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Akaran v. State5/4/2005
superior court, he did not raise any question concerning the legal meaning of "serious" or "protracted". He did not ask for a jury instruction defining these terms, nor did he raise this definitional issue in any other manner. Instead, Akaran allowed his case to be argued to the jury based simply on the statutory phrasing.
Because of this, Akaran can not insist on appellate review of his arguments concerning the proper interpretation of "serious and protracted disfigurement" unless he demonstrates plain error. Just like the defendant in Shafer, Akaran must show that the asserted error would have been obvious to any competent judge or attorney. That is, Akaran must show that no competent judge would have believed that "serious" and "protracted" could be defined in such a way as to allow Akaran's case to go to the jury.
But unlike the defendant in Shafer, Akaran's claim can not be resolved merely by examining the transcript of his trial. Instead, as our main opinion demonstrates, resolution of Akaran's claim requires significant legal research. Because the contested statutory language has not been construed before, resolution of Akaran's claim requires a close examination of that contested language using established methods of judicial interpretation.
A claim of plain error fails if the law is unsettled - if the proper resolution of the claim of error is reasonably debatable. Given our supreme court's construction of the phrase "severe disfigurement" in City of Bethel v. Peters, it is clear that at least some competent judges could conclude that the terms "serious" and "protracted" should be interpreted in ways that would allow Akaran's case to go to the jury for decision. This defeats a claim of plain error.
Thus, although I agree that this Court should reject Akaran's argument concerning the meaning of this statutory language, I would reach that result on the narrower ground that Akaran has failed to show plain error.
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