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Harapat v. State (12/28/2007) ap-2137

Harapat v. State (12/28/2007) ap-2137

                             NOTICE
     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
     are  encouraged to bring typographical or other  formal
     errors  to  the attention of the Clerk of the Appellate
     Courts:

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         IN THE COURT OF APPEALS OF THE STATE OF ALASKA


SHANE R. C. HARAPAT, )
) Court of Appeals No. A-9091
Appellant, ) Trial Court No. 3PA-03-1098 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) No. 2137 December 28, 2007
)
          Appeal  from the Superior Court,  Third  Judi
          cial District, Palmer, Eric Smith, Judge.

          Appearances:  Paul E. Malin, Assistant Public
          Defender,   and   Quinlan   Steiner,   Public
          Defender,   Anchorage,  for  the   Appellant.
          Blair   M.  Christensen,  Assistant  Attorney
          General,  Office of Special Prosecutions  and
          Appeals,  Anchorage, and  Talis  J.  Colberg,
          Attorney General, Juneau, for the Appellee.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Stewart, Judges.

          MANNHEIMER, Judge.

          Sixteen-year-old Shane R. C. Harapat  shot  and  killed
his  friend, Kenny Alcantra, while the two were alone in Harapats
bedroom.   The  State charged Harapat with second-degree  murder,
alleging that the shooting occurred while Harapat was engaged  in
gunplay  that manifested an extreme indifference to the value  of
human life.  Harapat defended by asserting that the shooting  was
an  accident, and that he should be convicted only of  criminally
negligent homicide.  Harapat contended that he had been  spinning
the  cylinder  of  the handgun when Alcantra  asked  to  see  the
weapon,  and  that  while  Harapat was handing  the  revolver  to
Alcantra,  his finger slipped and lost its grip on the  revolvers
raised  hammer   causing the hammer to fall  and  the  weapon  to
discharge.
          The jury acquitted Harapat of second-degree murder, but
they  also rejected Harapats argument that the shooting  amounted
only  to  a  criminally  negligent homicide.  Instead,  the  jury
convicted Harapat of manslaughter.
          Harapat  raises  two claims on appeal.  First,  Harapat
attacks his conviction by arguing that the State should not  have
been  allowed to introduce evidence of other instances  in  which
Harapat  played around with guns or jokingly threatened to  shoot
someone.  (In the alternative, Harapat argues that even  if  this
evidence  was properly admitted, the trial judge committed  plain
error  by not giving the jury a cautionary instruction concerning
this  evidence.)   Second, Harapat attacks his sentence,  arguing
that Superior Court Judge Eric Smith should have sent his case to
the  statewide three-judge sentencing panel because  of  Harapats
extraordinary potential for rehabilitation.
          For  the reasons explained here, we conclude that Judge
Smith  did not abuse his discretion when he allowed the State  to
introduce evidence of Harapats other acts of carelessness or mock
assault with firearms.  However, we agree with Harapat that Judge
Smith  should  have  sent his case to the three-judge  sentencing
panel.

Judge  Smith  properly allowed the State  to  introduce
evidence   of  Harapats  other  careless  or  dangerous
behavior with firearms

