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Khan v. State (4/3/2009) ap-2210

Khan v. State (4/3/2009) ap-2210

                             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


IZAZ ELVIN KHAN,                   
                                   
                    Appellant,      Court of Appeals No. A-9552
                                   Trial Court No. 3UN-04-340 Cr
               v.                  
                                   
STATE OF ALASKA,                        O  P  I  N  I  O  N
                                   
                    Appellee.      
End of Caption                       No. 2210    April 3, 2009
                                   
          Appeal  from the Superior Court,  Third  Judi
          cial  District, Unalaska, Sharon L.  Gleason,
          Judge.

          Appearances:  G. Blair McCune, Anchorage, for
          the  Appellant.  W. H. Hawley Jr.,  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 Bolger, Judges.

          MANNHEIMER, Judge.

          Izaz Elvin Khan was convicted of perjury1 for knowingly
making  false statements under oath in an application for  court-
appointed   counsel  (i.e.,  knowingly  
under-reporting his assets and income). In this appeal, Khan challenges the superior courts denial of his motion for a change of venue, as well as some of the superior courts evidentiary rulings and one of the jury instructions (the instruction dealing with the requirement of jury unanimity).
For the reasons explained here, we conclude that Khan waived his right to challenge the superior courts venue ruling because he did not renew his motion following jury selection. We further conclude that the superior courts evidentiary rulings are supportable. With regard to the challenged jury instruction on unanimity, we agree with Khan that it was erroneous, but we conclude that Khan was not prejudiced by this error. Accordingly, we affirm Khans conviction.
Underlying facts
     
               In  October 2004, Khan was being held in  the
     Unalaska  jail  on  unrelated criminal  charges.   Khan
     asked  the jailor for the paperwork necessary to  apply
     for   court-appointed  counsel.   Khan  completed  this
     paperwork,  including the required financial statement,
     and  he signed this document under oath.  This document
     contained an explicit warning (just above the signature
     line)  that [m]aking false statements under oath  is  a
     crime.   Khan  signed  the document  in  front  of  the
               jailor, and the jailor notarized Khans signature.
          As  part  of  his  financial statement,  Khan
provided information about his current income, his past
income,  his  current  and  past  employment,  and  his
assets.  In the financial statement, Khan declared that
he  was  not  currently working, and that  he  had  not
worked  for  the  preceding three years  (specifically,
since  September 2001).  In the space  provided  for  a
list  of employers in the past year, Khan listed  None.
Khan  also  declared  that he had  no  current  monthly
income,  and that he had received no income during  the
preceding  twelve  months.   In  the  portion  of   the
financial statement labeled Cash and Assets, Khan  left
the  majority of the questions blank, and  he  answered
None  on  the  line where he was supposed to  give  the
total value of his assets.  Khan repeatedly answered no
or none on the lines calling for him to give the amount
of his income and to list the values of his assets.
          The   truth   was   that  Khan   had   worked
sporadically since mid-2001. According to records  kept
by  the  Alaska Department of Labor, Khan worked during
twelve  of  the  thirteen fiscal-year quarters  between
September  2001 and October 2004.  Khan had  also  been
employed by at least two different employers during the
twelve months immediately preceding his act of applying
for appointed counsel.
          Moreover,  according to records kept  by  the
Alaska Division of Motor Vehicles, Khan owned a vehicle
(a  Toyota  pickup truck) at the time  he  applied  for
appointed counsel.
          Based  on  these facts, Khan was indicted  on
one  count  of  perjury.  This count was based  on  the
various false statements in the financial affidavit.

The motion for change of venue

          Before   trial,  Khans  attorney  asked   the
superior court to move Khans trial out of Unalaska.  In
this motion, the defense attorney alleged that Khan was
notorious   in  Unalaska  as  an  outspoken,  unpopular
advocate  for  Pakistani issues.  The defense  attorney
argued  that, due to community prejudice against  Khan,
it  would  not be possible for Khan to receive  a  fair
trial in Unalaska.
          The  trial judge, Superior Court Judge Sharon
L.  Gleason, denied this pre-trial motion, but  did  so
without  prejudice to Khans right to  raise  the  venue
issue again during or after jury selection.
          Khans attorney never renewed the motion for a
change of venue, and Khans trial was held in Unalaska.
          Under   Alaska  law,  a  criminal  defendants
failure to renew a request for a change of venue  based
on  adverse pre-trial publicity or community  sentiment
is  deemed  a waiver of the request.2  Accordingly,  we
affirm  the superior courts denial of Khans  motion  to
          change venue.

