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Marshall v. State (12/24/2008) ap-2202

Marshall v. State (12/24/2008) ap-2202

                             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.

             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878
       E-mail:  corrections@appellate.courts.state.ak.us

         IN THE COURT OF APPEALS OF THE STATE OF ALASKA


FRANK HENRY MARSHALL, )
) Court of Appeals No. A-9721
Appellant, ) Trial Court No. 3AN-03-12471 CR
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. )
) No. 2202 December 24, 2008
Appeal    from    the
          Superior  Court,  Third  Judicial  District,
          Anchorage,  Philip R. Volland  and  John  E.
          Suddock, Judges.

          Appearances:   G.  Blair McCune,  Anchorage,
          and   Frank   Henry  Marshall,  in   propria
          persona, Seward, for the Appellant.  Kenneth
          M.  Rosenstein, Assistant Attorney  General,
          Office  of Special Prosecutions and Appeals,
          Anchorage,  and  Talis J. Colberg,  Attorney
          General, Juneau, for Appellee.

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

          STEWART, Judge.
     
          On  November  25,  2003,  Frank Henry  Marshall  handed
nineteen  40-milligram Oxycontin pills to  an  undercover  police
officer  in  exchange for $600 cash.  This transaction ultimately
led  to  Marshalls  conviction at trial on one count  of  second-
degree misconduct involving a controlled substance.1
          Marshall  raises  several issues in  this  appeal.   He
contends  that  the  superior court erred when  it  rejected  his
entrapment  claim  without providing him an evidentiary  hearing.
We  conclude  that  the superior court properly denied  Marshalls
claim without a hearing.
          Marshall   next   contends  that  the  superior   court
erroneously  denied  his motion to suppress evidence  the  police
seized  from  the  truck  in which he was  a  passenger  when  he
exchanged the nineteen pills for the $600 cash.  We conclude that
Marshall  lacked standing to object to the entry into  the  truck
and the seizure of the cash and a pill found on the floor because
he had no reasonable expectation of privacy to assert in the pill
and  the cash seized.  With regard to a bag of drug prescriptions
found  in  the dash, although Marshall may have had a  subjective
expectation of privacy in the bag and its contents, the  bag  and
some  of the contents were visible, and the character of the  bag
and   contents  as  evidence  of  the  recently  completed   drug
transaction was readily apparent.
          Marshall   attacks  the  superior  courts   evidentiary
ruling  permitting  the  State to admit  evidence  that  Marshall
possessed  other controlled substances when he was arrested.   On
appeal,  the State agrees with Marshall that the evidence  should
have  been  excluded,  but  argues that  the  admission  of  this
evidence was harmless.  We question whether we should accept  the
States  concession of error, particularly in light of the defense
Marshall  advanced at trial  Marshall argued that the  State  had
not  proven  beyond a reasonable doubt that he knew that  he  was
exchanging  the nineteen Oxycontin pills he handed the undercover
officer  for $600 cash.  His collection of prescriptions,  pills,
and  pill  bottles is seemingly relevant to his general knowledge
of   prescription  pills  and  the  identity  of  the  pills   he
transferred  to the officer.  Even so, we conclude  that  if  the
admission of this evidence was error, the error was harmless.
          Shortly  before trial, the prosecutor and  one  of  the
police officers interviewed Robert Clossey, an informant and  the
driver  of the truck when Marshall exchanged the pills for  cash.
Because the prosecutor recorded the interview, the recording  was
discoverable under Alaska Criminal Rule 16(b)(1)(A)(i)  since  it
was  a  recorded statement of a witness.  The prosecutor provided
this discovery during trial.  We conclude that the superior court
did  not  abuse its discretion when it rejected Marshalls request
for a mistrial or his alternative request for a continuance.
          Marshall, who was granted co-counsel status on  appeal,
raises several pro se claims.  We  reject his claims that he  was
entitled to dismissal of the charges because he did not receive a
preliminary hearing, that he was arrested without probable cause,
that  the police wrongfully listened to the transaction  using  a
safety  wire without a warrant, that he was subject to vindictive
or  selective prosecution, and that he was not afforded a  speedy
trial.
          Because  Marshall  was  a second  felony  offender  for
          purposes of presumptive sentencing, he faced a  10-year
presumptive term.  Marshall proposed several statutory mitigating
factors, but the superior court concluded that Marshall  had  not
met  his  burden of proof on those factors.  After reviewing  the
sentencing record, we uphold the superior courts rejection of the
mitigators.
          Marshall  also contends that his sentence is excessive.
But  the  Superior  Court   was  not  authorized  to  reduce  the
presumptive  term  in  the  absence of  mitigating  factors,  and
Marshall  did not argue that the case should be referred  to  the
three-judge  sentencing panel.  Accordingly, we affirm  Marshalls
conviction and sentence.


