 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
PETERSEN v. STATE12/20/1996
him of the lesser degree of stalking.
Petersen also contends that an instruction on second-degree stalking was needed because the jury might have found that Petersen was not on probation. This argument was not preserved for appeal. At the close of the evidence, Petersen's attorney did submit a proposed instruction on second-degree stalking, but he had no argument to support it:
THE COURT: [Defendant's proposed] instruction number 2 is . . . stalking in the second-degree?
DEFENSE ATTORNEY: Mm-hm. It's the misdemeanor.
PROSECUTOR: The State would be opposed.
THE COURT: All right. What is the State's response to . . . defendant's [proposed] instruction number 2?
PROSECUTOR: Under Willett v. State, [836 P.2d 955, 958 (Alaska App. 1992),] the trial court's required [to instruct the jury on a] lesser included offense when, quote, "there is a factual dispute as to an element of the greater offense so that the jury could rationally acquit on the greater and convict on the lesser." . . . Here, the only element that's different between Stalking One and Stalking Two is existence of a court order. That court order, the [court] took judicial notice of. There has been no attack on that element by cross[-examination] or by [evidence in] the defendant's case. . . . As I recall, [this issue was not] brought up in any of the witnesses' testimony, save [when] Officer Shore was referring to it. I don't think a reasonable juror, in light of the evidence that was presented at trial, can find that the existence of a court order is in doubt.
THE COURT: Mr. [Defense Attorney], your response.
DEFENSE ATTORNEY: I don't have any, Your Honor.
The trial judge accordingly denied Petersen's request for a second-degree stalking instruction.
By declining to argue the point or provide any rationale for giving a second-degree stalking instruction, the defense attorney forfeited any claim of error. See Alaska Criminal Rule 30(a); Cornwall v. State, 915 P.2d 640, 653 n. 11 (Alaska App. 1996) (when a party offers a jury instruction but fails to provide any support for it when the trial judge indicates that the instruction may not be given, the party forfeits the right to assert that the trial judge should have given the instruction). See also Hohman v. State, 669 P.2d 1316, 1325-26 (Alaska App. 1983) (when a party offers evidence which is challenged for lack of relevance, and the offering party fails to make an offer of proof concerning the potential relevance of the challenged testimony, the party thereby forfeits the point on appeal). We further note that, even on appeal, Petersen fails to point to any evidence suggesting a dispute concerning the condition of probation that forbade him from contacting R.H..
Petersen also contends that the jury should have been instructed on disorderly conduct under AS 11.61.110(a)(6); this statute forbids a person from "recklessly creat a hazardous condition for others by an act which has no legal justification or excuse". Petersen concedes that the elements of stalking do not include the creation of a "hazardous condition for others", and that the State could prove Petersen guilty of stalking without proving that he committed the crime of disorderly conduct. If a jury could rationally acquit the defendant of the purported lesser offense but at the same time convict the defendant of the greater offense, then the lesser offense is not "necessarily included" in the greater. State v. Minano, 710 P.2d at 1016. Thus, disorderly conduct was not a lesser included offense of stalking.
Petersen argues that the trial judge committed error when she took judicial notice
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Alaska DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|