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Johnson v. State (2/24/2017) ap-2544

Johnson v. State (2/24/2017) ap-2544

                                                                                         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                                                                 



GARY  LYNN  JOHNSON,  

                                                                                                                                                                   

                                                                                                                   Court of Appeals No. A-11494  

                                                                                                                                                                                 

                                                             Appellant,                                          Trial Court No.  1CR-12-035 CR  



                                             v.  

                                                                                                                                  O  P  I  N  I  O  N  

                                                                                                                                                                   

STATE  OF  ALASKA,  



                                                             Appellee.                                             No. 2544 - February 24, 2017  

                                                                                                                                                                            



                              Appeal from the Superior Court,  First Judicial District, Craig,  

                                                                                                                                                                        

                              David V. George, Judge.  

                                                                                    



                              Appearances:  Andrew Steiner, Bend, Oregon, for the Appellant.  

                                                                                                                                                                        

                              Eric  A.  Ringsmuth,  Assistant  Attorney  General,  Office   of  

                                                                                                                                                                

                              Criminal Appeals, Anchorage, and Craig W. Richards, Attorney  

                                                                                                                                                    

                              General, Juneau, for the Appellee.  

                                                                                                         



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

                                                                                                                                                   

                              Superior Court Judge.*  

                                                                                  



                                            

                              Judge MANNHEIMER.  



                              In February 2012,                            Gary Lynn Johnson was convicted of second-degree                                         



stalking based on his contacts with a young boy.                                                                   At Johnson's sentencing, the judge                                   



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



Constitution and Administrative Rule 24(d).                                      


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

imposed a probation condition that prohibited Johnson from contacting the boy again.                                                                                                                           



In addition, an earlier protective order obtained by the boy's mother likewise prohibited                                                                                            



Johnson   from   contacting the                                         boy.     But   two   days   after   Johnson   was   sentenced,   he  



encountered the boy at a local store, and he initiated contact with him.                                                                                                



                                Based on this conduct, Johnson was convicted of three new crimes:                                                                                               first- 



                                                                                                                                                                                                            1  

degree   stalking,   first-degree   unlawful contact,                                                              and   violation   of   a   protective   order.    



Johnson appeals these convictions on three grounds.  

                                                                                                                              



                                First, Johnson asserts that the superior court should have moved his trialout  

                                                                                                                                                                                                      



of Craig because of negative pre-trial publicity and local prejudice against him.   Next,  

                                                                                                                                                                                               



Johnson asserts that the trial judge committed error by allowing the jury to hear evidence  

                                                                                                                                                                                        



of Johnson's prior conviction in the State of Washington for child molestation.  Finally,  

                                                                                                                                                                                           



Johnson contends that the evidence presented at his trial was  legally  insufficient to  

                                                                                                                                                                                                       



support his conviction for first-degree stalking.  

                                                                                                               



                                For the reasons explained in this opinion, we reject Johnson's arguments  

                                                                                                                                                                                    



regarding the venue of the trial and the admission of his prior conviction.                                                                                                        However,  

                                                                                                                                                                                  



Johnson is correct that the evidence presented at his trial was insufficient to support a  

                                                                                                                                                                                                          



conviction for first-degree stalking.  We therefore reverse that conviction.  

                                                                                                                                                    



                Underlying facts  

                                             



                                Gary Johnson met twelve-year-old M.H. in 2011.   Over the next several  

                                                                                                                                                                                            



weeks, Johnson spent time with M.H. - sometimes alone, and sometimes with another  

                                                                                                                                                                                           



boy.   Sometimes they would play with paintball guns, and other times they would just  

                                                                                                                                                                                                    



        1       AS 11.41.260(a), AS 11.56.750(a), and AS 11.56.740(a), respectively.                                                                                           



                                                                                                 - 2 -                                                                                             2544
  


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

                                                                                                                             

drive around.   At one point during this time,  Johnson told M.H. that he would think  



                                                                                                                                     

about M.H. when he masturbated.  (Johnson later claimed that this was meant as a joke.)  



                                                                                                                        

                     After a few weeks, Johnson started giving M.H. presents.  These presents  



                                                                                                                               

included a cell phone.   M.H. began exchanging text messages with Johnson using this  



                                                                                                                                

cellphone, but M.H. only had the phone for a day or two before it was turned over to the  



             

police.  



                                                                                                                            

                     The cell phone was turned over to the police after M.H. showed the phone  



                                                                                                                         

to his aunt and two cafeteria employees at his middle school.  After these adults learned  



                                                                                                                             

that Johnson had given a phone to M.H., school officials contacted M.H.'s mother. They  



                                                                                                                              

told her about  the  phone, and about the fact that M.H. had been spending time with  



                                                                                                                               

Johnson.  As a consequence, the schoolprincipalheld a meeting with M.H.'s parents and  



                                                                                                                               

Robert Ely, the chief of the Craig Police Department.  M.H. attended this meeting too,  



                                                                                                                  

and during this meeting, M.H.'s cell phone was turned over to Chief Ely.  



