      Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER .
      Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
      303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, e-mail
      corrections@appellate.courts.state.ak.us.



               THE SUPREME COURT OF THE STATE OF ALASKA

LENNIE LANE III,                               )
                                               )        Supreme Court No. S-14782
                      Appellant,               )
                                               )        Superior Court No. 3AN-11-08545 CI
              v.                               )
                                               )        OPINION
JOHN BALLOT, as Personal                       )
Representative of the Estate of                )        No. 6929 - July 25, 2014
Annie Ballot,                                  )
                                               )
                      Appellee.                )
                                               )

              Appeal from the Superior Court of the State of Alaska, Third
              Judicial District, Anchorage, John Suddock, Judge.

              Appearances: Lennie Lane III, pro se, Kenai, Appellant.
              Steven D. Smith, Law Offices of Steven D. Smith, P.C.,
              Anchorage, for Appellee.

              Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and
              Bolger, Justices.

              MAASSEN, Justice.


I.    INTRODUCTION
              Lennie Lane appeals from the superior court’s grant of summary judgment
against him in a personal injury case. The superior court applied the doctrine of
collateral estoppel to find that Lane’s criminal conviction for assaulting Annie Ballot
established that he was liable to her in tort. Lane challenges the sufficiency of the
evidence of his criminal conviction. He also challenges the application of collateral
estoppel, arguing that (1) his conviction was not final because it was on appeal at the
time the court relied on it, and (2) the verdict against him — “guilty but mentally ill” —
was not sufficient to establish the elements of the crime of which he was convicted. We
affirm the superior court’s judgment.
II.    FACTS AND PROCEEDINGS
              Annie Ballot filed suit against Lennie Lane in superior court.1 Both she and
Lane were represented by counsel. Ballot’s complaint alleged that Lane “without
provocation attacked the plaintiff, raped her[,] and beat her so severely that she was
comatose for an extended period of time and unable to conduct her personal affairs for
several months.” The complaint further alleged that “[a]s a result of the aforesaid actions
the defendant [Lane] was convicted of A[S] 11.41.410(a)(1), [AS] 11.41.210(a)(2)[,] and
AS 11.56.610.”2 Finally, the complaint alleged that “[a]s a direct and proximate result
of the conduct of the defendant, . . . Ballot suffered pain and suffering and humiliation
both past and future for which she is entitled to general damages from the defendant in
an amount to be determined at trial.” Lane, through his attorney, admitted all these
allegations in his answer.
              During a status hearing in March 2012, Lane’s attorney repeatedly
acknowledged that Lane had been convicted of crimes based on the events on which
Ballot’s civil claims were based; but Lane, participating telephonically, seemed to

       1
             Annie Ballot died after this suit was filed. The parties orally agreed at a
hearing in the superior court that her personal representative, John Ballot, could be
substituted as a party and the caption amended accordingly. The superior court so
ordered, but the parties continued to use the case’s original caption on appeal. We
amend the caption on our own order to reflect the superior court’s order.
       2
              The three listed charges are, respectively, sexual assault in the first degree,
assault in the second degree, and tampering with physical evidence.

                                            -2-                                        6929

disagree. The superior court advised that “in an abundance of caution” Ballot should file
a motion for summary judgment on liability, and Lane and his attorney could decide how
to respond. The superior court then set a damages hearing for the week of May 14.3
              Ballot filed her summary judgment motion on March 27 but failed to
support it with any evidence. Lane apparently filed no opposition, but the superior court
nonetheless denied the motion without prejudice, concluding that under Alaska Civil
Rule 56, “[a]bsent an affidavit and/or copy of [the] criminal judgment, [the attorney’s]
unsupported allegation [in the motion] is inadequate for summary judgment.”
              At the damages hearing on May 15, Ballot’s attorney had yet to acquire
documentary evidence of Lane’s conviction. He argued that the admissions in Lane’s
answer were sufficient to establish the facts necessary for liability, though he
acknowledged Lane’s apparent position that the answer had been drafted without his
approval. The superior court again relied on Civil Rule 56 for the proposition that a
motion for summary judgment must be supported by evidence; the judge suggested that
a copy of the judgment of conviction would be sufficient to establish Lane’s liability.
The judge asked Lane’s attorney for the criminal case number, then said that he would
send his administrative assistant to retrieve the file, and if it confirmed the fact of
conviction he would take judicial notice of it. Lane’s attorney then offered to stipulate
to his client’s conviction for the rape and assault. The superior court accepted the
stipulation and on that basis granted summary judgment to Ballot on the issue of liability,
a conclusion it later restated in written findings and conclusions. After taking testimony