The  evidence of Khans earlier false statements to  the
Department  of  Labor  when applying  for  unemployment
benefits

          Before  trial, the State asked for permission
to  introduce evidence that Khan had knowingly withheld
material   facts   (i.e.,  facts  pertaining   to   his
employment and income over a period of five  months  in
2003)  when  he applied for unemployment benefits  from
the Department of Labor.
          Initially,   the  State  did  not   ask   for
permission  to  use this evidence in its case-in-chief,
but  rather  sought permission to use the  evidence  if
Khan  testified and offered a defense based on  mistake
or  innocent intent.  However, during trial, the  State
altered  its  request  and  asked  for  permission   to
introduce  this  evidence in  its  case-in-chief.   The
State asserted that, based on Khans attorneys questions
to the jury panel during voir dire, it was obvious that
Khan  would  be  relying  on a defense  of  mistake  or
innocent intent.
          Judge  Gleason  concluded  that  evidence  of
Khans prior fraudulent unemployment-benefit claims  was
relevant to the perjury case for reasons other than  to
prove  Khans character  and that the proposed  evidence
was  therefore  admissible under Alaska  Evidence  Rule
404(b)(1).  However, Judge Gleason also instructed  the
jury  that  this evidence could be used  only  for  the
limited  purpose  of  deciding ...  [Khans]  knowledge,
plan, or absence of mistake.
          On appeal, Khan argues that this evidence was
not admissible under Evidence Rule 404(b)(1) because it
had  no relevance other than to prove propensity   that
is, no relevance other than to show (1) that Khan was a
person who characteristically committed fraud, and  (2)
that  Khan probably acted true to character during  the
incident being litigated in this case.
          We  disagree.  Khans defense at trial  was  a
combination  of  mistake and innocent intent  (i.e.,  a
lack   of  intent  to  defraud).   During  the  defense
attorneys  summation to the jury, she argued that  Khan
was emotionally distraught at the time of his arrest on
the  unrelated charges  and that, when Khan filled  out
the  financial  affidavit,  he  either  mistakenly   or
carelessly  answered that he had no income  or  assets.
The States evidence of Khans prior fraudulent claim for
unemployment  benefits was directly relevant  to  rebut
this  defense.   This evidence was relevant  to  negate
Khans  assertion that his responses were the result  of
mistake or carelessness.
          According to the States offer of proof (i.e.,
the  factual  assertions in the States  application  to
present  this  evidence), Khan was involved  in  admini
strative  proceedings with the Department of  Labor  in
January    2004   concerning   allegations   that    he
fraudulently  applied for unemployment  benefits.   The
Departments  claim of fraud was based on Khans  failure
to  report  his  employment and  earnings  during  five
months  in  2003.  Thus, when Khan applied  for  court-
appointed  counsel  in October 2004,  he  had  recently
litigated  allegations  that he fraudulently  concealed
employment  and income.  This fact made  it  much  less
likely that Khan acted innocently or negligently  when,
in  the financial affidavit he submitted to support his
request for counsel, he reported that he had no  income
and  no  employment between September 2001 and  October
2004.
          For  these reasons, we uphold Judge  Gleasons
ruling  that the evidence was admissible under Evidence
Rule 404(b)(1).
          Khan  also argues that even if this  evidence
was  admissible  under  Rule 404(b)(1),  Judge  Gleason
nevertheless  should  have  found  that  its  potential
unfair prejudice outweighed whatever probative value it
had,  and that the evidence should therefore have  been
excluded under Evidence Rule 403.
          This  balancing  of  probative  value  versus
potential  for  unfair prejudice is  entrusted  to  the
discretion  of  the trial judge.3  Here, Judge  Gleason
recognized that the challenged evidence had a potential
for  unfair prejudice, and (for this reason)  she  gave
the  jury  a cautionary instruction that explained  the
limited  purposes for which the jurors  could  properly
consider   this  evidence.   Reasonable  judges   could
conclude  that this was a satisfactory way  to  balance
the  States need for the evidence against its potential
for unfair prejudice.
          In  sum,  we conclude that Judge Gleason  did
not abuse her discretion when she allowed the State  to
introduce this evidence.

