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Williams v. State (3/30/2018) ap-2594

Williams v. State (3/30/2018) ap-2594

                                                                             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                                                   



RANDOLPH  WILLIAMS,  

                                                                                                                 

                                                                                                    Court o                                   

                                                                                                                  f Appeals No. A-12183  

                                                     Appellant,                                                                                           

                                                                                                   Trial Court No.  1HA-12-071 CR  



                                       v.  

                                                                                                                 O  P  I  N  I  O  N  

                                                                                                                                              

STATE  OF  ALASKA,  



                                                     Appellee.                                        No. 2594 - March 30, 2018  

                                                                                                                                                    



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

                                                                                                                                   

                          Keith B. Levy, Judge.  

                                                       



                          Appearances:                       Susan          Orlansky,             Reeves           Amodio              LLC,  

                                                                                                                                    

                          Anchorage, under contract  with the Public Defender Agency,  

                                                                                                                                  

                          and  Quinlan  Steiner,  Public  Defender,  Anchorage,  for  the  

                                                                                                                                          

                          Appellant.              Donald  Soderstrom,  Assistant  Attorney  General,  

                                                                                                                                

                          Office of Criminal Appeals, Anchorage, and Jahna Lindemuth,  

                                                                                                                            

                          Attorney General, Juneau, for the Appellee.  

                                                                                                             



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

                                                                                                                                

                           Superior Court Judge.*  

                                                                       



                                       

                          Judge MANNHEIMER.  



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



Constitution and Administrative Rule 24(d).                            


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

                       Randolph Williams appeals his convictions on eight counts of possessing                                     



                                 1  

child pornography.                                                                                                                   

                                     The pornographic images were discovered on an office computer  



                                                                                                                                                      

at the Chilkoot Indian Association in Haines around mid-day on November 19, 2012.  



                                                                                                                                             

This computer was available for the use of Association members, and Williams had used  



                                                                                                                                                

the computer earlier that day, but he claimed that he only used the computer to check his  



                                                                                                                                               

e-mail, and that he did not possess the  pornographic images.   The jury rejected this  



                                                                                          

defense and convicted Williams of the eight counts.  



                                                                                     

                       In this appeal, Williams raises three claims.  



                                                                                                                                             

                       First, Williams argues that the indictment against  him should have been  



                                                                                                                                              

dismissed because the State failed to apprise the grand jury of evidence suggesting that  



                                                                                                                                            

Williams might have an alibi for mid-day on November 19th.                                                      We  reject this claim  



                                                                                                                                                 

because the purported "alibi" evidence merely suggested,  and did not come close to  



                                                                                                                                      

proving, that Williams was elsewhere at the relevant times.  It was the kind of evidence  



                                                                                                                            

that  could  potentially  be  useful to  a  defense  attorney,  but  it  did  not  independently  



                                                       

establish Williams's innocence.  



                                                                                                                                       

                       Williams's second appellate claim concerns the "last accessed" file property  



                                                   

of the pornographic images.  



                                                                                                                                               

                       The Windows operatingsystem has the ability to keep track of the date and  



                                                                                                                                                   

time at which a computer file was last "accessed", either by a computer user or by a  



                                                                                                                                             

computer program.  At trial, Williams's attorney pointed out that when the Haines chief  



                                                                                                                                        

of police opened the pornographic images on the Association's computer - to confirm  



                                                                                                                                                 

the presence of child pornography on the computer, and to preserve this evidence by  



                                                                                                                                                 

taking photographs of the images as they were displayed on the computer monitor - he  



                                                                                                                                      

inadvertently  altered  the  "accessed"  property  of  those  images.                                              Williams's  attorney  



      1     AS 11.61.127(a).              



                                                                       - 2 -                                                                 2594
  


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

further    asserted    that    if    the   pre-existing    "accessed"    date-and-time   stamps    of    the  



pornographic images had been preserved, those date-and-time stamps would have shown                                                                                                                        



that Williams could not have been the                                                               person who downloaded and then deleted the                                                                     



various pornographic images.                                                 



                                  Based on these assertions, Williams's attorney asked the trial judge to give                                                                                                   



a  Thorne  instruction to the jury regarding those "accessed" date-and-time stamps -                                                                                                                            i.e.,  



an instruction telling the jurors to presume that the earlier "accessed" date-and-time                                                                                                  

                                                                                                                                                                              2      The trial judge  

stamps would have been exculpatory                                                                if   they   had been preserved.                                                                            



declined to give a  Thorne instruction.   For the reasons  explained in this opinion, we  

                                                                                                                                                                                                                   



uphold that decision.  

                                                      



                                  Finally,  Williams  argues  that  even  though  he  has  two  prior  felony  

                                                                                                                                                                                                          



convictions, he should have been sentenced as a first felony offender for his present  

                                                                                                                                                                                                        



crimes, rather than as a third felony offender, because he was released from supervision  

                                                                                                                                                                                               



for his most recent prior felony more than ten years ago.  See AS 12.55.145(a).  As we  

                                                                                                                                                                                                                    



explain in this opinion, we agree with Williams, and we direct the superior court to re- 

                                                                                                                                                                                                                    



sentence him.  

                                     



                                  Normally,  we would address a defendant's attacks on their convictions  

                                                                                                                                                                                              



before we addressed the defendant's attack on their sentence.  But in Williams's case, our  

                                                                                                                                                                                                                   



resolution of his sentencing issue has substantial importance for all defendants who are  

                                                                                                                                                                                                                   



sentenced for a sexual felony under AS 12.55.125(i).  This is why we are publishing our  

                                                                                                                                                                                                                   



decision in this case - and it is why we address the sentencing issue first, even before  

                                                                                                                                                                                                           



we describe the underlying facts of Williams's case.  

                                                                                                                      



         2       See Thorne v. Dept. of Public Safety                                                     , 774 P.2d 1326, 1331-32 (Alaska 1989).                                                              



                                                                                                        - 3 -                                                                                                    2594
  


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

            The question of how many prior felonies Williams had for purposes of                                                              

            presumptive sentencing   



                        A    jury    found    Williams    guilty    of    eight    counts    of    possessing    child  



                                                                                         3  

pornography.    This offense is a class C felony,                                                                                              

                                                                                            but because it is a  sexual  felony,  



                                                                                                                                          

sentencing  for  this  offense  is  not  governed  by  AS  12.55.125(e)  (the  sentencing  



                                                                                                                                                

provisions that normally apply to class C felonies).  Rather, sentencing for this offense  



                                                                                                                          

is governed by the sexual felony provisions of AS 12.55.125(i)(4).  



                                                                                                                                                           

                        Under AS 12.55.125(i)(4), the presumptive sentencing range for a class C  



                                                                                                                                                      

sexual felony depends on two factors:  (1) how many prior felonies the defendant has,  



                                                                                                                                              4  

                                                                                                                                                  

and (2) whether those prior felonies are sexual felonies or non-sexual felonies.  



                        Williams had two prior felonies, but neither of them was a sexual felony.  

                                                                                                                                                                



He had a burglary conviction from 1992, and he had a forgery conviction from 1994.  

                                                                                                                                                                



Because these prior felonies were so old, a question arose at Williams's sentencing as to  

                                                                                                                                                          



whether he should be treated as a third felony offender or, instead, only a first felony  

                                                                                                                                                  



offender.  

                   



                        AS 12.55.145(a) is the statute that governs how prior offenses are counted  

                                                                                                                                                



for  purposes  of  presumptive  sentencing.                                      One  provision  of  this  statute,  subsection  

                                                                                                                                          



(a)(1)(A), declares that:  

                                    



            ...	   a prior conviction for an unclassified or a class A felony is always counted as  

                                                                                                                                                          



                  a "prior felony conviction" for presumptive sentencing purposes, but  

                                                                                                                                                



            ...	   prior  convictions  for  class  B  or  class  C  felonies  are  not  counted  if  the  

                                                                                                                                                       



                  defendant was unconditionally released from supervision for their most recent  

                                                                                                                                                   



                  felony ten years or more before the defendant committed their present offense.  

