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Moran v. State (9/2/2016) ap-2517

Moran v. State (9/2/2016) ap-2517

                                                                              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@ akcourts.us  



                             IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                    



CHARLES  P.  MORAN,  

                                                                                                                                               

                                                                                                     Court of Appeals No. A-11299  

                                                                                                                                                             

                                                     Appellant,                                   Trial Court No. 3KN-11-1025 CR  



                                        v.  

                                                                                                                  O   P   I   N   I   O   N  

STATE  OF  ALASKA,  



                                                     Appellee.                                      No.  2517  -  September  2,  2016  



                           A                                                                                                          

                              ppeal from the Superior Court, Third Judicial District, Kenai,  

                                                           

                           Anna M. Moran, Judge.  



                                                                                                                                 

                           Appearances:  Charles P. Moran, in propria persona, Soldotna,  

                                                                                                                                     

                           for   the   Appellant.                      Callie   Patton   Kim,   Assistant   Public  

                                                                                                                                             

                           Defender, and Quinlan Steiner, Public Defender, Anchorage, for  

                                                                                                                                      

                           the Alaska Public Defender Agency, appearing as amicus curiae  

                                                                                                                                

                           aligned   with  the   Appellant.                              Terisia  Chleborad,  Assistant  

                                                                                                                                            

                           Attorney General, Office of Criminal Appeals, Anchorage, and  

                                                                                                                                   

                           Michael C. Geraghty and Craig W. Richards, Attorneys General,  

                                                                           

                           Juneau, for the Appellee.  



                                                                                                                                    

                           Before:  Mannheimer, Chief  Judge, Allard, Judge, and Hanley,  

                                                                   *  

                                                                      

                           District Court Judge. 



                                       

                           Judge MANNHEIMER.  



       *     Sitting   by   assignment    made   pursuant   to   Article   IV,   Section   16   of   the   Alaska  



Constitution and Administrative Rule 24(d).                             


----------------------- Page 2-----------------------

                                     In the early morning of June 26, 2011, Charles P. Moran was arrested for                                                                                                                       



assaulting his wife Amanda.                                                   Later that day, Moran initiated the first of seven telephone                                                                        



calls that he made to his wife from jail.                                                                    



                                     Moran told Amanda that he loved her.                                                                      When Amanda complained about                                                  



her injuries, and when she blamed Moran for causing those injuries, Moran told Amanda                                                                                                                                



that she had been injured by falling down the stairs, and then he told her that he did not                                                                                                                                         



want to say anything more about this matter over the phone.                                                                                                             



                                     Moran was subsequently convicted of two criminal charges:                                                                                                          one count of                   



                                                        1                                                                                                                                           2  

                                                           and one count of second-degree unlawful contact.                                                                                                 Moran now  

third-degree assault,                                                                                                                                                                                                           



challenges the validity of those convictions.  

                                                                                                                        



                                    With regard to Moran's unlawfulcontact conviction, the statute that defines  

                                                                                                                                                                                                                         



this crime, AS 11.56.755(a), declares that a defendant commits the crime of  second- 

                                                                                                                                                                                                                     



degree  unlawful contact  if,  having been  arrested  for  one  of  the  crimes  defined  in  

                                                                                                                                                                                                                                      



AS 11.41 ("offenses against the person") or for any other crime of domestic violence, the  

                                                                                                                                                                                                                                    



defendant  "initiates  communication  or  attempts  to  initiate  communication  with  the  

                                                                                                                                                                                                                                  



alleged victim of the crime" before the defendant's initial appearance in front of a judge  

                                                                                                                                                                                                                           



or magistrate (or before the dismissal of the criminal charge, if that occurs first).  

                                                                                                                                                                                                                           



                                     Moran's argument on appeal hinges on the fact that this statute does not  

                                                                                                                                                                                                                                   



expressly require the State to prove that a defendant was ever notified that it would be  

                                                                                                                                                                                                                                     



illegal for the  defendant to communicate with (or attempt to communicate with) the  

                                                                                                                                                                                                                                   



alleged victim.                                 Moran argues that the statute is unconstitutional because it does not  

                                                                                                                                                                                                                                   



require proof of notice.  

