
1043.  We held that this was not required:

     Jackson  would  be guilty  of  knowingly
failing to appear if he decided early on that
he  would  not  attend  his  scheduled  court
appearances, and he then dismissed the matter
from  his  mind.  Jacksons conscious decision
not   to  attend  court,  combined  with  his
subsequent  failure  to  appear  on  the  two
specified days, would constitute a sufficient
concurrence  of  culpable  mental  state  and
prohibited act or omission  even if  it  were
true that, on the two scheduled days, Jackson
gave   no  conscious  thought  to  his  court
appearances.

Jackson, 85 P.3d at 1043-44.
          But   for  present  purposes,   the
important part of our decision in Jackson  is
our  reiteration of what we said earlier,  in
Hutchison,   regarding  what  constitutes   a
knowing  failure  to appear:   The  State  is
required to prove that, at some point  before
the scheduled court appearance, the defendant
made  a conscious decision not to go to court
that  the  defendants failure  to  appear  in
court   was   not  the  result  of   mistake,
inadvertence,  or negligence.   Here  is  our
discussion of this point in Jackson:

     Jackson  also argues that the  jury  may
have  convicted  him  based  solely  on   the
undisputed evidence that he was informed  (at
his  arraignment)  of his  two  future  court
dates  [and  that  he  thereafter  failed  to
appear].   But  we  do  not  read  the   jury
instructions to allow this.

     As  explained above, the jury  was  told
that  Jackson  could not be convicted  unless
the jurors were convinced beyond a reasonable
doubt   that  Jacksons  conduct  (i.e.,   his
failure to appear) was knowing, and they were
further  told  that  Jackson  could  not   be
convicted  unless the jurors  found  a  joint
operation   of  culpable  mental  state   and
prohibited  conduct.  Jackson  presented  the
defense that he made an honest mistake as  to
the   date  of  his  first  scheduled   court
appearance  and that, after he realized  that
he had missed this first court appearance, he
honestly  believed  that  his  second   court
appearance  would  be canceled  and  that  he
would be notified of new court dates.  If the
jury  had  accepted  these  assertions,  they
would  not have found that Jacksons  [failure
to  appear]  was  knowing as defined  in  the
instructions.

Jackson, 85 P.3d at 1044.
          In  other words, both Hutchison and
Jackson  hold that the State is  required  to
prove  that  the defendant made a deliberate,
conscious  decision not to attend court   and
that an honest mistake about the date or time
of  the  court  hearing is a defense  to  the
charge of failure to appear.

The  evidence  presented at  Moffitts  trial,  the
summations  of  the parties, the  mid-deliberation
proceedings, and Moffitts motion for a new trial

     The  ultimate  question  to  be  decided   at
Moffitts   trial  was  whether  Moffitt  knowingly
failed   to   appear  for  his   scheduled   court
appearance at 10:00 a.m. on October 7, 2005.   The
States  case  consisted entirely of evidence  that
Moffitt was apprised of this court date, and  that
he thereafter failed to appear.
     In the prosecutors opening statement, he told
the  jury  that  the State would present  evidence
that  Moffitt was clearly informed of his  October
7,  2005  court  date, that Mr.  Moffitt  was  not
present  [for  that  court appearance],  and  that
[his]  not  being present then made him  culpable.
The prosecutor then added:

     This     [case]     will     be     very
straightforward:  ...  There  was  a  [court]
date.   The  date was given [to  Moffitt,  as
evidenced  by his] signatures.  ...   He  was
told.   He  doesnt show up.   And  thats  the
States case.