                                                                                                                                                



      3	    AS 11.61.127(g).                



      4	  

                                                              

            AS 12.55.125(i)(4)(A)-(E).  



                                                                           - 4 -	                                                                     2594
  


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

                                                                                                                            

(In general, see Gilley v. State, 955 P.2d 927  (Alaska App. 1998), where this Court  



                                      

interpreted this statute.)  



                                                                                                                               

                    As we have explained, Williams had a burglary conviction from 1992 and  



                                                                                                                        

a forgery conviction from 1994.  These are class B and class C felonies - and although  



                                                                                                                                

the record  does not contain Williams's exact dates of discharge from supervision for  



                                                                                                                   

these felonies, the State does not dispute that Williams was discharged from supervision  



                                                                                                                          

at least ten years before the date of his current offense (November 19, 2012).  



                                                                                                                          

                    Based on this, Williams's attorney argued that Williams should be treated  



                                                                                                                             

as a first felony offender for purposes of his current sentencing.  But the superior court  



                                                                                                      

concluded that, despite the ten-year "expiration" provision of AS 12.55.145(a)(1)(A),  



                                                                                                                               

Williams should be treated as a third felony offender.   The superior court reached this  



                                                                                                                                

conclusion  because  another  subsection  of  AS  12.55.145(a)  -  subsection  (a)(4)  -  



                                                                                                                           

contains a separate set of rules  for  defendants who are being sentenced for sexual  



                                                  

felonies under AS 12.55.125(i).  



                                                                                                                               

                     Subsection (a)(4) does not contain an "expiration" provision like the one  



                                                                                                                                   

contained in subsection (a)(1)(A).  Because of this, the superior court concluded that a  



                                                                                                                                  

defendant's old felonies never "expire" - i.e., they always count - if the defendant is  



                                                        

being sentenced for a sexual felony.  



                                                                                                                        

                    For the reasons we are about to explain,  we disagree with the superior  



                                                                 

court's interpretation of AS 12.55.145(a).  



                                                                                                                            

                    Originally, AS 12.55.145(a) had only one set of rules for counting "prior  



                                                                                                                                     

convictions" - the set of rules that is now codified in subsection (a)(1) of the statute.  



                                                                                                                               

                    The first of these rules is subsection (a)(1)(A) - the "expiration" rule that  



                                                                                                                          

we have been discussing.  The next rule is subsection (a)(1)(B) - the rule that defines  



                                                                                                                               

when an out-of-state conviction counts as a "prior felony conviction".  And the third rule  



                                                               - 5 -                                                          2594
  


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

is subsection (a)(1)(C) - the rule that defines when two or more convictions arising                                                                                         



from a continuous criminal episode should only be counted as one prior conviction.                                                                                                   



                             In 1996, the Alaska Legislature enacted new sentencing rules for habitual                                                                     



                                                                                     5  

felony offenders; see AS 12.55.125(l).                                                                                                                                         

                                                                                         These new rules for habitual offenders hinge  



                                                                                                                                                                                     

on a subset of the defendant's prior felony convictions - specifically, the number of the  



                                                                                                                                                                     

defendant's prior convictions for "most serious felonies".   Accordingly, the legislature  



                                                                                                                                                                                 

added a new subsection to AS 12.55.145(a) - subsection (a)(2) - that defines the rules  



                                                                                                                                                                              

for ascertaining the number of a defendant's "most serious felonies".  See  SLA 1996,  



                        

ch. 7,  8.  



                                                                                                                                                                                    

                             In  1998,  the  Alaska  Legislature  enacted  new  minimum  sentences  for  

                                                                                                           6   These minimum sentences hinge on  

                                                                                                                                                                                      

misdemeanor assault involving domestic violence.  



a defendant's number of previous convictions for "a crime against a person" or "a crime  

                                                                                                                                                                               



involving domestic violence".  Because the legislature wanted to use a shorter, five-year  

                                                                                                                                                                        



"expiration date" for these prior offenses,  the legislature added a new subsection to  

                                                                                                                                                                                      



AS 12.55.145(a) - subsection (a)(3) - to codify the five-year expiration rule for this  

                                                                                                                                                                                    



category of crimes.  See SLA 1998, ch. 86,  10.  

                                                                                                            



                             And in 2003, the Alaska Legislature enacted new presumptive sentencing  

                                                                                                                                                                     

ranges  for  sexual  felonies. 7                                   These  new  presumptive  ranges  hinge  not  only  on  a  

                                                                                                                                                                                        



defendant's number of prior "felonies" but also on a defendant's number of prior "sexual  

                                                                                                                                                                            



felonies".  Because of this, the legislature added a new subsection to AS 12.55.145(a) -  

                                                                                                                                                                                      



subsection (a)(4) - that contains  rules for ascertaining the number of a defendant's  

                                                                                                                                                                



"sexual felonies".                        See SLA 2003, ch. 90,  6.  

                                                                                                        



       5      See  SLA   1996,  ch.  7,    7.   



       6      See  SLA   1998,  ch.  86,    9.   



       7  

                                                                       

              See SLA 2003, ch. 90,  5.  



                                                                                         - 6 -                                                                                    2594
  


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

                                                                                                                                  

                     At  the  same time,  the legislature amended the introductory wording of  



                                                                                                                              

subsection (a)(1) (the subsection containing the original set of rules) to say that the rules  



                                                                                                                            

set  forth  in  subsection  (a)(1)  apply  when  a  defendant  is  being  sentenced  under  



                                                                                                                      

"AS 12.55.125(c), (d), or (e)" - in other words, when the defendant is being sentenced  



                                                                                                           

for any class A, class B, or class C felony other than a sexual felony.  



                                                                                                                                

                     Thus,  AS  12.55.145(a)  seemingly  has  two  different  sets  of  rules  for  



                                                                                                                                  

determining the  number  of  a  defendant's  prior  convictions:                                  the  rules  contained  in  



                                                                                                                    

subsection  (a)(1)  that  apply  when  a  defendant  is  being sentenced  for  a  non-sexual  



                                                                                                                             

class A, class B, or class C felony, and the rules contained in subsection (a)(4) that apply  



                                                                                         

when a defendant is being sentenced for a sexual felony.  



                                                                                                                                

                     The "sexual felony" subsection, (a)(4), does not contain a provision that  



                                                                                                         

mirrors the ten-year "expiration" provision of subsection (a)(1)(A).  



                                                                                                                                 

                     Based on this, the superior court in Williams's case concluded - and the  



                                                                                                                             

State now argues - that there is no expiration provision for offenders who are being  



                                                                                                                                

sentenced  for  a  sexual felony.                    In  other  words,  the  State  contends  that  all of  the  



                                                                                                                               

defendant's prior class B and class C felony convictions count, regardless of how long  



                                                                                                          

ago the defendant was released from supervision for those felonies.  