                                                                  



          1       AS 11.41.220(a)(5).                                    



         2        AS 11.56.755(a).  

                                                                 



                                                                                                                - 2 -                                                                                                            2517
  


----------------------- Page 3-----------------------

                                                                                                                           

                    More specifically, Moran contends that, unless defendants are told about  



                                                                                                                                

this statutory prohibition, defendants would have no reason to think that  it  would be  



                                                                                                                      

unlawful for them to communicate with the victim.  Thus, Moran argues, the statutory  



                                                                                                                            

definition of the crime violates the constitutional guarantee of due process of law.  



                                                                                                                    

                    The State responds that Moran is essentially arguing that  his conviction  



                                                                                                                               

should be set aside because he was unaware that there  was a statute that made his  



                                                                                                                            

conduct a crime.  Relying on the maxim, "ignorance of the law is no excuse", the State  



                                                                                                                             

argues that it does not matter whether Moran knew that his act of telephoning his wife  



                                

constituted a crime.  



                                                                                                                               

                    For the reasons explained in this opinion, we conclude that Moran has the  



                                                                                                                                

better of this argument.  Before the State could lawfully impose a criminal penalty on  



                                                                                                                              

Moran for telephoning his spouse, the State was required (at a minimum) to prove that  



                                                                                                                         

Moran was told that it was unlawful for him to contact his spouse.  We therefore reverse  



                                                                          

Moran's conviction for second-degree unlawful contact.  



                                                                                                                              

                    With regard to Moran's third-degree assault conviction, Moran argues that  



                                                                                                                              

the trial judge improperly allowed the State to rely on inadmissible evidence at trial, and  



                                                                                                                              

he also argues that his trial on this charge should have been  bifurcated (because one  



                                                                                                                               

element of the State's proof was that Moran had prior convictions for assault).  For the  



                                                                                                                                 

reasons explained in this opinion, we conclude that neither of those claims has merit.  



                                                                                                                      

          The constitutional limits on the doctrine that "ignorance of the law is no  

          excuse"  



                                                                                                                 

                    The well-known maxim, "Ignorance of the law is no excuse", encapsulates  



                                                                                                                           

two inter-related principles:  (1) that the government normally is not required to prove  



                                                                                                                  

that a criminal defendant was aware of the fact that a statute prohibited the defendant's  



                                                              - 3 -                                                          2517
  


----------------------- Page 4-----------------------

                                                                                                                                 

conduct, and (2) that a defendant normally is not allowed to defend a criminal charge by  



                                                                 

asserting ignorance of the governing law.  



                                                                                                                               

                     These  two  principles  clearly  apply  when  the  conduct  for  which  the  



                                                                                                                      

defendant is being punished is "malum in se" - that is, "[conduct]  which reasoning  



                                                                                                                              

members of society regard  as condemnable".  Hentzner v. State, 613 P.2d 821, 826  



                                                                                                                                

(Alaska 1980).            In such cases,  a defendant's "awareness  of  the commission of the  



                                                                                                                                

 [prohibited] act necessarily carries with it an awareness of wrongdoing", and it does not  



                                                                                                                          

matter whether the defendant was subjectively aware that there was a criminal statute  



                                              

covering their conduct.  Ibid.  