                                                                                                                               

                     Following   this   meeting,   M.H.'s   mother   searched   the   Internet   for  



                                                                                                                              

information  about  Johnson.                    According to  her  later  testimony,  she  discovered  that  



                                                                                                                                      

Johnson  had  been  convicted  in  Washington  for  molesting an  eleven-year-old  boy.  



                                                                                                                                   

M.H.'s mother told M.H. about her discovery, and she sent him out of town for about a  



                                                                

month to keep him away from Johnson.  



                                                                                                                               

                     In the meantime, Chief Ely began using M.H.'s  cell phone to send text  



                                                                                                                              

messages to Johnson.  In these texts, Ely pretended to be M.H.  The exchange of texts  



                                                                                                                             

lasted for about three weeks, from September 20 to October 9, 2011.  Accordingto Ely's  



                                                                                                                      

later testimony, he conducted this exchange of texts with Johnson in order to determine  



                                                 

what "Johnson's intent was".  



                                                                                                                                

                     (Many of these text messages between Ely and Johnson were read to the  



                                                                                                                               

jury  at  Johnson's trial,  and a print-out of the complete exchange was admitted into  



                   

evidence.)  



                                                               - 3 -                                                          2544
  


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

                                                                                                                                 

                    Although very few of these text messages have any specific relevance to  



                                                                                                                 

the issues raised in the present appeal, one of these text messages figured prominently  



                                                                                                                                  

in the prosecutor's theory of how Johnson committed the crime of stalking.  This was a  



                                                                                                                                 

text sent by Johnson on October 9, 2011 in which he tried to get M.H. to come over to  



                                                                                                                              

his house. In response to this text, Chief Ely had one of his officers conduct a traffic stop  



                                                                                               

of Johnson and tell him to have no further contact with M.H.  



                                                                                                                              

                    A few minutes after this traffic stop,  Johnson  initiated a series of text  



                                                                                                                              

messages to M.H.'s phone.  Based on the content of these text messages, it appears that  



                                                                                                                              

Johnson first suspected that M.H.'s mother had taken possession of the phone, and that  



                                                                                                                             

Johnson then suspected (correctly) that the police had the phone.                                        But by later that  



                                                                                                                             

evening, Johnson was sending text messages indicating he thought M.H. might still have  



                   

the phone.  



                                                                                                             

                    The  next  day,  Johnson  was  arrested  and  charged  with  second-degree  



                                                                                                                       

stalking under AS 11.41.270(a). While this charge was pending, M.H.'s mother obtained  



                                                                                                                       

a protective order that prohibited Johnson from contacting M.H. or any other member  



                                          

of their immediate family.  



                                                                                                                               

                    Johnson ultimately pleaded guilty to the second-degree stalkingcharge, and  



                                                                                                                      

he was sentenced on February 21, 2012.  Among the provisions of Johnson's sentence  



                                                                                                                       

was a condition of probation that prohibited him from contacting M.H. again.  



                                                                                                                             

                    Johnson was released from custody following his sentencing hearing.  Two  



                                                                                                                          

days later, on February 23rd, Johnson drove to the Black Bear store in Klawock. There,  



                                                                                                                  

he encountered M.H., who had come to the store to pick up a newspaper.  



                                                                                                                                     

                    When M.H. walked out of the store, he saw Johnson sitting in his truck.  



                                                                                                                              

Johnson stuck his head out of the window and yelled to M.H.  He told M.H. that he had  



                                                                                                                         

ruined his life, and he called M.H. a "prick".  Johnson then drove his vehicle in M.H.'s  



                                                                                                  

direction, but before reaching M.H. he turned and drove away.  



                                                              - 4 -                                                          2544
  


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

                                                                                                                               

                    M.H. testified that, followingthis encounter at the Black  Bear store, he was  



                                                                                                                                   

nervous and scared, and he wanted to leave the island (i.e., Prince of Wales Island).  



                                                                                                                               

                    Johnson was soon arrested and charged with first-degree stalking, as well  



                                                                                                                               

as violation of a protective order (the protective order obtained by M.H.'s mother) and  



                                                                                                                      

first-degree unlawfulcontact (i.e., contact with M.H. in violation of Johnson's conditions  



                        

of probation).  



                                                                                                                 

                    Following a jury trial, Johnson was convicted on all counts.  



                                                                                                           

           Whether the superior court abused its discretion when it denied Johnson's  

                                               

          motion for a change of venue  



                                                                                                                                 

                    The community of Craig, where Johnson's offenses occurred, is a town on  



                                                                                                                             

Prince of Wales Island.  At the time of this case, Craig had a population of about 1400  



              

people.  



                                                                                                                            

                    As we explained earlier in this opinion, Johnson's interactions with M.H.  



