Lane v. Ballot , 2014 Alas. LEXIS 148 ( 2014 )


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    THE SUPREME COURT OF THE STATE OF ALASKA
    LENNIE LANE III,                               )
    )        Supreme Court No. S-14782
    Appellant,               )
    )        Superior Court No. 3AN-11-08545 CI
    v.                               )
    )        OPINION
    JOHN BALLOT, as Personal                       )
    Representative of the Estate of                )        No. 6929 - July 25, 2014
    Annie Ballot,                                  )
    )
    Appellee.                )
    )
    Appeal from the Superior Court of the State of Alaska, Third
    Judicial District, Anchorage, John Suddock, Judge.
    Appearances: Lennie Lane III, pro se, Kenai, Appellant.
    Steven D. Smith, Law Offices of Steven D. Smith, P.C.,
    Anchorage, for Appellee.
    Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and
    Bolger, Justices.
    MAASSEN, Justice.
    I.    INTRODUCTION
    Lennie Lane appeals from the superior court’s grant of summary judgment
    against him in a personal injury case. The superior court applied the doctrine of
    collateral estoppel to find that Lane’s criminal conviction for assaulting Annie Ballot
    established that he was liable to her in tort. Lane challenges the sufficiency of the
    evidence of his criminal conviction. He also challenges the application of collateral
    estoppel, arguing that (1) his conviction was not final because it was on appeal at the
    time the court relied on it, and (2) the verdict against him — “guilty but mentally ill” —
    was not sufficient to establish the elements of the crime of which he was convicted. We
    affirm the superior court’s judgment.
    II.    FACTS AND PROCEEDINGS
    Annie Ballot filed suit against Lennie Lane in superior court.1 Both she and
    Lane were represented by counsel. Ballot’s complaint alleged that Lane “without
    provocation attacked the plaintiff, raped her[,] and beat her so severely that she was
    comatose for an extended period of time and unable to conduct her personal affairs for
    several months.” The complaint further alleged that “[a]s a result of the aforesaid actions
    the defendant [Lane] was convicted of A[S] 11.41.410(a)(1), [AS] 11.41.210(a)(2)[,] and
    AS 11.56.610.”2 Finally, the complaint alleged that “[a]s a direct and proximate result
    of the conduct of the defendant, . . . Ballot suffered pain and suffering and humiliation
    both past and future for which she is entitled to general damages from the defendant in
    an amount to be determined at trial.” Lane, through his attorney, admitted all these
    allegations in his answer.
    During a status hearing in March 2012, Lane’s attorney repeatedly
    acknowledged that Lane had been convicted of crimes based on the events on which
    Ballot’s civil claims were based; but Lane, participating telephonically, seemed to
    1
    Annie Ballot died after this suit was filed. The parties orally agreed at a
    hearing in the superior court that her personal representative, John Ballot, could be
    substituted as a party and the caption amended accordingly. The superior court so
    ordered, but the parties continued to use the case’s original caption on appeal. We
    amend the caption on our own order to reflect the superior court’s order.
    2
    The three listed charges are, respectively, sexual assault in the first degree,
    assault in the second degree, and tampering with physical evidence.
    -2-                                        6929
    disagree. The superior court advised that “in an abundance of caution” Ballot should file
    a motion for summary judgment on liability, and Lane and his attorney could decide how
    to respond. The superior court then set a damages hearing for the week of May 14.3
    Ballot filed her summary judgment motion on March 27 but failed to
    support it with any evidence. Lane apparently filed no opposition, but the superior court
    nonetheless denied the motion without prejudice, concluding that under Alaska Civil
    Rule 56, “[a]bsent an affidavit and/or copy of [the] criminal judgment, [the attorney’s]
    unsupported allegation [in the motion] is inadequate for summary judgment.”
    At the damages hearing on May 15, Ballot’s attorney had yet to acquire
    documentary evidence of Lane’s conviction. He argued that the admissions in Lane’s
    answer were sufficient to establish the facts necessary for liability, though he
    acknowledged Lane’s apparent position that the answer had been drafted without his
    approval. The superior court again relied on Civil Rule 56 for the proposition that a
    motion for summary judgment must be supported by evidence; the judge suggested that
    a copy of the judgment of conviction would be sufficient to establish Lane’s liability.
    The judge asked Lane’s attorney for the criminal case number, then said that he would
    send his administrative assistant to retrieve the file, and if it confirmed the fact of
    conviction he would take judicial notice of it. Lane’s attorney then offered to stipulate
    to his client’s conviction for the rape and assault. The superior court accepted the
    stipulation and on that basis granted summary judgment to Ballot on the issue of liability,
    a conclusion it later restated in written findings and conclusions. After taking testimony
    3
    A few days after the status hearing, Lane filed a motion for “consideration
    for hearing,” bearing the case number of this case but listing Lane as the plaintiff and
    “Superintendent Debbie Miller[,] Department of Corrections” as the defendant. It is not
    clear what relief the motion requested; it appears that Lane was asking to be interviewed
    by the police about his claims that four other inmates admitted having “framed [him] into
    a life sentence.”
    -3-                                       6929
    and other evidence on Ballot’s damages, the superior court entered judgment against
    Lane for $149,989.25 plus interest, costs, and attorney’s fees.
    Lane appeals the grant of summary judgment on liability.
    III.     STANDARDS OF REVIEW
    In reviewing summary judgment orders, we apply our independent
    judgment to determine whether there are any genuinely disputed issues of material fact.4
    If there are not, we decide de novo whether the moving party is entitled to summary
    judgment as a matter of law.5
    “The applicability of the doctrine of collateral estoppel is a question of law
    subject to independent review.”6 We therefore review de novo whether the elements of
    the doctrine are met. In cases where collateral estoppel is applied offensively, and
    especially where mutuality between the parties is lacking, the trial court may decline to
    apply the doctrine to avoid unfair results.7 We review this secondary decision for abuse
    of discretion.8
    4
    M.C. v. N. Ins. Co. of N.Y., 
    1 P.3d 673
    , 674-75 (Alaska 2000).
    5
    