          Background facts
          Robert  Clossey  and his companion,  Margaret  Purcell,
both  police  informants, learned that Marshall  wished  to  sell
Oxycontin  that he obtained with a prescription.   They  arranged
for Marshall to make a sale to an undercover police officer.
          Clossey  and Purcell were informants because both  were
arrested  for  selling Oxycontin to undercover  police  in  April
2002.   Both  agreed to help the police in the hope of  favorable
treatment.   Police  struck  a deal  with  Clossey  and  Purcell,
explaining   that  they  could  avoid  prosecution   or   receive
mitigation  if  they acted as informants; specifically,  if  they
contacted  police  to  set up undercover drug  buys  with  people
selling Oxycontin or cocaine.
          On  November  24, 2003, approximately  fifteen   months
after her arrest for selling Oxycontin, Purcell contacted Officer
Steve  Haas  to  report  that a man named Frank  Marshall  had  a
prescription for Oxycontin and wanted to sell some  pills.   That
same  day,  Clossey was unsuccessful in his attempt to reach  his
contact,   Detective  Jason  Penman  of  the   Anchorage   Police
Department Metro Drug Unit.  Because Clossey and Purcell believed
Marshall  to be homeless and that it might be difficult  to  find
him later, they invited him to eat dinner at their house and stay
the night.
          The  next day, Clossey reached Penman and told him that
Marshall  wanted to sell a portion of his Oxycontin prescription.
Penman  decided  that while undercover,  Haas  would  buy  twenty
Oxycontin pills from Marshall for $600.  Clossey agreed to  drive
Marshall  to  a  parking  lot  on  Tudor  Road  to  complete  the
transaction.   Marshall  filled his Oxycontin  prescription  that
same day  November 25.
          Police  had  not  met  with  Clossey  before  he  drove
Marshall  to the agreed-upon location.  When Clossey pulled  into
the  parking lot, Haas approached the passenger side of  Closseys
truck.   Clossey did most of the talking, announcing the terms of
the  sale out loud.  Marshall then handed Haas nineteen pills  in
exchange for $600 (the sale was intended to be for twenty  pills,
but  a  single  pill  was later found on the  floor  of  Closseys
truck).
          After  the  exchange, Clossey and Marshall drove  away.
Immediately afterwards, two patrol cars, one driven by  Anchorage
Police  Sergeant Roy LeBlanc and the other by Officer Jeff  Bell,
surrounded  Closseys  truck.  In an effort  to  conceal  Closseys
role,  the  police arrested and searched him along with Marshall.
Bell seized prescription pill bottles for Oxycontin, hydrocodone,
and  diazepam  from Marshall.  There were twenty-eight  pills  of
Oxycontin  remaining from Marshalls sixty-pill prescription,  and
eighty pills of hydrocodone remaining in a one-hundred-and-eighty-
pill  prescription bottle.  LeBlanc then searched Closseys  truck
and  found  two purple bags containing prescription receipts  and
documents  with Marshalls name on them, one pill of Oxycontin  on
the floor of the passengers side, and the $600 cash hidden in the
springs of the passengers seat cushion.
          Detective  Penman interviewed Marshall at  the  station
and  recorded  that  interview.  During the  interview,  Marshall
denied any wrongdoing.
          The  grand  jury charged Marshall with  two  counts  of
second-degree misconduct involving a controlled substance and one
count   of   third-degree  misconduct  involving   a   controlled
substance.   The first count of second-degree misconduct  charged
Marshall  for  the delivery of nineteen Oxycontin  pills  to  the
undercover  officer  in  exchange for $600.  The  second  charged
Marshall with intending to deliver the remaining Oxycontin  pills
in  his  prescription  that  were found  with  him  when  he  was
arrested.   And  the  count for third-degree  misconduct  charged
Marshall  with  intending  to deliver pills  from  his  remaining
supply  of  prescriptions that were found with him  when  he  was
arrested: specifically, hydrocodone.  The superior court  granted
Marshalls   motion   to  dismiss  the  charge   of   third-degree
misconduct,  and Marshall proceeded to trial on the second-degree
misconduct charges.  The jury convicted Marshall on the first  of
these charges, and  acquitted him on second.

