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            IN THE COURT OF APPEALS OF THE STATE OF ALASKA


ROBERT ROY ROTH JR.,
                                                     Court of Appeals No. A-11088
                           Appellant,              Trial Court No. 3AN-10-13124 CR

                    v.
                                                             O P I N I O N
STATE OF ALASKA,

                           Appellee.                   No. 2417 — June 27, 2014


             Appeal from the Superior Court, Third Judicial District,
             Anchorage, Gregory Miller, Judge.

             Appearances: Jane B. Martinez, Anchorage, under contract with
             the Public Defender Agency, and Quinlan Steiner, Public
             Defender, Anchorage, for the Appellant. Ann B. Black,
             Assistant Attorney General, Office of Special Prosecutions and
             Appeals, Anchorage, and Michael C. Geraghty, Attorney
             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).
              Robert Roy Roth Jr. appeals his convictions on two counts of first-degree
child endangerment under subsection (a)(2)(A) of AS 11.51.100. This statute makes it
a crime for the parent or guardian of a child under the age of 16 to “leave” their child
with another person if the parent or guardian knows that this person is under a duty to
register as a sex offender.
              This appeal ultimately arises from the fact that Roth and the State disagree
about what it means to “leave” a child with another person.


       Roth’s mistaken characterization of this litigation


              In his brief to this Court, Roth argues that the evidence presented at his trial
was legally insufficient to support his conviction, and therefore the charges against him
should be dismissed with no possibility of re-trial. But the evidence at Roth’s trial would
only be insufficient if this Court adopted Roth’s interpretation of the statute — in
particular, Roth’s interpretation of the element of “leaving” a child with a known sex
offender.
              This question of statutory interpretation arose because the evidence at
Roth’s trial showed that Roth left his children with a man he knew to be a sex offender
while Roth went to the store, but the evidence also showed that two other adults were
present in another part of the residence (the back bedroom).
              At Roth’s trial, the prosecutor argued to the jury that if Roth entrusted his
children to the sex offender, he was guilty of violating the child endangerment statute
even if other adults were present in the residence. But the defense attorney argued to the
jury that the statute required proof that Roth left his children solely with the sex offender
— and that the presence of the other two adults in the house meant that, as a matter of
law, the jury should find Roth not guilty.


                                            –2–                                         2417

                The jurors were never told which of these interpretations of the statute was
correct. Even when the jurors (during deliberations) asked the court to clarify the
meaning of the statute, the trial judge told the jurors that they would have to interpret the
statute for themselves.
                Given these circumstances, Roth’s argument on appeal is not an
“insufficiency of the evidence” argument. Rather, it is an argument that Roth should
receive a new trial because the jurors were not told the proper definition of the elements
of the crime. We discussed this point of law at some length in Collins v. State, 977 P.2d
741, 751-52 (Alaska App. 1999) (concurring opinion of Judge Mannheimer, which was
adopted by the Court, id. at 748).


       Why we conclude that Roth is not entitled to litigate the proper meaning of
       the statute


                Because the issue here is one of statutory interpretation, this Court’s next
step would normally be to examine the disputed statute, its legislative history, the
policies underlying the statute, and any relevant case law from other jurisdictions, and
then reach a decision regarding the proper interpretation of the statute. But Roth’s case
is different.
                As we noted earlier, the jury received no instruction on the meaning of
“leaving” a child with a known sex offender. Instead, the jury heard only the competing
arguments of the two attorneys concerning the proper interpretation of this element of
the crime. And given the evidence presented at trial, the jurors would almost inevitably
convict Roth if they followed the prosecutor’s interpretation of the statute, but the jurors
would almost certainly acquit Roth if they followed the defense attorney’s interpretation.