          As  explained above, the State contended that
Harapat  shot  Alcantra while Harapat was  engaging  in
dangerous  gunplay that manifested extreme indifference
to the value of human life; Harapat, on the other hand,
contended  that  the  shooting was  the  result  of  an
unfortunate  accident that occurred while  Harapat  was
attempting to hand the weapon to his friend.
          To    support    its   theory   of    extreme
indifference, the State sought permission to  introduce
evidence that Harapat had pointed guns at other  people
in  the  past.  The State offered the testimony of  two
witnesses for this purpose.
          The  first  witness was Kelli  Alcantra,  the
sister  of the victim.  Ms. Alcantra testified  (as  an
offer  of  proof) that Harapat once pointed an unloaded
.44  revolver  at  her and a friend, and  that  Harapat
asked them if they were scared.  The second witness was
Travis  Wells,  a friend of Harapats.  Wells  testified
(again,  as an offer of proof) that Harapat  had  swung
guns  in  his direction while they were horsing around.
Wells also testified that he and Harapat  dry-fired the
.44  revolver, that they sometimes failed to follow the
rules of gun safety, and that they spun the cylinder of
the .44 when the weapon was loaded.  The State asserted
that  this evidence was admissible under Evidence  Rule
404(b)(1)  because it proved motive, intent, knowledge,
and absence of accident or mistake.
          Based  on  this offer of proof,  Judge  Smith
allowed  the  State to introduce this evidence.   Judge
Smith  concluded  that  the evidence  was  relevant  to
determining  whether Harapat had purposely pointed  the
handgun  at  Alcantra.  Relying on the  Alaska  Supreme
Courts  decision  in  Adkinson v. State,1  Judge  Smith
concluded  that  evidence that Harapat  had  previously
intentionally pointed guns at people (while playing  or
in  mock  assault)  was relevant to show  that  Harapat
might have been engaging in similar conduct during  the
episode  being litigated.  Judge Smith also found  that
the  States proposed evidence was relevant in two other
ways:   to  show that Harapat disregarded the rules  of
gun  safety, and to show that Harapat was familiar with
the functioning of the weapon that killed Alcantra.
          Finally, Judge Smith ruled that the relevance
of  the  proposed  evidence was not outweighed  by  its
potential  for unfair prejudice.  The judge noted  that
the  proposed testimony was simple and straightforward,
and  that it would not take up a lot of time.  He  also
concluded  that the evidence was not likely to  deflect
the jury from its proper deliberations.
          Under   Alaska   Evidence   Rule   404(b)(1),
evidence of a defendants other bad acts can be admitted
if  the  evidence is relevant to prove something  other
than   the  defendants  character  and  the  consequent
likelihood  that the defendant acted true to  character
during  the  episode being litigated.2   Evidence  Rule
404(b)(1)  lists various potential grounds of relevance
that  fall outside the rules ban on character evidence.
Among  these are the defendants intent, or the  absence
of  accident  or  mistake.  Both of  these  grounds  of
relevance were pertinent in Harapats case.
          Harapat  contended that he was no  more  than
criminally  negligent  in the  shooting  death  of  his
friend.  That is, Harapat disputed the States assertion
that he was aware of, and consciously disregarded,  the
risk that his conduct would result in someones death.
          (Under  the definition of criminal negligence
codified  in AS 11.81.900(a)(4), the State  must  prove
that  a  reasonable  person in the defendants  position
would  have been aware of the risk, but the State  need
not  prove that the defendant was personally  aware  of
the  risk.   This  is  the  major  distinction  between
criminal  negligence  and  the  next  more  blameworthy
culpable  mental state, recklessness as defined  in  AS
11.81.900(a)(3).  Recklessness requires proof that  the
defendant  was  subjectively  aware  of  the  risk  and
consciously disregarded it, or that the defendant would
have been aware of the risk but for intoxication.)
          Thus, Harapats awareness of the risk to human
          life created by his conduct, and his alleged conscious
disregard  of that risk, were primary issues at  trial.
The  States proposed evidence was relevant to these two
issues.
          Moreover,  another of the central  issues  at
trial   was  whether  Harapat  consciously  aimed   the
revolver at his friend or whether, instead, the  barrel
of  the  gun was inadvertently pointing toward Alcantra
when  the  weapon  discharged.   As  was  the  case  in
