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Leu v. State (4/8/2011) ap-2303

Leu v. State (4/8/2011) ap-2303

        The text of this opinion can be corrected before the opinion is published in thePacific 
        Reporter.   Readers are encouraged to bring typographical or other formal errors to 
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BYRON R. LEU,                                     ) 
                                                  )         Court of Appeals No. A-10346 
                            Appellant,            )         Trial Court No. 3PA-08-1416 CR 
             v.                                   ) 
                                                  )                 O   P  I  N  I  O   N 
STATE OF ALASKA,                                  ) 
                            Appellee.             )           No. 2303 - April 8, 2011 

                 Appeal from the District Court, Third Judicial District, Palmer, 
                 John Wolfe, Judge. 

                 Appearances: Alexandra Foote-Jones, Assistant Public Defender, 
                 and    Quinlan    Steiner,   Public   Defender,    Anchorage,      for  the 
                 Appellant.  Ann B. Black, Assistant Attorney General, Office of 
                 Special Prosecutions and Appeals, Anchorage, and Daniel S. 
                 Sullivan, Attorney General, Juneau, for the Appellee. 

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

                 COATS, Chief Judge. 

                 Byron R. Leu was convicted of fourth-degree domestic violence assault and 
sixth-degree misconduct involving a controlled substance.1  He argues that his assault was 

        1   AS 11.41.230(a)(1) and AS 11.71.060(a)(1), respectively. 

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

justified in defense of his daughter, and that the district court erred by refusing to instruct 

the jury on defense of a third person.  He also argues that the domestic violence statutes 

are unconstitutionally vague on their face and as applied to him. For the reasons discussed 

below, we reject Leu's claims and affirm his convictions. 

                Facts and proceedings 

                On May 23, 2008, Byron Leu was visiting his friend Kenneth Wehmeier. 

Leu had his eight-month-old daughter with him. The two men were drinking and "hanging 

out" as they often did. According to Wehmeier, he and Leu had previously been sexually 

involved, but that involvement had ended some five months earlier, when Leu met his 


                At some point during this visit Wehmeier made remarks that angered Leu. 

Wehmeier testified that Leu   chased him into the kitchen and pushed him into some 

cabinets,   causing   the   shelves   and   their   contents   to   spill   to   the   floor. Leu   then   held 

Wehmeier around the neck and punched him in the face several times. 

                Wehmeier testified that after this assault he called 911 and Leu called his 

girlfriend to come pick him up.          During the three or four minutes it took the police to 

arrive, Wehmeier tried to get Leu to leave, kicking him in the legs in an effort to get him 

out the door.    Leu refused to leave, telling Wehmeier he was waiting for his girlfriend 

and that he did not want to wait outside with the baby. 

                When the police arrived, Leu denied assaulting Wehmeier. Initially, he told 

the police he did not know how Wehmeier was injured, but later he said Wehmeier must 

have fallen down.   The two officers observed that Wehmeier's house was generally tidy 

but that in the kitchen several pantry shelves and their contents had been upended.  The 

officers also   observed that Leu was calm and that Wehmeier was upset and crying. 

                                                 - 2 -                                             2303

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

Wehmeier's left eye was swollen and he had a cut on his shin.   The police arrested Leu, 

and during a pat-down search they found a small amount of marijuana, a marijuana pipe, 

and a digital scale in his coat pocket. 

                Leu was charged with fourth-degree assault and sixth-degree misconduct 

involving   a   controlled   substance.   At   trial   on   those   charges,   Leu   denied   assaulting 

Wehmeier.  He said Wehmeier got very drunk and said derogatory things about women 

and called his daughter names.          He said he told Wehmeier he no longer wanted to be 

friends and that Wehmeier became irate and told him to leave.  Leu said that Wehmeier 

then ran around the house gathering things that belonged to Leu and his daughter and 

throwing them out the door, including the child's car seat. Leu testified that he retrieved 

the car seat but when he tried to re-enter the house to get his daughter Wehmeier kicked 

him and tried to shove him out the door. Leu said he put his left arm around Wehmeier's 

neck and used his foot to trip him and that they both fell to the floor.  Leu speculated that 

Wehmeier may have received his injuries - the black eye and the cut on his shin - 

during this fall. 