          Why  we  uphold the superior courts decision to deny  a
          hearing on Marshalls entrapment claim
          Marshall  filed a motion asking the superior  court  to
dismiss  the charges against him on the theory that he  had  been
entrapped.  The superior court denied this motion without holding
an  evidentiary hearing.  On appeal, Marshall argues that it  was
error  for  the  superior court to rule on the entrapment  motion
without first holding an evidentiary hearing.
          In  his motion, Marshalls theory of entrapment was that
the  Oxycontin  pills  delivered to the police  officer  did  not
actually belong to Marshall; instead, he maintains that the pills
were  the property of Clossey.  Marshall thus suggested that  the
States  evidence on this point (that is, that the pills  belonged
to Marshall) was not conclusive.  He argued that the evidence was
at  least  arguably  consistent  with  the  theory  that  Clossey
supplied  the pills, and that Marshalls only involvement  in  the
transaction was that Clossey passed the pills to Marshall so that
he  could  then  hand  the pills to the undercover  officer  (the
purported purchaser).
          These    assertions,   if   proved,   would   establish
entrapment under the Bueno theory of entrapment.  This  doctrine,
first  announced  in United States v. Bueno,2 holds  that  it  is
entrapment  for  the police to set up a drug  deal  by  supplying
their informant with drugs, arranging the sale of these drugs  to
          another undercover officer, and then having the informant induce
the defendant to act as the middleman in the transaction.
          However,  the Bueno doctrine is no longer part  of  the
federal  law of entrapment, and it is unclear whether the  Alaska
law of entrapment includes the Bueno doctrine.
          Five years after it was announced, the Bueno theory  of
entrapment  was  rejected by the United States Supreme  Court  as
being  inconsistent with the federal approach to  that  doctrine,
which hinges on a defendants subjective willingness to engage  in
criminal  conduct.3   That same year, in  Evans  v.  State,4  the
Alaska   Supreme  Court  indicated  that  the  Bueno  theory   of
entrapment  was quite compatible with Alaskas objective  approach
to  entrapment, but the supreme court did not decide  whether  to
adopt the Bueno doctrine as a matter of state law (because,  even
under  the  Bueno doctrine, the facts of Evans did not  establish
entrapment).
          And  in  Bush  v.  State,5 this court stated  that  the
Bueno  theory of entrapment seems to have been adopted by  Alaska
because the supreme court referred to this theory approvingly  in
Evans  and  later in Coffey v. State.6  However, we  now  rescind
that  assertion.  Neither Evans nor Coffey explicitly adopts  the
Bueno  theory of entrapment, and this issue remains undecided  in
Alaska.
          To  resolve Marshalls case, however, we need not decide
whether  to  adopt the Bueno doctrine, because we  conclude  that
Marshall  failed to make a sufficient offer of proof  to  support
his assertion of entrapment.
          Marshalls  theory of entrapment hinges on  the  factual
assertion  that the Oxycontin pills did not come from  him  (even
though  he  had a prescription for these pills), but rather  were
supplied  by  Clossey.  Marshall did not submit  any  affidavits,
police  reports,  or  other materials  to  support  this  factual
assertion.   He  simply based his argument on the assertion  that
the  States description of events did not completely rule out the
possibility that the pills were supplied by Clossey.
          When  the  State  filed  its  opposition  to  Marshalls
motion,  one  of the States primary arguments was that  Marshalls
pleading  was insufficient because its facts were unsupported  by
affidavit  or  other evidence.  In particular, the  State  argued
that  Marshall was obligated to provide some modicum of  evidence
to  support his primary assertion of fact  that Clossey  supplied
the   Oxycontin   before  Marshall  would  be  entitled   to   an
evidentiary hearing on his entrapment motion.
          Despite  the  States  position  on  this  issue,   when
Marshall  filed his reply to the States opposition,  he  did  not
provide any affidavit or other evidence to support his assertions
of  fact.  The superior court denied Marshalls entrapment  motion
without holding a hearing.  On the specific issue of who supplied
the Oxycontin, the court wrote:

          Marshall  bears  the burden of  establishing
          entrapment[,]  and his assertions  that  the
          state has failed to prove that the Oxycontin
          was  Closseys  [] do not meet  this  burden.
          Marshalls  speculation about the  source  of
          the  Oxycontin is contradicted by  the  fact
          that   Marshall  was  in  possession  of   a
          prescription for [this] drug[,] and that  it
          was  Marshall who held the drugs in his hand
          and took the money from Officer Haas. ...
               ....
               ...  Marshall  has shown  nothing  more
          than  that Clossey informed [the] police  of
          Marshalls  willingness  to  sell  Oxycontin.
          Accordingly, the ... motion to  dismiss  for
          entrapment   and  [the]  request   for   [an
          evidentiary] hearing is DENIED.

