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Douglas v. State (12/22/2006) ap-2078

Douglas v. State (12/22/2006) ap-2078

     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

             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878


) Court of Appeals No. A-8799
Appellant, ) Trial Court No. 1KE-02-990 CR
v. )
) O P I N I O N
Appellee. ) No. 2078 December 22, 2006
          Appeal  from the Superior Court,  First  Judi
          cial  District,  Ketchikan, Larry  R.  Weeks,

          Appearances:   Paul Malin,  Assistant  Public
          Defender,   and   Quinlan   Steiner,   Public
          Defender, Anchorage, for the Appellant.  John
          A.   Scukanec,  Assistant  Attorney  General,
          Office  of Special Prosecutions and  Appeals,
          Anchorage,  and  David W.  M rquez,  Attorney
          General, Juneau, for the Appellee.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Stewart, Judges.

          STEWART, Judge.

          Ty  S.  Douglas was convicted of two counts  of  first-
degree  sexual assault and two counts of fourth-degree  assault.1
Douglas  argues that several of the courts trial rulings  require
reversing his convictions.  But Douglas has not convinced us that
          any of the rulings he attacks constitute reversible error.
          Douglas next argues that the prosecutors final argument
created plain error.  But we are not convinced that the potential
error  was  obvious  to  a  competent  lawyer  or  judge  without
objection  or that, if error, it was so substantially prejudicial
that  failing  to  correct it would perpetuate a  miscarriage  of
          Douglas argues that his composite 45-year term with  15
years suspended was imposed by the superior court in violation of
Blakely  v. Washington.2  We agree.  Accordingly, we must  remand
the  case  to  the  superior  court for  reconsideration  of  the
aggravating factors in compliance with Blakely.

          Background facts and proceedings
          Douglas    had    a   stormy   and   on-again/off-again
boyfriend/girlfriend relationship with K.I.   K.I. had an alcohol
problem that led to a felony assault conviction for driving while
intoxicated and causing an accident that injured another  person.
(K.I.  was  on probation for this offense at the time of  trial.)
Douglas and K.I. first met in Seattle in 2001.  K.I. returned  to
Ketchikan in December 2001, and Douglas followed soon thereafter.
          In  early  2002,  K.I.  obtained  a  domestic  violence
restraining order against Douglas.
          In March 2002, Douglas reported to the Ketchikan police
that  K.I. was involved in a sexual relationship with a Ketchikan
police  officer.  Douglas claimed that K.I. and the  officer  had
called  Douglas and made him listen while they had sex, and  that
the  officer  had made threatening phone calls  to  Douglas.   An
investigation revealed no evidence to support these  allegations,
and Douglas was ultimately convicted of making a false report.
          About  two weeks later, Douglas went to K.I.s apartment
and  assaulted her. He hit and choked her, dragged her  into  the
bedroom,  and  demanded to have sex with  her.   She  managed  to
escape  to  a  neighbors apartment and call  the  police.   As  a
result, Douglas was convicted of fourth-degree assault.
          On June 26, 2002, K.I. went to visit a neighbor, Walter
Hinman, to show him her new cell phone.  While she was there, the
cell  phone rang, but K.I. did not know how to answer it  so  she
left it on the table and continued to talk with Hinman.  K.I. did
not   know  that  it  was  Douglas  who  was  calling,  and  K.I.
unknowingly answered the phone so that Douglas could overhear the
conversation  she was having with Hinman.  When she  returned  to
her  apartment a few minutes later, Douglas was there waiting for
her.  Douglas accused her of having sex with Hinman.
          Douglas  threw  K.I. down on her couch and  ripped  her
pants   off.    K.I.  testified  that  Douglas  then  ferociously
penetrated her vagina with his hands and fingers.  She  told  him
to  stop,  and that he was hurting her, but he told her she  just
fucked  everybody in town and asked How does that [feel]? How  do
you like this? Is this better ... ?  He also hit her in the face,
causing blood to splatter onto the couch and wall.  Douglas  left
the apartment, but K.I. did not immediately report the assault to
the police.
          The  next  day,  June  27, K.I. was  in  her  apartment
visiting with another neighbor, Zeneida Galeon.  Douglas arrived,
          and watched as K.I. allowed Galeon to use K.I.s car to drive to a
local  store.  When Galeon left, Douglas argued with  K.I.  about
loaning  the car to neighbors and then assaulted her  again.   He
struck her in the head and face with his fists, threw her on  the
floor,  and penetrated her vagina with his penis.  She  tried  to
fight  back.  He attempted to penetrate her anus with his fingers
and  penis.   He then again violently penetrated her vagina,  all
the  while calling her a slut and a whore, and telling  her  that
you  fuck  everyone  in town.  He grabbed her  by  the  hair  and
pounded her head into the floor, pulling large clumps of her hair
out.  K.I. pretended to be unconscious, but he continued to punch
and kick her.
          While Douglas was still there, Galeon returned from the
store  and knocked on the door.  K.I. opened the door, and Galeon
testified  that  K.I.  was  bloody,  naked,  [and  covered  with]
bruises, with clumps of hair on her shoulders.  Galeon called the
police.   Florence Galeon, Zeneidas daughter, heard  yelling  and
came upstairs to K.I.s apartment and saw Douglas running down the
          When  the  police  arrived  at  K.I.s  apartment,  K.I.
reported  that she had been raped.  She was taken to the hospital
and  treated by Dr. Ernest Meloche.  His examination and that  of
the  nurse  revealed  tears and lacerations  around  K.I.s  anus,
swelling and bruising around her anal and vaginal areas, burns on
the  backs of her legs and buttocks, and blood on her scalp where
clumps  of  hair  had been torn out.  Dr. Meloche testified  that
K.I. had the most traumatized perineum [he] had seen in 25 years.
The  doctor also concluded, based on blood and fecal matter found
on  K.I.s  labia and thighs, that something had first  penetrated
her anus and then reentered her vagina.  Tests later conducted by
the  state  crime lab found DNA samples from K.I.s vaginal  swabs
that  matched  Douglass  DNA profile, and  also  found  blood  on
Douglass  clothing  that was consistent with blood  samples  from
both Douglas and K.I.
          The police found Douglas a short time after the assault
at  a  local  motel. When a police officer knocked on  his  door,
Douglas  jumped from his second-floor window, but another  police
officer  caught  Douglas  and arrested  him.   A  police  officer
testified that Douglas appeared to have been drinking and that he
had scratches and bruises on his neck, shoulders, back, and upper
arms, and an injury to his right thumb.
          At trial, Douglas was convicted of two counts of first-
degree  sexual  assault and two counts of fourth-degree  assault.
Superior  Court  Judge Larry Weeks imposed the composite  30-year
term to serve.   Douglas appeals.

