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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Copper v. Cooper (09/29/2006) sp-6054

Copper v. Cooper (09/29/2006) sp-6054, 144 P3d 451

     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

CYNTHIA M. COOPER, )
n/k/a CYNTHIA M. HORA, ) Supreme Court Nos. S- 11566/11649
)
Appellant, ) Superior Court Nos.
) 3AN-04-01451 CI
v. ) 3AN-03-13336 CI
)
DANIEL R. COOPER, JR., ) O P I N I O N
)
Appellee. ) No. 6054, September 29, 2006
)
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage,  Sharon Gleason and John  Suddock,
          Judges.

          Appearances:   Cynthia  M.  Hora,   pro   se,
          Anchorage.   Karla F. Huntington, Law  Office
          of K. F. Huntington, Anchorage, for Appellee.
          Christine McLeod Pate, Kari Robinson,  Sitka,
          for  Amicus Curiae Alaska Network on Domestic
          Violence and Sexual Assault.

          Before:   Bryner,  Chief  Justice,  Matthews,
          Eastaugh,  and  Fabe, Justices.   [Carpeneti,
          Justice, not participating.]

          MATTHEWS, Justice.


I.   INTRODUCTION
          In  these  consolidated cases we review a denial  of  a
petition  for a domestic violence protective order, and,  in  the
separate divorce case, a grant of a mutual restraining order.  We
affirm the former and reverse the latter.
          The main question presented is whether a person subject
to  a  domestic violence order prohibiting him from being in  the
presence of or contacting a protected person commits the crime of
violating  a protective order by simply being in the same  public
place  as  the  protected person.  Our answer is no.   The  crime
requires  a  violation  of  statutory prohibitions  that  may  be
included  in  a protective order and being in the presence  of  a
protected person is not among them.  While a no-contacting  order
is  an  included  statutory  prohibition,  merely  being  in  the
presence of a protected person without communicating with her  is
not contacting within the meaning of the statute.
II.  FACTS AND PROCEEDINGS
          Cynthia  Hora1 and Daniel Cooper were a married  couple
when,  in October 2003, Cooper was arrested for assaulting  Hora.
In November 2003 Hora petitioned for a long-term protective order
and filed for divorce.
          On  November  28,  2003, a master  issued  a  long-term
domestic   violence   protective  order  against   Cooper.    The
protective order prohibited Cooper from threatening to commit  or
committing  acts  of domestic violence, stalking,  or  harassment
against  Hora  and  her two children.  This  prohibition  was  to
remain in effect until dissolved by a court.  To date, it remains
in  effect.  The protective order also contained prohibitions  to
remain in effect for six months, including a prohibition on being
in   the  physical  presence  of,  telephoning,  contacting,   or
otherwise communicating directly or indirectly with Hora  or  her
children.  These proscriptions expired on May 28, 2004.
          Hora alleges that on the day after the protective order
was  issued, she saw Cooper at the Dimond Mall in Anchorage.  She
alleges  that he was staring at her in the housewares  department
of Gottshalks and that later that day she saw him outside the pet
store.   Cooper admits that he was at the Dimond Mall on the  day
in  question,  but denies having seen Hora.  In January  of  2004
Cooper  drove past Hora and her son as they exited a  barbershop.
Cooper was driving slowly and he and Hora made eye contact.
          In  February 2004 Cooper pled no contest to a charge of
family violence stemming from his October arrest.  As a condition
of probation, his sentence included a prohibition on contact with
Hora or her children.
          On April 28, 2004, Hora attended the morning session of
the Alaska Bar Association Annual Convention held in Anchorage at
the  Captain Cook Hotel.  When she noticed that Cooper  was  also
attending  the  session, Hora requested  that  Cooper  leave  the
conference,  which he did.  Cooper returned to the  Captain  Cook
that  afternoon.  Hora saw Cooper at the Captain Cook and  called
the  police.  That evening Cooper was arrested for violating  the
November 28, 2003 protective order.
          The  next  day, Cooper moved for clarification  of  the
protective  order.   In response to this motion,  Superior  Court
Judge  John  Suddock entered an order on April 30, 2004,  finding
that  Coopers attendance at the bar convention was not a  per  se
violation of the order.  Hora filed a motion for reconsideration,
which was denied by Judge Suddock on May 5, 2004.
          On May 26, 2004, Hora, in a new proceeding,2 petitioned
for  a  twenty-day  ex  parte  and a long-term  protective  order
          against Cooper.  Superior Court Judge Sharon Gleason granted Hora
an ex-parte protective order based on Coopers April 28 arrest for
violating  the  November  28, 2003 protective  order.   When  she
granted the ex parte order, Judge Gleason was unaware that  Judge
Suddock  had  previously made and entered two  decisions  on  the