                                                                                                                                 

                     But the "expiration" rule is not the only provision that is missing from the  



                                                                                                                      

"sexual felony" provisions set forth in subsection (a)(4).  Here is the text of subsection  



            

(a)(4):  



                      

                                                                                                       

                               [When  a defendant is being sentenced for a sexual  

                                                                      

                     felony under] AS 12.55.125(i),  



                                                                                                             

                               (A) a conviction in this  or  another jurisdiction of an  

                                                                                                               

                     offense having elements similar to those of a sexual felony is  

                                                                    

                     a prior conviction for a sexual felony;  



                                                               - 7 -                                                          2594
  


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

                                                                                                      

                               (B) a felony conviction in another jurisdiction making  

                                                                                                          

                    it a crime to commit any lewd and lascivious act upon a child  

                                                                                                  

                    under  the  age  of  16  years,  with  the  intent  of  arousing,  

                                                                                                  

                    appealing to, or gratifying the sexual desires of the defendant  

                                                                                                       

                    or the victim is a prior conviction for a sexual felony; [and]  



                                                                                                       

                               (C) two or more convictions arising out of a single,  

                                                                                                            

                    continuous  criminal  episode  during  which  there  was  no  

                                                                                                            

                     substantial change in the nature of the criminal objective are  

                                                                                                          

                    considered  a  single  conviction  unless  the  defendant  was  

                                                                                                    

                     sentenced to consecutive sentences for the crimes; offenses  

                                                                                                             

                    committed while attempting to escape or avoid detection or  

                                                                                                            

                    apprehension after the commission of another offense are not  

                                                                             

                    part of the same criminal episode or objective.  



                                                                                                                             

                    These provisions define what counts as a prior "sexual felony".  But these  



                                                                                                                                  

provisions do not define what counts as a "prior felony" in the broader sense - i.e., in  



                                                                                               

the sense of "all prior felonies, including non-sexual felonies".  



                                                                                                                               

                    This  is  a  significant  omission  -  because,  as  we  have  explained,  the  



                                                                                                                                  

presumptive  sentencing ranges  for  sexual felonies  hinge  on  both  the  number  of  a  



                                                                                                                   

defendant's prior sexual felonies  and  the number of a defendant's prior  non-sexual  



                                                                                                                                

felonies.  To ascertain the applicable presumptive sentencing range in a given case, the  



                                                                                  

sentencing court must know both of these numbers.  



                                                                                                                                

                     Subsection (a)(4) does not contain an "expiration" provision for class B and  



                                                                                                                                  

class C felonies.  But neither does it contain a provision that allows a court to count a  



                                                                                                                               

defendant's out-of-state felony convictions (unless those convictions are for "lewd and  



                                                                                          

lascivious act[s] upon a child under the age of 16 years").  



                                                                                                                                

                    Thus,  if we were  to  adopt the position advocated by the State - the  



                                                                                                                             

position that subsections (a)(1) and (a)(4)  are mutually exclusive,  and that the rules  



                                                               - 8 -                                                          2594
  


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

                                                                                                                                    

contained in subsection (a)(1) do not apply when a defendant is being sentenced for a  



                                                                                                                           

sexual felony - then a defendant's out-of-state felonies would not be counted.  



                                                                                                                                   

                     We conclude that the more reasonable interpretation of AS 12.55.145(a) is  



                                                                                                                          

to read subsections (a)(1) and (a)(4) together, as complementary provisions that provide  



                                                                                                                               

the rules for ascertaining the total number of a defendant's prior felony convictions and,  



                                                                                                                                 

from among this total, the number of a defendant's prior sexual felony convictions.  



                                                                                                                           

                     This interpretation is supported by the history of the statute itself.  



                                                                                                                                   

                    As  we  explained,  when  AS  12.55.145(a)  was  originally  enacted,   a  



                                                                                                                                

sentencing court had to count the number of a defendant's prior felony convictions, and  



                                                                                                                              

the  statute  contained  the  rules  for  doing that.                       When  the  legislature  created  a  new  



                                                                                                                                

category, "most serious felony", for the sentencing of habitual offenders, the statute was  



                                                                                                                             

amended by addinga new subsection that contained the rules a court was to follow when  



                                                                                                                                 

calculating the number of a defendant's prior "most serious felonies".   And when the  



                                                                                                                                

legislature  created  yet  another  new  category,  "sexual  felony",  to  be  used  in  the  



                                                                                                                               

sentencing of sexual felony offenders, the statute was again amended by adding a new  



                                                                                                                          

subsection that contained the rules a court was to follow when calculating the number  



                                                                

of a defendant's prior "sexual felonies".  



                                                                                                                                

                     But  these  new  categories  of  felony  were  not  intended  to  supplant  the  



                                                                                                                             

original definition  of  "prior  felony".                   Indeed,  as  we  have  explained,  when  a  court  



                                                                                                                                    

sentences a defendant for a sexual felony, the court must know both the number of a  



                                                                                                                                

defendant's prior felonies and the number of a defendant's prior sexual felonies.   We  



                                                                                                                              

therefore conclude that the rules contained in subsection (a)(4)  of  the  statute were  



                                                                                                                                   

intended to supplement, rather than replace, the rules contained in subsection (a)(1).  



                                                                                                                               

                     In other words, subsection (a)(1) of the statute provides the baseline rules  



                                                                                                                               

for  counting the  number  of  a  defendant's  qualifying prior  felony  convictions,  and  



                                                               - 9 -                                                          2594
  


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

                                                                                                                        

subsection (a)(4) provides the rules for  counting the special sub-category of "sexual  



                 

felonies".  



                                                                                                                       

                    Under subsection (a)(1), Williams's prior felony convictions for burglary  



                                                                                                                           

and  forgery  should  not  have  been  counted,  because  Williams  was  released  from  



                                                                                                                               

supervision for his most recent felony ten years or more prior to his current offense.  We  



                                                                                                                          

therefore hold that the superior court should have sentenced Williams as a first felony  



                

offender.  



                                                                                                                             

                    We acknowledge that our interpretation of AS 12.55.145(a) is at odds with  



                                                                                                                       

what we previously said in two unpublished decisions: Kuku v. State, 2013 WL 5532714  



                                                                                                                            

at *8 (Alaska App. 2013), and Hunter v. State, 2007 WL 2405208 at *17 (Alaska App.  



                                                                                                                               

2007).         Because  those  two  prior  decisions  were  unpublished,  they  need  not  be  



                                                                                                                               

"overruled" in a formal sense.  However, for the reasons explained in this opinion, we  



                                                                                 

disavow our earlier statements in Kuku and Hunter.  



                                                                                                        

                    We now turn our attention to Williams's attacks on his convictions.  



                                                           

           Underlying facts of Williams's case  



                                                                                                                    

                    The  Chilkoot Indian Association has an office in Haines.   In November  



                                                                                                                                

2012, the reception area of this office had a computer that was available for the use of  



                                    

Association members.  



                                                                                                                                

                    The computer was not used frequently, and no one used the computer on  



                                                                                                                      

a  regular basis.   But in the weeks preceding November 19, 2012, Randolph Williams  



                                                   

used this computer many times.  



                                                                                                                               

                    Sometime in the late morning of November 19, 2012, Williams came to the  



                                                                                                                          

Association to use the  computer again.   The computer was located in an area where  



                                                                                                                        

Association employees frequently had to walk past it in order to access the office's  



                                                             -  10 -                                                         2594
  


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

                                                                                                                               

copier/fax/scanner.  Two Association employees saw Williams using the computer that  



                                                                               

day, and Williams's actions made them suspicious.  



                                                                                                                               

                     One  employee,  Mary  Brouillette,  testified  that  Williams  came  into  the  



                                                                                                                               

Association's office during mid-morning on the 19th, sometime between 10:00 a.m. and  



                                                                                                                          

 11:30 a.m.   When Brouillette walked past Williams at the computer, Williams looked  



                                                                                                                                

surprised.  He minimized the image on the computer screen, and he leaned in toward the  



                                                                                                    

computer to shield the computer screen from Brouillette's view.  



                                                                                                                                 

                    Despite Williams's efforts to hide the screen, Brouillette saw an image of  



                                                                                                                              

a naked person on the screen in a "splayed out" position, and this person did not look  



                                                                                                                        

like an adult.  Brouillette went to tell other office employees that Williams was "looking  



                                                                   

at porno" on the reception-area computer.  