          Douglass  attack  on  the superior  courts  evidentiary
          Douglas   argues   that  Judge   Weeks   violated   his
constitutional rights to due process, to compulsory process,  and
to  present his defense in the fullest possible manner when Judge
Weeks  prohibited  Douglas  from  presenting  evidence  of  noise
complaints  from  K.I.s neighbors, telephone calls  wherein  K.I.
allegedly  pretended  to  have sex with another  man,  and  K.I.s
alleged false accusation that a Ketchikan police officer sexually
assaulted her.
          Before  opening  statements,  Judge  Weeks  ruled  that
Douglas  could  not  inquire  about K.I.s  prior  sexual  conduct
without prior application to the court.  Judge Weeks also advised
the  parties  that they could not refer to allegations  of  prior
false  reports of sexual assault by the victim without  complying
with the applicable case law.
          Before    cross-examining   K.I.,   Douglas   requested
permission  to  ask K.I. about phone calls and conversations  she
had  with Douglas in which she purportedly  pretended to have sex
with another man and falsely claimed that she had been raped by a
Ketchikan  police  officer.  Douglas maintained  that  this  game
playing  [that was] going on back and forth between  the  parties
... helped [lead] up to the assault and false report charges.  He
argued  that  the  material was relevant to the  credibility  and
veracity  of  the  witness  and  that  it  show[ed]  the   entire
relationship between these two parties, going back and forth  and
back  and  forth, with false allegations and fighting  with  each
other.  He argued that the rape accusation was an attempt to  get
sympathy,  to  keep him from leaving.  He also  argued  that  the
evidence helped rebut the prosecutions portrayal of Douglas as  a
stalker,  and  showed  that K.I. invited  many  of  the  contacts
          The  prosecutor responded that K.I. denied making these
statements, that the information was not relevant, and that  this
evidence  did  not  meet  the  standards  established   for   the
admissibility of false reports of sexual assault.3
          Judge Weeks ruled that Douglas could cross-examine K.I.
generally  about the phone calls and conversations to  illustrate
the  dynamics of the relationship, but prohibited him from asking
her specifically about pretending to have sex with another man or
the alleged false report of sexual assault.
          Douglas  also sought permission to admit evidence  that
K.I.s  neighbors  submitted noise complaints  about  her  between
August  and  October, 2002 (after the sexual assaults charged  in
the  indictment took place).  Douglas asserted that this evidence
was  relevant  in  several ways:  (1) it was  relevant  to  K.I.s
testimony  that she had received more noise complaints  than  she
described  in  her testimony; (2) it rebutted the inference  that
everything  that  had happened was [because of] Ty  Douglas,  and
that  the  only  reason she had problems was Ty Douglas;  (3)  it
rebutted the prosecutions suggestion that the case was about good
neighbor[s], and tended to show K.I. was a bad neighbor;  (4)  it
was  relevant to K.I.s credibility and veracity; and (5)  it  was
[p]roof  of these constant problems and her state of mind  during
that  whole period of time, that it didnt change before or after,
it was all the same thing.
          Judge  Weeks  also  ruled that evidence  of  the  noise
complaints from K.I.s neighbors was irrelevant, and to the extent
that  youre talking about contradicting things that [K.I.]  said,
that  its  collateral. And to the extent that theres a  balancing
test  involved,  I believe that the prejudice outweighs  ...  the
probative [value].
          Douglas asserts that his constitutional rights  to  due
          process and compulsory process were violated by Judge Weekss
rulings.  He notes that the right to present evidence is a  right
guaranteed  by the Fifth and Fourteenth Amendments of the  United
States  Constitution  and  article I, section  7  of  the  Alaska
          Douglas  maintains that K.I.s veracity and  credibility
was  the  critical issue at trial. Thus the evidence that Douglas
proposed  about  K.I.s  conduct before,  during,  and  after  the
offense was critically important to his defense.  He argues  that
K.I.s  credibility was central to the prosecutions case and  that
without the excluded evidence he was unable to fully present  his
own  theory in defense.  For example, he presented evidence  that
there  was no sperm on K.I.s oral or rectal swabs, that the sperm
found  on  K.I.s vaginal swab could easily [be] in excess  of  10
days  old  and thus could have resulted from consensual sex,  and
that Douglass penile swab did not contain any DNA foreign to  Mr.
Douglas.   He  theorized that K.I. could have had consensual  sex
and then been physically assaulted afterwards.  Whether there was
in  fact  a  sexual  assault, Douglas argues,  depends  on  K.I.s
credibility,   and  the  excluded  evidence  was   necessary   to
thoroughly investigate the matter.
            Even  if Douglass assertions are true, it is  unclear
how  Judge  Weeks  abused  his  discretion  in  determining  what
evidence  was relevant, collateral, or overly prejudicial.   This
court  has  recognized that the admission of all  evidence,  even
evidence  introduced to show a witnesss bias  or  motivation,  is
subject to the balancing test enumerated in Alaska Evidence  Rule
403.5   The rule allows the exclusion of evidence, regardless  of
its  relevance,  when its probative value is  outweighed  by  the
danger   of  unfair  prejudice,  confusion  of  the  issues,   or
misleading  the  jury.6  Here, it is reasonable to  conclude,  as
Judge  Weeks  did,  that the evidence Douglas sought  to  present
would have unnecessarily shifted the focus of the trial from  the
events  surrounding  the charged offenses toward  incidents  that
have limited probative value.
          Judge Weeks allowed Douglas to question K.I. about  the
phone  calls  generally,  providing Douglas  the  opportunity  to
explore the dynamics of their relationship. It is true that in  a
sexual  assault  case information about the relationship  between
the  victim  and the accused is often material, but the  purposes
that Douglas asserts for introducing the specifics of these phone
calls, including a demonstration of the game playing and back and
forth nature of the relationship, were served by other admissible
and less prejudicial evidence.  The additional probative value of
this  particular evidence, then, was considerably  outweighed  by
its prejudicial effect.  It was therefore reasonable, and not  an
abuse  of discretion, for Judge Weeks to exclude evidence of  the
alleged  phone call where K.I. purported to have sex with another
          Douglass  argument  regarding the  alleged  false  rape
report  is  particularly  unpersuasive.   Douglas  presented   no
evidence,  except  for his own allegation,  that  K.I.  had  ever
claimed  to  have  been  raped  by a  Ketchikan  police  officer.
Furthermore, Douglass attorney informed Judge Weeks that she  was
not  going  to present any evidence (besides Douglass  claim)  on
          that issue.  Shortly thereafter, when the prosecutor was
reviewing  the  various  rulings  from  the  court,  Judge  Weeks
reminded the prosecutor that Douglass attorney said she  was  not
going  to  inquire into K.I.s sexual conduct.  Douglass  attorney
did   not   contradict  Judge  Weeks.   And  almost   immediately
thereafter, Judge Weeks asked Douglass attorney if there were any
other  issues  on  cross examination and the attorney  responded:
No, not at this point.  We conclude that Douglas did not preserve
the  issue   regarding K.I.s purported claim that  she  had  been
sexually assaulted by a  member of the Ketchikan police.
          We  also reject Douglass argument that the exclusion of
the  noise  complaints significantly hindered his defense.  While
the  complaints might help depict K.I. as a hard-drinking,  noisy
neighbor  who manipulated Douglas as much as he manipulated  her,
other admissible evidence already established those points.   For
example,  K.I.  admitted that she had received noise  complaints,
that  she had a drinking problem, that she and Douglas frequently
had consensual sex, and that she had paid for Douglas to fly back
to Ketchikan from New Orleans after the first assault conviction.
          We   conclude  that  Judge  Weeks  did  not  abuse  his
discretion by excluding the evidence regarding noise complaints.

