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Elisey E. Martusheff v. State of Alaska (9/4/2020) ap-2674

Elisey E. Martusheff v. State of Alaska (9/4/2020) ap-2674

                                                   NOTICE
  

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

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                                 303 K Street, Anchorage, Alaska  99501
  

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                IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



ELISEY E. MARTUSHEFF,  

                                                                  Court of Appeals No. A-12793  

                                   Appellant,                  Trial Court No. 3PA-16-00938 CR  



                          v.  

                                                                          O  P  I  N  I  O  N  

STATE OF ALASKA,  



                                   Appellee.                     No. 2674 - September 4, 2020  



                 Appeal            

                           from the District Court, Third Judicial District, Palmer,  

                              

                 William L. Estelle, Judge.  



                                     

                 Appearances:   Michael Horowitz, Kingsley, Michigan, under  

                 contract with the Public Defender Agency, and Quinlan Steiner,  

                 Public  Defender,  Anchorage,  for  the  Appellant.    Glenn  J.  

                  Shidner,  Assistant  District  Attorney,  Palmer,  and  Kevin  G.  

                 Clarkson, Attorney General, Juneau, for the Appellee.  



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

                                                                                

                                   *  

                  Senior Judge.   



                 Judge MANNHEIMER.  



    *    Sitting  by   assignment  made  pursuant  to  Article  IV,  Section  11  of   the  Alaska  



Constitution and Administrative Rule 23(a).  


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

                    In  April  2016,  while  Elisey  E.  Martusheff  was  incarcerated  at  the  

                                                                                                                               



Matanuska-Susitna Pretrial Correctional Facility, he asked a corrections nurse whether  

                                                                                                                         



he was going to receive any medications.  When the nurse said no, Martusheff launched  

                                                                                                                       



a container of urine and feces at the nurse.  The nurse was hit by this waste, and it also  

                                                                                                                               



splashed on two other corrections officers who were standing nearby.  

                                                                                                            



                    Based on this incident, Martusheff was convicted of three counts of first- 

                                                                                                                              



degree harassment - one count for each of the corrections employees.  

                                                                                                                



                    A defendant commits the crime of first-degree harassment if, acting "with  

                                                                                                                             



intent to harass or annoy another person", the defendant "subjects another person to  

                                                                                                                                  



offensive physical contact" with feces or various body fluids, including urine.   See  

                                                                                                                               



AS 11.61.120(a)(5) (which defines the basic crime of harassment by offensive physical  

                                                                                                                        



contact) and AS 11.61.118(a)(1) (which raises the degree of the crime if the offensive  

                                                                               



contact is by feces or bodily fluids).  

                                                            



                    At trial, Martusheff's attorney conceded that Martusheff acted with the  

                                                                                                                                



intent to harass or annoy the corrections nurse when he threw the urine and feces at him,  

                                                                                                                              



and  that  Martusheff  was  therefore  guilty  of  the  count  of  first-degree  harassment  

                                                                                                                   



involving the nurse.  But the defense attorney argued that Martusheff was not guilty of  

                                                                                                                                  



the other two harassment charges involving the corrections officers - and Martusheff  

                                                                                                                    



renews that argument on appeal.  

                                                    



                    The issue here is how to interpret the harassment statute.   As we just  

                                                                                                                               



explained, each charge of harassment required the State to prove that Martusheff acted  

                                                                                                                             



"with intent to harass or annoy another person" and that Martusheff "subject[ed] another  

                                                                                                                          



person to offensive physical contact".  

                                                             



                    Martusheff  argues  that  this  crime  is  committed  only  when  these  two  

                                                                                                                               



elements involve the same person - i.e., when a defendant intends to harass or annoy  

                                                                                                                            



another person and the defendant subjects that person to offensive physical contact. The  

                                                                                                                                



                                                               - 2 -                                                          2674
  


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

 State, on the other hand, argues that if a defendant acts with the intention of harassing                                                                                                                                                                                                                         



or  annoying another person, the defendant commits the crime of harassment                                                                                                                                                                                                                                                                                                                        if   the  



defendant takes action that subjects                                                                                                                                     any person                                             to offensive physical contact - even if                                                                                                                                             



this physical contact is with an unintended victim (                                                                                                                                                                                                   i.e., not the same person that the                                                                                                                   



defendant intended to harass or annoy).                                                                                                                                                         