                                                                                                                                 

                    David Berry, the tribal administrator, also saw Williams at the computer on  



                                                                                                                                

November 19th,  although Berry's contact  with Williams was apparently later in the  



                                                                                                                               

morning.  According to Berry, he saw Williams enter the office "close to noon" or a little  



           

after.  



                                                                                                                               

                    Berry observed Williams engagingin the same behavior that Brouillette had  



                                                                                                                        

seen:  when Berry walked past Williams at the computer, Williams moved his shoulder  



                                                                                                                         

to block Berry's view of the computer screen. Berry observed "a bunch of small photos"  



                                                                                                                                

on the screen,  but he could not tell what those photos depicted.                                         Williams left the  



                                                                     

Association's office about ten minutes later.  



                                                                                                                           

                    After Williams left, Berry sat down at the computer.  Williams had turned  



                                                                                                                                

off  the monitor, so Berry turned it back on.   When Berry turned on the monitor, he  



                                                                                                                           

noticed that the Windows "recycle bin" was open, and there were over a dozen .JPEG  



                                                                                                                                      

files in the recycle bin.  (JPEG is a format used for storing compressed digital images.)  



                                                                                                                              

                    Berry could not see what these .JPEG files contained, and he could not open  



                                                                                                                             

them while they were in the recycle bin.  But when Berry restored one of the files from  



                                                              -  11 -                                                         2594
  


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

                                                                                                                                 

the  recycle  bin  to  the  Windows  desktop,  he  was  able  to  open  the  file.                                   It  was  a  



                                                                                                                              

photograph of a young girl with her genitals exposed.  Having seen the contents of this  



                                                                                      

one file, Berry stopped and did not open the other files.  



                                                                                                                        

                    A  few   minutes   later,   the   Association's   program   manager,   Harriet  



                                                                                                                               

Brouillette, arrived at the office.  Berry and Mary Brouillette immediately informed her  



                                 

what had happened.  



                                                                                                                              

                    Harriet Brouillette did not want to accuse  Williams of anything until she  



                                                                                                                              

had double-checked the computer,  so she and Berry  sat down at the computer and  



                                                                                                                 

checked the computer's browser history.   This history contained a list of pornography  



                                                                                                                          

websites.   Some of the browser history entries were date-and-time-stamped for earlier  



                                                                                               

that day, while other entries were stamped for previous days.  



                                                                                                                                  

                    When Berry clicked on one of the browser history links, it brought up a  



                                                                                                                         

picture of a young girl without any underwear.  Harriet Brouillette then called the Haines  



             

police.  



                                                                                                                               

                    Williams returned to the Association office before the police arrived.  He  



                                                                                                                              

asked to use the computer again, but he did not say why.  When Harriet Brouillette told  



                                                                                                                             

Williams that the computer was no longer available, Williams looked nervous and kept  



                                                                                                                    

glancing at the computer.  He eventually left without saying anything more.  



                                                                                                                        

                    Police  Chief  Gary  Lowe  arrived  at  the  Association's  office  around  



                                                                                                                              

1:00 p.m.   He spoke with Harriet Brouillette, Mary Brouillette, and David Berry, and  



                                                   

then he inspected the computer.  



                                                                                                                           

                    There was a list of file names in the computer's recycle bin.  When Lowe  



                                                                                                                               

changed the folder view from a listing of file names to a thumbnail view of each file, the  



                                                                                      

resulting thumbnails appeared to be child pornography.  



                                                                                                                          

                    As Berry had discovered earlier, Lowe could not view the full-size images  



                                                                                                                              

of these photos while the files were in the recycle bin.                                 So Lowe photographed the  



                                                             -  12 -                                                         2594
  


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

                                                                                                                               

computer screen showing the recycle bin with the thumbnails, and then he restored the  



                                                                                                                         

files from the recycle bin to their original locations on the computer, and then he opened  



                                                                                                                               

the images one by one.  Lowe documented each image by taking two photographs of the  



                                                                                                                              

computer screen:  one of the image itself, and one  showing the file properties of that  



                                                                                                                              

image.  Those properties included a date-and-time stamp showing when the image had  



                                                                                                                             

been created and another date-and-time stamp showing when the image had been sent  



                              

to the recycle bin.  



                                                                                                                               

                    In total,  Chief Lowe found eleven  images of child pornography on the  



                                                                                                                              

Association's computer:  nine images in the recycle bin, plus the additional one that had  



                                                                                                                               

been restored to the desktop earlier by Berry, plus one that Lowe found in the files of the  



                                                                                                                    

computer's internet browser history.  (Other files in the browser history had apparently  



                                                                   

been deleted; Lowe could not open them.)  



                                                                                                                    

                    Lowe then seized the computer and sent it to the crime lab in Anchorage  



                                  

for forensic analysis.  



                                                                                                                           

                    The  grand  jury  indicted  Williams  for  possessing  all  eleven  of  these  



                                                                                                                                

pornographic images.               However,  Williams was ultimately convicted of only eight of  



                       

these counts.  



                                                                                                                         

                    Specifically, the trial jury acquitted Williams of possessing three images  



                                                                                                                               

that were created and deleted from the computer on Tuesday afternoon, November 13,  



                                                                                                                          

2012.   The jury convicted Williams of possessing the remaining eight images.   Those  



                                                                                                                               

images  were  both  created  and  deleted  from  the  computer  over  the  course   of  



                                                                                                                  

approximately 20 minutes around noon on Monday, November 19, 2012.  



                                                             -  13 -                                                         2594
  


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

                Williams's motion to dismiss the indictment                                    



                               Following his indictment,                                     Williams's attorney filed a                                       motion asking the                   



superior court to dismiss the indictment on the ground that the State had failed to apprise                                                                                               

                                                                                             8    The purported exculpatory evidence was the  

the grand jury of exculpatory evidence.                                                                                                                                                             



testimony of David Kyle, the pastor of the  Salvation  Army in Haines.   Here is how  

                                                                                                                                                                                                



Pastor Kyle became involved in Williams's case.  

                                                                                                                    



                               After Chief Lowe determined that the Association's computer contained  

                                                                                                                                                                                    



child pornography, he decided to take Williams into custody.  Around 2:00 p.m., Lowe  

                                                                                                                                                                                             



located Williams at his mother's house.  Lowe arrested Williams and brought him to the  

                                                                                                                                                                                                   



police  station  for  questioning.                                          Williams  told  Chief  Lowe  that  he  had  been  at  the  

                                                                                                                                                                                                   



Salvation Army facility earlier that day, but he acknowledged that he had gone to the  

                                                                                                                                                                                                   



Chilkoot Indian Association office to use the Association's computer to check his e-mail.  

                                                                                                                                                                                                             



                               Following  his   arrest,   Williams   telephoned   Pastor   Kyle.                                                                                       Williams  

                                                                                                                                                                                   



apparently told Kyle that he had been accused of burglary - i.e., of breaking into the  

                                                                                                                                                                                                   



Association's  office  -  and  he  asked  Kyle  to  call  the  police  and  tell them  that  he  

                                                                                                                                                                                                    



(Williams) had been at the Salvation Army facility that morning.  

                                                                                                                                                       



                                 Prior to the grand jury hearing in Williams's case, Kyle contacted Chief  

                                                                                                                                                                                              



Lowe by phone and told him that Williams had been at the Salvation Army for over an  

                                                                                                                                                                                                     



hour in the late morning of  November 19th, around the time when the pornographic  

                                                                                                                                                                            



images were placed on the Association's computer and then moved to the computer's  

                                                                                                                                                                                



recycle bin.  

                              



        8       See Frink v. State                       , 597 P.2d 154, 164-66 (Alaska 1979) (holding that, under Alaska                                                                   



law, a prosecutor who presents a case to the grand jury has a duty to apprise the grand jurors                                                                                                

of exculpatory evidence).                                 