          When  Moffitts  attorney  responded
with  the  defense  opening  statement,   the
defense attorney conceded that Moffitt missed
his  October 7th court appearance.   But  the
defense attorney described how Moffitt called
the  court  later that day and  made  several
efforts to contact his attorney.  The defense
attorney  told the jury that the case  hinged
on  whether Moffitt acted knowingly  when  he
missed the court appearance.
          In  the  States case-in-chief,  the
prosecutor  presented the  testimony  of  two
in-court  clerks.  The first in-court  clerk,
Rachel  Rodriguez,  testified  that  she  was
present  in  court when Moffitt was  informed
about the October 7th court date.  The second
in-court clerk, Mary King, testified that she
was  present  in  court  on  the  morning  of
October  7th  when Moffitts case was  called;
Moffitt   did   not   appear    and,   as   a
consequence, the court issued a bench warrant
for his arrest.
          The  prosecutor also presented  the
testimony of a corrections officer, Christine
Jimenez,  who testified that she was  present
when Moffitt was released from jail (on bail)
on the afternoon of October 2, 2005, and that
she  heard  Moffitts bail bondsman explaining
to  Moffitt  that  he had a court  appearance
scheduled for October 7th.
          The State also called Moffitts bail
bondsman,  John  Chapman.   Chapman  conceded
that he did not specifically remember writing
the bond for Moffitt, nor did he remember his
conversation  with  Moffitt  at  that   time.
However,  Chapman testified that whenever  he
writes  a  bail  bond  for  a  defendant,  he
informs  the  defendant of their  next  court
date  (as well as any other court dates  that
are listed in the defendants paperwork).   In
Moffitts  case,  the  paperwork  showed  that
Moffitt had a court appearance scheduled  for
October 7, 2005 at 10:00 a.m..
          The   States   final  witness   was
Assistant  Public Defender Elizabeth  Varela.
Varela  testified  that the  Public  Defender
Agency  was initially appointed to  represent
Moffitt in the underlying felony case (3PA-05-
2706  Cr), but that the Agency had a conflict
and  was permitted to withdraw on October  7,
2005 (i.e., the date of Moffitts missed court
appearance).  Varela testified that  she  was
present  in  court  on that  date,  and  that
Moffitt was not present.
          Following  Varelas  testimony,  the
prosecutor announced that the State rested.
          The  majority  of the defense  case
consisted  of the testimony given by  Moffitt
and his friend, Alicia Hensel.
          Moffitt  testified  that   he   was
released  from jail on October 2nd, and  that
he  faithfully attended his court  appearance
on  October  5th.  With regard to  the  court
appearance that he missed two days later,  on
October  7th, Moffitt explained that  he  was
messing around the house, and that in the mid-
afternoon  he happened to look at  his  court
paperwork  again and saw that he had  another
appearance scheduled for that day.
          Moffitt    initially    read    the
paperwork as saying that his court appearance
was  at  2:30  p.m.  which  gave  him  barely
enough time to get to the courthouse,  so  he
called  the court to say that he might  be  a
few minutes late.  But the clerk who answered
Moffitts call told him, Youre ... more than a
couple  minutes late; youre four hours  late.
When  Moffitt asked the clerk what he  should
do,  the  clerk answered, Youve got  a  bench
warrant;  theres  nothing you  can  do.   The
clerk then told him, Call your lawyer.
          Moffitt asked the clerk to tell him
who  his lawyer was.  The clerk said that she
did  not  know,  but she advised  Moffitt  to
contact  the Public Defender Agency.  Moffitt
called the Public Defender, but they told him
that   they  had  stopped  representing   him
earlier  that  day, and they advised  him  to
call  the  Office of Public  Advocacy.   When
Moffitt   contacted  the  Office  of   Public
Advocacy,  they told him that John Pharr  was
his  contract lawyer.  So Moffitt next called
Pharrs office  but no one answered.
          Moffitts  account of  these  events
was  corroborated by the testimony of  Alicia
Hensel.   Hensel testified that  Moffitt  was
staying  with her following his release  from
jail   on   October  2nd.    Hensel   further
testified  that, on the afternoon of  October
7th, Moffitt was getting ready to go to court
when  he looked at his paperwork and panicked
because the ... time was different than  what
he  thought.   According to  Hensel,  Moffitt
then made several phone calls, trying to  ...
get  it  taken  care of, so he didnt  get  in
trouble  ...  .   He wanted to  ...  fix  any
problem right away.
          Following  Hensels testimony,  both
sides rested.
          The    opening   portion   of   the
prosecutors   summation  to  the   jury   was
unobjectionable  although the prosecutor  did
mischaracterize   the  nature   of   Moffitts
defense.   The prosecutor told the jury  that
Moffitts   defense  was,  that   he   forgot,
misunderstood,  didnt  sign  the   documents,
didnt know what he was signing, didnt get the
paperwork.  The prosecutor then declared that
all of this was a little hard to believe.
          The  prosecutor  pointed  out  that
Moffitt undisputedly received notice  of  the
October 7th court date.  The prosecutor  then
argued  that this court date was so important
that  Moffitt was unlikely to have  forgotten
it:    This  [was]nt  traffic  court.    This
[was]nt a dog bite case.  This [was] a felony
matter.  The prosecutor then added:

     I  could  maybe buy [Moffitts]  argument
[if]  he shows up the next day [or] later  on
in  the  afternoon [saying], Oh, wait.   Dont
put  that  bench warrant out.   Im  here;  Im
here.   ...   Please let me do something  [to
remedy  the  situation].  But as we  see,  on
[October]  11th he still isnt  here,  because
...  a  bench warrant [is issued  that  day].
Okay?   So [on] the 11th, he still isnt here.
[Thats] five days.

          In   other  words,  the  prosecutor
argued  that  the  jury  should  not  believe
Moffitts assertion that he innocently  forgot
about  the court date, because this assertion
was  belied  by  Moffitts behavior  after  he
missed   the   court  date   in   particular,
Moffitts  failure  to  take  any  action   to
rectify matters.
          This  argument was entirely proper.
And   if  the  prosecutor  had  confined  his
argument   to  the  assertion  that  Moffitts
behavior after October 7th was circumstantial
evidence   that   Moffitt   acted   knowingly
circumstantial evidence that Moffitt  made  a
deliberate, conscious decision not to come to
court  then there would be no problem in this
case.
          But  after the prosecutor sat down,
Moffitts  defense attorney directly  attacked
the   States  assertion  that  Moffitt  acted
knowingly when he missed the court date.  The
defense  attorney argued that, given Moffitts
and  Hensels  testimony  i.e., the  testimony
that  Moffitt made an innocent mistake  about
the court date, and that Moffitt then engaged
in  frantic  efforts  to  take  care  of  the
problem  that same afternoon  the  State  had
failed  to  prove  beyond a reasonable  doubt
that  Moffitt acted knowingly when he  failed
to appear for the October 7th court date.
          The defense attorney read the legal
definition of knowingly to the jury, and then
he said:

     Now, thats kind of a round-about way  of
saying,  What was on [Moffitts] mind  on  the
morning  of  October 7, 2005?  Was  he  aware
that  he [was] missing a court date?   Is  he
saying,  Oh,  its ten oclock.  I dont  really
feel  like going to court.  To heck with  it.
Im not going to court  dont feel like it.  Is
that  the  way  the testimony came  out?   Of
course not.

          The defense attorney conceded that,
after Moffitt learned that he had missed  his
court appearance and that a bench warrant had
been  issued for his arrest, Moffitt did  not
do the honorable thing and surrender himself.
Instead, Moffitt tried to avoid arrest   and,
when  he was later arrested, he gave a  false
name.   (He  identified  himself  as  Hensels
brother.)    But  the defense attorney  urged
the  jury not to convict Moffitt just because
he  showed human weakness and did not want to
go  back  to jail for innocently missing  the
court date.
          The     defense    attorney    then
concluded:

     The  State never put on any evidence  of
why  [Moffitt] didnt appear.  [The State has]
tried  to draw some inferences from  what  he
did  later, ... but I think what he did later
is  as rational as what anybody would do.   I
mean, weve got 15 people in [this] room;  you
would  see  15  different reactions  to  that
situation.   And Mr. Moffitt is  well  within
the  range of what anybody would do  in  that
situation.

