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Guthrie v. State (1/15/2010) ap-2251

Guthrie v. State (1/15/2010) ap-2251

                             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


DAVID W. GUTHRIE II,               
                                   
                    Appellant,       Court of Appeals No. A-10354
                                    Trial Court No. 1KE-08-390 Cr
               v.                  
                                   
STATE OF ALASKA,                         O  P  I  N  I  O  N
                                   
                    Appellee.      
End of Caption                       No. 2251    January 15, 2010
                                   
          Appeal  from the District Court,  First  Judi
          cial  District, Ketchikan, Kevin  G.  Miller,
          Judge.

          Appearances:    Sharon  B.  Barr,   Assistant
          Public  Defender, and Quinlan Steiner, Public
          Defender,   Anchorage,  for  the   Appellant.
          Nicholas    Polasky,    Assistant    District
          Attorney,  and  Stephen  R.  West,   District
          Attorney,  Ketchikan, and Daniel S. Sullivan,
          Attorney General, Juneau, for the Appellee.

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

          MANNHEIMER, Judge.

          In  May  2008,  David W. Guthrie II  was  charged  with
fourth-degree  assault, and he was released on bail  pending  his
trial in the Ketchikan district court.  While on bail during  the
months of May, June, July, and August, Guthrie appeared in  court
for  several  pre-trial proceedings  including  a  proceeding  on
August  1st, at which time the district court scheduled  Guthries
trial  for  August 20th, with a pre-trial calendar call scheduled
for August 15th.
          (A  calendar  call is a court proceeding at  which  the
parties    apprise    the    court    
either (1) that they are ready for the scheduled trial, or (2) that the trial will not be necessary because the case has been resolved, or (3) that the trial must be rescheduled for some reason.)
Guthrie did not come to court for the August 15th calendar call, and District Court Judge Kevin G. Miller issued a bench warrant for Guthries arrest. However, this warrant was apparently never served. Six days later, on August 21st, Guthrie appeared in court with his attorney and asked Judge Miller to quash the warrant. The prosecutor did not oppose this request. Judge Miller quashed the warrant, and the judge apparently allowed Guthrie to remain at liberty under the same bail release conditions as before, although he advised Guthrie to keep in better contact with his attorney.
Based on this incident, the State filed an additional charge against Guthrie: misdemeanor failure to appear, AS 12.30.060(2). This statute makes it a crime for a misdemeanor defendant to knowingly fail[] to appear before a court or judicial officer as required. The State charged that Guthrie knowingly failed to appear in the district court for his calendar call on August 15th.
After the State indicated its intention to consolidate the trial of the fourth-degree assault and failure to appear charges, Guthrie asked the district court to sever the charges. The district court denied this request.
Guthrie went to trial in November 2008, and the jury convicted him of both offenses.
In this appeal, Guthrie argues that the district court should have granted his request for separate trials of the two charges. In addition, Guthrie argues that the evidence presented at his trial is legally insufficient to support his conviction for failure to appear.
We agree with Guthrie that the evidence is not sufficient to support his conviction for failure to appear. The States evidence showed that Guthrie was present in court when Judge Miller scheduled the calendar call for August 15, 2008, and the States evidence showed that Guthrie did not appear in court for that calendar call, but the State presented no evidence that Guthrie was required to attend the calendar call. Thus, the evidence was insufficient to prove that Guthrie knowingly failed to appear in court as required.
With regard to the remaining issue on appeal, we conclude that we need not decide whether it was proper to join the assault charge and the failure to appear charge in a single trial. Rather, we conclude that even if the joinder of the two charges was improper, there is no reason to believe that this error affected the jurys verdict on the assault charge. We therefore affirm this portion of the district courts judgement.
Why   we   conclude   that   the
     evidence  presented at Guthries trial is not sufficient
     to support his conviction for failure to appear
     
