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Lengele v. State (2/8/2013) ap-2385

Lengele v. State (2/8/2013) ap-2385

                                               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 



BOBBIE DEE LENGELE,                             ) 

                                                )           Court of Appeals No. A-10679 

                           Appellant,           )          Trial Court No. 3AN-09-1851 CR 

                                                ) 

             v.                                 ) 

                                                )                  O P I N I O N 

STATE OF ALASKA,                                ) 

                                                ) 

                           Appellee.            ) 

                                                )            No. 2385 - February 8, 2013 



                Appeal from the Superior Court, Third Judicial District, 

                Anchorage, Larry D. Card, Judge. 



                Appearances: Michael T. Schwaiger, Assistant Public Defender, 

                and    Quinlan   Steiner,   Public   Defender,    Anchorage,     for  the 

                Appellant. Gary L. Poorman, Assistant Attorney General, Office 

                of Special Prosecutions and Appeals, Anchorage, and Michael 

                C. Geraghty, Attorney General, Juneau, for the Appellee. 



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

                Judges. 



                BOLGER, Judge. 



                In this appeal, Bobbie Dee Lengele argues that a jury instruction improperly 



suggested that she could have no "lawful excuse" for her failure to pay child support if 



she had ever voluntarily terminated her employment. We agree that this instruction was 


----------------------- Page 2-----------------------

an incomplete and potentially misleading statement of Alaska law. But we conclude that 



Lengele   failed   to   tell   the   trial   judge   the   specific   grounds   for   her   objection   to   this 



instruction,   and   that   her   general   objection   was   inadequate   to   preserve   this   issue   for 



appeal. And when we review the evidence submitted at trial, the other jury instructions, 



and the closing arguments, we conclude that the language of this instruction was not 



plain error. 



        Background 



                Lengele and her husband, Rodney, married in 1986. They had two children, 



Rodney Jr. and Brianna. At the time of Lengele's criminal trial, Rodney Jr. was twenty- 



two years old and Brianna was thirteen years old. 



                Prior to the marriage, Lengele worked at a burger restaurant and at Village 



Inn as a waitress. Lengele trained to be a hair stylist, bartender, travel agent, and pipeline 



technician. During Lengele's marriage, she worked as a bartender, a retail clerk, and a 



pipeline security guard. As a security guard, she earned approximately $60,000 per year. 



Lengele left her job as a security guard and moved to Valdez to train for a pipeline 



technician job with Alyeska Pipeline Service Company, but she never completed the 



training for the technician position. 



                Lengele   and   her   husband   separated   in   February   1999   and   divorced   in 



December 1999. Lengele was unemployed at the time of the divorce. During the custody 



proceedings, the court determined that Lengele and her husband would have joint legal 



custody. Her husband would have physical custody of the children seventy percent of the 



time, and Lengele would have physical custody thirty percent of the time. The court 



ordered Lengele to pay $906.33 per month for child support. The child support order was 



                                                    2                                               2385
 


----------------------- Page 3-----------------------

retroactive to the date of Lengele's separation from her husband, so she owed $10,875.96 



when the order was entered. 



                According to Lengele's later testimony, she did not know about the child 



support court date, and   she learned about her child support obligation from her ex- 



husband. Lengele attempted to obtain a modification of her child support obligation on 



several occasions, but she was unsuccessful. Her requests for modification were denied 



because she failed to submit all the necessary paperwork. Lengele hired an attorney to 



help her with her request, but the attorney eventually withdrew from Lengele's case 



because he was unable to reach her. 



                Lengele also testified that, following the divorce, she attempted to apply for 



new jobs. She completed two training classes for a pipeline security job, but she did not 



get the job because she did not have a driver's license. She also started training for an oil 



rig job, but some of the company's oil rigs burned down and left her without a job. She 



tried to obtain work with Alaska Fish and Game and the Alaska Railroad, but she was 



unsuccessful.   She   worked   for   a   time   as   a   bartender,   but   her   pay   did   not   cover   her 



transportation costs. 



