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Wacker v. State (11/30/2007) ap-2125

Wacker v. State (11/30/2007) ap-2125

     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

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) Court of Appeals No. A-9617
Appellant, ) Trial Court No. 3AN-05-1583 CR
v. )
) O P I N I O N
Appellee. ) No. 2125 November 30, 2007
Appeal    from     the
          Superior   Court,  Third  Judicial  District,
          Anchorage, Larry D. Card, Judge.

          Appearances:    Renee  McFarland,   Assistant
          Public  Defender, and Quinlan Steiner, Public
          Defender,   Anchorage,  for  the   Appellant.
          Blair   M.  Christensen,  Assistant  Attorney
          General,  Office of Special Prosecutions  and
          Appeals,  Anchorage, and  Talis  J.  Colberg,
          Attorney General, Juneau, for the Appellee.

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

          STEWART, Judge.

          Leanne  Wacker  was convicted of third-degree  assault,
driving under the influence, and failure to render assistance  to
an injured person.1
          In  this  appeal,  Wacker argues that the  trial  court
erred  in  failing  to  issue a curative  instruction  after  the
prosecutor made a comment in closing arguments that Wacker argues
improperly  shifted the burden to present evidence and witnesses.
We  hold  that  the  comment in question did  not  constitute  an
          improper shift of the burden, so no curative instruction was
          Wacker  also  argues that the trial court  should  have
admitted certain evidence of habit to prove conduct in conformity
with that habit under Alaska Evidence Rule 406.  Wacker sought to
admit evidence that her sister repeatedly drove while intoxicated
to prove that Wacker was not the driver.  But we conclude, as did
the trial court, that the offered evidence was character evidence
barred by Evidence Rule 404(b).
          We therefore affirm Wackers convictions.

