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State v. Strane (1/10/2003) sp-5655
State v. Strane (1/10/2003) sp-5655
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Supreme Court No. S-10033
Petitioner, )
) Court of Appeals No. A-7014
v. ) District Court No. 3AN-98-887
CR
)
PATRICK STRANE, ) O P I N I O N
)
Respondent. ) [No. 5655 - January 10,
2003]
)
Petition for Hearing from the Court of
Appeals of the State of Alaska, on Appeal
from the District Court, Third Judicial
District, Anchorage, John R. Lohff, Judge.
Appearances: Kenneth M. Rosenstein,
Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau,
for Petitioner. Quinlan Steiner, Assistant
Public Defender, and Barbara K. Brink, Public
Defender, Anchorage, for Respondent.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
BRYNER, Justice.
I. INTRODUCTION
Patrick Strane was charged with violating a domestic
violence protective order after police found him driving in a car
with D.A., who had recently obtained an order prohibiting Strane
from having contact with her. Strane claimed to have acted under
the belief that the order would not apply if D.A. consented to
the contact. But the district court precluded Strane from
asserting this belief at trial, ruling as a matter of law that
D.A.'s conduct had no effect on the protective order's
requirements and that Strane's mistaken belief to the contrary
was not a defense. The court then found Strane guilty. The
question now presented is whether Strane was entitled to a
defense based on his mistaken belief that the no-contact order
was inapplicable. Because Alaska law provides that a protective
order's no-contact requirements apply regardless of the protected
person's willingness to have contact, we conclude that the
district court properly barred Strane's claim as an impermissible
mistake-of-law defense.
II. FACTS AND PROCEEDINGS
D.A. obtained a twenty-day domestic violence protective
order prohibiting Patrick Strane from being in her physical
presence or telephoning, contacting, or otherwise communicating
with her, directly or indirectly. Two weeks later, a police
officer stopped Strane's car for speeding and found D.A. in the
car with Strane. Strane said that D.A. had contacted him and
that Strane believed he was allowed to have contact with her if
she consented. Strane was nonetheless charged with violating the
protective order in violation of AS 11.56.740(a).
On the morning of trial, the state moved to exclude any
evidence that Strane might offer to establish his belief that the
protective order did not prohibit consensual contact. The state
argued that mistake of law was not a defense to the offense.
District Court Judge John R. Lohff granted the state's motion,
barring Strane from claiming innocence on the basis of his
mistaken belief that D.A.'s willingness to have contact with him
overrode the no-contact order's provisions.
Given this ruling, Strane waived his right to a jury
trial and agreed to submit the case to Judge Lohff for decision
on essentially the following facts:
1. A twenty-day protective order that
prohibited Strane from being in the presence of or
having contact with D.A. was issued against him on
January 21, 1998;
2. The protective order was properly served
upon and read to him by a police officer on
January 28, 1998;
3. D.A. telephoned Strane and asked him to pick her
up;
4. On February 2, 1998, Strane was stopped for
speeding;
5. At the time he was stopped, D.A. was a passenger
in his car;
6. Strane understood that the protective
order prohibited him from contacting D.A., but he
did not realize it also prohibited him from being
in her "mere presence."
Judge Lohff found Strane guilty of violating the order, rejecting
his claim that the state had the burden of proving that he knew
that his conduct was unlawful.
The court of appeals reversed Strane's conviction,
ruling that the district court had erroneously construed the
statute defining the offense of violating a domestic violence
restraining order - AS 11.56.740(a) - as creating a strict
liability offense.1 We vacated the court of appeals's opinion
and remanded the case, directing that court to focus more
narrowly on the propriety of the specific defense proposed by
Strane in light of the undisputed facts in his stipulation.2
On remand, the court of appeals again reversed Strane's
conviction, concluding that Strane had a right to present a
defense alleging that he made a good faith mistake as to how
D.A.'s consent affected his no-contact order.3 We granted the
state's petition for hearing to consider this ruling.