     So,  ladies and gentlemen, ... the State
has  not proven its case, and wed ask for  an
acquittal.

          The  problem  in this  case  arises
from   the  fact  that,  after  the   defense
attorney   sat   down,  the  prosecutor   (in
rebuttal) began to misstate the law  relating
to  the culpable mental state that the  State
had  to  prove.   In essence, the  prosecutor
told  the  jurors that it did not  matter  if
Moffitt  had innocently forgotten  about  his
court appearance, or if he had made a mistake
about  the scheduled hour of that appearance.
The  prosecutor  suggested  that,  under  the
legal  definition of knowingly, all the State
had to prove was that Moffitt received notice
of  the date and time of his court appearance
and  that  even  if Moffitt  honestly  forgot
about  the appearance or made a mistake about
the time, [that] doesnt ... negat[e] the fact
that he did know:

     [The  defense attorneys contention about
Moffitts]  rationality, his mental  state  on
the  day  of [the court appearance],  is  [a]
mischaracterization of the law ... .

     When  you  read  through  the  knowingly
instruction  that you[ve been]  given,  youre
going  to  see  that [Moffitt]  has  to  have
knowledge  of  the existence of a  particular
fact.   [This] fact is that he  had  a  court
date.   That  knowledge is established  if  a
person    is   aware   of   [a]   substantial
probability  of the existence of  that  fact.
[Moffitt] admitted it.  He knew it.  Its not,
Hey,  I  overslept, and therefore I  cant  be
held  accountable, or Im hung over, or I  was
with  some girl, or whatever excuse you  come
up  with, and [then] you get to count that as
Oh,  I didnt know.  He did know  and you dont
get to do that.

     And ... you dont have to worry about his
mental  state  on  [the  day  of  the   court
appearance],  at that very moment.   Well,  I
didnt mean to miss it, or I didnt know, or  I
forgot   that  doesnt count for negating  the
fact  that he did know.  And youll  get  that
instruction.    ...   [I]ts   not   an   easy
instruction  [to understand], okay?   And  Im
not  ...  discounting your intelligence,  but
take  it and read the knowingly [definition].
Itll  be very clear to you.  [Moffitt]  knew.
The State proved that he knew.

          The  prosecutor then addressed  the
defense  evidence pertaining to the telephone
calls  that Moffitt purportedly made  on  the
afternoon  of October 7th, after he  realized
that  he had missed his court appearance  and
that a bench warrant had been issued for  his
arrest:

     [Y]ou  know  what?  This doesnt  matter.
It   doesnt  matter.   ...   [That  evidence]
doesnt say, I hereby give Mr. Moffitt a  free
pass  for not showing up to court.  ...  This
isnt a free pass.  This isnt a note from  Mom
that  says,  Yeah, the dog ate  my  homework;
please excuse me.  That doesnt work, okay?
     .  .  .

     Ladies and gentlemen, ... [t]ake a  look
at  the documents.  You have the facts.   ...
Did  he  know  he  had  a  [court]  date,  an
appointment with a superior court judge in  a
felony  matter?   And did  he  miss  it?   No
excuses.   Did  he miss it?  The  answer  is,
Yes, he missed it.  He missed it, and he lied
to the cops about his name [when they came to
arrest  him]  because he didnt  want  to  get
caught.   Thats his mental state.   He  knew.
He  was  avoiding the consequences.  And  hes
guilty.  Thank you.