          Background facts and proceedings
          On  the  night of February 20, 2005, Leanne Wacker  had
plans  to  go  out drinking in Anchorage with a friend,  Danielle
Gregory,  and  Wackers  sister, Brenda  Boone.   After  obtaining
alcohol  from two liquor stores and Wackers home, Wacker,  Boone,
and Gregory went to Boones trailer, and spent several hours there
          After  midnight, Boone, Gregory, and Wacker decided  to
go out to some bars.  The three women, with Boone driving Wackers
car, stopped briefly at two bars downtown; Boone went inside each
of  the  bars  while Gregory and Wacker waited in the  car.   The
women  then went to Chilkoot Charlies and spent thirty  to  sixty
minutes  there, during which time Wacker had two more drinks  and
Boone  had  three or four more drinks.  After about  an  hour  at
Chilkoot  Charlies, a bouncer informed Wacker that Boone  had  to
leave  the  bar because she was too intoxicated.  Boone,  Wacker,
and Gregory left the bar and got in Wackers car.
          On  the way home, Boone and Wacker dropped Gregory  off
at  her  apartment  building.  After leaving  Gregorys  apartment
building,  Wackers  vehicle  was involved  in  an  accident.   As
Wackers   vehicle   was  heading  south  on  C  Street   crossing
International Airport Road, it ran a red light and struck another
vehicle.   The  driver  of  the  other  vehicle,  Angelo  Ofiana,
suffered some physical pain as a result of the crash, and his car
was totaled.
          The  identity of the driver at the time of the accident
was a contested issue at trial.  Wacker testified that Boone, her
sister,  was driving her car at all times after leaving  Chilkoot
Charlies.  Wacker testified that she wanted to call a cab outside
Chilkoot  Charlies, but that Boone stated she was fine  to  drive
and  insisted  on driving Wackers car home.  Wacker  and  Gregory
both  testified  that  Boone  drove  from  Chilkoot  Charlies  to
Gregorys building, and that Boone was still driving when she  and
Wacker  drove away from Gregorys building.  Wacker further stated
that  after her car came to a rest following the accident,  Boone
climbed  from  the  drivers  seat into  the  back  seat.   Wacker
testified  that  Boone  said I cant get another  DUI,  and  asked
Wacker to tell the police that she (Wacker) was driving.
          A  taxi  driver,  Lampros Molfetas, was driving  behind
Ofianas  vehicle on International Airport Road and witnessed  the
accident.  Molfetas testified at trial that Wacker was the driver
of  the  car at the time it struck Ofianas vehicle.  When Wackers
car  did not stop after crashing into the other vehicle, Molfetas
followed the car and immediately called 911.  The car drove about
150  yards  past  the scene of the crash and  then  stopped,  and
Molfetas  stopped his taxi directly behind it.  He  testified  at
trial  that Wacker exited the car from the drivers side door  and
Boone exited from the passengers side shortly after the car  came
to a rest.  After exiting the vehicle, Boone told Molfetas that a
third  person  had been driving the car and had  fled  the  scene
after  the accident.  But Molfetas testified that he watched  the
car  constantly  after it hit Ofianas vehicle, continued  down  C
Street, and eventually slowed to a stop, and that he did not  see
the  passengers switch seats or see any person other than  Wacker
and  Boone  exit  the vehicle.  He testified that  he  was  [o]ne
hundred and ten percent certain that Wacker was the driver of the
car at the time of the accident.
          When  police arrived at the scene, Molfetas  told  them
that  Wacker  was  the driver of the vehicle.  A  police  officer
conducted field sobriety tests on Wacker, and she failed  all  of
them  and was arrested.  At the police station, a breath  alcohol
test determined Wackers blood alcohol content to be .129.
          Wacker  was charged with third-degree assault,  driving
while under the influence, and failure to render assistance to an
injured person after an accident.  At trial, Wackers defense  was
based  on the argument that Boone was driving her vehicle at  the
time  the accident occurred.  Boone, however, did not testify  at
          A  defense investigator, Kim McGee, testified about the
efforts  made to contact Boone before trial.  She testified  that
she  tried to call Boone several times, but when McGee identified
herself, Boone hung up on her.  McGee also tried to locate  Boone
in  person  at  several  different  addresses,  without  success.
Eventually, only a few days before trial, McGee was successful in
speaking  with  Boone on the telephone and  serving  her  with  a
subpoena to appear in court.  Boone failed to appear in court  on
the  date  specified  in the subpoena, and  did  not  testify  at
Wackers trial.
          In   contrast  with  McGees  testimony  regarding   her
difficulty in contacting Boone, Wacker testified that  after  the
accident   but  before  trial  Boone  [came]  over  [to   Wackers
apartment] all the time and frequently called Wacker.
          Wacker  argued that the jury should infer  from  Boones
failure  to  appear that Boone was driving at  the  time  of  the
accident and knew she was responsible, but did not want to  admit
this in court.
          During  trial,  Wacker attempted to introduce  evidence
that  Boone repeatedly would drink and drive, but Superior  Court
Judge Larry D. Card ruled this evidence inadmissible.  Judge Card
concluded that it was propensity evidence barred by Evidence Rule
404(b), not evidence of a regular habit admissible under Evidence
Rule 406.
          Wacker   also  objected  to  a  comment  made  by   the
prosecutor  during the States rebuttal closing argument.   Wacker
argues  that  the comment improperly shifted the  burden  to  the
defense to present evidence and witnesses.  Judge Card ruled that
the  comment did not improperly shift this burden to Wacker.   He
also  rejected  two jury instructions proposed by Wacker,  ruling
that the instructions misstated the law and  were duplicative  of
existing instructions.
          The  jury  found  Wacker guilty of all counts.   Wacker
appeals her convictions.

          Wackers  argument  regarding  statements  made  by  the
          prosecutor during closing arguments
          On  appeal, Wacker argues that the prosecutors comments
made  during  the States closing argument improperly shifted  the
burden of proof to the defendant, and that the trial court  erred
in denying Wackers request for a curative instruction.
          During  closing argument, the defense attorney  argued,
inter  alia,  that the jury should infer from Boones  failure  to
answer the subpoena that Boone was guilty.  The attorney stated:
          We  know  [Boone is] dishonest. ...  We  know
          that [Boone] doesnt follow court orders.  She
          was  subpoenaed to be here.  She  isnt  here.
          She  never  did come in.  We know she  has  a
          guilty  conscience, wont speak to her family,
          wont  speak  to  Ms.  McGee  back  there,  my
          investigator, when she tried to talk to  her.
          Wont  come to court when shes told to do  so.
          And  shes  hiding from the troopers and  from
          Ms.   McGee.   Why  is  that,  if  she  wasnt
          driving, [if] she was in the passenger  seat?
          Shes  got  a  guilty conscience,  ladies  and
          gentlemen,  thats why shes not  here  despite
          our  best  efforts to bring her in  and  show

In   the  States  rebuttal  argument,  the  prosecutor  made  the
following comments:

          Theres  also been discussion about who really
          has   access  to  Ms.  Boone.   Youve   heard
          testimony  that Ms. Boone calls the defendant
          regularly.  She leaves her messages.   Before
          [Wacker]  moved in September ... [Boone]  was
          in  and  out of [Wackers] house.  So Ill  ask
          you, who has access to Ms. Boone if they want
          her here?