                                                                                                                               

                     The supreme court described this generalrule in Alex v. State , 484 P.2d 677  



              

(Alaska 1971):  



                       

                                                                                                           

                     [The government need not prove a person's] awareness that  

                                                                                                              

                     [his] given conduct ... is a "wrongdoing" in the sense that it  

                                                                                                              

                     is proscribed by law, but rather ... an awareness that one is  

                                                                                                              

                     committing the specific acts which are defined by law as  a  

                                                                                                       

                     "wrongdoing".   It is ...  no defense that one was not aware  

                                                                                                           

                     [that] his acts ... were proscribed by law.  So long as one acts  

                                                                                                          

                     intentionally, with cognizance of his behavior, he acts with  

                                                                                                             

                     the  requisite  awareness  of  wrongdoing.                       In  the  words  of  

                                                                                              

                     [United States Supreme Court] Justice Holmes:  



                                                                                                       

                               If a man intentionally adopts certain conduct in certain  

                                                                                                             

                               circumstances  known  to  him,  and  that  conduct  is  

                                                                                                             

                               forbidden by  the law under those circumstances, he  

                                                                                                        

                               intentionally breaks the law in the only sense in which  

                                                                              

                               the law ever considers intent.  



                                                                                                          

                    Ellis v. United States, 206 U.S. 246, 257, 27 S.Ct. 600, 602,  

                                                      

                     51 L.Ed. 1047, 1053 (1907).  



                                          

Alex , 484 P.2d at 681-82.  



                                                               - 4 -                                                          2517
  


----------------------- Page 5-----------------------

                                                                                                                          

                     But though this is the rule that generally applies,  there are due process  



                                                                                                                          

limits to this rule.   As our supreme court explained in Hentzner, some criminal statutes  



                                                                                                                                

punish conduct that the law classifies as malum prohibitum -  i.e., conduct that is not  



                                                                                                                                      

inherently bad in and of itself, but is nevertheless proscribed for reasons of social policy.  



                                                                                                                          

With regard to these  malum prohibitum  offenses,  where "there is no broad societal  



                                                                                      

concurrence that [the underlying conduct] is inherently bad",  



                       

                                                                                                            

                     [c]onsciousness on the part of the actor that he is doing the  

                                                                                                         

                     act [that happens to be proscribed by law] does not carry  

                                                                                                         

                     with it an implication that he is aware that what he is doing  

                                                                                                               

                     is wrong.  In such cases, more than mere conscious action is  

                                                                                                            

                     needed to satisfy the criminal intent requirement [of the due  

                                                

                     process clause].  



                                            

Hentzner, 613 P.2d at 826.  



                                                                                                                

           The potential constitutional problems posed by Alaska's unlawful contact  

                       

          statute  



                                                                                                                        

                     The  offense  that  Moran  was  convicted  of  -  second-degree  unlawful  



                                                                                                                            

contact as defined in AS 11.56.755(a) - is a malum prohibitum offense.  This statute  



                                                                                                                                

restricts the actions of defendants from the time of their arrest until the time of their first  



                                                                                                                          

appearance before a judicial officer, prohibiting them from initiating (or trying to initiate)  



                                                                                       

a communication with the alleged victim of their crime.  



                                                                                                                               

                     The legislature enacted this statute for the purpose of restricting the right  



                                                                                                                       

granted by AS 12.25.150(b)  -  the right of all arrestees to "telephone or otherwise  



                                                                                                        

communicate with [an] attorney and [with] any relative or friend".  



                                                                                                                          

                     More specifically,  the unlawful contact statute was intended to prevent  



                                                                                                                                  

domestic  violence  offenders  from  using this  statutorily  guaranteed  telephone  call to  



                                                               - 5 -                                                          2517
  


----------------------- Page 6-----------------------

"harass [their] victims", or to try                          to   "beat   the charge" by using the telephone call to                                  



threaten   their   victims   or   to   otherwise   induce   the   victims   to   falsely   recant   their  



                      3  

accusations.      



                                                                                                         4  

                                                                                                                                         

                        Such activities were, of course, already illegal.                                    In essence, the legislature  



                                                                                                                                                

decided to make sure that these potential unlawful uses of the telephone would never  



                                                                                                                                       

occur in the first place - by prohibiting all communication between arrested defendants  



                                                                                                                                                 

and  victims,  regardless of the purpose and content of those communications.                                                                     This  



                                                                                                                                            

prohibition remains in place until the arrestee's first appearance in front of a judicial  



                                                                                                                                                   

officer - which can take up to two days.   (Alaska Criminal Rule 5(a)(1) declares that  



                                                                                                                                                

an arrestee's first appearance must occur "without unnecessary delay and in any event  



                                                       

within 48 hours after arrest".)  