               As  we explained above, the failure to appear
     statute,   AS  12.30.060,  defines  this   offense   as
     knowingly  fail[ing]  to  appear  before  a  court   or
     judicial  officer as required.  The State alleged  that
     Guthrie  knowingly failed to appear  for  his  calendar
     call  on August 15th.  To prove this charge, the  State
     had  to  present evidence (1) that Guthrie was required
     to  attend  the calendar call on August 15th,  and  (2)
     that  he made a deliberate, conscious decision  not  to
     attend.   See  Moffitt  v. State,  207  P.3d  593,  595
     (Alaska App. 2009).
          Even  assuming that the States  evidence  was
sufficient  to  establish  the  second  element   (that
Guthrie  made a deliberate, conscious decision  not  to
attend  the calendar call), the State failed to present
any  evidence  on the first element (that  Guthrie  was
required  to  attend the calendar  call  in  the  first
place).
          The  States evidence relating to the  failure
to appear charge was cursory.  The prosecutor presented
the  testimony of the Ketchikan Clerk of Court, who had
no  personal knowledge of the events in Guthries  case,
but who instead described the contents of the log notes
kept  by  an  in-court clerk during the district  court
proceedings  of August 1st and August 15th.   (The  log
notes themselves were not introduced into evidence.)
          According to the court clerks description  of
the  log  notes, (1) Guthrie was present  in  court  on
August  1st  when Judge Miller scheduled  the  calendar
call  in Guthries case for August 15th, and (2) Guthrie
did not come to court for this calendar call.  Here  is
the  relevant portion of the clerks testimony on direct
examination:
     
          Prosecutor:   Looking ... at  Plaintiffs
     [Exhibit]  1  do you know what that  document
     is?
     
          Clerk:   This is a certified copy  of  a
     log  note.   ... [A] log note is [a document]
     thats  created by the in-court  clerks.   ...
     It  is  [the clerks] interpretation  of  what
     happened on [the] record in the courtroom.
          .  .  .
     
          Prosecutor:  Okay.  ...  [And] what case
     is   that  document  referring  to?   Is   it
     referring to State versus David Guthrie?
     
          Clerk:  According to the [document],  it
     is.
     
          Prosecutor:  And on what date did  [the]
     hearing  [reflected  in the  log  note]  take
     place?
     
          Clerk:  On August 1, 2008.
     
     Prosecutor:  Was Mr. Guthrie present [in
court  on August 1st], according to what  you
see in the [log] note there?

     Clerk:   The log note indicates that  he
was present.

     Prosecutor:   Did   were  future   court
dates set?

     Clerk:  Yes.

     Prosecutor:   What was  the  next  court
date?

     Clerk:  Calendar call for 8/15/08.

     Prosecutor:  And whats a calendar call?

     Clerk:    Its  where  the  parties   get
together to see if the trial is going to go.

     Prosecutor:  Okay  [to] see if, in fact,
there will be a jury trial?

     Clerk:  Correct.

     Prosecutor:  When was the jury trial set
in this case?

     Clerk:  For 8/20.

     Prosecutor:   Okay.   So  you   need   a
calendar  call [on] one day to see if  youre,
in  fact, going to have the jury trial  thats
scheduled for a few days later?

     Clerk:  Thats correct.

     Prosecutor:   And  what  date  was   the
calendar call set for?

     Clerk:  8/15.

     Prosecutor:     Okay.     Turning     to
Plaintiffs [Exhibit] 2, [does] that reference
the  case  [of] State of Alaska versus  David
Guthrie?

     Clerk:   Yes,  it does:  the  same  case
number.

     Prosecutor:   And  ...  what  date   [is
reflected in] that log note?

     Clerk:  It was created on 8/15.

     Prosecutor:  Was Mr. Guthrie present?

     Clerk:   The log note indicates  he  was
not.

     Prosecutor:   Thats all the questions  I
have.

