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Waterman v. State (2/6/2015) ap-2441

Waterman v. State (2/6/2015) ap-2441

                                                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
  

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             IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



RACHELLE A. WATERMAN,  

                                                            Court of Appeals No. A-11052  

                                Appellant,                 Trial Court No. 1KE-04-1312 CR  



                        v.  

                                                                     O  P  I  N  I  O  N 

STATE OF ALASKA,  



                                Appellee.                    No. 2441 - February 6, 2015  



                Appeal  from  the  Superior  Court,  First  Judicial  District,  

                Ketchikan, William B. Carey, Judge.  



                Appearances:    Dan  S.  Bair,  Assistant  Public  Advocate,  

                Appeals and Statewide Defense Section, and Richard Allen,  

                Public Advocate, Anchorage, for the Appellant.  Nancy R.  

                Simel,    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-----------------------

                   When a defendant is charged with criminally negligent homicide under  



AS 11.41.130, one of the elements the State must prove is that the defendant failed to  

                                                                                              



perceive a risk of human death that was substantial and unjustifiable - "of such a nature  

                                                                                                       



and degree that the failure to perceive it constitute[d] a gross deviation from the standard  

                                                          



of  care  that  a  reasonable  person  would  observe  in  the  situation."    See  AS  11.81.- 



900(a)(4), the statutory definition of "criminal negligence".  



                   The question presented in this appeal is whether "the standard of care that  

                                                                           



a reasonable person would observe in the situation" should vary according to the age of  

                                                                            



the defendant - more specifically, whether a different standard of care should apply in  



cases where the defendant is a teenager or young adult under the age of 25, before the  

                                                                                                



prefrontal cortex of the brain is fully developed.   



                   The defendant in this case argues that when a juvenile or young adult is  

                                                                                                     



charged  with  criminally  negligent  homicide  (or  any  other  crime  involving  proof  of  



criminal negligence), the "reasonable person" standard of care specified in the statute  

                                                                                                               



should not be evaluated against the conduct we would expect of a mature adult, but  

                  



rather  the  conduct  we  would  expect  of  a  teenager  or  young  adult  of  "similar  age,  



intelligence, and experience".  



                   In the absence of legislation, this might be a question for the judicial branch  



to answer.  But the legislature has spoken on this issue.  Even though current scientific  



research indicates that the development of the prefrontal cortex is not complete in most  

                                                               



people  until  they  reach  their  mid-twenties,  it  is  the  law  of  Alaska  (and  every  other  



American  jurisdiction)  that  all  persons  who  have  reached  the  age  of  18  years  are  



governed by the normal criminal law - its definitions of criminal offenses, and its  



specified penalties.  And the Alaska legislature (like the legislatures of many other states)  



has amended our juvenile delinquency laws so that, with regard to the most serious  



                                                           - 2 -                                                      2441
  


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

felonies, the normal criminal law applies to persons as young as 16 years.   See  AS  



47.12.030.  



                  One   could   argue   that,   given   recent   scientific   research   into   brain  



development, the threshold age of adult criminal responsibility should be altered, or  



different standards of culpability should apply to persons younger than 25.  But the  

                                                           



assessment of the proper scope of criminal responsibility hinges on more than brain  



science.  Even among fully mature adults, there is considerable variation in perception,  

                                                                                        



physical ability, intellect, and self-control.  



                  Because of this, the problem of defining the nature and extent of criminal  

                                          



responsibility involves larger issues of philosophy, morality, and social policy.  And  

                                                                                                       



under our government of divided powers, it is the legislative branch that is primarily  



responsible for addressing and resolving these issues.  



                  It is true that there are constitutional limits on the legislature's authority to  



define the scope of criminal responsibility and the range of punishments that may be  



imposed for violations of the criminal law.  But we conclude that it is constitutional for  

                                                                                     



the legislature to specify a single standard of care for criminally negligent homicide, even  

                                                                   



when the defendant is a young adult under the age of 25, or even a teenager as young as  



16.  We therefore affirm Waterman's conviction.  



          Underlying facts  



                  In November 2004, Rachelle Waterman's mother was murdered by two  



young men - Brian Radel and Jason Arrant.  Waterman had recently dated both of these  

                                      



men.    According  to  the  State's  evidence,  the  two  young  men  began  plotting  to  kill  



Waterman's mother because Waterman told them that she was suffering physical and  



emotional abuse at the hand of her mother.   



                                                        - 3 -                                                    2441
  


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

                   Specifically, Waterman reported that her mother had beaten her, thrown her  



down the stairs, threatened her with a knife, and threatened to sell her into slavery.  



Waterman openly suggested that she wanted her mother dead.  