Adkinson,  Harapats past behavior of pointing  firearms
at other people was relevant to the jurys resolution of
this issue.
          In  sum, the States evidence of Harapats past
recklessness  with firearms had specific  relevance  to
the  issues  being litigated at Harapats  trial,  apart
from  any  inference this evidence  might  raise  about
Harapats character.  Accordingly, the evidence was  not
barred by Evidence Rule 404(b)(1).3
          Moreover, Judge Smith could properly conclude
that  Harapats  prior  acts were not  so  egregious  or
shocking as to tempt the jurors to decide Harapats case
on  improper grounds  e.g., to convict Harapat in order
to  punish  him  for his past acts, or to  convict  him
simply  because the jurors believed that he was  a  bad
person  who was not entitled to the protection  of  the
law.
          Based  on this record, we conclude that Judge
Smith did not abuse his discretion when he allowed  the
State to introduce this evidence of Harapats past acts.
          When Judge Smith issued this ruling, Harapats
attorney  did  not ask the judge to specially  instruct
the  jury  concerning this evidence   for  example,  by
cautioning  the jury against any improper use  of  this
evidence.  On appeal, however, Harapat claims that even
if  Judge  Smith  could properly  allow  the  State  to
present  this  evidence of Harapats  past  recklessness
with  firearms, it was plain error for Judge  Smith  to
fail  to give a cautionary instruction concerning  this
evidence.
          Harapat  bases  his argument on  this  Courts
decision in Bingaman v. State, 76 P.3d 398 (Alaska App.
2003).  In Bingaman, this Court held that when a  trial
judge  allows  the  State to introduce  evidence  of  a
defendants  bad  acts  under Evidence  Rule  404(b)(2),
(b)(3),  or  (b)(4), the defendant  is  entitled  to  a
cautionary  instruction  an instruction  informing  the
jury  of  the  limited purposes of this  evidence,  and
expressly  cautioning the jurors that they are  not  to
convict the defendant based solely on these prior acts.
Id. at 416-17.  Harapat argues, based on Bingaman, that
it  was  plain  error for Judge Smith  not  to  give  a
similar   cautionary  instruction  to  the  jurors   in
Harapats case.
          We reject Harapats argument for two reasons.
          First,  although the Bingaman decision states
          that such a cautionary instruction is mandatory when
the  State  relies on evidence of other bad acts  under
Evidence  Rules 404(b)(2), (b)(3), or (b)(4), we  later
clarified in Douglas v. State that this instruction  is
mandatory  only if the defendant requests it,  or  when
the   amount   and  nature  of  other-crimes   evidence
introduced against the defendant demonstrates that  the
failure to give this instruction would amount to  plain
error.   Douglas, 151 P.3d 495, 503 (Alaska App. 2006).
In  other words,  Bingaman did not alter the rule that,
in  the  absence of a defense request for a  cautionary
instruction,  a  trial  judges  failure   to   give   a
cautionary  instruction  will  require  reversal  of  a
conviction  only if the failure amounts to plain  error
(as that term was understood before Bingaman).
          Second,   our  requirement  of  a  cautionary
instruction  in  Bingaman was based on  the  fact  that
Evidence  Rules 404(b)(2), (b)(3), and (b)(4) expressly
authorize  the  admission of other-crimes  evidence  to
prove  the  defendants character  (and  the  consequent
likelihood  that the defendant acted true to  character
during  the episode being litigated).  In other  words,
these  three  evidence  rules  are  exceptions  to  the
general rule codified in Rule 404(b)(1)  the rule  that
evidence  of a persons other bad acts is not admissible
if  it  is  being offered solely to prove  the  persons
character.
          Because Rule 404(b)(1) bars evidence of other
bad  acts when that evidence is being offered to  prove
character, evidence admitted under Rule 404(b)(1)  does
not  pose  the same danger of prejudice to the fairness
of  the  proceedings as evidence admitted  under  Rules
404(b)(2),  (b)(3),  or (b)(4)  rules  that  explicitly
authorize  the  admission of  character  evidence.   In
Harapats  case,  the challenged evidence  was  admitted
under  Rule  404(b)(1).   Thus,  Harapats  reliance  on
Bingaman is misplaced.
          For  these  reasons, we uphold  Judge  Smiths
decision  to  allow the State to introduce evidence  of
Harapats   other  acts  of  carelessly  or  dangerously
handling  firearms around other people, and we conclude
that  it  was not plain error for the judge to fail  to
give   the  jurors  a  special  cautionary  instruction
concerning this evidence.