                After the close of evidence, Leu asked the court to instruct the jury on 

defense of a third person (his daughter) and self-defense. District Court Judge John Wolfe 

refused to give the instruction on defense of a third person but agreed to instruct the jury 

on self-defense.     The jury convicted Leu of both charges. 

                At sentencing, the court found by a preponderance of the evidence that Leu 

and Wehmeier had previously engaged in a sexual relationship, and that the assault was 

therefore a domestic violence assault. 

                Leu appeals. 

                                                 -  3 -                                            2303

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

               Why we conclude that the district court did not err in instructing the 

               At trial Leu testified that the only reason he used force against Wehmeier 

was to protect his eight-month-old daughter, and he asked Judge Wolfe to instruct the 

jury on the justification of defense of a third person.   Under AS 11.81.340,     a person is 

justified in using force to defend a third person if he reasonably believes the third person 
would be justified in using that degree of force in self-defense.2 

               Leu argues that Judge Wolfe based his refusal to give the defense of a third 

person instruction on the legally irrelevant consideration that Leu's daughter, at eight 

months old, was incapable of acting in her own defense. Although we acknowledge some 

ambiguity in Judge Wolfe's remarks, we do not agree with Leu's interpretation of them. 

Judge Wolfe ultimately focused on the appropriate question - whether Leu's child 
"would have beenjustified  in throwing Mr. Wehmeier down to defend herself"3 - not 

on whether the child was physically capable of doing so. 

               To be entitled to an instruction on defense of a third person, Leu had to 

present "some evidence" that he reasonably believed that his daughter faced imminent 
harm or threat of harm.4    In district court, Leu did not offer any evidence to support a 

       2   AS 11.81.340 provides: 

               A person is justified in using force upon another when and to the 
           extent the person reasonably believes it is necessary to defend a third 
           person when, under the circumstances as the person claiming defense 
           of another reasonably believes them to be, the third person would be 
           justified under AS 11.81.330 or 11.81.335 in using that degree of force 
           for self-defense. 

       3   Emphasis added. 

       4   AS 11.81.340; AS 11.81.900(b)(27); Ha v. State, 892 P.2d 184, 191 (Alaska App. 


                                             - 4 -                                       2303

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

reasonable belief that an attack on his daughter was imminent, such that the child would 

have    been  justified  in  using  force  to  defend   herself.  On   appeal,  Leu   argues   that 

Wehmeier's angry and irrational behavior made it reasonable for him to conclude that 

Wehmeier was capable of harming his daughter. But even accepting this assertion as true, 

it does not amount to evidence that Leu reasonably   feared that Wehmeier posed an 
imminent risk to his daughter.5       Judge Wolfe therefore did not err in refusing Leu's 

proposed instruction on defense of a third person. 

               Judge Wolfe concluded that Leu did present sufficient evidence to raise a 

claim of self-defense because there was evidence that Wehmeier used unlawful force 

(kicking and shoving) to keep Leu out of the house.  Judge Wolfe reasoned that Leu had 

a right to reenter Wehmeier's house to retrieve his daughter, and that when Wehmeier 

used force to keep Leu out of the house, this was arguably an unlawful use of force against 

Leu, thus entitling Leu to use defensive force against Wehmeier. 

               Leu challenges Judge Wolfe's ruling on two grounds.  First, he argues that 

the self-defense instruction did not encompass his theory of the case and that Judge Wolfe 

erroneously concluded that it did.      Second, he argues that the court's ruling precluded 

him from arguing to the jury that he acted to protect his daughter. 