Khans request to introduce evidence that he would  have
qualified  for court-appointed counsel even if  he  had
filled out the financial affidavit truthfully

          Before  trial, the State asked Judge  Gleason
to  preclude  Khan  from introducing evidence  that  he
would  have qualified for court-appointed counsel  even
if  he  had truthfully listed his income and assets  in
the financial affidavit.
          Judge   Gleason  concluded  that   any   such
evidence would not be relevant to the issue of  whether
Khan  knowingly lied when he filled out  the  financial
affidavit.   For  this  reason, she  ruled  that  Khans
attorney  would  not  be allowed to introduce  evidence
concerning  the financial qualifications for  obtaining
court-appointed counsel.
          The  question  of  whether  Khan  would  have
          qualified for court-appointed counsel if he had given
truthful answers concerning his financial situation had
(at best) only peripheral relevance to the issue to  be
decided  by  the jury:  to wit, whether Khan  knowingly
gave  false  answers when he filled out  the  financial
affidavit.   Moreover, Judge Gleason  could  reasonably
conclude  that, in all probability, the primary  effect
of  such  evidence would be to suggest  that  the  jury
should  overlook Khans crime because his false  answers
caused  no  financial  harm to the  State.   For  these
reasons,  we conclude that Judge Gleason did not  abuse
her discretion when she excluded this evidence.
          Khan  appears to argue (in a footnote to  his
brief)  that  Judge  Gleasons  ruling  denied  him  due
process of law because it prevented him from presenting
evidence favorable to his case.  But we have repeatedly
held  that a defendants right to due process of law  is
not  abridged  when  a trial judge correctly  concludes
that the defendants proposed evidence is not admissible
under the rules of evidence.4

The jury instruction on the requirement of unanimity

          At  Khans trial, the State presented evidence
of  the  falsity of four separate statements  in  Khans
financial  affidavit.   Without  objection   from   the
defense (other than the defense attorneys comment  that
the  instruction  was  not  necessary),  Judge  Gleason
instructed the jurors that they could convict  Khan  of
perjury  if each of the jurors concluded that at  least
one  of these four statements was knowingly false  even
if  there was no unanimous agreement as to the  falsity
of any particular statement.
          On  appeal,  for the first time, Khan  argues
that  this  instruction  was  improper   that  it   was
unlawful for the jury to convict him unless the  jurors
reached  unanimous agreement concerning which statement
or statements were knowingly false.
          When a jury instruction is challenged for the
first  time  on  appeal,  the  party  challenging   the
instruction must show plain error.5  In the context  of
jury instructions, [p]lain error exists when [the] jury
instruction obviously create[d] a high likelihood  that
the  jury  w[ould] follow an erroneous theory resulting
in a miscarriage of justice.6
          In   its  brief  to  this  Court,  the  State
contends  that  the four false statements  were  simply
alternative ways in which Khan might have committed the
single offense of perjury when he swore to the truth of
the  financial affidavit.  Thus, the State reasons, the
jurors  did  not  have to agree on the  precise  theory
(i.e.,  the  precise statement) by which Khans  conduct
was  an act of perjury.  Rather, the jurors simply  had
to  agree that Khans making of the false affidavit  was
an  act of perjury because the affidavit contained  one
          or more knowingly false statements.
          The  problem with the States approach is that
it  rests on the premise that a person commits only one
act of perjury, no matter how many false statements the
person  makes during a single hearing or  in  a  single
document.  Indeed, the State expressly asks this  Court
to  interpret  the  perjury  statute  as  meaning  that
multiple  false  statements in a  single  document  can
support [only] one conviction.
          The   State  bases  this  assertion  on   the
legislative commentary to AS 11.56.240(1), the  statute
which codifies the definition of statement for purposes
of the perjury statutes (AS 11.56.200  230).  According
to  AS 11.56.240(1), a statement means a representation
of  fact.  The accompanying legislative commentary says
basically  the  same thing, except that the  commentary
uses  the  word any instead of a.  Thus, the commentary
declares that a statement means  any representation  of
fact.7
          According   to  the  State,  this   seemingly
inconsequential  variation  in  language  between   the
statute   and  the  commentary  actually  changes   the
definition of the offense of perjury.  The State argues
that,  because  the  commentary  uses  the  phrase  any
representation  (instead  of  a  representation),   the
legislature  must have meant that a charge  of  perjury
can  be  based on the theory that, in a single document
or  during  a single trial or evidentiary hearing,  the
defendant  made one or more knowingly false statements.
Accordingly, the State asserts that when a jury decides
whether the defendant is guilty of perjury, the  jurors
need  not  agree on which of the defendants  statements
were  knowingly false, as long as every juror concludes
that  the  defendant made at least one knowingly  false
statement.
          There   are  two  problems  with  the  States
position.
          First,  the commentary to the perjury section
in  the  Tentative  Draft of the Alaska  Criminal  Code
demonstrates  that  the drafters used  the  phrase  any
representation  of  fact for two  reasons:   first,  to
clarify that the new perjury statute extended to  false
statements  concerning a persons belief or memory;  and
second,  to  distinguish the new perjury  statute  from
Alaskas  former  perjury statute, which required  proof
that  the  defendants false representation of fact  was
material.8
          Second,  the  States position appears  to  be
contrary to the law on this issue.  As this Court noted
in Machado v. State, 797 P.2d 677 (Alaska App. 1990),
     