                                                                                                                    

came to light in September 2011, when M.H. told his aunt and the school employees  



                                                                                                                        

about the cell phone that Johnson had given him.  This quickly led to a school meeting  



                                                                                                                             

with M.H.'s parents and the chief of police.  The principal of the school also sent a letter  



                                                                                                                          

to all the other school parents,  warning them about Johnson.                                       Other people posted  



                                                                                                                        

warnings about Johnson on the Internet.   And a petition was circulated to bar Johnson  



                                              

from a particular trailer park.  



                                                                                                                       

                    The record in Johnson's case does not contain any details of the warnings  



                                                                                                                             

posted on the Internet, and the record shows that only two of the prospective jurors were  



                                                                                                                                      

aware of the petition that was circulated to bar Johnson from a particular neighborhood.  



                                                                                                               

The  only  generally  circulated  piece  of  pre-trial publicity  that  we  can  meaningfully  



                                                               - 5 -                                                          2544
  


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

analyze (based on the existing record) is the letter that the principal of the Craig Middle                                                                                                                                                                                      



 School sent to parents of students attending that school.                                                                                                            



                                              According to the description offered by Johnson's defense attorney, this                                                                                                                                                                      



letter had a picture of Johnson on it, and the words, "Stranger                                                                                                                                                               Danger".    The letter   



indicated that Johnson had a prior sex offense.                                                                                                                        Although this letter was sent only                                                                                       to  



middle school                                   parents, people distributed it more widely -                                                                                                           postingit on telephone poles,                                                



on bulletin boards, and on Facebook.                                                                                              



                                              Johnson's trial took place in September 2012, one year after this letter was                                                                                                                                                                 



sent.    It is unclear, from the record,                                                                                       how long the principal's warning letter remained                                                                                         



posted on community bulletin boards, or how often the letter was re-posted to Facebook.                                                                                                                                                                                                                     



                                              The superior court called 124 prospective jurors for Johnson's trial.                                                                                                                                                                          Of  



these,   only   71   (slightly   more   than   half)   were   questioned   during the                                                                                                                                                                  jury   selection  



process.    



                                              Based   on   the   general   and   individual   juror   questioning,   33   of   the   71  



prospective jurors were excused.                                                                                  This left 38 prospective jurors.                                                                             Each party exercised                      

                                                                                                                   2       The trial judge then seated a jury consisting of 12  

their 11 peremptory                                                      challenges.                                                                                                                                                                                                           



regular jurors and 2 alternates.  

                                                                                                           



                                              After  the  completion  of  jury  selection,                                                                                                       Johnson's  attorney  asked  the  

                                                                                                                                                                                                                                                                                             



superior  court  to  move  Johnson's  trial  out  of  Craig,   based  on  the  community  

                                                                                                                                                                                                                                                               



dissemination of information that we have described.  

                                                                                                                                                                                        



                                              The trial judge denied this motion.   With respect to the principal's letter,  

                                                                                                                                                                                                                                                                                    



the judge noted that, of the jurors who knew about this letter, many did not remember  

                                                                                                                                                                                                                                                                     



any of the details contained in the letter.   The judge also pointed out that evidence of  

                                                                                                                                                                                                                                                                                                



            2          See   Alaska Criminal Rule 24(d) (giving each party 10 peremptory                                                                                                                                                               challenges for   



regular jurors) and Criminal Rule 24(b)(1)(B) (giving each party an additional peremptory                                                                                                                                                                          

challenge if the trial judge intends to seat one or two alternate jurors).                                                                                                                                                           



                                                                                                                                             - 6 -                                                                                                                                         2544
  


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

 Johnson's prior conviction was going to be admitted at trial.                                                                            Thus, even if some of the                             



jurors knew about this prior conviction beforehand, this would not appreciably affect the                                                                                                       



 fairness of the trial.                         



                               On appeal, Johnson challenges the trial judge's decision to keep the trial in                                                                                       



 Craig.   Quoting what our supreme court said in                                                           Mallott v. State                    , Johnson argues that the                        



 questioning of prospective jurors during the selection process "is not an infallible Geiger                                                                                            

                                                                  3     Johnson contends that,  given the amount  of  pre-trial  

 counter of juror prejudice."                                                                                                                                                      



 discussion in the community, the jurors  who decided his case must have had hidden  

                                                                                                                                                                                       



prejudices against him - prejudices that made his trial unfair.  

                                                                                                                                                 



                               But as this Court explained in Cheely v. State, 861 P.2d 1168 (Alaska App.  

                                                                                                                                                                                            



 1993), the ultimate question is not strictly the amount of potentially prejudicial publicity  

                                                                                                                                                                                   



 disseminated in the community, but rather whether it is possible to select a jury whose  

                                                                                                                                                                                        



members have not been prejudiced  by  that publicity - or, as we phrased the test in  

                                                                                                                                                                                                  



 Cheely, whether there is "substantial reason to doubt the impartiality of the jurors who  

                                                                                                                                                                                             



remain[] after the selection process [is] complete."  Id. , 861 P.2d at 1175.  