topic of Coopers attendance at the bar convention.
          Hora  alleges that on May 27, 2004, Cooper slowed  down
in  his  car and paced her car for at least fifty feet while  she
was  driving  down I Street.  Cooper denies this  allegation  and
asserts  that  he  was in his office when the incident  allegedly
occurred.
          Cooper  moved  to  dismiss  the  May  26  petition  for
protective  order  on  the basis that Judge Suddock  had  already
ruled  that  attendance at the bar convention was not  a  per  se
violation of the existing protective order.  Judge Gleason denied
the  motion  to dismiss, stating that she intended to  apply  the
standard  set out by Judge Suddock in his order dated  April  30,
2004, as well as the order denying reconsideration dated [May  5,
2004].
          On  June  22, 2004, an evidentiary hearing was held  on
Horas  petition  for  a  long-term  protective  order.   At   the
conclusion  of this hearing, Judge Gleason vacated the  ex  parte
order  of  May  26  and  denied Horas petition  for  a  long-term
protective order.
          On  August  19, 2004, Judge Suddock held a  hearing  to
review  the parties property distribution agreement, after  which
he  issued a final decree of divorce.  At Coopers request,  Judge
Suddock  also  issued  a  mutual  restraining  order  prohibiting
future,  direct contact between the parties, including  in-person
contact, mail, phone, and electronic contact.
          Hora appeals Judge Gleasons denial of her petition  for
a long-term protective order and Judge Suddocks grant of a mutual
restraining order.
III. STANDARD OF REVIEW
          The  interpretation of a statute is a question  of  law
which  involves this courts independent judgment.3   Findings  of
fact  are  reviewed  under the clearly erroneous  standard.4   We
review  the  decisions to deny a protective  order  and  grant  a
mutual restraining order for abuse of discretion.5
IV.  DISCUSSION
     A.   Horas Appeal Is Not Moot
          This court requested supplemental briefing on the issue
of  mootness.   If  Hora prevailed in her appeal,  she  might  be
entitled  to a protective order containing provisions like  those
in  the November 28, 2003 order that expired after six months. We
conclude  that this possibility is sufficient to avoid  dismissal
for mootness.
     B.   Denial of the Protective Order
           1.  Judge Gleasons decision
          Horas petition for a protective order was based on  the
allegation  that Cooper had committed the crime  of  violating  a
protective  order.  Hora alleged that Cooper violated  the  order
(1)  at  the bar convention, (2) at the Dimond Mall, (3)  outside
the  barber  shop,  and (4) by pacing her  on  I  Street.   Judge
          Gleason applied Judge Suddocks previous rulings clarifying the
November 28, 2003 order to Horas first allegation.  Hora  claimed
that  Cooper  had committed the crime of violating  a  protective
order based on two theories.  First, because his conduct amounted
to  stalking and stalking is prohibited by the protective  order.
Second, because his conduct amounted to contacting, which is also
prohibited by the protective order.  Judge Gleason concluded that
the  facts  did  not  support entering a protective  order  under
either theory.
          As  to  stalking,  Judge Gleason  recognized  that  the
placing-in-fear  element required objective  fear  and  concluded
that  the  proof did not satisfy that standard.  As  to  the  no-
contacting  order,  Judge Gleason found that there  had  been  no
violation  either at the bar convention or in the other instances
alleged  by  Hora.   In so ruling, Judge Gleason  accepted  Judge
Suddocks  ruling  that merely being in the  presence  of  another
party at a public place was not prohibited contacting.  She  also
found  that  conclusion  to  be  consistent  with  the  statutory
language  since the applicable statute, AS 18.66.100(c)(2),  does
not  list  precluding a respondent from being in the presence  of
the  other party.  As to each of the incidents described by Hora,
at  the  bar  convention and elsewhere, Judge Gleason found  that
they  at  most involved one to two second unplanned  eye  contact
which  did  not  constitute a violation of the protective  order.
She  concluded: [B]ased on the testimony Ive heard, I find  by  a
preponderance  of  the evidence that those were  not  intentional
acts by Mr. Cooper to place himself in a situation where he would
be having eye contact with . . .  Ms. Cooper.  Judge Gleason also
gave an example to illustrate her conclusion:
          Say  hes  at the barbershop, hes half  shaved
          .  . . , and all of a sudden Ms. Cooper walks
          in.   Does  he need to say then oops,  sorry,
          got  to go, and his physical countenance left
          in  disarray?   No, I dont see it  that  way.
          But does that mean that he can turn his chair
          and stare at Ms. Cooper?  No.  So thats how I
          would interpret the order as it was then,  in
          a manner that is consistent with the statute.
          