                   In response, the young men decided that one of them (Brian Radel) would  

                                                                       



ambush Waterman's mother with a shotgun.  When the other young man (Jason Arrant)  

                                                                                                 



told Waterman about this plan, Waterman asked Arrant not to go through with it.  But  



Arrant never communicated this information to Radel, so Radel proceeded to the ambush  

                                                                                                        



spot.  



                   The ambush never took place - because, when Radel arrived at the spot,  

                                                                                                            



he realized that he had forgotten to bring the bolt that connected the shotgun's barrel to  

                                                                



its stock.  



                   Arrant informed Waterman about this unsuccessful murder attempt:  he  



wrote her an e-mail in which he referred to it as a "hunting trip".  Waterman did not warn  



her mother, nor did she alert the police.  Rather, Waterman sent a letter to Arrant in  

                                                 



which she said that she was tempted to take a "hunting trip" herself.  



                   Several weeks later, after Waterman again reported that her mother had  



beaten her, the two young men decided to try again.  This time, the plan was to make it  

                                                                                   



look as if Waterman's mother was killed in a traffic accident.  



                   The two men waited until a weekend in November when both Waterman  

                                                                         



and  her  father  were  out  of  town.    Then  they  broke  into  the  Waterman  residence,  



kidnapped Waterman's mother, drove her out of town in the family van, beat her to  



death, placed her body in the van, let the van go over the edge of the road, and set the  



van on fire with gasoline.  



                   The State indicted Waterman for first-degree murder, conspiracy to commit  



murder, second-degree murder (under the felony-murder provision of the statute), and  

                                                                                                          



kidnapping - all on the theory that Waterman was complicit in Radel's and Arrant's  

                                                                                             



                                                          - 4 -                                                     2441
  


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

crimes.  Even though Waterman was 16 years old at the time of the homicide, she was  

                                                                                  



charged as an adult under the provisions of AS 47.12.030(a).   



                    As  an  alternative  to  the  murder  and  conspiracy  charges,  the  State  also  



charged Waterman with criminally negligent homicide - under the theory that even if  

                                                       



Waterman did not actively plot her mother's death, she nevertheless placed her mother  

                                                 



in a situation of peril by her actions, and she was therefore guilty of criminally negligent  

                                                                           



homicide because she failed to take reasonable steps to warn her mother, or to alert the  

                                                                                                                 



authorities, that Radel and Arrant were plotting to kill her mother.   



                    As a defense to the State's primary charges (murder and conspiracy to  



commit  murder),  Waterman  contended  that  she  was  not  serious  when  she  spoke  of  

              



wanting her mother dead, and that she did not think that Radel and Arrant would really  

                                                                  



go so far as to kill her mother.   



                    As  a  defense  to  the  lesser  charge  of  criminally  negligent  homicide,  



Waterman presented expert testimony on adolescent brain development.  According to  

                                                                                                                 



this testimony, the prefrontal cortex - the portion of the human brain responsible for  

                                                                                                     



planning,  the  ability  to  think  in  the  long-term,  and  the  ability  to  control  impulsive  

                                                                                                         



behavior and risk-taking - does not become fully developed until a person is around 25  

                                                                                                      



years old.  Thus, even though adolescents and young adults are just as capable as more  

                                                                        



mature adults when it comes to perceiving or understanding the risks that accompany  

                                                                    



certain behavior, they have a lesser ability to "appreciate" these risks - i.e., a lesser  

                                                                                            



ability to weigh those risks, assess the likely consequences, and stop themselves from  

                          



engaging in the risky behavior.  



                    In conjunction with this expert testimony, Waterman's attorney asked the  

                                                                                      



trial judge to modify the jury instruction defining the standard of care that the jurors  

                                                                                                   



should use when evaluating Waterman's conduct.  



                                                              - 5 -                                                          2441
  


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

                    Instead  of  the  standard  defined  in   the  culpable  negligence  statute,  

                                                                            



AS 11.81.900(a)(4) - a gross deviation from the standard of care that "a reasonable  

                                               



person" would observe in the situation - Waterman's attorney asked the judge to tell  

                                                               



the  jurors  that  they  should  decide  whether  Waterman's  conduct  constituted  a  gross  



deviation  from  the  standard  of  care  to  be  expected  of  "a  person  of  similar  age,  



intelligence, and experience".  



                    The trial judge declined to give this instruction because he concluded that,  

                                                        



even  with  respect  to  defendants  as  young  as  Waterman,  the  legislature  wanted  a  

                                  



defendant's  conduct  to  be  evaluated  against  the  normal  adult  standard  of  criminal  



negligence  -  and  that  the  legislature  was  not  constitutionally  required  to  adopt  a  



different standard.   



