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Moran v. State (9/2/2016) ap-2517

Moran v. State (9/2/2016) ap-2517


             The text         of   this opinion can be corrected before the opinion is published in the                            

             Pacific Reporter              .   Readers are encouraged to bring typographical or other formal                              

             errors to the attention of the Clerk of the Appellate Courts:    

                                                   303 K Street, Anchorage, Alaska  99501  

                                                                   Fax:  (907) 264-0878  

                                                        E-mail:  corrections@  

                             IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                    



                                                                                                     Court of Appeals No. A-11299  


                                                     Appellant,                                   Trial Court No. 3KN-11-1025 CR  


                                                                                                                  O   P   I   N   I   O   N  


                                                     Appellee.                                      No.  2517  -  September  2,  2016  


                              ppeal from the Superior Court, Third Judicial District, Kenai,  


                           Anna M. Moran, Judge.  


                           Appearances:  Charles P. Moran, in propria persona, Soldotna,  


                           for   the   Appellant.                      Callie   Patton   Kim,   Assistant   Public  


                           Defender, and Quinlan Steiner, Public Defender, Anchorage, for  


                           the Alaska Public Defender Agency, appearing as amicus curiae  


                           aligned   with  the   Appellant.                              Terisia  Chleborad,  Assistant  


                           Attorney General, Office of Criminal Appeals, Anchorage, and  


                           Michael C. Geraghty and Craig W. Richards, Attorneys General,  


                           Juneau, for the Appellee.  


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



                           District Court Judge. 


                           Judge MANNHEIMER.  

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

Constitution and Administrative Rule 24(d).                             

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

                                     In the early morning of June 26, 2011, Charles P. Moran was arrested for                                                                                                                       

assaulting his wife Amanda.                                                   Later that day, Moran initiated the first of seven telephone                                                                        

calls that he made to his wife from jail.                                                                    

                                     Moran told Amanda that he loved her.                                                                      When Amanda complained about                                                  

her injuries, and when she blamed Moran for causing those injuries, Moran told Amanda                                                                                                                                

that she had been injured by falling down the stairs, and then he told her that he did not                                                                                                                                         

want to say anything more about this matter over the phone.                                                                                                             

                                     Moran was subsequently convicted of two criminal charges:                                                                                                          one count of                   

                                                        1                                                                                                                                           2  

                                                           and one count of second-degree unlawful contact.                                                                                                 Moran now  

third-degree assault,                                                                                                                                                                                                           

challenges the validity of those convictions.  


                                    With regard to Moran's unlawfulcontact conviction, the statute that defines  


this crime, AS 11.56.755(a), declares that a defendant commits the crime of  second- 


degree  unlawful contact  if,  having been  arrested  for  one  of  the  crimes  defined  in  


AS 11.41 ("offenses against the person") or for any other crime of domestic violence, the  


defendant  "initiates  communication  or  attempts  to  initiate  communication  with  the  


alleged victim of the crime" before the defendant's initial appearance in front of a judge  


or magistrate (or before the dismissal of the criminal charge, if that occurs first).  


                                     Moran's argument on appeal hinges on the fact that this statute does not  


expressly require the State to prove that a defendant was ever notified that it would be  


illegal for the  defendant to communicate with (or attempt to communicate with) the  


alleged victim.                                 Moran argues that the statute is unconstitutional because it does not  


require proof of notice.  


          1       AS 11.41.220(a)(5).                                    

         2        AS 11.56.755(a).  


                                                                                                                - 2 -                                                                                                            2517

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


                    More specifically, Moran contends that, unless defendants are told about  


this statutory prohibition, defendants would have no reason to think that  it  would be  


unlawful for them to communicate with the victim.  Thus, Moran argues, the statutory  


definition of the crime violates the constitutional guarantee of due process of law.  


                    The State responds that Moran is essentially arguing that  his conviction  


should be set aside because he was unaware that there  was a statute that made his  


conduct a crime.  Relying on the maxim, "ignorance of the law is no excuse", the State  


argues that it does not matter whether Moran knew that his act of telephoning his wife  


constituted a crime.  


                    For the reasons explained in this opinion, we conclude that Moran has the  


better of this argument.  Before the State could lawfully impose a criminal penalty on  


Moran for telephoning his spouse, the State was required (at a minimum) to prove that  


Moran was told that it was unlawful for him to contact his spouse.  We therefore reverse  


Moran's conviction for second-degree unlawful contact.  