          Hora  argues  that Judge Gleason applied  an  incorrect
placing-in-fear   standard   with  respect   to   stalking,   and
incorrectly interpreted the elements of the crime of violating  a
protective order with respect to the no-contacting order.
          2.    Elements  of the crime of violating a  protective
order.
          Alaska  Statute  18.66.100(b) gives the superior  court
the  authority  to  issue a protective order if  it  finds  by  a
preponderance of the evidence that the respondent has committed a
crime involving domestic violence against the petitioner.6  Under
AS 18.66.990, crimes involving domestic violence include stalking
and violating a domestic violence order under AS 11.56.740.7  The
crime   of  violating  a  protective  order  is  defined  by   AS
11.56.740(a):
               A  person commits the crime of violating
               a protective order if the person is subject
          to a protective order
          
               (1)  issued or filed under AS 18.66  and
          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[.]
          
          Stalking   is   conduct   that   is   listed   in    AS
18.66.100(c)(1) and therefore when it occurs and is prohibited by
a  protective  order,  it  also may be a  crime  of  violating  a
protective  order  under AS 11.56.740(a).   We  understand  Horas
position to be that Coopers alleged stalking conduct is  a  crime
involving  domestic violence (justifying a new  protective  order
under AS 18.66.100(b)) because such conduct directly violated the
criminal  stalking statutes and because it amounted to the  crime
of violating a protective order under AS 11.56.740(a).
          The   relevant  mental  states  referred   to   in   AS
11.56.740(a)  and in Judge Gleasons decision are  defined  in  AS
11.81.900.8
          3.   Stalking
          No  argument  is  made that stalking  as  used  in  the
protective  order,  and in AS 18.66.100(c)(1),  has  a  different
meaning  than stalking under the statute making it an independent
crime.   Under  the  latter,  [a] person  commits  the  crime  of
stalking  . . .  if the person knowingly engages in a  course  of
conduct that recklessly places another person in fear of death or
physical injury . . . .9  To be a course of conduct there must be
repeated  acts  of nonconsensual contact.10  Under  the  stalking
statute, nonconsensual contact specifically includes following or
appearing  within  the  sight of [the] person.11   The  court  of
appeals  stated  in Kenison v. State12 that AS 11.41.270  is  not
referring  to  the  victims  subjective  feelings  of  fright  or
intimidation.  Rather, the statute requires proof that the victim
reasonably  perceived  or apprehended  the  threat  of  death  or
physical injury.13  This objective standard is individualized, and
focuses  on  a whether a reasonable person in the same  situation
would  also  experience fear under the same  circumstances.   The
court of appeals applied an individualized objective standard  in
Kenison  by  allowing the jury to consider evidence of  the  past
relationship between the perpetrator and the victim.14
          Hora  argues  that  Judge  Gleason  did  not  apply  an
individualized  objective  standard and  erred  in  finding  that
Cooper had not committed stalking.  We conclude Judge Gleason did
not err in finding that the evidence of stalking was insufficient
to  support  the  issuance of a protective order.   Coopers  mere
presence in Horas line of vision, if sufficiently repeated, could
be  nonconsensual  contact for purposes of the  course-of-conduct
element   of   stalking.   But  Judge  Gleason  relied   on   the