                   At the conclusion of the trial, the jury found Waterman not guilty of the  

                                                                                                                      



most serious charges against her (conspiracy to commit murder, first-degree murder,  

                                                                         



second-degree murder, and kidnapping). That is, the jury concluded that the State failed  

                                                                     



to prove that Waterman was complicit in the murder and kidnapping plot.  



                   However, the jury found Waterman guilty of the lesser offense of criminally  



negligent  homicide.    That  is,  the  jury  found  (1)  that  there  was  a  substantial  and  



unjustifiable  risk  that  Radel  and  Arrant  would  kill  Waterman's  mother,  (2)  that  



Waterman failed to perceive this risk, and (3) that Waterman's failure to perceive this  



risk constituted a "gross deviation from the standard of care that a reasonable person  



would observe in the situation."   See AS 11.81.900(a)(4) (the definition of criminal  



negligence).  



                    (We  note  that  Waterman's  jury  was  not  expressly  asked  to  decide  the  

                                          



remaining essential component of criminal liability for negligence:  that Waterman was  



under a duty to take action to protect her mother.  Normally, the law does not require a  

                                                                                                     



person to take affirmative action to prevent a crime or to protect other people from  

                                                                                                             



                                                            - 6 -                                                      2441
  


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

          1  

harm.        There can be a duty to act, however, if the person's own actions have placed   

another person in peril. 2                                                     

                                        This was apparently the State's theory in Waterman's case:  



                                                                 

that Waterman, by complaining about her mother's abusive behavior and by expressing  



                                                                               

the desire to see her mother dead, had caused Radel and Arrant to begin actively plotting  



       

her  mother's  murder;  and  that  the  danger  to  Waterman's  mother  was  reasonably  



                                                                                             

foreseeable to Waterman, since Arrant told Waterman about the failed ambush with the  



shotgun.  This issue is not raised on appeal, so we will address it no further.)   



                                                                                                            

           Waterman's argument that, under Alaska statutory law, when a juvenile is  

                         

           charged  with  an  offense  based  on  criminal  negligence,  the  applicable  

                                                                                    

          standard of care is what we should expect from a juvenile of "similar age,  

           intelligence, and experience"  



                                                                                  

                     In the jury instruction defining criminal negligence, Waterman's jury was  



                                                                                           

told that they had to decide whether Waterman failed to perceive "a substantial and  



unjustifiable  risk"  that  her  mother  would  be  murdered  by  the  two  young  men,  and  



whether Waterman's failure to perceive this risk "constitute[d] a gross deviation from  

                                                                                                  



the standard of care that a reasonable person would observe in the situation."  



                     As we have explained, Waterman asked the superior court to instruct the  

                                                         



jurors that they should gauge her conduct - more precisely, her failure to perceive the  



risk to her mother's life - against the standard of care that should be expected of a  

            



reasonable  teenager  "of  similar  age,  intelligence,  and  experience",  rather  than  what  

                                 



should be expected of an adult.   



      1   See Rollin M. Perkins   &   Ronald N. Boyce,  Criminal Law (3rd edition 1982), pp.  



659-662; Wayne R. LaFave, Substantive Criminal Law (2nd edition 2003),  6.2(a), Vol. 1,  

pp. 436-443.    



     2    Perkins & Boyce , p. 666; LaFave ,  6.2(a)(5), Vol. 1, pp. 441-42.  



                                                               - 7 -                                                         2441
  


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

                     On appeal, Waterman renews her contention that teenagers should be held       



to a different, more lenient standard of negligence.  She advances two main arguments   



in support of this proposition.  



                     First, Waterman relies on this Court's decision in J.R. v. State , 62 P.3d 114  

                               



(Alaska App. 2003).  J.R. was the appeal of a minor who was prosecuted under the  



juvenile delinquency laws for second-degree murder under the theory that he acted with  

                                                                                                 



"extreme indifference to the value of human life" when he urged a friend to commit  

murder, and instructed the friend on how to use a shotgun. 3  

                                                                                             This Court held that when  

                                                                                                               



the jury assessed whether J.R. acted with extreme indifference to the value of life, the  



jury  should  have  been  told  to  evaluate  J.R.'s  conduct  "against  the  standard  of  a  



reasonable person of his age, intelligence, and experience", rather than against an adult  

                                       



standard.  62 P.3d at 119.  



                     Second, Waterman relies on the scientific research that she presented at her  

                                                                 



trial - research showing that the prefrontal cortex of the human brain does not fully  

                                                                                                               



develop until a person reaches their mid-twenties.  According to this research, people in  

                                                                                                   



their teens and early twenties may not have the same degree of judgement, impulse  



control, and appreciation of consequences as more mature adults.    



                     We address each of these arguments in turn.  