                Lengele worked at Carrs-Safeway for a short time in 2003, and a portion 



of  her wages was garnished by the Child Support Services Division ("CSSD"). The first 



garnishment       was   $124.42,    and   the  second    garnishment      was   $85.51.    At   trial,  the 



prosecutor cross-examined Lengele about a conversation she had with an investigator. 



The prosecutor asked Lengele whether she told the investigator, "[Carrs-Safeway] gave 



me part time [work] ... and I didn't have any way to get down there; it was just too much 



hardship trying to get down there, ... and then once [the] child support hit me, it really 



wasn't worth it." Lengele responded that she believed the statement was taken out of 



context.   Lengele   also   testified   that   she   worked   at   Fred   Meyer   after   terminating   her 



                                                    3                                               2385
 


----------------------- Page 4-----------------------

employment at Carrs-Safeway. CSSD was not able to garnish her wages at Fred Meyer 



because she quit that job after only a few weeks. 



                Lengele testified that she attempted to find other employment by attending 



job fairs. She also began to take care of her disabled mother in exchange for room, board, 



and some expenses for her children, but she was unable to obtain funding from the state 



or her native corporation for the time she spent caring for her mother. 



                There was testimony that Lengele periodically provided her children with 



some clothes, food, and school supplies. CSSD also garnished several of her Permanent 



Fund dividends. But Lengele failed to make any additional child support payments. As 



of May 2006, Lengele owed $80,884.02 in arrears; by   February 2, 2009, she owed 



$ 112,314.24. 



                On February 19, 2009, Lengele   was indicted on one count of criminal 



               1 

nonsupport.  At trial, Lengele argued that she lacked the actual ability to pay her child 



support obligation despite the exercise of reasonable efforts. Lengele's defense was that 



she was unable to pay her child support obligation because she was unable to obtain a 



driver's license, she had medical problems that stemmed from obesity and high blood 



pressure, she needed to care for her disabled mother, she was unable to find a job that 



could pay her enough to cover her child support obligation, and she was unable to obtain 



a modification of her child support. 



                Prior to closing arguments, the court discussed the jury instructions with 



the parties. The parties submitted substantially identical instructions on the elements of 



the crime of criminal nonsupport. The instructions provided that the State was required 



to show that Lengele's failure to provide support was "without lawful excuse - in other 



    1   AS 11.51.120(d). 



                                                    4                                                2385 


----------------------- Page 5-----------------------

words, that she either actually had the financial ability to provide support or that she 



could have had such actual ability through the exercise of reasonable efforts." 



                 The State also submitted a more detailed instruction on the meaning of 



"without lawful excuse": 



                         Under the criminal nonsupport statute, in order for the 

                 defendant to have a lawful excuse the conditions giving rise 

                 to his/her failure to provide support must not have been of 

                 his/her   own   making.   Nor       can   he/she   pursue   a   course   of 

                 conduct or act in a manner which materially contributes to the 

                 frustration of his/her duty to support his/her children. Self- 

                 induced poverty is not a lawful excuse. 



                         It is not a lawful excuse to the crime charged when, 

                 though     employable,      the  defendant     voluntarily     terminates 

                 his/her    employment,       voluntarily     reduces    his/her   earning 

                 capacity     or  fails  to  diligently    seek   employment.       In  this 

                 respect you may take into account the defendant's ability and 

                 skills acquired in his/her working life and the extent to which 

                 he   [or   she]   has,   when   not   employed,   taken   steps   to   find 

                 employment within his/her community. 



                         Furthermore, you must not consider the defendant's 

                 obligation to support a second family or children incurred 

                 after the [court's] order in this case as a legal lawful excuse 

                 for   failure   to  support   the   child  involved     in  this  case.  A 

                 [person's] first obligation is to his/her first children, and a 

                 voluntary   assumption   of   a   new   obligation   by   marrying   a 

                 second     time   does    not  excuse    him   [or   her]  from    a  prior 

                 obligation imposed by the court. 