          The  problem  with the  prosecutors
rebuttal argument is that, depending  on  how
these remarks are read, the prosecutor either
strongly  suggested or else directly asserted
that  the jury could properly convict Moffitt
even  if  the jury believed that Moffitt  had
innocently or negligently forgotten about, or
mis-remembered, the date or time of his court
appearance.  The prosecutor essentially  told
the   jury   that,   under   the   applicable
definition  of  knowingly, it was  sufficient
for  the State to prove (1) that Moffitt knew
about  the scheduled court date and (2)  that
Moffitt  failed  to  attend  court   on   the
scheduled  date and time  even if  the  State
failed   to   prove  that  Moffitt   made   a
deliberate, conscious decision not to come to
court.
          Thus, the defense attorney and  the
prosecutor  offered  the jury  two  competing
views  of what constitutes a knowing  failure
to   appear.   The  defense  attorney  argued
(consistent  with our decisions in  Hutchison
and Jackson) that, to prove a knowing failure
to  appear, the State was required  to  prove
that  Moffitts failure to appear was not  the
result  of an innocent or negligent  mistake,
but   rather  the  result  of  a  deliberate,
conscious decision.  The prosecutor,  on  the
other hand, argued in rebuttal that a knowing
failure  to  appear meant that  Moffitt  knew
about  the  court  date and  then  failed  to
appear  regardless of whatever excuse Moffitt
might  offer:  Did he know he had  a  [court]
date,  an  appointment with a superior  court
judge  in a felony matter?  And did  he  miss
it?  No excuses.  Did he miss it?  The answer
is, Yes, he missed it.
          This  problem  was  exacerbated  by
Jury  Instruction No. 5, the jury instruction
on  the  definition of knowingly.   At  first
blush,  our  assertion that Jury  Instruction
No.  5 made things worse may seem paradoxical
because  the instruction defined the  concept
of  knowingly using language that  faithfully
tracked the statutory definition of knowingly
codified   in   AS   11.81.900(a)(2).    Jury
Instruction No. 5 stated:

     A  person acts knowingly with respect to
conduct or to a circumstance described by the
law when the person is aware that the conduct
is  of  that nature.  When knowledge  of  the
existence of a particular fact must be proved
by  the  state, that knowledge is established
if   a  person  is  aware  of  a  substantial
probability  of the existence  of  the  fact,
unless  the person actually believes that  it
does not exist.

          (The one significant departure from
the  statutory definition of knowingly occurs
at the end of the first sentence of this jury
instruction.    The   statutory    definition
contains  the additional italicized language:
... when the person is aware that the conduct
is  of  that  nature or that the circumstance
exists.)
          Despite   the   fact   that    Jury
Instruction No. 5 tracked the language of the
statutory   definition  of   knowingly,   the
wording  of  the  instruction  was  crucially
ambiguous  in  the context of Moffitts  case.
This  is  because, under the Alaska  Criminal
Code,  the culpable mental state of knowingly
describes two concepts.
          With  respect to conduct, the  word
knowingly  means  that a  person  acted  with
awareness  of  the nature of  their  conduct.
With  respect  to surrounding  circumstances,
the  word  knowingly means that a person  was
aware  that the circumstance existed, or  was
aware  of a substantial probability that  the
circumstance  existed  (unless   the   person
actually   believed   that,   despite    this
probability, the circumstance did not in fact
exist).
          In  Moffitts  case,  there  was  no
dispute  concerning  his  awareness  of   the
circumstance  that he had a court  appearance
scheduled for the morning of October 7, 2005.
Moffitt  affirmatively conceded that  he  was
notified of this court appearance.  The  sole
dispute  at  Moffitts trial was  whether  his
conduct  his failure to attend that scheduled
court date  was knowing.  Moffitt argued that
his  failure to attend the court hearing  was
the   result  of  an  innocent  or  negligent
mistake  rather than a deliberate,  conscious
decision  not to attend.  Under our decisions
in  Hutchison and Jackson, this was  a  valid
defense  even though the prosecutor,  in  his
rebuttal  argument, suggested that  this  was
not a defense.
          The  problem  with Jury Instruction
No. 5 is that the majority of the instruction
(the  instructions lengthy  second  sentence)
focused   on   Moffitts  knowledge   of   the
surrounding circumstances.  As we  have  just
explained,  this was a non-issue in  Moffitts
case;  he  conceded  his  awareness  of   the
operative  fact that he had a court  date  on
October 7th.
          But   because   of  the   way   the
prosecutor argued Moffitts case in  rebuttal,
this  otherwise  irrelevant  portion  of  the
instruction  became  important   because   it
could be viewed as supporting the prosecutors
mistaken argument that Moffitts knowledge  of
the   scheduled  court  date,  coupled   with
Moffitts  ensuing failure to attend court  on
that  date, was sufficient to establish  that
he acted knowingly.
          This    problem    the   contextual
ambiguity  of  Jury Instruction  No.  5   was
brought  to the attention of the trial  judge
and   the  parties  when,  during  the  jurys
deliberations,  the jury sent  the  following
note to the judge:

     Does  knowingly  mean knowledge  of  the
court  date  or does knowingly  mean  he  was
unaware of the date of the appearance on  the
day of the appearance[?]

     Is knowingly similar to premeditation?

     We  have  different  interpretations  of
instruction # 5.

(The underlining is present in the original.)
          Looking  back on this jury  inquiry
in  hindsight,  it  appears  that  the  jurys
second  question   Is  knowingly  similar  to
premeditation?  went to the very heart of the
matter.
          True, as a matter of technical law,
the  concept of premeditation had nothing  to
do  with Moffitts guilt or innocence.  But it
was not legal technicians who were asking the
question.  Rather, the question was posed  by
lay  people, and they wanted to know  whether
the  concept of knowingly was similar to (not
precisely   the  same  as)  the  concept   of
premeditation.   Given the circumstances,  it
appears that the jurors were asking the  same
question  that  this  Court  addressed   (and
answered)   in  Hutchison  and  Jackson.    A
straightforward answer to the jurors question
would  have  been:   To  prove  that  Moffitt
knowingly  failed to appear,  the  State  was
required  to prove that, at some point  prior
to  his  scheduled court appearance,  Moffitt
made a deliberate, conscious decision not  to
come to court.
          But  instead of directly  answering
the  jurors question, the trial judge decided
to re-issue Jury Instruction No. 5  this time
inserting  the  language that the  judge  had
earlier  omitted  at the  end  of  the  first
sentence:   ... when the person is aware that
the  conduct  is of that nature or  that  the
circumstance  exists.   Moreover,  the  judge
told  the attorneys that he intended to  read
this  italicized language to the  jury  in  a
manner  that highlighted this change.   Given
the situation, this supplemental wording only
heightened  the ambiguity of the  instruction
and  increased the possibility that the  jury
would  follow an erroneous legal theory  when
assessing Moffitts guilt or innocence.
          Moffitts    attorney    immediately
objected to the trial judges proposed action.
The  defense attorney protested that the  way
the   Court  has  written  it,  [the  revised
instruction] virtually guarantees conviction.
The  defense attorneys objection prompted the
following colloquy:

     Defense   Attorney:   [The   prosecutor]
argued  [to  the jury] that it  didnt  matter
what [Moffitt] thought on the day in question
[that]  what mattered was that he  was  given
notice  of  the [court appearance] four  days
before ... .
     .  .  .

     Prosecutor:   [To justify a  conviction,
Moffitt] needs to know that there is a  court
date, and the nature [of his conduct] is that
he  was  [required] to appear.  I think  this
description   [of  the  law]   is   accurate.
[Moffitt]  doesnt have to have one  happening
simultaneous.  [sic]  He has to know that  he
has  a  court date, and he has to not appear.
Thats it.

