Opinion
Court of Appeals No. A-8732.
December 14, 2005.
Appeal from the District Court, Third Judicial District, Anchorage, John R. Lohff, Judge, Trial Court No. 3AN-03-1659 CR.
Andrew Steiner and Anthony Banker, Assistant Public Advocates, Joshua Fink, Public Advocate, Anchorage, for the Appellant.
Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Scott J. Nordstrand, Acting Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Joseph C. Saucier Jr. was convicted of violating a no-contact domestic violence protective order by calling Mary E. Moore, his ex-girlfriend and the mother of his daughter, and by placing a personal notice in the newspaper addressed to his daughter. At trial, Saucier sought to assert the affirmative defense of necessity. He argued that he was justified in calling Moore because he was trying to find out if she was too impaired by drugs and alcohol to adequately care for her children.
District Court Judge John R. Lohff refused to let Saucier present a necessity defense, concluding that there was not enough evidence to support that defense. We conclude that this decision was correct and therefore affirm Saucier's conviction.
Facts and proceedings
On January 31, 2003, Moore obtained a domestic violence protective order against Saucier, her former boyfriend and the father of her youngest daughter, A.S. Moore obtained the protective order based on allegations that Saucier had sexually abused A.S. The protective order directed Saucier not to "telephone, contact, or otherwise communicate directly or indirectly" with Moore, A.S., or Moore's other daughter, C.M.
On February 14, 2003, Saucier went to the Anchorage Daily News to place the following notice in the classified advertising "personals" section:
To my Valentine, [A.S.]. [A.S.], you're a very beautiful, sweet, smart, sugar-plum princess of four years old. Your mom took your innocence away from you January 14[th], 2003, on a lie, just to get your dad out of her miserable life. This is just temporary, baby. Your dad was so nice to your mom, who I should have never trusted.
The Daily News staff told Saucier they would not print the notice but, due to an error, the notice nevertheless appeared in the newspaper the following day.
On February 14, Saucier's sister went to Moore's house, banged on her door, and left an envelope containing a copy of this personals notice. Although Moore did not normally read the newspaper, the following day she looked at the personals section and confirmed that the notice had been printed.
At trial, Moore testified that she also received several phone calls from Saucier between 1:30 a.m. and 2:00 a.m. on February 15. Moore said she knew the calls were from Saucier because his name appeared on her caller ID; however, Saucier said nothing when Moore picked up the phone, and Moore hung up.
Moore reported these calls to the Anchorage Police Department, and Officer William Stafford was dispatched to her house at 2:59 a.m. Moore showed Officer Stafford the caller ID identifying Saucier and the copy of the classified notice Saucier's sister had left on her doorstep. Officer Stafford then contacted Saucier at his home. Saucier said he called Moore because she had called him and he wanted to ask why she had called. Saucier admitted that he had tried to place a personals notice, but he said the newspaper had refused to print it.
Based on this conduct, Saucier was charged with one count of violating the protective order. Before trial, Saucier gave notice of his intent to assert the affirmative defense of necessity to justify the phone call (Saucier denied that he had made more than one phone call). His attorney made the following offer of proof in support of that defense: Moore called Saucier at about 2:00 a.m. and made "worrisome" statements concerning A.S. Saucier knew Moore had an ongoing substance abuse problem and he believed she might be drunk and high on drugs. Saucier called Moore back to check on the status of his daughter. If Saucier had confirmed that Moore was intoxicated and that his daughter was there, he might have taken some further action. But before making verbal contact, Saucier hung up because he realized he would get in trouble for violating the protective order. Saucier did not believe that calling the police and asking them to investigate the situation was an adequate remedy because he had called them on prior occasions to complain about Moore's drug and alcohol problem and nothing had been done.
AS 11.56.740(a).
After hearing this offer, Judge Lohff concluded that Saucier had not presented sufficient evidence to justify instructing the jury on the necessity defense.
The jury convicted Saucier of violating the protective order. Saucier appeals Judge Lohff's decision prohibiting his necessity defense.
Did the court err in precluding Saucier's necessity defense?