                 Lengele   objected   to   the   second   and   third   paragraphs   of   the   foregoing 



proposal.   Lengele   noted   that   the   first   paragraph   of   the   State's   proposed   instruction 



followed Alaska law, but the "other two paragraphs [were] not based on Alaska law" and 



"appear[ed] to be based on Oklahoma law and Illinois law." Lengele argued, "I would 



                                                      5                                                2385
 


----------------------- Page 6-----------------------

ask to limit [the instruction] only to Alaska law, which is the law that the jurors have to 



decide under ... and that's Johansen [the leading Alaska Supreme Court case on criminal 

nonsupport]."2 



                The trial judge decided to keep the second paragraph because it comported 



                                                                                        3 

with Taylor (a more recent court of appeals case on criminal nonsupport),  but agreed to 



remove the third paragraph of the State's proposed jury instruction. 



                Lengele's attorney agreed that "self-induced poverty is not a lawful excuse" 



under Alaska law. However, he argued that the statement about self-induced poverty in 



the first paragraph was sufficient to explain the   law, and the second paragraph was 



"surplusage" and "not necessary." The judge overruled Lengele's objection and stated 



that he would remove the third paragraph of the State's instruction but would keep the 



second paragraph. The judge used the first and second paragraphs of the State's proposed 



instruction in Instruction No. 12 of the court's final instructions to the jury. 



                The jury convicted Lengele of criminal nonsupport, and she now appeals. 



        Discussion 



                A person who has been legally charged with an obligation of child support 



commits the crime of criminal nonsupport if they knowingly fail "without lawful excuse" 

to provide support for the child.4  In this statute, the term "without lawful excuse" means 



(1) "having the financial ability to provide support" or (2) "having the capacity to acquire 



    2   Johansen v. State , 491 P.2d 759 (Alaska 1971). 



    3   Taylor v. State, 710 P.2d 1019 (Alaska App. 1985). 



    4   AS 11.51.120(a). 



                                                    6                                                2385 


----------------------- Page 7-----------------------

                                                                    5 

that ability through the exercise of reasonable efforts."  The dispute in this case involves 



the meaning of this latter clause. 



                 Lengele did not preserve the issue she raises in this appeal . 



                 Lengele argues that the trial court incorrectly instructed the jury that "[i]t 



is not a lawful excuse to the crime charged when, though employable, the defendant 



voluntarily terminates his/her employment, voluntarily reduces his/her earning capacity 



or fails to diligently seek employment." As noted above, at trial, her counsel objected to 



this language solely on the ground that it "was not based on Alaska law." We conclude 



that this objection was not specific enough to alert the trial judge to the precise nature of 



the error the defendant now argues on appeal - that the instruction improperly excluded 



instances where Lengele may have voluntarily but reasonably quit her employment. 



                 Alaska Criminal Rule 30(a) provides in part: "No party may assign as error 



any portion of the charge or omission therefrom unless the party objects thereto before 



the jury retires to consider its verdict, stating distinctly the matter to which the party 



objects and the grounds of the objections." To determine whether a party's objection to 



a   jury   instruction   is   sufficient   to   preserve   an   argument   for   appeal,   we   apply   a   test 



borrowed from the cases construing the similar provisions of Civil Rule 51(a): 



