57 P.3d 688
Court of Appeals of Alaska.
Kevin WILLIS and Barbara Nauska, Appellants,
v.
STATE of Alaska, Appellee.
Nos. A–7587, A–7778.
Oct. 25, 2002.

OPINION

MANNHEIMER, Judge.
Kevin Willis and Barbara Nauska were indicted for seriously injuring their two-month-old child. At six o’clock in the evening on July 17, 1997, Nauska brought the baby to the emergency room at Bartlett Regional Hospital in Juneau. The baby had a fractured skull and broken ribs.

According to medical testimony, these injuries were likely inflicted when someone grasped the infant by its chest and bashed its head against a wall or other hard object. Medical testimony also indicated that the baby sustained these injuries during the two hours preceding his arrival at the hospital. During most of this time, the infant was in the care of Willis and Nauska on their small houseboat. However, Willis and Nauska both claimed that they did not know how the baby was injured.

Following a police investigation, Willis and Nauska were indicted for second-degree assault. The State conceded that it could not prove which of them had assaulted the baby. However, the indictment was based on the theory that one of them had personally assaulted the infant while the other had knowingly stood by and allowed the assault to happen—thus violating their parental duty to protect the child and rendering them criminally liable for the resulting injuries.

At trial, Willis and Nauska asserted that their babysitter, Patrick Prewett, had assaulted the baby before they returned home that afternoon. The jury rejected this defense and convicted Willis and Nauska of second-degree assault[.] Both defendants now appeal their convictions and their resulting sentences.

[…]

The adequacy of the jury instructions concerning criminal responsibility based on a parent’s failure to act to protect their child
As explained above, the State could not identify either Willis or Nauska as the person who inflicted the baby’s injuries. The State’s theory of prosecution was that one of them assaulted their child while the other stood by and allowed the assault to occur. Because the case was litigated this way, the jurors had to be instructed concerning the circumstances under which a parent can be held criminally responsible for failing to protect their child.

Judge Weeks gave the jurors an instruction that combined both theories of criminal responsibility — i.e., responsibility based on personal commission of an assault, and responsibility for failing to act to prevent the assault:

A person commits the crime of assault in the second degree if, either by acting or by failing to act when he or she has a legal duty to act, that person recklessly causes serious physical injury to another person.

In order to establish the crime of assault in the second degree …, it is necessary for the state to prove beyond a reasonable doubt the following:

First, that the event in question occurred at or near Juneau and on or about July 17, 1997;

Second, that the defendant had a duty to protect [the child];

Third, that the defendant performed an act or failed to perform an act which resulted in serious physical injury to [the child];

Fourth, that the defendant acted recklessly.

[…]

On appeal, Willis and Nauska argue that the jury instruction on the elements of assault fails to correctly state the components of criminal responsibility based on dereliction of duty. As we explain below, the defendants are correct. However, … [g]iven the facts of this case and the way it was litigated, we conclude that this jury instruction did not constitute plain error [requiring reversal].

The two culpable mental states that must be proved when a parent is charged with homicide or assault for failing to protect their child
The elements of criminal responsibility based on dereliction of duty are set out in Michael v. State, 767 P.2d 193 (Alaska App.1988). The actus reus of the offense is the defendant’s failure to act when the defendant had a duty to act. The State must show that this failure to act was “knowing”.

More specifically, when a defendant is prosecuted for failing to act, the State must show that the defendant was aware of the circumstance that triggered the duty to act and that, being aware of this circumstance, the defendant chose to do nothing—i.e., “knowingly” refrained from acting. In the case of a parent prosecuted for assault or homicide for failing to protect their child, the State must prove that the parent knew of the need to take action to protect the child and knowingly refrained from taking action.

In addition to proving this actus reus, the State must additionally prove that the parent acted with the requisite culpable mental state regarding the result specified by the offense. (In a homicide prosecution, the prohibited result is death. In an assault prosecution, the prohibited result is either serious physical injury, physical injury, or apprehension of imminent injury.)