                    With regard to Moran's third-degree assault conviction, Moran argues that  


the trial judge improperly allowed the State to rely on inadmissible evidence at trial, and  


he also argues that his trial on this charge should have been  bifurcated (because one  


element of the State's proof was that Moran had prior convictions for assault).  For the  


reasons explained in this opinion, we conclude that neither of those claims has merit.  


          The constitutional limits on the doctrine that "ignorance of the law is no  



                    The well-known maxim, "Ignorance of the law is no excuse", encapsulates  


two inter-related principles:  (1) that the government normally is not required to prove  


that a criminal defendant was aware of the fact that a statute prohibited the defendant's  

                                                              - 3 -                                                          2517

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


conduct, and (2) that a defendant normally is not allowed to defend a criminal charge by  


asserting ignorance of the governing law.  


                     These  two  principles  clearly  apply  when  the  conduct  for  which  the  


defendant is being punished is "malum in se" - that is, "[conduct]  which reasoning  


members of society regard  as condemnable".  Hentzner v. State, 613 P.2d 821, 826  


(Alaska 1980).            In such cases,  a defendant's "awareness  of  the commission of the  


 [prohibited] act necessarily carries with it an awareness of wrongdoing", and it does not  


matter whether the defendant was subjectively aware that there was a criminal statute  


covering their conduct.  Ibid.  


                     The supreme court described this generalrule in Alex v. State , 484 P.2d 677  


(Alaska 1971):  



                     [The government need not prove a person's] awareness that  


                     [his] given conduct ... is a "wrongdoing" in the sense 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".   It is ...  no defense that one was not aware  


                     [that] his acts ... were proscribed by law.  So long as one acts  


                     intentionally, with cognizance of his behavior, he acts with  


                     the  requisite  awareness  of  wrongdoing.                       In  the  words  of  


                     [United States Supreme Court] Justice Holmes:  


                               If a man intentionally adopts certain conduct in certain  


                               circumstances  known  to  him,  and  that  conduct  is  


                               forbidden by  the law under those circumstances, he  


                               intentionally breaks the law in the only sense in which  


                               the law ever considers intent.  


                    Ellis v. United States, 206 U.S. 246, 257, 27 S.Ct. 600, 602,  


                     51 L.Ed. 1047, 1053 (1907).  


Alex , 484 P.2d at 681-82.  

                                                               - 4 -                                                          2517

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


                     But though this is the rule that generally applies,  there are due process  


limits to this rule.   As our supreme court explained in Hentzner, some criminal statutes  


punish conduct that the law classifies as malum prohibitum -  i.e., conduct that is not  


inherently bad in and of itself, but is nevertheless proscribed for reasons of social policy.  


With regard to these  malum prohibitum  offenses,  where "there is no broad societal  


concurrence that [the underlying conduct] is inherently bad",  



                     [c]onsciousness on the part of the actor that he is doing the  


                     act [that happens to be proscribed by law] does not carry  


                     with it an implication that he is aware that what he is doing  


                     is wrong.  In such cases, more than mere conscious action is  


                     needed to satisfy the criminal intent requirement [of the due  


                     process clause].  


Hentzner, 613 P.2d at 826.  


           The potential constitutional problems posed by Alaska's unlawful contact  




                     The  offense  that  Moran  was  convicted  of  -  second-degree  unlawful  


contact as defined in AS 11.56.755(a) - is a malum prohibitum offense.  This statute  


restricts the actions of defendants from the time of their arrest until the time of their first  


appearance before a judicial officer, prohibiting them from initiating (or trying to initiate)  


a communication with the alleged victim of their crime.  


                     The legislature enacted this statute for the purpose of restricting the right  


granted by AS 12.25.150(b)  -  the right of all arrestees to "telephone or otherwise  


communicate with [an] attorney and [with] any relative or friend".  