                                            –3–                                        2417

              Predictably, after about two hours of deliberations, the jury sent a note to
the trial judge asking for clarification of this point of law. Specifically, the jurors asked
the judge to tell them whether the child endangerment statute is violated whenever a
parent entrusts a child to a known sex offender, even though another adult is present —
or whether, instead, the government must prove that the sex offender was the sole adult
present.
              When the trial judge summoned the parties to discuss the jury’s note, the
two attorneys restated their competing interpretations of the statute. The prosecutor
reiterated the State’s position that the gist of the offense is the parent’s decision to entrust
a child to the care of a known sex offender — and that, if the jury found that Roth
entrusted his children to a known sex offender, the fact that there were two other adults
in the back bedroom at that time was no defense. The defense attorney, for his part,
reiterated his position that the statute applies only to situations where a parent entrusts
a child to one sole individual. In particular, the defense attorney told the trial judge that
if the jury had a reasonable doubt “[as to whether] Mr. Roth left his child[ren] in the sole
care of [the sex offender], then their decision should be ‘not guilty’.”
              The trial judge frankly acknowledged that he could not decide which of
these differing interpretations was correct. The judge then proposed the solution of
letting the jurors interpret the law for themselves:

                     The Court: I would propose answering the [jury’s]
              question as follows: ... “The Court cannot interpret the
              statute for the jury. The jury must interpret the law as it is
              written, and apply the evidence to that interpretation as the
              jury thinks appropriate.”




                                             –4–                                          2417

              Both attorneys stated their agreement with the trial judge’s approach. In
particular, Roth’s defense attorney told the judge, “I do agree that the Court cannot
interpret the law for the jury[.]”
              The prosecutor then suggested that the jurors should be instructed to use
their “common understanding of words” when they interpreted the statute. Responding
to the prosecutor’s suggestion, the trial judge reworded his proposed response to the
jury’s question:

                    The Court: How about the following: “The Court
              cannot interpret the statute for the jury. Where particular
              words or phrases are not defined, the jury should use reason
              and common sense.” ?

Roth’s attorney responded, “Your Honor, I’d say that we could — I think that [what you
just proposed] sounds appropriate.”
              After a little more discussion about the precise wording of the response to
the jurors, the trial judge announced the final version of his response:

                    The Court: Let me read [my draft response] from the
              beginning: “The Court cannot interpret the statute for the
              jury. Where particular words or phrases are not defined
              elsewhere in the instructions, the jury should use reason and
              common sense. You should take all of the instructions as a
              whole. [And] Instruction No. 8 [that you already received]
              contains all applicable portions of the statute.”

                     I see you both nodding your head?

                     Defense Attorney: Yes, Your Honor. I think that
              that’s a fair statement of the law.

The defense attorney then tried to hedge his bet:


                                          –5–                                       2417

                      Defense Attorney: Out of an abundance of caution,
              could I say that, if I’m wrong, I’d just like to make a point for
              appeal in [the event that] this case would have to go up to the
              Court of Appeals — because we are treading new ground
              here without much guidance from the Court of Appeals or
              [the] statutes.

                     The Court: So noted.

              The trial judge then gave this written response to the jurors. Thirty minutes
later, the jury returned its verdicts — finding Roth guilty.


              (a) The judge’s response to the jury was plainly erroneous


              The judge’s response to the jury’s question was obvious error — because
trial judges are under a duty to instruct the jurors on all matters of law that they need to
make their decision. This principle is codified in Alaska Criminal Rule 30(b): “The
court shall instruct the jury on all matters of law which it considers necessary for the
jury’s information in giving their verdict.”
               Here, the jury needed to know whether to follow the prosecutor’s
suggested interpretation of the statute, or the defense attorney’s competing interpretation
of the statute, or some other interpretation.
              We acknowledge that the task confronting the trial judge was a difficult
one: the language of the statute does not directly resolve the question of statutory
interpretation that the parties were debating, and the trial judge had little time to research
this issue. But the judge remained under a duty to give the jury an answer — a duty to
make his best effort to ascertain the proper definition of the elements of the crime, and
then to tell the jury this definition. It was error for the judge to tell the jurors that they


                                            –6–                                         2417

would have to interpret the statute on their own — that they would simply have to do
their best, using reason and common sense, to sort out the legal dispute between the
prosecutor and the defense attorney.