At first blush, it might seem superfluous to require proof of a separate culpable mental state regarding the possibility of the child’s injury—for, as we have just explained, the State must prove that the parent knew of the need to protect the child in order to establish that the parent’s failure to act was “knowing”. But children often engage in sports and other activities that hold some degree of physical peril. Even though a parent understands that their child might be injured while engaging in these activities, the parent’s knowing failure to intervene does not constitute a crime unless the government also proves that the parent acted (or, more precisely, failed to act) with a culpable mental state regarding the potential injury—a culpable mental state that will vary according to the crime charged.

For example, even though a child might conceivably suffer serious physical injury while skiing or while driving a motor vehicle, the child’s parent could not be convicted of second-degree assault under AS 11.41.210(a)(2) (recklessly causing serious physical injury) for failing to take protective action unless the government proved that the parent acted “recklessly” with regard to this result—i.e., proved that the parent was “aware of and consciously disregard [ed] a substantial and unjustifiable risk” that serious physical injury would occur if the parent failed to intervene. See AS 11.81.900(a)(3), the statutory definition of “recklessly”.

Under this statutory definition, the government would have to show that the risk of serious physical injury was “of such a nature and degree that [the parent’s] disregard of it constitute[d] a gross deviation from the standard of conduct that a reasonable person would observe in the situation”. This, in a nutshell, is the difference between letting a toddler play with a firearm and letting an adolescent go on a hunting trip.

[…]
Why we conclude that Judge Weeks did not commit plain error when he gave this jury instruction
We have just explained why, when a defendant is prosecuted for second-degree assault based on dereliction of their parental duty, the government’s burden to prove that the defendant knowingly failed to act is distinct from its burden to prove that the defendant was reckless with respect to the possibility that their failure to act might result in serious physical injury. Nevertheless, it is often true that the same facts will prove both elements.

For example, if a parent does nothing even though they are aware that their spouse is assaulting their infant child, this fact will tend to prove both the defendant’s knowing failure to act and the defendant’s recklessness concerning the possibility of serious physical injury. That was the case in Michael, and it was also the State’s theory of prosecution against Willis and Nauska.

The State presented evidence that Willis’s and Nauska’s baby sustained serious physical injury in the late afternoon of July 17, 1997, that this injury was the result of an assault rather than an accident, and that Willis and Nauska were alone with the baby on a small houseboat when the injury occurred. The State alleged that one of the two defendants violently assaulted the baby while the other one looked on and did not intervene.

Faced with this theory of prosecution, Willis and Nauska conceivably might have pursued litigation strategies that highlighted the need to instruct the jury on the element of a knowing failure to act. For instance, either defendant might have contended that they left the houseboat for some reason and that their spouse was alone with the baby when the baby was injured. Alternatively, either defendant might have contended that, although they were present on the houseboat when the baby was injured, they had fallen asleep from fatigue and/or intoxication and thus they were unaware that the baby was being assaulted by their spouse. Or either defendant might have asserted that their spouse assaulted the baby but that the assault occurred in an instant, giving the defendant no time to intervene or do anything other than rush the baby to the hospital.

Likewise, the defendants might have pursued a litigation strategy that highlighted the distinction between a knowing failure to act and recklessness concerning the possibility of serious physical injury. For instance, one of the defendants might have asserted that, even though they knowingly failed to prevent their spouse from assaulting the child, they had no reason to believe that the assault would be severe enough to inflict serious physical injury on the baby.

But Willis and Nauska did not pursue such litigation strategies. Instead, from beginning to end, Willis and Nauska jointly asserted that no harm had befallen the baby while he was in their presence. Both defendants argued that Prewett [the babysitter] was the culprit—that he assaulted the baby before Willis and Nauska returned to the houseboat in the late afternoon.

