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Graham v. State3/4/1998
MEMORANDUM AND JUDGMENT
Richard B. Graham was convicted of three counts of contributing to the delinquency of a minor, AS 11.51.130(a)(1), for furnishing beer to three teenage boys, R.C., M.R., and M.P.. Graham was a licensed foster parent, and the State had entrusted the boys to his care. Superior Court Judge Charles K. Cranston sentenced Graham to three consecutive terms of 9 months' imprisonment with 6½ months suspended, for a composite sentence of 7½ months to serve.
Graham now appeals his convictions and his sentence. For the reasons explained in the following opinion, we affirm the judgment of the superior court.
Graham first argues that Judge Cranston committed plain error when he failed to instruct the jury that it is no crime for a minor to consume alcohol if the alcohol is furnished by a parent or guardian. See AS 4.16.051(b)(1), which states that even though it is normally a crime (under AS 4.16.051(a)) to furnish an alcoholic beverage to a person under the age of 21, "his section does not prohibit the furnishing or delivery of an alcoholic beverage by a parent to the parent's child by a guardian to the guardian's ward ... if the furnishing or delivery [does not occur in a] licensed premises[.]"
Graham contends that it was crucial for the jury to receive such an instruction because Graham was charged with "induc, caus, or encourag a child under 18 years of age to do act prohibited by state law". See AS 11.51.130(a)(1). Graham argues that, because he was the boys' foster parent, he was acting in loco parentis and he was therefore the equivalent of the boys' "guardian". If Graham was the boys' "guardian" for purposes of AS 4.16.051(b), then it was not illegal for the three teenage boys to drink beer furnished by Graham, and so Graham was not guilty of contributing to their delinquency.
Because Graham did not ask for a jury instruction regarding the authority of parents and guardians to give alcoholic beverages to their children and wards, he must show that the omission of such an instruction from his trial constituted plain error. That is, Graham must show that any competent attorney or Judge would have perceived the need for such an instruction, and that the absence of this instruction manifestly prejudiced the fairness of Graham's trial. See Potts v. State, 712 P.2d 385, 394 n.11 (Alaska App. 1985); see also Marrone v. State, 653 P.2d 672, 675-681 (Alaska App. 1982).
Obviously, the crucial issue here is whether a foster parent qualifies as a "guardian" for purposes of AS 4.16.051(b). Graham asserts that he was clearly the guardian of the three boys because there is a statute in Title 11 that defines "legal guardian" as including foster parents. See AS 11.41.470(3). We find Graham's argument dubious.
The definition of "legal guardian" in AS 11.41.470(3) is a specialized definition: by its terms, it applies only to the interpretation of AS 11.41.410 through 11.41.470 - the statutes that protect minors from sexual abuse and sexual exploitation. See AS 11.41.434(a)(2) and AS 11.41.436(a)(3) (raising the age of consent to 18 years if an adult is the "legal guardian" of the minor), and AS 11.41.455(b) (prohibiting "legal guardians" from allowing the sexual exploitation of minors under their care). A more general definition of "guardian" is found in AS 13.26.030, which declares that a person becomes the "guardian" of a minor either by "accept ... a testamentary appointment" or by being "appoint by the court".
Moreover, the definition of "legal guardian" in AS 11.41.470(3) includes people who clearly would not normally be thought of as "guardians": "staff members and other employees of group homes or youth
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