State v. Nagaruk, 112598 AKDC, 2NO-S98-545 Criminal
|Docket Nº:||2NO-S98-545 Criminal|
|Opinion Judge:||Bradley N. Gater, Magistrate Judge|
|Party Name:||State of Alaska, Plaintiff v. Floyd S. Nagaruk, Dob: 9/21/79, Defendant.|
|Case Date:||November 25, 1998|
|Court:||District Court of Alaska|
Memorandum Order on Motion
Floyd Nagaruk is charged with assault in the fourth degree on G.M.N. Nagaruk has moved to modify or set aside the condition of his August 28, 1998 pretrial release, wherein the court ordered him to "not return to the residence of G.N. 1. In lieu of an evidentiary hearing, the defendant made an offer of proof, unopposed by the state, for purposes of this motion. The following facts are found based upon the record, the allegations in the complaint, and the offer of proof.
At the time of the alleged assault defendant was an 18-year-old who lived with his family in his parents' home in Elim 2. The assault is alleged to have resulted from an incident in which defendant, intoxicated, shoved fourteen-year-old A.R.D. at the Isaac Saccheus residence in Elim. For that incident, defendant is charged with harassment in case 2NO-S98-546 CR.. Thereafter defendant's 17-year-old brother G.M.N. allegedly confronted Floyd about his misconduct and was hit on the left ear for his trouble; Floyd is charged herein with that assault on his brother.
G.M.N., the alleged victim, also resided and continues to reside in the family home. Defendant would like to be able to return home. His parents wish him to return home. In their opinion he presents no risk of harm to anyone in the household or otherwise if he is not consuming alcohol. In their opinion, as parents they can provide better supervision to prevent consumption of alcohol than can anyone else, and they can better supervise him if he resides in their home. His brother does not fear further harm and also desires defendant's return to the family home. There have been no reports of any violations of court-imposed conditions since release on August 28th.
The alleged offense is a "crime involving domestic violence," as defined in AS 18.66.990: assault in the fourth degree is a crime against the person under AS 11.41; the alleged victim is (a) related to defendant within the fourth degree of consanguinity, (b) lives or has lived with the defendant, and (c) is the minor child of defendant's parents, with whom defendant lives or has lived 3. AS 12.30.027(b) thus applies, and requires that, if Nagaruk is released before or after trial or pending appeal, the court may not order or permit him to return to the family home, the residence of the alleged victim 4.
Nagaruk asserts that the condition prohibiting return to the residence of the alleged victim is subject to "modification" -- effectively, abrogation -- under the authority of AS 12.30.020(g), notwithstanding the express prohibition in AS 12.30.027(b) 1. That argument is without merit: the meaning of the statute is plain and lacking any ambiguity, and there is no indication whatsoever that the legislature intended the ban to be subject to qualification, modification or nullification 2 Nagaruk alternatively argues the unconstitutionality of AS 12.30.027(b), asserting a violation of a variety of rights, including rights of association, due process and reasonable bail.
Following the August 26 incident, Nagaruk was arrested for the assault. At arraignment on the harassment and assault charges the undersigned magistrate determined that release on recognizance could pose a danger to the alleged victim, other persons or the community, and therefore imposed conditions it "considered reasonably necessary to assure... the safety of the alleged victim, other persons, [and] the community." AS 12.30.020(a), (b)(6). The court took into account the factors detailed in AS 12.30.030(c) and, because the assault was a 'crime involving domestic violence,' focused on the safety of the alleged victim and other household members in acting to protect defendant's brother, their parents, and the community through conditions of release. AS 12.30.027(a).
This is the first time defendant has been charged with a crime; he has no history of assaultive conduct or offenses in which consumption of alcohol was involved. The court set conditions which address the safety of the victim, household members, and the community at large: defendant is prohibited from possessing or consuming alcohol, and can be tested for alcohol consumption and arrested without a warrant for any violation of that or other conditions, which include no criminal violations of law and -- somewhat redundantly -- no entry into establishments where alcohol is sold.
The court considered but did not impose a condition prohibiting contact with the alleged victim. Such condition appears unnecessary if defendant remains sober. Defendant's parents feel that he would benefit from parental supervision, given his youth. The court agrees that close parental supervision would enhance efforts to discourage and monitor consumption of alcohol and generally encourage lawful conduct, and consequently would better assure protection of the alleged victim, household members, and the community. The use of supervision...
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