                 The   dictates   of   the   rule   are   satisfied   only   if   the   judge   is 

                 clearly made aware of the alleged error in or omission from 

                 the   instructions.     Counsel's      objections     must    be  specific 

                 enough to clearly bring into focus the precise nature of the 

                 asserted error.6 



    5   AS 11.51.120(f)(3). 



    6   Heaps v. State , 30 P.3d 109,114 (Alaska App. 2001) (quoting In re Estate of McCoy , 



844 P.2d 1131, 1134 (Alaska 1993)). 



                                                      7                                                  2385 


----------------------- Page 8-----------------------

The Alaska Supreme Court has applied this test on numerous occasions.7 



                  For example, in Hout v. NANA Commercial Catering , a plaintiff challenged 



the jury instructions relating to the defendant's liability for discrimination in employment 



on the ground that they did not describe the proper allocation of the burden of proof as 

required by federal precedent.8 But the Alaska Supreme Court declined to reach the 



merits   of   the   plaintiff's   challenge.   The   court   noted   that   the   plaintiff   only   objected 



generally to the instructions, saying they placed on her a heavy burden, but she did not 



                                                                                                   9 

distinctly state the grounds of her objection or suggest corrective language.  The court 



held   that   a   party   who   objects   to   a   jury   instruction   must   make   an   objection   that   is 



sufficient to put the court and opposing counsel on notice of the defect in the instruction 

given; a general objection is insufficient.10 



                  We likewise conclude that Lengele's objection was insufficient to preserve 



the argument she is asserting in this appeal. In the trial court Lengele merely asserted that 



the   disputed   language   was   "not   an   accurate   statement   of   Alaska   law."   This   general 



objection was insufficient to put the trial judge and opposing counsel on notice of the 



precise nature of the issue that she now raises - that the disputed language improperly 



     7   See Jaso v. McCarthy, 923 P.2d 795, 799-800 (Alaska 1996); State v. Dupere, 709 



P.2d 493, 498 n.5 (Alaska 1985); Hout v. NANA Commercial Catering , 638 P.2d 186, 189 

n.9 (Alaska 1981); Drickersen v. Drickersen , 604 P.2d 1082, 1085 (Alaska 1979); Alaska 

Int'l Industries, Inc. v. Musarra , 602 P.2d 1240, 1243 n.1 (Alaska 1979); Brown v. Estate of 

Jonz ,   591   P.2d 532, 534 (Alaska 1979);  City of Nome v. Ailak, 570 P.2d 162, 171 n.23 

(Alaska 1977); McLinn v. Kodiak Elec. Ass'n, Inc. , 546 P.2d 1305, 1311 n.15 (Alaska 1976); 

Saxton v. Harris, 395 P.2d 71, 73 (Alaska 1964); see also Novick v. Gouldsberry , 12 Alaska 

267, 276 (9th Cir. 1949) (quoting Palmer v. Hoffman , 318 U.S. 109, 119 (1943)). 



     8   638 P.2d at 189. 



     9   Id . 



     10  Id . 



                                                        8                                                  2385
 


----------------------- Page 9-----------------------

excluded      instances    where     the   defendant     may    have    reasonably     terminated     her 



employment. 



                The disputed instruction was an incomplete and potentially 

                misleading statement of Alaska law. 



                We     must    still  determine    whether     it  is  accurate   under    the  criminal 



nonsupport statute to say that it is not a lawful excuse "when, though employable, the 



defendant voluntarily terminates his/her employment, voluntarily reduces his/her earning 



capacity or fails to diligently seek employment." Lengele argues that this language could 



suggest to the jury that, if Lengele was employed, then she was guilty of nonsupport if 



she terminated her employment voluntarily, even if there was a good reason for her 



decision.   This   suggestion   would   potentially   conflict   with   the   statutory   definition   of 



"lawful excuse" and the case law that led to this definition. 



                Alaska courts presume that the legislature is aware of the common law 

when enacting statutes.11 Common law decisions are "an especially important tool when 



'a statute attempts to restate the common law.'"12 When a judicial decision has "settled 



the meaning of an existing statutory provision, repetition of the same language in a new 



statute    indicates,   as   a  general    matter,    the  intent   to  incorporate     its  ...  judicial 

interpretations as well."13 



                The language and legislative history of the criminal nonsupport statute and 



the definition of "without lawful excuse" indicate that the legislature intended for the 



    11  Young v. Embley, 143 P.3d 936, 945 (Alaska 2006). 



    12  Id. (quoting 2B Norman A. Singer, Sutherland Statutory Construction  50:02, at 146 



(6th ed. 2000)). 