                                                                At Martusheff's trial, the trial judge adopted a slightly modified version of                                                                                                                                                                                                                                                                     



the   State's   interpretation  of   the   statute.     The   trial   judge   instructed   the   jury   that   if  



Martusheffintended to harass or annoy any person (and remember, Martusheffconceded                                                                                                                                                                                                                                                                                             



that   he   intended   to   harass   or   annoy   the   nurse),   then   Martusheff   could   properly   be  



convicted of a separate count of harassment for each person who was hit by his waste,                                                                                                                                                                                                          



 so long as the State proved that Martusheff was at least reckless regarding the possibility                                                                                                                                                                                                                                                                              



that this other person would be subjected to contact with this waste.                                                                                                                                                                                                                                                                



                                                                As we explain in this opinion, the wording of the harassment statute is                                                                                                                                                                                                                                                                           



ambiguous on this point, and the legislative history of the statute does not directly                                                                                                                                                                                                                                                                            



address this point.                                                                     To the extent that this legislative history is pertinent to the question                                                                                                                                                                                                                  



raised here, it suggests that Martusheff's interpretation of the statute is correct - that the                                                                                                                                                                                                                                                                                                               



legislature envisioned that the                                                                                                             victimof the offensive physical contact would be the same                                                                                                                                                                                              



person who was targeted by the defendant.                                                                                                                                                                     



                                                                When the wording and the legislative history of a criminal statute do not                                                                                                                                                                                                                                                                   



resolve a question of statutory interpretation, we are required to construe the statute                                                                                                                                                                                                                                                                                                    



                                                                                                                    1  

against the government.                                                                                                                                                                                                                                                                                                                                                                                      

                                                                                                                            We therefore interpret the harassment statute to mean that the  



                                                                                                                                                                                                                                                                                                                                                                                              

person who is subjected to the offensive physical contact must be the same person whom  



                 1              See, e.g.,   Whiting v. State, 191 P.3d 1016, 1023 (Alaska App. 2008) ("To the extent  



that  a  statute  defining  criminal  liability remains                                                                                                                                                                                 ambiguous  even  after  we  subject  it  to  

recognized methods of statutory construction, we must resolve that ambiguity against the                                                                                                                                                                                                                                                                                 

government.").  



                                                                                                                                                                                                   -  3 -                                                                                                                                                                                               2674
  


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

the defendant intended to harass or annoy. And for this reason, we reverse Martusheff's                                                                                                                



convictions on the two counts involving the corrections officers who were standing near                                                                                                                                       



the nurse.                  We affirm Martusheff's conviction for harassment of the nurse.                                                                                                                



                  Our analysis of the harassment statute                                                



                                    Some Alaska criminal statutes clearly state that the victim of the crime                                                                                                             



need   not be the same person                                                      whom the                       defendant intended                                     to hurt.                  For   example,  



Alaska's first-degree murder statute declares that a defendant commits that crime if,                                                                                                                                              



acting "with intent to cause the death of another person", the defendant "causes the death                                                                                                                                 



                                           2  

of   any  person".                                                                                                                                                                                                     

                                                  Similarly, a defendant commits robbery if, in the course of taking  



                                                                                                                                                                                                                   

(or attempting to take) property from the immediate presence and control of another,  



                                                                                                                                                                                                                                

the defendant uses or threatens the immediate use of force "upon any person" for the  



                                                                                                                                                                                                                                   

purpose of preventing or overcoming resistance to the taking, or for the purpose of  



                                                                                                                                                                                                                                 

compelling "any person" to engage in conduct that will aid the defendant's taking of the  



                          3  

property.    



                                                        

                                    On the other hand, some Alaska criminal statutes - such as our stalking  



                                                                                                                                                                                                                        

statute and one clause of our third-degree assault statute - clearly state that the victim  



                                                                                                                                                                                                                                 

of the crime must be the person whom the defendant targeted (or a family member of the  



                                              4 

                        

targeted victim).                                                                                                                                                                                                                           

                                                  And Alaska's kidnapping statute contains both types of provisions:  



         2        AS 11.41.100(a)(1)(A). Our second-degree murder statute and our first-degree assault      



statute contain provisions that are worded in an analogous way; see  AS 11.41.110(a)(1) and  

AS 11.41.200(a)(2).  