    Id. 6 Rapaport
    v. Tesoro Alaska Petroleum Co., 
    794 P.2d 949
    , 951 (Alaska
    1990).
    7
    See Jean Alexander Cosmetics, Inc. v. L’Oreal USA, Inc., 
    458 F.3d 244
    ,
    247-48 (3d Cir. 2006).
    8
    Harris v. Governale, 
    311 P.3d 1052
    , 1057 (Alaska 2013).
    -4-                                        6929
    IV.      DISCUSSION
    A criminal conviction for a serious crime has a collateral estoppel effect in
    a subsequent civil action relying on the same set of operative facts.9 Thus “a criminal
    conviction resulting from a jury trial could be introduced as ‘conclusive proof’ (rather
    than merely persuasive evidence) ‘of the facts necessarily determined.’ ”10 A criminal
    conviction precludes relitigation of “any element of a criminal charge” for which a
    litigant is convicted.11 The doctrine applies regardless of whether the convicted person
    is the plaintiff12 or defendant13 in the civil action.
    Because the superior court found as an undisputed fact that Lane was
    convicted of crimes based on the same facts alleged in Ballot’s civil complaint, it applied
    the collateral estoppel doctrine to preclude Lane from contesting his liability for Ballot’s
    claims. In reviewing this summary judgment order de novo, we consider (a) whether the
    court was correct in finding that the conviction was not a genuinely disputed fact, and
    (b) if the conviction was undisputed, whether the court was correct to apply collateral
    estoppel and grant summary judgment on these facts, given (1) Lane’s pending criminal
    appeal, and (2) the jury’s verdict that Lane was “guilty but mentally ill.” We hold that
    9
    Scott v. Robertson, 
    583 P.2d 188
    , 193 (Alaska 1978). A nolo contendere
    or guilty plea has the same effect as a conviction following trial. Lamb v. Anderson, 
    147 P.3d 736
    , 744 (Alaska 2006).
    10
    
