Appeal from the Superior Court, Third Judicial District, Anchorage, Gregory Miller, Judge. Trial Court No. 3AN-10-13124 CR.
Jane B. Martinez, Anchorage, under contract w ith 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.[*]
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.
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 ...