insufficiency of evidence satisfying the placing-in-fear element,
not  the  course-of-conduct element, in  reaching  her  decision.
          Judge Gleason found that Cooper did not threaten, approach, or
engage with Hora in any manner except to make momentary unplanned
eye  contact  with  her.  Judge Gleason was fully  aware  of  the
parties history and there is no indication that she did not apply
an individualized objective standard with respect to the placing-
in-fear  element.   We  are unable to say  that  it  was  clearly
erroneous  for  Judge  Gleason  to conclude  that  the  requisite
placing-in-fear element had not been met.
          4.   Contacting
          The  protective  order of November 28,  2003,  directed
that Cooper not be in the physical presence of Hora, and that  he
refrain  from  contacting  or otherwise  communicating  with  her
either directly or indirectly.  Under AS 11.56.740(a)(1) in order
to   commit  the  crime  of  violating  a  protective  order  the
protective   order  must  contain  a  provision  listed   in   AS
18.66.100(c)(1)(7).   Although this statute read  literally  only
requires  a  violation  of a provision of  the  protective  order
without  specifying that the provision must be one listed  in  AS
18.66.100(c)(1)(7), the section implies that only a violation  of
a provision listed in subsection .100(c)(1)(7) may constitute the
crime  of violating a protective order.15  Otherwise, there would
be   no   reason  to  specify,  as  subsection  .740(a)(1)  does,
particular  provisions of subsection .100(c) that the  protective
order  must contain.16  This is significant in this case  because
the  prohibition that Cooper not be in the physical  presence  of
Hora is not a provision listed in subsection .100(c)(1)(7).  This
does   not   mean   that  the  in-the-presence   prohibition   is
unauthorized.   Under AS 18.66.100(c)(16) a court  in  framing  a
protective  order  may  order other relief the  court  determines
necessary to protect the petitioner or any household member.   An
order  issued  under AS 18.66.100(c)(16) may  be  enforceable  by
contempt,  and  possibly other means, but violation  of  such  an
order  does  not  amount to the crime of violating  a  protective
order as that crime is defined in AS 11.56.740(a)(1).
          The  protective orders prohibition on Cooper contacting
or  otherwise communicating with Hora is a provision listed in AS
18.66.100(c)(2).   Thus  if  Cooper  contacted  Hora   with   the
requisite  mental  state he committed the crime  of  violating  a
protective  order.   This crime, as we  have  seen,  is  a  crime
involving domestic violence.  As such, it would have been grounds
for  granting the petition for a long-term protective order under
AS 18.66.100(b).
          Hora  takes  issue with Judge Gleasons conclusion  that
Cooper  did not violate the no-contacting order in two  respects.
She  contends first that contacting as used in AS 18.66.100(c)(2)
should  be construed to encompass appearing within the  sight  of
the  protected  person.  Second, she contends that Judge  Gleason
erroneously found that Cooper had to intentionally place  himself
where he could be seen by Hora, and that only knowing behavior is
required by AS 11.56.740(a)(1).  We reject Horas first point.  As
to  the  second  point, we agree that only knowing contacting  is
required  but conclude that the error was harmless because  there
was no conduct that amounted to contacting within the meaning  of
AS 18.66.100(c)(2).
               a.   Merely appearing within the protected persons
                    sight is not contacting.
                    