III. DISCUSSION4
Paragraphs (1) - (7) of AS 18.66.100(c) allow a
protective order issued in response to a domestic violence
petition to restrict the respondent's contact with the petitioner
in seven ways.5 A separate criminal provision, AS 11.56.740(a),
makes it a crime to violate these restrictions; at the time of
Strane's alleged offense, AS 11.56.740(a) defined the crime as
follows: "A person commits the crime of violating a protective
order if the person is subject to a protective order containing a
provision listed in AS 18.66.100(c)(1) - (7) and knowingly
commits or attempts to commit an act in violation of that
provision."6 The heart of the controversy in this case is
AS 11.56.740(a)'s language allowing a person to be convicted of
violating a protective order only if that person "knowingly
commits . . . an act in violation of [AS 18.66.100(c)(1) - (7)]."
The court of appeals called this language "irresolvably
ambiguous" and thoughtfully analyzed the ambiguity's
implications.7 The court began by describing two equally
plausible meanings suggested by subsection .740(a)'s use of
"knowingly": either the word refers solely to conduct, requiring
only that the defendant act knowingly with respect to the conduct
that constitutes the offense, or it refers to both the person's
conduct and the circumstances that make the conduct unlawful,
requiring that the person act knowingly and with knowledge that a
no-contact order applies to that action.8
To resolve this ambiguity, the court of appeals turned
to the principle of lenity - a maxim of statutory construction
holding that "statutes imposing criminal liability should be
construed narrowly."9 Reading subsection .740(a) narrowly in
keeping with this principle, the court interpreted the statute's
declaration that a defendant must "knowingly" commit an act in
violation of a no-contact order as requiring the state to prove
that Strane knowingly had contact with D.A. and, in doing so,
knowingly disregarded the fact that his conduct violated the
protective order.10
The court then addressed how this interpretation
affected Strane's right to present a defense based on his
mistaken belief that the protective order allowed consensual
contact. The court started by considering the criminal code's
provision defining "knowingly."11 Under this provision, "a person
acts `knowingly' with respect to conduct or to a circumstance" if
the person "is aware of a substantial probability of [the
circumstance's] existence, unless the person actually believes it
does not exist."12 Applying this definition, the court concluded
that "the State must prove that Strane . . . was aware of a
substantial probability that his conduct violated the order,
unless Strane actually believed that his conduct did not violate
the order."13 And because this culpable mental state requirement
would be defeated if Strane proved that he had genuinely believed
that he was allowed to have consensual contact with D.A., the
court of appeals ruled that the trial court erred in denying him
the opportunity to present this defense:
[B]ecause we have construed AS 11.56.740(a)
to require proof that a defendant acted
"knowingly" with regard to the circumstance
that their conduct violated the protective
order, Strane can potentially defend on the
basis of a good-faith mistake concerning the
terms of the protective order, even if that
mistake was objectively unreasonable.[14]
The court of appeals thus reversed Strane's conviction.
The state urges us to reverse the court of appeals's
ruling and to hold that subsection .740(a)'s requirement of
knowing action applies only to the conduct element of the
offense, not to its surrounding circumstances - that the offense
only requires knowing action, not a subjective awareness of the
prohibited nature of those actions. In response, Strane urges us
to affirm the court of appeals's conclusion that the crime of
violating a protective order can be committed only by a person
who knowingly engages in prohibited actions and knows that those
actions are prohibited.
In our view, however, the correct interpretation of
subsection .740(a) lies somewhere between these opposing
positions. As already mentioned, during the time at issue here
subsection .740(a) provided that the crime of violating a
protective order occurred when a "person is subject to a
protective order . . . and knowingly commits or attempts to
commit an act in violation of [a no-contact provision included in
the order]."15 The court of appeals recognized that this
definition comprises three necessary elements: prohibited
conduct, an inculpating circumstance, and a culpable mental
state.16 The conduct element requires proof of contact between a
person who is subject to a domestic violence protective order and
the person ostensibly protected by that order; the inculpating
circumstance element requires proof of a valid order containing a
no-contact provision that prohibits this contact; and the
culpable mental state requirement requires the crime to be
committed "knowingly."
