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Clark v. Municipality of Anchorage5/13/2005
npublished, 2001 WL 243424 at *6-*7 (Ohio App. 2001); Commonwealth v. Herb, 852 A.2d 356, 363-65 (Pa. App. 2004); Davis v. Commonwealth, 440 S.E.2d 426, 430-31 (Va. App. 1994).
However, Clark does not cite any of these cases, or any similar ones. Rather, Clark's particular corpus delicti argument rests solely on the assertion that his act of failing to produce proof of vehicle insurance was not corroborative conduct, but was simply an additional "statement" - as that term is defined (for purposes of the hearsay rule) in Alaska Evidence Rule 801(a)(2). In other words, Clark contends that, by failing to produce an insurance document, he intended to make a non-verbal assertion of fact: the assertion that he had no insurance. And, based on this contention that his failure to produce proof of insurance must be deemed a "statement", Clark argues that the government's proof rested solely on his out-of-court statements.
There is no merit to Clark's contention that his failure to produce an insurance document should be deemed a non-verbal assertion of fact. One might easily infer, from Clark's failure to produce an insurance document upon request, that he had no such document, and hence no insurance. But these are merely inferences to be drawn from his conduct. There is no suggestion in the record that Clark intended his conduct to be understood as an assertion of fact. Under Evidence Rule 801(a)(2), it is this intention - or lack of it - that determines whether non-verbal conduct is a "statement" for hearsay purposes. Thus, the trial judge could properly reject Clark's contention that his failure to produce proof of insurance was a "statement".
Because Clark's particular corpus delicti argument is meritless, and because he has failed to argue the issue in any other fashion, I agree with my colleagues that we should affirm the district court's ruling on this issue.
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