Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law.

MEMORANDUM OPINION

Judge SMITH.

In December 2007, Peter N. Igwacho did not appear at a pretrial conference in his felony case. The pretrial conference was continued to January 2008 due to his absence, but Igwacho failed to appear at the January pretrial conference as well. Igwacho was later charged with two counts of felony failure to appear under former AS 12.30.060.1

A jury convicted Igwacho of both counts of failure to appear. But as we explain in this opinion, the trial judge failed to instruct the jury that it could return guilty verdicts only if it found that Igwacho knew that he was required to attend the pretrial conferences. We therefore reverse Igwacho's convictions.

Background facts and proceedings

Igwacho was charged in 2007 with felony Medicaid fraud.2 At Igwacho's arraignment, the court scheduled a pretrial conference for December 17, 2007. However, the court apparently did not expressly tell Igwacho that his presence was required at the December 17 pretrial conference.

Toward the end of November, Igwacho sent his attorney an email saying that he had a hearing in another court case in Minnesota that was scheduled a few days before the December 17 pretrial conference in Alaska; Igwacho asked his attorney to continue the Alaska pretrial conference to a later date. Igwacho's attorney told him that he could probably get the pretrial conference continued.

Igwacho's attorney appeared at the December 17 pretrial conference without Igwacho, and he did obtain a continuance. The pretrial conference was rescheduled for January 14, 2008.

Unbeknownst to his attorney, Igwacho left the United States and traveled to Cameroon after his December court appearance in Minnesota.

On January 2, Igwacho's attorney sent an email to Igwacho, explaining that the Alaska pretrial conference had been rescheduled for January 14, and that his presence was required. Igwacho did not appear at the January 14 pretrial conference. According to Igwacho, he never received his attorney's email about the rescheduled conference.

The State charged Igwacho with two counts of felony failure to appear. At Igwacho's trial, the judge instructed the jury that, in order to convict Igwacho, the jurors had to find that Igwacho "failed to attend his court proceedings as a result of a deliberate, conscious decision not to come to court."

But the judge ruled that the State was not required to prove that Igwacho subjectively knew that his attendance was required at the pretrial conferences. Instead, the judge instructed the jury (over defense objection) that Igwacho had been required as a matter of law to attend the two pretrial conferences. And when, during summation, Igwacho's attorney attempted to argue that the State had failed to prove that anyone told Igwacho that he was required to attend the pretrial conferences, the trial judge stopped the defense attorney from making this argument.

The jury convicted Igwacho of both counts of failure to appear, and he now appeals these two convictions.

Discussion

Igwacho claims that his convictions must be reversed because the trial judge erroneously failed to instruct the jury that Igwacho could be convicted of failure to appear only if he knew he was required to attend the pretrial conferences. Igwacho also claims that the State presented insufficient evidence to support his convictions. We address each of these contentions in turn.

The jury instructions failed to inform the jury that the State had to prove that Igwacho knew he was required to attend the pretrial conferences

The State concedes that in order to convict Igwacho of failure to appear, the State was required to prove not only that Igwacho was required to attend the court proceedings in question, but also that Igwacho knew that he was required to attend these proceedings. However, the State argues that the jury instructions adequately informed the jurors that the State was required to prove this latter element.

Specifically, the State relies on Instruction No. 14, which told the jurors:

This instruction accurately informed the jurors that the State was required to prove that Igwacho made a "deliberate, conscious decision not to come to court" — that his failure to attend the hearings was not "the result of mistake, inadvertence[,] or negligence."

But the fact that a person may make a conscious choice not to attend a court hearing — i.e., a conscious decision to do something else, or to go somewhere else — is not sufficient, by itself, to prove the crime of failure to appear. If, for instance, a person knows that their attendance at a court hearing is optional, then it is no crime if the person consciously chooses to stay home, or go to work, or go to a movie instead. A person's conscious decision not to attend a court hearing constitutes the crime of failure to appear only if the person knows that they are required to attend the court hearing.