    13  Bragdon v. Abbott , 524 U.S. 624, 645 (1998). 



                                                    9                                               2385
 


----------------------- Page 10-----------------------

definition of "without lawful excuse" to be consistent with judicial constructions of the 

statute. The commentary to the 1978 revised criminal code cited Johansen v. State ,14 and 



expressly stated that "a defendant may not be convicted under the statute for failure to 



provide support to his minor child if he is in fact financially unable to provide support 

and his poverty is not self-induced."15 In 2004, the legislature used our language from 



Taylor v. State16 when adopting a definition for "without lawful excuse." 17 The legislative 



history further indicates that the legislature intended to incorporate the holding of Taylor 

when adopting this definition.18 



                 This legislative history indicates that the legislature intended for the statute 



to be consistent with the holdings of Taylor and Johansen . There is no indication in the 



legislative history that the legislature intended to adopt an interpretation of "without 



lawful excuse" that differed from these interpretations of Alaska case law. 



                 In Johansen , the Alaska Supreme Court had indicated that the jury should 



look   at   the   circumstances   surrounding   a   defendant's   failure   to   pay   child   support   to 



determine whether the defendant had a legitimate and reasonable excuse for failing to 



    14  491 P.2d 759 (Alaska 1971). 



    15  Commentary on the Alaska Revised Criminal Code, Senate Journal Supp. No. 47 at 



65, 1978 Senate Journal 1399. 



    16  710 P.2d 1019 (Alaska App. 1985). 



    17  Attachment       to  Memorandum        from   Vanessa     Tondini,    Committee      Aide,   House 



Judiciary Committee, to Jean Mischel, Legislative Legal (Feb. 25, 2004) (included in the bill 

file for H.B. 514, 23d Leg., 2d Sess. (2004)). 



    18  Minutes of the House Judiciary Committee, House Bill 514, Tape 04-28, Side B (0902 



to 0636) (Feb. 27, 2004); Attachment to Memorandum from Vanessa Tondini, Committee 

Aide,   House   Judiciary   Committee,   to   Jean   Mischel,   Legislative   Legal   (Feb.   25,   2004) 

(included in the bill file for H.B. 514, 23d Leg., 2d Sess. (2004)). 



                                                     10                                               2385
 


----------------------- Page 11-----------------------

comply with the child support order.19 Johansen was employed as a fisherman, but made 



only minimal amounts of money over the course of several years because of poor fishing 

conditions.20 The court held that Johansen could be required to seek other work - to 



make "a reasonable effort to employ his earning capacity in directions other than the one 

he has chosen as his chief means of livelihood."21 



                The    court's   holding    imposed    an  obligation    on  Johansen     to  seek  out 



alternative employment. If successful, Johansen's efforts could have required that he 



voluntarily terminate his employment as a fisherman. It would have been illogical for the 



court to require Johansen to seek out better paying employment that would enable him 



to make his child support payments while also penalizing him for voluntarily terminating 



his former employment to do so. 



                In Taylor, we relied on this discussion from Johansen when we interpreted 



"without lawful excuse" to mean that "the accused either actually had funds available for 



payment   of   support   or   that   he   could   have   obtained   such   funds   through   reasonable 

efforts."22 



                With    this  background      in  mind,   it  appears  that  Instruction    No.   12  in 



Lengele's case was incomplete. If a defendant voluntarily terminates their employment, 



but   introduces   evidence   that   the   voluntary   termination   was   to   avoid   excessive   job 



expenses or to seek more gainful employment, the State would still have the burden of 



    19  Johansen , 491 P.2d at 769.
 



    20  Id. at 768-69.
 



    21  Id. at 769.
 



    22  Taylor, 710 P.2d at 1021.
 



                                                   11                                             2385
 


----------------------- Page 12-----------------------

showing      that   the  failure   to  pay   support    was   "without     lawful   excuse."     This   jury 



instruction was therefore potentially misleading. 