         3        AS 11.41.510(a).  



         4        See AS 11.41.270(a) and (b)(1) & (b)(5) (stalking), and AS 11.41.220(a)(2) (third- 

                                                                                                                             

degree assault by making repeated threats to cause death or serious physical injury to another  

                                                                                                                                                                                                                

                                                                                                                                                                                                       (continued...)  



                                                                                                              - 4 -                                                                                                          2674
  


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

provisions that require proof that the defendant's actions were                                                      directed   toward   the  



targeted victim, as well as provisions that speak of instilling fear in either the targeted                                               



                                               5  

victim or a "third person".                       



                                                                                                                                                

                        The provision of the harassment statute that is at issue in Martusheff's case,  



                                                                                                                                                  

AS 11.61.120(a)(5), is worded in a way that falls between these two poles.  The two  



                                                                                                               

operative clauses of this provision - "with intent to harass or annoy another person",  



                                                                                                                                            

and "subjects another person to offensive physical contact" - do not clearly specify  



                                                                                                                                                

whether the person who is subjected to the offensive physical contact must be the same  



                                                                                                                                               

person that the defendant intended to harass or annoy. And the statute makes sense when  



                                      

it is read either way.  



                                                                                                                                                   

                        The harassment statute was enacted as part of the 1978 revision of the  



                                                                                                                                                   

Alaska Criminal Code. The legislative commentary's description of this statute does not  



                                                                                                                                                    

resolve the question raised here. The commentary simply states that paragraph (5) of the  



                            

statute "covers subjecting a person to offensive physical contact if done with an intent  



                                    6  

                                        

to harass or annoy".  



                                                                                                                                              

                       Likewise,  when  the  staff  counsel  for  the  legislature's  Criminal  Code  



                                                                                                                                         

Revision  Subcommission,  Barry  Stern,  explained  the  "offensive  physical  contact"  



                                                                                                                                            

provision to the House Judiciary Committee in January 1978, he did not directly address  



                                                                                                                                             

the issue raised in the present case.   However, Mr. Stern's description of the statute  



      4     (...continued)  



                                                                                                                                                   

person, if the defendant is acting with the intent of placing that person in fear that they or a  

family member will suffer death or serious physical injury).  



      5     See AS 11.41.300(a)(1)(A), (B), (C), and (F).  



      6     Commentary to Alaska's revised criminal code, 1978 Senate Journal, Supp. No. 47  

                                                                                                                                                     

(June 12), p. 97.  



                                                                        -  5 -                                                                  2674
  


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

suggested that the person who was subjected to the offensive physical contact was the                                                                                                                                    



same person that the defendant intended to harass or annoy.                                                                                                   



                                   Stern first explained that the "offensive physical contact" provision was                                                                                                           



intended to cover conduct that did not cause any physical pain (because any conduct that                                                                                                                                



caused pain was already covered by the assault statutes), but which would have been a                                                                                                                                         



battery   at   common   law   - conduct                                                           such   as   slight  shoving   or   spitting.     Stern   then  



explained that, initially, the "offensive physical contact" provision was drafted to cover                                                                                                                         



any   touching   of   another   person   if   done   "with  reckless   disregard   for   the   offensive,  



provocative, injurious, or insulting effect".                                                                   However, Stern told the Committee that the                                                               



provision had been narrowed - "redrafted to require [an] intent to harass or annoy the                                                                                                                                   



                                                                                                                                                                                                    7  

person, and the person has to be subject[ed] to offensive physical contact."                                                                                                                            



                                                                                                                                                                                                                        

                                   Stern's repeated  use of the words "the person" in this last part of his  



                                                                                                                                                                                                                         

explanation suggests that a defendant's intent to harass or annoy had to be directed at the  



                                                                                                                                                                             

same person who was subjected to the offensive physical contact.  



                                                                                                                                                                                                                                    

                                   This interpretation of the "offensive physical contact" provision of the  



                                                                                                                                                                                                                       

statute - i.e., interpreting the phrase "another person" as meaning the person who was  



                                                                                                                                                                                                       

the target of the defendant's conduct - is consistent with the way "another person" is  



                                                                                                                                              

used in the other provisions of the harassment statute.  