          In  other  words, the  States  case
(viewed  in  the  light  most  favorable   to
upholding  the verdict) consisted  solely  of
the facts that Guthrie was present at a court
proceeding on August 1st, at which time Judge
Miller  scheduled a calendar call for  August
15th,  and  that Guthrie did  not  return  to
court on August 15th.
          We  express  no opinion on  whether
the  law allows a jury to infer, solely  from
the fact that a defendant failed to attend  a
scheduled   court  hearing   of   which   the
defendant  had knowledge, that the  defendant
made a deliberate, conscious decision not  to
come to court.  We need not decide this issue
because  the  State  failed  to  present  any
evidence  on  another element of  the  crime:
that  Guthrie was legally required to  attend
the August 15th calendar call.
          As   we   explained  earlier,   the
calendar  call  in  Guthries  case   was   an
administrative device designed  to  give  the
judge advance warning if the parties believed
that  the  trial  should not  go  forward  as
scheduled.   As  described in  the  Clerk  of
Courts testimony, at this calendar call,  the
parties either announced themselves ready  to
proceed with the trial on the scheduled date,
or  they explained why they believed  that  a
trial  would not be needed, or why the  trial
should be rescheduled.
          Given  the limited purpose  of  the
calendar  call in Guthries case,  it  appears
that no one expected matters of substance  to
be  discussed,  much less  decided,  at  this
calendar  call.  Indeed, neither  the  public
defender  nor the district attorney  assigned
to  Guthries  case attended the  August  15th
calendar   call.   Instead,  both  of   these
attorneys  arranged for colleagues  in  their
respective offices to appear at the  calendar
call  on their behalf.  We further note  that
calendar  calls are not among the proceedings
listed  in  Alaska Criminal Rule  38(a)  that
require the defendants presence.1
          In  short, this calendar  call  was
not  the  type of proceeding where one  could
simply  assume  that the defendants  personal
presence was required.
          We  concede  the  possibility  that
Judge  Miller might have ordered  Guthrie  to
attend   the   calendar   call    either   by
specifically directing him to be  present  in
court  on August 15th for the calendar  call,
or by issuing a pre-trial order that required
Guthrie   to  attend  all  court  proceedings
unless  he  was  specifically  excused   from
attending.   But  if Judge Miller  did  issue
such  an order, the jury heard nothing  about
it.
          The  State  presented  no  evidence
regarding  Guthries obligation  (or  lack  of
obligation)   to  attend  the   August   15th
calendar  call.   The State simply  presented
evidence that Guthrie did not attend.   Thus,
the State failed to offer any evidence on  an
essential  element of the failure  to  appear
charge:   the element that Guthrie failed  to
appear in court as required.
          At   the  oral  argument  in   this
appeal, the State suggested that even  though
it failed to present any affirmative evidence
concerning Guthries obligation to attend  the
calendar  call  on  August  15th,  it   would
nevertheless be reasonable for  the  jury  to
infer,  from  the fact that Guthrie  attended
other court proceedings in his case, that  he
was  obligated  to attend the calendar  call.
We do not agree.
          Even   in  the  absence  of   legal
compulsion  to  attend a court proceeding,  a
defendant  might come to court  because  they
are  interested in observing the  proceedings
in  their  case.  But the mere fact that  the
defendant  has attended one or  more  earlier
proceedings  does not give rise  to  a  legal
obligation to attend all later proceedings.
          The State could be arguing that one
might reasonably infer, merely from the  fact
that  Guthrie attended several earlier  court
proceedings  in his case, that  Guthrie  must
have  been legally required to attend all  of
the  court  proceedings in  his  case.   This
argument founders on the fact that the  State
introduced   no  evidence  to  suggest   that
Guthries earlier court appearances arose from
a  legal  obligation to attend.  Because  the
jury  had no evidentiary basis for concluding
that   Guthries  earlier  court   appearances
demonstrated  the  existence   of   a   legal
obligation    to    attend   those    earlier
proceedings,  the  jury  had  no  basis   for
concluding,   based   solely   on    Guthries
attendance at these earlier proceedings, that
Guthrie had a legal obligation to attend  any
other court proceedings.
          For these reasons, we conclude that
the evidence introduced at Guthries trial was
not  sufficient to support his conviction for
failure to appear.