      3
              A few days after the status hearing, Lane filed a motion for “consideration
for hearing,” bearing the case number of this case but listing Lane as the plaintiff and
“Superintendent Debbie Miller[,] Department of Corrections” as the defendant. It is not
clear what relief the motion requested; it appears that Lane was asking to be interviewed
by the police about his claims that four other inmates admitted having “framed [him] into
a life sentence.”

                                           -3-                                       6929

and other evidence on Ballot’s damages, the superior court entered judgment against
Lane for $149,989.25 plus interest, costs, and attorney’s fees.
              Lane appeals the grant of summary judgment on liability.
III.     STANDARDS OF REVIEW
              In reviewing summary judgment orders, we apply our independent
judgment to determine whether there are any genuinely disputed issues of material fact.4
If there are not, we decide de novo whether the moving party is entitled to summary
judgment as a matter of law.5
              “The applicability of the doctrine of collateral estoppel is a question of law
subject to independent review.”6 We therefore review de novo whether the elements of
the doctrine are met. In cases where collateral estoppel is applied offensively, and
especially where mutuality between the parties is lacking, the trial court may decline to
apply the doctrine to avoid unfair results.7 We review this secondary decision for abuse
of discretion.8




         4
              M.C. v. N. Ins. Co. of N.Y., 1 P.3d 673, 674-75 (Alaska 2000).
         5
              Id.
         6
              Rapaport v. Tesoro Alaska Petroleum Co., 794 P.2d 949, 951 (Alaska
1990).
         7
            See Jean Alexander Cosmetics, Inc. v. L’Oreal USA, Inc., 458 F.3d 244,
247-48 (3d Cir. 2006).
         8
              Harris v. Governale, 311 P.3d 1052, 1057 (Alaska 2013).

                                           -4-                                        6929

IV.      DISCUSSION
              A criminal conviction for a serious crime has a collateral estoppel effect in
a subsequent civil action relying on the same set of operative facts.9 Thus “a criminal
conviction resulting from a jury trial could be introduced as ‘conclusive proof’ (rather
than merely persuasive evidence) ‘of the facts necessarily determined.’ ”10 A criminal
conviction precludes relitigation of “any element of a criminal charge” for which a
litigant is convicted.11 The doctrine applies regardless of whether the convicted person
is the plaintiff12 or defendant13 in the civil action.
              Because the superior court found as an undisputed fact that Lane was
convicted of crimes based on the same facts alleged in Ballot’s civil complaint, it applied
the collateral estoppel doctrine to preclude Lane from contesting his liability for Ballot’s
claims. In reviewing this summary judgment order de novo, we consider (a) whether the
court was correct in finding that the conviction was not a genuinely disputed fact, and
(b) if the conviction was undisputed, whether the court was correct to apply collateral
estoppel and grant summary judgment on these facts, given (1) Lane’s pending criminal
appeal, and (2) the jury’s verdict that Lane was “guilty but mentally ill.” We hold that



         9
               Scott v. Robertson, 583 P.2d 188, 193 (Alaska 1978). A nolo contendere
or guilty plea has the same effect as a conviction following trial. Lamb v. Anderson, 147
P.3d 736, 744 (Alaska 2006).
         10
              Lamb, 147 P.3d at 739 (quoting Scott, 583 P.2d at 193 & n.27).
         11
              Pedersen v. Blythe, 292 P.3d 182, 185 (Alaska 2012).
         12
            See Howarth v. Alaska Pub. Defender Agency, 925 P.2d 1330, 1333
(Alaska 1996).
         13
              See Lamb, 147 P.3d at 742; Wyatt v. Wyatt, 65 P.3d 825, 831-32 (Alaska
2003).