                                                                                                                                                        

                        But when, as in Moran's case, a charge of domestic violence involves a  



                                                                                                                                                

spouse or long-term domestic partner, there are legitimate reasons why an arrestee might  



                                                                                                                                          

wish to communicate with the alleged victim over the course of the two days following  



                                                                                                                                                    

their arrest.  The arrestee might want to make sure that arrangements are in place to pay  



                                                                                                                                        

the rent,  or that someone is available to  provide needed medical care,  or household  



                                                                                                                                                            

transportation, or to babysit children, or to care for elderly members of the household.  



      3     See  the Minutes of the House Judiciary Committee of May 6, 1997, discussing House                                                  



Bill 245.        



      4     See  AS  11.56.510  ("interference  with  official  proceedings":                                                using  threats  to  

                                                                                                                                                      

improperly influence a witness's testimony); AS 11.56.540 (first-degree "tampering with a  

                                                                                                                                                         

witness":  inducing or attempting to induce a witness to testify falsely or misleadingly, or to  

                                                                                                                                                       

unlawfully  withhold  testimony);  AS  11.56.790  ("compounding":                                                    offering  a  benefit  to  

                                                                                                                                                      

another  person to  get  them to  conceal  an offense,  or  to  refrain  from assisting in the  

                                                                                                                                                    

prosecution of the offense, or to withhold evidence of  the offense); AS 11.61.120(a)(4)  

                                                                                                                               

(second-degree  "harassment":                           telephoning  another   person  and  threatening  them  with  

                                                                                                                                                  

physical injury).  

                             



                                                                         - 6 -                                                                    2517
  


----------------------- Page 7-----------------------

                                                                                                                                

                     These types of communications between spouses or domestic partners are  



                                                                                                                               

protected  by the constitutional rights of association and privacy - even when one  



                                                                                                                                

 spouse or partner is charged with a crime (or even convicted of a crime) that involves the  



            

other.  



                                                                                                                             

                     For instance, in  Williams v. State, 151 P.3d 460, 469-471 (Alaska App.  



                                                                                                                     

2006),  this  Court  struck  down  a  provision  of  Alaska's  bail statutes  that  prohibited  



                                                                                                                      

defendants charged with a crime of domestic violence from returning to the residence  



                                                                                                                              

they shared with the alleged victim  during  the pendency of the criminal case.                                               We  



                                                                                                                         

concluded that, in the absence of a judicial finding that the defendant posed an ongoing  



                                                                                                                           

danger to the alleged victim, there are too many situations where this provision would  



                                                                                                                

"infringe an important liberty interest without advancing any significant governmental  



                                                                                                                           

interest".  Id. at 468.  See also Dawson v. State, 894 P.2d 672, 680 (Alaska App. 1995),  



                                                                                                                    

where this Court held that "[any] condition of probation restricting marital association  



                                                                                                                                

plainly  implicates  the  constitutional  rights  of  privacy,  liberty[,]  and  freedom  of  



                                                                                                                               

association" - and that, for this reason, it "must be subjected to special scrutiny".  



                                                                                                                 

                     Turning to the provisions of the unlawful contact statute, we acknowledge  



                                                                                                                                  

that the prohibition on communications between the defendant and the alleged victim is  



                                                                                                                                     

of a much shorter duration than conditions of bail or probation (no more than 48 hours).  



                                                                                                                            

And as we noted in  dictum  in  Williams,  a short-term prohibition of  this  sort might  



                                                                                                                                   

conceivably be justified as a measure to "defus[e] a potentially violent situation until a  



                                                                                                                                      

judicial officer can assess the danger to the alleged victim".   Williams, 151 P.3d at 469.  



                                                                                                                         

                     But the fact that there are  potential rationales for the unlawful contact  



                                                                                                                                  

statute's ban on domestic  communications does not necessarily mean that this ban is  



                        

constitutional.  