          Horas  argument is that the statute defining the  crime
of  stalking defines nonconsensual contact as including appearing
within  the sight of a protected person.  She contends that  this
definition  of contact should apply to the contacting prohibition
listed   in  AS  18.66.100(c)(2).   Although  this  is   not   an
implausible  argument,  we reject it for the  following  reasons.
Contacting, as a verb, means in common usage physically  touching
or  communicating.17  The stalking statutes use of the  term,  in
conjunction  with  nonconsensual,  to  include  merely  appearing
within  the  sight of another person goes beyond the  meaning  of
contact  in normal usage.  Words in statutes are to be  construed
in  accordance  with  their normal usage  unless  there  is  some
indication that a special meaning is intended.18  In the  present
case   the   context  in  which  contacting   is   used   in   AS
18.66.100(c)(2)  argues  in  favor  of  adhering  to  the  normal
meaning.   The  statutes  inclusion of the  phrase  or  otherwise
communicating immediately after contacting strongly suggests that
nonphysical  contact  must  involve some  element  of  direct  or
indirect  communication and does not merely  mean  coming  within
view.   Further, the special and considerably broader meaning  of
nonconsensual  contact in the stalking statute is not,  as  there
used,  all that is needed for a crime to take place.  The contact
must also be repeated, so that it is a course of conduct, and  it
must  place  the  protected person in fear.  The need  for  these
additional requirements to make stalking a crime argues against a
construction  that  makes merely appearing  in  the  sight  of  a
protected person, without more, a crime.19
               b.   Knowing contacting
          As   noted,  Hora  takes  issue  with  Judge   Gleasons
conclusion  that  Coopers conduct had to be  intentional,  rather
than merely knowing.  The difference between the two concepts  is
that a person acts intentionally with respect to a result .  .  .
when  the  persons  conscious objective is to cause  that  result
. . . .20  By contrast, a person acts knowingly when he knows that
a  particular result will occur even if his objective is  not  to
cause that result.21
          Horas argument on this point is that
          [t]he  plain language of the statute requires
          proof  of  the following elements:   (1)  the
          perpetrator acted knowingly with  respect  to
          his  conduct; (2) the perpetrator knew of the
          existence  of the protective order;  and  (3)
          the  perpetrator  recklessly  disregarded   a
          substantial and unjustifiable risk  that  his
          conduct  was prohibited by the order.   Since
          the word intentionally does not appear in  AS
          11.56.740, there is no requirement  that  the
          perpetrator act intentionally.
          
          We  agree with this formulation.  But our rejection  of
Horas argument that an act of contacting within the meaning of AS
          18.66.100(c)(2) occurred means that this point is moot.  Coopers
mental  state  would  only be relevant if  conduct  amounting  to
contacting occurred.  There is no evidence that the momentary eye
contact   that   Judge  Gleason  found  to  have   occurred   had
communicative content.  Thus, contacting did not take place.22
     C.   The Mutual Restraining Order
          Hora  also  challenges  the  mutual  restraining  order
entered  by  Judge Suddock in the divorce proceeding,  contending
that  the court had no basis to impose any restraint against her.
Under Siggelkow v. State, where an independent basis exists for a
restraining order, it may issue pursuant to the courts  equitable
power.23  However, the court may not issue an order merely because
the parties are before it in a divorce action.24  Because this is
a  mutual order, there must be an independent basis for the order
against  each  party.   Judge  Suddocks  basis  for  the   mutual
restraining  order  was  that [b]oth  parties  have  expressed  a
concern for their safety from the other party.  There has been  a
high  level  of  animosity and distrust exhibited throughout  the
litigation.
          In our view, an expression of concern by the parties is
insufficient to establish an independent basis for the order.   A
more  specific  factual  basis was required  to  support  Coopers
belief that there will be future acts of harassment or contact by
Hora.   Judge Suddock noted that Hora had done nothing that would
justify  [Cooper]  from having concern about  physical  violence.
Likewise,  a  general  acknowledgment of animosity  and  distrust
during  a  divorce  is insufficient to establish  an  independent
basis for the order.25  We conclude that because the order lacked
an  independent basis, it was an abuse of discretion to issue the
mutual restraining order.
V.   CONCLUSION
          In  No. S-11566 we AFFIRM the superior courts denial of
a  domestic violence protective order.  In No. S-11649 we REVERSE
the  decision of the superior court granting a mutual restraining
order  and REMAND the case to the court with directions to VACATE
the mutual restraining order.
_______________________________
     1    Cynthia Hora was Cynthia Cooper until August 2004, when
her divorce became final.