                                             -5-                                      6929

the fact of conviction was not genuinely disputed and that Ballot was entitled to summary
judgment on Lane’s liability.
       A.      The Fact Of Lane’s Criminal Conviction Was Not Genuinely Disputed.
               Lane argues that the fact of his conviction was genuinely disputed because
it was not supported by evidence. We decide de novo whether a genuine issue of
material fact precludes summary judgment,14 and we conclude that Lane’s argument
lacks merit.
               It is true that Ballot never produced a certified copy of Lane’s conviction
in support of her motion for summary judgment, as the superior court anticipated she
would do.15 But the record clearly shows that Lane’s attorney stipulated to the fact of
conviction when the judge asked his assistant to retrieve the criminal case file, which
meant that the fact of conviction was going to be established in a matter of minutes
regardless.16 The court’s reliance on the attorney’s stipulation was not error. Lane’s
attorney having formally appeared for him, the attorney was authorized to speak and act


       14
               M.C. v. N. Ins. Co. of N.Y., 1 P.3d 673, 674-75 (Alaska 2000).
       15
             Following the superior court’s prudent course, we assume arguendo that
Lane did not authorize the key admissions in his answer and that the fact of conviction
therefore had to be proven independently. Cf. Darnall Kemna & Co. v. Heppinstall,
851 P.2d 73, 76 (Alaska 1993) (“The general rule provides that admissions made in the
pleadings are conclusively established.” (citing 9 JOHN H. W IGMORE , W IGMORE ON
EVIDENCE § 2590, at 822 (Chadbourn rev. 1981))).
       16
             Courts may take judicial notice of criminal convictions pursuant to Alaska
Rules of Evidence 201 and 203. See Dale H. v. State, Dep’t of Health & Soc. Servs.,
Office of Children’s Servs., 235 P.3d 203, 206 n.3 (Alaska 2010) (taking notice of
judgment involving crime of domestic violence, where judgment “is not part of the
appellate record” but “is not subject to reasonable dispute and is capable of ready
determination”); Lemon v. State, 522 P.2d 160, 162-63 (Alaska 1974) (upholding the
judge’s authority, in a prosecution for escape, to take judicial notice of the conviction for
which the defendant was serving his sentence at the time of the escape).

                                            -6-                                        6929

for him.17 And “admissions of fact by counsel during the course of the trial are binding
on [counsel’s] client, if they are made with the express purpose of dispensing with the
formal proof of some fact at the trial, and are thus used as a substitute for legal evidence
of the fact.”18 That is what occurred here: to spare the court and the parties the
momentary diversion of retrieving records that were nearby and readily available, Lane’s
attorney stipulated to a fact he knew could not reasonably be disputed.19
       B.     Ballot Was Entitled To Summary Judgment On Liability.
              Lane also challenges the application of collateral estoppel in this case. He
argues that he had two defenses that he was wrongly precluded from presenting because
of the superior court’s reliance on his criminal conviction to establish his liability on
Ballot’s tort claims.20 Neither of his arguments has merit.