          In  Adams v. State,7 and again in Davis v. State,8 this
court addressed the question of when a trial court is required to
hold an evidentiary hearing on pretrial motions.  As we explained
in Davis:
          [T]he  moving party bears the initial burden
          of  alleging  specific facts,  supported  by
          affidavits  or other documents,  that  would
          entitle the party to relief. ... Only [when]
          the pleadings [present] a genuine dispute as
          to  material facts is an evidentiary hearing
          required.[9]
          In  this case, Marshall raises the claim of entrapment.
As the superior court noted in its decision, it was therefore his
burden  to  present a prima facie case for relief.   And  as  the
superior court also noted, Marshall could not establish  a  prima
facie  case  by merely making assertions that ... the Oxy[c]ontin
was Closseys or by presenting speculation about the source of the
Oxy[c]ontin.    Instead,   Marshall  was   obligated   to   offer
affidavits,  prior testimony, or other documents to  support  his
underlying assertion that Clossey was the source of the drug.
          This  court recently confronted an analogous  issue  in
LaBrake  v.  State.10   LaBrake involved  a  petition  for  post-
conviction relief based on an assertion of ineffective assistance
of  counsel.   The question was whether the superior court  acted
properly  when it dismissed LaBrakes petition without holding  an
evidentiary hearing.
          In  arguing  that  the  superior court  should  hold  a
hearing  on  his claims, LaBrake relied on the general  principle
that  when  a  court assesses whether to grant  judgment  on  the
pleadings or summary judgment to a party, it assumes the truth of
all  well-pleaded  assertions  of fact  made  by  the  non-moving
party.11  But as we explained in LaBrake,  the rule that a  court
must assume the truth of the non-moving partys assertions of fact
does  not  apply to statements concerning the law, or  concerning
mixed  questions of law and fact (e.g., ... assertions concerning
the   legal   effect   or  categorization   of   the   underlying
occurrences),  nor does the presumption apply to  ...  conclusory
...  pro forma assertions of the ultimate facts to be proved when
these assertions are not supported by specific details.12
          In  the present case, Marshall made assertions about an
ultimate fact to be proved (that Clossey was the one who supplied
the  Oxycontin),  but  he  did not support  this  assertion  with
          details or offer any evidence to support this assertion.  Rather,
Marshall  relied solely on the fact that the existing record  did
not  necessarily  rule out this possibility.  Under  Alaska  law,
this was not sufficient to avoid a summary ruling against him.
          In  his brief to this court, Marshall acknowledges this
case law, but he argues that it applies only to pretrial motions,
and  not to affirmative defenses.  Marshall contends that once  a
defendant  complies with Alaska Criminal Rule 16(c)(5) by  giving
pretrial  notice that he will rely on the defense of  entrapment,
the  defendant  is then automatically entitled to an  evidentiary
hearing  on  that defense even if he has offered no  evidence  to
support it.
          We  do  not  believe  that Criminal Rule  16(c)(5)  was
meant  to  supersede  the established law on  the  litigation  of
pretrial motions and other claims for relief.  Rule 16(c)(5)  was
intended  to give the State advance notice that certain types  of
claims  alibi, justification, duress, entrapment, or [any]  other
statutory  or  affirmative defense13   would  be  raised  in  the
defendants  case.  But Rule 16(c)(5) was not intended  to  exempt
the  defendant  from presenting evidence to support  the  claimed
defense.
          When  the  announced  defense  is  one  that  must   be
litigated  to  the  jury, the fact that  a  defendant  has  given
pretrial  notice  of that defense under Rule  16(c)(5)  does  not
exempt  him  from the rule that, if there is no evidence  offered
to  support  each element of the proposed defense, a trial  judge
need  not  instruct the jury on that defense (that is,  need  not
ask the jury to decide it).14
          And   when  the  announced  defense  is  one  that   is
litigated  to  the  court  such as entrapment  this  request  for
relief  is  governed  by  the same rule  that  applies  to  other
requests  for  relief addressed to the court:  The court  is  not
obligated to hold an evidentiary hearing on the defendants  claim
unless  that claim is supported by a proper offer of  proof.   In
Marshalls  case,  he failed to offer any evidence  to  support  a
crucial assertion of fact:  his assertion that the Oxycontin  was
Closseys.  Accordingly, the superior court could reject Marshalls
claim  of  entrapment summarily, without holding  an  evidentiary
hearing.
          Marshalls  claim  that  the  police  illegally   seized
evidence from the truck
          Marshall  moved  to  suppress certain  evidence  seized
from Closseys truck: a bag with prescriptions, the Oxycontin pill
found  on the passenger floor, and the $600 cash found under  the
passenger seat.  Marshall claimed that the warrantless search  of
the  truck  did  not  fall  into any  exception  to  the  warrant
requirement  because the truck could have been  secured  while  a
warrant  was obtained.  To make such a claim, Marshall maintained
that  he  had  a privacy interest in the articles seized  by  the
police and, therefore, had standing to contest the search.
          Superior  Court  Judge Philip R.  Volland  denied  this
motion.   Relying on Waring v. State,15 the superior court  ruled
that Marshall did not have standing to contest the seizure of the
three  items  identified in his motion.  In  Waring,  the  Alaska
Supreme Court held that the adoption of the exclusionary rule  in
          Evidence Rule 412 did not eliminate the standing requirement for
the  assertion  of  a  search  and seizure  claim.16   The  court
expanded the standing requirement from Rakas v. Illinois,17 which
barred a defendant from vicariously claiming the violation  of  a
codefendants  Fourth Amendment right, by allowing a defendant  to
assert the violation of a codefendants Fourth Amendment right  if
the  defendant  can show (1) that a police officer  obtained  the
evidence as a result of gross or shocking misconduct, or (2) that
the officer deliberately violated a codefendants rights.18
          We  uphold Judge Vollands decision.  Even assuming that
the police violated Closseys privacy interests when they searched
his  truck (the State asserts that Clossey consented to a  search
of  his  truck)  the record contains no basis to  find  that  the
police engaged in gross or shocking misconduct when they searched
the  truck  and  found the prescription bag, a  single  Oxycontin
pill,  and  $600.  Nor is there any basis in the record  to  find
that  the  police deliberately violated Closseys  rights.   After
all,  Clossey was a cooperating informant.  Furthermore, Marshall
did  not  claim  a possessory interest in the $600  cash  or  the
single  pill found on the floorboard.  Marshall was  a  guest  in
Closseys  truck, and  presumably chose to place the  prescription
bag  in  the dash of the truck where it was found by the  police.
Under  the standing requirement established in Waring,19 Marshall
does not have standing to argue that the police illegally entered
Closseys  truck or illegally seized the cash and  the  pill  that
Marshall  did  not  claim was his.  As for the  prescription  bag
found  in  the dashboard of Closseys truck, it was in plain  view
and was evidence of the crime.
          Because  we agree that Marshall does not have  standing
to  contest  the  entry into the truck in  which  he  claimed  no
interest,  we need not consider the States alternate  claim  that
the  search  of the truck was justified as a search  incident  to
Marshalls arrest.
          Why  we uphold the superior courts ruling on the States
discovery violation
          Shortly   before   Marshalls  trial,   the   prosecutor
interviewed  Clossey  and electronically recorded  that  session.
During  the interview, Clossey described certain statements  that
Marshall  had  made.  The prosecutor, however, did  not  disclose
this interview until after Marshalls trial had already begun.
          Shortly  after this interview was belatedly  disclosed,
the  defense  attorney moved for a mistrial.  She contended  that
the  prosecutor  had violated Alaska Criminal Rule  16  and  that
Marshalls  defense  had been prejudiced by  the  interviews  late
disclosure,   noting that she had already delivered  her  opening
statement.  She argued that the  recorded interview with  Clossey
was inconsistent with the theory of defense she had presented  in
this  opening statement.  Hence, her opening statement would have
been different if the recorded interview had been disclosed in  a
timely  fashion  (or  at least before the  trial  started).   The
defense  attorney  also  argued  that  her  cross-examination  of
Clossey  would  not be as effective, because she would  not  have
adequate  time  to  investigate and prepare for  the  information
contained in the interview.
          Because  the  prosecutors interview  with  Clossey  was
          recorded, the State was obliged to disclose the interview under
Criminal  Rule  16(b)(1)(A)(i),  which  requires  disclosure   of
written  or recorded statements of witnesses.  In addition,  even
if  the interview had not been recorded, the State would have had
to  disclose  the  portions  of the interview  in  which  Clossey
described  statements  made  by  Marshall  under   Criminal  Rule
16(b)(1)(A)(ii), which also requires disclosure of the  substance
of any oral statements made by the accused.20
          When  Marshall  requested the mistrial, the  prosecutor
conceded  that  the State had violated Criminal Rule  16  by  not
disclosing the interview earlier.  However, the State  opposed  a
mistrial,  arguing that the late disclosure could be cured  by  a
continuance or by a limitation on the States presentation of  the
information contained in the interview.           In response  to
the  motion  for mistrial, Superior Court Judge John  E.  Suddock
concluded   that  the  information  contained  in  the   recorded
interview was not inconsistent with Marshalls announced  defense,
and he further concluded that Marshall would not be prejudiced by
the  lack  of  advance notice if limitations were placed  on  the
States  introduction of some of the information contained in  the
interview  (in particular, Closseys assertions that  he  had  not
used illicit drugs since his arrest two years before, and that he
was  instead taking methadone).  For these reasons, Judge Suddock
denied Marshalls request for a mistrial.
          On  appeal, Marshall renews his contentions that he was
prejudiced  by  the late disclosure in two ways:  first,  because
the  information  contained in Closseys  interview  undercut  the
theory  of the case that Marshalls attorney had announced in  her
opening  statement; and second, because Marshalls attorney  could