Whether the joinder of the two charges in a single
trial prejudiced Guthrie

          Although  we  have  concluded  that  Guthries
conviction  for failure to appear must be reversed,  we
must also decide whether the jurys consideration of the
fourth-degree assault charge was rendered unfair by the
fact  that the jury heard the failure to appear  charge
in the same combined trial.
          On  the  issue of whether a subsequent charge
of  failure to appear can be joined for trial with  the
initial  charges  brought against  the  defendant,  the
State  argues  that  any failure to  appear  charge  is
necessarily   connected  together  with   the   initial
charges, and thus joinder is always proper under Alaska
Criminal Rule 8(a)(3).  We are not sure.
          Many judicial decisions suggest or hold that,
in  circumstances like Guthries case, it is improper to
jointly  try a failure to appear charge with the  other
charges  that were initially filed against a defendant.
These court decisions indicate that joinder is improper
when  the only connection between the failure to appear
charge  and the initial charges is that the failure  to
appear  charge  is based on the defendants  failure  to
attend   a  court  proceeding  involving  the   initial
charges.   Under this approach, joinder of the  failure
to   appear  charge  is  appropriate  only   when   the
circumstances  surrounding the  defendants  failure  to
appear  affirmatively suggest that  the  defendant  was
actively  attempting  to  avoid  prosecution  for   the
initial  charges (and thus manifesting a  consciousness
of guilt).
          See  United  States v. Gabay, 923 F.2d  1536,
1539-40  (11th Cir. 1991); United States v. Ritch,  583
F.2d  1179,  1181  (1st  Cir.  1978)  (both  construing
Federal  Criminal  Rule  8(a), which  is  substantially
similar to Alaska Criminal Rule 8(a)); Brown v.  United
States,  718  A.2d 95, 102 (D.C. App. 1998);  State  v.
Weathers,  451  S.E.2d 266, 269 (N.C. 1994);  State  v.
Wittwer,  166  P.3d  564,  566  (Or.  App.  2007)  (all
construing    state   joinder   rules   identical    or
substantially  similar to Alaska  Criminal  Rule  8(a).
But  see  State v. Bryant, 950 P.2d 1004,  1010  (Wash.
App.  1998) (upholding joinder of a failure  to  appear
charge  even though the circumstances did not  indicate
an intent to flee or otherwise avoid prosecution).
          Among  the  jurisdictions  that  follow   the
majority  rule (i.e., jurisdictions that do  not  allow
joinder  of  the  failure to appear charge  unless  the
circumstances  of  the  defendants  failure  to  appear
demonstrate  an  intent  to  flee  or  otherwise  avoid
prosecution),  we have found no case in  which  joinder
has  been upheld under facts analogous to the facts  of
Guthries  case   where  a defendant  who  had  attended
earlier   court  proceedings  missed  a  single   court
appearance but then, within days, voluntarily  returned
to court with his attorney.
          Nevertheless,  we  need  not  decide  whether
joinder  of the failure to appear charge was proper  in
Guthries  case.   We conclude that, even  assuming  the
joinder was improper, Guthrie suffered no prejudice.
          When   a   trial  court  commits   error   by
improperly joining charges for trial, or by failing  to
grant  severance  of  those  charges,  the  error  will
require reversal of the defendants convictions only  if
the   defendant  makes  a  particularized  showing   of
prejudice.2   To  establish the required  prejudice,  a
defendant  must show that the jurys ability  to  fairly
decide   the  individual  charges  [was]  substantially
impaired  [because] the jury hear[d] evidence  relating
to other charges at the same time.3
          It  is  not enough for the defendant to  show
that  evidence  of the various charges was  not  cross-
admissible,4  nor  is it enough for  the  defendant  to
assert  in  general  terms that the  trial  of  several
charges  at once might suggest to the jurors  that  the
defendant has a criminal disposition.5
          Yet  these  are the only types  of  prejudice
that Guthrie asserts.  He contends that evidence of the
assault  and evidence of the failure to appear was  not
cross-admissible,  and that the joinder  of  these  two
charges therefore created an appreciable risk of actual
prejudice.  According to Guthrie, [a] jury hearing  the
underlying  facts of the assault charge would  be  more
likely  to find that someone who would drink  and  come
home  and harass his family would also be irresponsible
enough to knowingly miss a court date  and, conversely,
a jury deliberating on the assault charge would be more
likely  to  find guilt if they knew that the  defendant
subsequently missed a court hearing.
          These claims amount to an assertion that  the
jury   might   infer  that  Guthrie  had   a   criminal
disposition from the fact that Guthrie was charged with
two  separate crimes.  But that risk is always  present
when  offenses  are joined for trial,  and  it  is  not
sufficient, standing alone, to establish prejudice.6
          Here,  there was no real risk that the  jurys
consideration  of either count would be  prejudiced  or
confused  because  of the joinder.   The  two  offenses
involved  discrete  factual scenarios,  and  the  trial
judge   instructed  the  jury  to  decide  the  charges
separately.
          Moreover,  we  are  unpersuaded  by  Guthries
claim that evidence of his failure to appear must  have
substantially  impaired  the jurys  ability  to  fairly
decide  the assault charge.  As we have explained,  the
State  presented  only  cursory  evidence  of  Guthries
failure  to appear:  the brief testimony in  which  the
Ketchikan  Clerk of Court described the log notes  from
August  1st  and August 15th.  While it is possible  to
imagine  cases in which a jury might unfairly  infer  a
defendants   consciousness  of  guilt  based   on   the
defendants  failure  to appear  at  a  court  hearing,7
Guthries  case presented no such risk.  The  prosecutor
          never asked the jury to infer consciousness of guilt
from  Guthries failure to appear.  And Guthrie elicited
testimony  that he was present in court for  his  other
court  appearances  in the assault case,  including  an
appearance six days after the missed calendar call.
          Thus,  even assuming that Judge Miller  erred
when  he allowed the State to join the two charges  for
trial,  Guthrie  has failed to make the  particularized
showing of prejudice that would entitle him to reversal
of his assault conviction.