Given the way this case was litigated, the jury’s crucial task was to determine who injured the baby. If it was either Willis or Nauska, this meant that the remaining spouse witnessed the assault and did nothing. Under these circumstances, the two culpable mental states effectively coalesced. Judge Weeks’s jury instruction told the jurors that the State was obliged to prove that the non-assaulting parent acted recklessly—that the non-assaulting parent was aware of and consciously disregarded a substantial and unjustifiable possibility that their spouse would inflict serious physical injury on the baby. Given the defense strategy adopted by Willis and Nauska, such a finding was tantamount to a finding that the non-assaulting parent knowingly failed to protect the baby.

[…]
Conclusion
The judgements of the superior court are AFFIRMED.

927 P.2d 1289
Court of Appeals of Alaska.
Dean C. KINNEY, Appellant,
v.
STATE of Alaska, Appellee.
No. A–5812.
Nov. 29, 1996.

OPINION

MANNHEIMER, Judge.

Dean C. Kinney was convicted of arranging a sale of liquor in a local-option community—a community where, by local vote, the sale of liquor was banned. Kinney argues that his conviction is invalid because the jury never determined whether Kinney knew that he was breaking the law when he arranged the sale of the liquor. We hold that the State was not required to prove that Kinney knew he was breaking the law.

[…]
Facts of the Case
During January and February of 1994, the state troopers conducted an investigation of bootlegging in Bethel. One of their undercover informants was Rick Wilson. Wilson had arranged to purchase liquor from A.A., a suspected bootlegger, on February 1st, but when Wilson arrived for the transaction, A.A. demurred. Instead, A.A. offered to introduce Wilson to another bootlegger. He then took Wilson to the Hammer Manor Apartments, where he introduced him to the manager, Dean Kinney. Kinney offered to sell liquor to Wilson, but Wilson declined.

The next day, Wilson returned to the Hammer Manor Apartments and attempted to purchase alcohol from Kinney. This time, Kinney told Wilson that he would have to make a telephone call first. Kinney made the call and, soon thereafter, someone knocked at Kinney’s door. Kinney went out to speak to the person at his door; when Kinney came back in, he was carrying a bottle of vodka. Kinney gave the bottle to Wilson, and Wilson gave Kinney $50.00 in pre-recorded buy money. Upon leaving Kinney’s apartment, Wilson took the bottle to his trooper supervisor and reported this transaction. Based on this sale, the troopers obtained a warrant to record ensuing transactions between Wilson and Kinney.

On February 4th, Wilson returned to Kinney’s apartment and asked if he could buy another bottle of liquor. This second transaction occurred in much the same way as the first: Kinney made a telephone call, a bottle was delivered outside Kinney’s apartment, and Kinney sold the bottle to Wilson for $50.00. During the negotiation of this sale, Wilson asked Kinney if he could “give [him] a break on the price”. Kinney replied that he was only making a profit of $5.00 on each sale and he therefore could not lower the price.

On February 18th, Wilson made a third purchase from Kinney. Wilson went to Kinney’s apartment and told Kinney that he wanted to make a purchase. This time, Kinney asked Wilson how many bottles he wished to purchase; Wilson replied that he wanted just one. Again, Wilson offered Kinney $50.00, but this time Kinney told Wilson to return one hour later. Both men left Kinney’s apartment. Approximately one hour later, Kinney returned to the apartment, and Wilson arrived soon thereafter. Kinney had a bottle of liquor for Wilson upon his return. During this third transaction, Wilson again asked Kinney to give him a break on the price, but Kinney again refused, adding that he “wasn’t making anything”.

Kinney was ultimately indicted on three counts of felony bootlegging[.] Following a jury trial in the Bethel superior court, Kinney was convicted for the second and third sales (the ones that had been recorded).

In a prosecution for bootlegging, must the government prove that the defendant knew his conduct was illegal?
At trial, Kinney asked the judge to instruct the jury that Kinney could not be convicted unless the government proved that he was “aware that his conduct was of an illegal nature”. The trial judge declined to give this instruction. On appeal, Kinney argues that his proposed instruction was constitutionally required.

