Opinion
Court of Appeals No. A-11055 Trial Court No. 3AN-09-5359 CRNo. 6022
02-26-2014
JONATHAN NEAL JARNIG, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Marjorie Mock, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Jason Gist, Assistant District Attorney, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law.
MEMORANDUM OPINION
Appeal from the District Court, Third Judicial District, Anchorage, Pamela Washington, Judge.
Appearances: Marjorie Mock, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Jason Gist, Assistant District Attorney, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Coats, Senior Judge.
Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).
Judge MANNHEIMER.
Jonathan Neal Jarnig appeals his conviction for violating the conditions of his felony bail release (specifically, for being outside the presence of his third-party custodian). Jarnig contends that his trial judge failed to adequately instruct the jurors regarding the culpable mental states required for this offense.
The statute that Jarnig was charged with violating, AS 11.56.757(a), declares that a person is guilty of a crime if, having been released on bail, they "violate[] a condition of release imposed by a judicial officer" (other than the obligation to appear whenever ordered by the court, which is covered by a separate statute, AS 11.56.730).
Jarnig was on pre-sentencing bail release for a felony, and the superior court had imposed the requirement of a court-approved third-party custodian to monitor Jarnig on a twenty-four-hour basis. While Jarnig was on bail release, the police stopped him for a traffic offense. Jarnig's third-party custodian was not in the car with him, so the State charged Jarnig with violating the conditions of his release.
At Jarnig's trial, the jury received two instructions describing the elements of this offense.
One of these instructions, Jury Instruction No. 9A, told the jurors what circumstances and conduct the State had to prove: (1) that, at the time of these events, Jarnig stood charged with a felony, (2) that he had been released on bail, and (3) that he violated a condition of his bail release.
When the court and the parties were discussing jury instructions, Jarnig pointed out that Instruction 9A did not speak of the culpable mental states that the State had to prove with respect to these three elements. The trial judge invited Jarnig to submit an instruction addressing this problem. Jarnig did so, and the instruction he submitted was ultimately given to the jury as Instruction No. 13.
Instruction No. 13 tracked the language of AS 11.81.610(b). It told the jurors that, under Alaska law, the culpable mental state that must be proved with respect to conduct is "knowingly", and the culpable mental state that must be proved with respect to a circumstance is "recklessly". (These two terms, "knowingly" and "recklessly", were defined for the jurors in Instructions 14 and 15.)
On appeal, Jarnig argues that, even after receiving Instructions 9A and 13, the jurors still might not have understood exactly what the State was required to prove.
Jarnig points out that these two instructions do not contain specific cross-references to link the culpable mental states described in Instruction 13 to the three elements described in Instruction 9A. In other words, the jurors were never expressly told which of the elements described in Instruction 9A constituted "conduct", and which of those elements constituted a "circumstance".
Although the jury instructions are indeed flawed in the manner Jarnig describes, Jarnig bears a substantial portion of the responsibility for this problem. As we have explained, Jarnig raised this problem in the trial court, and the judge gave the instruction that Jarnig proposed. Thus, Jarnig's claim on appeal is potentially governed by the doctrine of invited error. At the least, it is a claim of plain error.
See Anderson v. State, 289 P.3d 1, 3 (Alaska App. 2012): "The doctrine of invited error applies when a court takes improper action at the express request of a party, and then, on appeal, the party seeks reversal of the court's judgement on the basis of that action."
We conclude that even under the more lenient standard of "plain error", Jarnig is not entitled to reversal of his conviction. When the parties argued Jarnig's case to the jury, they did not focus on Jarnig's mental state.
The prosecutor argued simply that the offense was proved because (1) the superior court had ordered Jarnig to be within the sight or sound of his third-party custodian, and (2) when the police stopped Jarnig for the traffic offense, the third-party custodian was not in the car.
Jarnig's attorney did not dispute that the superior court had told him to be within "sight or sound" of his third-party custodian, nor did the defense attorney dispute that the third-party custodian was not in the car with Jarnig. Nor did the defense attorney argue that Jarnig had been laboring under a mistake about the meaning of the superior court's bail order.
Instead, the defense attorney argued that the State had failed to prove, beyond a reasonable doubt, that Jarnig was out of compliance with that bail order at the time of the traffic stop. Specifically, the defense attorney argued that even though Jarnig was not in the physical presence of his third-party custodian, "there are various other ways for a person to be in sight and/or sound".
The defense attorney suggested that this bail condition would be satisfied if Jarnig and his third-party custodian had been riding in separate cars, but the third-party custodian had Jarnig's car within her sight. The defense attorney also suggested that the bail condition would be satisfied if Jarnig and his third-party custodian had been talking to each other on mobile phones. The defense attorney then argued that the State's evidence did not conclusively disprove these two possibilities — either that the third-party custodian had been accompanying Jarnig's car in a separate vehicle, or that Jarnig had been talking on the phone to his third-party custodian.
In sum, Jarnig's defense at trial did not hinge on an assertion about his mental state or his understanding of the superior court's bail order. Rather, Jarnig's defense hinged on the assertion that the State had failed to disprove all the possible ways in which Jarnig might have been in compliance with the court's bail order.
In the context of challenges to jury instructions, the Alaska Supreme Court has declared that plain error exists when the challenged jury instruction(s) "obviously create[d] a high likelihood that the jury [would] follow an erroneous theory[,] resulting in a miscarriage of justice." Here, given the way Jarnig's case was litigated, the flaw in the jury instructions — the failure to link particular culpable mental states to the individual elements of the offense listed in Jury Instruction 9A — does not amount to plain error.
Aviation Associates, Ltd. v. Temsco Helicopters, Inc., 881 P.2d 1127, 1131 n. 7 (Alaska 1994), quoting Ollice v. Alyeska Pipeline Service Co., 659 P.2d 1182, 1185 (Alaska 1983).
Conclusion
The judgement of the district court is AFFIRMED.