               Leu's second claim is not supported by the record.  Although Leu was not 

entitled to a defense of others instruction, nothing in the judge's remarks precluded Leu 

from arguing to the jury that he used force against Wehmeier to protect his daughter, and 

Leu in fact made that argument. 

        5  See Lamont v. State, 934 P.2d 774, 777-79 (Alaska App. 1997) (citing McCracken 

v. State, 914 P.2d 893, 898 (Alaska App. 1996)). 

                                              - 5 -                                           2303 

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

                 The problem with Leu's other claim - that Judge Wolfe erred in concluding 

that the self-defense instruction encompassed his theory of the case - is that Leu failed 
to object on this ground in district court.6 

                 Leu is not challenging Judge Wolfe's decision to instruct the jury on self- 

defense - he requested the self-defense instruction.               His quarrel is with Judge Wolfe's 

conclusion that the instruction adequately conveyed his theory that the force he used 
against Wehmeier was justified to protect his daughter.7  But absent any objection by Leu, 

or any proposal to modify the language of the instruction, Judge Wolfe could reasonably 

conclude that Leu was satisfied that the self-defense instruction would serve this purpose. 

                 Moreover,   Leu   has   failed   to   show   how   he   was   prejudiced.   In   closing 

argument, Leu abandoned any claim that his assault on Wehmeier was justified, arguing 

instead that the State had failed to prove the mens rea element of fourth-degree assault. 

Leu argued that, because he acted reasonably when he knocked Wehmeier down to get 

to his daughter, the State failed to prove that he acted with the required reckless intent. 

The State argued that the assault occurred in the kitchen, and was entirely unrelated to 

Leu's effort to re-enter the house to retrieve his daughter. Given this record, we conclude 

that any deficiency in the court's self-defense instruction did not contribute to Leu's 


        6    See Alaska R. Crim. P. 30(a) ("No party may assign as error any portion of the 

charge   or   omission   therefrom   unless   the   party   objects   thereto   before   the   jury   retires   to 
consider its verdict."). 

        7    See Carman v. State, 658 P.2d 131, 135 (Alaska App. 1983). 

                                                   -  6 -                                                2303 

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

                Why we conclude that the definition of "household member" is not 
                unconstitutionally vague 

                At sentencing, at the State's request and over Leu's objection, Judge Wolfe 

found by a preponderance of the evidence that Leu's assault on Wehmeier qualified as 
a domestic violence crime as defined in AS 18.66.990(3).8 

                The Alaska Statutes define certain crimes (e.g., assault, burglary, criminal 

mischief) as domestic violence crimes if they are committed by one household member 
against another.9     The term "household member" is commonly understood to refer to 

individuals who live together. But the Alaska Statutes define the term much more broadly 
to include10: 

                (A) adults or minors who are current or former spouses; 

                (B) adults or minors who live together or who have lived 

                (C) adults or minors who are dating or who have dated; 

                (D) adults or minors who are engaged in or who have engaged 
                in a sexual relationship; 

        8   See Alaska Criminal Rule 32(e), which provides: 

            Judgment for Crimes Involving Domestic Violence.  In a case in which 
            the defendant is convicted of an offense listed in AS 18.66.990(3) and 
            the   prosecution    claims   at  sentencing   that  the  offense   is  a  crime 
            involving    domestic    violence,   the  written  judgment    must   set  forth 
            whether the offense is a crime involving domestic violence as defined 
            in   AS   18.66.990(3)    and   (5).  A    factual  and   legal  determination 
            supporting this finding must be made on the record. 

        9   AS 18.66.990(3). 

        10  AS 18.66.990(5); see Cooper v. District Court, 133 P.3d 692, 707 (Alaska App. 

2006); Bingaman v. State, 76 P.3d 398, 406-08 (Alaska App. 2003); Carpentino v. State, 42 
P.3d 1137, 1141 (Alaska App. 2002). 