           Our decision in J.R. v. State does not apply to cases where juveniles are  

                                                                                   

          prosecuted as adults under the provisions of AS 47.12.030(a)  



                     In J.R. v. State , this Court addressed the question of whether a normal adult  

                                                                                                                



standard of care should apply when a teenager is prosecuted under the delinquency  



provisions of AS 47.12 for an offense involving recklessness.  (As we have explained,  

                                                                                                 



     3    J.R. , 62 P.3d at 114.  



                                                               - 8 -                                                         2441
  


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

the defendant in             J.R.  was charged with second-degree murder under the theory that he   



acted with extreme or heightened recklessness - described by the statute as "extreme                                               



indifference to the value of human life".)   



                        We held that, given the circumstances of J.R.'s case, the jury should have  

                                                                  



been instructed to apply a lesser standard of care:   that J.R.'s degree of recklessness  

                                                                                             



 should have been evaluated "against the standard of a reasonable person of his age,  

                                  



intelligence, and experience", rather than against an adult standard.  62 P.3d at 119.  



                        Our  decision  in J.R.  was  in  line  with  the  mainstream  view  in  juvenile  

                                                                                                                          



delinquency and tort cases.  As we noted in J.R. , courts from other states have likewise  

                                                                                                           



concluded that, in juvenile delinquency proceedings, a minor's degree of recklessness  

                                  



 should normally be assessed against the degree of care reasonably expected of minors,  

                                                                 



not the degree of care reasonably expected of adults.  Id. at 117-18.  



                        But  Waterman  was  not  prosecuted  as  a  delinquent  minor.    She  was  

                                



prosecuted as an adult, because the Alaska legislature has expressly declared that when  

                          



a person is charged with murder (or one of several other serious felonies), adult criminal  



responsibility begins at age 16 rather than age 18.  See AS 47.12.030(a).  



                        Waterman does not challenge the legislature's authority to fix the age at  

which  adult  criminal  responsibility  begins. 4  

                                                                                     She  concedes  that  she  was  properly  



                                                                                                    

prosecuted for criminally negligent homicide as an adult. She argues, however, that even  



though she was properly prosecuted for criminally negligent homicide as an adult, the  



jury should have been instructed to apply a special definition of this offense.  More  



      4     On this issue, see this Court's decision in Nao v. State , 953 P.2d 522, 524-26 (Alaska                           



App.  1998).    See  also  the  recent  decision  of  the  Illinois  Court  of  Appeals  in  People  v.  

Harmon , __ N.E.2d __, 2013 WL 5783384 at *10-15 (Ill. App. 2013) (discussing this issue  

in the context of United States Supreme Court decisions acknowledging the recent scientific  

research into adolescent brain development).  



                                                                       - 9 -                                                                   2441
  


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

specifically, Waterman argues that our decision in J.R. required the superior court to  

                                    



apply a special definition of criminal negligence because of Waterman's youth.   



                    There is surprisingly little authority on the question of whether different  



culpable mental states should apply when a young person is prosecuted as an adult. The  



only published decision we (or the parties) could find is the decision of the Arizona  

                        



Court of Appeals in State v. Oaks, 104 P.3d 163, 165-67 (Ariz. App. 2004).  However,  

                                                                                     



we believe that the general approach taken by the Arizona court is correct.  



                    The decision in Oaks rests on two underlying principles:  the principle that  

                                                                



the legislature has the authority to determine the scope of adult criminal responsibility,  

                                  



and the principle that the legislature has the authority to define crimes.  Oaks, 104 P.3d  

                                                                                                                   



at 165.  Based on these principles, the Arizona court concluded that the issue presented  

                                    



- identifying which standard of care should apply when a teenager is prosecuted for a  

                       



serious felony as an adult - was ultimately a question of legislative intent.  Ibid .  



                    The  Arizona  court  then  concluded,  based  on  the  pertinent  legislative  

                                                                                           



history, that when Arizona law declared that juveniles older than a certain age "shall be  

                                                                                                   



prosecuted as adults" for murder and other violent felonies, this meant that juvenile  



defendants were to be held to a normal adult standard of care when a jury assessed the  

                                                                                            



defendant's recklessness.  Id. at 166.  



                    Our statute, AS 47.12.030(a), is worded in a similar fashion:  it declares that  

                                                                                               



when a person 16 years of age or older is indicted for murder, the delinquency laws  



do not apply, and that person "shall be charged, ... prosecuted, [and] sentenced ... in the  

                                                                                             



same manner as an adult."   



                    The legislative history of this statute and its predecessor, former AS 47.- 



10.010(e), show that the legislature was concerned by the number of violent crimes  



committed by juveniles and the apparent failure of the existing juvenile delinquency  



                                                           - 10 -                                                       2441
  


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

procedures "to provide the convincing threat of punishment necessary to deter juvenile  



                                                                                      5  

 [offenders] from evolving into hardened criminals".     