[there  is] substantial [judicial]  authority
allowing  a  defendant  to  be  convicted  on
multiple counts of perjury where the  perjury
occurred at a single hearing and [even  when]
the factual difference between the perjurious
statements  is  slight.  See Commonwealth  v.
Gurney,  13  Mass. App. 391, 433 N.E.2d  471,
475  (1982).   Cf. DeMan v. State,  677  P.2d
903,   906   (Alaska  App.1984)  (no   double
jeopardy violation for similar perjury  which
occurred at different proceedings).

Machado, 797 P.2d at 687.
          Although   this  Court  has   never
issued  a  definitive ruling  on  this  legal
question, we note that in York v. State,  757
P.2d  68,  73 (Alaska App. 1988),  we  upheld
separate perjury convictions based on various
statements  that  the  defendant  made  in  a
single  proceeding before the Alaska  Workers
Compensation Board, and in Harrison v. State,
923 P.2d 107, 109-110 (Alaska App. 1996),  we
upheld  separate perjury convictions for  two
different  assertions of  fact  in  the  same
sworn application for post-conviction relief.
          Indeed, the facts of Khans case are
similar  to the facts presented in  Harrison.
Khan   submitted  a  single  affidavit   that
allegedly  contained four  false  statements.
Our  decisions in Machado, York, and Harrison
strongly  suggest that Khan could  have  been
charged with (and convicted of) four separate
counts  of perjury, had the State elected  to
indict him in this manner.
          The   States   position   is   also
contrary  to  another doctrine  of  our  law:
When  a  defendant is charged  with  a  crime
under  more than one theory, the jurors  need
not  unanimously  agree on  the  theory  that
serves   as  the  basis  for  the  defendants
conviction,  but the jurors must  unanimously
agree   that  the  defendant  committed   the
wrongful  deed.   State v.  James,  698  P.2d
1161,  1165  (Alaska 1985).   In  James,  our
supreme court declared that jurors must agree
upon  just what the defendant did; they  must
all  agree  that  the defendant  committed  a
single offense.  Id. at 1167.
          Thus,  in  Covington v. State,  703
P.2d  436 (Alaska App. 1985), this Court held
that  when  a  defendant is  charged  with  a
single  count  of sexual abuse  of  a  minor,
encompassing  repeated acts of  sexual  abuse
over a period of time, the defendant can  not
properly  be  convicted  unless  the   jurors
unanimously agree on the specific  act(s)  of
abuse that the defendant committed.  Id.   at
440-41.
          All of these decisions suggest that
Khan  may  have been entitled  to  demand  an
amendment  of  his indictment  so  that  each
alleged  false  statement  in  his  financial
affidavit  would be charged in an  individual
count.    We  need  not  decide  this  issue,
because Khan never attacked his indictment as
duplicitous  (i.e.,  on the  ground  that  it
improperly combined more than one charge).
          In  any event, Khan would not  have
been  entitled to dismissal of the indictment
on  this ground  for, as this Court explained
in Carman v. State, 658 P.2d 131, 139 (Alaska
App.  1983),  the  rule  against  duplicitous
counts   in  an  indictment  is  a  rule   of
pleading[,]  not substance.  The  remedy  for
this  charging  error is not  dismissal,  but
rather a segregation of the improperly joined
charges  into  separate counts  in  the  same
indictment.  Id.
          Moreover,  as  the  Alaska  Supreme
Court  stated in Drahosh v. State,  442  P.2d
44, 48-49 (Alaska 1968), in the absence of  a
showing that a defendants  substantial rights
were  prejudiced  ... , an  otherwise  proper
judgment  of conviction will not be disturbed
because  of  a  duplicitous  count   in   the
indictment or complaint.
          Thus,  even if we assume that  Khan
was  entitled to demand a separate  count  of
the   indictment  for  each   alleged   false
statement, or that Khan was at least entitled
to  have  the  jury  return special  verdicts
indicating  the jurors vote on  each  alleged
false statement, the real issue in Khans case
is   whether  his  substantial  rights   were
prejudiced.
          This  Court  confronted  a  similar
situation  in Covington, a case we  mentioned
earlier.   The  defendant  in  Covington  was
indicted   on  several  counts  of   sexually
abusing  a  minor, but each count encompassed
several  acts of alleged abuse over a  period
of months.  703 P.2d at 438.  This Court held
that  the  jury  was  required  to  reach   a
unanimous  verdict as to which  act  or  acts
Covington  committed.  Id.  at  440-41.   And
because  the  jury was not apprised  of  this
requirement, we initially reversed Covingtons
convictions.   Id.  at  441.    However,   on
rehearing, we concluded that this  error  did
not    require    reversal   of    Covingtons
convictions.   See  State v.  Covington,  711
P.2d 1183, 1185 (Alaska App. 1985).
          In  our  opinion on  rehearing,  we
noted  that  Covington had  not  raised  this
issue  in  the superior court, and  thus  the
issue was raised as a claim of plain error on
appeal.9   We then noted that, at  Covingtons
trial, he did not raise separate or different
defenses  to  the  various  alleged  acts  of
sexual  abuse.   Rather, Covington  contended
that he never sexually abused the victim, and
that  the  victim was lying about  the  whole
matter.10
          Given  the way Covingtons case  was
litigated, we concluded that the trial judges
failure to inform the jurors of the need  for
unanimous  agreement concerning one  or  more
instances of sexual abuse did not appreciably
affect any verdict against Covington.  Id. at
1185.
          We  reach  the  same conclusion  in
Khans  case.  We will assume that Khans  jury
should have been instructed that they had  to
reach a unanimous decision regarding each  of
the  four  false  statements alleged  by  the
State.    Nevertheless,   this   error    was
harmless.
          Khan presented the same defense  to
each statement.  He did not seriously dispute
that  these statements were false.   (Indeed,
when  the  defense  attorney  presented   her
summation,  she  told  the  jury:   Were  not
denying  that [Khan] did have some income  in
[the  preceding] three years [and]  were  not
denying  that  [Khan owned a] pickup  truck.)
Rather, the defense attorney argued that, due
to   Khans  anger,  fright,  agitation,   and
frustration,   he  was  not  paying   careful
attention  to how he filled out the affidavit
and,  therefore, he did not make these  false
statements knowingly.
          In   sum,   Khan  (like  Covington)
presented  a blanket defense to  all  of  the
States  allegations.  Khan conceded  that  he
made  the four statements identified  by  the
State,  and he conceded that these statements
were  false, but he asserted that  he  lacked
the culpable mental state for perjury.  Given
this  record, we conclude that Khan  has  not
shown plain error.  Even if he is right  that
the jurors should have been instructed on the
need  for  unanimity  with  respect  to  each
separate  statement, the failure to  instruct
the  jurors in this manner did not affect the
jurys verdict.