          Douglass attack on the prosecutors final argument
          Douglas  argues  that  the prosecutors  final  argument
violated   his   constitutional  rights  because  it   improperly
described the presumption of innocence and commented on his right
to remain silent.
          The  prosecutor  started the rebuttal  portion  of  his
closing argument as follows:
          It  is true that Mr. Douglas formerly enjoyed
          Im  sorry,  may  it  please  the  court,  Ms.
          Swanson,  ladies and gentlemen of  the  jury.
          It  is true that Mr. Douglas formerly enjoyed
          the presumption of innocence, which is to say
          hes   innocent  until  proven  guilty,  until
          proven  guilty. Proven guilty  by  the  sworn
          statements  of  witnesses and  by  the  other
          evidence that youve seen.
Douglas  did  not  object.  Because he  did  not  object  to  the
prosecutors  statements at trial, he must now show plain  error.7
To establish plain error, Douglas must show that the error is one
that  is  (1)  so obvious that it must have been  apparent  to  a
competent  judge and a competent lawyer even without an objection
and  (2) so substantially prejudicial that failing to correct  it
on appeal would perpetuate a miscarriage of justice.8
          The prosecutors statements regarding the presumption of
innocence  were incorrect.  The presumption of innocence  remains
in  force throughout the presentation of evidence and the closing
arguments, and it governs the jurys deliberations.9
          However,  in Douglass case, the jury was instructed  as
          The  distinguishing features  of  a  criminal
          trial  are what are known in the language  of
          the  law as the presumption of innocence  and
          the  burden  of  proof  beyond  a  reasonable
          doubt.   The law presumes a defendant  to  be
          innocent   of  crime.   Thus,  a   defendant,
          although  accused, begins the  trial  with  a
          clean   slate   with  no  evidence   favoring
          conviction.   The  presumption  of  innocence
          alone  is  sufficient to acquit a  defendant,
          unless  you are satisfied beyond a reasonable
          doubt  of the defendants guilt, after careful
          and   impartial  consideration  of  all   the
          evidence in the case.
          In  Brown  v. State,10  the Alaska Supreme  Court  held
that  comments similar to the prosecutors did not amount to plain
error  because  the  jury instructions made  it  clear  that  the
presumption of innocence remained in effect throughout the  trial
and jury deliberations.11
          Although the prosecutors statement in Douglass case was
wrong,  the  jury  was  given proper instructions  regarding  the
presumption  of  innocence.  From our review of  the  record,  we
conclude   that  the  prosecutors  brief  comment  was   not   so
substantially  prejudicial  that  failing  to  reverse   Douglass
conviction  creates a miscarriage of  justice.            Douglas
also  argues that the prosecutor improperly commented on Douglass
right to remain silent.
          During   trial,  the  State  introduced   evidence   of
statements Douglas made (a) at the time of his arrest, (b) during
the omnibus hearing in a separate witness tampering case, and (c)
at  a  pretrial  hearing in the present case.   Douglas  did  not
object  to this evidence.  At trial, when discussing one  of  the
tapes  of  prior  proceedings, Judge Weeks warned the  prosecutor
that  he  should not comment on Douglass right to remain  silent.
The court said:
          Youre  not at any time to comment in any  way
          on  [Douglas] not responding to questions, or
          his right to counsel, or the Fifth Amendment.
          Youre not at any time to say anything about [
          ]  those things that are on the tape.  To the
          extent that theyre played, the jury may  hear
          those.   Youre not  its not to  come  out  of
          [your]  mouth at any time about any of  those
          kinds of rights.