                                                                                                                                                                            



                               Indeed, in Mallott itself, our supreme court upheld the trial judge's refusal  

                                                                                                                                                                                        



 to change the trial venue despite potentially prejudicial publicity.  The questioning of the  

                                                                                                                                                                                                



prospective jurors in Mallott  showed that more than half of them - and all but two of  

                                                                                                                                                                                                  



 the jurors ultimately selected to try the case - "had not  been  exposed to the worst  

                                                                                                                                                                                          



 aspects of that publicity and had heard only a basic description of the alleged crime."  

                                                                                                                                                                                                         



 See Cheely, 861 P.2d at 1175, describing the decision in Mallott, 608 P.2d at 748.  

                                                                                                                                                                                                



                               In  Johnson's  case,  only  36  of  the  71  prospective  jurors  who  were  

                                                                                                                                                                                          



 questioned in court had heard anything  about Johnson's case.   And according to the  

                                                                                                                                                                                               



results of the jury voir dire summarized in Appendix A to Johnson's brief, only 26 of the  

                                                                                                                                                                                                



        3       608 P.2d 737, 748 (Alaska 1980).                                            



                                                                                               - 7 -                                                                                         2544
  


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

                                                                                                                                

prospective jurors had any substantive  (i.e., potentially prejudicial) knowledge of the  



           

case.  



                                                                                                                                  

                     This means that 45 of the 71 prospective jurors who were questioned in  



                                                                                                                                      

court - more than 60% - had not heard anything arguably prejudicial about Johnson.  



                                                                                                                            

And even among the 26 prospective jurors who Johnson identifies as having heard  



                                                                                                                                 

prejudicial information about his case, at least 7 of these heard only bare allegations or  



                                                                                                                               

very limited facts.  Moreover, the most potentially prejudicial information was the fact  



                                                                                                                          

that Johnson had a prior conviction for child molestation - and the judge had already  



                                                                                                                           

ruled that evidence of this prior conviction could be admitted at Johnson's trial.  



                                                                                                                             

                     We therefore conclude that the trial judge did not abuse his discretion when  



                                                                                                                                      

he ruled that the pre-trial publicity in Johnson's case did not require a change of venue.  



                                                                                                                               

                     Finally, Johnson argues that, leaving aside the pre-trial publicity, the trial  



                                                                                                                  

judge committed error by failing to take  account  of "[the] many close connections  



                                                                                                                 

between the [prospective jurors] and the people involved with the case."  



                                                                                                                               

                     But  in  making  this  argument,  Johnson  relies  almost  entirely  on  the  



                                                                                                                             

relationships between several of  the prospective jurors and two members of the local  



                                                                                                                              

community:  a father and son who were only peripherally involved in this case, and who  



                                                                                                                            

did not testify at Johnson's trial.  Even though about one-third of the prospective jurors  



                                                                                                                             

knew  this  father  and  son,  Johnson  has  failed  to  demonstrate  how  this  would  have  



                                  

prejudiced the jury's deliberations.  



                                                                                                                             

                     Johnson also points out that about one-third of the prospective jurors knew  



                                                                                                                                  

one or more of the investigating officers in this case.   But again, Johnson has failed to  



                                                                                                                           

demonstrate why this would be a reason for the trial judge to distrust the jury's ability  



                                       

to decide the case fairly.  



                                                               - 8 -                                                          2544
  


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

                        Under our law, trial judges are given substantial discretion in granting or                                                      



                                                                                                                                      4  

denying   a   request   for   a   change   of   venue   based   on   pre-trial publicity.                                                            

                                                                                                                                           The  pre- 



                                                                                                                                                     

trial publicity in this case was potentially prejudicial.  But based on the results of the jury  



                                                                                                                                                   

voir dire, and based on the fact that evidence of Johnson's prior conviction was going  



                                                                                                                                                        

to be admitted at trial, the trial judge could reasonably conclude that Johnson could get  



                                                                                                                                                        

a fair trial in Craig.  We therefore uphold the trial judge's denial of Johnson's request for  



                                     

a change of venue.  



                                                                                                                                 

             Whether the trial judge erred by allowing the State to introduce evidence  

                                                                                     

            of Johnson's prior conviction for child molestation  



                                                                                                                                                        

                        At  Johnson's  trial,  the  State  was  permitted  to  introduce  evidence  of  



                                                                                                                                                    

Johnson's  1994  conviction  in  the  State  of  Washington  for  child  molestation.  This  



                                                                                                                                                      

evidence was introduced through the testimony of M.H.'s mother, who explained that  



                                                                                                                                                              

she had researched Johnson on the Internet and had discovered this prior conviction.  



                                                                                                                                                         

The trial judge ruled that this evidence was relevant to establish one of the elements of  



                                     

the stalking charge.  