Wacker  objected  to this comment by the State,  and  Judge  Card
overruled the objection.
          After the State finished its  rebuttal argument, Wacker
again  objected  to  the  prosecutors comment,  arguing  that  it
improperly shifted to Wacker the burden to present evidence.  The
State  responded  that  the comment did not  imply  that  it  was
Wackers  responsibility to produce Boone,  but  merely  countered
Wackers  argument that Boone was refusing to contact  her  family
and was making herself unavailable for a particular purpose.
          Judge   Card   again   overruled   Wackers   objection,
concluding  that  the  prosecutors comment  was  related  to  the
evidence and facts of the case, and did not improperly shift  the
burden  to  the  defendant to produce evidence or witnesses.   He
found that Wacker herself raised the issue of her sisters failure
to  show  up despite constant contact with the defendant  outside
the  courtroom.  The judge also noted his frequent  reminders  to
the  jurors that it is the States burden to produce evidence  and
prove the defendants guilt beyond a reasonable doubt.
          Despite  these  conclusions,  Judge  Card  offered   to
consider,  in  addition to the basic instructions that  addressed
the  States  burden of proof, a jury instruction addressing  this
particular situation, explicitly stating that the defendant never
has  the  burden  to  call any witness or produce  any  evidence.
Wacker proposed the following jury instruction:
          In   her  closing  argument,  the  prosecutor
          suggested   that  Ms.  Wacker   should   bear
          responsibility  for  bringing  a  witness  to
          court.  That suggestion was wrong.

          The burden of proof and of bringing witnesses
          to  court  always lies with the  prosecution,
          and not with the defendant.
          Judge Card rejected this instruction, finding that  the
second  paragraph improperly stated the law: although the  burden
of  proving each element beyond a reasonable doubt lies with  the
State, the State does not bear the responsibility of bringing all
witnesses (including, for example, witnesses for the defense)  to
          Wacker  offered  to amend the second paragraph  of  the
instruction  to  state solely that the burden of proof  beyond  a
reasonable  doubt always lies with the prosecution and  not  with
the   defendant.    Judge  Card  again  rejected   the   proposed
instruction,  finding  that  the  existing  instructions  already
provided a clear statement of the law on this point.
          Wacker argues that the prosecutors comment to the  jury
who  has  access to Ms. Boone if they want her here?   improperly
shifted   the  burden  of  proof,  or  the  burden  of  producing
witnesses,  to  Wacker.  The State argues  that  the  prosecutors
comment  should  be  interpreted as  argu[ing]  that  there  were
several  other reasonable explanations as to why Boone  may  have
avoided  involvement in the court proceedings, aside from Wackers
lone explanation of a guilty conscience.
            In  McCurry  v.  State,2  the  Alaska  Supreme  Court
acknowledged that it is ordinarily improper [for the  prosecutor]
to  comment  on  the failure of the defendant to call  particular
witnesses.3   This rule is meant to address situations  in  which
the  prosecutor  is asking the jury to draw an adverse  inference
against  the  defendant based on the defendants failure  to  call
certain witnesses.4
          This  case  presents a different situation.  At  trial,
Wacker  presented evidence on the unavailability of  Boone  as  a
witness,  primarily through a defense investigator who  testified
about the extensive efforts made by the defense to bring Boone in
to  testify.   Wackers attorney then argued that the jury  should
draw  an inference, favorable to the defense, from Boones failure
to  testify  namely, an inference that Boone was the one who  was
responsible for the crime committed.
          Viewed  in context, the prosecutors comments in closing
argument   merely  pointed  out  that  there  was  also  evidence
contradicting Wackers assertion that Boone had failed  to  appear
          despite Wackers best efforts  namely, the evidence that Wacker
had  continued  to  have contact with Boone throughout  the  time
leading  up  to  trial.  We agree with the trial court  that  the
prosecutors  statements are properly viewed as a comment  on  the
evidence  presented  in the case, not a comment  that  improperly
shifted  the  burden  to produce evidence  or  witnesses  to  the
          Since  the  prosecutor  did not  improperly  shift  the
burden  of presenting evidence or witnesses to the defendant,  it
was not necessary for the trial court to provide the jury with  a
curative  instruction addressing this situation.   An  additional
instruction was particularly unnecessary in light of the existing
jury instructions, which explained the States burden of proof and
stated  that  the  defendant never has the  burden  to  call  any
witness or produce any evidence.

