Opinion
Court of Appeals No. A-13444 No. 6912
12-09-2020
MIKE LOTT, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Olena Kalytiak Davis, Attorney at Law, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. Patricia L. Haines, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, 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, although it may be cited for whatever persuasive value it may have. See McCoy v . State , 80 P.3d 757, 764 (Alaska App. 2002). Trial Court No. 4BE-19-00034 CR
MEMORANDUM OPINION
Appeal from the District Court, Fourth Judicial District, Bethel, Terrence P. Haas, Judge. Appearances: Olena Kalytiak Davis, Attorney at Law, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. Patricia L. Haines, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee. Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges. Judge ALLARD, writing for the Court.
Judge WOLLENBERG, concurring.
Mike Lott appeals his conviction for violating a protective order. The protective order at issue prohibited Lott from being within 500 feet of his and his partner's shared residence. More specifically, the protective order prohibited Lott from being within 500 feet of the "Marie Peter Residence, Tuluksak, AK." Lott was charged with violating the protective order after the police discovered Lott and Peter residing together in their home.
AS 11.56.740(a)(1).
The protective order also contained other provisions, including a general prohibition against any contact with Peter, that are not at issue in this appeal.
At trial, Lott testified that he did not understand that the "Marie Peter Residence" referred to his and Peter's shared residence; he claimed he believed it referred to Peter's mother's house, where Peter was living temporarily after her dispute with Lott. The jury rejected Lott's testimony and convicted him.
On appeal, Lott argues that the evidence was insufficient to establish that he understood the requirements of the protective order and recklessly disregarded that his conduct violated the protective order. We disagree.
Under AS 11.56.740(a)(1), to establish that Lott committed the crime of violating a protective order, the State had to prove the following elements beyond a reasonable doubt: (1) that Lott was subject to a protective order issued under AS 18.66; (2) that Lott knew of the protective order and was aware of its provisions; (3) that Lott knowingly committed an act that violated one or more provisions of the protective order; and (4) that he did so in reckless disregard of the fact that his act violated the protective order. Lott challenges the sufficiency of the evidence as to the second and fourth elements.
As to the second element, Lott argues that the evidence was insufficient to establish that he was aware of the "literal requirements" of the protective order — i.e., he argues that the evidence was insufficient to establish that he was aware that the "Marie Peter Residence" was, in fact, his and Peter's shared residence. Notably, Lott does not dispute that the protective order did, in fact, prohibit him from being within 500 feet of his and Peter's shared residence, nor does he argue that the phrase "Marie Peter Residence" was so ambiguous as to violate his right to due process. Instead, he limits his argument to a claim of insufficient evidence.
See State v. Strane, 61 P.3d 1284, 1292 (Alaska 2003).
When we review a claim of insufficient evidence on appeal, we are required to view the evidence (and all reasonable inferences to be drawn from that evidence) in the light most favorable to upholding the verdict. We then determine whether, viewing the evidence in this light, a fair-minded juror could find that the State had met its burden of proof beyond a reasonable doubt.
Iyapana v. State, 284 P.3d 841, 848-49 (Alaska App. 2012).
Id.
Here, Lott testified that he did not understand that the "Marie Peter Residence" referred to his and Peter's shared residence. But the jury was not required to credit Lott's testimony. Instead, the jury could rely on other facts, including that Peter and Lott had children together who lived in the same home; that Peter's belongings remained in the home even after she started staying with her mother; that Peter received mail at the residence; and that, at the time the protective order was violated, Peter had moved back into the shared residence. Furthermore, the jury was not required to credit Lott's testimony that he believed the "Marie Peter Residence" referred to Peter's mother's house. Indeed, Lott's claimed belief made little sense in the context of the entire order, which, in a separate provision, specifically barred Lott from being within 500 feet of Peter's mother's house.
The protective order also made clear that, as the petitioner, Peter would have possession and use of the Marie Peter residence "regardless of ownership." And the protective order contained a provision requiring Lott to "leave and stay away from petitioner's residence" (emphasis added) as well as a writ of assistance authorizing a peace officer to "remove" Lott from the residence, if necessary. The writ of assistance also authorized the peace officer to "[a]ccompany respondent to the residence once to recover undisputed personal items [and] clothing." (Emphasis in original).