                     More specifically,  the unlawful contact statute was intended to prevent  


domestic  violence  offenders  from  using this  statutorily  guaranteed  telephone  call to  

                                                               - 5 -                                                          2517

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

"harass [their] victims", or to try                          to   "beat   the charge" by using the telephone call to                                  

threaten   their   victims   or   to   otherwise   induce   the   victims   to   falsely   recant   their  





                        Such activities were, of course, already illegal.                                    In essence, the legislature  


decided to make sure that these potential unlawful uses of the telephone would never  


occur in the first place - by prohibiting all communication between arrested defendants  


and  victims,  regardless of the purpose and content of those communications.                                                                     This  


prohibition remains in place until the arrestee's first appearance in front of a judicial  


officer - which can take up to two days.   (Alaska Criminal Rule 5(a)(1) declares that  


an arrestee's first appearance must occur "without unnecessary delay and in any event  


within 48 hours after arrest".)  


                        But when, as in Moran's case, a charge of domestic violence involves a  


spouse or long-term domestic partner, there are legitimate reasons why an arrestee might  


wish to communicate with the alleged victim over the course of the two days following  


their arrest.  The arrestee might want to make sure that arrangements are in place to pay  


the rent,  or that someone is available to  provide needed medical care,  or household  


transportation, or to babysit children, or to care for elderly members of the household.  

      3     See  the Minutes of the House Judiciary Committee of May 6, 1997, discussing House                                                  

Bill 245.        

      4     See  AS  11.56.510  ("interference  with  official  proceedings":                                                using  threats  to  


improperly influence a witness's testimony); AS 11.56.540 (first-degree "tampering with a  


witness":  inducing or attempting to induce a witness to testify falsely or misleadingly, or to  


unlawfully  withhold  testimony);  AS  11.56.790  ("compounding":                                                    offering  a  benefit  to  


another  person to  get  them to  conceal  an offense,  or  to  refrain  from assisting in the  


prosecution of the offense, or to withhold evidence of  the offense); AS 11.61.120(a)(4)  


(second-degree  "harassment":                           telephoning  another   person  and  threatening  them  with  


physical injury).  


                                                                         - 6 -                                                                    2517

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


                     These types of communications between spouses or domestic partners are  


protected  by the constitutional rights of association and privacy - even when one  


 spouse or partner is charged with a crime (or even convicted of a crime) that involves the  




                     For instance, in  Williams v. State, 151 P.3d 460, 469-471 (Alaska App.  


2006),  this  Court  struck  down  a  provision  of  Alaska's  bail statutes  that  prohibited  


defendants charged with a crime of domestic violence from returning to the residence  


they shared with the alleged victim  during  the pendency of the criminal case.                                               We  


concluded that, in the absence of a judicial finding that the defendant posed an ongoing  


danger to the alleged victim, there are too many situations where this provision would  


"infringe an important liberty interest without advancing any significant governmental  


interest".  Id. at 468.  See also Dawson v. State, 894 P.2d 672, 680 (Alaska App. 1995),  


where this Court held that "[any] condition of probation restricting marital association  


plainly  implicates  the  constitutional  rights  of  privacy,  liberty[,]  and  freedom  of  


association" - and that, for this reason, it "must be subjected to special scrutiny".  


                     Turning to the provisions of the unlawful contact statute, we acknowledge  


that the prohibition on communications between the defendant and the alleged victim is  


of a much shorter duration than conditions of bail or probation (no more than 48 hours).  


And as we noted in  dictum  in  Williams,  a short-term prohibition of  this  sort might  


conceivably be justified as a measure to "defus[e] a potentially violent situation until a  


judicial officer can assess the danger to the alleged victim".   Williams, 151 P.3d at 469.  


                     But the fact that there are  potential rationales for the unlawful contact  


statute's ban on domestic  communications does not necessarily mean that this ban is  




                     Any law that categorically forbids  spouses and domestic partners from  


communicating with  each  other  encroaches  upon  the  rights  of  privacy  and  familial  

                                                               - 7 -                                                          2517

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

association.   And because a total ban on communication necessarily encompasses a fair                                                                                                                              

amount of innocent or harmless communications, such a ban is constitutionally suspect.                                                                                                                    

                                  As Professor LaFave notes in his treatise on substantive criminal law, courts                                                                                                

often confront situations like the present case - situations where the legislature has                                                                                                                               

totally proscribed the knowing performance of certain acts, "even though [not] all who                                                                                                                             


engage in such acts are ... bent upon some evil or harmful course."                                                                                                              

                                   The general rule is that the legislature may prohibit a particular act if it is  


generally harmfulto society, even though some people perform the act without a criminal  


purpose. 6                   But as Professor LaFave explains, "the legislative power in this regard is not  


without limits".  Courts have struck down such statutes as unconstitutional if "they are  


                                                                                                                                                                7 - i.e., if the legislature  

too sweeping in encompassing activity that is wholly innocent"  


has  defined  the  prohibited  conduct  so  broadly  that  it  needlessly  encompasses  large  


amounts of harmless conduct.  