                                                                                           

                      Based on these concerns, our legislature has, over the past twenty years,  



                                                                    

gradually narrowed the coverage of the juvenile delinquency laws and increased the  



                                                                              

scope of adult criminal prosecution for felonies involving violence - including felonies  



                                                                                                                                      6 

that hinge on proof of the defendant's recklessness, such as first-degree assault   and  



                                             7  

first-degree sexual assault.     



                                          

                      In her brief to this Court, Waterman notes that this legislative history does  



not contain any explicit discussion of whether, when a juvenile is prosecuted as an adult,  



                                                                                                 

the fact-finder should apply a normal adult standard of care or, instead, a less demanding  



juvenile standard of care when assessing the defendant's recklessness or negligence.  



Waterman  argues that the legislature's silence on this issue should be interpreted as  

                    



meaning  that  the  legislature  acquiesced  in  the  rule  that  this  Court  adopted  for  

                                                                                                              



delinquency proceedings in J.R. .  



                      But we believe this argument is flawed because it ignores a fundamental  



difference between the goals of the adult criminal justice system and the goals of the  



juvenile justice system.   



                      As this Court noted in State v. Morgan, 111 P.3d 360 (Alaska App. 2005),  



"[t]he juvenile justice system is premised on a parens patriae  theory - the concept that  



the State takes a benevolent attitude toward more youthful offenders because, generally,  

                                                                                                                



      5    See   the "Sponsor Memorandum" dated February 2, 1993 for Senate Bill 54 (18th                                        



Legislature) by Senator Rick Halford, and the undated "Letter of Intent" by House Judiciary                           

Chairman Brian Porter.  



      6    AS 11.41.200(a)(1).  



      7    AS 11.41.410(a)(1); see Reynolds v. State , 664 P.2d 621, 623-25 (Alaska App. 1983)  

                                                                                                     

(holding that a charge of first-degree sexual assault requires proof that the defendant acted  

                                                                                                

recklessly with regard to the victim's lack of consent).   



                                                                  - 11 -                                                              2441
  


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

a person under eighteen years of age does not have mature judgment and may not fully  

                                                                                                                       



realize the consequences of their acts."  Thus, "[t]he actions taken against a minor under  

                                           



the juvenile justice system are geared toward individual treatment and reformation".  111  

                    



P.3d at 365.  The criminal justice system, on the other hand, is geared toward different  

                                                                 



goals - in particular, the goals of general deterrence and community condemnation.  



Ibid .  



                    By enacting AS 47.12.030(a), the legislature removed a group of 16- and  

                                                                                                           



 17-year-old felony offenders from the "benevolent", individually focused treatment of  

                                                            



the  juvenile  justice  system,  and  made  them  subject  to  the  more  societally  oriented  

       



prosecution and punishment of the adult criminal justice system.   



                    In the juvenile justice system, where rehabilitation and special deterrence  



(i.e., individual deterrence) are paramount goals, it makes little sense to impose sanctions  

                                                                                       



on youthful defendants for failing to perceive and react to risks that we could not expect  

                                                                                                      



them to perceive in the first place.   



                    But in the criminal justice system, the punishment of people for negligent  



acts - that is, punishment for a failure to perceive a danger - is based primarily on  

                                                                                                                 



notions of community condemnation and general deterrence.  Negligence differs from  

                 



recklessness in that the actor is not punished for having a blameworthy state of mind  



(i.e., awareness and conscious disregard of a known risk).  Rather, the actor is punished  

                                                                  



for failing to perceive the risk, and thus failing to live up to societal expectations in  

                                                                                      



situations where the actor has a duty to take preventative or corrective action.   



                    In fact, one classic text on the criminal law, Perkins & Boyce's Criminal  

                                        



Law , takes the position that it is better to think of "negligence", not as a state of mind,  

                        



but rather as conduct:  "any conduct ... which falls below the standard established by law  



for  the  protection  of  others  against  unreasonable  risk  of  harm",  in  cases  where  the  



                                                             - 12 -                                                         2441
  


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

defendant has not acted with a blameworthy culpable mental state (i.e., acted inten- 

tionally, wantonly, or with conscious disregard for the rights or interests of others). 8  



                     Thus, the criminal justice standard for negligence is an objective one, based   



on the perceptions and conduct we would expect of a reasonable person.   



