Perrin v. State

66 P.3d 21, 2003 Alas. App. LEXIS 49, 2003 WL 1448212

• Court: Court of Appeals of Alaska
• Decided: March 21, 2003
• Docket: No. A-7696
• Status: Published

Opinions

OPINION

STEWART, Judge.

In Gerlach v. State,¹ we upheld the superi- or court's refusal to instruct the jury on Gerlach's claimed necessity defense to a charge of first-degree custodial interference.² In this case, on the eve of trial, the State ' moved to bar Ronn B. Perrin from presenting a necessity defense relying on Gerlach. Perrin disclaimed any reliance on the affirmative defense of necessity; even so, the superior court requested a summary of Per-rin's defense.

After hearing the summary, the court reasoned that Perrin's proffered testimony was a necessity defense and announced that Per-rin's "defense" was barred by Gerlach Because we conclude the superior court applied Gerlach too broadly, we reverse.

Facts and proceedings leading to the court's Gerlach-based ruling

B.C. is Perrin's daughter, but Perrin was not married to B.C.'s mother. In 1997, Per-rin filed an action to establish his paternity of B.C. and obtain joint custody. After a eusto-dy trial in January 1998, the superior court granted joint legal custody of B.C. to Perrin and B.C.'s mother, primary physical custody to B.C.'s mother, and set a visitation schedule for Perrin.

During the summer of 1999, Perrin had court-ordered visitation with B.C. on Wednesday evenings and two out of every three weekends. On Sunday, May 15, 1999, when Perrin did not return B.C. as scheduled, B.C.'s mother called Perrin's cousin, Don Perrin. She discovered that Don had received a call from a relative in California, telling him to pick up Perrin's truck at the airport. B.C.'s mother contacted the Alaska State Troopers and reported that B.C. was missing.

About one week later, Don Perrin received a power of attorney in the mail from California from Perrin. The power of attorney gave Don Perrin authority over Perrin's residence, automotive repair business, and all his personal possessions.

The Alaska State Troopers tracked Perrin down through a phone number they found on a notepad at his business. The Troopers learned Perrin had stayed with a friend near San Diego, but had since left. On June 26, 1999, B.C.'s mother received a letter in Per-rin's handwriting from San Diego. The letter read: "Everyone is fine, safe, healthy and happy."

On August 3, 1999, the FBI located Perrin in Oklahoma. Perrin had dyed his hair. Perrin was arrested and charged with first-degree custodial interference, a class C felo-ny.³

Before jury selection on the day of Perrin's trial, the State moved to prevent Perrin from raising a necessity defense.⁴ The State argued that Gerlach precluded a necessity defense in custodial interference cases. Arguing that a necessity defense was unavailable, the State maintained that Perrin was precluded from giving his reasons for taking B.C. out of the state and describing his actions while out-of-state.

Perrin replied that he would not offer a necessity defense. He stated that he expected to present evidence to counter the element of custodial interference that requires the defendant have the requisite "intent to hold the child ... for a protracted period." ⁵

At this point, Superior Court Judge Erie Smith asked Perrin to give him, in a "nutshell," an offer of proof on his defense strategy. Perrin did so and described his relationship with B.C.'s mother, his concerns after B.C. complained to him that she was physically abused by her mother's companion, what led up to his departure from Alaska with B.C., and what he did to prepare to return to Alaska with B.C. before he was arrested.

Following this proffer, Judge Smith reviewed this court's decision in @Gerlack. Judge Smith concluded that Gerlack holds that self-help is not an acceptable defense for custodial interference and "allowing self-help to be brought in to demonstrate lack of intent essentially establishes the necessity defense without calling it that." The judge "had a lot of trouble with" the fact that Perrin was out-of-state with B.C. for two and one-half months and intended to keep her out-of-state for as long as four months. Judge Smith said that the time frame could not be viewed as anything but prolonged because Perrin "actually attempted to establish sufficient residence and job for purposes of getting California family services involved" and "attempt{ed] to stay ahead of the FBI[.]"

Judge Smith granted the State's motion and ordered Perrin not to present any evidence to the jury relating to the actions he took while out of state to prepare to raise the issue when he returned to Alaska. The judge admitted that he was "not comfortable depriving a defendant ... of his ability to defend against the intent [element.]"