As the State points out, the jury instruction quoted above speaks of the State's duty to prove that Igwacho "act[ed] with the conscious purpose of avoiding the obligation to appear." This language, taken in isolation, appears to convey the State's duty to prove that Igwacho acted with knowledge that his presence in court was required.

But as this Court and the Alaska Supreme Court have often pointed out, individual jury instructions are not interpreted in isolation, nor are they necessarily interpreted as lawyers might understand them. The underlying issue is to determine how the jurors understood the instructions. As the supreme court recently explained in Thompson v. Cooper, 290 P.3d 393, 398-99 (Alaska 2012),

Thus, appellate courts examine the wording of individual instructions in the context of the instructions as a whole,3 and in the context of the arguments presented to the jury by the attorneys.4

In the past, this point of law has usually arisen in cases where an individual jury instruction contained an actual or potential defect, and the question on appeal was whether this defect was cured by the instructions as a whole and/or by the summations of the parties. But Igwacho's case presents the converse situation — an instance where the State is claiming that a potential defect in the instructions as a whole was cured by the seemingly correct language found in an individual instruction.

It is true that the language of Instruction 14 — in particular, the clause "act[ed] with the conscious purpose of avoiding the obligation to appear" — suggests that the State had a duty to prove that Igwacho knew that he was required to attend the court hearings. But the question is not whether the jury instruction is susceptible of this reading. Rather, the question is whether we can reasonably conclude that the jurors actually understood the instruction to say this.

The record in Igwacho's case provides ample reason to believe that the jurors did not interpret the instruction as the State now suggests.

First, the record discloses that the trial judge and the prosecutor did not interpret the instruction in this manner. This is demonstrated by the portion of the trial proceedings when, as the defense case was drawing to a close, the parties discussed jury instructions, and the court heard arguments for and against Igwacho's motion for judgment of acquittal.

The defense attorney argued that Igwacho was entitled to an acquittal because the State had failed to present any evidence that Igwacho was subjectively aware that he was required to attend the two court hearings. In response, the prosecutor argued that this was irrelevant. The prosecutor pointed out that the failure to appear statute only required the State to prove that Igwacho failed to appear in court "as required" — which, the prosecutor argued, was different from "as ordered".

More specifically, the prosecutor argued that since Igwacho's presence at the pretrial hearings was required as a matter of law under Criminal Rule 38, it did not matter if the State failed to present any evidence that someone actually informed Igwacho that he had to be there. The prosecutor contended that, to the extent Igwacho's defense attorney wanted to argue that Igwacho did not know that he was required to attend the court hearings, this was an improper "mistake of law" defense.

Igwacho's attorney disagreed with the prosecutor's interpretation of the law. The defense attorney argued that even if Igwacho's presence was required under Criminal Rule 38, the State still had to prove that Igwacho knew that his presence was required. But the trial judge rejected the defense attorney's argument:

This colloquy between the trial judge and the attorneys shows that they, at least, did not share the State's current interpretation of Instruction 14.

Even though the wording of Instruction 14 potentially suggests that the State was required to prove that Igwacho knew he was required to attend the two court hearings, the trial judge (who approved the instruction) and the prosecutor (who drafted it) were in agreement that this was not the law, and that this was not an element of the State's proof. Instead, as the above-quoted excerpt shows, the trial judge expressly adopted the prosecutor's position that if Igwacho knowingly chose not to come to court, then he was guilty of failing to appear, because Criminal Rule 38 required him to be present — and this remained true even if no one ever informed Igwacho of this duty.

One might argue that this colloquy between the trial judge and the attorneys has no relevance to the jurors' understanding of Instruction 14, since the jurors were not privy to this discussion. But this same issue came up again during the defense attorney's summation to the jury.

The defense attorney was addressing the State's obligation to prove that Igwacho acted "knowingly" when he failed to come to court:

In these last remarks, the defense attorney was directing the jurors' attention to Instruction 17a.

