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Roth v. State (6/27/2014) ap-2417

Roth v. State (6/27/2014) ap-2417

                                                         NOTICE
  

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                  IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



ROBERT ROY ROTH JR.,  

                                                                         Court of Appeals No. A-11088  

                                      Appellant,                      Trial Court No. 3AN-10-13124 CR  



                             v.  

                                                                                  O  P  I  N  I  O  N  

STATE OF ALASKA,  



                                      Appellee.                            No. 2417  -  June 27, 2014  



                                                                                 

                   Appeal   from   the   Superior   Court,   Third   Judicial   District,  

                   Anchorage, Gregory Miller, Judge.  



                   Appearances:  Jane B. Martinez, Anchorage, under contract with  

                   the  Public  Defender  Agency,  and  Quinlan  Steiner,  Public  

                   Defender,  Anchorage,  for  the  Appellant.    Ann  B.  Black,  

                   Assistant Attorney General, Office of Special Prosecutions and       

                   Appeals,   Anchorage,   and   Michael   C.   Geraghty,   Attorney  

                   General, Juneau, for the Appellee.  



                   Before:  Mannheimer, Chief Judge, Allard, Judge, and Hanley,       

                   District Court Judge. *  

                                                    



                   Judge MANNHEIMER.  



          *    Sitting  by  assignment  made  pursuant  to  Article  IV,  Section  16   of  the  Alaska  



Constitution and Administrative Rule 24(d).  


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

                    Robert Roy Roth Jr. appeals his convictions on two counts of first-degree  



child endangerment under subsection (a)(2)(A) of AS 11.51.100.  This statute makes it  



a crime for the parent or guardian of a child under the age of 16 to "leave" their child  



with another person if the parent or guardian knows that this person is under a duty to  

                     



register as a sex offender.   



                    This appeal ultimately arises from the fact that Roth and the State disagree  

                                                                                                     



about what it means to "leave" a child with another person.  



          Roth's mistaken characterization of this litigation  



                    In his brief to this Court, Roth argues that the evidence presented at his trial  

                                                                                



was legally insufficient to support his conviction, and therefore the charges against him  

                                                                                                  



should be dismissed with no possibility of re-trial. But the evidence at Roth's trial would  

                                                                                                  



only  be  insufficient  if  this  Court  adopted  Roth's  interpretation  of  the  statute  -  in  

                                                                                                 



particular, Roth's interpretation of the element of "leaving" a child with a known sex  



offender.   



                    This  question  of  statutory  interpretation  arose  because  the  evidence  at  



Roth's trial showed that Roth left his children with a man he knew to be a sex offender  

                                                                              



while Roth went to the store, but the evidence also showed that two other adults were  



present in another part of the residence (the back bedroom).  



                    At Roth's trial, the prosecutor argued to the jury that if Roth entrusted his  



children to the sex offender, he was guilty of violating the child endangerment statute  

                  



even if other adults were present in the residence.  But the defense attorney argued to the  

                    



jury that the statute required proof that Roth left his children solely with the sex offender  



- and that the presence of the other two adults in the house meant that, as a matter of  



law, the jury should find Roth not guilty.  



                                                           - 2 -                                                      2417
  


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

                    The jurors were never told which of these interpretations of the statute was  

                                                                                                            



correct.       Even  when  the  jurors  (during  deliberations)  asked  the  court  to  clarify  the  

                



meaning of the statute, the trial judge told the jurors that they would have to interpret the  



statute for themselves.   



                    Given   these   circumstances,   Roth's   argument   on   appeal   is   not   an  



"insufficiency of the evidence" argument.  Rather, it is an argument that Roth should  



receive a new trial because the jurors were not told the proper definition of the elements  

                                                        



of the crime.  We discussed this point of law at some length in Collins v. State, 977 P.2d  

                                                                               



741, 751-52 (Alaska App. 1999) (concurring opinion of Judge Mannheimer, which was  



adopted by the Court, id. at 748).  