Under subsection .740(a)'s plain terms, the conduct
element of the crime must be committed while the inculpating
circumstance is present - the defendant must be "subject to" the
protective order. But the scope of the culpable mental state
requirement is ambiguous: it might attach only to the conduct
element or it might also extend to the circumstance element.
Invoking the rule of lenity, the court of appeals extended the
culpable mental state requirement to both aspects of the offense.17
We agree with this part of the court's ruling and affirm it.
But having decided to extend subsection .740(a)'s
culpable mental state to the surrounding circumstances of the
offense, the court of appeals reasoned that this extension meant
that "the State would have to prove that Strane `knowingly'
disregarded the fact that his conduct violated the protective
order."18 We disagree with this part of the court's ruling
because, in our view, it oversimplifies the circumstance element
of the disputed offense.
As defined in subsection .740(a) at the time of
Strane's offense, the circumstance element of the crime of
violating a protective order required proof of at least three
distinct circumstances: (1) the existence of a valid restraining
order applicable to the defendant and the alleged victim; (2) the
existence in the restraining order of at least one of the seven
no-contact restrictions listed in AS 18.66.100(c)(1) - (7); and
(3) the inclusion in at least one of these listed restrictions of
a prohibition covering the specific contact that the defendant
allegedly committed.19 Thus, a culpable mental state element
requiring Strane to "knowingly" disregard the circumstances
surrounding his conduct might mean at least three different
things: (1) that Strane had to know that a valid restraining
order existed and named him as its subject; (2) that he also had
to know of the order's contents - in other words, that he had to
be on notice of the relevant no-contact provision; or (3) that,
beyond knowing of the order's existence and contents, Strane had
to understand its meaning and effect as applied to his conduct -
that is, that Strane had to realize that the order prohibited his
actions. In concluding that subsection .740(a) required Strane
to act knowingly with respect to the inculpating circumstances of
his conduct, the court of appeals found this third meaning
applicable: to be convicted, the court ruled, Strane had to
realize that his conduct violated the protective order.20 But the
court failed to explain why it adopted this meaning; indeed it
did not recognize any other possible meaning. And compelling
reasons weigh against the meaning it selected.
Perhaps the most prominent reason against construing
subsection .740(a) to require actual knowledge of illegality
resides in a sister provision to this subsection, AS 18.66.130,
which expressly provides that a petitioner's consent to have
contact with a respondent neither waives nor nullifies any
provision in a protective order:
(a) If a respondent in a protective
order issued under AS 18.66.100 _ 18.66.180
is prohibited from communicating with the
petitioner, excluded from the residence of
the petitioner, or ordered to stay away from
the petitioner as provided in AS
18.66.100(c)(2) - (5), an invitation by the
petitioner to communicate, enter the
residence or vehicle, or have other
prohibited contact with the petitioner does
not waive or nullify any provision in a
protective order.[21]
Enacted as part of the Domestic Violence Prevention and Victim
Protection Act of 1996, this provision expressly limits the scope
of defenses that might otherwise be available under AS
11.56.740(a).
Furthermore, by specifying that consent has no effect
on a no-contact order, AS 18.66.130(a) activates another
important provision of law, AS 11.81.620(a). This statute limits
the effect that mistake or ignorance of the law can have on
criminal liability: it prohibits courts from interpreting a
provision defining a crime to require proof of "[k]nowledge,
recklessness, or criminal negligence as to whether conduct
constitutes an offense . . . unless the provision of law clearly
so provides."22 Under the limiting effects of this ignorance-of-
law provision, AS 11.56.740(a)'s ambiguous phrase "knowingly
commits or attempts to commit an act in violation of [a
protective order]," cannot be construed to require proof that
Strane understood that his conduct constituted an offense. This
conclusion follows because the mistake-of-law statute
categorically forbids adopting this meaning "unless the provision
of law clearly so provides";23 and because subsection .740(a)'s
definition of the culpable mental state for violating a
restraining order is, in the court of appeals's own words,
"irresolvably ambiguous,"24 the statute's reference to knowing
conduct certainly does not "clearly provide" for knowledge of
illegality. The defense Strane sought to raise below - his
mistaken belief concerning the effect of D.A.'s consent - thus
falls squarely within AS 11.81.620(a)'s definition of a
prohibited claim of ignorance of the law.