          To resolve this conflict, the trial
judge suggested that the jury also receive  a
second supplemental instruction  this one  on
the laws requirement of a joint operation  of
unlawful conduct and culpable mental state:

     For  the  crime  I have  instructed  you
on[,] there must exist a joint operation   of
an  act  or  conduct  and a  culpable  mental
state.    To  constitute  a  culpable  mental
state[,]  it  is  not  necessary  that  there
exists an intent to violate the law.  When  a
person  knowingly  does that  which  the  law
declares to be a crime, he is acting  with  a
culpable mental state, even though he may not
know that his action or conduct is unlawful.

          Although   the   defense   attorney
announced  at the time that he was  satisfied
with   this   additional  instruction,   this
additional   instruction  just  made   things
worse.   The  last  two  sentences  of   this
instruction  appear  to  fully  support   the
prosecutors argument that it did  not  matter
whether   Moffitt  ever  made  a  deliberate,
conscious  decision not to attend  his  court
hearing.
          Thirty minutes after the court sent
these  two supplemental instructions  to  the
jury (the revised version of Instruction  No.
5  and  the new instruction we just  quoted),
the  jurors  returned to court and  announced
that they had found Moffitt guilty of failure
to appear.
          A few days later, Moffitts attorney
filed  a  motion  for a new trial.   In  that
motion,    the   defense   attorney   clearly
identified  the problem with the  prosecutors
rebuttal summation to the jury.  The  defense
attorney pointed out that the prosecutor had,
in  violation  of  this  Courts  decision  in
Jackson,  argued that Mr.  Moffitts  asserted
defense  [i.e., honest mistake  or  negligent
failure  to  remember] was legally irrelevant
so  long as the jurors found that Mr. Moffitt
had  received advance notice of the ... court
dates.
          In  its response to Moffitts motion
for a new trial, the State did not argue that
the  prosecutors statement  of  the  law  was
correct.  Rather, the State argued only  that
it  was too late for Moffitt to object to the
prosecutors argument  that Moffitt had waived
this  claim  of error by failing to  raise  a
contemporaneous objection to the  prosecutors
rebuttal.   The  State also  noted  that  the
courts instructions to the jury regarding the
issue  of culpable mental state were  correct
statements of the law.
          The  superior court denied Moffitts
motion  for  a new trial in a written  order.
In that order, the trial judge stated that he
had   reviewed  the  audio  record   of   the
prosecutors   rebuttal  summation,   and   he
disagreed    with   the   defense   attorneys
characterization of the prosecutors argument.
The  trial  judge conceded that at one  point
the prosecutor said something which could  be
interpreted the way defense counsel describes
it,  but  the trial judge concluded that  the
prosecutors remarks could also be interpreted
in  other ways.  The judge then declared that
the  prosecutors argument does not appear  to
be  a clear argument that the guilty act  and
guilty  mind  do  not  need  to  coincide  as
discussed  in  Jackson v. State.   The  judge
concluded   by  stating,  [T]he   prosecutors
argument  was  at  most  somewhat  confusing.
[There was] no prosecutorial misconduct, much
less plain error justifying a new trial.

Why  we  conclude that the superior court  should  have
granted Moffitts motion for a new trial