not realistically prepare in the middle of trial to cross-examine
Clossey about the information disclosed in the interview.
          (We  note  that  Marshall does not argue  that  he  was
prejudiced by the States violation of Rule 16(b)(1)(A)(ii)   that
is, by the late disclosure of the statements attributed to him by
Clossey.   Rather, Marshalls arguments on appeal rest  solely  on
the  fact  that  the State violated Rule 16(b)(1)(A)(i)   by  not
disclosing a recorded statement of a witness.)
          We  turn  first  to  the  issue  of  whether  the  late
disclosure undercut Marshalls opening statement.  In that opening
statement,  Marshalls attorney outlined the theory  that  Clossey
had  used  Marshall as window dressing.  Essentially,  she  meant
that  Clossey had set Marshall up to be a scapegoat in  the  drug
transaction so that Clossey could portray himself as a productive
informant who should be allowed to remain at liberty and  not  be
prosecuted for his own crimes.
          Marshall  argues  that  this  theory  was  undercut  by
Closseys  statements in the recorded interview that  Clossey  had
stopped  using  illegal drugs and switched to methadone  under  a
doctors care.  Marshall contends that his window dressing  theory
of  defense depended on the assertion that Clossey was  the  true
source of the Oxycontin, and that this assertion was inconsistent
with  Closseys statement that he was on methadone and  no  longer
used any non-prescribed drugs.
          But   as   Judge  Suddock  correctly  noted,  Marshalls
opening statement did not contain an explicit assertion about the
          origin of the nineteen pills that Marshall gave to the undercover
officer  for  $600  cash.  In other words,  the  window  dressing
theory  of  the case could remain essentially the same regardless
of  whether Clossey coaxed Marshall into selling a portion of his
own  prescription for Oxycontin, or whether Clossey had a  supply
of Oxycontin from some other source.
          Similarly,  Judge  Suddock  perceived  the  possibility
that  Closseys  assertions about confining himself to  methadone,
and  not  using  illicit  drugs, could potentially  undercut  the
argument that Clossey was the source of the Oxycontin.  For  this
reason, the judge correctly prohibited the State from introducing
testimony   on  this  particular  aspect  of  Closseys  interview
(unless, of course, Marshall took some affirmative step  to  open
th[e] door to this subject).
          Because  of  this  measure by Judge Suddock,  we  agree
with him that, under these circumstances, the late disclosure  of
the  Clossey  interview did not undercut the theory presented  in
Marshalls opening statement.
          Marshalls  second  main argument  is  that,  without  a
mistrial,  he  was  unable to effectively  prepare  to  meet  the
information disclosed in the Clossey interview.  Marshall focuses
in   particular  on  Closseys  statements  that  he  was   taking
methadone,  that  he had stopped using any non-prescribed  drugs,
and that he had turned his life around.
          But  as explained above, Judge Suddock barred the State
from eliciting testimony about Closseys regimen of methadone.  We
note,  moreover,  that during her cross-examination  of  Clossey,
Marshalls attorney elicited the fact that three doctors had fired
Clossey  as a patient because of accusations that he was  selling
drugs he obtained from these doctors by prescription  events that
occurred after Clossey was arrested and agreed to cooperate  with
the  police.   And the defense attorney elicited  testimony  from
Clossey  that  in  that same time period he had  been  prescribed
oxycodone (the active ingredient in Oxycontin), hydrocodone,  and
diazepam.   And, of course, the defense attorney focused  on  the
fact  that  Clossey faced potential prosecution and  imprisonment
if,  after  agreeing to work as a police informant, he failed  to
live   up  to  their  expectations.           In  light  of  such
testimony, we agree with Judge Suddock that the record  fails  to
establish that Marshall suffered the kind of prejudice that would
warrant  a  mistrial.  And, for these reasons, we  conclude  that
Judge Suddock did not abuse his discretion when he ruled that the
States  untimely  disclosure of the  Clossey  interview  did  not
require a mistrial.
          Marshalls  attack  on the courts Evidence  Rule  404(b)
ruling
          When   the   police  arrested  Marshall,  they   seized
prescription  bottles  containing  Oxycontin,  hydrocodone,   and
diazepam.   There were twenty-eight pills of Oxycontin  remaining
in  one  prescription bottle (out of a sixty-pill  prescription),
and  eighty pills of hydrocodone remaining in another (out  of  a
one-hundred-and-eighty-pill prescription).
          Marshall  was  originally indicted  on  two  counts  of
second-degree misconduct involving a controlled substance and one
count   of   third-degree  misconduct  involving   a   controlled
substance.21    The  first  count  of  second-degree   misconduct
involving  a  controlled  substance was for  the  nineteen  pills
Marshall  exchanged with Haas; the second count of  second-degree
misconduct  was  for  the twenty-eight pills police  seized  from
Marshall  when they arrested him; and the third count, of  third-
degree  misconduct,  was  for  the  hydrocodone  pills  found  on
Marshalls person.
          Marshall  moved to dismiss this last count  for  third-
degree  misconduct,  and  Judge Volland found  that  insufficient
evidence  was  presented  to support  it  because  there  was  no
evidence   that  Marshall  intended  to  illegally  deliver   the
hydrocodone  pills.  And Judge Volland ruled  that  no  inference
could  be drawn from the first two counts  based on his  sale  of
Oxycontin  pills  to  police  and  the  remaining  pills  in  the
prescription  bottle  because Closseys dealings  with  the  State
were  based  solely on Oxycontin.  Judge Volland  dismissed  this
count  just before trial, and the State filed a notice of  intent
to  offer  the  hydrocodone evidence under Alaska  Evidence  Rule
404(b).
          The  State asserted that it had evidence that  Marshall
delivered  hydrocodone  to  another person  the  day  before  his
arrest.  The State also asserted that it could produce an  expert
who would testify that, between the time that Marshall filled the
hydrocodone prescription the day before his arrest and  the  time
that  he was arrested, he could not have safely ingested the  one
hundred  pills  that  were missing from his prescription  bottle.
The  State  contended that this evidence was  relevant  to  prove
Marshalls  intent,  motive,  and plan  to  deliver  more  of  the
prescription pills in his possession.  The State claimed that  it
needed  to introduce this evidence to counter Marshalls  expected
argument  that  the  State could not prove that  he  intended  to
deliver the remaining Oxycontin pills charged in second count  of
second-degree misconduct.
          The  State  advanced  the same argument  regarding  the
diazepam:   Marshall  filled a ninety-pill prescription  the  day
before  his  arrest, but had only sixty-eight pills when  he  was
arrested.
          In   response,  Marshall  argued  that  no   reasonable
inference of his intent to sell the remaining Oxycontin pills  in
his  possession could be drawn from the hydrocodone and  diazepam
he possessed.  Judge Suddock rejected this argument and found the
evidence relevant to Marshalls state of mind.
          During  the  trial, Marshall renewed his  objection  to
the  admission of this evidence, arguing that the evidence should
be excluded under Alaska Evidence Rule 403.  Marshall argued that
the evidence was confusing, irrelevant, and prejudicial  pointing
out  that  the  court had dismissed the count charging  him  with
intending  to  deliver the hydrocodone  and  contended  that  the
possession  of  a  legal prescription, without more,  offered  no
reasonable  inference of an intent to sell.  Nevertheless,  Judge
Suddock  found that the evidence was relevant, that any confusion
could be cured without precluding submission of the evidence, and
that the evidence was not unduly prejudicial.
          On  appeal, the State concedes that the hydrocodone and
diazepam evidence should have been excluded under Rule 403.   But
          the State argues that admitting the evidence was harmless error
under Love v. State22 because Marshall was acquitted on the count
alleging  that  he  intended to deliver the  remaining  Oxycontin
pills in his possession.
          The   State   points  out  that  while  this   evidence
satisfies the first requirement announced in Clark v. State23 for
evidence offered as proof of intent under Evidence Rule 404(b)(1)
that to admit other conduct evidence to show intent requires that
intent  be  contested  the evidence fails to satisfy  the  second
requirement   that the other conduct be similar  to  the  charged
conduct.24  The State claims that the other conduct is dissimilar
because,  while Marshalls intent regarding the [Oxycontin]  pills
remaining  in his possession could be readily inferred  from  his
having  actually  delivered the nineteen pills to  Officer  Haas,
Marshalls   mere  possession  of  some  portion  of   his   other
prescriptions does not reflect on his intent with respect to  the
[Oxycontin] that remained in his possession.
          But  we question whether the States concession that the
evidence should have been excluded is well-taken, particularly in
light  of  Marshalls  defense.25  Marshall  did  not  attack  the
evidence  of  his actus reus for the count charging  the  in-hand
delivery  to the undercover officer.  Instead, he contended  that
the  State  could  not prove beyond a reasonable  doubt  that  he
knowingly  delivered  Oxycontin to the  undercover  officer,  and
further suggested that these pills came from Clossey.
          Clossey testified that Marshall went to Closseys  house
and  told  Clossey that he needed money and was willing  to  sell
some  of  his prescriptions.  Clossey further testified  that  he
never  touched  the  pills  delivered to  the  undercover  police
officer  or the cash given in exchange.  The rapid  depletion  of
the  other prescriptions, combined with Marshalls willingness  to
sell  the  Oxycontin, as was confirmed by Closseys  and  Purcells
testimony, supported the States claim that Marshall engaged in  a
knowing delivery.
          However,  even if it was error to admit this  evidence,
we  conclude the error was harmless.  The jury acquitted Marshall
of  possessing the balance of the Oxycontin with intent to  sell.
Both Haas and Clossey testified that Marshall gave Haas the pills
in  exchange  for the cash from Haas.  The Oxycontin prescription
was  in  Marshalls possession when he was arrested and the police
found  the $600 cash under Marshalls seat.  Marshall himself  had
filled  his  Oxycontin prescription the same day as  his  arrest.
From  our  review  of the record, we conclude that  any  arguable
error  in admitting the challenged evidence was unlikely to  have
affected the verdict.26
          