                                                                                                                                                      

                        As we have explained, Johnson was charged with first-degree stalking.  The  



                                                                                                                                                          

basic crime of stalking (second-degree stalking) is defined as "knowingly engag[ing] in  



                                                                                                                                              

a course of conduct that recklessly places another person in fear of death or physical  



                                                                                                                                                              

injury, or in fear of the death or physical injury of a family member."  AS 11.41.270(a).  



                                                                                                                                                  

                        (Johnson was charged with first-degree stalking because M.H. was under  



                                          

the age of 16.  See AS 11.41.260(a)(3).)  



      4     See,   e.g.,  Harmon v. State                  , 193 P.3d 1184, 1200 (Alaska App. 2008);                                   Newcomb v.   



State, 800 P.2d 935, 937 (Alaska App. 1990).                                    



                                                                          - 9 -                                                                      2544
  


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

                                                                                                                                 

                     To prove this crime, the State had to establish that Johnson's course of  



                                                                                                                               

conduct placed M.H. in fear of death or physical injury.  The trial judge concluded that  



                                                                                                                         

Johnson's prior conviction for child molestation was relevant to the proof of this element  



                                                                                                                        

because it potentially formed part of the basis for M.H.'s  fear  of Johnson.   (M.H.'s  



                                                                      

mother had informed him of the conviction.)  



                                                                                                                                

                     The trial judge also gave the jurors a cautionary instruction concerning this  



                                                                                                                            

evidence.  The judge told the jurors that they were only allowed to consider "what effect  



                                                                                                                              

 [M.H.'s] knowledge or belief that there was a prior conviction had on any fear he may  



                                                                                                                                 

have had."  The judge reminded the jurors that it was up to them whether to accept or  



                                                                                                                              

reject the testimony - but if they did accept it, "[they could] only consider it for that  



                                                                                                                                

very limited purpose."  The judge  concluded the cautionary instruction by telling the  



                                                                                                                            

jurors, "It would be entirely improper for you to consider that evidence for any other  



                                                                                                                               

purpose, and certainly entirely improper to convict a defendant simply because there was  



                                 

a prior conviction."  



                                                                                                                             

                     We agree with the trial judge that M.H.'s  knowledge of Johnson's prior  



                                                                                                                            

conviction was relevant to establish why M.H. might have been placed in fear of death  



                                                   

or injury by Johnson's conduct.  



                                                                                                                         

                     In  his  brief  to  this  Court,  Johnson  essentially  concedes  that  M.H.'s  



                                                                                                                                 

knowledge of Johnson's prior conviction might reasonably have placed M.H. in fear of  



                                                                                                                             

unwanted sexual contact, but Johnson argues that his prior conviction could not have  



                                                

placed M.H. in fear of injury.  



                                                                                                                                

                     But Johnson takes too narrow a view of how M.H.'s knowledge of the  



                                                                                                                               

conviction might have affected him.  As the prosecutor pointed out when this matter was  



                                                                                                                              

litigated in the superior court,  M.H.'s knowledge of Johnson's prior conviction was  



                                                                                                                                  

important in explaining the fear that M.H. felt because of his encounter with Johnson at  



                                   

the Black Bear store.  



                                                              -  10 -                                                         2544
  


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

                        

                                                                                                            

                                Prosecutor : [M.H.] sees Mr. Johnson as a sex pervert  

                                                                                                                

                      who's  trying to  groom  him  to  have  sex  with  him.                                  And  

                                                                                                              

                      [Johnson] got  caught; he got convicted; he's in jail.   [And  

                                                                                                                

                      then] he gets released ... .  And I think [on] the first day [that  

                                                                                                                  

                      Johnson has] actually been out, he confronts [M.H.] in the  

                                          

                      parking lot.  



                                                                                                                                   

                      As we explained earlier, Johnson yelled at M.H. in the parking lot, telling  



                                                                                                                                       

him that he had "ruined [Johnson's] life", and then he drove his car toward M.H.  We  



                                                                                                                                      

agree with the trial judge that M.H.'s knowledge of Johnson's prior conviction was  



                                                                                                                                        

relevant to explain the nature and extent of M.H.'s fear arising from this encounter -  



                                                                                                                                       

and, specifically, why M.H. might reasonably fear that Johnson would try to cause him  



                           

physical injury.  



                                                                                                                                         

                      Johnson next argues that even if the challenged evidence was relevant, its  



                                                                                                                                       

relevance was outweighed by the risk  that it would engender unfair prejudice in the  



                                                                                                                              

minds of the jurors.  But when the trial judge made his ruling on this issue, he explicitly  



                                                                                                                                       

acknowledged the risk of prejudice.  Because of this risk, the judge decided to give the  



                                                                                                                                 

cautionary instruction that we described above.                                  The  judge gave the jurors a similar  



                                                                                                                                        

instruction after M.H.'s mother testified, and again at the close of the evidence (with the  



                                         

other jury instructions).  