                                                                                                                             

                     Any law that categorically forbids  spouses and domestic partners from  



                                                                                                                        

communicating with  each  other  encroaches  upon  the  rights  of  privacy  and  familial  



                                                               - 7 -                                                          2517
  


----------------------- Page 8-----------------------

association.   And because a total ban on communication necessarily encompasses a fair                                                                                                                              



amount of innocent or harmless communications, such a ban is constitutionally suspect.                                                                                                                    



                                  As Professor LaFave notes in his treatise on substantive criminal law, courts                                                                                                



often confront situations like the present case - situations where the legislature has                                                                                                                               



totally proscribed the knowing performance of certain acts, "even though [not] all who                                                                                                                             



                                                                                                                                                                            5  

engage in such acts are ... bent upon some evil or harmful course."                                                                                                              



                                   The general rule is that the legislature may prohibit a particular act if it is  

                                                                                                                                                                                                                        



generally harmfulto society, even though some people perform the act without a criminal  

                                                                                                                                                                                                         

purpose. 6                   But as Professor LaFave explains, "the legislative power in this regard is not  

                                                                                                                                                                                                                      



without limits".  Courts have struck down such statutes as unconstitutional if "they are  

                                                                                                                                                                                                                      

                                                                                                                                                                7 - i.e., if the legislature  

too sweeping in encompassing activity that is wholly innocent"  

                                                                                                                                                                                                     



has  defined  the  prohibited  conduct  so  broadly  that  it  needlessly  encompasses  large  

                                                                                                                                                                                                                



amounts of harmless conduct.  

                                                                               



                                  It is debatable whether Alaska's unlawfulcontact statute would fail this test.  

                                                                                                                                                                                                                    



But we need not address these issues further, because Moran does not directly challenge  

                                                                                                                                                                                                       



the underlying constitutionality of the unlawful contact statute.  Rather, Moran argues  

                                                                                                                                                                                                             



that if a defendant is to be criminally prosecuted for communicating with a spouse or  

                                                                                                                                                                                                                        



domestic partner, due process requires at a minimum that the defendant receive advance  

                                                                                                                                                                                                         



notice that these communications are prohibited.  

                                                                                                                               



         5       Wayne R. LaFave,                             Substantive Criminal Law                                         (2nd ed. 2003),  3.3(c), Vol. 1, p. 205.
                                                       



         6  

                                                               

                 Id., Vol. 1, p. 206.
  



         7       Ibid.
  



                                                                                                          - 8 -                                                                                                     2517
  


----------------------- Page 9-----------------------

                                                                                                                       

           Why we conclude that the unlawful contact statute must be construed to  

                                                                                                          

          require proof that the defendant was notified that they were prohibited  

                                                                 

          from contacting the alleged victim  



                                                                                                                        

                     Our unlawful contact statute poses the same kind of due process problem  



                                                                                                                              

that the supreme court addressed in Hentzner.  That is, the unlawfulconduct statute bans  



                                                                                                                         

conduct that is not inherently bad in and of itself, but is instead proscribed for reasons  



                                                                                                                                 

of  social  policy.           In  an  attempt  to  make  sure  that  defendants  do  not  engage  in  



                                                                                                                               

communications  that  would  be  unlawful (telephonic  threats,  harassment,  etc.),  the  



                                                                                                                      

legislature  has   banned  all  communications  with  the  alleged  victim  -  including  



                                                                                                            

communications that are completely innocent and, at least potentially, communications  



                                                                                                                             

that are necessary to the running of the defendant's and victim's joint household.  



                                                                                                                                

                     In this situation, a defendant's consciousness that they are doing the act  



                                                                                                                            

proscribed by the statute (i.e., communicating with the alleged victim) "does not carry  



                                                                                                                                      

with  it  an  implication  that  [the  defendant]  is  aware  that  [this  conduct]  is  wrong."  