       17
               See AS 22.20.040(b) (“When a party appears by attorney, the written
proceedings shall be in the name of the attorney, who is the sole representative of the
client as between the client and the adverse party.”); AS 22.20.050 (“An attorney may
. . . bind the attorney’s client in any of the proceedings in an action or proceeding by
agreement filed with the clerk or entered upon the journal of the court, and not
otherwise.”).
       18
              Beaulieu v. Elliott, 434 P.2d 665, 669 (Alaska 1967) (footnotes omitted).
       19
              Even if the superior court had erred by accepting the stipulation, any error
would be harmless, as the court was prepared to take judicial notice of the conviction
under Evidence Rule 201(d) once the criminal file was brought to the courtroom. Lane
cannot have been prejudiced by his attorney’s stipulation to a fact that was about to be
established in any event.
       20
             We recognize that Lane did not raise these arguments below in response to
Ballot’s motion for summary judgment. Although the arguments could be considered
waived, we address them because of the unusual circumstances of this case: not only
Lane’s current pro se status, but also the on-record disagreements between Lane and his
attorney about how they should proceed in the superior court.

                                           -7-                                        6929

              1.	      Lane’s pending criminal appeal does not bar the application of
                       collateral estoppel.
                 Lane argues that collateral estoppel should not apply because his criminal
conviction is on appeal. But “[a] pending appeal of the criminal conviction ‘is irrelevant
for the purposes of res judicata and collateral estoppel.’ ”21 If Lane were to successfully
challenge his conviction in the course of a criminal appeal or a petition for post-
conviction relief, he is not without remedy in this case; we have repeatedly recognized
that “a ‘motion to vacate any judgment resting on the preclusive effect of the earlier
judgment following its reversal would provide adequate relief’ if an appeal were later
successful.”22
              2.	      Lane’s “guilty but mentally ill” conviction is subject to the
                       collateral estoppel doctrine.
              Lane also argues that Ballot should not have the benefit of collateral
estoppel in this case because the jury in his criminal case found him “guilty but mentally
ill” rather than simply guilty. By statute, however, “[a] defendant found guilty but
mentally ill is not relieved of criminal responsibility for criminal conduct.”23
              The law thus creates a clear distinction in mental state between “guilty but
mentally ill” convictions and “not guilty by reason of insanity” acquittals. Under
AS 12.47.030(a), the “guilty but mentally ill” statute under which Lane was convicted,
              [a] defendant is guilty but mentally ill if, when the defendant
              engaged in the criminal conduct, the defendant lacked, as a
              result of a mental disease or defect, the substantial capacity


      21
             Pedersen v. Blythe, 292 P.3d 182, 185 (Alaska 2012) (quoting Wyatt v.
Wyatt, 65 P.3d 825, 831 (Alaska 2003)).
       22
              Id. at 185 n.19 (quoting Wyatt, 65 P.3d at 831); see also Alaska R. Civ. P.
60(b)(5).
       23
              AS 12.47.030.

                                            - 8 -	                                   6929

              either to appreciate the wrongfulness of that conduct or to
              conform that conduct to the requirements of law. A
              defendant found guilty but mentally ill is not relieved of
              criminal responsibility for criminal conduct and is subject to
              the provisions of AS 12.47.050.[24]
Under AS 12.47.010(d), by contrast, a defendant who asserts insanity as a defense will,
if successful, receive a “not guilty” verdict; the defendant is acquitted. To establish the
insanity defense the defendant must show that “when the defendant engaged in the
criminal conduct, the defendant was unable, as a result of a mental disease or defect, to
appreciate the nature and quality of that conduct.”25
              Thus, in sum, a defendant who is found guilty but mentally ill “lacked . . .
the substantial capacity either to appreciate the wrongfulness of [the criminal] conduct
or to conform that conduct to the requirements of law,”26 whereas one acquitted by
reason of insanity “was unable . . . to appreciate the nature and quality of that conduct.”27
In an assault case, for example, a defendant who is guilty but mentally ill may know he
is assaulting the victim but either does not know it is wrong or cannot control his




       24
             The referenced statute, AS 12.47.050, requires the Department of
Corrections to provide mental health treatment to certain offenders during their
incarceration and mandates that if or when treatment ends, the offenders must serve the
remainder of their sentences.
       25
              AS 12.47.010(a).
       26
              AS 12.47.030(a).
       27
              AS 12.47.010(a)