Under AS 11.81.320(a), the common-law defense of necessity is available as an affirmative defense in all criminal prosecutions, unless the legislature has indicated its intent to prohibit the defense in the defendant's situation. To establish a necessity defense, the defendant must present some evidence on each of the following elements: (1) the act charged was done to prevent a significant evil; (2) there was no adequate alternative; and (3) the harm caused was not disproportionate to the harm avoided. The first two elements are established if the defendant reasonably believed at the time of acting that those elements were present, even if that belief was mistaken. On the third element, the court must make "an objective determination . . . as to whether the defendant's value judgment was correct, given the facts as [the defendant] reasonably perceived them." The defendant's actions should be weighed against the harm reasonably foreseeable at the time, rather than against the harm that actually occurred.
Bird v. Anchorage, 787 P.2d 119, 120 (Alaska App. 1990).
Cleveland v. Anchorage, 631 P.2d 1073, 1078 (Alaska 1981).
Nelson v. State, 597 P.2d 977, 979 (Alaska 1979); Seibold v. State, 959 P.2d 780, 782 (Alaska App. 1998).
Seibold, 959 P.2d at 782 (quoting Bird, 787 P.2d at 120-21).
Nelson, 597 P.2d at 979-80.
A defendant is not entitled to a jury instruction on the defense of necessity, and is not entitled to argue that defense to the jury, unless there is "some evidence" of necessity. "In this context, `some evidence' is a term of art; it means evidence which, if viewed in the light most favorable to the defendant, is sufficient to allow a reasonable juror to find in the defendant's favor on each element of the defense." In deciding if a defendant has presented some evidence, "any weakness or implausibility in the evidence supporting [a defendant's story] is not a relevant consideration."
Lacey v. State, 54 P.3d 304, 306, 308 (Alaska App. 2002); see also AS 11.81.900(b)(2)(A) (governing affirmative defenses) AS 11.81.900(b)(19)(A) (governing normal defenses).
Lacey, 54 P.3d at 308.
Seibold, 959 P.2d at 782.
According to Saucier's offer of proof, he called Moore to check on the status of the children, then hung up when he realized he would get in trouble for violating the protective order. To establish the first prong of the necessity defense — that he reasonably believed he was acting to prevent a significant evil — Saucier offered to prove that Moore had a history of substance abuse, that he was aware of that history, and that Moore had called him in the middle of the night and made vague and worrisome statements about his daughter. In determining whether Saucier offered "some evidence" to support this element, the question is whether a reasonable juror, accepting this offer of proof as true and viewing it in the light most favorable to Saucier, could find that he had proved this element.
We conclude that Saucier presented enough evidence to raise a jury question on this element of the defense. However, as noted earlier, Saucier was not entitled to a jury instruction on the necessity defense, or to argue this issue to the jury, unless he presented some evidence to support all three elements of the defense. We therefore turn to his offer of proof on the second and third elements of the necessity defense.
Id.
With regard to the second element, the question is whether Saucier reasonably believed he had no adequate alternative to violating the protective order. According to Saucier's offer of proof, he believed he had no adequate alternative to calling Moore because he and his sister had called the police and child protection services many times to report Moore's substance abuse, and nothing had been done.
In the child custody context, we have previously held that illegal self-help remedies cannot be justified by the defense of necessity if the parent has failed to exhaust available legal remedies. In Gerlach v. State, the defendant argued that her custodial interference (hiding her daughter out of state for a year) was justified by her fear that her estranged husband was neglecting and psychologically abusing (and potentially physically abusing) the child. We ruled that the defendant had not presented "some evidence" to show that she reasonably believed she had no adequate alternatives because she had not exhausted the remedies available to her through the courts; for instance, if she believed her daughter was in imminent danger, she could have sought temporary custody instead of stipulating to her estranged husband's continued custody. We concluded that: "Where the legislature has established procedures . . . for investigating and preventing child abuse and neglect, a person cannot be permitted to ignore those procedures and rely on self-help simply because he or she distrusts lawyers, judges, and social workers."
699 P.2d 358 (Alaska App. 1985).
Id. at 361.
Id. at 362.
Id. at 363.