                                                 -  7 -                                           2303

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

                 (E) adults or minors who are related to each other up to the 
                 fourth degree of consanguinity, whether of the whole or half 
                 blood or by adoption, computed under the rules of civil law; 

                 (F) adults or minors who are related or formerly related by 

                 (G) persons who have a child of the relationship; and 

                 (H)  minor      children   of  a  person    in  a  relationship    that  is 
                 described in (A) - (G) of this paragraph[.] 

                 Leu challenges subsection (D), which defines household member to include 

"adults who are engaged in or who have engaged in a sexual relationship."                       He argues 

that this definition is unconstitutionally vague on its face and as applied to him. 

                 When no first amendment rights are implicated, we consider two factors in 

determining whether a statute is unconstitutionally vague: first, whether the statute gives 

adequate   notice   of   the   conduct   that   is   prohibited   and,   second,   whether   the   statute's 

language is so imprecise that it encourages arbitrary enforcement by allowing prosecuting 
authorities   too   much   discretion   in   determining   the   scope   of   the   law.11   Leu   attacks 

AS 18.66.990(5)(D) on both of these grounds.12 

        11  Summers v. Anchorage, 589 P.2d 863, 866-67 (Alaska 1979). 

        12   To the extent that Leu is raising a separate claim of overbreadth, that claim is 

waived for inadequate briefing.  See Petersen v. Mutual Life Ins. Co. of N.Y., 803 P.2d 406, 
410   (Alaska   1990)   ("Where   a   point   is   not   given   more   than   a   cursory   statement   in   the 
argument portion of a brief, the point will not be considered on appeal."); see also Holton 
v. State, 602 P.2d 1228, 1236 n.11 (Alaska 1979) & Marks v. Anchorage, 500 P.2d 644, 646 
(Alaska 1972) (recognizing that claims of vagueness and overbreadth are "functionally and 
doctrinally distinct"). 

                                                   -  8 -                                             2303

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

                 Basic fairness requires that statutes provide ordinary citizens with adequate 
notice of what conduct is prohibited.13 

                 But the fact that people can, in good faith, litigate the meaning 
                 of a statute does not necessarily (or even usually) mean that 
                 the   statute   is   so   indefinite   as   to  be   unconstitutional.  The 
                 question   is   whether   the   statute's   meaning   is   unresolvably 
                 confused or ambiguous after it has been subjected to legal 

                 A statute will not be invalidated on its face on vagueness grounds unless 
it is impermissibly vague in  all its applications.15             In other words, "the possibility of 

difficult or borderline cases will not invalidate a statute where there is a hard core of cases 

to   which    the   ordinary    person    would     doubtlessly     know    the   statute  unquestionably 

                 The term "sexual relationship" is not so unresolvably confused or ambiguous 

that it gives inadequate notice in all its applications of what conduct it encompasses.  An 

ordinary person would, at a minimum, understand the term "sexual relationship" to include 

         13  State   v.   Rice,   626   P.2d   104,   109   (Alaska   1981); Stock   v.   State,   526   P.2d   3,   8 

(Alaska 1974). 

         14  De Nardo v. State, 819 P.2d 903, 907 (Alaska App. 1991) (emphasis in original). 

         15  Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 

95, 102 S. Ct. 1186, 1191, 71 L. Ed. 2d 362 (1982); Bachlet v. State, 941 P.2d 200, 204 
(Alaska App. 1997). 

         16  Stock, 526 P.2d at 9. 

                                                    -  9 -                                                2303 

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

individuals who are in a committed sexual relationship.17 We therefore reject Leu's claim 

that the term is impermissibly vague on its face.18 

                 Leu also argues that the term is unconstitutionally vague as applied to him 

because it did not provide him with adequate notice that the term would include the type 

of casual sexual relationship he had with Wehmeier. 