Kinney’s argument hinges on language taken from Hentzner v. State, 613 P.2d 821 (Alaska 1980), a case in which the supreme court interpreted the culpable mental state required for the crime of selling unregistered securities. Hentzner was prosecuted under [a statute], which provide[d] criminal penalties for anyone who “willfully” violates the Securities Act. The supreme court had to decide what “willfully” meant.

To interpret this statute, the supreme court relied on the principle that a person may not be convicted of a crime (with the exception of minor violations and public welfare offenses) unless the government proves that the defendant acted with “criminal intent”, in the broad sense of “a culpable mental state”. Referring to this basic requirement of criminal intent, the court said:

Where the crime involved may be said to be malum in se, that is, one which reasoning members of society regard as condemnable, awareness of the commission of the act necessarily carries with it an awareness of wrongdoing. In such a case[,] the requirement of criminal intent is met upon proof of conscious action, and it would be entirely acceptable to define the word “willfully” to mean no more than consciousness of the conduct in question. … However, where the conduct charged is malum prohibitum[,] there is no broad societal concurrence that it is inherently bad. Consciousness on the part of the actor that he is doing the act does not carry with it an implication that he is aware that what he is doing is wrong. In such cases, more than mere conscious action is required to satisfy the criminal intent requirement….

The crime of offering to sell or selling unregistered securities is malum prohibitum, not malum in se. Thus, criminal intent in the sense of consciousness of wrongdoing should be regarded as a separate element of the offense[.]

Hentzner, 613 P.2d at 826.

Kinney contends that the crime of bootlegging, like the crime of selling unregistered securities, is malum prohibitum. He therefore argues that, like the defendant in Hentzner, he too could not be convicted unless the State proved that he acted with “consciousness of wrongdoing”. According to Kinney, this means proving that he understood that his conduct violated the law.

The distinction between crimes that are “mala prohibita” and those that are “mala in se” has not only shaped but, to a certain extent, also bedeviled the law. Basically, a crime is termed “malum prohibitum” if it is “not inherently evil [but is] wrong only because prohibited by the legislature”. A crime is “malum in se” if it is “wrong in [itself], inherently evil”.

However, as [legal scholars] point out, this terminology has never been precise. Generally, common-law crimes are called “mala in se” and statutory crimes are called “mala prohibita”, but courts also say that a crime is “malum in se” if it involves “moral turpitude”. These criteria sometimes point in different directions. For instance, the offenses of embezzlement and obtaining money by false pretenses are statutory expansions of the common-law crime of larceny, yet few would dispute their classification as crimes of moral turpitude.

[…]

Given criteria like these, there is little wonder that courts reach differing answers when asked to classify the same offense. For instance, the crimes of driving while intoxicated and possession of drugs have been classified by some courts as mala in se, while other courts have found them to be mala prohibita. [Legal scholars] conclude that “[t]he difficulty of classifying particular crimes as mala in se or mala prohibita suggests … that the classification should be abandoned[.]”

As an intermediate appellate court, we are loath to abandon a classification that our supreme court has expressly relied on. Rather, our task should be to interpret how that classification applies to the case before us.

Hentzner declares that a crime is malum prohibitum if “there is no broad societal concurrence that [the proscribed conduct] is inherently bad”. One could argue that even though unlicensed sale of liquor is normally malum prohibitum, sale in a local-option community is malum in se. If a person sells liquor in a community where sale is legal but restricted to certain license-holders, then the crime is simply a violation of laws regulating commercial transactions. But if a community has seen the need to prohibit all sales of alcohol, then there may be “broad societal concurrence” that the act of selling alcohol is condemnable.

Despite this potential argument, we will assume for purposes of deciding Kinney’s appeal that all laws prohibiting the sale or distribution of alcohol create mala prohibita crimes. Nevertheless, we reject Kinney’s assertion that, under Hentzner, the State had to prove that Kinney understood the law and knew that he was breaking it.

