Strother v. State

• Decision Date: 03 March 1995
• Docket Number: A-4857,Nos. A-4827,s. A-4827
• Citation: 891 P.2d 214
• Parties: Timothy STROTHER, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Court of Appeals

Page 214

891 P.2d 214

Timothy STROTHER, Appellant, v. STATE of Alaska, Appellee.

Nos. A-4827, A-4857.

Court of Appeals of Alaska.

March 3, 1995.

Hearing Denied June 2, 1995.

Jacalyn L. Bachlet, Asst. Public Defender, Palmer, and John B. Salemi, Public Defender, Anchorage, for appellant.

Eric A. Johnson, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Atty. Gen., Juneau, for appellee.

Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

OPINION

MANNHEIMER, Judge.

Timothy Strother appeals his conviction for first-degree custodial interference, AS 11.41.320(a). We affirm.

On May 11, 1992, at an ex parte hearing, Evangeline Strother obtained a 20-day domestic violence restraining order against her husband Timothy Strother. See AS 25.35.020. (Ms. Strother told the court that she and her husband had had an altercation in which he had repeatedly slammed her head against his knee and against the dashboard of their car.) The restraining order gave Ms. Strother exclusive custody of the couple's child, A.S. District Court Judge Peter Ashman, the judicial officer who presided at the hearing, notified Ms. Strother that a second hearing would be held on May 26, 1992 to determine whether her custody of A.S. should be extended for 90 days under AS 25.35.010.

The next day (May 12, 1992), Timothy Strother requested a hearing to contest Judge Ashman's issuance of the 20-day restraining order, and particularly the portion of that order that gave Ms. Strother exclusive custody of A.S. Strother asserted that his wife was an unfit mother; he asked the court to give custody of A.S. to his mother and grandmother.

Both Mr. and Ms. Strother appeared in court on May 13, 1992. The court denied Mr. Strother's request to modify the custody order. At the same time, the court notified him that a further hearing would be held on May 26 to determine whether Ms. Strother's custody of A.S. should be extended for another 90 days.

Evangeline Strother appeared for the hearing on May 26, but Timothy Strother did not. Mr. Strother had left the state of Alaska, although he remained in telephonic contact with his wife. Judge Ashman extended Ms. Strother's custody of A.S. for an additional 90 days. At the conclusion of the hearing, the court provided Ms. Strother with a copy of this 90-day custody order.

On May 28, 1992, the clerk's office mailed two copies of the 90-day custody order to Mr. Strother, one by regular mail and one by certified mail. On June 4, 1992, the proof-of-service receipt attached to the certified letter was returned unsigned and undelivered.

On July 4, 1992, Strother returned to Alaska, flying into Anchorage sometime before 11:00 p.m.. He drove to his mother's house in Palmer and picked up A.S., who was spending the night there. With A.S. in tow, Strother drove back to Anchorage and boarded a red-eye flight to an out-of-state destination.

The next day (July 5), Ms. Strother came to her mother-in-law's house to retrieve A.S.. Her mother-in-law told her that Strother had taken the child to Montana and that he had left behind two letters for her. In those letters, Strother told his wife that she would never see him or A.S. again. Later that day, Ms. Strother informed the police that her husband had taken A.S. in violation of a court order. Through a friend, Ms. Strother supplied the police with a copy of Judge Ashman's 90-day custody order.

Strother maintained telephonic contact with his wife even after July 4, 1992, although he refused to divulge his location or the location of their child. Strother's mother, Sheila Byington, acted as the go-between for the couple, telling Ms. Strother when to expect a call from Strother. Eventually, the police traced one of Strother's telephone calls, discovering that it originated in Rapid City, South Dakota. Working with the authorities, Ms. Strother arranged to meet her husband at the Rapid City airport on August 18, 1992; there, agents of the Federal Bureau of Investigation arrested Strother. Strother was subsequently returned to Alaska to stand trial for first-degree custodial interference, AS 11.41.320(a).

Ms. Strother apparently reconciled with her husband before trial, for she proved to be a cooperative witness for the defense. Previously, at grand jury, Ms. Strother had testified that she was the exclusive custodian of A.S. under the 90-day domestic violence order and that Strother had taken the child without her permission. She also had testified that Strother knew of the 90-day custody order when he took A.S. from Alaska because she had personally told him about the order. However, at Strother's trial, Ms. Strother stated that she herself had been unaware of the existence of the 90-day custody order. Ms. Strother asserted that she could not remember attending the May 26 hearing and could not remember ever receiving a copy of the 90-day order. She testified that she told her husband that the judge had declined to grant the order.