                                  It is debatable whether Alaska's unlawfulcontact statute would fail this test.  


But we need not address these issues further, because Moran does not directly challenge  


the underlying constitutionality of the unlawful contact statute.  Rather, Moran argues  


that if a defendant is to be criminally prosecuted for communicating with a spouse or  


domestic partner, due process requires at a minimum that the defendant receive advance  


notice that these communications are prohibited.  


         5       Wayne R. LaFave,                             Substantive Criminal Law                                         (2nd ed. 2003),  3.3(c), Vol. 1, p. 205.



                 Id., Vol. 1, p. 206.

         7       Ibid.

                                                                                                          - 8 -                                                                                                     2517

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


           Why we conclude that the unlawful contact statute must be construed to  


          require proof that the defendant was notified that they were prohibited  


          from contacting the alleged victim  


                     Our unlawful contact statute poses the same kind of due process problem  


that the supreme court addressed in Hentzner.  That is, the unlawfulconduct statute bans  


conduct that is not inherently bad in and of itself, but is instead proscribed for reasons  


of  social  policy.           In  an  attempt  to  make  sure  that  defendants  do  not  engage  in  


communications  that  would  be  unlawful (telephonic  threats,  harassment,  etc.),  the  


legislature  has   banned  all  communications  with  the  alleged  victim  -  including  


communications that are completely innocent and, at least potentially, communications  


that are necessary to the running of the defendant's and victim's joint household.  


                     In this situation, a defendant's consciousness that they are doing the act  


proscribed by the statute (i.e., communicating with the alleged victim) "does not carry  


with  it  an  implication  that  [the  defendant]  is  aware  that  [this  conduct]  is  wrong."  


Hentzner,  613 P.2d at 826.                   This being so,  and because a violation of the unlawful  


contact statute subjects the  defendant to imprisonment, the due process clause of the  


Alaska  Constitution  requires  the  government  to  prove  "more  than  mere  conscious  


action".  Ibid.  


                    We accordingly hold that a defendant can not be convicted of violating the  


second-degree unlawful contact statute without proof that they were expressly informed  


of the statute's prohibition on communications with the alleged victim.  


                    We leave for another day the question of whether the statute, so construed,  


still constitutes an unconstitutional infringement on the rights of privacy and familial  



                                                               - 9 -                                                          2517

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

                                     The admissibility of Moran's prior convictions                                                                                                                                                  

                                                                        At a pre-trial hearing, Amanda Moran testified about two prior incidents                                                                                                                                                                                                                                                                              

 of domestic violence committed against her by Moran.                                                                                                                                                                                                                                      In February 2009, Moran slapped                                                                                                             

her across the face and threw a remote control at her.                                                                                                                                                                                                                                               Based on this incident, Moran                                                                                                      

pleaded guilty to fourth-degree assault.                                                                                                                                                                        And in October 2010, Moran shoved Amanda                                                                                                                                                                        

 against a wall, punched her in the face, and strangled her.                                                                                                                                                                                                                                                Based on this incident, Moran                                                                                                

pleaded guilty to another charge of fourth-degree assault.                                                                                                                                                                                                                                                        

                                                                        On appeal, Moran concedes that evidence of these two prior assaults was                                                                                                                                                                                                                                                                                                         

 admissible under Alaska Evidence Rule 404(b)(4), and that Amanda might properly have                                                                                                                                                                                                                                                                                                                                                                

 testified about these incidents.                                                                                                                               But at Moran's trial, the prosecutor did not ask Amanda                                                                                                                                                                                                         

 to testify about the details of these two prior incidents.                                                                                                                                                                                                                                        Instead, the prosecutor called a                                                                                                                                   

 court records custodian to introduce the charging documents and the final judgements                                                                                                                                                                                                                                                                                                                           

 in the two prior criminal cases.                                                                                                                                     