                                                                                                                                        

                      When a judge decides to allow evidence to be admitted after weighing the  



                                                                                                                                       

probative value of the evidence against its potential for unfair prejudice, we review the  



                                                                                                                              

judge's decision under the "abuse of discretion" standard of review. Under this standard,  



                                                                                                                                      

we  will not  reverse  the  judge's  ruling unless  the  judge's  reasons  for  reaching that  



                                                                                5  

                                                                                   

decision "are clearly untenable or unreasonable".  



      5    Sylvia L.v. Office of Children's Services                     ,343 P.3d425,430-31 (Alaska2015);                        Bailey  



                                                                                                                       (continued...)  



                                                                  -  11 -                                                            2544
  


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

                                   Given the facts of this case, the trial judge's decision to admit evidence of                                                                                                               



Johnson's prior conviction, accompanied by repeated cautionary instructions, was not                                                                                                                                       



"clearly untenable or unreasonable".                                                             We therefore uphold that decision.                                    



                  Whether the evidence presented at Johnson's trial was legally sufficient to                                                                                                                 

                  support his conviction for stalking                                    



                                   To prove that Johnson was guilty of stalking M.H. as defined in AS 11.41.-                                                                                                    



270(a), the State was required to prove                                                                  



                  *	   that Johnson engaged in a "course of conduct" -                                                                                            i.e.,   that   he engaged in                                 



                          repeated acts of non-consensual contact with M.H. or a member of M.H.'s                                                                                                                



                                              6  

                           family;     



                  *	   that  Johnson's  repeated  acts  of  non-consensual  contact  caused  M.H.  to  

                                                                                                                                                                                                                              



                          reasonably fear death or physical injury; and  

                                                                                                                                                 



                  *	   that Johnson acted recklessly as to whether his course of conduct would have  

                                                                                                                                                                                                                        



                          this  result  -  i.e.,  that  Johnson  consciously  disregarded  a  substantial and  

                                                                                                                                                                                                                         



                          unjustifiable risk that his repeated acts of non-consensual contact would have  

                                                                                                                                                                                                                        

                          this result. 7  

                                                          



                                   Johnson's conduct in this case can be divided into three parts.  

                                                                                                                                                                                                         



                                   The  first  part  of  Johnson's  conduct  consisted  of  several  weeks  of  

                                                                                                                                                                                                                             



consensual interactions between Johnson and M.H. after they first met.  Although M.H.  

                                                                                                                                                                                                                      



         5	       (...continued)  



v. Lenord , 625 P.2d 849, 854 (Alaska 1981); State v. Alexander, 364 P.3d 458, 466 (Alaska  

                                                                                                                                                                                                                  

App. 2015).  

                                 



         6	  

                                                                                 

                  See AS 11.41.270(b)(1).  



         7	  

                                                                                                                                                                                                                    

                  See AS 11.41.270(a) and AS 11.81.900(a)(3) (the definition of "recklessly").  



                                                                                                           -  12 -	                                                                                                      2544
  


----------------------- Page 13-----------------------

                                                                                                                         

testified that Johnson occasionally said some inappropriate things during those weeks,  



                                                                                                                               

M.H. never asserted that his interactions with Johnson duringthis time were anything but  



                                                                                                                              

consensual.  Nor did M.H. assert that Johnson's behavior during those weeks caused him  



                                    

to fear injury or death.  



                                                                                                                              

                    Those weeks of consensual interactions ended when M.H. showed his new  



                                                                                                                                 

cell phone (the one Johnson gave him) to his aunt and to the two cafeteria employees at  



                                                                                                                              

his school.   As we explained earlier in this opinion, after M.H.  disclosed that he had  



                                                                                                                              

received a cellphone from Johnson, school officials contacted M.H.'s mother. They told  



                                                                                                                             

M.H.'s mother about the phone, and about the fact that M.H. had been spending time  



                                                                                                                              

with Johnson.  This led to a meeting between the school principal, M.H.'s parents, and  



                              

the chief of police.  



                                                                                                                             

                    At  this  meeting,  Chief  Ely  took  custody  of  M.H.'s  cell  phone.  And  



                                                                                                                           

following this  meeting,  M.H.'s  mother  searched  the  Internet  for  information  about  



                                                                                                                                

Johnson.   She discovered that he had been convicted in Washington for molesting an  



                                                                                               

eleven-year-old boy, and she told M.H. about this conviction.  



                                                                                                                              

                    When, at Johnson's trial, M.H. was asked how he felt when his mother told  



                                                                                                                           

him about Johnson's prior conviction for molesting a child, he answered, "It was scary,  



                                                                                                                         

I guess."  This answer implied that M.H.'s new knowledge of Johnson's criminal history  



                                                                                                                                     

caused him to retrospectively re-evaluate his weeks of consensual contacts with Johnson.  



                                                                                                                    

                    In his testimony, M.H. did not clarify why he described this new knowledge  



                                                                                                                              

as "scary".         But  there is nothing to indicate that, at this time, M.H. was scared that  



                                                                                                                                

Johnson might kill him or cause him physical injury.                               Of the inferences that might be  



                                                                                                                             

drawn from M.H.'s description, the one most favorable to the State is that M.H. was  



                                                                                                                        

scared because, in retrospect, he thought that Johnson might have intended to sexually  



                     

molest him.  