                                                                                                                                                                                                          

                                   Two other subsections of the harassment statute use the phrase "another  



                                                                                                                                                                                                       

person" in contexts where the phrase clearly means "the person whom the defendant  



                                                                                                                                                                                                      

intended to harass or annoy".  Subsection (a)(1) of the statute declares that a defendant  



                                                                                                                                                                                                       

commits harassment "if, with intent to harass or annoy another person", the defendant  



                                                                                                                                                                                                      

"insults, taunts, or challenges another person in a manner likely to provoke an immediate  



                                                                                                                                                                                                           

violent response". And subsection (a)(2) of the statute declares that a defendant commits  



         7       Minutes  of   the  House  Judiciary   Committee's  consideration  of   House  Bill  661,  



January 28, 1978, pp. 4-7.  



                                                                                                          -  6 -                                                                                                      2674
  


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

harassment "if, with intent to harass or annoy another person", the defendant "telephones                                                                                                                               



another and fails to terminate the connection with intent to impair the ability of that                                                                                                                                                       



person to place or receive telephone calls".                                                                                  



                                       In short, both Barry Stern's testimony to the House Judiciary Committee  



and the wording of these two sibling provisions of the harassment statute indicate that                                                                                                                               



the drafters of the statute                                           understood the phrase                                          "another person" to mean the person who                                                                  



was the target of the defendant's effort to harass or annoy.                                                                                                               



                                       This conclusion is further supported by the                                                                              fact that our "offensive physical                                 



contact" provision is derived from the mid-1970s version of the Oregon harassment                                                                                                                                       



 statute, ORS  166.065(1)(a). Like subsection (a)(5) of Alaska's harassment statute, the                                                                                                                                                        



former   Oregon   harassment   law   provided   that   "[a]   person   commits   the   crime   of  



harassment if, with intent to harass, annoy or alarm another person, he ... [s]ubjects                                                                                                                                       



                                                                                                                 8  

another to offensive physical contact".                                                                               



                                                                                                                                                                                                                               

                                       We could find no Oregon cases where Martusheff's issue of statutory  



                                                                                                                                                                                                                                               

interpretation was raised. However, the commentary to the Oregon statute declares that  



                                                                                                                                                                                                                                          

this statute was derived from a New York statute (the pre-1992 version of New York  



                                                                                                                                                                                          9  

                                                                                                                                                                                                                                          

Penal Law  240.25, now renumbered as Penal Law  240.26).                                                                                                                                      And this New York  



                                                                                                                                                                                                                             

harassment provision clearly stated that the person who was subjected to the unwanted  



                                                                                                                                                                                                                     

physical contact had to be the person whom the defendant was targeting.  



                                                                                                                                                                                                                                      

                                       (Under the New York statute, a defendant was guilty of harassment "when,  



                                                                                                                                                                                                                                    

with intent to harass, annoy or alarm another person", the defendant "strikes, shoves,  



                                                                                                                                                                                                                                                  

kicks  or  otherwise  subjects  such  other  person  to  physical  contact,  or  attempts  or  



                                                                                

threatens to do the same".)  



          8         Quoted in State v. Sallinger, 504 P.2d 1383, 1384 (Or. App. 1972).  



          9        See  Oregon Criminal Law Revision Commission, Proposed Oregon Criminal Code,  



Final Draft and Report (July 1970), Commentary to Article 26, section 223.  



                                                                                                                      -  7 -                                                                                                                 2674
  


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

                                         Although the original version of the Oregon harassment statute used the                                                                                                                                                   



ambiguous "another person" phrasing, the statute was reworded in the mid-1980s so that                                                                                                                                                                           



it now contains New York's unambiguous phrasing:                                                                                                                         a person commits the crime of                                                               



harassment in Oregon "if the person intentionally ... [h]arasses or annoys another person                                                                                                                                                               



by ... [s]ubjecting                                    such other person                                         to offensive physical contact".                                                                    



                                         Finally, we note that several other states have enacted criminal statutes that                                                                                                                                          



prohibit the throwing of feces or bodily fluids, and the laws of these other states clearly                                                                                                                                                            



specify that the person who is subjected to unwanted contact with feces or bodily fluids                                                                                                                                                                   



                                                                                                                                                                                                                                                                      10  

must be the person whom the defendant intended to "assault", "harass", or "alarm".      