          Wackers   argument   regarding  the  admissibility   of
          evidence of Boones history of drinking and driving
          Wacker  argues that the trial court erred in  excluding
evidence of Boones history of drinking and driving.
          At  trial, Wacker attempted to introduce evidence  that
Boone  would frequently drive while intoxicated.  Wacker made  an
oral  offer of proof, stating that she had several witnesses  who
would  testify about Boones practice of driving while  shed  been
drinking.  She argued that the evidence was admissible  as  habit
evidence  under Evidence Rule 406, and as evidence of  prior  bad
acts  to prove identity (i.e., to prove that Boone was the driver
of  the  vehicle) under Rule 404(b)(1).  Judge Card  ruled  that,
based  on Wackers offer of proof, Boones history of drinking  and
driving  did  not constitute  habit under Rule 406, and  was  too
general to establish Boones identity as the driver.
          After   Judge   Cards   ruling,  Wacker   renewed   her
application to allow evidence of Boones repeated acts of  driving
after  she  had  been drinking. Wacker made  an  offer  of  proof
through  testimony (given outside the presence of the jury)  from
another  sister,  Cathlee  Bantasari.  Bantasari  testified  that
Boone drank and did things that she should not be doing under the
influence of alcohol, such as driving or giving insulin shots  to
her  son.  Bantasari stated that before the car accident she  saw
Boone  two or three times a year, but that she had not seen Boone
in  almost a year at the time of her testimony.  Judge Card ruled
that  Bantasaris  testimony  on  this  subject  was  inadmissible
because  it  was  propensity evidence  barred  by  Evidence  Rule
404(b),  not evidence of a regular habit for purposes of Evidence
Rule 406.
          Wacker  now argues that Judge Card erred in determining
that  Bantasaris testimony did not constitute evidence  of  habit
under Rule 406.
           Alaska  Evidence Rule 406 provides that [e]vidence  of
the  habit of a person ... is relevant to prove that the  conduct
of the person ... on a particular occasion was in conformity with
the  habit.  Although the term habit is not defined in  the  rule
itself,  the  commentary to Rule 406 defines habit as  a  persons
regular practice of meeting a particular kind of situation with a
specific type of conduct.5
          Wacker  argues that Boones specific conduct in response
to  [her  need  to go somewhere after she had been drinking]  was
insisting,  over  objection, that she drive.  Wacker  avers  that
Bantasaris  testimony would have demonstrated that  this  conduct
was  repeated frequently and consistently.6  But not all  conduct
that is repeated frequently and consistently constitutes a habit.
A  significant factor in the determination of habit is the degree
of  volition  required  for the activity; the  more  thought  and
planning  required for the act, the less likely it will be  found
to  be a habit; the more reflexive and automatic the conduct, the
more likely it will be found to be habit.7
          Boones  acts of driving when she had too much to  drink
were  volitional decisions on her part, and those acts cannot  be
said  to have been performed out of reflex.  We agree with  Judge
Card  that  under,  these circumstances, the evidence  of  Boones
drinking   and   driving  constituted  evidence   of   character,
inadmissible  under  Rule  404, not  evidence  of  habit.    This
decision aligns with a policy of caution in admitting evidence of
a  pattern  of  conduct as habit, out of concern  that  the  rule
admitting   habit  evidence  will  swallow  the  rule   excluding
character  evidence.8   Judge Card did  not  err  in  ruling  the
evidence inadmissible under Rule 406.

          The judgment of the superior court is AFFIRMED.
     1      AS   11.41.220(a)(1)(B),  AS  28.35.030(a),  and   AS
28.35.060(c), respectively.

     2     538 P.2d 100 (Alaska 1975), overruled on other grounds
by Howe v. State, 589 P.2d 421 (Alaska 1979).

     3    Id. at 103-04.

     4    See Gass v. United States, 416 F.2d 767, 775 (D.C. Cir.

     5    Commentary to Alaska R. Evid. 406 (quoting McCormick on
Evidence (2d ed.)  195, at 462).

     6     See id. ([T]he more regular the performance of an act,
the more likely it is to be regarded as a habit.).

     7     Stephen  A. Saltzburg, Michael M. Martin, & Daniel  J.
Capra,  2  Federal  Rules  of Evidence  Manual  (9th  ed.  2006),
406.02[2], at 406-3.

     8    See id.

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