          Why we reject Marshalls pro se claims
          Marshall  argues  that  his case  should  be  dismissed
because  the  court did not conduct a preliminary  hearing  under
Alaska  Criminal Rule 5.  In Sproates v. State,27  we  recognized
that,  under Criminal Rules 5(e) and 5.1, ten days is  the  upper
limit  on  the  length of time that an arrestee may  be  held  in
custody   before   indictment  or  a  preliminary  examination.28
Marshall  was held beyond that limit; under Sproates, the  remedy
for  this violation was to discharge Marshall, but not to dismiss
          the charges.29  Because Marshall was indicted on December 5,
2003, the issue of the violation of Criminal Rule 5 was mooted.
          Marshall  next  claims that Clossey and Haas  solicited
his   participation   in  the  delivery  in   violation   of   AS
11.31.110(a).   But to the extent that the police and  informants
set up drug transactions, their conduct is justified.
          Additionally,  Marshall argues  that  he  was  arrested
without probable cause.  This claim  appears to be based  on  the
fact  that  the  police  did  not  obtain  a  Glass  warrant   to
electronically  monitor  and record the transaction.30   Marshall
claims  that no Glass warrant was secured because police did  not
have  the  probable cause necessary to secure it.  And he  argues
that  police could not monitor the transaction with a safety wire
unless they had a Glass warrant.
          We  reject Marshalls claim.  Marshalls delivery of  the
pills  to  Haas  in  exchange for $600 cash established  probable
cause  for  Marshalls  arrest.   And  Marshall  has  provided  no
authority that the use of a safety wire violates Glass so long as
the  State does not rely on a recording produced with the use  of
that safety wire.
          Marshall  also believes that he has been subject  to  a
vindictive   prosecution.  He  objects  to   Closseys   favorable
treatment, refers to being entrapped and the claim that there was
a  lack  of  probable cause against him, and argues that  he  was
overcharged.   However,  the  count for  third-degree  misconduct
involving a controlled substance was ultimately dismissed and  he
was   acquitted   of  one  count  of  second-degree   misconduct.
Consequently, any overcharging that occurred would be moot.
          Similarly,  Marshall argues that it  was  prosecutorial
misconduct  for  the State to move to enter the  hydrocodone  and
diazepam  evidence as Rule 404(b) evidence after  the  count  for
third-degree  misconduct was dismissed.  But we  concluded  above
that any error in admitting this evidence was harmless.
          And  again, Marshall repeats his claim that  the  court
erred in denying him a hearing on entrapment.  But we upheld  the
superior  courts denial of a hearing above.        Marshall  also
contends   that  the  court  erred  in  allowing  a  speedy-trial
violation.   But in Marshalls opening brief, he did  not  discuss
this  issue  in  the  argument section of  his  brief,  and  only
mentions  the point in one sentence in its conclusion.  (Criminal
Rule  45 and Mr. Marshalls constitutional right to a speedy trial
were  violated  under the [Six]th Amendment to the United  States
Constitution.)   And in the brief he did not discuss,  let  alone
analyze,  the  superior  courts ruling denying  his  speedy-trial
claim.  This is inadequate briefing.31