Alaska law provides two degrees of custodial interference. The basic elements of the crime are defined in the second-degree custodial interference statute, AS 11.41.330. The crime becomes first-degree custodial interference "if the [defendant] violates AS 11.41.330 and causes the victim to be removed from the state". AS 11.41.320(a).

Strother conceded that he removed his daughter from Alaska. Thus, the dispute at Strother's trial centered upon the remaining elements of the crime--the ones found in the second-degree custodial interference statute, AS 11.41.330(a). The pertinent portion of this statute provides:

A person commits the crime of custodial interference ... if, being a relative of a child under 18 years of age ... and knowing that the person has no legal right to do so, the person takes, entices, or keeps that child ... from a lawful custodian with intent to hold the child ... for a protracted period.

For purposes of this statute, the term "relative" includes a parent, and the term "lawful custodian" means "a parent, guardian, or other person responsible by authority of law for the care, custody, or control of another". AS 11.41.370(1)-(2).

In her instructions to Strother's jury, Superior Court Judge Beverly Cutler informed the jury that, to prove the crime of custodial interference, the State had to establish:

[that Strother] took, enticed, or kept A.S. from a lawful custodian, to wit: Evangeline Strother;

[that Strother] intended to hold A.S. for a protracted period of time; [and]

[that Strother] knew he had no legal right to take A.S. from Evangeline Strother for a protracted period of time[.]

Elaborating on this definition of the elements of the crime, the court instructed the jury:

A parent is prohibited by law from taking a child away from the other parent with the intent to keep the child for a protracted period of time to the exclusion of the other parent. Only a judicial order depriving a parent of custody permits a parent to deprive the other parent of the joint custody of the child.

As to element six ..., this element can be proved either by the state proving ... that the defendant "knew" [as defined in AS 11.81.900(a)(2) ] there was a custody order in effect giving temporary custody of A.S. to Eve Strother, or by the state proving ... that the defendant knew his taking and keeping of A.S. was without legal authority.

Relying on his wife's testimony, Strother argued that he was never informed of the 90-day custody order issued on May 26, 1992. He contended that, as far as he knew, he remained a joint custodian of A.S. and he retained the legal right to take his child where he wished. ¹ Thus, Strother asserted that even if the 90-day custody order did in fact temporarily end his legal right to exercise custody over A.S., he nevertheless lacked the culpable mental state for the crime of custodial interference because he remained ignorant of the 90-day order and therefore he did not know that his actions were unlawful.

The prosecutor argued that the 90-day custody order was, for the most part, irrelevant. If Strother knew about the 90-day order, then his actions were clearly illegal. However, the prosecutor argued, even if the 90-day order had never been issued (so that Strother and his wife each remained a joint custodian of their child), Strother would still know that he had no right to take the child, flee the state, and keep the child hidden from his wife so that she was no longer able to exercise her right of custody.

During their deliberations, the jury sent the court a note indicating that they believed the State had failed to prove that Strother knew of the 90-day custody order; they asked the court to clarify element six:

We feel the state did not prove the defendant did in fact have knowledge of the 90-day court order. Is this an issue by itself? Do we need to decide 6.B as ... part of 6.A, or on its own merit[?]

The jury's question referred to the court's instruction that "element six ... can be proved either by [proof] ... that the defendant knew there was a custody order in effect giving temporary custody of A.S. to Eve Strother, or by [proof] ... that the defendant knew his taking and keeping of A.S. was without legal authority." (emphasis added) In response to the jury's question, Judge Cutler told the jury that they could base their verdict on either theory. Shortly thereafter, the jury found Strother guilty. It therefore appears that the jury relied on the alternative theory presented in the court's instructions: the theory that Strother, even if he was unaware of the 90-day order, was nevertheless aware that he had no legal right to keep A.S. hidden from his wife.

On appeal, Strother argues that the jury instructions were fatally flawed to the extent that the instructions allowed the jury to convict Strother even after they found that he was not aware of the 90-day custody order. Strother's argument is directed to two different aspects of the...