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Lanolan Anderson v State of Alaska (6/7/2019) ap-2646

Lanolan Anderson v State of Alaska (6/7/2019) ap-2646

                                                                                 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  



LANOLAN ANDERSON,  

                                                                                                        Court of Appeals No. A-12294  

                                                       Appellant,                                   Trial Court No. 3AN-09-05898 CR  



                                         v.  

                                                                                                                         O P I N I O N  

STATE OF ALASKA,  



                                                       Appellee.                                             No. 2646 - June 7, 2019  



                           Appeal   from  the  Superior  Court,  Third  Judicial  District,  

                                                         

                           Anchorage, Jack W. Smith, Judge.  



                           Appearances: Krista Maciolek, Law Office of Krista Maciolek,  

                                                                                                                       

                            Inc., Palmer, under contract with the Office of Public Advocacy,  

                                                                                                                      

                           Anchorage,  for  the  Appellant.    Michal  Stryszak,  Assistant  

                           Attorney General, Office of Criminal Appeals, Anchorage, and  

                                                                                    

                           Jahna Lindemuth, Attorney General, Juneau, for the Appellee.  

                                                                                    



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

                                                                                    

                           Judges.  



                           Judge WOLLENBERG.  



                            Lanolan Anderson was convicted of three counts of first-degree assault.                                                                                  



The superior court sentenced him to a composite term of 20 years to serve.                                                                     



                            On appeal, Anderson raises several claims. First, Anderson argues that the                                                                       



court erred in failing to suppress his clothing, which the police seized without a warrant.                                                                                         


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

Second, Anderson argues that the court erred in instructing the jury regarding a witness's  

                                                                                                                      



unavailability.   Third, Anderson argues that the court erred in rejecting two of his  

                                                                                                                               



proposed mitigating factors and by giving insufficient weight to a third mitigating factor.  

                                                                                                                                     



Finally, Anderson argues that the court improperly found that Anderson had two prior  

                                                                                                                             



felony  convictions,  rather  than  one,  when  determining  the  applicable  presumptive  

                                                                                                                 



sentencing range.  

                  



                    For thereasonsexplained inthis decision,wereject Anderson'sclaims, and  

                                                                                                                               



we affirm Anderson's convictions and his sentence.  

                                                                  



           Underlying facts and proceedings  

                                            



                    In May 2009, shortly before midnight, Anderson kicked in the front door  

                                                                                                                             



of  a  residence  in  Anchorage,  and  he  and  two  accomplices  (all  three  armed  with  

                                                                                                                             



handguns) entered the residence.  Once inside, Anderson's accomplices shot two of the  

                                                                                                                                



occupants and pistol-whipped a third.  Anderson was also shot during this incident.  

                                                                                                                                  



                    All three occupants of the residence required medical treatment for their  

                                                                                                                             



wounds, and two of them were taken to Providence Medical Center. Because Anderson  

                                                                                                                      



was wounded, he contacted a friend, and this friend also took him to the emergency room  

                                                                                                                            



at Providence.  

                        



                    In response to the report of the shooting, Anchorage Police Officer Jean  

                                                                                                                             



Mills went to Providence, where she expected to meet and interview the victims of the  

                                                                                                                                



alleged home invasion.   Mills arrived at the hospital just as Anderson got out of his  

                                                                                                                               



friend's vehicle, and Mills could see that Anderson was bleeding from a wound to his  

                                                                                                                                



abdomen.  From this, Mills assumed that Anderson was one of the victims.  

                                                                                                       



                    Mills accompanied Anderson into the emergency room and stayed there as  

                                                                                                                                 



the hospital staff treated him.  Mills took photographs of Anderson as the medical staff  

                                                                                                                             



worked on him, and she observed a gunshot wound to Anderson's left side when the staff  

                                                                                                                              



                                                              - 2 -                                                          2646
  


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

cut off his clothing. Anderson at first confirmed that he had been at the residence where                                                                                                                                                                                                                                  



the home invasion occurred, but he later changed his story, telling Mills that he was in                                                                                                                                                                                                                                                   



a grocery store parking lot when he was shot.                                                                                                                                       



                                                    Another officer then informed Mills that Anderson was a possible suspect                                                                                                                                                                                          



in the home invasion.                                                                  After some further questioning, Mills seized all of the clothing                                                                                                                                                           



that the medical staff had removed from Anderson, including his shoes.                                                                                                                                                                                                                     



                                                    The police subsequently compared aphotograph                                                                                                                                               of thesoles of Anderson's                              



shoes   to   photographs   of   shoe   impressions   left   on   the   kicked-in   front   door   of   the  



residence, and they appeared to match.                                                                                                                       At trial, a witness from the crime laboratory                                                                                               



testified to the match between Anderson's shoes and the shoe impressions on the front                                                                                                                                                                                                                                           



door of the residence. Crime lab representatives also testified that there was a blood stain                                                                                                                                                                                                                                     



on one of the shoes and that one of the victims could not be excluded as a source of the                                                                                                                                                                                                                                               



DNA found in the stain.                                                                           



                                                    Anderson and his two accomplices were charged with numerous felonies,                                                                                                                                                                                        



                                                                                                                                                                                                                                                                                             1  

including three counts of first-degree assault (one for each alleged victim).                                                                                                                                                                                                                                                    

                                                                                                                                                                                                                                                                                                  Prior to trial,  



                                                                                                                                                                                                                                                                                                                                        

Anderson filed a motion to suppress, arguing that the police unconstitutionally seized his  



                                                                                                                                                                                                                                                                                                                                       

clothing from the hospital emergency room.  Anderson asked the court to suppress his  



                                                                                                                                                                                                                                                                                                                                       

clothing, as well as photographs of the clothing and the forensic analysis comparing the  



                                                                                                                                                                                                                                                            

soles of his shoes to shoeprints recovered from the crime scene.  