              (b) But Roth’s attorney clearly made a tactical choice when he
              encouraged the judge to give that improper response


              When a litigant wishes to raise a point on appeal as a claim of plain error,
one thing the litigant must show is that they (or their attorney) did not make a tactical
decision to refrain from objecting to the trial court’s action or ruling. Adams v. State,
261 P.3d 758, 773 (Alaska 2011).
              The record in this case shows that Roth’s attorney did not simply fail to
object to the judge’s error (telling the jurors that they would have to interpret the statute
for themselves). Rather, Roth’s attorney actively encouraged the trial judge to commit
that error.
              Moreover, the record reveals a clear tactical reason why Roth’s attorney
would encourage the judge not to give the jurors any further instruction on this issue of
statutory interpretation.
              As we have explained, the prosecutor and the defense attorney argued
competing interpretations of the offense during their summations to the jury. Given the
evidence presented at Roth’s trial, the jurors would almost certainly acquit Roth if they
followed the defense attorney’s interpretation of the statute. On the other hand, the
jurors would almost certainly convict Roth if they followed the prosecutor’s
interpretation of the statute.
              In their question to the trial judge, the jurors explicitly asked the judge to
tell them which of these interpretations was correct.


                                           –7–                                         2417

              If Roth’s attorney pressed the trial judge for a definitive ruling on this point
of law, he ran the risk that the judge would ultimately decide that the prosecutor’s view
of the statute was correct — which, in practical terms, meant that Roth would be
convicted. But if the judge declined to issue a ruling on the meaning of the statute, then
the jurors would be free to adopt the defense attorney’s interpretation if they found it
convincing. Alternatively, there was a chance that if the jurors were unable to reach
consensus about the meaning of the statute, they might conclude that this, by itself,
constituted a reasonable doubt as to whether the State had proved Roth’s guilt.
              Under these circumstances, there were obvious tactical advantages in the
course adopted by the defense attorney — obvious benefits to be gained by encouraging
the judge to tell the jurors that the court was unable to give them any further instruction
on the elements of the crime, and that they would just have to interpret the statute for
themselves.
              We accordingly hold that Roth is not entitled to pursue his jury instruction
argument as a claim of plain error.
              We acknowledge that, right after the trial judge told the attorneys that he
intended to respond to the jury’s question in the manner that the defense attorney
approved of, the defense attorney tried to hedge his bet — by declaring “out of an
abundance of caution” that if he was wrong about how the trial judge should respond to
the jury’s question, “[he’d] just like to make [this] a point for appeal in [the event that]
this case would have to go up to the Court of Appeals”. The trial judge responded, “So
noted.”
              But neither the defense attorney’s statement nor the trial judge’s response
is sufficient to save Roth from the consequences of the procedural default that occurred
in this case. This Court will not allow an attorney to actively encourage a trial judge to



                                            –8–                                         2417

issue a particular ruling and, at the same time, preserve the right to challenge the judge’s
ruling on appeal simply by mentioning the possibility that the ruling might be wrong.
              As this Court explained in Lengele v. State, 295 P.3d 931, 934-35 (Alaska
App. 2013), even in cases where an attorney expressly disagrees with a trial court’s
ruling on jury instructions, the attorney must do more than simply indicate their
disagreement if the attorney wishes to preserve a claim for appeal. The attorney’s
objection must be specific enough to alert the trial judge to the nature of the alleged error
in (or omission from) the jury instructions. 1
              This rule applies even more forcefully to the circumstances of Roth’s case:
here, the defense attorney, far from disagreeing with the trial judge’s refusal to give the
jury any further instruction on the elements of the crime, actually encouraged the judge
to take that stance.
              Nor is the situation changed by the trial judge’s response, “So noted.” A
trial judge has no authority to exempt a litigant from the rules governing the preservation
of points on appeal. See Williams v. State, 214 P.3d 391, 393 (Alaska App. 2009).


              (c) Roth’s remaining constitutional claims


              A large portion of Roth’s brief is devoted to several constitutional attacks
on the child endangerment statute. Roth claims that if the child endangerment statute is
not interpreted as he argues it should be, then the statute violates various constitutional
guarantees.




       1
          Lengele, 295 P.3d at 935. See also In re Estate of McCoy, 844 P.2d 1131, 1134
(Alaska 1993); Pierce v. State, 261 P.3d 428, 432-33 (Alaska App. 2011); Heaps v. State, 30
P.3d 109, 114 (Alaska App. 2001).

                                           –9–                                         2417
              None of these constitutional claims was raised in the trial court. Nor do any
of these claims rise to the level of plain error under the facts of Roth’s case.


       Conclusion


              The judgement of the superior court is AFFIRMED.




                                          – 10 –                                      2417