    Lamb, 147 P.3d at 739
    (quoting 
    Scott, 583 P.2d at 193
    & n.27).
    11
    Pedersen v. Blythe, 
    292 P.3d 182
    , 185 (Alaska 2012).
    12
    See Howarth v. Alaska Pub. Defender Agency, 
    925 P.2d 1330
    , 1333
    (Alaska 1996).
    13
    See 
    Lamb, 147 P.3d at 742
    ; Wyatt v. Wyatt, 
    65 P.3d 825
    , 831-32 (Alaska
    2003).
    -5-                                      6929
    the fact of conviction was not genuinely disputed and that Ballot was entitled to summary
    judgment on Lane’s liability.
    A.      The Fact Of Lane’s Criminal Conviction Was Not Genuinely Disputed.
    Lane argues that the fact of his conviction was genuinely disputed because
    it was not supported by evidence. We decide de novo whether a genuine issue of
    material fact precludes summary judgment,14 and we conclude that Lane’s argument
    lacks merit.
    It is true that Ballot never produced a certified copy of Lane’s conviction
    in support of her motion for summary judgment, as the superior court anticipated she
    would do.15 But the record clearly shows that Lane’s attorney stipulated to the fact of
    conviction when the judge asked his assistant to retrieve the criminal case file, which
    meant that the fact of conviction was going to be established in a matter of minutes
    regardless.16 The court’s reliance on the attorney’s stipulation was not error. Lane’s
    attorney having formally appeared for him, the attorney was authorized to speak and act
    14
    M.C. v. N. Ins. Co. of N.Y., 
    1 P.3d 673
    , 674-75 (Alaska 2000).
    15
    Following the superior court’s prudent course, we assume arguendo that
    Lane did not authorize the key admissions in his answer and that the fact of conviction
    therefore had to be proven independently. Cf. Darnall Kemna & Co. v. Heppinstall,
    