                                                                                               -  14 -                                                                                           2594
  


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

                                                                                                                   

                    Williams's  attorney  asked  the  superior  court  to  dismiss  the  indictment  



                                                                                                                                 

against Williams because the State did not inform the grand jury of Kyle's phone call to  



                                                                                                                   

Chief Lowe.  According to the defense attorney, Kyle's statements to Lowe constituted  



                                                                                                                            

evidence of alibi, and this evidence should have been presented to the grand jury.  



                                                                                                                              

                    The superior court held an evidentiary hearing on this motion.                                       At this  



                                                                                                                                 

hearing, Pastor Kyle testified that he called the Haines Police Department and spoke to  



                                                                                                                              

Chief Lowe about Williams's case.  Kyle asserted that, between himself and his wife and  



                                                                                                                               

his son-in-law, the three of them could account for Williams's continuous presence at the  



                                                                                                                           

Salvation Army  building on Monday, November 19th between 11:30 a.m. and 12:30  



          

p.m.  



                                                                                                                          

                    (This time frame was significant because eight of the pornographic images  



                                                                                                                              

found on the Association's computer were created (i.e., placed on the computer) and then  



                                                                                                                             

deleted (i.e., moved to the recycle bin) during the 20-minute period between 11:45 a.m.  



                                                          

and 12:04 p.m. on November 19th.)  



                                                                                                                                 

                    However, Kyle's assertion that Williams had been continuously present at  



                                                                                                                        

the Salvation Army was called into question by other evidence.                                        First,  Kyle himself  



                                                                                                                      

admitted that he and his wife and his son-in-law were all extremely busy that morning,  



                                                                                                                                     

preparing and distributing food to Salvation Army clients for the Thanksgiving holiday.  



                                                                                                                    

Kyle also conceded that there was no single person who could account for Williams's  



                                                                                                                                     

presence all morning; that is, no one was observing Williams constantly during that time.  



                                                                                                                       

                    Second, at the time of the evidentiary hearing, Kyle mistakenly believed  



                                                                                                                       

that the Chilkoot Indian Association office was located outside  of Haines on Sawmill  



                                                                                                                             

Road, between a half-mile and three-quarters of a mile away - so that it would take  



                                                                                                                                 

someone about twenty minutes to walk there from the Salvation Army building.  But, in  



                                                                                                                               

fact,  the  Association's office was located in town, only a few blocks away from the  



                            

Salvation Army.  



                                                             -  15 -                                                         2594
  


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

                                                                                                                              

                     After conducting this evidentiary hearing, Superior Court Judge pro  tem  



                                                                                                                            

Keith B. Levy denied the defense motion to dismiss the indictment.  Judge Levy found  



                                                                                                                                

Kyle's testimony to be credible  (except for Kyle's mistake about the location of the  



                                                                                                                          

Association's office).              However,  the testimony of the Association employees clearly  



                                                                                                                                

placed Williams  at the Association's office in the late morning and around noon on  



                                                                                                                          

November 19th.   According to the employees' grand jury testimony, Williams viewed  



                                                                                                                                

at least one pornographic image on the Association's computer, and he actively hid the  



                                                                                                                        

screen from two Association employees.  In addition, as we have already noted, Williams  



                                                                                                                                 

himself admitted to Chief Lowe that he had used the Association's computer to check his  



                                 

e-mail that morning.  



                                                                                                                               

                     Based on this record,  Judge Levy concluded that the  grand jurors still  



                                                                                                                      

would have indicted Williams even if they had heard testimony from Kyle.  



                                                                                                                      

                     Williams now renews his argument that the indictment should be dismissed  



                                                                                                            

because the State failed to present Kyle's testimony to the grand jury.  



                                                                                                                            

                     Although the State has a duty to present exculpatory evidence to the grand  



                                                                                                                      

jury, that duty only extends to evidence that is "substantially favorable" to the defendant  



                                                                                                                           

-  meaning evidence "that tends,  in and of itself,  to negate the defendant's guilt."  



                                                                                                                                

 Cathey v. State, 60 P.3d 192, 195 (Alaska App. 2002).  A prosecutor is not required "to  



                                                                                                                                

develop evidence for the defendant [or] present  every  lead possibly favorable to the  



                                                                                                  

defendant."  Frink v. State, 597 P.2d 154, 166 (Alaska 1979).  



                                                                                                                           

                     Given the evidence in Williams's case, this is not a situation where Kyle's  



                                                                                                                                 

testimony, in and of itself, would have cast so much doubt on the State's allegations as  



                                                                                                                       

to "negate [Williams's] guilt".  Kyle's testimony at the hearing was obviously favorable  



                                                                                                                         

to Williams's defense - but, as shown by Kyle's later trial testimony, Kyle's account  



                                                           

left important questions unanswered.  



                                                              -  16 -                                                         2594
  


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

                                     For example, when Kyle was cross-examined at trial, it became clear that                                                                                                                      



Kyle himself had                               not  seen Williams at the Salvation Army building starting at 11:30 a.m.                                                                                                                         



Kyle only saw Williams from "about" 12:00, or "12:00-ish", until 12:30 p.m., when Kyle                                                                                                                                          



observed Williams charging his phone outside Kyle's office.                                                                                                           This adjusted time frame                               



made the State's case significantly more plausible: it was consistent with the theory that                                                                                                                                        



Williams   loaded   and   then   deleted   the   pornographic   images   on   the   Association's  



computer between 11:45 a.m. and 12:04 p.m., and that Williams then walked back to the                                                                                                                                                



Salvation Army to charge his phone.                                                                  



                                     For these reasons,                                   we uphold the superior court's denial                                                                        of Williams's   



motion to dismiss the indictment.                                                           



                                                                                                             

                   Williams's request for a Thorne instruction  



                                                                                                                                                                                                                 

                                     To explain this jury instruction issue, we must first describe a particular  



                                                                                                                                                                                                                                     

facet of Microsoft's Windows operatingsystem.  The Windows operating system has the  



                                                                                                                                                                                                                                                

ability to keep track of the date and time at which a computer file was last "accessed".  



                                                                                                                                                                                                                                        

                                     (In  this  context,  "accessed"  is  a  technical  term  that  encompasses  a  



                                                                                                                                                                                                                                      

significantly wider range of activity than simply a person's opening a file  to  view  or  



                                                                                                                              

modify it.  We will say more about this later.)  



                                                                                                                                                                                                       

                                     According to the expert  testimony at Williams's trial, this date-and-time  



                                                                                                                                                                                                              

stamping function operates behind the scenes.  Thus, when Chilkoot Indian Association  



                                                                                                                                                                                                       

employee  David  Berry  opened  the  first  pornographic  image  on  the  Association's  



                                                                                                                                                                                                                              

computer, he inadvertently altered the "last accessed" property of that file.  And when  



                                                                                                                                                                                                                                     

the Haines police chief retrieved the rest of the pornographic images from the recycle bin  



                                                                                                                                                                                                                                      

and  opened  them  -  to  see  if  the  images  were,  indeed,  child  pornography,  and  to  



                                                                                                               -  17 -                                                                                                            2594
  


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

                                                                                                                              

preserve this evidence by taking photographs of the images - he, too, altered the "last  



                                                                

 accessed" property of those image files.  



                                                                                                                                

                     At trial, Williams's attorney asserted that if someone had preserved the  



                                                                                                                          

previous  "accessed" date-and-time stamps of those files, those  date-and-time stamps  



                                                                                                                        

 could have been exculpatory to Williams.  Based on this assertion, the defense attorney  



                                                                                                                           

 asked the trial judge to instruct  the jurors that they should presume that the earlier  



                                                                                                                            

 "accessed"  date-and-time  stamps  would  have  been  exculpatory  if  they  had  been  



                                                                                            

preserved.  The trial judge declined to give this instruction.  