However,  during  closing  argument,  the  prosecutor  made   the
following  comment to the jury while referring to the  recordings
and evidence of Douglass statements:
          [I]ts  interesting, this is November  of  02,
          hes  had  months  now,  hes  had  months   to
          formulate how do I talk my way out  of  this;
          how do I explain this.

Later, the prosecutor said:
          Four  months,  hes got four months  to  think
          []how am I going to explain this.  Right  out
          of  the window, I said shes psychotic;  right
          off  the bat, I said shes crazy.  I also said
          Ms.  Galeon was crazy because if they believe
          Ms.  Galeon, Im in as much trouble as if they
          believe  her.   How  am I  going  to  explain
          this?[]  So four months later, for the  first
          time,  he  offers  the bite  theory  and  the
          menses  theory in the same hearing,  the  one
          that the judge  well, youll hear  youve heard

Douglas did not object to either statement.  Because Douglas  did
not object at trial, he must now show plain error.12
          We  have held that a person who is under arrest  for  a
crime cannot normally be impeached by the fact that he was silent
following his arrest.13  But here, the prosecutor did not ask the
jury to draw any unfavorable inference because Douglas elected to
assert a constitutional right.
          The  statements  the prosecutor attributed  to  Douglas
reflected  evidence  admitted during trial.  The State introduced
evidence  of  statements Douglas made at the time of his  arrest,
and  Douglas  did  not object.  The arresting officers  testified
that  Douglas  had made statements that [K.I.]  is  on  psychotic
medications,  and that K.I. was crazy and that  Galeon  was  also
crazy.   The State admitted the audiotape made while Douglas  was
processed at the police station.  Douglas did not object  to  the
admission  of the tape.  In fact, the State offered the  tape  in
evidence  after  Douglas established during cross-examination  of
one  of  the police officers that Douglas was Mirandized  by  the
police  and  then  asked for an attorney.   Although  an  officer
testified that he advised Douglas not to discuss the case because
he  asked for an attorney, Douglas continued to ask questions and
talk about the situation.
          The  State  also offered the electronic  recordings  of
Douglass  in-court  statements from two different  hearings  that
contained  statements about the case.  Douglas did not object  to
the admission of either recording.
          We  reject  Douglass  contention  that  the  prosecutor
improperly commented on Douglass right to remain silent.  Douglas
voluntarily offered a variety of comments after he was  arrested.
During cross-examination, Douglass attorney brought out the  fact
that  after  the police started to advise Douglas of his  Miranda
rights,14  he  asked  for an attorney.  Even  though  the  police
advised  Douglas not to talk about the case because he had  asked
for  an  attorney, Douglas continued to discuss the  case.    The
State  introduced  evidence of Douglass  statements  during  this
process and Douglas did not object to the admission of the tape.
          We  conclude that the prosecutors argument was  a  fair
comment  on the evidence admitted in the case.  Douglas, whenever
he  chose  to speak about his case before trial, never  mentioned
the   theories   he  eventually  proposed  during   trial.    The
prosecutors statement did not attack Douglass decision to  remain
silent;   instead  it  attacked  Douglass  decision   to   speak,
specifically his history of ever-changing theories.  Although the
Fifth  Amendment protects Douglass right to remain silent  before
and  during  trial,  it does not immunize his speech  from  later
criticism.  The prosecutors criticism was not in error.