    851 P.2d 73
    , 76 (Alaska 1993) (“The general rule provides that admissions made in the
    pleadings are conclusively established.” (citing 9 JOHN H. W IGMORE , W IGMORE ON
    EVIDENCE § 2590, at 822 (Chadbourn rev. 1981))).
    16
    Courts may take judicial notice of criminal convictions pursuant to Alaska
    Rules of Evidence 201 and 203. See Dale H. v. State, Dep’t of Health & Soc. Servs.,
    Office of Children’s Servs., 
    235 P.3d 203
    , 206 n.3 (Alaska 2010) (taking notice of
    judgment involving crime of domestic violence, where judgment “is not part of the
    appellate record” but “is not subject to reasonable dispute and is capable of ready
    determination”); Lemon v. State, 
    522 P.2d 160
    , 162-63 (Alaska 1974) (upholding the
    judge’s authority, in a prosecution for escape, to take judicial notice of the conviction for
    which the defendant was serving his sentence at the time of the escape).
    -6-                                        6929
    for him.17 And “admissions of fact by counsel during the course of the trial are binding
    on [counsel’s] client, if they are made with the express purpose of dispensing with the
    formal proof of some fact at the trial, and are thus used as a substitute for legal evidence
    of the fact.”18 That is what occurred here: to spare the court and the parties the
    momentary diversion of retrieving records that were nearby and readily available, Lane’s
    attorney stipulated to a fact he knew could not reasonably be disputed.19
    B.     Ballot Was Entitled To Summary Judgment On Liability.
    Lane also challenges the application of collateral estoppel in this case. He
    argues that he had two defenses that he was wrongly precluded from presenting because
    of the superior court’s reliance on his criminal conviction to establish his liability on
    Ballot’s tort claims.20 Neither of his arguments has merit.
    17
    See AS 22.20.040(b) (“When a party appears by attorney, the written
    proceedings shall be in the name of the attorney, who is the sole representative of the
    client as between the client and the adverse party.”); AS 22.20.050 (“An attorney may
    . . . bind the attorney’s client in any of the proceedings in an action or proceeding by
    agreement filed with the clerk or entered upon the journal of the court, and not
    otherwise.”).
    18
    Beaulieu v. Elliott, 
    434 P.2d 665
    , 669 (Alaska 1967) (footnotes omitted).
    19
    Even if the superior court had erred by accepting the stipulation, any error
    would be harmless, as the court was prepared to take judicial notice of the conviction
    under Evidence Rule 201(d) once the criminal file was brought to the courtroom. Lane
    cannot have been prejudiced by his attorney’s stipulation to a fact that was about to be
    established in any event.
    20
    We recognize that Lane did not raise these arguments below in response to
    Ballot’s motion for summary judgment. Although the arguments could be considered
    waived, we address them because of the unusual circumstances of this case: not only
    Lane’s current pro se status, but also the on-record disagreements between Lane and his
    attorney about how they should proceed in the superior court.
    -7-                                        6929
    1.	      Lane’s pending criminal appeal does not bar the application of
    collateral estoppel.
    Lane argues that collateral estoppel should not apply because his criminal
    conviction is on appeal. But “[a] pending appeal of the criminal conviction ‘is irrelevant
    for the purposes of res judicata and collateral estoppel.’ ”21 If Lane were to successfully
    challenge his conviction in the course of a criminal appeal or a petition for post-
    conviction relief, he is not without remedy in this case; we have repeatedly recognized
    that “a ‘motion to vacate any judgment resting on the preclusive effect of the earlier
    judgment following its reversal would provide adequate relief’ if an appeal were later
    successful.”22
    2.	      Lane’s “guilty but mentally ill” conviction is subject to the
    collateral estoppel doctrine.
    Lane also argues that Ballot should not have the benefit of collateral
    estoppel in this case because the jury in his criminal case found him “guilty but mentally
    ill” rather than simply guilty. By statute, however, “[a] defendant found guilty but
    mentally ill is not relieved of criminal responsibility for criminal conduct.”23
    The law thus creates a clear distinction in mental state between “guilty but
    mentally ill” convictions and “not guilty by reason of insanity” acquittals. Under
    AS 12.47.030(a), the “guilty but mentally ill” statute under which Lane was convicted,
    [a] defendant is guilty but mentally ill if, when the defendant
    engaged in the criminal conduct, the defendant lacked, as a
    result of a mental disease or defect, the substantial capacity
    21
    Pedersen v. Blythe, 
    292 P.3d 182
    , 185 (Alaska 2012) (quoting Wyatt v.
    Wyatt, 
    65 P.3d 825
    , 831 (Alaska 2003)).
    22
    
    Id. at 185
    n.19 (quoting 
    Wyatt, 65 P.3d at 831
    ); see also Alaska R. Civ. P.
    60(b)(5).
    23
    AS 12.47.030.
    - 8 -	                                   6929
    either to appreciate the wrongfulness of that conduct or to
    conform that conduct to the requirements of law. A
    defendant found guilty but mentally ill is not relieved of
    criminal responsibility for criminal conduct and is subject to
    the provisions of AS 12.47.050.[24]
    Under AS 12.47.010(d), by contrast, a defendant who asserts insanity as a defense will,
    if successful, receive a “not guilty” verdict; the defendant is acquitted. To establish the
    insanity defense the defendant must show that “when the defendant engaged in the
    criminal conduct, the defendant was unable, as a result of a mental disease or defect, to
    appreciate the nature and quality of that conduct.”25
    Thus, in sum, a defendant who is found guilty but mentally ill “lacked . . .
    the substantial capacity either to appreciate the wrongfulness of [the criminal] conduct
    or to conform that conduct to the requirements of law,”26 whereas one acquitted by
    reason of insanity “was unable . . . to appreciate the nature and quality of that conduct.”27
    In an assault case, for example, a defendant who is guilty but mentally ill may know he
    is assaulting the victim but either does not know it is wrong or cannot control his
    24
    The referenced statute, AS 12.47.050, requires the Department of
    Corrections to provide mental health treatment to certain offenders during their
    incarceration and mandates that if or when treatment ends, the offenders must serve the
    remainder of their sentences.
    25
    AS 12.47.010(a).
    26
    AS 12.47.030(a).
    27
    AS 12.47.010(a)
    -9-                                        6929
    actions.28 A defendant who is not guilty by reason of insanity may not even know he is
    assaulting the victim.29
    The distinction governs this case. Lane was convicted of sexual assault in
    the first degree30 and assault in the second degree.31 By its “guilty but mentally ill”
    verdict, the jury found beyond a reasonable doubt that Lane knew (or should have
    known, for purposes of the assault conviction) that he was beating and raping another
    person, even if he did not know that what he was doing was wrong.
    The “guilty but mentally ill” verdict on these charges establishes the facts
    necessary to prove Lane’s liability in tort. Ballot’s complaint does not specify a cause
    28
    See Lord v. State, 
    262 P.3d 855
    , 860-61 (Alaska App. 2011) (explaining
    why mother was properly found guilty but mentally ill when she knew she was killing
    her sons but thought she was saving them from evil and sending them to heaven, thus
    failing to appreciate the wrongfulness of her conduct).
    29
    “An example of a person who could successfully establish the elements of
    the revised insanity defense is the defendant who, as a result of a mental disease or
    defect, is unable to realize that he is shooting someone with a gun when he pulls the
    trigger on what he believes to be a water pistol, or a murder defendant who believes he
    is attacking the ghost of his mother rather than a living human being.” State v. Patterson,
    