Judge Smith should have referred Harapats sentencing to
the statewide three-judge panel

          As   explained  above,  the  jury   convicted
Harapat  of manslaughter.  Manslaughter is  a  class  A
felony.4   As  a  first  felony offender  convicted  of
manslaughter,  Harapat faced a presumptive  term  of  5
years   imprisonment  under  Alaskas   pre-March   2005
presumptive sentencing law.5
          At  the sentencing hearing, Harapats attorney
          argued that his clients youth, his lack of a prior
criminal record, his high GED scores, and his voluntary
counseling  and abstention from guns and marijuana  all
supported  a  finding that Harapat had an extraordinary
potential for rehabilitation.  And, based on this  non-
statutory  mitigating  factor,  the  defense   attorney
argued  that  Judge Smith should not sentence  Harapat,
but should instead refer Harapats case to the statewide
three-judge sentencing panel.
          See  AS  12.55.165(a) (requiring a sentencing
judge  to  forward a case to the three-judge  panel  if
manifest   injustice  would  result  from  failure   to
consider relevant aggravating or mitigating factors not
specifically  included in AS 12.55.155), and  Smith  v.
State, 711 P.2d 561 (Alaska App. 1985) (recognizing the
non-statutory mitigator of extraordinary potential  for
rehabilitation).
          Judge  Smith agreed that Harapat  had  proved
this   non-statutory  mitigator.   Nevertheless,  Judge
Smith  concluded  that  he was  not  required  to  send
Harapats  case  to  the three-judge  sentencing  panel.
Judge Smith gave two reasons for this conclusion.
          First, Judge Smith declared that, even though
Harapat  had  proved  the  non-statutory  mitigator  of
extraordinary potential for rehabilitation, he was  not
required to send Harapats case to the three-judge panel
unless   it   was  manifestly  unjust  to  impose   the
presumptive term.  Judge Smith then concluded  that  it
was   not  manifestly  unjust  to  impose  the   5-year
presumptive  term  in Harapats case   because,  despite
Harapats  rehabilitative potential, the judge concluded
that  the  sentencing goals of general  deterrence  and
reaffirmation  of  societal norms  justified  a  5-year
sentence.
          Second,   Judge  Smith  indicated   that   he
believed   it   was  important  to  conclude   Harapats
sentencing  proceedings that day, rather than  delaying
the process by sending Harapats case to the three-judge
panel,   because  a  speedy  resolution  would  provide
closure  to  the  people  involved  in  the  case  (the
defendant and his family, as well as the victims family
and friends).
          Having  reviewed Judge Smiths explanation  of
his decision, we conclude that it was error for him not
to  send  Harapats  case to the three-judge  sentencing
panel.
          First,  Judge Smith misinterpreted  the  test
for  sending  Harapats case to the  three-judge  panel.
Under  AS  12.55.165, there are two discrete situations
that require a sentencing judge to refer a case to  the
three-judge  panel.  The first situation  is  when  the
judge  finds that manifest injustice would result  from
failure  to consider a relevant aggravating factor  not
listed  in  AS  12.55.155(c) or a  relevant  mitigating
factor  not  listed  in  AS 12.55.155(d).   The  second
situation  is  when the judge finds  that,  even  after
adjusting the presumptive term to the extent allowed by
AS  12.55.155(a)  for  the aggravating  and  mitigating
factors   listed  in  AS  12.55.155(c)  and  (d),   the
presumptive sentencing law still calls for  a  sentence
that would be manifestly unjust.
          In  Kirby v. State, 748 P.2d 757 (Alaska App.
1987),  we explained the two different analyses that  a
sentencing judge must follow, depending on which clause
of  AS  12.55.165 might require referral to the  three-
judge panel.
          When a defendant seeks referral to the three-
judge panel on the theory that any sentence within  the
range  allowed to a single sentencing judge  under  the
presumptive  sentencing law would still  be  manifestly
too  severe,  the  sentencing judge must  undertake  an
analysis  of  the  lower end of  the  sentencing  range
allowed  by the presumptive sentencing law  either  the
presumptive term itself (if no statutory mitigators are
proved),  or  the  utmost adjustment that  is  possible
under  AS  12.55.155(a) based on statutory  mitigators.
The  question  to  be answered is whether  this  lowest
allowed sentence would still be clearly mistaken  under
the  sentencing criteria first announced by the supreme
court  in  State  v.  Chaney6 and now  codified  in  AS
12.55.005.  Kirby, 748 P.2d at 762-63.
          In  contrast, when a defendant seeks referral
to the three-judge panel on the theory that it would be
manifestly  unjust to fail to consider a  non-statutory
mitigating factor (i.e., a mitigating factor not listed
in  AS 12.55.155(d)), the sentencing judge must perform
a  different analysis.  Here, the question is  whether,
because   of   the   presence  of  this   non-statutory
mitigator,  it would be manifestly unjust  to  fail  to
make  some  adjustment (albeit small) to  the  sentence
allowed  by  the presumptive sentencing law.   As  this
Court explained in Kirby,
     
     once  the [sentencing] court finds the  [non-
     statutory]   mitigating  factor  of   unusual
     prospects  for  rehabilitation  ...  ,  [t]he
     court  should [assess this mitigating factor]
     in light of the totality of the circumstances
     and   in   light  of  the  Chaney  sentencing
     criteria to determine whether the presumptive
     term  should  be adjusted.  The court  should
     deny  referral to the three-judge panel  only
     when  it concludes that no adjustment to  the
     presumptive term is appropriate in  light  of
     the factor.
     