                 The disputed language does not constitute plain error. 



                 Incorrect or misleading language in a jury instruction will constitute plain 



error when (1) the error is not the result of an intelligent waiver or a strategic decision 



not to object,   (2) the error affects substantial rights,   (3) the error is obvious,  and (4) the 

error is prejudicial.23 "An error that is not constitutional in nature will be prejudicial if 



the defendant proves that there is a reasonable probability that it affected the outcome of 

the proceeding."24 In this case, the disputed language is not plain error because it was not 



obviously incorrect and it was not prejudicial. 



                 This language was not obviously incorrect because an obligor's failure to 



seek or maintain employment may establish that he or she does not have a reasonable 



excuse for failure to pay child support. This idea is consistent with the discussion in 



Johansen , where the court stated that an obligor "will not be permitted to succeed on the 



defense of having a legitimate reason or excuse for not complying with an order of child 



support where he has not made a reasonable effort to employ his earning capacity in 

directions other than the one he has chosen as his chief means of livelihood."25 



                 Moreover, the disputed language was not prejudicial when one takes into 



account   the   evidence   submitted   at   trial,   the   other   jury   instructions,   and   the   closing 



arguments. The evidence at trial did not clearly include any instances where Lengele's 



    23  Khan v. State , 278 P.3d 893, 900 (Alaska 2012). 



    24  Adams v. State , 261 P.3d 758, 773 (Alaska 2011). 



    25  Johansen , 491 P.2d at 769. 



                                                     12                                                 2385 


----------------------- Page 13-----------------------

decision   to   quit   working   was   objectively   reasonable.   She   said   she   quit   working   at 



Alyeska   Pipeline   Service   Company   because   she   was   stressed   due   to   calls   from   her 



boyfriend and her ex-husband. She also implied that she quit working a supermarket job 



because   it   wasn't   worth   it   after   CSSD   garnished   her   wages.   Even   if   Lengele   had 



convinced the jury that these were valid reasons to quit her employment, these two 



incidents are fairly insignificant in view of her ten-year period of non-payment of child 



support. 



                Other jury instructions clarified the State's burden to show that Lengele's 



failure   to  pay   child   support   was   unreasonable.   Instruction      10   stated   the  statutory 



definition: "Without lawful excuse means that the defendant either had funds available 



for   payment   of   support   or   could   have   obtained   funds   through   reasonable   efforts." 



Instruction   11 stated that, when determining whether the failure to pay support was 



without lawful excuse, the jury "may and should consider all the circumstances of the 



defendant shown to you by the evidence. In   this regard, it is proper to consider the 



physical condition of the defendant, his/her education and mental ability, his/her skills, 



his/her employment and the employment available to him, whatever money and wages 



and assets may have been available to him and all other evidence which you believe 



indicates an ability on his/her part to have paid support." 



                In Instruction 12, the first paragraph of the instruction told the jury that "a 



lawful excuse" must not have been of the defendant's "own making" and that "[s]elf 



induced poverty is not a lawful excuse." This language is consistent with the language 



of Johansen and  Taylor, indicating that "a defendant may not be convicted under the 



statute for failure to provide support to his minor child if he is in fact financially unable 



                                                    13                                              2385
 


----------------------- Page 14-----------------------

to provide support and his poverty is non-self-induced."26 Read in context, the jury 



would   likely   conclude   that   the   disputed   language   of   the   second   paragraph   of   this 



instruction was merely an example or an explanation of this   idea that "self-induced 



poverty is not a lawful excuse." 