A recent court of appeals decision nicely illustrates
this point, albeit in a slightly different statutory context. In
Busby v. State, the defendant was convicted of driving while his
license was revoked.25 The court of appeals had previously held
that the statute defining the crime of driving while license
revoked required proof of criminal negligence as to the chief
inculpating circumstance of the offense - the revoked status of
the license.26 Like Strane, who admitted knowing that a no-
contact order existed at the time of his alleged offense, Busby
acknowledged knowing that his Alaska license was suspended.27 But
Busby sought to defend himself based on his mistaken belief that
an international driver's license he had subsequently obtained
overrode the Alaska suspension and allowed him to drive.28 In
affirming the trial court's refusal to allow Busby to present
this defense, the court of appeals explained:
Busby admittedly knew that the State of
Alaska had revoked his driver's license.
That license revocation was what prompted
Busby to research the law concerning
international driving permits and the United
Nations Convention on Road Traffic. Rather
than claiming ignorance of his license
revocation, Busby wanted to tell the jury
about his understanding of the legal effect
of that revocation. He wished to testify
that, based on his legal research, he
believed that his international driving
permit entitled him to drive in Alaska
despite the fact that his license was
revoked.
AS 11.81.620 declares that a
defendant's "knowledge, recklessness, or
criminal negligence as to the . . . meaning
. . . or application of the provision of law
defining an offense . . . is not an element
of [the] offense unless the provision of law
clearly so provides." AS 28.15.291(a), the
statute defining the crime of driving with a
suspended or revoked license, does not
specify that the government must prove
anything about the defendant's subjective
understanding of the effect or scope of the
license suspension or revocation. Instead,
the government must prove that the defendant
knew or should have known that the suspension
or revocation had occurred. Therefore, it
was irrelevant whether Busby had researched
the Convention on Road Traffic, and it was
likewise irrelevant whether Busby had
mistakenly concluded, based on this research,
that his international driving permit
authorized him to drive in Alaska despite the
fact that his Alaska license was revoked.[29]
For almost identical reasons, Strane's subjective
understanding of the effect or scope of the protective order's no-
contact restriction was likewise irrelevant. It does not matter
whether Strane mistakenly concluded - for whatever reason - that
the no-contact order was inapplicable to his conduct; what
matters according to Busby is Strane's admitted awareness of the
restraining order's existence and contents.
The court of appeals's opinion in Strane nevertheless
suggested that the court thought a different rule applies to
mistake-of-law claims in cases involving disregard for judicial
orders.30 This suggestion is embedded in Strane's discussion of
an earlier court of appeals precedent, Russell v. State.31 Mavis
Russell had been subpoenaed to testify in a criminal trial and
was charged with contempt after failing to appear.32 She claimed
at trial that she had believed the subpoena to be invalid.33 In
discussing this defense, the court of appeals in Russell observed
that "[t]he essence of Russell's argument appears to be a claim
of mistake of fact."34 But in Strane, the court questioned
Russell's characterization, commenting that "[o]ne might
plausibly argue that Russell's defense amounted to a claim of
`mistake of law.' "35 The court in Strane then construed Russell
to stand for the proposition that "questions as to what conduct
is required or prohibited by a court order are treated as
questions of fact."36 But this interpretation of Russell is
overly broad, for Russell's characterization of the defense at
issue there hinged on the unique facts of that case.
The subpoena at issue in Russell had originally ordered
Mavis Russell to appear on January 12.37 Without notifying
Russell, the trial court canceled the January date and continued
the trial until March.38 Despite this cancellation, however, the
court ordered the January 12 subpoenas to remain in effect, and
Russell was later charged with contempt for failing to appear
that day.39 In the ensuing contempt trial, Russell attributed her
failure to appear to a mistake that occurred because she learned
that the trial had been continued but was never notified of the
order keeping the original subpoenas in effect.40 Given these
circumstances, the dispute in Russell turned on Russell's lack of
notice of the intervening order - a mistake involving a true
question of fact - rather than her understanding of the original
subpoena's meaning and effect. Thus, we do not read Russell to
suggest that the usual rule precluding defenses based on
ignorance of the law must be relaxed in prosecutions for
violating judicial orders.