          Douglass argument regarding the admission of his  prior
assault conviction
          The superior court admitted evidence that Douglas had a
fourth-degree  assault  conviction for  assaulting  K.I.  when  a
domestic  violence  restraining order  was  in  effect.   Douglas
argues  that the superior court erred by not explicitly  weighing
whether  the  probative value of this evidence was outweighed  by
its  prejudicial impact.  Douglas also argues that  even  if  the
evidence was admissible, the superior court should have given the
jury  a  limiting instruction on the proper use of this  type  of
          Before trial, the State filed notices of its intent  to
offer  evidence of Douglass prior bad acts, including the assault
mentioned above, under Evidence Rule 404(b)(4).  Douglas  opposed
and  specifically objected (before the jury was selected) on  the
grounds  that  the  probative value  of  the  prior  assault  was
outweighed  by  its prejudicial impact.  Judge  Weeks  implicitly
rejected  that argument when he ruled that the assault conviction
was    admissible,   but   did   not   conduct   the    probative
value/prejudicial impact balancing test on the record.
          During  trial,  the  State  offered  evidence  of   the
assaultive conduct and conviction for that conduct, and discussed
it during opening and closing arguments. Judge Weeks did not give
a  limiting  instruction to the jury regarding this  evidence  of
prior bad acts.
          In Bingaman v. State,15 we established requirements for
a trial court to apply when admitting evidence of other crimes of
domestic  violence under Evidence Rule 404(b)(4).   According  to
Bingaman, in cases involving domestic violence, evidence of other
crimes  involving domestic violence by the defendant against  the
same  or  another person ... is admissible.16  However,  we  held
that the admission of such evidence is only constitutional if  it
is limited:  The trial judge must still ensure that the defendant
is tried for the crime currently charged  not for the things that
the defendant might have done on other occasions, and not for the
kind of person that the defendant might be.17  This required  the
trial  court  to explicitly conduct the balancing  test  required
under  Evidence  Rule  403  and  explain  that  analysis  on  the
record.18   Furthermore, if the court decided  the  evidence  was
admissible, the court was required to instruct the jury that  the
evidence of the defendants other acts is not sufficient, standing
alone, to justify the defendants conviction.19
          Douglass  prior  assault  was committed  a  few  months
before  the  assault in the present case, and was committed  upon
the  same victim.  The superior court admitted evidence  of  this
assault  under  Evidence Rule 404(b)(4)  i.e., to prove  Douglass
propensity  to  commit domestic violence.  But conceivably,  this
evidence  was  also independently admissible under Evidence  Rule
404(b)(1) to prove the nature of Douglass relationship with K.I.
          In any event, Douglas did not ask the superior court to
give  the  cautionary  instruction described  in  Bingaman:   the
instruction  that  evidence of other acts of  domestic  violence,
standing   alone,  is  insufficient  to  support   a   defendants
conviction.   Even  though  we  described  this  instruction   as
mandatory in Bingaman, we now hold that
this instruction is mandatory only if the defendant requests  it,
or when the amount and nature of other-crimes evidence introduced
against the defendant demonstrates that the failure to give  this
instruction would amount to plain error.
          In  a  typical case, even when evidence of a defendants
other  crimes is introduced under Evidence Rule 404(b)(4)  (i.e.,
introduced  to  prove the defendants character),  the  defendants
trial  will  remain  fair  even in  the  absence  of  a  Bingaman
instruction.   Our  decision in Bingaman was  not  based  on  the
perception  that, absent this type of instruction, the defendants
trial would always be tainted by due process error.  Rather,  the
purpose  of  the Bingaman instruction is to amplify  a  principle
that  is  already  contained in the standard  jury  instructions:
that  the  jury  must not find the defendant  guilty  unless  the
government proves the crime charged in the indictment.  Except in
extraordinary cases like Bingaman, we trust that juries will  not
lose  sight of this principle even where evidence of other crimes
is admitted under Rule 404(b)(4).
          The facts of Douglass case do not approach the kind  of
extraordinary  circumstances found  in  Bingaman   where,  as  we
described  in  our opinion, only twenty percent of the  testimony
presented  at  [the  defendants] trial dealt with  the  acts  ...
charged [in the indictment, and the] remaining eighty percent  of
the testimony dealt with other acts or occurrences.20  And, as we
noted above, Douglas did not request a Bingaman instruction.
          Under  these  circumstances, the trial  judge  did  not
commit plain error by failing to give a Bingaman instruction  sua

          Douglass cumulative error argument
          Douglas  maintains that even if none of the  claims  he
raised  establishes  reversible error by itself,  the  cumulative
effect  of  the  individual  errors  warrants  reversal  of   his
          However, to the extent that we agree with Douglas  that
the  superior court erred, the errors are minor or technical, and
not  overly prejudicial.  We therefore reject Douglass cumulative
error argument.