Conclusion

          Guthries conviction for failure to appear  is
REVERSED.   Guthries  conviction  for  assault  in  the
fourth degree is AFFIRMED.

_______________________________
1Alaska Criminal Rule 38(a) states:  The defendant shall be
present at the arraignment, at the preliminary hearing,
at  the  time of plea, at the omnibus hearing,  and  at
every  stage of the trial, including the impaneling  of
the  jury and [the] return of the verdict, and  at  the
imposition of sentence, [unless] otherwise provided  in
[section (b) or (c) of] this rule.

2  Richards  v.  State, 451 P.2d 359, 361-62 (Alaska  1969);
Newcomb  v.  State,  800 P.2d 935, 943  (Alaska  App.  1990)
(citing  Cleveland v. State, 538 P.2d 1006, 1008-09  (Alaska
1975)).

3 Sharp v. State, 837 P.2d 718, 725 (Alaska App. 1992).

4 Newcomb, 800 P.2d at 943 (Severance of charges is required
when  a  lack  of cross-admissibility creates an appreciable
risk  of  actual prejudice from joinder.  A lack  of  cross-
admissibility,  however,  does  not  inevitably  result   in
prejudice.  The likelihood of prejudice must be evaluated on
a case-by-case basis.) (citation omitted).

5 Richards, 451 P.2d at 362.

6 Richards, 451 P.2d at 362.

7 See State v. Haag, 578 P.2d 740, 746 (Mont. 1978).

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