Nor does precluding Strane's mistake-of-law defense
create a constitutional problem. The court of appeals did not
act out of constitutional necessity when it selected "knowingly"
as the culpable mental state that applies to the circumstance
element for the crime of violating a protective order.41 Instead,
it selected this standard only because the word "knowingly"
appeared in the text of the statute then defining the offense.42
Strane now claims that this culpable mental state is
constitutionally mandated. Yet Strane cites no cases suggesting
that due process requires courts to recognize claims of legal
ignorance when they arise solely from the defendant's failure to
understand an order whose meaning and effect are unambiguously
spelled out by statute.
The closest Strane comes to a relevant precedent is
Hentzner v. State.43 But Hentzner's holding is unremarkable.
Harry Hentzner had solicited money to develop gold mining claims,
promising to repay the investments with gold from his claims.44
He was convicted of selling unregistered securities under former
AS 45.55.210(a), which provided that a "wilful violation" of the
Securities Act was a felony.45 The registration statute at issue
relied on a definition of "security" that listed numerous
undefined types of instruments and transactions, that ultimately
encompassed "any interest or instrument commonly known as a
`security,' " and that had been construed as looking to federal
securities law for a source of more precise definitional
guidance.46 Hentzner's charge was based on the theory that he had
offered and sold an "investment contract," as that term was used
in this definition.47
The trial judge told Hentzner's jury that Hentzner did
"not have to intentionally violate the law; he (did) have to
intentionally do the acts which are prohibited by law."48 We
reversed. Noting that the conduct regulated by the Securities
Act is malum prohibitum, that the act regulates extremely
complicated commercial transactions, and that Hentzner's offenses
were felonies carrying maximum terms of twenty years, we
concluded that the statutory requirement of a "wilful violation"
required something "more than mere conscious action."49 We thus
relied on contemporaneous federal cases construing similar
securities statutes to hold that "in securities crimes prosecuted
under statutes similar in structure to AS 45.55.210(a), `wilful'
requires awareness of wrongdoing as an essential element of the
offense."50 But while recognizing the "awareness of wrongdoing"
standard as one that would certainly pass constitutional muster,
we stopped short of holding that this particular culpable mental
state was constitutionally necessary.51
Moreover, even if Hentzner had purported to adopt
"awareness of wrongdoing" as a standard that was constitutionally
mandated in the particular setting at issue there, that standard
would not apply here, for Strane's case is distinguishable from
Hentzner's in at least two ways. The first point of distinction
involves the practical issue of notice. Before being prosecuted,
Hentzner had received no prior warning or notice that he needed
to comply with the requirements of the Securities Act; and even
had he received such notice, the complexity of the act's
regulatory regime and its intricate, abstract definition of
securities would have made it extremely difficult for any
reasonable person to confidently predict how the act might apply
to Hentzner's activities. In stark contrast to Hentzner's
situation, though, Strane received specific notice of his
continuing obligation to comply with the domestic violence
restraining order and was explicitly notified of the order's
contents - its facially clear and unqualified no-contact
provisions. Had he bothered to check, moreover, Strane would
have discovered black-letter law unambiguously confirming the
order's literal meaning and scope. In these circumstances, then,
knowledge of the order's existence and contents seems a fair
substitute for Hentzner's "awareness of wrongdoing" requirement.
The second feature distinguishing Strane's case from
Hentzner is the complete absence of precedent here. As noted
above, Hentzner drew its "awareness of wrongdoing" test from a
significant body of federal precedent addressing similar
violations prosecuted under nearly identical securities laws.