                                                             -  13 -                                                         2544
  


----------------------- Page 14-----------------------

                                                                                                                           

                    Viewing the events in this case up to this point, there was insufficient proof  



                                                                                                                       

to establish the crime of stalking.  This evidence did not establish that Johnson engaged  



                                                                                                                              

in any acts of non-consensual contact with M.H., nor did this evidence establish that  



                                                                                   

M.H. was afraid that Johnson might kill or injure him.  



                                                                                                                              

                    The second part of Johnson's conduct in this case was the series of text  



                                                                                                                                

messages that Johnson exchanged during the next three weeks with the Craig chief of  



                                                                                                                                

police - i.e., between the time of the meeting at the middle school and the  time  of  



                                                                                                                       

Johnson's arrest.  During this time, Chief Ely  repeatedly communicated with Johnson  



                                                                                                                              

via text messages,  using the cell phone that Johnson had given  M.H.                                          In these text  



                                                                                      

message conversations, Chief Ely pretended to be M.H.  



                                                                                                                                 

                    This exchange of text messages between Chief Ely and Johnson came to an  



                                                                                                                                 

end shortly after Johnson sent a text message in which he encouraged M.H. to come to  



                                                                                                                                 

his house.  Although Chief Ely did not "break character" and reveal his true identity in  



                                                                                                                              

response to Johnson's text, the chief did send an officer to find Johnson and tell him that  



                                                                 

M.H.'s mother wanted him to stop texting M.H.  



                                                                                                                       

                    A few  minutes  after  the  officer  communicated  this  message,  Johnson  



                                                                                                                            

initiated a new series of text messages to M.H.'s phone.  Based on the content of these  



                                                                                                                           

text messages, it appears  that  Johnson first suspected that M.H.'s mother had taken  



                                                                                                                               

possession of the phone.   Then Johnson suspected  (correctly) that the police had the  



                                                                                                                                

phone.       But by later that evening,  Johnson was sending text messages indicating he  



                                                                

thought M.H. might still have the phone.  



                                                                              

                    The next day, Johnson was arrested.  



                                                                                                                              

                    During the State's summation at Johnson's trial, the prosecutor argued that  



                                                                                                                             

this series of text messages between Johnson and Chief Ely proved that Johnson was  



                                                                                                                                 

"clearly engaging in non-consensual contact" with M.H.  The prosecutor's assertion is  



                                                           

problematic for a number of reasons.  



                                                             -  14 -                                                         2544
  


----------------------- Page 15-----------------------

                                                                                                                                     

                    First, M.H. testified that he was not aware of any of these text messages.  



                                                                                                                           

M.H. knew that Chief Ely had taken possession of his cell phone, and that the  chief  



                                                                                                                              

planned to use the cell phone to contact Johnson.   But M.H. also testified that he was  



                                                                                                                            

never informed whether text messages were ever exchanged between Johnson and Chief  



                                                                                                     

Ely, or what the content of those text messages might have been.  



                                                                                                                               

                    (M.H.'s mother tangentially corroborated her son's testimony when she  



                                                                                                                             

declared that there was "no communication" between Johnson and M.H. from the time  



                                                                                                                               

of the school meeting until several months later, when Johnson encountered M.H. at the  



                               

Black Bear store.)  



                                                                                                                               

                    When our stalking statute speaks of "non-consensual contacts", it is not  



                                                                                                                       

speaking of "contacts" that the victim never learns of.  Rather, it is speaking of contacts  



                                                                                                                       

that the victim is aware of, or becomes aware of, and that occur  against the victim's  



                                                                                                                              

wishes.  Here, the text messages between Johnson and the police chief were sent and  



                                                                                                                              

received without M.H.'s knowledge.   In addition, the State presented no evidence that  



                                                                                                                               

M.H.  (or anyone acting at M.H.'s direction) ever told Johnson to stop texting him.  



                                                                                                                     

                    Thus, the prosecutor had no evidentiary basis for asserting that Johnson's  



                                                                                                                               

text messages to the chief of police constituted a series of contacts with M.H., nor did the  



                                                                                                                           

prosecutor have an evidentiary basis for asserting that these text messages were "non- 



                                                                                                  

consensual" in the sense that they were against M.H.'s wishes.  



                                                                                                                             

                    This is true even for the last several text messages that Johnson sent after  



                                                                                                                        

the police officer stopped him (at Chief Ely's direction) and told Johnson that M.H.'s  



                                                      

mother wanted him to stop texting M.H.  



                                                                                                                             

                    Because of what the officer told Johnson during this traffic  stop, it may  



                                                                                                                             

have been obvious to Johnson that M.H.'s mother  and the police wanted him to stop  



                                                                                                                           

contacting M.H.   But  there was no evidence that the officer told Johnson that M.H.  