                                                                        On appeal, Moran argues that the judgements of conviction in the two prior                                                                                                                                                                                                                                                                                                   

 cases were inadmissible hearsay                                                                                                                                                to the extent they were offered to prove that Moran                                                                                                                                                                                                     

 actually assaulted his wife.                                                                                                                   Moran is correct:                                                                                   in  Jones v. State                                                                            , 215 P.3d 1091, 1098-                                                                      

  1100 (Alaska App. 2009), we held that evidence of a criminal conviction is inadmissible                                                                                                                                                                                                                                                                                                                    

hearsay under Alaska law "if it is offered to prove that the defendant actually engaged                                                                                                                                                                                                                                                                                                                                          

 in the conduct that would justify that conviction."                                                                                                                                                                                                                       8  

                                                                        But the State was authorized to  introduce evidence that Moran pleaded  


guilty to the two prior assault charges.  Those two guilty pleas were Moran's personal  


 admissions that he engaged in the criminal conduct charged against him.  Moran's guilty  


pleas were thus admissible (when offered by the State) as statements of a party opponent  


under Alaska Evidence Rule 801(d)(2).  


                   8                 Citing and quoting                                                                          Douglas v. State                                                                         , 166 P.3d 61, 85 (Alaska App. 2007).                                                                                                                                                           

                                                                                                                                                                                                                          - 10 -                                                                                                                                                                                                                         2517

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


                     This point of law is explained in the "Note on Omission" included as part  


of the Commentary to Alaska Evidence Rule 803.   This "Note on Omission" declares  


that a criminal judgement is not admissible to prove that the defendant engaged in the  


conduct that would justify the entry of that judgement.  But this Note also declares that  


guilty pleas are admissible under Evidence Rule 801(d)(2) - i.e., admissible as state- 


ments of a party opponent - unless the evidence is barred by Evidence Rule 410 (i.e.,  


unless the plea is not accepted, or is withdrawn, or is vacated or reversed on appeal).  


                     To sum up this discussion: Moran is correct that the prosecutor should not  


have been allowed to introduce the prior judgements  as independent evidence  that  


Moran engaged in  the conduct that would justify his two prior assault convictions .  


However,  because those judgements were proof that Moran  admitted the two prior  


assaults  by  pleading  guilty,  it  was  proper  for  the  prosecutor  to  introduce  those  


judgements as admissions of a party opponent.  


                     (More specifically, the written judgements were admissible under Alaska  


Evidence Rule 803(8), the hearsay exception for public records, to the extent that these  


judgements were official records of the  fact  that  Moran pleaded guilty to the prior  




          Moran's argument that his trial should have been bifurcated  


                     Moran also claims that his trial on the third-degree assault charge should  


have been bifurcated because the State introduced evidence of  his two prior assault  




                     Moran        was       charged        with       third-degree         assault       as      defined        in  


AS 11.41.220(a)(5).  This charge required the State to prove that Moran had two prior  


convictions for assaultive offenses within the preceding ten years.   Moran argues on  

                                                              - 11 -                                                         2517

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


appeal that the court should have  bifurcated his trial on this count, so that the jurors  


would not be informed of Moran's prior convictions until after they found him guilty of  


the assault in the present case.  


                    But as Moran concedes, evidence of the two prior assaults (i.e., evidence  


of the assaults themselves, as opposed to Moran's convictions for those assaults) was  


admissible under Evidence Rule 404(b).  And as we have just explained, to prove those  


two prior assaults, the State was entitled to introduce evidence that Moran pleaded guilty  


to those assaults.  


                    Conceivably, one might argue that the trial judge should have required the  


State to prove Moran's guilty pleas by means other than the two prior judgements -  


e.g., through the testimony of people who were present in court when Moran offered his  


pleas, or by playing the audio record of those proceedings.   But as a practical matter,  


telling the  jurors that Moran was  convicted based on his guilty pleas added little or  


nothing to the State's case; the jurors would inevitably have deduced this.  


                    Thus, even if Moran might have been entitled to a bifurcation of his trial  


under  other  circumstances,  holding a  unitary  trial was  not  error  under  the  facts  of  


Moran's case.  



                    Moran's conviction for second-degree unlawful contact is REVERSED.  


His conviction for third-degree assault is AFFIRMED.  

                                                             - 12 -                                                          2517

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