Yet here, by contrast, Strane cites no comparable case, let alone
any line of case law, adopting subjective awareness of wrongdoing
as a necessary or appropriate culpable mental state for a person
accused of violating a domestic violence restraining order's no-
contact provisions. We know of no decision from the domestic
violence arena supporting Strane's position. And as the court of
appeals observed in Strane, courts ruling in the analogous area
of criminal contempt routinely apply a culpable mental state of
reckless disregard, a standard less demanding on the prosecution
than consciousness of wrongdoing, and one that does not permit
defenses based on either a pure mistake of law or a good faith
but unreasonable mistake of fact.52
In summary, then, the court of appeals ruled correctly
insofar as it interpreted AS 11.56.740(a) as requiring the state
to prove that Strane's actions were knowing, that he knew of the
restraining order's existence, and that he was aware of its
literal requirements. But the court erred in requiring the state
to go further by proving that Strane also knew that his conduct
violated the law - that he actually understood that the
protective order's requirements applied to his actions regardless
of D.A.'s consent and that his conduct therefore violated the
protective order. As explained above, AS 18.66.130(a) precludes
this interpretation by establishing as a matter of law that a
respondent's consent has no legal effect on the requirements of a
no-contact order. And under AS 11.81.620(a), Strane cannot claim
ignorance of AS 18.66.130(a) as a defense to his charge, since
the statutory definition of violating a protective order -
AS 11.56.740(a) - contains no clear legislative directive
allowing that defense.
We thus hold that AS 11.56.740(a) did not require the
state to prove Strane's actual knowledge of illegality; instead,
the statute's culpable mental state requirement as to the
surrounding circumstances of the offense could be met by showing
that Strane knew of the restraining order's existence and
contents and that, so knowing, he recklessly disregarded a
substantial and unjustifiable risk that his conduct was
prohibited by the order. Since ignorance of the law is not a
defense under this culpable mental state requirement, it follows
that the district court did not err in precluding Strane from
presenting his ignorance of law defense; and since Strane's
recklessness as to the illegality of his conduct could readily be
inferred from his admitted knowledge of the order's existence and
contents, the stipulated evidence supports the district court's
judgment of conviction.
IV. CONCLUSION
For these reasons, we REVERSE the court of appeals's
decision and AFFIRM the district court's judgment of conviction.
_______________________________
1See State v. Strane, Mem. Op. & J. No. 0935 at 2-3 (Alaska,
September 22, 1999) (vacating Strane v. State, 981 P.2d 122
(Alaska App. 1999), withdrawn, 1999 WL 378740 (Alaska App.
1999)).
2Id. at 4.
3See Strane v. State, 16 P.3d 745, 752 (Alaska App. 2001).
4We review questions of statutory construction de novo. Todd v.
State, 917 P.2d 674, 677 (Alaska 1996). When interpreting
statutes, we use the statutory language as our "primary guide."
Commercial Fisheries Entry Comm'n v. Apokedak, 680 P.2d 486 489-
90 (Alaska 1984). We also consider collectively statutes
addressing common subject matter, reading them "as a whole in
order that a total scheme evolves which maintains the integrity
of each act and avoids ignoring one or the other." Hafling v.
Inlandboatmen's Union of Pacific, 585 P.2d 870, 878 (Alaska
1978).
5AS 18.66.100(c) provides, in relevant part:
A protective order under this section
may
(1) prohibit the respondent from
threatening to commit or committing domestic
violence, stalking, or harassment;
(2) prohibit the respondent from
telephoning, contacting, or otherwise
communicating directly or indirectly with the
petitioner;
(3) remove and exclude the respondent
from the residence of the petitioner,
regardless of ownership of the residence;
(4) direct the respondent to stay away
from the residence, school, or place of
employment of the petitioner or any specified
place frequented by the petitioner or any
designated household member;
(5) prohibit the respondent from
entering a propelled vehicle in the
possession of or occupied by the petitioner;
(6) prohibit the respondent from using
or possessing a deadly weapon if the court
finds the respondent was in the actual
possession of or used a weapon during the
commission of domestic violence;
(7) direct the respondent to surrender
any firearm owned or possessed by the
respondent if the court finds that the
respondent was in the actual possession of or
used a firearm during the commission of the
domestic violence[.]