                                            -9-                                        6929

actions.28 A defendant who is not guilty by reason of insanity may not even know he is
assaulting the victim.29
              The distinction governs this case. Lane was convicted of sexual assault in
the first degree30 and assault in the second degree.31 By its “guilty but mentally ill”
verdict, the jury found beyond a reasonable doubt that Lane knew (or should have
known, for purposes of the assault conviction) that he was beating and raping another
person, even if he did not know that what he was doing was wrong.
              The “guilty but mentally ill” verdict on these charges establishes the facts
necessary to prove Lane’s liability in tort. Ballot’s complaint does not specify a cause


       28
              See Lord v. State, 262 P.3d 855, 860-61 (Alaska App. 2011) (explaining
why mother was properly found guilty but mentally ill when she knew she was killing
her sons but thought she was saving them from evil and sending them to heaven, thus
failing to appreciate the wrongfulness of her conduct).
      29
               “An example of a person who could successfully establish the elements of
the revised insanity defense is the defendant who, as a result of a mental disease or
defect, is unable to realize that he is shooting someone with a gun when he pulls the
trigger on what he believes to be a water pistol, or a murder defendant who believes he
is attacking the ghost of his mother rather than a living human being.” State v. Patterson,
740 P.2d 944, 946 n.8 (Alaska 1987) (quoting Commentary & Sectional Analysis for the
1982 Amendments to Alaska Law on Criminal Law and Procedure and the Revised
Criminal Code, House Journal Supp. No. 64 at 4, 1982 House Journal 2318.)
      30
             “Knowingly” is the implied mens rea required for a conviction under
AS 11.41.410(a)(1) (sexual assault in the first degree). To convict Lane under
AS 11.41.410(a)(1), the jury must have found that he knowingly engaged in sexual
intercourse and recklessly disregarded his victim’s lack of consent. See Reynolds v.
State, 664 P.2d 621, 625 (Alaska App. 1983).
       31
              “[R]ecklessly” is the mens rea required for a conviction under
AS 11.41.210(a)(2) (assault in the second degree). To convict Lane under
AS 11.41.210(a)(2), the jury must have found that he “recklessly cause[d] serious
physical injury to another person.”

                                          - 10 -                                     6929

of action, but as reasonably read it alleges tortious conduct causing physical harm; this
could include assault and battery, civil rape, and other intentional, reckless, or negligent
acts for which civil liability may be imposed. In civil cases, “[b]attery occurs when an
actor intends to cause harmful or offensive contact with another and an offensive contact
results”;32 “one need not intend injury but must intend to cause contact.”33 Intent for tort
purposes also includes “knowing that the consequence is substantially certain to result.”34
We have defined recklessness for both civil and criminal purposes as “unreasonably
disregarding a known risk of substantial physical harm to another.”35 The jury’s verdict
of “guilty but mentally ill” on the criminal charges of sexual assault in the first degree
and assault in the second degree established beyond a reasonable doubt that Lane
knowingly “engage[d] in sexual penetration with another person without consent of that
person”36 and that he “recklessly cause[d] serious physical injury to another person.”37
These findings satisfy the elements of several different tort causes of action for which
Ballot could recover against Lane, including assault and battery and civil rape.38




       32
              Maddox v. Hardy, 187 P.3d 486, 498 (Alaska 2008).

       33
              DeNardo v. Corneloup, 163 P.3d 956, 960 (Alaska 2007).

       34

              See RESTATEMENT (THIRD ) OF TORTS § 1 (2010).

       35
              Lamb v. Anderson, 147 P.3d 736, 745 (Alaska 2006).

       36

              AS 11.41.410(a)(1).
       37
              AS 11.41.210(a)(2).
       38
                See Pletnikoff v. Johnson, 765 P.2d 973, 979 n.1 (Alaska 1988) (Matthews,
C.J., dissenting) (stating that “[t]he essential elements of sexual assault in the first degree
. . . are also the essential elements of the tort of rape”).