                                                                                                                                

                     Williams now renews this argument on appeal.                                He suggests that if the  



                                                                                                                             

 earlier "last accessed" date-and-time stamps had been preserved, this information might  



                                                                                                                               

potentially have shown that the files were  accessed at a time when Williams was not  



                                                                                                                             

using  the  Association's  computer.                        Alternatively,  Williams  argues  that  the  "last  



                                                                                                                       

 accessed" date-and-time stamps for these files might have shown that he only accessed  



                                                                                                                             

these  files  because  he  inadvertently  discovered  them  on  the  computer  and  then  



                                          

 immediately deleted them.  



                                                                                                                                

                     Williams further argues that Chief Lowe was at fault for overwriting the  



                                                                                                                              

previous "last accessed" date-and-time stamps. Williams contends that, because the chief  



                                                                                                                             

was  an  experienced  investigator,  he  must  have  known  (or  reasonably  should  have  



                                                                                                                          

known) that he would overwrite the "last accessed" property of each file when he opened  



           

them.  



                                                                                                                      

                     Thus, Williams contends, the trial judge should have given his requested  



                                                                                                                     

 Thorne instruction regarding the "last accessed" property of these files - an instruction  



                                                                                                                                

telling the jury to presume that the earlier "last accessed" date-and-time stamps of the  



                                                                                                     

pornographic files would have been favorable to Williams's case.  



                                                              -  18 -                                                         2594
  


----------------------- Page 19-----------------------

                                                                                                                                                                                                                                                                                                                       9  

                                                                        In   Thorne   v.   Department of Public Safety                                                                                                                                                                                             ,  the Alaska Supreme Court                                                                                               



 addressed the question of the proper remedy for situations where the police destroy                                                                                                                                                                                                                                                                                                                                               



 evidence that they have gathered during a criminal investigation.                                                                                                                                                                                                                                                                                    



                                                                        The defendant in                                                                             Thorne  was arrested for driving under the influence and                                                                                                                                                                                                                             



he was taken to jail, where he was asked to perform sobriety tests.                                                                                                                                                                                                                                                                                   The police videotaped                                       



Thorne's performance of these sobriety tests, but they erased and re-used the videotape                                                                                                                                                                                                                                                                                                                                  



 after Thorne's criminal case was resolved by a plea to the lesser charge                                                                                                                                                                                                                                                                                                                                  of negligent   



driving.    Thus, the videotape was no longer available when the Department of Public                                                                                                                                                                                                                                                                                                                                                     



 Safety took administrative action against Thorne's driver's license.                                                                                                                                                                                                                                                                                               



                                                                        The supreme court held                                                                                                               that   the   police violated Thorne's right to due                                                                                                                                                                                         



process when they destroyed the videotape before                                                                                                                                                                                                                                   the administrative proceeding was                                                                                                                                   



resolved.   The court then considered the type of remedy that Thorne should receive:                                                                                                                                                                                                                                                                                                                                   



                                                                         

                                                                                                           We   now   address   the   appropriate   sanction   for   the  

                                                                        state's failure to preserve the videotape.                                                                                                                                                                         The state's good or                                                                            

                                                                       bad faith in failing to preserve the videotape is relevant to                                                                                                                                                                                                                                                      

                                                                        determining the appropriate sanction.                                                                                                                                                                We look to the degree                                                                 

                                                                        of culpability on the part of the state, the importance of the                                                                                                                                                                                                                                              

                                                                        evidence lost, the prejudice suffered by the accused, and the                                                                                                                                                                                                                                                

                                                                        evidence of guilt adduced at the trial or hearing.                                                                                                                                                                                                             



                                                                                                           We think an appropriate sanction in this case would be                                                                                                                                                                                                                        

                                                                        to   remand   the   case   back   to   the   [administrative]   hearing  

                                                                        officer with directions to presume that the videotape would                                                                                                                                                                                                                                 

                                                                       have been favorable to Thorne.                                                                                                                                             



 Thorne, 774 P.2d at 1331 (citations omitted).                                                                                                                                                  



                  9                 774 P.2d 1326, 1331-32 (Alaska 1989).                                                                                                                                                                        



                                                                                                                                                                                                                         -  19 -                                                                                                                                                                                                                        2594
  


----------------------- Page 20-----------------------

                                                                                                                         

                    In  the  present  case,  Williams  argues  that  he  was  entitled  to  a  Thorne  



                                                                                                                              

instruction concerning the Windows "last accessed" property of the pornographic files  



                                                                                    

found on the Chilkoot Indian Association's computer.  



                                                                                                                 

                    In their briefs to this Court, the parties dispute whether the pornographic  



                                                                                                                          

images were "collected" by Chief Lowe (thus triggering the chief's duty under Thorne  



                                                                                                                     

to preserve the evidence).  But Williams's case raises other issues related to Thorne.  



                                                                                                                       

                    In retrospect, it can be seen that the Thorne decision arose from relatively  



                                                                                                                 

easy facts.  No one disputed that the video accurately portrayed Thorne's performance  



                                                                                                                     

on the field sobriety tests; no one disputed that  the video could have been preserved  



                                                                                                                        

indefinitely; and no one suggested that watching the video later would alter its contents  



                                  

in any material way.  



                                                                                                                            

                    This is not always the case.                    There are times when a defendant might  



                                                                                                                            

reasonably argue that the very act of removing an article of evidence from a crime scene  



                                                                                                                                 

(or from some other location) would either alter relevant characteristics of the article or  



                                                                                                                               

alter relevant characteristics of the location.  For example, the defendant might argue that  



                                                                                                                              

the amount of moisture on the ground underneath the item was probative of some fact,  



                                                                                                      

and that the removal of the item led to an alteration of this ground moisture.  



                                                                                                                               

                    Williams's case is analogous to this kind of situation.  Williams argues that  



                                                                                                                     

the very act of viewing the contents of the pornographic  files  worked a significant  



                                                                                                                                

change in the properties of those files - i.e., not a change in the images themselves, but  



                                                                                                                                

rather a change in the information about those files that is collected and stored by the  



                                                                                                                               

Windows operating system (i.e., some of the "metadata" pertaining to those files).  



                                                                                                                                

                    For the reasons we are about to explain,  we  conclude that we need not  



                                                                                                                                 

decide whether the pornographic images were  "collected" by Chief Lowe when he  



                                                                                                                             

viewed them on the Association's computer, nor do we need to decide some of the other  



                                                                                                  

potential questions regarding the scope of the Thorne decision.  



                                                              - 20 -                                                          2594
  


----------------------- Page 21-----------------------

                                                                                                                                

                    Even  if  we  assume  that  Chief  Lowe's  actions  constituted  the  act  of  



                                                                                                                              

"collecting" the pornographic images, we conclude that the trial judge's refusal to give  



                                                                                                                                

a Thorne instruction was reasonable for two reasons.  First, Williams failed to allege or  



                                                                                                                       

offer any evidence that the police chief was at fault for failing to preserve the previous  



                                                                                                                           

"last accessed" date-and-time stamps of the pornographic images.  And second, under  



                                                                                                                    

the facts of Williams's case, there is no reasonable possibility that the "last accessed"  



                                                                                                                            

dates  of  the  eight  images  created  on  Monday,  November  19th  could  have  been  



                                                                                                                     

exculpatory - and those eight images were the only ones that Williams was convicted  



                         

of possessing.  



                                                                                                                          

                    In total, eleven  pornographic images were found on the Chilkoot Indian  



                                                                                                                               

Association's computer.                 Of these,  three  images were "created" (i.e.,  placed on the  



                                                                                                                      

Association's computer for the first time) and then "deleted" (i.e., moved to the Windows  



                                                                                                                              

recycle  bin)  on  the  afternoon  of  Tuesday,  November  13,  2012.                                      They  were  not  



                                                                                                                      

discovered  until six days  later,  when  the  Association  employees  observed  Williams  



                                                                           

acting suspiciously when he used the computer.  



                                                                                                                              

                    The  remaining  eight   pornographic  images  were  all  placed  on  the  



                                                                                                                           

Association's  computer  within  a  14-minute  span  on  Monday,  November  19,  2012  



                                                                                                                         

(between 11:45 a.m. and 11:59 a.m.), and these eight images were moved to the recycle  



                                                                                                                          

bin at the same time -at 12:04 p.m., shortly after the last one was "created" (i.e., placed  



                              

on the computer).  



                                                                                                                               

                    When the State's forensic computer expert, Angela Worthy, examined the  



                                                                                                                                

Association's computer, she found that the "last accessed" date-and-time stamps on all  



                                                                                                                                

eleven of these files showed that the files were "last accessed" around one hour later -  



                                                                                                                              

between 12:54 p.m. and 1:38 p.m. on November 19th.  This was when David Berry and  



                                                                                                                               

Chief Lowe opened those files to view the images (and to allow Lowe to photograph the  



                                                                

computer screen display of each image).  



                                                             - 21 -                                                          2594
  


----------------------- Page 22-----------------------

                                                                                                                              

                     Because a Windows computer only retains the most recent date and time  



                                                                                                                             

that  a file was accessed, when Berry and Lowe opened the files to view them, their  



                                                                                                                                

actions overwrote the previous "last accessed" date-and-time stamp for those files.  



                                                                                                                         

                     The Thorne decision directs us to consider a series of factors when deciding  



                                                                                                                        

whether the destruction of evidence in the State's possession should result in a sanction  



                                                                                                                      

against the State:  (1) the State's good or bad faith in failing to preserve the evidence;  



                                                                                                                       

(2) the degree of culpability on the part of the State; (3) the importance of the evidence  



                                                                                                                      

that was lost, in light of the other evidence in the case; and (4) the degree of prejudice  



                         

suffered by the accused.  



                                                                                                                         

                     With regard to the first factor (the good or bad faith of the State's agents),  



                                                                                                                   

there is no evidence of bad faith on the part of Chief Lowe, or on the part of Association  



                                                              

employee David Berry, for that matter.  



                                                                                                                                

                     With regard to the second  factor (the State's degree of culpability), the  



                                                                                                                    

record fails to support Williams's assertion that Chief Lowe acted culpably.  



                                                                                                                               

                     We note that when Williams's trial attorney argued this matter to the trial  



                                                                                                                        

judge, he did  not assert that Chief Lowe acted culpably.   Rather, the defense attorney  



                                                                                                                                      

argued that, once Williams showed that he had been prejudiced by the loss of evidence,  



                                                                                                                                 

he was entitled to a Thorne instruction regardless of whether Lowe acted culpably.  



                                                                                                                                  

                     The defense attorney told the trial judge that Lowe's culpability (or lack of  



                                                                                                                                 

culpability) only made a difference  to the extent that,  if the chief had intentionally or  



                                                                                                                         

knowingly destroyed evidence,  then Williams would have been  entitled to a harsher  



                                                                                                                             

remedy than merely a jury instruction.  But the defense attorney clarified that "[he was]  



                                                                                                                     

not arguing that [Lowe] intentionally destroyed the access date, or [that he] knowingly  



                                                                    

did it.  We're just saying that it happened."  



                                                                                                                         

                     This matter  was further clarified a few minutes later, when the defense  



                                                                                                                                

attorney  seemingly  began  to  suggest  that  Chief  Lowe  might  bear  some  level  of  



                                                              - 22 -                                                          2594
  


----------------------- Page 23-----------------------

                                                                                                                             

culpability.  The defense attorney told the judge that Chief Lowe "went through all these  



                                                                                                                                

pictures  knowing that  they  had  metadata  on  them,  knowing that  he  wasn't  ...  [a]  



                                                                                                                               

computer expert, knowing that [the computer] was going to go to somebody else".  But  



                                                                                             

at this point, the trial judge interrupted the defense attorney:  



                      

                                                                                                              

                               The Court:   Did [Chief  Lowe] say that he knew it  

                                                   

                    would alter things?  



                                                                                                             

                              Defense Attorney :  I don't know that he said that he  

                                                                                                               

                    knew it  would alter things.   But I also don't think that's a  

                                                                                            

                    necessary finding for the [present] discussion.  



                                                                                                          

                               The Court:  You said [that] he did this knowing that  

                                                                                   

                     [an alteration of metadata] would result.  



                                                                                                        

                              Defense Attorney : No.  I said specifically [that] we're  

                                                                        

                    not arguing intent or knowingly.  



                                                                                                        

                               The Court:  No, but he - Okay, but you were using  

                                                                                                

                    the  words,  "He  opened  it  knowing  there  was  metadata,  

                                                                                                         

                    knowing it would disappear."  I thought that's what you said.  



                                                                                                               

                              Defense Attorney :  I don't think he - I'm sorry if I  

                                                                                                              

                     said "knowing it would disappear".  I said [that] he opened it  

                                                                                                             

                    knowing there was metadata on those images.   Because he  

                                                                                                    

                     said  he  had  training in  that,  and  he  said  he  was  familiar  

                                                                                                        

                    enough with them.  [But] again, ... you know, had [the chief]  

                                                                                                  

                    known that [his actions] would have destroyed the metadata,  

                                                                                                          

                    I think we could have asked for harsher sanctions in this case  

                                                               

                    - which we're not doing.  



                                                                                                          

                               The  only  question  here  is,  "Did  it  prejudice  Mr.  

                                                                                                          

                    Williams's ability to make a defense?"  And ... that's the only  

                                                                                                   

                     standard  we  have  to  meet  before   we  get  [a  Thorne]  

                                       

                    instruction.  



                                                              - 23 -                                                          2594
  


----------------------- Page 24-----------------------

                                                                         Thus, even though                                                                                   Williams now                                                               asserts on appealthat                                                                                            the State is culpable                                       



because Chief Lowe knew or should have known that his act of opening and viewing the                                                                                                                                                                                                                                                                                                                                                                             



 computer files would overwrite the previous "last accessed" date-and-time stamps on                                                                                                                                                                                                                                                                                                                                                                              



those   files,   Williams's   trial   attorney   expressly   disavowed   any   reliance   on   such   an  



 assertion when he argued this matter in the trial court.                                                                                                                                                                                                                                          



                                                                        We also note that, in the trial court, Williams offered no suggestion as to                                                                                                                                                                                                                                                                                                                   



how   Chief   Lowe   could   have   viewed   the   computer   files   without   altering their                                                                                                                                                                                                                                                                                                                                                        "last  



 accessed" date-and-time stamps.                                                                                                                                                Instead, the defense attorney argued that Chief Lowe                                                                                                                                                                                                               



 should have stopped opening the files after he saw the first one.                                                                                                                                                                                                                                                                                       



                                                                        It is unclear whether it would have made any difference, at that point, even                                                                                                                                                                                                                                                                                                    



if Chief Lowe had desisted from opening and viewing the rest of the image files.                                                                                                                                                                                                                                                                                                                                                              In the   



Windows operating system, "accessing" a computer file is not limited to opening the file                                                                                                                                                                                                                                                                                                                                                                         



to view it or modify it.                                                                                                         Windows treats a broader range of actions as constituting an                                                                                                                                                                                                                                                                      



"access".    For example, Windows considers a file to have been "accessed"                                                                                                                                                                                                                                                                                                                                                        if a user      



generates a preview of the file, or even if a user switches the folder view from a listing                                                                                                                                                                                                                                                                                                                                                  



 of file names to thumbnail images of the files.                                                                                                                                                                                                Likewise, a file is considered to have been                                                                                                                                                             



"accessed" if a user - or an automatic computer backup program - backs up the file.                                                                                                                                                                                                                                                                                                                                                                                                  



Ironically, Windows considers a file to have been "accessed" even when someone simply                                                                                                                                                                                                                                                                                                                                                          



 checks the file for its "accessed" date-and-time stamp, by right-clicking on the file and                                                                                                                                                                                                                                                                                                                                                                   

 opening the file's "properties" screen.                                                                                                                                                                      10  

                                                                                                                                                                                                                       



                   10                 See When was a file last accessed in Windows 7?                                                                                                                                                                                                                                   , Superuser (August 4, 2016),                                                                                                                                



https://superuser.com/questions/1109640/-when-was-a-file-last-accessed-in-windows-7   

                   and   

Raymond Chen,                                                                   How do I access a file without updating its Last-Access time?                                                                                                                                                                                                                                                                   (October 10,   

2011), https://blogs.msdn.microsoft.com/oldnewthing/-20111010-00/?p=9433.                                                                                                                                                                                                                                                                                                                                                 



                                                                                                                                                                                                                           - 24 -                                                                                                                                                                                                                            2594
  


----------------------- Page 25-----------------------

                                                                                                                              

                    Turning  to the remaining  Thorne factors - the importance of the lost  



                                                                                                                         

evidence and the degree of prejudice that Williams suffered - we note that the State's  



                                                                                                                              

own expert acknowledged (in her trial testimony) that, when Chief Lowe opened the files  



                                                                                                              

to look at the images,  his actions overwrote the previous "accessed"  date-and-time  



                                                                                                                              

stamps  of  these  files.             The  State's  expert  also  acknowledged  that,  because  of  this  



                                                                                                                         

overwriting, there was no way to know whether those files had been previously opened  



                                                                                                                             

(or accessed in any other manner) after their "creation" - i.e.,  after they were first  



                                                                                     

placed on the Chilkoot Indian Association's computer.  



                                                                                                                         

                    Thus, the jury was well aware of the consequences of the police chief's  



                                                                                                                              

actions.  But within the factual context of Williams's case, the police chief's actions had  



                             

little significance.  



                                                                                                                               

                    It was undisputed that eight of the pornographic files were loaded onto the  



                                                                                                                      

Association's computer, and then deleted, within a 20-minute time frame on Monday,  



                                                                                                                    

November 19th. The first of these eight files was "created" (i.e., placed on the computer)  



                                                                                                                            

at 11:45 a.m., and the last of them was created at 11:59 a.m.  About five minutes later,  



                                                                                                  

all eight files were deleted (by moving them to the recycle bin).  



                                                                                                                            

                    By definition, the previous "last accessed" date-and-time stamps of those  



                                                                                                                               

files could not  have pre-dated the dates and times of their creation.                                       And,  again by  



                                                                                                                              

definition, the previous "last  accessed" date-and-time stamps of these files could not  



                                                                                                                         

have been later than the dates and times that these files were deleted.  Thus, even though  



                                                                                                                               

Chief Lowe created new "accessed" dates and times  by  retrieving the files from the  



                                                                                                                            

recycle bin and then opening them, the previous "last accessed" dates and times of these  



                                                                                                                             

eight files had to have been during the 20 minutes between 11:45 a.m. and 12:04 p.m.  



                                               

on Monday, November 19th.  



                                                                                                                            

                    In other words, even if the previous "accessed" dates and times of those  



                                                                                                                               

eight files had somehow been preserved, the question  for  the jury would remain the  



                                                             - 25 -                                                          2594
  


----------------------- Page 26-----------------------

                                                                                                                              

same:   Was Williams operating the Association's computer between 11:45 a.m.  and  



                                                                                                                              

12:04 p.m. on November 19th, when those eight pornographic files were created and  



                      

then deleted?  



                                                                                                                               

                    This was not true for  the  three pornographic files that were created the  



                                                                                                                      

preceding week, on the afternoon of Tuesday, November 13th - but the jury acquitted  



                                                      

Williams of possessing those three files.  



                                                                                                                            

                    Given  these  facts,  even  if  we  presume  that  the  computer  files  were  



                                                                                                                               

"collected" by Chief Lowe (so that he became responsible for them under Thorne), our  



                                                                                                                               

analysis of the Thorne criteria leads us to conclude that the trial judge acted within his  



                                                                                                                            

discretion when he declined to give the jury a  Thorne instruction regarding the "last  



                                                   

accessed" date-and-time stamps.  



                                                                                                                            

                    We note that the judge gave Williams's attorney full rein to argue (at some  



                                                                                                                           

length) that  the State's investigation was substandard and inconclusive because Chief  



                                                                                                        

Lowe's actions had resulted in the destruction of forensic evidence.  



                                                                                                                          

                    This was a proper way of handling this situation, and we therefore uphold  



                                                       

the trial judge's ruling on this issue.  



                                                                                                                  

          The sentencing judge's imposition of consecutive imprisonment for each  

                                                   

          count of possessing child pornography  



                                                                                                                    

                    When Judge Levy sentenced Williams  on the eight counts of possessing  



                                                                                                                            

child pornography, he imposed 15 years to serve on each count.  These sentences were  



                                                                                                                          

almost entirely concurrent, but the judge specified that one day of each sentence would  



                                                                                                                             

be  consecutive.             On appeal,  Williams suggests that Judge Levy imposed these few  



                                                                                                                             

consecutive days of imprisonment because the judge mistakenly thought that this was  



                                                

required by AS 12.55.127(d).  



                                                             - 26 -                                                          2594
  


----------------------- Page 27-----------------------

                                        This statute - which requires the imposition of "some additional term of                                                                                                                                     



 imprisonment" for each count of possessing child pornography - was in effect when                                                                                                                                                          



 Williams was sentenced in 2015. But there was no requirement of consecutive sentences                                                                                                                                          



 when Williams committed his crimes in 2012.   The consecutive sentencingprovision                                                                                                                                                              was  



 not enacted until 2013.                                             See  SLA 2013, ch. 43,  21.                                                          



                                        When the legislature enacts new, more severe penalties for a crime, the                                                                                                                                     ex  



post facto                    clauses of the federal and state constitutions prohibit the application of these                                                                                                                              



 new penalties to defendants who committed their offenses before the new penalties were                                                                                                                                                      

                           11      The State concedes that the present version of AS 12.55.127(d) does not  

 enacted.                                                                                                                                                                                                                                        



 apply to Williams's sentencing, and that Judge Levy was not required to impose small  

                                                                                                                                                                                                                                            



 consecutive terms of imprisonment for each count.  

                                                                                                                                                      



                                        Because  Williams   must  be  re-sentenced,  Judge  Levy  will  have  an  

                                                                                                                                                                                                                                                   



 opportunity to clarify his reasons for imposing those few days of consecutive jail time.  

                                                                                                                                                                                                                                                             



                     Conclusion  



                                        We AFFIRM Williams's convictions for possessing child pornography, but  

                                                                                                                                                                                                                                                   



 we VACATE his sentence,  and  we  REMAND this case to the superior court with  

                                                                                                                                                                                                                                               



 directions to re-sentence Williams as a first felony offender under the provisions of  

                                                                                                                                                                                                                                                     



 AS 12.55.125(i)(4)(A).  

                                                                      



                                        We do not retain jurisdiction of this case.  

                                                                                                                                                                



           11       See Doe v. State                                , 189 P.3d 999, 1003 (Alaska 2008);                                                                  Dobbert v. Florida                                     , 432 U.S.      



 282, 292; 97 S.Ct. 2290, 2298; 53 L.Ed.2d 344 (1977).                                                                                                     



                                                                                                                       - 27 -                                                                                                                   2594
  

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