                                                                                                                       

Hentzner,  613 P.2d at 826.                   This being so,  and because a violation of the unlawful  



                                                                                                                                

contact statute subjects the  defendant to imprisonment, the due process clause of the  



                                                                                                                     

Alaska  Constitution  requires  the  government  to  prove  "more  than  mere  conscious  



               

action".  Ibid.  



                                                                                                                                

                    We accordingly hold that a defendant can not be convicted of violating the  



                                                                                                                       

second-degree unlawful contact statute without proof that they were expressly informed  



                                                                                                             

of the statute's prohibition on communications with the alleged victim.  



                                                                                                                     

                    We leave for another day the question of whether the statute, so construed,  



                                                                                                                         

still constitutes an unconstitutional infringement on the rights of privacy and familial  



                     

association.  



                                                               - 9 -                                                          2517
  


----------------------- Page 10-----------------------

                                     The admissibility of Moran's prior convictions                                                                                                                                                  



                                                                        At a pre-trial hearing, Amanda Moran testified about two prior incidents                                                                                                                                                                                                                                                                              



 of domestic violence committed against her by Moran.                                                                                                                                                                                                                                      In February 2009, Moran slapped                                                                                                             



her across the face and threw a remote control at her.                                                                                                                                                                                                                                               Based on this incident, Moran                                                                                                      



pleaded guilty to fourth-degree assault.                                                                                                                                                                        And in October 2010, Moran shoved Amanda                                                                                                                                                                        



 against a wall, punched her in the face, and strangled her.                                                                                                                                                                                                                                                Based on this incident, Moran                                                                                                



pleaded guilty to another charge of fourth-degree assault.                                                                                                                                                                                                                                                        



                                                                        On appeal, Moran concedes that evidence of these two prior assaults was                                                                                                                                                                                                                                                                                                         



 admissible under Alaska Evidence Rule 404(b)(4), and that Amanda might properly have                                                                                                                                                                                                                                                                                                                                                                



 testified about these incidents.                                                                                                                               But at Moran's trial, the prosecutor did not ask Amanda                                                                                                                                                                                                         



 to testify about the details of these two prior incidents.                                                                                                                                                                                                                                        Instead, the prosecutor called a                                                                                                                                   



 court records custodian to introduce the charging documents and the final judgements                                                                                                                                                                                                                                                                                                                           



 in the two prior criminal cases.                                                                                                                                     



                                                                        On appeal, Moran argues that the judgements of conviction in the two prior                                                                                                                                                                                                                                                                                                   



 cases were inadmissible hearsay                                                                                                                                                to the extent they were offered to prove that Moran                                                                                                                                                                                                     



 actually assaulted his wife.                                                                                                                   Moran is correct:                                                                                   in  Jones v. State                                                                            , 215 P.3d 1091, 1098-                                                                      



  1100 (Alaska App. 2009), we held that evidence of a criminal conviction is inadmissible                                                                                                                                                                                                                                                                                                                    



hearsay under Alaska law "if it is offered to prove that the defendant actually engaged                                                                                                                                                                                                                                                                                                                                          

 in the conduct that would justify that conviction."                                                                                                                                                                                                                       8  



                                                                        But the State was authorized to  introduce evidence that Moran pleaded  

                                                                                                                                                                                                                                                                                                                                                                                                                                  



guilty to the two prior assault charges.  Those two guilty pleas were Moran's personal  

                                                                                                                                                                                                                                                                                                                                                                                                                               



 admissions that he engaged in the criminal conduct charged against him.  Moran's guilty  

                                                                                                                                                                                                                                                                                                                                                                                                                                                



pleas were thus admissible (when offered by the State) as statements of a party opponent  

                                                                                                                                                                                                                                                                                                                                                                                                                            



under Alaska Evidence Rule 801(d)(2).  