                     When the threshold age of criminal responsibility was uniformly 18 years  



(i.e., before the legislature lowered the age of criminal responsibility to 16 years for  

                                                                             



certain serious felonies), the law of negligence made no allowance for defendants whose  

                                                                                         



youthful age, or whose limited intelligence or experience, rendered them less capable of  

                                      



living up to society's expected standards.  All people older than 18 had to live up to the  



standard of care that one would expect a reasonable person to observe. We conclude that  

                                                                                                                



this principle remains unchanged, even though the age of adult criminal responsibility  

                       



is now 16 years for the serious felonies specified in AS 47.12.030(a).  



                     For these reasons, we reject Waterman's argument that our holding in J.R.  

                                                                                                              



governs  the  prosecution  of  youthful  offenders  for  crimes  of  negligence  in  the  adult  

               



criminal justice system.  



           Why  we  conclude  that  recent  advances  in  scientific  understanding  of  

           human brain development do not require a different result  



                     As  we  explained  earlier  in  this  opinion,  Waterman  presented  expert  

                                                                



testimony at her trial on the subject of human brain development. According to this  

                                                                                                                                



expert testimony, the prefrontal cortex - the portion of the human brain responsible for  

                                                                                         



planning,  the  ability  to  think  in  the  long-term,  and  the  ability  to  control  impulsive  

                                                       



behavior and risk-taking - generally does not become fully developed until a person is  

                                                                                                                             



around 25 years old. Thus, even though adolescents and young adults are just as capable  

                                                                                          



     8     Rollin M. Perkins & Ronald N. Boyce, Criminal Law (3rd edition 1982), p. 841.  



                                                                - 13 -                                                            2441
  


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

as  more  mature   adults  when  it  comes  to  perceiving  or  understanding  the  risks  that  



accompany certain behavior, they have a lesser ability to "appreciate" these risks - i.e.,  



a lesser ability to weigh those risks, assess the likely consequences, and stop themselves  

                                  



from engaging in risky behavior.  



                  (This research has already been discussed in several judicial opinions from  

                                             

around  the  country,  including  opinions  of  the  United  States  Supreme  Court. 9                             We  



ourselves summarized this research in Smith v. State, 258 P.3d 913, 919-920 (Alaska  



App. 2011).)   



                  Based on this research into the development of the human brain, Waterman  



argues that it is inconsistent with "all notions of a fair trial" - in other words, a denial  

                                                                                        



of due process - to preclude jurors from considering this information when a jury  



decides whether a teenager or young adult acted with criminal negligence.  



                  As  we  have  explained,  Waterman's  attorney  openly  argued  during  his  



summation (without objection) that the jurors should consider this information about  



human brain development when they decided whether Waterman acted with criminal  

                                                                                             



negligence in causing her mother's death.  



                  But criminal negligence is different from the extreme indifference to the  

                         



value of human life required for second-degree murder or the recklessness required for  

                                                                                      



manslaughter - because, unlike the definitions of extreme indifference and recklessness,  



the  definition  of  criminal  negligence  has  no  subjective  component.    Compare  AS  



11.81.900(a)(3) with AS 11.81.900(a)(4).  The jurors found that Waterman acted with  

                                                                                     



criminal  negligence  precisely  because  she  did  not  appreciate  the  substantial  and  



unjustifiable danger to her mother's life.   



     9   See  Roper v. Simmons , 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), and  



Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010).  



                                                       - 14 -                                                    2441
  


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

                    The issue in Waterman's case arises from the fact that, given our statutory  

                                                                                                        



definition of criminal negligence (i.e., a definition that does not require the State to prove  

                                                                                          



a defendant's awareness of the risk), the delayed development of the prefrontal cortex  



is not particularly relevant to the jury's assessment of this negligence.  Waterman is  



really arguing that, in light of our current understanding of human brain development,  



it is unconstitutional for the Alaska legislature (or any legislature) to define criminal  

                                 



negligence in such a way that young people under the age of 25 are held to the same  

                                                                                     



standard of care as adults who are 25 years of age or older.   



                    As we have already explained, the criminal law has traditionally defined  



negligence in such a way that individual variations in age, intellect, and life experience  

                                 



are not relevant to the question of whether a defendant acted with criminal negligence.  

                                                                                     



We therefore begin with the presumption that this traditional objective definition of  

       



negligence is constitutional.  



                    Conceivably, the matter is different when the variations in age, intellect,  

                                                



and life experience are not confined to individuals, but rather are found in entire groups  

                                                                              



of society - such as all people who have not yet reached their mid-twenties.   



                    But  it  is  important  to  note  that  scientists  do  not  claim  that  all  people  



younger than 25 have a reduced capacity to appreciate risks and control themselves.  The  

                                                                                  



research has given us only generalized descriptions of human brain development, not  

                                                             



reliable predictions about any particular individual's mental abilities.  