          Why we conclude that Roth is not entitled to litigate the proper meaning of  

          the statute  



                    Because the issue here is one of statutory interpretation, this Court's next  

                                                                     



step  would  normally  be  to  examine  the  disputed  statute,  its  legislative  history,  the  



policies underlying the statute, and any relevant case law from other jurisdictions, and  

                                                



then reach a decision regarding the proper interpretation of the statute.  But Roth's case  

                                                                                                          



is different.  



                    As we noted earlier, the jury received no instruction on the meaning of  



"leaving" a child with a known sex offender.  Instead, the jury heard only the competing  

                                                                                      



arguments of the two attorneys concerning the proper interpretation of this element of  

                      



the crime.  And given the evidence presented at trial, the jurors would almost inevitably  

                                       



convict Roth if they followed the prosecutor's interpretation of the statute, but the jurors  



would almost certainly acquit Roth if they followed the defense attorney's interpretation.  



                                                             - 3 -                                                       2417
  


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

                     Predictably, after about two hours of deliberations, the jury sent a note to  

                                                                                                                    



the trial judge asking for clarification of this point of law.  Specifically, the jurors asked  

                                                                                            



the judge to tell them whether the child endangerment statute is violated whenever a  

                                                                  



parent entrusts a child to a known sex offender, even though another adult is present -  

                                                                                                



or whether, instead, the government must prove that the sex offender was the sole adult  

                                                                             



present.  



                     When the trial judge summoned the parties to discuss the jury's note, the  

                                                                                                                 



two attorneys restated their competing interpretations of the statute.  The prosecutor  



reiterated the State's position that the gist of the offense is the parent's decision to entrust  

                                                                                                                           



a child  to the care of a known sex offender - and that, if the jury found that Roth  

             



entrusted his children to a known sex offender, the fact that there were two other adults  

                                                      



in the back bedroom at that time was no defense.  The defense attorney, for his part,  

                    



reiterated his position that the statute applies only to situations where a parent entrusts  

                                                                                



a child to one sole individual.  In particular, the defense attorney told the trial judge that  

                                                 



if the jury had a reasonable doubt "[as to whether] Mr. Roth left his child[ren] in the sole  

                                                             



care of [the sex offender], then their decision should be 'not guilty'."   



                     The trial judge frankly acknowledged that he could not decide which of  

                                                                                                               



these differing interpretations was correct.  The judge then proposed the solution of  



letting the jurors interpret the law for themselves:  



                       

                                The Court:   I would propose answering the [jury's]  

                                                    

                     question  as  follows:    ...    "The  Court  cannot  interpret  the  

                                                        

                     statute for the jury.  The jury must interpret the law as it is  

                                                              

                     written, and apply the evidence to that interpretation as the  

                     jury thinks appropriate."   



                                                                - 4 -                                                            2417
  


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

                    Both attorneys stated their agreement with the trial judge's approach.  In  



particular, Roth's defense attorney told the judge, "I do agree that the Court cannot   



interpret the law for the jury[.]"  



                    The prosecutor then suggested that the jurors should be instructed to use  

                                                                     



their "common understanding of words" when they interpreted the statute.  Responding  

                                                                                                                 



to the prosecutor's suggestion, the trial judge reworded his proposed response to the  

                                                              



jury's question:  



                      

                              The  Court:    How  about  the  following:    "The  Court  

                    cannot interpret the statute for the jury.   Where particular  

                    words or phrases are not defined, the jury should use reason  

                                                                        

                    and common sense." ?  

                       

Roth's attorney responded, "Your Honor, I'd say that we could - I think that [what you  

                                                                                                      



just proposed] sounds appropriate."   



                    After a little more discussion about the precise wording of the response to  

                                                                                



the jurors, the trial judge announced the final version of his response:  



                      

                              The Court:  Let me read [my draft response] from the  

                                                             

                    beginning:  "The Court cannot interpret the statute for the  

                                                                      

                    jury.     Where  particular  words  or  phrases  are  not  defined  

                                                          

                    elsewhere in the instructions, the jury should use reason and  

                                                                       

                    common sense.  You should take all of the instructions as a  

                                                                                       

                    whole.  [And] Instruction No. 8 [that you already received]  

                    contains all applicable portions of the statute."  