Saucier does not dispute that he knew he could have gone to the police or other agencies for help; the only question is whether it was reasonable for him to believe that these alternatives were inadequate. Saucier concedes that his previous contacts with the police and other agencies involved only general allegations that Moore was a drug addict, not specific assertions that his child was in immediate danger. He claims that on the night in question he called Moore in violation of the protective order to obtain more information he thought he needed to prompt the police to act — specifically that Moore "was presently impaired and presently had custody of the children." But in his offer of proof at trial, Saucier said he was prepared to testify that Moore had called him in the middle of the night, that she sounded intoxicated and high on drugs, and that she had made "worrisome" and "potentially frightening" statements about his daughter. Saucier knew Moore had custody of the girl at the time. Saucier thus already had specific information to give the police. He did not explain in district court, nor does he on appeal, why calling the police with this specific information — and then perhaps taking further action if the police did not respond — was not an adequate legal alternative to violating the protective order. Nor did his unelaborated statements that Moore made "worrisome" and "potentially frightening" statements about his daughter support an inference that Moore's children were in imminent danger, and that established procedures for preventing child abuse and neglect were inadequate to address his concerns. Based on this record, Judge Lohff reasonably concluded that Saucier did not offer enough evidence that he reasonably believed he had no adequate alternative to violating the law to support a jury instruction on the defense of necessity.
We reach the same conclusion with respect to the third element of the necessity defense. The third element requires an objective determination by the court as to whether the defendant's value judgment that the harm caused by breaking the law was not disproportionate to the harm avoided was correct, given the facts as he reasonably perceived them. The defendant's actions must be weighed against the harm reasonably foreseeable at the time, rather than against the harm that actually occurred.
Seibold, 959 P.2d at 782.
Nelson, 597 P.2d at 979-80.
Saucier argues that the foreseeable harm caused by his hang-up call was outweighed by the risk that Moore was impaired and might harm her children. But where the legislature has already spoken to the balance of harms in a particular context, we must defer to the legislature's judgment. As we observed in Gerlach:
See Cleveland, 631 P.2d at 1081.
The legislature has recognized the risk of child abuse and neglect and has established remedies to protect vulnerable children. The legislature has also recognized the emotions involved in child custody disputes and has sought to establish procedures for resolving custody disputes to ensure that the child's interest will not be subordinated to vengeful wars between parents. . . . To permit a litigant . . . to use a necessity defense as a means of relitigating a custody determination would not appreciably advance the legislative goals of preventing child abuse and neglect . . . and would not serve the legislative purposes exhibited in the enactment of the statutes providing a judicial forum to litigate child custody disputes. . . .
Gerlach, 699 P.2d at 362-63 (internal citations omitted).
Moore obtained a protective order against Saucier based on allegations that Saucier had sexually abused their daughter. Saucier, in turn, apparently made numerous complaints to the police, courts, and child protection services that Moore was a drug addict and an inadequate mother. Saucier sought to introduce his alleged evidence of Moore's drug and alcohol abuse to support his necessity defense. The State then attempted to admit evidence that Saucier was under investigation for sexually abusing his daughter.
The legislature has established judicial forums and procedures for resolving child custody disputes and obtaining and modifying domestic violence protective orders. It has specifically declared that once a protective order prohibiting communication is issued, the person subject to that order will not be excused from violating the order because the petitioner invited the communication. In other words, while Saucier might have subjectively believed that there was little foreseeable harm from the conduct he claims occurred — returning Moore's late-night phone call, then hanging up — the legislature has declared otherwise by making this offense a class A misdemeanor punishable by up to 1 year in jail and a fine of up to $10,000.
Id.
AS 18.66.100 (long-term protective orders); AS 18.66.110 (ex parte and emergency protective orders); AS 18.66.120 (modification of protective orders).
AS 18.66.130.
AS 11.56.740(b).
AS 12.55.135(a).
AS 12.55.035(b)(1)(5).
For these reasons, we agree with Judge Lohff's conclusion that Saucier failed to present some evidence that the harm caused by violating the protective order was not disproportionate to the harm avoided. As we stated in Gerlach, the legislative goals of preventing child abuse and neglect are not appreciably advanced by permitting a litigant to use the necessity defense as a means of relitigating disputes over child custody.
Cleveland, 631 P.2d at 1078.
Because Saucier did not meet his burden to present some evidence in support of all three elements of the necessity defense, we conclude that Judge Lohff did not abuse his discretion by refusing to permit Saucier to present evidence in support of that defense. Conclusion
Seibold, 959 P.2d at 783.
Saucier's conviction is AFFIRMED.