                                                                                                                                                                                                                                                                                                                              

                                                    The parties agreed to forgo an evidentiary hearing and to have the court  



                                                                                                                                                                                                                                                                                                                                       

decide the motion based on Officer Mills's police report. Based on the police report, the  



                                                                                                                                                                                                                                                                                                                               

superior court found that the seizure of Anderson's clothing was justified by the plain  



                                                                                                                                                                           

view exception to the warrant requirement.  



              1           AS 11.41.200(a)(1).  



                                                                                                                                                                -  3 -                                                                                                                                                            2646
  


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

                                       Anderson and his co-defendants were tried together.                                                                                                           At trial, Anderson         



 argued that the alleged victims had actually assaulted him.                                                                                                  



                                        The jury found Anderson guilty of the three first-degree assaults, but the   



jury was unable to reach verdicts on the remaining counts, including counts of first-                                                                                                                                                         



 degree robbery and conspiracy to commit first-degree robbery.                                                                                                                               Ultimately, the State                            



 dismissed the remaining counts against Anderson, and his case proceeded to sentencing                                                                                                                                        



 on the three assault convictions. (The jury could not reach verdicts as to Anderson's co-                                                                                                                                                         



 defendants, and their cases were later resolved without a trial.)                                                                                                   



                                       At Anderson's sentencing, the superior court rejected Anderson's two                                                                                                                                      



 proposed mitigators - that he played a minor role in the offenses, and that his conduct                                                                                                                                              



                                                                                                                                                               2  

 was the result of serious provocation from the victims.                                                                                                                                                                                         

                                                                                                                                                                    But the superior court did find  



                                                                                                                                                                                                                                

 that one of the assaults qualified as among the least serious conduct within the definition  



                                           3 

 of the offense.                                                                                                                                                                                                           

                                               Anderson conceded one aggravating factor - that he had a history of  



                                                                                             4  

                                                                                                 

                                                                 

 aggravated assaultive behavior. 



                                                                                                                                                                                                                                 

                                       Finally, over Anderson's objection, the superior court found that Anderson  



                                                                                                                                                                                                                         

 had two prior felony convictions for purposes of determining the applicable presumptive  



                                                                                                                                                                                                                                  

 sentencing range.  Because the court found that Anderson was a third felony offender,  



                                                                                                                                                                                                                           

 he was subject to a presumptive sentencing range of 15 to 20 years for each first-degree  



                                                       5  

                                                                                                                                                                                                                                                               

 assault conviction.                                        The court sentenced Anderson to a term of 15 years on each count.  



                                                                                                                                                                                                                             

 The  court  imposed  some  of  this  time  consecutively,  giving  Anderson  a  composite  



                                                                                                                                        

 sentence of 20 years, with no time suspended.  



          2         AS 12.55.155(d)(2) and AS 12.55.155(d)(6), respectively.  



          3         AS 12.55.155(d)(9).  



          4         AS 12.55.155(c)(8).  



          5         Former AS 12.55.125(c)(4) (pre-2016 version).  



                                                                                                                        - 4 -                                                                                                                   2646
  


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

                                                     Anderson now appeals.                                        



                            Why   we   affirm   the   superior   court's   denial   of  Anderson's   suppression  

                           motion  



                                                     Prior to trial, Anderson moved to suppress his clothing, arguing that the                                                                                                                                                                                                              



 State had no justification for seizing the clothing without a warrant.                                                                                                                                                                                                      The parties agreed                               



that the superior court could decide this motion based solely on Officer Mills's police                                                                                                                                                                                                                                         



report and the parties' briefing - that is, without holding an evidentiary hearing.                                                                                                                                                                                                                                                    



                                                     Based on the police report, the court concluded that the seizure of the                                                                                                                                                                                                               



evidence was lawful because the evidence was in plain view.                                                                                                                                                                                                  More specifically, the                                                        



court found that (1) Officer Mills was in a place where she was lawfully entitled to be;                                                                                                                                                                                                                                                    



(2)  the discovery of Anderson's clothing was inadvertent, since Anderson arrived at the                                                                                                                                                                                                                                                     



hospital while Mills was waiting for the victims of the home invasion; and (3) the                                                                                                                                                                                                                                                         



                                                                                                                                                                                                                                                                6  

evidentiary relevance of the clothing was immediately apparent.                                                                                                                                                                                                        



                                                                                                                                                                                                                                                                                                                                         

                                                     Before we analyze the superior court's ruling, we must discuss the two  



                                                                                                                         

meanings of the phrase "plain view."  



                                                                                                                                                                                                                                                                                                                                              

                                                     In his leading treatise on search and seizure law, Professor Wayne R.  



                                                                                                                                                                                                                                                                                                                             

LaFave points out that the phrase "plain view" is actually used in two distinct Fourth  



                                                                                        7  

                                                                                              

Amendment contexts. 



             6             See Ahvakana v. State                                                                 , 283 P.3d 1284, 1288 (Alaska App. 2012) (citing Reeves v.   



State, 599 P.2d 727, 738 (Alaska 1979)) (noting the three requirements of the plain view                                                                                                                                                                                                         

doctrine under Alaska law).  



             7              1 Wayne R. LaFave, Search and Seizure  2.2(a), at 597-604 (5th ed. 2012).  



                                                                                                                                                                   -  5 -                                                                                                                                                               2646
  


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

                        The first context, known as the "plain view doctrine," originated in Justice                                           



                                                                                                               8  

Stewart's   plurality   opinion   in   Coolidge   v.   New   Hampshire.                                                                       

                                                                                                                    This  doctrine  "refers  



                                                                                                                                                  

exclusively to the legal justification . . . for the seizure of evidence which has not been  



                                                                                                                                                         

particularly described in a warrant and which is inadvertently spotted in the course of a  



                                                                                                                                        

constitutional search already in progress or in the course of an otherwise justifiable  



                                                                                     9  

                                                                                         

intrusion into a constitutionally protected area." 



                                                                                                                                            

                        But courts also use the phrase "plain view" in a second context: to describe  



                                                                                                                                                

the situation "in which there has been no Fourth Amendment search at all," and where  



                                                                                                                                                        

"an observation is made by a police officer without a prior physical intrusion into a  



                                                         10  

                                                                                                                                                     

constitutionally protected area."                             In this second context, where the observation of the  



                                                                                                                                           

evidence is not the result of a Fourth Amendment intrusion, "the observation is lawful  



                                                                                                                                          

without the necessity of establishing either pre-existing probable cause or the existence  



                                                                                                                                                      11  

                                                                                                                                                            

of a search warrant or one of the traditional exceptions to the warrant requirement." 



                                                                                                                                                

                        As Professor LaFave emphasizes, this second meaning of "plain view"  



                                                                                                                                                  

"involves no intrusion covered by the Fourth Amendment [and] need not meet the three  



      8     Coolidge v. New Hampshire, 403 U.S. 443, 465-71 (1971).  



      9     Scales v. State, 284 A.2d 45, 47 n.1 (Md. App. 1971); see also State v. Spietz                                                       , 531  



P.2d 521, 524 n.11 (Alaska 1975) (recognizing that "the formal 'Plain View' Doctrine, as  

                                                                                                 

announced in  Coolidge, is exclusively a post-intrusion phenomenon") (quoting Brown v.  

State, 292 A.2d 762, 774 (Md. App. 1972)).   



      10    LaFave, Search and Seizure  2.2(a), at 599.  



      11    Id. at 600; see also Spietz, 531 P.2d at 524 n.11 (noting that the "Plain View" Doctrine   



                                                                                                                                   

"does not contemplate the non-intrusion visual observation, such as where evidence is in  

'open  view'  and  therefore  seizable  in  a  'constitutionally non-protected                                                area'")  (quoting  

Brown, 292 A.2d at 774).  



                                                                         -  6 -                                                                   2646
  


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

                                                                                                         12  

requirements   set   out   in   the   Coolidge   plurality   opinion."                                          For   this   reason,   courts  



sometimes describe this second context as "open view" rather than "plain view," to avoid                                                         

any ambiguity.             13  



                                                                                                                                                  

                        When Anderson litigated his suppression motion in the trial court, the State  



                                                                                                                                                            

relied on the Coolidge plain view doctrine to justify the seizure of Anderson's clothing.  



                                                                                                                                                          

But Anderson argued that the Coolidge plain view doctrine did not apply to his case.  



                                                                                                                                             

                        Anderson took the position that Officer Mills was lawfully in his hospital  



                                                                                                                                           

room, and thus the seizure of Anderson's clothing was not the result of a police intrusion  



                                                                                                                                               

into a constitutionally protected space.  Rather, Anderson contended, the only Fourth  



                                                                                                                                                

Amendment violation that the police committed was the seizure of his clothing.  



                                                                                                                                                     

                        In other words, Anderson essentially argued that his case fell within the  



                                                                                                                                               

second category of cases described by Professor LaFave - situations where the police,  



                                                                                                                 

acting without a warrant, seize evidence that is in open view.  



      12    LaFave, Search and Seizure   2.2(a), at 601; see also McGee v. State, 614 P.2d 800,   



806 n.12 (Alaska 1980) ("[I]n non-search situations . . . , the requirement that discovery [of   

the evidence seized] be inadvertent is inapplicable.  The inadvertent discovery requirement   

assures that police will not intentionally expand the permissible scope of an otherwise lawful                            

search.  Where there is no search, there is, a fortiori, no danger that the police will exceed     

their permissible limits.").  



      13    See LaFave, Search and Seizure  2.2(a), at 599 (noting that this type of plain view  

                                                                                                                                         

is perhaps "deserving of a different label so as to avoid confusion of it with that discussed  

                                                                                                                       

in  Coolidge"); State v. Kaaheena, 575 P.2d 462, 466 (Haw. 1978) (distinguishing "[t]he  

'open view' doctrine" from the "visually similar, but legally distinct, 'plain view' doctrine");  

                                                                                                     

Scales, 284 A.2d at 47 n.1 (stating that "[n]eedless confusion is frequently engendered by the  

                                                                                                                                                      

employment in many opinions of the same phrase - 'in plain view' - to describe two  

                                                            

visually similar but legally distinct situations[,]" and that it would be preferable to use "some  

                                              

alternative phraseology such as 'clearly visible,' 'readily observable,' 'open to public gaze,'  

                                                                                                 

etc.").  



                                                                         -  7 -                                                                   2646
  


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

                                     "Open view" seizures are not necessarily lawful.                                                                                           While there may have                             



been no unconstitutional                                              search, the State must still establish that the                                                                                  seizure   of the   



evidence was justified.                                          It is true that the seizure of an article that is in open view does                                                                               



not involve any invasion of privacy, but the seizure does invade the owner's possessory                                                                                                                          



                                                       14  

                                                                                                                                                                                                        

interest in the item.                                         As Professor LaFave explains, "the seizure itself constitutes an  



                                                                                                                                                                                 15  

                                                                                                                                                                                                                         

interference with 'effects' protected by the Fourth Amendment."                                                                                                                        Thus, in the absence  



                                                                                                                                                                                                                                        

of a search warrant, "some recognized ground for [a] warrantless seizure . . . must be  

present."16  



                                                                                                                                                                                                             

                                     Here, as part of the superior court's ruling on Anderson's suppression  



                                                                                                                                                                                                                                     

motion,  the  court  found  that  when  Officer  Mills  seized  Anderson's  clothing,  the  



                                                                                                                                                                                                                                      

evidentiary relevance of this clothing was "immediately apparent."  In this context, the  



                                                                                                                                                                                                                                         

phrase "immediately apparent" refers to situations where there is probable cause to  



                                                                                                                                                     17  

                                                                                                                                                                                                                                      

believe that the object is evidence of criminal activity.                                                                                                   Thus, when Anderson and the  



          14      Horton v. California, 496 U.S. 128, 133-34 (1990).  



          15       LaFave, Search and Seizure  2.2(a), at 604.  



          16      Id. ; see also Soldal v. Cook County                                                      , 506 U.S. 56, 66 (1992) (holding that, "the absence  



of a privacy interest notwithstanding, '[a] seizure of the article . . . would obviously invade                                                                                                                               

the owner's possessory interest'" and implicate the Fourth Amendment) (quoting                                                                                                                                            Horton,  

496 U.S. at 134);  Sheffield v. United States, 111 A.3d 611, 619 (D.C. 2015) ("[T]he Fourth  

Amendment protects against unreasonable seizures of property in which the individual has                                                                                

a possessory interest, even if a privacy or liberty interest is not at issue.");                                                                                                              Jones v. State , 648  

So.2d 669, 675 (Fla. 1994) ("[E]ven if we were to find that Jones' privacy interests were in                                                                                                        

no way compromised, there clearly was a meaningful interference with his constitutionally     

protected possessory rights when his effects were seized without a warrant.").   



          17       United States v. Hamie, 165 F.3d 80, 83 (1st Cir. 1999); see also Arizona v. Hicks,  

                                                                                                                                                                                                 

480 U.S. 321, 326 (1987) (holding that the police must have probable cause to believe an  

item is evidence of a crime or contraband when seizing the item pursuant to the "plain view"  

                                                                                                                                                                       

doctrine); United States v. Davis, 690 F.3d 226, 237 (4th Cir. 2012) (collecting cases stating  

                                                                                                                                                                                                            (continued...)  



                                                                                                                 -  8 -                                                                                                            2646
  


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

 State    litigated   whether    the    evidentiary    relevance    of    Anderson's    clothing    was  



"immediately apparent," they effectively litigated whether the police had probable cause                                                                                                                                                                                                                                                                                                             



to believe that Anderson's clothing was evidence of a crime.                                                                                                                                                                                                                                                  And when the superior                                                    



court found that the relevance of Anderson's clothing was "immediately apparent" to                                                                                                                                                                                                                                                                                                                                  



Officer Mills, the court in essence found that Mills had probable cause to believe that the                                                                                                                                                                                                                                                                                                                      



clothing was evidence of the home invasion and shootings.                                                                                                                                                                                 



                                                                Based on the record before us, we uphold the superior court's finding of                                                                                                                                                                                                                                                                             



probable cause.                                                              Indeed, the record shows that Mills had probable cause to believe that                                                                                                                                                                                                                                                          



Anderson's clothing constituted evidence of a crime even before she and Anderson                                                                                                                                                                                                                                                                                              



entered the hospital.                                                                               



                                                                Mills first saw Anderson's clothing while she was waiting for the victims                                                                                                                                                                                                                                                   



of the shooting to arrive at the hospital.                                                                                                                                                    As Anderson exited his friend's vehicle, Mills                                                                                                                                                          



 saw that Anderson was wounded in the abdomen and that he was bleeding through his                                                                                                                                                                                                                                                                                                                               



clothing. At                                                that time, Mills mistakenly believed that Anderson was a victimof                                                                                                                                                                                                                                                      the home  



invasion. But regardless of whether Anderson was a victim or a suspect, the evidentiary                                                                                                                                                                                                                                                                                  



relevance of his blood-stained clothing was immediately apparent.                                                                                                                                                                                                                                                                 



                                                                 (Mills understandably did not seize Anderson's clothing until after he was                                                                                                                                                                                                                                                                  



being treated in the hospital.                                                                                                           And by then, Mills believed that Anderson was a suspect.)                                                                                                                                                                             



                                                                Because the police had probable cause to believe that Anderson's clothing                                                                                                                                                                                                                                               



was evidence of criminal activity, the open view seizure of Anderson's clothing was                                                                                                                                                                                                                                                                                                                        



lawful.   As the United States Supreme Court has said, it is "well settled" that the seizure                                                                                                                                                                                                                                                                                                 



                 17              (...continued)  



that  "an  item need  not  itself  be  contraband  before  it  has  an  'incriminating  nature,'  but  

                                                                                                                                                                                                                                                                                  

instead, an item need only be evidence of a crime"); McGee , 614 P.2d at 806 ("The Fourth  

                                                                                                                                                                                                                                                                                        

Amendment . . . requires that before seizing an item in plain view, the police must have  

                                                                                                                                                                                                                                                                                                                                               

probable cause to believe that the item seized is a fruit, instrumentality or evidence of a  

                                                                                                                                                                                                                                                                                                                                                                                                                         

crime.").  



                                                                                                                                                                                                     -  9 -                                                                                                                                                                                                2646
  


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

 of   property   in   open   view   "involves   no   invasion   of   privacy   and  is   presumptively  



                                                                                                                                                                       18  

reasonable [if] there is probable cause to associate the property with criminal activity."                                                                                  



                                                                                                                                                                        

In other words, probable cause to believe that an object is evidence of a crime is a  



                                                                                                                                                                   

recognized ground for a warrantless seizure, as long as seizing the object does not  



                                                                                                        19  

                                                                                                            

                                                                                     

require any additional Fourth Amendment intrusion. 



                                                                                                                                                          

                           Other courts have upheld the warrantless seizure of a suspect's clothing  



                                                         20  

                                                             

under similar circumstances. 



       18    Payton v. New York, 445 U.S. 573, 586-87 (1980);                                              see also Texas v. Brown, 460 U.S.  



 730, 748 (1983) (Stevens, J., concurring) ("[I]f an officer has probable cause to believe that   

 a publicly situated item is associated with criminal activity, the interest in possession is       

 outweighed by the risk that such an item might disappear or be put to its intended use before     

 a warrant could be obtained.  The officer may therefore seize it without a warrant.");                                                                      Brown  

v. State, 292 A.2d 762, 774 (Md. App. 1972) (noting that the seizure of evidence when there   

has been no prior intrusion into a constitutionally-protected zone is permissible without   

 further justification), cited in State v. Spietz, 531 P.2d 521, 524 n.11 (Alaska 1975) & id. at  

 525-26 (Erwin, J., concurring).  



       19    See State v. Ricks, 816 P.2d 125, 125 (Alaska 1991) (distinguishing between the  

                      

justified  warrantless  seizure  of  a  jacket  when  police  had  probable  cause  to  believe  it  

                                                                                                                                                                       

 contained contraband and the subsequent search of the jacket, for which the police needed  

 a warrant); cf. Moore v. State, 372 P.3d 922, 926 (Alaska App. 2016) (noting that "[w]hen  

the police have probable cause to believe that an article of luggage contains evidence of a  

                                                                                                                                                                        

 crime, and when there are no exigent circumstances authorizing an immediate warrantless  

 search, the police are authorized to seize the luggage (but not search it) and to carry the  

                                                                                                                                                                    

luggage away for safe-keeping while they apply for a search warrant").  

                                                                                 



       20     Compare Davis, 690 F.3d at 233-38 (upholding the warrantless seizure of clothing  

                                                                                                                                                           

 from the hospital when it was undisputed that the officer was lawfully present in the hospital  

                                                                                                                                  

room and had lawful access to the clothing, and it was apparent that the patient had been shot  

            

in the leg and that his clothing was beneath his bed); Chavis v. Wainwright, 488 F.2d 1077,  

 1078 (5th Cir. 1973) (upholding the seizure of clothing from the foot of the stretcher at the  

                                                                                                                                        

hospital);  Sheffield,  111  A.3d  at  618-21  (upholding  the  seizure  of  clothing  from  the  

                                                                                                                                                                    

 defendant's  hospital  room);  People  v.  Miller,  311  N.E.2d  179,  180  (Ill.  App.  1974)  

                                                                                                                                                   

                                                                                                                                                 (continued...)  



                                                                               -  10 -                                                                           2646
  


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

                            On appeal, Anderson argues a different Fourth Amendment theory for the                                                                            



suppression of his clothing. He now contends that it was unlawful for the police to enter                                                                                 



his hospital room. Thus, Anderson argues, his case falls within the                                                                    first     category of plain        



view cases described by Professor LaFave - cases where the                                                                              Coolidge   plain view   



doctrine   applies   because   the   discovery   of   the   evidence   was   preceded   by   a   Fourth  



Amendment  search.   



                            But   as   we   have   explained,   when   Anderson's   suppression   motion   was  



litigated   in   the   trial   court,   Anderson   did   not   argue   that   the   hospital   room   was  a  



constitutionally protected space, nor did he argue that the police entered that space                                                                                   



       20     (...continued)  



(upholding the seizure of burned clothing remnants that the officer saw being removed at the  

                                                   

hospital from the defendant, who was suspected of arson); Floyd v. State, 330 A.2d 677, 679  

                                                                                                                                                

(Md. App. 1975) (holding that the police could validly seize, as evidence of a crime, bloody  

                                                                                                                                                      

clothing cut from the defendant's body prior to his treatment for gunshot wounds), with  

                                                                                                          

People v. Jordan, 468 N.W.2d 294, 299-300 (Mich. App. 1991) (holding that the seizure of  

a defendant's clothing from the hospital where he was undergoing surgerywas impermissible  

                                                                                                                                                

because  the  clothing  was  "neither  obviously  incriminating  or  contraband");  People  v.  

                                                                                                                                                                

Sanders, 47 N.E.3d 770, 777-78 (N.Y. 2016) (holding that the seizure of the defendant's  

                                                                                                                                                     

clothing from the hospital was not supported by probable cause; the defendant, who had been  

                                                                                              

shot, was dressed in different clothing by the time the officer arrived, and there was no  

                                                                                                                                                                     

evidence that the officer knew that the defendant's wounds were located in an area of the  

                                                                                                                                                                              

body that would be covered by clothing).  



              See also  3 Wayne R. LaFave, Search and Seizure   5.5(c), at 321 (5th ed. 2012)  

                                                                                                     

(noting that "a plain view seizure of personal effects of evidentiary value may also occur, for  

                                                                                                                                                         

example, when those effects are viewed on or near the defendant's person rather than within  

premises or a vehicle in which he has a privacy interest, as where clothing of an injured  

                                                                                                                                                               

person at a hospital is seized because it constitutes evidence of a crime committed on or by  

                                                                                                                                              

that person").  



                                                                                    -  11 -                                                                               2646
  


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

unlawfully.  Under our supreme court's decision in  Moreau v. State, Anderson cannot  



                                                                                                                  21  

use his appeal to raise new theories for suppression of the evidence.                                                  



                                                                                                                              

                      For these reasons, we affirm the superior court's denial of Anderson's  



                                    

suppression motion.  



                                                                                                

           Anderson's claim regarding Jury Instruction No. 9B  



                                                                                                                                     

                      At trial, outside the presence of the jury, one of the alleged victims invoked  



                                                                                                                              

his Fifth Amendment right against self-incrimination.  The State declined to grant this  



                                                                                                                                                   

witness immunity, and thesuperior court ruled that thewitness was unavailable to testify.  



                                                                                                                                           

Over Anderson's objection, the court later instructed the jury that this witness was  



                                                                                                                                            

unavailable  to  testify  and  that  the  jury  should  not  speculate  on  the  reason  for  his  



                                                                                                                              

unavailability, or speculate as to what he would have said had he testified.  



                                                                                                                                            

                      On appeal, Anderson argues that the court's instruction was improper. But  



                                                                                                                                          

Anderson does not meaningfully explain how this instruction was erroneous, nor does  



                                                                                    

he explain how the error, if any, prejudiced him.  



                                                                                                                                         

                      Alaska Evidence Rule 512(a) declares that a claim of privilege is not a  



                                                                                                                                       

"proper subject of comment by judge or counsel," and that no inference may be drawn  



                                                                                                                                    

fromtheexercise of an evidentiary privilege. In addition, Evidence Rule512(c)provides  



                                                                                                                                  

that "[u]pon request, any party against whom the jury might draw an adverse inference  



                                                                                                                                       

from a claim of privilege is entitled to an instruction that no inference may be drawn  



                                                                                                                                     

therefrom."  Thus, it appears that, to the extent the jury might have drawn an adverse  



      21   Moreau v. State , 588 P.2d 275, 280 (Alaska 1978).  



                                                                    -  12 -                                                               2646
  


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

inference from the witness's claim of privilege, the State was entitled to this instruction,                                        



                                                         22  

 even over Anderson's objection.                               



                                                                                                                                                

                        In an unpublished opinion, Hesch v. State, we noted that there is a split  



                                                                                                                                           

among jurisdictions as to whether a neutralizing instruction is required when a witness  



                                                                                                                                                  

invokes  a privilege outside the presence of the jury and, as a result, the jurors are  



                                                                            23  

                                                                                                                                          

unaware that the privilege has been asserted.                                    In Hesch, we declined to resolve whether  



                                                                                                                                        

Alaska Evidence Rule 512(c) entitles a party to the instruction even when the privilege  



                                                                                                                                                  

is invoked outside the presence of the jury because, given the split in authority, the  



                                                                                                                             24  

                                                                                                                    

judge's failure to give such an instruction did not constitute plain error. 



                                                                                                                                            

                        In this case, we likewise conclude that we need not decide the proper  



                                                              

interpretation of Rule 512, for two reasons.  



                                                                                                                                                   

                        First, in his briefing, Anderson does not address - or even mention -  



                                                                                                                                                  

Evidence Rule 512, even though this rule was discussed when the parties addressed this  



                                                                                           

issue in the trial court.  We therefore conclude that Anderson has inadequately briefed  



                                 25  

                                      

this claim of error. 



                                                                                                                                         

                        Second, Anderson has not identified any actual prejudice that he suffered  



                                                                                                                                       

 from  this  instruction,  beyond  the  inability  to  argue  the  type  of  adverse  inference  



                                                                                                                                                

precluded by Rule 512.   We also note that the court separately  instructed the jury  



      22    See Commentary to Alaska Evid. R. 512(c) ("Whether an instruction shall be given  



is left to the sound judgment of counsel for the party against whom the adverse inference may  

                                                                                                              

be drawn.  The instruction is a matter of right, if requested.").  



      23    See Hesch v. State, 2010 WL 1838597, *3 (Alaska App. May 5, 2010) (unpublished).  

                                                                                                                  



      24    Id. at *4.  



      25    See Berezyuk v. State, 282 P.3d 386, 399 (Alaska App. 2012) (holding that when an  

                                                  

opening brief "merely mentions a claim, with no substantive argument of the issue, and with  

                                                                                                                          

no citation to pertinent legal authority, the claim will be deemed waived").  



                                                                       -  13 -                                                                 2646
  


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

(without objection) that it could only consider testimony and exhibits that were actually                                                                                                             



admitted as evidence.                                   



                                 Accordingly, we reject Anderson's challenge to Instruction No. 9B.                                                                                                



                 The proposed mitigators that the superior court rejected                                                                  



                                 At sentencing, Anderson asked the superior court to find either that he                                                                                                           



played a minor role in the assaults or, in the alternative, that he committed the three                                                                                                                     



                                                                                                                                               26  

assaults because of serious provocation from the victims.                                                                                                                                            

                                                                                                                                                     The superior court rejected  



                                                                                                                

both of these proposed statutory mitigators.  



                                                                                                                                                                                                      

                                  On appeal, Anderson points out that the jury was unable to reach verdicts  



                                                                                                                                                                                                                            

on the charges of first-degree robbery and conspiracy to commit first-degree robbery.  



                                                                                                                                                                                                                   

And he notes that his trial attorney argued in closing that there was no robbery or  



                                                                                                                                                                                                               

conspiracy, but in fact the "purported robbery victims assaulted [Anderson]." Fromthis,  



                                                                                                                                                                                                                

Anderson cursorily claims that the superior court could have found either mitigator and  



                                                                                                  

that the court erred in failing to do so.  



                                                                                                                                                                                                       

                                  ButAnderson fails to addressthesuperiorcourt's findings, let aloneexplain  



                                                                                                                                                                                                               

why these findings are erroneous.   The superior court found that "[Anderson's] role  



                                                                                                                                                                                                                    

wasn't minor because, but for the planning, but for the recruiting, but for the kicking in  



                                                                                                                                                                                                                  

the door, but for three people with weapons being present in this residence, none of the  



                                                                                                                                                                                                             

assaults would have occurred." The superior court then emphasized that Anderson "was  



                                                                                                                                                                                                     

involved in the planning.  He kicked in the door.  He was clearly present[;] the victim's  



        26       AS 12.55.155(d)(2) and AS 12.55.155(d)(6), respectively.  



                                                                                                     -  14 -                                                                                                  2646
  


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

blood was on his sweatshirt.                       So, but for his conduct, there wouldn't have been any                                   



                27  

assaults."                                                                                                                                         

                     The superior court therefore rejected the proposed "minor role" mitigator.  



                                                                                                                                            

                      Regarding the "serious provocation" mitigator, the court found that the  



                                                                                                                                       

victims' efforts to defend themselves when their home was invaded by three armed  



                                                                                                                                  

individuals did not constitute "provocation" mitigating Anderson's conduct.  



                                                                                                                            

                      Anderson  has not shown  that the superior  court's factual findings are  



                              28  

                                                                                                                                             

clearly erroneous.                Based on these facts, we conclude that Anderson failed to prove his  



                                                                                            29  

                                                                             

proposed mitigators by clear and convincing evidence. 



                                                                                            

           The proposed mitigator that the superior court found  



                                                                                                                                      

                      Anderson proposed an additional mitigating factor as to one of his assault  



                                                                                      

convictions.  The superior found this mitigator - concluding that the pistol-whipping  



                                                                                                                                  

of one of the victims was among the least serious conduct included within the definition  



                                     30  

                                          

                          

of first-degree assault. 



      27   This sweatshirt was not seized from the hospital but rather from the residence of the                                             



woman who drove Anderson to the hospital.  



      28   See Michael v. State, 115 P.3d 517, 519 (Alaska 2005) (holding that the existence or  



non-existence of a mitigating factor is a mixed question of fact and law; any factual findings  

                                                                                                                         

regarding the nature of the defendant's conduct are reviewed for clear error and whether  

                                                                                      

those facts establish the mitigator is a legal question reviewed de novo).  



      29   See  AS  12.55.155(f)(1)  (mitigating  factors  must  be  established  by  clear  and  

                                                                                                                                           

convincing evidence).  



      30   AS 12.55.155(d)(9).  



                                                                    -  15 -                                                               2646
  


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

                           On appeal, Anderson argues conclusorily that the superior court "declined                                                      



to give [this mitigator] adequate weight" and that Anderson should be resentenced.                                                                                    We  



                                                                                                                                                              31  

conclude that Anderson's briefing is inadequate to preserve this claim of error.                                                                                    



                                                                                                                                                      

              The superior court did not err when it found that Anderson had two prior  

                            

            felony convictions  



                                                                                                                                                                        

                           The maximum sentence for first-degree assault, a class A felony, is 20  



            32  

years.                                                                                                                                                            

                At the time Anderson committed his offenses, the presumptive sentencing range  



                                                                                                                                                                  

for a second felony offender was 10 to 14 years, and the presumptive sentencing range  



                                                                                               33  

                                                                                                                                                                       

for a third felony offender was 15 to 20 years.                                                      Anderson argues on appeal that the  



                                                                                                                                                            

superior court erred when it found he had two prior felony convictions and was therefore  



                                                 

a third felony offender.  



                                                                                                                                                                        

                           The calculation of the number of a defendant's prior felony convictions for  



                                                                                                                                                        

purposes of presumptive sentencing is governed by AS 12.55.145.  Under subsection  



                                                                                                                                                               

(a)(1)(C)  of  that  statute,  two  or  more  felony  convictions  "arising  out  of  a  single,  



                                                                                                                                                        

continuous criminal episode" constitute a single conviction if "there was no substantial  



                                                                                                                                                          

change in the nature of the criminal objective" during that episode, and if the defendant  



                                                                                            

received concurrent sentences for the crimes.  



                                                                                                                                                          

                           At the time Anderson committed the offenses in this case, he had been  



                                                                                                                                                                               

previously convicted (in a single case) of two felonies in the state of Washington:  



       31    See Petersen v. Mutual Life Ins. Co. of New York, 803 P.2d 406, 410 (Alaska 1990)  



                                                                                                                                                                 

("Where a point is not given more than a cursory statement in the argument portion of a brief,  

the point will not be considered on appeal.").  



       32    AS 12.55.125(c).  First-degree assault is a class A felony.  AS 11.41.200(b).  



       33    Former   AS   12.55.125(c)(3)   (2009)   and   former   AS   12.55.125(c)(4)   (2009),  



respectively.  



                                                                                 -  16 -                                                                            2646
  


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

manslaughter and second-degree assault, involving two separate victims. In the superior  

                                                                                                                         



court, Anderson argued that these twoprior convictions constituteda"singleconviction"  

                                                                                                                    



for purposes of AS 12.55.145(a)(1)(C).  

                                                                 



                    Anderson asserted that both convictions arose out of a single "melee" and  

                                                                                                                                



that they should therefore be treated as one prior felony conviction for purposes of  

                                                                                                                                  



presumptive sentencing.  Under AS 12.55.145(d), Anderson had the burden of proving  

                                                                                                                         



this assertion by clear and convincing evidence.  

                                                                              



                    The only evidence on this issue was a Washington State police officer's  

                                                                                                                        



affidavit describing the offenses. This affidavit was part of the presentence report in the  

                                                                                                                                 



present case.  

                       



                    This affidavit showed that both of Anderson's prior felonies occurred close  

                                                                                                                              



in time and were related to each other. During an altercation between Anderson's friend  

                                                                                                                            



and another man, Anderson shot and killed the other man.  Then, when a friend of the  

                                                                                                               



gunshot victim intervened, Anderson pistol-whipped this person.   Anderson pleaded  

                                                                                                                         



guilty to manslaughter for the shooting and to felony assault for the pistol-whipping. He  

                                                                                                                                 



received concurrent sentences.  

                                                 



                    The superior court found that these two prior felony convictions were  

                                                                                                                             



separate  for  purposes  of  presumptive  sentencing.                                The  court  acknowledged  that  

                                                                                                                              



Anderson  received  concurrent  sentences  in  the  Washington  case,  but  the  court  

                                                                                                                            



nonetheless found that, although the convictions likely arose from a single, continuous  

                                                                                                                    



course of conduct, there was a substantial change in the nature of Anderson's criminal  

                                                                                                                        



objective when he pistol-whipped the second man. That is, the superior court found that  

                                                                                                                                



Anderson shot the first victim, but then pistol-whipped the second victim only when that  

                                                                                                                                



person intervened.  The superior court found that the legislature did not intend for this  

                                                                                                    



type of circumstance to be treated as a single conviction with a single criminal objective.  

                                                                                                                                      



                                                              -  17 -                                                         2646
  


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

                                           On reconsideration, the court made further findings.                                                                                                                 The court found that                                   



Anderson's initial objective was to "assault the decedent," but that Anderson did not                                                                                                                                                                                  



appear to contemplate or even consider assaulting the second person until that person                                                                                                                                                                        



lunged at him, and Anderson tried to "fend" him off.                                                                                                                                The court therefore rejected                                        



Anderson's characterization of the incident as a continuing "melee," finding that it                                                                                                                                                                                         



involved "a new victim, a new purpose, and a new act," and that Anderson had put forth                                                                                                                                                                             



no evidence to contradict these findings.                                                                                         



                                          The superior court contrasted Anderson's case with an example given in                                                                                                                                                            



the   legislative   commentary   to   AS   12.55.145.     In   the   commentary,   the   legislature  



explained that "the breaking and entering of a building with the intent to commit theft"                                                                                                                                                                        



(burglary) and the resulting "taking of property in the building" (theft) would constitute                                                                                                                                                          



                                                                                                                                                                                                      34  

                                                                                                                                                                                                                                                                

a single prior conviction for presumptive sentencing purposes.                                                                                                                                                 The legislature noted  



                                                                                                                                                                                                                                                               

that, under those circumstances, the crimes shared a single criminal objective: to obtain  



                             35  

                                                                                                                                                                                                                                                                            

property.                            In contrast, the court in this case noted that the original criminal objective of  



                                                                                                                                                                                                           

Anderson's prior shooting did not extend to the second assault.  



                                                                                                                                                                                                                                                                      

                                           On appeal, Anderson renews his claim that his prior convictions were part  



                                                                                                                                                                                                           

of a "street brawl" with a singular criminal objective to engage in assaultive behavior.  



                                                                                                                                                                                                                                       

But given the evidence presented at sentencing, the trial court did not clearly err in  



                                                                                                                                                                                                                                        

finding that Anderson had failed to prove that he had a singular criminal objective.  



                                                                                                                                                                                                                                                                            

                                          We note that under AS 12.55.127(c)(2), when a defendant is convicted of  



                                                                                                                                                                                                                                                   

two or more counts of homicide in any degree, or of assault in any degree, the defendant  



                                                                                                                                                                                                                                                                                     

must  receive  some  amount  of  consecutive  term  of  imprisonment  for  each  count.  



           34        Commentary to Alaska's Revised Criminal Code, 1978 Senate Journal Supp. No. 47   



(June 12), at 156-59.  



           35        Id.  

                                



                                                                                                                                -  18 -                                                                                                                             2646
  


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

Consequently, if an Alaskan defendant were to be convicted of the same two felonies for                                                                                                                                                                                                                                                 



which Anderson was convicted in the State of Washington, those two felonies could                                                                                                                                                                                                                                           



never qualify as a single prior felony offense under AS 12.55.145(a)(1)(C).                                                                                                                                               



                                                    We note, too, that the Washington Supreme Court has held that crimes                                                                                                                                                                                                



involving separate victims do not qualify as the "same criminal conduct" (and thus, do                                                                                                                                                                                                                                                   



not constitute a single conviction) for purposes of calculating a defendant's applicable                                                                                                                                                                                                                  

sentencing range.                                                    36  



                                                                                                                                                                                                                                                                                                                                              

                                                    Accordingly, we affirm the superior court's ruling that Anderson was a  



                                                

third felony offender.  



                           Conclusion  



                                                                                                                                                                                                        

                                                    The judgment of the superior court is AFFIRMED.  



             36           State v. Dunaway, 743 P.2d 1237, 1241 (Wash. 1987) (en banc).                                                                                                                                                                                      The Dunaway  rule  



has now been statutorily codified.                                                                                                     See  RCW 9.94A.589(1)(a);                                                                                    State v. Yusuf                                        , 2018 WL   

 1168724, at *7 (Wash. App. Mar. 5, 2018) (unpublished) (Spearman, J., concurring).  



                                                                                                                                                              -  19 -                                                                                                                                                             2646
  

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