                 As we already explained, the void for vagueness doctrine requires that 

criminal laws give ordinary citizens fair notice of what conduct is prohibited, so that they 
are not left to guess at whether a certain course of conduct is criminal.19             But the doctrine 

only requires fair notice of the elements that make the conduct criminal - a defendant 

has no right to notice of the collateral circumstance that his offense might be classified 

as a domestic violence crime. 
                 We addressed a related principle in Bell v. State,20 a case in which the 

defendant   was   convicted   of   inducing   a   girl   under   the   age   of   sixteen   to   engage   in 

prostitution.  Bell argued that his conviction violated due process because the trial court 
did not allow him to raise the defense of mistake of age.21   In addressing that claim, we 

acknowledged the well-recognized rule that a defendant cannot be convicted of criminal 
conduct without an awareness or consciousness of wrongdoing.22                   But we explained that 

"[w]hat is essential is not awareness that a given conduct is a 'wrongdoing' in the sense 

        17   See    Webster's     New    World     College    Dictionary     (4th   ed.  2007)    (defining 

"relationship" as "a continuing attachment or association between persons ..., specif., one 
between lovers"). 

        18   See Stock, 526 P.2d at 9.

        19   Gottschalk v. State, 575 P.2d 289, 290 (Alaska 1978).

        20   668 P.2d 829 (Alaska App. 1983).

        21  Id. at 832-35.

        22  Id. at 833.

                                                  -  10 -                                             2303

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

that it is proscribed by law, but rather, an awareness that one is committing the specific 
acts which are defined by law as a 'wrongdoing.'"23                 Thus, for Bell's conviction to be 

constitutional, the State had to prove that Bell was aware he committed an act the law 
defined as wrongdoing:          procuring a woman to engage in prostitution.24              The State did 

not have to prove that Bell was aware the girl he procured was under sixteen, even though 
that circumstance aggravated his offense.25            In Ortberg v. State,26 we similarly held that 

there was no due process violation in convicting the defendant of second-degree criminal 

mischief without proof that the defendant knew or had reason to believe the damage he 
caused was in excess of the $500 specified in the statute.27 

                 The same principle leads us to reject Leu's claim that his due process rights 

were violated because he was convicted of domestic violence assault without adequate 

notice that his offense was a crime of domestic violence.                All the constitution required 

was proof that Leu was aware he committed an act the law defined as wrongdoing: 

assaulting Wehmeier.   It was not necessary for Leu to be aware that, because of his prior 

sexual relationship with Wehmeier, the assault would be a domestic violence crime. 

                 This   does   not   mean   Leu   would   have   no   recourse   if   the   record   left   us 

uncertain that the legislature intended the term "sexual relationship" to apply under the 

facts of his case, such that we doubted whether trial judges could apply the term in a 

reasonably evenhanded manner.             But the record does not leave us with that doubt. 

        23   Id. 

        24   Id. 

        25   Id. 

        26   751 P.2d 1368 (Alaska App. 1988). 

        27   Id. at 1374. 

                                                   -  11 -                                             2303

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

               At trial, Leu denied that he and Wehmeier had ever been sexually involved. 

But Judge Wolfe credited Wehmeier's testimony about the   nature of the two men's 

relationship, and Leu does not challenge that finding on appeal. Wehmeier testified that 

during the year or so he lived next door to Leu they "used to hang out together a lot." 

He said they were "both drinkers" and would "stay up pretty late, you know, watching 

TV or whatever, and we would end up in the same bed." Wehmeier said that "pretty soon 

we were intimate, but we were more like friends. I mean, that was something that would 

happen every once and a while."  Wehmeier said he and Leu had not been "intimate" for 

about five months before the incident in this case, when Leu met his girlfriend. Wehmeier 

said he   was jealous at first and that it took him a few months to warm up to Leu's 

girlfriend.   But he testified that "the friendship ... was what was important to me."  On 

cross-examination, Wehmeier acknowledged that he had called Leu and been to his house 

a few times since the assault; he said he "thought we maybe could patch things up," and 

that he "wanted to forgive [Leu]." 