Conclusion

     The  judgement  of  the  superior  court   is
     AFFIRMED.

_______________________________
  1 AS 11.56.200(a).

2 Mallott v. State, 608 P.2d 737, 748 (Alaska 1980); West v.
State,  923  P.2d 110, 114 (Alaska App. 1996); Alexander  v.
State, 838 P.2d 269, 273 (Alaska App. 1992); Wylie v. State,
797 P.2d 651, 656 (Alaska App. 1990).

3 Bluel v. State, 153 P.3d 982, 986 (Alaska 2007); Hawley v.
State, 614 P.2d 1349, 1361 (Alaska 1980).

4 Cleveland v. State, 91 P.3d 965, 974-75 (Alaska App. 2004)
(discussing several cases on this point); Larson  v.  State,
79 P.3d 650, 659 (Alaska App. 2003).

5 Aviation Associates, Ltd. v. TEMSCO Helicopters, Inc., 881
P.2d 1127, 1131 (Alaska 1994); Wylie v. State, 797 P.2d 651,
661 n. 8 (Alaska App. 1990).

6 Aviation Associates, Ltd. v. TEMSCO Helicopters, Inc., 881
P.2d  at  1131 n. 7 (Alaska 1994), quoting Ollice v. Alyeska
Pipeline Service Co., 659 P.2d 1182, 1185 (Alaska 1983).

7 Commentary to the Alaska Revised Criminal Code, 1978 Senate
Journal, Supplement No. 47 (June 12), p. 72.

8  Alaska  Criminal Code Revision, Tentative Draft,  Part  2
(1977), pages 97-98.

9Id. at 1184.

10  Id. at 1185.

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