6AS 11.56.740(a) was amended in 2002 to read:
A person commits the crime of violating a
protective order if the person is subject to
a protective order containing a provision
listed in AS 18.66.100(c)(1) - (7) and
knowingly commits or attempts to commit an
act with reckless disregard that the act
violates or would violate a provision of the
protective order.
7Strane, 16 P.3d at 747, 750-52.
8Id. at 750.
9Id. at 751 (quoting State v. ABC Towing, 954 P.2d 575, 579
(Alaska App. 1998)).
10Id. at 752.
11Id. (discussing AS 11.81.900(a)(2)'s definition of "knowingly").
12AS 11.81.900(a)(2) defines the mental state of "knowingly":
[A] person acts "knowingly" with
respect to conduct or to a circumstance
described by a provision of law defining an
offense when the person is aware that the
conduct is of that nature or that the
circumstance exists; when knowledge of the
existence of a particular fact is an element
of an offense, that knowledge is established
if a person is aware of a substantial
probability of its existence, unless the
person actually believes it does not exist; a
person who is unaware of conduct or a
circumstance of which the person would have
been aware had that person not been
intoxicated acts knowingly with respect to
that conduct or circumstance[.]
13Strane, 16 P.3d at 752.
14Id.
15AS 11.56.740(a).
16See Strane, 16 P.3d at 749-50 (explaining the culpable mental
state required when a statute makes conduct criminal only under
certain circumstances).
17Id. at 752.
18Id. at 750. Relying on the statutory definition of "knowingly,"
AS 11.81.900(a)(2), the court of appeals also observed that the
state could alternatively prove "that Strane was aware of a
substantial probability that his conduct violated the order,
unless Strane actually believed that his conduct did not violate
the order." Id. at 752. Because this aspect of the statutory
definition has no bearing on our decision, we need not discuss it
here.
19See AS 11.56.740(a).
20Strane, 16 P.3d at 752.
21AS 18.66.130(a). AS 18.66.130 also requires a protective order
to expressly state in bold-face type that a petitioner's
invitation "does not in any way invalidate or nullify the order."
AS 18.66.130(d)(2). In keeping with this requirement, the
protective order issued against Strane contained the bold-faced
warning: "If you are ordered to have no contact with the
petitioner . . . an invitation by the petitioner to have the
prohibited contact . . . does not in any way invalidate or
nullify the order."
22AS 11.81.620 declares:
Effect of ignorance or mistake upon
liability.
(a) Knowledge, recklessness, or
criminal negligence as to whether conduct
constitutes an offense, or knowledge,
recklessness, or criminal negligence as to
the existence, meaning, or application of the
provision of law defining an offense, is not
an element of an offense unless the provision
of law clearly so provides. Use of the
phrase "intent to commit a crime", "intent to
promote or facilitate the commission of a
crime", or like terminology in a provision of
law does not require that the defendant act
with a culpable mental state as to the
criminality of the conduct that is the object
of the defendant's intent.
23AS 11.81.620(a).
24Strane, 16 P.3d at 747.
2540 P.3d 807, 809 (Alaska App. 2002).
26Id. at 816 (citing the interpretation of AS 28.15.291 adopted in
Gregory v. State, 717 P.2d 428, 431 (Alaska App. 1986)).
27Id. at 816.
28Id.
29Id. at 816-17.
30See Strane, 16 P.3d at 748-49.
31793 P.2d 1085 (Alaska App. 1990).
32Id. at 1086.
33Id. at 1087.
34Id.
35Strane, 16 P.3d at 748.
36Id. at 749.
37Russell, 793 P.2d at 1086.
38Id.
39Id.
40Id.
41See Strane, 16 P.3d at 752.
42Id.
43613 P.2d 821 (Alaska 1980).
44Id. at 822.
45Id. at 822, 824-25.
46See id. at 823-24 & n. 4 (quoting AS 45.55.130 and discussing
pertinent federal law).
47Id. at 823.
48Id. at 825.
49Id. at 826-27 & n.10.
50Id. at 827.
51Id. at 828.
52Strane, 16 P.3d at 748-49.