                              I see you both nodding your head?  



                              Defense  Attorney :            Yes,  Your  Honor.    I  think  that  

                                                              

                    that's a fair statement of the law.   



The defense attorney then tried to hedge his bet:  



                                                              - 5 -                                                        2417
  


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

                      

                              Defense Attorney :  Out of an abundance of caution,  

                    could I say that, if I'm wrong, I'd just like to make a point for  

                                                                                    

                    appeal in [the event that] this case would have to go up to the  

                                                                                          

                    Court of Appeals -  because we are treading new ground  

                                                                               

                    here without much guidance from the Court of Appeals or  

                     [the] statutes.  



                              The Court:  So noted.  



                    The trial judge then gave this written response to the jurors.  Thirty minutes  



later, the jury returned its verdicts - finding Roth guilty.  



                    (a)  The judge's response to the jury was plainly erroneous  



                    The judge's response to the jury's question was obvious error - because  

                                                                                       



trial judges are under a duty to instruct the jurors on all matters of law that they need to  

                                                                                                           



make their decision.  This principle is codified in Alaska Criminal Rule 30(b):  "The  



court shall instruct the jury on all matters of law which it considers necessary for the  

                                                                                                         



jury's information in giving their verdict." 



                      Here,  the  jury  needed  to  know  whether  to  follow  the  prosecutor's  

                                                                           



suggested interpretation of the statute, or the defense attorney's competing interpretation  

                                                                                               



of the statute, or some other interpretation.   



                    We acknowledge that the task confronting the trial judge was a difficult  



one:      the  language  of  the  statute  does  not  directly  resolve  the  question  of  statutory  

           



interpretation that the parties were debating, and the trial judge had little time to research  



this issue.  But the judge remained under a duty to give the jury an answer - a duty to  

                                                                                                 



make his best effort to ascertain the proper definition of the elements of the crime, and  

                                                                                                              



then to tell the jury this definition.  It was error for the judge to tell the jurors that they  

                                                                 



                                                              - 6 -                                                        2417
  


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

would have to interpret the statute on their own - that they would simply have to do  



their best, using reason and common sense, to sort out the legal dispute between the  



prosecutor and the defense attorney.  



                    (b)  But Roth's attorney clearly made  a  tactical choice when he  

                                                                                  

                    encouraged the judge to give that improper response  



                    When a litigant wishes to raise a point on appeal as a claim of plain error,  

                                                                                                 



one thing the litigant must show is that they (or their attorney) did not make a tactical  

                                                                                                          



decision to refrain from objecting to the trial court's action or ruling.  Adams v. State ,  

                                                                                                                    



261 P.3d 758, 773 (Alaska 2011).   



                    The record in this case shows that Roth's attorney did not simply fail to  



object to the judge's error (telling the jurors that they would have to interpret the statute  

                                                                                                    



for themselves).  Rather, Roth's attorney actively encouraged the trial judge to commit  

                                                                          



that error.  



                    Moreover, the record reveals a clear tactical reason why Roth's attorney  

                                                                   



would encourage the judge not to give the jurors any further instruction on this issue of  



statutory interpretation.  



                    As  we  have  explained,  the  prosecutor  and  the  defense  attorney  argued  



competing interpretations of the offense during their summations to the jury.  Given the  

                                                                                                                 



evidence presented at Roth's trial, the jurors would almost certainly acquit Roth if they  

                                                                                       



followed the defense attorney's interpretation of the statute.  On the other hand, the  



jurors   would   almost   certainly   convict   Roth   if   they   followed   the   prosecutor's  

                                   



interpretation of the statute.   



                    In their question to the trial judge, the jurors explicitly asked the judge to  

                                                                                       



tell them which of these interpretations was correct.  