          Why we reject Marshalls attack on his sentence
          Marshall  was  convicted  of  second-degree  misconduct
involving  a  controlled substance, a class A felony.32   Because
Marshall  was a second-felony offender, he faced a presumptive10-
year term under the pre-March 2005 sentencing code.33
          Marshall  contended three statutory mitigating  factors
applied:  (1)  AS 12.55.155(d)(9) (his conduct in committing  the
offense was among the least serious within the definition of  the
offense); (2) AS 12.55.155(d)(13) (the harm caused by his  crimes
          has been consistently minor and inconsistent with a substantial
period  of  imprisonment, now numbered  (d)(12)  in  the  current
code); and (3) AS 12.55.155(d)(14) (the offense involved a  small
quantity of a controlled substance, now numbered (d)(13)  in  the
current code).
          Marshall  argued that his conduct was among  the  least
serious  in  the  definition of the offense  for  three  reasons.
First, the Oxycontin was only delivered to a police officer,  and
thus  the pills were not released to the general public.  Second,
this  was  a  single sale.  Third, the pills came  from  a  valid
prescription,  no  weapons were involved in their  delivery,  the
police decided their quantity and price, Marshall never attempted
to  escape,  and he did not have any items commonly used by  drug
dealers,  that  is, he did not possess any cell  phones,  pagers,
paraphernalia, weapons, or packaging materials.
          Next,  Marshall  argued that the  harm  caused  by  his
offenses  was  minor.   He  pointed out  that  his  prior  felony
conviction was for the possession and sale of $40 of cocaine  and
that  this conviction was 10 years old.  He also added  that  his
most recent misdemeanor convictions involved minor harm and short
sentences.
          Finally,  Marshall argued that under Knight v. State,34
his  present  offense involved a small quantity of  a  controlled
substance  nineteen pills of Oxycontin.  He claimed that multiple
sales  of  Oxycontin pills were typical and contrasted this  with
his  own conduct based on its one-time nature.  He also noted how
the  pills were never consumed by anyone because they never  made
it  past  the police, and how he ultimately received no  monetary
gain from their sale.
          Judge  Suddock,  however, found that Marshall  had  not
met  his  burden of proving the mitigating factors by  clear  and
convincing  evidence.  Judge Suddock found that  the  transaction
was  a  commercial deal with substantial monetary gain.  He found
that  the  transaction was no more nor no less than  the  typical
transaction, and that he could not find that the consequences  of
Oxycontin   sales   to  the  buying  public  in   Anchorage   are
consistently minor any more than we can say that the consequences
of  crack cocaine, the 1993 offense, are consistently minor.   He
likewise rejected Marshalls claim that the offense was among  the
least  serious because the pills were delivered to an  undercover
officer  so the pills did not get delivered to someone who  would
actually use the drugs.
          Under  AS  12.55.155(f), Marshall bore  the  burden  or
proving  the mitigating factors by clear and convincing evidence.
We have reviewed Judge Suddocks findings
rejecting  the  mitigating  factors,  and  conclude  that   those
findings  are  supported by the record.   Given  those  findings,
Judge Suddock properly rejected the mitigating factors.35
          Conclusion
          The judgment of the superior court is AFFIRMED.
_______________________________
     1  AS  11.71.020(a)(1) (delivery of a schedule IA controlled
substance, Oxycodone).

