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Alvarado v. State (2/22/2019) ap-2636

Alvarado v. State (2/22/2019) ap-2636

                                                         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
  

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                  IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



STEPHEN W. ALVARADO,  

                                                                         Court of Appeals No. A-12105  

                                      Appellant,                        Trial Court No. 3DI-11-334 CR  



                             v.  

                                                                                     O P I N I O N  

STATE OF ALASKA,  



                                      Appellee.                         No. 2636 - February  22, 2019  



                   Appeal  from  the  Superior  Court,   Third  Judicial  District,  

                                                                       

                   Dillingham, Steve W. Cole, Judge.  



                   Appearances:   Renee McFarland, Assistant Public Defender,  

                                         

                   and  Quinlan  Steiner,  Public  Defender,  Anchorage,  for  the  

                   Appellant.   Timothy W. Terrell, 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 ALLARD, writing for the Court.  

                   Judge MANNHEIMER, concurring.        



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



Constitution and Administrative Rule 24(d).  


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

                        Following a jury trial, Stephen W. Alvarado was convicted of four counts                                                   



of first-degree sexual abuse of a minor based on evidence that he sexually abused his six-                                                               

year-old daughter, S.S., on two separate occasions.1  At sentencing, the court imposed  



                                                                                                                                                          

a composite sentence of 57 years and 6 months to serve.  Alvarado challenges both his  



                                                                                                

convictions and his sentence, raising four claims of error.  



                                                                                                                                                 

                        Alvarado argues first that the superior court erred when it took judicial  



                                                                                                                                                            

notice of Alvarado's date of birth and then instructed the jury that it was required to  



                                                                                                                                                    

accept this fact as "proven." Alvarado contends that by taking conclusive judicial notice  



                                                                                                                                                        

of his date of birth, the trial court violated Alvarado's constitutional right to a jury trial  



                                                                                                                                                         

on one of the essential elements of the charged offenses. Alvarado further contends that  



                                                                                                                                                          

this error is structural error that requires automatic reversal of his convictions.  For the  



                                                                                                                                          

reasons explained here, we conclude that the trial court's action, which Alvarado's  



                                                                             

attorney consented to, was not reversible error.  



                                                                                                                                                            

                        Alvarado argues next that the trial court committed plain error when it  



                                                                                                                                              

failed to sua sponte issue a limiting instruction after the victim's out-of-court statement  



                                                                                                                                         

was admitted under the first-complaint doctrine.  We find no merit to this claim.  



                                                                                                                                              

                        Alvarado's last two claims of error relate to his sentencing.   Alvarado  



                                                                                                                                          

argues that the trial court erred when it refused to merge the two sets of first-degree  



                                                                                                                           

sexual abuse convictions that were based on the same underlying acts of fellatio.  The  



                                                                                                                                                          

State concedes that these convictions should have merged. Alvarado also argues that the  



                                                                                                                                                             

trial court erred when it failed to order the Department of Corrections to produce a  



                                                                                                                                                                 

corrected copy of his presentence report.  The State also concedes error on this claim.  



      1     AS 11.41.434(a).  The jury also found Alvarado guilty of two counts of incest, but                                                            



these  two  counts  were  merged  into  two  of   the  sexual  abuse  of   a   minor  convictions  at  

sentencing. See AS 11.41.450(a)(1).  



                                                                           - 2 -                                                                      2636
  


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

                       For the reasons explained here, we conclude that the State's concessions               



                               2  

are well-founded.                                                                                                                                

                                  Accordingly, we remand Alvarado's case to the superior court for  



                                                                                                                                  

merger of the challenged convictions, a resentencing, and correction of the presentence  



                                                                                                      

report.  We otherwise affirm the judgment of the superior court.  



                                                                   

           Factual background and prior proceedings  



                                                                                                                                              

                       In   August   2011,   S.A.   (Alvarado's   seven-year-old   son),   and   S.S.  



                                                                                                                                   

(Alvarado's six-year-old daughter) reported to their cousin that their father (Alvarado)  



                                                                                                                                                   

had been forcing both of them to "suck his wiener."  The cousin told other members of  



                                                                                       

the family, who reported these accusations to the police.  



                                                                                                                                                   

                       S.A. almost immediately recanted this accusation. S.S. was interviewed by  



                                                                                                                                               

a  caseworker  from  the  Office  of  Children's  Services.                                          During  this  interview,  S.S.  



                                                                                                                                    

recounted three different incidents of fellatio - two incidents in the trailer next to the  



                                                                                            

family home and one incident in the bedroom in the house.  



                                                                                                                                                        

                       Based on S.S.'s interview, Alvarado was indicted on nine felony counts -  



                                                                                                                                       

three separate counts for each alleged incident. For each alleged act of fellatio, Alvarado  



                                                                                                                                            

faced  the  following  three  charges:                            (1)  first-degree  sexual  abuse  of  a  minor  under  



                                                                                                                                              

AS 11.41.434(a)(1) (sexual penetration of a minor under thirteen years old), (2) first- 



                                                                                                                                              

degree sexual abuse of a minor under AS 11.41.434(a)(2) (sexual penetration of a child  



                                                                                                                                                   

by  a  parent),  and  (3)  incest  under  AS  11.41.450(a)(1)  (sexual  penetration  of  a  



descendant).  



                                                                                                                                               

                       All  three  of  these  criminal  offenses  required  the  State  to  prove  that  



                                                                                                                                                        

Alvarado was over a certain age at the time he committed the offenses.  Alaska Statute  



      2     See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (requiring an appellate court to  



                                                                                 

independently assess any concession of error by the State in a criminal case).  



                                                                       -  3 -                                                                2636
  


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

11.41.434(a)(1) required the State to prove that Alvarado was over sixteen years old;  

                                                                                                                                       



AS 11.41.434(a)(2) and AS 11.41.450(a)(1) required the State to prove that Alvarado  

                                                                                                                       



was over eighteen years old.  

                                       



                    Alvarado's age was not a contested element at trial:  Alvarado was thirty- 

                                                                                                                            



nine years old at the time of trial and thirty-six years old at the time of the alleged abuse.  

                                                                                                                                       



It was also undisputed that Alvarado was the natural father of S.S., who was six years  

                                                                  



old at the time of the alleged abuse.   In order to have been under the threshold age,  

                                                                                                               



Alvarado would had to have fathered S.S. when he was between ten and twelve years  

                                                                                                                             



old.  



                    Near the end of Alvarado's trial, the prosecutor noted that he was required  

                                                                                                                         



to prove that Alvarado was over sixteen and eighteen years old at the time of the alleged  

                                                                                                                           



incidents.        The  prosecutor  also  noted  that  there  did  not  appear  to  be  any  dispute  

                                                                                                                          



regarding Alvarado's age.  The prosecutor therefore requested that the trial court take  

                                                                                                                               



"judicial notice" of Alvarado's date of birth, which was listed on the indictment.  The  

                                                                                                                                



trial court agreed that it could take "judicial notice" of this fact, and the trial court asked  

                                                                                                                             



the defense attorney "Is that fine?" The defense attorney replied, "Yep." The trial court  

                                                                                                                              



subsequently instructed the jury as follows:  

                                                       



                    I'm  taking  judicial  notice  so  that  it  does  not  need  to  be  

                                                                                                             

                    proven that Stephen Alvarado's,thedefendant's, dateofbirth  

                                                                                                          

                     is February 2, 1975. Because that is judicial notice, you shall  

                                                                                                          

                    take  that  as  a  proven  fact  that  the  defendant  was  born  

                                                                                                         

                    February 2, 1975.  That's not an issue.  

                                                                        



Although  this  instruction  was  improper  for  the  reasons  explained  in  this  opinion,  

                                                                                                                        



Alvarado's attorney did not object to this instruction.  

                                                                 



                    Followingdeliberations,thejuryconvicted Alvaradoofthecharges relating  

                                                                                                                          



to two of the incidents of fellatio that S.S. described in her trial testimony.  The jury  

                                                                                                                               



                                                               - 4 -                                                         2636
  


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

acquitted Alvarado of the charges relating to the third incident, which S.S. could not  

                                                                                                                                  



recall at trial.  

               



                     At  sentencing,  the  parties  agreed  that  the  incest  convictions  for  each  

                                                                                                                               



incident should merge with thecorresponding conviction for AS 11.41.434(a)(2) (sexual  

                                                                                                                            



penetration by a parent).  However, the prosecutor argued that Alvarado's convictions  

                                                                                



under AS 11.41.434(a)(1) (sexual penetration of a minor under 13 years old) involved  

                                                                                          



"different societal interests" and therefore required separate convictions. The trial court  

                                                                                                                               



agreed.        The trial court therefore entered  two  first-degree sexual abuse of a minor  

                                                                                                                             



convictions for each act of fellatio - for a total of four convictions.  The court then  

                                                                                                                                



imposed a composite sentence of 57 years and 6 months to serve.  

                                                                                             



                     This appeal followed.  

                                         



          Alvarado's argument that it was structural error for the trial court to take  

                                                                                                                      

           conclusive judicial notice of Alvarado's date of birth  

                                                                                      



                     Alaska Evidence Rule 203(c) requires trial courts to treat judicially noticed  

                                                                                                                            



facts in criminal cases differently from judicially noticed facts in civil cases.  The rule  

                                                                                                               



provides, in pertinent part:  

                                   



                     In a civil action or proceeding, the court shall instruct the jury  

                                                                                                            

                     to  accept  as  conclusive  any  fact  judicially  noticed.                           In  a  

                                                                                                                

                     criminal case, the court shall instruct the jury that it may, but  

                                                                                                             

                     it is not required to, accept as conclusive any fact judicially  

                                                                                                    

                     noticed.  



As the Commentary to Evidence Rule 203(c) explains, "the rule opts for the greater  

                                                                                                                            



protection of the accused's right to a jury trial afforded by the limited instruction that the  

                                                                                                                                  



jury may, but is not required to, accept as conclusive any fact judicially noticed."  

                                                                                                                 



                     On appeal, both parties agree that the trial court violated Evidence Rule  

                                                                                                                               



203(c) when it instructed the jury that they were required to take the judicially noticed  

                                                                                                                           



                                                               -  5 -                                                         2636
  


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

date of birth as a "proven fact."                                      The parties disagree, however, regarding the effect of                                                           



this error and whether it is amenable to a harmlessness review.                                                          



                             Alvarado  takes   a   bright-line   approach.     According   to   Alvarado,   any  



conclusive judicial notice of a fact relevant to an element constitutes a violation of the                                                                                            



defendant's   right   to   a   jury   trial   and   requires   automatic   reversal   of   the   defendant's  



conviction.  In support of this position, Alvarado relies on three prior decisions of this                                                               



                                                            3                                                                                          4  

Court:   Smallwood v. State                                ,                                                                                                                      

                                                               a decision from 1989, Fielding v. State,                                                   a decision from  



                                                   5  

                                                                                                                                                                    

 1992, and Rae v. State,                              a decision from 1994.  In all three of these cases, trial judges  



                                                                                                                                                                                   

erroneously took conclusive judicial notice of a factual aspect of the State's proof.  And  



                                                                                                                                                                          

in all three cases, this Court held that the judge's error required automatic reversal,  



                                                                                                                                                                            

"without regard either to whether there was an objection from the defense, or to whether  



                                                                                                                                                                                      

the defendant suffered any prejudice other than having had his guilt adjudged by the  



                                6  

                

wrong entity." 



                                                                                                                                                                                    

                             Alvarado argues that these three cases dictate the result in his case.  We  



                                                                                                                                                                                               

disagree for a number of reasons.  First, Alvarado's case is distinguishable on its facts.  



                                                                                                                                                                                

In Fielding, the defendant directly objected to the judge taking conclusive judicial notice  



                                                                                  7  

                                                                                                                                                                                         

of an element of the charged offense.                                                  In Smallwood and Rae, the defendant failed to  



       3      Smallwood v. State, 781 P.2d 1000, 1001-04 (Alaska App. 1989).  



       4      Fielding v. State, 842 P.2d 614, 614-16 (Alaska App. 1992).  



       5      Rae v. State, 884 P.2d 163, 163-67 (Alaska App. 1994).  



       6      Rae, 884 P.2d at 167; see also Fielding, 842 P.2d at 615-16; Smallwood, 781 P.2d at  



 1004-05. 
 



       7      Fielding, 842 P.2d at 615. 
 



                                                                                         - 6 -                                                                                   2636
  


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

 object to the court taking conclusive judicial notice of an element, but the element was                                                                                        

never directly conceded by the defendant.                                                 8  



                                                                                                                                                                                 

                             Here, in contrast, the record shows that the defense attorney did more than  



                                                                                                                                                               

just fail to object to the court's conclusive judicial notice instruction.   Instead, the  



                                                                                                                                                                           

 defense attorney affirmatively agreed that the date of birth on the indictment was correct  



                                                                                                                                                                

 and that this fact could be "judicially noticed" to the jury.  Courts in other jurisdictions  



                                                                                                                                                                                    

have  refused  to  apply  structural  error  under  circumstances  where  the  error  is  



                                                                                  9  

                                                                                                                                                                  

 affirmatively waived by the defendant.                                              We find these decisions persuasive, particularly  



                                                                    

 in the circumstances presented here.  



                                                                                                                                                                                     

                             On appeal, Alvarado does not object to the court taking judicial notice of  



                                                                                                                                                               

his date of birth. Instead, he is only challenging the court's decision to take "conclusive"  



                                                                                                                                                                           

judicial notice of this fact.  But, as the concurrence points out, the term "judicial notice"  



                                                                                                                                                                                 

under these circumstances is a misnomer.  As a general matter, it is improper for a trial  



                                                                                                                                                                                      

 court to take judicial notice of facts asserted in a pleading if the pleading is offered to  



                                                                                 10  

                                                                                                                                                                                       

prove the truth of the facts asserted.                                                 A court may take judicial notice that such a  



                                                                                                                                                                        

pleading has been filed, but it may not take judicial notice of the contents of the pleading  



                                                                                                                                                                                   

 for the truth of the factual assertions stated therein.  It was therefore improper for the  



                                                                                                                                                                                    

 court to treat Alvarado's date of birth as a subject for judicial notice simply because the  



                                                                                                                                                                                 

 date of birth was included in the indictment.  It was not improper, however, for the trial  



                                                                                                                                                                                     

 court to treat this matter as "proven" once Alvarado's defense attorney stipulated to its  



        8      Smallwood, 781 P.2d at 1003; Rae, 884 P.2d at 167.  



        9      United States v. Jones, 108 F.3d 668, 671 (6th Cir. 1997) (collecting cases).  



        10     See   F.T.  v.  State,  862  P.2d  857,  863-64  (noting  that  taking  judicial  notice  is  



 appropriate "only if, viewing the evidence in the light most favorable to the party against                                                                               

whom judicial notice is to be taken, fair-minded jurors could not disagree about the truth of   

the proposition to be noticed"); Alaska Evidence Rule 201(b).  



                                                                                        -  7 -                                                                                 2636
  


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

accuracy.   Indeed, the court could properly have instructed the jury that the parties had                                                     



agreed (or stipulated) that Alvarado's date of birth was February 2, 1975, and no error                                                      



                                       11  

would have occurred.                                                                                                                      

                                            The court's primary error therefore was in using the words  



                                                                                                                                               

"judicial notice" to describe what it was doing when, in truth, Alvarado's birth date had  



                                               

been stipulated to by both parties.  



                                                                                                                                        

                       Weacknowledgethat Smallwood, Fielding,and Rae arewritten inamanner  



                                                                                                                                           

that  suggests  all  conclusive  judicial  notice  instructions  constitute  structural  error,  



                                                                                                                                            

regardless of circumstances and context.  But we reject such a broad reading of those  



                                                                                                                                               

cases.  When, as here, the defendant has affirmatively conceded the truth of the fact  



                                                                                                                                                

being judicially noticed, and has agreed that the judge can so instruct the jury, we  



                                                                                                                                          

conclude that automatic reversal is not appropriate. Instead, we conclude that the court's  



                                                                                                                                                

error should be subjected to a harmlessness analysis and the conviction affirmed if the  



                                                                                                             

error is determined to be harmless beyond a reasonable doubt.  



                                                                                                                                          

                       This  conclusion  is  in  accord  with  the  Alaska  Supreme  Court's  recent  



                                                                                  12  

                                                                         

discussion of structural error in Jordan v. State . 



                                                                                                                                            

                       Jordan was a felony marijuana case in which the trial court refused to allow  



                                                                                                                                              

the defendant to testify to the reasonableness of his belief that he was growing less than  



                                                                                                                                     

four ounces of marijuana (the legal limit under Ravin v. State for possession of marijuana  



                                                                13  

                                                     

for personal use in one's own home). 



      11   See  Marshall v. State, ___ P.3d ___, Op. No. 2627, 2018 WL 6582296, at *2-5  



                                                                                                          

(Alaska App. Dec. 14, 2018); see also United States v. Mason, 85 F.3d 471, 472-73 (10th  

Cir. 1996).  



      12   Jordan v. State , 420 P.3d 1143 (Alaska 2018).  



      13   Id. at 1146; see also Ravin v. State, 537 P.2d 494, 511 (Alaska 1975); Walker v. State,  

                  

991 P.2d 799, 802 (Alaska App. 1999).  



                                                                      -  8 -                                                                2636
  


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

                            The Alaska Supreme Court concluded that the court's failure to instruct the                                                                        



jury   on   this   contested  material   element   of   the   offense   constituted   structural   error  



                                                                                                                               14  

requiring automatic reversal of the defendant's conviction.                                                                                                           

                                                                                                                                      Central to the court's  



                                                                                                                                                                               

holding was the fact that the jury had never been informed of the element, nor had the  



                                                                                                                                                              

jury been given any opportunity to decide whether Jordan's defense was a reasonable  



          15  

 one.                                                                                                                                                                            

               The court emphasized that Alaska follows an "effect-on-the-jury" approach to  



                                                                                                                                                 

harmless error, which "asks the historical question whether the error was a substantial  



                                                         16  

                                                                                                                                                                     

 factor in the jury's verdict."                               But when the jury is never informed of an omitted element  



                                                                                                                                                                              

 or defense, this type of review becomes impossible because it essentially requires the  



        14    Id.  at 1152-57.  We note that the term "contested" is potentially ambiguous in this                                               



 context.     One   possible reading is that the court was referring to whether the defendant  

 actively disputed the element as part of his defense at trial.  But this would be a significant   

 departure from Scalia's dissent in                                   Neder v. United States, which the Jordan  court largely  

 adopted.  See Neder v. United States, 527 U.S. 1, 16-17 (1999) (noting that "Neder did not  

                                                                                                                                                     

 argue to the jury - and does not argue here - that his false statements of income could be  

 found immaterial");  see also Neder, 527 U.S. at 34 (Scalia, J., dissenting) ("The amount of  

                                                                                                  

 evidence against a defendant who has properly preserved his objection, while relevant to  

 determining whether a given error was harmless, has nothing to do with determining whether  

the error is subject to harmless-error review in the first place.").  

                                                                             

              Alternatively, it is possible to understand "contested" as referring to whether the  

                                                                                                                                  

 defendant preserved his objection to the trial court's omission of an essential element from  

                                                                                                                                                                        

the jury instructions.  This reading is more consistent with Scalia's dissent in Neder .  See id.  

                                                                                                                                                              

 at 34-35 (noting that even when jury instructions omit an essential element of the offense,  

                                                         

the failure to make a timely objection "will preclude automatic reversal"); see also Jordan,  

                                                                                                   

420  P.3d  at  1151-52  (explaining  why  Jordan  preserved  his  right  to  appeal  the  jury  

 instructions).  

                                                                                                            

              In any case, the potential ambiguity of the term "contested" is irrelevant here because  

                                                                                                                                

Alvarado failed to "contest" his age in either sense of the term.  



        15    Id. at 1156.  



        16    Id. at 1157.  



                                                                                      -  9 -                                                                              2636
  


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

appellate   court  to   "hypothesize"   what   result   the   jury   might   have   reached   had   this  

question been presented to them.                    17  



                                                                                                                                       

                     In other words, the primary problem when a material contested element is  



                                                                                                                                     

omitted from the jury instructions is that the effect of that error is not "quantifiable" for  



                                                                                                                                      

purposes of determining whether it was (or could be) harmless.  This was the basis of  



                                                                                  18  

                                                                                                                                    

Justice Scalia's dissent in Neder v. United States,                                   a dissent cited approvingly and  



                                                                                          19  

                                                                               

largely adopted by the Alaska Supreme Court in Jordan . 



                                                                                                                             

                     The difficulties in assessing harmlessness identified in the Jordan decision  



                                                                                                                      

are not present in the current case.  Here, the jury was instructed on all of the essential  



                                                                                                                                       

elements of the offense - including the threshold age element that is the main issue in  



                                                                                                                                   

this appeal. Moreover, the prosecution was not required to prove that Alvarado was born  



                                                                                                                              

on a particular day or that he was a particular age in order to convict him of these alleged  



                                                                                                                           

acts of sexual abuse.  Instead, the prosecution was only required to prove that Alvarado  



                                                                                                                                           

was at least sixteen or eighteen years old at the time the alleged sexual abuse occurred.  



                                              

To find this element proved beyond a reasonable doubt, the jury did not need to know  



                                                                                                                            

Alvarado's  exact  birth  date.                    The  jury  could  have  relied  on  Alvarado's  physical  



                                                                                                                                     

appearance at trial.  (As we noted previously, Alvarado was thirty-nine years old at the  



                                                                                                                           

time of trial.) The jury could also have relied on the evidence establishing that Alvarado  



                                                                                                                                    

was S.S.'s natural father and that the alleged abuse occurred when S.S. was six years old,  



                                                                                                                                    

which would have required Alvarado to have fathered S.S. when he was between ten and  



                                                                                                                                    

twelve years old in order to put Alvarado under the threshold ages required for the  



                                                                                                                        

alleged crimes.  In other words, the jury had before it evidence that already established  



      17  Id.  



      18  Neder, 527 U.S. at 30-41 (1999) (Scalia, J., dissenting).  



      19  Jordan , 420 P.3d at 1155-56.  



                                                                -  10 -                                                          2636
  


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

 the threshold age element beyond a reasonable doubt, and the trial court's additional                                                                                                                                                                                                                                                           



 "judicial   notice"   of   Alvarado's   actual   birth   date   was   not  necessary   to   the   jury's  



 determination of that element.                                                                



                                                            Alvarado's case is therefore distinguishable from the circumstances in                                                                                                                                                                                                                                                  



Jordan . Here, the judge's error was in instructing the jury with the language of "judicial                                                                                                                                                                                                                                                             



 notice" when the language of a stipulation would have been more appropriate.                                                                                                                                                                                                                                                                                             But  



 unlike in                                Jordan, the jury was properly instructed on all the elements of the crime.                                                                                                                                                                                                                                                                              



 Moreover,   the   defendant   directly   conceded   the   truth   of   the   fact   contained   in   the  



 erroneous judicial notice instruction.                                                                                                                             As a result, there is no reasonable possibility that                                                                                                                                                     



 this erroneous instruction affected the reliability or trustworthiness of the verdict the jury                                                                                                                                                                                                                                                                              



 reached.     Nor   is   there   any   need   to   engage   in   the   type   of   hypothetical   scenarios  



 disapproved   of   in   Jordan   and   in   Justice   Scalia's   dissent  in  Neder .     Here,   we   can  



 confidently say that there is no reasonable possibility that this erroneous instruction                                                                                                                                                                                                                                                     



 affected the jury's verdict or that it had any effect on the outcome of this trial.                                                                                                                                                                                                                                               



                                                            Accordingly, we reject Alvarado's claim that the taking                                                                                                                                                                                                               of conclusive   



judicial notice in this case requires automatic reversal of his convictions.                                                                                                                                                                                                                                                       



                               The superior court's failure to properly                                                                                                                                  instruct the jury                                                     on the appropriate           

                               uses of first-complaint evidence did not constitute plain error requiring                                                                                                                                                                                                              

                              reversal of Alvarado's convictions                                                                    



                                                            At trial, the State presented testimony from a cousin of S.S. and S.A.                                                                                                                                                                                                                                      This  



                                                                                                                                                                                                                                                                                                                                                                                        20  

 cousin testified that S.S. and S.A. told him that Alvarado made them suck his "wiener."                                                                                                                                                                                                                                                                                                          



                                                                                                                                                                                                                                                                                                                                                                              

 Alvarado's attorney did not request a limiting instruction to explain to the jury that this  



                                                                                                                                                                                                                                                                           

 first-complaint testimony could only be used to corroborate S.S.'s trial testimony, and  



                20            See  Greenway  v.  State,  626  P.2d  1060,  1060-61  (Alaska  1980)  (recognizing  the  



 admissibility of a "first complaint" of sexual assault).  



                                                                                                                                                                                   -  11 -                                                                                                                                                                             2636
  


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

                                                                                                                                                   21  

not as independent evidence of the truth of the matter asserted.                                                                                        As a result, no such                  



instruction was given.               



                               On appeal, Alvarado argues that it was plain error for the trial court to fail                                                                                    



to   sua sponte                   issue an appropriate limiting instruction regarding this first-complaint                                                            



evidence.   A finding of plain error on appeal requires that (1) the error be obvious, (2)                                                                                                        



the error was not the result of a tactical decision, (3) the error affected Alvarado's                                                                                        



substantial rights, and (4) the error prejudiced the fundamental fairness of Alvarado's                                                                                        



           22  

trial.          



                                                                                                                                                                                             

                               The error here was not sufficiently obvious to meet the standard for plain  



                                                                                                                                                                                    

error.              Alaska  Evidence  Rule  105  requires  courts  to  issue  appropriate  limiting  



                                                                                                                                                                                         

instructions when parties request them.  But our cases suggest that, as a general matter,  



                                                                                                                                                                                                 

a court does not have an affirmative obligation to issue a limiting instruction in the  



                                                23  

                                                                                                                                                                                               

absence of a request.                                 The commentary to Evidence Rule 105 indicates that there may  



                                                                                                                                                                                            

be times when a trial judge should give a limiting instruction sua sponte, but only  when  



                                                                                   

failure to do so would lead to plain error.  



                                                                                                                                                                                                 

                               There was no plain error here.   The first-complaint testimony from the  



                                                                                                                                                                                                   

cousin was brief and was not used heavily by the prosecutor, who instead focused on  



                                                                                                                                                                                               

S.S.'s trial testimony and her interview with the Office of Children's Services.  We also  



        21     See Borchgrevink v. State, 239 P.3d 410, 417-18 (Alaska App. 2010), disapproved on  



other grounds in Moreno v. State, 341 P.3d 1134 (Alaska 2015).  



        22     Moreno , 341 P.3d at 1139; Adams v. State, 261 P.3d 758, 773 (Alaska 2011).  



        23     See Jonas v. State, 773 P.2d 960, 968 (Alaska App. 1989) (refusing to find error for  



failure to limit jury's consideration of first-complaint evidence because defendant did not  

                                                                                                                                                                                         

request limiting instruction); Nitz v. State, 720 P.2d 55, 67, 68 n.6  (Alaska App. 1986)  

                                                                                                                                                           

(finding that failure to object to lack of limiting instruction forfeited right to appeal lack of  

                                                                                        

limiting instruction).  



                                                                                             -  12 -                                                                                        2636
  


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

do not find any place where the prosecutor used this evidence improperly -                                                                                                 i.e., as   



anything other than corroboration of the credibility of S.S.'s account at trial.                                                                          



                             Given these circumstances, we conclude that the court's failure to                                                                                   sua  



sponte  provide an appropriate limiting instruction for this evidence did not amount to                                                                                               

plain error requiring reversal of Alvarado's convictions.                                                                24  



                                                                                                                                                               

               The superior court erred in failing to merge the first-degree sexual abuse  

                                                                                                                  

              of a minor charges that arose out of the same conduct  



                                                                                                                                                                               

                             At sentencing, Alvarado argued that Count I (sexually penetrating a child  



                                                                                                                                                                              

when the defendant is the parent of that child) and Count IV (sexually penetrating a child  



                                                                                                                                                                                      

under thirteen years old) should merge because they were both based on the same act of  



                                                                                                                                                                           

fellatio in the same incident.  Alvarado also argued that Count II and Count V should  



                                                                                                                                                                     

merge for the same reason.  The prosecutor objected to this merger, and the trial court  



                                                                                                                                                                             

refused to mergethesecounts, ultimately enteringfour convictionsfor first-degreesexual  



                                                              

abuse of a minor rather than two.  



                                                                                                                                                                            

                             On appeal, the State concedes that the court erred and that the four counts  



                                                                                                                                                                                 

should  have  merged  into  two  because  each  pair  of  counts  simply  represented  two  



                                                                                                                                                                                       

different theories of how a single act could constitute first-degree sexual abuse of a  



              25                                                                           26 

minor.                                                                                                                                                                         

                    This concession is well founded.                                            Accordingly, we direct the superior court  



                                                                                                                                     

to merge the pairs of counts and enter only two convictions.  The trial court shall then  



       24      Cf. Miller v. State, 382 P.3d 1192, 1194 (Alaska App. 2016) (finding that if admitting   



evidence was error, it was harmless due to the relatively brief attention given to the evidence                              

in relation to the rest of the State's evidence).  



       25     See State v. James, 698 P.2d 1161, 1166-67 (Alaska 1985).  



       26     See  Marks  v.  State,  496  P.2d  66,  67-68  (Alaska  1972)  (appellate  court  must  

                                                            

independently assess any concession of error by the State in a criminal case).  

                                                                                                    



                                                                                       -  13 -                                                                                 2636
  


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

resentence Alvarado as appropriate and issue a corrected judgment that reflects the                                                          

merger of these counts.                27  



                                                    

            The presentence report  



                                                                                                                                       

                      At  sentencing,  the  trial  court  modified  Alvarado's  presentence  report,  



                                                                                                                                              

making handwritten changes to certain statements and deleting other statements. But the  



                                                                                                                                       

court failed to order preparation of a clean copy of the presentence report under Alaska  



                                                                                                                                     

Criminal Rule 32.1(f), and the original language of the presentence report is still readable  



                         

in the current version.  



                                                                                                                               

                       On appeal, the State concedes that a clean copy of the amended presentence  



                                                                                                                                           28  

                                                                                                                                  

report must be ordered in accordance with the requirements of the rule.  We agree. 



            Conclusion  



                                                                                                                                            

                      We  REMAND  this  case  to  the  superior  court  for  correction  of  the  



                                                                                                                                             

presentence report, merger of two of the convictions as described above, and a re- 



                                                                                                                        

sentencing.  In all other respects, the judgment of the superior court is AFFIRMED.  



      27    Yearty v. State, 805 P.2d 987, 996 (Alaska App. 1991);  see also Nicklie v. State, 402  



P.3d 424, 425-26 (Alaska App. 2017).  



      28   See Ulak v. State, 238 P.3d 1254, 1258 (Alaska App. 2010) ("[T]he court must delete  



the unproven assertions from the presentence report by marking them out so that they cannot  

                                                                                                                                        

be used for improper reference in the future."); see also Eacker v. State, 2016 WL 756959,  

                                                                                           

at *5 (Alaska App. Feb. 24, 2016) (unpublished); Packard v. State, 2014 WL 2526118, at *5  

                                                                                

(Alaska App. May 21, 2014) (unpublished).  



                                                                    -  14 -                                                              2636
  


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

 Judge MANNHEIMER, concurring.  

                                         



                     I write separately because my analysis of the "judicial notice" problem is  

                                                                                                                                   



different from the analysis contained in the majority opinion.  

                                                                                                 



                     Even though the trial judge and the two attorneys used the phrase "judicial  

                                                                                                                         



notice" to describe what they were doing, the record shows that the attorneys stipulated  

                                                                                                                       



that Alvarado's date of birth was, in fact, the date recited in the indictment.  

                                                                                                                      



                     Because this fact was stipulated, the trial judge did not commit error when  

                                                                                                                              



he instructed the jurors to take the stipulated fact as proved.  For this reason, I conclude  

                                                                                                                        



that there is no need for this Court to subject the judge's action to a "harmlessness"  

                                                                                                              



analysis. A harmlessness analysis is appropriate only when an error has been committed  

                                                                                                                      



- and, in Alvarado's case, there was no error.  

                                                                           



                     Here is my analysis in more detail:  

                                                                  



                     Under  Alaska law,  when  a judge presiding  over  a criminal trial takes  

                                                                                                                             



judicial notice of some fact, it is error for a judge to tell the jurors that they must accept  

                                                                                                                            



this fact as conclusively proved.  See Alaska Evidence Rule 203(c).  

                                                                                                          



                     Indeed, in Alvarado's case, even if the judge had not told the jurors that  

                                                                                                                                



they were required to accept Alvarado's date of birth as conclusively proved, it still  

                                                                                                                            



would have been error for the judge to take judicial notice of Alvarado's date of birth -  

                                                                                                                                  



because the recitation of Alvarado's birth date in the indictment was not an adequate  

                                                                                                                        



legal foundation for taking judicial notice of that birth date.  

                                                                                               



                     As explained in Alaska Evidence Rule 201(b), a fact is not a proper subject  

                                                                                                                           



of judicial notice unless that fact is not subject to reasonable dispute because it is either  

                                                                                                                             



"(1) generally known within this state or (2) capable of accurate and ready determination  

                                                                                                                 



                                                              -  15 -                                                        2636
  


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

                                                                                                                                                                                                                                                                1  

 by resort to sources whose accuracy cannot reasonably be questioned."                                                                                                                                                                                              Under this test,                         



judicial notice of Alvarado's date of birth might conceivably have been justified if the                                                                                                                                                                                                                        



 court had been presented with a copy of Alvarado's birth certificate or some other                                                                                                                                                                                                                    



 convincing official record - but not by the simple recitation of Alvarado's date of birth                                                                                                                                                                                                                 



 in an indictment.                                              



                                                 But even though Alvarado's trial judge used the phrase "judicial notice" to                                                                                                                                                                                         



 describe what he was doing, the record shows that the judge actually obtained the                                                                                                                                                                                                                             



 parties' stipulation regarding Alvarado's date of birth.                                                                                                                                                



                                                 Alvarado was in his mid-thirties when he committed the acts of abuse                                                                                                                                                                                 



 alleged here, and it was plain from his physical appearance alone that he was older than                                                                                                                                                                                                                   



 eighteen   when  he   committed   these   crimes.     In   this   context,   Alvarado's   attorney  



 affirmatively told the trial judge that he had no objection if the judge instructed the jury                                                                                                                                                                                                                



 that the date of birth recited in the indictment was conclusively proved.                                                                                                                                                                                              



                                                 As   a   matter   of   law,   this   was   a   stipulation   - a                                                                                                                        "voluntary   agreement  



                                                                                                                                                                                                                       2  

 between opposing parties concerning some relevant point".                                                                                                                                                                                                                                                     

                                                                                                                                                                                                                             The fact that the judge and  



                                                                                                                                                                                                                                                                                                               

 the parties used the words "judicial notice" to describe what was happening does not  



                                                                                                                                                                                                                                                                              

 alter the proper legal characterization of what the judge and the attorneys did.  



                                                                                                                                                                                                                                                                                                                      

                                                  This Court has held that the correct legal characterization of a pleading is  



                                                                                                                                                                                                                                                                  3  

                                                                                                                                                                                                                                                                                                                

 determined by its subject matter, not by the title chosen by its author.                                                                                                                                                                                                 Similarly, the  



                                                                                                                                                                                                                                                                                                                

 correct characterization of what happened in Alvarado's case is not determined by the  



             1           See  Jones v. State , 215 P.3d 1091, 1099 (Alaska App. 2009).  



             2           Black's Law Dictionary  (8th ed. 2004), "stipulation" (sense 2), p. 1455.  



             3           See  Shorthill  v.  State,  354  P.3d   1093,  1113 (Alaska App. 2015) ("The character of  



 a pleading is determined by its subject matter and not its designation."), quoting Crawford  

 v. State, 337 P.3d 4, 15 (Alaska App. 2014).  



                                                                                                                                                    - 16 -                                                                                                                                               2636
  


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

label that the trial judge and the attorneys used to describe this occurrence, but rather by  

                                                                                                                                 



examining the practical effect of what the judge and the parties said and did.  

                                                                                                                       



                     Here, Alvarado's attorney told the judge that he had no objection if the  

                                                                                                                                



judge told the jurors that Alvarado's correct date of birth was recited in the indictment,  

                                                                                                                    



and that the jurors should take this date as proven.  This was a stipulation regarding  

                                                                                                                      



Alvarado's date of birth - and, because it was a stipulation, the judge could properly  

                                            



tell the jurors that they should consider this date of birth to be conclusively proved.  

                                                                                                                                  



                                                              -  17 -                                                        2636
  

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