     Kirby, 748 P.2d at 765 (emphasis added).
          In  Bossie v. State, 835 P.2d  1257
(Alaska App. 1992), this Court reiterated the
test that applies to these latter situations:
          the question is whether, when ... the non-
statutory  mitigator [is] evaluated  together
with  the other circumstances of the case  in
light of the Chaney sentencing criteria, [the
presence   of  the  non-statutory  mitigator]
plainly  call[s]  for  some  adjustment   (no
matter how small) to the sentence that  would
normally  be  allowed under  the  presumptive
sentencing law.  Id. at 1259.
          In Harapats case, Judge Smith found
that  Harapat  had  proved the  non-statutory
mitigator  of  extraordinary  potential   for
rehabilitation, but the judge  then  declined
to  send  Harapats  case to  the  three-judge
panel   because   he   concluded   that   the
applicable  5-year presumptive term  was  not
manifestly unjust.  This was the wrong  test.
The   potential  injustice  of   the   lowest
allowable sentence is the determining  factor
when a defendant seeks referral to the three-
judge  panel  under the other clause  of  the
statute   i.e.,  when  the  defendant  argues
that,  even  after adjusting the  presumptive
term to the extent allowed by AS 12.55.155(a)
for  the  aggravating and mitigating  factors
listed  in  AS  12.55.155(c)  and  (d),   the
presumptive sentencing law still calls for  a
sentence that would be manifestly unjust.
          As  explained in Kirby and  Bossie,
the  question  that Judge Smith  should  have
asked  was  whether,  because  of  the   non-
statutory  mitigator, it would be  manifestly
unjust to fail to make some adjustment to the
otherwise  allowable sentence.   In  Harapats
case,  because  no statutory mitigators  were
proved, the otherwise allowable sentence  was
the  unadjusted presumptive term of  5  years
imprisonment  i.e., 5 years in prison without
eligibility for discretionary parole.7
          As  noted  above, when Judge  Smith
ruled  that it would not be manifestly unjust
to  impose this 5-year presumptive  term,  he
indicated  that  part of the  basis  for  his
conclusion  was the need to bring closure  to
the sentencing proceedings.  But while it  is
desirable   to  bring  closure  to   criminal
proceedings, this goal must not  be  employed
to  defeat a defendants rights at sentencing.
In  particular, the perceived desirability of
bringing   speedy   closure   to   sentencing
proceedings  is not relevant to a  sentencing
judges decision under AS 12.55.165.
          We  held  in  Kirby that,  when  AS
12.55.165  requires  a  sentencing  judge  to
assess  the  potential manifest injustice  of
          imposing the term of imprisonment normally
authorized   by  the  presumptive  sentencing
rules,  or  of  failing to  consider  a  non-
statutory  mitigating factor, the statute  is
referring  to an evaluation of the  facts  of
the case under the Chaney sentencing criteria
(the  sentencing criteria now codified in  AS
12.55.005).8   The desirability  of  bringing
closure to a criminal proceeding is not among
the factors listed in this statute.
          Nor  should it be.  While all would
agree that criminal matters should be handled
as   expeditiously  as  reasonably   possible
(while honoring the procedural rights of  the
parties), the basic question posed  under  AS
12.55.165  is  whether, given the  particular
facts  of  the  defendants case,  the  normal
rules  of  presumptive sentencing  i.e.,  the
limitations on the term of imprisonment  that
a single sentencing judge can impose, and the
limitation  on the aggravating and mitigating
factors  that a single sentencing  judge  can
consider   will  lead to an unjust  sentence.
If  a  sentencing  judge concludes  that  the
normal  rules of presumptive sentencing  will
lead to an unjust sentence, then AS 12.55.165
requires  the sentencing judge to  refer  the
defendants case to the three-judge sentencing
panel.   Of  course,  this  will  delay   the
ultimate  disposition of the case.   But  the
goal  indeed, the requirement  of imposing  a
fair sentence is far more important than  the
desirability of bringing the case to a speedy
close.
          The  remaining question is  whether
this Court should remand Harapats case to the
superior  court with directions to reconsider
Harapats request for a referral to the three-
judge sentencing panel, or whether this Court
should  directly  order  that  referral  now.
Having  considered  the  entire  record,   we
conclude  that we should order  the  referral
ourselves,   because  it  would  be   clearly
mistaken  to fail to refer Harapats  case  to
the three-judge panel.
          We   reach   this  conclusion   for
several  reasons.  First, Judge  Smith  found
the   non-statutory  mitigating   factor   of
extraordinary  potential for  rehabilitation,
and  that  finding  is not  challenged  here.
Second,  no statutory mitigators were  proved
so, unless some adjustment is made on account
of  the non-statutory mitigator, Harapat must
receive the 5-year presumptive term specified
by  former AS 12.55.125(c)(1).  And third, as
          this Court explained in Lloyd v. State, 672
P.2d  152 (Alaska App. 1983), when the  issue
is  close,  sentencing judges should  send  a
defendants case to the three-judge sentencing
panel:

     As the only state-wide body specifically
charged    with    the   responsibility    of
determining   the   existence   of   manifest
injustice,  the three-judge sentencing  panel
is  in  a  unique  position  to  establish  a
uniform  approach  to  identifying  cases  in
which  manifest injustice would  result  from
imposition  of  a  presumptive   term.    The
ability  of the three-judge panel to function
successfully,  however, will depend  upon  an
appropriate level of referral to the panel by
individual  sentencing  judges.   ...   [T]he
panel  will obviously be powerless  to  apply
its  policies to a case potentially involving
manifest  injustice  if  a  referral  is  not
ordered by the original sentencing judge.  We
recognize   that   the   referral   to    the
three-judge  panel  should  occur   only   in
exceptional cases.  However, where the  issue
of  manifest injustice appears to be a  close
one,  we  would  urge  sentencing  judges  to
resolve  any  doubt in favor  of  a  referral
pursuant to AS 12.55.165.

Lloyd, 672 P.2d at 155.
             For these reasons, we direct the
superior court to refer Harapats case to  the
three-judge sentencing panel.
          In   ordering  this  referral,   we
express  no opinion as to whether the  three-
judge   panel   should  adjust   the   5-year
presumptive term.  As we noted in Kirby,  748
P.2d  at  767, and in Winther v.  State,  749
P.2d 1356, 1360 (Alaska App. 1988), the three-
judge panel is authorized to independently re-
evaluate  the  facts of  Harapats  case.   In
particular, the panel is not bound  by  Judge
Smiths    conclusions   concerning   Harapats
prospects  for rehabilitation, and,  even  if
the  three-judge  panel agrees that this non-
statutory  mitigator is proved, it can  reach
its   own   assessment  of  whether  manifest
injustice would result from failure to adjust
Harapats sentence on account of that factor.9

          We  merely  hold that, given  Judge
Smiths    finding   of   the    non-statutory
mitigator, and considering that mitigator  in
light of the other circumstances, it would be
          clearly mistaken not to refer Harapats case
to the three-judge panel.

Conclusion

     We  AFFIRM  Harapats manslaughter conviction.
However, the superior courts decision not to refer
Harapats   case   to  the  statewide   three-judge
sentencing panel is REVERSED.  The superior  court
is  directed to refer Harapats case to the  three-
judge panel.
_______________________________
1 611 P.2d 528, 531-32 (Alaska 1980).

2  Bingaman  v. State, 76 P.3d 398, 403 (Alaska App.  2003);
Beaudoin  v. State, 57 P.3d 703, 707-08 (Alaska App.  2002);
Smithart  v.  State,  946 P.2d 1264,  1270-71  (Alaska  App.
1997),  reversed  on  other grounds, 988  P.2d  583  (Alaska
1999).

3  See  Laidlaw Transit, Inc. v. Crouse, 53 P.3d 1093,  1103
(Alaska  2002);  Clark v. State, 953 P.2d 159,  163  (Alaska
App. 1998); Hoffman v. State, 950 P.2d 141, 147 (Alaska App.
1997);  Smithart v. State, 946 P.2d 1264, 1272 (Alaska  App.
1997)  all standing for the proposition that evidence  of  a
persons  other  bad acts is admissible under  Evidence  Rule
404(b)(1) if this evidence has case-specific relevance apart
from  its  tendency  to prove something  about  the  persons
character.

4 AS 11.41.120(b).

5 Former AS 12.55.125(c)(1) (pre-March 2005 version).

6 477 P.2d 441, 443-44 (Alaska 1970).

7See former AS 33.16.090  100 (pre-March 2005 versions).  In
particular,  see  former  AS 33.16.090(b)   (c),  which
provided  that a prisoner who was sentenced  under  the
presumptive   sentencing  law  was  not  eligible   for
discretionary  parole  during the  legislatively  fixed
presumptive term, but was (generally speaking) eligible
for    parole   during   any   judge-imposed   sentence
enhancement based on aggravating factors.

8Kirby, 748 P.2d at 762, 765.

9See Kirby, 748 P.2d at 767:  The three-judge panel is, of
course,  free to reevaluate [the record] in determining
whether   Kirby   has   the   unusual   prospects   for
rehabilitation required for application  of  the  [non-
statutory] mitigating factor.  The three-judge panel is
not bound by [the sentencing judges] findings[,] nor is
it  bound  [to  accept  the]  testimony  [favoring  the
defendant].

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