          Sentencing issues
          The  jury  convicted Douglas of two  counts  of  first-
degree sexual assault (an unclassified felony which, at the  time
of Douglass crimes, carried a maximum penalty of 30 years on each
count)  and  two  counts  of fourth-degree  assault  (a  class  A
misdemeanor with a maximum sentence of 1 year).22  Douglas was  a
first felony offender for purposes of presumptive sentencing  and
was  subject  to  a  presumptive  8-year  term  for  each  sexual
           The  State alleged seven aggravating factors under  AS
12.55.155(c), and the judge found the following six: (c)(1) (K.I.
sustained  physical  injury as a result of the  sexual  assault);
(c)(2)  (Douglass conduct manifested deliberate cruelty to K.I.);
(c)(5)  (Douglas  knew K.I. was particularly  vulnerable  due  to
disability);  (c)(8)  (Douglass prior criminal  history  included
conduct  involving aggravated or repeated instances of assaultive
behavior);  (c)(10) (Douglass conduct was among the most  serious
conduct  within  the definition of first-degree sexual  assault);
and (c)(28) (K.I. had provided evidence related to prior offenses
committed  by Douglas).  Judge Weeks rejected aggravating  factor
(c)(18)(A), that the offenses were committed against a spouse  or
a member of the same social unit living together.
          Judge   Weeks  found  that  Douglas  had   a   profound
antisocial  nature,  and that he was a particularly  violent  and
dangerous  offender.   Judge  Weeks  concluded  that  the  sexual
assaults were reprehensible and destructive to both K.I. and  the
community, and found that Douglas was a worst offender24 with  no
likelihood of rehabilitation.  Judge Weeks sentenced Douglas to a
30-year  term with 15 years suspended on each of the first-degree
sexual assault convictions; the unsuspended 15 years to serve  on
each  count was imposed consecutively and the suspended  time  on
each  count was imposed concurrently.  He also sentenced  Douglas
to  1-year sentences on each fourth-degree assault conviction, to
run  concurrently  with  the time to serve  on  the  first-degree
sexual assault convictions, resulting in a composite 30-year term
to serve.
          We first address Douglass argument that a composite 30-
year term to serve  is excessive.
          The   record  fully  supports  Judge  Weekss   findings
regarding Douglass worst offender status (described above).  Even
though  Judge  Weeks  found that Douglas was  a  worst  offender,
thereby  justifying the imposition of a maximum term, he did  not
impose  the  maximum  possible sentence for Douglass  two  sexual
assault convictions.
          Judge Weeks did impose the unsuspended imprisonment for
          each sexual assault consecutively.  However, at the time of
Douglass  sentencing in April 2004, a sentencing judges authority
to  impose  consecutive  sentences  was  governed  by  former  AS
12.55.025(e) and (g).25  These two sections required  consecutive
sentences in certain circumstances, but in all other instances  a
sentencing   judge   had  the  discretion  to  impose   sentences
consecutively  or concurrently.  Both this court and  the  Alaska
Supreme  Court  construed  former  AS  12.55.025(e)  and  (g)  as
creating  a  preference  for  consecutive  sentences,   which   a
sentencing judge had the discretion to reject.26
          Douglas  argues  that his composite term  is  excessive
when  it  is compared to the sentence the defendants received  in
three reported cases:  Lewis v. State,27 Goolsby v. State,28  and
Mosier  v.  State.29  Each of these cases relied on a  sentencing
range  of  10  to  15  years imprisonment for  aggravated  sexual
assaults   recognized  by  this  court  in  State  v.  Andrews.30
However, in State v. Wentz,31 and again in State v. Hodari,32 the
Alaska Supreme Court emphasized that the proper focus of sentence
review  is whether the sentence imposed falls within a  range  of
reasonableness that:
          should be determined not by imposition of  an
          artificial ceiling which limits a large class
          of   offenses  to  the  lower  end   of   the
          sentencing  spectrum,  but,  rather,  by   an
          examination  of the particular facts  of  the
          individual  case in light of the total  range
          of  sentences  authorized by the  legislature
          for the particular offense.[33]