As noted above, Hentzner involved a prosecution for the crime of offering securities that had not been registered with the Department of Commerce and Economic Development. [In Hentzer], the defendant, who was attempting to raise money for a gold-mining venture, offered to sell his to-be-mined gold for the price of $80.00 an ounce (substantially below market value) to anyone who would pay the purchase price immediately. That is, Hentzner was asking people to give him money in exchange for his promise that, in several months, they would be repaid in gold at the extremely favorable rate of one ounce for every $80.00 they advanced him.

The State alleged that Hentzner’s fund-raising effort constituted the offering of a “security” (more specifically, an “investment contract”). The State’s theory was that, by offering to sell gold that had not yet been mined, Hentzner was in effect asking people to invest money upon the promise that they would share in future gold-mining profits to be derived from Hentzner’s entrepreneurial or managerial efforts.

Hentzner represented a collision between the practice of “grubstaking”, a traditional way for western miners to raise capital, and Alaska’s securities act—in particular, the labyrinth of definitions and exemptions codified in [Alaska securities laws]. Under Alaska’s securities laws, the request for a grubstake is the offer of a “security”, and a miner who wishes to ask for a grubstake must register this offering.

The definition of a security and the rules governing registration are not matters of common knowledge. Thus, the supreme court faced a situation in which a miner who pursued a traditional capital-raising practice, who engaged in no misrepresentation, and who (at least arguably) acted reasonably in failing to discover the need to register his fund-raising effort, could nevertheless face felony conviction for his failure to register the grubstake offer with the Department of Commerce and Economic Development. Given this context, it is hardly surprising that the supreme court ruled that “willfully” failing to register the grubstake offer required proof of something more than mere failure to register.

Kinney interprets Hentzner as saying that this “something more” must be proof that the defendant understood that his conduct violated the law.
[…]

[However, the] language from Hentzner indicates that the supreme court did not think it had imposed the mens rea requirement that Kinney argues for in the present appeal—the purported requirement that the government prove that the defendant acted with “knowledge of the law” and awareness “that he was breaking it”.

…

[The supreme court’s] “primary concern was to avoid application of strict liability in cases where the accused could be subjected to severe criminal penalties”.  Hentzner was charged with a felony, not for offering his investment scheme, but for failing to register it. Thus, Hentzner’s crime was one of omission. “The gist of [Hentzner’s] crime was … the defendant’s failure to perform an act required by law—registering the securities before offering them to the public.”

[W]hen a crime is defined in terms of a failure to act, “the prevailing view is that one may not be held liable if one does not know the facts indicating a duty to act”.  Thus, [under the law]  if a person reasonably fails to perceive that his business activities fall within the securities laws, so that his failure to register is an act of reasonable inadvertence, then that person should not be guilty of a felony for failing to register.

Kinney’s case is substantially different. Kinney was charged with selling alcohol; his crime was one of commission, not omission. Kinney’s sales of alcohol did not arise through inadvertence or neglect. Moreover, it is common knowledge in our society that one is not permitted to sell alcohol without a license, and it is common knowledge in Alaska that various localities have voted themselves dry. Under these circumstances,

[w]hat is essential is not an awareness that a given conduct is a “wrongdoing” in the sense that it is proscribed by law, but rather, an awareness that one is committing the specific acts which are defined by law as a “wrongdoing”. It is … no defense that one was not aware his acts were wrong in the sense that they were proscribed by law. So long as one acts intentionally, with cognizance of his behavior, he acts with the requisite awareness of wrongdoing. In the words of Justice Holmes:

If a man intentionally adopts certain conduct in certain circumstances known to him, and that conduct is forbidden by the law under those circumstances, he intentionally breaks the law in the only sense in which the law ever considers intent.

Ellis v. United States, 206 U.S. 246, 257 (1907).

It was not necessary for the State to prove that Kinney was aware of the bootlegging law and knew that his conduct violated that law. We therefore uphold the trial judge’s refusal to give Kinney’s proposed jury instruction.

[…]
Conclusion
The judgement of the superior court is AFFIRMED.