                                                                                                                                                                                                                    



                   8                 Citing and quoting                                                                          Douglas v. State                                                                         , 166 P.3d 61, 85 (Alaska App. 2007).                                                                                                                                                           



                                                                                                                                                                                                                          - 10 -                                                                                                                                                                                                                         2517
  


----------------------- Page 11-----------------------

                                                                                                                              

                     This point of law is explained in the "Note on Omission" included as part  



                                                                                                                       

of the Commentary to Alaska Evidence Rule 803.   This "Note on Omission" declares  



                                                                                                                               

that a criminal judgement is not admissible to prove that the defendant engaged in the  



                                                                                                                              

conduct that would justify the entry of that judgement.  But this Note also declares that  



                                                                                                                           

guilty pleas are admissible under Evidence Rule 801(d)(2) - i.e., admissible as state- 



                                                                                                                            

ments of a party opponent - unless the evidence is barred by Evidence Rule 410 (i.e.,  



                                                                                                                                   

unless the plea is not accepted, or is withdrawn, or is vacated or reversed on appeal).  



                                                                                                                               

                     To sum up this discussion: Moran is correct that the prosecutor should not  



                                                                                                                             

have been allowed to introduce the prior judgements  as independent evidence  that  



                                                                                                                                    

Moran engaged in  the conduct that would justify his two prior assault convictions .  



                                                                                                                           

However,  because those judgements were proof that Moran  admitted the two prior  



                                                                                                                           

assaults  by  pleading  guilty,  it  was  proper  for  the  prosecutor  to  introduce  those  



                                                                          

judgements as admissions of a party opponent.  



                                                                                                                          

                     (More specifically, the written judgements were admissible under Alaska  



                                                                                                                            

Evidence Rule 803(8), the hearsay exception for public records, to the extent that these  



                                                                                                                            

judgements were official records of the  fact  that  Moran pleaded guilty to the prior  



                

charges.)  



                                                                                        

          Moran's argument that his trial should have been bifurcated  



                                                                                                                          

                     Moran also claims that his trial on the third-degree assault charge should  



                                                                                                                         

have been bifurcated because the State introduced evidence of  his two prior assault  



                     

convictions.  



                                                                                                                              

                     Moran        was       charged        with       third-degree         assault       as      defined        in  



                                                                                                                            

AS 11.41.220(a)(5).  This charge required the State to prove that Moran had two prior  



                                                                                                                                

convictions for assaultive offenses within the preceding ten years.   Moran argues on  



                                                              - 11 -                                                         2517
  


----------------------- Page 12-----------------------

                                                                                                                          

appeal that the court should have  bifurcated his trial on this count, so that the jurors  



                                                                                                                                

would not be informed of Moran's prior convictions until after they found him guilty of  



                                                

the assault in the present case.  



                                                                                                                       

                    But as Moran concedes, evidence of the two prior assaults (i.e., evidence  



                                                                                                                              

of the assaults themselves, as opposed to Moran's convictions for those assaults) was  



                                                                                                                            

admissible under Evidence Rule 404(b).  And as we have just explained, to prove those  



                                                                                                                           

two prior assaults, the State was entitled to introduce evidence that Moran pleaded guilty  



                            

to those assaults.  



                                                                                                                               

                    Conceivably, one might argue that the trial judge should have required the  



                                                                                                                                

State to prove Moran's guilty pleas by means other than the two prior judgements -  



                                                                                                                               

e.g., through the testimony of people who were present in court when Moran offered his  



                                                                                                                         

pleas, or by playing the audio record of those proceedings.   But as a practical matter,  



                                                                                                                                

telling the  jurors that Moran was  convicted based on his guilty pleas added little or  



                                                                                                                  

nothing to the State's case; the jurors would inevitably have deduced this.  



                                                                                                                              

                    Thus, even if Moran might have been entitled to a bifurcation of his trial  



                                                                                                                                

under  other  circumstances,  holding a  unitary  trial was  not  error  under  the  facts  of  



                       

Moran's case.  



          Conclusion  



                                                                                                                                     

                    Moran's conviction for second-degree unlawful contact is REVERSED.  



                                                                                    

His conviction for third-degree assault is AFFIRMED.  



                                                             - 12 -                                                          2517
  

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