                                            - 11 -                                       6929

              Lane cites Burcina v. City of Ketchikan 39 in support of his argument that a
“guilty but mentally ill” verdict has no collateral estoppel effect. The plaintiff in Burcina
pleaded nolo contendere to arson.40 He then brought a civil suit against his psychiatrist
and treatment center, alleging that their negligent treatment of him “aggravated his
mental illness and . . . caused him to set the fire” and they were therefore liable for his
emotional distress and loss of income while imprisoned.41 The defendants moved for
summary judgment on public policy grounds, arguing that the plaintiff’s claims were
barred because they were based on his own illegal acts.42 The plaintiff argued in
opposition that there was a disputed fact as to whether he was legally insane at the time
of the arson (and if he was, that public policy could not bar his claims).43
              We held that collateral estoppel applied and the plaintiff could not relitigate
his mental state, because the nolo contendere plea required that he admit to the requisite
intent to commit arson.44 In a phrase Lane points to in his brief, we observed in Burcina
that “had [the plaintiff] wished to avoid these collateral consequences of his nolo
contendere plea, he could have asserted the defenses of either insanity, or mental disease
or defect, or could have entered a plea of guilty but mentally ill.”45 Lane urges us to




       39
              902 P.2d 817 (Alaska 1995)

       40
              Id. at 819.

       41
              Id.

       42
              Id.

       43
              Id. at 821.
       44
              Id.
       45
              Id. at 822.

                                           - 12 -                                      6929

construe this statement to mean that collateral estoppel cannot be used in cases, like his,
involving verdicts of “guilty but mentally ill.”
              Our discussion above indicates that a “guilty but mentally ill” verdict,
unlike an acquittal by reason of insanity, does not act to negate criminal intent. We
disavow any contrary meaning in the dicta Lane quotes from Burcina. In fact, this case
and Burcina are similar:       just as the nolo contendere plea in Burcina precluded
relitigation of the mental state required for the crime for which the plaintiff was
convicted, so here the “guilty but mentally ill” verdict precludes relitigation of whether
Lane committed the crimes for which he was convicted, and whether, in so doing, he
acted knowingly and recklessly.
              A more recent Indiana case parallels Burcina. The court in Rimert v.
Mortell considered a case in which a man had been found guilty but mentally ill for four
murders in South Carolina; his mother then sued an Indiana psychiatrist for having
negligently released him from in-patient care.46 One of the issues on appeal was whether
Indiana public policy prevented the defendant from recovering damages based on
conduct for which he was criminally culpable.47 Looking to South Carolina law for the
legal effect of the “guilty but mentally ill” verdicts in that state, the court concluded that
the defendant’s conviction, “despite its misleading label, contemplates complete criminal
responsibility for the killings.”48 The court applied collateral estoppel to the “guilty but
mentally ill” verdicts, holding that “[t]herefore, [the defendant] may not successfully




       46
              680 N.E.2d 867, 869 (Ind. App. 1997).
       47
             The Indiana court cites our decision in Burcina as one of the cases
supporting such a public policy. Id. at 873.
       48
              Id. at 875.

                                            - 13 -                                      6929

claim that his action should survive the public policy bar because his mental condition
rendered him not fully responsible for the killings.”49
             On this issue Alaska law is the same as South Carolina’s, as the statute
authorizing the “guilty but mentally ill” verdict, AS 12.47.030(a), explicitly states that
“[a] defendant found guilty but mentally ill is not relieved of criminal responsibility for
criminal conduct.” The jury in the criminal case found that Lane possessed the mental
state necessary to warrant a conviction; Lane was therefore not relieved of his “criminal
responsibility” despite his mental illness. We conclude that the “guilty but mentally ill”
verdict has the same collateral estoppel effect that any other guilty verdict would have.
The superior court did not err in applying collateral estoppel in its grant of summary
judgment on the issue of liability.
V.    CONCLUSION
      We AFFIRM the judgment of the superior court.




       49
              Id. at 876.

                                           - 14 -                                    6929