          Applying  that standard , and considering Judge  Weekss
careful  evaluation of the sentencing criteria  that  applied  to
Douglass  case, we conclude that the imposition of a net  30-year
term to serve is not clearly mistaken.34
          Next, Douglas argues that Judge Weeks violated the rule
set out in Juneby v. State35 and AS 12.55.155(e) when Judge Weeks
found the (c)(1) physical injury aggravator based on conduct  for
which  Douglas  had  been separately convicted  of  fourth-degree
          The  jury  convicted Douglas of two counts  of  fourth-
degree assault based on conduct that occurred at roughly the same
time  as  each sexual assault.  During the sentencing proceeding,
the  prosecutor  alerted Judge Weeks to the  issue  addressed  in
Juneby,  namely  that  a  sentencing court  should  not  find  an
aggravating  factor based on conduct for which the  defendant  is
being  separately punished.  The prosecutor asked Judge Weeks  to
enter  findings to indicate that he acknowledged  Juneby.   Judge
Weeks  found  aggravator  (c)(1)  that a  person  other  than  an
accomplice  sustained  physical injury  by clear  and  convincing
evidence  but made no findings or comments about the relationship
of (c)(1), Juneby, and AS 12.55.155(e).
          The  State  argues that any potential  error  does  not
require  resentencing because, even though Judge Weeks found  the
aggravator, he did not rely on that aggravator when imposing  the
sentence.  Both parties cite Anderson v. State,36 a case in which
this  court  remanded for resentencing because it was  not  clear
          from the contemporaneous record whether the sentencing judge
would  have  exercised his discretion in  the  same  way  had  he
realized  that Juneby prohibited him from relying on the disputed
aggravator.37   Judge Weeks made no mention  of  (c)(1)  when  he
imposed the sentence.  On the other hand, since Judge Weeks  made
no  explicit  Juneby  findings, it is not clear  if  Judge  Weeks
relied on the aggravating factor at all.  However, because we are
remanding  the case for the other reasons expressed below,  Judge
Weeks  will have the opportunity to expressly address the  Juneby
          Next, we address several issues Douglas raises based on
Blakely  v. Washington.38  In Blakely, the United States  Supreme
Court  held that [a]ny fact (other than a prior conviction) which
is   necessary  to  support  a  sentence  exceeding  the  maximum
authorized by the facts established by a plea of guilty or a jury
verdict  must be admitted by the defendant or proved  to  a  jury
beyond a reasonable doubt.39
          Douglas  argues  that Blakely applies to  a  sentencing
judges  election  to impose consecutive sentences.   However,  in
Edmonds  v.  State,40 we held that Blakely does not  affect  that
decision.41   Douglas also argues that Blakely  prohibits  judges
from  making  worst  offender findings.  Whatever  the  merit  of
Douglass  argument,  Judge Weeks was not  obliged  to  find  that
Douglas  was a worst offender to impose the composite  term  that
Douglas  received because Judge Weeks did not impose the  maximum
sentence for any of Douglass individual crimes.
          The issue remains whether any of the aggravators relied
on  by  Judge  Weeks  was  Blakely-compliant.   In  Cleveland  v.
State,42  we  held  that Blakely is satisfied  if  at  least  one
aggravating  factor  is established by the jurys  verdict,  by  a
defendants concession, or by the existence of a defendants  prior
          The  State  contends that Douglas conceded  aggravators
(c)(5) and (c)(8) at sentencing when Douglass counsel twice said,
I  have  no  comment on that aggravator, referring to (c)(5)  and
(c)(8).  Douglas denies conceding those aggravators, arguing that
not  commenting on an aggravator does not constitute a concession
that  the State could otherwise prove the aggravator.  This court
has previously found concession when a defendant says he does not
dispute  an  aggravator,  or  when a  defendant  agrees  that  an
aggravator  applies.44   But we have not held  that  a  defendant
concedes an aggravator by not commenting on it.
          We acknowledge that there might be logic to such a rule
when applied to mitigating factors.  The defense bears the burden
of proof on mitigators, and thus a defendants failure to make any
argument  in  favor of a proposed mitigator might justifiably  be
viewed  as equivalent to a concession that the proposed mitigator
has  no merit.  Compare Petersen v. State45 (holding that when  a
defense  attorney  declines to present argument  in  favor  of  a
proposed  jury  instruction or otherwise offer  a  rationale  for
giving  the  requested  instruction, the defendant  forfeits  any
claim  of  error); Cornwall v. State46 (same); Hohman v.  State47
(holding  that when a defense attorney offers evidence  which  is
challenged for lack of relevance, and the attorney fails to  make
an  offer  of  proof concerning the potential  relevance  of  the
          challenged testimony, the defendant thereby forfeits the point on
          But   the  situation  is  different  with  respect   to
aggravating factors.  Here, the prosecution bears the  burden  of
proof,  and  a defendants decision to decline argument concerning
an  aggravator does not relieve the government of its burden.  We
therefore  reject the States contention that Douglass failure  to
offer  argument  in opposition to aggravators (c)(5)  and  (c)(8)
constituted a concession of those aggravators.
          The  State  can satisfy Blakely without a jury  finding
beyond  a reasonable doubt when proof of aggravator (c)(8) relies
solely on a defendants uncontested prior convictions.48  However,
in  its  presentencing memorandum, the State relied on  uncharged
conduct and a single prior assault conviction.  Although a single
aggravated assault is sufficient to support aggravator  (c)(8),49
Douglass   prior   fourth-degree  assault  conviction   was   not
aggravated.  And under Blakely, the (c)(8) aggravator may not  be
supported  by  Judge Weekss findings that Douglas  had  committed
uncharged and unreported assaultive behavior.
          The  State  has  not argued that, on this  record,  the
other  aggravating  factors found by  Judge  Weeks  are  Blakely-
compliant.   Therefore,  we  must remand  the  case  for  further
proceedings on the statutory aggravators.
          If  the  State  is  not  able to establish  a  Blakely-
compliant  aggravator, then the superior court shall  re-sentence
Douglas, and transmit the amended judgment to this court.  If the
State  establishes a Blakely-compliant aggravator,  the  superior
court  shall  transmit the record of those  proceedings  to  this

          Douglass  conviction is AFFIRMED.  We REMAND  the  case
for  further proceedings on the aggravating factors.   We  retain
  1 AS 11.41.410(a)(1) & AS 11.41.230(a)(1), respectively.