Following this ruling, Perrin said that a jury trial, without the ability to present a defense, would be a "waste of judicial resources." Judge Smith suggested that Per-rin could obtain appellate review of his ruling by having a bench trial. Because the court and the parties viewed the court's ruling barring Perrin's defense testimony as non-dispositive, they concluded that a Cooksey ⁶ plea was not available. After a recess, Per-rin's attorney told the court that his client would agree to waive his right to a jury trial and proceed with a bench trial, The court dismissed the jury and proceeded to opening statements without addressing Perrin personally and asking if he understood the rights he would lose if he proceeded with a court trial.⁷

Does Gerlach bar Perrin's proffered testimony?

In Gerlach, a mother left Alaska with her daughter and hid in Washington State for over one year. The mother was arrested and convicted of first-degree custodial interference at trial.⁸

Before trial, Gerlach made an offer of proof supporting her plan to present a necessity defense.⁹ Gerlach said she would testify that she believed the child's father was not properly caring for the child because the child had a vaginal infection, was dirty and unkempt, and, also, that the father beat his children from a previous marriage.¹⁰ Ger-lach claimed she held the child out-of-state because she had little faith in the judicial system and feared she would run out of money before a custody dispute was resolved.¹¹ Gerlach had witnesses available to testify about the father's abuse of the child.¹² Gerlach maintained the purpose of this testimony was to show her state of mind and her fear of imminent harm to her daughter. The trial judge ruled that Gerlach's offer of proof was insufficient as a matter of law such that he could not instruct the jury on the necessity defense. He also precluded her from raising that defense at trial.¹³

We upheld the superior court's ruling for two reasons. First, we held that Gerlach's claim failed to meet an essential prong of a necessity defense: the harm caused by the defendant's conduct must not be disproportionate to the harm avoided.¹⁴ In addition, we concluded that Gerlach had remedies at law she did not utilize.¹⁵ We recognized that the legislature has established remedies to protect vulnerable children and has adopted procedures for resolving child custody disputes.¹⁶

A person commits the crime of first-degree custodial interference if the person commits second-degree custodial interference and also causes the child to be removed from or kept out of this state.¹⁷ To commit second-degree custodial interference, a defendant must be the relative of a child under 18 and, knowing that they have no right to do so, takes, entices, or keeps the child from its lawful custodian with the intent to withhold the child for a protracted period.¹⁸ Custodial interference is a continuing offense.¹⁹ Thus, to convict a defendant for custodial interference the State must prove a defendant committed the actus reus, "the act of taking, enticing, or keeping a child from a lawfal custodian with 'no legal right to do so,' with the necessary mental state, knowing that he or she has no legal right to take the child and intending to keep the child for a protracted period.²⁰

In his offer of proof, Perrin conceded that he removed B.C. from Alaska. He also did not dispute that he knew retaining B.C. violated the custody order. Thus, the element in dispute when the superior court considered the State's motion was whether Perrin intended to withhold B.C. from her lawful custodian for a protracted period.

Perrin argued evidence of his conduct and objectives during the alleged continuing offense was admissible to undercut the State's burden of proof on the element of whether Perrin intended to withhold B.C. for a protracted period.

After Perrin's proffer, the superior court ruled as follows:

The Court: My concern is that by essentially allowing self-help to be brought in to demonstrate lack of intent essentially establishes the necessity defense without calling it that. And that the telling the jury, well, you're only to look at this for intent, really is the same as telling-I mean, I guess maybe the burden of proof's a little different. I don't know. But essentially the jury is being given the same defense in another guise. So I think, based on the defendant's offer of proof, there isn't enough for me to find that ... the jury be informed of those particular reasons for running. I recognize that this may well straitjacket the defendant's case. I don't know if it will or not. It certainly deprives him of one key thing he wanted to explain. But it seems to me that this is just the Gerlach case all over again.

Perrin's attorney asked if the court was "ordering us not to address the issue as to what my client did to, while he was out of state, to assist him in bringing what he perceived to be abuse to the forefront, or to get help as to that issue[?]" The court responded: "I don't see how I can let it in without making this a necessity defense.... Given the Gerlach opinion, I don't see I have much choice."