                                                    

wanted the text messages to stop.  



                                                             -  15 -                                                         2544
  


----------------------- Page 16-----------------------

                                                                                                                       

                    Moreover, to prove the actus reus of stalking - i.e., to prove that Johnson  



                                                                                                                              

engaged in repeated non-consensual contact with M.H. - the State had to prove that  



                                                                                                                            

Johnson's text messages to M.H. were  actually against M.H.'s wishes.   As we have  



                                                                                                                              

already explained, M.H. never told Johnson to stop contacting him, and M.H. was not  



                                                              

even aware of Johnson's text messages.  



                                                                                                                                 

                    For these reasons, we reject the argument that Johnson's text messages to  



                                                                                                                     

the chief of police constituted a series of non-consensual contacts with M.H.  



                                                                                                                           

                    The third part of Johnson's conduct in this case is the incident at the Black  



                                                                                                                               

Bear store.   Johnson had just been released from custody after being sentenced in his  



                                                                                                                              

earlier stalking case involving M.H.   Under Johnson's conditions of probation, he was  



                                                                                                                     

prohibited from contacting M.H.  In addition, Johnson had been served with a protective  



                                                                                                                        

order that likewise  prohibited him from contacting M.H.  or any member of M.H.'s  



                             

immediate family.  



                                                                                                                               

                    As we explained earlier, Johnson encountered M.H. in the store parkinglot;  



                                                                                                                                

Johnson was sitting in his truck when M.H. walked out of the store.  Johnson yelled to  



                                                                                                                         

M.H. that he had ruined his life, and he called M.H. a "prick".  Johnson drove his vehicle  



                                                                                                         

in M.H.'s direction, but then he turned the vehicle and drove away.  



                                                                                                                                     

                    At trial, M.H. testified that this encounter made him "nervous and scared".  



                                                                                                                             

And  in this context,  the jury could reasonably conclude that M.H.  was scared  that  



                                          

Johnson might injure him.  



                                                                                                                              

                    But of the three parts of Johnson's conduct in this case, only this last part  



                                                                                                                                

- Johnson's encounter with M.H. at the Black Bear store - could be characterized as  



                                                       

non-consensual contact with M.H.  



                                                                                                                                 

                    One act of non-consensual contact is not enough to establish the offense of  



                                                                                                                                     

stalking: the stalking statute requires proof of "repeated" acts of non-consensual contact.  



                                                             -  16 -                                                         2544
  


----------------------- Page 17-----------------------

                                                                                                                                  

We therefore conclude that the State's evidence in this case was not legally sufficient to  



                                                       

establish the actus reus of stalking.  



                                                                                                                      

                    We further note that even if we accepted theState's assertion that Johnson's  



                                                                                                            

text messages to the chief of police (pretending to be M.H.) constituted "non-consensual  



                                                                                                                               

contacts", the State's evidence failed to establish a link between those text messages and  



                                                                                           

M.H.'s fear that Johnson might cause him injury or death.  



                                                                                                                             

                    The stalking statute requires proof that the victim's fear of injury or death  



                                                                                                                                

resulted from the defendant's repeated non-consensual contacts.  Even assuming that the  



                                                                                                           

series of text messages between Johnson and Chief Ely qualified  as  "non-consensual  



                                                                                                                              

contacts",  M.H.  explicitly  testified  that  he  was  unaware  that  this  exchange  of  text  



                                                                                                                              

messages was taking place, or what the content of any of those text messages might have  



           

been.  



                                                                                                                            

                    Thus, even viewing the evidence in the light most favorable to the jury's  



                                                                                                                                

verdict, the State proved only that M.H.'s fear of injury or death was the result of the  



                                                                                                                    

series  of  consensual  contacts  that  occurred  during  the  first  weeks  of  Johnson's  



                                                                                                                               

acquaintance with M.H. - contacts that M.H. later re-evaluated after his mother told him  



                                                                                                                             

that Johnson had been convicted of child molestation - plus the single act of non- 



                                                                                                              

consensual contact between Johnson and M.H. at the Black Bear store.  



                                                                                                                     

                    For these reasons, we conclude that the evidence presented at Johnson's  



                                                                                                                          

trial was legally insufficient to establish the crime of stalking, and we therefore reverse  



                                               

Johnson's stalking conviction.  



                                                              -  17 -                                                         2544
  


----------------------- Page 18-----------------------

                                   Conclusion  



                                                                     We AFFIRM Johnson's convictions for first-degree unlawful contact and                                                                                                                                                                                                                                                                                                     



violation of a protective order, but we REVERSE his conviction for first-degree stalking.                                                                                                                                                                                                                                                                                                                               



Accordingly, we remand Johnson's case to the superior court for re-sentencing.                                                                                                                                                                                                                                                                                                                                                 



                                                                                                                                                                                                                   -  18 -                                                                                                                                                                                                                  2544
  

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