329 P.3d 1023
Alaska Ct. App.2014Background
- Roth Jr. was convicted of two counts of first-degree child endangerment under AS 11.51.100(a)(2)(A) for leaving his children with a known sex offender while Roth went to the store, with two other adults present in the residence.
- The jury received no definition of the term “leaving” and the court refused to instruct on its meaning, leaving interpretation to the jury.
- At trial, both sides offered competing interpretations: State argued leaving includes entrusting a child to a known sex offender regardless of others’ presence; defense argued leaving requires sole care by the sex offender.
- During deliberations, the jury asked the court to define leaving; the judge proposed and gave a response stating the jury must interpret the statute themselves and use common sense.
- Roth’s defense attorney approved the judge’s proposed response, which Alaska Appellate Court later deemed erroneous, and Roth was convicted; on appeal, Roth challenged the jury instruction issue as plain error.
- The superior court’s judgment was affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Meaning of ‘leaving’ in AS 11.51.100(a)(2)(A). | Roth argued the statute requires sole custody by the sex offender. | State contended entrusting to a known offender suffices regardless of other adults. | Judge erred by not defining the term; jury must be instructed. |
| Preservation of error given defense’s involvement. | Roth’s attorney did not merely object; encouraged the improper instruction. | Not applicable? (clarify: defense consented to the instruction.) | Roth cannot pursue plain-error claim due to tactical choice and preservation failure. |
| Constitutional challenges not preserved. | Roth raises broad constitutional claims against the statute. | No preservation; not plain error. | Constitutional claims not addressed; affirmed on other grounds. |
Key Cases Cited
- Collins v. State, 977 P.2d 741 (Alaska App. 1999) (discussed jury instruction error and preservation of points on appeal (concurring))
- Lengele v. State, 295 P.3d 931 (Alaska App. 2013) (attorney must object with specificity to preserve error; tactical considerations matter)
- Adams v. State, 261 P.3d 758 (Alaska 2011) (plain-error preservation standard)
- Williams v. State, 214 P.3d 391 (Alaska App. 2009) (preservation of points on appeal; trial court limits)
- In re Estate of McCoy, 844 P.2d 1131 (Alaska 1993) (constitutional claims not addressed when not preserved)
- Pierce v. State, 261 P.3d 428 (Alaska App. 2011) (constitutional challenges; preservation)
- Heaps v. State, 30 P.3d 109 (Alaska App. 2001) (constitutional arguments arising from statute interpretation)