2 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

3  See  Morgan  v.  State, 54 P.3d 332, 339  (Alaska  App.  2002)
(adopting a preponderance of the evidence standard for a  showing
that  the  complaining witness has made a prior  knowingly  false
accusation of sexual assault); Covington v. State, 703 P.2d  436,
442 (Alaska App. 1985) (holding that courts may allow evidence of
false  prior  allegations  of sexual  assault  when  the  charges
somehow  had  been  disproved or where the witness  had  conceded
their falsity).

4 See Shepard v. State, 847 P.2d 75, 83 (Alaska App. 1993).

  5  Lerchenstein  v.  State, 770 P.2d 1150,  1153  (Alaska  App.

  6 A.R.E. 403.

7  Kailukiak  v.  State, 959 P.2d 771, 779  (Alaska  App.  1998),
abrogated  on  other  grounds by Harmon v.  State,  11  P.3d  393
(Alaska App. 2000).

  8  Potts  v.  State, 712 P.2d 385, 390 (Alaska App. 1985);  see
also Massey v. State, 771 P.2d 448, 453 (Alaska App. 1989).

  9 Brown v. State, 601 P.2d 221, 225 (Alaska 1979).

10601 P.2d 221.

  11Id. at 225-26.

  12Kailukiak, 959 P.2d at 779.

  13Nelson v. State, 691 P.2d 1056, 1059 (Alaska App. 1984);  see
also Davis v. State, 501 P.2d 1026, 1030-31 (Alaska 1972).

  14Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16  L.  Ed.
2d 694 (1966).

  1576 P.3d 398 (Alaska App. 2003).

  16Id. at 406, (quoting A.R.E. 404(b)(4)).

  17Id. at 414.

  18Id. at 416.

  19Id. at 416-17.

  20Id. at 402.

21See Roussel v. State, 115 P.3d 581, 585 (Alaska App. 2005).

  22See former AS 12.55.125(I); AS 12.55.135(a).

  23See former AS 12.55.125(I)(1).

  24See  State  v.  Wortham, 537 P.2d 1117,  1120  (Alaska  1975)
(holding  that  a maximum sentence should not be imposed  without
some  foundation for characterizing a defendant as the worst type
of  offender and listing some of the factors which could  support
such a characterization).

25The  legislature repealed these sections in 2004  and  replaced
them  with  AS  12.55.127.  See SLA 2004, ch. 125,  7  (effective
July 1, 2004).

  26See  State  v.  Hodari, 996 P.2d 1230,  1233  (Alaska  2000);
Contreras v. State, 767 P.2d 1169, 1174 (Alaska App. 1989); Jones
v. State, 744 P.2d 410, 411 (Alaska App. 1987); State v. Andrews,
707  P.2d 900, 909 (Alaska App. 1985), affd, 723 P.2d 85  (Alaska

  27706 P.2d 715 (Alaska App. 1985).

  28739 P.2d 788 (Alaska App. 1987).

  29747 P.2d 548 (Alaska App. 1987).

  30707 P.2d at 912-13.

  31805 P.2d 962 (Alaska 1991).

  32996 P.2d 1230 (Alaska 2000).

  33Wentz,  805  P.2d  at 965 (emphasis in  original);  see  also
Hodari, 996 P.2d at 1232-33.

  34See  McClain  v.  State, 519 P.2d 811, 813-14  (Alaska  1974)
(holding  that  an  appellate court is  to  uphold  a  sentencing
decision unless the sentence is clearly mistaken).

  35641  P.2d 823 (Alaska App. 1982), modified in part, 665  P.2d
30 (Alaska App. 1983).

  36123 P.3d 1110 (Alaska App. 2005).

37Id. at 1121.

  38542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

  39United  States v. Booker, 543 U.S. 220, 244, 125 S. Ct.  738,
756,  160 L. Ed. 2d 621 (2005) (discussing Blakely, 542 U.S. 296,
124 S. Ct. 2531).

  40118 P.3d 17 (Alaska App. 2005).

  41Id. at 21.

  42143 P.3d 977 (Alaska App. 2006).

  43Id. at 988.

  44See  Peltola  v. State, 117 P.3d 771, 773, 774  (Alaska  App.

  45930 P.2d 414, 434 (Alaska App. 1996).

  46915 P.2d 640, 653 n.11 (Alaska App. 1996).

  47669 P.2d 1316, 1325-26 (Alaska App. 1983).

  48See  Milligrock  v.  State, 18 P.3d 11,  15-16  (Alaska  App.

  49Andrews v. State, 967 P.2d 1016, 1019 (Alaska App. 1998).

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