    740 P.2d 944
    , 946 n.8 (Alaska 1987) (quoting Commentary & Sectional Analysis for the
    1982 Amendments to Alaska Law on Criminal Law and Procedure and the Revised
    Criminal Code, House Journal Supp. No. 64 at 4, 1982 House Journal 2318.)
    30
    “Knowingly” is the implied mens rea required for a conviction under
    AS 11.41.410(a)(1) (sexual assault in the first degree). To convict Lane under
    AS 11.41.410(a)(1), the jury must have found that he knowingly engaged in sexual
    intercourse and recklessly disregarded his victim’s lack of consent. See Reynolds v.
    State, 
    664 P.2d 621
    , 625 (Alaska App. 1983).
    31
    “[R]ecklessly” is the mens rea required for a conviction under
    AS 11.41.210(a)(2) (assault in the second degree). To convict Lane under
    AS 11.41.210(a)(2), the jury must have found that he “recklessly cause[d] serious
    physical injury to another person.”
    - 10 -                                     6929
    of action, but as reasonably read it alleges tortious conduct causing physical harm; this
    could include assault and battery, civil rape, and other intentional, reckless, or negligent
    acts for which civil liability may be imposed. In civil cases, “[b]attery occurs when an
    actor intends to cause harmful or offensive contact with another and an offensive contact
    results”;32 “one need not intend injury but must intend to cause contact.”33 Intent for tort
    purposes also includes “knowing that the consequence is substantially certain to result.”34
    We have defined recklessness for both civil and criminal purposes as “unreasonably
    disregarding a known risk of substantial physical harm to another.”35 The jury’s verdict
    of “guilty but mentally ill” on the criminal charges of sexual assault in the first degree
    and assault in the second degree established beyond a reasonable doubt that Lane
    knowingly “engage[d] in sexual penetration with another person without consent of that
    person”36 and that he “recklessly cause[d] serious physical injury to another person.”37
    These findings satisfy the elements of several different tort causes of action for which
    Ballot could recover against Lane, including assault and battery and civil rape.38
    32
    Maddox v. Hardy, 
    187 P.3d 486
    , 498 (Alaska 2008).
    33
    DeNardo v. Corneloup, 
    163 P.3d 956
    , 960 (Alaska 2007).
    34
    See RESTATEMENT (THIRD ) OF TORTS § 1 (2010).
    35
    Lamb v. Anderson, 
    147 P.3d 736
    , 745 (Alaska 2006).
    36
    AS 11.41.410(a)(1).
    37
    AS 11.41.210(a)(2).
    38
    See Pletnikoff v. Johnson, 
    765 P.2d 973
    , 979 n.1 (Alaska 1988) (Matthews,
    C.J., dissenting) (stating that “[t]he essential elements of sexual assault in the first degree
    . . . are also the essential elements of the tort of rape”).
    - 11 -                                       6929
    Lane cites Burcina v. City of Ketchikan 39 in support of his argument that a
    “guilty but mentally ill” verdict has no collateral estoppel effect. The plaintiff in Burcina
    pleaded nolo contendere to arson.40 He then brought a civil suit against his psychiatrist
    and treatment center, alleging that their negligent treatment of him “aggravated his
    mental illness and . . . caused him to set the fire” and they were therefore liable for his
    emotional distress and loss of income while imprisoned.41 The defendants moved for
    summary judgment on public policy grounds, arguing that the plaintiff’s claims were
    barred because they were based on his own illegal acts.42 The plaintiff argued in
    opposition that there was a disputed fact as to whether he was legally insane at the time
    of the arson (and if he was, that public policy could not bar his claims).43
    We held that collateral estoppel applied and the plaintiff could not relitigate
    his mental state, because the nolo contendere plea required that he admit to the requisite
    intent to commit arson.44 In a phrase Lane points to in his brief, we observed in Burcina
    that “had [the plaintiff] wished to avoid these collateral consequences of his nolo
    contendere plea, he could have asserted the defenses of either insanity, or mental disease
    or defect, or could have entered a plea of guilty but mentally ill.”45 Lane urges us to
    39
    