                    This fact was recognized by both the majority and the dissenters in the  

                                                                          



United States Supreme Court's decision in Roper v. Simmons .  Here is the discussion of  

                                                 



this point in the lead opinion:  



                      

                              The qualities that distinguish juveniles from adults do  

                                                                                          

                    not  disappear  when  an  individual  turns  18.  By  the  same  

                                                          

                    token,  some  under  18  have  already  attained  a  level  of  

                    maturity some adults will never reach.  



                                                             - 15 -                                                         2441
  


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

Roper , 543 U.S. at 574, 125 S.Ct. at 1197.  And here is the corresponding discussion in  

                                                                              



Justice O'Connor's dissent:  



                     

                             [A]t the margins between adolescence and adulthood  

                                          

                    ... the relevant differences between "adults" and "juveniles"  

                                          

                    appear to be a matter of degree, rather than of kind.  

                             .  .  .  



                    Chronological           age     is   not     an     unfailing       measure        of  

                   psychological           development,           and     common          experience  

                    suggests that many 17-year-olds are more mature than the  

                    average young "adult."  



Roper , 543 U.S. at 600-01, 125 S.Ct. at 1213-14.  



                    Moreover, even though scientific research now shows that young people  



under the age of 25 typically do not have the same mental faculties as more mature  



adults, this does not directly answer the question of whether these young people should  

                                                                        



be held to the same standard of care as more mature adults when, in a criminal case, a  

                                                           



jury must decide whether they acted negligently.  



                    Our criminal law has many aims (see the goals listed in AS 12.55.005), and  

                                              



the law's definitions of crimes and defenses often represent a balancing of competing  



interests.   



                    For instance, it is widely understood that many crimes are the product of  



intoxication - in the sense that these offenses are committed by people who would not  

                                                                          



engage  in  such  acts  if  they  were  sober.    But  for  reasons  of  social  policy,  our  law  

                                           



generally does not allow defendants to argue that they should be held blameless because  

                                     



they were intoxicated.  



                    Indeed, in Alaska's current criminal code, the legislature has expressly  



declared that voluntary intoxication is no defense to an allegation that a defendant acted  

                                                                                                      



                                                          - 16 -                                                      2441
  


----------------------- Page 17-----------------------

"knowingly" or "recklessly" with respect to a circumstance or a risk.  See AS 11.81.- 

                                                                



900(a)(2) and (a)(3).  And this Court has expressly upheld the constitutionality of these  

                                  



statutes.   



                    (See Neitzel v. State , 655 P.2d 325, 330-31 (Alaska App. 1982), where we  

                                                    



upheld the legislature's decision to define "knowingly" in a manner that precludes any  



potential assertion of lack of knowledge due to voluntary intoxication, and Abruska v.  

                             



State, 705 P.2d 1261, 1264-66 (Alaska App. 1985), where we upheld the legislature's  

                                                                                         



decision to define "recklessly" in a manner that precludes any potential assertion that the  

                                                                                                         



defendant lacked awareness of the risk due to voluntary intoxication.)  



                    More generally, the legislature is empowered to define criminal offenses  



in  ways  that  relieve  the  government  from  proving  certain  factors,  or  that  eliminate  

                                                                                           



potential defenses, or that place the burden of proving exculpating circumstances on the  

                                                                    



defendant.  We discussed this area of the law in Steve v. State, 875 P.2d 110, 118-19  



(Alaska App. 1994), a case in which we held that it was constitutional for the Alaska  

                                                                                                            



legislature to define sexual abuse of a minor ("statutory rape") in a manner that placed  



the burden on the defendant of proving that they acted under a reasonable mistake as to  

                      



the victim's age.    



                    In Steve, we explained that when a factor raised by the defense does not  



negate an element of the crime, but instead provides a mitigation, justification, or excuse  



for the crime,  



                      

                    [the] burden of proof [on this factor] is not constitutionally  

                                                                                

                    compelled but can be selected on policy grounds.  See Martin  

                                                                                                   

                    v.  Ohio,  480  U.S.  228,  107  S.Ct.  1098,  94  L.Ed.2d  267  

                    (1987) (the defendant can be made to prove self-defense by  

                    a preponderance of the evidence); Patterson v. New York , 432  

                    U.S.   197,  97  S.Ct.  2319,  53  L.Ed.2d  281  (1977)  (the  

                                           

                    defendant  can  be  made  to  prove  heat  of  passion  by  a  

                    preponderance of the evidence); Leland v. Oregon , 343 U.S.  

                                            



                                                            - 17 -                                                       2441
  


----------------------- Page 18-----------------------

                    790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952) (the defendant can  

                    be made to prove insanity beyond a reasonable doubt).  



Steve, 875 P.2d at 119.  