Shortly after this exchange, the jury was discharged and the case proceeded to a court trial, Judge Smith found that the State proved beyond a reasonable doubt that Per-rin had the intent to withhold B.C. for a protracted period of time. Judge Smith found Perrin guilty of first-degree custodial interference.²¹

The Alaska Constitution accords criminal defendants a constitutional right to testify in their own behalf. In Hughes v. State,²² the Alaska Supreme Court observed that a defendant's right to testify in his own defense is of such fundamental importance that "Inlo defendant requesting to testify should be deprived of exercising that right and conveying his version of the facts to the court or juryL.]" ²³

Perrin disavowed any reliance on a necessity defense. Perrin planned to present evidence that described his conduct and his objectives while he was withholding B.C. from her lawful custodian. As part of its burden of proof, the State was required to prove that Perrin's conscious objective while he was withholding B.C. was to withhold her for a protracted period. Even though Per-rin's proffer contained evidence that might aid the State in meeting its burden of proof, Perrin's testimony denying that he had the conscious objective to withhold B.C. for a protracted period and describing his conduct is relevant. In fact, during the court trial, Perrin testified at length about his actions and his state of mind when he left the state and while he was out-of-state.

Moreover, even though the court was concerned that Perrin's strategy was to claim necessity without meeting the requirements of that affirmative defense, under the reasoning of Gerlach, the court could have instruct ed the jury that Perrin would have to avail himself of available legal remedies before undertaking unlawful self-help.²⁴

However, after the superior court announced its ruling after Perrin proffered his evidence, the jury was discharged in apparent reliance on that ruling, leading to a court trial where Perrin actually testified to much that he proffered before the court's ruling.

We have not ruled that the testimony of the other witnesses Perrin planned to call at his jury trial is admissible. We hold only that the superior court erred when it announced that it would bar Perrin's testimony. As with any testimony, the testimony of other witnesses must be admissible under the normal rules of evidence.

This decision does not impose any additional burden of proof on the State. The State retains the burden to prove to the trier of fact that Perrin intended to withhold B.C. for a protracted period. And Perrin is entitled to take the stand and testify that he did not have the conscious objective to withhold B.C. for a protracted period, even if Perrin's proffered testimony might not appear plausible in the cireumstances of his case. Perrin's conviction must be reversed. Under the circumstances of this case, Perrin is entitled to a jury trial.²⁵

Conclusion

The judgment of the superior court is REVERSED.

1 . 699 P.2d 358 (Alaska App.1985).

2 . AS 11.41.320(a).

3 . AS 11.41.320(b).

4 . AS 11.81.320.

5 . AS 11.41.330(a).

6 . See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974). In Cooksey, the Alaska Supreme Court established a procedure permitting a defendant to plead no contest and still preserve an issue for appeal, so long as the issue was disposi-tive of the defendant's case. Id.

7 . In Walker v. State, 578 P.2d 1388 (Alaska 1978), the Alaska Supreme Court ruled that the superior court must address a defendant personally to obtain a waiver of jury. We followed Walker in McGlauflin v. State, 857 P.2d 366, 369 (Alaska App.1993), and ruled that "the record must explicitly demonstrate that the defendant understood and personally relinquished the right to trial by jury."

8 . Gerlach, 699 P.2d at 359, 360.

9 . Id. at 359.

10 . Id.

¹¹

12 . Id. at 360.

¹³

14 . Id. at 361.

15 . Id. at 362.

16 . Id. at 362-63.

¹⁷

¹⁸

19 . Gerlach, 699 P.2d at 362.

20 . See Vachon v. Pugliese, 931 P.2d 371, 377 (Alaska 1996), quoting Strother v. State, 891 P.2d 214, 223 (Alaska App.1995).

²¹

22 . 513 P.2d 1115 (Alaska 1973).

23 . Id. at 1119.

24 . See Gerlach, 699 P.2d at 362.

25 . See Strane v. State, 16 P.3d 745, 753 (Alaska App.2001), rev'd on other grounds, 61 P.3d 1284 (Alaska 2003).