     2     That  is,  with  a  docket number  separate  from  the
November 2003 domestic violence proceeding.

     3     Odum v. Univ. of Alaska, Anchorage, 845 P.2d 432,  434
(Alaska 1993).

     4    Williams v. Williams, 129 P.3d 428, 431 (Alaska 2006).

     5     See  State v. Kluti Kaah Native Vill. of Copper  Ctr.,
831 P.2d 1270, 1272 n.4 (Alaska 1992).

     6     AS  18.66.100 in the form that it was in when the acts
in question in this case took place provided in relevant part:

               (b)  When  a  petition for a  protective
          order  is  filed, the court shall schedule  a
          hearing  and provide at least 10 days  notice
          to  the respondent of the hearing and of  the
          respondents  right to appear  and  be  heard,
          either  in person or by an attorney.  If  the
          court  finds  by a preponderance of  evidence
          that  the  respondent has committed  a  crime
          involving   domestic  violence  against   the
          petitioner,   regardless   of   whether   the
          respondent appears at the hearing, the  court
          may  order any relief available under (c)  of
          this section.  The provisions of a protective
          order issued under
               (1) (c)(1) of this section are effective
          until further order of the court;
               (2)  (c)(2)  - (16) of this section  are
          effective  for  six  months  unless   earlier
          dissolved by court order.
               (c)   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;
               . . .
               (16)   order  other  relief  the   court
          determines    necessary   to   protect    the
          petitioner or any household member.
          
(Emphasis added.)



     7    AS 18.66.990(3) provides in relevant part:

               domestic  violence and  crime  involving
          domestic  violence mean one or  more  of  the
          following offenses or an offense under a  law
          or  ordinance of another jurisdiction  having
          elements  similar to these  offenses,  or  an
          attempt to commit the offense, by a household
          member against another household member:
               (A) a crime against the person under  AS
          11.41;
               . . .
               (G)  violating a domestic violence order
          under AS 11. 56.740[.]
          
Stalking   is  a  crime  against  the  person  under  AS   11.41,
specifically, AS 11.41.260 (stalking in the first degree) and  AS
11.41.270  (stalking  in  the second degree).   The  elements  of
stalking are discussed infra at pages 10-11.

     8    AS 11.81.900(a) provides in relevant part:

               For  purposes of this title, unless  the
          context requires otherwise,
               (1)  a  person  acts intentionally  with
          respect  to a result described by a provision
          of  law  defining an offense when the persons
          conscious objective is to cause that  result;
          when   intentionally  causing  a   particular
          result  is  an  element of an  offense,  that
          intent   need   not  be  the   persons   only
          objective;
               (2) 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;
               (3)   a  person  acts  recklessly   with
          respect  to  a  result or to  a  circumstance
          described  by a provision of law defining  an
          offense  when  the person  is  aware  of  and
          consciously  disregards  a  substantial   and
          unjustifiable risk that the result will occur
          or  that  the circumstance exists;  the  risk
          must  be  of  such a nature and  degree  that
          disregard of it constitutes a gross deviation
          from   the   standard  of  conduct   that   a
          reasonable  person  would  observe   in   the
          situation;  a person who is unaware of a risk
          of which the person would have been aware had
          that   person   not  been  intoxicated   acts
          recklessly with respect to that risk[.]
          
     9    AS 11.41.270(a).

     10    AS 11.41.270(b)(1).

     11    AS 11.41.270(b)(3)(A).

     12    107 P.3d 335 (Alaska App. 2005).

