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Williams v. State (8/21/2009) ap-2230

Williams v. State (8/21/2009) ap-2230

                             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


JEREMY V. WILLIAMS, )
) Court of Appeals No. A-10115
Appellant, ) Trial Court No. 4FA-06-02543 CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) No. 2230 August 21, 2009
)
          Appeal  from the Superior Court, Fourth  Judi
          cial  District,  Fairbanks, Randy  M.  Olsen,
          Judge.

          Appearances:  Gary L. Stapp, The  Law  Office
          of  Gary  L. Stapp, Inc., Fairbanks, for  the
          Appellant.   Eric  A.  Ringsmuth,   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.

          COATS,  Chief Judge.

          Jeremy  V.  Williams  was charged with  felony  driving
under  the  influence1 based on an incident where he crashed  his
motorcycle near Fairbanks.  Superior Court Judge Randy  M.  Olsen
presided  over Williamss trial.  Under the procedure set  out  in
          Ostlund v. State,2 Williamss trial was bifurcated so that the
jury  would not be informed of his prior convictions for  driving
under the influence before it decided whether he had driven under
the influence on that particular occasion.
          After  Williams  testified on direct  examination,  his
attorney  asked  the  court to instruct the jury  on  the  lesser
included  offenses  of  reckless driving and  negligent  driving.
Judge Olsen agreed that Williams was entitled to the instructions
on  the  lesser included offenses but ruled that the State  would
then be entitled to bring in [Williamss] previous convictions for
[driving  under  the  influence] to show  his  knowledge  and  to
establish ... recklessness.  Williams objected, arguing that  his
prior convictions were inadmissible because they merely tended to
show  his  propensity  to drive under the influence.   But  Judge
Olsen rejected Williamss argument, and Williams then withdrew his
request for the instructions.  Williamss prior driving under  the
influence convictions were not admitted into evidence.  The  jury
ultimately convicted Williams.
          On  appeal, Williams argues that Judge Olsen  erred  in
ruling  that,  if  he instructed the jury on the lesser  included
offenses  of  reckless driving and negligent driving,  the  State
would  be  entitled to introduce Williamss prior convictions  for
driving  under  the  influence.  We hold  that  because  Williams
withdrew  his request for the instructions and because the  State
never  introduced Williamss prior convictions for  driving  under
the influence, Williams has not preserved this issue for appeal.

          Why  we hold that Williams has not preserved  this
          issue for appeal
          
          In general, appellate courts do not review hypothetical
rulings.  For instance, in State v. Wickham,3 the Alaska  Supreme
Court  held  that a defendant who declines to testify  after  the
trial court rules that he could be impeached by prior convictions
abandons  any claim that the trial courts ruling was  erroneous.4
Similarly,  in  Sam  v.  State,5  the  defendant  abandoned   his
diminished  capacity  defense after the trial  court  ruled  that
certain  evidence  would  be  admissible  if  he  advanced   that
defense.6   We  held  that  the  defendants  abandonment  of  his
diminished capacity defense precluded review of the trial  courts
evidentiary ruling.7  We have applied the rule set out in Wickham
and  Sam in numerous unpublished opinions, holding each time that
the  defendant  had not preserved his objection to a  conditional
evidentiary ruling.8
          The  above  cases  point out several  reasons  why  any
appellate  decision in these circumstances would be  hypothetical
and  would require an appellate court to speculate on whether  an
appellant  was prejudiced by the challenged ruling.9   First,  we
cannot  be  sure  that Williams withdrew his request  for  lesser
included  offense  instructions solely because  of  Judge  Olsens
ruling.   Second, had Williams persisted in this  request,  Judge
Olsen  might  have  changed his ruling or the  State  might  have
decided not to introduce evidence of Williamss prior convictions.
Third, in the event that the trial court had allowed the State to
          introduce Williamss prior convictions, we would have had a record
from  which  to determine whether, assuming this was  error,  the
error  was  harmless.  Without this record,  any  harmless  error
analysis   would  be  inherently  speculative.10    Under   these
circumstances,  we conclude that Williams has not  preserved  his
objection to Judge Olsens ruling for appeal.
          Williams  points out that after Judge Olsen ruled  that
lesser  included  offense instructions would  open  the  door  to
evidence of his prior convictions for driving under the influence
and  Williams  stated that he was withdrawing his  request  under
protest,   Judge Olsen replied, Okay.  Youll have that  preserved
if  need  be.   Williams argues that he relied  on  Judge  Olsens
statement  to  conclude that he had preserved  his  argument  for
appeal.   In  context, Judge Olsens comment  was  most  likely  a
simple acknowledgment that Williams had made a statement for  the
record  that  he was withdrawing his request for lesser  included
offense instructions because of Judge Olsens ruling.  But, as  we
have  stated,  because Williams withdrew his request  for  lesser
included  offense instructions, Williams did not  preserve  Judge
Olsens ruling for appellate purposes.  Moreover, Judge Olsen  had
no  authority  to  exempt Williams from  the  rule  announced  in
Wickham and Sam.
          The judgment of the superior court is AFFIRMED.
_______________________________
     1 AS 28.35.030(n).

2 51 P.3d 938 (Alaska App. 2002).

     3 796 P.2d 1354 (Alaska 1990).

     4 Id. at 1358.

     5 842 P.2d 596 (Alaska App. 1992).

     6 Id. at 598.

     7 Id. at 598-99.

     8  See,  e.g.,  Melovedoff v. State, Alaska App.  Memorandum
Opinion  and Judgment No. 5031 (Jan. 18, 2006), 2006  WL  120168;
Coleman v. State, Alaska App. Memorandum Opinion and Judgment No.
4887 (June 23, 2004), 2004 WL 1418700; Elze v. State, Alaska App.
Memorandum  Opinion and Judgment No. 3631 (July 16, 1997),   1997
WL  401579;  Reid  v. State, Alaska App. Memorandum  Opinion  and
Judgment No. 2825 (Dec. 15, 1993), 1993 WL 13157160.

     9 See Wickham, 796 P.2d at 1356-58; Sam, 842 P.2d at 599.

     10   See Wickham, 796 P.2d at 1357.

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