                                                            - 7 -                                                       2417
  


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

                    If Roth's attorney pressed the trial judge for a definitive ruling on this point  

                                                                                  



of law, he ran the risk that the judge would ultimately decide that the prosecutor's  view  



of  the  statute  was  correct  -  which,  in  practical  terms,  meant  that  Roth  would  be  

                                                                               



convicted.  But if the judge declined to issue a ruling on the meaning of the statute, then  

                            



the jurors would be free to adopt the defense attorney's interpretation if they found it  

                                       



convincing.  Alternatively, there was a chance that if the jurors were unable to reach  



consensus about the meaning of the statute, they might conclude that this, by itself,  

                                                                                                                      



constituted a reasonable doubt as to whether the State had proved Roth's guilt.  



                    Under these circumstances, there were obvious tactical advantages in the  

                                                                                                                            



course adopted by the defense attorney - obvious benefits to be gained by encouraging  

                                                                                                  



the judge to tell the jurors that the court was unable to give them any further instruction  

                                                                               



on the elements of the crime, and that they would just have to interpret the statute for  

                                                                                                 



themselves.   



                    We accordingly hold that Roth is not entitled to pursue his jury instruction  

                                                                             



argument as a claim of plain error.  



                    We acknowledge that, right after the trial judge told the attorneys that he  



intended  to  respond  to  the  jury's  question  in  the  manner  that  the  defense  attorney  



approved  of,  the  defense  attorney  tried  to  hedge  his  bet  -  by  declaring  "out  of  an  



abundance of caution" that if he was wrong about how the trial judge should respond to  

                                                         



the jury's question, "[he'd] just like to make [this] a point for appeal in [the event that]  



this case would have to go up to the Court of Appeals".  The trial judge responded, "So  

               



noted."   



                    But neither the defense attorney's statement nor the trial judge's response  

                                                                                        



is sufficient to save Roth from the consequences of the procedural default that occurred  

                                                                                                                



in this case.  This Court will not allow an attorney to actively encourage a trial judge to  

                                                                                                                 



                                                              - 8 -                                                         2417
  


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

issue a particular ruling and, at the same time, preserve the right to challenge the judge's           



ruling on appeal simply by mentioning the possibility that the ruling might be wrong.  



                       As this Court explained in Lengele v. State , 295 P.3d 931, 934-35 (Alaska  

                                    



App. 2013), even in cases where an attorney expressly  disagrees with a trial court's  

                                                                                                                              



ruling  on  jury  instructions,  the  attorney  must  do  more  than  simply  indicate  their  



disagreement  if  the  attorney  wishes  to  preserve  a  claim  for  appeal.    The  attorney's  

                             



objection must be specific enough to alert the trial judge to the nature of the alleged error  

                                                                                                                        

in (or omission from) the jury instructions. 1  

                                                                             



                                                                      

                       This rule applies even more forcefully to the circumstances of Roth's case:  



                                                                                                                                 

here, the defense attorney, far from disagreeing with the trial judge's refusal to give the  



                                                                                                 

jury any further instruction on the elements of the crime, actually encouraged the judge  



to take that stance.  



                                                                                           

                       Nor is the situation changed by the trial judge's response, "So noted."  A  



                                                                  

trial judge has no authority to exempt a litigant from the rules governing the preservation  



                                            

of points on appeal.  See  Williams v. State, 214 P.3d 391, 393 (Alaska App. 2009).  



                       (c)  Roth's remaining constitutional claims  



                                                                   

                       A large portion of Roth's brief is devoted to several constitutional attacks  



on the child endangerment statute.  Roth claims that if the child endangerment statute is  



not interpreted as he argues it should be, then the statute violates various constitutional  

                                                                      



guarantees.   



            1    Lengele , 295 P.3d at 935.  See also  In re Estate of McCoy , 844 P.2d 1131, 1134   



(Alaska 1993); Pierce v. State , 261 P.3d 428, 432-33 (Alaska App. 2011);                                            Heaps v. State , 30  

P.3d 109, 114 (Alaska App. 2001).  



                                                                     - 9 -                                                                    2417  


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

                    None of these constitutional claims was raised in the trial court.  Nor do any   



of these claims rise to the level of plain error under the facts of Roth's case.   



          Conclusion  



                    The judgement of the superior court is AFFIRMED.  



                                                            - 10 -                                                       2417
  

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