                                                                                                                                                                                                                                        

                                         For these reasons, the State's proposed interpretation of the harassment  



                                                                                                                                                                                                                                          

statute - i.e., the State's suggestion that the statute covers both intended and unintended  



                                                                                                                                                                                                                                                     

victims - is a doubtful reading of the statute. While there might be valid policy reasons  



                                                                                                                                                                                                                                                    

to write a broader statute, both the wording of the harassment statute (read as a whole)  



                                                                                                                                                                                                                                                       

and the legislative history of the "offensive physical contact" provision of the statute  



                                                                                                                                                                                                                                                                 

suggest that the drafters wrote a narrower statute - a statute which requires proof that  



                                                                                                                                                                                                                                                                  

the person who was subjected to the offensive physical contact was the target of the  



                                                                                                                       

defendant's effort to harass or annoy.  



                                                                                                                                                                                                                                          

                                          In  sum,  the  State's  proposed  broader  interpretation  of  the  "offensive  



                                                                                                                                                                                                                                                            

physical contact" provision of the harassment statute is, at best, only arguable.  And  



                                                                                                                                                                                                                                                                 

because the meaning of this provision remains ambiguous or unclear even after it has  



           10        See  Montana Statute  45-5-214; New Hampshire Statute  642:9; New York Penal  



Law  240.32; Ohio Statute  2921.38; Oregon Statute  166.070; and Texas Penal Code   

  22.11(a).  



                                                                                                                               -  8 -                                                                                                                          2674
  


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

been subjected to legal analysis, the law requires us to construe the statute against the                                                    



                      11  

government.      



                                                                                                                                              

                      We  therefore  interpret  AS  11.61.120(a)(5)  and  AS  11.61.118(a)(1)  as  



                                                                                                                                       

requiring the State to prove that the defendant intended to harass or annoy the person  



                                                                                          

who was subjected to the offensive physical contact.  



                                                                                                                                            

                      The State argues that even if the harassment statutes are construed in this  



                                                                                                                                     

manner, we should still affirm all three of Martusheff's harassment convictions because  



                                                                                                                               

the evidence presented at trial was legally sufficient to support findings that Martusheff  



                                                                                                                               

acted with intent to harass or annoy not only the nurse, but also the two corrections  



                                              

officers who were nearby.  



                                                                                                                                 

                      However, as we explained earlier in this opinion, the trial judge instructed  



                                                                                                                                               

the jurors that, so long as the jurors were convinced that Martusheff acted with intent to  



                                                                                                                               

harass or annoy the nurse (something that Martusheff conceded at trial), Martusheff  



                                                                                                                                               

could  also  properly  be convicted  of harassing  the two  corrections officers,  even  if  



                                                                                                                                            

Martusheff did not intend to harass or annoy the two officers (so long as Martusheff was  



                                                                                                                                              

at least reckless regarding the possibility that his waste would hit the two officers).  



                                                                                                                                          

                      In  other  words, the trial judge erroneously  told  the jurors that if  they  



                                                                                                                                           

accepted Martusheff's concession that he intended to harass or annoy the nurse, it was  



                                                                                                                                        

irrelevant whether the State proved that Martusheff acted with intent to harass or annoy  



                                                  

the two corrections officers.  



                                                                                                                            

                      Because of this erroneous jury instruction, we must reverse Martusheff's  



                                                                                                                                               

harassment convictions involving the two corrections officers even if the evidence at  



                                                                                                                                              

Martusheff's trial might be legally sufficient to support a finding that he intended to  



                                                            

harass or annoy these two officers.  



      11   See Wooley v. State             , 221 P.3d 12, 19 (Alaska App. 2009); State v. ABC Towing, 954   



P.2d 575, 579 (Alaska App. 1998).  



                                                                     -  9 -                                                               2674
  


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

          Martusheff's claim of evidentiary error at his trial  

                                                                               



                    Martusheff raises oneadditionalclaimin thisappeal: a claimof evidentiary  

                                                                                                                 



error at his trial.  Because we are reversing two of Martusheff's harassment convictions  

                                                                                                                



on other grounds, and because, at trial, Martusheff conceded that he was guilty of the one  

                                                                                                                            



remaining count of harassment (the count alleging that he acted with intent to harass the  

                                                                                                                             



nurse), we need not resolve Martusheff's claim of evidentiary error.  

                                                                                                       



          Conclusion  



                    We REVERSE Martusheff's harassment convictions involving the two  

                                                                                                                           



corrections officers who accompanied the nurse. We AFFIRM Martusheff's conviction  

                                                                                                                  



involving the nurse.  

                                



                                                            -  10 -                                                       2674
  

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