                                                                                                 

                    And as this Court has observed, the United States Supreme Court "has  



                                                                                                           

repeatedly held that legislatures have considerable latitude in defining what facts are  



                                                   10  

                                                                                                              

necessary to constitute [a] crime."                    For instance, this Court held in Lord v. State , 262  



P.3d 855, 861-62 (Alaska App. 2011), that it was constitutionally permissible for the  



Alaska legislature to define murder in such a way that a defendant's mental capacity to  

                                                                                                     



appreciate the wrongfulness of their conduct was not an element of the crime.  Similarly,  



in  Hart  v.  State ,  702  P.2d  651,  655-59  (Alaska  App.  1985),  we  held  that  it  was  

                                                                                                       



constitutionally permissible for the legislature to declare that a defendant's ability to  



conform their conduct to the requirements of law is not an element of any crime.   



                    The underlying basis of this principle is explained in Powell v. Texas :  



                      

                    The  doctrines  of  actus  reus,  mens  rea,  insanity,  mistake,  

                   justification, and duress have historically provided the tools  

                    for a constantly shifting adjustment of the tension between  

                    the evolving aims of the criminal law and changing religious,  

                    moral,  philosophical,  and  medical  views  of  the  nature  of  

                    man[.]  



392 U.S. 514, 536; 88 S.Ct. 2145, 2156; 20 L.Ed.2d 1254 (1968) (plurality opinion).   



                    See also Walker v. Endell, 850 F.2d 470, 473 (9th Cir. 1987); United States  

                                                                         



v. Lyons , 731 F.2d 243, 246 (5th Cir. 1984) (en banc) ("[W]hat definition of 'mental  

                                                                                                                 



disease or defect' is to be employed by courts enforcing the criminal law is, in the final  

                                                                                    



     10   Lawson v. State , 264 P.3d 590, 596 (Alaska App. 2011), citing Schad v. Arizona , 501  



U.S. 624, 638; 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991) (plurality opinion), and                                Patterson v.  

New York , 432 U.S. 197, 210-11; 97 S.Ct. 2319; 53 L.Ed.2d 281 (1977).  



                                                           - 18 -                                                       2441
  


----------------------- Page 19-----------------------

analysis, a question of legal, moral and policy - not of medical - judgment."); United  



States v. Mitchell, 725 F.2d 832, 835 (2nd Cir. 1983).  



                    Returning to the question of criminal negligence, Alaska's criminal law has  

                                                                                                        



traditionally required all people 18 years or older to adhere to an adult standard of care.  

                                                             



When the legislature enacted AS 47.12.030(a), that threshold age was lowered to 16  

                 



years in certain circumstances.  Now, scientific research suggests that there might be  

                         



good reason to raise that threshold age to as high as 25 years.  But that change would  

                                                                           



have significant consequences for the operation of the criminal law as a societal tool.  

                                                                                  



Under our system of government, such matters are entrusted to the legislature, and the  

                                                                            



constitution does not require a particular result.  



                    This is not to say that a defendant's youth is irrelevant to their degree of  



blameworthiness, or to their prospects for rehabilitation as they grow older.  Sentencing  

                                                                                      



judges can properly take this factor into account when deciding what sentence a youthful  

                                                                      



offender should receive, and the Parole Board can likewise consider this factor when  



deciding  whether  to  grant  discretionary  parole  to  an  offender  whose  crime  was  



committed when they were young.   



                    But the question in Waterman's case is whether the constitution forbids the  



legislature from defining the concept of criminal negligence as a uniform standard that  



applies to  older  teenagers and  young  adults, even  though  we know  that full  mental  

                                                                                                              



development generally does not occur until a person's mid-twenties.   



                    As the United States Supreme Court acknowledged in Roper v. Simmons ,  

                                                                          



any legislative attempt to define the threshold of criminal responsibility based on age  

"is subject ... to the objections always raised against categorical rules." 11 

                                                                                                          But these rules  



                                                                         

are a traditional aspect of our law.  And there are strong policy reasons for drawing the  



line in this fashion - rather than requiring courts and juries to engage in case-by-case  



     11   543 U.S. at 574, 125 S.Ct. at 1197.  



                                                           - 19 -                                                      2441
  


----------------------- Page 20-----------------------

litigation of whether a particular defendant has reached a stage of mental development  



where society should subject them to the normal rules of criminal responsibility.   



                  We therefore hold that Alaska's uniform definition of criminal negligence  

                                                                                             



is constitutional.  



         Conclusion  



                  For the reasons explained in this opinion, we conclude that Waterman was  



properly held to an adult standard of care when the jury assessed whether she acted with  

                                                                                                           



criminal negligence in causing the death of her mother.  The judgement of the superior  

                                                                               



court is AFFIRMED.  



                                                       - 20 -                                                    2441
  

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