When we interpret this evidence in the light most favorable to the jury's verdict, we conclude that the evidence at trial was sufficient for a fair-minded juror to conclude that Lott understood that the "Marie Peter Residence" referred to the couple's shared residence, and not Peter's mother's house.
Lott also separately argues that the evidence was insufficient to establish that he acted in reckless disregard of the fact that his conduct violated the order. But this argument is not meaningfully distinct from Lott's first argument. That is, Lott argues that the evidence was insufficient to establish that he acted recklessly because the evidence was insufficient to establish that he knew that the "Marie Peter Residence" referred to the couple's shared residence. As we have just explained, the evidence was sufficient to establish this fact, and the evidence was therefore also sufficient to establish that by continuing to occupy that residence (particularly after Peter moved back into the residence), Lott acted in reckless disregard of the fact that his conduct violated the protective order.
Lastly, Lott challenges the district court's denial of his motion for a new trial. Lott was charged and found guilty of two separate counts of violating a domestic violence protective order. After the trial, Lott filed a motion for a new trial arguing that there was no evidence to convict him of two separate counts. The district court agreed that the evidence was insufficient to support two separate convictions, but it denied Lott's motion for a new trial. The court noted that Lott had not raised this issue before or during trial, and the court ruled that the proper remedy was merger of the two counts, not a new trial. The court therefore merged the two counts, so that Lott only received a single conviction for violating a protective order. We agree with the district court that the proper remedy was merger of the two counts into a single conviction and that Lott was not entitled to a new trial.
See Nicklie v. State, 402 P.3d 424, 426 (Alaska App. 2017) (explaining that "when a defendant is found guilty of counts that must merge, the merger results in a single conviction of record") (citing Whitton v. State, 479 P.2d 302 (Alaska 1970)); see also 5 Wayne R. LaFave et al., Criminal Procedure § 19.3(e), at 339 (4th ed. 2015) ("If the objection [to multiplicity of counts] is first raised after conviction, the defendant will be entitled to relief from an improperly imposed multiple sentence, but he cannot object to the possible impact of the multiplicity upon the jury's assessment of his guilt.").
The judgment of the district court is AFFIRMED. Judge WOLLENBERG, concurring.
Like many protective orders, the protective order issued in this case prohibited the respondent, Mike Lott, from being within 500 feet of a specific location: the petitioner's residence. But because Tuluksak does not use street addresses, the petitioner's address was listed on the protective order only as the "Marie Peter Residence, Tuluksak, AK." For the reasons explained in the Court's opinion, I agree that the evidence was sufficient for the jury to conclude that Lott understood that the "Marie Peter Residence" referred to his and Peter's shared home, and that the evidence was therefore sufficient to convict Lott of violating the protective order.
But describing a specific location only as the petitioner's residence creates a risk of ambiguity and confusion. According to Black's Law Dictionary, a residence is "[t]he place where one actually lives" — and where a person lives is not always easy to define, especially when their housing situation is unstable. Using imprecise descriptors in a protective order may leave a respondent uncertain of the order's terms, and also make it more difficult for the State to prove the notice required to establish a violation of the order.
Residence, Black's Law Dictionary (11th ed. 2019).
The easiest way to avoid this problem is to provide a street address. But other methods can be used in rural villages that do not use street addresses. In Shayen v. State, for example, we recognized that for sex offenders living in rural villages and required to register their residence, the Department of Public Safety has accepted descriptions like "three houses south from [the Post Office]" and "Paul Beebe's old house, 2nd from [the] road facing north." We have also upheld, as sufficiently particular, a search warrant that described the house to be searched as "the Betty Mayo Fleener residence on 3rd Street," when the warrant was accompanied by an affidavit further describing the house as "the last house on the street on the right before going out to the base."
Shayen v. State, 373 P.3d 532, 534 (Alaska App. 2015) (alterations in original).
Fleener v. State, 686 P.2d 730, 734 (Alaska App. 1984). --------
Similar descriptions can and should be used in protective orders. Such descriptions eliminate the risk of ambiguity and confusion and any resulting due process concerns. And because providing a clear description of the location to be avoided should increase the rate of compliance and make it easier to prosecute instances of non-compliance, these descriptions also better protect the safety of the petitioner.
With these considerations in mind, I concur in the Court's decision to affirm Lott's conviction.