                 Finally, the closing arguments of the parties reinforced the idea that the 



State must prove that the defendant acted unreasonably. In his opening argument, the 



prosecutor confirmed that the State had to prove "that Ms. Lengele's failure to provide 



support   was   without   lawful   excuse,   in   other   words,   that   she   either   actually   had   the 



financial ability to provide support or that she could have had such actual ability through 



... the exercise of reasonable efforts." 



                 The prosecutor then emphasized the first paragraph of Instruction 12: 



                         I   want    to  talk  to  you    a  little  bit  about  this   other 

                 instruction here, and I've underlined the second sentence. I 

                 want   you   to   read   the   whole   instruction,   but   I'm   going   to 

                 focus   on   the   second   sentence   here.   And   that's   --   and   the 

                 judge   is going to tell you that nor can he or she pursue a 

                 course of conduct or act in a manner which material con -- 

                 materially contributes to the frustration of his or her duty to 

                 support   his   or   her   children.   Self-induced   poverty   is   not   a 

                 lawful excuse. 



                         Think about that a little bit. You can't just simply say 

                 it's not worth it. That, ladies and gentlemen, is self-induced 

                 poverty. Your children are worth it and I think as a society, 

                 you'd agree with me that you have to pay to support your 

                 children. You don't get to decide that you're only going to 



    26   Taylor, 710 P.2d at 1021 (quoting Commentary on the Alaska Revised Criminal Code, 



Sen.J.Supp. No. 47 at 64-65, 1978 Sen.J. 1399) (citing Johansen , 491 P.2d at 759). 



                                                      14                                                  2385 


----------------------- Page 15-----------------------

                work a certain kind of job. And you don't get to decide that, 

                well,   I'm   not   going   to   work   retail   and   I'm   not   going   to 

                bartend. And that's what you heard in this case. 



                 In the defense attorney's argument, he contended that Lengele "has tried 



to make reasonable effort after reasonable effort after reasonable effort to actually gain 



the ability to pay her child support agreement." He pointed out that the fourth element 



of this charge required the jury to determine 



                whether Bobbie could have had the actual ability to pay her 

                 child support obligation through the exercise of reasonable 

                 efforts. So you're going to first have to figure out did what 

                 she   do   was   reasonable?   Was   it   reasonable   for   her   to   find 

                work, try to find work? Was it reasonable for her to try and 

                 get her child support obligation modified? Was it reasonable 

                 for her to feel limited in her ability to do so based on her prior 

                work      experience,      her   training,   and    her   current    work 

                 experience? You also are going to have to figure out whether, 

                not regarding those reasonable efforts, what she did, even if 

                 she were successful, would have given her the actual ability 

                 to pay her child support obligation. 



                 In the rebuttal argument, the prosecutor responded to the defense attorney's 



argument. He stated: 



                 Ladies and gentlemen, we know that she had the ability to 

                provide   financial   support.   She   worked.   She   quit   her   job 

                voluntarily. She self-induced her poverty. You don't get to 

                 only look for jobs that are high paying. If we did that, if that 

                was the law, then children would hardly ever get support. 

                 You   don't   get   to   pick   your   job   in   order   to   support   your 

                 children. You've got to support your children whether you're 

                working or not. 



                 These closing arguments reinforced the concept that Lengele's decisions 



to voluntarily quit her employment should be judged in the context of whether she was 



                                                     15                                               2385
 


----------------------- Page 16-----------------------

exercising   reasonable   efforts   to   provide   support   or   whether   she   was   living   in   self- 



induced poverty. In view of these arguments, we doubt that the jury would have believed 



that Lengele could never quit a job even if it was economically advantageous to do so. 



We conclude that the disputed language in Instruction 12 was not plain error. 



        Conclusion 



                 The   disputed   jury   instruction   in   this   case   included   an   incomplete   and 



potentially   misleading   statement   of   Alaska   law.   But   when   we   review   the   evidence 



submitted at trial, the other jury instructions, and the closing arguments, we conclude that 



this instruction was not plain error. We therefore AFFIRM the superior court's judgment. 



                                                     16                                               2385
 

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