     13    Id. at 342.

     14     Id. at 343-44 (allowing the jury to consider evidence
of  the  couples deteriorating relationship and a long series  of
nonconsensual contacts for the purposes of evaluating whether the
victims  fear was reasonable).  See also Petersen v.  State,  930
P.2d  414, 432 (Alaska App. 1996) (allowing the jury to  consider
evidence  of  the  perpetrators long-standing course  of  conduct
.  .  .  his persistent refusal to stay away from her, [and]  his
repeated  presence at her workplace to establish that the  victim
feared injury or death at the perpetrators hands).

     15     We assumed this to be the case in State v. Strane, 61
P.3d 1284, 1286 (Alaska 2003).

     16     The  principle that ambiguities in a criminal statute
should  be  resolved  by  construing the  statute  narrowly  also
supports  this conclusion.  See State v. Andrews, 707  P.2d  900,
907 (Alaska App. 1985), adopted as the opinion of this court, 723
P.2d 85 (Alaska 1986).

     17    Thus, Websters Third New International Dictionary says
the  following concerning contact when used as a transitive verb,
including its ed/ing forms:  to bring into contact: enter  or  be
in  contact with: a: to press against . . . b: to make connection
with:  get in communication with . . . c: to talk or confer  with
. . . .

     18     AS 01.10.040(a) (Words and phrases shall be construed
according  to the rules of grammar and according to their  common
and  approved usage.  Technical words and phrases and those which
have  acquired  a  peculiar and appropriate meaning,  whether  by
legislative definition or otherwise, shall be construed according
to the peculiar and appropriate meaning.).

     19    AS 18.66.100(c)(3) provides that a protective order may
remove  and  exclude  the respondent from the  residence  of  the
petitioner and subsection (c)(4) provides that a protective order
may  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.   A  respondents mere presence in any of these locations,
where the petitioner is most likely to be found, could constitute
violation of a protective order.  But the active language  of  AS
18.66.100(c)(2) (telephoning, contacting, communicating) suggests
that  an appearance in the presence of a protected person outside
of  these safeguarded locations would not constitute a violation,
unless  a fact finder were to determine that by appearing in  the
presence    of   the   petitioner,   the   respondent   knowingly
communicated, directly or indirectly, with the petitioner.

     20    AS 11.81.900(a).

     21     AS  11.81.900(a)(2).   Further,  knowingly  does  not
require  definite  knowledge.   Rather,  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
that it does not exist.  Id.

     22     Hora  makes two other arguments with respect  to  the
protective order.  She argues that Judge Gleason improperly  gave
collateral   effect  to  Judge  Suddocks  ruling   that   Coopers
attendance  at the bar convention was not a per se  violation  of
the  protective order.  This argument would only be of importance
if  Judge  Gleasons  order  was  not,  as  a  stand-alone  order,
affirmable without consideration of Judge Suddocks ruling.  Here,
both  Judge  Gleason and Judge Suddock correctly  concluded  that
Coopers  presence  at  the bar convention  was  not,  per  se,  a
violation  of  the protective order.  Thus Judge  Gleasons  order
does  not  require  the  shielding from  review  on  appeal  that
application of the doctrine of collateral estoppel might give it.

          Hora  also  argues that the superior court  denied  her
request  for  a long-term protective order based in part  on  the
protection  provided  by Coopers no-contact probation  condition.
While  Judge Gleason did mention the criminal provision, it  does
not  appear  from the transcript that the existence  of  the  no-
contact probation condition affected the final judgment.

     23    731 P.2d 57, 61 (Alaska 1987).

     24    Id.

     25     As a matter of policy, mutual restraining orders have
come  to  be  disfavored  in  domestic  violence  cases.  See  AS
18.66.130(b) (A court may not grant protective orders against the
petitioner  and  the  respondent in the same  action  under  [the
Domestic Violence and Sexual Assault] chapter.).  We believe this
should  carry  over to divorce litigation as well when  only  one
partner has committed acts of domestic violence.

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