          Alaska  Criminal  Rule 33(a)  authorizes  the
superior court to grant a new trial to a defendant if a
new trial is required in the interest of justice.  When
an  appellate court reviews a trial courts decision  to
grant  or  deny a motion for a new trial, we employ  an
abuse of discretion standard of review.5
          We  conclude  that  an  abuse  of  discretion
occurred  here  because the record  of  Moffitts  trial
reveals   a  substantial  possibility  that  the   jury
convicted  Moffitt  under  an incorrect  legal  theory.
          Specifically, there is a substantial chance that the
jurors  voted  to  convict  Moffitt  even  though  they
thought there was a reasonable possibility that Moffitt
missed his October 7th court appearance because  of  an
innocent mistake, or because of negligence, rather than
as  a result of a deliberate, conscious decision not to
attend court.
          We    disagree   with   the   trial    judges
interpretation  of  the prosecutors  summation  to  the
jury.   The prosecutor did not simply make an  isolated
ambiguous  statement that might have  been  interpreted
the wrong way.  Instead, during the rebuttal portion of
his  summation,  the prosecutor responded  to  Moffitts
asserted  defense  (honest  or  negligent  mistake)  by
telling   the  jury  that  Moffitts  excuses  made   no
difference   that  Moffitt acted knowingly  within  the
meaning  of  the jury instructions if Moffitt  received
notification of his October 7th court appearance and if
he subsequently failed to come to court.
          The  jurys mid-deliberation questions confirm
that they understood the prosecutor to be arguing this,
and  that  they  wanted the court to help  them  decide
whether  the  prosecutors argument was consistent  with
the  law   specifically, consistent with the definition
of knowingly contained in Jury Instruction No. 5.
          It  is true, as the State pointed out in  its
opposition to Moffitts motion for a new trial,  and  as
the superior court pointed out in its order denying the
new  trial, that all of the courts instructions to  the
jury were, technically speaking, correct statements  of
the  law.   But  despite the technical  correctness  of
these instructions, there is a substantial chance  that
they  misled the jury in the specific context  of  this
case.
          The  jury was asking whether Moffitts offered
defense was, in fact, a valid defense to the charge  or
whether, as the prosecutor argued during his summation,
this  offered  defense  was  irrelevant.   The  revised
version of Instruction No. 5 that the court offered  in
response  to  the jurys questions only  heightened  the
ambiguity  of  the original version of the instruction.
And  the  supplemental  instruction  dealing  with  the
interaction  of  conduct  and  culpable  mental   state
(although,  again, technically correct) was  worded  in
such a way as to suggest that the prosecutors erroneous
view of the law was in fact correct.
          We   note,  in  particular,  the  final   two
sentences  of the supplemental instruction (Instruction
No.  19),  which stated in part:  it is  not  necessary
that  there exist[] an intent to violate the  law,  and
that [w]hen a person knowingly does that which the  law
declares  to be a crime, he is acting with  a  culpable
mental  state,  even though he may not  know  that  his
action  or conduct is unlawful.  Trained lawyers  would
understand  that  these pronouncements  were  basically
irrelevant  to the question that the jurors had  posed.
But  the  jurors  in  Moffitts case might  easily  have
seized  on these statements as constituting the  courts
answer  to  their  questions  about  the  validity   of
Moffitts   asserted  defense   and  they   could   have
construed  these statements as a judicial pronouncement
that Moffitts asserted defense was no defense at all.
          Moffitts case presents a situation where  one
or two sentences of plain English would have served far
better  than  the  several  paragraphs  of  technically
accurate   but  misleading  legal principles  that  the
jury  received.   The  answer to the  jurys  underlying
question is supplied by our decisions in Hutchison  and
Jackson:   A  person is guilty of knowingly failing  to
appear if they fail to attend their court proceeding as
a  result  of a deliberate, conscious decision  not  to
come  to  court  if they act with the conscious purpose
of  avoiding [the] obligation to appear.  Hutchison, 27
P.3d  at  782.  A person is not guilty if their failure
to  appear  is the result of mistake, inadvertence,  or
negligence.
          Because  the  record  reveals  a  significant
possibility that the jurors misunderstood this  crucial
principle  of law, and that they convicted  Moffitt  in
violation  of this principle, we REVERSE the  judgement
of  the superior court.  Moffitt is entitled to  a  new
trial.

_______________________________
  1 AS 12.30.060(1).

2 Hutchison, 27 P.3d at 775-76.

3 Id. at 776.

4Hutchison, 27 P.3d at 780.

5 Nygren v. State, 616 P.2d 20, 22 (Alaska 1980); Salinas v.
State, 373 P.2d 512, 513 (Alaska 1962).

Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC