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Sivertsen v. Alaska (6/11/99) sp-5132

     Notice:  This opinion is subject to correction before publication in
the Pacific Reporter.  Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.


ROD A. SIVERTSEN,             )
                              )    Supreme Court No. S-8832
             Petitioner,      )
                              )    Superior Court No.
     v.                       )    1JU-S96-1165 CR
STATE OF ALASKA,              )    O P I N I O N
             Respondent.      )    [No. 5132 - June 11, 1999]

          Petition for Hearing from the Court of Appeals
of the State of Alaska, on appeal from the Superior Court of the
State of Alaska, First Judicial District, Juneau, Larry R. Weeks,

          Appearances: Phillip M. Pallenberg, Assistant
Public Defender, Juneau, and Barbara K. Brink, Public Defender,
Anchorage, for Petitioner.  John A. Scukanec, Assistant Attorney
General, Anchorage, and Bruce M. Botelho, Attorney General, Juneau,
for Respondent.

          Before:  Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.  

          PER CURIAM
          EASTAUGH, Justice, concurring.

          This petition for hearing requires us to decide whether
the prosecution impermissibly shifts the burden of proving its case
beyond a reasonable doubt by arguing to the jury that it can
"assume"that the defendant intended his acts.  Although we
conclude that the prosecutor's statement was objectionable, we also
conclude that any error in allowing the statement was harmless
given the court's instructions and the weight of evidence against
the defendant.
          A jury convicted Rod Sivertsen of second-degree burglary
and theft.  Police observed Sivertsen through a window in the
Merchant's Wharf, a Juneau shopping and office complex, at two in
the morning.  When he could not use a door to exit, Sivertsen broke
a window and climbed out with a hammer in his hand.  When they
searched Sivertsen, police found on his person a putty knife and
$600, the amount of money missing from Cruise Line Agencies of
Alaska, one of the businesses in the building.
          During closing argument, the prosecutor stated that the
jury could assume from Sivertsen's actions that Sivertsen intended
to commit a burglary:
               Now [I] have to prove that he did so with
the intent to commit a crime.  The court read you the instruction
on what's called state of mind and I'm not going to go over all the
instructions.  All I want you to do is read the packet, apply the
law.  I'm not going to read the whole intent state of mind
instruction but state of mind may be proven by circumstantial
evidence.  (indiscernible) go on.  There can be no eyewitnesses to
the state of mind with which acts are done or omitted, but what a
defendant does or fails to do may indicate the defendant's state of

               The point is we don't have some way of
getting in somebody's head, but what we all do, we usually are
assumed to intend to do.  I intended to hit the hammer and hit the
desk there.  You can assume I intended to do that, you saw me do
it.  He intended to burglarize Cruise Line Agencies of Alaska, he
kicked the door.

The superior court overruled Sivertsen's objection to this argument
and denied his motion for a mistrial.
          Sivertsen appealed, contending among other things that
the prosecutor's comment violated the rule of Sandstrom v. Montana,
[Fn. 1] in which the United States Supreme Court held that it was
a violation of due process to instruct a jury that the law presumes
that a person intends the ordinary consequences of voluntary acts.
[Fn. 2] The court of appeals affirmed Sivertsen's conviction,
holding that the prosecutor's comment simply "informed the jury
that they were permitted to infer Sivertsen's intent from his
conduct."  Slip Op. at 10.   The court of appeals also noted that
the superior court gave an appropriate instruction that confirmed
that the jury was permitted to draw inferences from Sivertsen's
conduct.  Slip Op. at 10-11.
          We believe the prosecutor's message in this case could be
understood to have a meaning similar to the instruction found
unconstitutional in Sandstrom.  The instruction at issue in
Sandstrom informed the jury that "[t]he law presumes that a person
intends the ordinary consequences of his voluntary acts."[Fn. 3] 
The Supreme Court, noting that "presume"is commonly defined as "to
suppose to be true without proof,"[Fn. 4] held that this language
created an unconstitutional risk that the jury would understand the
instruction to be either a burden-shifting presumption or a
conclusive presumption. [Fn. 5]  In other words, the prosecution
bears the burden of proving every element of the crime charged,
including intent in the case of a specific-intent crime.  To say
that the law "presumes"intent from conduct might incorrectly
indicate to a jury that the defense bears the burden of disproving
intent once the conduct is shown.
          Although the prosecutor in this case used the words "you
can assume"rather than "the law presumes,"the two are
functionally equivalent in this context.  The words "presume"and
"assume"are not identical, but dictionaries routinely use "assume"
to describe the definition of "presume."[Fn. 6]  Bryan Garner in
A Dictionary of Modern Legal Usage [Fn. 7] lists "presume"and
"assume"together but notes that the two can have different legal
meanings depending on their usage:
          The connotative distinction between these
words is that presumptions are more strongly inferential and more
probably authoritative than mere assumptions which are usually more
hypothetical. . . .

          Presumptions lead to decisions, whereas
          assumptions do not. . . .  The phrase we
assume, without deciding, is a favorite of common-law courts.[ [Fn.

Here, the prosecutor's purpose in using "assume"was not to ask the
jurors merely to hypothesize, nor was it to suggest that they
refrain from actually reaching a decision based on the assumption. 
On the contrary, the phrase "you can assume,"when addressed to a
jury about to deliberate and reach a verdict, sounds more
authoritative than hypothetical.
          Criminal law is an area in which the precise use of
language is particularly important.   For example, in dealing with
presumptions against the accused in criminal cases, the Alaska
Rules of Evidence go to extraordinary lengths to command avoidance
of the word "presumption"and to prescribe, instead, use of the
word "infer."[Fn. 9]  We agree with Sivertsen that telling jurors
"you can assume"-- the phrase at issue in the prosecutor's closing
argument -- is perilously close to telling them "the law presumes"
-- the offensive phrase in Sandstrom.  And it does not seem
accurate to say, as the court of appeals did, that the argument
"mirrored"the superior court's instruction.  Slip Op. at 11.  The
instruction -- unquestionably a correct statement of the law --
makes absolutely no reference to assumptions or even to inferences.
[Fn. 10]  Indeed, this standard instruction was crafted to
eliminate all such references for the express purpose of
eliminating Sandstrom problems.
          On the other hand, one cannot expect a lawyer's oral
summation to reach the same level of linguistic precision as
written instructions from the court.  And fine shades of meaning in
oral arguments are apt to be lost, whereas critical distinctions
are more likely to be conveyed by written jury instructions, which
are both read and given to the jury for reference.  Moreover, the
prosecutor's argument cannot reasonably be read as a call to the
jury to find that intent existed without the required proof of that
intent.  Instead, he argued that intent may be proven by
circumstantial evidence and that a defendant's acts or omissions
may indicate state of mind.  Thus, the mistake was in using forms
of the word "assume"rather than forms of the word "infer."  But
the example that the prosecutor gave conveyed the sense of "infer"
rather than "assume": "I intended to hit the hammer and hit the
desk there.  You can assume I intended to do that, you saw me do
          The State bears the burden of proving every element of
the crime charged beyond a reasonable doubt.  In the case of a
specific-intent crime, the jury is permitted to infer intent from
circumstantial evidence such as conduct, but it is still the
function of the jury to decide whether the prosecution has
ultimately met its burden of proof.  This element of active
decision making is precisely what distinguishes an inference from
an assumption or presumption. [Fn. 11]  By informing the jury that
it can "assume"or "presume"intent from evidence of conduct, the
prosecutor creates a risk that the jurors will think that the
evidence of conduct is automatically sufficient to prove intent,
either conclusively or presumptively, without the jury actually
making that determination.
          In the present case there is no reasonable possibility
that this risk contributed to the guilty verdict.  Although the
prosecutor used the word "assume"rather than the word "infer,"in
context it was clear that he was asking the jury to find intent by
inference from the defendant's actions.  Furthermore, the court's
instructions were clear on this point.  And, as the court of
appeals observed, the evidence against the defendant was strong. 
Slip Op. at 4.  Sivertsen does not dispute this observation.  We
therefore conclude that the trial court's failure to sustain the
objection to the prosecutor's argument was harmless error under
Alaska Criminal Rule 47(a).
          Because we agree with Sivertsen that "assume"is more
like the prohibited "presume"than it is like the permissible
"infer", we GRANT the petition for hearing and DISAPPROVE of the
court of appeals's holding that the prosecutor's argument did not
constitute error but conclude that this error was harmless.
EASTAUGH, Justice, concurring.  
          I agree with the result the court reaches today, because
it has the effect of affirming Sivertsen's judgment and conviction. 
But I disagree with the court's analysis.  
          The court reasons that the words "you can assume"are
"functionally equivalent in this context"to the words "the law
presumes."[Fn. 1]  But the authorities the court discusses
distinguish between "assume"and "presume,"and assign them
different meanings and connotations.  I agree that a prosecutor who
asks a jury to "presume"facts relevant to guilt invites error, and
that asking a jury to "assume"a relevant fact may be "perilously
close"to inviting error. [Fn. 2]  But I think that a prosecutor's
use of "assume"in a manner consistent with its proper meaning is
not error.  
          Prosecutors must take care to avoid arguments which
infringe, even unintentionally, on defendants' rights.  A
prosecutor's comments must be assessed contextually when their
propriety is attacked.  Absent a contextual implication that the
defendant must produce evidence of innocence, I would not find
error when a jury is asked to "assume"something.  In context, the
usage in this case was not inappropriate.  The court correctly
concludes that the prosecutor's words were harmless. [Fn. 3]  I
would go further: it was not error to utter them.


Footnote 1:

     442 U.S. 510 (1979).

Footnote 2:

     See id. at 523.

Footnote 3:

     Id. at 515.

Footnote 4:

     Id. at 517 (citing Webster's New Collegiate Dictionary 911

Footnote 5:

     See Sandstrom, 442 U.S. at 524.

Footnote 6:

     See, e.g., New Shorter Oxford English Dictionary, 133, 2345
(defining "assume"as "[t]ake for granted; take as being true, for
the sake of argument or action; suppose"and "presume"as "assume
to be true or (law) proved in the absence of evidence to the
contrary"); Petition at 12 (citing Webster's New Collegiate
Dictionary (2d College Ed.)) (noting that "assume"means "to take
for granted: suppose [something] to be a fact"and "presume"means
"to take for granted: accepted as true lacking proof to the
contrary; assume, suppose").

Footnote 7:

     Bryan A. Garner, A Dictionary of Modern Legal Usage (2d ed.

Footnote 8:

     Id. at 84.

Footnote 9:

     See Alaska R. Evid. 303(a):

          [I]f the accused fails to offer evidence to
rebut or meet the presumption, the court must instruct the jury
that it may, but is not required to, infer the existence of the
presumed fact from the proved fact, but no mention of the word
"presumption"shall be made to the jury.

Footnote 10:

     The state-of-mind instruction given by Judge Weeks was
identical to the "Proof of Intent - Circumstantial Evidence"
instruction recommended by Alaska Pattern Jury Instruction 1.44

               State of mind may be proved by
circumstantial evidence.  It rarely can be established by any other
means.  While witnesses may see and hear and thus be able to give
direct evidence of what a defendant does or fails to do, there can
be no eyewitness to the state of mind with which the acts were done
or omitted.  But what a defendant does or fails to do may indicate
the defendant's state of mind.

               In determining issues of state of mind,
          the jury is entitled to consider any
statements made or acts done or omitted by the accused, and all
facts and circumstances in evidence which may aid determination of
state of mind.

(Emphasis added.)

Footnote 11:

     For example, Black's Law Dictionary defines "inference"as
"[a] conclusion reached by considering other facts and deducing a
logical consequence from them."  In contrast, Black's defines
"presumption"as "[a] factual or legal assumption drawn from the
existence of another fact or group of facts,"and "assumption"as
"[a] fact or statement taken for granted; a supposition."  Id.
(pocket ed. 1996).

                    FOOTNOTES   (Concurrence)

Footnote 1:

     Op. at 4.  

Footnote 2:

     Op. at 5. 

Footnote 3:

     See Op. at 8.