               Based on this record, Leu asserts that any sexual involvement he had with 

Wehmeier was too casual to fall within the definition of "sexual relationship." But when 

the Alaska Legislature defined "household member" to include adults "who have engaged 

in a sexual relationship," it did not specify that the relationship had to be a serious one. 

As Leu points out, Minnesota has imposed this requirement by statute, and it has adopted 
a multi-factor test to determine when a romantic or sexual relationship is "significant."28 

       28  Minn. Stat.  518B.01(b) (defining "family or household members" to include 

"persons involved in a significant romantic or sexual relationship" and adopting factors for 
the court to consider in determining if the relationship is significant). 

                                            -  12 -                                        2303 

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

The Alaska Legislature chose not to define "sexual relationship," leaving the courts to 
construe the term in accordance with its ordinary meaning.29 

                  As just explained, Judge Wolfe credited Wehmeier's testimony that the two 

men had an ongoing friendship that, up until five months before the assault, included 

occasional sexual intimacy, and that this intimacy continued until Leu met his girlfriend. 

This is not the type of non-consensual or short-lived sexual involvement that falls outside 

the ordinary person's understanding of a "sexual relationship." 

                 Leu's next argument is that the term "sexual relationship" is impermissibly 

vague because it lends itself to arbitrary or selective enforcement.  Because Leu did not 
raise this claim in the district court, he must show plain error.30 

                 Leu does not argue that the police or prosecuting authorities have actually 

engaged in arbitrary or selective enforcement in their prosecution of domestic violence 

crimes; nor does he provide any evidence of such conduct.  The Alaska Supreme Court 

has   held   that   there   must   be   actual   evidence   of   a   history   of   arbitrary   or   capricious 

enforcement to invalidate a statute on this ground, or the language of the statute must be 
so conflicting and confused that arbitrary enforcement is inevitable.31               A law will not be 

invalidated simply because of its potential for arbitrary enforcement.32 

        29   See Anchorage v. Suzuki, 41 P.3d 147, 150 (Alaska 2002) (discussing rules of 

statutory construction); Norman J. Singer and J.D. Shambie Singer, 2A Statutes and Statutory 
Construction,  47:7 at 306-11 (7th ed. 2007). 

        30   See Alaska R. Crim. P. 47(b);  Garroutte v. State, 508 P.2d 1190, 1191 (Alaska 


        31  Lazy Mountain Land Club v. Matanuska-Susitna Borough Bd. of Adjustment and 

Appeals , 904 P.2d 373, 384 (Alaska 1995) (citing Summers, 589 P.2d at 869 and  Williams 
v. State, Dep't of Revenue, 895 P.2d 99, 105 (Alaska 1995)). 

        32  Haggblom v. City of Dillingham , 191 P.3d 991, 998 (Alaska 2008). 

                                                  -  13 -                                            2303

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

               Leu tries to get around this requirement by arguing that the cases in which 

a history of selective and arbitrary enforcement has been established usually involve 

"disorderly conduct type laws" that historically have been used to "target undesirables." 

Leu argues that he should be exempt from this requirement because this historical context 

"is simply not present in the context of domestic violence cases." But we have never held 

that a defendant is required to offer evidence of selective or arbitrary enforcement only 
if the statute at issue has historically been used to "target undesirables."33   Furthermore, 

the term "sexual relationship" "is not so imprecise that it obviously would encourage 
arbitrary enforcement."34    We find no plain error. 


               We AFFIRM Leu's convictions. 

       33  See, e.g., Bachlet, 941 P.2d at 206 (receipt of bribe statute); Morrow v. State, 704 

P.2d 226, 233 (Alaska App. 1985) (imitation of controlled substance statute); McKenzie v. 
Anchorage , 631 P.2d 514, 518 (Alaska App. 1981) (gambling ordinances). 

       34  See Turney v. State, 936 P.2d 533, 544 (Alaska 1997) (quoting Summers, 589 P.2d 

at 867). 

                                            -  14 -                                        2303 
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