Instruction 17a essentially told the jurors that Igwacho was required to attend the two pretrial conferences as a matter of law. The instruction began by quoting Criminal Rule 38: "The defendant shall be present at the arraignment, at the preliminary hearing, at the time of plea, at the omnibus hearing, and at every stage of the trial." (Emphasis added.) Then the instruction told the jurors that, as a matter of law, "[a] pretrial conference is one type of omnibus hearing."

The misleading aspect of this instruction was amplified by Instruction 13, which told the jurors (in pertinent part):

We recognize that this instruction is one of the criminal pattern jury instructions, but this was a bad situation in which to use it — because failure to appear is one of the offenses where the State must prove that the defendant did know that his conduct (choosing not to attend a court proceeding) was unlawful.

For these reasons, we reject the State's contention that Instruction 14 satisfactorily informed the jurors that the State was required to prove that Igwacho knew he was obligated to attend the court hearings. We conclude instead that the jury was improperly instructed concerning this element of Igwacho's offenses.

The error was not harmless, and so it requires reversal of Igwacho's convictions

The failure to instruct a jury on the required culpable mental state for a crime is a constitutional error,5 which requires reversal unless the State proves that the error is harmless beyond a reasonable doubt.6 The State has not met that burden here.

First, Igwacho's attorney tried to argue at closing that Igwacho should be acquitted because no one had told him that he was required to attend the pretrial conferences. The trial judge sustained the State's objection to that argument. This supported the false message of the jury instructions that the jury did not have to find that Igwacho knew he was required to attend the pretrial conferences to convict him.

Second, the evidence regarding whether Igwacho knew that he had to be present at the pretrial conference was equivocal. With respect to the December 17 pretrial conference, there was no direct evidence that Igwacho knew his attendance was mandatory — to the contrary, there was evidence that Igwacho's attorney told Igwacho that he could probably get a continuance, which could have led Igwacho to believe that he did not need to be present. As for the January 14 pretrial conference, Igwacho testified that he never got the email telling him he had to be present at that proceeding.

This evidence could have led a rational juror to conclude that the State had not proven beyond a reasonable doubt that Igwacho knew his presence at the pretrial conferences was mandatory. But under the instructions given to the jury, that juror nonetheless could have found Igwacho guilty based on the evidence that (1) Igwacho's presence at the hearings was mandatory and (2) Igwacho knew about both hearings.

For these reasons, the trial court's failure to instruct the jury that it had to find that Igwacho knew he was obligated to attend the pretrial conferences was not harmless beyond a reasonable doubt.

The State presented sufficient evidence to convict Igwacho

Igwacho argues that there was insufficient evidence to support his convictions for failure to appear. For purposes of this opinion, we assume without deciding that where the elements of an offense are misdefined for the jury, the sufficiency of the State's evidence should be tested against the elements that should have been submitted to the jury rather than the elements that were submitted to the jury.7

Viewing the evidence in the light most favorable to upholding the convictions,8 there was sufficient evidence to convict Igwacho of both counts. With respect to the December 17 pretrial conference, the jury heard testimony that Igwacho asked his attorney to get a continuance beyond the January 14 pretrial conference date, until the end of January, for reasons unrelated to his court appearance in Minnesota, and that his attorney told him that such a request was "never going to fly." This statement provided the jury with sufficient circumstantial evidence to find that Igwacho understood that his presence at the December 17 pretrial conference was required.

There also was sufficient evidence to support Igwacho's conviction for failure to appear at the January 14 pretrial conference. The jury heard testimony that Igwacho's attorney alerted him by email of the January 14 court date and told him that his presence was "required" on that date. The jury also was told that Igwacho had been in email contact with his attorney on other occasions at that same email address. The jury therefore had sufficient evidence to find that Igwacho had received the email in question and knew that his presence at the January 14 pretrial conference was required.9

Conclusion

For the foregoing reasons, the judgment of the superior court is REVERSED.