    902 P.2d 817
    (Alaska 1995)
    40
    
    Id. at 819.
    41
    
    Id. 42 Id.
    43
    
    Id. at 821.
           44
    
    Id. 45 Id.
    at 822.
    - 12 -                                      6929
    construe this statement to mean that collateral estoppel cannot be used in cases, like his,
    involving verdicts of “guilty but mentally ill.”
    Our discussion above indicates that a “guilty but mentally ill” verdict,
    unlike an acquittal by reason of insanity, does not act to negate criminal intent. We
    disavow any contrary meaning in the dicta Lane quotes from Burcina. In fact, this case
    and Burcina are similar:       just as the nolo contendere plea in Burcina precluded
    relitigation of the mental state required for the crime for which the plaintiff was
    convicted, so here the “guilty but mentally ill” verdict precludes relitigation of whether
    Lane committed the crimes for which he was convicted, and whether, in so doing, he
    acted knowingly and recklessly.
    A more recent Indiana case parallels Burcina. The court in Rimert v.
    Mortell considered a case in which a man had been found guilty but mentally ill for four
    murders in South Carolina; his mother then sued an Indiana psychiatrist for having
    negligently released him from in-patient care.46 One of the issues on appeal was whether
    Indiana public policy prevented the defendant from recovering damages based on
    conduct for which he was criminally culpable.47 Looking to South Carolina law for the
    legal effect of the “guilty but mentally ill” verdicts in that state, the court concluded that
    the defendant’s conviction, “despite its misleading label, contemplates complete criminal
    responsibility for the killings.”48 The court applied collateral estoppel to the “guilty but
    mentally ill” verdicts, holding that “[t]herefore, [the defendant] may not successfully
    46
    
    680 N.E.2d 867
    , 869 (Ind. App. 1997).
    47
    The Indiana court cites our decision in Burcina as one of the cases
    supporting such a public policy. 
    Id. at 873.
           48
    
    Id. at 875.
    - 13 -                                      6929
    claim that his action should survive the public policy bar because his mental condition
    rendered him not fully responsible for the killings.”49
    On this issue Alaska law is the same as South Carolina’s, as the statute
    authorizing the “guilty but mentally ill” verdict, AS 12.47.030(a), explicitly states that
    “[a] defendant found guilty but mentally ill is not relieved of criminal responsibility for
    criminal conduct.” The jury in the criminal case found that Lane possessed the mental
    state necessary to warrant a conviction; Lane was therefore not relieved of his “criminal
    responsibility” despite his mental illness. We conclude that the “guilty but mentally ill”
    verdict has the same collateral estoppel effect that any other guilty verdict would have.
    The superior court did not err in applying collateral estoppel in its grant of summary
    judgment on the issue of liability.
    V.    CONCLUSION
    We AFFIRM the judgment of the superior court.
    49
    
    Id. at 876.
    - 14 -                                    6929