2 447 F.2d 903, 905-06 (5th Cir. 1971).

3   Hampton  v. United States, 425 U.S. 484, 489-90;  96  S.  Ct.
1646, 1650; 48 L. Ed. 2d 113 (1976).

     4 550 P.2d 830, 844-45 (Alaska 1976).

     5 678 P.2d 423, 424-25 (Alaska App. 1984).

     6 585 P.2d 514, 521-22 (Alaska 1978).

7 704 P.2d 794, 796-97 (Alaska App. 1985).

     8 766 P.2d 41, 43-45 (Alaska App. 1988).

     9 Id. at 43 (emphasis added).

     10   152 P.3d 474 (Alaska App. 2007).

     11   Id. at 480.

     12    Id. at 481 (citing 5C Charles Alan Wright & Arthur  R.
Miller,  Federal Practice and Procedure  1368,  at  255  (3d  ed.
2004).

13   Alaska R. Crim. P. 16(c)(5).

     14    See  State v. Garrison, 171 P.3d 91, 94 (Alaska 2007);
Ha v. State, 892 P.2d 184, 190 (Alaska App. 1995).

     15   670 P.2d 357, 360-63 (Alaska 1983).

16   Id. at 361.

     17    439 U.S. 128, 132-34, 99 S. Ct. 421, 424-25, 58 L. Ed.
2d 387 (1978).

     18   Waring, 670 P.2d at 363.

     19   Id.

20     See   also   American  Bar  Association,   Standards   for
Criminal  Justice:  Discovery and Trial  by  Jury   11-2.1(a)(ii)
cmt.,  at  1120  (2d  ed.  1980) ([T]he  discoverability  of  the
[defendants] statement does not depend upon its written  or  oral
form. ... For example, the statement is discoverable even if made
before  or  during the alleged offense, [or] even if exculpatory,
[or] even if made to a third party rather than to prosecution  or
police personnel.).

21           AS    11.71.020(a)(1)   and   AS    11.71.030(a)(1),
respectively.

22   457 P.2d 622, 634 (Alaska 1969).

     23   953 P.2d 159 (Alaska App. 1998).

     24   Id. at 162.

     25    See  Marks v. State, 496 P.2d 66, 67-68 (Alaska  1972)
(holding  that  in  criminal  cases,  an  appellate  court   must
independently evaluate the governments concession of error).

     26   Cf. Love, 457 P.2d at 629-31.

     27   81 P.3d 301 (Alaska App. 2003).

     28   Id. at 301-03.

29   Id. at 303-04.

     30    See  State v. Glass, 583 P.2d 872, 881 (Alaska  1978),
modified  on  rehg, 596 P.2d 10 (Alaska 1979) (holding  that  the
Alaska   Constitution   requires  police   to   obtain   judicial
authorization   before  secretly  recording  a  persons   private
conversations).

     31    See Petersen v. Mutual Life Ins. Co. of N.Y., 803 P.2d
406,  410 (Alaska 1990) (Where a point is not given more  than  a
cursory  statement in the argument portion of a brief, the  point
will not be considered on appeal.).

     32   See former AS 11.71.020(c).

     33   Former AS 12.55.125(c)(3).

     34    855 P.2d 1347 (Alaska App. 1993).

     35    See Michael v. State, 115 P.3d 517, 519 (Alaska  2005)
(holding  that  it  is  a  question of law  whether  given  facts
establish a statutory mitigating factor).

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